Opposition Brief — Burlington School Comm. v. Mass. Dept. of Ed.

Supreme Court, U.S.

FILED

No. 84-433 NOV 2 1984

ALEXANDER L. STEVAS

IN THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1984

TOWN OF BURLINGTON, et al.,

Petitioners,

Vv.

DEPARTMENT OF EDUCATION FOR THE

COMMONWEALTH OF MASSACHUSETTS, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

RESPONDENTS' BRIEF IN OPPOSITION

DAVID W. ROSENBERG FRANCIS X.BELLOTTI

Hill & Barlow ATTORNEY GENERAL

225 Franklin Street

Boston, MA 02109 ELLEN L. JANOS

(617) 423-6200 Assistant

Counsel of Record Attorney General

for Doe Respondents One Ashburton Place

Room 2019

Boston, MA 02108

(617) 727-1031

Counsel of Record for

State Respondent

JUDITH S. YOGMAN

Assistant

Attorney General

QUESTIONS PRESENTED

1. Should this Court grant a writ

of certiorari to review hypothetical

legal questions and discretionary, fact-

specific remedial orders and evidentiary

rulings of the lower courts?

2. May the District Court, under

the Education of the Handicapped Act,

require a local education agency to reim-

burse parents for private school tuition

and related expenses under the circum-

stances hypothesized by the Court of

Appeals?

3. May a state education agency

properly consider the local education

agency's vir'‘ations of procedural and

substantive educational requirements as

bearing on its ability to implement a

proposed educational plan?

4. In an action under 20 U.S.C.

§ 1415(e)(2), may the trial court limit

the evidence presented to that which is

not repetitive of the evidence presented

at the administrative hearing?

TABLE OF CONTENTS

Page .

QUESTIONS PRESENTED 1

TABLE OF AUTHORITIES V

STATEMENT OF THE CASE 2

Prior Proceedings 2

Statement of Facts 3

REASONS FOR DENYING THE WRIT 5

Te THE QUESTIONS PRESENTED ARE NOT

RIPE FOR CONSIDERATION BY THIS

COURT. 6

II. CERTIORARI IS NOT WARRANTED

TO REVIEW A LOWER COURT'S

DISCRETIONARY AND FACT-SPECIFIC

EVIDENTIARY RULINGS AND

REMEDIAL ORDERS. 12

III. THE COURT OF APPEALS' HOLDING

THAT REIMBURSEMENT MAY BE

AVAILABLE TO THE PREVAILING

PARTY UNDER THE EDUCATION OF

THE HANDICAPPED ACT DOES NOT

CONFLICT WITH DECISIONS OF

OTHER CIRCUITS. 19

e $434 -

Page

IV. THE COURT OF APPEALS'

HOLDING AS TO THE SCOPE

OF THE DISTRICT COURT'S

REVIEW IS CONSISTENT

WITH DECISIONS OF THIS

COURT.

A. The Court Of Appeals’

Remand To The District

Court To Consider The

Town's Procedural

ViolationsWas Compelled By

Rowley.

B. The Guidelines Established By

The Court Of Appeals For

The Admission Of

"Additional Evidence” Are

Consistent With The

Rowley Requirement That

The Administrative

Proceedings Be Accorded

Due Weight.

CONCLUSION

- iv-

28

32

35

TABLE OF AUTHORITIES

Cases

Anderson v. Thompson,

658 F.2d 1205 (7th Cir. 1981)

Appalachian Power Co. v. American

Institute of Certified Public

Accountants,

80 S. Ct. 16 (1959)

“Arizona v. California,

460 U.S. 605 (1983)

Barney v. Winona & St. P cer

7 Railroad Co.,

117 U.S. 228 (1886)

Board of Education v. Rowley,

458 U.S. 176 (1982)

Department of Education v.

