Conklin, In re

• Decision Date: 23 October 1991
• Docket Number: 89-2225 and 90-2012,Nos. 89-2220,s. 89-2220
• Citation: 946 F.2d 306
• Parties: 70 Ed. Law Rep. 351 In re Thomas C. CONKLIN, Maryland State Department of Education, Special Education Appeal Number 07-89, Plaintiff. (Three Cases) John CONKLIN, Deborah Conklin, Parents and next friends of Thomas Conklin, a minor, Plaintiffs-Appellants, v. ANNE ARUNDEL COUNTY BOARD OF EDUCATION, a body politic and corporate, Defendant-Appellee. (Two Cases) John CONKLIN, Deborah Conklin, Parents and next friends of Thomas Conklin, a minor, Plaintiffs-Appellees, v. ANNE ARUNDEL COUNTY BOARD OF EDUCATION, a body politic and corporate, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 306

946 F.2d 306

70 Ed. Law Rep. 351

In re Thomas C. CONKLIN, Maryland State Department of

Education, Special Education Appeal Number 07-89,

Plaintiff. (Three Cases)

John CONKLIN, Deborah Conklin, Parents and next friends of

Thomas Conklin, a minor, Plaintiffs-Appellants, v. ANNE ARUNDEL COUNTY BOARD OF EDUCATION, a body politic and corporate, Defendant-Appellee. (Two Cases)

John CONKLIN, Deborah Conklin, Parents and next friends of

Thomas Conklin, a minor, Plaintiffs-Appellees, v. ANNE ARUNDEL COUNTY BOARD OF EDUCATION, a body politic and corporate, Defendant-Appellant.

Nos. 89-2220, 89-2225 and 90-2012.

United States Court of Appeals Fourth Circuit.

Argued Dec. 5, 1990.

Decided Oct. 4, 1991.

As Amended Oct. 23, 1991.

Frank B. Haskell, III, Haskell, Duley & Gale, Upper Marlboro, Md., argued, for plaintiffs-appellants.

Phillip Tyson Bennett, Cohen, Bennett & Greene, P.A., Annapolis, Md., argued, for defendant-appellee.

Before RUSSELL and NIEMEYER, Circuit Judges, and MICHAEL, District Judge for the Western District of Virginia, sitting by designation.

OPINION

MICHAEL, District Judge:

The United States Congress in 1975 passed the Education of the Handicapped Act ("EHA" or "the Act") to provide the handicapped children of this country with access to the public educational system. See 20 U.S.C. §§ 1400-85 (1990). ¹ Alarmed by the large number of handicapped children that were either completely ignored or improperly serviced by American public schools, Congress sought primarily to throw open the doors of public education and heed the needs of these heretofore forgotten children. See generally Board of Educ. v. Rowley, 458 U.S. 176, 191-98, 102 S.Ct. 3034, 3043-47, 73 L.Ed.2d 690 (1982); 121 Cong.Rec. 19,494 (1975) (remarks of Sen. Javits) ("[A]ll too often, our handicapped children have been denied the opportunity to receive an adequate education[.]"); id. at 19,502 (remarks of Sen. Cranston) (Millions of handicapped children "are largely excluded from the educational opportunities that we give to our other children[.]"); id. at 23,708 (remarks of Rep. Mink) ("[H]andicapped children ... are denied access to public schools because of a lack of trained personnel[.]"). Access to a personalized educational program that provided the handicapped child with some degree of meaningful benefit was, however, as far as the EHA went. See generally Rowley, 458 U.S. at 191-98, 102 S.Ct. at 3043-47. With its passage, Congress contemplated only that a minimum--a federal floor below which our nation could not in conscience permit the education of handicapped children to fall--would be set for the provision of services to handicapped children by the States. See id. at 201, 102 S.Ct. at 3048 ("We therefore conclude that the ... basic floor of opportunity ... provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.").

With the benefit of hindsight, now that the crisis facing America's handicapped children is no longer as exigent, it is easy to suggest that Congress intended more than the establishment of a federal floor when it enacted the EHA. That argument is, however, directly at odds with the legislative history of the EHA, the reimbursement scheme created by the Act, and the interpretation of the Act's directives that has been provided by the United States Supreme Court. See A.W. ex rel. N.W. v. Northwest R-1 School Dist., 813 F.2d 158, 163 (8th Cir.1987); Pinkerton v. Moye, 509 F.Supp. 107, 112 (W.D.Va.1981); Note, Enforcing the Right to an Appropriate Education: The Education for All Handicapped Children Act of 1975, 92 Harv.L.Rev. 1103, 1109-10 (1979). A careful analysis of the EHA, its history and judicial precedent concerning its interpretation reveals, instead, that Congress' objectives were less utopian and more grounded in the practical necessity of providing America's neglected handicapped children with some form of meaningful education. See Town of Burlington v. Department of Educ., 736 F.2d 773, 784 (1st Cir.1984); Scituate School Comm. v. Robert B., 620 F.Supp. 1224, 1233 (D.R.I.1985).

