Christopher M. by Laveta McA. v. Corpus Christi Independent School Dist.

• Decision Date: 25 June 1991
• Docket Number: No. 90-2637,90-2637
• Citation: 933 F.2d 1285
• Parties: 67 Ed. Law Rep. 1048 CHRISTOPHER M., by Next Friend LAVETA McA., Plaintiff-Appellant, v. CORPUS CHRISTI INDEPENDENT SCHOOL DISTRICT and Mary Grett Memorial School, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1285

933 F.2d 1285

67 Ed. Law Rep. 1048

CHRISTOPHER M., by Next Friend LAVETA McA., Plaintiff-Appellant, v. CORPUS CHRISTI INDEPENDENT SCHOOL DISTRICT and Mary Grett Memorial School, Defendants-Appellees.

No. 90-2637.

United States Court of Appeals Fifth Circuit.

June 25, 1991.

Christopher L. Jonas, Corpus Christi, Tex., for plaintiff-appellant.

Mark S. Partin, Advocacy, Inc., Austin, Tex., for amicus curiae--Advocacy, Inc Shirley Selz, Quentella K. Garza, L. Timothy Perrin, Gary, Thomasson, Hall & Marks, Corpus Christi, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN, KING, and JONES, Circuit Judges:

ALVIN B. RUBIN, ^* Circuit Judge:

A multi-handicapped child appeals the district court's ruling that the local education authority provided him the "free appropriate public education" required under the Education of the Handicapped Act (EHA). ¹ We find that the district court applied the correct legal standard in evaluating whether the child's education program was appropriate, the child was not presumptively entitled to receive a full school day of programming, and the court was not required to give greater weight to the testimony of the child's physician than to the testimony of the child's school therapists and teachers. We therefore affirm the holding of the district court.

I.

Christopher M. is a profoundly mentally and physically-handicapped child. Although he is 11 years old, his IQ is 5 and his functional development approximates that of an infant between 2-6 months. Both his neurological capabilities and negative physical responses to prolonged stimulation limit his ability to receive educational programming, which consists of basic sensory stimulation. His responses to stimulation include hyperextension, sweating, turning blue, breathing distress, and extreme fatigue. He therefore requires frequent intervals of rest between periods of instruction or activity.

Christopher has been enrolled at the Mary Grett Memorial School for the Multi-Handicapped, under the aegis of the Corpus Christi Independent School District (CCISD), since 1980. His educational program consisted of a full school day until 1984, when he underwent surgery to implant a gastric tube; upon his return, his school day was reduced to four hours. In its education program for 1987, the school proposed a reduction in Christopher's school day to two hours, prompting his grandmother to initiate administrative proceedings, in which she claimed that the free appropriate public education mandated by EHA entitled Christopher to a full school day of seven hours. During the pendency of legal proceedings, Christopher's 1986 education program, calling for a four-hour school day, has remained in effect in accordance with EHA. ² The hearing officer concluded that given Christopher's physical difficulties and limited ability to process sensory input, a four-hour school day constituted an appropriate education. CCISD has complied with this ruling.

In February 1988, Christopher filed a complaint against CCISD in the district court on the same grounds. The district court affirmed the ruling of the hearing officer.

II.

EHA mandates that in return for its acceptance of federal funding the State must provide all handicapped children a "free appropriate public education". ³ The curriculum is tailored to the unique needs of each child through an "individualized education program" (IEP), ⁴ which is devised by the child's parents or guardian, teacher, and a representative of the local educational agency ⁵ and reviewed at least annually. ⁶ EHA imposes extensive procedural requirements upon the State to assure that its goal of individualized instruction for each handicapped child is met. ⁷ The only substantive standard for an "appropriate" educational program established by EHA and the Supreme Court, however, is that a free appropriate public education must consist of "educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child 'to benefit' from the instruction." ⁸ The requirement of an appropriate education is met if the State provides "personalized instruction with sufficient support services to permit the child to benefit educationally." ⁹ While that benefit must be "meaningful," ¹⁰ EHA does not require that the State attempt to maximize each child's potential. ¹¹