Katherine D.,

727 F.2d 809 (9th Cir. 1983)

Geders v. United States, |

425 U.S. 80 (1976)

Grymes v. Madden,

672 F.2d 321 (3rd Cir. 1982)

Hamling v. United States,

418 U.S. 87 (1974)

Hammerstein v. Superior Court,

341 U.S. 491 (1951)

Pag e

24

12

19

17

passim

24

14

25

13

Hessler v. State Board of Education,

700 F.2d 134 (4th Cir. 1983)

Layne & Bowler Corp. v. Western Well

Works, Inc.,

261 U.S. 387 (1923)

Marvin H. v. Austin Independent School

District,

714 F.2d 1348 (5th Cir. 1983)

Maryland v. Baltimore Radio Show,

Inc., 338 U.S. 912 (1950)

Messenger v. Anderson,

225 U.S. 436 (1912)

Miener v. Missouri,

673 F.2d 969 (8th Cir.), cert.

denied, 459 U.S. 909 (1982)

Pennhurst State School & Hospital

v. Halderman,

104 s.ct. 900 (1984)

Powell v. Defore,

699 F.2d 1078 (llth Cir. 1983)

Rice v. Sioux City Memorial Park

Cemetery, Inc.,

349 U.S. 70 (1955)

Roncker v. Walter,

700 F.2d 1058 (6th Cir.), cert.

denied, 104 S. Ct. 196 (1983)

Ross v. Moffitt,

417 U.S. 600 (1974)

- vi-

23

20

ll

18

26

29

26

23

34

Rowe v. Henry County School Board,

718 F.2d 115 (4th Cir. 1983) 26

Singleton v. Commissioner of

Internal Revenue,

439 U.S. 940 (1978) 27-28

Smith v. Robinson,

104 S. Ct. 3457 (1984) 23

Stacy G. v. Pasadena Independent

School District,

695 F.2d 949 (5th Cir. 1983) 26-26

Stemple v. Board of Education,

623 F.2d 893 (4th Cir. 1980),

cert. denied, 450 U.S. 911 (1981) 25

United States v. United States

Smelting Refining & Mining Co.,

339 U.S. 186 (1950) 17, 18

Vander Malle v. Ambach,

673 F.2d 49 (2nd Cir. 1982) 25

Wade v. Mayo,

334 U.S. 672 (1948) 6

Statutes

20 U.S.C. § 1401(1) 4

20 U.S.C. § 1415(e) (2) 9, 31, 32

20 U.S.C. §§ 1415(a)-(d) 30

- vii -

Periodical

Hyatt, Litigating the Rights of

Handicapped Children to an

Appropriate Education:

Procedures & Remedies,

29 U.C.L.A. L. Rev, 1 (1981)

Rules

Supreme Court Rule 17

Supreme Court Rule 17.1(a)

Fed. R. Evid. 403

Fed. R. Evid. 611(a)

- vill -

20

13

14

No. 84-433

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

TOWN OF BURLINGTON, et al.,

Petitioners,

Vv.

DEPARTMENT OF EDUCATION FOR

THE COMMONWEALTH OF

MASSACHUSETTS, et al.,

Respondents.

On Petition for a Writ

of Certiorari to the United

States Court of Appeals

for the First Circuit

RESPONDENTS' BRIEF IN OPPOSITION

The respondents respectfully request

that this Court deny the petition for a

writ of certiorari to review the judgment

of the United States Court of Appeals

for the First Circuit in this case.

STATEMENT OF THE CASE

Prior Proceedings

The respondents adopt the statement

of prior proceedings contained in the

decision of the Court of Appeals. Peti-

tion for Certiorari (hereinafter, "P.")

at 89a-90a.

On May 29, 1984, the Court of Appeals

issued its decision, affirming in part

and reversing in part the decision of

the District Court and remanding the case

to the District Court for further pro-

ceedings. P. 87a-140a. After articulat-

ing the appropriate standards of judicial

review and discussing the criteria to be

considered by the District Court in de-

termining whether to award retroactive

tuition reimbursement to the parents OF

the Town, the Court of Appeals directed

the District Court to review the state

administrative proceedings in accordance

With the standards set forth in its opin-

ion and held that, "“[oJnce the district

court reaches its decision, it may order

reimbursement in accordance with the

principles discussed [by the Court of

Appeals]." P, 139a, Thereafter, the

Town of Burlington ("the Town") peti-

tioned the Court of Appeals for rehearing

and rehearing en banc. That petition

was denied on June 29, 1984. P. 146a.