But just as the EHA was conceived only to provide a federal floor, Congress with the passage of the Act likewise did not attempt to take any action that would displace the primacy of the States in the area of education. See Rowley, 458 U.S. at 208, 102 S.Ct. at 3052 ("Congress' intention was not that the Act displace the primacy of the States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped."). By its very terms, the purpose of the EHA is to "assist" the States in the provision of education to handicapped children. See id. In this sense, the EHA can properly be regarded as a statute born of federalism: the Act sets a federal minimum to be complied with by the States regarding the provision of educational services to handicapped children, but it also gives the States considerable freedom to structure educational programs that exceed this federal benchmark. See generally New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311, 52 S.Ct. 371, 375, 386-87, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory ... and try novel experiments[.]"); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546, 105 S.Ct. 1005, 1015, 83 L.Ed.2d 1016 (1985). In other words, the States, in order to qualify for assistance under the Act, may not do less than the EHA demands, but they can certainly do more, see Note, Education--Board of Education v. Rowley: The Supreme Court takes a Conservative Approach to the Education of Handicapped Children, 61 N.C.L.Rev. 881 (1983) ("One additional consequence of Rowley may be that the States will follow the federal lead in construing the standards of [free appropriate public education] under the individual state statutes. While many state statutes are drafted in conformity with the federal model, many others have explicit standards set out in the statute. At least one state court has held that its statute requires more than Rowley. It is certain that, at minimum, the States must abide by the federal requirements."), ² and it is this interplay between the roles of the States and Congress that drives much of the analysis in this opinion.

The present appeal was brought by John and Deborah Conklin ("appellants" or "the Conklins") to challenge the individualized educational program developed for their son, Thomas C. Conklin ("Thomas"), by the Anne Arundel County Board of Education ("Board of Education" or "the Appellee") within the State of Maryland. After exhausting all available options for administrative review of their son's individualized educational program, the Conklins and the Board of Education sought judicial review. ³ Ultimately, a bench trial was conducted in the case by the Honorable Joseph C. Howard, United States District Judge for the District of Maryland.

After considering the evidence and the arguments of counsel, Judge Howard concluded that the individualized educational program developed by the Board of Education for Thomas did not comply with the requirements of the EHA, but he ruled that Thomas' individualized educational plan must only be supplemented by weekly private tutoring to satisfy fully the mandate of the EHA. Acknowledging that the Conklins had achieved some "very limited relief" in their suit for judicial review, the court below also allowed them to recover a small amount, far below the amount that they requested, of their attorney's fees and costs from the appellee. The appellants now challenge Judge Howard's rulings both with regard to the EHA and the attorney's fees question, and the Board of Education, while generally concurring in the district court's rulings, has also cross-appealed the decision to require the individualized education program for Thomas to be supplemented by weekly private tutoring.

For reasons that will be explained more fully below, we affirm Judge Howard's rulings in this case concerning the EHA and the issue of costs and attorney's fees. However, due to notable differences in the language used within the EHA and the relevant Maryland statutes and regulations, and because the record before the court does not permit a clear resolution of the issue raised by these differences in language, we remand the case to the United States District Court for the District of Maryland for the purpose of considering whether Maryland law is more expansive than federal law concerning the education of handicapped children. Upon remand, Judge Howard may himself decide to remand the case to the Circuit Court of Anne Arundel County, Maryland, from which the Board of Education case was originally removed, or to certify the question presented to the Court of Appeals of Maryland, pursuant to their certification procedure. Such a procedure may be proper because of the importance of the issue to the State of Maryland, but we leave that decision to the court below in the sound exercise of its discretion.

I.

The appellants in this case (the plaintiffs below) are the parents of Thomas C. Conklin ("Thomas"), an intelligent 13-year-old boy who suffers from a learning disability commonly known as dyslexia. This dyslexia has caused Thomas much frustration and has been an emotional strain to him, but more than anything else, the dyslexia has prevented him from achieving the reading and writing skills that are expected from students of his age. Until the beginning of the 1989-90 school year, Thomas was a student in the Anne Arundel County public school system. That school system is operated by the appellee (the defendant below), the Anne Arundel Board of Education, and it provides public educational services to both non-handicapped...