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UNITED
STATES DISTRICT COURT
OF SOUTH CAROLINA
FLORENCE DIVISION
17 EHLR 452
Shannon CARTER, a minor
by and through her father and next friend, Emory D. CARTER
FLORENCE COUNTY SCHOOL
DISTRICT FOUR; Ernest K. NICHOLSON, Superintendent, in his official
capacity; School Board Members: Bennie ANDERSON, Monroe FRIDAY, Jack
ODOM, Elrita BACOTE, T.R. GREEN, and James W. HICKS, in their official
capacities
Defendants
No. 86-2028-2
January 30, 1991
HOUCK, U.S. District Judge
This case arose in connection
with the education of Shannon Carter, a learning disabled student
at the Timmonsville High School in Florence County School District
Four, South Carolina. Shannon Carter and her parents challenge the
Individualized Education Program (IEP) designed for Shannon and appeal
the decision of a local education agency administrative hearing officer
and the affirmance on appeal of that decision by a state education
agency administrative hearing review officer that the school district
met its obligation to provide Shannon a free appropriate public education
(FAPE) pursuant to the requirements of the Education of the Handicapped
Act (EHA), 20 U.S.C. §§ 1400, et seq.
Trial was had before the
court without a jury on July 13, 1988, and July 14, 1988, and again
on May 9, 1989. The parties thereafter made supplemental filings,
and the matter became ripe for decision. Having given careful consideration
to the record in this case as well as the arguments and other submissions
made by counsel for the parties, the court, pursuant to Rule 52 of
The Federal Rules of Civil Procedure, herein publishes its Findings
of Fact and Conclusions of Law.
Findings of Fact
1. Shannon Carter attended first
grade in Florence County School District Four at Timmonsville Elementary
School. At the end of her first grade year, Shannon was withdrawn
from Timmonsville Elementary School and enrolled at a nearby private
school, Roy Hudgens Academy. At Roy Hudgens Academy, Shannon repeated
the first grade at the insistence of her mother and remained at the
academy through the sixth grade.1
2. At the beginning of the
1982-1983 school year, Shannon re-entered public school in Timmonsville
and was enrolled in the seventh grade.
3. At some time in the early
part of 1983, Shannon was given some screening tests by the junior
high school guidance counsellor to obtain an indication of her I.Q.
and achievement level. In February 1983, the guidance counsellor contacted
the school district’s educational evaluator, Mr. Ray Hill, to conduct
similar tests. Mr. Hill testified that he administered one intelligence
and one achievement test to Shannon in February 1983. According to
Hill, Shannon scored slightly below average achievement and, thus,
did not qualify as learning disabled.2
4. In the fall of 1984 Shannon
entered the ninth grade at Timmonsville High School and was placed
in a regular classroom. Shannon continued to perform poorly as reflected
by her first semester averages.3 This continued poor performance prompted
Shannon’s parents to seek additional testing for her. In February
1985, Mrs. Carter contacted the school district to request another
evaluation.
5. On April 13, 1985, Shannon
was again tested by Mr. Ken Bailey, a state certified school psychologist.
Following the evaluation it was agreed that a meeting would be held
to discuss its results. At the meeting held on April 18, 1985, Bailey
reported Shannon’s evaluation results concluded that, based on State
Department of Education criteria, Shannon qualified for a learning
disability (LD) placement. He explained that there existed “a significant
discrepancy between ability and achievement according to the one and
one-half standard deviation difference formula. . . .”4 This evaluation
indicates a serious learning disability, with a variance between Shannon’s
verbal I.Q. and performance I.Q. of 36 points.5 Various subtests administered
by Bailey yielded reading ability levels from 4.7 grade level equivalency
to a 6.8 level.
6. Shannon suffers from
a serious and significant learning disability. Testimony from Dr.