Statement of Facts

There is no dispute that the child

who has been the subject of these judi-

cial proceedings for the past five years

has severe learning disabilities and

therefore is considered handicapped with-

in the meaning of the Education of the

Handicapped Act (EHA) .2/ Instead, the

factual dispute in the courts below cen-

ters around the precise nature of the

child's learning disabilities and the

appropriate educational placement to meet

his needs. Even with respect to this

narrowly stated controversy, however,

the petitioners' factual statement to

this Court, which is not supported by

any appendix or record citations, does

not present a fair summary of the facts

found by the District Court. Indeed, as

will be discussed below, the District

Court has yet to make findings on many

essential and disputed matters which the

petitioners nevertheless state as estab-

lished facts. 2/ Therefore, the respon-

1/ See 20 U.S.C. § 1401(1).

2/ For example, the District Court spe-

cifically directed the parties not to

(footnote continued)

dents cannot adopt the statement of facts

contained in the petition, but, rather,

refer the Court to the statements of

facts contained in the three District

Court opinions. P. 30a-33a, 58a-6la,

7la-7 2a.

REASONS FOR DENYING THE WRIT

As pravided in Rule 17 cf the Rules

(footnote continued)

present evidence on and, in fact, heard

no evidence on the parties' conduct with

respect to subsequent evaluations of the

child. P. 55a-56a. Nevertheless, peti-

tioners recite as facts the actions of

the parties in that regard. P. 6. Peti-

tioners also state that the parents en-

rolled the child in private school “with-

out seeking or obtaining permission from

local or state educational authorities."

P, 5. However, pursuant to the Court of

Appeals' decision, the District Court

has yet to determine whether the parents

attempted in good faith to obtain an

agreement with the school system before

moving the child. P. 133a. Finally,

petitioners flatly state that the child

suffered a severe illness in 1977 and

exhibited symptoms of serious emotional

disturbance at home in 1979, P. 4, al-

though no such findings were made by the

District Court.

of this Court, “review on a writ of

certiorari is not a matter of right but

judicial discretion, and will be granted

only when there are special and important

reasons therefor." See also ROSS V.

Moffitt, 417 U.S. 600, 617 (1974); Ham-

merstein v. Superior Court, 341 U.S. 49l,

492 (1951); Wade v. Mayo, 334 U.S. 672,

680 (1948). No such “special and impor-

tant reasons" warrant the granting that

extraordinary writ. Furthermore, there

are several reasons why granting the writ

in this case would be particularly inap-

propriate.

I. THE QUESTIONS PRESENTED ARE NOT RIPE

FOR CONSIDERATION BY THIS COURT.

The present posture of this case, in

which critical factual findings and evi-

dentiary rulings are yet to be made by

the District Court, renders the legal

questions presented entirely hypothet-

3/

ical.=

In discussing the right to reimburse-

ment, the central issue presented by

3/ Pursuant to the decision of the Court

Of Appeals, the District Court has yet

to determine whether the Town committed

procedural violations in developing an

Individual Education Plan (IEP) for the

child, P. 108a; whether the IEP proposed

by the Town met the state's substantive

standards, P. 1ll2a; whether witnesses

who testified at the administrative hear-

ing should be permitted to testify again

in court, P. 1l1l5a, 139a; whether the

findings of the state hearing officer

regarding procedural and substantive vio-

lations of state law should be accepted

Or rejected in part or in whole, P. 1l7a,

139a; whether the Town's 1979-80 IEP was

improper, P. 124a; whether the Carroll

School was then the correct placement,

P,. 124a; whether other factual circum-

stances, "not now apparent," warrant

denial of reimbursement to the parents,

P. 124a; whether placement at the Carrol]

School was appropriate for years subse-

quent to 1979-80, P. 124a; whether the

parents' placement of the child in pri-

vate school was “truly unilateral," P.,

l3la-133a; and whether the Town commit-

ted serious procedural errors, warranting

denial of reimbursement to the Town. P.

138a. Indeed, even the nature of the

Child's learning disabilities is yet to

be determined by the District Court. P.

120a, 139a.

this petition, the Court of Appeals iden-

tified as a critical factor “the yet-to-

come final decision in the case." P.

126a. Only "if [the parents] are held

to have acted appropriately" in placing

the child in private school, P. 129a,

will the District Court need to consider

the parents' claim for reimbursement.

Moreover, even if the parents prevail on

remand, their right to reimbursement is

not established by the decision of the

Court of Appeals. Rather, the Court of

Appeals simply discussed the factors to

be considered by the District Court if

and when the parents are found to have

acted appropriately. The determination

of whether to award such reimbursement

remains within "the sound discretion of

the district court." P. 137a. Until

that discretion has actually been

exercised either to award or deny reim-

bursement, there is nothing for this

Court to review.

