IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-40720
_____________________
FLOUR BLUFF INDEPENDENT SCHOOL DISTRICT,
Plaintiff-Appellant,
versus
KATHERINE M. BY NEXT FRIEND LESA T.,
Defendant-Appellee.
_______________________________________________________
Appeal from the United States District Court for
the Southern District of Texas
_______________________________________________________
July 30, 1996
Before REAVLEY, GARWOOD and DeMOSS, Circuit Judges.
REAVLEY, Circuit Judge:
The Flour Bluff Independent School District (Flour Bluff)
appeals a district court’s placement decision of Katherine M.
(Katie), a hearing impaired student. The district court
determined that Katie’s 1994-95 Individual Educational Plan (IEP)
was not based upon her individual needs, and that her IEP
violated the least restrictive environment provisions of the
Individuals with Disabilities Education Act (IDEA).1 We reverse
the judgment because the district court misconceived the
proximity factor in Katie’s placement decision.
1
20 U.S.C. § 1400, et. seq.
I. IDEA
The Individuals with Disabilities Education Act requires
states to provide disabled children with a “free appropriate
public education” in return for acceptance of federal funds.2
The student’s curriculum is uniquely tailored to the individual
student through the annual implementation of an “individualized
education program” or “IEP.”3 The IEP is produced by a qualified
representative of the local education agency, the child’s
teacher, the child’s parents or guardian, other individuals at
the discretion of the agency or the parent, and where
appropriate, the child.4 In Texas, this is called the Admission,
Review and Dismissal (ARD) committee.5 In part, Congress defined
the IEP as follows:
The term ‘individualized education program’ means a written
statement for each child with a disability developed in any
meeting by a representative of the local educational agency
or an intermediate educational unit who shall be qualified
to provide, or supervise the provision of, specially
designed instruction to meet the unique needs of children
with disabilities, the teacher, the parents or guardian of
such child, and whenever appropriate, such child, which
statement shall include --
(A) a statement of the present levels of educational
performance of such child,
(B) a statement of annual goals, including short-term
instructional objectives,
(C) a statement of the specific educational services to
provided to such child, and the extent to which such
2
20 U.S.C. § 1412.
3
20 U.S.C. § 1412(4); 34 C.F.R. §§ 300.340-300.350.
4
34 C.F.R. §300.344.
5
Tex. Educ. Code § 29.301(1) (effective May 30, 1995).
2
child will be able to participate in regular
educational programs,
* * *
(E) the projected date for initiation and anticipated
duration of such services, and
(F) appropriate objective criteria and evaluation
procedures and schedules for determining, on at least
an annual basis, whether instructional objectives are
being achieved.
In the case where a participating agency, other than the
educational agency, fails to provide agreed upon services,
the educational agency shall reconvene the IEP team to
identify alternative strategies to meet the transition
objectives.6
Once a child’s educational program is determined, the local
school district must then attempt to place the student in the
“Least Restrictive Environment” or “LRE.”7 For example, one of
the main concerns of Congress is that the state attempt, as best
it can, to mainstream the child, that is, educate the disabled
child among non-disabled children.8 Further, the public agency
shall ensure that,
(a) The educational placement of each child with a
disability--
(1) Is determined at least annually;
(2) Is based on his or her IEP; and
(3) Is as close as possible to the child’s home.
* * *
(c) Unless the IEP of a child with a disability requires
some other arrangement, the child is educated in the school
that he or she would attend if nondisabled.
(d) In selecting the LRE, consideration is given to any
potential harmful effect on the child or on the quality of
services that he or she needs.9
6
20 U.S.C. § 1401(20).
7
20 U.S.C. § 1412(5); 34 C.F.R. § 300.550-300.556.
8
20 U.S.C. § 1412(5)(B).
9
34 C.F.R. § 300.552.
3
II. Katie and her IEP
Katie, a deaf student, resides on the northern end of Padre
Island in the Flour Bluff Independent School District. Texas has
a system of regional day schools for students with
disabilities.10 They are located at sites throughout the state
and draw students from the surrounding communities. Katie began
to attend the state’s regional day school located in the
neighboring Corpus Christi Independent School District at the age
of 18 months. The regional day school has facilities attached to
an elementary, middle and high school in the Corpus Christi
Independent School District. The regional day school for
elementary students is associated with Calk Elementary. This
enables the day school to provide disabled students with a wide
variety of services, ranging from completely independent classes
to support services for students in mainstreamed classes.