James Ward and Dr. Allison Grant indicate that Shannon’s learning
disability is on the severe end of the scale. According to Shannon’s
parents and Dr. Grant, Shannon also suffered from significant emotional
overlay manifested by depression, feelings of low self-worth and self-esteem,
as well as suicidal thoughts. Testimony from Ms. Margaret Mitchell
of Trident Academy indicates that Shannon entered Trident Academy
in the fall term in 1985 as a functional illiterate.
7. Subsequent to the evaluation
performed by Bailey, an IEP meeting was scheduled for May 1, 1985.
Numerous personnel from Florence County School District Four were
present as well as the parents of Shannon and Ms. Linda Summer.6 During
that meeting, the IEP proffered by the district was read to the Carters.
The school district was of the opinion that an L.D. resource class
would be the appropriate placement for Shannon. The parents disagreed
and requested an L.D. itinerant program.7 According to the parents’
testimony, their reasoning was that it would be inappropriate for
Shannon to be in a resource class with other special education students
with emotional illnesses and/or mental retardation. Lisa Free, the
L.D. teacher at Timmonsville High School, testified that the majority
of her students that year were mentally retarded and that segregation
between these students and her L.D. students was improbable.
8. Despite the disagreements
that existed between Shannon’s parents and the school district, the
IEP document was nonetheless prepared and submitted to the Carters
for signature.8 Implementation of the plan commenced on May 2, 1985,
and by its clear language was to run until June 1986.9 Shannon’s ultimate
placement under this IEP was three periods of L.D. itinerant classes
per week. A period in district four is a little less than one hour.
9. Several long range goals
were written into the IEP. The reading goal specified four months
of progress during the year, from a 5.4 level to a 5.8 level. The
mathematics goal was similarly one for four month’s progress, from
a 6.4 level to a 6.8 level. In light of the expert testimony of Ms.
Mitchell, Dr. Grant and Dr. Ward, it is clear that these goals were
wholly inadequate. Much more progress was necessary in order to provide
Shannon an appropriate education. Shannon was in need of an intensive
self-contained L.D. environment to afford her with an individualized
special education to meet her unique needs.
10. Shannon’s parents were
ultimately dissatisfied with the district’s plan and sought a due
process hearing pursuant to 34 CFR § 300.506(a). The hearing
was held on August 20, 1985, in Timmonsville, South Carolina. In a
decision dated September 5, 1985, the hearing officer held for the
district. The Carters appealed this decision to the state level. The
hearing officer’s decision was upheld on October 14, 1985.
11. In response to their
dissatisfaction with the IEP Shannon’s parents began a search for
an appropriate placement for Shannon. Ultimately, they selected Trident
Academy in Mt. Pleasant, South Carolina. Trident Academy is a private
day school specializing in the education of learning disabled children.
Shannon began courses at Trident in September 1985, and remained there
until her graduation in the spring of 1988.
12. Trident Academy is fully
accredited by the Southern Association of Colleges and Schools and
has accepted public school students under the dictates of the EAHCA
on numerous occasions, including at least three instances from South
Carolina public schools. In these instances, EAHCA tuition monies
were paid directly from the school districts to Trident. The district
has offered no evidence that Trident has ever been disapproved by
the South Carolina Department of Education.10
13. In light of conflicting
testimony as to the appropriateness of Trident, the court’s appointed
expert, Dr. Richard Nagle, tested Shannon in the spring of 1988. His
tests revealed that Shannon made significant progress at Trident.
Her reading comprehension had risen from a level of 4.7 in 1985 to
7.8 in 1988. Based on these tests, Dr. Nagle concluded that Trident
had done a good job of meeting the individualized needs of Shannon.
The court agrees with Dr. Nagles’ assessment as well as the assessments
of Dr. Ritter, Dr. Ward, Dr. Grant and Ms. Mitchell that the education
offered at Trident Academy has been an appropriate special education
for Shannon.
