Carroll v. Capalbo

• Decision Date: 14 April 1983
• Docket Number: Civ. A. No. 83-0107 S.
• Citation: 563 F. Supp. 1053
• Parties: Barbara CARROLL, next best friend of Michael Carroll v. Michael CAPALBO, et al.
• Court: U.S. District Court — District of Rhode Island

563 F. Supp. 1053

Barbara CARROLL, next best friend of Michael Carroll v. Michael CAPALBO, et al.

Civ. A. No. 83-0107 S.

United States District Court, D. Rhode Island.

April 14, 1983.

Rhode Island Protection and Advocacy System by S. Arlene Violet, S. Catherine Gibran, Providence, R.I., for plaintiff.

Bennett R. Gallo, Coventry, R.I., for defendants.

MEMORANDUM DECISION AND ORDER

SELYA, District Judge.

This case involves a parent's refusal to permit individuals associated with the Coventry, Rhode Island school system to conduct an assessment of her child pursuant to regulations promulgated to insure the appropriateness of a handicapped child's education. The plaintiff is the natural mother and legal guardian of Michael Carroll. She initially sought a temporary restraining order enjoining the defendants¹ from performing an assessment of Michael tentatively scheduled for the week of February 7, 1983. At a hearing on February 9, 1983, the Court denied this relief. The defendants, however, acquiesced in the Court's request that the desired assessment not be carried out until the Court could conduct a further hearing. With the consent of the parties, the Court merged hearing on preliminary injunction with trial on the merits, and assigned the matter for further proceedings on April 4, 1983. In the interim, the case was answered by the defendants, and ably briefed by all parties. Additionally, the plaintiff filed a motion for partial summary judgment in which she contends that her rights (and those of her son) will be violated by the school system's impending assessment of Michael.² On April 4, 1983, the parties submitted the case to the Court on an agreed statement of facts, together with the administrative decisions pertaining to Michael's placement from and after February 10, 1981.³

I.

The plaintiff and her son were and are, at all times material to this action, residents of Coventry. Michael is a handicapped child entitled to the prophylaxsis of the Education of the Handicapped Act, 20 U.S.C. § 1400 et seq. (1976) (the "Act"). He falls squarely within all relevant operative definitions. See 20 U.S.C. § 1401(1); R.I.Gen. Laws § 16-24-1; 34 C.F.R. § 300.5 (1982); and Rhode Island Board of Regents' Regulations Governing Education for Handicapped Children, General Regulations, ("State Regulations"), II, 1.0. The defendants, collectively, are charged with provision and administration of suitable education for handicapped children within the Coventry school system, and defendant Capalbo has direct and immediate responsibility for this. State Regulations, VIII, 1.0.

In September of 1979, Michael was placed in a special education program in the Coventry schools. He remained in that program throughout the 1979-80 school year. On May 22, 1980, the plaintiff, on her own initiative, brought Michael to the Emma Pendleton Bradley Hospital ("Bradley") for evaluation. Subsequent to this evaluation, Mrs. Carroll enrolled Michael in a Bradley program. This enrollment lasted until March of 1981. Early that year, however, the Coventry special education staff discussed the Carroll situation and reviewed the assessments performed by Bradley personnel. The staff, apparently using Bradley's findings, developed an individualized education program ("IEP")⁴ for Michael on February 10, 1981 which mandated his return to a special education class within the Coventry school system. This IEP, and the placement dictated thereby, is the subject of the state court litigation referred to in note 3 ante. Michael, however, returned to the Coventry school system and is currently a student in a special education program, pending the outcome of that litigation.

As stipulated both federally, see 34 C.F.R. § 300.354 (1982), and by Rhode Island, see State Regulations, V, 3.4.3, Coventry sought to reevaluate Michael at some point during early 1983. Coventry, therefore, notified the plaintiff on January 3, 1983 that the defendants planned such an assessment of Michael's psychological, educational, linguistic, medical, sociological, and psychiatric condition. On or about January 11, 1983, the plaintiff's attorney notified the defendants that her client was revoking consent for such an assessment, or in the alternative, that her client refused to consent thereto. The defendants insisted upon their right and obligation to reevaluate Michael, and informed the plaintiff that, under the law as the defendants perceived it, parental consent was neither necessary nor material. The instant litigation ensued.

II.

