Carter By and Through Carter v. Florence County School Dist. Four, 91-1047

• Decision Date: 26 November 1991
• Docket Number: No. 91-1047,91-1047
• Citation: 950 F.2d 156
• Parties: , 71 Ed. Law Rep. 633 Shannon CARTER, a minor By and Through her father, and next friend, Emory D. CARTER, Plaintiff-Appellee, v. FLORENCE COUNTY SCHOOL DISTRICT FOUR, Ernest K. Nicholson, Superintendent, in his official capacity, School Board Members, Bennie Anderson, Chairman, Monroe Friday, Jack Odom, Elrita Bacote, T.R. Green, James W. Hicks, in their official capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 156

950 F.2d 156

60 USLW 2400, 71 Ed. Law Rep. 633

Shannon CARTER, a minor By and Through her father, and next friend, Emory D. CARTER, Plaintiff-Appellee, v. FLORENCE COUNTY SCHOOL DISTRICT FOUR, Ernest K. Nicholson Superintendent, in his official capacity, School Board Members, Bennie Anderson, Chairman, Monroe Friday, Jack Odom, Elrita Bacote, T.R. Green, James W. Hicks, in their official capacity, Defendants-Appellants.

No. 91-1047.

United States Court of Appeals Fourth Circuit.

Argued Sept. 30, 1991.

Decided Nov. 26, 1991.

Bruce Edward Davis, Camden, S.C., argued, for defendants-appellants.

Peter W.D. Wright, Richmond, Va., argued (David R. Burlington, South Carolina Protection and Advocacy System for the Handicapped, Inc., Greenville, S.C., on brief), for plaintiff-appellee.

Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, WILKINSON, Circuit Judge, and MICHAEL, District Judge for the Western District of Virginia, sitting by designation.

OPINION

WILKINSON, Circuit Judge:

The Individuals with Disabilities Education Act (formerly the Education of the Handicapped Act), 20 U.S.C. § 1400 et seq., requires states that receive federal funds for education of the handicapped to provide such children with a "free appropriate public education." 20 U.S.C. § 1412(1) (1988). In Burlington School Committee v. Massachusetts Department of Education, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985), the Supreme Court held that parents who believe that the education offered by the public schools is inappropriate may unilaterally place their child in a private school and are entitled to reimbursement from the state for tuition and expenses if it is subsequently determined that the public school system failed to comply with its statutory duties and that the private school provided an appropriate education. The question in this case is whether reimbursement under the Act is barred when parents have enrolled their disabled child in a private school that has not been approved by the state for the child's placement under the Act. We hold that placement in a private school not approved by the state is not a bar to reimbursement under the Act and therefore affirm the judgment of the district court ordering reimbursement.

I.

This case involves the education of Shannon Carter, who is now twenty-two years old. Shannon attended the first grade at Timmonsville Elementary School of Florence County School District Four, in which she resided with her parents. Shannon attended a nearby private school, the Roy Hudgens Academy, through grade six. She re-entered the public school system for the seventh grade during the 1982-83 school year.

Shannon performed poorly in school during the seventh grade. As a result, the school system tested her twice in early 1983 for potential learning disabilities. It concluded that, although Shannon scored slightly below average in achievement, she was not learning disabled. After Shannon performed badly during the first semester of the ninth grade, her parents prompted the school district to conduct additional testing in April 1985. Based on this testing, the school psychologist concluded that Shannon was indeed learning disabled under the criteria set forth by the South Carolina State Department of Education (SDE). Although the disability went unnoticed by the school district for almost three years, the district court found that it was comparatively severe.

Following the April 1985 evaluation, the school district proposed an individualized educational program (IEP) for Shannon at a meeting on May 1, 1985. ¹ Under the school district's proposal, Shannon would have remained in regular classes but would have spent at least two periods per day in the resource room. Shannon's parents objected to the proposed resource room placement, believing that it would be inappropriate to place Shannon alongside students with emotional illnesses and mental retardation. Instead her parents requested a learning disabilities itinerant program in which Shannon would receive individualized attention from a special education teacher. The adopted IEP, which became effective May 2, 1985, and was to run through June 1986, placed Shannon in an itinerant program for three periods per week of individualized instruction, with the remainder of the week in regular classes. The IEP also contained specific goals for Shannon's educational progress. It set a goal of four months of reading progress during the school year, from a level of 5.4 (i.e., fifth grade, fourth month) to one of 5.8. The mathematics goal also posited four months' progress, from a 6.4 level to a 6.8 level. The IEP was implemented for the month remaining in the 1984-85 school year.