14. As a result of enrolling
Shannon at Trident Academy, the Carters incurred the following expenses:
85-86 School Year
86-87 School Year
Tuition and fees
6,992.00
8,484.00
Room and Board
3,600.00
3,600.00
Mileage to school
158.40
158.40
4 trips home
221.76
221.76
______
______
$10,972.16
$12,464.16
87-88 School Year
Tuition and fees
8,139.70
Room and board
1,869.69
Mileage to school
2,059.20
4 trips home
211.20
______
$12,279.79
15. The court finds that
the tuition and fees charged by Trident were reasonable for the services
it provided. The court is persuaded by the fact that Trident offers
these services on the open market and that the economics of supply
and demand are in operation. Further, the defendant has offered no
evidence that Shannon could have received the special educational
services provided by Trident at any facility closer to her home or
at a lower cost.11 Therefore, the Carters are entitled to reimbursement
for tuition and fees in the amount of $23,615.70, for the three school
years that Shannon attended Trident.
16. For the 1985-86 and
1986-87 school years, Shannon boarded with a Mt. Pleasant resident,
Ms. Mary Ann Griffin. During the 1987-88 school year, Shannon roomed
in a private apartment with her older brother in the Charleston area.
Since Timmonsville and Trident Academy are a considerable distance
from one another, it was reasonable for Shannon to board somewhere
in the area of Trident. The room and board expense of $9,069.69 was
a logical and legitimate consequence of Shannon’s attending a school
away from her home. We find that said amount is a reasonable additional
expense necessitated by Shannon attending an out of town school.
17. During the 1985-86 and
1986-87 school years Shannon traveled approximately 20 miles per week
to attend Trident Academy at a cost each year of $158.40. This expense
increased to 52 miles per day and a total of $2059.20 during the school
year 1987-88. The court finds these mileage expenses for Shannon’s
transportation to and from school to be reasonable and recoverable.12
Therefore, the Carters are entitled to a total of $2376.00 for Shannon’s
transportation to and from school.
18. The four trips home
each year were a reasonable and necessary expense and shall be allowed.
Therefore, the Carters are entitled to reimbursement for those expenses
in the amount of $654.72.
19. It is impossible to
compute with accuracy the amount of prejudgment interest that the
plaintiff is entitled to recover in this action. Her father borrowed
some of the money spent for education related expenses from the Pee
bee State Bank, Timmonsville, South Carolina. The record reflects
that the interest paid or obligated to be paid on that sum through
December 31, 1989 is $6519.04.13 The amount of plaintiff’s expenses
paid from funds other than those borrowed from Pee Dee State Bank
cannot be determined, and no interest can be awarded therefor. Likewise,
the record is silent as to any interest paid by plaintiff’s father
after December 31, 1989. From that day through December 31, 1990,
all sums required herein to be paid by the defendant to the plaintiff
shall accrue interest at the rate of 7.91% per annum14 During the
month of January 1991, the prejudgment interest rate shall be 6.62%
per annum which is the yield of Fifty-two Week Treasury Bills during
that month.
Conclusions of Law
A. Jurisdiction is conferred
upon the court by 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3)
and (4).
B. The Education of the
Handicapped Act, 20 U.S.C § 1401 et seq. (1976 ed. and Supp.
IV), provides federal money to assist state and local agencies in
educating handicapped children, and conditions such funding upon a
state’s compliance with extensive goals and procedures. The EHA represents
an ambitious federal effort to promote the education of handicapped
children and was passed in response to Congress’s perception that
a majority of handicapped children in the United States “were either
totally excluded from schools or [were] sitting idly in regular classrooms
awaiting the time when they were old enough to ‘drop out.’” H. R.
Rep. No. 94-332, p.2 (1975).
