BURLINGTON SCHOOL COMM. v. MASS. DEPT. OF ED.
Legal provision: Education of the Handicapped, Education for All Handicapped Children, or Individuals with Disabilities Education Acts, or related statutes, as amended; also see ADA
ORAL ARGUMENT OF DAVID BERMAN, ESQ., ON BEHALF OF THE PETITIONERS
Chief Justice Warren E. Burger: We will hear arguments first this morning in School Committee of Burlington against the Department of Education of the Commonwealth of Massachusetts.
Mr. Berman, you may proceed whenever you are ready.
David Berman: Mr. Chief Justice, and may it please the Court, on June 4th, 1979, the school officials of the town of Burlington conducted a core evaluation to determine the appropriate future placement for Michael Panico, a learning disabled child who is handicapped within the meaning of the Education of the Handicapped Act.
As a result of that evaluation, they determined that the appropriate placement for this child was a Classroom in the Pine Glen School, which is a public school of the town of Burlington.
This was a classroom for children with special needs, and it was taught by a teacher named John McAleer, who had had considerable success in dealing with children of special needs, especially children with learning disabilities and reading disabilities such as Michael then had.
The plan contemplated that Michael would take mathematics sooner or later, but hopefully sooner, with non-handicapped students, and that he would be immediately integrated with non-handicapped students in such non-academic subjects as athletics, music, and art.
Before the plan was even committed to paper, Michael's parents made up their mind to reject it, and they did reject it as soon as they got it, on July 3rd; 1979.
On July 17th, 1979, his parents appeal to the Bureau of Special Education Appeals of the Department of Education of the Commonwealth of Massachusetts, and sough a hearing on their complaint that the IEP was inadequate.
That date is a very important date, because at least as of that date proceedings were pending pursuant to the statute.
In August of 1979, Michael was enrolled in a private school in Lincoln, Massachusetts, exclusively for children with learning disabilities, known as the Carroll School.
Unidentified Justice: Did he consult with the school authorities before that transfer was made?
David Berman: He informed the school authorities, Your Honor, that he was going to make a transfer.
He did not ask their permission to do so, and he did not receive permission to do so.
Unidentified Justice: Counsel, all this is five or six years ago.
Where is the youngster now?
David Berman: I am informed now, Your Honor, that the youngster is in a private school in Beverly, Massachusetts, called the Landmark School.
At least that is where he was When I was last informed of his whereabouts.
Now, the hearing officer conducting proceedings in the months of September, October, and November of 1979, and on January 31st, 1980, she rendered a decision, and in her decision, she made certain findings and rulings which are not necessarily consistent with each other.
But first of all, she said, yes, this IEP, this individual educational plan... I will call it an IEP henceforth... was appropriate.
She said that Mr. McAleer was indeed an excellent teacher.
She noted the Carroll School was a private school exclusively for children with learning disabilities, and she noted that the Pine Glen School was a public school with opportunities for main streaming a child, which is the word that is used to describe taking a handicapped child, as federal law requires, and putting him into the mainstream of activity with non handicapped children.
Nevertheless, she did not uphold the IEP that was written earlier.
She said, first of all, that Michael needed a form of teaching reading known as Orton-Gillingham, that he needed small classes, that he needed a supporting peer group, meaning other children who have learning disabilities, and he needed freedom from distraction.
Now, except with respect to the supporting peer group, petitioners have never doubted that Michael needed all these things, but they never could understand why that would be a basis for rejecting their plan, since he would have received all of them at the Pine Glen School from Mr. McAleer.
Finally, she said over a long period of time these school authorities have violated any number of procedural rights that belong to this child, and therefore I doubt whether they have the capacity to implement this plan in the future.
Now, again, it is very unclear just what she meant by that.
Did she mean that the school authorities were going to yank this child out of the class in the middle of the year or do something like that?
No one can really answer that question, I think, very well.
If that is what she meant, she certainly had no basis whatsoever for making that kind of judgment.
On February 26, 1980, less than a month after that opinion was rendered, the petitioners, who are the School Committee of the Town of Burlington and the town itself, brought an action in the United States District Court for the District of Massachusetts under Title 20 of the United States Code, Section 1415(e)(2).
Unidentified Justice: Mr. Berman, does it strike you as at all odd that Congress should have given the school authorities the right to appeal from the superintendent of education's decision to the federal court?
David Berman: Well, no, it doesn't, Your Honor, really, strike me as odd, although I am constrained to admit that it did strike me odd when I first thought about the statute, and I thought, why would Congress want to give the school authorities this kind of power to seek review?
But then I realized what Congress had in mind.
Congress realized that education of the handicapped was to be a joint effort, and it was a joint effort that involved the parents, that involved the states, and that involved the local educational authorities.
And I think Congress recognized that local educational authorities, Your Honor, have an interest in seeing that the programs that they spend vast amounts of money to set up are vindicated in the courts, if need be, 'and that it is made clear through the courts that they are capable of educating handicapped children, because that is what they are supposed to do.
They are not supposed to dump handicapped children on the private schools.
They are supposed to integrate them into the public schools.
So that is why I think Congress gave the local educational authority that right to seek review.
