Gillette By and Through Gillette v. Fairland Bd. of Educ., 90-3270

• Decision Date: 09 May 1991
• Docket Number: No. 90-3270,90-3270
• Citation: 932 F.2d 551
• Parties: 67 Ed. Law Rep. 510 P.T. GILLETTE, Jr., a minor, By and Through his parents, Paul and Susan GILLETTE, Plaintiff-Appellee, v. FAIRLAND BOARD OF EDUCATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 551

932 F.2d 551

67 Ed. Law Rep. 510

P.T. GILLETTE, Jr., a minor, By and Through his parents Paul and Susan GILLETTE, Plaintiff-Appellee, v. FAIRLAND BOARD OF EDUCATION, Defendant-Appellant.

No. 90-3270.

United States Court of Appeals Sixth Circuit.

Argued March 28, 1991.

Decided May 9, 1991.

Michael J. Mooney, Cincinnati, Ohio, for plaintiff-appellee cross-appellant.

Paul W. McCartney, Ralph F. Mitchell, Rendigs, Fry, Kiely & Dennis, Cincinnati, Ohio, for defendant-appellant cross-appellee.

Before KENNEDY and RYAN, Circuit Judges, and JOINER, Senior District Judge. ^*

KENNEDY, Circuit Judge.

The Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1400 et seq. (the Act), provides that in order to qualify for federal funds for the education of children with disabilities, the states must ensure that all children with disabilities are provided with a "free appropriate public education." 20 U.S.C. Sec. 1412(1). If a state is unable to provide an appropriate education in its own schools, then it must provide the tuition for a private education at a school which is able to provide an appropriate education. The defendant, Fairland Board of Education (defendant), appeals the District Court's summary judgment order requiring the defendant to reimburse the plaintiffs, P.T. Gillette, Jr., and his parents, Paul and Susan Gillette (plaintiffs), for amounts expended for tuition and room and board at a private school. 725 F.Supp. 343. We find that the District Court failed to give sufficient deference to the findings of the state hearing officers, and we therefore REVERSE.

I.

The plaintiff, P.T. Gillette (P.T.), who is dyslectic, is a child with a learning disability as defined by 20 U.S.C. Sec. 1401(a)(15). P.T. attended Fairland Middle School for the fifth and sixth grades during the 1982-83 and 1983-84 school years. P.T.'s parents removed him from Fairland and enrolled him in the Phelps School for Learning Disabled Boys, a private school in Malvern, Pennsylvania, for his seventh and eighth grades during the 1984-85 and 1985-86 school years. At Phelps, P.T. was taught in small classes with boys who were at the same academic level and ability. P.T. returned to Fairland High School for the ninth grade during the 1986-87 school year. At his parents' request, P.T. attended classes with students who were not disabled throughout his ninth grade. P.T.'s work was supervised by school counselor, Linda Fizer Schneider, who coordinated P.T.'s lesson plans and reading assignments, and sent them to the Gillettes one week in advance. P.T. did not pass all of his courses.

In May 1987, the Gillettes requested a due process hearing to determine whether defendant had complied with requirements of the Act and state law. The hearing was subject to several delays, and was finally held in February 1988, after two different Individualized Education Programs (IEP) had officially been suggested by the defendant. The Act requires that the school develop for each child with a disability an IEP which outlines the goals of the child's program, and the way in which the child will be taught throughout the year. 20 U.S.C. Sec. 1414(a)(5). The first proposed IEP involved enrolling P.T. in a vocational education program. This program, referred to as the vocational IEP, had originally been requested by the plaintiffs, but was later rejected by them because it would require P.T. to return to Fairland High School as a senior to complete his sophomore year requirements since the vocational education program is ordinarily offered only to students in the eleventh and twelfth grades. In August 1987, the defendant suggested another IEP. The August IEP proposed that P.T. be placed in learning disabled classes for all subjects except physical education, health, projects and math skills. The Gillettes, who were dissatisfied with the suggested IEP, sent a letter through their counsel (the Mooney letter) to the defendant, which suggested certain changes in the IEP. The defendant responded to that letter with counter-suggestions (the Meyers letter). Before the defendant had responded, however, the Gillettes removed P.T. from the Fairland school and enrolled him again at the Phelps School. For the most part, the Meyers letter stated that those suggestions in the Mooney letter which were not already contained in the IEP would be incorporated. The only real objection that the Meyers letter raised to the suggestions in the Mooney letter, was the proposal that P.T. be enrolled in no learning disabled (LD) classes, but instead be enrolled in modified classes for children who are not disabled.

The Impartial Due Process Hearing, which had first been requested by the Gillettes in May 1987, was held in February 1988. The Independent Hearing Officer (IHO) held that the Gillettes were not entitled to any reimbursement for any of the years in which P.T. had been enrolled at Phelps since the defendant had provided P.T. with a free appropriate public education (FAPE) as required by the Act. The IHO found that if P.T. was to return to the Fairland school, his IEP should be based on the Mooney and Meyers letters as well as the proposed IEP drafted in August of 1987.

The Gillettes appealed that decision to the State Level Review Officer (SLRO), arguing that the Act required P.T. to be fully mainstreamed. The SLRO, however, found that the evidence clearly indicated that P.T.'s placement in general level classes, instead of skills level or learning disabled classes, was not a proper placement. The SLRO concluded that the August IEP proposal was not that dissimilar from the suggestions contained in the Meyers and Mooney letters, and that together they constituted an appropriate education for P.T. After an examination of the evidence, the SLRO concluded "that the Fairland Schools was [sic] willing and able to provide a free appropriate public education for P.T. Gillette and, therefore, the Gillette's [sic] were without legal or factual bases to justify their unilateral decision to remove P.T. from the Fairland Schools and to place him at The Phelps School in the tenth grade."

The Gillettes filed this suit in federal district court, as permitted by 20 U.S.C. Sec. 1415, seeking reimbursement for expenses for the years that P.T. spent at the Phelps School. Following the filing of cross-motions for summary judgment, the District Court found that the August IEP lacked the maximum amount of mainstreaming as required by the Act. The Gillettes were therefore awarded reimbursement for the tuition and room and board they expended for P.T.'s tenth and eleventh grades. The District Court denied the Gillettes' request for reimbursement for all other grades. ¹

II.

The District Court concluded that, although the academic quality of the education provided P.T. was adequate, P.T. had not been "mainstreamed" according to the requirements of the Act. The Act requires that the schools ensure that:

[T]o the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care...