Springdale School Dist. No. 50 of Washington County v. Grace, 80-1777
| Decision Date | 07 August 1981 |
| Docket Number | No. 80-1777,80-1777 |
| Citation | 656 F.2d 300 |
| Parties | SPRINGDALE SCHOOL DISTRICT NO. 50 OF WASHINGTON COUNTY, Appellant, v. Sherry GRACE, a Minor, and Albert and JoAnn Grace, Individually and as Parents of Sherry Grace; Arkansas State Department of Education; State Board of Education; Wayne Hartsfield as Chairman of the State Board of Education; Mrs. James W. Chestnutt, Jim Dupree, T. C. Cogbill, Jr., Mrs. Alice L. Preston, Harry A. Haines, Dr. Harry P. McDonald, Robert L. Newton and Walter Turnbow as Members of the State Board of Education; Don R. Roberts, Director of the Department of Education, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James M. Roy, Jr., argued, Blair, Cypert, Waters & Roy, Springdale, Ark., for plaintiff-appellant.
Stephen M. Sharum, argued, Fort Smith, Ark., for defendants-appellees Sherry, Albert and JoAnn Grace.
Steve Clark, Atty. Gen. by Nelwyn Davis, Asst. Atty. Gen., Little Rock, Ark., for defendant-appellee Arkansas Dept. of Ed.
Sheryl Dicker, Developmental Disabilities Law Project, Legal Services of Ark., Little Rock, Ark., amicus curiae.
Seymour DuBow, Marc P. Charmatz, Washington, D. C., for amicus curiae Nat. Ass'n for the Deaf and Gallaudet College; Sheila Conlon argued, Robin Post, Legal Assistants.
Before HEANEY and HENLEY, Circuit Judges, and NICHOL, * Senior District Judge.
This is an appeal by the plaintiff-appellant, Springdale School District # 50 of Washington County (Springdale School), from the judgment of the district court 1 in favor of the defendant-appellees, Sherry Grace and her parents, the Arkansas State Department of Education and its director, and the State Board of Education and its members. The district court found that under the provisions of the Education for All Handicapped Children Act, 20 U.S.C. sections 1401-1461 (1970) (Act), the Springdale School could provide Sherry Grace with a free appropriate education. Based upon this finding the district court affirmed the decision of the Arkansas Department of Education with respect to the Individualized Education Program (IEP) developed for the 1979-80 school year for Sherry Grace. We affirm.
The facts giving rise to the present controversy are well set out by the district court opinion. Springdale School Dist. v. Grace, 494 F.Supp. 266 (W.D.Ark.1980). Sherry Grace is an eleven year old girl who is profoundly and prelingually deaf, having either been born deaf or lost her hearing before she developed speech. She has a 95% loss of hearing which renders her completely deaf for all purposes.
Sherry received no formal education or training in communication until, at the age of four, she was enrolled in a special program for children with hearing impairments at Bates Elementary School in Fayetteville, Arkansas. Since the children in this program retain some hearing they are orally instructed. A person like Sherry who is profoundly deaf can only visually receive instructions. As the district court found, "(I)f one is profoundly and prelingually deaf, he lacks the concept of language and must not only receive visual instruction, but also must be taught the most rudimentary matters concerning language." Springdale School Dist. v. Grace, supra at 267. The Bates program for hearing impaired children proved inadequate to meet Sherry's needs, and although in the program for two years Sherry made little or no progress. When she left the Bates program Sherry's language level was that of a child of two years and two months.
When Sherry was six years old her parents moved to Little Rock, Arkansas, and there enrolled Sherry in the Arkansas School for the Deaf as a day student. Sherry attended the School for the Deaf for three years. The school employs the total communication system. 2 While there she progressed from having a language level of a two year old to being able to read at the second grade level. Since she was able to communicate with others and participate in the life of the school, her confidence and social ability also developed.
After three years in Little Rock, Sherry's parents, over the protests of Sherry's teacher, took Sherry out of the School for the Deaf and moved back to Springdale, Arkansas. There they enrolled Sherry in the fourth grade at the Springdale School.
After testing Sherry and consulting with her parents the Springdale School formulated an IEP for Sherry. The IEP noted that Sherry should be taught by a certified teacher of the deaf who employs total communication. Sherry's lack of the skills of the average fourth grader in reading, spelling and arithmetic, and her below level general knowledge prompted the Springdale School in the IEP to state that the Arkansas School for the Deaf was the proper school to meet Sherry's unique needs.
