Alamo Heights Independent School Dist. v. State Bd. of Educ.

• Decision Date: 29 May 1986
• Docket Number: No. 84-1762,84-1762
• Citation: 790 F.2d 1153
• Parties: 32 Ed. Law Rep. 445 ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT, Plaintiff-Appellant-Cross-Appellee, v. STATE BOARD OF EDUCATION, et al., Defendants-Appellees, Mrs. Beverly G. & Steven G., Intervenors-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1153

790 F.2d 1153

32 Ed. Law Rep. 445

ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT, Plaintiff-Appellant-Cross-Appellee, v. STATE BOARD OF EDUCATION, et al., Defendants-Appellees, Mrs. Beverly G. & Steven G., Intervenors-Appellees-Cross-Appellants.

No. 84-1762.

United States Court of Appeals, Fifth Circuit.

May 29, 1986.

Randolph P. Tower, Clemens, Spencer, Welmakfr & Finck, Jeffrey I. Kavy, San Antonio, Tex., for plaintiff-appellant-cross-appellee.

Susan Feller Heiligenthal, Texas Assoc. of School Boards, John S. Aldridge, Austin, Tex., for amicus Texas Association of School Boards, et al.

Reed Martin, Atty., Austin, Tex., for amicus-Advocacy, Inc.

Jim Mattox, Atty. Gen., Kevin O'Hanlon, Austin, Tex., for State Bd., etc. & Comm. of Educ., etc.

Donald S. Bayne, Johnson & Christopher, Henry W. Christopher, Jr., San Antonio, Tex., for Beverly G. & Steven G.

Appeals from the United States District Court for the Western District of Texas.

Before GEE, RUBIN and DAVIS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The primary issues presented by this appeal are whether, under the Education for All Handicapped Children Act (EAHCA), ¹ Steven G., a multiply handicapped child, is entitled to educational services beyond the usual 180-day school year and whether after-school transportation of Steven a short distance out of his school district to his only available custodian is a "related service" required by the EAHCA. The district court, after a de novo review of a magistrate's findings of fact and conclusions of law, concluded that (1) Steven G. would experience significant regression without some sort of summer program, and that, therefore, the School District was required to include in Steven's "individualized education program" (IEP) a provision for structured summer services; and (2) the School District was required to provide out-of-district transportation for Steven from his educational placement so that his working mother could rely on a custodian to care for Steven until she could pick him up. Because the court's findings of fact are supported by the record and its application of the EAHCA was correct, we affirm its judgment.

I.

Steven G. was born July 30, 1972. He lives with his mother, Beverly G., within the boundaries of the Alamo Heights Independent School District. Steven suffers from cerebral dysplasia or hyperplasia, which is an abnormal development of the brain. Steven's hands and face are deformed. He has an unusual laxity in his joints, an uncoordinated gaze, a significant lack of muscle tone, and can walk only with assistance. He has been diagnosed as severely mentally retarded, has frequent tantrums, and cannot communicate by oral expression, although he does communicate by means of pointing to pictures and symbols on a "communication board." Because of Steven's mental and physical handicaps, he is not, in education terminology, considered "educable," but rather is "trainable," that is, he can be taught to communicate with others and to take care of his physical needs.

From September 1975 to May 1977, Steven attended a Head Start program which operated on a twelve-month basis. In September 1977, he was enrolled in a half-day program at the Cerebral Palsy Center and then in September 1978 he was enrolled in the first grade in an elementary school in the Northside School District. In the summer of 1979, when Steven was seven, his mother moved into the Alamo Heights Independent School District. That school year Steven attended a special education program at Cambridge Elementary School. In the late spring of 1980, Mrs. G. requested that the Alamo Heights Independent School District provide summer services for Steven.

For seven years prior to 1980 the Alamo Heights School District had offered a summer program to all special education students who were moderately or severely handicapped. The decision to offer the program was made on the administrative level, as a matter of district policy, and any moderate to severely handicapped child was eligible to attend. In the summer of 1980, when Steven would have been eligible for this program, however, the School District changed its policy and offered only a half-day one-month program, without providing transportation. The decision to curtail the summer program was based on its cost and the apparent lack of interest on the part of teachers and eligible students in previous years.

