This case involves the education
of Shannon Carter, who is now twenty-two years old. Shannon attended
the first grade at Timmonsville Elementary School of Florence County
School District Four, in which she resided with her parents. Shannon
attended a nearby private school, the Roy Hudgens Academy, through
grade six. She reentered the public school system for the seventh
grade during the 1982-83 school year.
Shannon performed poorly
in school during the seventh grade. As a result, the school system
tested her twice in early 1983 for potential learning disabilities.
It concluded that, although Shannon scored slightly below average
in achievement, she was not learning disabled. After Shannon performed
badly during the first semester of the ninth grade, her parents prompted
the school district to conduct additional testing in April 1985. Based
on this testing, the school psychologist concluded that Shannon was
indeed learning disabled under the criteria set forth by the South
Carolina State Department of Education (SDE). Although the disability
went unnoticed by the school district for almost three years, the
district court found that it was comparatively severe.
Following the April 1985
evaluation, the school district proposed an individualized educational
program (IEP) for Shannon at a meeting on May 1, 1985.1 Under the
school district’s proposal, Shannon would have remained in regular
classes but would have spent at least two periods per day in the resource
room. Shannon’s parents objected to the proposed resource room placement,
believing that it would be inappropriate to place Shannon alongside
students with emotional illnesses and mental retardation. Instead
her parents requested a learning disabilities itinerant program in
which Shannon would receive individualized attention from a special
education teacher. The adopted IEP, which became effective May 2,
1985, and was to run through June 1986, placed Shannon in an itinerant
program for three periods per week of individualized instruction,
with the remainder of the week in regular classes. The IEP also contained
specific goals for Shannon’s educational progress. It set a goal of
four months of reading progress during the school year, from a level
of 5.4 (i.e., fifth grade, fourth month) to one of 5.8. The mathematics
goal also posited four months’ progress, from a 6.4 level to a 6.8
level. The IEP was implemented for the month remaining in the 1984-85
school year.
Dissatisfied with the IEP,
Shannon’s parents requested a due process hearing to challenge the
appropriateness of the school district’s educational program. See
20 U.S.C. § 1415(b)(2) (1988); 34 C.F.R. § 300.506(a) (1991).
Both the local education agency hearing officer and the state education
agency hearing officer rejected the arguments of Shannon’s parents
and concluded that the IEP provided Shannon with a free appropriate
public education.
Because of their dissatisfaction
with the school district’s IEP, Shannon’s parents placed her for the
1985-86 school year at the Trident Academy, in Mt. Pleasant, South
Carolina, where she remained until graduation in 1988. Trident is
a private school that enrolls only children with learning disabilities
and specializes in the education of those whose learning disabilities
are severe. Although Trident is accredited by the Southern Association
of Colleges and Schools, approval of Shannon’s placement at Trident
had never been sought from the State Department of Education. On previous
occasions, however, Trident’s enrollment included students sent there
by public schools under the aegis of the Act, including three who
were placed there by South Carolina public schools. There is no evidence
that Trident Academy had ever been disapproved for placements under
the Act by the SDE.
In July 1986, Shannon’s
parents filed suit on her behalf in the United States District Court
for the District of South Carolina. The complaint alleged that the
school district breached its statutory duty to provide Shannon a free
appropriate public education and sought actual damages and “retroactive
reimbursement for tuition costs so far incurred.” After a bench trial,
the district court found for Shannon. Although concluding that the
school district had not breached the procedural requirements of the
Act, it held that the school district violated the Act’s substantive
provisions by failing to provide Shannon with a free appropriate public
education. The court concluded that the IEP’s goals of a mere four
months’ progress in mathematics and reading allowed Shannon to “continue
to fall behind her classmates at an alarming rate” and therefore “ensured
the program’s inadequacy from its inception.” The district court also
found itinerant study of only three periods per week inadequate to
“allow her to receive passing marks and advance from grade to grade.”
Turning to the question
of reimbursement, the district court held that “Trident Academy provided
Shannon an excellent education in substantial compliance with all
the substantive requirements of the [Act].” The court relied on the
testimony of a court-appointed expert who tested Shannon and concluded
that she made significant progress at Trident. For example, Shannon’s
reading comprehension advanced from a level of 4.7 in 1985 to 7.8
in 1988--more than three years’ progress over three school years.
