Rene ex rel. Rene v. Reed

• Decision Date: 20 June 2001
• Docket Number: No. 49A02-0007-CV-433.,49A02-0007-CV-433.
• Citation: 751 N.E.2d 736
• Parties: Meghan RENE, by her parents and next Friends, Michael and Robin RENE, et al., Appellants-Plaintiffs, v. Dr. Suellen REED, in her official capacity As Indiana State Superintendent of Public Instruction, et. al., Appellees-Defendants.
• Court: Indiana Appellate Court

751 N.E.2d 736

Meghan RENE, by her parents and next Friends, Michael and Robin RENE, et al., Appellants-Plaintiffs, v. Dr. Suellen REED, in her official capacity As Indiana State Superintendent of Public Instruction, et. al., Appellees-Defendants.

No. 49A02-0007-CV-433.

Court of Appeals of Indiana.

June 20, 2001.

Kenneth J. Falk, Jacquelyn E. Bowie, E. Paige Freitag, Indiana Civil Liberties Union, Indianapolis, IN, Attorneys for Appellants.

Karen Freeman-Wilson, Attorney General of Indiana, Beth H. Henkel, Frances H. Barrow, Linda S. Leonard, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATTINGLY-MAY, Judge.

Meghan Rene and certain other students with disabilities ("the Students") who were or are required to pass the Indiana graduation qualifying examination ("the GQE")¹ brought a class action against Dr. Suellen Reed as Indiana Superintendent of Public Instruction ("the State"). They sought declaratory and injunctive relief, alleging the State violated their due process rights by imposing the GQE as a condition of high school graduation because the State had not previously required disabled students to meet the standards the State had implemented to prepare students for the GQE. Therefore, the Students say, it did not necessarily expose them to some of the material tested on the GQE. The Students also assert the State violated the Individuals with Disabilities Education Act (IDEA) because they were denied certain test-taking adaptations and modifications required for them pursuant to the IDEA. The trial court entered judgment² for the State, and we affirm.³

FACTS

We summarized the evolution of this case in Rene ex rel. Rene v. Reed, 726 N.E.2d 808, 812-15 (Ind.Ct.App.2000), (hereinafter Reed I) where we reversed the trial court's order denying certification to one of the classes and redefining the other:

On May 21, 1998, the Students filed their class action Complaint seeking injunctive and declaratory relief. The Complaint, filed by their parents on the Students' behalf, set forth claims under 42 U.S.C. § 1983 and the Individuals with Disabilities Education Act, 20 U.S.C. § 1401 ("IDEA"). The Students, as defined by proposed Class A, claim that the Appellee/Defendant, Dr. Suellen Reed (Dr. Reed), in her official capacity as Indiana State Superintendent of Public Instruction, violated their due process rights under the United States Constitution and the Indiana Constitution by requiring them to take and pass the Graduation Qualifying Examination ("GQE") when they had previously been exempted from standardized testing and/or had not been taught the subject matter on the tests. The Students, as defined by proposed Class B, claim that Dr. Reed violated their rights under the IDEA by requiring them to take the GQE without the testing accommodations and adaptations required by the Students' case conferences and individualized education programs.

In Indiana, students participate in the Indiana Statewide Testing for Educational Progress (ISTEP) testing program in the third, sixth, eighth and tenth grades. Ind.Code § 20-10.1-16-8. This test measures achievement in mathematics and language arts. Ind. Code § 20-10.1-16-7. The GQE is a portion of the tenth grade ISTEP examination. Subject to two exceptions, all Indiana high school students who wish to receive a high school diploma must take and pass the GQE. Ind.Code § 20-10.1-16-13. This includes students with disabilities. Id.

The Students are four Indiana high-school students, who were in the 10th grade at the time the Complaint was filed. The Students belong to first class of Indiana students, the class of 1999-2000, who are required to pass the GQE as a prerequisite to receiving a high school diploma.⁴

As a condition of the State receiving federal financial assistance, the IDEA requires that students with disabilities must receive a public education which is free and appropriate given their specific needs. 20 U.S.C. § 1400(d); 20 U.S.C. § 1412(a)(1). Indiana receives money under the IDEA and is therefore bound by the federal requirements. Ind.Code § 20-1-6-1. The federal requirement that a student receive a free and appropriate education is ensured by means of an individualized education program ("IEP") which is prepared at least annually in a case conference which is attended by the students with disabilities' regular education teachers, special education teachers, parents and others who have knowledge and special expertise. 20 U.S.C. § 1414(d); Ind.Code § 20-1-6-1(5). The IEP contains the outline of the student's education, including the services to be provided and modifications to the general education program, including modifications to any statewide assessments to be given to special education students. 20 U.S.C. § 1414(d).