This court has never explicitly delineated the standard to be applied by an appellate court in reviewing a district court's decision that the IEP for a particular child fulfills the requirements of an appropriate education. We now join the Sixth, ¹² Seventh, ¹³ and Ninth ¹⁴ Circuits in subjecting this issue to de novo review as a mixed question of fact and law. Independent review of the appropriateness of an IEP comports with one purpose of the Act: providing procedural protections for handicapped children's rights. The district court's findings of underlying fact, however--such as the lack of benefit or potential harm to Christopher resulting from a longer school day--remain subject to the clearly erroneous standard. ¹⁵

Christopher argues that the district court erred in considering the severity of his handicap and the extent to which he could benefit from education in determining whether the four-hour school day envisioned in his IEP would fulfill the requirement of appropriate education. He contends that EHA mandates that all children, regardless of the severity of their handicap, receive a free appropriate public education; ¹⁶ that EHA specifically eliminated school officials' discretion to exclude children considered unable to benefit from education; ¹⁷ that access to special education is not contingent on the expectation that such education will produce any specific outcome; ¹⁸ and that a child therefore need not demonstrate ability to benefit to be entitled to a full educational program. ¹⁹ According to Christopher, an appropriate educational program is simply one that meets his individualized needs; since he needs time for frequent rest periods, EHA mandates a longer school day.

Christopher's argument, however, confuses the standard to be applied in determining access to education with that required in designing the content of the educational program. He relies predominantly on Timothy W. v. Rochester School Dist., ²⁰ a First Circuit case in which the school district denied a severely handicapped child access to any public education, contending that EHA did not cover children who could not possibly derive any educational benefit from special services. The First Circuit held that demonstration of benefit was not a prerequisite to eligibility for education under EHA. ²¹ It observed:

"Rowley focused on the level of services and the quality of programs that a state must provide, not the criteria for access to those programs. [Cite omitted] The Court's use of "benefit" in Rowley was a substantive limitation placed on the state's choice of an educational program; it was not a license for the state to exclude certain handicapped children." ²²

Since Christopher has never been denied access to special education by CCISD, his reliance on Timothy W. is misplaced.

The irrelevance of benefit in determining access to education, however, does not negate its pertinence in designing an individual educational program once access is assured. Christopher's contention that his IEP should be formulated without regard to the benefit, if any, he would derive or the severity of his handicap contradicts the very mandate of EHA to create an educational program tailored to the unique needs of each child. The drafters of EHA were guided by the principle that "each child must receive access to a free public program of education and training appropriate to his learning capabilities." ²³ Rowley imposes an obligation on the states that the IEP must be "reasonably calculated to enable the child to receive educational benefits." ²⁴ Christopher himself stresses that CCISD is required to provide him with a program that confers meaningful benefits. ²⁵ CCISD simply could not do so without considering Christopher's abilities, handicaps, and the benefits he would derive.

In reviewing the appropriateness of an IEP, this court has previously considered these very factors: "our analysis is an individualized, fact-specific inquiry that requires us to examine carefully the nature and severity of the child's handicapping condition, his needs and abilities, and the school's response to the child's needs." ²⁶ We have balanced the benefits and detriments to the child of a given program to determine whether the IEP is appropriate. ²⁷ The Sixth Circuit, in a case similar to Christopher's, recently found one hour of home instruction per day, rather than a full school day at a special education program, to constitute an appropriate education because the child could tolerate only limited amounts of sensory stimulation. ²⁸ In balancing Christopher's minimal ability to benefit from more than a four-hour school day against his physical distress resulting from prolonged sensory stimulation and determining that a four-hour school day was appropriate, the district court applied the correct legal standard.

III.

Christopher contends that the limitation of his school day to four hours in his IEP is presumptively inappropriate. We have previously held--as have the majority of federal courts that have considered the issue ²⁹--that EHA "creates a presumption in favor of the education placement established by [a child's] IEP, and the party attacking its terms should bear the burden of showing why the educational setting established by the IEP is not appropriate." ³⁰ Christopher therefore bears the burden of demonstrating that the four-hour school day envisioned in his IEP would not provide him any meaningful benefit. He has not done so. He has stated that...