775 F.2d 411 (1st Cir. 1985), 84-1937, David D. v. Dartmouth School Committee

Docket Nº:84-1937 to 84-1939.
Citation:775 F.2d 411
Party Name:DAVID D., etc., Plaintiff, Appellee, v. DARTMOUTH SCHOOL COMMITTEE, Defendant, Appellee. Massachusetts Department of Education, Defendant, Appellant. DAVID D., etc., Plaintiff, Appellee, v. DARTMOUTH SCHOOL COMMITTEE, Defendant, Appellant. DAVID D., etc., Plaintiff, Appellant, v. DARTMOUTH SCHOOL COMMITTEE, et al., Defendants, Appellees.
Case Date:October 15, 1985
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 411

775 F.2d 411 (1st Cir. 1985)

DAVID D., etc., Plaintiff, Appellee,

v.

DARTMOUTH SCHOOL COMMITTEE, Defendant, Appellee.

Massachusetts Department of Education, Defendant, Appellant.

DAVID D., etc., Plaintiff, Appellee,

v.

DARTMOUTH SCHOOL COMMITTEE, Defendant, Appellant.

DAVID D., etc., Plaintiff, Appellant,

v.

DARTMOUTH SCHOOL COMMITTEE, et al., Defendants, Appellees.

Nos. 84-1937 to 84-1939.

United States Court of Appeals, First Circuit

October 15, 1985

Rehearing and Rehearing En Banc Denied Dec. 3, 1985.

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Richard F. Howard, Development Disabilities Law Center, Boston, Mass., for David D.

Kim E. Murdock, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief for the Massachusetts Dept. of Educ.

James M. Cronin, New Bedford, Mass., with whom Perry, Hicks, McCawley & Cronin, New Bedford, Mass., was on brief for Dartmouth School Committee.

Robert K. Crabtree and Kotin, Crabtree & Strong, Boston, Mass., on brief for the Federation for Children with Special Needs, Inc., amicus curiae.

Before BOWNES, RUBIN [*] and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

In this case arising under the Education for All Handicapped Children Act, 20 U.S.C. Secs. 1401-1420 (EHA or Act), all parties present questions regarding the district court's interpretation and application of our decision in Town of Burlington v.

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Department of Education of Massachusetts, 736 F.2d 773 (1st Cir.1984) (hereafter Burlington II ), aff'd sub nom. Burlington School Committee v. Department of Education, --- U.S. ----, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). In its decision, the district court followed our direction in Burlington II and considered whether the state special education act mandated a higher level of benefits for disabled children than did the federal "floor" required by the federal Act. Finding that it did, the court used that standard to assess the Town's proposed Individualized Education Program (IEP) for David D., an adolescent with Down's Syndrome. The district court, 615 F.Supp. 639, then ruled that the substantially separate program the Town had proposed was deficient under the state standard, and that the child should be educated at a residential private school where there would be consistent behavior training in addition to schooling in academic skills.

The defendants-appellants, Department of Education of the Commonwealth of Massachusetts (State) and the Dartmouth School Committee (Town), claim that the eleventh amendment to the United States Constitution, as interpreted by Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (Pennhurst II ), prohibits the "federal courts from interpreting, applying, and enforcing the substantive requirements of state special education law against a State" in an action brought under the EHA. The State has now changed its position from that maintained in Burlington II, where it argued that the district court (the same district judge, we note, as in the case at bar) failed to give the weight to the state regulations and the state administrative decision that the federal Act requires. Consonant with this approach, we determined in Burlington II that the federal Act "incorporates by reference," 736 F.2d at 789, relevant state law and enforces that law as part of the federal right to a "free appropriate public education." 20 U.S.C. Secs. 1401(18), 1412(1). Second, appellants claim that even if we reaffirm Burlington II with regard to the incorporation of state law, the district court's choice and application of "maximum possible development" as the applicable state substantive standard was reversible error.

Plaintiff David D. cross-appeals on two issues. He first alleges that the district court erred in declining to reach the question whether some of the Town's procedures in handling his individualized educational program and the administrative appeals process were out of compliance with the federal and state regulations. Second, plaintiff contends that the district court should have ordered the Town to provide an appropriate interim program when the educational program requested by plaintiff and initially ordered by the court was unavailable.

We begin with a brief overview of the statute at issue followed by a review of the facts as determined by the district court. We next review the controlling precedent in this circuit before turning to consider the issues presented by this appeal.

