JSK By and Through JK v. Hendry County School Bd.

• Decision Date: 20 September 1991
• Docket Number: No. 90-5793,90-5793
• Citation: 941 F.2d 1563
• Parties: , 69 Ed. Law Rep. 689 JSK, a minor, By and Through his next friends, JK and PGK, and JK and PGK, Individually, Plaintiffs-Appellants, v. HENDRY COUNTY SCHOOL BOARD and William Burke, Superintendent, Hendry County School Board, in his official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1563

941 F.2d 1563

60 USLW 2219, 69 Ed. Law Rep. 689

JSK, a minor, By and Through his next friends, JK and PGK and JK and PGK, Individually, Plaintiffs-Appellants, v. HENDRY COUNTY SCHOOL BOARD and William Burke Superintendent, Hendry County School Board, in his official capacity, Defendants-Appellees.

No. 90-5793.

United States Court of Appeals Eleventh Circuit.

Sept. 20, 1991.

Alice K. Nelson, Jodi Siegel, Southern Legal Counsel, Inc., Gainesville, Fla., for plaintiffs-appellants.

Gavin W. O'Brien, Bradenton, Fla., Phillip D. Parrish, Robert M. Klein, Stephens, Lynn, Klein & McNicholas, Miami, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and EDMONDSON, Circuit Judges, and GARZA ^*, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

In this case that was brought under the Education for All Handicapped Children Act (EAHCA), the parents of an autistic child appeal the district court's dismissal of their claim that a 1985 Individualized Education Program (IEP) prepared for their son by Florida's Hendry County School Board was inappropriate, and the district court's decision that a 1986 IEP satisfied EAHCA requirements. We VACATE the district court's judgment regarding the 1985 IEP and REMAND the 1985 IEP claim for further review, and we AFFIRM the district court's judgment on the 1986 IEP.

I. BACKGROUND

J.S.K., through his parents, J.K. and P.G.K., brought this suit against the Hendry County School Board (Board) under the Education for All Handicapped Children Act (EAHCA), 20 U.S.C. §§ 1400-1485. EAHCA guarantees that handicapped children will receive a "free appropriate public education," 20 U.S.C. § 1412(1), that is "tailored to the unique needs of the handicapped child by means of an 'individualized education plan' (IEP)." Hendrick Hudson Cent. School Dist. v. Rowley, 458 U.S. 176, 181, 102 S.Ct. 3034, 3038, 73 L.Ed.2d 690 (1982) (citing 20 U.S.C. § 1401(a). The IEP is

a written statement for each handicapped child developed in any meeting by a representative of the local education agency or an intermediate educational unit ..., the teacher, the parents ..., and, whenever appropriate, such child, which statement shall include--

(A) a statement of the present levels of educational performance of such child,

(B) a statement of annual goals, including short-term instructional objectives,

(C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs,

. . . . .

(E) the projected date for initiation and anticipated duration of such services, and

(F) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.

20 U.S.C. § 1401(a)(20).

EAHCA also provides important procedural rights. See, e.g., Doe v. Alabama State Dep't of Educ., 915 F.2d 651, 654 (11th Cir.1990). These procedural safeguards to the identification, evaluation and educational placement of the child include: access to all relevant records, 20 U.S.C. § 1415(b)(1)(A); the right to receive written notice of proposed changes in the IEP, id. § 1415(b)(1)(C); the opportunity to present complaints concerning any matter, id. § 1415(b)(1)(E); the right to an impartial due process hearing before the local and state educational agencies, id. § 1415(b)(2) & (c); and the right to bring a civil action either in a state court of competent jurisdiction or in a federal district court, id. § 1415(e)(2). J.S.K.'s parents brought this civil action after being dissatisfied with J.S.K.'s 1985 and 1986 IEPs and after failing to find relief in the state courts and administrative proceedings.

J.S.K., an autistic child who is now fifteen years old, was born in 1976. By his third birthday, J.S.K. had been diagnosed as mentally retarded, and by age five he showed a variety of behavioral problems, including a short attention span, repetitive speech patterns and difficulty establishing and maintaining eye contact. Between the ages of five and ten, J.S.K.'s aggressive and maladaptive behavior at home and in school increased dramatically; he cursed, destroyed property, bit, pulled hair and struck others. J.S.K. also engaged in self-injurious behavior, including head-banging and window-smashing. His relationship with his family was immature and his relationships with peers were nearly nonexistent. Apart from maladaptive and self-injurious behavior, J.S.K. also showed typical autistic behavior, including hand-flapping, toe-walking, rocking, staring at lights, reacting extremely to changes in routine and fixating on fingers and machines.

