IN THE SUPREME COURT OF THE UNITED STATES FLORENCE COUNTY SCHOOL DISTRICT FOUR Petitioner, v. SHANNON CARTER Respondent. An analysis and case history by Shannon Carter's attorney: Peter W. D. Wright, Esq. 4104 E. Parham Road Richmond, VA 23228 (804) 755-3000 Fax: (804)755-3003 Opening Statement by Peter W. D. Wright before The U.S. Supreme Court on October 6, l993. Mr. Chief Justice, and may it please the Court. Before we get into the issues, I would like to take a moment to review some of the factual questions that are important in responding to Mr. Ayer, Counsel for School District Four. In 1983, when Shannon was thirteen years old, she entered the seventh grade at Timmonsville School. Her mother told the school officials that Shannon could not read and requested that she be evaluated. The school system evaluated her and concluded that she was lazy, unmotivated and a slow learner, who needed to be pressured to work harder. Relying upon this advice, her parents pressured her to work harder. By February 1985, she was sixteen years old, functionally illiterate, had become suicidal and was severely depressed. Her parents obtained counseling for her. The Counselor recommended that Shannon receive a complete psychological evaluation. The results found that Shannon had a severe learning disability and intense remedial educational services were recommended. Following this, the school evaluated Shannon and they concurred that Shannon had a severe learning disability and was average to above average in intelligence. At a conference with parents and school personnel, an individualized educational program was presented to the parents that proposed a resource program for Shannon. This would be a class where Shannon would be placed with emotionally disturbed and mentally retarded children. The parents said that this was not appropriate for Shannon. The school then offered an itinerant program. This program consisted of three hours of special education a week and, after a year in the tenth grade, as a seventeen year old, her reading would still have remained at the fifth grade level and she would have fallen further behind her peer group. The parents contended that this was also inadequate and requested, based upon the advice of Shannon's evaluators, a self contained learning disabled program such as was offered down the road in Florence County School District One. District Four refused to consider placing Shannon in any public or private self contained program. The parents then requested a special education due process hearing. At the August 20, 1985 due process hearing the Carter's requested funding for either two neighboring schools or Trident Academy, a special education school accredited by the Southern Association of Colleges and Schools. The issue at the special education due process hearing and before the District Court Judge was whether or not District Four's program was appropriate. The Trial Court not only found that District Four's program was wholly inadequate, but also found that Trident Academy provided Shannon with an excellent education. She was reading at the twelfth grade level upon graduation. Shannon did receive an appropriate education at Trident. We ask that you also ensure that her education was free. (End of opening) HISTORY In May 1985, after finally accepting the fact that Shannon had a learning disability and an attention deficit disorder, School District Four of Florence County, South Carolina presented her parents with a proposed Individual Education Program (IEP). In that IEP, public school officials proposed an improvement in Shannon's reading scores from the 5.4 to 5.8 grade level and her math scores from the 6.4 to the 6.8 grade level. The public school system alleged that this amount of improvement, after a year of special education, would provide Shannon with an appropriate education. However, the private sector evaluators recommended to her parents that Shannon needed a self-contained learning disabled (LD) program that would provide intensive remediation and educational services. Relying upon this expert advice, the parents requested that Shannon be placed into a self-contained LD class in one of the adjoining public school districts or into Trident Academy, a self-contained private school in Mt. Pleasant, South Carolina. School District Four insisted that an itinerant program that provided three hours a week of one-on-one assistance would afford Shannon a free appropriate public education (FAPE). Objecting that this plan was inadequate to meet Shannon's needs, her parents requested a special education due process hearing. The Hearing Officer ruled that District Four's program was appropriate. The Carters appealed the Hearing Officer's decision, requested a Review Hearing, and enrolled Shannon into Trident Academy. The Reviewing Officer upheld the decision of the Hearing Officer. On July 30, 1986, having exhausted their administrative appeals, the parents filed suit against Florence County School District Four in the U.S. District Court. Florence County filed a Motion to Dismiss asserted that the statute of limitations had passed for appealing a due process hearing. On May 6, 1987, Judge Houck dismissed the Carter's case and they appealed to the Fourth Circuit. While their appeal was pending, the Fourth Circuit issued a statute of limitations decision in another case that confirmed that the Carter case was filed timely. On a Joint Motion filed by both parties, Judge Houck reversed himself, the appeal was withdrawn and the case was allowed to proceed. In January, 1988 Judge Houck heard testimony from witnesses on behalf of the parents and school for two days. He also reviewed the administrative record from the Hearing and Reviewing Officers. In Court, School District Four continued to assert that their proposed IEP was appropriate for Shannon. Judge Houck appointed his own expert to evaluate Shannon, District Four's program, and the education that Shannon was receiving at Trident Academy. Additional evidence from the court appointed expert was heard in May, 1989. On February 6, 1991, Judge Houck found that District Four's program was "wholly inadequate" and that Trident had provided Shannon with an excellent education. The District Court's decision is published in Individuals with Disabilities Education Law Report (IDELR) at volume 17 EHLR page 456. (IDELR was previously published as Education for the Handicapped Law Reporter (EHLR)). The primary issue before the U. S. District Court and at the earlier hearings was simply the appropriateness of the public school's IEP and the three hours a week special education that had been proposed. Credentials of the staff and quality of the program at Trident Academy had not been an issue and were not litigated. Florence County District Four appealed Judge Houck's decision to the U. S. Court of Appeals for the Fourth Circuit. All U. S. District Court appeals are heard by the specific Court of Appeals for that particular Circuit. There are thirteen Circuit Courts in the nation. States within the Fourth Circuit include Maryland, North Carolina, South Carolina, Virginia and West Virginia. The losing party in a Circuit Court of Appeals decision can petition the U. S. Supreme Court for an appeal. Florence County District Four's appeal to the U. S. Court of Appeals for the Fourth Circuit raised a new issue. They now alleged that Trident Academy was not on South Carolina's list of approved special education schools and thus the parents should not be reimbursed, even if the public school defaulted on their responsibility to provide an appropriate education. Yet, South Carolina does not have a pre-existing list of "approved" special education schools. Instead, South Carolina approves schools on a case-by-case basis, after receiving a request from the public school system that wants to place a student into a private special education school. Trident Academy had been approved in three prior placements by South Carolina and had never been disapproved. Neither Florence County School District Four nor the Carters approached the South Carolina Department of Education to request that Shannon's placement at Trident be approved. In the appeal to the Fourth Circuit, School District Four argued that Trident had uncertified teachers on staff and that Trident did not complete annual IEPs on students. During Shannon's first year, one of her teachers was not certified in special education. However, seventy-five percent of the professional staff at Trident Academy have Master's degrees in fields other than special education and are given intensive training in the Orton-Gillingham method of instruction and remediation. This technique is labor-intensive and uses a variety of multi-sensory visual, auditory, kinesthetic and tactile techniques to remediate learning disabilities. Trident Academy does not have a document entitled "IEP". Instead, Trident evaluates each child's progress on a quarterly basis, using objective measures, rather than annually, as required under the standard IEP procedure. On November 26, 1991, The U. S. Court of Appeals affirmed the District Court's decision. Carter v. Florence County School District Four is reported at 950 F. 2d 156 (4th Cir. 1991) In their decision, the Court of Appeals noted that in a similar case, the U.S. Court of Appeals for the Second Circuit had ruled differently. (States within the Court of Appeals for the Second Circuit are New York, Vermont and Connecticut.) In that case, Tucker v. Bay Shore Union Free School District, 873 F. 2d 563 (2d Cir. 1989), the Second Circuit held that if a school is not on the state's approved list or does not meet the standards of the public schools, then the parent may not be reimbursed tuition, even if the special education obtained in the private school was appropriate and the child received educational benefit. The Fourth Circuit criticized the Second Circuit for this position and purposefully created what it known as a "split among circuits", making the case ripe for appeal to the U. S. Supreme Court. The losing party in a Circuit Court of Appeals decision can petition The U. S. Supreme Court for an appeal. When a case is appealed, the moving party petitions the U.S. Supreme Court to issue a "writ of certiorari" allowing the case to proceed. Out of several thousand Petitions filed in the U.S. Supreme Court each year, only one to two percent are granted Writs. On February 22, 1993, the Court agreed to hear the Carter case. In the Petition for a Writ of Certiorari, the moving party has to present the legal issue in the form of a legal question. The "Question Presented" by District Four was: Whether a learning disabled child's parents are entitled to state reimbursement under the Individuals with Disabilities Education Act (IDEA), when they unilaterally place her in a private school that does not meet state educational standards or in other respects satisfy the criteria of a "free appropriate public education," which the state is required under 20 U.S.C. 1401(A)(18) and 1412(1) to provide as a condition of receiving federal funding under the Act. The cited Code sections are as follows: 20 U.S.C. 1401. Definitions (a) As used in this chapter - (18) The term "free appropriate public education" means special education and related services that- (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 the individualized education program required under section 1414(a)(5) of this title. 