Bales v. Clarke, Civ. A. No. 80-0568-R.
| Decision Date | 16 October 1981 |
| Docket Number | Civ. A. No. 80-0568-R. |
| Citation | 523 F. Supp. 1366 |
| Parties | Evelyn Ann BALES, etc. v. Wayland A. CLARKE, Jr., et al. |
| Court | U.S. District Court — Eastern District of Virginia |
John M. Oakey, Jr., Richmond, Va., for plaintiff.
William M. Sokol, Fredericksburg, Va., for defendants.
Plaintiff, a handicapped child, alleges that defendants, the Superintendent of King George County Schools, King George, Virginia, and members of the King George County School Board, have failed to provide her with a "free appropriate public education" as required by the Education of Handicapped Children Act, 20 U.S.C. § 1412(1) and by the Code of Virginia, § 22.1-214(A). Plaintiff sues for reimbursement of various expenses incurred by her parents, including the cost of summer programs for plaintiff and the parents' travel expenses while plaintiff was a patient and student at the Home for Crippled Children in Pittsburg, Pennsylvania. Plaintiff additionally requests that the Court direct defendants to place her in Accotink Academy, a private school for handicapped children, and to pay all educational and travel expenses incident thereto.
The case was tried without a jury on 7 August 1981. At the close of the evidence, counsel were requested to submit briefs to the Court. On 28 August plaintiff filed her brief; defendant responded on 8 September. Plaintiff filed a rebuttal brief on 11 September. The Court is now called upon to determine if under the facts presented defendants have provided plaintiff with a "free appropriate education" within the mandate of the federal and State statutes. The State is not required to pay all of the expenses incurred by parents in educating a child, whether the child be handicapped or non-handicapped. The State is also not required to provide a perfect education to any child, and the Court is not called upon to determine whether plaintiff's education could have been better. Rather, the Court must ascertain in the light of educational theories over which experts often disagree if the education provided plaintiff was, under the law, "appropriate."1 Upon consideration of the testimony, the exhibits, the depositions, and the briefs, the Court finds for the defendants.
1. Plaintiff, who was born on 6 September 1968, received severe head trauma when she was injured in an automobile accident on 11 April 1977.
2. Plaintiff was given extensive testing in the University of Virginia Children's Rehabilitation Center in August of 1977. Plaintiff was discharged from the Rehabilitation Center in August.
3. In the fall of 1977, plaintiff was placed in a self-contained class with speech and language therapy in the King George County School System until a total rehabilitation program could be selected for her.
4. On 30 November 1977, plaintiff was accepted for treatment at the Home for Crippled Children in Pittsburgh, Pennsylvania. Plaintiff remained there until 8 June 1979. Plaintiff was provided tuition assistance by defendants for the years 1977 to 1979.
5. Plaintiff's parents made trips to the Home for Crippled Children in Pittsburgh. Plaintiff's parents did not request reimbursement for travel for the 1977-78 school year. The School Board approved $375 for transportation for the plaintiff for the 1978-79 school year. The sum was the total amount permitted by policies of the Virginia State Department of Education.
6. In May of 1979, prior to plaintiff's release from the Home for Crippled Children, plaintiff's father requested that defendants provide plaintiff with a summer language therapy program. On 13 June 1979, the King George County School Board denied this request.
7. Plaintiff's parents hired Elizabeth Sanders to provide speech therapy to plaintiff three times a week from 25 June 1979 to the middle of August, 1979. Mrs. Sanders could not testify whether this therapy was necessary to maintain plaintiff's skills.
8. Also in May of 1979, plaintiff's parents determined that plaintiff should attend Accotink Academy in Springfield, Virginia, a private school for severely handicapped children.
9. Accotink Academy has a program appropriate to a child with plaintiff's disabilities. However, at Accotink Academy, plaintiff is exposed to children with severe emotional disabilities and cannot interact with non-handicapped children. Plaintiff's attendance at Accotink Academy also creates an unreasonably burdensome transportation problem.
10. The King George County School's Eligibility Committee met and recommended that plaintiff be placed in the Regional Special Education Center for Planning District 13 at Walker-Grant School in Fredericksburg, Virginia.
