S-1 BY AND THROUGH P-1 v. Spangler

• Decision Date: 31 December 1986
• Docket Number: Civ. No. C-85-969-G.
• Citation: 650 F. Supp. 1427
• Parties: S-1 and S-2, By and Through their parents and Guardians Ad Litem, P-1 and P-2; and P-1 and P-2, Individually, Plaintiffs, v. C.D. SPANGLER, Jr., Chairman, State Board of Education of North Carolina; the State Board of Education of North Carolina; the Asheboro City Board of Education; C.D. Heidgerd, Hearing Officer, Asheboro City Board of Education; and Mary Smitherman, Defendants.
• Court: U.S. District Court — Middle District of North Carolina

650 F. Supp. 1427

S-1 and S-2, By and Through their parents and Guardians Ad Litem, P-1 and P-2; and P-1 and P-2, Individually, Plaintiffs, v. C.D. SPANGLER, Jr., Chairman, State Board of Education of North Carolina; the State Board of Education of North Carolina; the Asheboro City Board of Education; C.D. Heidgerd, Hearing Officer, Asheboro City Board of Education; and Mary Smitherman, Defendants.

Civ. No. C-85-969-G.

United States District Court, M.D. North Carolina, Greensboro Division.

December 31, 1986.

A. Frank Johns, David B. Puryear, Jr., Greensboro, N.C., for plaintiffs.

Edwin M. Speas, Jr., Kaye Webb, Sp. Deputy Atty. Gen., N.C. Dept. of Justice, Raleigh, N.C., for defendants Spangler, State Bd. of Educ. of North Carolina, and C.D. Heidgerd.

D. Westcott Moser, John N. Ogburn, Jr., Stephen S. Schmidly, Asheboro, N.C., for defendant Asheboro City Bd. of Educ.

Richard A. Schwartz, Ann L. Majestic, Raleigh, N.C., for defendant Mary Smitherman.

MEMORANDUM OPINION

BULLOCK, District Judge.

Plaintiffs have instituted this action under 42 U.S.C. § 1983, alleging the deprivation of rights secured by the Education for All Handicapped Children Act (EAHCA), 20 U.S.C. § 1401 et seq., and the regulations promulgated pursuant to Section 504 of the Rehabilitation Act of 1973 (RA), 29 U.S.C. § 794, at 34 C.F.R. § 104.30 et seq. On March 4, 1986, the State Board of Education, C.D. Spangler, Jr., former Chairman of the State Board, and C.D. Heidgerd, Administrative Hearing Officer in this matter, moved for summary judgment on Plaintiffs' second claim for relief. Plaintiffs responded to that motion and filed a cross-motion for summary judgment on April 28, 1986. Plaintiffs have also filed a motion to allow voluntary dismissal of their third claim for relief against Defendant Mary Smitherman. On September 29, 1986, this court heard oral argument on motions for summary judgment and Plaintiffs' motion to allow voluntary dismissal of the third claim for relief against Mary Smitherman.

For the reasons that follow, this court will grant Plaintiffs' motion for summary judgment and will deny Defendants' motion for summary judgment as to Plaintiffs' second claim for relief. The court will also grant Plaintiffs' motion to allow voluntary dismissal of the third claim for relief.

FACTUAL BACKGROUND

S-1 and S-2 are children enrolled in the Asheboro City Schools. In the fall of 1983, following private evaluations of the children, their parents informed the principal at the public school in which they were enrolled that the children were being placed in a private educational facility for one-half of each school day. The parents were permitted, at their own expense, to place their children in the private facility and did so on a half-day basis for the entire 1983-84 school year. Subsequently, the parents demanded that Asheboro City Board of Education provide S-1 and S-2 with an individualized education program comparable to that being provided at the private institution or, alternatively, to provide transportation and tuition for the children to continue at the private facility for the 1984-85 school year. The parents also asked to be reimbursed for expenses incurred by them as a result of the previous year's placement of the children in the private school. Upon the City Board's denial of their request, the parents requested a due process hearing pursuant to N.C.Gen. Stat. § 115C-116. Ultimately, the children were placed satisfactorily; however, the parents continued to demand reimbursement for the 1983-84 school year.

The hearing officer appointed pursuant to N.C.Gen.Stat. § 115C-116 to conduct the due process hearing determined that he had no authority, under the statute or the regulations adopted pursuant thereto, to determine an award of reimbursement and no hearing was held.¹ Plaintiffs subsequently petitioned the State Board of Education either to rule that the hearing officer had such authority, or to amend the regulations in order to confer that authority upon him. The State Board denied the petition and declined to grant either request.

