December 11, 2009
Dad loses lawsuit over his grade-skipping kid
By ANDREW BERGH
Special to the Journal

“Please don't promote my son to the ninth grade.”

This request would be understandable if your son had struggled in the eighth grade. Ted McColl, on the other hand, had passed with flying colors. So what was the upshot when the local school district denied his father's request? A full-blown lawsuit called McColl v. Sequim School District.

Ted had shown scholarly promise at a young age, participating in the district's program for “highly capable” students during the 2004-05 academic year. At his parents' request, the district even let Ted skip the fifth grade, which meant he completed the sixth grade in the 2005-06 school year, the seventh grade in the 2006-07 school year, and the eighth grade in the 2007-08 school year.

But the next school year, things went sideways.

Objecting to his son's promotion, Stuart McColl asked the district to enroll Ted in the ninth grade for academic purposes, but to designate him an eighth grader for purposes of his estimated graduation date. (Initially, Stuart also wanted the eighth grade designation for purposes of Ted's athletic eligibility, but that issue later got resolved.) The father even went so far as to suggest that Ted enroll in an eighth grade class to maintain his status as an eighth grader.

So why was Stuart so determined that his son graduate in 2013 (when Ted would be 18 years old)?

Supposedly because this reflected Ted's wishes. But whatever the reason, the school district didn't buy it and instead overruled dad's objection to his son's promotion. In connection with that decision, the district preliminarily assigned 2012 as Ted's estimated graduation date.

Under Washington law, anyone “aggrieved” by a school district's decision can file an appeal in the same county. Taking advantage of this statute, Stuart sought review in Clallam County Superior Court, arguing that his son's constitutional rights had been violated. This got nipped in the bud, however, when the district successfully moved for summary judgment. (The exact basis for the trial court's dismissal ruling is unclear.)

In the next appeal, the so-called “ripeness” doctrine came into play.

Under this principle, courts won't exercise jurisdiction over a case unless an actual controversy exists. In other words, a claim isn't ripe for adjudication if it rests on contingent future events that may not even occur.

Invoking this doctrine, a Washington appeals court recently sided with the school district. Although the district had tentatively picked 2012 for Ted's graduation, the court said there were “too many events” — e.g., failure to complete required courses, illness, accident or relocation — that could affect its final decision. The case therefore wasn't ripe, said the court, since Ted's graduation still could be postponed to 2013 as he apparently wanted.

Although it could have ended its analysis right there, the appeals court decided to address the merits of the constitutional claims raised by the father. The gist of Stuart's claims? That by promoting Ted to the ninth grade and assigning him an estimated graduation date of 2012, the district was forcing him to graduate before he turned 18.

As the appeals court noted, all children in Washington, which includes individuals up to age 18, do have the right under our state constitution to be “amply provided” with an education. On top of that, our legislature has mandated that public schools in Washington be open to “qualified individuals” between the ages of five and 21. To accomplish these goals, “final policymaking authority” has been conferred by statute to school districts and their board of directors.

Consistent with this authority, the Sequim School District has adopted a “promotion and retention policy” — used in Ted's case — that says students who successfully complete a year of study at a specific grade level should be promoted to the next grade. While recognizing that “retention at the same grade” may help students who are struggling academically, the policy nonetheless says it shouldn't be considered unless a “strong likelihood” exists that the student will benefit from being held back “with minimum social and emotional disruption.”

In his son's case, Stuart agreed there was no reason to retain Ted in the eighth grade based on his coursework. Even more importantly, said the appeals court, Stuart hadn't shown — assuming the graduation requirements at some point became “too onerous” for his son — that Ted had lost the opportunity to attend public school until the age of 21 (let alone 18).

In sum, the appeals court essentially said that students in Washington, as a matter of personal preference, have no constitutional right to stay in school until they turn 18.

In Ted McColl's case, of course, the brouhaha could've been avoided altogether if his parents had never asked the school district to let him skip the fifth grade.

But lest I be accused of second-guessing, I'll let it go at just that.