Petition of Milan School Dist.

• Decision Date: 31 March 1983
• Docket Number: No. 82-024,82-024
• Citation: 459 A.2d 270,123 N.H. 227
• Parties: , 10 Ed. Law Rep. 1145 Petition of MILAN SCHOOL DISTRICT (New Hampshire Board of Education).
• Court: New Hampshire Supreme Court

Page 270

459 A.2d 270

123 N.H. 227, 10 Ed. Law Rep. 1145

Petition of MILAN SCHOOL DISTRICT (New Hampshire Board of Education).

No. 82-024.

Supreme Court of New Hampshire.

March 31, 1983.

Nighswander, Martin, KillKelley & Kidder, P.A., Laconia (Bradley F. Kidder and James L. Burke, Laconia, on the brief, and Bradley F. Kidder orally), for the Milan School Dist.

New Hampshire Legal Assistance, John D. MacIntosh, Concord, (Margaret L. Popkin, and Carol J. Young, Berlin, on the brief, and John D. MacIntosh orally), for Christine L., by and through her mother and next friend, Shirley L.

Soule, Leslie, Bronstein & Zelin, Salem (Gerald M. Zelin, Salem, on the brief), by brief for the Salem School Dist., as amicus curiae.

Ronald K. Lospennato, and M. Elaine Beauchesne, Concord, and Frank Laski, Philadelphia, Pa., by brief for the Developmental Disabilities Advocacy Center, Inc., the Association for the Severely Handicapped, Region X of the American Association on Mental Deficiency, and the New Hampshire Association for Retarded Citizens, as amici curiae.

BATCHELDER, Justice.

This is a petition for a writ of certiorari from a decision by the State Board of Education requiring the Milan School District to provide special education and related services to a mentally and physically handicapped child. For the reasons set forth below, we dismiss the petition.

The record indicates that Christine L. is profoundly mentally retarded (i.e., having a developmental level of zero to twelve months) and suffers from cerebral palsy which limits her motor ability. Christine lives with her mother within the Milan School District. The school district has provided various educational programs to Christine since she was seven.

In January 1981, the school district, by letter, advised Christine's mother that it would not continue to provide such educational services beyond the end of that school year because it had determined that the child, then fifteen years old, was "not educationally handicapped and cannot benefit from an educational placement." The letter stated that the school district's decision was based on a report prepared by Patricia Andrews, M.D., a specialist in child development, and on the findings of the Milan Pupil Placement Team. The placement team is a group of people responsible for referral, identification, and evaluation of educationally handicapped students, and for the development and monitoring of individual education programs for such children. See New Hampshire Standards for the Education of Handicapped Students, ED § 1101.04. Placement team reports must be prepared after a handicapped child's initial evaluation and at least once every three years thereafter. ED § 1107.06. Copies of Dr. Andrews' report and findings of the placement team were enclosed with the school district's letter. The notice, as required by law, also informed Mrs. L. of Christine's rights to due process review and further evaluation. ED § 1107.86.

Mrs. L., as mother and next friend of Christine, appealed the school district's decision. In September 1981, hearings were held before Newell J. Paire, appointed by the State Board of Education as an impartial hearing examiner. See ED §§ 1127.01, 1127.02. On October 21, 1981, the examiner determined that Christine was so severely handicapped that she was not entitled to special education. The examiner's decision was appealed to the State Board of Education. See ED § 1127.03. The parties submitted a stipulated record and legal memoranda, and the board heard oral arguments in the matter.

Because the school district had denied Christine educational services, the board issued a preliminary order mandating that the school district provide such services pending all appeals, as required by State and federal law. See ED § 1127.02(k); 34 C.F.R. § 300.513 (1982). On January 11, 1982, the board issued a report finding that Christine could benefit from special education, rescinded the ruling of the hearing examiner, and ordered the school district to provide educational services and to develop an appropriate individual education plan (IEP) for Christine. It is from this ruling that the school district seeks relief by its petition for a writ of certiorari.

