United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 13, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-30845
DOUG WHITE, on behalf of Dylan Joseph White; GAIL WHITE,
Plaintiffs-Appellees,
versus
ASCENSION PARISH SCHOOL BOARD; ROBERT CLOUATRE; SUSAN VAUGHN,
Defendants-Appellants.
Appeal from the United States District Court
for the Middle District of Louisiana
Before JOLLY, WIENER, and BARKSDALE, Circuit Judges.
RHESA H. BARKSDALE, Circuit Judge:
For this interlocutory appeal from injunctive and other relief
awarded parents of a child, pursuant to the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.,
primarily at issue is whether, consistent with the IDEA, a school
system has the right to select a centralized location for providing
services to a hearing-impaired child, notwithstanding the child’s
parents’ request that services be provided instead at his
neighborhood school (site-selection issue). The summary judgment
and concomitant order granting the injunction and other relief are
VACATED; judgment is RENDERED for Defendants on the site-selection
issue; and this matter is REMANDED.
I.
Dylan White (Dylan), a hearing-impaired student, identified
and qualified under the IDEA as disabled, attends school in
Ascension Parish, Louisiana. Under the IDEA, he is qualified for
special education and related services by Ascension Parish Schools
(Ascension). Dylan uses a cochlear implant in one ear and a
hearing aid in the other to receive sound input. He does not
require communication assistance outside of the classroom
environment, but uses a person — a cued speech transliterator — to
assist him in processing spoken information in class. (A cued
speech transliterator does not translate from spoken language to a
sign language, but supplements lip-reading and residual or assisted
hearing by hand and finger motions to distinguish between elements
of speech that would otherwise appear identical.)
Ascension provides a system through which certain services are
provided at centralized school sites. For hearing-impaired
students who need cued speech transliterators, Ascension provides
those services at three centralized schools (a primary school, a
middle school, and a high school). These centralized schools are
regular education campuses, and hearing-impaired students are
“mainstreamed” (educated in regular classrooms). (Deaf students
who use American Sign Language attend neighborhood, rather than
centralized, schools.)
2
Dylan attends one of the centralized schools, Gonzales
Primary, and has done so since he began attending Ascension
schools. It is undisputed that Dylan has achieved substantial
academic benefit and success at the centralized school.
In May 2000, when Dylan was in the second grade, the annual,
IDEA-required conference for his individualized education program
(IEP) was held. Dylan’s parents requested his transfer from the
centralized school to his neighborhood school, Dutchtown Primary,
along with his transliterator (provided by Ascension). Gonzales
Primary, the centralized school, is approximately five miles
further from Dylan’s home than the neighborhood school. Dylan’s
parents felt that transferring him to his neighborhood school would
enhance his social development, including allowing him to attend
school with neighborhood children.
Lengthy discussions were held at the IEP conference between
the Whites and other IEP committee members regarding the school
site selection. Ascension refused the transfer request pursuant to
its policy of centralizing the cued speech program and because it
believed Dylan was being provided an appropriate education at the
centralized school.
The Whites requested an administrative due process hearing.
After an evidentiary hearing, including live testimony, the hearing
officer addressed whether Ascension “can determine placement for a
hearing impaired child excluding parental input” and ruled in favor
3
of Ascension. The Whites appealed the decision to a three-judge
administrative panel, which affirmed.
The Whites then filed this action, seeking review of the
administrative decision, as well as asserting violations of the
IDEA, 20 U.S.C. § 1400 et seq.; the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq.; the Rehabilitation Act (Section
504), 29 U.S.C. § 794; 42 U.S.C. § 1983; and various state laws.
The parties stipulated that the dispute was essentially a
legal issue and filed cross motions for summary judgment. Under
the stipulation, the only issue was whether the School Board has
the right to select the school that a student shall attend.
In March 2002, after oral argument, the district court granted
summary judgment in favor of the Whites; it subsequently entered a
declaratory judgment and injunction ordering, inter alia, that
Dylan be assigned to his neighborhood school, along with his
transliterator. Other claims remain pending in district court.
II.
For this 28 U.S.C. § 1292(a)(1) interlocutory appeal from the
injunctive relief, Ascension insists it fully complied with the
IDEA. The Whites respond that the Act was violated because: they
were not allowed input into the site determination; and, in any
event, the IDEA contemplates neighborhood school site selection.
They also maintain that Dylan’s placement at the centralized school
violates state law.
4
As noted, the injunction was rendered pursuant to a summary
judgment. Such judgments are reviewed de novo. E.g., Amburgey v.
