No child left ahead?
Zirkel, P.
Phi Delta Kappan
Vol. 85, No. 3
November, 2003

This article by Perry Zirkel discusses one high schooler's valedictorian status and why it was challenged. The girl had disabiltiy status but had the highest overall GPA. Other parents challenged her status and schooling arrangement and the girl's parents ended up filing a lawsuit against the school district.

Blair Hornstine, a graduate of Moorestown High School, which is located in a New Jersey suburb of Philadelphia, was an exceptional student in at least two ways. First, as of spring 2003, her overall grade-point average for the seven previous semesters was 4.6894, which was the highest in her graduating class. The GPA at Moorestown High includes A+'s, of which Blair had 23. She had also taken numerous Advanced Placement and honors classes, both of which were given weighted grades in the calculation of GPA.

Second, the school district had classified Blair as a child with a disability under the Individuals with Disabilities Education Act (IDEA), based on a diagnosis of an illness similar to chronic fatigue syndrome. As stipulated in her individualized education program (IEP), she attended morning classes and received the remainder of her instruction at home from school staff members.

The Moorestown High student/parent handbook includes the school board's policy that the graduating senior with the highest seven-semester weighted GPA will be named the valedictorian and the student with the second-highest seven-semester GPA will be the salutatorian.

In fall 2002 a group of students, parents, and other community members approached the district's new superintendent with allegations that Blair's father, a state court judge, was manipulating the special education laws to secure unfair advantages that would allow his daughter to be the valedictorian. The superintendent decided to investigate Blair's disability status and course load.

At an IEP meeting on November 20, the team, including Blair's father, considered reducing the number of Blair's courses because of her medical condition at the time. Although the team supported a reduction, the superintendent ordered that the assessment from Blair's doctor be supplemented with a second opinion from the school's physician. When the school's physician agreed that a "reduction in course load is medically appropriate due to her exhaustion and overextending herself this year," the superintendent refused to allow Blair to drop a class. Instead, she withdrew from European history and enrolled in honors contemporary U.S. history. The principal contacted the staff members who provided Blair's instruction at home to "validate and verify" her curriculum.

In January 2003, at a dinner meeting with the school's senior class officers, the superintendent raised the possibility of declaring multiple valedictorians. In late February he addressed the same issue at an assembly of the entire senior class, which Blair attended.

In April 2003 the superintendent placed a proposal before the school board to amend its policy to allow for multiple valedictorians and salutatorians, "to ensure that all students have an equal opportunity to compete for these awards."

On May 1, upon the public reading of the proposed amendment, Blair's parents filed suit in federal court, alleging myriad claims, including violations of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. Newspaper accounts of the suit reported that Blair aspired to be a lawyer; that she suffered from an immune deficiency; that she was the captain for the varsity moot court competition team; that her other extracurricular accomplishments included collecting more than 400 prom dresses for low-income girls and raising money for 10 Chinese orphans to have oral surgery; that her SAT score was 1570; that she had been accepted by Harvard, Princeton, Stanford, Cornell, and Duke; and that her father sought $200,000 in compensatory damages and an additional $2.5 million in punitive damages.1 They also reported that eggs had been thrown at the Hornstines' home and that some of her classmates had appeared on national television to denounce her overcompetiveness.2

On May 6, one week before the board's scheduled vote on the proposed amendment, the superintendent sent a letter to the senior with the second-highest weighted GPA informing him that he would considered for the valedictorian award." This senior did not have disability status.

On 30 May 2003, the federal court issued a temporary restraining order directing the school board to follow its original policy, which unequivocally entitled Blair to be the sole valedictorian at the June graduation of her class.3 First the judge carefully clarified that the issue in the case was not whether Blair was covered by the IDEA or whether her IEP accommodations were appropriate. Next, the judge gave an indication of her view of the facts (which had been presented in a brief hearing, as is typical for temporary restraining orders). She characterized the superintendent as seeking to appease the "uninformed interests" of parental and community pressure by "embark[ing] on a course to denigrate plaintiff's remarkable achievements as a special needs student."

The judge reported the superintendent's allegations, contained in an affidavit, that many of the AP courses Blair had taken had been delivered as past of her home instruction program; that the home instructors for these courses did not use the same grading standards as did the teachers of the school's regular AP classes; that when faced with the prospect of a grade lower than an A in a morning (school-based) class, Blair would drop the course or replace it with a home-based version; and that her IEP excused her from physical education, which was not available on a weighted basis. The judge also reported the counter-assertions made by her parents that Blair's special education schedule prevented her from taking two AP classes; that her IEP provided for grading by the home instructor in conjunction with the regular class teachers; that she had been required to take the regular midterm exam for AP calculus and had earned a higher grade on it than on her home instructor's tests; that she had withdrawn from only two classes, both with the school's permission and both lowering her GPA; and that her treating physician had determined that the waiver of PE was medically necessary.