11. Plaintiff's parents appealed from this determination. On 10 September 1979, a hearing was held before a hearing officer designated in accordance with State law. After considering the testimony of eight witnesses, the officer affirmed the decision of the Eligibility Committee.
12. This decision was appealed. On 19 December 1979, an appeal hearing was held at which eight witnesses testified. After an unconscionable delay, on 5 January 1981 the hearing officer, Gary A. Howard, upheld the initial decision.
13. On 27 September 1979, plaintiff's parents and representatives of the King George County Schools and the Regional Special Educational Center met to develop an individualized education program (IEP) for plaintiff. Plaintiff's parents submitted a massive proposal for an IEP which they knew or should have known could not reasonably be implemented. Plaintiff's parents objected to the proposed IEP submitted by the King George County Schools.
14. Plaintiff entered the Regional Special Education Center on 27 September 1979. The King George County Schools and the Regional Center implemented a program planned and administered by a team including a psychologist, a speech and language clinician, a speech and language pathologist, the principal of the school, and the superintendent of King George County schools. The parents refused formally to approve the program yet submitted their child to it.
15. Through the efforts of this team and despite plaintiff's parents' continual criticisms and complaints, plaintiff progressed academically and emotionally during the 1979-80 school year.
16. In the summer of 1980, plaintiff's parents enrolled her in Accotink Academy for a summer program. Plaintiff's counsel wrote the superintendent of King George County Schools, stating that plaintiff's parents would look to defendants for all expenses of this summer program.
17. On 5 May 1980, plaintiff's parents, plaintiff's attorney, and representatives of King George County Schools and the Regional Center met to develop an IEP for plaintiff for the 1980-81 school year. Plaintiff's parents again objected to the proposed IEP.
18. Another program was implemented for plaintiff for the 1980-81 school year, again involving the efforts of a team of representatives. Again plaintiff's parents refused formally to agree to the IEP.
19. Plaintiff progressed academically and emotionally during the 1980-81 school year.
20. In November, 1980, the Virginia Department of Education, Administrative Review Service, evaluated the Fredericksburg City Schools, including the Regional Center. The service found that the Regional Center was in compliance with State law.
21. The physical education provided to the plaintiff from 1979 to 1981, while not ideal, was appropriate.
22. Language therapy provided by the defendants was appropriate.
23. Defendants have provided appropriate psychological services.
24. The program provided plaintiff between 27 September 1979 to date has been appropriate, and the program planned for her for the 1981-82 school year is appropriate.
II. CONCLUSIONS OF LAW
1. This Court has jurisdiction under 28 U.S.C. § 1331(a) and 20 U.S.C. § 1415(e)(2).
2. The Education of the Handicapped Act, 20 U.S.C. §§ 1401-61 (1978), requires that each State, in order to qualify for assistance under the Act, establish a policy and plan that "assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412(1) and § 1413.
3. Virginia has enacted such a plan in the Special Education Act, Va.Code §§ 22.1-213 to 222 (1980).
4. Virginia Code § 22.1-214(A) requires the Board of Education to design a program insuring:
that all handicapped children have available to them a free and appropriate education, including special education designed to meet the reasonable educational needs of such children.
5. Va.Code § 22.1-218(A) provides:
If a school division is unable to provide a free appropriate public education to a handicapped child and it is not appropriately available in a State facility, it shall offer to place the child in a nonsectarian private school for the handicapped approved by the Board of Education or such other licensing agency as may be designated by State law. The school board of such division shall pay to, or on behalf of, the parent or guardian of such child the reasonable tuition cost and other reasonable charges as may be determined by the Board of Education.
Because the defendants can provide and have provided the plaintiff with an "appropriate education" in a regional public facility, the Regional Special Education Center, the defendants are under no legal duty to provide funds for the plaintiff to attend Accotink Academy.
6. When a handicapped child is placed in a private school under the provisions of § 22.1-218(A) of the Virginia Code, the school board is to pay "other reasonable charges" in addition to tuition. The State regulations for reimbursement provide for the payment of the actual costs of special transportation for handicapped children. However, neither the Virginia statute, the Virginia regulations, nor the federal act provides funding expenses for parents' transportation.
7. In conformity with 20 U.S.C. § 1415(b)(2), Virginia Code §...
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