Presented at the
This morning you will hear the inside story of Florence County School District Four v. Shannon Carter. During the past few days you have probably heard enough about it and are not really sure you want to hear from me.
I will try to avoid the implications and ramifications of the case, but instead tell the story and the steps taken to handle the appeal. You will learn how the spin put on a case becomes the theme of the case. You will hear how the origins of this case began not just in 1985, but also in 1953, 1983 and in 1985. You will hear about the litigation process at the administrative level and that the case was actually dismissed at the U.S. District Court in May, 1987.
You will learn how I became involved in the case, and the nature of my personal involvement in special education.
I will walk you through the dynamics at the Fourth Circuit where retired Supreme Court Justice Lewis Powell was sitting, the preparation for and actual oral argument by both counsel, and the graciousness of School Board counsel Bruce Davis throughout the entire proceeding.
The Office of South Carolina Protection and Advocacy stood beside Shannon Carter from the mid 1980ís all the way through the final decision. You will learn about the intense, grueling preparation for oral argument and the nightmares that preceded it. This will be the inside story of the Shannon Carter case that is not in the lawbooks.
In 1951, my kindergarten teacher in 1951 told my parents "Peter does not listen to his teachers, does not respond to school rules and definite directions . . . listen and do are necessary requisites for first grade." The following year, my first grade teacher said "he makes most of his numbers backward . . . I am having a little trouble understanding Peter, he is a nice little boy, but he does not appear at all interested in first grade . . . I know he has a good mind."
Later, teachers said that "He is fussy, too free with his fists." "I am quite disappointed in Peter . . . He does not pay attention to directions and he has to be spoken to frequently for talking, (next marking period) Peter continues to disappoint me . . . He does not do his best at all times because he does not keep his mind on his work and wastes a great deal of time . . . I hope he will try to improve before the closing of the school year as he is a capable boy."
At different times, I was labeled as borderline mentally retarded and emotionally disturbed. During my public school career, I was never viewed as having college potential so I was placed in the general track where I took touch typing for two years (when it was called typing, not keyboarding).
Who is Pete Wright? For the special educators in the audience, I was one of your children.
From elementary school to the third grade, I reversed not only my spoken speech, pasghetti, for spaghetti, concepts, over under in out, and reading and writings were filled with reversals. I also had what was called "mirror writing".
My teachers told my parents that I could do well if I would only try harder. I had ants in my pants and could not sit still. I was eventually diagnosed as having strephosymbolia and word blindness. These are labels for what we now call Learning Disabilities, Dyslexia, Dysgraphia, Dyscalculia, and Attention Deficit Hyperactivity Disorder.
I received extensive individual tutoring every day after school in 1953. In 1954 I attended a residential camp. I continued one-on-one tutoring the next year. I was prescribed Dexedrine and took that through elementary and junior high school years as a means to reduce the hyperkinetic behavior.
Diana King and the Orton-Gillingham Method
The tutoring technique used with me in 1953 is what is known today as the Orton-Gillingham multi-sensory visual auditory kinesthetic tactile approach to language learning. My tutor was Diana King who later founded the Kildonan School and is referred to in several of the cases that preceded Carter.
I attended Washington D.C. public schools and, by the end of the 11th grade had a strong D+ average. My parents sent me to a small New England prep school with student teacher ratio of 6 to 8 students per class where the professors were aware of my dyslexia.
After graduating from that school, I attended Randolph Macon College in Virginia and worked in Virginiaís juvenile training schools and juvenile courts. At the same time I attended Virginia Commonwealth University and took 30 graduate credit hours in psychology, intending to become a psychologist. I needed a practicum which was hard to do while working full time.
While working as a probation officer, I became involved with the Orton Dyslexia Society and the Association for Children with Learning Disabilities (now LDAA). Many of the youngsters that I worked with in the training schools and juvenile courts had undiagnosed, unremediated learning disabilities. I used educational remediation to reduce delinquent behavior and spoke at the National Conferences of the ACLD and Orton Dyslexia Society about LD and juvenile delinquency in 1974 and 1975.
Later in 1975 I attended Law School and immediately became involved in special education litigation after passing the Bar. By the early 1980ís I was handling a large number of special ed cases and in the Fall of 1984 was a primary speaker at the National Orton Dyslexia Annual Conference which was held in Winston-Salem, North Carolina. I held a training session for lawyers and parents about special ed law and actual trial tactics in the litigation of special education cases.
