School Bd. of Prince William County, Va. v. Malone, s. 84-1347
| Decision Date | 24 May 1985 |
| Docket Number | 84-1385,Nos. 84-1347,s. 84-1347 |
| Citation | 762 F.2d 1210 |
| Parties | 25 Ed. Law Rep. 141 SCHOOL BOARD OF the COUNTY OF PRINCE WILLIAM, VIRGINIA, Appellant, v. Jerry T. MALONE; Verda J. Malone; Robert A. Malone; Appellees. SCHOOL BOARD OF the COUNTY OF PRINCE WILLIAM, VIRGINIA, Appellee, v. Jerry F. MALONE, Verda J. Malone, Robert A. Malone, Appellants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Kathleen S. Mehfoud, Richmond, Va. (D. Patrick Lacy, Jr., Lacy & Mehfoud, P.C., Richmond, Va., on brief), for appellant.
Gerard S. Rugel, for appellees.
Before HALL, ERVIN and SNEEDEN, Circuit Judges.
The School Board of Prince William County, Virginia, ("School Board") appeals from a decision of the United States District Court for the Eastern District of Virginia dismissing the School Board's complaint against defendants Jerry T. Malone ("Jerry") and his parents, Verda J. and Robert A. Malone. The School Board filed a complaint in federal district court pursuant to the Education for All Handicapped Children Act of 1975 ("EAHCA" or "the Act"), 20 U.S.C. Secs. 1400-1461 (1976 and Supp.1980), and the Virginia special education statutes, Va.Code Ann. Secs. 22.1-213 to -222, contesting an administrative decision which prohibited the School Board from expelling Jerry Malone from one of the county schools. The district court held that Jerry's expulsion was subject to review in federal court pursuant to the provisions of the EAHCA and that his expulsion was unlawful because the behavior for which he was expelled was caused by his handicap. We agree with the district court and accordingly affirm its decision.
The Prince William County School Board attempted to expel Jerry Malone in March 1983 because of his involvement in the distribution of drugs. Prior to his participation in distributing drugs, Jerry had been identified as a student with a serious learning disability entitled to receive special education services pursuant to the EAHCA. Jerry's learning disability, generally characterized as a problem in language processing, impairs his ability to comprehend and analyze written and oral expression. Under his Individualized Education Program ("IEP"), Jerry was receiving instruction in a self-contained class for learning disabled students. There is some indication in Jerry's IEP for the 1982-83 school year that Jerry was having difficulty behaving appropriately in school. His IEP lists, as one of its short term objectives, "obeying school rules." Joint Appendix at 307. Jerry is also described in various school evaluations as having "borderline" intelligence.
In January of 1983, Jerry, then fourteen, was involved in several drug transactions. He acted as a "go-between" for two non-handicapped female students who asked him to purchase "speed" for them from another student whom Jerry knew. Jerry performed this function on three occasions. He apparently made no money for doing so, nor did he take any of the drugs himself.
Following his participation in these drug transactions, Jerry was suspended from Rippon Middle School from February 18, 1983, through February 28, 1983, and then placed on furlough, with his parents' consent, until March 1, 1983. On February 23, 1983, a meeting of the Rippon Local School Screening Committee was held to determine whether Jerry's learning disability had caused his behavior. The Committee was composed of a number of professionals involved in the identification and education of handicapped children. Some of the members of the Committee were personally familiar with Jerry. The Committee concluded that there was no causal relationship between Jerry's learning disability and his involvement in distributing drugs. The Coordinator of the Secondary Learning Disability Program for county schools then reviewed and concurred in the finding of the Committee.
On February 26, 1983, the principal of Rippon Middle School recommended that Jerry be expelled. The School Board held a hearing on March 16, 1983, which was attended by Jerry, his parents, and their counsel. The Board adopted the recommendation of the principal and voted to expel Jerry for the remainder of the school year. 1
On April 18, 1983, Jerry and his parents requested a due process hearing before a local hearing officer pursuant to provisions of the EAHCA. Jerry was reinstated in school pending that hearing. 2 Following a hearing held on May 2 and 10, 1983, a local hearing officer concluded that Jerry's participation in distributing drugs was related to his learning disability and thus he could not be expelled. The decision of the local hearing officer was reviewed by a state reviewing officer who, on July 25, 1983, affirmed the local officer's decision.
