Petition — JAMES C. C. EDWARDS v. S-1, A MINOR (Nos. 80-1770, 80-1791)

80-179) APR ape

No ALEXANDER L. STEVAS,

. CLERK

IN THE

Supreme Court of the United States

October Term, 1980

JAMES C. EDWARDS, Individually, and

in His official capacity as Superintendent of Schools,

Hendry County, Florida, ef al.,

Petitioners,

Vv.

S-1, a Minor, by and through

His Mother and Next Friend, P-1, ef ai.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOHN W. BOWEN

(Counsel of Record)

25 South Magnolia Avenue

Orlando, Florida 32802

Of Counsel: (305) 843-5260

John H. King Attorney for Petitioners

James H. Monroe, Jr.

Bowen & King

THE CASILLAS PRESS, INC.-1717 K Street N. W.-Washington, O. C.-223-1220

(i)

QUESTIONS PRESENTED

1. Do the Education For All Handicapped Children Act

of 1975 and Section 504 of the Rehabilitation Act of 1973

prevent a public school district from expelling a handi-

capped child and withholding educational services during the

period of expulsion for misconduct which would result in

the expulsion of and the withholding of educational ser-

vices from a non-handicapped child?

2. Is an expulsion of a handicapped child a change in

educational placement requiring the school district to

follow the change in placement procedures under the

Education For All Handicapped Children Act of 1975 and

Section 504 of the Rehabilitation Act of 1973 instead of

the regular expulsion procedures as are followed for non-

handicapped students pursuant to Goss v. Lopez, 419 US

565, 95 S.Ct. 729, 42 LED2d 725 (1975)?

3. Do the Education For All Handicapped Children Act

of 1975 and Section 504 of the Rehabilitation Act of 1973

require the school district to conduct a due process hearing

to determine whether or not there is an individualized

educational program for a handicapped student when the

student has voluntarily withdrawn from school or the stu-

dent’s guardian has actually signed the individualized

educational program?

4. Does the Education For All Handicapped Children

Act of 1975 vest state educational officials with authority

to review the expulsion proceedings of local educational

agencies when such authority does not exist under state

law?

(ii)

PARTIES

(Local Defendants): Petitioners

JAMES C. EDWARDS, individually and in his official

capacity as SUPERINTENDENT OF SCHOOLS, HEN-

DRY COUNTY, FLORIDA; and WILLIAM M.

GOBER, DARRELL R. HARRIS, CHAIRMAN,

TERESA M. MILLICEVIC, BEAFORD B. DAVIDSON,

ABNER VANN, and RAYMOND PITTMAN, in-

dividually, and in their official capacities as members of

the DISTRICT SCHOOL BOARD OF HENDRY COUN-

TY, FLORIDA: and JIMMY O. PHIFER and DARYLE E.

CUE, individually, and in their official capacities as

PRINCIPAL and ASSISTANT PRINCIPAL, respective-

ly, of Clewiston High School in HENDRY COUNTY,

FLORIDA; and KENNETH DOOLEY, individually, and

in his official capacity as DIRECTOR OF INSTRUC-

TIONAL SERVICES, District County School Board of

Hendry County, Florida.

(State Defendants): Respondents

RALPH D. TURLINGTON, individually, and in his of-

ficial capacity as COMMISSIONER OF EDUCATION,

STATE OF FLORIDA, DEPARTMENT OF EDUCA-

TION; and ROBERT GRAHAM, GEORGE

FIRESTONE, JIM SMITH, RALPH TURLINGTON,

BILL GUNTER, GERALD LEWiS and DOYLE CON-

NER, individually, and in their official capacities as

members of the STATE BOARD OF EDUCATION OF

FLORIDA; and CAREY E. FERRELL, JR.., individually,

and in his official capacity as DIRECTOR, DIVISION OF

PUBLIC SCHOOLS, STATE OF FLORIDA, DEPART-

MENT OF EDUCATION; and DR. LANDIS STETLER,

individually, and in his official capacity as CHIEF OF

BUREAU OF EDUCATION FOR EXCEPTIONAL

(iii)

STUDENT DIVISION OF PUBLIC SCHOOLS, STATE

OF FLORIDA, DEPARTMENT OF EDUCATION.

(Plaintiffs): Respondents

S-1, a minor, by and through his mother and next friend,

P-1; S-2, a minor, by and through his mother and next

friend, P-2; S-3 and S-4, minors, by and through their

mother and next friend, P-3: S-5 and S-6, minors, by and

through their mother and ext friend, P-4; S-7, a minor,

by and through his mother and next friend P-5; S-8, a

minor, by and through his grandmother and next friend,

P-6; S-9, a minor, by and through her foster mother and

next friend, P-4; individually, and on behalf of al! others

similarly situated.

(v)

TABLE OF CONTENTS

Page

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STATUTES AND REGULATIONS INVOLVED ............... 2

EPR BETO CAF BEI IRIE ede c ccc cecssccccedeseseveceues 3

REASONS FOR ALLOWING WRIT ............ccccsccccevees 7

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Opinion of the United States Court of Appeals

POF TE PRP OUS ccc civeccdsccspevceccvcseguncsnene la

Opinion of the United States District Court

for the Southern District of Florida ..............0000e es 19a

es i aad kewnkeaeded taeadevecn 29a

Education For All Handicapped Children Act of 1975,

ys IEE Seb drincneasrddh0 cavnagapardee ds 3la

Rules and Regulations, U.S. Department of

Education, 45 C.F.R. 121a.1, et seq., renumbered

ey Se SENN cc iicWanccccseterccervesvies 37a

Rules and Regulations, U.S. Department of Health

and Human Resources, 45 C.F.R. Part 84.1, et seq.,

renumbered to 34 C.F.R. Part 104, et seq. ............0045 77a

(vi)

TABLE OF AUTHORITIES

Cases Page

Goss v. Lopez,

419 US 565, 95 S.Ct. 729, 42 L.Ed 2d 725 (197§)....... i,2,4,5,9

Ingraham v. Wright,

430 US 651, 97 S.Ct. 1401, 51 L.Ed 2d 711 (1977) ............. 10

Federal Statutes

Education For All Handicapped Children Act

of 1973, 29 U.S.C. § 1401-1415 ......... i, 2, 3, 4, 5,6, 7, 11, 12

Section 504 of the Rehabilitation Act of 1973,

a, Enc iokscestsseaevecsaiaeeaaen i, 2,3, 4, 5, 11, 12

RS CUE ds on vicncacedeensbeusccdavveseseadaceceeas |

Florida Statutes

Section 228. 041(26), Fla. Stat. (1980 Supplement) ............. 3,7

IN THE

Supreme Court of the United States

October Term, 1980

JAMES C. EDWARDS, Individually, and

in His official capacity as Superintendent of Schools,

Hendry County, Florida, ef a/.,

Petitioners,

v.

S-1, a Minor, by and through

His Mother and Next Friend, P-1, ef a/.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINION BELOW

The Fifth Circuit Court of Appeal issued its opinion in

this case on January 26, 1981. The opinion is reported at

635 F.2d 342. There are no supplemental opinions. The

opinion is reprinted at pages la-18a of the Appendix.

The related proceedings in the District Court of the

Southern District of Florida were the subject of

unreported opinions dated September 1, 1978. The opin-

ion is reprinted at pages 19a-30a of the Appendix.

5

JURISDICTION

The United States Court of Appeals for the Fifth Circuit

entered its judgment on January 26, 1981, and its mandate

on February 20, 1981. Rehearing was not sought. Jurisdic-

tion is conferred by 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

I. Education For Ail Handicapped Children Act of 1975

(EHA), 20 U.S.C. §§ 1401(1), (8), (12), (16), (17),

(18) and (19); § 1415. See Appendix pages 31a-37a.

II. Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794.

Nondiscrimination under federal grants and pro-

grams; promulgation of rules and regulations.

No otherwise qualified handicapped individual

in the Unites States, as defined in section 706(7)

of this title, shall, solely by reason of his han-

dicap, be excluded from the participation in, be

denied the benefits of, or be subjected to

discrimination under any program or activity

receiving Federal financial assistance or under

any program or activity conducted by any Ex-

ecutive agency or by the United States Postal Ser-

vice. The head of each such agency shall pro-

mulgate such regulations as may be necessary to

carry out the amendments to this section made

by the Rehabilitation, Comprehensive Services,

and Developmental Disabilities Act of 1978.

Copies of any proposed regulation shall be sub-

mitted to appropriate authorizing committees of

the Congress, and such regulation may take ef-

fect no earlier than the thirtieth day after the date

3

on which such regulation is so submitted to such

committees.

As amended Pub.L. 95—602, Title I, §§ 119,

122(d)(2), Nov. 6, 1978, 92 Stat. 2982, 2987.

III. Rules and Regulations, U.S. Department of Educa-

tion, 45 C.F.R. parts 12/a .1, .2, .4, .5, .13, .14;

121a.340; 121a.343 through .346 and 121a.500 thru

.553. These regulations have been renumbered to 34

C.F.R. part 300. See Appendix pages 37a-76a.

IV. Rules and Regulations, U.S. Department of Health

and Human Resources, 45 C.F.R. Parts 84.1, .2, .3

and .4; Parts 84.34 through .36. These regulations

have been renumbered to 34 C.F.R. Part 104. See Ap-

pendix pages 77a.-86a.

V. Florida Statutes 228. 041(28) 1980 Supplement

EXPULSION. — Explusion is the removal of the

right and obligation of a student to attend a public

school under conditions set by the school board, and

for a period of time not to exceed the remainder of

the term or school year and 1 additional year of atten-

dance.

STATEMENT OF THE CASE

This suit arises out of actions of a local school system in

Florida dealing with nine handicapped students within

that school system. The students brought suit in the

Federal District Court for the Southern District of Florida

claiming that they were denied their rights under provi-

sions of the Education for All Handicapped Children Act,

20 U.S.C. § 1401 to 1415 (hereinafter referred to as “the

Handicapped Act”) and Section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794 (hereinafter referred to as

“Section 504”).

4

The operative facts are basically not in dispute. Seven of

_ the Plaintiffs were expelled from school by the School

Board of Hendry County, Florida. The expulsions were

the result of separate individual acts of misconduct by the

students. Prior to imposing the expulsions, the Schoo}

Board afforded all of the students all of the procedural

protections required by Florida law and Goss v. Lopez,

419 US 565, 95 S.Ct. 729, 42 LED2d 725 (1975). In

accordance with Florida law, the students received no

educational services during the expulsion period.

All of the expelled students are classified as handi-

capped and entitled to a free appropriate public education

under the Handicapped Act and Section 504. The School

Board did not treat the expulsions as changes in educa-

tional placements and, therefore, did not follow the

change in placement procedures of the Handicapped Act

and Section 504 and their implementing regulations.

Two of the students, both of whom are also classified as

handicapped under the Handicapped Act and Section 504,

requested due process hearings to determine whether or

not they had been evaluated or whether or not they had in-

dividualized educational programs as required under the

F ‘ticapped Act and Section 504. The Superintendent

de:. i the request for the due process hearings. He

pointed out that one of the students had voluntarily

withdrawn from school and was no longer enrolled, and

the other student’s guardian had consented to the in-

dividualized educational program offered to the student.

The consent had been given shortly before the request for

the due process hearing to determine if there was an in-

dividualized educational program. The Superintendent of-

fered conferences with the guardian to discuss the ap-

propriateness of the individualized educational program.

5

The students brought suit seeking prelimninary and per-

manent injunctive relief to prohibit the local school board

from expelling handicapped students and denying them

the due process hearings when requested. The District

Court granted the request for the preliminary injunction

by way of an Order and Memorandum Opinion entered on

June 15, 1979. An appeal was taken to the United States

Court of Appeals, Fifth Circuit. On January 26, 1981, the

Fifth Circuit rendered an opinion affirming the District

Court’s action.

In its opinion, the Fifth Circuit addressed several issues

involving discipline of handicapped students. While the

Court offered guidance on procedures to be followed

when dealing with the expulsion of a handicapped student,

the Court’s ultimate ruling is that expulsion from school is

not allowed for handicapped students in the same way that

it is for non-handicapped students.

The Court specifically ruled that expulsion is a proper

disciplinary tool for handicapped students if proper pro-

cedures are followed and given proper circumstances. The

proper circumstances would be when a determination is

made by a knowledgeable group of persons that the stu-

dent’s misconduct bears no relationship to the student’s

handicapping condition. The Court also ruled that expul-

sion is a change in educational placement. As such, the

proper procedures to follow when dealing with the

misconduct of a handicapped child would be the change in

educational placement procedures under the regulations of

the Handicapped Act and Section 504. The due process

procedures of Goss v. Lopez, supra, would not apply to

the expulsion of a handicapped child.

The Fifth Circuit specifically ruled, however, that even

under the proper circumstances and following the proper

°

6

procedures, the handicapped student does not lose the

right to educational services during the expulsion period.

Since non-handicapped students can lose the right to all

educational services during an expulsion period, the

ultimate result of the Fifth Circuit’s decision is that there is

no expulsion for handicapped children regardless of the

handicapping condition and regardless of the misconduct

involved.

The Fifth Circuit also ruled that the two students, who

had requested due process hearings to determine whether

or not they had been evaluated or whether or not they had

an individualized educational program, were entitled to

such hearings. This is true even when one of the students

was not enrolled in the school system at the time of the re-

quest and the guardian of the other student had signed the

individualized educational program shortly before re-

questing the due process hearing. The Court stated that

parents of handicapped children have a right to an impar-

tial due process hearing concerning any complaint relating

to any matter relative to the education of a handicapped

child and that there is no exception for students who have

voluntarily withdrawn or have previously agreed to an

educational placement.

Finally, the Fifth Circuit ruled that certain state educa-

tional officials, who were also sued as Defendants, were

empowered by the Handicapped Act to intervene in the ex-

pulsion proceedings of the local school systems. The Court

stated that, although under state law the state officials do

not have the authority to intervene in the expulsion pro-

ceedings, the Handicapped Act has vested the state of-

ficials with such authority with respect to handicapped

students.

7

REASONS FOR ALLOWING THE WRIT

The decision of the Fifth Circuit Court of Appeals in

this case should be reviewed by this Court because it has

decided an extremely important question of federal law

under the Education For All Handicapped Children Act of

1975 and Section 504 of the Rehabilitation Act of 1973.

The main question involves whether or not local public

school systems have the ability to expel a handicapped

child from school for misconduct which would otherwise

justify the expulsion of a non-handicapped child. It is a

question that has not been, but should be, settled by this

Court because the answer to the question will have a

tremendous impact upon the more than 16,000 public

school districts in this nation as well as an impact upon the

students served by those school districts.

Notwithstanding the Fifth Circuit’s declaration that

“|. . expulsion is still a proper disciplinary tool

under the EHA and Section 504 when proper

procedures are utilized and under proper cir-

cumstances. . .”

the Court actually ruled that a handicapped student can-

not lose the right to educational services by way of expul-

sion from school. In Florida, as is probably the case in a

number of states, expulsion is the loss of the right to

receive educational services as a result of the student’s own

misconduct. Section 228.041 (26), Florida Statutes (1980

supplement) defines expulsion as follows:

“Expulsion is the removal of the right and obliga-

tion of a student to attend a public school under

conditions set by the school board for a period of

time not to exceed the remainder of the term or

school year and 1 additional year of attendance.”

The Fifth Circuit in ruling that they

“... cannot, however, authorize the complete

cessation of educational services during an expul-

sion period. . .”

in effect is saying that any handicapped student regardless

of the handicap and regardless of the misconduct will

never lose the right to be provided educational services by

the public school system. While the Fifth Circuit says that

expulsion is in fact available, it is not available if educa-

tional services must be provided to the handicapped stu-

dent during the term of an expulsion.

