DB v. Craven Cnty Board Ed

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

D.B., a minor, by and through his

mother Elizabeth Brinson;

ELIZABETH BRINSON, mother of minor

D.B., and on her own behalf,

Plaintiffs-Appellants,

v.

CRAVEN COUNTY BOARD OF

No. 99-1326

EDUCATION; WILLIAM RIVENBARK,

Superintendent of the Craven

County Schools, in his official

capacity; CARROLL IPOCK, JR.,

Chairman of the Craven County

Board of Education, in his official

capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Greenville.

Alexander B. Denson, Magistrate Judge.

(CA-97-118-4-DE)

Argued: February 28, 2000

Decided: April 3, 2000

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,

in which Judge Williams and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Peter W.D. Wright, Deltaville, Virginia, for Appellants.

Ann L. Majestic, THARRINGTON SMITH, L.L.P., Raleigh, North

Carolina, for Appellees. ON BRIEF: Stacey B. Bawtinhimer, New

Bern, North Carolina, for Appellants. Elaine M. Whitford, THAR-

RINGTON SMITH, L.L.P., Raleigh, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

DeWitt Brinson, now a high-school senior in the North Carolina

public-school system, was diagnosed in seventh grade with a learning

disability that primarily affected his writing skills. Although the

school system provided Brinson with an individualized education pro-

gram to accommodate this disability, his parents challenged the suffi-

ciency and merit of the individualized education program under the

Individuals with Disabilities Education Act. After the Brinsons' chal-

lenge was rejected in the North Carolina administrative process, the

Brinsons filed this action in the district court seeking a broad array

of remedies. The district court again rejected their challenge, conclud-

ing that the school system complied with the Individuals with Disabil-

ities Education Act and provided DeWitt Brinson with an

individualized education program that was designed to provide him

with a free appropriate public education. It also concluded that the

program met the North Carolina standard that "a handicapped child

should be given an opportunity to achieve his full potential commen-

surate with that given other children." We affirm.

I

When DeWitt Brinson ("DeWitt") began kindergarten in the Cra-

ven County School System ("School System") in New Bern, North

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Carolina in 1987, school officials noted that DeWitt had difficulties

in writing. DeWitt's parents placed him in a private school until the

middle of fifth grade. DeWitt earned primarily Bs and Cs in the pri-

vate school, and his handwriting did not improve. DeWitt then

returned to the School System for the second half of fifth grade,

where, during the completion of fifth grade, he continued to receive

mostly Bs and Cs. His teacher gave him a B in handwriting, noting

that his writing was legible but "needs attention." In sixth grade,

DeWitt received "satisfactory" marks.

In October 1994, when DeWitt was in seventh grade, his teachers

requested a conference with his parents because DeWitt was not com-

pleting his work. Mrs. Brinson said that DeWitt was bored and that

"she had a hard time getting him to do things at home if it was some-

thing that he didn't want to do," but "if it was something that he

wanted to do, it wasn't a problem." A school psychologist who tested

DeWitt concluded that he had superior skills in verbal comprehen-

sion, reading, and math; he was average in perceptual organization

and writing; and he had possible problems in attention and focus.

While his IQ scores ranged from the 58th percentile to the 96th, his

written language score was in the 27th percentile and his assignment

completion rate was below 80%. The psychologist ultimately recom-

mended that DeWitt be considered for both academically gifted and

learning-disabled service. DeWitt was also tested by an occupational

therapist, who found that DeWitt had "some weaknesses in the areas

of upper limb speed and dexterity" and that he would benefit from rel-

earning how to write cursive from a "kinesthetic approach."

School officials met with DeWitt's parents to develop an individu-

alized education program ("IEP") that addressed both his talents and

his disability. Accordingly, his IEP, which was finalized on March 14,

1995, included both learning disabled and academically gifted com-

ponents. The learning-disabled portion indicated that DeWitt's "pres-

ent level of performance" included above average intelligence, math

skills, and reading skills, below average written language skills, and

an assignment-completion rate below 80%. It specified special-

education services lasting for one year from February 28, 1995. The

section for short-term goals called for DeWitt to pass all tests with

80% to 90% accuracy when given extended time and to complete

written assignments with greater than 80% accuracy through use of

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a computer and NCR paper. The section for annual goals called for

DeWitt to "complete regular education courses using the standard

course of study" through consultation with the learning-disability

teacher. DeWitt was also authorized to have preferred seating and use

a tape recorder and graph paper. The academically gifted portion of

the IEP, meanwhile, identified steps to improve DeWitt's "higher

level cognitive processes" and called for "shortened written assign-

ments and extended time as needed." At the request of Mrs. Brinson,

DeWitt's teachers modified the IEP to alter the procedure for the end-

of-grade testing.

