Andersen by Andersen v. District of Columbia, s. 88-7150

• Decision Date: 23 June 1989
• Docket Number: 88-7159 and 88-7160,Nos. 88-7150,88-7158,s. 88-7150
• Citation: 877 F.2d 1018,278 U.S.App. D.C. 230
• Parties: , 278 U.S.App.D.C. 230, 54 Ed. Law Rep. 784 Joshua ANDERSEN, by his parents and next friends William T. and Roxanna N. ANDERSEN, et al., Appellants v. DISTRICT OF COLUMBIA, a municipal corporation, et al. David McADOO, by his next friend Harriette McADOO, and Harriette E. McAdoo, Appellants v. Andrew JENKINS, Superintendent, D.C. Public Schools and the District of Columbia. Jason McMULLEN, by his parents and next friends Edward and Karen McMULLEN, et al., Appellants v. Andrew JENKINS, Superintendent, D.C. Public Schools and the District of Columbia. James BOWERS, by his mother and next friend Marva BOWERS, et al., Appellants v. Andrew JENKINS, Superintendent, D.C. Public Schools, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1018

877 F.2d 1018

103 A.L.R.Fed. 105, 278 U.S.App.D.C. 230,

54 Ed. Law Rep. 784

Joshua ANDERSEN, by his parents and next friends William T.

and Roxanna N. ANDERSEN, et al., Appellants v. DISTRICT OF COLUMBIA, a municipal corporation, et al.

David McADOO, by his next friend Harriette McADOO, and Harriette E. McAdoo, Appellants v. Andrew JENKINS, Superintendent, D.C. Public Schools and the

District of Columbia.

Jason McMULLEN, by his parents and next friends Edward and Karen McMULLEN, et al., Appellants v. Andrew JENKINS, Superintendent, D.C. Public Schools and the

District of Columbia.

James BOWERS, by his mother and next friend Marva BOWERS, et

al., Appellants v. Andrew JENKINS, Superintendent, D.C. Public Schools, et al.

Nos. 88-7150, 88-7158, 88-7159 and 88-7160.

United States Court of Appeals District of Columbia Circuit.

Argued April 14, 1989.

Decided June 23, 1989.

Appeals from the United States District Court for the District of Columbia (Civil Action Nos. 87-00297, 86-00922, 87-00055, and 87-00139).

Michael J. Eig, with whom Matthew B. Bogin and Margaret A. Kohn were on the brief, for appellants in Nos. 88-7150, 88-7158, 88-7159 and 88-7161.

Martin B. White, Asst. Corp. Counsel, Washington, Dist. of Columbia, for appellees in Nos. 88-7150 and 88-7159.

Susan S. McDonald, Asst. Corp. Counsel, Washington, Dist. of Columbia, for appellees in Nos. 88-7158 and 88-7161.

Frederick D. Cooke, Jr., Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, Dist. of Columbia, were also on the brief, for appellees in Nos. 88-7150, 88-7158, 88-7159 and 88-7161.

Before RUTH BADER GINSBURG, BUCKLEY and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

To be eligible to receive federal grants under the Education for All Handicapped Children Act, 20 U.S.C. Secs. 1400 et seq. (1982 & Supp.1986), a state or the District must offer a "free [and] appropriate public education" for all handicapped students. 20 U.S.C. Sec. 1412(1). Unless it meets the obligation by providing appropriate public education, it must bear the expense of a private facility. Id. at Sec. 1413(a)(4)(B); see also School Comm. of Town of Burlington v. Department of Educ. of Massachusetts, 471 U.S. 359, 369-71, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); 34 C.F.R. Sec. 300.403(a) (1988); D.C.Mun.Regs. tit. 5, Sec. 3015.1 (1987). The appellants, four children with learning disabilities and their parents, seek reimbursement from the District of Columbia Public Schools for the expenses of the children's education at private specialized schools. Before a hearing officer and the district court they claimed unsuccessfully that the educational placements offered by the District for the years in primary dispute were not "appropriate" within the meaning of the Act. On these issues we affirm the district court for substantially the reasons it stated; we find nothing in the record to convince us that the plaintiffs successfully shouldered the burden of persuading the court that the hearing officers were wrong. See Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C.Cir.1988). In this opinion we address several legal theories (raised in most instances by all or nearly all the appellants) under which they might secure reimbursement from the District regardless of the substantive adequacy of the education it offered.

Joshua Andersen, James Bowers, Jason McMullen and David McAdoo are learning disabled children whose ages range from eleven to eighteen years; all parties agree that they meet the EAHCA's definition of "handicapped." See 20 U.S.C. Sec. 1401(1). Andersen, Bowers and McMullen involve disputes over the appropriateness of DCPS's proposed placements for the 1986-87 school year; the McAdoo case involves a similar dispute concerning the placement proposed for 1985-86. The facts of David McAdoo's case differ slightly from those in the other three cases, so we will detail his case after summarizing the facts common to the others.

