FOR PUBLICATION

ATTORNEYS FOR APPELLANTS:    ATTORNEYS FOR APPELLEE:

KENNETH J. FALK    KAREN FREEMAN-WILSON
JACQUELYN E. BOWIE    Attorney General of Indiana
E. PAIGE FREITAG    
Indiana Civil Liberties Union     BETH H. HENKEL
Indianapolis, Indiana     FRANCES H. BARROW
             LINDA S. LEONARD
            Deputy Attorneys General
            Indianapolis, Indiana

MEGHAN RENE, by her parents and next      )

Friends, MICHAEL and ROBIN RENE, et al.,       )    
                                               )
Appellants-Plaintiffs,                         )
                                               )
vs.                                            )    No. 49A02-0007-CV-433
                                               )
DR. SUELLEN REED, in her official capacity     )
As Indiana State Superintendent of Public      )
Instruction, et. al.,                          )
                                               )
Appellees-Defendants.                          )

(footnote two supplied; record citations omitted).

644 F.2d at 404.
Although the trial court acknowledged that due process was implicated by the GQE requirement, it found the imposition of the GQE as a condition to the grant of a diploma did not violate the Students’ due process rights because the three years’ notice the Students were given of the GQE requirement was adequate and because the Students’ remedy for the schools’ alleged failure to teach the subjects required by the GQE was “continued education and remediation and not the award of a high school diploma.” (R. at 1382.)
    1.    The Nature of the Due Process Implications of the GQE Requirement

    We recognized in Reed I that due process is violated when a “graduation exam is ‘fundamentally unfair in that it may have covered matters not taught in the schools of the state,’” 726 N.E.2d at 822 n.8, quoting Debra P., 644 F.2d at 404. We further noted “due process protections require that handicapped students be given sufficient notice of a minimal competency exam in order for them to prepare adequately to satisfy the new requirement.” Id., citing Brookhart v. Illinois State Bd. of Educ., 697 F.2d 179, 186-87 (7th Cir. 1983).
2.    The Asserted Due Process Violations
The Students allege the implementation of the GQE denied them due process because 1) the Students were not exposed during their schooling to some of the material tested on the GQE, and 2) they had inadequate notice of the requirement and inadequate time to prepare for the GQE. See footnote They further assert that additional remediation is not an adequate remedy for the due process violation. Rather, they contend that the State should be enjoined from enforcing the GQE requirement until the GQE represents a fair test of what disabled students have been taught.
A.     Notice of the GQE Requirement
In Brookhart, handicapped students challenged a school district decision in the spring of 1978 to require that all students eligible to graduate in the spring of 1980 pass a “minimal competency test” (“M.C.T”) as a condition of the receipt of a diploma. The district publicized the new requirement with announcements in the mass media, distribution of circulars in schools, and individual mailings to some parents. In Brookhart, as here, the students did not “contest the factual basis underlying the loss of a liberty interest; in fact, they admit that they did not pass the M.C.T. Rather, they demanded procedures that would provide sufficient notice of the M.C.T. to enable them to prepare adequately to satisfy the new requirement.” 697 F.2d at 185.
The Brookhart court determined the notice was inadequate despite the absence of evidence any student was unaware of the requirement. Id. at 182. There was evidence before the district court that the disabled students’ IEPs did not expose them to up to 90 per cent of the material tested on the M.C.T., and the students had only one to one-and-one-half years to prepare for the test:
[t]he plaintiffs’ programs of instruction were not developed to meet the goal of passing the M.C.T., but were instead geared to address individual educational needs. Since plaintiffs and their parents knew of the M.C.T. requirements only one to one and a half years prior to the students’ anticipated graduation, the M.C.T. objectives could not have been specifically incorporated into the IEPs over a period of years. If they were incorporated at all, it could only have been during the most recent year and a half. As the Superintendent found, “in an educational system that assumes special education students learn at a slower pace than regular division students,” a year and a half to prepare for the M.C.T is insufficient. Thus the length of notice, rather than a deliberate decision not to instruct plaintiffs because of their incapacity to master the material, explains the overwhelming lack of exposure to M.C.T. goals and objectives.

Id. at 187.

The Brookhart court declined to define “adequate notice” in terms of a specific number of years, but it noted the requirement would be satisfied if the school district 1) ensured that the students were sufficiently exposed to most of the material that appears on the test, or 2) produced evidence of “a reasonable and well-informed decision by the parents and teachers involved that a particular high school student will be better off concentrating on educational objectives other than preparation for the M.C.T.” Id. at 187-88.
There was evidence in the case before us to support the trial court’s determination that the students had adequate notice of the GQE requirement. The State notes the school districts had at least five years’ notice of the GQE requirement, and the Students and their parents had at least three. The State cites Board of Educ. of Northport-East Northport Union Free Sch. Dist. v. Ambach, 458 N.Y.S.2d 680, 688 (N.Y. App. Div. 1982), aff’d 457 N.E.2d 775 (N.Y. 1983) as authority for its premise that three years’ notice is sufficient. In a portion of its decision the Ambach court addressed “remedially,” rather than “functionally” handicapped children. It held “the three-school-year notice . . . was not of such a brief duration as to prevent school districts from programming the IEPs of [remedially handicapped children] to enable them to pass the basic competency tests required for diploma graduation.”
Debra P. and Anderson v. Banks, 520 F. Supp. 472 (S.D. Ga. 1981) also support the proposition that three years is sufficient notice. See footnote In Anderson, two years’ notice of a requirement that graduating students would need to demonstrate performance at a ninth-grade level was adequate where, as here, the test could be retaken and remediation was provided. In Debra P., one year of notice was found insufficient where the state had not submitted evidence that the test covered material required to be taught in the classroom. On remand, the injunction was lifted after the state provided such evidence. 564 F. Supp. 177 (M.D. Fla. 1983), aff’d 730 F.2d 1405 (11th Cir. 1984). We cannot say the trial court erred to the extent it determined the State provided adequate notice that the Students would be subject to the GQE requirement.

