A.W. By and Through N.W. v. Northwest R-1 School Dist., R-1

• Decision Date: 08 April 1987
• Docket Number: No. 86-1541,R-1,86-1541
• Citation: 813 F.2d 158
• Parties: 38 Ed. Law Rep. 95 A.W., a minor By and Through his Father and Next Friend, N.W.; N.W. and S.W., Appellants, v. NORTHWESTSCHOOL DISTRICT; John Gibson, in his capacity as Acting Superintendent of the NorthwestSchool District; The Department of Elementary and Secondary Education; State Board of Education; and Arthur Mallory in his capacity as Commissioner of the Department of Elementary and Secondary Education, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 158

813 F.2d 158

38 Ed. Law Rep. 95

A.W., a minor By and Through his Father and Next Friend N.W.; N.W. and S.W., Appellants, v. NORTHWEST R-1 SCHOOL DISTRICT; John Gibson, in his capacity as Acting Superintendent of the Northwest R-1 School District; The Department of Elementary and Secondary Education; State Board of Education; and Arthur Mallory in his capacity as Commissioner of the Department of Elementary and Secondary Education, Appellees.

No. 86-1541.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 14, 1986.

Decided March 6, 1987.

Rehearing and Rehearing En Banc Denied April 8, 1987.

Ann B. Lever, St. Louis, Mo., for appellants.

Louis Jerry Weber, Hillsboro, Mo., and Margaret K. Landwehr, Asst. Atty. Gen., Jefferson City, Mo., for appellees.

Before JOHN R. GIBSON, FAGG, and MAGILL, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

This appeal requires us to interpret the mainstreaming provisions of the Education of All Handicapped Children Act, 20 U.S.C. Secs. 1401-1461 (1982) ("the Act"). A.W., a handicapped child, and his parents appeal the judgment of the district court ¹ denying their request for declaratory and injunctive relief against the Northwest R-1 School District and various educational agencies and officials of the State of Missouri. They seek to have A.W. placed in House Springs Elementary School, located in Northwest R-1, rather than in State School No. 2, a school designed for and which exclusively educates handicapped children. The district court found that A.W. was severely mentally retarded and would only minimally benefit from placement in House Springs. The court concluded that the mainstreaming provisions of the Act do not require A.W.'s placement in House Springs. A.W. argues that the district court misinterpreted the Act's mainstreaming provisions by considering the cost to Northwest R-1 of providing a special teacher at House Springs for A.W. and by considering A.W.'s ability to benefit from placement in House Springs. We affirm the judgment of the district court.

A.W. is an elementary school-aged boy with Down's syndrome. The trial court found that he functions within the range of severe mental retardation and has only minimal self-care abilities. He has difficulty dressing himself, using the restroom, and washing himself. He must be closely supervised at all times and his behavior is sometimes disruptive. A.W.'s ability to express himself is extremely limited. His vocalizations are very difficult to understand and usually consist of one- or two-word expressions. He does not grasp the abstract concept of numbers, and he has only partially mastered the alphabet. Based on the results of numerous standardized tests and the other evidence presented, the trial court concluded that A.W. "clearly functions at or below one-half of the level expected of children of his age and is 'severely handicapped' under [Mo.Rev.Stat. Sec. 162.675(3) (1978) ]." ²

In May of 1980, A.W.'s mother attempted to enroll him in Northwest R-1 at House Springs Elementary School. Northwest R-1 recommended that he be schooled at a private institution, and then referred A.W. to the Missouri Department of Elementary and Secondary Education for evaluation and services. After extensive testing, the Department concluded that A.W. was severely handicapped within the meaning of section 162.675(3) and was eligible for placement in State School No. 2 in Mapaville, a school exclusively attended by and designed for handicapped children.

A.W.'s parents challenged his classification as "severely handicapped" and objected to his placement in the segregated environment of State School No. 2 through the procedure for agency appeals set forth in Mo.Rev.Stat. Secs. 162.950, 162.961, and 162.962 (1978). ³ At the level of review commonly referred to as the due process hearing, see 20 U.S.C. Sec. 1415(b)(2), a three-person panel heard evidence presented by A.W.'s parents and by Northwest R-1 and concluded that A.W. was "severely handicapped." The panel also concluded, however, that it was inappropriate to place A.W. in State School No. 2 and that an appropriate educational program for A.W. must include interaction with A.W.'s nonhandicapped peers. A.W.'s parents continued the appeal process to the State Board of Education. The Board's designated representative affirmed the panel's conclusion that A.W. was severely handicapped, but reversed its decision regarding the appropriate placement of A.W. because this determination was beyond the scope of the due process panel's authority. The Board representative ruled that A.W. should be placed in State School No. 2.