The Court specifies that before the handicapped child

can be expelled, a determination must be made by a

knowledgeable group of persons as to whether or not the

misconduct bears a relationship to the handicapping con-

dition. Presumably, if there was relationship between the

misconduct and the handicap, then the student could not

be expelled. If there were no such relationship, then the

student could be “expelled”. But if the student, not-

withstanding the lack of any relationship between the

misconduct and the handicap, cannot lose the right to

educational services during the expulsion, then why even

make the initial determination?

The Fifth Circuit has interpreted a statute prohibiting

discrimination on the basis of handicap and a statute

which seeks to assure that all handicapped children have

available to them a free appropriate public education as

statutes which grant to handicapped children immunity

from expulsion for misconduct which would result in the

expulsion (denial of all educational services) of non-

handicapped children. The Fifth Circuit readily recognizes

in its opinion that this is a case of first impression on the

appellate level and that neither the acts nor their im-

9

plementing regulations provide any direction on the issues

decided by the Court. Nevertheless, the Fifth Circuit went

on to eliminate for handicapped children the time-honored

disciplinary tool of expulsion from school for serious

misconduct. The Court in effect sets up a dual disciplinary

system depending upon whether the child is handicapped

or non-handicapped.

Whereas a non-handicapped student who has commit-

ted a serious act of misconduct would be subject to the

school system’s disciplinary procedures consistent with the

requirements of Goss v. Lopez, supra, the handicapped

student guilty of the same misconduct would be dealt

with under the change in educational placement pro-

cedures of the acts and regulations. The non-handicapped

child would be provided with notice of the alleged miscon-

duct and an opportunity to be heard on the charges.

Following that, the child could be expelled.

On the other hand, the handicapped child would have to

be reevaluated by a multi-disciplinary team to determine

what the appropriate educational placement or program is

for that child. After reviewing the appropriate testing and

evaluation data, a determination would be made as to the

appropriate placement for the child, ‘eeping in mind that

a handicapped child is entitled to an education in the least

restrictive environment. If the child or guardian disagrees

with the recommendation as to the appropriate placement

(expulsion), the guardian can request a due process hear-

ing to determine whether or not it is appropriate. During

the pendency of these proceedings, the child cannot be

removed from the current educational placement.

Under the Fifth Circuit’s rationale, it will be just a mat-

ter time before two students, one handicapped and one not

handicapped, jointly commit an act of serious miscon-

10

duct, such as selling drugs or assaulting a teacher. The

parents of the students to whom the drugs were sold or the

teacher assaulted will be hardpressed to understand why

one of the students responsible remains in the current

educational placement. The parents of the non-

handicapped child who was expelled for the same miscon-

duct are going to be hardpressed to understand why their

child is not receiving any educational services when the

other child guilty of the same misconduct continues to

receive educational services and will never lose such ser-

vices.

As pointed out above and by the Fifth Circuit, the acts

and regulations do not provide any guidance with respect

to what Congress intended in the area of discipline of han-

dicapped students. But, the Fifth Circuit, by judicial fiat,

has filled in the void and ruled that Congress, without ever

specifically stating so, intended to interfere with the

discipline procedures of the local school district and set up

a dual system of discipline depending upon whether the

child was handicapped or non-handicapped. It is not con-

ceivable that Congress intended such a result, particularly

in view of the fact that expulsion has probably been used

since the beginning of public education as a disciplinary

tool.

This Court was presented with an attack on another

time-honored disciplinary tool — corporal punishment. In

the case of Ingraham v. Wright, 430 US 651 at 689, 97

S.Ct. 1401, 51 LEd2d 711 at 736 (1977). The Court

responded that although some elements might wish to

eliminate corporal punishment as a disciplinary tool,

nevertheless the policy decision to eliminate that

disciplinary tool should not be made by the Court. The

proper way to make such a choice would be through the

process of community debate and legislative action. This

Court stated

“We are reviewing here a legislative judgment,

rooted in history and reaffirmed in the laws of

many states, that corporal punishment serves im-

portant educational interest.”

Such legislative debate to eliminate expulsion as a

disciplinary tool for a portion of the student population

did not exist anywhere in the history of the adoption of

Section 504 or the Education of the Handicapped Act.

Congress did not mention that it was the congressional in-

tent to eliminate expulsion but, yet the Fifth Circuit Court

of Appeals has ruled that Congress implied that was their

intent without ever stating it.

The Fifth Circuit has also interpreted the Handicapped

Act and Sec’ ion 504 and their implementing regulations as

requiring school districts to conduct due process hearings

to make determinations that are absolutely senseless. In

one case, the Court requires a due process hearing to

determine whether or not an individualized educational

program exists for a student who is not enrolled in the

school. If the student is not enrolled in the school, then

obviously there is no program. So, what purpose could be

served by expending the public’s funds to make such a

useless determination? In another instance, the Fifth Cir-

cuit has required that a due process hearing be conducted

to determine whether or not an individualized educational

program exists on a student where the guardian had signed

that individualized educational program with approval

shortly before requesting the due process hearing to deter-

mine whether or not it existed. In that instance, of course

the individualized educational program exists. So what

purpose would be served to conduct the hearing as re-

quested by the parent?

12

Surely, the acts and regulations do not require nonsen-

sical and useless due process hearing simply because there

are no exceptions under the acts and regulations relative to

nonsensical and useless hearings.

In summary, this Court should accept for review the

decision of the Fifth Circuit Court of Appeals since it had

decided an extremely important question of federal law

under the Education For All Handicapped Children Act of

1975 and Section 504 of the Rehabilitation Act of 1973.

Because of the importance to the over 16,000 school

districts in the United States as well as all of the students in

the public school system of the question as to whether or

not a certain group of the public school students are going

to be immune from expulsion and because this question

has not heretofore been decided by this Court, the

Supreme Court should take jurisdiction to review the deci-

sion of the Fifth Circuit Court of Appeals.

Respectfully submitted,

JOHN W. BOWEN

(Counsel of Record)

25 South Magnolia Avenue

Orlando, Florida 32802

(305) 843-5260

Attorney for Petitioners

Of Counsel:

John H. King

James H. Monroe, Jr.

Bowen & King

la

APPENDIX

DECISION SOUGHT TO BE REVIEWED

S-1 a minor, by and through his mother and next

friend, P-1 et al., Plaintiffs-Appellees,

Vv.

Ralph D. TURLINGTON, individually, and in his

official capacity as Commissioner of Education,

State of Florida, Department of Education et al.,

Defendants-Appellants.

No. 79-2742

United States Court of Appeals,

Fifth Circuit

Unit B

Jan. 26, 198i.

Before VANCE, HATCHETT and ANDERSON, Cir-

cuit Judges.

HATCHETT, Circuit Judge.

In this appeal, we are called upon to decide whether

nine handicapped students were denied their rights under

the provisions of the Education for All Handicapped

Children Act, 20 U.S.C. §§ 1401 - 1415, or section 504 of

the Rehabilitation Act of 1973, codified at 29 U.S.C.

§ 794 and their implementing regulations. The trial court

found a denial of rights and entered a preliminary injunc-

2a

tion against the state and local officials. Defendants attack

the trial court’s entry of a preliminary injunction as an

abuse of discretion. Because we find that the trial court

did not abuse its discretion in entering the preliminary in-

junction we affirm.

FACTS

Plaintiffs, S-1, S-2, S-3, S-4, S-5, S-6, and S-8, were ex-

pelled from Clewiston High School, Hendry County,

Florida, in the early part of the 1977-78 school year for

alleged misconduct.' Each was expelled for the remainder

of the 1977-78 school year and for the entire 1978-79

school year, the maximum time permitted by state law. All

of the plaintiffs were classified as either educable mentally

retarded (EMR), mildly mentally retarded, or EMR/dull

normal. It is undisputed that the expelled plaintiffs were

accorded the procedural protections required by Goss v.

Lopez, 419 US 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).

Except for S-1, they were not given, nor did they request,

hearings to determine whether their misconduct was a

manifestation of their handicap. Regarding S-1, the

superintendent of Hendry County Schools determined

that because S-1 was not classified as seriously emotionally

disturbed, his misconduct, as a matter of law, could not be

a manifestation of his handicap.

At all material times, plaintiffs S-7 and S-9 were not

under expulsion orders. S-7 was not enrolled in high

'The misconduct upon which the expulsions were based ranged

from masturbation and other sexual acts against fellow student to

willful defiance of authority, insubordination, vandalism, and the use

of profane language.

3a

school by his own choice. In October 1978, he requested a

due process hearing to determine if he had been evaluated

or if he had an individualized educational program. S-9

made a similar request in October, 1978. Shortly before

her request, S-9’s guardian had consented to the in-

dividualized educational program being offered her during

that school year. The superintendent denied both student’s

requests, but offered to hold conferences in order to

discuss the appropriateness of their individualized educa-

tional programs.

Plaintiffs initiated this case alleging violations of their

rights under the Education for all Handicapped Children

Act, (EHA) 20 U.S.C. §§ 1401 - 1415, and section 504 of

the Rehabilitation Act of 1973, 29 U.S.C. § 794. Plain-

tiffs sought preliminary and permanent injunctive relief

compelling state and local officials to provide them with

the educational services and procedural rights required by

the EHA, section 504, and their implementing regulations.

TRIAL COURT DECISION

The trial court found that the EHA, effective in Florida

on September 1, 1978, provided all handicapped children

the right to a free and appropriate public education. The

court further found that the expelled students were denied

this right in violation of the EHA. In addition, the trial

court decided that under section 504 and the EHA, no

handicapped student could be expelled for misconduct

related to the handicap. That in the case of S-2, S-3, S-4,

S-5, S-6, and S-8, no determination was ever made of the

relationship between their handicaps and their behavioral

problems. With regard to S-1, the trial court found that

the superintendent’s determination was insufficient under

section 504 and the EHA. The court reasoned that an ex-

4a

pulsion is a change in educational placement. That under

educational placement procedures of section 504 and the

EHA, only a trained and specialized group could make

this decision. For these reasons, the trial court concluded

that the likelihood of success on the merits had been

shown with respect to the expelled plaintiffs.

With regard to S-7 and S-9, the trial court stated that

under 20 U.S.C. § 1415(b)(1)(E),? students and their par-

ents or guardians must be provided “an opportunity to

present complaints with respect to any matter relating to

the identification, evaluation, or educational placement of

the child, or the provision of a free appropriate education

to such child.” That under 20 U.S.C. § 1415(b)(2),?

“whenever such a complaint has been received, the parents

or guardians shall have an opportunity for an impartial

due process hearing.” The trial court found that the

superintendent’s failure to grant S-7 and S-9 impartial due

process hearings contravened the express provisions of the

220 U.S.C. § 1415(b)(1)(E) provides:

(b)(1) The procedures required by this section shall in-

clude, but shall not be limited to:

(E) an opportunity to present complaints with respect to

any matter relating to the identification, evaluation, or

educational placement of the child, or the provision of a

free appropriate public education to such child.

320 U.S.C. § 1415(b)(2) provides:

(2) Whenever a complaint has been received under

paragraph (1) of this subsection, the parents or guardian

shall have an opportunity for an impartial due process

hearing which shall be conducted by the State educational

agency. No hearing conducted pursuant to the re-

quirements of this paragraph shall be conducted by an

employee of such agency or unit involved in the education

or care of the child.

Sa

EHA. The court therefore concluded that S-7 and S-9 had

shown a likelihood of success on the merits of their claim.

Finally, the trial court found that the plaintiffs had suf-

fered irreparable harm in that two years of education had

been irretrievably lost. The court further determined that

an injunction was necessary to ensure that plaintiffs would

be provided their rights, even though the expulsions had

expired at the time the injunction was entered.

STATEMENT OF ISSUES

In an appeal from an order granting preliminary relief,

the applicable standard of review is whether the issuance

of the injunction, in light of the applicable standard, con-

stitutes an abuse of discretion.* Doran v. Salem Inn, Inc.,

422 US 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Canal

Authority of State of Florida, 489 F.2d 567 (Sth Cir.

1974). Therefore, in order to decide whether the trial court

abused its discretion in entering the preliminary injunc-

tion, we must resolve the follosing issues: (1) whether an

expulsion is a change in educational placement thereby in-

voking the procedural protections of the EHA and section

504; (2) whether the EHA, section 504, and their im-

plementing regulations contemplate a dual system of

‘Prerequisites for the granting of a preliminary injunction are: (1)

substantial likelihood that plaintiff will prevail on the merits; (2)

substantial threat that plaintiff will suffer irreparable injury if injuc-

tion is not granted; (3) threatened injury to plaintiff outweighing

threatened harm injunction may do to defendants; and, (4) absence of

disservice to the public interest if the injunction should be granted.

Defendants only seriously challenge the trial court’s findings regarding

the first two prerequisites. Accordingly, we confine our discussion to

those elements.

6a

discipline of handicapped and non-handicapped students;

(3) whether the burden of raising the question whether a

student’s misconduct is a manifestation of the student's

handicap, is on the state and local officials or on the stu-

dent; (4) whether the EHA and its implementing regula-

tions required the local defendants to grant S-7 and S-9

due process hearings; and, (5) whether the trial judge pro-

perly entered the preliminary injunction agst the state

defendants.

DISCUSSION

Section 504 of the Rehabilitation Act and the EHA have

been the subject of infrequent litigation. No reported ap-

pelate cases deal with these acts and the issues presented in

the instant case. Therefore, a review of these statutes and

their pertinent regulations is necessary to the disposition

of this controversy.

Section 504, effective in Florida four months prior to

the expulsions in question, provides:

No otherwise qualified handicapped individual

in the United States, as defined in section 706(7)

of this title, shall, solely by reason of his han-

dicap, be excluded from the participation in, be

denied the benefits of, or be subjected to

discrimination under any program or activity

receiving federal financial assistance. . . .

Under 29 U.S.C. § 706(7)(B), a Aandicapped individual

is defined as “any person who (1) has a physical or mental

impairment whi,h substantially limits one or more of such

person’s major life activities... .”

7a

Under the EHA, 20 U.S.C. § 1412(1)° and (5)(B),° ef-

fective in Florida on September 1, 1978, a state receiving

financial assistance under this Act is required to provide

all handicapped children a free and appropriate education

in the least restrictive environment. The definition of Aan-

dicapped children under the EHA is similar to the defini-

tion under section 504,

Florida, and the Hendry County School Board, are reci-

pients of federal funds both section 504 and the EHA. The

children in this suit are clearly handicapped within the

meaning of both section 504 and the EHA. The parties

agree that a handicapped student may not be expelled for

misconduct which results from the handicap itself. It

520 U.S.C. § 1412(1) provides:

In order to qualify for assistance under his subchapter in

any fiscal year, a State shall demonstrate to the Commis-

sioner that the following conditions are met:

(1) The State has in effect a policy that assures all han-

dicapped children the right to a free appropriate public

education,

620 U.S.C. § 1412(5)(B) provides:

In order to qualify for assistance under this subchapter

in any fiscal year, a State shall demonstrate to the Com-

missioner that the following conditions are met:

(5S) The State has established... (B) procedures to

assure that, to the maximum extend appropriate, han-

dicapped children, including children in public or private

institution or other care facilities, are educated with

children who are not handicapped, and that special classes,

separate schooling, or other removal of handicapped

children from the regular educational environment occurs

only when the nature of severity of the handicap is such

that education in regular classes with the use of supplemen-

tary aids and services cannot be achieved satisfactorily[.]

Sa

follows that an expulsion must be accompanied by a deter-

mination as to whether the handicapped student's miscon-

duct bears a relationship to his handicap. From a practical

standpoint, this is the only logical approach. How else

would a school board know whether it is violating section

504?

