Opposition — Harrell ex rel. Herrell v. Wilson County Schools

|

Office-Supreme Court, U.S,

FILED

NO. 82-1111 FEB 8 1993

8 ee a yma I SS Ss 5 a ee

ALEXANDER lL. STEVAS,

IN THE ERK

Supreme Court of the Hnited States

October Term 1982

Marguerite Owens Harrell, by her Parents,

Allen W. Harrell and Irene Burk Harrell,

Petitioner,

Vv.

Wilson County Schools, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE

NORTH CAROLINA COURT OF APPEALS

BRIEF OF RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

RUFUS L. EDMISTEN

Attorney General of

North Carolina

ELIZABETH C, BUNTING

Assistant Attorney General

KAYE R. WEBB

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, N.C, 27602

Telephone: (919) 733-7387

Z. Hardy Rose

Rose, Jones, Rand & Orcutt, P.A.

P.O. Drawer 2367

Wilson, North Carolina 27893

Telephone: (919) 291-3848

ATTORNEYS FOR RESPONDENTS

DiCesare and Associates Printing © Washington, D.C. © (202) 331-8101

QUESTIONS PRESENTED

WHETHER ASSESSMENT, EVALUATION AND

PLACEMENT PROCEDURES COMPLY WITH

DUE PROCESS AND THE REQUIREMENTS OF

THE EDUCATION OF THE HANDICAPPED

ACT AND ITS FEDERAL REGULATIONS

WHERE THE EVALUATION FORMS WERE

ONLY PARTIALLY COMPLETED, INFORMA—

TION WAS NOT OBTAINED WITH REGARD TO

PRIOR EDUCATIONAL BACKGROUND OR

FROM FORMER TEACHER, A CONTINUUM OF

ALTERNATIVE PLACEMENTS WAS NOT

CONSIDERED AND A BIASED STATE

CONSULTANT WAS UTILIZED.

WHETHER AN INDIVIDUALIZED EDUCATION

PROGRAM IS RESPONSIVE TO THE SPECIAL

EDUCATIONAL NEEDS OF A _ HEARING

IMPAIRED CHILD AS REQUIRED BY THE

EDUCATION OF THE HANDICAPPED ACT

AND ITS FEDERAL REGULATIONS WHERE

THE STATEMENT OF EDUCATIONAL

PERFORMANCE RELIED SOLELY ON THE

TEST SCORE OF THE PEABODY INDIVIDUAL

ACHIEVEMENT TEST, THE PERCENTAGE OF

TIME SPENT IN THE REGULAR CLASSROOM

AND WITH SUPPORT SERVICES WAS YET TO

BE DETERMINED AND ONLY ONE OF THE

SPECIAL SERVICES PROVIDERS HAD BEEN

TRAINED TO WORK WITH HEARING

IMPAIRED CHILDREN.

Ill.

WHETHER A LOCAL SCHOOL SYSTEM

COULD PROVIDE AN EDUCATIONAL

PROGRAM WHICH WAS “APPROPRIATE” TO

MEET THE SPECIAL EDUCATIONAL NEEDS

OF A HEARING IMPAIRED CHILD PURSUANT

TO THE EDUCATION OF THE HANDICAPPED

ACT AND ITS FEDERAL REGULATIONS

WHERE THE EVALUATION AND PLACEMENT

PROCEDURES AND INDIVIDUALIZED

EDUCATION PROGRAM DEVELOPMENT

WERE MADE UPON UNLAWFUL PRO-

CEDURES AND THE REGULAR CLASSROOM

TEACHER AND ALL BUT ONE OF HER

SPECIAL SERVICE PROVIDERS WERE NOT

CERTIFIED TO TEACH CHILDREN WITH

HEARING IMPAIRMENTS.

iii

PARTIES

The parties to the proceedings in this action are

Petitioner Marguerite Owens Harrell, by her parents Allen

W. Harrell and Irene Burk Harrell, a child with special

needs who seeks to have the Judgment of the lower courts

reversed and Respondents Wilson County Schools, Dr.