The question of whether the trial

court, in an action under 20 U.S.C.

§ 1415(e)(2), may limit the evidence

presented in court to that which is "“ad-

ditional" to the evidence presented at

the administrative level is similarly

unripe for consideration by this Court

in this case. Under the Court of Ap-

peals' decision, the District Court, on

remand, remains free to exercise its dis-

cretion either to receive or to exclude

the evidence offered by the Town. P.

ll5a, 139a. Unless and until the Dis-

trict Court refuses to hear witnesses

who testified or could have testified at

the state administrative hearing, the

issue of whether or not the trial court

has the authority to limit the introduc-

tion of evidence in this way is not

squarely presented. At trial, the Dis-

trict Court did not so limit the evi-

dence, but rather permitted witnesses

who had testified at the administrative

level to testify again in court, and the

Court of Appeals refused to rule that

such a limitation is required. P. ll4a.

Moreover, even if such a limitation would

be erroneous, any such error would be

harmless to the Town if the District

Court nevertheless rules in the Town's

favor on the merits. It would therefore

be premature and perhaps unnecessary for

this Court to grant certiorari on this

issue.

Since the legal questions presented

by the petition may never actually arise

in this case, allowance of a writ of cer-

tiorari on those questions at this stage

of the proceedings would be unnecessary.

» 36 =

As stated by Justice Frankfurter, re-

specting the denial of a petition for

certiorari in Maryland v. Baltimore Radio

Show, Inc., 338 U.S. 912, 918 (1950):

A case may raise an important

question but the record may be

cloudy. It may be desirable to

have different aspects of an is-

sue further illumined by the

lower courts. Wise adjudication

has its own time for ripening.

This petition presents a perfect illus-

tration of Justice Frankfurter's point.

For this reason, if no other, the writ

should not issue, This petition, how-

ever, also must fail because it runs a

foul of other sound, self-imposed limits

on this Court's certiorari jurisdiction.

° li «

II. CERTIORARI IS NOT WARRANTED TO

REVIEW THE LOWER COURTS' DIS-

CRETIONARY AND FACT-SPECIFIC

EVIDENTIARY RULINGS AND REMEDIAL

ORDERS.

AS noted in Appalachian Power Co. Vv.

American Institute of Certified Public

Accountants, 80 S. Ct. 16 (1959), cer-

tiorari is not ordinarily granted where

"the question is one that concerns the

judgment of the District Judge in rela-

tion to a particular set of facts."

Since each of the questions presented by

the present petition involves the exer-

cise of discretionary judgments by the

lower courts, certiorari should be denied

in this case.

The principal questions presented by

this petition involve the remedy of reim-

bursement, which the Court of Appeals

held might be available to the party that

ultimately prevails in the District

Court. As recognized by the Court of

Appeals, the appropriateness of such

relief "is a question determined by bal-

ancing the equities," P. 137a, and the

determination of whether to award reim-

bursement to the prevailing party is

"committed to the sound discretion of

the district court." P, l3va. This

Court should resist the petitioners' in-

Vitation to exercise that judgment it-

self.

The District Court similarly has

broad discretion in any case to exclude

relevant evidence on the grounds that

"its probative value is’ substantially

Outweighed by . . . considerations of

undue delay, waste of time, or needless

presentation of cumulative evidence."

Fed. R. Evid. 403; see also Hamling v.

United States, 418 U.S. 87, 127 (1974)

("District Court retains considerable

e iS «

latitude even with admittedly relevant

evidence in rejecting that which is cumu-

lative"). Indeed, Rule 6ll(a) of the

Federal Rules of Evidence explicity vests

control over the mode of presenting evi-

dence in the trial court so as to “avoid

needless consumption of time." See also

Geders v. United States, 425 U.S. 80, 87

(1976).

In actions brought under the EHA,

the trial court's discretion to exclude

cumulative evidence is, if anything, even

broader than is generally the case be-

cause of the deference owed by the court

to the administrative proceedings. Board

of Education _v. Rowley, 458 U.S. 176,

206 (1982). Thus, as recognized by the

Court of Appeals, the determination of

what evidence may be admitted “must be

left to the discretion of the trial

court." P. ll4a, 115a. In order to

= 14 «=

avoid unduly limiting that discretion,

the Court of Appeals declined to adopt

any rigid rules as to which witnesses

may be allowed to testify. P. ll4a.

