Student No. 9 v. Board of Education

• Decision Date: 27 January 2004
• Citation: 802 NE 2d 105,440 Mass. 752
• Parties: STUDENT No. 9 & others vs. BOARD OF EDUCATION & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

440 Mass. 752

802 NE 2d 105

STUDENT No. 9¹ & others² vs. BOARD OF EDUCATION & others.³

Supreme Judicial Court of Massachusetts, Suffolk.

November 6, 2003.

January 27, 2004.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Thomas C. Frongillo (David S. Godkin with him) for the plaintiffs.

Pierce O. Cray, Assistant Attorney General (John R. Hitt, Assistant Attorney General, Rhoda Schneider, & Lucy Wall with him) for the defendants.

David M. Mandel, for Massachusetts Association of Vocational Administrators, amicus curiae, was present but did not argue.

The following submitted briefs for amici curiae:

Joel Z. Eigerman & Sumner Z. Kaplan for Jewish Alliance for Law & Social Action & others.

Sarah R. Wunsch for American Civil Liberties Union of Massachusetts.

Thomas J. Dougherty, Kurt Wm. Hemr, Alisha Quintana, & Stephen J. Finnegan for Massachusetts Association of School Committees.

John H. Walsh for Michael Colin Walsh & others.

Henry C. Dinger & Benjamin M. Wattenmaker for Massachusetts Business Alliance for Education & others.

Mark Alan Perkins for Massachusetts Coalition for Authentic Reform in Education & others.

David Lee Turner, Town Counsel, for town of Brookline.

GREANEY, J.

The plaintiffs, public school students in the high school class of 2003, challenge the facial validity of 603 Code Mass. Regs. § 30.03 (2000), a regulation adopted by the Board of Education (board), which required them to pass the tenth grade English language arts and mathematics sections of the Massachusetts Comprehensive Assessment System examination (MCAS exam) in order to graduate from high school.⁴ The plaintiffs sought a preliminary injunction enjoining the defendants from enforcing the regulation and from requiring students in the high school class of 2003 to pass the tenth grade English language arts and mathematics sections of the MCAS exam as a prerequisite to the award of a high school diploma. A judge of the Superior Court denied the preliminary injunction, and the plaintiffs appealed. We granted the plaintiffs' application for direct appellate review and now affirm the judge's order.

1. The background of the case is as follows. In McDuffy v. Secretary of the Executive Office of Educ., 415 Mass. 545, 617-619 (1993), this court held that the Massachusetts Constitution imposes an enforceable duty on the Commonwealth to ensure that all children in its public schools receive an education that is to include certain specific training.⁵ Virtually simultaneously with the June 15 release of the McDuffy decision, the Legislature by emergency preamble, on June 18, 1993, enacted the Education Reform Act of 1993 (Act), St. 1993, c. 71. Section 27 of the Act, which rewrote G. L. c. 69, § 1, sets forth its intent and purpose in the following terms:

"It is hereby declared to be a paramount goal of the Commonwealth to provide a public education system of sufficient quality to extend to all children⁶ the opportunity to reach their full potential and to lead lives as participants in the political and social life of the Commonwealth and as contributors to its economy. It is therefore the intent of this title to ensure: (1) that each public school classroom provides the conditions for all pupils to engage fully in learning as an inherently meaningful and enjoyable activity without threats to their sense of security or self-esteem, (2) a consistent commitment of resources sufficient to provide a high quality public education to every child, (3) a deliberate process for establishing and achieving specific educational performance goals for every child, and (4) an effective mechanism for monitoring progress toward those goals and for holding educators accountable for their achievement."

St. 1993, c. 71, § 27.

Of relevance are three sections of G. L. c. 69, namely, §§ 1D, 1E, and 1I, which were inserted by St. 1993, c. 71, § 29. These provisions imposed various obligations on the commissioner and the board, in furtherance of education reform, including obligations to develop "academic standards" and "curriculum frameworks" in certain "core subjects." See G. L. c. 69, § 1D, 1E. First, the board, through the commissioner, was required "to institute a process to develop academic standards for the core subjects of mathematics, science and technology, history and social science, English, foreign languages and the arts."⁷Id. at § 1D, second par. Second, the board was required to direct the commissioner "to institute a process for drawing up curriculum frameworks for the core subjects covered by the academic standards provided in § 1D." Id. at § 1E, first par. The curriculum frameworks "shall present broad pedagogical approaches and strategies for assisting students in the development of the skills, competencies and knowledge called for by these standards. . . . They shall provide sufficient detail to guide the promulgation of student assessment instruments." Id.