DeWitt completed seventh grade with "satisfactory" scores, and he

improved in at least four out of six classes over the academic year.

Shortly after DeWitt started eighth grade in August 1995, Mrs.

Brinson sent the School System the results of a neurological test,

which recommended that the School System not push DeWitt to

improve his coordination and handwriting and that it minimize his

need for handwriting by letting him take oral tests or use a computer.

During eighth grade, DeWitt's performance deteriorated, and by

the end of the semester he was failing three or four subjects, including

Algebra, one of the areas in which he had been identified as gifted.

He did not make up tests he missed and had not turned in a number

of homework assignments. In one class he returned no assignments

for the first 18 weeks. During this period, Mrs. Brinson refused sev-

eral requests for a conference because "there wasn't any need."

In January 1996, DeWitt's IEP was modified to include access to

more resources and extended test time. His teachers also altered some

assignments and used a chart to keep track of his homework. While

DeWitt began handing in more assignments, these were ones that he

completed at school because "if [an assignment] ever went home [the

teacher] never saw it again."

Mrs. Brinson arranged for DeWitt's IEP to be reviewed by Dr.

Rebecca Felton, a special-education expert. After Dr. Felton exam-

ined DeWitt's IEP and various records, she concluded that the IEP

"contained some appropriate objectives" but that it was "not sufficient

to meet [DeWitt's] needs." While some of her recommendations con-

4

cerned clarifications of services already included in the IEP, she also

made some additional suggestions. She specifically recommended

additions in the areas of written expression and attentional problems

and stated that "writing by hand should be strictly limited." She rec-

ommended clarification of what it meant to use NCR paper, a tape

recorder, overheads, and a spell-checker. The recommendations of Dr.

Felton were presented at the annual IEP meeting, and the IEP was

modified to include those not already being fulfilled.

Toward the end of the second semester of eighth grade, DeWitt's

teachers again became concerned that he would fail, in large part

because he was again not completing assignments. This was in spite

of the fact that his teachers, for example, cut articles from newspapers

for him to read -- rather than making him look them up himself, as

the particular assignment required -- and provided access to a com-

puter. Mrs. Brinson declined to meet to discuss the situation, and

when the teachers sent home a packet of assignments that DeWitt

needed to complete, they were never returned. Nevertheless, DeWitt

did pass eighth grade. On his end-of-grade writing assessment test,

DeWitt received a score of 3.5 out of 4.0 for his composing skills. His

paper had a "reasonable, acceptable level of proficiency on sentence

formation, usage, and mechanics." Further, his reading and mathemat-

ics grades were in the 91st and 87th percentiles, respectively.

Prior to the completion of eighth grade, Mrs. Brinson elected to

challenge the School System's efforts under the Individuals with Dis-

abilities Education Act ("IDEA"), 20 U.S.C.§ 1400 et seq., and

requested a special education due-process hearing. She stated that the

School System had failed to implement the effective portions of

DeWitt's IEPs and that the IEPs had failed to improve DeWitt's

school performance. In preparation for this hearing, she had Dr. Fel-

ton again review DeWitt's writing skills. Dr. Felton concluded that

DeWitt continued to have difficulties in written expression but that he

should use a keyboard rather than be taught handwriting directly. Mrs.

Brinson also had Amy Staples, who had a master's degree in educa-

tional psychology, review the IEPs. Staples concluded that some of

the IEPs' goals were clear but that some portions of the IEPs seemed

to be striving for goals not specified. On various written tests per-

formed by Staples, DeWitt's writing ranged between a fourth- and

seventh-grade level. Mrs. Brinson also had DeWitt evaluated by a

5

psychologist, who determined that, while DeWitt had high average

intelligence, he was weak in thinking speed and motor speed. The

psychologist recommended "less emphasis upon handwriting."