Dissatisfied with the IEP, Shannon's parents requested a due process hearing to challenge the appropriateness of the school district's educational program. See 20 U.S.C. § 1415(b)(2) (1988); 34 C.F.R. § 300.506(a) (1991). Both the local education agency hearing officer and the state education agency hearing officer rejected the arguments of Shannon's parents and concluded that the IEP provided Shannon with a free appropriate public education.

Because of their dissatisfaction with the school district's IEP, Shannon's parents placed her for the 1985-86 school year at the Trident Academy, in Mt. Pleasant, South Carolina, where she remained until graduation in 1988. Trident is a private school that enrolls only children with learning disabilities and specializes in the education of those whose learning disabilities are severe. Although Trident is accredited by the Southern Association of Colleges and Schools, approval of Shannon's placement at Trident had never been sought from the State Department of Education. On previous occasions, however, Trident's enrollment included students sent there by public schools under the aegis of the Act, including three who were placed there by South Carolina public schools. There is no evidence that Trident Academy had ever been disapproved for placements under the Act by the SDE.

In July 1986, Shannon's parents filed suit on her behalf in the United States District Court for the District of South Carolina. The complaint alleged that the school district breached its statutory duty to provide Shannon a free appropriate public education and sought actual damages and "retroactive reimbursement for tuition costs so far incurred." After a bench trial, the district court found for Shannon. Although concluding that the school district had not breached the procedural requirements of the Act, it held that the school district violated the Act's substantive provisions by failing to provide Shannon with a free appropriate public education. The court concluded that the IEP's goals of a mere four months' progress in mathematics and reading allowed Shannon to "continue to fall behind her classmates at an alarming rate" and therefore "ensured the program's inadequacy from its inception." The district court also found itinerant study of only three periods per week inadequate to "allow her to receive passing marks and advance from grade to grade."

Turning to the question of reimbursement, the district court held that "Trident Academy provided Shannon an excellent education in substantial compliance with all the substantive requirements of the [Act]." The court relied on the testimony of a court-appointed expert who tested Shannon and concluded that she made significant progress at Trident. For example, Shannon's reading comprehension advanced from a level of 4.7 in 1985 to 7.8 in 1988--more than three years' progress over three school years. Moreover, the court concluded that "[n]othing in the existing law or regulations" barred reimbursement simply because the State Department of Education had not approved Shannon's placement by her parents at the Trident Academy. Thus, the district court ordered the school district to reimburse Shannon for tuition and fees, room and board, mileage to school, and four trips home per year for each of her three years at Trident, which totalled $35,716.11 plus prejudgment interest.

The school district has appealed.

II.

The school district first challenges the district court's conclusion that it failed to provide Shannon a free appropriate public education. In order to satisfy the Act's requirement that the state provide a free appropriate public education, the IEP must be "reasonably calculated to enable the child to receive educational benefits." Board of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982). In particular, "[w]hen the handicapped child is being educated in the regular classrooms of a public school system"--as Shannon was here--"the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit." Id. at 207 n. 28, 102 S.Ct. at 3051 n. 28. And as this court has noted, "[c]learly, Congress did not intend that a school system could discharge its duty under the [Act] by providing a program that produces some minimal academic advancement, no matter how trivial." Hall ex rel. Hall v. Vance County Bd. of Educ., 774 F.2d 629, 636 (4th Cir.1985). See also Board of Educ. v. Diamond, 808 F.2d 987, 991 (3d Cir.1986).

In light of these principles, we cannot say that the district court's conclusion was clearly erroneous. The school district drafted the IEP to apply to a learning disabled tenth-grade student whose reading and mathematics skills were at a fifth and sixth grade level, respectively. Although the amount of appropriate advancement will necessarily vary depending on the abilities of individual students, see In re Conklin, 946 F.2d 306, 315-16 (4th Cir.1991), the district court did not err in finding that a goal of four months' progress over a period of more than one year was rather modest for a student such as Shannon and was unlikely to permit her to advance from...