The School Board then filed a complaint in federal district court requesting that the court reverse the decision of the state reviewing officer and reinstate the School Board's decision to expel Jerry. 3 The district court heard additional evidence on February 27, 1984. On March 5, 1984, it issued an order dismissing the School Board's complaint. On appeal, the School Board argues that the expulsion of a handicapped child is not reviewable under the provisions of the EAHCA, that handicapped children are not absolutely immune from expulsion, and that Jerry's involvement in the distribution of drugs was not caused by his learning disability.
This Court must first decide whether the expulsion of a handicapped child is subject to review under the provisions of the EAHCA. 4 P.L. 94-142 (codified as amended at 20 U.S.C. Secs. 1400-1461, 1976 and Supp.1980). Some brief background information regarding the provisions of the Act may be helpful. One of the primary purposes of the EAHCA is to ensure the right of every handicapped child to a free appropriate public education ("FAPE"). 20 U.S.C. Sec. 1400(c) and Sec. 1412. Handicapped children are also entitled to be educated in the least restrictive environment ("LRE"). 20 U.S.C. Sec. 1412(5)(B). The LRE concept, popularly referred to as "mainstreaming", means that handicapped children, to the maximum extent appropriate, are to be educated with non-handicapped children. In order to comply with the FAPE and LRE requirements, an Individual Education Program ("IEP") must be formulated to meet each handicapped child's unique educational needs and is to be reviewed at least annually. 20 U.S.C. Sec. 1401(19) and Sec. 1414(a)(5).
The EAHCA also provides handicapped children and their parents or guardian with significant procedural protections. 20 U.S.C. Sec. 1415. For example, Section 1415(b)(1)(E) provides that a child's parents or guardian must have the opportunity to present complaints "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." When a complaint has been received, the parents or guardian have the right to an impartial due process hearing. 20 U.S.C. Sec. 1415(b)(2). Section 1415(c) provides for administrative review following the initial hearing. Finally, Section 1415(e)(2) provides that any party aggrieved by the findings and decision made pursuant to the administrative review process has the right to bring a civil action in state or federal court. The reviewing 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 EAHCA does not specifically address the issue of whether an expulsion or other disciplinary action should be reviewed under the procedures of the Act. Those federal circuit courts addressing this issue have, however, viewed expulsion as a change in placement subject to review under the Act. Kaelin v. Grubbs, 682 F.2d 595 (6th Cir.1982); S-1 v. Turlington, 635 F.2d 342 (5th Cir.1981), cert. denied, 454 U.S. 1030, 102 S.Ct. 566, 70 L.Ed.2d 473 (1981). The district court, citing S-1 v. Turlington, concluded that it had jurisdiction to review Jerry's expulsion, apparently agreeing that the expulsion should be regarded as a change in placement reviewable under the Act's procedures.
In S-1 v. Turlington, 635 F.2d 342 (5th Cir.1981), nine handicapped students who were expelled from school alleged violations of their rights under the EAHCA and under 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794. 5 The plaintiffs sought preliminary and permanent injunctive relief to compel state and local officials to provide them with educational services and with the procedural rights required by the EAHCA and by section 504. Id. at 344. The Fifth Circuit held, among other things, that "a termination of educational services, occasioned by expulsion is a change in educational placement, thereby invoking the procedural protections of the EHA." Id. at 348. Noting that the EAHCA and its implementing regulations did not provide any direction on this issue, the court turned to three district court decisions which had found that expulsion constitutes a change in placement requiring adherence to the procedural protections of the EAHCA, Stuart v. Nappi, 443 F.Supp. 1235 (D.Conn.1978); Sherry v. New York State Education Department, 479 F.Supp. 1328 (W.D.N.Y.1979); and Doe v. Koger, 480 F.Supp. 225 (N.D.Ind.1979). 6 The Fifth Circuit found particularly persuasive the district court opinion in Stuart v. Nappi which stated the following:
The expulsion of handicapped children not only jeopardizes their right to an education in the least restrictive environment, but is inconsistent with the procedures established by the Handicapped Act for changing the placement of disruptive children.... [T]he use of expulsion proceedings as a means of changing the placement of a disruptive handicapped child contravenes the procedures of the ...
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