C. The “free appropriate
public education” required by the EHA is tailored to the unique needs
of the handicapped child by means of an individualized educational
program. § 1401(18). The IEP, which is prepared at a meeting
between a qualified representative of the local educational agency,
the child’s teacher, and the child’s parents consists of a written
document containing,
(A) a statement of the present
levels of educational performance of such child, (B) a statement of
annual goals, including short-term instructional objectives, (C) a
statement of the specific educational services to be provided to such
child, and the extent to which such child will be able to participate
in regular educational programs, (D) the projected date for initiation
and anticipated duration of such services, and (E) appropriate objective
criteria and evaluation procedures and schedules for determining,
on at least an annual basis, whether instructional objectives are
being achieved. § 1401(19).
D. In the leading case on
the subject, Hendrick Hudson District Board of Education v. Rowley,
458 U.S. 176 (1981), the Supreme Court has held that the requirement
that the state provide a handicapped child with a “free appropriate
public education” is met by providing personalized instruction with
sufficient support services to permit the child to benefit educationally
from that instruction. Such instruction and services must be provided
at public expense, must meet the state’s educational standards, must
approximate the grade levels used in the state’s regular education,
and must comport with the child’s IEP. In addition, the IEP, and,
therefore, the personalized instruction should be formulated in accordance
with the requirements of the EHA and, if the child is being educated
in the regular classrooms of the public school system, should be reasonably
calculated to enable the child to achieve passing marks and advance
from grade to grade. Rowley, at 204-205.
E. The EHA permits “[a]ny
party aggrieved by the findings and decision” of the state administrative
hearings “to bring a civil action” in “any State court of competent
jurisdiction or in a district court of the United States without regard
to the amount in controversy.” § 1415(e)(2). When a suit is brought
under the EHA, the court’s inquiry is twofold. First, has the State
complied with the procedures set forth in the EHA? And second, is
the individualized educational program developed through the EHA’s
procedures reasonably calculated to enable the child to receive educational
benefits?
F. In the present case the
plaintiff contends that the school district’s behavior was afflicted
with “serious procedural infirmity” regarding compliance with the
elaborate procedural requirements of the EHA, thereby invalidating
the May 1, 1985, IEP. Such compliance is critical to the efficient
operation of the EHA, and serious procedural noncompliance can by
itself support a finding that the child has not been provided with
a FAPE. Hudson by and through Tyree v. Wilson, 828 F.2d 1059
(4th Cir. 1987), citing, Hall v. Vance County Board of Education,
774 F.2d 629, 635 (4th Cir. 1985). The Carters contend that they were
confronted at the May 1, 1985, IEP meeting with a completed IEP as
if it were a fait accompli, with no opportunity to contribute to the
content or development of the document.
G. It has been held “appropriate
for agency staff to come prepared with evaluation findings, statements
of present levels of educational performance, and a recommendation
regarding annual goals, short term instructional objectives, and the
kind of special education and related services to be provided. However,
the agency must make it clear to the parents at the outset of the
meeting that the services proposed by the agency are only recommendations
for review and discussion with the parents.” B.G. by F.G. v. Cranford
Board of Education, 702 F.Supp. 1158, 1165 (D.N.J. 1988). While
there is considerable dispute as to what actually took place at the
meeting, the court concludes that there has been no serious procedural
non-compliance on the part of the school district.
H. Turning now to the court’s
second inquiry, it should be noted that there exists no single substantive
standard describing exactly how much educational benefit is sufficient
to satisfy the EHA. Each case must be determined on a case-by-case
basis, Hall v. Vance County Board of Education, 774 F.2d 629,
635 (4th Cir. 1985), but, as the Rowley decision makes clear,
“[w]hen the handicapped child is being educated in the regular classrooms
of a public school system, the achievement of passing marks and advancement
from grade to grade will be one important factor in determining educational
benefit.” Rowley, at 207, N. 28.