The Admission, Review and Dismissal committee, named by the
Flour Bluff district, decided Katie’s IEP for the 1994-95 school
year in April of 1994. The IEP provided for placement in
mainstream classes with an interpreter and additional assistance
for speech therapy, audiological management services, and a deaf
education teacher. By two months into her third grade year (the
1994-95 school year), Katie was receiving only support services
from the day school and attending fully mainstreamed classes at
10
See Tex. Educ. Code § 30.081 et. seq. (effective May
30, 1995). Similar provisions for regional day schools were
formerly governed by Tex. Educ. Code § 11.10.
4
Calk Elementary with the assistance of a sign interpreter.11 In
addition to her regular classes at Calk, Katie was seen 90
minutes per week with a day school speech pathologist and 60
minutes per week with the Corpus Christi Independent School
District speech pathologist. During her attendance at Calk, she
was a straight-A honor roll student.
In December of 1994, Katie’s mother requested that Katie be
transferred to the school she would otherwise attend in Flour
Bluff. Calk Elementary and Flour Bluff are approximately 16 and
9 miles, respectively, from Katie’s home. The ARD committee
determined that it would not change Katie’s placement unless the
transfer would bestow a greater benefit upon her. The committee
identified four factors for this determination. They included:
(1) the comprehensiveness of the Regional Day School
Program;
(2) unlike Flour Bluff elementary, which has no deaf
students, the Regional Day School Program offers Katie the
opportunity for relationships with non-hearing as well as
hearing peers;
(3) the Regional Day School Program offers Katie the
opportunity to use different interpreters; and
(4) a placement at Flour Bluff Elementary would not provide
Katie an educational benefit superior to the benefit she
receives from the Regional Day School Program.
Under the regulations governing IDEA, Katie sought review of
the ARD decision by a state agency hearing officer.12 These
regulations provide for a due process hearing where the district
11
At the request of Katie’s mother, the ARD agreed to no
longer require services of a deaf education teacher.
12
20 U.S.C. § 1415(b)(2); 34 C.F.R. § 300.506(a).
5
refuses, among other things, to change the educational placement
of a child.13 The hearing officer determined that Katie’s IEP
was not based upon her individual needs in that the “ARD failed
to consider placing Katie at the school as close as possible to
her home.” As a part of her analysis, the hearing officer
determined that “[c]onsidering the prominent placement in the
federal regulations of the close-to-home provisions, . . . [that
factor] is to be accorded significant weight.” The hearing
officer granted Katie’s request for a transfer to Flour Bluff.
Flour Bluff filed a civil action in district court for
review of the hearing officer’s decision.14 The district court
found that the ARD violated the procedural requirements of IDEA
by not considering Katie’s individual needs when devising her
IEP. Further, the court found that the evidence from the trial
“shows that the ARD committee focussed on whether Flour Bluff
could offer a program superior to the Regional Day School, rather
than addressing Katie’s individual needs.” The court indicated
that Flour Bluff’s evidence concerning the cost of the transfer
was minimal, only impacting the school supply funds. Finally,
the court found that the school district failed to consider
placing Katie close to home, as required by IDEA.15 Therefore,
the IEP was not based upon her individual needs. The court
ordered that she be transferred to Flour Bluff, and that Flour
13
34 C.F.R. §§ 300.504 and 300.506.
14
20 U.S.C. § 1415; 34 C.F.R. § 300.511.
15
34 C.F.R. § 300.552.
6
Bluff hire an interpreter and contract out for Katie’s remaining
services. Flour Bluff appeals.
III. Discussion
“The district court’s decision that an IEP fulfills the
requirements of IDEA is a mixed question of fact and law and, as
such, we subject this determination to a de novo review.”16 We
are mindful, however, of our appropriate role in this regard.
Congress left the choice of educational policies and methods
where it properly belongs--in the hands of state and local
school officials. Our task is not to second guess state and
local policy decisions; rather, it is the narrow one of
determining whether state and local school officials have
complied with the Act.17
We defer to the district court’s underlying factual findings,
unless they are clearly erroneous.18
We begin with two important clarifications. First, this
case does not raise the question of whether or not Katie should
be mainstreamed. The regional day school Katie attended was
attached to Calk Elementary and provided for fully mainstreamed
classes when appropriate. Therefore, Katie’s reliance on Daniel
16
Salley v. St. Tammany Parish School Bd., 57 F.3d 458,
462 (5th Cir. 1995); Christopher M. v. Corpus Christi Indep. Sch.