Prior to the change in the state statute requiring that students pass the GQE, case conference could indicate that a student with disabilities was excused from taking the GQE or other standardized testing, while still on the diploma track. The case conference could also determine that the tests for these diploma bound students would be taken diagnostically, which meant that they were not given under normal testing conditions, and if the student failed, there would be no adverse consequences such as remediation or retention. Prior to the GQE, students with disabilities on the diploma track received a high school diploma if they satisfied the requirements of their IEPs and the general state curriculum requirements, regardless of whether they took the standardized tests. Furthermore, prior to the GQE, there was not a requirement that in order to graduate, a student master the skills that are now tested by the GQE examination. The Students allege that as a result, many students with disabilities who were on a diploma track were not taught the information now tested on the GQE. Indeed, the State has acknowledged that there was no requirement that, prior to the GQE, students with disabilities be taught the skills which are now tested on the graduation examination.

[Meghan Rene] attends Ben Davis High School in Indianapolis, Indiana, and has received special education since the first grade. Prior to the GQE requirement, Meghan had always been excused from standardized testing. Meghan's IEP provided that she was in the diploma program and if she completed all her course work and complied with her IEP, she would receive a diploma. Meghan's IEP further provided that she be excused from standardized testing and also indicated that all tests were to be read to her. Meghan was first informed that she had to take the GQE in the fall of 1997. Meghan first took the exam in the fall of 1997 and the examination was not read to her. Also, Meghan's IEP provided that she be allowed to use a calculator during testing. This accommodation was also disallowed when she took the GQE. Meghan failed the exam, and as of February 1999, had yet to pass the GQE.

* * *

None of the representative plaintiffs are in the Core 40 curriculum program which would exempt them from the GQE. Further, all of the Students allege that they were not given sufficient notice that they would be required to pass the GQE and were not given the opportunity to adjust their curriculum in order to take courses that would specifically prepare them for the GQE. Additionally, the Students assert that they would not qualify under the waiver provision of Ind.Code § 20-10.1-16-13(e) because they have not obtained the necessary proficiencies in the tested areas to allow their teachers to so certify.

(footnote two supplied; record citations omitted).

STANDARD OF REVIEW

Because the trial court, pursuant to the agreement of the parties, entered final judgment on the basis of the findings and conclusions it entered sua sponte in its order denying injunctive relief, we will consider the findings to be made voluntarily and will treat the decision as a general judgment with respect to issues not covered by the findings. Under that standard, the specific findings control only with respect to the issues they cover, and the general judgment controls as to the issues upon which the court has not found. Catellier v. Depco, Inc., 696 N.E.2d 75, 77 (Ind.Ct.App.1998). We may not reverse the trial court's findings unless they are clearly erroneous. Id. The general judgment will be affirmed if it can be sustained upon any legal theory by the evidence introduced at trial. Id. In our review, we will consider only the evidence that is most favorable to the trial court's judgment and will not weigh the evidence or judge the credibility of witnesses. Id.

DUE PROCESS

The trial court properly found, and the State does not explicitly disagree, that the Students have a property interest protected by due process in the award of a diploma if all graduation requirements are met. If the state chooses to provide a public education system, it "is constrained to recognize a student's legitimate entitlement to a public education as a property interest which may be protected by the Due Process Clause." Debra P. v. Turlington, 644 F.2d 397, 403 (5th Cir.1981), quoting Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). In Debra P., students challenged a standardized test required by the State of Florida as a condition for receipt of a high school diploma. The court there noted that the exam might have covered matters not taught through the curriculum and it held the state could not constitutionally deprive its public school students of a diploma on that basis. 644 F.2d at 404.

While the State implicitly concedes there are due process implications in the case before us, it does assert as a threshold matter that there was no due process violation because "[t]he Students wrongly claim they had a legitimate expectation to receive a regular high school diploma because their case conference committees checked a box on their IEPs indicating that they were on a `diploma...