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UNITED STATES DISTRICT COURT
OF SOUTH CAROLINA
FLORENCE DIVISION

17 EHLR 452
    Shannon CARTER, a minor by and through her father and next friend, Emory D. CARTER
Plaintiff
v.

FLORENCE COUNTY SCHOOL DISTRICT FOUR; Ernest K. NICHOLSON, Superintendent, in his official capacity; School Board Members: Bennie ANDERSON, Monroe FRIDAY, Jack ODOM, Elrita BACOTE, T.R. GREEN, and James W. HICKS, in their official capacities
Defendants

No. 86-2028-2

January 30, 1991

HOUCK, U.S. District Judge

This case arose in connection with the education of Shannon Carter, a learning disabled student at the Timmonsville High School in Florence County School District Four, South Carolina. Shannon Carter and her parents challenge the Individualized Education Program (IEP) designed for Shannon and appeal the decision of a local education agency administrative hearing officer and the affirmance on appeal of that decision by a state education agency administrative hearing review officer that the school district met its obligation to provide Shannon a free appropriate public education (FAPE) pursuant to the requirements of the Education of the Handicapped Act (EHA), 20 U.S.C. §§ 1400, et seq.

Trial was had before the court without a jury on July 13, 1988, and July 14, 1988, and again on May 9, 1989. The parties thereafter made supplemental filings, and the matter became ripe for decision. Having given careful consideration to the record in this case as well as the arguments and other submissions made by counsel for the parties, the court, pursuant to Rule 52 of The Federal Rules of Civil Procedure, herein publishes its Findings of Fact and Conclusions of Law.
 

Findings of Fact
1. Shannon Carter attended first grade in Florence County School District Four at Timmonsville Elementary School. At the end of her first grade year, Shannon was withdrawn from Timmonsville Elementary School and enrolled at a nearby private school, Roy Hudgens Academy. At Roy Hudgens Academy, Shannon repeated the first grade at the insistence of her mother and remained at the academy through the sixth grade.1

2. At the beginning of the 1982-1983 school year, Shannon re-entered public school in Timmonsville and was enrolled in the seventh grade.

3. At some time in the early part of 1983, Shannon was given some screening tests by the junior high school guidance counsellor to obtain an indication of her I.Q. and achievement level. In February 1983, the guidance counsellor contacted the school district’s educational evaluator, Mr. Ray Hill, to conduct similar tests. Mr. Hill testified that he administered one intelligence and one achievement test to Shannon in February 1983. According to Hill, Shannon scored slightly below average achievement and, thus, did not qualify as learning disabled.2

4. In the fall of 1984 Shannon entered the ninth grade at Timmonsville High School and was placed in a regular classroom. Shannon continued to perform poorly as reflected by her first semester averages.3 This continued poor performance prompted Shannon’s parents to seek additional testing for her. In February 1985, Mrs. Carter contacted the school district to request another evaluation.

5. On April 13, 1985, Shannon was again tested by Mr. Ken Bailey, a state certified school psychologist. Following the evaluation it was agreed that a meeting would be held to discuss its results. At the meeting held on April 18, 1985, Bailey reported Shannon’s evaluation results concluded that, based on State Department of Education criteria, Shannon qualified for a learning disability (LD) placement. He explained that there existed “a significant discrepancy between ability and achievement according to the one and one-half standard deviation difference formula. . . .”4 This evaluation indicates a serious learning disability, with a variance between Shannon’s verbal I.Q. and performance I.Q. of 36 points.5 Various subtests administered by Bailey yielded reading ability levels from 4.7 grade level equivalency to a 6.8 level.

6. Shannon suffers from a serious and significant learning disability. Testimony from Dr. James Ward and Dr. Allison Grant indicate that Shannon’s learning disability is on the severe end of the scale. According to Shannon’s parents and Dr. Grant, Shannon also suffered from significant emotional overlay manifested by depression, feelings of low self-worth and self-esteem, as well as suicidal thoughts. Testimony from Ms. Margaret Mitchell of Trident Academy indicates that Shannon entered Trident Academy in the fall term in 1985 as a functional illiterate.

