Amicus Curiae Brief — Florence County School Dist. Four v. Carter

Suproms Commt, GAL

Firh.ED

No. 91-1523 | JAN - 6 199

Gries Gs THE CLEAN

In the Supreme Court of the United States ~~

OCTOBER TERM, 1992

FLORENCE CouNTY SCHOOL DisTRICT Four.

ET AL., PETITIONERS

v.

SHANNON CARTER. A MINOR, BY AND THROUGH HER

FATHER AND NEXT FRIEND, EMORY CARTER

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

AMY L. WAX

Assistant to the Solicitor General

WILLIAM KANTER

JOHN P. SCHNITKER )

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether, after determining that petitioners failed to meet

their statutory obligation under the Individuals with Dis-

abilities Education Act (IDEA or the Act), 20 U.S.C. 1400 et

seq. (1988 & Supp II 1990), to provide respondent Shannon

Carter with a “free appropriate public education,” the district

court had authority to order petitioners to reimburse

respondent for the costs of Shannon’s education in a private

school, chosen by her parents, that did not “meet the

standards of the State educational agency” under Section

1401(a)(18)(B) of the Act, but that did provide Shannon with an

“appropriate” education.

2. Whether the court of appeals correctly determined that

petitioners failed to meet their responsibility under the IDEA

to provide respondent Shannon Carter with a “free appro-

priate public education.”

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Alamo Hgts. Ind. Sch. Dist. v. State Ba. of Educ, 790

F.2d 1158 (5th Cir, 1986) ooo cccccccccccccecceece ee. 16, 17

Bell v. Hood, 327 U.S. 678 (1946) 0 17

Board of Educ. v. Rowley, 458 U.S. 176 (1982) 8-9, 10, 11, 12

California v. American Stores Co., 495 U.S. 271 (1990) _. 12

Carrington v. Commissioner of Educ., 404 Mass. 290

Sine detieibtendtinaeettenenrentnenncnmsanssnneeoaeeenecanaaessesec.... 17

Franklin v. Gwinnett County Pub. Schools, 112 8. Ct.

SE - $2.17

Hall v. Cole, AV2 USS. 1 OTB) coco ccccoccccccccceccceceeccee. 12

Honig v. Doe, 484 U.S. 305 (1987) 2

Porter v. Warner Co., 328 U.S. 395 (1946) 12

School Committee of the Town of Burlington v. Depart-

ment of Educ., 471 U.S. 359 (1985) 5, 12, 13, 14, 15, 16, 17

Town of Burlington v. Department of Educ., 736 F 2d

773 (ist Cir. 1984), aff'd, 471 U.S. 359 (985) 17

Tucker v. Bay Shore Union Free School Dist.. 873 F 2d

EE 7, 17, 18

Statutes and ,egulation:

Individuals with Disabilities Education Act, 20 U.S.C.

1400 et seq. (1988 & Supp. 11 1990) l

ET 1

| | 2,4, 15

20 U.S.C. 140 Ma DBA) o.oo ccccccccccceccececeeeeeee. 15

20 U.S.C. 140May ISB) oo. 7, 9 12, 14, 16, 18, If

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lV

Statutes and regulation —Continued: Page OcToRER TERM. 1992

20 U.S.C. 1401(a)20) 2000... ae ee Ree TL e 2, 15 ;

20 U.S.C. 1411-1415 .................. a al cial es ee 2

SE ae RSENS 4 ;

ee Ae 2 | No. 91-1523

20 U.S.C. 141204) peccccecooscosonsseseneccoescecesecosscosocososecsessece 15 FLORENCE COUNTY SCHOOL DISTRICT Four.

20 US. e 141215 B) OSSOSOSOSSSOCSSSOSOES SESE CESSCSOSSECSSSOCCCOSSeeSCSsS 2 ET AL.. PETITIONERS

ee 2

a 7, 14, 16 9.

eee siecle 2,3, 15

ee I ss eaertenersaeeaieenennemeianeasiats 7, 10, 12 SHANNON CARTER, A Minor, By AND THROUGH HER

4! em 13 FATHER AND NEXT FRIEND. Emory CARTER

ET Ee ee ee 2

S.C. Code Regs. § 43-243E (1982) ........... —— taal otal 14

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is filed in response to the Court's invitation

to the Solicitor General to express the views of the United

States.

STATEMENT

1. In the Individuals With Disabilities Education Act

(IDEA or the Act), 20 U.S.C. 1400 et seq. (1988 & Supp. Il

1990), Congress sought to assure the availability to all

disabled children of “a free appropriate public education

which emphasizes special education and related services

designed to meet their unique needs.” 20 U.S.C. 1400(c).