For school year 1986-87 the school district proposed that each of the three be placed in public schools for learning disabled children--Buchanan Learning Center, a secondary school, for Joshua Andersen and James Bowers, and Prospect Learning Center, an elementary school, for Jason McMullen. The parents rejected the school district's proposed placements and enrolled their children in private facilities providing full-time special education programs. The two older boys were enrolled in Chelsea School, a private high school in Silver Spring, Maryland, and Jason McMullen continued at the Lab School of Washington, a private school for learning disabled children, which he had attended for several months before his parents requested placement by the school district.

The parents requested hearings under the Act, known as "due process hearings," to contest the appropriateness of DCPS's proposed placements. See 20 U.S.C. Sec. 1415 (describing the procedural requirements of the EAHCA); 34 C.F.R. Secs. 300.506 et seq. (regulatory requirements); D.C.Mun.Regs. tit. 5, Sec. 3022 (same). They prevailed, and the school district was ordered to pay the children's tuition at the private school programs for varying periods of time. Later DCPS again proposed placements at the same public schools for the children; on this round the hearing officer found them appropriate. The plaintiffs appealed to the district court, which upheld the administrative decisions. See Andersen v. District of Columbia, No. 87-0297, 1988 WL 33506 (D.D.C. Mar. 30, 1988); Bowers v. McKenzie, No. 87-0139, 1988 WL 28354 (D.D.C. Mar. 16, 1988); McMullen v. McKenzie, No. 87-0055, 1988 WL 60356 (D.D.C. Feb. 18, 1988). The district court also denied plaintiffs' post-trial motions that it require DCPS to fund the children's private education for the years after 1986-87 and that it issue "stay-put" injunctions under 20 U.S.C. Sec. 1415(e)(3) that would have allowed the students to remain at DCPS's expense in their "current educational placements," the private schools, pending review by this court. See Andersen v. District of Columbia, No. 87-0297 (D.D.C. June 9, 1988); Bowers v. McKenzie, No. 87-0139, 1988 WL 63067 (D.D.C. June 7, 1988); McMullen v. McKenzie, No. 87-0055, 1988 WL 60356 (D.D.C. June 2, 1988).

David McAdoo's case differs in that DCPS has never borne the expense of his private education. In March 1985 it proposed a part-time special education program at its Lafayette Elementary School for the remainder of the 1984-85 academic year; the McAdoos requested a hearing. On July 23, 1985, DCPS proposed a full-time program at Buchanan for 1985-86. Again, the parents requested a hearing; in the fall semester of 1985, before the hearing, David began attending the Lab School of Washington.

In October 1985 a hearing officer determined that Buchanan was an appropriate placement for David. The McAdoos appealed this decision to the district court, which affirmed the administrative ruling. McAdoo v. McKenzie, No. 86-0922, 1988 WL 9592 (D.D.C. Jan. 28, 1988). The plaintiffs filed post-trial motions similar to those of the other families; they were denied. McAdoo v. McKenzie, No. 86-0922, 1988 WL 60367 (D.D.C. May 31, 1988).

Arguments Abandoned in the Light of Leonard v. McKenzie

At oral argument, the plaintiffs withdrew several of their arguments in light of our recent decision in Leonard v. McKenzie, 869 F.2d 1558 (D.C.Cir.1989). First, the McMullens had argued that Prospect could not be appropriate because it did not provide services and programs with labels that corresponded to the terminology used in Jason's "Individualized Educational Program" or "IEP," a statement required by the Act and intended to state a handi capped child's educational needs and the instruction and services designed to meet them. See School Comm. of Town of Burlington, 471 U.S. at 368, 105 S.Ct. at 2001. Under Leonard, the fact that the school district has subscribed to an IEP fashioned on the forms of a private school and expressed in its curricular jargon does not render equivalent services provided by a public school inappropriate. See Leonard, 869 F.2d at 1563. The hearing officer need only find that the public school program meets the underlying educational objectives of the IEP, as he did here.

Second, all the plaintiffs cited procedural errors committed by the school district relating to academic years prior to the ones at issue here. Leonard makes clear that such errors are irrelevant. Id. at 1562. While one can imagine a case where such an error might affect the substantive outcome for a later year, no one claimed such an impact here.

Third, all plaintiffs, except those in Bowers, contended that certain procedural errors of DCPS relating to the academic years at issue automatically entitled them to reimbursement for their children's private education, even though they offered no reason to believe the errors prejudicially affected the district's placement proposals or the final administrative decisions. In support of this claim, they cited the following passage of Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982):

When the elaborate and highly specific procedural safeguards embodied in Sec. 1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid.

Id. at 205, 102 S.Ct. at 3050. In addition, they pointed to two Fourth Circuit cases that held placements to be inappropriate because the school district committed serious violations of the statutory procedures but that did not discuss the issue of prejudice, Board of Educ. of County of Cabell v. Dienelt, 843 F.2d 813, 814-15 (4th Cir.1988) (per curiam) (district did not perform multi-disciplinary review, conduct placement advisory meeting, or adequately involve parents)...