Kerkam v. McKenzie, 87-7212

• Decision Date: 19 January 1989
• Docket Number: No. 87-7212,87-7212
• Citation: 274 U.S. App. D.C. 139,862 F.2d 884
• Parties: , 50 Ed. Law Rep. 712 Alexander KERKAM, et al. v. Floretta McKENZIE, Superintendent, D.C. Public Schools, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 884

862 F.2d 884

274 U.S.App.D.C. 139, 50 Ed. Law Rep. 712

Alexander KERKAM, et al. v. Floretta McKENZIE, Superintendent, D.C. Public Schools, et al., Appellants.

No. 87-7212.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 15, 1988.

Decided Dec. 9, 1988.

As Amended Jan. 19, 1989.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-02656).

Susan S. McDonald, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellants.

Michael J. Eig, with whom Matthew B. Bogin and Margaret A. Kohn, Washington, D.C., were on the brief, for appellees.

Before WILLIAMS, D.H. GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

In order to qualify for federal grants under the Education for All Handicapped Children Act, 20 U.S.C. Sec. 1400 et seq. (1982 & Supp. IV), states and the District of Columbia must offer a "free appropriate public education" to all handicapped children. Id. at Sec. 1412(1). They may do so either by providing it directly in public facilities or by paying the costs of a private facility. Id. at Sec. 1413(a)(4)(B); see also School Committee of the Town of Burlington v. Dep't of Education, 471 U.S. 359, 369-71, 105 S.Ct. 1996, 2002-03, 85 L.Ed.2d 385 (1985) (parents entitled to reimbursement for their expenditures on private special education where that placement, rather than proposal of school authorities, is found "appropriate"). If the state (or District) makes an appropriate education in a public facility available to the child, it need not pay for his education at a private one. 34 C.F.R. Sec. 300.403 (1987).

Born in 1970, ¹ Alexander Kerkam is a severely retarded youth with approximately the capacity of a two-year-old for most functions. His handicaps affect his ability to walk and to communicate by word or sign.

His parents, James and Roberta Kerkam, placed him in 1982 in the Willow Street Day School, a private school for handicapped children, and arranged for him to live at the Keystone City Residence, a group home, all at their own expense. Both Willow Street and Keystone are in Scranton, Pennsylvania. When they moved to the District in January 1984, they sought a special education placement for Alexander from the District of Columbia Public Schools ("DCPS").

As required by the Act, 20 U.S.C. Sec. 1401(a)(19), the DCPS formulated an Individual Educational Program ("IEP") for Alexander. In the IEP, the DCPS proposed to place him in a day program at the Mamie D. Lee School, a public special-educational facility located in the District. The Kerkams objected to the DCPS's position that Mamie D. Lee was appropriate for Alexander and sought to have the IEP modified to require placement at Willow Street-Keystone. The matter went to a hearing officer as provided in the Act. Although consistently rejecting the Kerkams' contention that only residential placement (such as that offered by Willow Street-Keystone) was appropriate, the officer twice found the proposed placement at Mamie D. Lee inadequate. Ultimately the DCPS agreed to provide additional hours and services, and in light of those supplements the officer found Mamie D. Lee's program appropriate.

Alexander and his parents sued to overturn the hearing officer's decision under the Act's provision for district court review. See 20 U.S.C. Sec. 1415(e). The district court found that the DCPS's proffered education was not adequate and ordered reimbursement. Kerkam v. District of Columbia Bd. of Educ., 672 F.Supp. 519 (D.D.C.1987). ² As the district court appears to have used an impermissible standard in assessing the DCPS's proposed placement, similar to one explicitly rejected by the Supreme Court in Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), and as it gave no apparent deference to the decision of the hearing officer below, as required by Rowley, we reverse and remand the case for further consideration.

I.

