STATEMENT OF THE CASE
Plaintiffs, Meghan Rene (Meghan),
Carl Carson (Carl), Justin Hurrle (Justin), and Jonathan Gibson (Jonathan), who
are students with disabilities (collectively referred to as Students), bring
this interlocutory appeal of the trial court’s denial of their motion to
certify this case as a class action on behalf of two proposed classes.
We reverse and
remand.
The Students present two issues on
appeal, which we restate as follows:
1. Whether the trial
court abused its discretion in denying class certification with regard to Class
A.
2. Whether the trial
court abused its discretion in narrowing and limiting the definition of Class
B.
The Students bring this
interlocutory appeal pursuant to Rule 4(B)(6) of the Indiana Rules of Appellate
Procedure. On May 21, 1998, the
Students filed their class action Complaint seeking injunctive and declaratory
relief. The Complaint, filed by their
parents on
the Students
behalf, set forth claims under 42 U.S.C. § 1983 and the Individuals with
Disabilities Education Act, 20 U.S.C. § 1401 (“IDEA”). The Students, as defined by proposed Class
A, claim that the Appellee/Defendant, Dr. Suellen Reed (Dr. Reed), in her
official capacity as Indiana State Superintendent of Public Instruction,
violated their due process rights under the United States Constitution and the
Indiana Constitution by requiring them to take and pass the Graduation
Qualifying Examination (“GQE”) when they had previously been exempted from standardized
testing and/or had not been taught the subject matter on the tests. The Students, as defined by proposed Class
B, claim that Dr. Reed violated their rights under the IDEA by requiring them
to take the GQE without the testing accommodations and adaptations required by
the Students’ case conferences and individualized education programs.
In Indiana, students participate
in the Indiana Statewide Testing for Educational Progress (ISTEP) testing
program in the third, sixth, eighth and tenth grades. Ind. Code § 20-10.1-16-8.
This test measures achievement in mathematics and language arts. Ind. Code §
20-10.1-16-7. The GQE is a
portion of the tenth grade ISTEP examination. Subject to two exceptions,
all Indiana high school students who wish to receive a high school diploma must
take and pass the GQE. Ind. Code § 20-10.1-16-13. This includes students with disabilities. Id.
The Students are four Indiana
high-school students, who were in the 10th grade at the time the
Complaint was filed. The Students
belong to first class of Indiana students, the class of 1999-2000, who are
required to pass the GQE as a prerequisite to receiving a high school diploma.
As a condition of
the State receiving federal financial assistance, the IDEA requires that students
with disabilities must receive a public education which is free and appropriate
given their specific needs. 20 U.S.C. §
1400(d); 20 U.S.C. § 1412(a)(1).
Indiana receives money under the IDEA and is therefore bound by the
federal requirements. Ind. Code §
20-1-6-1. The federal requirement that
a student receive a free and appropriate education is ensured by means of an
individualized education program (“IEP”) which is prepared at least annually in
a case conference which is attended by the students with disabilities’ regular
education teachers, special education teachers, parents and others who have
knowledge and special expertise. 20
U.S.C. § 1414(d); Ind. Code § 20-1-6-1(5).
The IEP contains the outline of the student’s education, including the services
to be provided and modifications to the general education program, including
modifications to any statewide assessments to be given to special education
students. 20 U.S.C. § 1414(d).
Prior to the
change in the state statute requiring that students pass the GQE, case
conference could indicate that a student with disabilities was excused from
taking the GQE or other standardized testing, while still on the diploma
track. The case conference could also
determine that the tests for these diploma bound students would be taken
diagnostically, which meant that they were not given under normal testing
conditions, and if the student failed, there would be no adverse consequences
such as remediation or retention.
Prior to the GQE, students with disabilities on the diploma track
received a high school diploma if they satisfied the requirements of their IEPs
and the general state curriculum requirements, regardless of whether they took
the standardized tests. Furthermore, prior to the GQE, there was not a requirement that in
order to graduate, a student master the skills that are now tested by the GQE
examination. The Students allege that
as a result, many students with disabilities who were on a diploma track were
not taught the information now tested on the GQE. Indeed, the State has acknowledged that there was no requirement
that, prior to the GQE, students with disabilities be taught the skills which
are now tested on the graduation examination.