Defendant local officials argue that they complied with

section 504, As support for their position, they state that

they determined, in the expulsion proceedings, that the

plaintiffs were capable of understanding rules and regula-

tions or right from wrong. They also assert that they

found, based upon a psychological evaluation, that plain-

tiffs’ handicaps were not behaviorial handicaps (as it

would be if plaintiffs were classified as seriously emo-

tionally disturbed), thereby precluding any relationship

between the misconduct and the applicable handicap. We

cannot agree that consideration of the above factors

satisfies the requirement of section 504. A determination

that a handicapped student knew the difference between

right and wrong is not tantamount to a determination that

his misconduct was or was not a manifestation of his han-

dicap. The second prong of the school officials’ argument

is unacceptable. Essentially, what the school officials

assert is that a handicapped student’s misconduct can

never be a symptom of his handicap, unless he is classified

as seriously emotionally disturbed. With gegard to this

argument, the trial court stated:

The defendants concede that a handicapped stu-

dent cannot be expelled for misconduct which is

a manifestation of the handicap itself. However,

they would limit application of this principle to

those students classified as “seriously emotional-

ly disturbed.” In the Court’s view such a

generalization is contrary to the emphasis which

9a

Congress has placed on individualized evaluation

and consideration of the problems and needs of

handicapped students.

We agree. In addition, the uncontradicted testimony

elicited at the preliminary injunction hearing suggests

otherwise. At the hearing, a psychologist testified that a

connection between the misconduct upon which the expul-

sions were based and the plaintiffs’ handicaps may have

existed. She reasoned that “a child with low intellectual

functions and perhaps the lessening of control would res-

pond to stress or respond to a threat in the only way that

they feel adequate, which may be verbal aggressive

behavior.” She further testified that an orthopedically

handicapped child, whom she had consulted,

[wjould behave in an extremely aggressive way

towards other children and provoke fights

despite the fact that he was likely to come out

very much on the short end of the stick. That this

was his way of dealing with stress and dealing

with a feeling of physical vulnerability. He would

be both aggressive and hope that he would turn

off people and as a result provoke an attack on

him.

The record clearly belies the school officials’ contention.

FIRST ISSUE

With regard to plaintiff S-1, the trial court found that

the school officials entrusted with the expulsion ' vision

determined at the disciplinary proceedings that S-I's

misconduct was unrelated to his handicap. The trial court,

however, held that this determination was made by school

board officials who lacked the necessary expertise to make

10a

such a determination. The trial court arrived at this con-

clusion by holding that an expulsion is a change in educa-

tional placement. Under 45 CFR § 121a.533(a)(3)’ and 45

CFR § 84.35(c)(3),* evaluations and placement decisions

must be made by a specialized and knowledgeable group

of persons.

The trial court’s finding presents the novel issue in this

circuit whether an expulsion is a change in educational

placement, thereby invoking the procedural protections of

both the EHA and section 504 of the Rehabilitation Act.

In deciding this issue, the EHA and section 504, as

remedial statutes, should be broadly applied and liberally

construed in favor of providing a free and appropriate

education to handicapped students.

The EHA, section 504, and their implementing regula-

tions do not provide this court any direction on this issue.

We find the reasoning of the district court in Stuart v.

Nappi, 443 F.Supp. 1235 (D. Conn. 1978), persuasive. In

Stuart, a child was diagnosed as having a major learning

disability caused by either a brain disfunction or a percep-

745 C.F.R. § 121a.533(a)(3) provides in pertinent part that:

(a) In interpreting evaluation data and in making place-

ment decisions, each public agency shall:

(3) Insure that the placement decision is made by a group

of persons, including persons knowledgeable about the

child, the meaning of the evaluation data, and the place-

ment options. . .

845 C.F.R. § 84.35(c)(3) provides in pertinent part that:

(c) In interpreting evaluation data and in making place-

ment decisions, a recipient shall (3) ensure that the place-

ment decision is made by a group of persons, including

persons knowledgeable about the child, the meaning of the

evaluation data, and the placement options.

lla

tual disorder. She challenged the use of disciplinary pro-

ceedings which, if completed, would have resulted in her ex-

pulsion for participating in a schoolwide disturbance. The

trial court held that the proposed expulsion constituted a

change in educational placement, thus requiring the school

officials to adhere to the procedural protections of the

EHA. In so holding, the court stated:

The right to an education in the least restrictive

environment may be circumvented if schools are

permitted to expel handicapped children

{without following the procedures prescribed by

the EHA].. . . An expulsion has the effect not

only of changing a student’s placement, but also

of restricting the availability of alternative

placements. For example plaintiffs expulsion

may well exclude her from a placement that is ap-

propriate for her academic and social develop-

ment. This result flies in the face of the explicit

mandate of the handicapped act which requires

that all placement decisions be made in confor-

mity with a child’s right to an education in the

least restrictive environment. [Citation omitted.]

443 F.Supp. at 1242-43.

We agree with the district court in Stuart, and therefore

hold that a termination of educational services, occa-

sioned by an expulsion, is a change in educational placement,

thereby invoking the procedural protections of the EHA.

The proposition that an expulsion is a change in educa-

tional placement has been cited with approval in Sherry v.

New York State Education Department, 479 F.Supp. 1328

(W.D.N.Y. 1979) (legally blind and deaf student that suf-

fered from brain damage and emotional disorder which

made her self abusive suspended because of insufficient

12a

staff to care for her), and Doe v. Koger, 480 F.Supp. 225

(N.D.Ind. 1979) (EHA case in which mildly mentally han-

dicapped student was expelled for the remainder of school

term for disciplinary reasons pursuant to the procedures

provided for all Indiana public school disciplinaiy expul-

sions). As stated by the district court in Doe v. Koger, our

holding that expulsion of a handicapped student con-

stitutes a change in educational placement distinguishes

the handicapped student in that, “unlike any other disrup-

tive child, before a disruptive handicapped child can be ex-

pelled, it must be determined whether the handicap is the

cause of the child’s propensity to disrupt. This issue must

be determined through the change of placement pro-

cedures required by the handicapped act.” Doe v. Koger,

480 F.Supp. at 229.°

SECOND ISSUE

The school officials point out that a group of persons

entrusted with the educational placement decision could

never decide that expulsion is the correct placement for a

*This opinion does not infringe upon the traditional authority and

responsibility of the local school board to ensure a safe school en-

vironment. A comment to the regulations provides: “While the place-

ment may not be changed, this does not preclude dealing with

children, who are endangering themselves or others.” 45 C.F.R.

§ 121(a).513 (comment). Thus the local school board retains the

authority to remove a handicapped child from a particular setting

upon a proper finding that the child is e:dangering himself or others.

In such case, the child would of course be remanded to the special

change of placement procedures for reassingment to an appropriate

placement. It is appropriate to superimpose this very limited authori-

ty, as contemplated by the above quoted comment, because nothing in

the statute, the regulations, or the legislative history suggests that

Congress intended to remove from local school boards — who alone

are accountable to the entire school community — their long-

recognized authority and responsibility to ensure a safe school en-

vironment.

13a

handicapped student, thus insulating a handicapped stu-

dent from expulsion as a disciplinary tool. They further

state that Florida law does not contemplate this result

because expulsion is specifically provided for under

Florida law as a disciplinary tool for all students. While

the trial court declined to decide the issue whether a han-

dicapped student can ever be expelled, we cannot ignore

the gray areas that may result if we do not decide this ques-

tion. We therefore find that expulsion is still a proper

disciplinary tool under the EHA and section 504 when

proper procedures are utilized and under proper cir-

cumstances. We cannot, however, authorize the complete

cessation of educational services during an expulsion

period.

THIRD ISSUE

State defendants focus their attention on the fact that,

with the exception of S-1, none of the expelled plaintiffs

raised the argument, until eleven months after expulsion,

that they could not be expelled unless the proper persons

determined that their handicap did not bear a causal con-

nection to their misconduct. By this assertion, we assume

that state defendants contend that the handicapped

students waived their right to this determination. The issue

is therefore squarely presented whether the burden or rais-

ing the question whether a student’s misconduct is a

manifestation of the student’s handicap is on the state and

local officials or on the student. The EHA, section 504,

and their implementing regulations do not prescribe who

must raise this issue. In light of the remedial purposes of

these statutes, we find that the burden is on the local and

state defendants to make this determination. Our conclu-

sion is buttressed by the fact that in most cases, the han-

dicapped students and their parents lack the wherewithal

l4a

either to know or to assert their rights under the EHA and

section 504.

FOURTH ISSUE

The next issue is whether the EHA and its implementing

regulations required the local defendants to grant S-7 and

S-9 due process hearings. School officials suggest that

because S-7 and S-9 had voluntarily withdrawn from

school, they were not entitled to due process hearings.

They also suggest that the conference offered by the

superintendent was an adequate substitute for the due pro-

cess hearings. They cite 45 CFR 121a.506'° as support for

their argument. Under this regulation, the Department of

Health, Education and Welfare (HEW) (now Health and

Human Resources), states in a comment that mediation

can be used to resolve differences between parents and

agencies without the development of an adversarial rela-

tionship. The Justice Department, as amicus curiae, and

‘The comment to 45 C.F.R. 121a.506 implementing 20 U.S.C.

§ 1416(b)(2) provides:

Comment: Many States have pointed to the success of

using mediation as an intervening step prior to conducting

a formal due process hearing. Although the process of

mediation is not required by the statute or these regula-

tions, an agency may wish to suggest mediation in disputes

concerning the identification, evaluation, and educational

placement of handicapped children, and the provision of a

fre appropriate public education to those children. Media-

tions have been conducted by members of State educa-

tional agencies or local educational agency personnel who

were not previously involved in the particular case. In

many cases, mediation leads to resolution of differences

between parents and agencies without the development of

an adversarial relationship and with minimal emotional

stress. However mediation may not be used to deny or

delay a parent’s rights under this subchapter.

15a

the trial court, point out that under 20 U.S.C.

§ 1415(b)\(1), parents and guardians of handicapped

children must have “an opportunity to present complaints

with respect fo any matter relating to the identification

evaluation, or educational placement of the child, or the

provision of a free appropriate public education to such

child.” The statute also states, in section 1415(b), that

“whenever a complaint has been received under

paragraph (1) of this subsection, the parents or guardian

shall have an opportunity for an impartial due process

hearing... .” No exception is made for handicapped

students who voluntarily withdraw from school or

previously agree to an educational placement. With regard

to defendants’ argument under 45 CFR § 12!a506, HEW

states in the same comment that mediation may not be

used to deny or delay a parent’s rights under this subpart. In

the circumstances, the trial judge correctly found that

plaintiffs S-7 and S-9 were entitled to due process hear-

ings.

FIFTH ISSUE

State defendants advance three arguments that deserve

comment. First, they assert that the trial judge erred in

analyzing section 504 in light of the Supreme Court’s deci-

sion in Southeastern Community College v. Davis, 442

U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). In that

case, the issue was whether section 504, which prohibits

discrimination against an otherwise qualified handicapped

individual enrolled in a federally funded program, solely

by reason of his handicap, forbids professional schools

from imposing physical qualifications for admission to

their clinical training program. The Supreme Court held

that section 504 did not forbid professional schools from

16a

imposing physical qualifications for admission. Without

discussing Southeastern any further, it is clear that it does

not apply to this case. Physical qualifications are not at

issue in this case. Furthermore, we do not deal here with a

professional school.

Secondly, state defendants argue that the trial court

erred in imposing the EHA as a requirement at the time of

the expulsions because the EHA was not effective in

Florida until September 1, 1978. The trial court did not

impose the EHA as a requirement at the time of the expul-

sion. The court found that the expelled plaintiffs became

entitled to the protections of the EHA on September 1,

1978. As such, the expelled plaintiffs became entitled to a

free and appropriate education in the least restrictive en-

vironment. In fact, under 20 U.S.C. § 1412(3),'' because

plaintiffs were not receiving educational services on

September 1, 1978, they fell within a special class of han-

dicapped students entitled to priority regarding the provi-

sion of a free and appropriate education. The only way in

which the expulsions could have continued as of

September |, 1978, is if a qualified group of individuals

determined that no relationship existed between the plain-

tiffs’ handicap and their misconduct. Furthermore, section

504, effective at the time of the expulsions, provides pro-

tections and procedures similar to those of the EHA. See,

''20 U.S.C. § 1413(3) provides in pertinent part that:

In order to qualify for assistance under this subchapter

in any fiscal year, a State shall demonstrate to the Com-

missioner that the following conditions are met:

(3) The State has established priorities for providing a

free appropriate public eduation to all handicapped

children... first with respect to handicapped children

who are not receiving an education[.]

17a

North v. District of Columbia Board of Education, 471

F.Supp. 136 (D.D.C. 1979).

Finally, the state officials argue that the trial court im-

properly entered the injunction against them. They assert

that they lacked the authority to intervene in the expulsion

proceedings because disciplinary matters are exclusively

local. While this argument may be true regarding non-

handicapped students, it is inapplicable to handicapped

students. Expulsion proceedings are of the type that may

serve to deny an education to those entitled to it under the

EHA. Under 20 U.S.C. § 1412(6), the state educational

agency is:

[RJesponsible for assuring that the requirements

of this sub-chapter be carried out and that all

educational programs for handicapped children

within the state, including all such programs ad-

ministered by any other state or local agency, will

be under the general supervision of the persons

responsible for educational program for han-

dicapped children in the state educational agency

and shall meet educational standards of the state

educational agency.

Clearly, the state officials were empowered to intervene in

the expulsion proceedings under 20 U.S.C. § 1412(6).

CONCLUSION

Accordingly, we hold that under the EHA, section 504,

and their implementing regulations: (1) before a handi-

capped student can be expelled, a trained and knowledgeable

group of persons must determine whether the student’s

misconduct bears a relationship to his handicapping con-

dition; (2) that an expulsion is a change in educational

18a

placement thereby invoking the procedural protections of

the EHA and section 504; (3) that expulsion is a proper

disciplinary tool under the EHA and section 504, but a

complete cessation of educational services is not; (4) that

S-7 and S-9 were entitled to due process hearings; and, (5)

the trial judge properly entered the preliminary injunction

against the state defendants. In the circumstances, the trial

judge did not abuse his discretion in entering the injunc-

tion.

AFFIRMED.

19a

MEMORANDUM OPINION DISTRICT COURT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 78-8020-Civ-CA WPB

S-1, a minor, by and through his mother and next friend, P-1, et al.,

Plaintiffs,

Vv.

RALPH D. TURLINGTON, individually, and in his official capacity

as COMMISSIONER OF EDUCATION STATE OF FLORIDA

DEPARTMENT OF EDUCATION, et al.,

Defendants.

FILED JUNE 15, 1979

Plaintiffs, S-1 through S-9, are mentally handicapped

students who reside within the District School System of

Hendry County, Florida. Plaintiffs have alleged violations

of their rights under the Education For All Handicapped

Children Act 20 U.S.C. § 1401 et seq., Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794, and the due

process and equal protection clauses of the Fourteenth

Amendment. Plaintiffs seek a preliminary injunction com-

pelling state and local officials to provide them with the

educational services and procedural rights which they

allege are required by the Handicapped Act and its im-

plementing regulations.

The following findings and conclusions are made for the

purpose of determining whether a preliminary injunction

20a

should issue pursuant to Rule 65, Fed.R.Civ.P., and are

not a final determination of the merits of plaintiffs’

claims.

The criteria which govern the issuance of a preliminaray

injunction in this circuit are well established. Plaintiffs

must show (1) a substantial likelihood of success on the

merits, (2) a substantial threat that plaintiffs will suffer ir-

reparable injury if the injunction is not granted, (3) that

the threatened injury to the plaintiffs outweighs the harm

the injunction may do to defendants, and (4) that granting

the injunction will not deserve the public interest. Morgan

v. Fletcher, 518 F.2d 236 (Sth Cir. 1975).

Plaintiffs S-1, S-2, S-3, S-4, S-5, S-6 and S-8 were each

expelled from Clewiston High School in the early part of

the 1977-78 school year for alleged misconduct. Each was

expelled for the remainder of the 1977-78 school year and

for the entire 1978-79 school year, the maximum time per-

mitted by state law. During this time these plaintiffs have

received no educational services. Plaintiffs S-7 and S-9 are

not under expulsion orders but contend they are not being

given a free and appropriate education, in that they have

not been properly evaluated and placed. An impartial due

process hearing, pursuant to 20 U.S.C. § 1415(b)(1), (2),

was requested on behalf of each plaintiff and was denied.

