
    Board of Education of Cleveland Heights et al. v. The State, ex rel. Goldman.
    
      (Decided April 2, 1934.)
    
      Mr. G. E. Hartshorn, for plaintiffs in error.
    
      Mr. Ben B. Goldman, for defendant in error.
   McGill, J.

Beldene Goldman, a child eight years of age, was excluded from or refused admission to the public schools of Cleveland Heights City School District for the term beginning in September, 1933. This action was taken because of the alleged low mentality of the child. The child had suffered a brain injury at or about the time of birth, and there is no dispute that the child was and is subnormal. The father brought a mandamus action against the Board of Education of Cleveland Heights and Frank L. Wiley, superintendent of the schools, and after hearing in the Common Pleas Court a peremptory writ of mandamus was issued commanding the board of education and the superintendent to admit the child to the schools of Cleveland Heights. Error has been prosecuted to this court.

The record discloses that in September, 1931, the board of education opened what was known as the Superior Opportunity School, which was for the accommodation of retarded children having a low intelligence quotient. This class for children of low mentality was in full operation during the school years of 1931-1932 and 1932-1933. The Goldman child was in this school.

On November 14, 1932, the board of education adopted a resolution relating to retarded children and among other things provided as follows:

“4. That pupils now enrolled in the school having intelligence quotients below 50 be retained in the organization until the end of the current school year, but that beginning with September, 1933, all pnpils below 50 I. Q., and special or custodial types, be excluded; and further that the present group of pupils of this type be excluded, and further that the present group of pupils of this type be segregated from all other school pupils at an early date, if arrangements can be made without incurring any relatively large expense.
“5. That the Superintendent be authorized to set up definite regulations governing the admission and discharge of pupils from this school.”

Pursuant to this resolution which was adopted by the board of education, the parents of Beldene Goldman were notified in August, 1933, that the child would not be admitted to the schools for the term beginning in September, 1933.

It is claimed, in substance, by the father- of the child, that the public schools are open to all children between certain ages; that the compulsory school law requires the attendance of children in school; that this child being between six and eighteen years of age is of compulsory school age; that the expulsion of this child from the public schools is without authority in law and contrary to the provisions of Section 7762-7, General Code of Ohio.

The board of education and superintendent of the schools, on the other hand, claim that under Section 7762-7, General Code, the Department of Education of the state can prescribe standards, examinations, or tests by which it may be determined whether or not certain children of school age are incapable of profiting substantially by further instruction in the schools; that these examinations and tests were given to this child and that this child was determined to be of such low mentality as to be incapable of profiting substantially by further instructions in the schools.

It was further urged by the board that in the exercise of its sound discretion it has the right to determine that any child of school age, who is so deficient mentally as to have an intelligence quotient of not more than fifty, as determined by the Benet test, is incapable of profiting substantially by further instruction, and it is claimed that inasmuch as this child had an I. Q. of 47, the board was justified in excluding the child from the schools. It was also urged on behalf of the board and superintendent that they did not rely on the tests alone, but that they also took into consideration the lack of progress by the child over a period of two or three years.

Apparently this is a case of first impression in Ohio, and counsel have been unable to find a case anywhere in the United States which gives the right to exclude from all educational facilities any child within the prescribed ages upon the basis of an intelligence test. It is, therefore, necessary to look to the provisions of the statutes of Ohio with reference to the right to refuse this child admission to the schools, and to seek to determine the intent of the Legislature.

It is to be noted that there is a sharp conflict in the evidence concerning the results of I. Q. tests given to this particular child.

The record discloses that in September, 1932, a Miss Wager gave a test showing an I. Q. of 44. Again, in November, 1932, a Dr. Markey gave the child a test with a result of 61. The next test was made by the Brush Foundation of. Cleveland, on May 8, 1933, and according to information given by the superintendent, although no representative of the Brush Foundation testified, the result was 47. On October 23, 1933, a Dr. Newcomb examined the child and found her to have an I. Q. of 55.

The authorities seem to be in agreement that a slight variation is not a determinative factor. For example, counsel fop the board of education in his brief calls attention to the testimony of Dr. Henry H. Goddard, as perhaps the most learned and experienced export who was on the stand in the court below. Among other things, Dr. Goddard testified:

“Q. Doctor, would you say that if children having an I. Q. of 50 are considered eduoable, that a child having an I. Q. of 47 should also Tbe so considered? A. Of course, there is a limit to that sort of thing. I might answer yes to that question, and then you would run down three points more and I would get into trouble. The fact is, that 50, or 47, or 53 or anything in that line, in itself, is not enough. The moment you fix a point of that sort you get into difficulty. One child with an I. Q. of 40 is more educable, perhaps, than another child with an I. Q. of 50.”