I. The IEP prepared on May
1, 1985, did not provide Shannon with a free appropriate public education
as required by the EHA. Even if all of the goals of the document had
been met, Shannon would continue to fall behind her classmates at
an alarming rate. The stated progress of only four months in her reading
and math skills over an entire school year ensured the program’s inadequacy
from its inception. Furthermore, the district’s offer of only three
periods of itinerant study a week failed to meet Shannon’s educational
needs. At a minimum, which is all the EHA requires, the district was
obligated to provide Shannon an individualized program that would
allow her to receive passing marks and advance from grade to grade.
Having failed to do this, the court concludes that Florence County
School District Four failed to provide Shannon Carter with a free
appropriate public education.
J. It is now settled that
parents may be entitled to tuition reimbursement despite the unilateral
withdrawal of their child from the public school. Burlington School
Committee v. Department of Education, 471 U.S. 359 (1985). The
parents, of course, withdraw the child at the risk that the subsequent
administrative and judicial review will establish that the contested
placement provided a FAPE. In Burlington the court noted the cruel
dilemma an arguably inappropriate placement offers the parents if
they have no possibility of reimbursement for expenses resulting from
an unilateral withdrawal. They may either leave the child in an inappropriate
classroom pending the long process of review or remove the child and
waive any right to tuition reimbursement for alternative schooling
while review is taking place. The court accordingly held that a prior
unilateral withdrawal did not waive the child’s right to such an equitable
remedy at the end of the review process. Burlington, at 370.
K. There appears no doubt,
then, that the Carters were entitled to withdraw their child from
the public school because of its failure to provide a FAPE. The remaining
issue concerns whether or not the Carters had a right to place Shannon
at Trident Academy. From the outset it should be noted that the evidence
established that Trident Academy provided Shannon an excel lent education
in substantial compliance with all the substantive requirements of
the EHA. Although it did not comply with all of the procedures outlined
in the EHA, it evaluated Shannon quarterly, not yearly as mandated
in the EHA, it provided Shannon with low teacher-student ratios, and
it developed a plan which allowed Shannon to receive passing marks
and progress from grade to grade. The court concludes that Shannon
received an appropriate education, within the meaning of the EHA,
at Trident Academy.
L. The defendants, relying
on the recent case of Schimmel by Schimmel v. Spillane, 819
F.2d 477 (4th Cir. 1987), argue that the plaintiff herein is not entitled
to tuition reimbursement because they placed her in a school that
had not been approved by the South Carolina State Department of Education.
Spillane is clearly distinguishable from the present case. In Spillane,
the parents and the school were in agreement that the child needed
to be placed in a residential school, and the school system agreed
to pay the cost of such placement at the Little Keswick School near
Charlottesville, Virginia. Little Keswick is a private residential
school which is approved by the Virginia Department of Education as
a school for the handicapped. The parents declined to enroll their
child at Little Keswick and instead enrolled him at a private school
in Vermont. After the school refused to place the child at the Vermont
school, the parents sought a due process hearing. At that hearing
it was held that the Virginia school offered an appropriate education.
This decision was upheld on appeal to the state reviewing officer.
The parents then brought suit in the district court where judgment
was entered for the school district. The Fourth Circuit Court of Appeals
affirmed. Schimmel by Schimmel v. Spillane, 819 F.2d 477 (4th
Cir. 1987). This court has no quarrel with the Schimmel decision and
agrees with the same.
In the instant case the
situation is quite different. We are not dealing with referral to
a private school with a public agency so as to make § 1413(a)(4)(B)
of the EHA and 34 CFR § 300.401(a)(3) applicable. This case involves
a situation where the school district failed to provide the child
with a free appropriate public education, and the only way the parents
could provide the same to their daughter within a meaningful time
frame was to enroll her in a private school. Nothing in the existing
law or regulations convinces this court that the stringent requirements
advanced by the defendants should be applied to such a unilateral
placement.
M. Congress has provided
that in all actions brought in this court under the EHA “the court
shall receive the records of the administrative proceedings, shall
hear additional evidence at the request of a party, and, basing its
decision on the preponderance of the evidence, shall grant such relief
as the court deems is appropriate.” 20 U.S.C. § 1415(e)(2)(c).