B.    Exposure to the Curriculum
The Students assert non-disabled students had ten years to prepare for the GQE requirement while the disabled students, who do not learn at a normal rate, had only three. They note that the ISTEP program, without the GQE requirement, was added in 1987, and the State Board of Education was at that time directed to begin adopting educational proficiencies and achievement standards for grades one through eight. However, disabled students whose IEPs did not include regular instruction in mathematics and language arts were exempted from the proficiency standards in that such decisions regarding disabled students were to be made not pursuant to ISTEP but rather pursuant to the disabled students’ case conferences and IEPs.
In 1990, the ISTEP statute was amended to apply to high school students, and the disabled students were again exempted. As a result, they assert, the curriculum for non-disabled students has been adjusted and aligned to the material tested on the ISTEP since 1987. The GQE requirement was added by legislation in 1995, with the testing requirement imposed for the first time on the class of 2000. Disabled students are not exempted from the GQE, regardless of any contrary indications in the case conferences or IEPs. See footnote The Students point to record evidence that it was not until 1997 that the State’s Special Education Director notified school administrators the GQE requirement would apply to disabled students, and that parents of the disabled students did not find out about the requirement until just before the first test was given in 1997.
The trial court found the Students had been exposed to the curriculum tested on the GQE, and we cannot characterize that finding as clearly erroneous. In its findings of fact, the court noted that state law requires remedial assistance be provided to all students who do not meet the academic standards required to pass the GQE, and stated “Given the multiple remediation opportunities mandated by state law for students who take but do not pass the GQE, the Court finds it implausible that the Plaintiff class was not exposed throughout their high school career to the subjects tested on the GQE.” (R. at 1375.)
The Students correctly note there was evidence presented that in order to learn the material tested on the GQE, students must have the appropriate base knowledge from earlier courses and from building blocks that were in place in elementary school. They note that disabled students, by definition, learn at a slower pace than other students. But, they assert, there was evidence that even after the imposition of the GQE requirement, the curriculum for a significant number of disabled students had not been “realigned to the proficiencies tested on the examination.” (Br. of Appellants at 32) (hereinafter “Students’ Br.”).
While the State notes the school systems were required by statute and regulation to align their curriculum with the state standards, at least as of 1996, it does not directly argue the disabled students’ curriculum addressed the GQE requirements in advance of the imposition of the GQE requirement on the Students. Rather, it asserts, the Students did not submit any evidence the GQE is not aligned with “the curriculum required by state law to be offered at their schools and made available to them through state mandate, given the multiple opportunities provided them to take the exam and the targeted remediation the State has made available at no cost to them.” (State’s Br. at 23) (emphasis supplied). Though the record suggests the Students would have benefited from earlier adjustment of their curriculum in order to prepare them for the GQE requirement, we cannot characterize as clearly erroneous the trial court’s determination that the Students were exposed during their high school careers to the subjects tested on the GQE.
C.     Adequacy of Remediation Remedy
The trial court found that if the school systems had failed to teach the Students the subjects tested on the GQE despite the Students’ ability to meet the GQE standards, “the remedy is not that the State be required to hand these Plaintiffs a diploma.” (R. at 1381.) Rather, it concluded, citing Brookhart, that the remedy is to offer the students additional remediation and opportunities to acquire the necessary skills.
The Brookhart court did state that “in theory, the proper remedy for a violation of this kind is to require [the school district] to provide free, remedial special education classes to ensure exposure to the material tested . . . .” 697 F.2d at 188. See footnote
The Students note that the Brookhart case involved only 14 plaintiffs, and they point to Anderson, 520 F. Supp. at 512 as authority for their argument that where there is a “systematic failure of due process” (Students’ Br. at 35) involving a large number of students, the proper remedy is to enjoin the State from requiring the GQE until such time as it “is no longer irrational to impose the requirement on the class.” (Students’ Br. at 35.) They argue that until the GQE requirement has been in effect for the entire educational career of a student, the case conferences should be responsible for making the determination whether it is appropriate for a disabled student to take the GQE in order to graduate.
In Anderson, the court ordered the schools to award diplomas to all students who would have received them but for the graduation test policy. It went on to hold that “[n]o exit exam policy may be utilized until it is demonstrated that the test used is a fair test of what is taught.” 520 F. Supp. at 512. Similarly, in Debra P., the court held the state could not deprive its high school seniors of the benefits of a high school diploma until it demonstrated its version of the GQE was a fair test of what was taught in its classrooms. 644 F.2d at 408. There, the exam had had a disproportionate impact on black students due to unequal educational opportunities several years before the test was administered.
In light of the evidence before the trial court that the Students had between three and five years’ notice they would be subject to the GQE requirement, we cannot say the trial court erred to the extent it determined the remediation offered by the State was an adequate remedy for any due process violation arising from the test requirement.