Meeting Emory and Elaine Carter
That led to my talking to parents and educators at the North and South Carolina Annual Orton Conference in the spring of 1985 at Wingate College, North Carolina. Shannon Carterís parents were in the audience.
In February, 1991, I spoke at the South Carolina Annual Orton Conference in Charleston. A couple of weeks before that conference, the U. S. District Court had issued its Decision in Shannon Carter's case. The Carters were attending the conference. I obtained a copy of the Opinion, and, with the Carterís permission, used it as a primary teaching tool during the sessions. The Carters had prevailed at the District Court level and were concerned that the School Board might appeal to the Fourth Circuit.
Florence County School District Four did appeal. I was asked by the Carters and their counsel, David Burlington with the South Carolina Protection and Advocacy Office, if I would be willing to assist in the Fourth Circuit appeal. I had previously handled cases before the Fourth Circuit including special ed matters. I agreed and played devilís advocate with David Burlington as he did all of the work on the brief.
After the brief was filed he was hired by the Federal Government to be an Administrative Hearing Officer in Social Security matters and I became counsel of record. Nancy McCormick of the South Carolina Protection and Advocacy Office took over on Davidís behalf and I became responsible for arguing the case at the Fourth Circuit and later before The U. S. Supreme Court.
In preparation for oral argument, I read and reread every exhibit, due process transcript, District Court transcript, and all pertinent cases. In Carter, the main issue at the Due Process Hearing and at the District Court trial was whether or not the proposed three hours a week of special ed was appropriate for a 16 year old child described as functionally illiterate.
At this point, I am going to move away from the process of the Carter case to some of the facts. Then I will pick back up with the Fourth Circuit argument.
The Facts in Carter
In 1983, Shannon Carter was demonstrating significant academic problems and her parents requested a special ed evaluation. Emory and Elaine Carter were told by the schoolís evaluator that their daughter, Shannon was lazy, unmotivated and a slow learner. Her parents were instructed to make her work harder. Shannonís parents followed these directions. Despite this pressure, Shannon continued to bring home poor grades.
Finally, feeling worthless and hopeless about the future, sixteen-year-old Shannon took an overdose. Alarmed at the seriousness of their daughterís depression, Mr. and Mrs. Carter contacted a licensed clinical social worker for help. In 1985, the social worker, who was well-versed in the field of learning disabilities and attention deficit disorder, changed Shannonís life.
She suspected that Shannon had a learning disability and an attention deficit disorder. Her provisional diagnosis was confirmed by independent private sector testing and was later corroborated by subsequent testing conducted by a school system evaluator.
However, by the time these evaluations were completed, Shannon had fallen many years behind her peer group academically and was functionally illiterate. To rectify the problem and remediate Shannon, Florence County School District Four proposed placing Shannon into an itinerant special education program three hours a week.
All of the parentsí experts insisted that Shannon was so far behind academically that she needed a self-contained classroom that would provide intensive remediation in order to have any chance of catching up with her peers. School District Four did not have a self-contained program for LD youngsters, although neighboring public school districts did.
Despite requests from the Carters that Shannon be educated at one of the neighboring schools where she could have appropriate remediation, District Four continued to propose the itinerant program. The schoolís proposed IEP would have Shannon making approximately one-half year of educational gain after an entire year of education. This proposal would ensure that Shannon would continue to fall further and further behind her peer group, despite the fact that she had average to above average intellectual ability.
In essence, District Four told the parents to "take it or leave it." The line had been drawn in the sand.
Shannon's Parents Lose at Due Process and Review
The parents requested a Due Process Hearing to require that Shannon be provided a self-contained classroom, either in a neighboring day school or at Trident Academy, a special education school in Mt. Pleasant, S.C.
The special education due process hearing was held on August 20, 1985. The Carters lost, but they refused to keep their daughter in a program where she would continue to fall further behind. With anxiety and sadness, Mr. and Mrs. Carter finally decided to send Shannon away from home in order that she could obtain an appropriate education.
In September, 1985 Shannon entered Trident Academy over a hundred miles away from her home in tiny Timmonsville, S.C. Three years later, while litigation was still pending, she graduated from Trident. During those three years at Trident, Shannon had made remarkable progress-from being functionally illiterate to reading at the twelfth grade level.
After the Due Process Hearing the parents appealed to a Review Officer. The Review Officer upheld the Hearing Officerís decision against Shannon.
The Carterís filed suit on Shannonís behalf in the U. S. District Court in Florence, South Carolina. The Judge dismissed their case asserting that the statute of limitations had expired. Three times at bat, three strikeouts. Bruce Davis, Florence County School District Four counsel at the Due Process Hearing, who continued as counsel through the Supreme Court, had been very successful.