Now, in July of 1980... this is about five months after the action was brought... the school authorities asked Mr. Panico if he would make his son available for a new evaluation that would have led perhaps to a new or amended IEP.
Mr. Panico flatly said no, I will not do it.
A few months later, Mr. Panico said, well, maybe I will do it, but you have to hire all new people, who have no connection with your school, if you want me to cooperate, and that is something that of course the school authorities refused to do.
In February of 1981, the Department of Education threatened to cut off all of the federal funds to the petitioners unless they started funding Michael's education, which was way past the IEP, I should point out, way past the year for which the IEP was drawn at the Carroll School.
Faced with that ultimatum, the School Committee did start in February of 1981 to pay for the tuition of Michael at the Carroll School, and pay for his transportation, with the strict understanding, however, that if the petitioners prevailed after a trial, the petitioners would have that money reimbursed to them, and indeed, that understanding is enshrined in the first opinion that was to be rendered by the United States Court of Appeals for the First Circuit in this case, and that was rendered in June of 1981.
In May of 1982, there was a trial.
The judge took the hearing officer's decision as prima facie evidence on all acts therein stated.
She said the burden of proof was on the school department, petitioners here, for the year 1979-1980, and for subsequent years the burden of proof was on the parents.
The trial produced on both sides unusually competent expert testimony, and... I say both sides.
I Should say on the side of the parents and on the side of the School Committee.
The Department of Education offered no evidence at the trial.
But one thing about that testimony I think is terribly important.
The respondent's expert, Dr. Levine, never stated an opinion as to what was an appropriate placement.
He wouldn't touch that subject.
The petitioner's expert, Dr. Kinsmore, was very forthright on it.
He said that not only did he find the Pine Glen School to be the equal of the Carroll School, he thought it was superior to the Carroll School.
He pointed out that the progress that the child had made in three years a to the Carroll School had been no better than the child's progress during his first three years when he wasn't in any special school at all, but was merely getting one hour of tutorial at the Memorial School.
And both doctors agreed... a very important point, I dare say... that the type of remediation that would have been offered at the Pine Glen School was a good remediation for this child.
Unidentified Justice: Mr. Berman.
David Berman: Yes, Your Honor.
Unidentified Justice: Do you plan to argue the legal issue that we have to resolve in this case?
David Berman: Yes, Your Honor.
Unidentified Justice: Because I didn't think that we were going to review the propriety of the IEP here.
I thought we had granted cert to decide the legal issue, whether tuition was reimbursable under 1415's provisions, assuming it is decided at the trial court level on remand that an adequate IEP was not offered.
David Berman: --Your Honor, there are actually two issues as to which this Court has granted certiorari.
One is the effect of 1415(e)(3), and the second one, which is highly related to it, is whether damages, or tuition reimbursement, whatever one wishes to call it, can be awarded under 1415(e)(2).
I would like to address 1415(e)(3) first.
And this is a statute which says,
"During the pendency of any proceedings conducted pursuant to this section, unless the state or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child, or if applying for initial admission to a public school, shall with the consent of the parent or guardian be place in the public school program until all such proceedings have been complete. "
Now, I deliberately read both clauses of that statute, not just the first clause, because one of the arguments that respondents make in their briefs, especially the respondent Panico, is that this statute only bars the local educational agency or the state educational agency from changing the placement of a child while proceedings are pending.
It has no bar whatsoever against the parents, and that can't be, because in the second clause, the very same sentence of this statute, when Congress intended to say that only the consent of the parents is needed, it said so in very clear language.
"with the consent of the parent or guardian. "
When Congress wanted an agreement of both, it said so again in perfectly clear language.
Unidentified Justice: Mr. Berman, could you help me?
Where is the statute in the papers before us?
I seem to have trouble--
David Berman: Well, it is found amongst many other places at Page 28B of the statutory appendix to the petition for writ of certiorari.
It is also found in the appendix to the United States Court of Appeals for the First Circuit, which is the last opinion in the appendix to the petition for writ of certiorari.
Unidentified Justice: --It is at Page 127A.
David Berman: Now, there is yet another reason why the suggested reading that the parents would give this statute is untenable, because... notice what Congress says.
It says during the pendency of any proceeding.
Now, if we turn back to Section 1415(b)(2), we make a discovery that it is only the parent who can actually commence proceedings, and they commence their proceedings when they make a complaint about an IEP.
They say this IEP is a bad IEP, it is not good for our child, and that is how proceedings are commenced.
So, who is going to change... who is likeliest to change the placement of a child while, the proceedings are pending?
Plainly it is the parents.
It is not going to be the School Department.
Unidentified Justice: Mr. Berman, your brief acknowledged that there was no effective placement in effect when the new IEP was drawn up.
If that is so, when how was 1415(e)(3) violated when the parents enrolled Michael in Carroll School?
David Berman: --I don't think my brief, Your Honor--
Unidentified Justice: Page 42.
David Berman: --acknowledges... it says, if there was no effective placement.
That still would not give them the right to make a change in placement.
There was no--
Unidentified Justice: Well, it just didn't seem to meet the language of the statute.
David Berman: --There is no effective placement in the sense that the parents have rejected the IEP, but there is certainly a placement, Your Honor, in the practical sense that there is a classroom to which this child is expected to report the following September.