The Handicapped Act provides for federal assistance to

the states for the education of handicapped children. 20

U.S.C. §§ 1411 ef seq. Eligibility for such assistance is

conditioned upon existence of a state policy assuring all

handicapped children the right to a free appropriate public

education and a state plan approved by the Commissioner

of Education setting forth policies and procedures design-

ed to meet this goal. 20 U.S.C. §§ 1412, 1413. The act and

its implementing regulations (codified at 45 C.F.R.

2la

§ 121a) require, inter alia, that handicapped students be

given a free and appropriate education in the least restric-

tive environment, be evaluated at least every three years to

determine appropriate placement, and be provided with an

individualized education program which must be reviewed

annually. The act and regulations also provide procedural

safeguards. 20 U.S.C. § 1415; 45 C.F.R. § 121a.500 ef

seq.

The defendants do not dispute that plaintiffs S-1, S-2,

S-3, S-4, S-5, S-6 and S-8 have not received a free and ap-

propriate education since the time of their expulsions and

that they have been denied impartial due process hearings

to challenge their placement. Rather, the defendants take

the position that these handicapped students lost the right

to a free and appropriate education through misconduct;

that they receive the procedural protection required by

Goss v. Lopez, 419 U.S. 565 (1975), in connection with

their expulsions; and that they are not entitled to the pro-

tections of the Handicapped Act during the term of the ex-

pulsions. Defendants contend that disciplinary procedures

are independent of and should not be limited by the pro-

cedures required by the Handicapped Act.

Defendants have conceded that a handicapped student

may not be expelled for misconduct which results from the

handicap itself. However, defendants argue that since these

students were classified as “educable mentally retarded”

(EMR) and not as “seriously emotionally disturbed” their

handicap is unrelated to the misconduct and should not

exempt them from disciplinary action. Plaintiffs dispute

the conclusion that disciplinary problems are unrelated to

their handicap, but also contend that the Handicapped

Act prohibits the denial of a free and appropriate educa-

tion to a handicapped student even for disciplinary

reasons, irrespective of whether the student’s misconduct

is related to his handicap.

22a

Pizintiffs S-7 and S-9 requested impartial due process

hearings based on defendants’ alleged failure to provide

proper evaluations and to develop individualized educa-

tional programs. Defendants based their denial of such

hearings on the grounds that a due process hearing is not

designed to determine whether or not an IEP has been

developed or whether or not there have been proper

evaluations but is only designed to determine whether the

program or results of the testing are appropriate.

The Court finds that plaintiffs have made an adequate

showing of likelihood of success on the merits. As noted

above, it is undisputed that the requirements of the Hand-

icapped Act have not been met with respect to the expelled

plaintiffs. The Court cannot agree with defendants’

argument that disciplinary procedures are totally indepen-

dent of and may supersede the rights of students under the

Handicapped Act. The defendants concede that a hand-

icapped student cannot be expelled for misconduct which

is a manifestation of the handicap itself, however, they

would limit application of this principle to those students

classified as “seriously emotionally disturbed.” In the

Court’s view such a generalization is contrary to the em-

phasis which Congress has placed on_ individualized

evaluation and consideration of the problems and needs of

handicapped students. The Court does not find it

necessary to determine at this juncture whether a hand-

icapped student may ever be expelled for misconduct

unrelated to his handicap. In the case of these expelled

plaintiffs no adequate determination was ever made of the

relationship, ve/ non, between their handicaps and their

behavioral problems. With the exception of plaintiff S-1,

this issue does not appear to have ever been addressed. In

the disciplinary proceedings resulting in the expulsion of

S-1, a finding was made that his misconduct was unrelated

to his handicap. However, this determination was made by

23a

school board officials who do not have the expertise

necessary to make such a determination.

In the only reported case dealing with the interaction

between disciplinary procedures and the procedures under

the Handicapped Act, the Court found expulsion to be a

change in placement within the meaning of the Handi-

capped Act. Stuart v. Nappi, 443 F. Supp. 1235 (D. Conn.

1978). This Court is in agreement with that conclusion.

Evaluations and placement decisions must be made by a

specialized knowledgeable group of persons. 45 C.F.R.

§ 121a.532(3), .533(a)(3). In the view of this Court, only

such a trained, specialized group is capable of making

the determination of whether the student’s handicap bears

a casual relationship to his misconduct.

Although each of the expulsions in question occurred

prior to the date the Handicapped Act became effective in

Florida, the plaintiffs became entitled to its protections on

September 1, 1978. In addition, Section 504 of the

Rehabilitation Act of 1973 and its implementing regula-

tions, 45 C.F.R., Part 84, provide protections and pro-

cedures similar to those of the Handicapped Act, which

were in effect at the time of the expulsions. See Howard S.

v. Friendswood Independent School Dist., 454 F.

Supp. 634 (S.D. Tex. 1978).

A likelihood of success has also been shown with respect

to plaintiffs S-7 and S-9. The Handicapped Act requires

that handicapped students and their parents or guardians

be provided

“an opportunity to present complaints with

respect to any matter relating to the identifica-

tion, evaluation or educational placement of the

child, or the provision of a free appropriate

education to such child.”

20 U.S.C. §6 1415 (b)(1)(E). The act further provides that

whenever such a complaint has been received the parents

24a

or guardians shall have an opportunity for an impartial

due process hearing. 20 U.S.C. § 1415(b)(2). These provi-

sions are also incorporated into the regulations. See 45

C.F.R. § 121a.506. The complaint that plaintiffs S-7 and

S-9 have not been properly evaluated and do not have in-

dividualized educational programs clearly falls within

these provisions, and these plaintiffs are entitled to the re-

quested impartial due process hearings to resolve this

dispute.

Plaintiffs have suffered and continue to suffer ir-

reparable harm each day they are deprived of a free and

appropriate education. Almost two school years of educa-

tion have been irretrievably lost to the expelled plaintiffs.

As the Senate Committee which considered the Handi-

capped Act noted, the Supreme Court established the prin-

ciple in Brown v. Board of Education, 347 U.S. 483

(1954), that

In these days, it is doubtful that any child may

reasonably be expected to succeed in life if he is

denied the opportunity of an education.”

S.Rep.No. 94-168, 94th Cong., Ist Sess. 6 (1975); 1975

U.S. Code Cong. & Ad. News, 1425, 1430. The committee

further recognized that

“With proper education services many [han-

dicapped persons] would be able to become pro-

ductive citizens, contributing to society instead

of being forced to remain burdens.”

Id. at 1433.

Defendants argue that in light of the fact that the expul-

sions end with the 1978-79 school year (which ended be-

tween the date of the hearing on this motion and the entry

of this opinion), the plaintiffs will not suffer irreparable

25a

harm, and an injunction is unnecessary because all the

rights to which plaintiffs are entitled will now be provided.

In view of the defendants’ past refusal to provide plaintiffs

with the rights to which they are entitled under the Hand-

icapped Act, in particular with respect to the two plain-

tiffs who were not under expulsion orders, the Court finds

that a preliminary injunction is necessary to insure that

plaintiffs will receive their educational and procedural

rights under the act during the pendency of this litigation.

The balance of harm tips decidedly in favor of the plain-

tiffs. The expulsion period has expired and all of the named

plaintiffs are now indisputably entitled to a free and ap-

propriate education in accordance with the provisions of

the Handicapped Act. The entry of a preliminary injunc-

tion will only require the defendants to fulfill their legal

obligations mandated by statute. The burdens placed on

defendants are those which Congress has placed and which

the state has agreed to accept as a condition to obtaining

federal funding.

The public interest will also be served by entry of a

preliminary injunction. Congress has found that the prop-

er education of handicapped children will be of substantial

long range benefit to society:

“The long range implications of these statistics

are that public agencies and taxpayers will spend

billions of dollars over the lifetimes of these in-

dividuals to maintain such persons as dependents

and in a minimally acceptable lifestyle. With

proper education services, many would be able

to become productive citizens, contributing to

society instead of being forced to remain

burdens. Others, through such services, would

increase their independence, thus reducing their

dependence on society.

26a

There is no pride in being forced to receive

economic assistance. Not only does this have

negative effects upon the handicapped person,

but it has far-reaching effects for such person’s

family.

Providing educational services will ensure

against persons needlessly being forced into in-

stitutional settings. One need only look at public

residential institutions to find thousands of per-

sons whose families are no longer able to care for

them and who themselves have received no

educational services. Billions of dollars are ex-

pended each year to maintain persons in these

subhuman conditions.

This Nation has long embraced a philosophy

that the right to a free appropriate public educa-

tion is basic to equal opportunity and is vital to

secure the future and the prosperity of our peo-

ple. It is contradictory to that philosophy when

that right is not assured equally to all groups of

people within the Nation. Certainly the failure to

provide a right to education to handicapped

children cannot be allowed to continue.”

S. Rep. No. 94-168, 94th Cong., Ist Session 9; 1975 U.S.

Code Cong. & Ad. News, 1425, 1433.

Although plaintiffs seek relief on behalf of all similarly

situated handicapped students within the state, no class

has yet been certified. The evidence presented by the plain-

tiffs failed to show that any handicapped students outside

Hendry County or any other handicapped student within

Hendry County have been expelled or otherwise deprived

of a free and appropriate education. Therefore, at this

27a

time the Court finds that preliminary injunctive relief

should be limited to the named plaintiffs.

The Court finds that the preliminary injunction should

extend to defendant state officials as well as to local

officials. The Handicapped Act imposes on the state

educational agency ultimate responsibility for assuring

that the requirements of the act are carried out. 20 U.S.C.

§ 1412(6). State officials have refused to intercede based

on their position that the Department of Education lacks

authority to intervene in disciplinary matters which are

under the authority of local school boards. See Sweet v.

Childs, 507 F.2d 675 (Sth Cir. 1975). In light of this

Court’s finding that disciplinary proceeding do not

supersede the plaintiffs rights under the Handicapped Act,

the state officials’ refusal to fulfil their supervisory respon-

sibilities under the act is unjustified. State officials’ con-

tention that a mandatory injunction against them is barred

by the Eleventh Amendment, in reliance on Alabama v.

Pugh, 438 U.S. 781 (1978), is inapposite. Plaintiffs have

not sued the State of Florida or its agencies; they have

sued the various state officials in their individual and of-

ficial capacities.

The plaintiffs had also contended that defendants have

denied them copies of educational records in violation of

45 C.F.R. § 121a.562(b)(2). At the hearing on this motion

the parties stipulated that plaintiffs may use their own cop-

ying machine to copy needed records provided that the

copying is done at a reasonably convenient time and that

records are not damaged by the copying machine.

Therefore, the Court finds it unnecessary to address this

issue.

Based upon the foregoing findings and conclusions, the

Court finds that preliminary injunction entered

simultaneously herewith should issue.

28a

ENTERED at Miami, Florida, this 15th day of June,

1979.

/s/ Clyde Atkins

Chief United States District Judge

29a

PRELIMINARY INJUNCTION

THIS CAUSE having come before the Court for hear-

ing on motion of plaintiffs for preliminary injunction and

the Court having considered the evidence and memoranda

presented by the parties and being otherwise duly advised,

and having determined that a preliminary injunction

should issue based upon the findings and conclusions set

forth in the memorandum opinion entered herewith, it is

ORDERED AND ADJUDGED as follows:

1. Defendants, James C. Edwards, Superintendent of

Hendry County Schools, and William G. Gober, Darrell

R. Harris, Teresa M. Milicenvic, Kenneth Dooley,

Beaford E. Davidson and Raymond Pittman, members of

the School Board of Hendry County;, shall:

(a) immediately take affirmative steps to insure that

plaintiffs S-1, S-2, S-3, S-4, S-5, S-6 and S-8 are placed in

a program in the District School System of Hendry Coun-

ty, Florida, wherein they will be provided with a free and

appropriate education in the least restrictive environment,

in accordance with the requirements of the Education For

All Handicapped Children Act, 20 U.S.C. § 1401 et seq.,

and its implementing regulations, 45 C.F.R. Part 121a.;

(b) immediately insure that a review of the evaluations

of each of the named plaintiffs is conducted to determine

whether they have properly evaluated in accordance with

45 C.F.R. §§ 121a.530-121a.534, and perform such

reevaluations as may be required by 45 C.F.R. § 121a,534;

(c) immediately insure that a review of the educational

placement of each named plaintiff is conducted in light of

the required evaluations and any independent educational

evaluations which plaintiffs have obtained as provided in

45 C.F.R. § 121a.503, and make appropriate placements

in accordance with 45 C.F.R. § 121a.533;

30a

(d) immediately take all necessary steps to insure that an

individualized education program for each named plain-

tiff is developed and implemented in accordance with 45

C.F.R. §§ 121a.341-121a.349.

Defendants, Ralph D. Turlington, Bill Gunter, George

Firestone, Jim Smith, Gerald Lewis, Doyle Conner,

members of the State of Florida Board of Education,

Carey E. Ferrell, Jr. and Landis Stetler, members of the

State Department of Education, shall insure that local

school officials of Hendry County are complying with the

terms of this preliminary injunction and are providing

plaintiffs with all the rights to which they are entitled

under the Education For All Handicapped Children Act,

20 U.S.C. § 1401 et. seq. and its implementing regula-

tions, 45 C.F.R. Part 121a.

DONE AND ORDERED in Chambers at Miami,

Florida, this 15th day of June, 1979, at 1:15 p.m.

Clyde Atkins

3la

EDUCATION FOR ALL HANDICAPPED

CHILDREN ACT OF 1975

Education of the Handicapped

20 U.S.C. §§1401-1461

{P.L. 91-230, April 13, 1970, 84 Stat. 121; as amended by P.L. 93-380,

August 21, 1974, 88 Stat. 580, by P.L. 94-142, November 29, 1975, 89

Stat. 773, and by Pub.L. 95-561, November 1, 1978, 92 Stat. 2364.]

SUBCHAPTER I — GENERAL PROVISIONS

§ 1401. Definitions

As used in this chapter —

(1) The term “handicapped children” means mentally

retarded, hard of hearing, deaf, speech impaired, visually

handicapped, seriously emotionally disturbed, or-

thopedically impaired, or other health impaired children,

or children with specific learning disabilities, who by

reason thereof require special education and related ser-

vices.

* * *

(8) The term “local educational agency” means a public

board of education or other public authority legally con-

stituted within a State for either administrative control or

direction of, or to perform a service function for, public

elementary or secondary schools in a city, county,

township, school district, or other political subdivision of

a State, or such combination of school districts or counties

as are recognized in a State as an administrative agency for

its public elementary or secondary schools. Such term also

includes any other public institution or agency having

administrative control and direction of a public elemen-

tary or secondary school.

* + *

32a

(12) The term “nonprofit” as applied to a school, agen-

cy, Organization, or institution means a school, agency,

organization, or institution owned and operated by one or

more nonprofit corporations or associations no part of the

net earnings of which inures, or may lawfully inure, to the

benefit of any private shareholder or individual.

* + *

(16) The term “special education” means specially

designed instruction, at no cost to parents or guardians, to

meet the unique needs of a handicapped child, including

classroom instruction, instruction in physical education,

home instruction, and instruction in hospitals and institu-

tions.

(17) The term “related services” means transportation,

and such developmental, corrective, and other supportive

services (including speech pathology and audiology,

psychological services, physical and occupational therapy,

recreation, and medical and counseling services, except

that such medical services shall be for diagnostic and

evaluation purposes only) as may be required to assist a

handicapped child to benefit from special education, and

includes the early identification and assessment of han-

dicapping conditions in children.

(18) The term “free appropriate public education”

means special education and related services which (A)

have been provided at public expense, under public super-

vision and direction, and without charge, (B) meet the

standards of the State educational agency, (C) include an

appropriate pre-school, elementary, or secondary school

education in the State involved, and (D) are provided in

conformity with the individualized education program re-

quired under section 1414(a)(5) of this title.