The school district contends that it is not required by the State's special education law, RSA ch. 186-C (Supp.1981), to provide special educational services to a child who is profoundly retarded and has allegedly shown no change in her developmental level during the past seven years. The Salem School District submitted an amicus brief in support of Milan School District's position, and several groups representing the developmentally disabled briefed the application of State and federal law regarding education of handicapped children.

Before we can reach the merits of this petition, it is necessary to review the context of federal and State law from which it arises.

I. The Education for All Handicapped Children Act and New Hampshire's Special Education Law.

During the past decade, there has been a burgeoning recognition of the needs of the handicapped and of their rights to education and services, which has been reflected in federal and State law. See, e.g., Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 3037, 73 L.Ed.2d 690 (1982); Garrity v. Gallen, 522 F.Supp. 171 (N.H.1981); Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 343 F.Supp. 279 (E.D.Pa.1972); see also Senate Comm. on Labor & Public Welfare, Education for All Handicapped Children Act of 1975, S.Rep. No. 168, 94th Cong., 1st Sess., reprinted in 1975 U.S.Code Cong. & Ad.News 1425.

The law governing the educational rights of handicapped children has been referred to as a "hybrid," comprised of elements of both federal and State law. Garrity v. Gallen, 522 F.Supp. at 221. The most significant law in this area is the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401-1461 (1976) (EHCA), which represents an ambitious federal effort to promote the education of handicapped children who previously had been excluded from receiving adequate education.

EHCA provides federal money to the States to assist in the education of handicapped children. A State's receipt of funding is conditioned upon compliance with extensive procedures set forth in EHCA and with regulations promulgated by the United States Department of Education. See 20 U.S.C. §§ 1412, 1413, 1416 (1976); 34 C.F.R. §§ 300.110, 300.111 (1982). New Hampshire receives over 3.5-million dollars in federal funds, and, consequently, is bound by the federal guidelines.

Under these laws, in order to qualify for funding, a State must demonstrate that it "has in effect a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. *273s 1412(1) (1976). A "free appropriate public education" is designed to meet the unique needs of the handicapped child by means of an individualized educational program (IEP) developed through a consultative process involving the local education agency, the teacher, and the parents. 20 U.S.C. § 1401(18), (19) (1976); see Board of Education v. Rowley, 102 S.Ct. at 3038; see also RSA 186-C:2, III (Supp.1981) (defining "individualized education plan").

EHCA also requires the States to provide extensive procedural due process safeguards, which are designed to assure that handicapped children or their parents can enforce the rights guaranteed by federal law. 20 U.S.C. § 1415 (1976); see Board of Education v. Rowley, 102 S.Ct. at 3050-52; see generally Note, Enforcing the Right to an "Appropriate" Education: The Education of All Handicapped Children Act of 1975, 92 Harv.L.Rev. 1102, 1111-12 (1979). Under these procedures, the parent of a handicapped child must be notified of any proposed change in the child's IEP or placement, and must be permitted to bring a complaint about "any matter" relating to the child's education. 20 U.S.C. § 1415(b)(1)(C), (D), (E) (1976). An "impartial due process hearing" must be held concerning that complaint, and there must be a procedure providing for an appeal to the State educational agency. 20 U.S.C. § 1415(b)(2), (c) (1976). If there is still dissatisfaction with the decision of the State agency on appeal, EHCA provides that "[a]ny party aggrieved" has "the right to bring a civil action with respect to the complaint ... in any State court of competent jurisdiction or in a district court of the United States ...." 20 U.S.C. § 1415(e)(2) (1976). EHCA provides that a reviewing court "shall receive the record 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 [it] determines is appropriate." 20 U.S.C. § 1415(e)(2) (1976) (emphasis added).

The State version of EHCA, RSA chapter 186-C (Supp.1981), declares: "[I]t is the purpose of this chapter to insure that the state board of education and the school districts of the state provide a free and appropriate public education for educationally handicapped children." RSA 186-C:1 (Supp.1981). In other words, RSA chapter 186-C (Supp.1981) represents New Hampshire's efforts to ensure compliance with the federal law. Garrity v. Gallen, 522 F.Supp. at 221.

Under State law, children between the ages of three and...