That is a placement in the sense that the school authorities have made a place for this child in this classroom and told the teacher to expect him there, and told the parents--
Unidentified Justice: And it is effective without the parents' consent, in your view?
David Berman: --Excuse me, Your Honor?
Unidentified Justice: It is effective without the parents' agreement, in your view?
David Berman: As an interim basis.
We are talking about an interim placement.
Yes, Your Honor.
On an interim basis it is effective.
Now, I would... I think, you know, we could have a situation where the parents wanted to keep the old placement, and that might raise a very different situation, but of course here the parents did not want the old placement kept at all, so that was never really a problem.
Unidentified Justice: May I just be sure I understand, because this is why I was looking for the statute.
In your view, the words
"the then current educational placement of the child. "
refer to the school he was scheduled to attend in the fall rather than the one he had been in in the spring?
David Berman: --That's correct, Your Honor.
Unidentified Justice: Even though he hadn't yet enrolled and the parents hadn't consented?
David Berman: That is correct, Your Honor, yes.
I think that I would really suggest that the way Congress has written 1415(e)(3), placement of a handicapped child is a little like domicile.
You never lose it.
A handicapped child at all times has a placement, which is the placement to which he will be assigned some time in the future or to which he is presently assigned.
Just as he doesn't lose his placement over the Christmas recess, so he doesn't lose his placement over the summer recess simply because it hasn't taken effect yet.
Unidentified Justice: The words "shall remain" are a little bit hard to fit into that.
You are asking that he remain in a place he has never been.
"Shall remain in the then current placement. "
David Berman: Well, I would have to agree with Your Honor that the word "remain" is a troublesome word, but I think Congress in most instances considers remaining in the sense of remaining in a placement that has been put there on paper as opposed to remaining physically in a placement.
Unidentified Justice: Isn't that some support for the position taken by your opponents that the purpose of this subsection of the statute was to prevent the removal by school authorities of a child who was in an effective placement without the consent of the parents?
I mean, there is some justification.
David Berman: That is... the use of the word "remain" is some support for that, Your Honor.
Unidentified Justice: Yes, it is.
David Berman: Yes, I agree with that.
Now, the question of damages.
Oh, before I get to that, the word "agree".
Both respondents argue that where the parents prevail at the administrative or due process level, as it is sometimes called, there has been an agreement with respect to placement.
I disagree with that.
What they have really done when they have written that is to suggest that when Congress said during proceedings under this section, they really meant proceedings under 1415(c).
That is not what Congress said.
Congress did not say proceedings under 1415(c).
It said, while proceedings under this section are pending.
Now, what the parents really argue, and I think this is the heart of their argument, is that if 1415(e)(3) is construed as Congress wrote it, it is unworkable.
It will not accomplish its purpose.
But I think there is a fallacy that runs through that argument, and the fallacy is that most placements are going to be bad; parents are going to be right most of the time, school authorities are going to be wrong most of the time.
If you take the reverse of that proposition and assume that most of the time, as was the case here, the school authorities will be right and the parents will be wrong when they disagree, and if you allow room for agreement, for a new interim placement while proceedings, are pending, and you allow room, as we think you should, for a court to issue a preliminary injunction in cases of an absolutely dreadful placement, then I think the statute will not affect the efficacy of 1415(e)(3) at all.
Now, the subject of damages.
We seem to be involved here in a semantic argument, and I say that with full remembrance of Justice Frankfurter's admonition that most of the business of this Court does involve semantics.
The parents and the School Department say, well, awarding damages, awarding reimbursement is not the same as awarding damages.
I don't understand that argument.
When reimbursement is awarded for prior tuition, that is as much an award of damages as any other kind of damages that you may get, and indeed damages in law very often involve reimbursement.
Reliance damages which the Court of Appeals talked about from January of 1980 through June of 1980, I don't understand that either.
How could the parents possibly have relied on a decision that they knew was being appealed?
Unidentified Justice: May I ask this question?
David Berman: Yes, sir.
Yes, Justice Powell.
Unidentified Justice: I am confused by your use of the word "damages".
Are any damages being claimed in this case other than reimbursement of tuition and the additional expense of sending the child to the private school?
David Berman: No other damages are the subject of the case in its present posture, Your Honor.
Unidentified Justice: Yes, so that when you use the term "damages", you are talking about tuition and reimbursement for other expenses, not damages in the tort sense that may include punitive damages under some circumstances?
David Berman: That is correct, Your Honor.
And as far as procedural damages go, everyone talks about procedure in terms of the statement in Rowley made by Justice Rehnquist that procedures are at the very heart of this... of EHA, and I agree with that.
Petitioners agree with that.
The problem is that when we are talking about procedures, in Rowley this Court was talking about those procedures in 1415 that were meant to safeguard a parent's right to a due process hearing and the parent's right to obtain information.
I don't believe this Court in Rowley, when it suggested that procedures were at the heart of EHA, meant any, any kind of procedure anywhere, no matter how recondite, no matter how technical, to say, well, any time there is a violation of that kind of procedure, there will be damages under EHA.
I don't believe that this is what this Court meant in Rowley, and I think when the Court of Appeals thought it did, it went wrong.