7. Subsequent to the evaluation performed by Bailey, an IEP meeting was scheduled for May 1, 1985. Numerous personnel from Florence County School District Four were present as well as the parents of Shannon and Ms. Linda Summer.6 During that meeting, the IEP proffered by the district was read to the Carters. The school district was of the opinion that an L.D. resource class would be the appropriate placement for Shannon. The parents disagreed and requested an L.D. itinerant program.7 According to the parents’ testimony, their reasoning was that it would be inappropriate for Shannon to be in a resource class with other special education students with emotional illnesses and/or mental retardation. Lisa Free, the L.D. teacher at Timmonsville High School, testified that the majority of her students that year were mentally retarded and that segregation between these students and her L.D. students was improbable.

8. Despite the disagreements that existed between Shannon’s parents and the school district, the IEP document was nonetheless prepared and submitted to the Carters for signature.8 Implementation of the plan commenced on May 2, 1985, and by its clear language was to run until June 1986.9 Shannon’s ultimate placement under this IEP was three periods of L.D. itinerant classes per week. A period in district four is a little less than one hour.

9. Several long range goals were written into the IEP. The reading goal specified four months of progress during the year, from a 5.4 level to a 5.8 level. The mathematics goal was similarly one for four month’s progress, from a 6.4 level to a 6.8 level. In light of the expert testimony of Ms. Mitchell, Dr. Grant and Dr. Ward, it is clear that these goals were wholly inadequate. Much more progress was necessary in order to provide Shannon an appropriate education. Shannon was in need of an intensive self-contained L.D. environment to afford her with an individualized special education to meet her unique needs.

10. Shannon’s parents were ultimately dissatisfied with the district’s plan and sought a due process hearing pursuant to 34 CFR § 300.506(a). The hearing was held on August 20, 1985, in Timmonsville, South Carolina. In a decision dated September 5, 1985, the hearing officer held for the district. The Carters appealed this decision to the state level. The hearing officer’s decision was upheld on October 14, 1985.

11. In response to their dissatisfaction with the IEP Shannon’s parents began a search for an appropriate placement for Shannon. Ultimately, they selected Trident Academy in Mt. Pleasant, South Carolina. Trident Academy is a private day school specializing in the education of learning disabled children. Shannon began courses at Trident in September 1985, and remained there until her graduation in the spring of 1988.

12. Trident Academy is fully accredited by the Southern Association of Colleges and Schools and has accepted public school students under the dictates of the EAHCA on numerous occasions, including at least three instances from South Carolina public schools. In these instances, EAHCA tuition monies were paid directly from the school districts to Trident. The district has offered no evidence that Trident has ever been disapproved by the South Carolina Department of Education.10

13. In light of conflicting testimony as to the appropriateness of Trident, the court’s appointed expert, Dr. Richard Nagle, tested Shannon in the spring of 1988. His tests revealed that Shannon made significant progress at Trident. Her reading comprehension had risen from a level of 4.7 in 1985 to 7.8 in 1988. Based on these tests, Dr. Nagle concluded that Trident had done a good job of meeting the individualized needs of Shannon. The court agrees with Dr. Nagles’ assessment as well as the assessments of Dr. Ritter, Dr. Ward, Dr. Grant and Ms. Mitchell that the education offered at Trident Academy has been an appropriate special education for Shannon.

14. As a result of enrolling Shannon at Trident Academy, the Carters incurred the following expenses:

                                    85-86 School Year                         86-87 School Year

 Tuition and fees                6,992.00                                              8,484.00
 Room and Board              3,600.00                                             3,600.00
 Mileage to school                158.40                                                158.40
 4 trips home                        221.76                                                 221.76
                                          ______                                                ______
                                      $10,972.16                                               $12,464.16

                                    87-88 School Year

Tuition and fees                8,139.70
Room and board              1,869.69
Mileage to school             2,059.20
4 trips home                      211.20
                                        ______
                                    $12,279.79

15. The court finds that the tuition and fees charged by Trident were reasonable for the services it provided. The court is persuaded by the fact that Trident offers these services on the open market and that the economics of supply and demand are in operation. Further, the defendant has offered no evidence that Shannon could have received the special educational services provided by Trident at any facility closer to her home or at a lower cost.11 Therefore, the Carters are entitled to reimbursement for tuition and fees in the amount of $23,615.70, for the three school years that Shannon attended Trident.