(R. 136-137).
One of the
Students, Meghan, attends Ben Davis High School in Indianapolis, Indiana, and
has received special education since the first grade. Prior to the GQE requirement, Meghan had always been excused from
standardized testing. Meghan’s IEP
provided that she was in the diploma program and if she completed all her
course work and complied with her IEP, she would receive a diploma. Meghan’s IEP further provided that she be
excused from standardized testing and also indicated that all tests were to be
read to her. Meghan was first informed
that she had to take the GQE in the fall of 1997. Meghan first took the exam in the fall of 1997 and the
examination was not read to her. Also,
Meghan’s IEP provided that she be allowed to use a calculator during
testing. This accommodation was also
disallowed when she took the GQE.
Meghan failed the exam, and as of February 1999, had yet to pass the
GQE.
Carl attends
Center Grove High School in Greenwood, Indiana, and has received special
education since the first grade. Carl’s
IEP provided that all examinations be read to him. Carl was on the diploma track and his IEP indicated that he was
to take standardized tests for diagnostic purposes only and that he was not to
be subjected to remediation or retention.
Carl first took the GQE in the fall of 1997, and was unable to pass the
examination prior to February 1999. The
reading comprehension portions of the examination were not read to him. Since February 1999, Carl has passed the
GQE.
Justin attends
Carmel High School in Carmel, Indiana, and has received special education since
the first grade. Prior to the GQE
requirement, Justin had always been excused from standardized testing. Justin’s IEP provided that he was in the diploma
program and if he completed all his course work and complied with his IEP, he
would receive a diploma. Justin’s IEP
further required that all tests were to be read to him in addition to other
accommodations. Justin was first
informed that he had to take the GQE in the spring of 1997. Justin first took the exam in the fall of
1997 and the examination was not read to him. Justin failed the exam and has
yet to pass the GQE.
Jonathan attends
Franklin Central High School in Franklin, Indiana. Jonathan has also received special education since the first
grade. Prior to the GQE, he was not
required to take any standardized tests; however, he was on the diploma
track. His 1997 IEP provided that he
would participate in the 10th grade ISTEP examination, but this was
to be for diagnostic purposes only and he was not to be subjected to
remediation or retention. His IEP
provided that all tests be read to him; however the GQE was not. As of February 1999, Jonathan had not yet
passed the GQE.
None of the
representative plaintiffs are in the Core 40 curriculum program which would
exempt them from the GQE. Further, all
of the Students allege that they were not given sufficient notice that they
would be required to pass the GQE and were not given the opportunity to adjust
their curriculum in order to take courses that would specifically prepare them
for the GQE. Additionally, the Students
assert that they would not qualify under the waiver provision of Ind. Code §
20-10.1-16-13(e) because they have not obtained the necessary proficiencies in
the tested areas to allow their teachers to so certify.
On May 21, 1998,
the Students filed a motion for certification of the class action. After twice amending the proposed class
definitions, the Students proposed two separate lasses and defined them as
follows:
Class A:
All children with disabilities (as defined in Ind. Code 20-1-6-1) who have been,
are being, or will be required to pass the Indiana Statewide Testing for
Educational Progress (ISTEP+) test as a condition of receiving a High School
diploma and who, prior to the advent of the ISTEP+ examination were designated
as being in the diploma track, but who had, in the past, been excused from
standardized testings, and/or whose individualized education plans did not
provide that they were to be taught the subjects tested on the ISTEP+ examination.
(R. 40-41)
Class B:
All children with disabilities (as defined in Ind. Code 20-1-6-1) who have been,
are being, or will be required to pass the Indiana Statewide Testing for
Educational Progress (ISTEP+) test as a condition of receiving a High School diploma
and who have, or at the time of taking the ISTEP+ graduation exam had or will
have, individualized educational plans which exempted them or which will exempt
them from standardized testing or which allow or which will allow for
adaptations and accommodations during testing which are not or will not be honored during the testing.
(R. 40).