W.O. Fields, Jr., Superintendent and North Carolina

Department of Public Instruction, Dr. A. Craig Phillips,

Superintendent.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED .............000005,

PARTIES

TABLE OF AUTHORITIES

PAGE

CASES:

BOARD OF EDUCATION V. ROWLEY

ao U.S. —., 73 L. Ed. 2d 690,

102 S. Ce. SOS4 (IGGZ) a ccccccccvcccccccccces 6, II

GOLDBERG V. KELLY,

397 U.S. 254, 25 L. Ed. 2d 287,

GOS. Ce. TOLL (ISTO) a vccnccccccccccscccccvecs 9

HORTONVILLE DISTRICT V. HORTONVILLE

EDUCATION ASSOC., 426 U.S. 482,

49 L. Ed. 2d 1, 96 S. Ct. 2308 (1976) ............ 10

IN RE MURCHISON,

349 U.S. 133, 99 L. Ed. 942,

Fo We As GED CIDSS) cen cdcccvecenctdccvcceccose )

TRADE COMMISSION V. CEMENT INSTITUTE,

333 U.S. 683, 92 L. Ed. 1010,

OS Bu Rots SHOO PEED Da cubeebcebecoavectccates 10

OTHER AUTHORITIES

eas Oo dcu bocseeeeestaceces a a6

ry ogih tom MRRP errr rr eee rrr ere re 7,8

ee EE OEUD C dsecs bchonsenbcakhntéckens 7,9

Be We REED 6 0 cdvchn0cnceecedbebdncedeses 7

Be A ES OD CAD Sok cacoedabnbaadbiecees cece 6

SA CPR. SODSEG cccccccccvccccccccvccccscccccs 9

NO. 82-1111

———————————_————————

IN THE

Supreme Court of the United Stutes

October Term 1982

Marguerite Owens Harrell,

Petitioner,

Vv.

Wilson County Schools, et al.,

Respondents.

BRIEF OF RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The judgment of the North Carolina Supreme Court is

unpublished and is reproduced as Appendix B to

Petitioner's Petition for Writ of Certiorari.

The opinion of the North Carolina Court of Appeals is

reported at 58 N.C. App. 260, 293 S.E. 2d 687 (1982) and is

reproduced as Appendix A of the Petition.

The judgment of the Wilson County Superior Court is

unpublished and is reproduced as Appendix C of the

Petition.

The decision of the State Review Officer is reproduced as

Appendix D of the Petition. The decision of the Hearing

Officer is reproduced as Appendix E of the Petition.

JURISDICTION

The jurisdiction of the Supreme Court is invoked under

28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED

Constitution of the United States:

AMENDMENT XIV

Section |. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within any jurisdiction the equal protection of the

laws.

United States Code:

20 U.S.C. §1401, et seg.

The pertinent text is reproduced as Appendix F to the

Petition.

Code of Federal Regulations:

34 C.F.R. Part 300, et seg.

The pertinent text is reproduced as Appendix G to the

Petition.

STATEMENT OF THE CASE

Petitioner, Marguerite Harrell, was born 30 December

1964. At all times relevant to the pendency of this action she

has been a legal resident of Wilson County, North Carolina.

Her parents, Allen W. Harrell and Irene Burk Harrell, have

also been residents of Wilson County, North Carolina,

during that period. This child is hearing impaired. As such,

she is a child with special needs entitled to receive a free

appropriate “public education under applicable federal and

state statutes dealing with educational requirements for the

handicapped.” 20 U.S.C. § 1401, et seg., N.C.G.S. 115-363

et seq.

At the time these proceedings were initiated, the child had

never been enrolled in respondent school system. From

1973 until the time these proceedings were begun she was

enrolled at the Central Institute for the Deaf (hereinafter

CID) in St. Louis, Missouri. CID is a residential school

which utilizes the “oral communication” method of

teaching deaf students. The oral communication method

does not involve finger spelling or sign language but it relies

on speech reading and other receptive and expressive

language skills. Prior to her enrollment at CID, petitioner

attended “oral communication” programs both public and

private, located in Durham and Cary, North Carolina.

Petitioner briefly attended the Eastern North Carolina

School for the Deaf in Wilson, North Carolina in 1972. The

Eastern North Carolina School for the Deaf employs the

“total communication” method of teaching. That method

utilizes a combination of finger spelling, sign language, and

an oral auditory approach. That method is inconsistent

with the “oral” training the child has received.

On 17 July 1978 petitioner applied to respondent for an

educational expense grant to procure funds to send the

child to CID for the 1978-79 school year beginning in

September 1978. (Exhibit S-13)

Respondent conducted a multi-disciplinary evaluation

and diagnosis of ithe child to determine what was necessary

to furnish her with an appropriate educational program.

She was assessed in all areas related to her disability.

Respondent conducted conferences on I1, 14, and 22

August 1978 with regard to the issue of the child’s needs.

Petitioner's parents and various educational experts

participated in these conferences.

