Matthews by Matthews v. Davis, 83-1594

• Decision Date: 30 August 1984
• Docket Number: No. 83-1594,83-1594
• Citation: 742 F.2d 825
• Parties: 19 Ed. Law Rep. 935 David Bruce MATTHEWS, an infant who sues by his mother and next friend, Elizabeth J. MATTHEWS, Appellant, v. Dr. S. John DAVIS, in his official capacity as Superintendent of Public Instruction, Virginia Department of Education, Howard O. Sullins, individually, and in his official capacity as Division Superintendent, Chesterfield County Public Schools, C.E. Curtis, Jr., G.R. Partin, John S. Harvie, III, A. Perry Strickland, III, E.A. Moseley, Jr., each in his or her capacity as members of the Chesterfield County School Board, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 825

742 F.2d 825

19 Ed. Law Rep. 935

David Bruce MATTHEWS, an infant who sues by his mother and next friend, Elizabeth J. MATTHEWS, Appellant, v. Dr. S. John DAVIS, in his official capacity as Superintendent of Public Instruction, Virginia Department of Education, Howard O. Sullins, individually, and in his official capacity as Division Superintendent, Chesterfield County Public Schools, C.E. Curtis, Jr., G.R. Partin, John S. Harvie, III, A. Perry Strickland, III, E.A. Moseley, Jr each in his or her capacity as members of the Chesterfield County School Board, Appellees.

No. 83-1594.

United States Court of Appeals Fourth Circuit.

Argued Jan. 11, 1984.

Decided Aug. 30, 1984.

John F. Rick, Manassas, Va. (Christopher M. Malone, Thompson & McMullan, Richmond, Va., on brief) for appellant.

Oliver D. Rudy, Chesterfield, Va. (Rudy, Gill & Keown, Chesterfield, Va., David R. Johnson, Williams, Mullen & Christian, Phyllis C. Katz, Asst. Atty. Gen., Richmond, Va., on brief), for appellees.

Before RUSSELL and WIDENER, Circuit Judges, and BUTZNER, Senior Circuit Judge.

WIDENER, Circuit Judge:

Appellant David Bruce Matthews, by his mother Elizabeth J. Matthews, appeals from an order of the district court which released the Chesterfield County public school system from its obligation under a previous order of the district court to provide 24-hour residential care and education for David, a severely handicapped child, as a part of his educational program. We affirm the judgment of the district court, and make only a slight alteration in its terms not touching the merits of the case.

I.

David, born October 25, 1966, is a severely and profoundly retarded child. He has an approximate IQ of eleven and a mental age of about 14 months. In addition to mental retardation, he suffers from myoclonic seizures, both grand and petit mal, which are somewhat controlled by medication.

David is a handicapped child within the meaning of the Education for All Handicapped Children Act of 1975, as amended, 20 U.S.C. Sec. 1400 et seq. (the Act), 29 U.S.C. Sec. 794, and the Virginia Code Sec. 22.1-213 et seq., and 34 C.F.R. Sec. 300.550 et seq. These statutory and regulatory provisions oblige the State's public schools to provide David a "free appropriate public education" in the "least restrictive environment."

From May 1973 until August 1977, David's family lived in Missouri, where the local school system chose to meet its educational obligations by placing David in Woodhaven Learning Center, a residential institution. In August 1977, David's family moved to Chesterfield County, Virginia. He entered the upper developmental class for severely and profoundly retarded children at the Hening Elementary School in October 1977 for observation and evaluation. At that time, the school system undertook to develop an individualized education plan, as required by the Act, tailored to David's ability to learn. 20 U.S.C. Secs. 1401(19), 1412(4).

David's program, reviewed at the beginning of each school year and at least annually to report progress and revise goals, consists of a list of tasks he is considered capable of learning, such as sorting objects, learning to say simple words, lowering and raising pants, use of toilet, eating with a fork, toothbrushing, taking off his coat, hat or undershirt, putting on his coat or shirt, washing hands, and pouring milk, a multiplicity of simple tasks performed in response to verbal cues, David being capable of very little self-initiation. These goals are designed to give David some independence from caretakers. Reports on the program on a percentage basis show varying success. There is improvement from year to year and new tasks are added, although some are dropped because of lack of success. Many of the specific goals have not changed, either because the task has not been mastered, or because David will lose the skill unless it is retained in his program.