An abbreviated overview of the legal design in place as a vehicle to fulfill governmental responsibility for educating handicapped youth is appropriate at this juncture. Under the Act,⁵ the public school system must provide a free and appropriate education to all handicapped children. See, e.g., Kruelle v. New Castle County School District, 642 F.2d 687, 690 (3rd Cir.1981); Colin K. v. Schmidt, 536 F.Supp. 1375, 1377 n. 2 (D.R.I.1982). In implementing the Act, the regulations promulgated by the Office of Special Education of the Department of Education require that a handicapped child be evaluated as a precondition to placement. 34 C.F.R. § 300.531. Accord State Regulations, IV, 1.0. Such an evaluation is the gatepost to the development of an IEP for the child and subsequent assignment to an appropriate special education program. 34 C.F.R. §§ 300.530-43 (1982); see Springdale School District # 50 v. Grace, 656 F.2d 300, 303-04 (8th Cir.1981), vacated on other grounds, ___ U.S. ___, 102 S.Ct. 3504, 73 L.Ed.2d 1380 (1982). Although the IEP must be reviewed no less frequently than annually, 20 U.S.C. § 1414(a)(5), the evaluation (which, as indicated above, forms the basis of the placement of the child) need only be repeated once every three years (unless the parents request an earlier evaluation or the school system determines that one is desirable). 34 C.F.R. § 300.534. Such a reevaluation requires an assessment of the child in the same areas which were originally monitored. State Regulations, V, 3.4.3. Coventry believes that it has reached this plateau in carrying out its obligations to Michael; and such belief has become the focal point of this litigation.

III.

The plaintiff asseverates that the proposed assessment violates (i) the regulations promulgated pursuant to the Act and (ii) the rights both of the plaintiff and of her son to due process under the Fourteenth Amendment. The plaintiff argues that no authentic pre-placement evaluation ever took place; and that, a fortiori, the impending assessment is itself an original pre-placement evaluation. The plaintiff alleges, and the defendants concede, that a seminal evaluation requires, under the regulations, that consent be obtained as a condition precedent to implementation thereof by the school system without a hearing. 34 C.F.R. § 300.504(b)(1)(i). It is, of course, uncontroverted here that the plaintiff has refused to consent to the assessment which Coventry is presently attempting to conduct. Thus, the plaintiff concludes that the defendants are debarred from going forward with the assessment procedures in the absence of all of the procedural formalities which attach to original pre-placement evaluations under the law and the regulations.

As a part of this argument, the plaintiff seemingly interprets the regulations as requiring a bona fide reevaluation to be performed under the aegis of the same team of evaluators (or the same sponsoring agency) as the original pre-placement evaluation. The plaintiff points out that, if this theory is accurate, it would prohibit the defendants from asserting that Coventry evaluated the plaintiff's child in January of 1981 because the defendants did no more than review the work of the Bradley team.

Plaintiff has yet a second arrow in her quiver. If the Court were to view the impending assessment as a reevaluation rather than as an original evaluation, there seems little question but that the regulations do not look to any parental consent.⁶ Plaintiff, little daunted, argues that such a reevaluation without her consent would unconstitutionally abridge the rights both of the plaintiff and of her son to due process of law.⁷ The plaintiff further contends that the failure to provide an opportunity to be heard (which she deems implicit in a regulatory framework permitting reevaluations without consent) would and does violate her protectible liberty interest in directing the upbringing of her child. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925).

The defendants' position is more straight-forward. They aver that Michael was indeed "evaluated" by the school system within the meaning of the law; and that the review of the Bradley findings was sufficient to this end.⁸ Since the regulations do not require a school system to obtain parental consent before performing a reevaluation, 34 C.F.R. 300.504(b), (c)(1), the defendants view themselves as being free to proceed. The defendants lightly dismiss the plaintiff's Fourteenth Amendment claim as spurious, noting that the conduct of the reevaluation in and of itself will not affect her protectible interest in educating her child. Any changes in placement prescinding from the reevaluation can be contested by the plaintiff in statutorily mandated hearings. 20 U.S.C. § 1415(b); see 34 C.F.R. § 300.504. Thus, due process will in all respects have been accorded.

IV.

The plaintiff's fusillade as to the necessity for her consent falls well wide of the mark. The assessment sought by the defendants can rationally be viewed only as a reevaluation. The plaintiff admits that her child was initially placed in a special education program in the Coventry school system in the fall of 1979. The plaintiff proffers no evidence to contest the defendant's assertion that the placement was uncontested...