Although the Graces otherwise agreed with the Springdale School's assessment of Sherry's needs, they disagreed with that portion of the IEP which stated that the School for the Deaf was the proper school for Sherry. Under the provisions of the Act a temporary IEP was formulated allowing for Sherry to remain at the Springdale School while her parents sought review of the disputed portion of the IEP. See 20 U.S.C. section 1415 for procedural safeguards. After proper notice and pre-hearing conferences a due process hearing was held on November 7, 1979. The hearing officer reversed the disputed portion of the IEP holding that the Springdale School was wrong and that Sherry could receive an appropriate education at the Springdale School. The Springdale School appealed to the Coordinator, Department of Education Special Education Section, who affirmed the decision of the hearing officer. Upon affirmance, in January, 1980, a full-time certified teacher of the deaf was provided for Sherry.
In February, 1980, the Springdale School initiated this action in district court pursuant to section 1415(e)(2) of the Act seeking review of the appeals officer's decision that Sherry be educated at the Springdale School and not sent to the School for the Deaf. The district court initially found that the Arkansas School for the Deaf could provide Sherry with the best free education. Springdale School Dist. v. Grace, supra at 271. The court, however, went on to hold that the Act requires simply that the State, through its local educational district, provide each handicapped child with a free, appropriate education. Id. at 272. The court then held that, under the standard set forth in the Act, a preponderance of the evidence proved that the Springdale School could provide Sherry with an appropriate education. The court also found that the Springdale School satisfies the requirements of mainstreaming found in the Act. 20 U.S.C. sections 1412(5)(B) and 1414(a)(1) (C)(iv). Id. at 273. Finally, the district court granted the Grace's motion for an injunction forcing the Springdale School to provide Sherry with a certified teacher of the deaf for the 1980-81 term only. The court denied the Grace's request for attorney fees.
The Springdale School filed this timely appeal. Three issues are raised for consideration by the Court:
1. Whether the district court's ruling that Sherry could be appropriately educated at the Springdale School as opposed to the School for the Deaf is an erroneous interpretation of the law and contrary to the Act and/or Arkansas law?
2. Whether the district court's finding that the Springdale School could provide Sherry an appropriate education is clearly erroneous?
3. Whether the district court erred in holding that it had no jurisdiction to consider the Arkansas law?
The Act requires that Sherry be provided with a free appropriate education. 20 U.S.C. section 1412. 3 In order to determine what is appropriate to meet the handicapped child's needs the Act requires that an IEP be developed at least annually for the child. 20 U.S.C. section 1414(a)(5). 4 It is the 1979-80 IEP that is at issue here.
It is evident from the well reasoned opinion of the district court that the question of what educational facility is appropriate for Sherry was carefully considered and analyzed. The district court found that the School for the Deaf would provide Sherry with the best education. In reaching this conclusion the court noted that the most important thing for Sherry at this stage of life was to learn language skills and that the School for the Deaf is the best place for that purpose. The School for the Deaf would also provide Sherry with proper role models since many of the people employed there are themselves profoundly deaf. Further, Sherry would be able to practice total communication in school as well as in many extra-curricular activities such as Girl Scouts.
The district court, although convinced that the best place for Sherry is the School for the Deaf, correctly followed the Act's requirements when it determined that it was not the State's duty to provide the best education, but instead states are required to provide an appropriate education.
A definitive answer to what constitutes an appropriate education is lacking in the Act and the regulations promulgated thereunder. 5 Therefore, the courts, in reviewing claims brought under the Act have attempted to establish standards for determining what is an appropriate education. The results are far short of uniform. They run a broad spectrum. Kruelle v. Biggs, 489 F.Supp. 169 (D.Del.1980) (); Rowley v. Bd. of Ed. of Hendrick Hudson Cent. S. D., 483 F.Supp. 528 (S.D.N.Y.1980) () 6; DeWalt v. Burkholder, 3 E.H.L.R. 551:550 (E.D.Va.1980) (most appropriate); Armstrong v. Kline, 476 F.Supp. 583 (E.D.Pa.1979) ().
The district court adopted, and we affirm the standard set forth in Rowley v. Bd. of Ed. of Hendrick Hudson Cent. S.D., supra at 534:
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