Thereafter, respondent developed an individualized

education program (hereinafter IEP) for the child. This IEP

included an “oral communication” education program in a

regular sixth grade class with support services of speech

therapist, resource teacher, psychologist, and classroom

aide. The use of a phonic ear and its accessories were also

proposed for use in the child’s IEF.

Respondent found that an appropriate program could be

provided for the child locally in the Wilson County schools.

Therefore, it denied petitioners’ request for an educational

expense grant. Despite this determination, the child

attended CID during the 1978-79 school year.

Respondent did not initiate or approve of the placement

of the child at CID. Respondent was at all times willing to

provide the child a free and appropriate education.

Respondent prepared an IEP for the child which was never

implemented because the child was never enrolled in the

Wilson County schools but returned to CID.

In September 1978 petitioner initiated proceedings

under the due process provisions of the federal and state

statutes governing the education of the handicapped. 20

U.S.C. §1415; N.C.G.S. 115-179.1. Petitioner contended

that respondent had not offered the child an appropriate

education, but that CID was the appropriate placement for

her. Therefore, she argued, respondent had wrongfully

denied the application for an educational expense grant. At

petitioners’ request, a hearing with regard to this matter was

conducted at the local level on 11 October 1978 before Mr.

George S. Willard, hearing officer.On 6 November 1978 the

hearing officer issued his hearing decision in which he

concluded that an appropriate educational program had

been developed and offered to the child by resondent in

compliance with federal and state laws. (R.p. 101)

Subsequently, petitioner appealed from the local

hearing officer to the State Education Agency pursuant to

N.C.G.S. 115-179.1(b) and 20 U.S.C. §1415(c). This appeal

was heard by State Review Officer Lowell Harris on 20

December 1978. Following this hearing Mr. Harris issued a

state review decision in which he upheld the decision of the

local hearing officer. (R.p. 124) He stated his opinion that

respondent could and was willing to provide the child witha

program that was appropriate to meet her special

educational needs. (R.p. 132)

Petitioner appealed the decision of the State Review

Officer to the Wilson County Superior Court in accordance

with N.C.G.S., Chapter 150A, Article 4. Judgment was

entered on 2 March 1981 upholding the decision of the State

Review Officer.

Petitioner filed notice of appeal from the Wilson County

Superior Court to the North Carolina Court of Appeals on

9 March 1981. On 20 July 1982, the North Carolina Court

of Appeals affirmed the decision of the Superior Court.

From the decision of the Court of Appeals the petitioner

filed notice of appeal and petition for discretionary review

in the North Carolina Supreme Court. Further review was

denied by that Court on 7 October 1982. This Petition

followed.

Subsequent to the initiation of these proceedings, the

child was enrolled in respondent school system on 2

September 1980. She has been in regular attendance in

respondent school system since that date and has

functioned well.

REASONS FOR DENYING THE WRIT

The respondents urge the Court to deny the Petition for

the reasons hereinafter set forth.

I, DUE PROCESS CLAIM

The petitioner contends that during the assessment,

evaluation and placement of the child, the school system did

not comply with due process of the applicable federal and

State regulations, thereby denying petitioner a free

appropriate public education as required by law.

Respondents strongly urge you to dismiss this claim.

This Court has addressed the requirements which must

be met by states to comply with the Education for All

Handicapped Children Act, (hereinafter Act) 20 U.S.C.

§1401 et seq., in the case of Board of Education v. Rowley,

U.S. 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982).

The Rowley Court set forth the issues which must be

considered by a court reviewing the state administrative

findings and decisions in a civil action pursuant to 20

U.S.C. §1415(e) (2). A review oftherec dand the previous

decisions in the case sub judice clearly shows that the

guidelines for review have been followed and the petitioner

is not entitled to any further relief.

In Rowley the Court directed that judicial review of

administrative actions is limited to two questions.

“First, has the State complied with the procedures set

forth in the Act? And second, is the individualized

educational program developed through the Act’s

procedures reasonably calculated to enable the child to

receive educational benefits? If these requirements are

met, the State has complied with the obligations

imposed by Congress and the courts can require no

more.” 73 L. Ed. 2d at 712.

The answer to both of these questions is yes. The State

complied with the procedural requirements of the Act and

the IEP was reasonably calculated to enable the child to

receive educational benefits.

In order to qualify for assistance under the Act, a State

must demonstrate that it “has in effect a policy that assures

all handicapped children the right to a free appropriate

public education.” 20 U.S.C. § 1412(1). The “free

appropriate public education” required by the Act is

tailored to the unique needs of the handicapped child by

means of an “individualized educational program” (IEP).