Mr. and Mrs. Carter were discouraged. However, Shannon was receiving an excellent education at Trident Academy. The South Carolina Protection and Advocacy Office, which became involved just after the Due Process Hearing, continued to press forward with an appeal to the U. S. Court of Appeals for the Fourth Circuit, asserting that the statute of limitations had not expired.
The Protection and Advocacy Officeís position was vindicated as a result of another Fourth Circuit decision, known as Schimmel, to be discussed later, and the case was reinstated. This was Shannonís first victory and simply allowed the case to go forward to trial!
At trial, Florence County School District Four continued to assert that their proposed itinerant program, in which Shannon would fall further and further behind, was appropriate.
After hearing evidence, including evidence from experts he appointed to evaluate the programs, the Judge issued a decision that described District Fourís proposed program as "wholly inadequate." The Court ruled in Shannonís favor and directed that the Carters be reimbursed for the costs of Shannonís education at Trident Academy.
The Fourth Circuit heard oral argument on September 30, 1991 and rendered their decision on November 26, 1991. The Fourth Circuit affirmed the decision of District Court Judge Houck and took the Second Circuit to task for its misplaced reliance upon an earlier Fourth Circuit case, known as Schimmel.
The Fourth Circuit and U. S. States Supreme Court
Now that you have a clear, unbiased understanding of the facts in Carter, I will continue with preparation for oral argument before the Fourth Circuit.
First, let me explain the process of appeal.
When cases are appealed from a U. S. District Court to an appellate court, they will go to the U. S. Court of Appeals for the such and such circuit. Cases in Maryland, Virginia, West Virginia, North Carolina, and South Carolina are heard by the U. S. Court of Appeals for the Fourth Circuit. The Ninth Circuit hears cases here in California and in Arizona, Idaho, Nevada, Oregon and Washington. Cases in New York, Connecticut, and Vermont are heard by the Second Circuit. Cases that are appealed from a Circuit Court of Appeals go to the U. S. Supreme Court.
Previously, the Fourth Circuit had a similar tuition assistance case where the parents had placed their child into a school not on the stateís approved list. That case, Schimmel involved both a statute of limitations issue and a tuition assistance issue for a child placed into a non-approved school. My office, on behalf of the American Civil Liberties Union, had filed a Friend of the Court brief in Schimmel regarding the statute of limitations.
The Fourth Circuitís earlier decision in Schimmel was somewhat counter to the trial judgeís opinion in Carter. Thus, the focus at oral argument before the Fourth Circuit was to convince the three judge panel that Schimmel did not apply. The District Court Judge in Carter was well aware of Schimmel and noted that it involved a different set of facts. In Schimmel the public school had offered an appropriate program to the child, and did not in Carter.
Again, as I previously noted, the primary issue at the trial level was the three hours a week gain and proposed four month educational benefit in reading and math. At the Fourth Circuit level, I focused on the three hour a week special ed program and explained Schimmel in great detail and why that case did not apply. I asserted that the private school placement obtained by the parents in the Schimmel was clearly not appropriate. In fact, unlike Trident Academy in the Carter case, the school in Schimmel was not even a special education school. Thus the focus of oral argument was upon the District Court decision in Carter and the Fourth Circuitís earlier decision inSchimmel.
Before Fourth Circuit (September 30, 1991)
Fourth Circuit Issues Decision: Creates Split Among Circuits
Two months later
the Fourth Circuit issued the decision
in Shannon's case. To my surprise, the Court did not discuss
Schimmel but focused on the Second Circuitís decision in Tucker.
Florence County Appeals to Supreme Court
Since the Opinion established a clear "split among Circuits", Florence County appealed to The U. S. Supreme Court. They requested Certiorari which is permission to continue with their appeal.
That summer, the U. S. Supreme Court only agreed to hear nine cases out of three thousand submitted.
While an appeal may have a good chance of reversal on the merits of the case, there are other factors that control whether the U. S. Supreme Court will agree to hear a case. The most significant factor is whether different Courts of Appeal have ruled in opposite directions given similar facts. In other words, is there a clear "split among circuits" that requires the Court to step in and settle the matter? Other reasons generally relate to public policy considerations. A clearly erroneous decision is no assurance that the Supreme Court will agree to hear the case.