In December 1977, the Chesterfield County Special Education Committee recommended David continue in the upper developmental class at Hening, although his parents stated a preference for a program that provided 24-hour intervention. A subsequent application for tuition assistance to place David in a private school was denied by the Committee because it concluded the Hening program could meet David's needs. The parents appealed the Committee's decision unsuccessfully, first to the local school board and subsequently to the Superintendent of Public Education of the Commonwealth. The State concurred in the Committee's decision that David would receive an appropriate education at Hening, while living at home with his parents.

Upon the exhaustion of the state administrative procedures, this action was instituted in federal district court under the Act, 29 U.S.C. Sec. 794, and 42 U.S.C. Sec. 1983. Jurisdiction was found by the district court under 20 U.S.C. Sec. 1415(e)(4). The Matthews requested the district court to reverse the previous administrative decisions and to issue both preliminary and permanent injunctive relief requiring the defendants ¹ to provide appropriate residential placement for David. By order filed December 22, 1978, the request for injunctive relief was denied although the court retained jurisdiction over the case until its further order.

On January 13, 1979, the district court issued a ruling from the bench in which it concluded that the education being offered David was not "appropriate" under the Act and state statutes in that David was making very little progress at Hening and the 5 hour/day program was apparently insufficient to teach him the basic functional skills listed in his individualized plan. The district court gave the school district ninety days to restructure or redesign David's program, with specific directions to, at a minimum, lengthen his daily program until 6:00 p.m. on weekdays and to incorporate a toilet training program. The court also recommended the employment of an advisory panel of experts to review David's program and generally assist the school system in the matter.

In a First Supplemental Memorandum issued July 16, 1979, the district court, based on its review of data submitted by the parties on David's further progress and modifications of his program, concluded that the program had failed to make sufficient progress. The court noted that this conclusion was not based on any lack of diligence on the part of the defendants and indeed praised the defendants' efforts. However, reluctantly, the court found no meaningful progress had been made or seemed likely, and ordered the defendants to find or develop an appropriate residential program. Mindful of the possibility that David's handicaps could be a complete barrier to training regardless of his situation, the court set a minimum of six months' duration in a residential program after which it would again review David's progress.

After extended investigation and consultations among the parties and the court in which more than thirty out-of-state as well as domestic residential institutions were considered and evaluated, the defendants proposed several residential options to the district court, acknowledging at the same time that one element of David's progress, toilet training, should be implemented in a full-time program. From the list of options presented, the court, by order dated January 8, 1980, approved the placement of David in Chesterfield Option C, in which the school system arranged the rental of a residential apartment which was staffed by school personnel, with continuing attendance in the day program at Hening. That option, as did the others presented, included a full time toilet training program of short duration administered by experts. The court again retained jurisdiction and received regular reports on David's progress.

When David was successfully toilet trained, ² the school system, arguing that this was the sole element of David's progress that merited a 24-hour program, applied to the court to terminate the residential placement. After a hearing on September 28, 1981, the district court, heartened by this indication that David was indeed trainable when consistent professional care was available, ordered the residential program continued. A Memorandum and Order confirming his oral ruling was issued August 25, 1982.

However, since a year had passed between the hearing and the order, during which time the Supreme Court had addressed the subject for the first time, ³ the district court in that order offered the parties the opportunity to be heard again.

A new motion to terminate David's residential program was heard on June 3, 1983. This time the district court was persuaded that, although substantial progress had been achieved with the program, maintenance of the advances David had made and acquisition of the few additional skills of which he is considered capable could be accomplished without a residential program, which at that time was performing primarily custodial, not educational, functions.

In essence, the court found that an "appropriate" educational program for David no longer required residential placement and, that being true, it should not substitute its judgment for the school system's judgment on methodology under Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). A formal order dismissing the case, based on reasons stated from the bench, was issued June 14, 1983, from which this appeal was taken.

II.

The sole issue presented on appeal is whether the school system's proposed program of day school at Hening and living at home constitutes the "free appropriate public education" David is entitled to under the Act, which is precisely the issue analyzed by the Supreme Court in the Rowley case.

The Act and regulations issued thereunder require school districts receiving federal funding to provide a "free appropriate public education" in the "least...