Congress sought to “assist States and localities to provide

for the education of all children with disabilities,” ibid., by

(1)

2

offering financial assistance to States in exchange for the

States’ agreement to comply with the federal statutory

standards and procedures. 20 U.S.C. 1411-1415, 1420.

In order to qualify for federal financial assistance under

IDEA, a State must demonstrate that it “has in effect a

policy that assures all children with disabilities the right

to a free appropriate public education.” 20 U.S.C. 1412(1).

That policy must be reflected in a state plan, approved by

the Secretary of Education, that describes the goals,

programs, and timetables under which the State intends to

educate children with disabilities within its jurisdiction.

20 U.S.C. 1412, 1413.' At the local level, IDEA requires

the pertinent public education authority to prepare, and

review annually, an “individualized education program”

(IEP) for each disabled child. 20 U.S.C. 1401(a)(20),

1414(aX5). As this Court has noted, the IEP is the

“centerpiece of [IDEA’s] education delivery system for

disabled children.” Honig v. Doe, 484 U.S. 305, 311 (1987).

The IEP describes the individualized instruction and

services that will be provided to the disabled child, and sets

goals for educational achievement. 20 U.S.C. 1401(a)(18)

and (20), 1414(aX(5).*

' Among other things, the State must demonstrate that, “to the

maximum extent appropriate,” it will educate children with disabilities

“with children who are not disabled,” unless “the nature or severity of

the disability is such that education in regular classes with the use of

aids and services cannot be achieved satisfactorily.” 20

v S.C. 141215" B). This is known as the “mainstreaming” requirement.

* An IEP is developed jointly by school personnel, the parents of the

disabled child, and, where appropriate, the child himself. The IEP

ordinarily includes a statement of the child's present levels of

educational performance, the annual educational goals (including short

term instructional objectives), the specific educational services to be

on an annual basis, whether instructional objectives are being achieved.

20 U.S.C. 1401420). The local education agency must provide for

3

2. In 1982 and 1983, respondent Shannon Carter was a

student in the seventh grade at the Timmonsville public

school operated by petitioner Florence County School

District Four.’ As a result of poor performance, Shannon

was tested twice by the school district in 1983 for potential

learning disabilities. The school district concluded that

Shannon's test results at that time did not qualify her as a

learning disabled student. Pet. App. 3a, 24a.

In 1984, Shannon's continued poor performance in the

ninth grade prompted her parents to seek additional

testing from the school district. Based on tests conducted

in April 1985, the school psychologist concluded that

Shannon exhibited a “serious learning disability” under

South Carolina State Department of Education criteria.

Pet. App. 4a, 25a. On May 1, 1985, school personnel and

Shannon's parents held a meeting to formulate an in-

dividualized education program (IEP) for Shannon. The

school district proposed that Shannon remain in regular

classes but spend at least two hours daily in the “resource

room.” Shannon's parents objected to this plan because it

would require Shannon to attend a special education class

alongside emotionally ill and mentally retarded students.

Instead, her parents proposed an “itinerant” program

under which Shannon would remain in regular classes but

yearly review of the [IETP, and must make appropriate revisions in the

plan if necessary. 20 U.S.C. 1414(ay(5).

In addition to establishing detailed requirements for the IEP, IDEA

also grants parents or guardians of children with disabilities certain

procedural rights with regard to decisions concerning the child's

education, including the right to examine relevant records, the right to

a hearing before the local educational agency and review of the

agency's decision by the State, and the right to challenge the State's

decision in a civil action in either state or federal court.

* After attending Timmonsville Elementary School for the first

grade, Shannon apparently attended the Roy Hudgens Academy, a

private school, for grades two through six. Pet. App. 3a, 24a.

4

receive individualized instruction for three periods per

week. An IEP was prepared based on this placement, was

signed by the school district and Shannon's parents, and

became effective on May 2, 1985. The IEP established

goals in reading and mathematics of four months’ progress

for the school year. /d. at 4a-ha, 26a-27a.

Dissatisfied with the IEP, Shannon's parents requested

a hearing to challenge the school district's educational

program.’ On August 20, 1985, a hearing was held by a local

educational hearing officer, who concluded that petitioners

were “providing an adequate academic program” for

Shannon. Pet. App. 44a-54a. On October 14, 1985, this

conclusion was upheld on review by the state Department

of Education. /d. at 40a-43a. In the meantime, Shannon's

parents decided that Shannon should be placed at the

Trident Academy in Mt. Pleasant, South Carolina, a

private academy specializing in the education of learning

disabled children. Shannon began courses at Trident in

September 1985 and ultimately graduated from that

institution in the spring of 1988. /d. at 5a, 28a. Trident is

fully accredited by the Southern Association of Colleges

and Schools. Shannon's parents, however, did not seek

approval for Shannon's placement at Trident from the

South Carolina Department of Education. /hid.

