Christopher W. v. Portsmouth School Committee

• Decision Date: 01 March 1989
• Docket Number: No. 88-1879,88-1879
• Parties: 54 Ed. Law Rep. 797 CHRISTOPHER W., et al., Plaintiffs, Appellants, v. PORTSMOUTH SCHOOL COMMITTEE, etc., et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1089

877 F.2d 1089

54 Ed. Law Rep. 797

CHRISTOPHER W., et al., Plaintiffs, Appellants, v. PORTSMOUTH SCHOOL COMMITTEE, etc., et al., Defendants, Appellees.

No. 88-1879.

United States Court of Appeals,

First Circuit.

Heard March 1, 1989.

Decided June 16, 1989.

As Amended June 20, 1989.

Patricia M. Beede, Newport, R.I., Rhode Island Legal Services, Inc., for plaintiffs, appellants.

Joseph B. Going, Newport, R.I., for defendants, appellees.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and FUSTE, ^* District Judge.

BOWNES, Circuit Judge.

Plaintiff-appellant Christopher W. appeals an order of the district court which held that he had not exhausted administrative remedies pursuant to the Education for All Handicapped Children Act prior to seeking relief in district court, and that therefore the court lacked jurisdiction to hear the case. We affirm.

I. BACKGROUND

Christopher W. was born January 14, 1970. He entered school in 1975, and began to manifest attendance and behavior problems. In 1978, he was evaluated as being learning disabled and requiring special education services in speech therapy. On October 10, 1979, the school's psychiatrist diagnosed Christopher W. as being school phobic and eligible for major behaviorally disordered support services. The child was placed in the Bradly Hospital Day (School) Program. In the 1981-1982 school year he was placed in the local school system in a self-contained setting at Portsmouth Middle School, where he continued to have tardiness and behavior problems. In the 1984-1985 and 1985-1986 school years, pursuant to an individualized education program (IEP) ¹ approved by his mother, Christopher W. was enrolled as a special education student in Portsmouth High School. He missed many classes due to absences and being late, and was frequently placed on suspension by the school authorities. The Portsmouth School Committee's policy is that if a student is absent 25% of the time from a class, the student is removed from the class and receives a failing grade for that course. In accord with this policy, Christopher W. received no academic credit for any of his courses. Christopher W.'s mother testified that she was never informed of her right to challenge the school's disciplinary decisions through an administrative process.

On May 15, 1985, a psychiatric evaluation of Christopher W. confirmed the previous diagnosis of 1979, that he was behaviorally disordered. On May 29, 1985, a multi-disciplinary team (MDT) met and recommended continued placement in a self-contained classroom; it did not determine if there was a relationship between the misbehavior for which he was being disciplined, and his handicapping condition.

On June 7, 1985, Christopher W. filed a complaint with the Rhode Island Department of Education pursuant to the Education Division General Administrative Regulations (EDGAR), 34 C.F.R. Sec. 76.780, alleging noncompliance with federal and state regulations regarding procedural safeguards. ² On November 8, 1985, the Rhode Island Department of Education notified the Superintendent of Portsmouth Schools that the disciplinary actions taken against Christopher W. violated the law because the MDT had not met to determine if there was a causal relationship between the misbehavior for which he was being disciplined and his handicap, and if his educational placement was appropriate. After yet another suspension of Christopher W. by the school on November 29, 1985, a letter was sent by the Rhode Island Commissioner of Education to the Portsmouth School Committee stating:

[I]t has come to my attention that Christopher W. has again been suspended from school without benefit of evaluation and due process proceedings available to handicapped students. If this is the case, the suspension must be stayed pending the outcome of the special education evaluation process and the subsequent due process review of this evaluation under the Education of the Handicapped Act.

The school made no written response to this letter, but out-of-school suspensions were replaced by in-school detentions.

On December 3, 1985, the Superintendent of Schools responded to the EDGAR complaint that had been filed on June 7, 1985, by forwarding to the Rhode Island Department of Education a November 27, 1985 letter from Mr. William Hilton, Regional Administrator of Special Education. The letter stated: that the MDT had met on November 18, 1985; that it had determined that Christopher W. was behaviorally disordered, but that "not all of his inappropriate behavior [was] due to his handicapping condition;" and that the MDT had decided upon a course of action for Christopher W., which included placement in another school, tutoring, a psychiatric evaluation, and counselling. Christopher W. argues that these procedures violated 34 C.F.R. Sec. 300.552 ³ because the placement was decided before the evaluations were made and IEP determined, rather than being based on the evaluations and the IEP.

