Rene ex rel. Rene v. Reed
| Decision Date | 04 April 2000 |
| Docket Number | No. 49A02-9907-CV-457.,49A02-9907-CV-457. |
| Parties | Meghan RENE, by her parents and next friends, Michael and Robin RENE; Carl Carson, by his next friend, David Carson, Justin Hurrle, by his parents and friends, Patric and Patricia Hurrle; Jonathan Gibson, by his mother and next friend, Tammy Gibson, each of them individually and on behalf of a class of those similarly situated, Appellants-Plaintiffs, v. Dr. Suellen REED, in her official capacity as Indiana State Superintendent of Public Instruction, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Beth H. Henkel, Frances H. Barrow, Deputy Attorneys General, Indianapolis, Indiana, Attorney for Appellee.
Plaintiffs, Meghan Rene (Meghan), Carl Carson (Carl), Justin Hurrle (Justin), and Jonathan Gibson (Jonathan), who are students with disabilities (collectively referred to as Students), bring this interlocutory appeal of the trial court's denial of their motion to certify this case as a class action on behalf of two proposed classes.
We reverse and remand.1
The Students present two issues on appeal, which we restate as follows:
1. Whether the trial court abused its discretion in denying class certification with regard to Class A.
2. Whether the trial court abused its discretion in narrowing and limiting the definition of Class B.2
The Students bring this interlocutory appeal pursuant to Rule 4(B)(6) of the Indiana Rules of Appellate Procedure. 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.3 Subject to two exceptions,4 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.
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. (R. 136-137).
One of the Students, Meghan, 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.
Carl attends Center Grove High School in Greenwood, Indiana, and has received special education since the first grade. Carl's IEP provided that all examinations be read to him. Carl was on the diploma track and his IEP indicated that he was to take standardized tests for diagnostic purposes only and that he was not to be subjected to remediation or retention. Carl first took the GQE in the fall of 1997, and was unable to pass the examination prior to February 1999. The reading comprehension portions of the examination were not read to him. Since February 1999, Carl has passed the GQE.
Justin attends Carmel High School in Carmel, Indiana, and has received special education since the first grade. Prior to the GQE requirement, Justin had always been excused from standardized testing. Justin's IEP provided that he was in the diploma program and if he completed all his course work and complied with his IEP, he would receive a diploma. Justin's IEP further required that all tests were to be read to him in addition to other accommodations. Justin was first informed that he had to take the GQE in the spring of 1997. Justin first took the exam in the fall of 1997 and the examination was not read to him. Justin failed the exam and has yet to pass the GQE.
Jonathan attends Franklin Central High School in Franklin, Indiana. Jonathan has also received special education since the first grade. Prior to the GQE, he was not required to take any standardized tests; however, he was on the diploma track. His 1997 IEP provided that he would participate in the 10th grade ISTEP examination, but this was to be for diagnostic purposes only and he was not to be subjected to remediation or retention. His IEP provided that all tests be read to him; however the GQE was not. As of February 1999, Jonathan had not yet passed 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.
On May 21, 1998, the Students filed a motion for certification of the class action. After twice amending the proposed class definitions, the Students proposed two separate classes and defined them as follows:
Class A:
All children with disabilities (as defined in Ind.Code 20-1-6-1) who have been, are being, or will be required to pass the Indiana Statewide Testing for Educational Progress (ISTEP+) test as a condition of receiving a High School diploma and who, prior to the advent of the ISTEP+ examination were designated as being in the diploma track, but who had, in the past, been excused from standardized testings, and/or whose individualized education plans did not provide that they were to be taught the subjects tested on the ISTEP+...
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