Roncker on Behalf of Roncker v. Walter

• Decision Date: 23 February 1983
• Docket Number: No. 81-3494,81-3494
• Citation: 700 F.2d 1058
• Parties: 9 Ed. Law Rep. 827 Mary Ann RONCKER On Behalf of Neill RONCKER, Individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Franklin B. WALTER, et al., Defendants, James N. Jacobs, in his official capacity as Superintendent of the Cincinnati City School District and Cincinnati City School District Board of Education; Robert Braddock, Herbert Brown, Virginia Griffin, Ann Patty, John Rue, David Schiering and Mary Schloss, in their official capacities as the members of the Cincinnati City School District Board of Education, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1058

700 F.2d 1058

9 Ed. Law Rep. 827

Mary Ann RONCKER On Behalf of Neill RONCKER, Individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Franklin B. WALTER, et al., Defendants, James N. Jacobs, in his official capacity as Superintendent

of the Cincinnati City School District and Cincinnati City

School District Board of Education; Robert Braddock,

Herbert Brown, Virginia Griffin, Ann Patty, John Rue, David

Schiering and Mary Schloss, in their official capacities as

the members of the Cincinnati City School District Board of

Education, Defendants-Appellees.

No. 81-3494.

United States Court of Appeals, Sixth Circuit.

Argued May 18, 1982.

Decided Feb. 23, 1983.

Barry Cohen (argued), Columbus, Ohio, for plaintiff-appellant.

Patricia W. Morrison (argued), Hugh Frost, Asst. City Sols., Richard A. Castellini, Cincinnati, Ohio, for defendants-appellees.

Before KENNEDY and CONTIE, Circuit Judges, and GORDON, Senior District Judge. ^*

CONTIE, Circuit Judge.

In this appeal, the plaintiff challenges the placement of her retarded son under the Education for All Handicapped Children Act of 1975, 20 U.S.C. Sec. 1401 et seq., (the Act). ¹ As a condition for receiving federal aid, the Act provides that a free appropriate education must be provided to all children. 20 U.S.C. Sec. 1412. It further requires states to establish "procedures to assure that, to the maximum extent appropriate, handicapped children, including children in public or private institutions or other care facilities, are educated with children who are not handicapped and that special classes, separate schooling, or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. Sec. 1412(5)(B). ²

The Supreme Court recently decided what "free appropriate education" means in the context of the Act. Bd. of Ed. of the Hendrick Hudson Central School District v. Rowley, --- U.S. ----, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). In this case, we examine the Act's requirement that handicapped children be educated with non-handicapped children to the "maximum extent appropriate."

I

The plaintiff's son, Neill Roncker, is nine years old and is severely mentally retarded. He is classified as Trainable Mentally Retarded (TMR), a category of children with an IQ of below 50. Less severely retarded students are classified as Educable Mentally Retarded (EMR) and are generally educated in special classes within the regular public schools.

There is no dispute that Neill is severely retarded and has a mental age of two to three with regard to most functions. Neill also suffers from seizures but they are not convulsive and he takes medication to control them. No evidence indicates that Neill is dangerous to others but he does require almost constant supervision because of his inability to recognize dangerous situations.

In 1976, Neill was evaluated and recommended for the Arlitt Child Development Center. It was believed that he would benefit from contact with non-handicapped children. In the spring of 1979, a conference was held to evaluate Neill's Individual Education Plan (IEP) as required by the Act. ³ Present at the conference were Neill's parents, school psychologists, and a member of the Hamilton County Board of Mental Retardation. After evaluating Neill, the school district decided to place him in a county school. Since these county schools were exclusively for mentally retarded children, Neill would have received no contact with non-handicapped children.

The county schools receive part of their funding through tuition for individual students, which is paid by the school district. The county schools also receive partial funding through the state by virtue of a mental retardation tax levy. Funds from this levy are not available to public schools.