The Act imposed on the board an obligation to create objective "assessments" to measure both school and student performance. See G. L. c. 69, § 1I, first, second, and third pars., inserted by St. 1993, c. 71, § 29.⁸ The first three paragraphs of § 1I, provide, in pertinent part:

"The board shall adopt a system for evaluating on an annual basis the performance of both public school districts and individual public schools. With respect to individual schools, the system shall include instruments designed to assess the extent to which schools and districts succeed in improving or fail to improve student performance, as defined by student acquisition of the skills, competencies and knowledge called for by the academic standards and embodied in the curriculum frameworks established by the board pursuant to §§ 1D and 1E in the areas of mathematics, science and technology, history and social science, English, foreign languages and the arts, as well as by other gauges of student learning judged by the board to be relevant and meaningful to students, parents, teachers, administrators, and taxpayers.

"The system shall be designed both to measure outcomes and results regarding student performance, and to improve the effectiveness of curriculum and instruction. In its design and application, the system shall strike a balance among considerations of accuracy, fairness, expense and administration. The system shall employ a variety of assessment instruments on either a comprehensive or statistically valid sampling basis. Such instruments shall be criterion referenced, assessing whether students are meeting the academic standards described in this chapter. As much as is practicable, especially in the case of students whose performance is difficult to assess using conventional methods, such instruments shall include consideration of work samples, projects and portfolios, and shall facilitate authentic and direct gauges of student performance. Such instruments shall provide the means to compare student performance among the various school systems and communities in the Commonwealth, and between students in other States and in other nations, especially those nations which compete with the Commonwealth for employment and economic opportunities. . . .

"In addition, comprehensive diagnostic assessment of individual students shall be conducted at least in the fourth, eighth and tenth grades. Said diagnostic assessments shall identify academic achievement levels of all students in order to inform teachers, parents, administrators and the students themselves, as to individual academic performance. The board shall develop procedures for updating, improving or refining the assessment system." (Emphases added.)

The Act also amended G. L. c. 69 to impose a graduation requirement called the "competency determination." G. L. c. 69, § 1D, inserted by St. 1993, c. 71, § 29. The provision reads, in pertinent part:

"The `competency determination' shall be based on the academic standards and curriculum frameworks for tenth graders in the areas of mathematics, science and technology, history and social science, and English,⁹ and shall represent a determination that a particular student has demonstrated mastery of a common core of skills, competencies and knowledge in these areas, as measured by the assessment instruments described in § 1. Satisfaction of the requirements of the competency determination shall be a condition for high school graduation. If the particular student's assessment results for the tenth grade do not demonstrate the required level of competency, the student shall have the right to participate in the assessment program for the following year or years. Students who fail to satisfy the requirements of the competency determination may be eligible to receive an educational assistance plan designed within the confines of the foundation budget to impart the skills, competencies and knowledge required to attain the required level of mastery. . . ." (Emphasis added.)

Id. at § 1D, fourth par., (i).¹⁰ All high school students attending public schools, including vocational high schools and charter schools, and all students educated with State funds, are subject to the competency determination.

The Act granted extensive authority to the board:

"The board shall establish such other policies as it deems necessary to fulfill the purposes of this chapter . . . . In accordance with the provisions of G. L. c. 30A, the board may promulgate regulations as necessary to fulfill said purposes. Said regulations shall be promulgated so as to encourage innovation, flexibility and accountability in schools and school districts."

G. L. c. 69, § 1B, twenty-fourth par., inserted by St. 1993, c. 71, § 29.

The board undertook its mandate to implement the Act and, over time, established curriculum frameworks for all core subjects and formulated the MCAS exam. The exam is a customized test, designed by a national testing company specifically for Massachusetts to be closely aligned...