20 U.S.C. § 1401 (18). The IEP is prepared at a meeting

between qualified representatives of the local educational

agency, the child’s teacher, the child’s parents or guardian,

and, where appropriate, the child. 20 U.S.C. § 1401 (19).

The IEP is a written document containing:

“(A) a statement of the present levels of educational

performance of the child, (B) a statement of annual

goals, including short-term instructional objectives,

(C) a statement of the specific educational services to

be provided to such child, and the extent to which such

child will be able to participate in regular educational

programs, (D) the projected date for initiation and

anticipated duration of such service, and (E)

appropriate objective criteria and evaluation

procedures and schedules for determining, on at least

an annual basis, whether instructional objectives are

being achieved.” 20 U.S.C. § 1401 (19).

A “free appropriate public education” is defined by the

Act as

“special education and related services which (A) have

been provided at public expense, under public

supervision and direction, and without charge, (B)

meet the standards of the State educational agency, (C)

include an appropriate preschool, elementary, or

secondary school education in the State involved, and

(D) are provided in conformity with their

individualized education program required under

Section 614 (a) (5).” 20 U.S.C. § 1401 (18).

North Carolina has in place a policy that assures all

handicapped children the right to a “free appropriate public

education.” N.C.G.S. 115C-106.! The IEP prepared for

1§115C-106. Policy.

(a) The General Assembly of North Carolina hereby declares that the

policy of the State is to ensure every child a fair and full opportunity to

reach his full potential and that no child as defined in this section and in

G. S. 115C-122 shall be excluded from service or education for any

reason whatsoever. This policy shall be the practice of the State for

children from birth through age 21 and the State requires compliance by

all local education agencies and local school administrative units, all

local human resources agencies including, but not limited to, local

health departments, local social service departments, community

mental health centers and all State departments, agencies, institutions

except institutions of higher education, and private providers which are

recipients of general funds as these funds are defined in G.S. 143-1.

(b) The policy of the State is to provide a free appropriate publicly

supported education to every child with special needs. The purpose of

this Article is to (i) provide for a system of special educational

opportunities for all children requiring special education, hereinafter

called children with special needs; (ii) provide a system for identifying

and evaluating the educational needs of all children with special needs;

(iii) require evaluation of the needs of such children and the adequacy of

special education programs before placing children in the programs;

(iv) require periodic evaluation of the benefits of the programs to the

children and of the nature of the children’s needs after placement; (v)

prevent denials of equal educational opportunity on the basis of

physical, emotional, or mental handicap; (vi) assure that the rights of

children with special needs and their parents or guardians are protected;

(vii) ensure that there be no inadequacies, inequities, and discrimination

with respect to children with special needs; and (viii) bring State law

regulations, and practice into conformity with relevant federal law.

(1973, c. 1293, ss. 2-4; 1975, c. 563, ss. 1-5; 1977, c. 927, ss. 1, 2; 1979, 2nd

Sess., c. 1295; 1981, c. 423, s. 1.)

Marguerite Harrell was the result of several conferences

with input from various educational professionals and the

parents of the child. See, R. p. 108. The IEP includes the

requisite goals and objectives required by 20 U.S.C. § 1401

(19) and 34 C.F.R. 300.346 (1978). The proposed

educational program to be offered by the Wilson County

schools was to be provided at public expense, at no cost to

the parents, in accordance with standards set by the state

educational agency and in conformity with the specially

tailored IEP. It is clear that the school system complied

with applicable statutes and regulations in this matter.

The petitioner further argues that she was denied due

process of law because she was not provided with a fair

tribunal. Specifically she argues that Mildred Blackburn, a

hearing consultant for programs for the hearing impaired in

the public schools of North Carolina was biased against

residential placements and thereby exerted undue influence

on the placement committee’s decision.

Due process requires that an individual receive adequate

notice and be given an opportunity to be heard. This

requirement applies to administrative agencies performing

adjudicatory functions. Goldberg v. Kelly, 397 U.S. 254, 25

L. Ed. 2d 287, 90 S. Ct. 1011 (1970). “A fair trial in a fair

tribunal is a basic requirement of due process.” Jn Re

Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75S. Ct.

623, 625 (1955). There is no question that notice

requirements of due process were met in this case. In fact,

the petitioner stipulated that due process procedures had

been followed prior to and during the hearing of this matter

before the local hearing officer (R.pp. 101-103). Petitioner's

claim that the “bias” of Miidred Blackburn resulted in a

denial of due process is ludicrous.