I. STATUTORY OVERVIEW

We have reviewed the structure and operation of the statutory scheme at issue here numerous times previously. See, e.g., Burlington II, 736 F.2d 773; Doe v. Brookline School Committee, 722 F.2d 910 (1st Cir.1983); Colin K. v. Schmidt, 715 F.2d 1 (1st Cir.1983); Abrahamson v. Hershman, 701 F.2d 223 (1st Cir.1983); Ezratty v. Commonwealth of Puerto Rico, 648 F.2d 770 (1st Cir.1981); see generally Board of Education of Hendrick Hudson v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The Education for All Handicapped Children Act is designed to assist states and local agencies in their efforts to educate physically and mentally disabled children. Federal funds are provided to contracting states which promise to provide at minimum a "free appropriate public education" for all handicapped children within the state, 20 U.S.C. Sec. 1412(1), and which agree to set up a complaint and appeal process for the children and their parents as the federal Act mandates.

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The key operative feature of the federal Act is the "individualized education program" (IEP). 20 U.S.C. Secs. 1401(19); 1414(a)(5). The IEP process is the means through which the statutory mandate is "tailored to the unique needs of the handicapped child." Rowley, 458 U.S. at 181, 102 S.Ct. at 3038. The IEP itself is formulated at a meeting of the parents, teachers, administrators and, where appropriate, the child. It must specify the instructional goals and objectives, any special services to be provided, and criteria for progress evaluation. See Sec. 1401(19). The Act further requires at least an annual review of each child's IEP and authorizes revisions where appropriate. Sec. 1414(a)(5); see also Sec. 1413(a)(11).

If the parents or the child believe that the IEP the school system decides to implement provides a lesser education than they regard to be their legal right, or if they feel their procedural rights have been infringed, they have a right to an impartial due process hearing conducted by the state educational agency. Sec. 1415(b)(2). Should any party be "aggrieved by the findings and decision" of the state administrative hearing, Sec. 1415(e)(2) of the Act grants a right to bring a civil action in federal or state court.

II. FACTUAL BACKGROUND

Our standard of review is that unless clearly erroneous, the facts as found by the district court are controlling. Here, with one exception, the facts are generally not disputed. The only factual matter truly at issue is whether David's special needs are severe enough to warrant a full-time, residential program or whether, instead, David is being educated to the degree legally imposed as a minimum standard by attendance at a special education day program with some supplementary services in the local school district.

David is a seventeen year old adolescent with Down's Syndrome, who learns and has skills at the kindergarten level. Although he has been gaining academic skills during the time he has been a student at the Dartmouth school, he has in recent years exhibited a range of seriously inappropriate behavior showing little or no self-control in unstructured or unfamiliar situations. David's parents are concerned that some of the behavior he has been exhibiting will result in his being unable to become a productive adult with a job in a sheltered workshop and denial of his access to and living within the mainstream community. Such has been predicted by special education professionals as the likely outcome, given the range, gravity and frequency of his inappropriate behavior. The parents maintain that the Dartmouth School Committee (Town) has not taught and will not be able to teach David self-control, rendering the IEP the Town proposed for him fatally deficient. The district court agreed with the parents and reversed the decision of the state educational agency. The court expressed the additional concern that David will come into conflict with the law if he persists in a lack of self-control.

The evidence presented at both the administrative hearing and at trial showed that David has repeatedly and unrelentingly engaged in sexual and aggressive behavior directed at persons and animals. He has repeatedly grabbed at students' genitals, lain on the floor of his classroom attempting to look up female students' dresses, tried to touch female staff and students' breasts, and tried to embrace complete strangers. He has repeatedly attempted to engage in sexual play with neighborhood dogs. He has entered neighbors' homes uninvited and has refused to leave. In every evaluative setting, David was observed engaging in seriously inappropriate behavior of a sexual and aggressive nature.

The district court carefully reviewed the testimony of special educational professionals who had had experience with David. Except for his classroom teacher, each recounted and characterized David's behavior as extreme even when compared with that of students with similar cognitive functioning. For example, when David was evaluated at the Doctor Franklin Perkins School,

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his behavior substantially deteriorated over the day. He refused to follow directions, ran uncontrollably up and down a fire escape and into offices, and leaped repeatedly over a safe in the residential area. He exhibited sexually provocative behavior, such as...

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