Turning now to the statutes of Ohio we find that General Code, Section 7681, provides that the schools shall be free to all youth between six and twenty-one years of age.

Section 7690, General Code, provides that the board of education has the management and control of all schools of whatever name and character in the district.

Section 7644, General Code, provides that each board of education shall establish a sufficient number of elementary schools to provide for the free education of the youth of school age within the district under its control.

Section 7762, General Code, provides that a child between six and eighteen years of age is of compulsory school age.

The matter of the exclusion of children who may be incapable of profiting substantially by further instruction is treated in Section 7762-7 of the General Code,- and, although lengthy, it is quoted here in full as follows:

“A child of compulsory school age may be determined to be incapable of profiting substantially by further instruction as follows, to-wit:
‘ ‘ The department of education may prescribe standards and examinations or tests by which such capacity may be determined and prescribe and approve the agencies or individuals by which they shall be applied and conducted; but the capacity of a child to benefit substantially by further instruction shall be determined with reference to that available to the particular child in the public schools of the district in which he resides, and no child shall be determilied to be incapable of profiting substantially by further instruction if the department of education shall find that it is feasible to provide for him in such district, or elsewhere in the public school system, special classes or schools, departments of special instruction or individual instruction through or by which he might profit substantially, according to his mental capacity as so determined. In prescribing, formulating, applying and giving such standards, examinations or tests, the department of education may call for assistance and advice upon any other department or bureau of the state government, or upon any appropriate department of any university supported wholly or partly from state appropriations.
‘‘ The result of each examination or test made hereunder, with the recommendation of the agency or individual conducting the same, shall be reported to the department of education, which shall have power to make the determination herein authorized. If a child be determined hereunder to be incapable of profiting substantially by further instructions, such determina.tion shall be certified by the department of education to the superintendent of schools of the district in which he resides, who shall place such child under1 the supervision of a visiting teacher or of an attendance officer, to be exercised as long as he is of compulsory school age. The department of education shall keep a record of the names of all children so determined to be incapable of profiting substantially by further instruction and a like record of all such children residing in any school district shall be kept by the superintendent of schools of such district. Upon request of the parents, guardians, or persons having the care of such child whose residence has been changed to another school district the superintendent of schools shall forward a card showing the status' of such child as so determined to the superintendent of schools of the district to which the child has been moved.
“Any determination made under this section may be revoked by the department of education for good cause shown.
“A child determined to be incapable of profiting substantially by further instruction, as herein provided, shall not thereafter be admitted to the public schools of the state while such determination remains in force, anything in chapter four of this title to the contrary notwithstanding. ’ ’

The record in this case discloses that after the Board of Education of Cleveland Heights determined that this child was unable to profit substantially by further instruction, the matter was submitted to the Department of Education at Columbus, which department at first approved the .exclusion of the child. Later, the department revoked the approval or determination and finally passed the entire matter back to the local board.

As a matter of common sense it is apparent that a moron of v,ery low type, or an idiot or imbecile who is incapable of absorbing knowledge or making progress in the schools, ought to be excluded. On the other hand, every child between the ages of six and eighteen years of age in the state of Ohio is not only entitled to be admitted to the public schools, but is compelled to attend.

There is no doubt but that school authorities possess the power to conduct the schools, and to make rules and regulations for their proper government and management. There is no doubt but that school boards in the exercise of their powers in these matters have a wide discretion, and that the courts will not interfere with that exercise of sound discretion in the absence of an abuse thereof.

It is to be borne in mind, however, that not only compulsory attendance is required by our laws, but also that the right to attend our public schools belongs to the people. Education for all youth is deemed of paramount importance. It is the foundation of popular government and is considered so essential that between certain ages children must attend our schools.

The question arises as to where the authority to exclude a child of low mentality isi vested. The question in this case is whether or not this child was legally refused admission to the schools. A careful study of Section 7762-7, General Code, leads us to the conclusion that the Department of Education, may prescribe the standards, and examinations or tests, and approve the agencies or individuals by which they shall be applied and conducted, but that under that section a determination of the question must be finally made by the Department of Education, which counsel for the Board of Education concedes means the State Department of Education. In this case the Department of Education made no final determination. Without such final approval or determination by the Department of Education, we think that this child was not excluded in accordance with the provisions of the statute, and that the court below was right in granting a peremptory writ of mandamus.

Accordingly the judgment of the Common Pleas Court is affirmed. T 7 , ~ 7

, 7 Judgment affirmed.

Lieghley, P. J., and Levine, J., concur.  