Hall by Hall v. Vance County Bd. of Educ.

• Decision Date: 10 October 1985
• Docket Number: No. 84-1013,84-1013
• Parties: 27 Ed. Law Rep. 1107 James A. HALL, IV, by his Guardian Ad Litem, James A. HALL, III; James A. Hall, III and Frances A. Hall, Appellees, v. The VANCE COUNTY BOARD OF EDUCATION; North Carolina State Board of Education and A. Craig Phillips, North Carolina Superintendent of Public Instruction, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 629

774 F.2d 629

27 Ed. Law Rep. 1107

James A. HALL, IV, by his Guardian Ad Litem, James A. HALL, III; James A. Hall, III and Frances A. Hall, Appellees, v. The VANCE COUNTY BOARD OF EDUCATION; North Carolina State

Board of Education and A. Craig Phillips, North

Carolina Superintendent of Public

Instruction, Appellants.

No. 84-1013.

United States Court of Appeals,

Fourth Circuit.

Argued Oct. 3, 1984.

Decided Oct. 10, 1985.

Paul J. Stainback, Henderson, N.C., Elizabeth C. Bunting, Raleigh, N.C. (Rufus L. Edmisten, Kaye R. Webb, Asst. Atty. Gen., Raleigh, N.C., on brief), for appellants.

M. Keith Kapp, Raleigh, N.C. (W.W. Taylor, Jr., Maupin, Taylor & Ellis, P.A., Raleigh, N.C., on brief), for appellees.

Before WINTER, Chief Judge, WILKINSON, Circuit Judge, and BUTZNER, Senior Circuit Judge.

HARRISON L. WINTER, Chief Judge:

Defendants, Vance County Board of Education, the North Carolina Board of Education, and A. Craig Phillips, Superintendent of the North Carolina Department of Public Instruction, appeal from a decision of the district court that they had failed to provide James Hall, IV, with a free appropriate public education (FAPE) prior to January 1982, as required by the Education for All Handicapped Children Act (EAHCA), 20 U.S.C. Secs. 1400-1420 and the parallel North Carolina statute, N.C.G.S. Secs. 115C-106 to -116. The district court awarded plaintiffs, James and his parents, reimbursement for costs incurred by them in educating James. It also ordered the County Board of Education to pay James' tuition and fees at Oakland School, a private school, for the 1983-84 school year. Defendants appeal from both the finding that they denied James a FAPE and from the relief granted to plaintiffs.

We stayed decision in this case after oral argument pending Supreme Court review of Town of Burlington v. Department of Education for the Commonwealth of Massachusetts, 736 F.2d 773 (1 Cir.1984), a case involving some of the same issues presented by this case. After the Supreme Court announced its decision, Burlington School Committee of the Town of Burlington v. Department of Education of the Commonwealth of Massachusetts, --- U.S. ----, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985), we requested plaintiffs and defendants to submit supplemental memoranda addressing the Supreme Court's decision. In the light of that decision and of the parties' supplemental arguments, we affirm.

I.

James A. Hall, IV, is a bright sixteen year-old boy of above average intelligence. Yet at age eleven, as he prepared to enter the fifth grade in the Vance County, North Carolina, public schools, he was functionally illiterate, unable to distinguish between the words "ladies" and "gentlemen" on restroom doors, or to go to the store to make small purchases for his mother. James suffers from dyslexia, a severe learning disability that hinders his ability to decipher written symbols. Although there is no cure for dyslexia, a dyslexic child can learn methods of unscrambling words that will enable him to read.

James' parents have lived in Vance County, North Carolina since May of 1974. In the fall of that year he began kindergarten in the Vance County public schools. He progressed through kindergarten and first grade, and was promoted to second grade for the 1976-77 school year. During that year the Halls became increasingly aware of James' reading problems and requested that he be evaluated by the school psychologist. Dr. A.B. Laspina conducted this evaluation in May of 1977. His tests revealed that James had a high IQ, but that his reading level was more than a year behind his grade level. The tests did not indicate a perceptual basis for James' problems. Dr. Laspina recommended further evaluation by the school's learning disabilities teacher, reading remediation and special help, and part-time learning disability class placement. He also recommended that the parents employ a private tutor. The Vance County School Board and the school took none of the steps recommended by Dr. Laspina. Instead, the school merely endorsed his recommendation that the Halls employ, at their own expense, a tutor for James. The tutor worked with James from July 1977 to April 1979.