A hearing was held on the Students’
Motion to Certify on March 25, 1999. On
April 5, 1999, the trial court issued its Order Granting in Part and Denying in
Part Plaintiffs’ Motion for Class Certification. This Order denied the Students’ Motion to Certify with regard to
Class A, concluding that the Students had failed to exhaust their
administrative remedies, that their claims were not ripe for adjudication, that
they did not have standing, and that they failed to satisfy the requirements of
Trial Rule 23(B)(2). The trial court
also found that the definition of Class A was overly broad. The trial court granted the Motion to
Certify as to Class B, but narrowed and limited the definition of Class B as
follows:
[A]ll
students with disabilities whose case conference committees have determined
through the individualized education program that written exams and other
written assessments are to be read to them as an accommodation but as to whom
the State requires that this accommodation not be provided when the student
takes the reading comprehension portion of the graduation qualifying
examination.
(R.
176). The trial court rejected the
Students’ definition of Class B, finding that the Students who required other
accommodations failed to exhaust their administrative remedies.
This appeal followed.
DISCUSSION AND DECISION
Standard of Review
The Students
appeal the trial court’s denial of their Motion to Certify with regard to Class
A and the trial court’s modification and limitation of their proposed
definition of Class B. “The
determination of whether an action is maintainable as a class action is
committed to the sound discretion of the trial court.” Northern
Indiana Public Service Co. v. Bolka, 693 N.E.2d 613, 615 (Ind. Ct. App.
1998), trans. denied. Therefore, in reviewing a trial court's
certification of a class action, we employ an abuse of discretion standard of
review. Lake County Trust Co. v. Wine, 704 N.E.2d 1035, 1042-1043 (Ind.
Ct. App. 1998). An abuse of discretion
occurs when the trial court’s “‘decision rests upon a clearly erroneous finding
of fact, an errant conclusion of law or an improper application of law to
fact.’” Hefty v. All Other Members of the Certified Settlement Class,
680 N.E.2d 843, 848 (Ind. 1997), reh’g
denied (citation omitted).
Thus, the trial court’s decision
herein regarding the Students’ motion for class certification will be reviewed
for an abuse of discretion.
Class Certification
To obtain class certification,
the students must satisfy all of the requirements of Trial Rule 23(A). However, in making a determination regarding
class certification, a trial court may not conduct a preliminary inquiry into
the merits of the suit. Eisen v. Carlisle & Jacquelin,
417 U.S. 156, 177 (1974). “A
certification hearing is not intended to be a trial on the merits, and Trial
Rule 23 does not require a potential class representative to show a likelihood
of success on the merits in order to have his claim certified as a class
action.” Bolka, 693 N.E.2d at
617. Assuming the merits of an action,
a trial court must determine whether the plaintiff has satisfied the
requirements for class certification under Trial Rule 23. Eggleston v. Chicago Journeyman Plumbers,
657 F.2d 890, 895 (7th Cir. 1981), cert. denied, 445 U.S. 1017 (1982). The representative plaintiffs have the
burden to show that all the requirements for class certification have been
met. Bolka, 693 N.E.2d at 615.
“Failure to meet any one of the mandated requirements results in the
denial of class status.” Perfect Circle Corp. v. Case, 444
N.E.2d 1211, 1213 (Ind. Ct. App. 1983).
Trial Rule 23(A)
states that members of a class may sue as representative parties on behalf of
the entire class if:
3) the claims
or defenses of the representative parties are typical of the claims or defenses
of the class; and,
4) the
representative parties will fairly and adequately protect the interests of the
class.
Trial Rule 23(A).
The Students argue that they
satisfied all four requirements of Trial Rule 23(A). The trial court, however, found that the proposed classes were
not entitled to class certification based on other grounds and did not address
whether Class A and B, as defined by the Students, satisfied the provisions of
Trial Rule 23(A). Dr. Reed does not
argue that the Students failed to satisfy Trial Rule 23(A), but rather asserts
that the Students failed to exhaust their administrative remedies, lacked
standing, failed to satisfy Trial Rule 23(B)(2), and that their claims are not
ripe.
In reviewing the
requirements of Trial Rule 23(A), we conclude that Class A and Class B, as
proposed and defined by the Students, satisfy the requirements of Trial Rule
23(A). Trial Rule 23(A)(1) requires
that the class be so numerous that joinder of all members is impracticable. “[N]umerosity analysis does not rest on a magic
number but permissive joinder is usually deemed impracticable where class
members number 40 or more.” Connerwood Healthcare, Inc, 683
N.E.2d at 1326 (citing Chandler v.
Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 307 (N.D.Ill.1995)). In this case, the evidence showed that in
the Metropolitan School District of Warren Township in Marion County, Indiana,
there were over one thousand (1,000) students with disabilities whose IEPs
specified that they were in a diploma track but who were excused from statewide
assessments or who were allowed to take them diagnostically. (R. 102).
This evidence represents just one school district within the State. Consequently, the Students satisfied the
requirement of numerosity.
Trial Rule 23(A)(2) requires
that there exist questions of law or fact common to the class. “The commonality prerequisite focuses on the
characteristics of the class” and “[t]his requirement is satisfied if the
individual plaintiffs' claims are derived from a common nucleus of operative
fact, described as a common course of conduct.” Connerwood Healthcare,
Inc, 683 N.E.2d at 1327. Here,
the Students in the proposed Class A claim that their due process rights were
violated when they were required to take and pass the GQE as a prerequisite for
receiving a high school diploma even though their IEPs excused them from
standardized tests and/or their IEPs did not provide that they were to be
taught the subjects tested on the GQE.
The Students in Class B claim that their rights under the IDEA were violated
when they were required to take and pass the GQE as a prerequisite for
receiving a high school diploma even though their IEPs, which allowed for
adaptations and accommodations during testing,
were not honored during the testing.
These claims derive from the same operative facts, the requirement that
the Students take and pass the GQE, and constitute a common course of conduct;
therefore, the commonality requirement is satisfied.
Trial Rule 23(A)(3) requires
that the claims or defenses of the representative parties be typical of the
claims or defenses of the class. Typicality focuses on the desired
characteristics of the class representative; however, subdivision (A)(3) does
not require a showing that all plaintiffs' claims be identical. Id. This element is satisfied if “the
representative plaintiff’s claims are neither in conflict with nor antagonistic
to the class as a whole.” Edward D. Jones & Co. v. Cole,
643 N.E.2d 402, 407 (Ind. Ct. App. 1994), trans. denied. Here, the
Students seek to change policy and practices applicable to all class
members. Thus, the Students are typical
of the classes that they seek to represent.
Trial Rule
23(A)(4) requires that the representative parties fairly and adequately protect
the interests of the class.
The Trial
Rule 23(A)(4) adequacy requirement has three components: 1) the chosen class representative cannot
have antagonistic or conflicting claims with other members of the class; 2) the
named representative must have a sufficient interest in the outcome to ensure
vigorous advocacy; and 3) counsel for
the named plaintiff must be competent, experienced, qualified, and generally
able to conduct the proposed litigation vigorously.
Bolka, 693
N.E.2d at 618. The relief sought by the
Students is identical to the relief sought for the entire class and is
consequently not inconsistent with the interests of the class. Further, there has been no claim by Dr. Reed
that counsel for the Students is not skilled and experienced in this type of
litigation. Therefore, the Students
have fulfilled the requirements of Trial Rule 23(A)(4).
Accordingly, the
Students have satisfied all of the requirements of Trial Rule 23(A) as to both
proposed Class A and B, as defined by the Students.
Trial
Rule 23(B)(2)
In addition to satisfying the
requirements of Trial Rule 23(A), the Students must also satisfy at least one
prerequisite of Trial Rule 23(B). Wine, 704 N.E.2d at 1043. In this case, the Students assert that they
have fulfilled the requirements of Trial Rule 23(B)(2), which provides:
An action may be maintained as a class action if the prerequisites
of subdivision (A) are satisfied, and in addition: . . .
(2) the party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making appropriate final
injunctive relief or corresponding declaratory relief with respect to the class
as a whole.
. . .
However, the trial court concluded
that the Students did not satisfy the requirements of Trial Rule 23(B)(2),
except for that limited portion of Class B as defined and certified by the
trial court. In concluding that the
requirements of this rule were not met, the trial court found that the local
school district committed the acts of which the Students complained, and not
the State. Dr. Reed agrees and argues
that the trial court properly denied certification to Class A and limited the
definition of Class B because the requirements of Rule 23(B)(2) were not met.