No students from Steven's multiply handicapped class took advantage of the 1980 summer program, nor did Steven. It is not clear, however, whether Mrs. G. was not told of the program or whether the lack of transportation and the hours made it impossible for Steven to attend. During that summer, Steven stayed with a baby-sitter who had no training in special education. There was testimony that Steven's behavior deteriorated that summer and that he suffered regression in his ability to stand, point, and feed himself.

The next year Mrs. G.'s request for summer services and transportation was refused by school officials, without consultation with Steven's Admission, Review and Dismissal (ARD) Committee or with his teacher. The only caretaker Mrs. G. could find for Steven lived a mile outside of the district boundary, and even during the school year, the School District would not provide out-of-district transportation.

Mrs. G. then employed legal counsel and appealed the denial of services to the Texas Education Agency. The administrative hearing officer issued an interim order requesting a meeting of Steven's ARD Committee to consider the issue of summer services. The ARD Committee met and agreed only to provide some adaptive equipment for Steven and to request consultative services from the state during the summer of 1981. On August 21, 1981, the hearing officer issued a "proposal for decision" in which he found that the School District was required to provide summer services and related transportation services during 1981, and also required the School District to make a decision regarding summer services for 1982 by March of 1982.

After various motions, an administrative appeal to the State Commissioner of Education, and a change in the required administrative procedures, the hearing officer, in December 1982, issued an order adopting the decision of the Commissioner of Education as the final order of the case. This order required the School District to provide Steven with full summer services and transportation for all succeeding summers. In February 1982, the School District filed its complaint in federal district court.

In the interim, the School District did not provide summer services comparable to those provided Steven during the regular school year. In the summer of 1981, Steven was enrolled at The Learning Tree, a child care center in San Antonio. Some adaptive equipment was provided by the School District, and state regional consultants provided indirect speech, occupational and physical therapy services through the Learning Tree staff. The evidence proffered suggested that during the 1981 summer Steven advanced in his ability to communicate by using his "communication boards" and in his social and feeding skills. However, the evidence suggested that, because Steven lacked structured physical training, he regressed in his development of motor skills and mobility.

Steven returned to Cambridge in the fall of 1981, and on November 9, 1981, Steven's ARD Committee again met. After some discussion, the Committee recommended that Steven receive out-of-district transportation. The School District did not act on that recommendation, and did not provide transportation.

After the School District had filed its suit in district court, Steven's ARD Committee met again on April 5, 1982. The meeting began with a discussion of Steven's progress, and eventually shifted to the subject of institutionalization. The ARD Committee voted, with Mrs. G. as the lone dissenter, to recommend that Steven be placed in an institution with immediate placement in an intermediate care facility. Mrs. G. then left the meeting, and the issue of summer services for 1982 was not considered. On May 26, 1982, however, the School District filed a supplemental complaint in the district court alleging that the ARD Committee recommendation for institutionalization mooted the case, and that it should, therefore, be dismissed. The district court rejected that argument.

In the summer of 1982, Mrs. G. arranged for Steven's placement at the Warm Springs Rehabilitation Hospital in Gonzalez, Texas, from the first week of June until the third week in July. He was given an educational program with a special education teacher, and received physical, occupational, and speech therapy twice each day. While at Warm Springs, Steven developed the ability to walk approximately thirty feet between parallel bars and could walk perhaps twenty feet in a "walker." He also made substantial progress in his communication skills.

After trial, in 1984, the district court rendered its final judgment for Mrs. G. and Steven. The court found that the School District had a policy of denying summer services to handicapped children regardless of their needs and issued an injunction against the further implementation of such a policy. The district court also made the following finding of fact:

Without some kind of continuous, structured educational program during the summer months, Steven G. will regress in skills learned and knowledge gained in the previous 180-day academic year. Although the Court has insufficient evidence to conclude that Steven G. would definitely suffer severe regression after a summer without such a program, neither can it conclude that he would not and there is evidence that shows that Steven G. has suffered more than the loss of skills in isolated instances, and that he has required recoupment time of more than several weeks after summers without continuous, structured programming. A summer without...