Moreover, the court concluded that “[n]othing in the existing law
or regulations” barred reimbursement simply because the State Department
of Education had not approved Shannon’s placement by her parents at
the Trident Academy. Thus, the district court ordered the school district
to reimburse Shannon for tuition and fees, room and board, mileage
to school, and four trips home per year for each of her three years
at Trident, which totaled $35,716.11 plus prejudgment interest.
The school district has
appealed. II.
In light of these principles,
we cannot say that the district court’s conclusion was clearly erroneous.
The school district drafted the IEP to apply to a learning disabled
tenth-grade student whose reading and mathematics skills were at a
fifth and sixth grade level, respectively. Although the amount of
appropriate advancement will necessarily vary depending on the abilities
of individual students, see In re Conklin, No. 89-2220(L),
slip op. at 18-19 (4th Cir. Oct. 4, 1991), the district court
did not err in finding that a goal of four months’ progress over a
period of more than one year was rather modest for a student such
as Shannon and was unlikely to permit her to advance from grade to
grade with passing marks. Thus, it was proper for the district court
to conclude that the itinerant program failed to satisfy the Act’s
requirement of more than minimal or trivial progress.
The school district suggests
that the Act’s preference for “mainstreaming” handicapped students,
see 20 U.S.C.A. § 1412(5)(B) (West Supp. 1991); 34 C.F.R. §§
300.550-300.556 (1991), justifies its IEP and makes the public school
placement superior to Trident, which educates only children with disabilities.
The Act’s mainstreaming policy, however, is of no avail to the school
district here. Under the Act, mainstreaming is a policy to be pursued
so long as it is consistent with the Act’s primary goal of providing
disabled students with an appropriate education. Where necessary for
educational reasons, mainstreaming assumes a subordinate role in formulating
an educational program. See Rowley, 458 U.S. at 181 & n.4;
Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044-45 (5th
Cir. 1989). In any event, the Act’s preference for mainstreaming was
aimed at preventing schools from segregating handicapped students
from the general student body, see Burlington, 471 U.S. at
373; H.R. Rep. No. 332, 94th Cong., 1st Sess. 2 (1975); the
school district has presented no evidence that the policy was meant
to restrict parental options when the public schools fail to comply
with the requirements of the Act.
Likewise, that Shannon’s
parents rejected the school district’s proposed resource room placement
in favor of the less intensive itinerant program does not relieve
the school district of liability here. There was no finding by the
district court that the alternative rejected by Shannon’s parents
would have provided an appropriate education. In the absence of such
a finding, it is conceivable that the resource room placement would
have been less appropriate than the IEP upon which the parties eventually
settled. Thus, the case in which parents reject a plainly appropriate
IEP is simply not before us. III.
The school district next
argues that the Act does not permit reimbursement when parents unilaterally
withdraw their child from the public school system and enroll him
or her in a private school that has not been approved by the state
for the child’s placement under the Act. For the reasons explained
below, we must reject this contention.2 A.
We begin with a brief review
of the law governing reimbursement for private school education under
the Individuals with Disabilities Education Act. The Act itself does
not explicitly authorize the reimbursement of parents for expenses
incurred when they unilaterally place their child in a private school
out of a belief that the education offered by the public schools is
not “appropriate.” The Act’s language does, however, direct a court
to “grant such relief as [it] determines is appropriate.” 20 U.S.C.
§ 1415(e)(2) (1988). In Burlington School Committee v. Massachusetts
Department of Education, 471 U.S. 359 (1985), the Supreme Court
held that Congress intended this remedial provision to authorize a
court to order reimbursement when the court concludes both that the
public school system failed to provide a free appropriate public education
and that the private school chosen by the parents did provide an appropriate
education to the child. See id. at 369-70. Because administrative
and judicial review of a school system’s program under the Act is
“ponderous,” parents who believe that the public schools are not offering
their child an appropriate education are faced with a choice:
[G]o along with the IEP to
the detriment of their child if it turns out to be inappropriate
or pay for what they consider to be the appropriate placement. If
they choose the latter course, . . .it would be an empty victory
to have a court tell them several years later that they were right
but that these expenditures could not . . .be reimbursed by the
school officials. Id. at 370.