In their second claim for relief, Plaintiffs allege that Asheboro City Board of Education, acting by and through its duly-appointed administrative hearing officer, Defendant Heidgerd, and Defendant Heidgerd himself refused to conduct the hearing to decide Plaintiffs' claim for reimbursement, depriving Plaintiffs of procedural rights secured to them by the EAHCA and the regulations promulgated pursuant to the Rehabilitation Act of 1973.²

Plaintiffs' second claim for relief further alleges that Defendant Spangler and the State Board of Education of North Carolina ("State Board") refused to interpret or amend the state regulations governing the conduct of administrative hearings in order to provide Plaintiffs with a hearing decision on their claim for reimbursement. This, too, Plaintiffs allege as a deprivation of their procedural rights secured under the same federal laws.

DISCUSSION

I. Motions for Summary Judgment

Federal Rule of Civil Procedure 56(c) permits the court to grant summary judgment only if the pleadings, depositions, interrogatory answers, admissions, and affidavits show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The burden is on the moving party to make such a showing, and the court must assess the inferences from the depositions and other documentary materials in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

A. Statutory framework

Although the facts which give rise to this action are relatively simple, this case presents complex and novel legal issues. In analyzing these issues, it is first necessary to understand the statutory framework established by the Education of the Handicapped Act.³ As recently summarized by the Eleventh Circuit in Manecke v. School Board of Pinellas County, Florida,

the EHA provides public school districts with federal funding for the education of handicapped children so long as the `state has in effect a policy that assures all handicapped children the right to a free appropriate public education.' 20 U.S.C. § 1412(1). A `free appropriate public education' is defined as `special education and related services' which, inter alia, are provided in conformity with the IEP. Id. § 1401(18). The IEP serves to tailor the `free appropriate public education' mandated by the Act `to the unique needs of the handicapped child.' Board of Education v. Rowley, 458 U.S. 176, 181, 102 S.Ct. 3034, 3038, 73 L.Ed.2d 690 (1982). Moreover, federal regulations provide that if necessary to give a handicapped child special education and related services, the state must place that child in a public or private residential program at public expense. 34 C.F.R. § 300.302.

The EHA also contains a detailed procedural component. Any state or local agency receiving federal assistance under the Act must, in accordance with the requirements of 20 U.S.C. § 1415, establish and maintain procedural safeguards. Among these is the requirement that parents be given the opportunity to contest virtually any matter concerning the educational placement of the handicapped child, or the provision of a `free appropriate public education' to such child. Id. § 1415(b)(1)(E). Additionally, if the parents of a handicapped child decide to bring a complaint, they must be given an `impartial due process hearing.' Id. § 1415(b)(2). Federal regulations mandate that a hearing must be held and a final decision must be reached not later than 45 days after the public agency receives a request for a hearing. 34 C.F.R. § 300.512. Upon completion of the administrative process, any party dissatisfied with the administrative final decision may `bring a civil action with respect to the complaint' in either state or federal court. 20 U.S.C. § 1415(e)(2).

Manecke v. School Board of Pinellas County, Florida, 762 F.2d 912, 916-17 (11th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 809, 88 L.Ed.2d 784 (1986) (footnote omitted).

Specifically, Plaintiffs contend that the language of 20 U.S.C. § 1415(b)(1)(E) requires the state hearing officer to conduct a hearing on the issue of reimbursement and order such relief if appropriate. This particular provision of the Act requires the hearing officer to provide the parents or guardian of a handicapped child with "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." Id. (emphasis added).

B. "Any matter relating to ... the provision of a free appropriate public education"

This court concludes that reimbursement is included within the phrase "any matter relating to ... the provision of a free appropriate public education." In reaching this conclusion, this court takes note of the Supreme Court's recent pronouncement in Burlington School Committee v. Commissioner of Education, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). There, the Court concluded, "we are confident that by empowering the court to grant `appropriate' relief Congress meant to include retroactive reimbursement to parents as an available remedy in a proper case." 471 U.S. at 369, 105 S.Ct. at 2003. See also Hall v. Vance County Board of Education, 774 F.2d 629, 633 (4th Cir.1985).

Although Burlington School Committee holds only that tuition reimbursement is appropriate judicial relief in EAHCA cases, the Supreme Court's statutory analysis is instructive on the issue presented in the case sub judice.⁴ The Court reasoned that retroactive reimbursement of private tuition expense must be "appropriate" relief, i.e., consistent with legislative intent, because if held otherwise "the child's right to a free appropriate public education, the...