5. InJuly 1986, Shannon's parents filed this suit on her

behalf, claiming that petitioners breached their duty under

IDEA to provide Shannon with a “free appropriate public

education.” Pet. App. 6a. See 20 U.S.C. 1412, 1401(a)(18).

The complaint also sought reimbursement for tuition and

other costs incurred at Trident under this Court's

* The district court commented that, although Shannon's parents

signed the IEP, they clearly “were not satisfied with the pian.” It

found that, since an IEP “is not a binding contract,” and can be

challenged by the parents at any time, the fact that the parents signed

the document was irrelevant to the dispute concerning the adequacy of

the IEP. Pet. App. 27a

5

decision in School Committee of the Town of Burlington vy.

Department of Educ., 471 U.S. 359 (1985) (Burlington).

After a three-day bench trial, the district court ruled that

the school district had violated IDEA. Pet. App. 20a-39a.

Although the court found “no serious procedural non-

compliance [with the Act] on the part of the school

district,” id. at 34a-35a, it concluded that the school

district had failed “to provide Shannon Carter with a free

appropriate public education.” /d. at 36a. The court

determined that the school district’s “offer of only three

periods of itinerant study per week failed to meet

Shannon's educational needs” and that the achievement

goals set by the IEP “were wholly inadequate” since, even

if Shannon met them, she would “continue to fall behind

her classmates at an alarming rate.” /d. at 27a, 36a.

The district court also found that, “lallthough | Trident

Academy] did not comply with all of the procedures

outlined in [IDEA],”" the school “provided Shannon an

excellent education in substantial compliance with all the

substantive requirements” of the statute. Pet. App. 37a.°

®* The court did not elaborate on the “procedures” with which

Trident failed to comply. However, the court elsewhere noted that the

school had “not been approved by the South Carolina State Department

of Education” as an appropriate placement for handicapped children,

Pet. App. 37a, and that it would not likely be eligible for approval

because it failed to meet the state requirement that it employ only

certified teachers. /d. at 28a. See also id. at Ila (court of appeals’

observation that Trident “does not, for example, develop education

plans called IEPs,” as the Act requires, and that it employs “at least

two faculty members” who are not “certified by the state.”), id. at 62a-

71a (South Carolina regulations setting forth educational requirements

for certification of teachers of disabled children).

* The court stated that Trident “evaluated Shannon quarterly, not

yearly, as mandated by the [Act], it provided Shannon with low

teacher student ratios, and it developed a plan which allowed Shannon

to receive passing marks and progress from grade to grade.” Pet. App.

37a. The court also noted the findings of its own expert, Dr. Richard

Nagle, who tested Shannon and found that she had “made significant

_

6

The court rejected petitioners’ argument that the school

district could not be ordered to pay tuition reimbursement

because the school in which Shannon's parents placed her

“had not been approved by the South Carolina State

Department of Education.” /bid. The court observed that

“It|his case involves a situation where the school district

failed to provide the child with a free appropriate public

education, and the only way the parents could provide the

same to their daughter within a meaningful time frame

was to enroll her in a private school.” /d. at 38a. The

court concluded that “[njothing in the existing law or reg-

ulations” imposes the “stringent requirements advanced

by |petitioners]” as a precondition to reimbursement for

parents’ unilateral placement under these circumstances.

Ibid. The court awarded respondent $35,716.11 in reim-

bursement for costs incurred in connection with

Shannon’s education at Trident, together with prejudg-

ment interest. /d. at 2la, 29a-32a, 39a.

4. The court of appeals affirmed. Pet. App. la-19a.

Observing that the IEP’s goal of “four months progress

over a period of more than one year was rather modest”

and “failed to satisfy the Act’s requirement of more than

minimal or trivial progress,” the court of appeals upheld

the district court’s determination that the school district

failed to provide Shannon with a free appropriate public

education under the Act. /d. at Ta-8a.

The court also upheld the district court’s order of

reimbursement, rejecting petitioners’ argument that

reimbursement is authorized under the statute “only when

parents place their child in a private school approved by

progress at Trident.” /d. at 29a, 37a. The court observed that “Shannon

entered Trident Academy in the fall term of 1985 as a functional

illiterate.” /d. at 25a. Dr. Nagle found that, during Shannon's time at

Trident, “her reading comprehension had risen from a level of 4.7 in

1985 to 7.8 in 1988.” Jd. at 29a.