The Ronckers refused to accept the placement and sought a due process hearing before an impartial hearing officer pursuant to the Act. 20 U.S.C. Sec. 1415(b)(2). The hearing officer found that the school district had not satisfied its burden of proving that its proposed placement afforded the maximum appropriate contact with non-handicapped children. He ordered that Neill "be placed within the appropriate special education class in the regular elementary school setting."

The school district appealed to the Ohio State Board of Education pursuant to 29 U.S.C. Sec. 1415(c). The State Board found that Neill required the educational opportunities provided by the county school. It also found, however, that he needed interaction with non-handicapped children during lunch, recess and transportation to and from school. Accordingly, the State Board held that Neill should be placed in a county school so long as some provision was made for him to receive contact with non-handicapped children. The State Board did not indicate how this split program was to be administered.

While the dispute over placement continued, Neill began attending a class for the severely mentally retarded at Pleasant Ridge Elementary School in September 1979. Pleasant Ridge is a regular public school which serves both handicapped and non-handicapped children. Neill's contact with non-handicapped children at Pleasant Ridge is limited to lunch, gym and recess. Neill has remained at Pleasant Ridge during the pendency of this action.

In January 1980, Neill's mother filed this action against the state and the school district. The claims against the state were settled. Prior to trial, the district court denied class certification without a hearing.

At trial, both parties presented expert testimony. Both agreed that Neill required special instruction; he could not be placed in educational classes with non-handicapped children. The plaintiff, however, contended that Neill could be provided the special instruction he needed in a setting where he could have contact with non-handicapped children. The school district contended that Neill could not benefit significantly from mainstreaming and that any minimal benefits would be greatly outweighed by the educational benefits of the county school.

The district court found in favor of the school district. The court interpreted the Act's mainstreaming requirement as allowing school districts broad discretion in the placement of handicapped children. In this case, the district court found that the school district did not abuse its discretion in placing Neill Roncker in a school where he would receive no contact with non-handicapped children. This conclusion was supported by the district court's finding that Neill had made no significant progress after 18 months at Pleasant Ridge. Finally, the district court held that a class action was inappropriate because the educational placement of handicapped children requires individual determinations.

II

We find that the district court erred in reviewing the school district's placement decision under an "abuse of discretion" standard.

The Act provides that a district court "shall receive the records of the [state] 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 school district contends that this provision only gives courts the limited authority to determine if the district has complied with the procedural requirements of the Act. The plaintiff, on the other hand, contends that the Act requires a de novo review not limited to the Act's procedural requirements.

This exact dispute over standard of review was presented and decided in Rowley, --- U.S. ----, 102 S.Ct. 3034, 73 L.Ed.2d 690. The Supreme Court rejected the notion that courts were strictly limited to reviewing for procedural compliance with the Act. Id. at 3050-51. However, the Court also rejected the argument that the Act gave the courts broad power to review and upset placement decisions, stating that "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." Id. at 3051. The court concluded that the proper balance is to give greater deference to the state's placement decision if the procedural requirements of the Act are met. In this way, the court's encroachment on the basically legislative decisions involving the distribution of educational resources is kept to a minimum. ⁴

The first inquiry in the two-step test mandated by Rowley is whether the state has complied with the Act's procedural requirements. These requirements clearly have been satisfied in this case. The second inquiry is whether "the individualized educational program developed through the Act's procedures [is] reasonably calculated to enable the child to receive educational benefits?" Id. at 3051.

In Rowley, the Supreme Court found that the state had complied with the Act's procedural requirements and had developed an IEP reasonably calculated to lead to educational benefits. Accordingly, the Act was satisfied. The present case differs from Rowley in two significant ways.

First, this case involves the mainstreaming provision of the Act while Rowley involved a choice between two methods for educating a deaf student. In the latter case, the dispute is simply one of methodology and the Supreme Court has emphatically stated that such questions should be left to the states. Id. at 3051-52. In the present case, the question is not one of methodology but rather involves a determination of whether the school district has satisfied the Act's requirement that handicapped children be educated alongside non-handicapped children to the...