The United States Supreme Court has said that “equitable considerations
are relevant” in determining the appropriate relief mandated by the
statute. This court, therefore, concludes that the plaintiff should
be entitled to recover all reasonable expenses incurred by her parents
in enrolling her in Trident Academy for the last three years of her
high school education. These expenses should, of course, include prejudgment
interest.
Order
The plaintiff shall, therefore,
have judgment against the defendant in the amount of $35,716.11 plus
prejudgment interest computed in the manner herein specified15 and
costs.
AND IT IS SO ORDERED.
1 While Shannon had received
passing marks in the first grade at Timmonsville Elementary School
her mother decided it would be in Shannon’s best interest to repeat
it at Roy Hudgens Academy.
2 The actual test results were not available at trial. Hill stated
that after a thorough search of his files he was unable to locate
Shannon’s 1983 test results. This is most unfortunate because all
of the experts who testified on the subject were in agreement that,
absent a traumatic injury to the head, a learning disability does
not naturally develop in a child who previously did not suffer from
one.
3 Shannon’s first semester averages were as follows: English 9--D;
Pre-Algebra--F; Physical Science--D; Civics and Geography--F; and
Physical Education--F.
4 Report of Dr. Bailey, plaintiff’s exhibit 3.
5 The verbal I.Q. was 81 and the performance I.Q. was 117.
6 Ms. Summer is a psychiatric social worker from Florence, South Carolina.
She was employed by the plaintiff’s parents and first examined the
plaintiff on February 19, 1985. She testified in the administrative
phase of this proceeding and was present during the trial in this
court but did not testify.
7 Pursuant to 20 U.S.C. § 1412 the South Carolina State Board
of Education adopted Regulations 43-243 which at page 144 explained
the difference between an itinerant program and a resource class as
follows: In an itinerant program the specialist will provide continual
ongoing services to handicapped pupils and teachers taught in regular
classroom settings. A resource room program shall involve pupils who
will remain in regular classrooms for the major part of the day and
will be scheduled into the resource room for one or more periods of
individualized instruction contingent on pupil’s needs.
8 There was considerable dispute during the trial as to whether the
parents signed the document knowingly and voluntarily. This issue
is of no import; clearly the Carters were not satisfied with the plan.
The IEP is not a binding contract and either party can seek changes
at any time. The fact that their signature appears on the document
does not effect the outcome of this case to any extent whatsoever.
9 The school district would have this court believe that the IEP was
only intended for the remainder of the school year. However, the IEP
states in clear and unambiguous language that it was to run until
June 1986.
10 Although Dr. Black testified in the abstract about possible disapproval
of the school because it employs one non-certified teacher, this is
not fatal to the plaintiff’s case.
11 There was some suggestion that Shannon could have received special
educational services at Florence School District One. However, there
was no evidence that the defendant ever presented this as an option.
The parents were, of course, prevented by state law from independently
seeking a placement for Shannon in any public school outside of her
district.
12 The mileage expenses for the school year 1987-88 are substantially
greater than those for the preceding two years. In finding the same
to be reasonable we have also considered the fact that room and board
expenses for the same period were correspondingly lower than those
for the preceding two years.
13 Plaintiff’s exhibit 36 reflects the amount of interest paid by
the Carters through December 31, 1988. Plaintiff’s exhibit 37 indicates
the per diem interest on the loan. Since the loans were made from
January 1 through December 31 of each year, interest was computed
at the per diem rate through December 31, 1989.
14 Fifty-two Week Treasury Bills are sold by auction on a monthly
basis. Records of those sales are maintained in the office of the
clerk of this court, and the 7.91% rate is an average of the monthly
yields of said bills during 1990 as computed from those records.
15 Prejudgment interest shall also be computed in accordance with
28 U.S.C. § 1961(b).
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