Corhart Refractories Corp., Inc., 936 F.2d 805, 809 (5th Cir.
1991). A summary judgment is proper when, viewing the evidence in
the light most favorable to the non-movant, “‘there is no genuine
issue as to any material fact and ... the moving party is entitled
to a judgment as a matter of law’”. Id. (quoting FED. R. CIV. P.
56(c)).
Our role under the IDEA is purposefully limited.
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.
Flour Bluff Indep. Sch. Dist. v. Katherine M., 91 F.3d 689, 693
(5th Cir. 1996) (quotation omitted), cert. denied, 117 U.S. 948
(1997). Moreover, the IDEA creates a presumption in favor of a
school system’s educational plan, placing the burden of proof on
the party challenging it. E.g., Teague Indep. Sch. Dist. v. Todd
L., 999 F.2d 127, 132 (5th Cir. 1993).
The Whites frame the issue as whether, under the IDEA and
state law, the school board may, at its sole discretion, reject
placement in the school the child would attend if not disabled and
the school closest to the student’s home (the neighborhood school)
5
without parental involvement in that decision and where the IEP can
be feasibly and appropriately implemented there. However, the
school district did not stipulate (at least in district court) that
no parental input was allowed on the issue of school selection.
(In the administrative hearing, however, the issue was framed as:
“Whether [Ascension] can determine placement for a hearing impaired
child excluding parental input”. (Emphasis added.)) Nor does such
a stipulation fit the evidence: Dylan’s mother testified before
the hearing officer that, “[d]uring the IEP meeting[,] we discussed
at length [Dylan’s] going to Dutch Town [the neighborhood school]
and why this had to continue for him to be at Gonzales Primary [the
centralized school]”.
The Whites, in essence, ask us to do one of two things: (1)
render an advisory opinion based on a situation that is not before
us (parents not given opportunity to offer any input concerning
school selection); or (2) as the district court apparently did,
equate giving input with dictating the outcome. Of course, we
cannot render advisory opinions. Moreover, as discussed infra, we
reject the assertion that parents are denied input into a decision
if their position is not adopted.
Although Ascension and the Whites dispute whether there was
“input”, there is no genuine issue of material fact. Indeed, the
parties do not dispute any facts, but instead dispute what
constitutes the requisite parental input under the IDEA. Thus,
6
based upon the input described by Mrs. White (discussions at the
IEP meeting), we will address the question that is before us in
this case: whether the school district violated the IDEA in
assigning Dylan to a centralized school, notwithstanding his
parents’ request that he be assigned to his neighborhood school.
A.
Ascension first asserts that the IDEA was not violated. The
IDEA governs the rights and responsibilities of students who are
qualified as disabled under the provisions of the Act. It requires
that States provide disabled children with a “free appropriate
public education” (FAPE). See 20 U.S.C. § 1412(a)(1). The
cornerstone of the IDEA is the IEP, which is produced by a team
that includes: the child’s parents or guardian; a qualified
representative of the local education agency who is knowledgeable
about, inter alia, the resources of the school district; a regular
education teacher of the child; a special education teacher of the
child; other individuals at the discretion of the agency or the
parent; and, where appropriate, the child. 20 U.S.C. §
1414(d)(1)(B). The written IEP specifies the program of benefits
to which the student is entitled in order to receive a FAPE. Once
a child’s educational program is determined, the school must
attempt to place the child in the “least restrictive environment”
(LRE) (e.g., as best it can, it must educate the child among not
7
disabled children). 20 U.S.C. § 1412(a)(5); 34 C.F.R. § 300.500-300.556.
When an action is brought under the IDEA, or the
appropriateness of an IEP challenged, our inquiry is two-fold: (1)
whether “the [IEP] developed through the Act’s procedures [is]
reasonably calculated to enable the child to receive educational
benefits”; and (2) whether the school district has “complied with
the procedures set forth in the [IDEA]”. Board of Educ. v. Rowley,
458 U.S. 176, 206-07 (1982). “If these requirements are met, the
State has complied with the obligations imposed by Congress and the
courts can require no more.” Id. at 207.
1.
Of course, a primary purpose of the IDEA is to ensure that
disabled children receive a FAPE. See 20 U.S.C. § 1412(a). A
school satisfies that requirement
by providing personalized instruction with
sufficient support services to permit the
child to benefit educationally from that
instruction. Such instruction and services
must be provided at public expense, must meet
the State’s educational standards, must
approximate the grade levels used in the
State’s regular education, and must comport
with the child’s IEP. In addition, the IEP,
and therefore the personalized instruction,
should be formulated in accordance with the
requirements of the Act and ... should be
reasonably calculated to enable the child to
achieve passing marks and advance from grade
to grade.