20 U.S.C. 1412. Eligibility requirements. In order to qualify for assistance under this part in any fiscal year, a State shall demonstrate to the Secretary that the following conditions are met: (1) The State has in effect a policy that assures all children with disabilities the right to a free appropriate public education. Since Florence County School District Four was the Petitioner, the case is now styled as Florence County School District Four v. Shannon Carter rather than Carter v. Florence County. The school system asserted in their brief that it would be illegal for a public school to pay for the tuition at Trident because Trident did not meet the standards of the South Carolina's Defined Minimum Program standards. They alleged that one teacher was not certified and that Trident did not develop IEPs for their students. Amicus Curiae (friend of the court) briefs were filed supporting Florence County District Four's position by the following states: Arizona, Georgia, Louisiana, Maine, Maryland, Montana, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wyoming. Briefs supporting District Four were also filed by a number of other large powerful organizations including The National League of Cities, U.S. Conference of Mayors, Council of State Governments, National Association of Counties, International City/County Management Association, National Governors' Association, National Institute of Municipal Law Officers, National School Boards Association, and The National Association of State Boards of Education. Amicus briefs on behalf of Shannon were filed by the United States Department of Justice/Solicitor General's Office of the United States and the following groups: The National Head Injury Foundation, Inc., National Alliance for the Mentally Ill, The Bazelon Center for Mental Health Law (formerly the Mental Health Law Project), National Association of Protection and Advocacy Systems, Maryland Disability Law Center, Advocacy, Inc. and the Learning Disability Association of America. On October 6, l993 the U.S. Supreme Court heard oral argument. Donald B. Ayer presented the Petitioner's argument, Peter W. D. Wright argued on behalf of Shannon Carter, and Amy L. Wax argued on behalf of the Solicitor General's Office of the United States. LEGISLATIVE AND CASE LAW ANALYSIS Two landmark special education cases in 1971 and 1972, Pennsylvania Assn. for Retarded Children v. Commonwealth and Mills v. Board of Education of District of Columbia, triggered Congressional hearings and subsequent passage of Public Law 94-142. The statute was initially known as the Education for All Handicapped Children Act of 1975 and is now known as the Individuals with Disabilities Education Act (IDEA). IDEA is located in the United States Code, Volume 20 U.S.C. 1400. The legislative history and congressional intent behind passage of the law can be found in the United States Code Congressional and Administrative News 1975 beginning at page 1425 (U.S.C.C.A.N. 1975, p. 1425). The detailed Regulations that accompany the statute can be found in Volume 34 of the Code of Federal Regulations (CFR), beginning at Part 300. In passing Public Law 94-142, Congress stated that they wanted to be sure that all handicapped children will "have a right to education, and to establish a process by which State and local educational agencies may be held accountable for providing educational services for all handicapped children." (U.S.C.C.A.N. 1975 p.1427) In support of the decision to pass the Act, in 1975 Congress found that: . . . the most recent statistics provided by the Bureau of Education for the Handicapped estimate that of the more than 8 million children (between birth and twenty-one years of age) with handicapping conditions requiring special education and related services, only 3.9 million such children are receiving an appropriate education. 1.75 million handicapped children are receiving no educational services at all, and 2.5 million handicapped children are receiving an inappropriate education. (At 1432) . . . The long range implications of these statistics are that public agencies and taxpayers will spend billions of dollars over the lifetimes of these individuals to maintain such persons as dependents and in a minimally acceptable lifestyle. With proper education services, many would be able to become productive citizens, contributing to society instead of being forced to remain burdens. Others, through such services, would increase their independence, thus reducing their dependence on society. There is no pride in being forced to receive economic assistance. Not only does this have negative effects upon the handicapped person, but it has far-reaching effects for such person's family. (At 1433) The Act required that each handicapped child receive a free appropriate public education at no cost to the parent. Courts began to disagree about the definition of the word "appropriate." As cases were litigated, some Courts gave a broad definition, stating that each child was entitled to an education that would make the child self-sufficient. Other Courts asserted that the Act requires a school system "to maximize the potential of each handicapped child commensurate with the opportunity provided non-handicapped children." (Rowley, at 201) In 1982, the case of Amy Rowley reached the U. S. Supreme Court. Terms such as maximizing, self-sufficiency, and other definitions were stricken. The U.S. Supreme Court stated that "Special education . . . means specially designed instruction, at no cost to parents or guardians to meet the unique needs of a handicapped child . . . " (At 189) An appropriate education is one that provides "personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. . . and if the child is being educated in the regular classrooms of the public education system, (it) should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Board of Educ. v. Rowley, 458 U.S. 176, 204,205 (1982) Rowley was the first special education case heard by the U. S. Supreme Court. Parents and school systems continued to fight over the level of services that should be provided to children and whether programs were appropriate. When parents of handicapped children became dissatisfied with their child's progress in the public school setting, they removed the child from the public school and placed the child into a private special education program. Parents also requested that the school system reimburse them for the costs of this special education. The Courts have uniformly held that if the public school has provided a free appropriate public education to the child, then the parents are not entitled to reimbursement. However, if a school system has defaulted on their obligation to provide an appropriate education (for example, the school offered resource assistance and the child clearly needed a self-contained program and none was available), and the parent placed the child into a private special education program, at what point were parents entitled to reimbursement? Some Courts held that reimbursement was retroactive to the date of placement or the date of denial of an appropriate education while others held that reimbursement only began after the case was litigated and won by the parent, i.e., several years later. In 1980 and again in 1983, the United States Court of Appeals for the Fourth Circuit held that parents were not entitled to retroactive reimbursement because they violated the "stay put" provisions of the Act. (Stemple v. Board of Education, 623 F.2d 893 (4th Cir. 1980)). Stemple was appealed to the Supreme Court which refused to issue a Writ of Certiorari. The U.S. Court of Appeals for the First Circuit (Maine, Massachusetts, New Hampshire, Rhode Island) disagreed with the Fourth Circuit and their case law allowed for reimbursement to the date of placement. Thus, with a split among the Circuits, the U.S. Supreme Court heard the case of Michael Panico. The issue was reimbursement for his placement into a special education school on the Massachusetts list of approved private special education schools. Interestingly, the Panico family and the Massachusetts Department of Education were on the same side against the Town of Burlington, Massachusetts. The case is referred to in legal literature and case law as "Burlington." It is cited as Burlington School Committee v. Department of Education, 471 U. S. 359, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985) In order to fully understand the context of the Carter case, it will be