Doe By and Through Doe v. Board of Educ. of Tullahoma City Schools

• Decision Date: 05 November 1993
• Docket Number: No. 92-5996,92-5996
• Citation: 9 F.3d 455
• Parties: 87 Ed. Law Rep. 354, 3 ADD 505 John DOE, a minor, By and Through his next friends and parents James and Mary DOE, Plaintiff-Appellant, v. The BOARD of EDUCATION of TULLAHOMA CITY SCHOOLS; Charles Embry, Superintendent, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 455

9 F.3d 455

87 Ed. Law Rep. 354, 3 ADD 505

John DOE, a minor, By and Through his next friends and parents James and Mary DOE, Plaintiff-Appellant, v. The BOARD of EDUCATION of TULLAHOMA CITY SCHOOLS; Charles Embry, Superintendent, Defendants-Appellees.

No. 92-5996.

United States Court of Appeals Sixth Circuit.

Argued Sept. 21, 1993.

Decided Nov. 5, 1993.

Shane Usary (argued and briefed), Luther, Anderson, Cleary, Ruth & Speed, Tricia Dennis (argued and briefed), Alley & Dennis, Chattanooga, TN, for plaintiff-appellant.

Frank Van Cleave (briefed), Ray & Van Cleave, Tullahoma, TN, John D. Kitch (argued and briefed), Kitch, Deas & Klein, Nashville, TN, for defendants-appellees.

Before: KEITH, GUY, and BATCHELDER, Circuit Judges.

PER CURIAM.

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 Individuals with Disabilities Education Act (IDEA or "Act"), 20 U.S.C. Secs. 1400-1485, for tuition expenses incurred from his enrollment at a private school. We AFFIRM the district court's decision denying John Doe's parents reimbursement.

I.

Appellant was enrolled in the Tullahoma, Tennessee, public school system until the fall of 1990, when he was placed by his parents in the Brehm School located in Carbondale, Illinois. The Brehm School is a private school specifically for children with learning disabilities. Prior to his transfer, appellant received no special education services.

In November of 1989, at his parents' request, appellant underwent a series of tests to determine if he suffered from any handicaps. The results of these tests indicated that appellant suffers from a neurological impairment that hinders his ability to process auditory information and engage in normal language and thinking skills. The tests also indicated that appellant has a full scale IQ of 130. The parties agree that, notwithstanding his unusually high IQ, appellant is handicapped within the meaning of the Act, and is therefore entitled to special education services.

After learning of appellant's newly discovered disability, the school district convened a multidisciplinary team (M-Team) meeting on the last day of school, May 30, 1990. The parties agreed that after appellant selected his courses for the fall, another M-Team meeting would be held to effectuate the development of an individualized education program (IEP) for appellant.

Appellant never chose his courses for the fall. On June 10 or 11, 1990, appellant's mother contacted the Brehm School about enrolling him. A month later, appellant and his parents visited the Brehm School, and on July 18, appellant's parents requested another M-Team meeting and advised the school system that appellant would be attending the Brehm School. On August 7 the M-Team meeting was convened. Appellant and his parents claimed that the Brehm School was the only appropriate placement for his needs and that the Tullahoma public school system should be required to provide funding for his education at Brehm. The M-Team declined to create an IEP until further testing could be performed in the fall. On August 21, 1990, appellant filed an action for injunctive relief in federal district court, requesting that the school system be ordered to develop an IEP and provide funding for appellant to attend the Brehm School. The district court ordered the completion of an IEP for appellant.

Since appellant refused to select classes for the fall, the school chose them for him and had each of his teachers submit programs for his progress in each of his courses. The school system's proposed IEP rejected the parents' assertion that the Brehm school was the only appropriate placement and provided that appellant receive a variety of special services at the Tullahoma public schools. Appellant objected to the proposed IEP, again asserting that the Brehm school was the only appropriate placement. The school system's IEP was never implemented since appellant began attending the Brehm School.

On September 18, 1990, a due process hearing was commenced before an ALJ of the Tennessee Department of Education to review the IEP and address the question of reimbursement. The ALJ concluded that the IEP was adequate and that appellant's parents were not entitled to reimbursement. The district court agreed.

II.

Appellant and his parents make a number of arguments in support of their contention that the Brehm School is the only appropriate placement for him. First, they argue that the Tennessee Special Education statute mandates a higher standard for the education of handicapped children than the standard enunciated in the IDEA. Next, appellant and his parents contend that the IEP proposed by the Tullahoma schools does not comport with the procedural and substantive requirements of the Act. Finally, they argue that the district court misconstrued the mainstreaming requirements of the Act.