7

the state.” Pet. App. 12a. The court noted that, although

Trident’s “educational program in many ways parallels”

the Act’s requirements, Trident “does not attempt to

comply with the terms of [IDEA].”" Jd. at lla. It held,

however, that this was not “fatal to the request for

reimbursement.” /d. at lla, 12a. The court observed that

the Act’s remedial provision—which authorizes the court

to “grant such relief as [it] determines is appropriate,” 20

U.S.C. 1415(e)(2)—is a “broad grant of equitable power

designed to provide courts maximum flexibility in

effectuating the statutory objectives.” Pet. App. 18a; id. at

10a. It noted further that the requirement in Section

1413(a)(4)(B) “that private schools receiving funds under

the Act meet state educational standards” applies “only

when the child is placed in the private school by the state

or local school system.” Pet. App. 13a. The court con-

cluded that “the Act itself simply imposes no requirement

that the private school be approved by the state in parent-

placement reimbursement cases.” /bid.

The court recognized that the Second Circuit had taken

a contrary view in Tucker v. Bay Shore Union Free

School District, 873 F.2d 563 (2d Cir. 1989). Pet. App. 15a-

17a. The Tucker court relied on the definition of “free

appropriate public education” in the Act, see Section

1401(a)(18)(B), and on the Court’s statement in Burling-

ton, 471 U.S. at 369, that reimbursement is appropriate

only if “the court ultimately determines that such

placement, rather than a proposed IEP, is proper under the

Act.” Pet. App. 15a. The court “decline[d] to follow the

Tucker decision,” however, concluding that this Court in

Burlington did not intend “to impose on private schools

chosen by parents the whole panoply of duties that the Act

imposes on the state.” /d. at 16a.

7 See note 5, supra.

8

Relying on Board of Educ. v. Rowley, 458 U.S. 176, 207

(1982), the court of appeals held that, “when a public school

system has defaulted on its obligations under the Act, a

private school placement is ‘proper under the Act’ if the

education provided by the private school is ‘reasonably

calculated to enable the child to receive educational

benefits.’ Pet. App. 17a. The court noted that petitioners

did not dispute the district court’s conclusion that

“Trident Academy provided Shannon with an appropriate

education, which is a prerequisite to reimbursement under

Burlington.” Id. at 10a n.2. The court explained that “it

hardly seems consistent with the Act’s goals to forbid

parents from educating their child at a school that

provides an appropriate education simply because that

school lacks the stamp of approval of the same public

school system that failed to meet the child’s needs in the

first place.” /d. at 18a." Thus, the court concluded, the Act

does not “forbid| | reimbursement when parents place their

child in a private school that has not been approved by the

state.” /d. at 17a.

ARGUMENT

Petitioners present two issues for review. They

contend that the lower courts erred in concluding that

they failed to meet their responsibility under IDEA to

provide Shannon Carter with a “free appropriate public

education.” We disagree. In our view, the lower courts

correctly applied this Court’s decision in Board of Educ. v.

* The court noted that “parents who unilaterally place their child in

an unapproved private school bear substantial risks,” including the risk

that the IEP offered by the public school will be found adequate or that

the private school chosen by the parents will fail to provide an

appropriate education—i.e., one “reasonably calculated to enable the

child to receive educational benefits.” Pet. App. 17a, 18a-19a (quoting

Rowley, 458 U.S. at 207). In either case, the panel noted, “the parents

cannot receive reimbursement, whether or not the private school in

question is state approved.” Pet. App. 18a-19a.

Rowley, 458 U.S. 176 (1982), in deciding that the IEP

proposed by petitioner school board did not meet statutory

requirements. We do not, in any event, believe that that

fact-specific question merits this Court’s review.

Petitioners also contend that, in the event of a default of

a State’s obligations under IDEA, courts lack authority to

award reimbursement to parents for the costs of an

eligible child’s education in a private institution that does

not meet the standards of the state educational agency

under Section 1401(a)(18)(B). Relying on the district

court’s factual findings, the court of appeals agreed that

Shannon’s educational program at Trident Academy was

“appropriate” under the Act, in the sense that it was

reasonably calculated to enable her to receive educational

benefits. See Rowley, 458 U.S. at 206-207. Petitioners

have not directly challenged that conclusion here. Thus,

the question for decision is whether the Act permits

courts to order reimbursement for the costs of an

appropriate private placement that does not meet formal

standards established by the State for the education of the

disabled. In our view, the statute does not forbid courts

from ordering reimbursement in these circumstances, and

the court of appeals was correct to uphold the order of

reimbursement in this case. We do not agree with peti-

tioners, however, that review of the reimbursement issue

is necessarily warranted in this case. Although the courts

of appeals disagree in their interpretation of the statutory

provisions governing the scope of relief available under the

Act when parents place their children in private schools,

that disagreement has arisen in divergent factual settings.

