Legal Advisory Regarding School Committees' Diploma-Granting Authority

Prepared by MassCARE Legal Policy Committee
January, 2003
Revised February 1, 2003

1.  Can a local School Committee be sanctioned by the state for granting  diplomas to students who meet local requirements, regardless of their MCAS scores?

In a letter from the DOE to several school superintendents dated July 11, 2002, the department cited the following statutory provision in support of its purported right to sanction school committees that fail to comply with laws affecting the public schools:

The board may withhold state and federal funds from school committees which fail to comply with the provisions of law relative to the operation of the public schools or any regulation of said board authorized in this section. M.G.L., c.69,sec.1B. (emphasis supplied). 

The statute expressly requires multiple assessments. M.G.L. c. 69, sec. 1I mandates that the "system shall employ a variety of assessment instruments"(emphasis supplied). Accordingly, the "competency determination" cannot be based on a single test. Therefore any diploma granted on the basis of multiple assessments complies with the "provisions of law relative to the operation fo the public schools...." One component of the multiple assessments requirement could be the results of the MCAS test but in and of itself, it cannot determine eligibility for graduation.

Furthermore, we contend the MCAS regulation was not "authorized" by the Ed Reform Act. The determination of the validity of the MCAS regulation is a legal question that is being litigated in state court( Student 1, et al.v. Massachusetts Board of Education, et al) and has yet to be resolved.  The plaintiffs in the state suit filed on January 7, 2003 offer compelling arguments that the Board of Education had no authority to issue the regulation requiring public school students to pass the mathematics and English language arts sections of the MCAS exam to graduate from high school.  They further contend that the regulation creating MCAS "irreconcilably conflicts with several express provisions of the Education Reform Act of 1993 and undermines the goal and intent of the Act."  Until this question is resolved in favor of the state, which we regard as unlikely, should the state impose sanctions of any kind upon a district that grants diplomas to students who meet local high school requirements, the state would have no legal basis for its actions.  

2.  Why not wait until the legal issues are resolved in court before deciding whether we have the right to retain our diploma granting authority?

Time is not on the side of the students who otherwise are deserving of diplomas.  A final ruling from a court of competent jurisdiction probably will not come in time to resolve the matter for the class of 2003.  Indeed even if the state court rules in favor of the defendant DOE, the United States District Court sitting in Springfield has retained jurisdiction over federal constitutional claims that challenge the validity of the graduation requirement.  This gives school committees a window of opportunity to convince their legislators to repeal the graduation requirement.  

3. Has any of the school committees (Hampshire-Regional, Falmouth, Cambridge) who have thus far passed diploma granting resolutions been sanctioned by the DOE?

No.  Any district that passes a diploma-granting resolution that merely declares an intention to grant diplomas regardless of MCAS is immune from punishment.  In other words, even if sanctions might be applied to districts, it cannot happen  until they actually hand out diplomas.  A lot can happen politically between the time districts declare an intention to grant diplomas and graduation day, such as repeal, suspension or postponement of the graduation requirement.

4.  What should be the role of city solicitors and town counsels  regarding the diploma-granting issue?

Town counsels and city solicitors should  be advocates for the school committees, their clients. Your lawyer's job is to advocate for your policy decisions. Your town counsel or city solicitor cannot definitely say that your decision to grant diplomas is illegal while there is a lawsuit pending that challenges that contention.  The DOE has stated its opinion on the issue, but that is merely an opinion by an interested party having  no legal effect. Only a court of competent jurisdiction can determine whether MCAS is a lawful regulation. At present, there is no indication that the local granting of diplomas fails to comply with the provisions of law relative to the operation of the public schools. Town counsels and city solicitors should be seeking to participate as amici curiae ("friends of the court") in support of the plaintiffs' case pending in state court.

5. As a political matter, is the DOE likely to sanction numerous school committees?

While this is not a legal question per se, CARE does not believe it would be politically feasible, in this period of dire cuts to the education budget, for the DOE to withhold funding from a large number of school committees united in their determination to grant diplomas to students who satisfy the competency determination by meeting local high school requirements.  Ninety-seven out of 124 school committees at the fall 2002 meeting of the Massachusetts Association of School Committees (MASC) supported a resolution to retain diploma granting authority.  If even a fraction of that number followed through locally by passing resolutions declaring an intention to grant diplomas this spring, the legislature-- your legislators especially if you are being threatened--would be hard pressed to support the withholding of  funds to your district.