James did not successfully complete the second grade. He received six failing grades and a "D" for the 1976-77 school year, and he repeated the second grade during the 1977-78 school year. That year his grades were improved, although they revealed continued weakness in reading.

James entered the third grade in the Fall of 1978. His third-grade teacher recognized that he had learning difficulties and recommended further evaluation, to which the Halls consented. An evaluation committee met and identified James as learning disabled. They also drafted an "individualized educational program" ("IEP") to cover the second half of the 1978-79 school year (James' third grade) and all of the 1979-80 school year. The IEP called for James' placement in a regular classroom ninety-five percent of the time, and his placement in a learning disabilities resource room with other learning disabled students the remainder of the time. Apparently the school implemented the IEP by having James attend resource room twice a week for thirty-minute periods during the remainder of his third grade, and by increasing the number of sessions to four a week in fourth grade. In January 1979 the school system's placement committee approved the recommended IEP, and Mrs. Hall signed a consent form to James' placement. The parties dispute what notice the school gave the Halls of their substantive and procedural rights during the period December 1978 to January 1979. That issue is discussed below. There is no dispute, however, that the school failed to give such notice at any other time.

Despite institution of the IEP, James continued to receive poor grades, including a failing grade in reading in third grade. He was promoted to the fourth grade, apparently because of a school policy against having a child repeat two grades in succession. James did not improve much in the fourth grade. Moreover, a battery of tests administered to James in December of 1978, before institution of the IEP, and again in May of 1980, after three semesters of the IEP, indicated little overall improvement. Most notably, he still tested at the second grade level for reading, and his reading recognition score had not improved at all. His test scores on other standardized tests given in 1979 and 1980 similarly indicated substantial learning problems. His performance on the California Achievement Test, taken in April of 1980, showed him scoring in the lowest two percent of the nation's fourth-grade students in reading comprehension and the lowest four percent in "total mathematics."

Despite this lack of progress, the school proposed to promote James to the fifth grade and to continue for the 1980-81 school substantially the same IEP as the one that had to date not helped him. The new IEP again called for James to spend ninety-five percent of his time in a regular class and the remaining time, four thirty-minute periods a week, in a special education resource room. In desperation, the Halls decided to enroll James in a local private school, Vance Academy, for the 1980-81 school year. Because Vance Academy was not equipped to teach learning disabled children, James was unable to keep up. He left the school within two months of enrolling.

On the academy's recommendation, the Halls sought a private evaluation of James. In September 1980, the Halls had James tested by Sharon Fox White who diagnosed him as dyslexic. She later stated that in her nine years of experience with learning disabled children she had "seen very few with James' impressive ability and extremely poor achievement." A second private evaluation, conducted by Dr. John A. Gorman, confirmed the diagnosis. Dr. Gorman found that James was functionally illiterate and that his reading comprehension was untestable. He also found that James' repeated failure at school had resulted in emotional harm and that he had begun to develop a "school phobia." He recommended residential placement for James, and suggested a number of schools including Oakland School in Boyds Tavern, Virginia. The Halls chose Oakland because it was the closest residential school that accepted learning disabled children. Because Oakland had no immediate openings, the Halls kept James at home and provided private tutoring from October 1980 until June 1981.

In April 1981, when the Halls first learned from someone at Oakland that they might be able to obtain public funding for James' education at a private school, they contacted a lawyer who suggested that they obtain Vance County Board of Education approval for his placement at Oakland. Beginning in May the Halls made repeated efforts to have the county schools approve the Oakland placement. The County School Board insisted, however, that it could not initiate any procedures regarding placement and funding unless James was first re-enrolled in the Vance County schools. Only in November, after the Halls had turned to the State Board of Education and the State Board had informed the Vance County Board of Education that its position was legally untenable, ¹ did the County Board relent on its precondition and agree to evaluate James in order to determine the appropriate precondition. James' evaluation occurred on December 15, 1981.

The December 1981 evaluation indicated that James had made considerable progress at Oakland. His reading recognition, reading comprehension, and spelling scores had all increased at least one grade level from when he was last tested. Based on this evaluation, the school proposed placement in the Vance County Schools and a new IEP that called for most of James' time to be spent in specialized instruction classes. The Halls opposed this proposal. On January 22, 1982, the case was heard before a local hearing examiner who found the IEP...