Finally, the court found that Blair had met the requirements for preliminary injunctive relief, including establishing a reasonable probability of success on the merits of her Section 504 and ADA claims. More specifically, the court found ample evidence that the proposed amendment to the board's policy was intended to have a retroactive effect and thus was "designed to have a particular exclusionary effect on plaintiff because of her disabled status." In reaching this conclusion, the court clarified that "the Board may change its policy so long as it is prospectively applied."

This story did not end with the judge's decision. First, a local newspaper accused Blair of providing insufficient attribution for articles she had written for its weekly teen-oriented section. Apparently in response to this incident, Harvard revoked her acceptance. To make matters worse, representatives of the other schools that had offered her admissions reportedly said it was too late for her to reverse her rejection of their offers.4 Second, because of the backlash over her successful suit, which included the circulation of an online petition signed by more that 2,000 Harvard students and rumors that her high school classmates planned to boo her or turn their backs on her at the graduation ceremony, Hornstine did not attend her graduation, which proceeded without a valedictorian.5 Finally, Blair's parents agreed to settle with the district for $60,000 of their $2.7-million claim, with their attorneys' fees accounting for the lion's share of the settlement amount.6

The lessons of this case are too numerous to detail, and they depend to a great extent on one's perspective. For example, I can only wonder how the district's multidisciplinary evaluation process determined that this gifted student needed special education, which is a requirement for eligibility under the IDEA. Her accommodations, such as the PE waiver and the hybrid school/home schedule, do not seem to constitute specially designed instruction. Overidentification under the IDEA, particularly for certain classifications, such as Other Health Impairment, is a recognized problem in various parts of the country, depending in part on local wealth and state funding forumulas.7 As for the possible alternative of Section 504, in certain locales, including Blair's,8 districts are similarly less than rigorous in applying the required elements for eligibility under this statute.9

It also strikes me that Blair's 4.6894 grade-point average reflects the Lake Wobegon effect of grade inflation.10 Such undue competition for the extra thousandth or 10-thousands of a point combined with the American penchant for litigation has resulted in various other cases, but non have resulted in a successful published court opinion.11

The key to Blair's success in court was the federal statutory disability status. Having determined that Blair was eligible under the IDEA and that she was entitled to her hybrid program, the district was hoist on its own petard. Conversely, this story illustrates the limits of law. Even though they were "successful" in court, Judge Hornstine and his daughter might be characterized as being in the same metaphorical predicament as the district.


  1. Hans Allhoff, "She's Almost Too Good to Be True," Los Angeles Times, 7 May 2003, p. B-13; John Goldman, "Student Sues to Be a Sole Valedictorian," Los Angeles Times, 8 May 2003, p. A-27; and John Shiffman, "Student Sues Over Top Title" Philadelphia Inquirer, 2 May 2003, p. B-9.
  2. See, for example, Julian Coman, U.S. Pupil Sues for Being Made to Share Top Prize," London Sunday Telegraph, 11 May 2003, p. 29.
  3. Hornstein v. Township of Moorestown, 263 F. Supp. 2d 887 (D.N.J. 2003).
  4. Toni Callas and Jennifer Moroz, "Hornstine Admission Reportedly Revoked," Philadelphia Inquirer, 13 July 2003, p. B-7.
  5. "Moorestown Class Celebrates--Minus Valedictorian," Philadelphia Inquirer, 20 June 2003, P. B-8; and Jennifer Moroz, "Valedictorian to Skip Graduation, Fearing Classmates' Reaction," Philadelphia Inquirer, 12 June 2003, p. B-2.
  6. Toni Callas and Joseph Gambardello, "Valedictorian Settles Suit Against District," Philadelphia Inquirer, 20 August 2003, p. A-1.
  7. See, for example, the section on "explosive growth" in the Other Health Impairment and Learning Disability categories in the President's Commission on Excellence in Special Education Report, July 2002; Legislative Office of Education Oversight, "Ohio Students Identified as 'Other Health Handicapped,'" January 2002; and Jay Geene, "Effects of Funding Incentives on Special Education Enrollment," December 2002, available at
  8. See, for example, Perry A. Zirkel, "A Two-Headed Monster," Phi Delta Kappan, January 2000, pp. 410-11.
  9. For the proper procedure, see, for example, Perry A. Zirkel, "Conducting Legally Defensible S504/ADA Eligibility Determinations," West's Education Law Reporter, vol. 176, 2003, pp. 1-11.
  10. See, for example, Perry A. Zirkel, "Grade Inflation: A Leadership Opportunity for Schools of Education?," Teacher's College Record, vol. 101, 1999, pp. 247-60.
  11. See, for example, Marjorie Coeyman, "Bragging Rights," Christian Science Monitor, 6 May 2003, p. B-13; and Sara Rimer, Schools Moving to Curb Wrangling Over Rankings," New York Times, 9 March 2003, p. 20. As the latest example of this line of litigation, a student filed an unsuccessful civil rights lawsuit when her high school refused to move the hour of her advanced Spanish course, allegedly hurting her chances to become valedictorian. Jeffrey v. Bd. of Trustees, 261 F. Supp. 2d 719 (E.D. Tex. 2003).

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