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.
Footnotes
[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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