I would like to save as much time as I have for rebuttal.
Chief Justice Warren E. Burger: Ms. Janos.
ORAL ARGUMENT OF ELLEN L. JANOS, ESQ., ON BEHALF OF THE STATE RESPONDENT
Ellen L. Janos: Mr. Chief Justice, and may it please the Court, this case presents two question of statutory interpretation involving the Education of the Handicapped Act.
It is the Department of Education's position that the language of the Act, the history of the Act, and its purpose clearly demonstrate Congress's intent to allow parents to be reimbursed for private school tuition at the conclusion of judicial proceedings.
Unidentified Justice: What do you think Congress had in mind about parents taking these steps on their own initiative unilaterally, without consultation?
Ellen L. Janos: We don't think Congress intended to bar parents from making traditional educational choices.
We don't think that the plain language of that section, which clearly does not say anything about reimbursement or bar, does act as a bar under an otherwise appropriate award under the statute.
Unidentified Justice: Do you mean Congress contemplated that the parents could pick any school any place, any institution they wanted?
Ellen L. Janos: Congress contemplated private school placements under the Act.
That is certain.
And I don't think Congress intended to displace traditional choices on the part of parents to place their child in an appropriate school.
On the other hand, Congress intended, as was followed in this case, for parents to follow all the procedural requirements of the Act, that is, go through the educational planning, as the parents and the town did here; if they disagree, to file a claim with the administrative agency, as they did here; and then wait for that decision from the administrative agency, which in this case, of course, was in favor of the parents; and then if they are entitled to reimbursement after a favorable decision, then that is when the request is made.
Unidentified Justice: What if the decision had been unfavorable?
What if the decision had been that the local school's plan for the child was quite proper?
Ellen L. Janos: If the decision had been unfavorable, the parents are then taking a risk by appealing to state or federal court that they may not prevail, and that they may not get any reimbursement.
So that they probably would not get reimbursement.
Unidentified Justice: So they have no... if the school is providing a proper plan, the parents unilaterally may not remove them and get reimbursement?
Ellen L. Janos: We believe they can remove them at any time they want.
Unidentified Justice: Yes.
Ellen L. Janos: But they may not be able to collect for reimbursement--
Unidentified Justice: Exactly.
Ellen L. Janos: --if the state finds that the town's plan is appropriate, which was not the case here, and if the Court ultimately finds that the town's plan is appropriate.
Unidentified Justice: But ultimately, ultimately there was a court finding that the plan was all right.
Ellen L. Janos: That court finding has been set aside, Your Honor.
The First Circuit set aside the decision, has remanded the case for a new trial, so that there has been no final judicial determination as to the appropriateness of the town's plan.
The only decision in effect, if you will--
Unidentified Justice: What did the Court of Appeals do with that plan?
What did it find wrong with the school's plan?
Ellen L. Janos: --The Court of Appeals found that the District Court failed to take into consideration a number of factors that the state hearing officer had.
Some of those factors included substantive and procedural violations on the part of the town in preparing that plan and in preparing previous plans.
Unidentified Justice: Well, suppose the District Court considers everything it is supposed to and still rules against the parents?
And still holds that the plan is a good plan?
Ellen L. Janos: We agree with the First Circuit's decision that at least for the period, the year period that the state ordered the child in the private school, the parents should not be financially responsible for that period.
For the other two years, that question remains open, and the Court articulated certain criteria, certain equitable factors which the District Court on remand should take into consideration.
Unidentified Justice: What are these procedural violations that the state hearing officer and the Court of Appeals felt were important?
Ellen L. Janos: The year before the town had proposed a plan for the child and had in the middle of the year or actually closer to the beginning of the year cut the child's special education reading time in half without any notice to the parents.
Unidentified Justice: How did the Court of Appeals feel that that bore on the plan now proposed?
Ellen L. Janos: The Court of Appeals believed the District Court should consider that in determining whether the town had the ability and the capacity to implement that plan.
Unidentified Justice: Does that make much sense to you?
Ellen L. Janos: To some extent it does.
To some extent there are repeated and continuing procedural violations.
Unidentified Justice: Well, were there repeated and continuing procedural violations?
Ellen L. Janos: There were... the hearing officer in this case found yes, and we believe yes.
Unidentified Justice: What were they in addition to the one you have already given?
Ellen L. Janos: In earlier years the town had failed to notify the parents regarding certain meetings that were supposed to take place.
Unidentified Justice: That is all now to be assessed against the school board on this new plan?
Ellen L. Janos: That is all to be taken into consideration in two respects on remand.
In one respect, whether that affected... whether they were so serious as to affect the appropriateness of the plan.
Unidentified Justice: How could procedural violations in a preceding year affect as plan that is now up on the merits?
Ellen L. Janos: It might affect the town's ability to implement a new plan.
If they have shown in the past... it may not, of course.
I mean, we need to flesh these out at trial and see exactly what they were.
It may not.
But it may affect the town's ability to implement the plan.
Mr. Rosenberg will address in more detail the parents' right to move their child to a private school, and I would just like to address the District Court's statutory authority under Section (e)(2) to award tuition reimbursement for private school tuition.