very helpful to obtain a copy of Burlington. Most law libraries will have the decision if provided with any one of the three legal citations of either 471 U.S. 359, or 105 S. Ct. 1996 or 85 L. Ed. 2d 385. Burlington was written by Justice William Rehnquist who is now the Chief Justice of the Supreme Court. In the unanimous opinion, Justice Rehnquiest explains that the special education statutes were enacted for the benefit of the handicapped children. With regard to parents who remove their child from an inadequate public school program and place the child into a private special education school he stated that: . . . the parents who disagree with the proposed IEP are faced with a choice: go along with the IEP to the detriment of their child if it turns out to be inappropriate or pay for what they consider to be the appropriate placement. If they choose the latter course, which conscientious parents who have adequate means and who are reasonably confident of their assessment normally would, it would be an empty victory several years later that they were right but that these expenditures could not in a proper case be reimbursed by the school officials. (At 370) In a case where a court determines that a private placement desired by the parents was proper under the Act and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that "appropriate" relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school. (At 370) In closing, Chief Justice Rehnquist stated: "We do think that the (lower) court was correct in concluding that 'such relief the court determines is appropriate,' within the meaning of 20 U.S.C. 1415(e)(2), means that equitable considerations are relevant in fashioning relief." (At 374) In other words, the Court could do whatever is appropriate and equitable to right the wrong inflicted upon a child who was deprived of an appropriate education. The Carter case is directly related to Burlington. Florence County School District Four argued to the Justices of the Supreme Court that utilizing a school that did not meet state standards was not "proper under the Act", using Chief Justice Rehnquist's words. District Four also asserted that the Court did not have the legal authority to award reimbursement to a school that might not meet state standards. How much relief is "such relief as the court determines is appropriate?" That was the question posed to the Court in Carter. Florence County School District Four and the numerous other entities that filed Friend of the Court briefs also asserted that to uphold Carter and rule in the parent's favor would create financial catastrophe for school systems around the country. One Amicus brief for the schools even argued that both the numbers of children served and the cost of special education had doubled since the special education act was passed! Yet, to increase educational services was precisely the intent of Congress in passing the Act. The extensive financial ruin arguments advanced on behalf of the schools and municipalities were never raised by the Supreme Court during oral argument. It appears that these allegations fell upon deaf ears. As previously noted, the U.S. Supreme Court agreed to review Carter v. Florence County School District Four, 950 F. 2d 156 (4th Cir. 1991) because of a different Court of Appeals ruling in a similar case Tucker v. Bay Shore Union Free School District, 873 F. 2d 563 (2d Cir. 1989). In Tucker, the Second Circuit followed a decision in an earlier Fourth Circuit case. The Tucker court stated that: . . . (T)he Tuckers might have sought to exploit the Education for the Handicapped Act (EHA) by selecting Eagle Hill (private special education school) without first fulfilling their obligation to work together with school officials to find a placement that was "appropriate" within the meaning of the EHA. On the other hand, it may be that the Tuckers did everything in their power to find a school for Jonas that was on the state's "approved list," but were unable to do so. We find no indication in the record of any effort on the part of the School District to assist the Tuckers in any way in finding a mutually acceptable alternative to the proposed IEP. We find this troubling as the School District was no freer than were the Tuckers to leave to the other party the responsibility of searching for an acceptable placement. It may be that having made its recommendation, the School District meant to leave the Tuckers alone with a "take it or leave it" crisis . . . Such an "unfortunate" situation . . . would constitute a "less than complete" safeguarding of Jonas' rights under the EHA. . ." (At 567) The Second Circuit held that the Tuckers could not be reimbursed for their son's education even though " . . . the placement at the Eagle Hill School had been appropriate to meet Jonas' educational needs" (At 564) since Eagle Hill was not on New York's list of approved special education placements. The Tucker rule created inequities for youngsters in New York State. One youngster, Jack Straube, had an average to above average IQ and yet, just prior to entering the tenth grade, he was reading at only the third grade level. Jack has dyslexia and an attention deficit disorder and had been receiving special education services in the public schools sinch he entered the third grade. Straube v. Florida Union Free School Dist., 801 F. Supp. 1164 (S.D.N.Y. 1992) The parents: . . .decided that the school district had enough time to teach their son to read and challenged his IEP as inappropriate. Their goal was to place Jack in the Kildonan School in Amenia, New York, a residential school which purportedly has a high degree of success in teaching dyslexic children to read. The Kildonan School (like Trident Academy) utilizes a teaching method known as Orton-Gillingham, which is a multi-sensory approach to learning. . . .(T)he school district agreed to place Jack at Kildonan. The Straubes began the enrollment process but were then told that the district could not authorize the Kildonan placement because the school was not "approved" by the New York State Education Department. The Straubes nevertheless enrolled Jack at Kildonan after allegedly investigating other alternatives drawn from the "approved" list. (At 1170) From the Due Process Hearing, the Hearing Officer concluded that " . . . no private school either within or without the state dealing with this Child's severe learning disability, at his chronological age, is registered as an approved school." (At 1170) Kildonan is on the approved list of states other than New York. (At 1180) Pursuant to the Tucker rule, which is binding on Hearing Officers and Courts in the Second Circuit, the Hearing and Reviewing Officers were forced to rule against the Straubes. The parents appealed to the U.S. District Court and the State eventually was a party to the suit. It was argued that New York failed to provide a "continuum of alternative placements" which is required by the Code of Federal Regulations. (At 1172, 1175) The District Court stated that "we have been returned to the question of whether in its private placement approvals, the State provided a continuum of alternative placements. This question invites us into investigating state educational policies and facilities which is far beyond the scope of review permitted." (At 1177) The Court noted that "After nine months in Kildonan, Jack's reading scores had improved dramatically." (See footnote at 1170 reporting reading comprehension at 9.0, word identification at 9.8, passage comprehension 7.0 grade levels.) Nevertheless, the Court ruled that while Jack had obtained an appropriate education at Kildonan, his education could not be free because of the Tucker rule. Which rule of law would prevail . . . Tucker or Carter? After all of the briefs had been filed by the Amicus Curiae, Florence County School District Four and Shannon Carter, the case was scheduled for Oral Argument before the U. S. Supreme Court. Florence County School District Four v. Shannon Carter was heard at 10:01 a.m. on Wednesday, October 6, 1993, Justice Ruth Ginsburg's third day on the bench. ORAL ARGUMENT At Oral Argument before the Supreme Court, Mr. Ayer opened with a statement asserting that private school placements should meet the standards of the local education agencies. Immediately, Justice Sandra Day O'Conner immediately asked him if the statute only applied to placements made by public schools or "Do you think that that provision (of the statute) is applicable at all to private placements (made by parents)?" As he responded, she then asked "I'd like you to tell us, if you will, where in the statute specifically it covers private placements . . ." Justice Ginsburg questioned him about whether he had already conceded that point on page nine of his reply brief. Pages nine and ten of the Petitioner's Reply brief states: Thus a parent seeking reimbursement under Burlington, where the private school fails to meet state educational standards or provide an IEP, should be required to show reasonable efforts to ensure compliance with those provisions, including, as appropriate, inquiries of the state educational agencies. Failure to make all reasonable efforts to achieve compliance will be excused only in the rare case where parents can demonstrate that they failed to do so because it would have been futile. Justice David Souter said: "Isn't the point that the statute of or the conditions that we're concerned with here are all conditions which are intended to be for the benefit of the students. It's to make sure that the kids with disabilities do not get stuck down in some - - some second-rate status . . ." (Transcript, page 9) Justice Antonin Scalia followed with a question "Why shouldn't they (parents) be allowed to waive them (IEP and teacher certification requirements on private schools) and why should their waiver be a bar to reimbursement?" Ayer's response and Justice Scalia's next question follow: MR. AYER: Well, I think this