The United States Supreme Court requested that the Solicitor Generalís Office of the United States Department of Justice advise as to the position of the United States government. The Department of Justice, under the Bush administration at that time, filed a brief recommending that the Fourth Circuitís decision be upheld. In the alternative, if the Supreme Court was to issue a Writ of Certiorari and agree to hear the case, it would be only to resolve the split among Circuits.
Petition for Certiorari
Extensive work on
the Petition for Certiorari was handled by Kathy Boundy and Eileen
Ordover of the Center for Law and Education in Boston, Massachusetts.
Nancy McCormick with the South Carolina Protection and Advocacy
Office assisted them during that process.
Florence County School District Four filed their brief. Amicus Curiae (friend of the court) briefs were filed supporting Florence County District Fourís position by the following seventeen states: Arizona, Georgia, Louisiana, Maine, Maryland, Montana, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wyoming. Briefs supporting School District Four were also filed by a number of other large powerful organizations including The National League of Cities, U.S. Conference of Mayors, Council of State Governments, National Association of Counties, International City/County Management Association, National Governorsí Association, National Institute of Municipal Law Officers, National School Boards Association, and The National Association of State Boards of Education. Florence County and the School Boards told the Justices that schools would face financial catastrophe and ruin if Carter was upheld.
In addition to our brief, amicus briefs on behalf of Shannon were filed by the United States Department of Justice/Solicitor Generalís Office of the United States and the following groups: The National Head Injury Foundation, Inc., National Alliance for the Mentally Ill, The Bazelon Center for Mental Health Law (formerly the Mental Health Law Project), National Association of Protection and Advocacy Systems, Maryland Disability Law Center, Advocacy, Inc., and the Learning Disability Association of America.
In litigation, it is important to take complicated facts and issues, simplify them, and develop a theme of the case.
In New York there was another Kildonan School case that involved a child named Jack Straube. In that case, the District Court Judge expressed concern about the Tucker rule. He told the parents that they did a wonderful job in securing an education for their son at Kildonan. Jack's reading, writing and arithmetic grade levels jumped remarkably after one year at Kildonan. The Judge noted that the education the parents obtained for Jack was appropriate, but, because of Tucker, it was not free.
With Shannon Carter, Tucker, and Jack Straube, we had children who were educated in an Orton-Gillingham School and who had made significant educational gains in reading, writing, and arithmetic. Jack Straube's case would be my theme in oral argument.
Preparing for Oral Argument
Once the date for oral argument was set, the butterflies and anxieties began. I frequently woke up in the middle of the night during dreams that I was arguing the case, looked down, and discovered that I forgot to wear socks and shoes. After the Wednesday oral argument, the nine Justices would meet on Friday in a private session to vote for Shannon or District Four. The senior Justice on the majority side assigns the responsibility of writing the opinion to himself or another Justice on the majority. That first draft is circulated among all of the Justices for comment, revision and dissents. Redrafts follow and eventually the decision is announced.
May It Please the Court
To prepare, I obtained the May It Please the Court book by Peter Irons and tapes of 23 oral arguments before the Supreme Court. This was an excellent resource as I prepared the theme and style of delivery.
Listening to these tapes made a powerul impression on me. I heard Justice Thurgood Marshallís arguments in the Little Rock school desegregation cases. I heard Donald Ayer, counsel for Florence County, who would argue on Florence County's behalf, on these tapes.
Not only was drama,
flair and emotion acceptable, but was perhaps necessary.
I spoke with several attorneys about the theme, delivery and arguments to be used before the Supreme Court: David Rosenberg, the attorney in the famous Burlington case. William Ball, attorney in Wisconsin v. Yoder and Zobrest. Attorneys in the Tucker and Jack Straube case. Calls to the Headmasters of Kildonan and Trident Academy regarding the abolition of "state approved lists."
Court counsel advised me, "Do not argue the facts of your case.
Do not argue the law."
Read and reread each brief twice and outlined on the computer. Read and outlined each case cited in each brief. Read and re-read each exhibit and all due process and trial testimony, two times and outlined on the computer. Read and re-read several times the entire Public Law 94-142. Read and re-read actual statute and regulations and typed into computer.
Observing Oral Arguments
I went to Court
and observed the Supreme Court in action on Monday, October 4, 1993, two days
before arguing Carter.
Up at Moot Court
They pummeled me, kicked me when I was down and had no mercy. At one point I quoted an earlier Supreme Court decision and the mock Justice, who had joined the majority opinion, noted that he had regretted his position.
After two grueling half-days with that group, I felt confident to take on the Supreme Court. They could not be any worse than the Public Citizens Group!