I would just like to state in response to Mr. Berman that we disagree vigorously that the state hearing officer found the plan appropriate.
She did not.
She found the plan inappropriate based on, among other things, the ability of the classroom teacher to teach this particular child, and she felt that the type of children that were in this class were not suited to the child that is involved in this case.
So, she found the plan inappropriate, and then she found other procedural violations as well.
Unidentified Justice: Who ultimately passes on the appropriateness of the amount of the cost?
Ellen L. Janos: I believe the First Circuit has instructed the District Courts to determine at the conclusion of the judicial proceedings what would be the appropriate amount of reimbursement if indeed reimbursement is sought, and instructed the District Courts to take into consideration the prevailing party, of course, and other traditional equitable factors.
So it would be the District Court.
Unidentified Justice: Well, I would assume that if the parents unilaterally decided that some specialist in Paris or Geneva was the best remedy for the problem, if they sent the child off abroad, they might have difficulty collecting all the costs.
Is that not so?
Ellen L. Janos: They might have difficulty in that situation, yes.
The factual circumstances surrounding the placement of the child in a private school should and will be considered by the District Court if and when the town requests reimbursement from the parents.
The First Circuit told the Court to look at the totality of the circumstances, and that is what we are really talking about when you are seeking an award under statutory language that allows the Court to grant appropriate relief.
Is it appropriate under the facts and circumstances of this case?
And that is really all the First Circuit has said, and we believe that that is a fair reading of the statute, that, Number One, tuition reimbursement, given the design and nature of the statute, that is, that handicapped children are entitled to a free and appropriate public education, that that means education at no cost to parents, without charge, that an award of tuition reimbursement under appropriate circumstances is simply the allocation of financial responsibility for an appropriate placement.
And here, of course, we have a placement that has been in effect for the last five years that the state ruled was the appropriate placement.
Ultimately the District Court, of course, can review that, but in the meantime we have a period of five years in which the child has been in a placement ordered by the state educational agency.
Unidentified Justice: Ms. Janos, in your reading of Section 1415(e)(3), do you think that the language of it should be interpreted to mean that the state in this case and the parents have agreed?
Ellen L. Janos: Yes, that's correct, Your Honor.
Unidentified Justice: And it is your position that the state as such by virtue of the board's ruling has agreed with this placement?
Ellen L. Janos: That's correct.
We also agree that in this particular case, the town and the parents have otherwise agreed that the placement which was in effect, the then current educational placement, was not the appropriate placement for the child, so that there really in this case have been two agreements.
Unidentified Justice: Now, if we were to disagree with the Court of Appeals on the meaning of 1415(e)(3), do I understand that Massachusetts has a state law that would allow reimbursement of tuition in any event?
Ellen L. Janos: That's correct, Your Honor.
Unidentified Justice: Regardless of how we decide--
Ellen L. Janos: Well, this case--
Unidentified Justice: --1415 should be interpreted?
Ellen L. Janos: --Not exactly.
This case was brought under both the state and federal statute.
The First Circuit in the first go-round dismissed the state case and allowed this case to proceed only under the federal statute.
Unidentified Justice: It said it was preempted.
Ellen L. Janos: Yes.
Unidentified Justice: The state statute was preempted.
Ellen L. Janos: That's correct.
And allowed it to dismiss only... to proceed only under the federal statute.
Unidentified Justice: All right, so that question is not before us, the--
Ellen L. Janos: No, it is not.
It is not.
I would, in my remaining few minutes, because I am going to yield to Mr. Rosenberg, who will discuss in more detail (e)(3), I would like to emphasize that tuition reimbursement does not impose any additional financial burdens on the town.
It imposes only that financial responsibility for providing an appropriate placement, and that is clearly what Congress intended and what the Act requires.
In many cases, and this is one of them, tuition reimbursement would be the only appropriate relief, the only meaningful relief for parents who choose to exercise their rights and go through the administrative process as they have done here.
In response to your question earlier, Justice Rehnquist, we do agree that we think it is odd that Congress would have allowed towns to appeal to federal court, at least, and embroil the federal courts into a dispute between the towns and the state as to the appropriate educational placement.
Unidentified Justice: --Yet it seems to have done that.
Ellen L. Janos: It seems to have done that.
Perhaps it really means the towns should appeals to state court and let the state court deal with those internal problem as opposed to the federal courts.
We believe the legislative history, at least on... and I am addressing myself to (e)(2), the right to tuition reimbursement... supports our reading of the plain language of the statute.
And as I stated, the purpose of this statute is to provide handicapped children with a free and appropriate public education.
Requiring parents to choose either a free or an appropriate education could not be what Congress intended.
Awarding tuition reimbursement would encourage towns at the outset to provide an appropriate plan that the child will be in an appropriate placement during the pendency of the proceedings.
And we believe that the equitable criteria, the factors articulated below, that is, that the parties should cooperate with each other, they should act in good faith towards each other, those traditional equitable factors should be considered in an award of tuition reimbursement.
This statute requires a long-term partnership between towns and parents.
They must work together year after year devising educational plans, and in a request for tuition reimbursement it is certainly appropriate to take into account factors such as good faith and compliance with the Act.