Because of the discretionary nature of

such an evidentiary determination, review

by this Court is unwarranted.

A final discretionary action that

the petitioners ask this Court to review

is the Court of Appeals' departure from

what petitioners characterize as the "law

of the case" with respect to the their

right to be reimbursed by the parents

for amounts expended on the child's tui-

tion and related expenses. P. 21. Cer-

tiorari should be denied on that issue

for several reasons,

First of all, what the petitioners

characterize as the "“"iaw of the case”

is, in fact, only dictum. At an earlier

stage of this case, in affirming the Dis-

trict Court's denial of a preliminary

injunction, the Court of Appeals rejected

the Town's contention that if it were

required to pay the child's tuition pend-

ente lite, it would be unable, as a prac-

tical matter, to recover that money if

the Town prevailed on the merits of the

case. P. 44a-45a. Without addressing

the question of the Town's legal right

to reimbursement, the Court of Appeals

simply found that the Town had not made

a sufficient showing of irreparable in-

jury to warrant the issuance of a prelimn-

inary injunction in its favor. P. 45a,

46a-47a. Contrary to petitioners’ con-

tention, such a ruling cannot correctly

be characterized as a holding that if

the Town were to prevail on the merits

it would be legally entitled to recover

the tuition paid in the interim. Thus,

a B60 a

the law of the case doctrine is inappli-

cable here both because the Court of Ap-

peals' previous statement on the issue

of reimbursement was not “law" but dic-

tum, Barney v. Winona & St. Peter Rail-

road Co. 117 U.S. 228, 231 (1886) (law

of the case doctrine “does not apply to

expressions of opinion on matters the

disposition of which was not required

for the decision"), and because that

statement was made in the context of an

interlocutory appeal, not a decision on

the merits. See United States v. United

States Smelting Refining & Mining Co.,

339 U.S. 186, 198-99 (1950) (interlocu-

tory order does not constitute law of

the case).

Furthermore, as discussed in the pre-

ceding section, the Court of Appeals in

its most recent decision did not hold

~— + a

that the Town would be precluded from

Obtaining at least partial reimbursement

if it ultimately prevails in the District

Court, but rather left the wuestion of

reimbursement for the District Court to

resolve. P. 137a. Thus, even if the

Court of Appeals' previous suggestion

that such reimbursement might be avail-

able could be viewed as the law of the

case, that "law" was not violated by its

more recent discussion of the issue,

In any event, even if it accurately

could be said that the Court of Appeals

departed from the law of the case, it

was entirely within its discretion to do

so. United States vv. United States

Smelting Refining & Mining Co., Supra at

199 ("'law of the case’ is only a dis-

cretionary rule of practice"); Messenger

v. Anderson, 225 U.S. 436, 444 (1912)

o 26 -<

("law of the case . . . merely expresses

the practice of courts generally to re-

fuse to reopen what has been decided,

not a limit to their power"); /rizona v.

California, 460 U.S. 605, 618 (1983)

(same). Therefore, insofar as such a

departure occurred here, granting of the

petition for a writ of certiorari to re-

view that discretionary action is not

warranted,

III. THE COURT OF APPEALS' HOLDING THAT

REIMBURSEMENT MAY BéE AVAILABLE TO

THE PREVAILING PARTY UNDER THE EDU-

CATION OF THE HANDICAPPED ACT DOES

NOT CONFLICT WITH DECISIONS ' OF

OTHER CIRCUITS.

The Court of Appeals held that, under

§ 1415(e)(2) of the EHA, which allows

"such relief as the district court deter-

mines iS appropriate," retroactive reim-

bursement may be awarded to the prevail-

° 19 =

ing party .4/ The Court of Appeals'

opinion also sets forth circumstances

under which it. would not be appropriate

to award retroactive reimbursement to

either the Town or the parents as the

prevailing party on remand. P. 126a-

138a.2/ For example, if the District

Court finds that the Town acted in bad

4/ The court's opinion is limited to

the availability of retroactive reim-

bursement for tuition and related ex-

penses. The petitioner erroneously

equates retroactive reimbursement with

damages, generally. P. 24. The term

damages is much broader than retroactive

reimbursement and encompasses such other

relief as compensatory and punitive dam-

ages, which are not at issue here. See,

e.g., Marvin H. v. Austin Indep. School

Dist., 714 F.2d 1348, 1356 (5th Cir.