The mere fact that a member of the panel which

developed the IEP had expressed a certain professional

10

opinion on main streaming versus residential placement

does not result in a violation of due process. Compare

Trade Commission v. Cement Institute, 333 U.S. 683, 92 L.

Ed 1010, 68 S. Ct. 793 (1948) and Hortonville District v.

Hortonville Education Association, 426 U.S. 482, 49 L. Ed.

2d 1, 96S. Ct. 2308 (1976) where the degree of involvement

or possible bias was more substantial and the Court rejected

the claims of bias. Petitioner's claim should be dealt with in

the same manner.

Il. THE IEP CLAIM

The petitioner contends that the IEP developed for

Marguerite was unresponsive to her needs because the

statement of educational performance relied solely on the

Peabody Individual Achievement Test and that the IEP is

incomplete because the percentage of time to be spent with

support services was yet to be determined.

The IEP in this case was developed between 22 August

and 28 August 1978. The initial request for an educational

expense grant was not made until 17 July 1978 for the

1978-79 school year. Under the circumstances of this case

the school board acted diligently and in good faith in

evaluating Marguerite’s needs ard in developing the IEP

within this relatively short period of time. The North

Carolina Court of Appeals made specific and detailed

findings regarding the school system’s compliance with

applicable statutes and regulations. See Petition Appendix

A, pp. 55-69. The Wilson County Schools followed all the

procedures required by the Act and petitioner's allegations

of incompleteness and improper procedures are an attempt

to grasp at straws. The respondents strongly urge the

Court to deny the petition on the basis of this claim.

Ili. APPROPRIATE EDUCATION CLAIM

The petitioner’s final claim is that the Wilson County

schools could not provide an “appropriate” educational

program because it was based on unlawful procedures and

because the regular classroom teacher and all but one of her

special service providers were not certified to teach children

with hearing impairments. For the reasons outlined above

and those that follow, this claim is without merit.

Justice Rehnquist delivering the opinion of the Rowley

Court stated:

“According to the definitions contained in the Act, a

‘free appropriate public education’ consists of

educational instruction specifically designed to meet

the unique needs of the handicapped child, supported

by such unique needs of the handicapped child,

supported by such services as are necessary to permit

the child ‘to benefit’ from the instruction.... Thus if

personalized instruction is being provided with

sufficient supportive services to permit the child to

benefit from the instruction, and the other items on the

definitional check list are satisfied, the child is

receiving a ‘free appropriate public education as

defined by the Act.’

73 L. Ed. 2d at 701

The program designed in the case sub judice provided for

personalized instruction with sufficient support services to

enable the child to benefit from the instruction. This Court

made it very clear in Row/ey, which also involved a hearing

impaired child, that the requirement that a state provide

specialized educational services to handicapped children

generates no additional requirement that the services so

provided be sufficient to maximize each child’s potential

commensurate with the opportunity provided other

children. The requirement of the Act is an appropriate

education, not the best education possible.

12

The school system offered the petitioner an appropriate

education to meet her unique individual needs. All

procedures mandated by the Act were followed. The

decision of the North Carolina Court of Appeals in this

regard should be affirmed.

CONCLUSION

The North Carolina Supreme Court was correct in

denying further review of the decision of the North Carolina

Court of Appeals in this case. Based upon this Court’s

decision in Rowley a complete denial of the Petition for

Certiorari is the correct result. There is nothing of substance

for this Court to review.

This the 2nd day of February, 1983.

Respectfully submitted,

RUFUS L. EDMISTEN

Attorney General

Elizabeth C. Bunting

Assistant Attorney General

Kaye R. Webb

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, N.C. 27602

Telephone: (919) 733-7387

Z. Hardy Rose

Rose, Jones, Rand & Orcutt, P.A.

P.O. Drawer 2367

Wilson, N.C. 27893

Telephone: (919) 291-3848

ATTORNEYS FOR

RESPONDENTS

13

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the

foregoing BRIEF OF RESPONDENTS IN

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI was served this day upon counsel for

petitioner, by depositing three copies of said brief in the

United States Mail, postage prepaid, addressed as follows:

Grover Prevatte Hopkins

Janice Watson Davidson

Hopkins and Allen

212 Main Street

Tarboro, N.C. 27886

This the 2nd day of February, 1983

Kaye R. Webb

Assistant Attorney General