Such a result, according to the Court,
would leave “the child’s right to a free appropriate public education
. . .less than complete.” Id. (emphasis in the original). B.
In Burlington, the
state’s department of education had approved the parents’ private
school placement. See id. at 363. Here, by contrast, neither Shannon’s
parents nor the school district sought state approval for Shannon’s
placement at Trident, and therefore such state approval was never
given. The school district argues that the latter fact by itself bars
reimbursement under the Act. Moreover, the school district suggests
that a placement at Trident would not have been approved even had
an application been presented to the SDE. First, although its educational
program in many ways parallels what is required under the Act, Trident
does not attempt to comply with the terms of the Act. Trident does
not, for example, develop educational plans called IEPs, though it
does set goals for students and revise them four times per school
year. Second, at the time of trial there were at least two faculty
members at Trident--including one of Shannon’s teachers--who were
not certified by the state. Under state law, these teachers are prohibited
from teaching in a South Carolina public school. See S.C. Code §§
59-21-550, 59-25-20 (1990); S.C. Code Regs. 43-205 (1982).
We do not think that these
facts are fatal to the request for reimbursement. In suggesting that
reimbursement is proper only when parents place their child in a private
school approved by the state, the school district misreads the statute.
The pertinent provision of the Act requires that states:
[S]et forth policies and procedures
to assure . . .that--
(i) children with disabilities
in private schools and facilities will be provided special education
and related services (in conformance with an individualized education
program as required by this subchapter) at no cost to their parents
or guardian, if such children are placed in or referred to such
schools or facilities by the State or appropriate local educational
agency as the means of carrying out the requirements of this subchapter
or any other applicable law requiring the provision of special education
and related services to all children with disabilities within such
State; and
(ii) in all such instances,
the State educational agency shall determine whether such schools
and facilities meet standards that apply to State and local educational
agencies and that children so served have all the rights they would
have if served by such agencies. . . .20 U.S.C.A. § 1413(a)(4)(B)
(West 1990 & Supp. 1991) (emphasis added).
As indicated by the italicized
passages, Congress clearly envisioned that § 1413(a)(4)(B), and
its requirement that private schools receiving funds under the Act
meet state educational standards, would apply only when the child
is placed in the private school by the state or local school system.
The Act itself simply imposes no requirement that the private school
be approved by the state in parent-placement reimbursement cases.
There is no indication to the contrary in the Act’s legislative history,
see, e.g., S. Rep. 168, 94th Cong., 1st Sess. 32, 50, reprinted in
1975 U.S. Code. Cong. & Admin. News 1425, 1456, 1473, and
federal regulations and South Carolina law similarly apply state educational
standards to private schools only when the child is placed there by
the state or the school district. See 34 C.F.R. §§ 300.400-300.403
(1991) (state educational standards apply to “a handicapped child
who is placed in or referred to a private school or facility by a
public agency”); id. § 300.347 (state responsibility for IEPs
when “a public agency places a handicapped child in, or refers a child
to, a private school or facility”); S.C. Code § 59-33-50(1990)
(“When a school district cannot . . .provid[e] for the education of
its resident handicapped children because of insufficient numbers,
the district may contract with other districts within the State or
school systems or public or private institutions or agencies within
or without the State which maintain approved special education facilities.
. . .”); S.C. Code Regs. 43-243(E)(7) (1982) (“Whenever handicapped
children are placed in private schools by the SEA/LEA [state or local
educational agency], such private schools must be in compliance with
the standards of the SEA/LEA.”).
We agree with the district
court that Schimmel ex rel. Schimmel v. Spillane, 819 F.2d
477 (4th Cir 1987), on which the school district relies, is not to
the contrary. In Schimmel, the parents never demonstrated that
the private school placement proposed by the state would not have
offered an appropriate education; thus, the state placement provided
the child everything to which he was entitled under the Act and the
parents’ claim for reimbursement for an out-of-state private placement
was properly denied. See Goodall ex rel. Goodall v. Stafford County
Sch. Bd., 930 F.2d 363, 367-69 (4th Cir. 1991); Hessler ex
rel. Britt v. State Bd. of Educ., 700 F.2d 134, 139 (4th Cir.