T983); see generally Hyatt, Litigating

the Rights of Handicapped Children to an

Appropriate Education: Procedures and

Remedies, 29 U.C.L.A. L. Rev. 1, 42-51

(1981).

5/ Up until the time of trial, the par-

ents had paid for one year of the child's

private school placement, and the Town

had paid for most of the two subsequent

years. Both the paren.s and the Town

seek retroactive reimbursement for the

monies paid.

» 26 -

faith by committing serious. procedural

Violations, the Town may not be able to

recover retroactive reimbursement even

though the District Court may find that

the educational plan it proposed was ap-

propriate. P,. 138a. Similiarly, if the

parents are found to have acted inappro-

priately in placing their child in a pri-

vate school during the pefidencey of the

administrative proceedings, reimbursement

may not be available to them. P. 126a-

1l33a. Within the guidelines set forth

by the Court of Appeals, whether to allow

retroactive reimbursement is "a matter

of equitable relief, committed to the

sound discretion of the district court."

P. 137a.2/

6/ The petitioners apparently misper-

ceive the Court of Appeals' holding,

Since they request that "(t]he First Cir-

Ccuit's award of damages in this case" be

(footnote continued)

The Court of Appeals' holding that

an award of retroactive reimbursement

requires a balancing of the equities is

consistent with the language of

§ 1415(e)(2), which authorizes the Dis-

trict Court to grant “appropriate” re-

lief. The balanced approach to reim-

bursement under the EHA taken by the

Court of Appeals is correct and should

be permitted to stand, subject, of

course, to appellate review of any al-

leged abuses in the actual application

of that approach by the trial courts.

Contrary to petitoners' assertions,

the Court of Appeals' equitable approach

(footnote continued)

reversed. P. 28. There has been, of

course, no award of damages to any party;

the case has been remanded for a new

trial. The court stated, "“[{o]jnce the

district court reaches its decision, it

may order reimbursement in accordance

with the principles discussed in section

IV, supra" (emphasis added). P. 139a.

« 22 -

to the availability of reimbursement is

consistent with decisions of other cir-

cuits. See Supreme Court Rule 17.1l(a).

Any distinctions between the Court of

Appeals' decision and those of other cir-

cuits certainly do not present the type

of conflict among the circuits which war-

rants the granting of certiorari. Ct.

Rice v. Sioux City Memorial Park Ceme-

tery, Inc., 349 U.S. 70, 79 (1955) (quot-

ing Layne & Bowler Corp. v. Western Well

Works, Inc., 261 U.S. 387, 393 (1923))

(certiorari is appropriate "in cases

where there is a real and embarrassing

conflict of opinion and authority between

the circuit courts of appeal.")

Few circuits have addressed the issue

of retroactive reimbursement in as com-

prehensive a manner as the First Circuit.

The issue ordinarily has arisen in a

piecemeal fashion, and the courts accord-

e 23 «

ingly have limited their rulings on reim-

bursement to particular factual settings.

Those circuits that have considered

the issue of retroactive tuition reim-

bursement to the prevailing party are in

general agreement that under some circum-

stances reimbursement may be awarded.

E.g., Anderson _v. Thompson, 658 F.2d

1205, 1213 (7th Cir. 1981); Department

of Education v. Katherine D., 727 F.2d

309, 817 (9th Cir. 1983)./

The cases upon which petitioners rely

to show a conflict among the circuits

have not considered the availability of

retroactive reimbursement to the prevail-

7/ In fact, the Court of Appeals follows

the rule first established in Anderson

that where a town fails to comply with

the EHA's procedural requirements it may

not be able to recover retroactive reim-

bursement. Anderson, 658 F.2d at 1214.

P. 138a.

- 24 <-

ing party at the conclusion of the judi-

Cial proceedings. The Courts of Appeals

for the Second and Third Circuits, for

example, have addressed the issue of in-

ferim funding during the pendency of the

appeal. E.g., Vander Malle vy, Ambach,

673 F.2d 49, 52 (2nd Cir. 1982); Grymes

Ve. Madden, 672 F.2d 321, 323 (3rd Cir.