In 1986, Christopher W. continued to experience attendance problems in school. On February 6, 1986, the Rhode Island Department of Education sent a letter to the Portsmouth School Committee stating:

It appears that Christopher's handicapping condition contributes to his inability to attend school on a regular and timely basis. The fact that he received no credit last year in any subject areas because he missed 25% of those courses appears to be contrary to Sec. 504 of the Rehabilitation Act of 1973.... [A] full evaluation of Christopher, to include a vocational assessment, should take place as soon as possible for the purpose of identifying an appropriate educational program.

Several meetings were held between the school and Christopher W. in the spring of 1986, but no IEP was agreed upon. Christopher W. received no academic credit for the 1985-1986 school year, because of his absences. The Portsmouth School Committee refused to implement a behavioral management program which had been developed by Dr. Steven Imber, a psychologist, to alleviate Christopher W.'s attendance and behavior problems. In June 1987, the school committee arranged a residential placement for Christopher W. at Grove School to begin in September, but Christopher W. voluntarily left that school on September 17, 1987. On March 28, 1988, an IEP was agreed upon for Christopher W. to attend Middletown High School, but at the end of April, 1988, Christopher W. left that school also. He has since attempted to re-enroll at Portsmouth High School without success. Christopher W. is currently not attending any school.

Christopher W. filed a complaint on December 6, 1985, in district court, under the Education for All Handicapped Children Act (20 U.S.C. Sec. 1400 et seq.), Sec. 504 of the Rehabilitation Act of 1973 (29 U.S.C. Sec. 794), and the Civil Rights Act (42 U.S.C. Sec. 1983). The complaint requested: that injunctive relief be granted prohibiting the Portsmouth School Committee from imposing any further disciplinary sanctions against Christopher W. without the procedural safeguards mandated by the Education for All Handicapped Children Act; that the Portsmouth School Committee's policy of denying academic credit for absences exceeding 25% of class meetings without considering how a student's handicapping condition affects his attendance, not be applied to Christopher W.; that Christopher W. receive the academic credits he had earned and would have received but for this policy; and that any reference to suspensions be expunged from his permanent school record. Christopher W.'s counsel stipulated that except for the EDGAR complaint that had been filed on June 7, 1985, Christopher W. had not pursued any other administrative remedies.

On October 20, 1986, Christopher W. filed a motion for Summary Judgment, claiming there were no material facts in dispute. On November 3, 1986, the defendants filed a Motion to Dismiss or for Summary Judgment, asserting failure to state a claim upon which relief could be granted and lack of jurisdiction in that plaintiff failed to exhaust administrative remedies. The district court did not rule on these pretrial motions. The case was heard on May 3, 4 and 6, 1988.

On July 8, 1988, after hearing Christopher W.'s witnesses, the district court granted the defendant's motions, and sua sponte, a motion for directed verdict. In a bench decision, the district court concluded that the question of whether a student's absences are caused by his handicap, generally requires findings by the state and the generation of a record, before a federal court can review the issue. The court noted that exceptions to such a procedure exist where it would be futile, e.g. where the state agency itself prevented administrative remedies from being exhausted. The court concluded, however, that failure to notify the parent, particularly where parent's counsel had been notified, was not sufficient to invoke an exception. The court held that Christopher W. had failed to pursue his administrative remedies with the State Department of Education "to a conclusion that I can pass on at this point in time." Christopher W. has appealed this judgment.

II. JURISDICTION

A. Exhaustion Requirement

The Education for All Handicapped Children's Act (EHA), provides procedural safeguards for a handicapped child and his or her parents with respect to the provision of a free appropriate public education. 20 U.S.C. Sec. 1415. These include: an opportunity for the parents to examine all relevant records with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child; an opportunity to obtain an independent educational evaluation of the child; written prior notice to the parents of any proposals or refusals to change an educational placement; and an opportunity to present complaints relating to such educational placement. 20 U.S.C. Sec. 1415(b)(1). Whenever a...