Dist., 933 F.2d 1285, 1289 (5th Cir. 1991).
17
Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048
(5th Cir. 1989).
18
Salley, 57 F.3d at 463; Christopher M., 933 F.2d at
1289.
7
R.R. v. State Bd. of Educ., 874 F.2d 1036, 1039 (5th Cir. 1989),
and other cases concerning mainstreaming are not controlling.
Second, the IEP governs the services a child is to be
provided and following that determination, the placement of the
student is governed by the Least Restrictive Environment
analysis. These are two separate inquiries. In Katie’s case the
decision was made by the same ARD committee, but that does not
necessarily have to be the case. The IEP is developed, reviewed
and revised through a meeting or a series of meetings which
includes a special education representative of the public agency
(other than the teacher), the child’s teacher, one or both of a
child’s parents, and the child if appropriate.19 The placement
decision of a child is ”made by a group of persons, including
persons knowledgeable about the child, the meaning of the
evaluation data, and the placement options” who also ensure that
placement decision is made in conformity with the rules governing
the LRE.20 We do not intend to indicate that a school must have
two separate committees to determine the IEP and placement of a
student, only that a district could do so. Our focus today
concerns the separateness of the IEP and placement decisions, and
the fact that the regulations contemplate that those decisions
may be made by different groups reflects their separation.
State agencies are afforded much discretion in determining
which school a student is to attend. Under the regulations
19
34 C.F.R. § 300.344.
20
34 C.F.R. § 300.533(a)(3)-(4).
8
governing the placement of a student in the “Least Restrictive
Environment,” a child should attend his or her neighborhood
school unless the child’s IEP requires arrangements that do not
exist at that school.21 In fact, if the child requires such
arrangements, the school district has numerous options (public or
private) on placing the student.22 The regulations, not the
statute, provide only that the child be educated “as close as
possible to the child’s home.” However, this is merely one of
many factors for the district to take into account in determining
the student’s proper placement.23 It must be emphasized that the
proximity preference or factor is not a presumption that a
disabled student attend his or her neighborhood school.24
21
34 C.F.R. § 552(c).
22
In Appendix C of Part 300 of the Regulations entitled
“Notice of Interpretation,” the commissioner answered the
question of whether a “public agency itself [must] provide the
services set out in the IEP” as follows:
The public agency responsible for the education of a child
with a disability could provide IEP services to the child
(1) directly, through the agency’s own staff resources, or
(2) indirectly, by contracting with another public or
private agency, or though other arrangements. In providing
the services, the agency may use whatever State, local,
Federal, and private sources of support are available for
those purposes. . . .
32 C.F.R. Pt. 300, App. C, question 46.
23
Barnett v. Fairfax County School Bd., 927 F.2d 146, 153
(4th Cir.), cert. denied, 112 S.Ct. 175 (1991); Murray by and
through Murray v. Montrose County School Dist., 51 F.3d 921, 929
(10th Cir.), cert. denied, 116 S.Ct. 278 (1995).
24
Murray, 51 F.3d at 930; but see Oberti v. Board of
Educ., 995 F.2d 1204, 1224 n.30 (3d Cir. 1993).
9
IDEA expressly authorizes school districts to utilize
regional day schools such as the one at issue here,25 and we
think the importance of these regional programs is obvious.
Undoubtedly there are a limited number of interpreters, speech
pathologists with backgrounds in deaf education, and deaf
education teachers; and, by allocating these limited resources to
regional programs, the state is better able to provide for its
disabled children. Additionally, by placing these educators at
regional centers, those centers are better able to provide
further training for those educators and make substitutions for
absent educators.
Of the 400 to 500 students enrolled at Calk Elementary there
are approximately 32 students attending the regional day school.
In Katie’s mainstreamed class there was one other fully
mainstreamed deaf student, and one other part-time mainstreamed
student. The regional day school provided the interpreters,
speech therapists, and other support services for the deaf
students at Calk.26
There were approximately 15 sign interpreters in the
regional day school assigned to the elementary, middle and high
schools associated with the regional program within the Corpus
Christi Independent School System. Of those 15, only 10 were
25
20 U.S.C. § 1414(d).
26
There was also evidence that Katie required the use of
a hearing device called a “phonic ear.” The evidence indicates
some maintenance services for this device may have been provided
by the regional day school.
