LETTER AND MEMO ON RIGHT OF SCHOOL COMMITTEES TO AWARD DIPLOMAS REGARDLESS OF MCAS SCORES
May 24, 2002
TO: MassCARE Executive Committee
FROM: MassCARE Legal Policy Committee
Dear Executive Committee Members:
In response to the request of the MassCARE Executive Committee, the MassCARE Legal Advisory Committee is of the opinion that there are sound legal arguments under the Constitution and the laws of Massachusetts giving local school committees the authority to grant diplomas regardless of the Board of Education (the "BOE") regulation 603 CMR 30.03: Standards for Competency Determination.
We believe that the action of the BOE in promulgating that regulation, along with 603 CMR 30.02 Definitions, was beyond its power to do so inasmuch as the agency unlawfully appropriated to itself legislative authority.
In addition, the BOE has violated the intent of the Education Reform Act of 1993 ("the Act") which requires the competency determination to be measured by a variety of assessment instruments and not by the criterion of a single test. Nowhere in that statute is there any indication that the Legislature intended a single test‹no matter how many times given‹to be a condition of high school graduation. A close reading of the Act as a whole indicates that a single test could not have been the legislative intent. Indeed, the Act expressly granted to school committees the right to "establish educational goals and policies for the schools in the district consistent with the requirements of law and statewide goals and standards established by the board of education." M.G.L., c. 71, sec. 37. What the BOE has done is to have effectively delegated this power solely to itself, and in so doing has negated the local control of school committees as authorized by the statute.
Attached hereto is a further enumeration of our preliminary analysis of school committee diploma granting authority. As you know, the Legal Advisory Committee continues to meet on an ongoing basis to refine our analysis of the statute and to prepare for any legal challenge if necessary. We have already set up one meeting with counsel for a local school committee and will continue to be available to other town counsels, school committees or MassCARE chapters who wish to consult with us.
Sincerely,
MassCARE Legal Advisory Committee
By: Sumner Z. Kaplan, Chair
617-566-1381, szk@aol.com
Preliminary Legal Points Supporting Diploma-Granting Authority to School Committees
--Prepared by MassCARE Legal Advisory Committee
1. From the founding of the first public high school in Massachusetts, local school committees have overseen graduation requirements and the granting of high school diplomas. If there were any intent in the Education Reform Act of 1993 ("the Act") to remove diploma-granting authority from local school committees, the Legislature would have clearly spelled it out. The statute contains no such language expressly overriding school committee authority to do so.
2. The Act requires each district to file an annual report with "an outline of the curriculum and graduation requirements of the district." M.G.L., c. 69, sec. 1I. This language implies the intent of the statute was to allow districts to continue to set their own graduation requirements rather than criteria which were merely supplemental to the MCAS test. This language indicates that the intent of the Legislature was to have local school committees retain local control over graduation requirements, and it was specifically emphasized in this section of the statute. Even the language in the statute requiring that satisfaction of the competency requirement be a condition of high school graduation does not expressly grant the Board of Education (the "BOE") authority to determine the competency determination. Indeed, in c. 69, sec. 1B., which spells out the duties of the BOE, the agency is directed to promulgate regulations to fulfill the purposes of the Act "so as to encourage innovation, flexibility and accountability in schools and school districts." M.G.L., c. 69, sec. 1B. Instead the Board has established a single rigid criterion‹the MCAS test‹for high school graduation, contrary to the express intent of the statute.
3. The Act calls for a "competency determination" as a condition of high school graduation. M.G.L., c. 69, sec. 1D. However, the MCAS test was neither described nor referred to in the statute at the time the regulation was promulgated. Reference to MCAS first appears in the definitional section of the BOE regulation 603 CMR 30.02. However, in contrast to the other terms defined in the definitional section of the regulations, "MCAS" defines a term that nowhere appeared in the statute itself at the time the regulation was adopted. Accordingly, this regulation in effect amounts to legislation by a regulatory body.
4. Other provisions of the Act call for assessing schools and districts using a "variety of assessment instruments" including "consideration of work samples, projects and portfolios" facilitating "authentic and direct gauges of student performance." M.G.L., c.69, sec. 1I. A single standardized test does not comply with the statutory requirement of a "variety of assessment instruments." A review of the statute does not indicate that it was ever the intent of the Legislature to allow a single test (no matter how many times given) to be the final determinant of competency. In fact, the BOE's interpretation of the statute negates the whole concept of multiple assessments, which is a principal thrust of the Act.
5. There is to date no evidence that the MCAS test has been "designed to avoid gender, cultural, ethnic or racial stereotypes" or that it recognizes "sensitivity to different learning styles and impediments to learning." M.G.L., c. 69, sec. 1I. Nor has it been demonstrated that the MCAS has "taken into account on a nondiscriminatory basis the cultural and language diversity of students in the commonwealth and the particular circumstances of students with special needs." Id. Indeed, the fact that the racial gap in MCAS test scores has not been narrowed and that students with special needs are failing at disproportionate rates (one out of 700 passed the 2001 Alternate Assessment), illustrates that the state has failed to demonstrate that the MCAS assessment tool has met those aforementioned statutory requirements.
6. The continual changing of the state curriculum frameworks makes it questionable as to whether students could have mastered the material being tested by the time of their 10th grade MCAS. In other jurisdictions, courts have ruled that where students have not received instruction corresponding to the standards to which they are being held, a violation of their constitutional due process rights may have occurred. Moreover, there is ample evidence throughout school districts in Massachusetts that local curricula have yet to have been properly aligned with the state curriculum frameworks.
May, 2002