goes directly to the question of whether State educational authorities were intended under the act to be left in the primary role with regard to the making of educational policy. JUSTICE SCALIA: Exactly. Exactly, or to put it differently, whether the IEP and FAPE requirements were put there out of mistrust of the parents, or out of mistrust of school authorities. It seems to me they were put there to make sure that the school authorities did not give the disabled child second-rate treatment. You really think Congress was worried about the parents giving their disabled child second-rate treatment, putting him in a private placement that would be no good for him? (Transcript, pages 10-11) Later Justice Scalia asked what was a parent to do if there was not an "alternative school around that works via an IEP, and the parent finds the best school available, saying, you know, the school district has failed me, has violated the statute, I'm going to do the best I can for my kid . . . and there happens to be no private school who is willing to go through all of the folderol of an IEP, or they think an IEP is really not the best way to do it? That parent has no remedy." (Transcript, page 14) (Was he familiar with the Jack Straube case?) Justice Souter wondered whether the Carter case was simply another Burlington case. The questions raised by the Justices indicated a detailed familiarity with the briefs and facts of the case. Pete Wright then presented his opening statement and again Justice O'Conner initiated questioning by clarifying that the minimal amount of progress the public school had proposed as appropriate for Shannon would cause her to fall even further behind her peer group. The questions posed to parents' counsel were related to the early initial factual developments and whether the parents ever requested tuition for Trident or simply removed her from public school and placed her in Trident. The Court was advised that at the August 20, 1985 Due Process Hearing, Shannon was not enrolled in Trident and that her parents had desired for District Four to enroll Shannon into Hartsville or Darlington School down the road in a neighboring school district in the Florence area, or, as an alternative, into Trident Academy. Questions were posed as to whether the issues litigated at the Due Process and District Court levels related to the educational quality of Trident or the appropriateness of the three hours per week special educational program proposed for Shannon. The Justices were advised that the public school had held firm that three hours per week was appropriate and that the appropriateness of Trident was never a factual issue in the case. Justice Scalia raised a hypothetical case that was similar to the facts in Straube and asked for a list of criteria that would justify a parent departing from an approved list, assuming that the State did in fact maintain a pre-existing list of approved private special education schools. (Contrary to the facts in Carter.) The attorney for the United States Department of Justice, Amy Wax, also argued in support of Shannon Carter. She followed Pete Wright and stated that parents should not be bound by lists. She argued that parents will try to secure an appropriate education for their child in the event of a default by the local and state education agency. She was questioned by Justice O'Conner about a "Cadillac" thirty thousand dollar versus ten thousand dollar placement, with each program being appropriate. The Court seemed to be looking at a standard of reasonableness, assuming that both programs were appropriate and available. Continuing with her argument, Wax asserted that if the private school program is not appropriate, then the parents will have gambled and lost. If the program is appropriate and if the public school's proposed program is also found to be appropriate, they will again have gambled and lost. Ms. Wax argued that if the public school program is not appropriate and the school has defaulted on their responsibility to provide a free appropriate public education (FAPE), and if the parents place their handicapped child into an appropriate private special education school and if that child does receive an appropriate education, then parents should be reimbursed. Then, and only then, will the parents have gambled and won! Exactly fifty-nine minutes later, Chief Justice Rehnquist stated: "The case is submitted." Oral argument was over. Two days later, on October 8, 1993, the Justices, in a closed session, voted as to their decision. Justice O'Conner was assigned to write the opinion. Drafts were circulated to the other Justices who could write separate concurring or dissenting opinions. The opinion becomes "The law of the land" . . . final and binding on parents and on school divisions throughout the United States. FUTURE LITIGATION It is my belief that future special education litigation will relate to the inadequacy of Individual Education Programs (IEP) and the frequent lack of independent objective measures of a child's educational gain. As unremediated handicapped children fall further and further behind their peers, their self concept deteriorates and they often react, either becoming withdrawn and depressed or by acting out, and creating behavior problems in the school setting. Discipline of handicapped children is another area that is receiving increased attention. Extended School Year (ESY) is the third area in which special education cases are expected to increase. In the summer, many handicapped children regress and may not regain the lost ground until Thanksgiving. As a free appropriate public education, the parent may request an Extended School Year (ESY), with educational services including tutoring, occupational therapy, speech therapy, etc., based upon the amount of regression and the need to recoup lost skills. OBJECTIVE MEASUREMENT OF EDUCATIONAL BENEFIT PURSUANT TO AN INDIVIDUAL EDUCATIONAL PROGRAM Since Rowley, Courts have ruled that social promotion and grade inflation do not provide an appropriate education to a child. Many Courts, including Judge Houck in the Carter case, look at the actual achievement test scores over time to evaluate educational progress and benefit, i.e., to define and determine whether the child has received an appropriate education. Ren Descartes, a French philosopher, wrote in his Principles of Philosophy (1644) that, if something exists, it exists in some amount. If it exists in some amount, it is capable of measurement. If a child is receiving an appropriate education, then the amount of benefit and gain received by that child is capable of independent observation and measurement. Measured progress should not be limited to the subjective opinion of the teacher providing the special education. In other words, if the IEP baseline educational achievement scores have been improved upon, then that improvement is capable of measurement. Is the child improving, but so slowly that the child is still falling further and further behind, i.e. regressing or is the child truly becoming remediated and beginning to catch up with the peer group? U. S. District Court Judge Houck in Carter was especially interested in Shannon's progress as measured by independent objective tests. As early as 1983, U. S. District Court Judge Dupree in Hall v. Vance, 1983-1984 EHLR DEC. 555:437 (E.D. NC 1983) charted test scores in his decision. (See charts comparing December 1978, May 1980, and December 1981 PIAT scores that spanned the public and private school placements.) (Hall also involved an Orton-Gillingham placement at Oakland School in Boyd Tavern, Virginia. In this case, James Hall made one year's progress in one semester.) (Hall was decided before Burlington and while Stemple was still in effect in the Fourth Circuit. The school appealed Hall to the Fourth Circuit, 774 F.2d 629 (CA 4 1985) and lost. James Hall prevailed on appeal. By then, Burlington had become the law of the land and Stemple was overruled.) Public school IEPs often fail to include clear base-line data that provide present levels of educational performance and expected future levels of educational performance, with objective measures using grade equivalent, percentile rank and standard scores. Many parents do not understand that half a year's progress over a year of special education for a child of average to above average intellectual ability means that this child's percentile rank and standard scores will be dropping as the student falls further and further behind the peer group. School officials often advise parents that since the child has a learning disability, this is all that can realistically be expected. Query - explain the remarkable gains made by James Hall, Jack Straube and Shannon Carter? The intensity of the Orton-Gillingham remediation and training of the staff appear to provide the answer. IEPs are frequently written so that the "objective" criteria in the evaluation of progress or lack of progress over time becomes "teacher-made" evaluations that apply no independent objective measures. These IEPs are unmeasurable, "woefully inadequate", and are often written in an assembly-line fashion, without regard for the individualized needs of the child in question. These IEPs are designed to fulfill the needs of the school system and the teacher, operating for their "benefit", rather than for the benefit of the handicapped child. Shannon Carter's IEP in Florence County School District Four did include objective criteria for evaluating her progress, (four to five months gain after a year of special education). The District Court and the Fourth Circuit Court of Appeals both held that this proposed gain was inadequate. Yet, Shannon Carter's IEP was better than those proposed by many public school systems in that School District Four attempted to provide an objective measure of gain or progress over time. The September 29, 1992 issue of the Federal Register, Vol. 57, No. 189 contains Appendix C of the