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N.Y. High Court Upholds Requirement Linking Test Passage to Graduation

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New York's highest court has upheld the state's requirement that all students--including the mentally handicapped--must demonstrate proficiency on state-administered competency tests in order to receive a high-school diploma, and that three years' notice gives the students adequate time to prepare for the examinations.

A memorandum decision handed down on Oct. 20 by a seven-judge panel of the New York Court of Appeals rejected an appeal by a Suffolk County school district that has continued, since 1979, to award diplomas to handicapped students who have failed the state-mandated tests.

The Court of Appeals said that mentally handicapped students from the Northport-East Northport Union Free School District "had no reasonable expectations of receiving a high-school diploma without passing competency tests."

The competency tests--which initially certified 9th-grade-level ability in reading and mathematics--were approved by the New York State Board of Regents in 1976 and were first administered in 1979.

Under Section 103.5 of the regulations of the commissioner of education, a school district can award a local certificate of completion to those who do not pass competency tests but who complete "an appropriate individualized education program." Each school district must report the name of students receiving these certificates to the state department of education shortly after the end of the school year, according to the statute.

The Northport-East Northport Union Free School District filed suit against the state education department and the regents in New York State Supreme Court in 1979, contending that the new requirement was in violation of the Education for All Handicapped Children Act of 1975 (P.L. 94-142) and Section 504 of the Rehabilitation Act of 1973. The district also argued that handicapped students were not given adequate notice to prepare for the test and that they would be stigmatized if denied a diploma, according to James H. Whitney, an attorney for the New York State Education Department.

Not Enough Lead Time

In 1979, Judge Robert C. Williams of the State Supreme Court, the lowest court of general jurisdiction in New York, ruled that the competency-testing regulation did not violate the rights of handicapped students. But Judge Williams said the petitioning students--whose identities have been kept confidential--did not have enough lead time to prepare for the tests.

One of the students, referred to in court records as "Abby," is neurologically impaired. The other student, "Richard," is mentally retarded. Abby passed the reading test but failed the mathematics test; Richard never took a minimum-competency examination. Both were awarded diplomas after completing other requirements.

The state commissioner in 1979 directed the district--and all other districts in the state--to identify students who did not pass competency tests but received diplomas, so that the state could inform the students that their diplomas were invalid. But rather than comply, Northport filed suit, according to Kenneth Pawson, an attorney for the New York State Education Department.)

Both the state department of education and the Northport district appealed the lower court's decision to the Appellate Division of the New York State Supreme Court, where a panel of five judges affirmed the opinion that the state could require handicapped students to pass a competency test for graduation.

The court, however, reversed one element of Judge Williams' decision, saying that the matter of providing adequate lead time for the mentally handicapped was irrelevant because, according to Mr. Whitney, "The students would never be able to pass the required tests for graduation no matter how much time they had."

Ruling Affirmed

The ruling by the Court of Appeals last month in Board of Education of the Northport-East Northport Union Free School District v. Ambach affirmed the appellate court's ruling concerning the state's right to deny diplomas to handicapped students who could not pass the tests. The court also said the mentally handicapped students were not "denied adequate notice of the requirement" because the regulation was adopted in 1976, leaving the students three years to prepare.

The Northport district has awarded diplomas to 25 handicapped students since 1979, including two last year.

The district will now comply with the state requirement and stop awarding diplomas to anyone who failed to take or pass the test, according to Lawrence E. McNally, director of pupil services for the district.

Mr. McNally said parents of handicapped children in the district are going to ask the state legislature on Jan. 24 to "change the law to allow the individual educational plan for special-education students be used as standard of successful high-school completion."

He said the parents are concerned that "employers use the high-school diploma as a screening device and that minimally handicapped students who can do a job but lack a diploma become locked out of employment."

It is uncertain at this time what will happen to the diplomas held by the 25 graduates.

However, state education officials said that it is likely that the students will be notified that their diplomas are not valid.

Conflicting Decisions

The decision in the Northport case comes on the heels of other, sometimes conflicting, decisions that have attempted to determine the conditions under which a state or district can deny diplomas to students who fail minimum-competency tests.

In May, U.S. District Judge George C. Carr ruled in Debra P. v. Turlington that the state of Florida can legally withhold high-school diplomas from students who cannot pass a functional-literacy test. The judge said that although Florida has had a long history of school segregation, black plaintiffs had failed to prove that they did not have an adequate opportunity to learn the mathematics and communications skills tested on the state-developed examination.

Judge Carr said that last year's black seniors, who had attended integrated schools since the first grade, had equal educational opportunities "in the constitutional sense." (See Education Week, May 11, 1983, and May 25, 1983.)

An appeal has been filed by the plaintiffs in the U.S. Court of Appeals for the 11th Circuit in Atlanta. No date has yet been set for the case to be heard.

In January, the U.S. Court of Appeals for the Seventh Circuit ruled in Brookhart v. Illinois State Board of Education that special-education students in Peoria who were denied high-school diplomas in 1980 for failing minimal-competency tests were deprived of their constitutionally protected rights and must be awarded diplomas.

At the same time, however, the appeals court upheld the right of the Peoria High School District to make passage of a minimal-competency test a graduation requirement for all students in the future, including those enrolled in special-education programs. (See Education Week, Jan. 19, 1983.)

Thirty-eight states have adopted some form of proficiency testing for pupils, according to the Education Commission of the States, and laws in 20 of those states provide for diploma sanctions, either statewide or as a local option.

Arkansas and Pennsylvania currently have testing bills pending, according to Chris Pipho, director of the information clearinghouse at the ecs

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