Burke County Bd. of Educ. v. Denton By and Through Denton
| Citation | 895 F.2d 973 |
| Decision Date | 09 February 1990 |
| Docket Number | No. 88-2184,88-2184 |
| Parties | 58 Ed. Law Rep. 918 BURKE COUNTY BOARD OF EDUCATION, Plaintiff-Appellee, v. Christian Lee DENTON, By and Through his parents and legal guardian; Lee Edward DENTON, Defendants-Appellants. Carolyn DENTON, Defendant, v. Phillips A. CRAIG, State Superintendent of Public Instruction, State of North Carolina; Haworth, Howard, Chairman, State Board of Education, State of North Carolina, Third Party Plaintiffs. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
David B. Puryear, Jr. (Booth, Harrington, Johns & Campbell, Greensboro, N.C., Roger Manus, Carolina Legal Assistance, on brief) for defendants-appellants.
Ann L. Majestic (Allison Brown Schafer, Tharrington, Smith & Hargrove, Raleigh, N.C., on brief) for plaintiff-appellee.
Before RUSSELL and PHILLIPS, Circuit Judges, and FOX, United States District Judge for the Eastern District of North Carolina, sitting by designation.
Christian Lee Denton (Chris), by and through his parent and legal guardian, Lee Edward Denton, appeals from the judgment of the district court affirming, with minor modifications, the educational program proposed for Chris by the Burke County, North Carolina, Board of Education (Board). The Dentons had initiated administrative review procedures under the Education of the Handicapped Act (EHA), 20 U.S.C. Secs. 1400-1485, and the parallel state law, N.C.Gen.Stat. Secs. 115C-106 to 115C-145 (1987), to contest the special education program proposed by the Board. A local hearing officer concluded that the program proposed was appropriate and in the least restrictive environment. Upon appeal by the Dentons, a state review officer found that the proposed program did not meet state and federal law standards. The Board then brought this action in district court as an aggrieved party under the EHA, and the court rejected the review officer's conclusions and reinstated the hearing officer's decision in its entirety. We agree with the district court that the educational program proposed by the Board, as modified by the local hearing officer, meets the requirements of federal and state law and therefore affirm.
Chris, now nineteen years old, is autistic and moderately mentally handicapped. He has the severe problems most autistic people face communicating and controlling himself. Until reaching the age of eighteen, he was included in the "Willie M" class of individuals in North Carolina. 1 These individuals are seriously emotionally, neurogically, or mentally handicapped and exhibit violent or assaultive behavior. Chris cannot manage his own behavior; his behavior at all times must be managed by others.
Because of his aggressive behavior, and upon the recommendation of a Board administrative committee, the Dentons placed Chris in the Triad Home for Autistic Individuals in High Point, North Carolina. While living at the Triad Home from 1984-1987, Chris received educational services at the Gateway Education Center in Greensboro. During this time, highly structured programs of educational services and complementary behavior management programs were utilized at both Triad and Gateway, and were successful in promoting Chris' learning and reducing the incidents of aggressive behavior. Both the residential and educational services were provided at public expense. 2
In late 1986, the Dentons began planning in earnest to attain their goal of returning Chris to the family home. Chris also would be entering his last year of eligibility for Willie M funds, and a new source of funds would be required to provide for the total care he needs. Board members were not included in this planning process and were not informed until June 1987 that Chris would be returning to Burke County and their jurisdiction.
In June 1987, the Dentons presented a plan developed by representatives of TEACCH, 3 a division of the University of North Carolina Psychiatry Department, and Chris' former teacher at Gateway. The proposed plan (PUSH plan), designed to replicate the successful Gateway-Triad plan as closely as possible and coordinated by a private contractor, called for Chris to enroll at the Western Carolina Center, a facility operated by the North Carolina Department of Human Resources, for day educational services. He would return home at night and for weekends. Although Chris would not be enrolled in its schools, the Board was asked to fund a one-on-one day program aide, transportation to the Center, and one-half the cost of a Direct Care Coordinator, whose function was to provide and supervise habilitation services in the Denton home. The Department of Human Resources agreed to fund the other half of the Coordinator and additional home care costs, apparently as part of the Willie M program. The Board agreed to fund the aide and the transportation costs as educational services costs, but objected to the funding of a position that they asserted primarily involved controlling Chris' behavior.