Unidentified Justice: May I ask this question?
Ellen L. Janos: Yes.
Unidentified Justice: Assuming there has been cooperation, and finally in the end the parents and school district disagree.
Which of those two parties has the burden of proving the appropriateness of its position or the parents' position?
Ellen L. Janos: The party who is appealing from the state agency decision should bear the burden of overturning that state agency decision.
Unidentified Justice: That means the parents?
Ellen L. Janos: In this case, of course, the town appealed.
The parents won at the state agency level, and the town appealed, and we believe that the town bears the burden of showing that in fact it had an appropriate plan for the child.
Unidentified Justice: The parents in this case finally placed the child in a school that had not been approved by the school district?
Ellen L. Janos: That was not in the plan.
It had been approved by the state once the parents filed their appeal and went to the state hearing.
Unidentified Justice: Yes.
Ellen L. Janos: The parents, of course, are in a difficult choice at that point when they have... in this case there was advice from the child's teacher and the child's doctor that the school could not offer an appropriate placement.
This was in the summer.
And they had a choice to make.
And if we take petitioner's reading of that statute, that child would still be in that what we consider to be the inappropriate placement for the next five years.
We don't think Congress intended to keep children in inappropriate placements, and we think that an award of tuition reimbursement under appropriate circumstances--
Unidentified Justice: Are you suggesting that unless we agree with you, the local school would have left the child in that placement that the parent and the locals agreed was inadequate, was not right?
Ellen L. Janos: --If we take the petitioners' reading of that statute, the parents cannot move their child--
Unidentified Justice: Well, I thought--
Ellen L. Janos: --and the child would have had to remain in that--
Unidentified Justice: --Well, that's right, but the school wouldn't have left him in that inappropriate placement.
The school would have implemented their proposed placement, I suppose.
Ellen L. Janos: --Well, it is their proposed placement which our state found inappropriate, so that--
Unidentified Justice: Well, that may be.
The school easily could have moved him to another school.
Ellen L. Janos: --They could have, of course, but then they would need to go through all of the procedures for removing the child.
Unidentified Justice: We are only dealing here with the proposed placement--
Ellen L. Janos: That's correct.
Unidentified Justice: --that the school district had proposed.
Ellen L. Janos: That's correct.
Unidentified Justice: And which the parents and the state have found was inappropriate.
Ellen L. Janos: That's correct, and which is now going back for trial to determine that.
I will yield the rest of my time to Mr. Rosenberg.
Thank you very much.
Chief Justice Warren E. Burger: Mr. Rosenberg.
ORAL ARGUMENT OF DAVID W. ROSENBERG, ESQ., ON BEHALF OF RESPONDENT PANICO
David W. Rosenberg: Mr. Chief Justice, and may it please the Court, I want to address the three factual points that will, I hope, place the question of the appropriate construction of 1415(e)(3) in proper context for the Court.
First of all, the question of whether in this particular case the town and the parents otherwise agreed that the then current placement of Michael Panico should be changed, about that point I think there should be no dispute.
The child was in a school known as the Memorial School.
He was in a particular kind of placement known in the jargon as a 502.2 prototype, which means that he was in a class, a regular class at least 75 percent of the time, and he was going to be in a special class 25 percent of the time.
Now, in the spring of 1979, what the school proposed was to change that placement, to change his then current placement in two senses of the word.
They were going to move him to a totally different school, the Pine Glen School.
Secondly, they were going to put him in a different type of prototype, namely, a 502.4 prototype, which means that the child would have been in a substantially more restricted placement in which he was in the school in a special class at least 75 percent of the time.
Now, the parents and the school both agreed that the child's then current placement was not appropriate, so on the facts of this case it appears to me that the entire operation of 1415(e)(3) does not even come into play.
Unidentified Justice: Of course, you and your opponent disagree on what the then current placement was.
David W. Rosenberg: I understand that we disagree.
I am simply saying that under 1415(e)(3), the then current educational placement is not a really mystical concept.
It is a factual question.
What was the child's--
Unidentified Justice: Do you think it is perfectly clear that during the summer vacation period, which is what we are talking about, the then current period refers to the pst rather than the future?
David W. Rosenberg: --That is my--
Unidentified Justice: It seems to me one can argue it either way, is all I am suggesting.
David W. Rosenberg: --In my view, the then current placement was where the child was at the time the IEP in question--
Unidentified Justice: He was on vacation.
He was on vacation, wasn't he?
David W. Rosenberg: --Not at the time the individual educational plan which is the subject of this entire proceeding, was being constructed.
He was in another school.
The plan was proposed for the next school year, and that is what this long litigation has been all about, what the next school year's plan and subsequent years' would be.
Unidentified Justice: Don't we... excuse me.
There is something else that is not clear.
The proposal was not in writing.
Was there an actual proposal--
David W. Rosenberg: Yes, there is--
Unidentified Justice: --a concrete proposal?
David W. Rosenberg: --There is--
Unidentified Justice: Verbal?
David W. Rosenberg: --Yes, Your Honor, there--
Unidentified Justice: It was verbal?
David W. Rosenberg: --The proposal which the town made is found in the joint appendix.
It is an individual educational plan.
It goes on for eight or ten pages.