1982).

The Courts of Appeals for the Fourth

and Fifth Circuits have addressed the

narrow issue of the availability of reim-

bursement to parents who have transferred

their child to a private school during

the pendency of the administrative and

judicial proceedings without the agree-

ment of state or local authorities.

E.g., Stemple v. Board of Education, 623

P.2d 893, 898 (4th Cir. 1980), cert. de-

nied, 450 U.S. 911 (1981); Stacey G. v.

° 24-0

Pasadena Independent School District,

695 F.2d 949, 953-54 (Sth Cir. 1983) .2/

The Eighth and Eleventh Circuit cases

upon which petitioners also rely, concern

the availability of compensatory and pun-

itive damages where a child has remained

in an inappropriate placement; they do

not address the availability of retro-

active tuition reimbursement to the pre-

vailing party, the remedy at issue here.

E.g., Miener v. Missouri, 673 F.2d 969,

979 (8th Cir.), cert. denied, 459 U.S.

909 (1982); Powell v. Defore, 699 F.2d

1078, 1081 (llth Cir. 1983).

8/ Although the Fourth Circuit has not

yet permitted reimbursement to parents

who have placed their child in a private

school pending the administrative and

judicial proceedings, e.g., Rowe v. Henry

County School Bd., 718 F.2d 115, 119 (4th

Gare 583), it has declined to hold that

reimbursement would never be appropriate

under any circumstances. Hessler _ vy.

State Board of Education, 700 F.2d 134,

139 (4th Cir. 1983).

o 26 <

Thus, a review of the cases reveals

that petitioners are simply wrong in

Claiming that the First Circuit departs

from virtually every other circuit to

have considered the issue of reimburse-

ment. RP. 83s The distinctions which

appear in the cases are attributable to

the intensely fact-specific nature of

these cases as well as the varying pro-

cedural contexts in which these cases

arise. The law on reimbursement is still

evolving in most of the circuits. Until

a clear split among the circuits has

crystalized, certiorari should be es-

chewed in favor of "“"[a] series of deci-

sions by the courts of appeals [which]

may well provide more meaningful guidance

to the bar than an isolated or premature

opinion of this Court.” Singleton vv,

Commissioner of Internal Revenue, 439

U.S. 940, 945 (1978) (Stevens, J.,

» 22 «

respecting denial of petition for weit

of certiorari).

IV. THE COURT OF APPEALS‘ DECISION AS

TO THE SCOPE OF _ THE DISTRICT

COURT'S REVIEW IS CONSISTENT WITH

DECISIONS OF THIS COURT.

A. The Court Of Appeals' Remand To

The District Court To Consider

The Town's Procedural Violations

Was Compelled By Rowley.

The state hearing officer found that

the Town failed to comply with numerous

procedural requirements in the develop-

ment of the IEP at issue as well as pre-

vious IEPs prepared by the Town. P. l3a,

17a-20a. The District Court considered

such violations to be irrelevant to the

appropriateness of an educational plan.

P. 60a. However, on the basis of this

Court's decision in Board of Education

v. Rowley, 458 U.S. 176 (1982), the Court

of Appeals remanded the case to the Dis-

» 26 -

trict Court for consideration of the

Town's procedural violations. P. 107a-

108a.2/ As this Court recognized in

Rowley, the EHA contemplates a comprehen-

Sive regulatory scheme in which the fede-

ral government provides financial Support

to those states that c*fer free educa-

tional services for handicapped children.

Instead of attempting to provide detailed

Substantive standards for the kind of

education that should be provided to

9/ Insofar as some of the procedural

violations found by the hearing officer

involve state law, we interpret the Court

of Appeals' decision as requiring the

District Court to consider and give due

weight to the procedural violations found

by the state hearing officer. fThe Dis-

trict Court itself is precluded from de-

termining whether there were violations

of state law and awarding relief on that

basis. Pennhurst State School & Hospital

v. Halderman, 104 S. Ct. 900, 917 eCLF

see Smith v. Robinson, 104 S. Ct. 3457,

3464 n. 6 (1964).