In Rowley the Supreme Court construed the concept of "appropriate" education as used in the Act. It observed that "the Act imposes no clear obligation upon recipient States beyond the requirement that handicapped children receive some form of specialized education." 458 U.S. at 195, 102 S.Ct. at 3045. Quoting the House Report, the Court found the states are required to make available a "basic floor of opportunity," id. at 200, 102 S.Ct. at 3047, which it viewed as one "reasonably calculated to enable the child to receive educational benefits," id. at 207, 102 S.Ct. at 3051, "sufficient to confer some educational benefit upon the handicapped child," id. at 200, 102 S.Ct. at 3048, or a program "individually designed to provide educational benefit," id. at 201, 102 S.Ct. at 3048.

The Court was unusually emphatic in identifying one requirement the Act did not impose. In at least four places it rejected the idea that the required education must "maximize the potential of handicapped children." Id. at 189, 197 n. 21, 198, 199, 102 S.Ct. at 3042, 3046 n. 21, 3046, 3047. Thus, proof that loving parents can craft a better program than a state offers does not, alone, entitle them to prevail under the Act.

Rowley also spoke to the role of the district court in reviewing specific agency decisions under the Act. Some of the statutory language seems to suggest that de novo review is intended:

In any action brought under this paragraph [affording a civil remedy for per sons aggrieved by the decision of state agencies] the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.

20 U.S.C. Sec. 1415(e)(2). The Supreme Court, however, found that when considered in light of the Act as a whole, "the provision that a reviewing court base its decision on the 'preponderance of the evidence' 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." 458 U.S. at 206, 102 S.Ct. at 3051. The Court reasoned that Sec. 1415(e)'s requirement that the reviewing court receive the records of the administrative proceedings carried an implied duty to give "due weight" to that record. It also argued that Congress's emphasis on fair procedures at the administrative level would be frustrated if courts could freely disregard the results.

The procedures are spelled out in Sec. 1415(a) through (d) and are substantial. They include the rights to be accompanied by counsel and to "confront, cross-examine, and compel the attendance of witnesses." The hearing is characterized by Congress as an "impartial due process hearing," Sec. 1415(b)(2), and is not to be conducted "by an employee of such agency or unit involved in the education or care of the child." Id.

Deference to the hearing officer makes sense in a proceeding under the Act for the same reasons that it makes sense in the review of any other agency action--agency expertise, the decision of the political branches (here state and federal) to vest the decision initially in the agency, and the costs imposed on all parties of having still another person redecide the matter from scratch. But the district court's authority under Sec. 1415(e) to supplement the record below with new evidence, as well as Congress's call for a decision based on the "preponderance of the evidence," plainly suggest less deference than is conventional.

We will not try here to capture the appropriate deference in some formula; even assuming a formula would greatly assist the district court on remand, the parties' briefing of the issue has been rather casual. But we think it clear that a party challenging the administrative determination must at least take on the burden of persuading the court that the hearing officer was wrong, and that a court upsetting the officer's decision must at least explain its basis for doing so.

McKenzie v. Smith, 771 F.2d 1527, 1534 (D.C.Cir.1985), states that the DCPS "totally neglected its obligation ... to demonstrate that it could provide an appropriate placement for the child." This could be read as placing the burden on the school authorities regardless of the hearing officer's decision. But as the school authorities in Smith had lost before the hearing officer, we think the case is more properly read as requiring the loser, as the moving party, to shoulder the burden on appeal to the district court. See also McKenzie v. Jefferson, 566 F.Supp. 404 (D.D.C.1983) (burden on school authorities to show by a preponderance why the hearing officer's determination should be set aside). Such an allocation of the burden accords with Rowley's requirement of deference to the state agencies that must follow the statutorily mandated procedures--in this case, the hearing officer. See Town of Burlington v. Department of Education, 736 F.2d 773, 794 (1st Cir.), aff'd on other grounds, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1984); but see Grymes v. Madden, 672 F.2d 321, 322 (3rd Cir.1982) (passing allusion to school district's burden of proof). ³

In Town of Burlington the First Circuit remarked that after the district court has "endeavor[ed] to respond to the hearing officer's resolution of each material issue," it is "free to accept or reject the [administrative] findings in part or in whole." 736 F.2d at 792. We do not understand this to suggest that the requirement of deference evaporates once the district court has "responded," since that would be inconsistent with Rowley 's requirement that the court give the officer's findings "due weight."

II.

We now turn to the evidence before the hearing officer and the...