Rowley, 458 U.S. at 203-04. A FAPE need not maximize the child’s
potential; it must guarantee “a basic floor of opportunity”.
8
Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245,
248 (5th Cir. 1997) (quotation omitted).
Under this prong of Rowley, the focus of our inquiry is on
academic achievement; and, while the IDEA requires the school to
provide services to allow the child the requisite basic floor of
opportunity, it does not require the school to make special
accommodations at the parent’s request (no matter how well
intentioned), particularly where the request is not related to
helping the child achieve academic potential. As noted, it is
undisputed that Dylan was succeeding academically at the
centralized school; thus, his IEP clearly met the requirements of
FAPE. It is also undisputed that the parents’ request that Dylan
attend his neighborhood school was primarily social — they wanted
him to be able to attend school with other neighborhood children;
this concern is beyond the scope of the “educational benefit”
inquiry courts make under the IDEA.
2.
Regarding whether the IDEA’s procedural requirements were
followed, as stated, the Whites first assert that they were
improperly denied input into the site selection. They also
maintain the decision otherwise contravened the IDEA.
a.
As noted, the IDEA requires that the parents be part of the
team that creates the IEP and determines the educational placement
9
of the child, 20 U.S.C. § 1414(d)(1)(B); and the IEP is to include
location, 20 U.S.C. § 1414(d)(1)(A)(vi) (IEP must include the
projected date for the beginning of services and their anticipated
frequency, location, and duration). Additionally, 20 U.S.C. §
1414(f) requires the local education agency to ensure that the
parents are members of any group that makes decisions on
educational placement.
These statutory provisions do not, however, explicitly require
parental participation in site selection. “Educational placement”,
as used in the IDEA, means educational program — not the particular
institution where that program is implemented. E.g., Sherri A.D.
v. Kirby, 975 F.2d 193 (5th Cir. 1992) (“educational placement” not
a place, but a program of services); Weil v. Board of Elem. &
Secondary Educ., 931 F.2d 1069 (5th Cir. 1991) (transfer of child
to another school was not a change in “educational placement”).
Thus, contrary to the Whites’ position, that parents must be
involved in determining “educational placement” does not
necessarily mean they must be involved in site selection.
Moreover, that the parents are part of the IEP team and that the
IEP must include location is not dispositive. The provision that
requires the IEP to specify the location is primarily
administrative; it requires the IEP to include such technical
details as the projected date for the beginning of services, their
10
anticipated frequency, and their duration. See 20 U.S.C. §
1414(d)(1)(A)(vi).
The Whites also rely on the IDEA’s implementing regulations.
34 C.F.R. § 300.552 provides:
In determining the educational placement of a
child with a disability ... each public agency
shall ensure that —
(a) The placement decision —
(1) Is made by a group of persons, including
the parents, and other persons knowledgeable
about the child, the meaning of the evaluation
data, and the placement options; and
(2) Is made in conformity with the LRE
provisions...
(b) The child’s placement —
(1) Is determined at least annually;
(2) Is based on the child’s 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....
The Whites note that “placement” in 34 C.F.R. § 300.552 appears to
have a broader meaning than just educational program (thus, the
requirement that “placement” be based on the IEP, which contains
the educational program, along with other requirements) and to
relate in some way to location (thus, the reference to distance
from the child’s home). Ascension responds that “placement” does
11
not mean a particular school, but means a setting (such as regular
classes, special education classes, special schools, home
instruction, or hospital or institution-based instruction). It
cites 34 C.F.R. § 300.551, which describes “placement” options as
such. This is the better view.
In any event, even assuming arguendo that the regulations
contemplate a parental right to provide input into the location of
services, the facts are undisputed that the Whites did so as part
of the IEP team that discussed location at length and that
ultimately selected the centralized site. To accept the Whites’
view of “input” would grant parents a veto power over IEP teams’
site selection decisions. Congress could have included that power
in the IDEA; it did not do so. The right to provide meaningful
input is simply not the right to dictate an outcome and obviously
cannot be measured by such. See, e.g., Blackmon v. Springfield
R-XII Sch. Dist., 198 F.3d 648, 656 (8th Cir. 1999) (where no
“serious hamper[ing]” of parent's opportunity to participate in the
formulation process, IDEA requirement of meaningful parental input
satisfied notwithstanding that parent’s desired program not
selected); Lachman v. Illinois St. Bd. of Educ., 852 F.2d 290, 297
(7th Cir.) (“[P]arents, no matter how well-motivated, do not have
a right under [the IDEA] to compel a school district to provide a
specific program or employ a specific methodology in providing for
the education of their handicapped child”.), cert. denied, 488 U.S.
12
925 (1988). Absent any evidence of bad faith exclusion of the
parents or refusal to listen to or consider the Whites’ input,
Ascension met IDEA requirements with respect to parental input. In
short, on this record, Ascension complied with this procedural
component.
b.
The question then becomes whether Ascension was otherwise
required by the IDEA to defer to the Whites’ wishes that their son
be transferred, along with his support services, to the
neighborhood school. The Whites point to two main provisions that
they contend support neighborhood school selection: (1) the
child’s placement is determined at least annually, is based on the
child’s IEP, and is as close as possible to the child’s home, 34
C.F.R. § 300.552(b) (emphasis added); and (2) unless the IEP
requires some other arrangement, the child is educated in the
school that he or she would attend if not disabled, 34 C.F.R. §
300.552(c).
Regarding these provisions, their qualifying language is
critical. 34 C.F.R. § 300.552(b) only requires that the student be
educated as close as possible to the child’s home. 34 C.F.R. §
300.552(c) specifies that the child is educated in the school he
would attend if not disabled unless the IEP requires some other
arrangement. Here, it was not possible for Dylan to be placed in
his neighborhood school because the services he required are
13
provided only at the centralized location, and his IEP thus
requires another arrangement.
Of course, as the Whites point out, neighborhood placement is
not possible and the IEP requires another arrangement only because
Ascension has elected to provide services at a centralized
location. This is a permissible policy choice under the IDEA.
Schools have significant authority to determine the school site for
providing IDEA services.
State agencies are afforded much discretion in
determining which school a student is to
attend ... 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.
It must be emphasized that the proximity
preference or factor is not a presumption that
a disabled student attend his or her
neighborhood school.
Flour Bluff, 91 F.3d at 693-94 (emphasis added). In Flour Bluff,
a deaf child’s parents objected to her attending a centralized
program rather than her neighborhood school. Our court held in
favor of the school:
IDEA expressly authorizes school districts to
utilize regional day schools such as the one
at issue here, 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
14
these educators at regional centers, those
centers are better able to provide further
training for those educators and make
substitutions for absent educators.
Id. at 694 (citations omitted).
All of our sister circuits that have addressed the issue agree
that, for provision of services to an IDEA student, a school system
may designate a school other than a neighborhood school. Restated,
no federal appellate court has recognized a right to a neighborhood
school assignment under the IDEA. See, e.g., McLaughlin v. Holt
Public Sch. Bd. of Educ., 320 F.3d 663, 672 (6th Cir. 2003) (LRE
provisions and regulations do not mandate placement in neighborhood
school); Kevin G. by Robert G. v. Cranston Sch. Comm., 130 F.3d
481, 482 (1st Cir. 1997) (“[W]hile it may be preferable for Kevin
G. to attend a school located minutes from his home, placement
[where full-time nurse located] satisfies [the IDEA].... The
school district has an obligation to provide a school placement
which includes a nurse on duty full time, but it is not required to
change the district’s placement of nurses when, as in this case,
care is readily available at another easily accessible school”.);
Hudson v. Bloomfield Hills Public Sch., 108 F.3d 112 (6th Cir.
1997) (IDEA does not require placement in neighborhood school);
Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720, 727 (10th
Cir. 1996) (IDEA does not give student a right to placement at a
neighborhood school); Murray v. Montrose County Sch. Dist., 51 F.3d
15
921, 928-29 (10th Cir.) (no presumption in IDEA that child must
attend neighborhood school — proximity to home only one factor),
cert. denied, 516 U.S. 909 (1995); Schuldt ex. rel. Schuldt v.
Mankato Indep. Sch. Dist. No. 77, 937 F.2d 1357, 1361-63 (8th Cir.
1991) (school may place student in non-neighborhood school rather
than require physical modification of the neighborhood school to
accommodate the child’s disability); Barnett v. Fairfax County Sch.
Bd., 927 F.2d 146 (4th Cir.) (school district complied with IDEA by
providing deaf student with “cued speech” program in a centralized
school approximately five miles farther than neighborhood school),
cert. denied, 502 U.S. 859 (1991); Wilson v. Marana Unified Sch.