(19) The term “individualized education program”

means a written statement for each handicapped child

33a

developed in any meeting by a representative of the local

educational agency or an intermediate educational unit

who shall be qualified to provide, or supervise the provi-

sion of, specially designed instruction to meet the unique

needs of handicapped children, the teacher, the parents or

guardian of such child, and, whenever appropriate, such

child, which statement shall include (A) a statement of the

present levels of educational performance of such child,

(B) a statement of annual goals, including short-term in-

Structional objectives, (C) a statement of the specific

educationa! 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 pro-

cedures and schedules for determining, on at least an an-

nual basis, whether instructional objectives are being

achieved.

* * a

§ 1415. Procedural safeguards

Establishment and maintenance

(a) Any State educational agency, any local educational

agency, and any intermediate educational unit which

receives assistance under this subchapter shall establish

and maintain procedures in accordance with subsection (b)

through subsection (e) of this section to assure that hand-

icapped children and their parents or guardians are

guaranteed procedural safeguards with respect to the pro-

vision of free appropriate public education by such agen-

cies and units.

Required procedures; hearing

(b)(1) the procedures required by this section shall in-

clude, but shall not be limited to —

34a

(A) an opportunity for the parents or guardian

of a handicapped child to examine all relevant

records with respect to the identification, evalua-

tion, and educational placement of the child, and

the provision of a free appropriate public educa-

tion to such child, and to obtain an independent

educational evaluation of the child;

(B) procedures to protect the rights of the child

whenever the parents or guardian of the child are

not known, unavailable, or the child is a ward of

the State, including the assignment of an in-

dividual (who shall not be an employee of the

State educational agency, local educational agen-

cy, Or intermediate educational unit involved in

the education or care of the child) to act as sur-

rogate for the parents or guardian;

(C) written prior notice to the parents or guar-

dian of the child whenever such agency or unit —

(i) proposes to initiate or change, or

(ii) refuses to initiate or change,

the identification, evaluation, or educational

placement of the child or the provision of a free

appropriate public education to the child;

(D) procedures designed to assure that the

notice required by clause (C) fully inform the

parents or guardian, in the parents’ or guardian’s

native language, unless it clearly is not feasible to

do so, of all procedures available pursuant to this

section; and

(E) an opportunity to present complaints with

respect to any matter relating to the identifica-

tion, evaluation, or educational placernent of the

35a

child, or the provision of a free appropriate

public education to such child.

(2) Whenever a complaint has been received under

paragraph (1) of this subsection, the parents or guardian

shall have an opportunity for an impartial due process

hearing which shall be conducted by the State educational

agency or by the local educational agency or intermediate

educational unit, as determined by State law or by the

State educational 4gency. No hearing conducted pursuant

to the requirements of this paragraph shall be conducted

by an employee of such agency or unit involved in the

education or care of the child.

Review of local decision by State educational agency

(c) If the hearing required in paragraph (2) of subsection

(b) of this section is conducted by a local educational agen-

cy or an intermediary educational unit, any party aggrieved

by the findings and decision rendered in such a hearing

may appeal to the State educational agency which shall

conduct an impartial review of such hearing. The officer

conducting such review shall make an independent deci-

sion upon completion of such review.

Enumeration of rights accorded parties to hearings

(d) Any party to any hearing conducted pursuant to

subsections (b) and (c) of this section shall be accorded (1)

the right to be accompanied and advised by counsel and by

individuals with special knowledge or training with respect

to the problems of handicapped children, (2) the right to

present evidence and confront, cross-examine, and compel

the attendance of witnesses, (3) the right to a written or

electronic verbatim record of such hearing, and (4) the

right to written findings of fact and decision (which find-

ings and decisions shall also be transmitted to the ad-

36a

visory panel established pursuant to section 1413(a)(12) of

this title).

Civil action; jurisdiction

(e)(1) A decision in a hearing conducted pursuant to

paragraph (2) of subsection (b) of this section shall be

final, except that any party involved in such hearing may

appeal such decision under the provisions of subsection (c)

and paragraph (2) of this subsection. A decision made

under subsection (c) of this section shall be final, except

that any party may bring an action under paragraph (2) of

this subsection. A decision made under subsection (c) of

this section shall be final, except that any party may bring

an action under paragraph (2) of this subsection.

(2) Any party aggrieved by the findings and decision

made under subsection (b) of this section who does not

have the right to an appeal under subsection (c) of this sec-

tion, and any party aggrieved by the findings and decision

under subsection (c) of this section, shall have the right to

bring a civil action with respect to the complaint presented

pursuant to this section, which action may be brought in

any State court of competent jurisdiction or in a district

court of the United States without regard to the amount in

controversy. In any action brought under this paragraph

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 deter-

mines is appropriate.

(3) During the pendency of any proceedings conducted

pursuant to this section, unless the State or local educa-

tional agency and the parents or guardian otherwise agree,

the child shall remain in the then current educational place-

ment of such child, or, if applying for initial admission to

37a

a public school, shall, with the consent of the parents or

guardian, be placed in the public school program until all

such proceedings have been completed.

(4) The district courts of the United States shall have

jurisdiction of actions brought under this subsection

without regard to the amount in coutroversy.

Pub.L. 91-230, Title VI, § 615, as added Pub. L. 94-142,

§ 5(a), Nov. 29, 1975, 89 Stat. 788.

Rules and Regulations U.S. Department of Education

45 CFR 121a.1 et seq.

Renumbered to 34 C.F.R. Part 300 et seq.

Subpart A — General

PURPOSE APPLICABILITY, AND GENERAL

PROVISIONS REGULATIONS

Reg. 121a.1 Purpose.

The purpose of this part is:

(a) To insure that all handicapped children have

available to them a free appropriate public education

which includes special education and related services to

meet their unique needs.

(b) To insure that the rights of handicapped children

and their parents are protected.

(c) To assist States and localities to provide for the

education of all handicapped children, and

(d) To assess and insure the effectiveness of efforts to

educate those children.

(20 U.S.C. 1401 Note)

38a

Reg. 121a.2 Applicability to State, local, and private agen-

cies.

(a) States. This part applies to each State which receives

payment under Part B of the Education of the Handi-

capped Act.

(b) Public agencies within the State. The annual pro-

gram plan is submitted by the State educational agency on

behalf of the State as a whole. Therefore, the provisions of

this part apply to all political subdivisions of the State that

are involved in the education of handicapped children.

These would include: (1) The State educational agency, (2)

local educational agencies and intermediate educational

units, (3) other State agencies and schools (such as Depart-

ments of Mental Health and Welfare and State schools for

the deaf or blind), and (4) State correctional facilities.

(c) Private schools and facilities. Each public agency in

the State is responsible for insuring that the rights and pro-

tections under this part are given to children referred to or

placed in private schools and facilities by that public agen-

cy.

(See § 121a.400-121a.403)

(20 U.S.C. 1412(1), (6); 1413(a); 1413(a)(4)(B) )

Comment. The requirements of this part are binding on

each public agency that has direct or delegated authority

to provide special education and related services in a State

that receives funds under Part B of the Act, regardless of

whether that agency is receiving funds under Part B.

Reg. 121a.4 Free appropriate public education.

As used in this part, the term “free appropriate public

education” means special education and related services

which:

39a

(a) Are provided at public expense, under public super-

vision and direction, and without charge.

(b) Meet the standards of the State educational agency,

including the requirements of this part,

(c) Include preschool, elementary school, or secondary

school education in the State involved, and

(d) Are provided in conformity with an individualized

education program which meets the requirements under

§§ 121a.340-121a.349 of Subpart C.

(20 U.S.C. 1401(18) )

Reg. 121a.5 Handicapped children.

(a) As used in this part, the term “handicapped children”

means those children evaluated in accordance with

§§ 121a.530-121a.534 as being mentally retarded, hard of

hearing, deaf, speech impaired, visually handicapped,

seriously emotionally disturbed, orthopedically impaired,

other health impaired, deaf-blind, multi-handicapped, or

as having specific learning disabilities, who because of

those impairments need special education and related ser-

vices.

(b) The terms used in this definition are defined as

follows:

(1) “Deaf” means a hearing impairment which is so

severe that the child is impaired in processing linguistic in-

formation through hearing, with or without amplification,

which adversely affects educational performance.

(2) “Deaf-blind” means concomitant hearing and visual

impairments, the combination of which causes such severe

communication and other developmental and educational

problems that they cannot be accommodated in special

education programs solely for deaf or blind children.

40a

(3) “Hard of Hearing” means a hearing impairment,

whether permanent or fluctuating, which adversely affect a

child’s educational performance but which is not included

under the definition of “deaf” in this section.

(4) “Mentally retarded” means significantly subaverage

general intellectual functioning existing concurrently with

deficits in adaptive behavior and manifested during the

developmental period, which adversely affects a child’s

educational performance.

(5) “Multihandicapped” means concomitant im-

pairments (such as mentally retarded-blind, mentally

retarded-orthopedically impaired, etc.), the combination

of which causes such severe educational problems that

they cannot be accommodated in special education pro-

grams solely for one of the impairments. The term does

not include deaf-blind children.

(6) “Orthopedically impaired” means a severe or-

thopedic impairment which adversely affects a child’s

educational performance. The term includes impairments

caused by congenital anomaly (e.g., clubfoot, absence of

some member, etc.), impairments caused by disease (e.g.

poliomyelitis, bone tuberculosis, etc.), and impairments

from other causes (e.g., cerebral palsy, amputations, and

fractures or burns which cause contractures).

(7) “Other health impaired” means

(i) having an autistic condition which is manifested by

severe communication and other developmental and

educational problems; or

(ii) having limited strength, vitality or alertness, due to

chronic or acute health problems such as a heart condi-

tion, tuberculosis, rheumatic fever, nephritis, asthma,

sickle cell anemia, hemophilia, epilepsy, lead poisoning,

4la

leukemia, or diabetes, which adversely affects a child’s

educational performance.

(8) “Seriously emotionally disturbed” is defined as

follows:

(i) The term means a condition exhibiting one or more

of ihe following characteristics over a long period of time

and to a marked degree, which adversely affects educa-

tional performance:

(A) An inability to learn which cannot be explained by in-

tellectual, sensory, or health factors;

(B) An inability to build or maintain satisfactory in-

terpersonal relationships with peers and teachers;

(C) Inappropriate types of behavior or feelings under

normal circumstances;

(D) A general pervasive mood of unhappiness or depres-

sion; or

(E) A tendency to develop physical symptoms or fears

associated with personal or school problems.

(ii) The term includes children who are schizophrenic.

The term does not include children who are socially

maladjusted, unless it is determined that they are seriously

emotionally disturbed.

(9) “Specific learning disability” means a disorder in one

or more of the basic psychological processes involved in

understanding or in using language, spoken or written,

which may manifest itself in an imperfect ability to listen,

think, speak, read, write, spell, or to do mathematical

calculations. The term includes such conditions as percep-

tual handicaps, brain injury, minimal brain disfunction,

dyslexia, and developmental aphasia. The term does not

42a

include children who have learning problems which are

primarily the result of visual, hearing, oi motor hand-

icaps, of mental retardation, of emotional disturbance,

or of environmental, cultural, or economic disadvantage.

(10) “Speech impaired” means a communication

disorder such as stuttering, impaired articulation, a

language impairment, or a voice impairment, which

adversely affect a child’s educational performance.

(11) “Visually handicapped” means a visual impairment

which, even with correction, adversely affects a child’s

educational performance. The terms includes both partial-

ly seeing and blind children.

(20 U.S.C. 1401(1), (15) )

{[Subparagraph (b)(9) amended in 42 Fed. Reg. 65083

(Dec. 29, 1977). ]

{Subparagraph (b)(7) and (b)(8) amended in 46 Fed.

Reg. 3865 (Jan. 16, 1981). ]

+ * &*

Reg. 121a.13 Related services.

(a) As used in this part, the term “related services”

means transportation and such developmental, corrective,

and other supportive services as are required to assist a

handicapped child to benefit from special education, and

includes speech pathology and audiology, psychological

services, physical and occupational therapy, recreation,

early identification and assessment of disabilities in

children, counseling services, and medical services for

diagnostic or evaluation purposes. The term also includes

school health services, social work services in schools, and

parent counseling and training.

43a

(b) The terms used in this definition are defined as

follows:

(1) “Audiology” includes:

(i) Identification of children with hearing loss;

(ii) Determination of the range, nature, and degree of

hearing loss, including referral for medical or other pro-

fessional attention for the habilitation of hearing;

(iii) Provision of habilitative activities, such as

language habilitation, auditory training, speech reading

(lipreading), hearing evaluation, and speech conservation;

(iv) Creation and administration of programs for

prevention of hearing loss;

(v) Counseling and guidance of pupils, parents, and

teachers regarding hearing loss;

(vi) Determination of the child’s need for group and in-

dividual amplification, selecting and fitting an appropriate

aid, and evaluating the effectiveness of amplification.

(2) “Counseling services” means services provided by

qualified social workers, psychologists, guidance

counselors, or other qualified personnel.

(3) “Early identification” means the implementation of a

formal plan for identifying a disability as early as possible

in a child’s life.

(4) “Medical services” means services provided by a

licensed physician to determine a child’s medically related

handicapping condition which results in the child’s need

for special education and related services.

(5) “Occupational therapy” includes:

(i) Improving, developing or restoring functions im-

paired or lost through illness, injury, or deprivation;

44a

(ii) Improving ability to perform tasks for independent

functioning when functions are impaired or lost; and

(iii) Pre enting, through early intervention, initial or

further impairment or loss of function.

(6) “Parent counseling and training” means assisting

parents in understanding the special needs of their child

and providing parents with information about child

development.

(7) “Physical therapy” means service provided by a

qualified physical therapist.

(8) “Psychological Services” include:

(i) Administering psychological and educational tests,

and other assessment procedures;

(ii) Interpreting assessment results;

(iii) Obtaining, integrating, and interpreting informa-

tion about child behavior and conditions relating to learn-

ing.

(iv) Consulting with other staff members in planning

school programs to meet the special needs of children as

indicated by psychological tests, interviews, and

behavioral evaluations; and

(v) Planning and managing a program of psychological

services, including psychological counseling for children

and parents.

(9) “Recreation” includes:

(i) Assessment of leisure function;

(ii) Therapeutic recreation services;

(iii) Recreation programs in schools and community

agencies; and

|

45a

(iv) Leisure education.

(10) “School health services” means services provided by

a qualified school nurse or other qualified person.

(11) “Social work services in schools” include:

(i) Preparing a social or developmental history on a hand-

icapped child;

(ii) Group and individual counseling with the child and

family;

(iii) Working with those problems in a child’s living

situation (home, school, and community) that affects the

child’s adjustments in school; and

(iv) Mobilizing school and community resources to

enable the child to receive maximum benefit from his or

her educational program.

(12) “Speech pathology” includes:

(i) Identification of children with speech or language

disorders;

(ii) Diagnosis and appraisal of specific speech or

language disorders;

(iii) Referral for medical or other professional attention

necessary for the habilitation of speech of language

disorders;

(iv) Provisions of speech and language services for the

habilitation or prevention of communicative disorders;

and

(v) Counseling and guidance of parents, children, and

teachers regarding speech and language disorders.

(13) “Transportation” includes:

46a

(i) Travel to and from school and between schools,

(ii) Travel in and around school buildings, and

(iii) Specialized equipment (such a special or adapted

buses, lifts, and ramps), if required to provide special

transportation for a handicapped child.

(20 U.S.C. 1401(17) )

Comment. With respect to related services, the Senate

Report states:

The Committee bill provides a definition of “related ser-

vices,” making clear that all such related services may not

be required for each individual child and that such term in-

cludes early identification and assessment of handicapping

conditions and the provision of servies to minimize the ef-

fects of such conditions.

(Senate Report No. 94-168, p. 12 (1975) )

The list of related services is not exhaustive and may in-

clude other developmental, corrective, or supportive ser-

vices (such as artistic and cultural programs, and art,

music, and dance therapy), if they are required to assist a

handicapped child to benefit from special education.