special education Code of Federal Regulations (CFR). This Appendix includes a number of questions and answers about special education services. Individual Education Programs (IEPs) are discussed with emphasis placed on goals and objectives. In evaluating whether or not an IEP is appropriate or whether a child has made progress after several years in a special education program, Courts have been looking at whether a child has regressed or improved in educational achievement, as measured by a change in grade equivalent level, percentile ranks and standard scores. Several questions and U.S. Department of Education answers from Appendix C follow: QUESTION 36 What should be included in the statement of the child's present levels of educational performance? ANSWER: . . . b. The statement should be written in objective measurable terms, . . . c. There should be a direct relationship between the present levels of educational performance and the other components of the IEP. QUESTION 39 What are short term instructional objectives in an IEP? ANSWER: Short term instructional objectives (also called IEP objectives) are measurable, intermediate steps between the present levels of educational performance of a child with a disability and the annual goals that are established for the child . . . IEP objectives provide general benchmarks for determining progress toward meeting the annual goals. These objectives should be projected to be accomplished over an extended period of time (e.g., an entire school quarter or semester). On the other hand, the objectives in classroom instructional plans deal with outcomes that are to be accomplished on a daily, weekly, or monthly basis. (And in Answer to Question 40, continues) . . . For example, if a child with a learning disability functioning several grades below the child's indicated ability in reading and has a specific problem with word recognition, the IEP goals and objectives would be directed toward (1) closing the gap between the child's indicated ability and current level of functioning and (2) helping the child to increase the ability to use word attack skills effectively (or to find some other approach to increase independence in reading). . . Clearly the U. S. Department of Education intends that IEPs are to include clear objectives that will "be directed toward . . . closing the gap between the child's indicated ability and current level of functioning . . ." In order to evaluate the size of the gap and amount of closure will require objective standardized pre and post testing of the specific educational achievement areas and skills that need remediation, rather than simply encouraging parents and child to accept that little can be done to remediate the child who is "lazy, unmotivated and a slow learner, (and) needed to be pressured to work harder." DISCIPLINE In Honig v. Doe, 484 U.S.305 108 S. Ct. 592, 98 L. Ed. 686 (1988), the U.S. Supreme Court noted that John Doe had problems with peers as early as the first grade. John's "social skills had deteriorated and . . . he could tolerate only minor frustration before exploding." (At 313) Co-respondent Jack Smith was identified as emotionally disturbed since the second grade and was unable to control verbal and physical outbursts. "He had academic and social difficulties as a result of extreme hyperactivity and low self-esteem." (At 314) In both cases, because of continued misbehavior, the San Francisco school system sought to suspend and expel the children for behaviors relating to their handicap. In Honig, the Supreme Court addressed the "stay put" provision, stating that the language of 20 U.S.C. Section 1415(e)(3) "is unequivocal," that is "the child shall remain in the then current educational placement." (Emphasis added by the U. S. Supreme Court at page 323. See also paragraph two, page 306.) The Court did permit a cumulative suspension for up to ten days. (W)here a student poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 school days. This authority . . . not only ensures that school administrators can protect the safety of others by promptly removing the most dangerous of students, it also provides a 'cooling down' period during which officials can initiate IEP review and seek to persuade the child's parent to agree to an interim placement. And in those cases in which the parents of a truly dangerous child adamantly refuse to permit any change in placement, the 10-day respite gives school officials an opportunity to invoke the aid of the courts under Section 1415(e)(2), which empowers courts to grant any appropriate relief. (At 325-326) In November 6, l992, the United States Office for Civil Rights responded to a complaint against the Mobile County, Alabama School District (See 19 IDELR 519). The complaint asserted that a handicapped child had been suspended without consideration given to his handicap and that the school had failed to provide an appropriate placement for the child. The Office of Civil Rights found that the child had been inappropriately placed and was being disciplined without regard to the child's handicapping condition. In their report, OCR provided guidance for the procedural steps that are to be followed with regard to the suspension or expulsion of handicapped children. In order to implement an exclusion that constitutes a "significant change in placement," a recipient must first conduct a reevaluation of the child. The first step in the reevaluation includes a determination, by a group of persons knowledgeable about the child and the meaning of the evaluation data, of whether the behavior is a manifestation of the student's handicapping condition. That determination may be made by the same group of people who make placement decisions conforming to the process required by the Section 504 regulation. The group must have available to it information that competent professionals would require, such as psychological evaluation data related to behavior, and the relevant information must be recent enough to afford an understanding of the child's current behavior. At a minimum, the group must include persons knowledgeable about the child and the meaning of the evaluation data. In 1991 the leading special education lawbook publisher, Individuals with Disabilities Education Law Report (IDELR), issued a monograph entitled "Disciplining Children with Disabilities: Balancing Procedural Expectations and Positive Educational Practice," by Hartwig, Robertshaw and Ruesch. In the heading entitled "Staffing Concerns" (page four), the authors note that: Trained, responsive, and knowledgeable staff are pivotal to change. Therefore, the relationship between the misbehavior of the child and the competence and training of the personnel providing the program may need to be reviewed. Ignoring the current environment and the sophistication of staff employed to teach these children and then applying disciplinary alternatives as a result of inappropriate programming may well result in students being excluded from functionally inadequate settings. The problem rests then with the school and not the child. Later the authors, at page 7 added: Inappropriate behavior of a child must be depersonalized. School officials need to focus on external control, with goals to have the child internalize, discriminate, and generalize for the future. Often times, the staff takes it as a personal offense when a child misbehaves. In those situations, emotions of anger and frustration interfere with the ability to make objective and effective decisions about modifying problem behaviors. The special education act was passed by Congress as a response to Mills v. Board of Education of District of Columbia,. (See Legislative and Case Law History above.) In Honig the Court, in referring to Mills and the congressional intent, stated that the special education law "demonstrates a congressional intent to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. This Court will not rewrite the statute to infer a "dangerousness" exception on the basis of obviousness or congressional inadvertence, since, in drafting the statute, Congress devoted close attention to Mills . . . thereby establishing that the omission of an emergency exception for dangerous students was intentional. (At 306)" Expulsion and suspension of handicapped children for behaviors related to their handicap continues, despite the five year old Honig decision. As private sector professionals, parents, and juvenile court probation counselors become more aware of the significance of Honig, it is expected that they will insist upon the procedural protections afforded by the U. S. Supreme Court. EXTENDED SCHOOL YEAR Many handicapped children regress during a summer vacation. In evaluating whether a child needs a continuation of special education services during the summer vacation, schools need to look at more than just regression. Daniel Lawyer, a six year old autistic child received speech language therapy during the school year and needed a continuation of that service during the summer in order to avoid regression. The school refused to provide Danny with the needed two hours a day, three days a week speech language therapy during the summer. The family pursued the matter through a due process hearing, review hearing and eventually to Federal Court. At the time the Lawyer case was heard, the most significant Extended School Year case had been Johnson v. Independent School District No. 4, 921 F. 2d 1022 (10th Cir. 1990). The holding of that case has been relied upon by other Courts in dealing with the same issues. In Daniel Lawyer v. Chesterfield County Public Schools, 19 IDELR 904 (E.D. VA 1993), Judge Spencer followed Johnson, ruled in favor of Danny Lawyer, and stated that: Regression, however, is not the only factor that is considered in determining whether extended year services are required to provide the student with an appropriate education. Other factors that are considered include: The amount of time needed for