Dist. of Pima County, 735 F.2d 1178 (9th Cir. 1984) (school
district may assign child to school 30 minutes away because teacher
certified in child’s disability was assigned there, rather than
move the service to the neighborhood school).
Administrative agency interpretations of the regulations
confirm that the school has significant authority to select the
school site, as long as it is educationally appropriate. The
Office of Special Education Programs (OSEP), the Department of
Education branch charged with monitoring and enforcing the IDEA and
its implementing regulations, has explained:
[I]f a public agency ... has two or more
equally appropriate locations that meet the
child’s special education and related services
needs, the assignment of a particular school
... may be an administrative determination,
16
provided that the determination is consistent
with the placement team’s decision.
Letter from Office of Special Education Programs to Paul Veazey (26
Nov. 2001). See also, e.g., Letter to Anonymous, 21 IDELR 674
(OSEP 1994) (it is permissible for a student with a disability to
be transferred to a school other than the school closest to home if
the transfer school continues to be appropriate to meet the
individual needs of the student); Letter to Fisher, 21 IDELR 992
(OSEP 1994) (citing policy letter indicating that assignment of a
particular location is an administrative decision).
The Whites insist that 1997 amendments to the IDEA enlarged
parents’ role. Nevertheless, the amendments do not state — and the
Whites do not cite any post-amendment authority for the proposition
— that parents may alter a school’s good faith policy decision
regarding site selection. Moreover, the 2001 OSEP letter
(interpreting the current version of the IDEA) is contrary to the
Whites’ position.
The Whites also urge that there is simply no reason the
transliterator cannot move to Dylan’s neighborhood school, because
she provides services only for Dylan. Again, our task is not to
question educational policy decisions; rather, it is to determine
whether state and local officials have complied with the IDEA.
This principle is unquestionably applicable here:
Whether a particular service or method can
feasibly be provided in a specific special
education setting is an administrative
17
determination that state and local school
officials are far better qualified and
situated than are we to make.
Barnett, 927 F.2d at 152.
Regardless, Ascension has proffered numerous, sound reasons
for its centralization policy, including: (1) ability to cover
absences and scheduling difficulties; (2) training and staff
development; (3) effective use of limited resources; and (4)
educational and social advantages. Concerning Dylan’s placement,
it notes: (1) while Dylan is the only student now served by the
transliterator, another student needing to share the transliterator
could move into the district; and (2) making an exception to the
centralization policy for Dylan would not be fair to other students
who share transliterators and must attend the centralized school.
B.
Ascension also disputes that Louisiana law requires the school
to place Dylan in his neighborhood school. The Whites point to
provisions similar to those contained in the IDEA and its
regulations, especially: (1) LA. REV. STAT. § 17:1944(B)(14), add.
4, which requires “placement” of disabled children in the school
nearest their place of residence, if placement is appropriate; (2)
LA. REV. STAT. 17:1952(C), which requires that a recommendation by
a parent as to educational placement be considered equally with any
other factors; and (3) LRE provisions that dictate placement in the
school the child would attend if not disabled unless the IEP
18
requires another arrangement and, if not in that school, as close
as possible to the student’s home, Louisiana Department of
Education, Bulletin 1706A § 446(B)(3)(a).
Again, the Whites conflate site selection and educational
placement. Bulletin 1706A defines placement alternatives as
regular classes, special classes, special schools, etc. Bulletin
1706A § 446 (A)(4). Moreover, the IEP Handbook in Louisiana
clarifies that “the IEP committee must participate in decisions
made about the placement; however, the school system has the right
to select the actual school site in view of committee decisions”.
Louisiana Department of Education, Bulletin 1530 at 9. See also
id. at 32 (school system has responsibility of determining school
site). In addition, the IEP form reserves the right of the local
education agency to fill in site determination, stating that this
provision must be completed by the school representative and
forwarded to the parents within ten days if not specified at the
IEP meeting. For this issue, Ascension has not violated state law.
III.
In sum, neither the IDEA nor state law prevents Ascension from
selecting the centralized school site for the implementation of
Dylan’s IEP, notwithstanding parental input to the contrary. For
the foregoing reasons, the summary judgment in favor of the Whites
and the concomitant order granting the injunction and other relief
are VACATED; judgment is RENDERED for Defendants on the site-
19
selection issue; and this matter is REMANDED to the district court
for further proceedings consistent with this opinion.
VACATED; RENDERED; and REMANDED
20
White Ex Rel. White v. Ascension Parish School Board
Court: Court of Appeals for the Fifth Circuit
Date filed: 2003-08-13
Citations: 343 F.3d 373
Copy CitationsCombined Opinion