Because the Court could decide this case on narrow

grounds without definitively resolving the issue of

statutory construction on which the courts of appeals

conflict, it would be appropriate for the Court to decline

review in this case. Alternatively, since the courts of

appeals have acknowledged a conflict in their reasoning,

10

the Court may properly conclude that it should address the

reimbursement issue at this time.

1. The courts below correctly concluded that the [EP

proposed by the school district failed to provide Shannon

with an “appropriate” education within the meaning of the

Act. The inquiry in a suit challenging a State’s compli-

ance with the requirements of IDEA is twofold. First, the

court must determine whether the State complied with the

procedures set forth in the Act; second, the court must

decide whether the IEP developed through IDEA’s pro-

cedures is “reasonably calculated to enable the child to

receive educational benefits.” Rowley, 458 U.S. at 206-207.

In suits challenging educational placements, the Act

specifically authorizes district courts to “receive the

records of the administrative proceedings,” to “hear

additional evidence at the request of a party,” and to

“rant such relief as the court determines is appropriate”

based upon “the preponderance of the evidence.” 20 U.S.C.

1415(e)(2). In Rowley, this Court held that the courts’

task under this provision is to make “independent

decision|s] based on a preponderance of the evidence,” but

that the requirement that the record of the state

administrative proceedings be filed with the court “carries

with it the implied requirement that due weight shall be

given to those proceedings.” 458 U.S. at 205-206."

In this case, the district court agreed that “there exists

no single substantive standard describing exactly how

much educational benefit is sufficient to satisfy [IDE A].”

Pet. App. 35a. However, since the IEP proposed by

petitioners would have left Shannon, to a large extent, “in

the regular classrooms of [the] public school system,” the

* The Court in Rowley, 458 U.S. at 205, rejected the argument that

courts have “no power to review the substance of the state program,”

noting that Congress declined to incorporate proposed language “that

would have made state administrative findings conclusive if supported

by substantial evidence.”

1]

district court focused on an “important factor” identified

in Rowley for evaluating educational progress of disabled

children that have been “mainstreamed” in public schools:

whether the student has received “an individualized

program that would allow her to receive passing marks and

advance from grade to grade.” Pet. App. 35a-36a (quoting

Rowley, 458 U.S. at 207 n.28); see also id. at 204. The

district court noted that the IEP’s goal of four months’

educational progress over an entire school year guaran-

teed that Shannon “would continue to fall behind her

classmates at an alarming rate.” Pet. App. 36a. In

addition, the court determined, based on the testimony of

various experts, that the goals set in the IEP were

“wholly inadequate” for Shannon. /d. at 27a. The court

found that “three periods of itinerant study a week

[proposed in the IEP] failed to meet Shannon's educational

needs,” id. at 36a, and that “Shannon was in need of an

intensive self-contained [learning disabled] environment,”

id. at 27a, in order to make progress that would be

adequate under the Act. Based on these findings, the court

held that the IEP proposed by petitioners “did not provide

Shannon with a free appropriate public education as

required by [the Act].” /d. at 36a. The court of appeals

affirmed this conclusion as not “clearly erroneous.” Jd. at

Sa.

These conclusions are fully consistent with Rowley. In

light of the record in this case and the district court's

findings, the court of appeals’ decision cannot properly be

read as establishing the rate of advancement from grade to

grade proposed in the IEP as the sole criterion for the

adequacy of an educational program under the Act. See

Pet. 23. Although the district court found that the plan's

educational goals were too modest, that was not the only

basis for its conclusion that the IEP did not satisfy the

Act’s minimum standards. Rather, the court determined

that the proposal for three special education sessions per

12

week fell short of meeting Shannon's basic educational

needs, and that Shannon required placement in an

“intensive self-contained [learning disabled] environment”

in order to make even minimally acceptable progress. Pet.

App. 27a. In effect, the district court concluded that, in

light of Shannon's individual needs and abilities, the plan

proposed by petitioners was not “reasonably calculated” to

enable her to receive the degree of educational benefit that

would satisfy the Act’s requirements. See Rowley, 458

U.S. at 206-207. Because the decision on this question

merely involves the application of established legal

standards to the facts of this case, it does not merit review.