And it contains elements of an individual educational plan.
The placement, that is, once you write the plan, where do you put the child, that is not or may not be specifically in the written language, but that was going to be in this gentleman, Mr. McAleer's class.
Unidentified Justice: Mr. Rosenberg, don't we have another threshold question as to what is the relevant date for deciding what the last current placement was?
Because you are referring to the date of the plan, which would have been during the earlier year.
He refers... your opponent refers to the date the proceedings had started, I think, July, and the statute says during the pendency of any proceeding, the then current placement shall be--
David W. Rosenberg: Well, I--
Unidentified Justice: --Isn't there room for argument on which is the right date to focus on?
David W. Rosenberg: --There is room for argument because it has been argued.
I don't frankly concede the point that what Congress was looking at at this particular statute when they used the word "the then current educational placement" is the one that was in place in the summer after the parents had initiated the administrative procedure to challenge the plan, which is exactly, of course, what Congress intended the parents to have the right to do.
So, the second fact that I would like to emphasize--
Unidentified Justice: Could I just... excuse me.
Even if you are right, the parent and the school agreed that his present placement was inappropriate.
David W. Rosenberg: --That's correct.
Unidentified Justice: But the placement was still... there was still a placement.
David W. Rosenberg: That's right.
Unidentified Justice: And just because they disagreed, or just because they agreed on that and disagreed on the new placement didn't remove the fact that there was a placement.
David W. Rosenberg: Well, there was a placement, and it was in the Memorial School--
Unidentified Justice: So I don't understand how you can argue that there is no room for 1415(e)(3) at all, because there was a placement.
David W. Rosenberg: --There was a placement, and it would be the height, I think, of absurdity to have the child placed in a placement, the Memorial School, which both the town and the parents had agreed was inappropriate.
Unidentified Justice: Well, it may also be absurd then to say that therefore 1415(e)(3) has no place at all because you cannot consider the new placement.
David W. Rosenberg: It may well be.
Unidentified Justice: It certainly... at least there was a placement.
The school didn't want him out of the school system.
David W. Rosenberg: That's correct.
Unidentified Justice: And that is certainly one... one aim of the Act is to have the public schools provide these placements.
David W. Rosenberg: That's correct.
But the primary aim of the Act, in my view, is to make sure that a child is provided with a free, appropriate public education, and in the summer of 1979, the parents of Michael Panico were faced with a dilemma.
They had been told by, among other people, a reading specialist in the school, the Burlington schools, a Catherine Black, that the proposed... placement proposed by the town was not appropriate for that child.
And they had, based on that recommendation, plus recommendations from neurologists at Massachusetts General Hospital, rejected the plan and exercised their rights in complete conformity with Massachusetts and federal regulations to trigger an administrative hearing.
Now, that hearing was, through no fault of the parents, not going to be scheduled until well after September of 1979, and consequently in September of 1979 or more appropriately late August they had a dilemma.
Do they place the child in the proposed placement which their... the people they had consulted, including a school teacher, had informed them was inappropriate for the child, or do they in fact place the child in the placement they believed was appropriate, go through the hearing process, and if at the end of the hearing process their decision or their belief was upheld, then the hearing officer or eventually the court in their view would retroactively grant them tuition reimbursement from the beginning of the year.
Unidentified Justice: What if the child is being mainstreamed under this type of program and has been in placement in a sixth grade, in a school district which has an elementary school that goes only through sixth grade, then in the next year he would normally be expected to go to junior high school, in a different building, a different school.
Now, I think these things probably arise during the summer.
What is the child's current placement during the summer between sixth grade and seventh grade?
David W. Rosenberg: Well, Your Honor, they do not in the normal case, with all due respect, arise in my view if people are doing... following the regulations properly in the summer.
They arise in--
Unidentified Justice: Well, whether they arise or not, what is the child's placement during the summer between the sixth and seventh grades?
David W. Rosenberg: --It is the prior placement.
The then current placement, I think, is what was intended.
Unidentified Justice: And would it be a new placement for the child to move in the normal progress of age to the seventh grade?
David W. Rosenberg: Well, in that case, Your Honor, I think if he was simply moving from the same type of class, let's say a regular sixth grade to a regular seventh grade class, I believe it would be difficult for me to maintain that the sixth grade was the correct placement.
In this case we are dealing, as I have explained, I think, before, that the school wanted the child placed in a totally different kind of educational environment.
Now, let me--
Unidentified Justice: In other words, placement may not refer at all to the normal progression of a child within the same type of class in the public school system.
But a change would refer to the type of educational program.
David W. Rosenberg: --That's what I believe.
Now, let's assume because it is really the difficult task in front of this Court that it is clear that the child's... that the parents did something that the town characterizes as 1415(e)(3).
Let's assume that the placement was changed unilaterally by the parents.
Now, in my view, the statute on its face does not contain the sanction or the bar or the jurisdictional elements that the town would urge this Court to accept.
There is nothing on the face of the statute which says, if you "violate" the statute, you lose your right to reimbursement.
Now, I have argued in our brief that the real point of this section was that in fact prior to the passage of the Act there was a practice of excluding children from the public schools who were handicapped and excluding or, more appropriately, dumping children, as the phrase is called, into inappropriate classes.