The Board's efforts to develop an individualized education program (IEP) for Chris as required by the EHA, see 20 U.S.C. Secs. 1401(19); id. Sec. 1414(a)(5); see also N.C.Gen.Stat. Sec. 115C-113(f) (1987), were hampered by a lack of up-to-date evaluations from Gateway. The Board offered a temporary placement plan while the IEP was being developed, but the Dentons refused the offer. The Board did not provide notice to the Dentons or develop the IEP within the time periods provided under North Carolina law, 4 see id. Sec. 115C-113(b), (c), 5 but did present an IEP just four days after receiving Chris' evaluations.
The IEP called for day enrollment at a local school with a program closely following the Gateway program, including provision of a one-on-one aide. The physical environment would be the same, pre-vocational and vocational training would be provided, and the successful behavior management program would be replicated. The Board was even willing to accept the PUSH plan IEP for implementation in future years, but the Dentons refused to agree to this approach because the total plan did not include in-home care. Recognizing that Willie M funding for residential services would soon be lost, the Dentons adopted the position that the Board was required under federal and state law to provide all the in-home services, now asserted to be educational, for what amounted to 24 hour a day, 365 days a year care. 6
The Dentons reasserted their right to a "due process" hearing under the EHA, see 20 U.S.C. Sec. 1415(b)(2); see also N.C.Gen.Stat. Sec. 115C-116 (1987) 7, which had been stayed by a local hearing officer until Chris' evaluations were completed and a new IEP proposed by the Board, after they rejected the Board's IEP. The hearing officer found as an essential fact that Chris cannot manage his own behavior. In addition, consistency is a key consideration in controlling Chris' behavior: "The same behavior management program must be used at all times, in all environments, to control the child's behavior." Joint Appendix (J.A.) I, at 32, para. 48. "Self-control is a goal for the child, although it is very likely that it will never be attained." Id., para. 47.
The hearing officer's further findings endorsed the IEP proposed by the Board. The Board offered placement in one of its schools with some opportunity to interact with non-handicapped students (mainstreaming) and a program consistent with the successful Gateway program. The educational program needed to be coordinated with the home environment so that the same behavior management approach, including the critically important aversion therapy which the Western Carolina Center had refused to implement, would be utilized in all aspects of Chris' life. Like the Gateway program that successfully promoted Chris' learning skills, the Board's IEP did not call for educational services or residential training beyond the regular school day.
In his critical "conclusion of law," the hearing officer distinguished the educational program from the behavior management program for Chris.
The behavior management program maintains and controls the behavior of the child so that other activities, educational as well as non-educational, can take place and the child does not become a threat to the safety of himself or others. Educational programs enable the child to learn new skills and concepts. When new behavior management techniques are attempted for the purpose of advancing the child to less intensive external controls, such activities are part of an educational program. It does not necessarily follow that the use of these new control techniques, and the resultant reinforcement of learning, takes place only in an educational setting. To hold otherwise is to specify that everything that is done to or for an individual is an educational activity, a premise that the hearing officer cannot accept as the intent of federal and state law governing the provision of education to children with special needs.
Id. at 36, para. 14.
The hearing officer therefore ruled that Chris does not need a residential program of education or an educational program 24 hours a day or 365 days a year in order to achieve educational benefits. He saw as the critical requirement the need to coordinate the behavior management program at school and in the home, and for this reason he ordered the Board to set up a team approach, as used at Gateway and Triad, to coordinate home and school environments and procedures to facilitate exchange of information. With these modifications, and an additional requirement that Chris be provided educational services during the summer school term, the hearing officer endorsed the Board's IEP as appropriate and in the least restrictive environment. Although the hearing officer found that the Board had not met the procedural requirements of federal and state law, he ruled that Chris was not entitled to compensatory special education because the...
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