Doe By and Through Doe v. Defendant I

• Decision Date: 10 May 1990
• Docket Number: No. 89-5395,89-5395
• Parties: 59 Ed. Law Rep. 619 John DOE, a minor, By and Through his parent and next friend, Mary DOE, Plaintiff-Appellant, v. DEFENDANT I, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1186

898 F.2d 1186

59 Ed. Law Rep. 619

John DOE, a minor, By and Through his parent and next friend, Mary DOE, Plaintiff-Appellant, v. DEFENDANT I, Defendant-Appellee.

No. 89-5395.

United States Court of Appeals Sixth Circuit.

Argued Jan. 16, 1990.

Decided March 23, 1990.

Rehearing and Rehearing En Banc Denied May 10, 1990.

Gary D. Buchanan (argued), Barry L. Gardner, B.L. Gardner & Associates, Brentwood, Tenn., for plaintiff-appellant.

Joe I. Majors, Ortale, Kelley, Herbert & Crawford, Nashville, Tenn., Robert G. Wheeler (argued), Goodlettsville, Tenn., for defendant-appellee.

Before KENNEDY, GUY and BOGGS, Circuit Judges.

KENNEDY, Circuit Judge.

John Doe, a minor, appeals the District Court's judgment upholding an Administrative Law Judge's (ALJ) ruling that his parents are not entitled to reimbursement under the Education for All Handicapped Children Act (EAHCA or Act), 20 U.S.C. Sec. 1400 et seq., for expenses incurred while he was enrolled at a private junior high school. Appellant claimed that because appellee, a public local education agency within the meaning of the EAHCA, failed to provide him with a necessary individualized educational program (IEP) to accommodate his learning disability, he was forced to enroll in a private school where his educational needs could be met. He claims the appellee school district is therefore required to pay the cost of his private education as well as the cost of the tutoring he received while attending the public school.

It is undisputed that appellant is handicapped within the meaning of the EAHCA. He suffers primarily from a "dysgraphic disorder," which means he is unable to communicate effectively in writing. His verbal-conceptual skills are average or slightly above average. His learning disability is well-documented by several psychological test results obtained from April 1980 through December 1986.

Appellant began his education in a public school. On June 27 and 28, 1983, an impartial due process hearing was held pursuant to 20 U.S.C. Sec. 1415(b)(2), at which time the hearing officer determined that appellee had violated the EAHCA while appellant attended elementary school. Appellant entered the fourth grade at a public elementary school on October 29, 1983 and attended that school without incident for three years. After completing his elementary education, a multi-disciplinary team (M-Team) met to determine the best education strategy for appellant upon his entry into junior high school. It recommended that in junior high school, appellant "be served on a consultative basis by the Resource teacher. [His] total program needs modification because of his difficulty in motor skills. Written tasks are very difficult for [him] therefore, cutbacks in assignments may be needed."

Appellant began junior high school in the 1986-87 academic year. At the request of appellant's father, consultation work was suspended until the end of the first six-week marking period so the school's special education teacher could determine how well appellant performed on his own. At the end of that period, appellant received an "F" in English and "D's" in math, science, art, and social studies. Appellant was also punished several times by in-school suspension during this period for failing to complete assignments and for being late for class. Appellant's father had requested that the special education teacher do nothing until after the first six-week period and wait to see "how [John's] year developed."

The teacher contacted appellant's father a second time by letter of November 5, 1986 and asked him how he wished her to work with appellant. At that time, the second six-week period had expired and the third was about to begin.

On November 7, 1986, another M-Team meeting was held. At that meeting, appellant's parents and educators at the school developed an individualized educational program. One component of the IEP was that the "parents would arrange for a tutor to work with [appellant] during school hours outside of his academic classes." The parents enrolled appellant at a private, for-profit tutorial service, rather than use the volunteer tutors which appellee said it would provide. The IEP also stipulated that appellant's parents would have appellant retested. Although the school officials appeared willing to provide this service, appellant's father refused to allow them to perform the retesting. The IEP did not indicate who had financial responsibility for the required tutoring or retesting.

Appellant was billed for his enrollment at the private tutorial service at a rate of $170 per week. On December 3, 1986, appellee denied appellant's requests for reimbursement of this bill, claiming that it offered a "free appropriate public education" (FAPE) as required by the EAHCA by offering volunteer tutors and to retest appellant at no charge. Appellant's parents subsequently withdrew him from the public school and placed him in a private school. Doe's parents requested and were granted a due process hearing at which they sought reimbursement for the costs of tutoring, tuition at the private school, and testing. On June 17, 1987, the hearing officer found that appellee complied with the EAHCA by providing Doe with a FAPE and that his parents therefore were not entitled to reimbursement. Appellant sought review of that decision in federal district court. The District Court upheld the ALJ and granted appellee's motion for summary judgment on the grounds that appellee provided Doe a free appropriate public education by offering volunteer tutors. Appellant then brought this timely appeal.

The EAHCA requires that handicapped students be provided with a FAPE which is designed to meet the needs of handicapped children by means of an individualized educational program. 20 U.S.C. Sec. 1401(18). The United States Supreme Court explored the meaning of a "free appropriate public education" in Hendrick Hudson Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) when it said that:

[A] court's inquiry in suits brought under Sec. 1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.

Id. at 206-07, 102 S.Ct. at 3050-51 (footnotes omitted). Rowley recognized the conflict between the need for judicial oversight to guarantee compliance with the Act and the fact that courts, having less competence in matters of educational policy, should defer to the substantive decisions of educators and parents in fashioning appropriate IEP's. It resolved this conflict by requiring adherence to the procedural demands of the Act, while giving utmost deference to specific educational decisions once it is determined that they stem from the procedures outlined in the Act. In determining whether the state has complied with the Act's procedures, a court must not only "satisfy itself that the State has adopted the state plan, policies, and assurances required by the Act, but also to determine that the State has created an IEP for the child in question which conforms to the requirements of Sec. 1401(19)." Id. n. 27. An essential element of a FAPE is an appropriate IEP. 20 U.S.C. Sec. 1401(18). The question we must answer in this appeal is whether the requirements of section 1401(19) have been met.

Appellant argues that the school failed to comply with the Act because it did not develop an IEP according to the Act's requirements and that the educational alternatives it offered appellant were not sufficient to enable him to receive any educational benefit. Appellant first claims that there was no IEP in place when he began the school year, which is in violation of 34 C.F.R. Sec. 300.342 (1987). ¹ However, appellant's contention misreads the requirements of section 300.342. Section 300.342 provides that:

(a) ... [A]t the beginning of each school year ... each public agency shall have in effect an individualized education program for every handicapped child who is receiving special education from that agency.

(b) An individualized education program must:

. . . . .

(2) Be implemented as soon as possible following the meetings under Sec. 300.343.

This regulation merely requires that where it is determined that special educational services are necessary, an IEP must be in place at the beginning of the school year. However, it can only be implemented after the meeting required by section 300.343, which in this case did not occur until November 7, 1986. Although an M-Team meeting was held on May 28, 1986 regarding appellant's junior high school placement, appellant's father specifically requested through November that there be no intervention while his son began his attendance at junior high school so the parents could see how well appellant could do on his own.

Appellant also argues that the IEP issued after the November meeting was insufficient because it did not state his present levels of educational performance and because it failed to state appropriate objective criteria for determining whether his instructional objectives were being met. Under the EAHCA, an IEP must be a written statement which includes:

(A) a statement of the present levels of educational performance of [the] child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to [the] child, and the extent to which [the] child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual...