Pinkerton v. Moye

• Decision Date: 17 February 1981
• Docket Number: Civ. A. No. 80-0016.
• Citation: 509 F. Supp. 107
• Court: U.S. District Court — Western District of Virginia
• Parties: Andelena PINKERTON, by her next friend Charlotte Pinkerton, Plaintiff, v. James E. MOYE et al., Defendants.

509 F. Supp. 107

Andelena PINKERTON, by her next friend Charlotte Pinkerton, Plaintiff, v. James E. MOYE et al., Defendants.

Civ. A. No. 80-0016.

United States District Court, W. D. Virginia, Danville Division.

February 17, 1981.

COPYRIGHT MATERIAL OMITTED

Michael K. Crookshank, Danville, Va., for plaintiff.

Anthony Giorno, Commonwealth's Atty., Patrick County, Stuart, Va., for defendants.

MEMORANDUM OPINION

TURK, Chief Judge.

This is an action against members of the Patrick County School Board, the Superintendent of Patrick County Schools, and the Superintendent of the Virginia Department of Education brought by Charlotte Pinkerton in behalf of her daughter Andelena Pinkerton, a twelve year old fifth grader suffering from learning disabilities, to compel them to provide certain learning-disability educational services at the Woolwine Elementary School in Patrick County, Virginia. The action is brought pursuant to § 615 of the Education for All Handicapped Children Act of 1975 (E.A.H.C.A.), Title 20 U.S.C. § 1415; § 504 of the Rehabilitation Act of 1973, Title 29 U.S.C. § 794; and Title 42 U.S.C. § 1983. By agreement of the parties, the case is submitted for a determination from the administrative record together with documentary evidence filed in this court.

I. BACKGROUND

In 1975, while attending school in Franklin County, Andelena was identified as having a learning disability with an emotional overlay and in need of special education. In July of 1977, she moved with her family to Patrick County and began attending classes at the Woolwine Elementary School in Woolwine, Virginia. Because of Mrs. Pinkerton's dissatisfaction with Andelena's educational program, she was enrolled in private programs at Ferrum College, Ferrum, Virginia, during the summers of 1978 and 1979, where she was assisted and tutored by a psychologist, Dr. Gene Watson. Dr. Watson determined that Andelena should be placed in a "self-contained" learning disabilities program where she could receive training in visual sequential memory, auditory sequential memory, arithmetic, and other subjects. A "self-contained" program is a program in which the child receives special education for three hours or more during the school day. In 1979, an Individualized Education Plan (IEP) was formulated for Andelena as required by the Education for All Handicapped Children Act of 1975, Title 20 U.S.C. § 1414(a)(5); Title 45 C.F.R. § 121a.341 et seq.¹ To meet her special educational needs, the plan called for placement of Andelena in a "self-contained" learning disabilities class. However, the only such class in Patrick County is located at the Stuart Elementary School in Stuart, Virginia. Woolwine Elementary is approximately 19 miles from plaintiff's home and is in her school district. Stuart Elementary is approximately 25 miles from her home and is in another school district.

Mrs. Pinkerton objected to the placement of Andelena at Stuart Elementary contending, in essence, that Andelena's emotional attachment to Woolwine Elementary would preclude maximization of her educational capabilities at Stuart. She demanded that a "self-contained" learning disabilities program be created at the Woolwine School "in order to insure an appropriate educational placement for Andelena." When the Board refused, Mrs. Pinkerton requested a hearing as required by federal and state law.² Title 20 U.S.C. § 1415(b)(2), Title 45 C.F.R. § 121a.506; Va.Code Ann. § 22.1-214; Va. Reg., Ch. V B 8 (1978). The hearing was held on July 2, 1979, and in a decision by the hearing officer on July 19, the Stuart School program and the transportation to that program were found to be "suitable," and Mrs. Pinkerton's claim that the Patrick County School Board was required to establish a "self-contained" learning disabilities class at the Woolwine Elementary School, accordingly, was rejected. The decision was then appealed in accordance with established procedure to the Virginia Board of Education where it was reviewed by a hearing officer designated by the Board. See Title 20 U.S.C. § 1415(c); Title 45 C.F.R. § 120a.510; Va.Reg., Ch. V B 8. A hearing officer for the State Board of Education conducted two hearings, one on September 13, 1979, and one on November 20 of that year. In an opinion entered by the hearing officer on November 30, "the facilities offered by Patrick County were found to be appropriate ...." Mrs. Pinkerton, in turn, commenced this action on February 8, 1980.