I believe that this statute was in fact enacted based on the consent decree, as in the Mills and Park case, which I have cited, to prevent a school department from excluding the child without parental consent during the pendency of those actions.
And there is some support beyond my simply asserting it in the Department of Education's own interpretations of this section, although it is a scant reference to it.
There is an appendix to the regulations in which the department gives interpretive rulings.
One of the interpretive rulings deals with what this section means, and says, among other things, if because of the disagreement over the IEP a hearing is initiated by either the parents or agency, the agency may not change the child's placement unless the parents and agency agree otherwise.
Now, in my view, if the Court were to reach the reverse result, that the parents were disabled from receiving tuition reimbursement once they had "unilaterally withdrawn" the child from the school system, and if two years later that child is eventually found by the hearing officer to have been... or, more appropriately, the parents' placement was appropriate, and the school's chosen placement was inappropriate, then for that two-year period that child will have been denied either the appropriate portion of the free appropriate public education to which he or she had been entitled, or if the parents pay for that placement during the two years, then the child will have been denied the free portion of the free, appropriate public education.
Unidentified Justice: In that event I suppose the state will have to pay the parents.
David W. Rosenberg: The state?
Unidentified Justice: Or the local school district.
David W. Rosenberg: Well, that is my view.
The town's view is that if you once use what they characterize as self-help, then forever after you are barred as a parent from seeking reimbursement for tuition under the provisions of 1415(e)(2).
Thank you very much.
Chief Justice Warren E. Burger: Do you have anything further, Mr. Berman?
ORAL ARGUMENT OF DAVID BERMAN, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL
David Berman: Briefly.
May it please the Court--
Unidentified Justice: Is that your position, the position that the gentleman has stated?
David Berman: --No, it is not, Your Honor.
We are not saying that they are forever barred.
We believe that the Fourth Circuit in the Rowe case, Rowe against the Henry County School Board, used exactly the right format.
They said, let's see whether the later change... whether the change is still related to the unlawful change.
If it is not, we will take another look.
Unidentified Justice: Let's suppose you completely lose in all respects what is on the remand to the District Court, on the new trial.
David Berman: Yes.
Unidentified Justice: Let's assume it is found that whatever plans you had were wholly inadequate.
The state was quite right.
Do you then... do you still say then that you are entitled... that you didn't need to reimburse the parents for tuition?
David Berman: Yes, we do say that, Your Honor.
Unidentified Justice: That is what I thought.
David Berman: Yes.
Certainly not for the year 1979-1980, and that is the only year that should be considered, because that is the only year for which there is an IEP in effect.
They couldn't draw one for subsequent years.
As far as the remedy for violating 1415(e)(3), if the remedy is not to cut off the right to tuition, what remedy is there for 1415(e)(3)?
How is 1415(e)(3) going to be implemented at all?
Are we going to say to parents in effect, well, you were very naughty, you did something you shouldn't have done, but it doesn't make any difference?
And I would like to point out, by the way, since we have talked about procedure, that procedure is a two-way street.
Yes, there are procedures, and local educational agencies must comply with those procedures.
Unidentified Justice: Mr. Berman, just a minute.
You went too fast for me.
You say it doesn't make any difference, but it would make a difference if they ultimately found the IEP to be a good IEP, wouldn't it?
Then they would be stuck with the costs.
David Berman: Yes, I understand that, Your Honor, but--
Unidentified Justice: Then you can't say it is totally without remedy.
David Berman: --It is, though, because if the local... if the IEP is found to be a good IEP, they are always stuck with the cost.
Unidentified Justice: Are you saying that if it is ultimately found to have been a bad IEP, they had a duty to leave the child there for the entire period it takes to litigate the question?
David Berman: Your Honor, they had a duty to--
Unidentified Justice: Is that your position?
David Berman: --Well, they certainly... yes, they had a duty to leave the child there at least--
Unidentified Justice: No matter how bad the IEP might have been?
David Berman: --it was--
Unidentified Justice: No matter how bad the IEP might have been?
David Berman: --Except for one thing, Your Honor.
I do believe they have a right to go to a court of competent jurisdiction and try to obtain preliminary relief.
That I have no doubt about.
Unidentified Justice: But until they get a court to act or judicial relief of some kind, the child must remain there at all--
David Berman: The child must remain in his current placement.
And as I say, I start out on the supposition that most of the time the school authorities are going to be right, not wrong.
And in those cases where they are wrong, I think, you know, there are various bases for getting relief without using self-help.
With respect to Justice O'Connor's question to me, I did look at Page 42 of our brief.
My point there was there was no placement in effect when the IEP was drawn up, not that there was no placement in effect when Michael was enrolled in the Carroll School.
Those are two entirely separate things.
The IEP was drawn up on June 4th, and he was enrolled in the Carroll School in August.
With respect to two years later when the hearing officer renders an opinion, why, the regulations require that an opinion be rendered within 40 days, and if the hearing officers in the various states are violating that provision, then it is high time the Secretary of Education stepped right in and said, you violate that provision, you will have no federal funding.
Chief Justice Warren E. Burger: Thank you, counsel.
The case is submitted.