6.  What is wrong with the DOE's certificates of attainment?  Don't these serve the purpose of rewarding students who have met local requirements?

No.  The certificates represent a two-tiered system that stigmatizes those students who cannot pass a standardized test.  Indeed the certificate of attainment is an admission by the DOE of the unfairness of the MCAS requirement itself.  Commissioner Driscoll in explaining the rationale for the certificates stated that he felt it was only fair to "do something for those kids who try," or words to that effect.  However, this "something" does not entitle students to federal financial aid, nor does it guarantee admission to either state college or to the military.  It merely gives seniors "a piece of paper" as they walk across the stage at a graduation that for them will be a farce.  While the certificate may be better than nothing at all, it is not the answer, and to some it may indeed be worse than nothing because of impact of being branded "inferior."  In short, the certificate is a means of avoiding the difficult and unpleasant task of telling some of the 12,000 seniors that they cannot graduate.  After 12 years of studying and completing all their graduation requirements except MCAS, theses students deserve to receive a diploma.

7.  Can you suggest language for a diploma-granting resolution?

Yes. We recommend you keep it simple.  Of course you may wish to draft some  "whereas" clauses to explain the rationale for the resolution itself.  But the resolution language itself can be as simple as the following:

"Resolved that the _____School Committee will continue to award diplomas to all students who meet local performance standards based upon multiple assessments as indicated in the Education Reform Act of 1993."  In addition, the resolutions of Hampshire Regional, Cambridge and Falmouth can be found on the CARE website at www.caremass.org.

 8.  Are we engaging in civil disobedience by asserting our intention to grant diplomas?

Absolutely not.  The matter of the state's authority to promulgate MCAS will be decided in court.  It is legally unsettled at present.  Indeed, it is of questionable ethics for the DOE to be threatening school committees with sanctions at all while this matter is pending before the courts. 

9.  Are school committee subject to claims of legal liability by withholding diplomas from deserving students?

Yes. Just ask the Holyoke School Committee which has expended thousands of dollars to defend itself in the federal MCAS suit.  By denying diplomas to students-- particularly the more vulnerable groups such as minorities and children on Individual Educational Plans (IEP) who are failing MCAS at a disproportionate rate-- it is highly likely that school committees will be sued by parents and guardians.  They would have the right to contend that their children were not adequately prepared for the MCAS on the grounds that the curriculum was not properly aligned , that resources were inadequate or that their children failed to receive appropriate accommodations, just to name a few possible claims.

 10.  How can school committees focus on this issue of local control over diplomas right now in light of the state's dire fiscal predicament ?  

As a result of the current fiscal crisis, the likelihood of lawsuits based on substantive due process constitutional grounds–that schools lack the resources to adequately prepare students to pass MCAS–is significantly increased.  One such law suit is presently before the courts. (Hancock v. Commissioner of Education, et al). Indeed several cities and towns are already saying to the state that the MCAS graduation requirement is unconscionable in the fact of drastic school aid cuts. When Lt. Governor Kerry Healy asked local officials recently what state mandates might  be cut, the Mayor of Fall River, Edward M. Lambert, Jr. who was a member of the Legislature's education committee when the Ed Reform bill was enacted, replied, "MCAS."  

Public schools are required by the Massachusetts constitution to educate our children and to prepare them for their journey beyond high school. To deny a diploma to a qualified student flies in the face of all the mandates given to school committees by law, violates all of the oaths of office taken by school committee members and directly opposes the basic goal of furthering "the best interest of the child".

11.  How can I get more information?

Please contact members of the MassCARE Legal Policy Committee: Judge Sumner Z. Kaplan (retired) at szk @aol.com (617-566-1381) or Ruth Kaplan, Esq. at kaplanruth @aol.com. (617-566-4173), or check our website at www.caremass.org for additional names of people who can provide more information.