16. For the 1985-86 and 1986-87 school years, Shannon boarded with a Mt. Pleasant resident, Ms. Mary Ann Griffin. During the 1987-88 school year, Shannon roomed in a private apartment with her older brother in the Charleston area. Since Timmonsville and Trident Academy are a considerable distance from one another, it was reasonable for Shannon to board somewhere in the area of Trident. The room and board expense of $9,069.69 was a logical and legitimate consequence of Shannon’s attending a school away from her home. We find that said amount is a reasonable additional expense necessitated by Shannon attending an out of town school.

17. During the 1985-86 and 1986-87 school years Shannon traveled approximately 20 miles per week to attend Trident Academy at a cost each year of $158.40. This expense increased to 52 miles per day and a total of $2059.20 during the school year 1987-88. The court finds these mileage expenses for Shannon’s transportation to and from school to be reasonable and recoverable.12 Therefore, the Carters are entitled to a total of $2376.00 for Shannon’s transportation to and from school.

18. The four trips home each year were a reasonable and necessary expense and shall be allowed. Therefore, the Carters are entitled to reimbursement for those expenses in the amount of $654.72.

19. It is impossible to compute with accuracy the amount of prejudgment interest that the plaintiff is entitled to recover in this action. Her father borrowed some of the money spent for education related expenses from the Pee bee State Bank, Timmonsville, South Carolina. The record reflects that the interest paid or obligated to be paid on that sum through December 31, 1989 is $6519.04.13 The amount of plaintiff’s expenses paid from funds other than those borrowed from Pee Dee State Bank cannot be determined, and no interest can be awarded therefor. Likewise, the record is silent as to any interest paid by plaintiff’s father after December 31, 1989. From that day through December 31, 1990, all sums required herein to be paid by the defendant to the plaintiff shall accrue interest at the rate of 7.91% per annum14 During the month of January 1991, the prejudgment interest rate shall be 6.62% per annum which is the yield of Fifty-two Week Treasury Bills during that month.
 

Conclusions of Law
A. Jurisdiction is conferred upon the court by 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3) and (4).

B. The Education of the Handicapped Act, 20 U.S.C § 1401 et seq. (1976 ed. and Supp. IV), provides federal money to assist state and local agencies in educating handicapped children, and conditions such funding upon a state’s compliance with extensive goals and procedures. The EHA represents an ambitious federal effort to promote the education of handicapped children and was passed in response to Congress’s perception that a majority of handicapped children in the United States “were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out.’” H. R. Rep. No. 94-332, p.2 (1975).

C. The “free appropriate public education” required by the EHA is tailored to the unique needs of the handicapped child by means of an individualized educational program. § 1401(18). The IEP, which is prepared at a meeting between a qualified representative of the local educational agency, the child’s teacher, and the child’s parents consists of a written document containing,

(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 be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. § 1401(19).

D. In the leading case on the subject, Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176 (1981), the Supreme Court has held that the requirement that the state provide a handicapped child with a “free appropriate public education” is met 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 EHA and, if the child is being educated in the regular classrooms of the public school system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. Rowley, at 204-205.

E. The EHA permits “[a]ny party aggrieved by the findings and decision” of the state administrative hearings “to bring a civil action” in “any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.” § 1415(e)(2). When a suit is brought under the EHA, the court’s inquiry is twofold. First, has the State complied with the procedures set forth in the EHA? And second, is the individualized educational program developed through the EHA’s procedures reasonably calculated to enable the child to receive educational benefits?

F. In the present case the plaintiff contends that the school district’s behavior was afflicted with “serious procedural infirmity” regarding compliance with the elaborate procedural requirements of the EHA, thereby invalidating the May 1, 1985, IEP. Such compliance is critical to the efficient operation of the EHA, and serious procedural noncompliance can by itself support a finding that the child has not been provided with a FAPE. Hudson by and through Tyree v. Wilson, 828 F.2d 1059 (4th Cir. 1987), citing, Hall v. Vance County Board of Education, 774 F.2d 629, 635 (4th Cir. 1985). The Carters contend that they were confronted at the May 1, 1985, IEP meeting with a completed IEP as if it were a fait accompli, with no opportunity to contribute to the content or development of the document.