Nonetheless, the
Students argue that both Classes A and B, as proposed and defined by them,
satisfy Trial Rule 23(B)(2) because it was the State Department of Education,
through its representative Dr. Reed, that required the Students to take and
pass the GQE subject to waivers, as a requirement for receiving a high school
diploma, despite the provisions of the Students’ IEPs. The Students further argue that it is the
State that has changed the rules for graduation in violation of due process,
and who admittedly refuse to honor a number of adaptations and accommodations
prescribed by the IEPs. Finally, the
Students argue that only an injunction against the State can remedy the
constitutional and legal violations of which both classes complain.
We agree that the
Students have fulfilled the requirements of Trial Rule 23(B)(2). The crux of their complaint is that in order
to receive a high school diploma, the State has required the Students to take
and pass the GQE, subject to waivers, even though the Students have been
previously placed on the “diploma track” while being excused from standardized
testing.
Dr. Reed argues
that it is not the State that is requiring the students to take the GQE, but it
is the local school districts. She
further argues that it was the Students’ case conferences and not the State,
who excused the Students from standardized testing. She also asserts that it was the local school districts and the
case conferences that decided what course work the Students would pursue; thus,
if the Students were unprepared for the GQE it was the fault of the local
school district. Dr. Reed, however,
seems to ignore the statutory requirement that makes it mandatory for all
students, including students with disabilities, to take and pass the GQE as a
prerequisite for receiving a high school diploma, subject to the two
exceptions. Ind. Code §
20-10.1-16-13. This requirement for a
diploma is what the Students take issue with and this requirement has been put
in place by the State and not the local school districts.
Therefore, the
party opposing the class, here Dr. Reed, has acted or refused to act on grounds
generally applicable to the class, because the GQE is a statewide requirement.
Exhaustion of
Administrative Remedies
The trial court
concluded that the Students failed to exhaust their administrative remedies
prior to filing suit. Additionally, Dr.
Reed argues that even if the classes proposed by the Students satisfy the four
prongs of Trial Rule 23(A), the Students nevertheless failed to exhaust the
administrative remedies available to them with regard to both Class A and Class
B. The Students assert, however, that
it was unnecessary to exhaust the administrative remedies due to the futility
of the remedies.
“Generally speaking, if an
administrative remedy is available, it must be pursued before the claimant is
allowed access to the courts.” T.W. Thom Const., Inc. v. City of
Jeffersonville, 721 N.E.2d 319, 322 (Ind. Ct. App. 1999). The administrative remedies available in a
special education case are set out in both statute and regulations. The first step is the case conference where
the student’s program is developed and their right to a free, appropriate and
individualized education is assured.
However, at any time a parent may initiate a due process hearing
concerning issues involving his or her child’s free and appropriate
education. 20 U.S.C. § 1415. In Indiana, the hearing is conducted before
an independent hearing officer appointed by the state superintendent of public
instruction. 511 IAC 7-15-5. A further appeal can follow to the state
board of special education appeals. 511
IAC 7-15-6. Federal law contemplates
that before judicial review is sought in a special education case is sought
these administrative appeals are to be completed. 20 USC § 1415.
Nevertheless,
“parents may bypass the administrative process where exhaustion would be futile
or inadequate.” Honig v. Doe, 484 U.S. 305, 327 (1988). If the administrative procedure is incapable
of offering a remedy for a party’s complaint and is incapable of addressing the
issues presented by a party's claim, exhaustion is not required. Rambo
v. Cohen, 587 N.E.2d 140, 144 (Ind. Ct. App. 1992). “When the character of the question
presented is beyond the pale of the agency's competency, expertise, and
authority, failure to exhaust will be excused.” Id. In special education cases,
exhaustion has been determined to be futile or inadequate if purely legal
questions are raised, Phil v.
Massachusetts Department of Education, 9 F.3d 184, 190 (1st Cir. 1993),
if the agency acted in violation of law, Heldman
v. Sobol, 962 F.2d 148, 159 (2nd Cir. 1992), or if the wrong
cannot be addressed in the administrative process, Bray by Bray v. Hobart City School Corporation, 818 F. Supp
1226, 1233 (N.D. Ind. 1993).
Class A
Here, the
Students argue that exhaustion would be futile in the case of proposed Class A
because the issues presented by Class A are pure questions of law. The Students in Class A claim that the
imposition of the GQE requirement violates their due process rights and that the
administrative agency does not have the authority to declare the GQE
unconstitutional as applied to them.