A. THE TENNESSEE SPECIAL EDUCATION STATUTE

In this, and other circuits, it is settled that "even if a school district complies with federal law, it may still violate the [federal] Act if it fails to satisfy more extensive state protections that may also be in place." Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 620 (6th Cir.1990); accord David D. v. Dartmouth Sch. Comm., 775 F.2d 411, 417 (1st Cir.1985) (It is "beyond cavil that the federal [IDEA] standard explicitly incorporates some of a state's substantive law") cert. denied 475 U.S. 1140, 106 S.Ct. 1790, 90 L.Ed.2d 336 (1986); Geis v. Board of Educ. of Parsippany-Troy Hills, 774 F.2d 575, 581 (3d Cir.1985) ("[W]e find that the incorporation of state standards is explicit in the Act.").

In this case, the district court applied the standard for education of the handicapped announced in Board of Educ. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). In Rowley, the Supreme Court held that an IEP comports with the standards of the IDEA if it is "reasonably calculated to enable the child to receive educational benefits." Id. at 207, 102 S.Ct. at 3051. Rowley is the so-called "floor" for education of the handicapped; every IEP must rise to at least this level, but states may impose a higher standard if they choose.

Appellant contends that the Tennessee legislature chose to impose a higher standard than the federal Act, and manifested this intent by enacting the Tennessee Special Education statute. Their contention is based upon a reading of Tenn.Code Ann. Sec. 49-10-101(a)(1) (1990), which provides in pertinent part:

Legislative intent--Application of parts 1-6.--(a)(1) It is the policy of this state to provide, and to require school districts to provide, as an integral part of free public education, special education services sufficient to meet the needs and maximize the capabilities of handicapped children.

(emphasis added).

Initially, we note that the "maximizing" language of Tenn.Code Ann. Sec. 49-10-101(a)(1) was passed as Act of April 13, 1972, ch. 839, 1, 1972 Tenn.Pub. Acts 1523, to take effect July 1, 1972. However the federal Act, Pub.L. No. 94-142, was enacted November 29, 1975, to take effect October 1, 1977. Unless we can attribute prescience to the Tennessee legislature, it is impossible to infer an intent to expand the federal scheme simply from the enactment of this statute when the language in question predates the federal scheme. But even if the Tennessee legislature is not composed of seers capable of divining federal legislation-to-be, it is possible that the Tennessee legislature and courts indicated after the passage of the IDEA, that Tenn.Code Ann. Sec. 49-10-101(a)(1) was to be interpreted to impose a higher standard than the federal Act.

However, there are no Tennessee state court decisions interpreting the special education statute in the manner suggested by the appellant; the only two federal district court decisions that address the issue arrive at diametrical conclusions, ¹ and there is no other legislative history or administrative pronouncement which supports the appellant's position. In short, there is no hard evidence to indicate that the Tennessee legislature intended anything more than to remedy the past inadequacies of educational opportunities offered to the handicapped.

We acknowledge that other circuits have found state special education statutes to impose a higher standard than federal law; ² however, we do not find such a holding to be justified in this case.

B. SUBSTANTIVE AND PROCEDURAL REQUIREMENTS OF THE ACT

1. The Standard Of Review

The standard of review for actions brought under the Act is a modified de novo review. In Board of Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982), the Supreme Court indicated that a complete de novo review is inappropriate. Quoting Rowley, this Court has held, that the language in the Act "is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review...." Thomas, 918 F.2d at 624. This Court has determined that Rowley "requires a de novo review [of the due process hearing] but that the district court should give due weight to the state administrative proceedings in reaching its decision." Roncker ex rel. Roncker v. Walter, 700 F.2d 1058, 1062 (6th Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 196, 78 L.Ed.2d 171 (1983).

This Court has determined that appellant and his parents bear the burden of proving by a preponderance of the evidence that the IEP devised by the Board is inappropriate. Cordrey v. Euckert, 917 F.2d 1460, 1469 (6th Cir.1990); see also Doe v. Defendant I, 898 F.2d 1186, 1191 (6th Cir.1990).

2. The Alleged Procedural Violations

Appellant and his parents contend that the proposed IEP violated the procedural requirements of the Act. We are satisfied that the district court's analysis met the standard set forth in Doe v....