Judge hears arguments on MCAS graduation rule

3/26/2003
Boston Globe

Decision expected within 10 days

By Anand Vaishnav, Globe Staff, 3/26/2003

With thousands of high school seniors' diplomas on the line, lawyers battled yesterday in Suffolk Superior Court over whether the state can legally require students to pass the MCAS exam to graduate from a Massachusetts public high school.

In the latest stage of the closely-watched lawsuit challenging the graduation requirement, state lawyers argued that overturning the exam would undermine a decade of efforts to improve education in the Commonwealth.

But lawyers for seniors who failed to pass the test after four attempts said the state has no authority to enact the requirement -- and that a pencil-and-paper test violates the Education Reform Act of 1993, which permits work samples and portfolios to be used in assessing student performance.

The class of 2003 is the first that must pass the Massachusetts Comprehensive Assessment System tests in English and math in order to graduate.

Thomas Frongillo, lead attorney for the student plaintiffs, charged that Massachusetts' urban school systems are narrowing what they teach in order to push students over the MCAS hurdle, while wealthier suburbs offer a rich curriculum.

''These kids have gone to school for 12 years. If they've passed all their local graduation requirements . . . they cannot be held from graduation pursuant to an illegal requirement,'' Frongillo argued.

But Assistant Attorney General Pierce Cray said the graduation requirement is legal because it is contained in regulations that explain the Education Reform Act. And the state Legislature, he pointed out, continues to pump millions of dollars into programs to help students pass the test, even after they leave high school.

''Why on earth would the Legislature be so clearly tailoring funding to the specific wording of the regulation if the regulation were objectionable and not in keeping with the act?'' Cray asked.

Frongillo also revealed an embarrassing fact for the state Education Department: The regulations covering the graduation requirement apparently mention only the class of 2003, not future classes. That could open the door to future legal action.

Department spokeswoman Heidi B. Perlman said the ''intention has always been'' to include future classes in the regulation and that state officials will revise it immediately. The state Board of Education must OK the changes.

Frongillo also argued that the state is violating the Education Reform Act by testing only in English and math and not basing graduation on assessments in history, science, and foreign languages.

But Cray argued that it makes little sense for the student plaintiffs to allege that they're being harmed by the graduation requirement in English and math, but then ask the state to test them in other subjects.

The two-hour hearing drew dozens of spectators in Superior Court Judge Margot Botsford's courtroom, including students from English High School in Boston, anti-MCAS activists, education lawyers, and teachers union officials. Botsford quizzed each side's lawyers and promised a ruling within 10 days.

Yesterday's hearing focused on the plaintiffs' request for a preliminary injunction to block the state from using MCAS to deny diplomas. The order was sought because a trial on the lawsuit is not expected before graduation in June.

The lawsuit continues even though six of the eight original plaintiffs have since passed the MCAS or won appeals that allow them to receive their diplomas without passing the test. Two plaintiffs remain, one from Springfield and one from Billerica, according to their attorney Roger Rice.

Telisa Martinez, the parent of a senior at Cambridge Rindge and Latin School who hasn't passed the math section, said she attended the hearing to support the students who are suing.

''I don't think it's fair to use our kids as guinea pigs,'' Martinez said.

About 6,000 students, or 10 percent of the class of 2003, have not passed the MCAS test after four attempts. The lawsuit was filed originally in September in federal court but was refiled in state court in January. US District Court Judge Michael A. Ponsor retains oversight over some federal claims, however.

Both sides have vowed to appeal Botsford's ruling on the injunction to the Supreme Judicial Court if they lose.
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Click here for a copy of the briefs, including the MassParents Amicus brief  filed in this case