“Indiana law, like its federal counterpart, allows a plaintiff to
by-pass administrative procedures when the claim is that a statute is void in its
entirety.” Galbraith v. Planning Department, 627 N.E.2d 850, 853 (Ind. Ct.
App. 1994). The Students further assert
that the State has conceded that the administrative agency has no authority to
tell a student with disabilities that they can have a high school diploma
without taking and passing the GQE.
Robert Marra, Director of the Division of Special Education for the
Indiana Department of Education, testified as follows:
Q. Back
to my original question, which I think you answered and I apologize, the case
conference does not have the power to tell a student you do not have to take
the test but you get a diploma?
A. Correct.
(R. 133).
Thus, the Students argue that
because the administrative agency does not have the authority to provide them
with the relief they seek, the process is futile. We agree that with regard to Class A, the Students have presented
a pure question of law, because the administrative agency does not have the
authority to declare a state statute unconstitutional or to give a student with
disabilities permission to receive a diploma without passing the GQE. Therefore, we find that the Students with
regard to proposed Class A should have been excused from exhausting the
available administrative remedies due to futility.
Class B
The Students
further argue that exhaustion of administrative remedies would be futile with
regard to Class B, as it is proposed and defined by them. The Students assert that the claims of Class
B concern the refusal to recognize accommodations and adaptations mandated by
the Students’ IEPs. They argue that
this concerns a pure legal issue beyond the administrative agencies’ expertise
because the claim is based on a violation of the law by the State itself. Further, the Students argue that the members
of Class B had the accommodations and adaptations prescribed for them in their
IEPs at the case conferences and those accommodations and adaptations were
ignored by the State, consequently, it is unreasonable to require that they
return to the case conference to address this issue.
The State acknowledges that it has
determined not to honor certain accommodations during the GQE which were
required by the students’ with disabilities’ case conferences and provided by
their IEPs. These prohibited
accommodations include the following:
1. An IEP which requires that reading comprehension portions of
the examination to be read to the students
2. An IEP which requires that multiple choice tests not contain
more than three questions.
3. An IEP which
requires that a student be provided with color coded prompts.
4. An IEP which
provides that the language of mathematical story problems be reduced or
simplified.
5. An IEP which
provides that a diploma can be awarded without taking the GQE.
(R. 133, 138,
141-144, 153).
However, the
trial court recognized only one of the denied accommodations. The trial court concluded that the
“[State’s] policy does not permit an exam to be read aloud during the reading
comprehension part of the ISTEP+ exam, and it would be futile for this Plaintiff
to seek a different result through the administrative process.” (R. 175).
The trial court further concluded that the “definition [of Class B] must
be narrowed to address only those accommodations or modifications of the ISTEP+
exam that the Defendant’s policy does not permit.” (R. 175). Thereafter, the trial court narrowed the
definition of Class B to include only those students with disabilities to whom
the State has denied the accommodation that the reading comprehension portion
of the exam be read to them.
The Students argue that because
the trial court recognized the futility of the administrative process where the
State acknowledged that it denied the Students the accommodation of having the
reading comprehension portion of the GQE read to them, the trial court should
have also concluded that it is equally futile for the students to exhaust
administrative remedies with regard to the other above-listed accommodations
that the State has also admittedly refused to provide. We agree.
Thus, we conclude
that the trial court improperly narrowed and limited the definition of Class B
to just those students with disabilities who were denied the accommodation of
having the reading comprehension portion of the GQE read to them because the
State further acknowledged that the other above-listed accommodations were also
denied.
However, Dr. Reed argues that
the Students are not properly representative of other students with
disabilities who may have been denied the accommodations numbered two through
five, as listed above, because neither Meghan, Carl, Justin or Jonathan were
denied these accommodations. This
challenges the “typicality” of the representative plaintiffs’ claims. As previously addressed, Trial Rule 23(A)(3)
does not require a showing that all of the plaintiffs' claims be identical. Connerwood
Healthcare, Inc, 683 N.E.2d at 1327.
Again, this requirement is fulfilled if the representative plaintiff’s
claims “are neither in conflict with nor antagonistic to the class as a
whole.” Cole, 643 N.E.2d at 407.