recoupment in the fall, the child's rate of progress, the child's behavioral or physical problems, the availability of alternative resources, the areas of the child's curriculum which need continuous attention, and the child's vocational needs. (At 907) In addition to being ordered to provide the approximate fifty-four hours of therapy during the summer months, the school system was also ordered to pay $21,710.20 for attorneys fees, and costs of expert witness evaluations and testimony. I represented Danny Lawyer. (See 20 IDELR 172 for the award of fees and costs.) Parents have routinely accepted that they are not entitled to a continuation of special education services, once summer vacation begins. Courts are now affirming that services may be required as a part of a child's total special education program. With an extended school year, many handicapped children will "be able to become productive citizens, contributing to society instead of being forced to remain burdens. Others, through such services, would increase their independence, thus reducing their dependence on society." (See earlier section entitled "Legislative History") LEARNING DISABILITIES AND ATTENTION DEFICIT DISORDER Learning Disabilities and Attention Deficit Disorder characteristics frequently overlap. A child may show dyslexia, dysgraphia, dyscalculia and other language learning disabilities, along with significant problems with sequencing and organizational skills, coupled with a high level of distractibility. Often, intellectual and cognitive (IQ) scores may measure the child's difficulty maintaining attention, processing information, and perceptual problems, rather than measuring true reasoning ability. Subtests of the Weschler Intellectual Tests (WISC-R, new version WISC-III) measure abstract reasoning abilities (similarities subtest) and the ability to decode visual symbols (coding subtest). Which is a better measure of innate general intelligence? Frequently, parents of LD and ADD children are advised that their child does not have a handicapping condition and thus does not need remediation. Often these children have a significant difficulty with either reading, writing, or arithmetic, and begin to act out. While they are referred to as lazy, oppositional kids with a bad attitude, their behaviors are often related to an undiagnosed and unremediated "hidden" handicap. The legal definition of "Learning Disability" is found in 20 U.S.C. 1401(a)(15) Definitions: (a) As used in this chapter - (15) The term "children with specific learning disabilities" means those children who have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen think, speak, read, write, spell, or do mathematical calculations. Such disorders include such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Such term does not include children who have learning problems which are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. See 34 CFR 300.541 for the criteria to determine the existence of LD. In essence, this regulation states that the child must have a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation, or mathematics reasoning. Does the child have difficulty comprehending what is said, following through (listening comprehension)? Are the child's written language skills at age and grade level? How about arithmetic? Does the child have difficulty "understanding or in using language, spoken or written," with difficulty in listening, thinking, speaking, reading, writing, spelling and doing mathematical calculations? Often it is asserted that the child does not have a learning disability and yet is hyperkinetic, disorganized, unable to sequence and is performing significantly below the child's ability in written language, arithmetic calculations and other education skills. Too often the educational testing battery consists of one test. The intellectual assessment may not take into account significant subtest scatter, as can be found on the Weschler intelligence tests (WIPPSI, WISC-R, WISC-III, WAIS). Attention Deficit Disorders and Learning Disabilities are frequently misdiagnosed, with parents being advised that their child is not motivated, and/or is lazy and a slow learner. These same children often develop behavior problems. These two handicaps may be found co-existing in the same child. Where a child has both problems, these hidden handicaps can present seemingly insurmountable problems. Margaret Byrd Rawson, author of The Many Faces of Dyslexia, available from The Orton Dyslexia Society, compares the compounded effect of both handicaps in the same child being analogous to having fallen down and broken your leg during a hot humid summer and now needing to wear a cast. Compounding the problem is that the child fell down and obtained the broken leg, while in a poison ivy patch. ORTON-GILLINGHAM The Orton-Gillingham approach was successfully used with Shannon Carter, Jack Straube, James Hall and Pete Wright. This is a labor intensive remediation method that utilizes a one-on-one student teacher ratio for one to two periods a day during which individual teacher, who has received extensive Orton-Gillingham training, works exclusively with that one youngster. The other content area classes will also have small student teacher ratios and the content area teachers (history, mathematics, biology, physics, English literature, etc.) will also have received training in the Orton-Gillingham approach. These teachers were already experts in their specific field. (Note: Seventy-five percent of the faculty at Trident Academy have master's degrees.) Julia Ann Greenwood is the Head of The New Community School in Richmond, Virginia. It is a college preparatory program that utilizes an Orton-Gillingham approach. She describes the method as follows: The Orton-Gillingham approach to the teaching of reading, writing, and spelling is one that includes direct teaching of the patterns of our language and it's alphabetic-phonetic or letter-sound association. The approach, first used successfully used with dyslexic children by Dr. Samuel T. Orton, June Orton, and Anna Gillingham, stresses (A) the importance of multi-sensory-instruction, particularly kinesthetic linkage to auditory and visual involvement, (B) structured and sequential layering of new learning, and (C) careful observation, diagnosis, and responsiveness to individual learning styles. The hallmarks of this early approach are now recognized as sound principles of learning theory and have generated many specific strategies and programs which reflect this Orton-Gillingham approach. NOVEMBER 9, 1993 THE OPINION OF THE U.S. SUPREME COURT Thirty-four days after hearing oral argument, the Court issued a unanimous opinion! The speed with which the decision was issued, the fact that it was unanimous, without a single dissenting opinion by any Justice, is very significant. The Court sent a clear message to school systems. They are expected to provide an appropriate special education to handicapped children. If they breach their duty, they should expect to pay. The Court also addressed the rigid technical analysis of the Act by the Tucker court. That message was also clear. If questions arise regarding technical construction of the statute and duties and obligations of schools and parents, look to the legislative intent, i.e., the Mills case and the findings of Congress as discussed earlier in this article. When the U. S. Supreme Court issues an opinion, the first few pages consist of a "Syllabus" which is a summary of the actual opinion. The true opinion of the Carter case is eight pages long. The summary is reproduced below. SYLLABUS No. 91-1523. Argued October 6, 1993 - Decided November 9, 1993 After respondent Shannon Carter, a student in petitioner public school district, was classified as learning disabled, school officials met with her parents to formulate an individualized education program (IEP), as required under the Individuals with Disabilities Education Act (IDEA), 20 U. S. C. 1400 et seq. Shannon's parents requested a hearing to challenge the proposed IEP's appropriateness. In the meantime, Shannon's parents enrolled her in Trident Academy, a private school specializing in educating children with disabilities. After the state and local educational authorities concluded that the IEP was adequate, Shannon's parents filed this suit, claiming that the school district had breached its duty under IDEA to provide Shannon with a "free appropriate public education," 1401(a)(18), and seeking reimbursement for tuition and other costs incurred at Trident. The District Court ruled in the parents' favor, holding that the proposed IEP violated IDEA, and that the education Shannon received at Trident was "appropriate" and in substantial compliance with IDEA's substantive requirements, even though the school did not comply with all of the Act's procedures. In affirming, the Court of Appeals rejected the school district's argument that reimbursement is never proper when the parents choose a private school that is not approved by the State or that does not comply with all of the requirements of 1401(a)(18). HELD: A court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA, but does not meet all of 1401(a)(18)'s requirements. Pp. 4-8. (a) In School Comm. of Burlington v. Department of Ed. of Mass. 471 U. S. 359-370, The Court recognized the right of parents who disagree with a proposed IEP to unilaterally withdraw their child from public school and place the child in private school, and held that IDEA's grant of equitable authority empowers a court to order school authorities retroactively to reimburse the parents if the court ultimately determines that the private placement, rather than the proposed IEP, is proper under the Act. P. 4. (b) Trident's failure to meet 1401(a)(18)'s definition of a "free appropriate public education" does not bar Shannon's parents from reimbursement, because the section's requirements cannot be read as applying to parental placements. The 