G. It has been held “appropriate for agency staff to come prepared with evaluation findings, statements of present levels of educational performance, and a recommendation regarding annual goals, short term instructional objectives, and the kind of special education and related services to be provided. However, the agency must make it clear to the parents at the outset of the meeting that the services proposed by the agency are only recommendations for review and discussion with the parents.” B.G. by F.G. v. Cranford Board of Education, 702 F.Supp. 1158, 1165 (D.N.J. 1988). While there is considerable dispute as to what actually took place at the meeting, the court concludes that there has been no serious procedural non-compliance on the part of the school district.

H. Turning now to the court’s second inquiry, it should be noted that there exists no single substantive standard describing exactly how much educational benefit is sufficient to satisfy the EHA. Each case must be determined on a case-by-case basis, Hall v. Vance County Board of Education, 774 F.2d 629, 635 (4th Cir. 1985), but, as the Rowley decision makes clear, “[w]hen the handicapped child is being educated in the regular classrooms of a public school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit.” Rowley, at 207, N. 28.

I. The IEP prepared on May 1, 1985, did not provide Shannon with a free appropriate public education as required by the EHA. Even if all of the goals of the document had been met, Shannon would continue to fall behind her classmates at an alarming rate. The stated progress of only four months in her reading and math skills over an entire school year ensured the program’s inadequacy from its inception. Furthermore, the district’s offer of only three periods of itinerant study a week failed to meet Shannon’s educational needs. At a minimum, which is all the EHA requires, the district was obligated to provide Shannon an individualized program that would allow her to receive passing marks and advance from grade to grade. Having failed to do this, the court concludes that Florence County School District Four failed to provide Shannon Carter with a free appropriate public education.

J. It is now settled that parents may be entitled to tuition reimbursement despite the unilateral withdrawal of their child from the public school. Burlington School Committee v. Department of Education, 471 U.S. 359 (1985). The parents, of course, withdraw the child at the risk that the subsequent administrative and judicial review will establish that the contested placement provided a FAPE. In Burlington the court noted the cruel dilemma an arguably inappropriate placement offers the parents if they have no possibility of reimbursement for expenses resulting from an unilateral withdrawal. They may either leave the child in an inappropriate classroom pending the long process of review or remove the child and waive any right to tuition reimbursement for alternative schooling while review is taking place. The court accordingly held that a prior unilateral withdrawal did not waive the child’s right to such an equitable remedy at the end of the review process. Burlington, at 370.

K. There appears no doubt, then, that the Carters were entitled to withdraw their child from the public school because of its failure to provide a FAPE. The remaining issue concerns whether or not the Carters had a right to place Shannon at Trident Academy. From the outset it should be noted that the evidence established that Trident Academy provided Shannon an excel lent education in substantial compliance with all the substantive requirements of the EHA. Although it did not comply with all of the procedures outlined in the EHA, it evaluated Shannon quarterly, not yearly as mandated in the EHA, it provided Shannon with low teacher-student ratios, and it developed a plan which allowed Shannon to receive passing marks and progress from grade to grade. The court concludes that Shannon received an appropriate education, within the meaning of the EHA, at Trident Academy.

L. The defendants, relying on the recent case of Schimmel by Schimmel v. Spillane, 819 F.2d 477 (4th Cir. 1987), argue that the plaintiff herein is not entitled to tuition reimbursement because they placed her in a school that had not been approved by the South Carolina State Department of Education. Spillane is clearly distinguishable from the present case. In Spillane, the parents and the school were in agreement that the child needed to be placed in a residential school, and the school system agreed to pay the cost of such placement at the Little Keswick School near Charlottesville, Virginia. Little Keswick is a private residential school which is approved by the Virginia Department of Education as a school for the handicapped. The parents declined to enroll their child at Little Keswick and instead enrolled him at a private school in Vermont. After the school refused to place the child at the Vermont school, the parents sought a due process hearing. At that hearing it was held that the Virginia school offered an appropriate education. This decision was upheld on appeal to the state reviewing officer. The parents then brought suit in the district court where judgment was entered for the school district. The Fourth Circuit Court of Appeals affirmed. Schimmel by Schimmel v. Spillane, 819 F.2d 477 (4th Cir. 1987). This court has no quarrel with the Schimmel decision and agrees with the same.