There are certain kinds of service which might be pro-

vided by persons from varying professional backgrounds

and with a variety of operational titles, depending upon

requirements in individual States. For example, counseling

services might be provided by social workers,

psychologists, or guidance counselors; and psychological

testing might be done by qualified psychological ex-

aminers, psychometrists, or psychologists, depending

upon State standards.

Each related service defined under this part may include

appropriate administrative and supervisory activities that

47a

are necessary for program planning, management, and

evaluation.

Reg. 121a.14 Special Education.

(a)(1) As used in this part, the term “special education”

means specially designed instruction, at no cost to the

parent, to meet the unique needs of a handicapped child,

including classroom instruction, instruction in physical

education, home instruction, and instruction in hospitals

and institutions.

(2) The term includes speech pathology, or any other

related service, if the service consists of specially designed

instruction, at no cost to the parents, to meet the unique

needs of a handicapped child, and is considered “special

education” rather than a “related service” under State stan-

dards.

(3) The term also includes vocational education if it con-

sists Of specially designed instruction, at no cost to the

parents, to meet the unique needs of a handicapped child.

(b) The terms in this definition are defined as follows:

(1) “At no cost” means that all specially designed 1. :

struction is provided without charge, but does not

preclude incidental fees which are normally charged to

nonhandicapped students or their parents as a part of the

regular education program.

(2) “Physical education” is defined as follows:

(i) The term means the development of:

(A) Physical and motor fitness;

(B) Fundamental motor skills and patterns; and

48a

(C) Skills in aquatics, dance, and individual and group

games and sports (including intramural and lifetime

sports).

(ii) The term includes special physical education,

adapted physical education, movement education, and

motor development.

(20 U.S.C. 1401(16) )

(3) “Vocational education” means organized educa-

tional programs which are directly related to the prepara-

tion of individuals for paid or unpaid employment, or for

additional preparation for a career requiring other than a

baccalaureate or advanced degree.

(20 U.S.C. 1401(16) )

Comment. (1) The definition of “special education” is a

particularly important one under these regulations, since a

child is not handicapped unless he or she needs special

education. (See the definition of “handicapped children”

in section 121a.5.) The definition of “related services” (sec-

tion 121a.13) also depends on this definition, since a

related service must be necessary for a child to benefit

from special education. Therefore, if a child does not need

special education, there can be no “related services,” and

the child (because not “handicapped”) is not covered under

the Act.

(2) The above definition of vocational education is

taken from the Vocational Education Act of 1963, as

amended by Pub. L. 94-482. Under that Act, “vocational

education” includes industrial arts and consumer and

homemaking education programs.

* * *

49a

Subpart C — Services

* . *

INDIVIDUALIZED EDUCATION PROGRAMS

Reg. 121a.340 Definition.

As used in this part, the term “individualized education

program” means a written statement for a handicapped

child that is developed and implemented in accordance

with Regs. 121a.341-121a.349.

(20 U.S.C. 1401(19))

Reg. 121a.343 Meetings.

(a) General. Each public agency is responsible for ini-

tiating and conducting meetings for the purpose of

developing, reviewing, and revising a handicapped child’s

individualized education program.

(b) Handicapped children currently served. If the public

agency has determined that a handicapped child will

receive special education during school year 1977-1978, a

meeting must be held early enough to insure that an in-

dividualized education program is developed by October

1, 1977.

(c) Other handicapped children. For a handicapped

child who is not included under paragraph (b) of this sec-

tion, a meeting must be held within thirty calendar days of

a determination that the child needs special education and

related services.

(d) Review. Each public agency shall initiate and con-

duct meetings to periodically review each child’s in-

dividualized education program and if appropriate revise

its provisions. A meeting must be held for this purpose at

least once a year.

50a

(20 U.S.C. 1412(2)(B), (4), (6); 1414(a)(5))

Comment. The dates on which agencies must have in-

dividualized education programs (IEPs) in effect are

specified in Reg. 121a.342 (October 1. 1977, and the

beginning of each school year thereafter). However, ex-

cept for new handicapped children (i.e., those evaluated

and determined to need special education after October 1,

1977), the timing of meetings to develop, review, and

revise IEPs is left to the discretion of each agency.

In order to have IEPs in effect by the dates in Reg.

121a.342, agencies could hold meetings at the end of the

school year or during the summer preceding those dates.

In meeting the October 1, 1977 timeline, meetings could be

conducted up through the October 1 date. Thereafter,

meetings may be held any time throughout the year, as

long as IEPs are in effect at the beginning of each school

year.

The statute requires agencies to hold a meeting at least

once each year in order to review, and if appropriate

revise, each child’s IEP. The timing of those meetings

could be on the anniversary date of the last IEP meeting

on the child, but this is left to the discretion of the agency.

Reg. 121a.344 Participants in meetings.

(a) General. The public agency shall insure that each

meeting includes the following participants:

(1) A representative of the public agency, other than the

child’s teacher, who is qualified to provide, or supervise

the provision of, special education.

(2) The child’s teacher.

(3) One or both of the child’s parents, subject to Reg.

121a.345.

5la

(4) The child, where appropriate.

(5) Other individuals at the discretion of the parent or

agency.

(b) Evaluation personnel. For a handicapped child who

has been evaluated for the first time, the public agency

shall insure:

(1) That a member of the evaluation team participates

in the meeting; or

(2) That the representative of the public agency, the

child’s teacher, or some other person is present at the

meeting, who is knowledgeable about the evaluation pro-

cedures used with the child and is familiar with the results

of the evaluation.

(20 U.S.C. 1401(19); 1412(2)(B), (4), (6); 1414(a)(5) )

Comment. 1. In deciding which teacher will participate

in meetings on a child’s individualized education program,

the agency may wish to consider the following

possibilities:

(a) For a handicapped child who is receiving special

education, the “teacher” could be the child’s special educa-

tion teacher. If the child’s handicap is a speech impair-

ment, the “teacher” could be the speech-language

pathologist.

(b) For a handicapped child who is being considered for

placement in special education, the “teacher” could be the

child’s regular teacher, or a teacher qualified to provide

education in the type of program in which the child may be

placed, or both.

(c) If the child is not in school or has more than one

teacher, the agency may designate which teacher will par-

ticipate in the meeting.

Sa lk a a at

52a

2. Either the teacher or the agency representative should

be qualified in the area of the child’s suspected disability.

3. For a child whose primary handicap is a speech im-

pairment, the evaluation personnel participating under

paragraph (b)(1) of this section would normally be the

speech-language pathologist.

Reg. 121a.345 Parent participation.

(a) Each public agency shall take steps to insure that one

or both of the parents of handicapped child are present at

each meeting or are afforded the opportunity to par-

ticipate, including:

(1) Motifying parents of the meeting early enough to in-

sure that they will have an opportunity to attend; and

(2) Scheduling the meeting at a mutually agreed on time

and place.

(b) The notice under paragraph (a)(1) of this section

must indicate the purpose, time, and location of the

meeting, and who will be in attendance.

(c) If neither parent can attend, the public agency shall

use Other methods to insure parent participation, in-

cluding individual or conference telephone calls.

(d) A meeting may be conducted without a parent in at-

tendance if the public agency is unable to convince the

parents that they should attend. In this case the public

agency must have a record of its attempts to arrange a

mutually agreed on time and place such as:

(1) Detailed records of telephone calls made or attemp-

ted and the results of those calls.

(2) Copies of correspondence sent to the parents and

any responses received, and

53a

(3) Detailed records of visits made to the parent’s home

or place of employment and the results of those visits.

(e) The public agency shall take whatever action is

necessary to insure that the parent understands the pro-

ceedings at a meeting, including arranging for an inter-

preter for parents who are deaf or whose native language

is other than English.

(f) The public agency shall give the parent, on request, a

copy of the individualized education program.

(20 U.S.C, 1401(19); 1412(B), (4), (6); 1414(a)(S) )

Comment, The notice in paragraph (a) could also in-

form parents that they may bring other people to the

meeting. As indicated in paragraph (c), the procedure used

to notify parents (whether oral or written or both) is left to

the discretion of the agency, but the agency must keep a

record of its efforts to contact parents.

Reg. 121a.346 Content of individualized education pro-

gram.

The individualized education program for each child must

include:

(a) A statement of the child’s present levels of educa-

tional performance;

(b) A statement of annual goals, including short term in-

structional objectives;

(c) A statement of the specific special education and

related services to be provided to the child, and the extent

to which the child will be able to participate in regular

educational programs;

(d) The projected dates for initiation of services and the

anticipated duration of the services; and

54a

(e) Appropriate objective criteria and evaluation pro-

cedures and schedules for determining, on at least an an-

nual basis, whether the short term instructional objectives

are being achieved. .

(20 U.S.C. 1401(19); 1412(2)(B), (4), (6); 1414(a)(5);

Senate Report No. 94-168, p. 11 (1975) )

Subpart E — Procedural Safeguards

DUE PROCESS PROCEDURES FOR PARENTS

AND CHILDREN

Reg. 121a.500 Definitions of “consent,” “evaluation,” and

“personally identifiable.”

As used in this part: “Consent” means that: (a) The

parents has been fully informed of all information rele-

vant to the activity for which consent is sought, in his or

her native language, or other mode of communication;

(b) The parent understands and agrees in writing to the

carrying out of the activity for which his or her consent is

sought, and the consent describes that activity and lists the

records (if any) which will be released and to whom; and

(c) The parent understands that the granting of consent

is voluntary on the part of the parent and may be revoked

at any time.

“Evaluation” means procedures used in accordance with

Regs. 121a.530-121a.534 to determine whether a child is

handicapped and the nature and extent of the special

education and related services that the child needs. The

term means procedures used selectively with an individual

child and does not include basic tests administered to or

procedures used with all children in a school, grade, or

class.

55a

“Personally identifiable” means that information in-

cludes:

(a) The name of the child, the chiid’s parent, or other

family member;

(b) The address of the child;

(c) A personal identifier, such as the child’s social securi-

ty number or student number; or

(d) A list of personal characteristics or other informa-

tion which would make it possible to identify the child

with reasonable certainty.

(20) U.S.C. 1415, 1417(c) )

Reg. 121a.501 General responsibility of public agencies.

Each State educational agency shall insure that each

public agency establishes and implements procedural

safeguards which meet the requirements of Regs.

121a.500-121a.514.

(20 U.S.C. 1415(a) )

Reg. 121a.502 Opportunity to examine records.

The parents of a handicapped child shall be afforded in ac-

cordance with the procedures in Regs. 12a.562-121a.569

an opportunity to inspect and review all education records

with respect to:

(a) The identification, evaluation, and educational

placement of the child, and

(b) The provision of a free appropriate public education

to the child.

(20 U.S.C. 1415(b)(1)(A) )

56a

Reg. 121a.503 Independent educational evaluation.

(a) General. (1) The parents of a handicapped child have

the right under this part to obtain an independent educa-

tional evaluation of the child, subject to paragraphs (b)

through (e) of this section.

(2) Each public agency shall provide to parents, on re-

quest, information about where an independent educa-

tional evaluation may be obtained.

(3) For the purposes of this part:

(i) “Independent educational evaluation” means an

evaluation conducted by a qualified examiner who is not

employed by the public agency responsible for the educa-

tion of the child in question.

(ii) “Public expense” means that the public agency either

pays for the full cost of the evaluation or insures that the

evaluation is otherwise provided at no cost to the parent,

consistent with Reg. 121a.301 of Subpart C.

(b) Parent right to evaluation at public expense. A

parent has the right to an independent educational evalua-

tion at public expense if the parent disagrees with an

evaluation obtained by the public agency. However, the

public agency may initiate a hearing under Reg. 121a.506

of this subpart to show that its evaluation is appropriate. ,

If the final decision is that the evaluation is appropriate,

the parent still has the right to an independent educational

evaluation, but not at public expense.

(c) Parent initiated evaluations. \f the parent obtains an

independent educational evaluation at private expense, the

results of the evaluation;

(1) Must be considered by the public agency in any deci-

sion made with respect to the provision of a free ap-

propriate public education to the child, and

57a

(2) May be presented as evidence at a hearing under this

subpart regarding that child.

(d) Requesis for evaluations by hearing officers. lf a

hearing officer requests an independent educational

evaluation as part of a hearing, the cost of the evaluation

must be at public expense.

(e) Agency criteria. Whenever an independent evalua-

tion is at public expense, the criteria under which the

evaluation is obtained, including the location of the

evaluation and the qualifications of the examiner, must be

the same as the criieria which the public agency uses when

it initiates an evaluation.

(20 U.S.C. 1415(b)(1)(A) )

Reg. 121a.504 Prior notice; parent consent.

(a) Notice. Written notice which meets the requirements

under Reg. 121a.505 must be given to the parents of a han-

dicapped child a reasonable time before the public agency:

(1) Proposes to initiate or change the identification,

evaluation, or educational placement of the child or the

provisions of a free appropriate public education to the

child, or

(2) Refuses to initiate or change the identification,

evaluation, or educational placement of the child or the

provision of a free appropriate public education to the

child.

(b) Consent. (1) Parental consent must be obtained

before:

(i) Conducting a preplacement evaluation; and

(ii) Initial placement of a handicapped child in a pro-

gram providing special education and related services.

58a

(2) Except for preplacement evaluation and initial place-

ment, consent may not be required as a condition of any

benefit to the parents or child.

(c) Procedures where parent refuses consent. (1) Where

State law requires parental consent before a handicapped

child is evaluated or initially provided special education

and related services, State procedures govern the public

agency in overriding a parent’s refusal to consent.

(2)(i) Where there is no State law requiring consent

before a handicapped child is evaluated or initially provid-

ed special education and related services, the public agency

may use the hearing procedures in Regs. 12ia.506-121a.508

to determine if the child may be evaluated or initia!ly pro-

vided special education and related services without paren-

tal consent.

(ii) If the hearing officer upholds the agency, the agency

may evaluate or initially provide special education and

related services to the child without the parent’s consent,

subject to the parent’s rights under Regs.

121a.510-121a.513.

(20 U.S.C. 1415(b)(1)(C), (D) )

Comment, 1. Any changes in a child’s special education

program, after the initial placement, are not subject to

parental consent under Part B, but are subject to the prior

notice requirement in paragraph (a) and the individualized

education program requirements in Subpart C.

2. Paragraph (c) means that where State law requires

parental consent before evaluation or before special

education and related services are initially provided, and

the parent refuses (or otherwise withholds) consent, State

procedures, such as obtaining a court order authorizing

the public agency to conduct the evaluation or provide the

education and related services, must be followed.

59a

If, however, there is no legal requirement for consent

outside of these regulations, the public agency may use the

due process procedures under this subpart to obtain a deci-

sion to allow the evaluation or services without parental

consent. The agency must notify the parent of its actions,

and the parent has appeal rights as well as rights at the

hearing itself.

Reg. 121a.505 Content of notice.

(a) The notice under Reg. 121a.504 must include:

(1) A full explanation of all of the procedural

safeguards available to the parents under Subpart E;

(2) A description of the action proposed or refused by

the agency, an explanation of why the agency proposes or

refuses to take the action, and a description of any options

the agency considered and the reasons why those options

were rejected;

(3) A description of each evaluation procedure, test,

record, or report the agency uses as a basis for the pro-

posal or refusal; and

(4) A description of any other factors which are relevant

to the agency’s proposal or refusal.

(b) The notice must be:

(1) Written in language understandable to the general

public, and

(2) Provided in the native language of the parent or

other mode of communication used by the parent, unless it

is clearly not feasible to do so.

(c) If the native language or other mode of communica-

tion of the parent is not a written language, the State or

local educational agency shall take steps to insure:

60a

(1) That the notice is translated orally or by other means

to the parent in his or her native language or other mode

of communication;

(2) That the parent understands the content of the

notice, and

(3) That there is written evidence that the requirements

in paragraph (c) (1) and (2) of this section have been met.