@ 26 «

handicapped children with the funds pro-

vided under the EHA, Congress has estab-

lished a series of procedural require-

ments designed to insure that the speci-

fic educational needs of the handicapped

student in question will be met. In Row-

ley, this Court emphasized the importance

of the EHA's procedural safeguards:

It seems to us no exaggeration to

say that Congress placed every bit

as much emphasis upon compliance with

procedures giving parents and guard-

ians a large measure of participation

in every stage of the administrative

process, see, e.g., §§ 1415(a)=(d),

as it did upon the measurement of

the resulting IFP against a substan-

tive standard. We think that the

congressional emphasis upon full

participation of concerned parties

throughout the development of the

IEP .. . demonstrates the legisla-

tive conviction that adequate com-

pliance with the procedures pres-

cribed would in most cases assure

much if not all of what Congress

wished in the way of substantive con-

tent in an IEP.

Rowley, 458 U.S. at 205-06.

« 36 «

Thus, Rowley provides that procedural

Violations should be of central concern

to a district court exercising its judi-

Cial -review function under 20 U.S.C.

§ 1415(e)(2):

- « « [A] court's inquiry in suits

brought under § 1415(e)(2) is two-

fold. First, has the State complied

with the procedures set forth in the

Act? And second, is the individual-

ized educational program developed

through the Act's procedures reason-

ably calculated to enable the child

to receive educational benefits?

Id. at 206-07.

Thus, since the procedural requir-

ments of the EHA are as central to the

child's rights as is the specific class-

room instruction offered, the Court of

Appeals properly remanded the case to

the District Court for consideration of

the hearing officer's finding of “contin-

uing procedural irregularity." P. l3a.

« 3) «

B. The Guidelines Established By

The Court Of Appeals For The

Admission Of "Additional Evi-

dence” Are Consistent With The

Rowley Requirement That The Ad-

Ministrative Proceedings Be Ac-

corded Due Weight.

The judicial review provision of the

EHA provides that "the court shall re-

ceive the records of the administrative

proceedings, shall hear additional evi-

dence at the request of a party, and,

basing its decision on the preponderance

of the evidence, shall grant such relief

as the court determines is appropriate,"

20 U.S.C. § 1415(e)(2). The Court of

Appeals held that the word “additional”

should be construed in its ordinary sense

to mean supplemental. While the court

left to the discretion of the trial judge

What additional evidence should be admit--

ted, it cautioned:

» 32 \@

Thus construed, this clause does not

authorize witnesses at trial to re-

peat or embellish their prior admin-

istrative hearing testimony; this

would be entirely inconsistent with

the usual meaning of “additional.”

We are fortified in this interpreta-

tion because it structurally assists

in giving due weight to the admini-

Strative proceeding as Rowley re-

quires.

P. ll3a-ll4a.

The Court of Appeals properly con-

sidered the Rowley requirement that the

administrative proceedings be given due

weight in setting guidelines for the Dis-

trict Court on the issue of “additional

evidence." Without the limits suggested

by the District Court, the judicial re-

view process would become the trial de

novo proscribed by Rowley. Allowing the

parties to introduce any evidence they

wish, including repetitive and refined

testimony from the same witness who test-

ified at the administrative hearing,

merely trivializes, rather than gives

"due weight," to the exhaustive admini-

Strative process set out by Congress.

Cf£. Roncker_ v. Walter, 700 F.2d 1058,

1062 (6th Cir.), cert. denied, 104 S.Ct.

196 (1983)(reviewing town's educational

placement under an abuse of discretion

standard "renders the administrative

hearings provided for by the Act virtu-

ally meaningless").

Since the guidelines set forth by

the Court of Appeals are thus consistent

with the plain meaning of the term “addi-

tional,” other provisions of the EHA that

set forth a comprehensive administrative

scheme, and the Rowley “due weight" re-

quirement, those guidelines need not be

reviewed by this Court.

- 34 -

CONCLUSION

For the reasons stated above, the

respondents request that the petition

for a writ of certiorari to the United

States Court of Appeals for the First

Circuit be denied.

Respectfully submitted,

PRANCIS X. BELLOTTI

ATTORNEY GENERAL

ELLEN L. JANOS

JUDITH S. YOGMAN

Assistant Attorneys General

Government Bureau, Rm. 2019

One Ashburton Place

Boston, MA 02108

(617) 727-1031

Counsel for State Respondent

DAVID W. ROSENBERG, Esq.

Hill & Barlow

225 Franklin Street

Boston, MA 02109

(617) 423-6200

Counsel for Doe Respondents

Date: October 3l, 1984

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