Department of Education v. Katherine D.

REINHARDT, Circuit Judge,

concurring in part and dissenting in part:

I dissent from the majority’s rejection of the district court’s finding that the Department of Education failed to offer Katherine a free appropriate public education for the 1981-82 school year. I cannot agree that the district court’s finding in this regard was clearly erroneous. I concur in all other parts of Judge Norris’s opinion.

The majority does not state clearly what it believes Katherine was required to show in the district court. Parts of the opinion indicate that reluctance on the part of the school’s staff would be enough to render the school’s plan unworkable, yet other parts suggest that only a showing of positive refusal to perform the required services would suffice.

I believe that under the circumstances the staff’s reluctance to perform the required services rendered the plan inadequate for purposes of the EAHCA. Katherine’s physician testified that delay by the school staff in performing the emergency services would have been life-threatening to Katherine and that a cooperative attitude on the part of the teachers was essential to the effectiveness of the emergency plan. The district court credited the physician’s testimony with regard to these factual issues; we are not free to disregard it here. A plan involving such a risk to a child’s life cannot be considered adequate.

The filing of a grievance petition by the teachers’ union and the conversations overheard by the physician support a finding *822 that at least part of the school’s staff was reluctant to perform the services and justify an inference that there might have been hesitation or delay at the crucial moment. The district court’s holding that the attitude of the school’s personnel rendered the plan inadequate was therefore not clearly erroneous.

Moreover, Katherine’s parents were not required to show conclusively that the teachers would have refused to perform the emergency services when necessary. The Act certainly does not require parents to risk their child’s life pending a conclusive showing that essential services would not be provided. In life-and-death situations such as the one involved here, a reasonable doubt whether the services would be provided is enough to justify parents in refusing to enroll their children in a school.

The evidence presented here may reasonably have led Katherine’s parents to doubt whether the school’s staff would have provided the services when they were needed. Katherine’s physician, who was responsible for training the teachers in the emergency procedures and who conducted an introductory training session, testified that the teachers were unwilling to perform the required services. His testimony was buttressed by the teacher’s union’s filing of a grievance petition. Although that evidence does not compel a conclusion that the teachers would have refused to perform the services if put to the test, it is certainly sufficient to raise a reasonable doubt in one’s mind on that point.

In short, the district court’s finding that the staff’s attitude rendered the plan inadequate was not clearly erroneous. Accordingly, I would affirm the district court’s conclusion that the Department of Education did not offer Katherine a free appropriate public education for the second year. Because the Department’s prior EAHCA violation was not cured by the school’s offer of the second plan, I would affirm the district court’s award of damages for both years in accordance with our holding that, when exceptional circumstances are involved, the state must pay the cost of private school placement until an appropriate program is devised.