(20 U.S.C. 1415(b)(1)(D) )

Reg. 121a.506 Impartial due process hearing.

(a) A parent or a public educational agency may initiate

a hearing on any of the matters described in Reg.

121a.504(a)(1) and (2).

(b) The hearing must be conducted by the State educa-

tiunal agency or the public agency directly responsible for

the education of the child, as determined under State

statute, State regulation, or a written policy of the State

educational agency.

(c) The public agency shall inform the parent of any free

or low-cost legal and other relevant services available in

the area if:

(1) The parent requests the information; or

(2) The parent or the agency initiates a hearing under

this section.

(20 U.S.C. 1416(b)(2) )

Comment. Many States have pointed to the success of

using mediation as an intervening step prior to conducting

a formal due process hearing. Although the process of

mediation is not required by the statute or these regula-

tions, an agency may wish to suggest mediation in disputes

6la

concerning the identification, evaluation, and educational

placement of handicapped children, and the provision of a

free appropriate public education to those children.

Mediations have been conducted by members of State

educational agencies or local educational agency personnel

who were not previously involved in the particular case. In

many cases, mediation leads to resolution of differences

between parents and agencies without the development of

an adversarial relationship and with minimal emotional

stress. However, mediation may not be used to deny or

delay a parent’s rights under this subpart.

Reg. 121a.507 Impartial hearing officer.

(a) A hearing may not be conducted:

(1) By a person who is an employee of a public agency

which is involved in the education or care of the child, or

(2) By any person having a personal or professional in-

terest which would conflict with his or her objectivity in

the hearing.

(b) A person who otherwise qualifies to conduct a hear-

ing under paragraph (a) of this section is not an employee

of the agency solely because he or she is paid by the agency

to serve as a hearing officer.

(c) Each public agency shall keep a list of the persons

who serve as hearing officers. The list must include a state-

ment of the qualifications of each of those persons.

(20 U.S.C. 1414(b)(2) )

Reg. 121a.508 Hearing rights.

(a) Any party to a hearing has the right to:

(1) Be accompanied and advised by counsel and by in-

62a

dividuals with special knowledge or training with respect

to the problems of handicapped children;

(2) Present evidence and confront, cross-examine, and

compel the attendance of witnesses;

(3) Prohibit the introduction of any evidence at the

hearing that has not been disclosed to that party at least

five days before the hearing.

(4) Obtain a written or electronic verbatim record of the

hearing;

(5) Obtain written findings of fact and decisions. (The

public agency shall transmit those findings and decisions,

after deleting any personally identifiable information, to

the State advisory panel established under Subpart F).

(b) Parents invol:’ed in hearings must be given the right

to:

(1) Have the child who is the subject of the hearing pre-

sent; and

(2) Open the hearing to the public.

(20 U.S.C. 1415(d) )

Reg. 121.509 Hearing decision; appeal.

A decision made in a hearing conducted under this sub-

part is final, unless a party to the hearing appeals the deci-

sion under Reg. 121a.510 or 121a.511.

Reg. 121a.510 Administrative appeal; impartial review.

(a) If the hearing is conducted bya public agency other

than the State educational agency, any party aggrieved by

the findings and decision in the hearing may appeal to the

State educational agency.

63a

(b) If there is an appeal, the State educational agency

shall conduct an impartial review of the hearing. The of-

ficial conducting the review shall:

(1) Examine the entire hearing record;

(2) Insure that the procedures at the hearing were consis-

tent with the requirements of due process;

(3) Seek additional evidence if necessary. If a hearing is

held to receive additional evidence, the rights in Reg.

121a.508 apply;

(4) Afford the parties an opportunity for oral or written

argument, or both, at the discretion of the reviewing of-

ficial;

(5) Make an independent decision on completion of the

review; and

(6) Give a copy of written findings and the decision to

the parties.

(c) The decision made by the reviewing official is final,

unless a party brings a civil action under Reg. 121a.512.

(20 U.S.C. 1415(c), (d); H.Rep. No. 94-664, at p. 49

(1975) )

Comment. 1. The State educational agency may con-

duct its review either directly or through another State

agency acting on its behalf. However, the State educa-

tional agency remains responsible for the final decision on

review.

2. All parties have the right to continue to be represented

by counsel at the State administrative review level,

whether or not the reviewing official determines that a fur-

ther hearing is necessary. If the reviewing official decides

to hold a hearing to receive additional evidence, the other

rights in Reg. 121a.508, relating to hearings, also apply.

64a

Reg. 121a.511 Civil action,

Any party aggrieved by the findings and decision made

in a hearing who does not have the right to appeal under

Reg. 121a.510 of this subpart, and any party aggrieved by

the decision of a reviewing officer under Reg. 121a.510

has the right to bring a civil action under Section 615(e)(2)

of the Act.

(20 U.S.C. 1415)

Reg. 121a.512 Timeliness and convenience of hearings and

reviews.

(a) The public agency shall insure that not later than 45

days after the receipt of a request for a hearing;

(1) A final decision is reached in the hearing; and

(2) A copy of the decision is mailed to each of the par-

ties.

(b) The State educational agency shall insure that not

later than 30 days after the receipt of a request for a

review:

(1) A final decision is reached in the review; and

(2) A copy of the decision is mailed to each of the par-

ties.

(c) A hearing or reviewing officer may grant specific ex-

tensions of time beyond the periods set out in paragraphs

(a) and (b) of this section at the request of either party.

(d) Each hearing and each review involving oral

arguments must be conducted at a time and place which is

reasonably convenient to the parents and child involved.

(20 U.S.C. 1415)

65a

Reg. 121a.513 Child's status during proceedings.

(a) During the pendency of any administrative or judicial

proceeding regarding a complaint, unless the public agen-

cy and the parents of the child agree otherwise, the child

involved in the complaint must remain in his or her present

educational placement.

(b) If the complaint involves an application for initial

admission to public school, the child, with the consent of

the parents, must be placed in the public school program

until the completion of all the proceedings.

(20 U.S.C. 1415(e)(3) )

Comment. Reg. 121a.513 does not permit a child’s

placement to be changed during a complaint proceeding,

unless the parents and agency agree otherwise. While the

placement may not be changed, this does not preclude the

agency from using its normal procedures for dealing with

children who are endangering themselves or others.

Reg. 121a.514 Surrogate parents.

(a) General. Each public agency shall insure that the

rights of a child are protected when:

(1) No parent (as defined in Reg. 121a.10) can be iden-

tified;

(2) The public agency, after reasonable efforts, cannot

discover the whereabouts of a parent; or

(3) The child is a ward of the State under the laws of that

State.

(b) Duty of public agency. The duty of a public agency

under paragraph (a) of this section includes the assignment

of an individual to act as a surrogate for the parents. This

must include a method (1) for determining whether a child

66a

needs a surrogate parent, and (2) for assigning a surrogate

parent to the child.

(c) Criteria for selection of surrogates. (1) The public

agency may select a surrogate parent in any way permitted

under State law.

(2) Public agencies shall insure that a person selected as

a surrogate:

(i) Has no interest that conflicts with the interest of the

child he or she represents; and

(ii) Has knowledge and skills, that insure adequate

representation of the child.

(d) Non-employee requirement; compensation, (1) A

person assigned as a surrogate may not be an employee of

a public agency which is involved in the education or care

of the child.

(2) A person who otherwise qualifies to be a surrogate

parent under paragraph (c) and (d)(1) of this section, is not

an employee of the agency solely because he or she is paid

by the agency to serve as surrogate parent.

(e) Responsibilities. The surrogate parent may represent

the child in all matters relating to:

(1) The identification, evaluation, and educational

placement of the child, and

(2) The provision of a free appropriate public education

to the child.

(20 U.S.C. 1415(b)(1)(B))

*

* *

67a

PROTECTION IN EVALUATION

PROCEDURES

Reg. 121a.530 General.

(a) Each State educational agency shall insure that each

public agency establishes and implements procedures

which meet the requirements of Regs. 121a.530-121a.534.

(b) Testing and evaluation materials and procedures used

for the purposes of evaluation and placement of hand-

icapped children must be selected and administered so as

not to be racially or culturally discriminatory.

(20 U.S.C, 1412(5)(C) )

Reg. 121a.531 Preplacement evaluation.

Before any action is taken with respect to the initial place-

ment of a handicapped child in a special educational pro-

gram, a full and individual evaluation of the child’s educa-

tional needs must be conducted in accordance with the re-

quirements of Reg. 121a.532.

(20 U.S.C, 1412(5)(C) )

Reg. 121a.532 Evaluation procedures.

State and local agencies shall insure, at a minimum,

that:

(a) Tests and other evaluation materials:

(1) Are provided and administered in the child’s native

language or other mode of communication, unless it is

clearly not feasible to do so:

(2) Have been validated for the specific purpose for

which they are used; and

68a

(2) Have been validated for the specific purpose for

which they are used; and

(3) Are administered by trained personnel in confor-

mance with the instructions provided by their producers;

(b) Tests and other evaluation materials include those

tailored to assess specific areas of educational need and

not merely those which are designed to provide a single

general intelligence quotient;

(c) Tests are selected and administered so as best to en-

sure that when a test is administered to a child with im-

paired sensory, manual, or speaking skills, the test results

accurately reflect the child’s aptitude or achievement level

or whatever other factors the test purports to measure,

rather than reflecting the child’s impaired sensory,

manual, or speaking skills (except where those skills are

the factors which the test purports to measure);

(d) No single procedure is used as the sole criterion for

determining as an appropriate educational program for a

child; and

(e) The evaluation is made by a multidisciplinary team

or group of persons, including at least one teacher or other

specialist with knowledge in the area of suspected disabili-

ty.

(f) The child is assessed in all areas related to the

suspected disability, including, where appropriate, health,

vision, hearing, social and emotional status, general in-

telligence, academic performance, communicative status,

and motor abilities.

(20 U.S.C, 1412(5)(C) )

Comment. Children who have a speech impairment as

their primary handicap may not need a complete battery

69a

of assessments (e.g., psychological, physical, or adaptive

behavior). However, a qualified speech-language

pathologist would (1) evaluate each speech impaired child

using procedures that are appropriate for the diagnosis

and appraisal of speech and language disorders, and (2)

where necessary, make referrals for additional assessments

needed to make an appropriate placement decision.

Reg. 121a.533 Placement procedures.

(a) In interpreting evaluation data and in making place-

ment decisions, each public agency shall:

(1) Draw upon information from a variety of sources,

including aptitude and achievement tests, teacher recom-

mendations, physical condition, social or cultural

background, and adaptive behavior;

(2) Insure that information obtained from all of these

sources is documented and carefully considered;

(3) Insure that the placement decision is made by a

group of persons, including persons knowledgeable about

the child, the meaning of the valuation data, and the

placement options; and

(4) Insure that the placement decision is made in confor-

mity with the least restrictive environment rules in Regs.

121a.550-121a.554.

(b) If a determination is made that a child is handicap-

ped and needs special education and related services, an

individualized education program must be developed for

the child in accordance with Regs. 121a.340-121a.349 of

Subpart C.

(20 U.S.C. 1412(5)(C); 1414(a)(5S) )

Comment. Paragraph (a)(1) includes a list of examples

of sources that may be used by a public agency in making

70a

placement decisions. The agency would not have to use all

the sources in every instance. The point of the requirement

is to insure that more than one source is used in inter-

preting evaluation data and in making placement deci-

sions. For example, while all of the named sources would

have to be used for a child whose suspected disability is

mental retardation, they would not be necessary for cer-

tain other handicapped children, such as a child who has a

severe articulation disorder as his primary handicap. For

such a child, the speech-language pathologist, in comply-

ing with the multisource requirement, might use (1) a stand-

ardized test of articulation, and (2) observation of the

child’s articulation behavior in conversational speech.

Reg. 121a.534 Reevaluation.

Each State and local educational agency shall insure:

(a) That each handicapped child’s individualized educa-

tion program is reviewed in accordance with Regs.

121a.340-121a.349 of Subpart C, and

(b) That an evaluation of the child, based on procedures

which meet the requirements under Reg. 121a.532, is con-

ducted every three years or more frequently if conditions

warrant or if the child’s parent or teacher requests an

evaluation.

(20 U.S.C. 1412(5)(c))

ADDITIONAL PROCEDURES FOR EVALUATING

SPECIFIC LEARING DISABILITIES

Reg. 121a.540 Additional team members.

In evaluating a child suspected of having a specific lear-

ning disability, in addition to the requirements of

§ 121a.532, each public agency shall include on the

multidisciplinary evaluation team:

Tila

(a)(1) The child’s regular teacher; or

(2) If the child does not have a regular teacher, a regular

classroom teacher qualified to teach a child of his or her

age; or

(3) For a child of less than school age, an individual

qualified by the State educational agency to teach a child

of his or her age; and

(b) At least one person qualified to conduct individual

diagnostic examination of children, such as a school

psychologist, speech-language pathologist, or remedial

reading teacher.

(20 U.S.C. 1411 note.)

[Adopted in 43 Fed. Reg. 65083 (Dec. 298, 1977).]

Rey. 121a.541 Criteria for determining the existence of a

specific learning disability.

(a) A team may determine that a child has a specific

learning disability if:

(1) The child does not achieve commensurate with his or

her age and ability levels in one or more of the areas listed

in paragraph (a)(2) of this section, when provided with

learning experiences appropriate for the child’s age and

ability levels; and

(2) The team finds that a child has a severe discrepancy

between achievement and intellectual ability in one or

more of the following areas;

(i) Oral expression;

(ii) Listening comprehension;

(iii) Written expression

(iv) Basic reading skill;

72a

(v) Reading comprehension;

(vi) Mathematics calculation; or

(vii) Mathematic reasoning.

(b) The team may not identify a child as having a

specific learning disability if the severe discrepancy be-

tween ability and achievement is primarily the result of*

(1) A visual, hearing, or motor handicap;

(2) Mental retardation;

(3) Emotional disturbance; or

(4) Environmental, cultural or economic disadvantage.

(20 U.S.C. 1411 note.)

[Adopted in 43 Fed. Reg. 65083 (Dec. 29, 1977).]

Reg. 121a.542 Observation.

(a) At least one team member other than the child’s

regular teacher shall observe the child’s academic perfor-

mance in the regular classroom setting.

(b) In the case of a child of less than school age or out of

school, a team member shall observe the child in an en-

vironment appropriate for a child of that age.

(20 U.S.C. 1411 note.)

[Adopted in 43 Fed. Reg. 65083 (Dec. 29, 1977).]

Reg. 121a.543 Written report.

_ (a) The team shall prepare a written report of the results

of the evaluation.

(b) The report must include a statement of:

(1) Whether the child has a specific learning disability;

73a

(2) The basis for making the determination;

(3) The relevant behavior noted during the observation

of the child;

(4) The relationship of that behavior to the child’s

academic functioning;

(5) The educationally relevant medical findings, if any;

(6) Whether there is a severe discrepancy between

achievement and ability which is not correctable without

special education and related services; and

(7) The determination of the team concerning the effects

of environmental, cultural, or economic disadvantage.

(c) Each team member shall certify in writing whether

the report reflects his or her conclusion. If it does not

reflect his or her conclusion, the team member must sub-

mit a separate statement presenting his or her conclusions.

(20 U.S.C. 1411 note.)

[Adopted in 43 Fed. Reg. 65083 (Dec. 29, 1977).]}

* * *

LEAST RESTRICTIVE ENVIRONMENT

Reg. 121a.550 General.

(a) Each State educational agency shall insure that each

public agency establishes and implements procedures

which meet the requirements of Regs. 121a.550-121a.556.

(b) Each public agency shall insure:

(1) That to the maximum extent appropriate, handicap-

capped children, including children in public or private in-

stitutions or other care facilities, are educated with

children who are not handicapped, and

(2) That special classes, separate schooling or other

removal of handicapped children from the regular educa-

74a

tional environment occurs only when the nature or severity

of the handicap is such that education in regular classes

with the use of supplementary aids and services cannot be

achieved satisfactorily.