A.W. and his parents then brought this action in the district court under 20 U.S.C. Sec. 1415(e)(2). They sought declaratory and injunctive relief against Northwest R-1 and its Superintendent, John Gibson; the Department of Elementary and Secondary Education and its Commissioner, Arthur Mallory; and the State Board of Education. Once again, they challenged A.W.'s classification as severely handicapped. They also sought an injunction against his placement in State School No. 2 and a declaration that the Act's mainstreaming provisions required A.W.'s placement in House Springs Elementary School. ⁴ The parties waived by stipulation any claim that they failed to exhaust administrative remedies or that A.W. was not given a full and fair opportunity to be heard before an impartial tribunal at each step of the review process.

After a five-day bench trial, the district court entered judgment against A.W. and his parents. The court first found that A.W. was severely handicapped within the meaning of Mo.Rev.Stat. Sec. 162.675(3). The court noted that A.W.'s classification was not dispositive because the Act requires that handicapped children be educated along with nonhandicapped children "to the maximum extent appropriate." 20 U.S.C. Sec. 1412(5); see also Mo.Rev.Stat. Sec. 162.680.2 (handicapped and nonhandicapped children should be educated together "to the maximum extent practicable"). In determining whether the Act's requirements had been met, the court employed the analyses set forth by the Supreme Court in Board of Education v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3050-51, 75 L.Ed.2d 690 (1982), and by the Sixth Circuit in Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 196, 78 L.Ed.2d 171 (1983).

The court determined that State School No. 2 provided A.W. with an appropriate public education as defined in Rowley. Then the court considered whether, given that State School No. 2 was an appropriate placement for A.W., the Act's mainstreaming provisions nonetheless required that A.W. be placed in House Springs. It held that the Act did not. The trial court observed that the nature of A.W.'s handicap was such that his interaction with his nonhandicapped peers would be limited to mere observation ⁵ and concluded that:

In light of the minimal benefit A.W. would receive from placement in House Springs, the Court finds that the placement is not feasible. The specific difficulty with placement at the House Springs School is that there is no teacher who is certified to teach severely retarded children like A.W. The addition of a teacher is not an acceptable solution here since the evidence before the Court shows that the funds available are limited so that placing a teacher at House Springs for the benefit of a few students at best, and possibly only A.W., would directly reduce the educational benefits provided to other handicapped students by increasing the number of students taught by a single tacher at [State School No. 2]. The Court finds that although the plaintiff presented evidence that A.W. might benefit from exposure to nonhandicapped peers, this possible benefit is insufficient to justify a reduction in unquestioned benefits to other handicapped children which would result from an inequitable expenditure of the finite funds available.

A.W., slip op. at 12. The court entered its judgment in favor of the state and local defendants.

On appeal, A.W. and his parents take issue with the trial court's interpretation of the mainstreaming provisions of the Act, contending that the court erred in considering the benefit to A.W. of placement in House Springs and the cost of such placement to Northwest R-1. They also contend that the trial court erred in refusing to re-open and modify its judgment in light of additional evidence probative of A.W.'s ability to benefit from placement in House Springs.

I.

The Education for All Handicapped Children Act provides federal money to assist state and local agencies in educating handicapped children. See 20 U.S.C. Secs. 1401-1461. Receipt of this money is conditioned on the state's compliance with procedures and guidelines calculated to "[assure] all handicapped children the right to a free appropriate public education." Id. Sec. 1412(1). Included are the requirements that individualized educational programs be developed for each handicapped child, id. Sec. 1401(18), and that this program be reviewed annually. Id. Sec. 1414(a)(5). The Act also requires that the state develop procedural safeguards to assure the proper classification of handicapped children and to permit administrative and judicial review of this classification and consequent educational placement. Id. Sec. 1415. Congress, in enacting this legislation, found that "one million of the handicapped children in the United States are excluded entirely from the public school system and will not go through the educational process with their peers." Id. Sec. 1400(b)(4).

For our present purposes, the most important provision of the Act is section 1412(5), which provides that "to the maximum extent appropriate, handicapped children * * * are to be educated with children who are not handicapped, and that * * * removal of handicapped children from the regular educational environment [should occur] only when...