10
certified. The day school had obtained a waiver from the Texas
Education Agency for the remaining five. In the year prior to
the onset of this litigation, the regional day school had
received only five applicants for four openings at the school.
There was testimony that this was fairly representative of the
supply of interpreters for the day school. In fact, the regional
day school could only meet its demand by hiring uncertified
interpreters.
Katie’s mother, who was the lead interpreter at the regional
day school, testified concerning the procedures implemented in
staffing interpreters at the regional day school.27 Because of
the short supply of interpreters, substitutions were difficult
when interpreters were ill or otherwise unavailable. The
regional day school provided a mentoring program and staff
development programs for their interpreters. The interpreters’
proficiency levels were increased through the school’s extensive
evaluation system. The more proficient interpreters were
allocated to the advanced grades because of the increased
complexity of the subjects.
The evidence showed that the supply of speech pathologists
was equally low. At the regional day school at Calk Elementary,
both of the two speech pathologists had experience in deaf
education, but this was unusual. Often the regional day school
was without speech pathologists with that experience. In fact,
27
In October of 1994, Katie’s mother started her own
interpreter business. After that date she remained a contract
employee with the regional day school on a part-time basis.
11
it was very difficult to hire a speech pathologist even without
experience in deaf education. The superintendent of Flour Bluff
testified that in September of 1994 the district began
advertising for two speech therapists. In April or May of the
next year they finally received four applicants, none of whom had
more than a bachelor’s degree. The district was forced to hire
two of those four.
The rationale for creating a regional day school can also be
seen by examining Katie’s third grade class. If all three
students were to attend different schools, each district would be
required to hire an additional interpreter from the already low
supply. The scarcity of resources would be worsened if each
child in the various grades attending the regional school were to
return to his or her home district. We believe that the decision
to create the regional day schools is a sound policy decision
that was intended to be left to the state.
Distance remains a consideration in determining the least
restrictive environment. The regulations say that it is. The
child may have to travel farther, however, to obtain better
services. And in this case, distance is not controlling -- from
Katie’s home to the Flour Bluff school is approximately 9 miles,
from her home to Calk Elementary it is 17 miles.
Flour Bluff School District was free to utilize the regional
day school for its disabled students. Educating Katie “close to
home” was only a factor for the school district to consider when
determining her placement in the Least Restrictive Environment;
12
and with the proximity of the regional day school to Katie’s
home, that factor was not controlling.
The district court erred in relying upon the hearing
officer’s conclusion that Flour Bluff did not “think carefully
and seriously” about placing Katie in her neighborhood school.
The hearing officer’s conclusion was based upon her
interpretation of the regulations that the “close to home”
provision should be “accorded significant weight.” While it is
not clear that the district court similarly interpreted the
regulations, the district court did presume incorrectly that her
neighborhood school was the proper placement even though Katie
required other arrangements which were not then in existence at
Flour Bluff. Nor did the district court apparently afford any
weight to the testimony of Flour Bluff officials concerning the
scarcity of educational resources upon which the district had
grounded its policy decision to send disabled students who
required certain services to the regional day school.28 Rather,
the court focused simply upon the costs of implementing the
individual program instead of upon both the financial and
resource costs of duplicating the programs. Therefore, because
we read the district court’s judgment to impose proximity as a
presumptive factor in the placement decision and because the
district court failed to consider Flour Bluff’s policy
28
See Barnett, 927 F.2d at 152 (“Whether a particular
service or method can feasibly be provided in a specific special
education setting is an administrative determination that state
and local school officials are far better qualified and situated
than are we to make.”)
13
consideration in sending Katie to the regional day school, we
reverse that judgment.
IV. Conclusion
During oral arguments, we learned that Katie had been
transferred to Flour Bluff to comply with prior orders in the
case. Under IDEA’s “stay-put” provisions, Katie should have
remained at Calk Elementary during the pendency of this
litigation, unless the move was agreed upon by the district and
Katie’s mother.29 One of the obvious purposes of the “stay-put”
provision is to reduce the chance of a child being bounced from
one school to another, only to have the location changed again by
an appellate court.
We remand this case to the district court, although the
proceedings there may require nothing more than dismissal. The
IEP for Katie for the forthcoming year will soon be completed
and, consistent with this opinion, the ARD committee should
consider the fact that Katie is currently attending Flour Bluff
and that Flour Bluff may now have the support services she
requires.
REVERSED and REMANDED.
29
20 U.S.C. § 1415(e)(3); 34 C.F.R. § 300.513(a).
14