2. a. The district court did not exceed its remedial

authority under the statute by ordering tuition reim-

bursement for Shannon's education at Trident, even

though the school did not “meet the standards of the State

educational agency.” 20 U.S.C. 1401(a)(18)(B). Congress

authorized the federal courts to “grant such relief [for

violations of the Act] as the court determines is appro-

priate,” 20 U.S.C. 1415(e)(2). As this Court recognized in

Burlington, 471 U.S. at 369, that provision “confers broad

discretion on the court.” When, as here, the statute

grants broad authority to remedy a statutory violation, the

courts may award any remedy that “is compatible with

sound and established equitable principles,” Hall v. Cole,

412 U.S. 1, 12 (1973), and is calculated to advance the

statutory purpose. Porter v. Warner Co., 328 U.S. 395, 400

(1946); see also California v. American Stores Co., 495

U.S. 271, 295 (1990). Cf. Franklin v. Gwinnett County

Public Schools, 112 S.Ct. 1028, 1032, 1034-1035 (1992).

This Court considered the scope of courts’ remedial

powers under IDEA in Burlington v. Department of

Educ., 471 U.S. 359 (1985), in which it held that the statute

permits a court to award tuition reimbursement for the

cost of a private education chosen by the parents if the

13

education offered by the local school board fails to meet the

Act’s requirements. In Burlington, the parents of the

disabled child withdrew him from the public school system

and placed him in a private school that was generally

authorized for such placements by the State. 471 U.S. at

362-363. Because the State had not approved the particular

change in placement, however, the school district

contended that the placement violated Section 1415(e)(3) of

11h A—which requires retention of the child “in the then

current educational placement” unless “the State or local

educational agency and the parents * * * otherwise

agree”—and that, as a result, the parents’ right to

reimbursement was forfeited. This Court rejected the

argument. It reasoned that, if the parents’ failure to

procure the educational agency’s agreement to a change in

placement, in apparent violation of Section 1415(e)(3), is

held to cut off parental rights to reimbursement in the

event of the State’s default, “the principal purpose of the

Act will in many cases be defeated in the same way as if

reimbursement were never available.” That is because

school officiais who disagree with parents concerning the

adequacy of the current educational placement are

unlikely to “agree to an interim private school placement

while the review process runs its course.” 471 U.S. at 372.

As a result,

the parents are forced to leave the child in what may

turn out to be an inappropriate educational placement

or to obtain the appropriate placement only by

sacrificing any claim for reimbursement. The Act was

intended to give handicapped children both an appro-

priate education and a free one; it should not be

interpreted to defeat one or the other of those

objectives.

Thid.

14

;

In this case, in contrast with Burlington, 471 U.S. at

362-363, the private school in which the parents placed

Shannon was not approved by the State and did not meet

state educational standards. If tuition reimbursement

were barred unless a school met state educational

standards, however, Shannon’s parents would be faced with

an untenable choice like the one posed in Burlington: that

of procuring an appropriate education for their disabled

child only at the cost of forgoing a free one. As respondent

points out, Br. in Opp. 23-24, South Carolina does not have

a process by which private schools can obtain general state

approval for programs for disabled children. Nor is there

any other apparent mechanism by which parents can

ascertain whether a private school, even if not directly

approved by the State, meets “the standards of the State

educational agency” under Section 1401(a)(18)(B). See Br.

in Opp. 22-24 (citing S.C. Code Regs. § 43-243E (1982)).'" In

practice, then, Shannon’s parents would be unable to verify

that a private school met state standards; they therefore

could not guarantee that an alternative private placement

satisfied that proposed prerequisite for reimbursement.

In this situation, it would defeat the remedial purposes

of the Act to deny reimbursement for the costs of

providing an “appropriate” education when the State has

defaulted on its statutory obligation to do so. In this

setting, no less than in Burlington, the parents’ right to

obtain a free, appropriate education for their child would be

held hostage to the state or local agency's willingness to

cooperate in the parents’ efforts to find an alternative

! IDEA permits States or local educational agencies to fulfill their

obligations under the Act by placing disabled students in private

educational institutions in lieu of public schools. See Section

1413(a)4B). It is only in this setting that the South Carolina

regulations implementing IDEA provide for state evaluation and

approval of a private school for the placement of a disabled child. See

Br. in Opp. 22-23 (quoting S.C. Code Regs. § 43-243F (1982)).

15

placement for their child. As suggested in Burlington,

however, the state educational agency cannot be expected

to assist parents in their effort to reject the educational

program that the agency has proposed by helping them to

assess a private school’s compliance with “voluminous”

state and statutory requirements. See Br. in Opp. 24.''