1983). Here, by contrast, the district court held that the placement
proposed by the state was not appropriate. Although the Schimmel
court did note that “[t]he statute simply does not permit school systems
to place and fund handicapped children in unapproved private schools,”
819 F.2d at 484 (emphasis added), this language states only the unremarkable
proposition that the public schools may not place a child in a private
school that has not been approved by the state. See, e.g., Antkowiak
ex rel. Antkowiak v. Ambach, 838 F.2d 635, 639-40 (2d Cir. 1988).
Schimmel did not present the situation where, as here, the
placement offered by the public schools is inappropriate under the
Act and the parents are forced by the school system’s violation of
the Act to unilaterally withdraw the child from the public schools
and, on their own, seek alternative schooling.3
We recognize that courts
have differed on the question presented here. Several courts have
allowed reimbursement despite the absence of state approval of the
private school chosen by the parents. See Alamo Heights Indep.
Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160-61 (5th
Cir. 1986); Carrington v. Commissioner of Educ., 404 Mass.
290, 294-96, 535 N.E.2d 212, 215-16 (1989). By contrast, in Tucker
v. Bay Shore Union Free School District, 873 F.2d 563 (2d Cir.
1989), the Second Circuit concluded that parents may not obtain reimbursement
for unilateral placements in unapproved private schools. The court
based its reasoning on the Supreme Court’s statement in Burlington
that reimbursement is appropriate only “if the court ultimately determines
that such placement, rather than a proposed IEP, is proper under the
Act.” 471 U.S. at 369. Because the Act defines the term “free appropriate
public education” to mean, inter alia, “special education and related
services that . . .meet the standards of the State educational agency,”
20 U.S.C. § 1401(a)(18)(B) (1988), the Tucker court concluded
that a private school placement cannot be “proper under the Act,”
even if made by parents rather than public school officials, when
the private school in question does not “meet the standards of the
State educational agency.” Tucker, 873 F.2d at 568.
We must respectfully decline
to follow the Tucker decision. First, in relying on a general
definition for its holding, Tucker did not address the specific
language in 20 U.S.C. § 1413(a)(4)(B)(ii), which by its terms
applies state educational standards only when a child is placed in
a private school by public school officials. That language was intended
by Congress to protect the interests of handicapped children placed
in private schools by the state. Had Congress intended to take the
very different step of limiting the appropriate relief due handicapped
children when their parents choose a private school, there would have
been no reason for Congress to have limited § 1413(a)(4)(B)(ii)
by its terms to placements by the state. The Tucker court,
by focusing only on a general definition, thus appears to have created
a significant and unwarranted restriction upon the ability of otherwise
eligible children to seek relief.
Second, we do not believe
that the Supreme Court, by requiring that the private school placement
be “proper under the Act,” intended to impose on private schools chosen
by parents the whole panoply of duties that the Act imposes on the
state. Rather, when a public school system has defaulted on its obligations
under the Act, a private school placement is “proper under the Act”
if the education provided by the private school is “reasonably calculated
to enable the child to receive educational benefits,” Rowley,
458 U.S. at 207--the same standard by which the appropriateness of
a public school’s IEP is assessed. See Tice ex rel. Tice v. Botetourt
County Sch. Bd., 908 F.2d 1200, 1208 (4th Cir. 1990) (standard
is whether private placement “was proper to meet the Act’s educational
goals”).
In sum, we do not believe
that the Act as written forbids reimbursement when parents place their
child in a private school that has not been approved by the state,
and we join those courts that have so held. As interpreted by Burlington,
the Act imposes only two prerequisites to reimbursement: that the
program proposed by the state failed to provide the child a free appropriate
public education, and that the private school in which the child is
enrolled succeeded in providing an appropriate education, i.e., an
education that is reasonably calculated to enable the child to receive
educational benefits. C.
Conditioning reimbursement
under Burlington on state approval of the private school would
undermine the values and policies the Act was enacted to further.
“The Act represents an ambitious federal effort to promote the education
of handicapped children. . . .” Rowley, 458 U.S. at 179. Congress
sought to promote this goal by conditioning the receipt of federal
funds on the implementation of state programs designed to ensure that
disabled children are provided with educational opportunities, including
special education and related services, that are tailored specifically
to meet their unique needs. See 20 U.S.C.A. § 1400(c) (West Supp.