The due-process hearing was held before a North Carolina Admin-

istrative Law Judge ("ALJ"), who heard testimony from fifteen wit-

nesses and reviewed a number of exhibits. The ALJ's opinion, issued

six months later, adopted "in their entirety" the 209 proposed findings

of fact and 35 conclusions of law proposed by the Brinsons' lawyer.

The ALJ concluded that the School System failed to provide DeWitt

with a free appropriate public education and did not consistently

implement his IEPs. A neuropyschologist who tested DeWitt after the

hearing found that "[m]any of the modifications offered by the school

system appear quite appropriate" and recommended that "[a]ny timed

written demands should be minimal" and that written exams should

be modified.

The School System appealed the ALJ's decision to a hearing

review officer for the state board of education. The review officer,

who heard no evidence, reversed the ALJ's decision as well as 67

findings of fact and 28 conclusions of law. The review officer deter-

mined that the School System timely identified DeWitt as having a

learning disability and that the IEPs were reasonably calculated to

provide, and did provide, DeWitt with a free appropriate public edu-

cation. The Brinsons challenged this decision by commencing this

action in the district court.

The district court recognized that as a general matter it was

required to defer to the ALJ and the review officer, even though their

decisions conflicted. But because the ALJ adopted in toto the findings

of fact and conclusions of law prepared by the Brinsons' counsel, the

court gave greater deference to the review officer who undertook an

independent analysis of the record. After receiving some additional

evidence, the court concluded that the School System had not denied

DeWitt a free appropriate public education under either federal or

state law because it had provided him with IEPs reasonably calculated

to lead to educational benefit. From judgment entered in favor of the

School System, the Brinsons noted this appeal.

6

II

The IDEA requires that "all children with disabilities have avail-

able to them a free appropriate public education." 20 U.S.C.

§ 1400(d). This education is tailored to meet the needs of a handi-

capped child by an "individualized education program" ("IEP"). 20

U.S.C. § 1401(11). The IEPs must contain statutorily specified ele-

ments, see 20 U.S.C. § 1414(d), and be"reasonably calculated to

enable the child to achieve passing marks and advance from grade to

grade," Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Row-

ley, 458 U.S. 176, 204 (1982) (footnote omitted).

In reviewing state administrative proceedings in an IDEA case,

courts must make an "independent decision based on a preponderance

of the evidence, while giving due weight to [the] state administrative

proceedings." Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 103

(4th Cir. 1991) (citations omitted). When the decisions of administra-

tive hearing officers and review officers conflict,"due weight" is gen-

erally given to the administrative hearing by according the hearing

officer's findings of fact a rebuttable presumption of prima-facie cor-

rectness. Id. at 105. But in particular circumstances, reviewing courts

may defer to the findings of the review officer rather than those of the

hearing officer, such as where (1) the review officer's decision does

not turn on witness credibility but on the weight of the evidence, or

(2) the hearing officer's opinion is cursory and conclusory, or (3) the

review officer provides reasons for departing from the hearing offi-

cer's findings. See Springer v. Fairfax County Sch. Bd., 134 F.3d 659,

663 n.* (4th Cir. 1998).

In the case before us, the Brinsons challenge not only the merits of

the state review officer's decision approving the School System's IEP

for DeWitt and the district court's affirmance of that decision, but

also the procedural basis on which the district court gave deference

to the review officer's decision. We address this latter point first.

A

The ALJ's decision in this case amounted to the wholesale adop-

tion of the findings of fact and conclusions of law proposed by the

Brinsons' counsel, including typographical errors. There is no evi-

7

dence that the ALJ provided any independent evaluation of the wit-

nesses' credibility or analysis of the issues. These facts alone suggest

a cursory or conclusory decision by the ALJ that merits little or no

deference.

