Barnett by Barnett v. Fairfax County School Bd.
| Decision Date | 28 January 1991 |
| Docket Number | 89-2467,Nos. 89-2454,s. 89-2454 |
| Citation | 927 F.2d 146 |
| Court | U.S. Court of Appeals — Fourth Circuit |
| Parties | 66 Ed. Law Rep. 64 Michael W. BARNETT, by his parents and next friends James E. and Cynthia A. BARNETT, James E. Barnett, Cynthia A. Barnett, Plaintiffs-Appellants, v. FAIRFAX COUNTY SCHOOL BOARD, Defendant-Appellee, The Association for Retarded Citizens of the United States, the Paralyzed Veterans of America, United Cerebral Palsy Associations, Incorporated, National Council on Independent Living, the Disability Rights Education and Defense Fund, Incorporated, Amici Curiae. Michael W. BARNETT, by his parents and next friends James E. and Cynthia A. BARNETT, James E. Barnett, Cynthia A. Barnett, Plaintiffs-Appellants, v. FAIRFAX COUNTY SCHOOL BOARD, Defendant-Appellee, The Association for Retarded Citizens of the United States, the Paralyzed Veterans of America, United Cerebral Palsy Associations, Incorporated, National Council on Independent Living, the Disability Rights Education and Defense Fund, Incorporated, Advocacy, Incorporated, Schools are for Everyone, the Association for Persons with Severe Handicaps, the Virginia Tash, Amici Curiae. |
Timothy M. Cook, Nat. Disability Action Center, argued (Beth Pepper, Ira Burnim, Mental Health Law Project, Washington, D.C., on brief), for plaintiffs-appellants.
Thomas Hohn Cawley, argued (John F. Cafferky, Grady K. Carlson, Hunton & Williams, Fairfax, Va., on brief), for defendant-appellee.
Mark S. Partin, Advocacy, Inc., Austin, Tex., for amici curiae Advocacy, Inc., Schools Are for Everyone (SAFE), The Ass'n for Persons With Severe Handicaps (TASH), The Virginia TASH.
Anne D. Smith, White & Case, Washington, D.C., for amici curiae The Ass'n for Retarded Citizens of the U.S., The Paralyzed Veterans of America, United Cerebral Palsy Associations, Inc., Nat. Council of Independent Living, The Disability Rights Educ., and Defense Fund, Inc.
Kathleen Shepard Mehfoud, Mari Maginn Hommel, Hazel, Thomas, Fiske, Weiner, Beckhorn & Hanes, P.C., Richmond, Va., for amicus curiae The Virginia School Boards Ass'n.
Before SPROUSE and CHAPMAN, Circuit Judges, and NICKERSON, United States District Judge for the District of Maryland, sitting by designation.
Michael Barnett and his parents 1 appeal from the district court's order granting the Fairfax County School Board's motions to strike plaintiffs' claims for monetary damages and a jury, 721 F.Supp. 755, and the court's decision that the Board provided Michael with a free appropriate public education in the least restrictive environment at Annandale High School, as required by the Education of the Handicapped Act, as amended, 20 U.S.C. Secs. 1400-1461 (1982) ("EHA" or the "Act"), and in accordance with Section 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794 ("Section 504") 721 F.Supp. 757. We affirm the district court's ruling that the Board provided Michael with an appropriate education. We need not address the jury or damages issues.
Michael Barnett is a profoundly hearing-impaired high school student. He is eligible for special education as a "hearing impaired" student and has been educated in programs offered by the Fairfax County school system for hearing-impaired students since he was two years old. Fairfax County offers hearing-impaired students a choice of three hearing-impaired programs, including a "cued speech" program. 2 Fairfax County is one of only five local school systems to offer three different methodologies for educating hearing-impaired students, and one of the very few school districts to offer cued speech.
Since first grade, Michael has received special education utilizing a centralized cued speech program. This program is a comprehensive integrated program which runs from preschool through high school and involves interpreter services, speech and language therapy and resource teacher assistance. The high-school level cued speech program is located at Annandale High School ("Annandale").