Petitioners argue (Pet. 12-21) that, since their obliga-

tion is to provide Shannon with a “free appropriate public

education” under IDEA, they cannot be required to pay for

'! Indeed, where the parents and school officials disagree over the

need for an alternative placement, it is unlikely that the parents can

guarantee that their child's private school education would meet all the

definitional elements of a “free appropriate public education” under

Section 1401(a)(18). For example, Subsection (a)(18)(A) requires that a

“free appropriate public education” be provided “under public supervi-

sion and direction,” and Subsection (a)(18)D) requires that it be

provided “in conformity with the individualized education program

required under section 1414(a)(5).” The statute requires that the IEP be

formulated jointly by the school, parents, and the “local educational

agency.” 20 U.S.C. 1401(a)(20). In addition, the agency or “inter

mediate educational unit” must “establish or revise” the IEP at least

“annually,” 20 U.S.C. 1414(a)(5), 1401(a)18)(D). Thus, petitioners would

make parents responsible for the private school’s production of a

detailed educational plan in cooperation with, and under the supervision

of, the local educational agency, and for the agency's periodic review

and revision of such a plan. See Pet. 15-16 (acknowledging that, in

order to be eligible for tuition reimbursement, parents must show that

the private education conforms to Section 1401(a)(18)(D)). However, as

this Court recognized in Burlington, 471 U.S. at 372, state and local

education officials who disagree with parents over the placement of a

disabled child are unlikely to provide “supervision and direction” over

the education of that child in the private institution chosen by the

parents or to participate in annual revisions to that child's IEP. These

considerations corroborate our view (see pages 15-16, infra) that it is

the state or local educational agency, and not the parents, that must

satisfy the various elements of Section 1401(a)(18). See, e.g., 20 U.S.C.

1412(4) (State must provide assurances that the local educational

agency or unit will establish and periodically review and revise IEP

that meets statutory requirements).

16

Shannon's education at an institution that does not meet

the criteria set forth in Section 1401(a)(18)(B), which

defines a “free appropriate public education” as, inter alia,

one that “meet([s] the standards of the State educational

agency.” We disagree. Since it is the State—and not the

disabled child’s parents—that must provide a free

appropriate public education, it follows that it is the State,

and not the parents, that must ensure that the standards

in Section 1401(a)(18)(B) of the Act are met. This con-

clusion is confirmed by Section 1413(a)(4)(B) of the Act,

which states that, when a State places a disabled child in a

private facility “as the means of carrying out the require-

ments of this [statute],” the State must determine

whether the facility meets “standards that apply to State

and local educational agencies.” The statute places no

parallel obligation on parents who elect to enroll their

children in a private school pending the outcome of their

challenge to the State’s educational plan. In sum, since

parents are under no statutory obligation to ensure that

their child’s education meets the specific standards in

Section 1401(a)(18)(B), they cannot be barred from ob-

taining relief that would otherwise vindicate the Act

solely because of failure to comply with those standards.

We thus agree with the courts below that neither lack of

state approval of a private school for placement of children

under IDEA, nor the school’s failure to qualify for such

approval, constitutes, in itself, a bar to an award to parents

of tuition reimbursement. The rationale underlying

Burlington’s holding is that parents who “elect to risk

shouldering the costs of what they perceive to be a more

appropriate placement, and whose judgment is * * *

vindicated by the district court, should receive more than

an ‘empty victory.’” Alamo Hgts. Ind. Sch. Dist. v. State

Bd. of Educ., 790 F.2d 1153, 1161 (5th Cir. 1986) (citing

Burlington, 471 U.S. at 370). In this case, Shannon’s

parents have been vindicated in their judgment that the

17

placement offered by petitioners was inadequate, and in

their belief that the private school placement they chose

would provide an appropriate education for their child.

Petitioners do not challenge the district court’s con-

clusion that Trident Academy provided Shannon with “an

appropriate education”—one that was “in substantial

compliance with all the substantive requirements” of

[DEA—which is a prerequisite to reimbursement under

Burlington, 471 U.S. at 369, 373-374. See Pet. App. 29a, 37a,

10a n.2; Br. in Opp. 14-15; Pet. Reply Br. 5. In the

circumstances of this case, the award of tuition re-

imbursement is necessary “to make good the wrong done.”