1401(a)(18) requirements that the education be "provided . . . under public supervision and direction," and that the IEP be designed by "a representative of the local educational agency" and "establish[ed]," "revise[d]," and "review[ed]" by the agency, will never be met in the context of a parental placement. Therefore to read them as applying to parental placements would effectively eliminate the right of unilateral withdrawal recognized in Burlington, and would defeat IDEA's purpose of ensuring that children with disabilities receive an education that is both appropriate and free. Similarly, the 1401(a)(18)(B) requirement that the school meet the standards of the state educational agency does not apply to private parental placements. It would be inconsistent 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. Parent's failure to select a state-approved program in favor of an unapproved option does not itself bar reimbursement. Pp. 4-7. (c) The school district's argument that allowing reimbursement for parents such as Shannon's puts an unreasonable burden on financially strapped local educational authorities is rejected. Reimbursement claims needs not worry school officials who conform to IDEA's mandate to either give the child a free appropriate public education in a public setting, or place the child in an appropriate private setting of the State's choice. Moreover, parents who unilaterally change their child's placement during the pendency of IDEA review proceedings are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and that the private placement was proper under the Act. Finally, total reimbursement will not be appropriate if a court fashioning discretionary equitable relief under IDEA determines that the cost of the private education was unreasonable. Pp. 7-8. 950 F. 2d 156, affirmed. O'CONNOR, J., delivered the opinion for a unanimous Court. (End of Syllabus) In her opinion, Justice O'Conner gave short shrift to the arguments of seventeen states that they would suffer financial catastrophe if Carter was upheld. She said the schools could go ahead and provide an appropriate education to the child. "This is IDEA's mandate, and school officials who conform to it need not worry about reimbursement claims." (Page 7) With regard to Straube type cases (discussed earlier in this article) where the state has a list, parents do not necessarily have to follow the list. It may become an evidentiary issue. Justice O'Conner said: "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement." (Page 6) If the parents select a Cadillac school, the Court will look at "all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable." PARENTS' RESPONSIBILITIES In order to successfully obtain an appropriate special education for a child, the parents must become the expert about the nature of their child's handicap, appropriate and unique special educational needs, and know how to evaluate educational progress using independent objective measures. The first step for parents is to obtain a complete copy of the child's entire cumulative and confidential file and all other reports and evaluations by professionals in the private sector. I recommend that the parent organize all evaluations, IEPs, reports and other documents in a loose-leaf 3 ring notebook in chronological order. Do not sort by IEP, evaluations, letters, etc. Placing materials in chronological order provides a better history and is an easier method of organization. The date of each document should be written on the front page of each document in the lower right hand corner as follows: 11/9/93. Do not underline or highlight any of the papers. Use "Post-It" notes on originals since you will often need to make copies for other professionals. Develop a "List of Documents" as follows: DATE AUTHOR TYPE SIGNIFICANCE 9/14/92 Smith Psych Eval. IQ avg, educ scores 3 yrs behind 9/21/92 Jones IEP Proposed Self-Cont'd, reading from 5% level to 25% after one yr one on one 5/14/93 Ritter Educ Eval Private sector eval, minimal gain per WJPEB test, confirmed by TOLD test 5/20/93 Grant Psy'iatric Psy eval, child depressed, rec: in-patient. By using the above format, you can provide copies of your "List of Documents" to the appropriate individuals and then furnish the specific selected documents. Never release your originals! Keep the book current. The process of obtaining and organizing your child's file will help you to become an expert in the nature of your child's handicap. As you request and obtain information, you will need to learn about the organizations and parents groups that are related to your child's handicapping condition. You need to understand the etiology and characteristics of the handicap and what you should and should not do about the problems presented by your child. Several public agencies offer a wealth of free special education material that is published for parents' use. Literature and direction about your state's special education rules and regulations are often available from the Special Education Division of your State Department of Education, the local school systems parent resource center, and Protection and Advocacy and/or Developmental Disabilities Advocacy agencies operated by the State government. As your read your local school system's rules and state regulations, remember that if they appear to conflict with the Federal Regulations, Statutes and case law, then the "Supremacy Clause" of the Constitution controls, i.e. the local and state rules and regulations are subordinate to Federal law. Once you have organized the file, learned about the uniqueness of your child and the specific handicapping conditions, and developed an understanding of the law, you are ready to tackle the issue of what constitutes an appropriate IEP for your child. There are a number of publications regarding IEPs that will help you in thinking through exactly what should be in your child's IEP before you meet with the school staff. Many educational diagnosticians and psychologists in the private sector have developed an expertise in special education remediation techniques and may be able to help you. Since you now have knowledge, you also have power. With power you will not feel as incompetent and ill at ease as you may have in prior meetings with special educational school personnel. You will be able to keep matters from becoming emotional and polarized, a very dangerous set of dynamics that is always destructive to the child. Instead, you can advocate in a calm articulate manner! The child who is handicapped from any condition usually presents several faces to the individuals who evaluate the child. example, the neurologist will be looking at your child's handicap and the behaviors primarily as functions and dysfunctions of the brain. The brain may be having difficulty filtering out distractions. A portion of the brain may need to be chemically/medically stimulated so that the child can attend better. The psychologist will often use standardized measures to evaluate IQ, personality characteristics, and will frequently report on where your child stands in relation to his peer group, i.e., the child is functioning at the 15% level in written composition, reading passages of text at the 60% level, has a coding subtest score of 5, overall IQ is average, at the 50% level and yet has a thirty point standard score spread between the performance and verbal IQ scores. (The Learning Disability Council's workbook and other publications will help you understand the significance of the above test scores.) The educational diagnostician will administer educational tests that can compare specific categories of language usage, progress over the years, and, given a comprehensive battery, precise areas of remediation that the child needs. Depending on the nature of the handicap, other experts may be involved, including licensed clinical social workers, speech, occupational, and physical therapists, etc. The parent needs to understand that each clinician and diagnostician will see the child from their own professional perspective and, while the opinions may appear contradictory, they may be accurate when viewed in light of that professional's background and training. The M.D. (neurologist, psychiatrist, etc.) may recommend medication. The psychologist, social worker, and/or other therapists may recommend a specific therapy. The educational diagnostician may recommend individual one on one tutoring. Each professional's recommendation may be viewed as the primary solution. Each professional may be correct in stating that your child needs that specific service. As the expert, you will be able to prioritize rather than become confused. FOR THE ATTORNEY Special education cases have components that are characteristic of an emotionally difficult divorce, equitable distribution, and a complicated medical malpractice case. These are not typical juvenile court cases. An average due process hearing is from one to three days in length. The cases involve the intense emotions that are often present during divorce. The death of a marriage triggers the grieving process, as in the loss of a loved one. In special education cases, as in divorce, parents will routinely experience denial, anger, depression and sadness along with feelings of betrayal and guilt. Parents often feel guilty, at fault, and helpless with regard to their child. As school officials become increasingly frustrated in their attempts to work with this same child, their attitudes and actions may unwittingly intensify the parents' feelings. If the child is regressing rather than progressing, parents, child, teachers, and educational administrators often begin to project their own emotions onto each other. These emotions are fairly normal, given the dynamics in these cases. As parents learn about and understand test scores, percentile rankings and standard scores, and are able to independently assess their child's progress or lack of progress, their motivations of anger