II. THE ALL HANDICAPPED CHILDREN ACT OF 1975 CLAIM

A. FINDINGS OF FACT

"Judicial review of administrative decisions concerning the education of a handicapped child is governed by 20 U.S.C. § 1415(e)(2). This statute provides that any party aggrieved by a final administrative decision may bring an action in either state or federal court. The statute directs the court to consider the administrative record and additional evidence presented by the parties, base its decision on the preponderance of the evidence, and grant appropriate relief." See Scruggs v. Campbell, 630 F.2d 237, 238 (4th Cir. 1980). Performing its functions under Title 20 U.S.C. § 1415(e)(2) the court makes its findings of fact:

(1) Andelena is currently in a "resource program" at Woolwine Elementary. A resource program is a program in which a student receives special educational instruction for thirty minutes or more but less than three hours per day. She is, however, as the parties agreed, in need of a "self-contained" program.

(2) From Mr. Watson's testimony at two of the administrative hearings, it is found that maximization of Andelena's educational capabilities would occur if she were in a "self-contained" class at Woolwine Elementary.

(3) At the time of the first administrative hearing on July 2, 1979, only six elementary students in Patrick County were identified as in need of a "self-contained" program. However, as of October 20, 1980, eleven such students had been identified.

(4) The only self-contained program in Patrick County is at the Stuart School. The county's decision to place a self-contained class at Stuart Elementary was based on its central location and budgetary constraints.

(5) It is approximately six miles further from Andelena's home to Stuart than it is to Woolwine, but it takes approximately thirty minutes more by bus due to the necessity of transfers.

(6) Andelena's educational and emotional needs could reasonably be met at Stuart Elementary if she were encouraged in the transition by her mother and her psychologist, Dr. Watson.

B. REQUIREMENTS OF THE ACT: A FREE APPROPRIATE PUBLIC EDUCATION

The Education for All Handicapped Children Act of 1975, Title 20 U.S.C. § 1401 et seq., obligates the state and local educational agencies, as a condition of receiving federal grants under the Act, to develop and submit to the United States Commission of Education, a policy and procedure that will insure handicapped students a "free appropriate public education."³ Title 20 U.S.C. § 1412(1). As defined, a "free appropriate public education" includes, in relevant part, free special education⁴ and related services,⁵ "provided in conformity with the individualized education program required by the Act." Title 20 U.S.C. § 1401(18); Title 45 C.F.R. § 121a.4.

The individualized education program is a "written statement for each handicapped child" developed at a meeting among the child's parents, teacher, and a qualified school representative. Title 20 U.S.C. § 1401(19).⁶ The statement must describe the child's present level of performance, the objectives of the special education program, the specific services which will make up that program, and "appropriate objective criteria" for determining whether program objectives are being achieved. Title 20 U.S.C. § 1401(19). The Act and regulations set forth no specific guidelines defining the program's substantive content. However, in formulating the program the Act directs that "to the maximum extent appropriate" a handicapped child is to be educated together with non-handicapped children. Title 20 U.S.C. § 1412(5)(B); Title 20 U.S.C. § 1414(a)(1)(c)(iv). The regulations provide that "to meet the needs of handicapped children," the state is to provide "a continuum of alternative placements," Title 45 C.F.R. § 121a.551(a), from the least restrictive environment, instruction in regular classes, to more restrictive environments, special classes, special schools, home instruction, and instruction in hospitals and institutions. Title 45 C.F.R. § 121a.551(b)(1). A placement is to be made to the "least restrictive environment" given the child's unique educational needs and the placement's "potential harmful effect." See Title 45 C.F.R. § 121a.552(d) (emphasis added).

Of particular significance to the present case are the regulatory directives that a placement be "as close as possible to the child's home" and unless the "child's individualized education program requires some other arrangement," that the placement be made "in the school the child would attend if not handicapped." 45 C.F.R. 121a.551(c). The official comment to these regulatory directives provides in relevant part as follows:

... Among the factors to be considered in placing a child is a need to place the child as close to home as possible. Recipients are required to take this fact into account in making placement decisions. The parents' right to challenge the placement of their child extends not only to the placement in special classes or separate schools, but also to placement in a distant school, particularly in a residential program. An equally appropriate education program may exist closer to home; and this issue may be raised by the parents under the due process provisions of this subpart.

Mrs. Pinkerton maintains that in order to provide Andelena with an "appropriate" education she must be placed in a "self-contained" program at Woolwine. That is, she asserts that the Patrick County School Board must create such a program...