Moreover, the decision of the state review officer is a reasoned

analysis that provides a rational basis for departing from the ALJ's

decision. He discussed the record and provided reasons for the weight

he gave particular evidence. He noted that because many of the find-

ings of the ALJ "were inconsistent with the record or not relevant,"

he "had to independently determine Findings of Fact from the record

and develop his own Conclusions of Law." On occasion, the record

provided him with a basis to conclude that witnesses presented their

opinions with a bias. For example, he noted that one doctor who eval-

uated DeWitt "entered into her role with a definite bias that the school

system was wrong and did not perform her `evaluation' in an objec-

tive manner" because the doctor "did not talk with any of [DeWitt's]

teachers, observe him in school, or obtain samples of school work."

Accordingly, we are satisfied that the district court properly gave

due weight to the state administrative proceedings by deferring to the

findings and conclusions of the state review officer. See Springer, 134

F.3d at 663 n.*.

B

In reviewing the merits, we must determine whether the School

System provided DeWitt with IEPs that were reasonably calculated to

enable him to obtain a free appropriate public education. See Rowley,

458 U.S. at 203-07; see also Harrell v. Wilson County Sch., 293

S.E.2d 687, 690 (N.C. Ct. App. 1982) (articulating North Carolina

requirement that "a handicapped child should be given an opportunity

to achieve his full potential commensurate with that given other chil-

dren" (footnote omitted)). DeWitt contends that the IEPs did not pro-

vide a free appropriate public education because they do not contain

objective goals or means of assessing improvement; they do not

address the needs identified by the School System; and they do not

address his difficulties in handwriting. He specifically argues that his

needs were for "training and teaching to remediate his written lan-

8

guage disability," and that the School System did not provide IEPs to

address this problem.

Since the time DeWitt returned to the School System in the fifth

grade, he has been evaluated by seven professionals in the fields of

education and medicine. Of these, four specifically recommended that

the School System minimize the amount of writing required of

DeWitt, because such exercises would be counterproductive. The only

expert who disagreed was the occupational therapist who evaluated

DeWitt in seventh grade, finding that he should relearn cursive. The

majority of those consulted recommended alternate means to allow

completion of assignments that were normally handwritten. The

School System followed these recommendations by providing tools to

reduce the need for handwriting, including computers and tape

recorders. It also modified tests and provided longer amounts of time

for DeWitt to complete them. In implementing these steps, the School

System followed the advice of professionals, which was designed to

minimize the effect that DeWitt's handwriting deficiency might have

on his academic performance.

Moreover, DeWitt's performance did improve significantly

through eighth grade, including in the area of handwriting. On his

writing assessment test for the end of eighth grade, DeWitt received

a 3.5 on a 4.0 scale for his composing skills, up from 2.5 prior to the

initiation of special-education services. His paper was found to have

demonstrated a "reasonable, acceptable level of proficiency on sen-

tence formation, usage, and mechanics."

The evidence indicates that, to the extent DeWitt struggled aca-

demically, a substantial contributing factor was his failure to turn in

assignments and make up missed tests, even when no handwriting

was involved. For example, he often did not turn in his stock-report

assignments, which required looking up a stock in the newspaper

weekly and recording its performance. When the teachers assembled

a packet of work to be done at home, usually it was never returned.

But DeWitt did "very well" in the assignments in which he was inter-

ested, including a parchment-letter project, which involved writing

and for which he in fact performed extra work.

Contrary to the Brinsons' assertion, DeWitt's IEPs do contain spe-

cific goals and means to assess his performance. They set objectives

9

for tests and for writing performance, and they provide means with

which to evaluate DeWitt's progress, including daily charts, close

observation by teachers, and review of notebooks and portfolios. The

IEPs also provide for tools such as computers, tape recorders, and

graph and NCR paper to facilitate attainment of stated goals. Any

deficiency in the IEPs cannot be said to have denied DeWitt a free

appropriate public education, see 20 U.S.C.§ 1400(d), or diminished

his "opportunity to achieve his full potential commensurate with that

given other children," Harrell, 293 S.E.2d at 690 (footnote omitted).

On the contrary, the record shows that the IEPs were reasonably cal-

culated to enable DeWitt to advance from grade to grade. While

DeWitt's writing skills still may not be as strong as would be desir-

able, the law requires schools to provide educational opportunities,

not guarantees that every child will attain his full potential.

The judgment of the district court is therefore affirmed.

AFFIRMED

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