and frustration can be used to motivate both parents and child toward healthy, constructive change, as long an appropriate education has been put into place. At the same time, the attorney should not allow these emotions to cause the situation to become more polarized. Instead, the attorney needs to defuse and channel the anger that parents so often feel toward school authorities. In a medical malpractice case, the trial ultimately becomes a battle of the expert witnesses. Developing a good relationship and a sense of teamwork with your experts is the primary key in the effective presentation of evidence at the Due Process Hearing. You will need to become well-educated in tests and measurements, characteristics of the particular handicapping condition of the child, and what is needed for your client. Prior to the initial evaluations of the child, you need to read the "Topical Index" in IDELR for all annotations regarding the issues in your case. From that resource, you will be able to educate your parents and experts in the legal issues and case law. Develop your testimony and exhibits with an eye toward appeal based on current case law, structure it to win at the Due Process Hearing, but recognize that victory may not be realized until you reach Federal Court. Three primary variables affect the outcome of a case: first, the quality of the lawyers; second, the law and the facts of the case; and third, the pre-existing conscious and unconscious beliefs and feelings of the Hearing Officer. I have a detailed outline that provides all of the necessary steps to win a tuition assistance special education case which I can provide upon request. PARENT RESOURCE INFORMATION I recommend that you purchase from the Learning Disabilities Council their publication entitled "Understanding Learning Disabilities: A Parent Guide and Workbook." It is required reading for all of my clients and will answer many of your questions. The cost, prepaid is $21.70. Their address is P.O. Box 8451, Richmond, VA 23226,. Telephone: (804) 748 5012. The extensive information about special education is helpful for all handicapping characteristics. You will also want the Literature Inventory from the Learning Disabilities Association of America. Their address is 4156 Library Road, Pittsburgh, PA 15234. Telephone (412) 341 1515. You will also want information from The Orton Dyslexia Society. Their address is 8600 LaSalle Road, Suite 32, Chester Building, Baltimore MD 21286. Telephone: (410) 296 0232. The Orton Dyslexia Society is a proponent of the Orton-Gillingham multi-sensory method that was used to remediate Shannon and me. You will want to request "Readings in Dyslexia" that contains a listing of many articles available for purchase. I especially recommend "Language Disabilities in Men of Eminence" and "Gifts, Talents, and the Dyslexias: Wellsprings, Springboards and Finding Foley's Rocks." Both articles discuss the very positive attributes of people with dyslexia, LD, ADD, along with the problems these children posed to their parents and teachers. At the same time, the articles describe the unusual abilities and achievements of these youngsters. Other organizations related to LD and ADD. The National Foundation for Learning Disabilities. 381 Park Avenue South, Suite 1420, New York, NY 10016. (212) 545 7510 Attention Deficit Disorder Association. P.O. Box 2001, West Newbury, MA 01985 CHADD (Children and Adults with ADD) 499 NW 70th Ave., St. 308, Plantation, FL 33317 (305) 587 3700 Many other organizations and books will be listed in the information that you will receive from the above referenced groups. Books: (There are hundreds of good books, the following are a few of my personal favorites.) The Many Faces of Dyslexia, by Margaret Byrd Rawson Something's Wrong with my Child, by Sylvia Richardson, Brutten and Mangel. The Misunderstood Child by Larry Silver Attention Deficit Disorder in Adults by Lynn Weiss CREDITS Linda M. Summer, MSW, LCSW Licensed Clinical Social Worker, active member of the Orton Dyslexia Society, who was the counselor that set everything in motion when she began working with the Carters and encouraged them to pursue this matter through Court. She advised that the case would probably not be won until the parents went before a Federal Judge. She provided extensive testimony before the Hearing Officer. James T. McBratney, Esq. The attorney who represented Shannon at the initial due process hearing, and who obtained critical evidence that was used by Pete Wright in oral argument before the U. S. Supreme Court. Witnesses who testified on behalf of Shannon at the Due Process Hearing and before the U. S. District Court. Daniel H. Balcom Headmaster at The Trident Academy Lucy Davis Educator Alfred A. Grant, MD Child Psychiatrist Margaret Mitchell Language Fundamentals teacher at Trident Shirley A. Ritter Special Education Professor at Furman University Linda M. Summer Licensed Clinical Social Worker James G. Ward, MD Pediatrician with expertise in LD Lesley A. Bowers, Esq. The attorney who drafted the detailed Complaint that was filed in the U. S. District Court on behalf of Shannon. David Burlington, Esq. Lesley Bowers successor at the Protection and Advocacy Office. He represented Shannon before Judge Houck and convinced the Judge that Florence County School District Four did not offer Shannon an appropriate education and that Trident Academy did provide Shannon with an excellent education. When the case was appealed to the Fourth Circuit Court of Appeals, David wrote the brief. Oral argument at the Fourth Circuit was handled by Pete Wright. Kathleen B. Boundy and Eileen L. Ordorver, Esq. Attorneys with the Center for Law and Education (955 Massachusetts Avenue, Cambridge MA 02139) did most of the work on Shannon Carter's briefs that were filed with the U. S. Supreme Court. After the Petitioner's brief was filed with the Supreme Court, Kathy, Eileen, and Nancy McCormick were able to attack critical portions of the school's position which were, in essence, conceded on pages nine and ten of their subsequent Reply brief. This concession did not go unnoticed by Justice Ginsburg. Kathy and Eileen presented the Carters as doing what reasonable parents would be expected to do under the same circumstances. Alan Morrison and Brian Wolfman, Esq. Attorneys with the Public Citizen Litigation Group (2000 P St., NW, Washington, D.C. 20036) provided superb suggestions regarding points and issues in the brief. Their group has handled 31 cases before the U. S. Supreme Court and won 21. On the Monday and Tuesday before the Wednesday October 6, 1993 Oral Argument, Alan, Brian and other Public Citizens staff put Pete Wright through grueling mock Supreme Court sessions. These two hour sessions were brutal. All conceivable questions that might be asked by a Justice were raised by the Public Citizen staff. Answers were discussed, dissected and criticized. These sessions were excellent preparation for Oral Argument. Trident Academy The dedicated professional educators who provided Shannon with an "excellent education" using the Orton-Gillingham multi-sensory techniques. Nancy McCormick, Esq. The Attorney who succeeded David Burlington at the South Carolina Protection and Advocacy System for the Handicapped Office coordinated the drafting and filing of Shannon Carter's Supreme Court briefs and generally carried the case after David Burlington filed the Fourth Circuit brief. The South Carolina Protection and Advocacy System for the Handicapped Office that continued with the Carter case since 1986. Emory and Elaine Carter Even though the educational battle on behalf of Shannon was over several years ago, her parents endured the struggle and have persevered for many years. They continued the battle, knowing that their daughter's case had the potential for improving special education services for the other Shannon Carters and Jack Straubes who are still out there, undiagnosed and unremediated. Shannon Carter who was willing to tell her story on national television, before radio and newspaper reporters. She acknowledged that, before attending Trident, she had become severely depressed and was contemplating suicide. Today she is a beautiful, poised, young lady, brimming with self-confidence who is very proud of her and her parent's role in improving the quality of special educational services for all handicapped children. NOTES: Pete Wright has the 54 page transcript of the October 6, l993 oral argument and a copy can be furnished for a prepaid check payable to Peter W. D. Wright in the amount of $7.53 to cover copy costs of $5.40 and $2.13 postage. The cases listed in this article can be found in most law libraries. For example, the Fourth Circuit citation of Carter, which is described as Carter v. Florence County School District Four is reported at 950 F. 2d 156 (4th Cir. 1991). That "citation" means that it is a 1991 decision issued by the Fourth Circuit and is in Volume 950 of the caselaw books entitled "F.2d" and begins at page 156. This is the uniform method of citation of legal decisions. There are now 999 volumes of F. 2d cases from the various United States Circuit Courts of Appeal. New cases are now being published in "F. 3d" beginning with Volume one. This article will be revised periodically. Date: 11/17/93 __________________________________________________________________________ This article can be photocopied and distributed, without permission, so long as credit is given to Peter W. D. Wright, Attorney, Richmond, Virginia. Copyright 1993 by Peter W. D. Wright. __________________________________________________________________________ This article has been downloaded from the ADD Forum on CompuServe, and may be distributed freely as long as the contents of the file are unchanged. Because the CompuServe ADD Forum is new, we are frequently asked how to join CompuServe and get on the forum. Call 1-800-524-3388 and ask for rep #464. Outside the US/Canada call +1-614-457-0802.