Here, the Students’ claims are not in conflict nor antagonistic to the
class as a whole, and thus, the disabled students properly represent Class B,
as defined by the disabled students.
Standing and Ripeness
The trial court
further concluded that the Students claims were not ripe. Specifically, the trial court found that the
Students had not yet, at the time of filing the complaint, fulfilled all of the
other requirements of graduation other than passing the GQE. Because the Students had not completed the
other diploma requirements, the trial court concluded that the matter was not
ripe for adjudication.
In support of this conclusion
the trial court cited Brookhart v.
Illinois State Board of Education, 697 F.2d 179, 182 (7th
Cir. 1983), n.4. (R. 167). In Brookhart,
the court found that three of the fourteen plaintiffs lacked standing because
they had not taken the graduation test at issue. Id. However, here the representative plaintiffs
herein have all taken and failed the GQE.
“Ripeness relates to the degree
to which the defined issues in a case are based on actual facts rather than on
abstract possibilities . . .” Indiana
Dept. of Environmental Management v. Chemical Waste Management, Inc.,
643 N.E.2d 331, 336 (Ind. 1994). A
court ruling on a ripeness challenge must consider “‘the fitness of the issues
for judicial decision’ and ‘the hardship to the parties of withholding court
consideration.’” Pacific Gas & Elec. Corp. v. State
Energy Resources Conserv. & Dev. Comm’n., 461 U.S. 190, 201 (1983)
(citation omitted). The Students argue
that the denial of due process is in and of itself an actionable claim. Thus, the Students argue that their claim is
not just based on the denial of a high school diploma, but rather on the
requirement that they submit to the GQE when they have previously been excused
from standardized testing and when they have not been properly prepared for the
subjects covered by the examination.
The Students assert that the claim was ripe at the time they were
required to submit to the GQE without the accommodations provide for in their
IEPs. We agree.
The Students’
claims, as set forth in their Complaint, are for violations of due process
under the United States and Indiana Constitutions and for violations of the
IDEA. If these alleged violations
occurred, they occurred at the time the Students were required to take the
GQE. Thus, the Students should not have
to wait until they are actually denied a high school diploma to pursue these
claims as their claims are based on actions by the State that have already transpired. Accordingly, the Students’ claims are ripe
for adjudication.
To have standing to challenge
the constitutionality of a statute, a party must establish that his or her
rights were adversely affected by operation of both the statute and the particular
section he is attacking. Gross v. State, 506 N.E.2d 17, 21
(Ind. 1987). Again, the Students submit
that they have standing to bring this action because the claims they allege,
the denial of due process and violation of IDEA, have already occurred. The Students argue that the requirement that
they pass the GQE without sufficient notice or preparation is violative of
their constitutional rights. Thus, the
Students have presented a claim that their rights were adversely affected by
operation of the graduation examination statute, and therefore, they have
standing to bring this claim.
Breadth of Class
Definitions
Without additional comment, the
trial court further concluded that the definition of Class A is too broad. “A class definition must be specific enough
for the court to determine whether or not an individual is a class
member.” Independence Hill Conservancy Dist. v. Sterley, 666 N.E.2d 978,
981 (Ind. Ct. App. 1996). “Without a
properly defined class, a class action cannot be maintained. However, a court can redefine a class in
order to sustain the lawsuit.” Id. at 982. Thus, overbreadth in a class definition is not fatal since the
trial court can redefine the class to eliminate the overbreadth problem, sua sponte if necessary. Id.
Here, the definition of Class A, as
proposed and defined by the Students, is specific enough for the court to
determine whether or not an individual is a class member. Class A includes all students with
disabilities who are required to take and pass the GQE as a condition of
receiving a High School diploma and who were designated as being in the diploma
track, but who had previously been excused from standardized testings, and/or
whose IEPs did not provide that they were to be taught the subjects tested on
the GQE. The definitive terms of Class
A are precise and definite. Thus, the
definition of Class A was not overly broad.
CONCLUSION
Based on the foregoing, we conclude
that the trial court erred in denying class certification to Class A, as
proposed and defined by the Students, and by redefining and narrowing the
definition of Class B.
Reversed and remanded.
KIRSCH, J., and SHARPNACK, C.J., concur.