1991). Because Congress intended that the Act “result in maximum benefits
to handicapped children and their families,” S. Rep. No. 168, 94th
Cong., 1st Sess. 6, reprinted in 1975 U.S. Code Cong. & Admin.
News 1425, 1430, the Act’s remedial provision--which authorizes
the district court to “grant such relief as [it] determines is appropriate,”
20 U.S.C. § 1415(e)(2) (1988)--is “a broad grant of equitable
power designed to provide courts maximum flexibility in effectuating
the statutory objectives.” Doe v. Brookline Sch. Comm., 722
F.2d 910, 919(1st Cir. 1983).
The Act envisions, of course,
that the primary providers of educational opportunities for handicapped
children will be the public schools. When those schools fail to meet
their responsibilities, however, parents may be left to their own
devices in finding a school that provides the specialized educational
environment necessary to educate their children. In such circumstances,
it hardly seems consistent with the Act’s goals to forbid parents
from educating their child at a school that provides an appropriate
education simply because that school lacks the stamp of approval of
the same public school system that failed to meet the child’s needs
in the first place.
Finally, it must be emphasized
that parents who unilaterally place their child in an unapproved private
school bear substantial risks--risks that function to ensure that
our decision will not be a means through which parents can subvert
the Act’s emphasis on public education. If the court finds that the
public schools did in fact provide a free appropriate public education,
the parents cannot receive reimbursement, whether or not the private
school in question is state-approved. See, e.g., Goodall, 930
F.2d at 367-69. Further, reimbursement is barred if the court finds
that the private school chosen by the parents failed to provide an
appropriate education. See, e.g., Tice, 908 F.2d at 1207-08
& n.11. It may be that the possibility of the latter is enhanced
when the private school in which the child is enrolled is not approved
by the state. In the absence of a statutory command that the choice
of an unapproved private school is not the parents’ to make, however,
that risk is simply one factor that the parents must consider in deciding
where to educate their child. IV.
We in no way disparage the
process through which states impose standards upon public schools
and certify teachers as qualified to teach in particular subject areas.
Such state regulatory mechanisms play a positive and important role
in ensuring educational quality. Thus, when parents unilaterally place
their child in a private school that has not been approved by the
state, they invariably bear some risk that the school will fail to
provide an adequate education. Nonetheless, we simply cannot convert
state approval of a parent’s private school placement of a handicapped
child into a condition for reimbursement under Burlington when
that private school meets the needs of the child in the manner contemplated
by the Act and when the state has defaulted on its statutory obligations.
The judgment of the district
court is hereby AFFIRMED.
1 An IEP is a plan jointly
developed by school officials and parents that contains, inter alia,
an evaluation of the current levels of educational performance of
the student, annual goals for educational advancement, a statement
of the specific educational services that the school will provide
the student, and objective criteria and evaluation procedures by which
to measure whether the annual objectives are being achieved. See 20
U.S.C.A. § 1401(20) (West Supp. 1991). The IEP is “the centerpiece
of the statute’s education delivery system for disabled children.”
Honig v. Doe, 484 U.S. 305, 311 (1988). The Act requires that
a school establish an IEP for each disabled child and review it at
least annually. See 20 U.S.C.A. § 1414(a)(5) (West Supp. 1991).
2 The school district does
not dispute the district court’s conclusion that Trident Academy provided
Shannon with an appropriate education, which is a prerequisite to
reimbursement under Burlington. See 471 U.S. at 370. Nor does the
school district challenge the amount of reimbursement ordered by the
district court.
3 For similar reasons, we
find In re Conklin, supra, to he inapposite. In Conklin,
the district court held that the educational program offered by the
state, through the State Board of Education hearing review panel,
provided a free appropriate public education under the Act--and, indeed,
offered more than the Act required. See slip op. at 10-11, 16. Thus,
as in Schimmel, the state satisfied its statutory obligations
and the claim for reimbursement was therefore properly denied. Although
in Conklin there is language that would decline to hold a state
accountable for an unapproved private placement, see id. at 10 n.5,
the court simply was not presented with, and did not purport to address,
the statutory and precedential arguments that arise when a district
court finds both that the state has defaulted on its obligations under
the Act and that the private school chosen by the parents provides
an appropriate education.
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