J.S.K. entered the Hendry County School System in 1981, when he was placed in the Clewiston Primary kindergarten class for trainable mentally handicapped children (TMH). His parents found this program inappropriate and unilaterally removed J.S.K. from Clewiston Primary, placing him in a private school for the remainder of the 1981-82 school year. J.S.K., however, returned in 1982 to Clewiston Primary, where he was placed in a first grade TMH class for the 1982-83 school year.

J.S.K.'s first IEP, which was written in 1983, continued his TMH classification for the 1983-84 school year. The IEP for the 1984-85 school year recommended continued placement at Clewiston Primary and placed J.S.K. in a resource room for children with emotional handicaps. During these years, J.S.K. received speech therapy.

The Florida Department of Health and Rehabilitative Services (HRS) evaluated J.S.K. in 1985 for the purpose of determining eligibility for noneducational developmental services. The HRS issued J.S.K.'s habilitation plan, which recommended an away-from-home residential facility and a behavior management plan to control his destructive and self-injurious behavior.

The 1985 IEP

J.S.K.'s IEP for the 1985-86 school year was written in 1985. This 1985 IEP placed J.S.K. in a school in LaBelle, which is approximately thirty-five miles from his home in Clewiston, and offered the following services: a profoundly handicapped class and program; speech class for severely emotionally disturbed (SED) students; SED class placement in a varying exceptionalities (VE) class; special transportation with an aide; an additional classroom aide to maximize instruction and to provide one-on-one supervision; an aide to accompany J.S.K. to music class; parent counseling at a mental health facility; and a mainstreaming opportunity with Grade 1 students.

J.S.K.'s parents rejected the 1985 IEP, claiming that J.S.K. needed residential placement to achieve his necessary educational goals. J.S.K.'s parents requested a due process hearing pursuant to Fla.Stat. § 230.23, Florida's EAHCA counterpart. The hearing was held by the Florida Department of Administrative Hearings (DOAH), which ultimately rejected the 1985 IEP and ordered residential placement. The DOAH's decision was appealed by the Board to the Florida District Court of Appeal for the Second Circuit, which concluded that the 1985 IEP was appropriate under EAHCA, Fla.Stat. § 230.23, and the United States Supreme Court's criteria from Rowley, 102 S.Ct. at 3051 (developing two-part test to evaluate IEPs: "First, has the State complied with the procedures set forth in the [EAHCA]? And second, is the [IEP] ... reasonably calculated to enable the child to receive educational benefits?"). In November 1986 the Florida appellate court accordingly reversed the DOAH decision and remanded the case to the hearing officer to approve the plan unless other factors were developed at the rehearing to show the plan was inappropriate.

The 1986 IEP

J.S.K.'s IEP for the 1986-87 school year was developed in May 1986. Like the 1985 IEP, the 1986 IEP placed J.S.K. in a LaBelle VE classroom, although with a different teacher. While the Board had access since 1984 to diagnoses indicating that J.S.K. was autistic, the 1986 IEP classified him as SED.

The 1986 IEP also classified J.S.K. as profoundly handicapped and identified his special needs: writing, reading, behavior, self care, social skills, study habits, gross motor training and language. The 1986 IEP included twenty-four hours per week of profoundly handicapped student programming and one hour per week of language impaired training. The IEP also included related services of individual counseling, parent counseling, special transportation services with an aide and a specially designed physical education class. The 1986 IEP provided three primary goals and objectives, under which there were many more particularized goals and objectives.

J.S.K.'s parents rejected the 1986 IEP and requested a due process hearing. In June 1987 the DOAH commenced a joint hearing to consider the remanded 1985 IEP and the recently rejected 1986 IEP. In separate orders, the hearing officer of the DOAH concluded that the 1985 IEP was appropriate and that the 1986 IEP passed the Rowley two-part test and provided J.S.K. with a "free appropriate public education"; the 1985 IEP remand order was issued in August 1987 and the 1986 IEP final order was issued in September 1987.

J.S.K.'s parents filed the current action in August 1988. Following extensive pretrial preparations and motions, the case was tried without a jury. At the close of J.S.K.'s case-in-chief, the Board moved for and was granted an involuntary dismissal of the 1985 IEP action; the trial judge concluded that he had to extend full faith and credit to the decision of the Florida District Court of Appeal for the Second Circuit and to the later DOAH rehearing that determined the 1985 IEP provided an appropriate education to J.S.K. The district court then entered judgment in favor of the Board on the 1986 IEP.

In its final order, the district court found and concluded among other things the following: that the district court had no...