In the instant case the situation is quite different. We are not dealing with referral to a private school with a public agency so as to make § 1413(a)(4)(B) of the EHA and 34 CFR § 300.401(a)(3) applicable. This case involves a situation where the school district failed to provide the child with a free appropriate public education, and the only way the parents could provide the same to their daughter within a meaningful time frame was to enroll her in a private school. Nothing in the existing law or regulations convinces this court that the stringent requirements advanced by the defendants should be applied to such a unilateral placement.

M. Congress has provided that in all actions brought in this court under the EHA “the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court deems is appropriate.” 20 U.S.C. § 1415(e)(2)(c). The United States Supreme Court has said that “equitable considerations are relevant” in determining the appropriate relief mandated by the statute. This court, therefore, concludes that the plaintiff should be entitled to recover all reasonable expenses incurred by her parents in enrolling her in Trident Academy for the last three years of her high school education. These expenses should, of course, include prejudgment interest.

Order

The plaintiff shall, therefore, have judgment against the defendant in the amount of $35,716.11 plus prejudgment interest computed in the manner herein specified15 and costs.

AND IT IS SO ORDERED.

1 While Shannon had received passing marks in the first grade at Timmonsville Elementary School her mother decided it would be in Shannon’s best interest to repeat it at Roy Hudgens Academy.
2 The actual test results were not available at trial. Hill stated that after a thorough search of his files he was unable to locate Shannon’s 1983 test results. This is most unfortunate because all of the experts who testified on the subject were in agreement that, absent a traumatic injury to the head, a learning disability does not naturally develop in a child who previously did not suffer from one.
3 Shannon’s first semester averages were as follows: English 9--D; Pre-Algebra--F; Physical Science--D; Civics and Geography--F; and Physical Education--F.
4 Report of Dr. Bailey, plaintiff’s exhibit 3.
5 The verbal I.Q. was 81 and the performance I.Q. was 117.
6 Ms. Summer is a psychiatric social worker from Florence, South Carolina. She was employed by the plaintiff’s parents and first examined the plaintiff on February 19, 1985. She testified in the administrative phase of this proceeding and was present during the trial in this court but did not testify.
7 Pursuant to 20 U.S.C. § 1412 the South Carolina State Board of Education adopted Regulations 43-243 which at page 144 explained the difference between an itinerant program and a resource class as follows: In an itinerant program the specialist will provide continual ongoing services to handicapped pupils and teachers taught in regular classroom settings. A resource room program shall involve pupils who will remain in regular classrooms for the major part of the day and will be scheduled into the resource room for one or more periods of individualized instruction contingent on pupil’s needs.
8 There was considerable dispute during the trial as to whether the parents signed the document knowingly and voluntarily. This issue is of no import; clearly the Carters were not satisfied with the plan. The IEP is not a binding contract and either party can seek changes at any time. The fact that their signature appears on the document does not effect the outcome of this case to any extent whatsoever.
9 The school district would have this court believe that the IEP was only intended for the remainder of the school year. However, the IEP states in clear and unambiguous language that it was to run until June 1986.
10 Although Dr. Black testified in the abstract about possible disapproval of the school because it employs one non-certified teacher, this is not fatal to the plaintiff’s case.
11 There was some suggestion that Shannon could have received special educational services at Florence School District One. However, there was no evidence that the defendant ever presented this as an option. The parents were, of course, prevented by state law from independently seeking a placement for Shannon in any public school outside of her district.
12 The mileage expenses for the school year 1987-88 are substantially greater than those for the preceding two years. In finding the same to be reasonable we have also considered the fact that room and board expenses for the same period were correspondingly lower than those for the preceding two years.
13 Plaintiff’s exhibit 36 reflects the amount of interest paid by the Carters through December 31, 1988. Plaintiff’s exhibit 37 indicates the per diem interest on the loan. Since the loans were made from January 1 through December 31 of each year, interest was computed at the per diem rate through December 31, 1989.
14 Fifty-two Week Treasury Bills are sold by auction on a monthly basis. Records of those sales are maintained in the office of the clerk of this court, and the 7.91% rate is an average of the monthly yields of said bills during 1990 as computed from those records.
15 Prejudgment interest shall also be computed in accordance with 28 U.S.C. § 1961(b).

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