Michael has thrived in the cued speech program. With the aid of a cued speech interpreter and other support services, Michael has been increasingly mainstreamed into regular classes. During Michael's freshman and sophomore years, Michael attended Annandale, and with the assistance of cued speech interpreters, he was fully mainstreamed with nonhandicapped students in all of his academic classes. Michael also received daily support from a certified teacher of the hearing impaired, as well as speech and language therapy several times per week. Michael excelled at Annandale academically, and he participated in extracurricular activities as a member of the Annandale baseball and basketball teams.
Michael and his parents concede that the cued speech program at Annandale provides Michael with an appropriate and high quality program. Plaintiffs, however, object to the location of the cued speech program at Annandale rather than at Michael's base school, West Springfield High School ("West Springfield"). Since 1987, plaintiffs have requested that the Fairfax County School Board establish the cued speech program at Michael's base school. Because Annandale is approximately five miles farther from Michael's home than his base school, Michael's placement at Annandale required additional travel time. 3
The Board denied Michael's initial request to duplicate the program at West Springfield. Michael and his parents appealed this decision through the administrative process provided by the EHA. An administrative hearing was held in December 1987 and a local hearing officer issued a decision on June 16, 1988, requiring the Board to provide Michael with cued speech services at West Springfield. The Board appealed this decision to a state administrative hearing officer. After conducting another hearing, the state hearing officer ruled that the Board was not required to duplicate at West Springfield the cued speech services offered at Annandale.
Michael and his parents then filed this action in the district court seeking an injunction requiring the Board to provide cued speech services for Michael at West Springfield and requesting compensatory damages in excess of $100,000. Before trial, the court granted the Board's motions to strike the plaintiffs' claims for monetary damages and a jury. After a bench trial, the court entered judgment in favor of the Board upholding the state hearing officer's decision that the Board's policy of providing high school cued speech services only at Annandale was appropriate and that Michael should attend school there. The court found that, in light of the scarcity of highly-trained personnel and resources, the small number of students utilizing the cued speech program, and the educational advantages of centralizing the program at Annandale, the Board had fulfilled the EHA requirements by providing Michael with a cued speech program at Annandale. The court also ruled that the Board did not discriminate against Michael by placing him at Annandale. The court then entered judgment in favor of the Board and dismissed the complaint.
On September 5, 1989, plaintiffs withdrew Michael from the cued speech program at Annandale. Michael currently attends West Springfield where he receives private interpreter services.
On appeal, plaintiffs argue that the district court erroneously held that the Board provided Michael with a free appropriate educational program at Annandale and that the Board was not required to duplicate this program for Michael at West Springfield. After a careful review of the record, we find that the Board fully complied with the EHA's procedural requirements and we affirm the district court's decision that the Board offered Michael an appropriate program at Annandale. We also find that neither the EHA nor Section 504 required the Board to duplicate the cued speech program for Michael alone at his community school. We first address plaintiffs' arguments under the EHA and then we turn to Section 504.
The EHA requires that all states receiving federal assistance ensure that each disabled student in the state receive a "free appropriate public education." 20 U.S.C. Sec. 1412(1) (1982). In pertinent part, the Act defines a free appropriate public education as:
special education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge, ... [and] (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title.
Id. at Sec. 1401(18). The educational program offered by the state must be tailored to the unique needs of the handicapped child by means of an "individualized education program" ("IEP"). Id. at Sec. 1414(a)(5). The IEP sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives. Id. at Sec. 1401(19). The IEP is prepared at a meeting between a representative of the local school district, the child's teacher, the parents or guardians, and whenever appropriate, the disabled child. The IEP must be reviewed and, where necessary, revised at least once a year in order to ensure that local agencies tailor the statutorily required "free appropriate public education to each child's unique needs." Id. at Sec. 1414(a)(5).
Although the state must place a child in "the least restrictive environment," 34 C.F.R. Sec. 300.552(d), the Act and regulations do not establish specific guidelines defining the IEP's substantive content. The Act, however, requires that handicapped children be educated in regular classrooms with nonhandicapped children to the greatest extent possible. 20 U.S.C. Sec. 1412(5)(B). Educating a handicapped child in regular classrooms with nonhandicapped children...
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