853 F.2d 256 (4th Cir. 1988), 87-3640, Spielberg by Spielberg v. Henrico County Public Schools

Docket Nº:87-3640, 87-3643.
Citation:853 F.2d 256
Party Name:Jonathan SPIELBERG, a minor, by his parents, Howard and Susan SPIELBERG, as his next friend; Howard Spielberg; Susan Spielberg, Plaintiffs-Appellees, v. HENRICO COUNTY PUBLIC SCHOOLS; Malcolm M. Christian, Chairman, Henrico County School Board; William C. Bosher, Jr., Superintendent, Henrico County Public Schools; Morton Bradman, Assistant Superint
Case Date:August 05, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 256

853 F.2d 256 (4th Cir. 1988)

Jonathan SPIELBERG, a minor, by his parents, Howard and

Susan SPIELBERG, as his next friend; Howard

Spielberg; Susan Spielberg, Plaintiffs-Appellees,

v.

HENRICO COUNTY PUBLIC SCHOOLS; Malcolm M. Christian,

Chairman, Henrico County School Board; William C. Bosher,

Jr., Superintendent, Henrico County Public Schools; Morton

Bradman, Assistant Superintendent for Instructional Support

Services, Henrico County Public Schools; Joann Marchant,

Principal, Virginia Randolph Special Education Center,

Henrico County Public Schools; Patricia Martin, Special

Education Teacher, Virginia Randolph Special Education

Center, Henrico County Public Schools; Gwendolyn Whiting,

Home Support Trainer, Virginia Randolph Special Education

Center; Dorothy Sugarman, Social Worker, Henrico County

Public Schools; School Psychologist, Henrico County Public

Schools, Defendants-Appellants.

Jonathan SPIELBERG, a minor, by his parents, Howard and

Susan SPIELBERG, as his next friend; Howard

Spielberg; Susan Spielberg, Plaintiffs-Appellants,

v.

HENRICO COUNTY PUBLIC SCHOOLS; Malcolm M. Christian,

Chairman, Henrico County School Board; William C. Bosher,

Jr., Superintendent, Henrico County Public Schools; Morton

Bradman; Assistant Superintendent for Instructional Support

Services, Henrico County Public Schools; Joann Marchant,

Principal, Virginia Randolph Special Education Center,

Henrico County Public Schools; Patricia Martin, Special

Education Teacher, Virginia Randolph Special Education

Center, Henrico County Public Schools; Gwendolyn Whiting,

Home Support Trainer, Virginia Randolph Special Education

Center; Dorothy Sugarman, Social Worker, Henrico County

Public Schools; Social Worker, Henrico County Public

Schools; School Psychologist, Henrico County Public

Schools, Defendants-Appellees.

Nos. 87-3640, 87-3643.

United States Court of Appeals, Fourth Circuit

August 5, 1988

Argued April 6, 1988.

Rehearing and Rehearing In Banc Denied Sept. 22, 1988.

Page 257

Joseph T. Tokarz, II, Richmond, Va., for defendants-appellants.

Thomas Franklin Guernsey, Richmond, Va., for plaintiffs-appellees.

Before WIDENER, ERVIN, and WILKINS, Circuit Judges.

ERVIN, Circuit Judge:

Jonathan Spielberg is a severely retarded nineteen year old resident of Henrico County, Virginia. Since 1977, the Henrico County Public Schools have paid the full cost of his education at the Melmark School ("Melmark"), a residential facility in Pennsylvania, under the Education of All Handicapped Children Act ("EHA"), 20 U.S.C. Sec. 1401, et seq. In March 1985, the county initiated a reevaluation of Jonathan's placement which concluded that he could be educated at a local school. His parents appealed that decision, seeking to continue his institutional placement. The district court reversed the state administrative decision, first finding that the county violated EHA procedures, and on reconsideration finding that Jonathan requires institutional placement. We affirm based on procedural violations of the EHA.

I.

Jonathan Spielberg possesses the functional skills of an eighteen month old child. His capabilities are extremely limited, and his individualized education programs ("IEP") at Melmark have concentrated on survival skills, such as toilet training. At Melmark, where he continues to study under the "stay put" provision of the EHA, 20 U.S.C. Sec. 1415(e)(3), he goes to school throughout the year and receives after school and evening care and training.

The 1985 reevaluation began only nine months after a regular triennial evaluation which continued Jonathan's Melmark placement. From the beginning, county officials focused on a new placement at Virginia Randolph Special Education Center ("Randolph"), a public facility in Henrico County. After a series of letters and meetings between school officials and the Spielbergs, a new IEP was drawn up providing for Jonathan to attend Randolph during the day while living at home. He would attend school 5- 1/2 hours per day during a nine month school year and four hours daily during a six week summer session. After school activities would be home-based, involving either his parents or a hired caretaker, with training available for them from a trainer provided by the school.

The Spielbergs first appealed the placement decision administratively. The local hearing officer concluded that there were no procedural violations of the EHA, and that the new IEP was appropriate, but that Jonathan required residential placement at Melmark. The state reviewing officer affirmed on the procedural compliance issue, but reversed on the placement issue, finding Randolph placement to be appropriate.

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The Spielbergs appealed this decision to the district court under 20 U.S.C. Sec. 1415(e)(2).

The district court initially found that the school system violated EHA procedure by determining appropriate placement before developing an IEP. See 34 C.F.R. Sec. 300.552. The court based its finding on a series of letters written before the IEP meeting held in November, 1985, which focused on a change from Melmark to Randolph. Based on the procedural violation, the court ordered the continuation of Melmark placement.

The court subsequently vacated its initial decision in light of 34 C.F.R. Sec. 300.347 and Patterson C. v. Board of Education of Prince George's County, No. M-85-3948 (D.Md. Sept. 23, 1986), aff'd, 818 F.2d 29 (4th Cir.1987) (per curiam). In Patterson C., the courts affirmed an IEP developed after placement in a private school was decided. Section 300.347 specifically calls for a chosen private school to participate in IEP development. After vacating his earlier decision, however, Judge Merhige reached the...

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