Franklin v. Gwinnett County Public Schools, 112 S.Ct. at

1033 (quoting Bell v. Hood, 327 U.S. 678, 684 (1946)). If that

award is barred, respondent will have received an “empty

victory”—a result contrary to the congressional intent

that this Court has recognized.”

b. Petitioners claim (Pet. 17) that the court of appeals’

decision upholding the remedy in this case is in square

'2 That is not to say, however, that such reimbursement is required

in every case of a State’s default under IDEA. In Burlington, 471 U.S.

at 374, the Court indicated that “equitable considerations are relevant

in fashioning relief’ to parents requesting reimbursement under the

Act. In our view, a court may take into account such factors as the

overall reasonableness of the parties’ conduct (cooperativeness, good

faith, efforts to comply with the statute and regulations, procedural

errors) and the parents’ efforts to cooperate with the State in choosing

an appropriate private placement (including whether parents arbitrar

ily reject placement in schools approved by the State in favor of an

institution, for example, that is considerably more expensive than the

state-approved schools, or that provides significantly more elaborate

services than the statute requires the State to provide). See, eg.,

Tucker v. Bay Shore Union Free School Dist., 873 F.2d 563, 568 (2d Cir.

1989); Alamo Hgts. Ind. Sch. Dist., 790 F.2d at 1161; Town of

Burlington v. Department of Educ., 736 F.2d 773, 801-802 (Ist Cir.

1984), aff'd, 471 U.S. 359, 374 (1985); Carrington v. Commissioner of

Education, 404 Mass. 290, 297 (1989). In this case, the equitable factors,

on balance, favor relief for respondent.

18

conflict with the Second Circuit’s decision in Tucker v.

Bay Shore Union Free School Dist., 873 F.2d 563 (2d Cir.

1989). Because the court of appeals’ analysis in this case is

inconsistent with the reasoning, but not necessarily with

the result, in Tucker, there is no need for the Court to

review the reimbursement issue at this time.

In Tucker, parents dissatisfied with a school district's

proposed plan for educating their disabled child enrolled

the child in a private school. The court of appeals upheld

the district court's determination that the school district

had defaulted on its obligation to provide a “free

appropriate public education” under IDEA, and that the

parents’ alternative private placement was “appropriate to

meet [the child’s] educational needs.” 873 F.2d at 564. The

district court refused to award the parents reimbursement

for the cost of the private school, however, because the

institution was “not on the state’s ‘approved list’ of private

schools eligible to contract with the state for the

education of [the] handicapped.” /d. at 566. The court of

appeals upheld the denial of reimbursement. The “basis for

this result,” the court explained, is IDEA’s “requirement

that handicapped children be educated at public expense

only in those private schools that meet [s|tate educational

standards.” Jd. at 568 (citing Section 1401(a)(18)(B))."* The

court concluded, contrary to the court of appeals’

reasoning in this case, that the statute “does not empower

the district court to award reimbursement” to parents

unless the private placement “meet(|s] the standards of the

State educational agency.” 873 F.2d at 568.

Although the Tucker court indicated that the obstacle to

the award of tuition reimbursement in that case was |. e

'8 The court noted that the private school's unapproved status “was

at least in part the consequence of its unwillingness to follow the state

approved curriculum or to admit emotionally disturbed students,” as

the State required. 873 F.2d at 564 n.1.

19

private school’s failure to meet state educational standards

under Section 1401(a)(18)(B) (which requirement the court

below refused to impose as a prerequisite to reimburse-

ment), the Second Circuit had no occasion to decide

whether a different result would obtain if, as in this case,

the State maintained no list of approved private schools

and did not otherwise provide a mechanism for obtaining

approval or verifying compliance with state standards.

Likewise the court of appeals in this case did not confront

the issue of whether a court could deny reimbursement for

tuition expenses incurred at a private school chosen by

parents that did not meet state standards if the parents

had available to them a list of schools approved by the

State. Although the court of appeals in this case

suggested that reimbursement would not necessarily be

barred in those circumstances, it did not rule out the

possibility that, in a particular case, a court could deny

reimbursement on equitable grounds to parents who

decline to enroll their child in an approved school. See

note 12, supra.

Because this case and Tucker sharply diverge on the

facts, this Court could decide the reimbursement issue in

this case without definitively resolving the question of

statutory construction on which the courts of appeals

disagree. That consideration counsels hesitation in

granting review in this case. Nevertheless, because the

court of appeals itself acknowledged (Pet. App. 15a-16a)

that its decision is in conflict with Tucker on the

underlying issue of the scope of statutory authority to

grant reimbursement, the Court may wish to address the

issue at this time.

20

CONCLUSION

The petition for a writ of certicrari may appropriately

be denied. Alternatively, if the Court determines to grant

certiorari, it should be limited to question 1.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

AMY L. WAX

Assistant to the Solicitor General

WILLIAM KANTER

JOHN P. SCHNITKER

Attorneys

JANUARY 1993