October 6, 1993 arrived. I had practiced my two minute opening and was ready for questions. Breakfast in the Supreme Court cafeteria, sittin in the table next to Justice Blackmun and his clerks!
Breakfast, Ha! I couldnít eat.
At counsel table, the Justices enter, all rise, Oyez, Oyez, Oyez. Silence is commanded. The Justices are seated, adrenaline flows throug the small room.
The case is called. Donald Ayer, arguing counsel for District Four steps to the podium, Chief Justice Rehnquist just inches away, everyone is so close. He begins with a story about a three legged stool and the special ed process. They interrupt him. They are brutal. He fields questions, suddenly, his time is up. My turn.
let me get through my opening statement before interrupting?
Opening Statement by Peter W. D. Wright before The U.S. Supreme Court, October 6, l993
"Mr. Chief Justice, and may it please the Court. Before we get into the issues, I would like to take a moment to review some of the factual questions that are important in responding to Mr. Ayer, Counsel for School District Four.
"In 1983, when Shannon was thirteen years old, she entered the seventh grade at Timmonsville School. Her mother told the school officials that Shannon could not read and requested that she be evaluated. The school system evaluated her and concluded that she was lazy, unmotivated and a slow learner, who needed to be pressured to work harder. Relying upon this advice, her parents pressured her to work harder.
"By February 1985, she was sixteen years old, functionally illiterate, had become suicidal and was severely depressed. Her parents obtained counseling for her. The Counselor recommended that Shannon receive a complete psychological evaluation. The results found that Shannon had a severe learning disability, and intense remedial educational services were recommended. Following this, the school evaluated Shannon and they concurred that Shannon had a severe learning disability and was average to above average in intelligence.
"At a conference with parents and school personnel, an individualized educational program was presented to the parents that proposed a resource program for Shannon. This would be a class where Shannon would be placed with emotionally disturbed and mentally retarded children. The parents said that this was not appropriate for Shannon. The school then offered an itinerant program. This program consisted of three hours of special education a week and, after a year in the tenth grade, as a seventeen year old, her reading would still have remained at the fifth grade level and she would have fallen further behind her peer group. The parents contended that this was also inadequate and requested, based upon the advice of Shannonís evaluators, a self contained learning disabled program such as was offered down the road in Florence County School District One.
"District Four refused to consider placing Shannon in any public or private self contained program. The parents then requested a special education due process hearing. At the August 20, 1985 due process hearing the Carterís requested funding for either two neighboring schools or Trident Academy, a special education school accredited by the Southern Association of Colleges and Schools.
"The issue at the special education due process hearing and before the District Court Judge was whether or not District Fourís program was appropriate.
"The Trial Court not only found that District Fourís program was wholly
inadequate, but also found that Trident Academy provided Shannon with
an excellent education. She was reading at the twelfth grade level upon
graduation. Shannon did receive an appropriate education at Trident. We
ask that you also ensure that her education was free."
Listen to Oral Argument in Florence County School District IV v. Shannon Carter by Pete Wright in sync with written transcript.
Listen to the Oral Argument (MP3 download)
Justices Ask Questions
The questions come
fast and furious from the Justices, they interrupt each other.
The Department of Justice is up. Amy Wax argued on our behalf; abolish lists if the school system drops the ball. Parents are the best judge in determining whether a private school is appropriate, not the state who may have motives other than the childís educational gain.
Down the Courthouse steps, the media, the cameras, Shannon, the interviews, no - it is not over. It's just beginning.
On the evening news, Dan Rather reports that not only did Shannon have her struggles but so did Shannonís attorney who is also LD and ADD. The switchboard lights up. Telephone calls flood the Carters and Pete Wright beginning on October 6.
I felt good about the case. Several experienced special ed attorneys in the audience felt that we won. But still . . . it's November 9, we won, the surge becomes stronger.
Two cases, Pete Wright and Shannon Carter began in 1953 when Pete Wright was identified and received remediation, and again in 1985 when Shannon was identified and began remediation. In 1993, two cases merged at the U. S. Supreme Court.
Lines may no longer be drawn in the sand ... children shall learn how to read, write and do arithmetic and, in the end, become self-sufficient functioning members of society, not drop-outs with emotional baggage.
The decision is economically sound. This is what Congress intended.
The U. S. Supreme Court held that schools must fulfill the intent of Congress. If Congress did not provide the dollars they said they would provide, children should not be victims of that failure. The Court held that schools must provide services.
Do not blame children and their parents for seeking an appropriate education!
That is the rule of Carter!
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Last revised: 09/29/15