(20 U.S.C. 1412(5)(B); 1414(a)(1)(C)fiv) )

Reg. 121a.551 Continuum of alternative placements.

(a) Each public agency shall insure that a continuum of

alternative placements is available to meet the needs of

handicapped children for special education and related

services.

(b) The continuum required under paragraph (a) of this

section must:

(1) Include the alternative placements listed in the

definition of special education under Reg. 121a.13 of Sub-

part A (instruction in regular classes, special classes,

special schools, home instruction, and instruction in

hospitals and institutions), and

(2) Make provision for supplementary services (such as

resource room or itinerant instruction) to be provided in

conjunction with regular class placement.

(20 U.S.C. 1412(5)(B) )

Reg. 121a.552 Placements.

Each public agency shall insure that:

(a) Each handicapped child’s educational placement:

(1) Is determined at least annually.

(2) Is based on his or her individualized education pro-

gram, and

(3) Is as close as possible to the child’s home;

75a

(b) The various alternative placements included under

Reg. 121a.551 are available to the extent necessary to im-

plement the individualized education program for each

handicapped child;

(c) Unless a handicapped chik’s individualized educa-

tion program requires some other arrangement, the child

is educated in the school which he or she would attend if

not handicapped; and

(d) In selecting the least restrictive environment, con-

sideration is given to any potential harmful effect on the

child or on the quality of services which he or she needs.

(20 U.S.C. 1412(5)(B))

Comment. Reg. 121a.552 includes some of the main

factors which must be considered in determining the extent

to which a handicapped child can be educated with

children who are not handicapped. The overriding rule in

this section is that placement decisions must be made on

an individual basis. The section also requires each agency

to have various alternative placements available in order

to insure that each handicapped child receives an educa-

tion which is appropriate to his or her individual needs.

The analysis of the regulations for Section 504 of the

Rehabilitation Act of 1973 (45 CFR Part 84 — Appendix,

Paragraph 24) includes several points regarding educa-

tional placements of handicapped children which are perti-

nent to this section:

1. With respect to determining proper placements, the

analysis states: “* * * it should be stressed that, where a

handicapped child is so disruptive in a regular classroom

that the education of other students is significantly im-

paired, the needs of the handicapped child cannot be met

in that environment. Therefore regular placement would

not be appropriate to his or her need * * *.”

76a

2. With respect to placing a handicapped child in an alter-

nate setting, the analysis states that among the factors to be

considered in placing a child is the need to place the child as

close to home as possible. Recipients are required to take this

fact into account in making placement decisions. The parents’

right to challenge the placement of their child extends not only

to placement in special classes or separate schools, but also to

placement in a distant school, particularly in a residential pro-

gram. An equally appropriate education program may exist

closer to home; and this issue may be raised by the parent

under the due process provisions of this subject.

Reg. 121a.553 Non-academic settings.

In providing or arranging for the provision of non-

academic and extra-curricular services and activities, in-

cluding meals, recess periods, and the services and ac-

tivities set forth in Reg. 121a.306 of Subpart C, each

public agency shall insure that each handicapped child

participates with non-handicapped children in those ser-

vices and activities to the maximum extent appropriate to

the needs of that child.

(20 U.S.C. 1412(5)(B))

Comment. Reg. 121a.553 is taken from a new require-

ment in the final regulations for Section 504 of the

Rehabilitation Act of 1973. With respect to this require-

ment, the analysis of the Section 504 Regulations includes

the following statement: “[A new paragraph] specifies that

handicapped children must also be provided non-academic

services in as integrated a setting as possible. This require-

ment is especially important for children whose educa-

tional needs necessitate their being solely with other hand-

icapped children during most of each day. To the max-

imum extent appropriate, children in residential settings

are also to be provided opportunities for participation

with other children.” (45 CFR Part 84 — Appendix,

Paragraph 24.)

77a

Rule and Regulations, U.S. Department of

Health and Human Resources

45 C.F.R. Part 84.1 et seq., Renumbered to 34 C.F.R.

Part 104 et seq.

Subpart A — General Provisions

§ 84.1 Purpose.

The purpose of this part is to effectuate section 504 of

the Rehabilitation Act of 1973, which is designed to

eliminate discrimination on the basis of handicap in any

program or activity receiving Federal financial assistance.

§ 84.2 Application.

‘

This part applies to each recipient of Federal financial

assistance from the Department of Health, Education,

and Welfare and to each program or activity that receives

or benefits from such assistance.

§84.3 Definitions.

As used in this part, the term:

(a) “The Act” means the Rehabilitation Act of 1973,

Pub. L. 93-112, as amended by the Rehabilitation Act

Amendments of 1974, Pub. L. 93-516, 29 U.S.C. 794,

(b) “Section 504” means section 504 of the Act.

‘(c) “Education of the Handicapped Act” means that

statute as amended by the Education for all Handicapped

Children Act of 1975, Pub. L. 94-142, 20 U.S.C. 1401 et

seq.

(d) “Department” means the Department of Health,

Education, and Welfare.

(e) “Director” means the Director of the Office for Civil

Rights of the Department.

78a

(f) “Recipient” means any state or its political subdivi-

sion, any instrumentality of a state or its political subdivi-

sion, any public or private agency, institution, organiza-

tion, or other entity, or any person to which Federal finan-

cial assistance is extended directly or through another recip-

ient, including any successor, assignee, or transferee of a

recipient, but excluding the ultimate beneficiary of the

assistance.

(g) “Applicant for assistance” means one who submits

an application, request, or plan required to be approved

by a Department official or by a recipient as a condition to

becoming a recipient.

(h) “Federal financial assistance” means any grant, loan,

contract (other than a procurement contract or a contract

of insurance or guaranty), or any other arrangement by

which the Department provides or otherwise makes

available assistance in the form of:

(1) Funds;

(2) Services of Federal personnel; or

(3) Real and personal property or any it:terest in or use

of such property, including:

(i) Transfers or leases of such property for less than fair

market value or for reduced consideration; and

(ii) Proceeds from a subsequent transfer or lease of such

property if the Federal share of its fair market value is not

returned to the Federal Government.

(i) “Facility” means all or any portion of buildings,

structures, equipment, roads, walks, parking lots, or other

real or personal property or interest in such property.

(j) “Handicapped person.” (1) “Handicapped persons”

means any }»erson who (i) has a physical or mental impair-

79a

ment which substantially limits one or more major life ac-

tivities, (ii) has a record of such an impairment, or (iii) is

regarded as having such an impairment.

(2) As used in paragraph (j)(1) of this section, the

phrase:

(i) “Physical or mental impairment” means (A) any

physiological disorder or condition, cosmetic disfigure-

ment, or anatomical loss affecting one or more of the

following body systems; neurological; musculoskeletal;

special sense organs; respiratory, including speech organs;

cardiovascular, reproductive, digestive, genito-urinary;

hemic and lymphatic; skin; and endocrine; or (B) any

mental or psychological disorder, such as mental retarda-

tion, organic brain syndrome, emotional or mental illness,

and specific learning difficulties.

(ii) “Major life activities” means functions such as car-

ing for one’s self, performing manual tasks, walking, see-

ing, hearing, speaking, breathing, learning and working.

(iii) “Has a record of such an impairment” means has a

history of, or has been misclassified as having, a mental or

physical impairment that substantially limits one or more

major life activities.

(iv) “Is regarded as having an impairment” means (A)

has a physical or mental impairment that does not

substantially limit major life activities but that is treated

by a recipient as constituting such a limitation; (B) has a

physical or mental impairment that substantially limits

major life activities only as a result of the attitudes of

others toward such impairments; or (C) has none of the

impairments defined in paragraph (j)(2)(i) of this section

but is treated by a recipient as having such an impairment.

(k) “Qualified handicapped person” means:

(1) With respect to employment, a handicapped person

80a

who, with reasonable accomodation, can perform the

essential functions of the job in question;

(2) With respect to pubiic preschool elementary, secon-

dary, or adult educational services, a handicapped person

(i) of an age during which nonhandicapped persons are

provided such services, (ii) of any age during which it is

mandatory under state law to provide such services to hand-

icapped persons or (iii) to whom a state is required to

provide a free appropriate public education under § 612 of

the Education of the Handicapped Act; and

(3) With respect to postsecondary and vocational educa-

tion services, a handicapped person who meets the

academic and technical standards requisite to admission or

participation in the recipient’s education program or ac-

tivity;

(4) With respect to other services, a handicapped person

who meets the essential eligibility requirements for the

receipt of such services.

(1) “Handicap” means any condition or characteristic

that renders a person a handicapped person as defined in

paragraph (j) of this section.

§ 84.4 Discrimination prohibited.

(a) General. No qualified handicapped person shall, on

the basis of handicap, be excluded from participation in,

be denied the benefits of, or otherwise be subjected to

discrimination under any program or activity which

receives or benefits from Federal financial assistance.

(b) Discriminatory actions prohibited. (1) A recipient, in

providing any aid, benefit, or service, may not, directly or

through contractual, licensing, or other arrangements, on

the basis of handicap;

8la

(i) Deny a qualified handicapped person the opportunity

to participate in or benefit from the aid, benefit, or ser-

vice;

(ii) Afford a qualified handicapped person an oppor-

tunity to participate in or benefit from the aid, benefit, or

service that is noi equal to that afforded others;

(iii) Provide a qualified handicapped person with an aid,

benefit, or service that is not as effective as that provided

to others;

(iv) Provide different or separate aid, benefits, or ser-

vices to handicapped persons or to any class of handi-

capped persons unless such action is necessary to provide

qualified handicapped persons with aid, benefits, or ser-

vices that are as effective as those provided to others;

(v) Aid or perpetuate discrimination against a qualified

handicapped person by providing significant assistance to

an agency, organization, or person that discriminates on

the basis of handicap in providing any aid, benefit, or

service to beneficiaries of the recipients program;

(vi) Deny a qualified handicapped person the opportuni-

ty to participate as a member of planning or advisory

boards; or

(vii) Otherwise limit a qualified handicapped person in

the enjoyment of any right, privilege, advantage, or op-

portunity enjoyed by others receiving an aid, benefit, or

service.

(2) For purposes of this part, aids, benefits, and ser-

vices, to be equally effective, are not required to produce

the identical result or level of achievement for handi-

capped and nonhandicapped persons, but must afford

handicapped persons equal opportunity to obtain the same

result, to gain the same benefit, or to reach the same level

82a

of achievement, in the most integrated setting appropriate

to the person’s needs.

(3) Despite the existence of separate or different pro-

grams or activities provided in accordance with this part, a

recipient may not deny a qualified handicapped person the

opportunity to participate in such programs or activities

that are not separate or different.

(4) A recipient may not, directly or through contractual

or other arrangements, utilize criteria or methods of ad-

ministration (i) that have the effect of subjecting qualified

handicapped persons to discrimination on the basis of

handicap, (ii) that have the purpose or effect of defeating

or substantially impairing accomplishment of the objec-

tives of the recipient’s program with respect to handi-

capped persons, or (iii) that perpetuate the discrimination of

another recipient if both recipients are subject to common

administrative control or are agencies of the same State.

(5) In determining the site or location of a facility, an

applicant for assistance or a recipient may not make selec-

tions (i) that have the effect of excluding handicapped per-

sons from, denying them the benefits of, or otherwise sub-

jecting them to discrimination under any program or ac-

tivity that receives or benefits from Federal financial

assistance or (ii) that have the purpose or effect of

defeating or substantially impairing the accomplishment

of the objectives of the program or activity with respect to

handicapped persons.

(6) As used in this section, the aid, benefit, or service

provided under a program or activity receiving or

benefiting from Federal financial assistance includes any

aid, benefit, or service provided in or through a facility

that has been constructed, expanded, altered, leased or

rented, or otherwise acquired, in whole or in part, with

Federal financial assistance.

83a

(c) Programs limited by Federal law. The exclusion of

nonhandicapped persons from the benefits of a program

limited by Federal statute or executive order to handi-

capped persons or the exclusion of a specific class of hand-

icapped persons from a program limited by Federal statute

or executive order to a different class of handicapped

persons is not prohibited by this part.

* * *

§ 84.34 Educational setting.

(a) Academic setting. A recipient to which this subpart

applies shall educate, or shall provide for the education of,

each qualified handicapped person in its jurisdiction with

persons who are not handicapped to the maximum extent

appropriate to the needs of the handicapped person. A

recipient shall place a handicapped person in the regular

educational environment operated by the recipient unless

it is demonstrated by the recipient that the education of

the person in the regular environment with the use of sup-

plementary aids and services cannot be achieved satisfac-

torily. Whenever a recipient places a person in a setting

other than the regular educational environment pursuant

to this paragraph, it shall take into account the proximity

of the alternate setting to the person’s home.

(b) Nonacademic settings. In providing or arranging for

the provision of nonacademic and extracurricular services

and activities, including meals, recess periods, and the ser-

vices and activities set forth in § 84.37 (a)(2), a recipient

shall ensure that handicapped persons participate with

nonhandicapped persons in such activities and services to

the maximum extent appropriate to the needs of the hand-

icapped person in question.

(c) Comparable facilities. 1f a recipient, in compliance

with paragraph (a) of this section, operates a facility that

84a

is identifiable as being for handicapped persons, the recip-

ient shall ensure that the facility and the services and ac-

tivities provided therein are comparable to the other

facilities, services, and activities of the recipient.

§ 84.35 Evaluation and piacement.

(a) Preplacement evaluation. A recipient that operates a

public elementary or secondary education program shall

conduct an evaluation in accordance with the re-

quirements of paragraph (b) of this section of any person

who, because of handicap, needs or is believed to need

_ special education or related services before taking any ac-

tion with respect to the initial placement of the person in a

regular or special education program and any subsequent

significant change in placement.

(b) Evaluation procedures. A recipient to which this

subpart applies shall establish standards and procedures

for the evaluation and placement of persons who, because

of handicap, need or are believed to need special education

or related services which ensure that:

(1) Tests and other evaluation materials have been

validated for the specific purpose for which they are used

and are administered by trained personnel in conformance

with the instructions provided by their producer;

(2) Tests and other evaluation materials include those

tailored to assess specific areas of educational need and

not merely those which are designed to provide a single

general intelligence quotient; and

(3) Tests are selected and administered so as best to en-

sure that, when a test is administered to a student with im-

paired sensory, manual, or speaking skills, the test results

accurately reflect the student’s aptitude or achievement

level or whatever other factor the test purports to measure,

85a

rather than reflecting the student’s impaired sensory,

manual, or speaking skills (except where those skills are

the factors that the test purports to measure).

(c) Placement procedures. \n interpreting evaluation

data and in making placement decisions, a recipient shall

(1) draw upon information from a variety of sources, in-

cluding aptitude and achievement tests, teacher recom-

mendations, physical condition, social or cultural

background, and adaptive behavior, (2) establish pro-

cedures to ensure that information obtained from all such

sources is documented and carefully considered, (3) ensure

that the placement decision is made by a group of persons,

including persons knowledgeable about the chiid, the

meaning of the evaluation data, and the placement op-

tions, and (4) ensure that the placement decision is made in

conformity with § 84.34.

(d) Reevaluation. A recipient to which this section ap-

plies shall establish procedures, in accordance with

paragraph (b) of this section, for periodic reevaluation of

students who have been provided special education and

related services. A reevaluation procedure consistent with

the Education for the Handicapped Act is one means of

meeting this requirement.

§ 84.36 Procedural safeguards.

A recipient that operates a public elementary or secon-

dary education program shall establish and implement,

with respect to actions regarding the identification,

evaluation, or educational placement of persons who,

because of handicap, need or are believed to need special

instruction or related services, a system of procedural

safeguards that includes notice, an opportunity for the

parents or guardian of the person to examine relevant

records, and impartial hearing with opportunity for par-

86a

ticipation by the person’s parents or guardian and

representation by counsel, and a review procedure. Com-

pliance with the procedural safeguards of section 615 of

the Education of the Handicapped Act is one means of

meeting this requirement.