decided: April 1, 1981; As Amended April 13, 1981.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE C.A. 79-0481
Before Adams, Van Dusen and Gibbons, Circuit Judges.
This case presents two issues arising under the Education for All Handicapped Children Act of 1975, P.L. 94-142, 20 U.S.C. §§ 1401 et seq. (Education Act), that are of first impression for this Court. First, did the district court err in determining that Paul Kruelle is entitled to residential placement under the Education Act? Second, did the district court err in holding the Delaware State Board of Education responsible for providing Paul with an appropriate education in conformity with the Act?
Appellee is profoundly retarded and is also afflicted with cerebral palsy. At age thirteen he has the social skills of a six month old child and his I.Q. is well below thirty. As found by the district court, "he cannot walk, dress himself, or eat unaided. He is not toilet trained. He does not speak, and his receptive communication level is extremely low. In addition to his physical problems, he has had a history of emotional problems which result in choking and self-induced vomiting when experiencing stress." Kruelle v. Biggs, 489 F. Supp. 169, 172 (D.Del.1980).
The chronicle of Paul's educational placements begins in 1973, when he entered the Barber Center Preschool Program in Pennsylvania,*fn1 where the Kruelle family then resided. Paul next spent three years in the public school system in a mixed class with the trainable mentally retarded. By 1977 Paul's behavior had significantly deteriorated. He was vomiting food in school and having frequent temper tantrums. That summer Paul received in-home instruction to compensate for his rejection of the school environment.
In September 1977 at the behest of the public educational authorities Paul was placed in the private day program at the Barber Center. Admission was based on the local school agencies' certification that "an appropriate education for this child cannot be met in a special education program operated either by the school district or Intermediate Unit" in Pennsylvania. Despite initial improvement, by early 1978 Paul again manifested the vomiting and choking that apparently is caused by emotional stress. Because of the severity and increased frequency of the vomiting, both the school authorities and Paul's parents concluded that 24-hour residential placement was needed.*fn2
After a short period in respite care,*fn3 Paul was admitted in June 1978 to the Barber Center's New Community Living Arrangement Program for multiply-handicapped children. Although not a "residential" placement in the sense of having the living environment and school facilities on the same premises, this combination school program and group home did provide around-the-clock training by skilled caretakers. The local and state educational agencies, Department of Public Welfare and Social Security Administration provided funding for the program. Most importantly, except for a brief hospital stay for pneumonia, Paul appears to have adjusted well to this joint CLA residence-school program.
The Kruelle family then moved to Delaware. Paul was immediately enrolled in the Meadowood School and placed in respite care at the home of Mrs. Albanese. Mrs. Albanese had extensive experience in the care and training of handicapped children. Although the teachers at Meadowood indicated that Paul made observable progress at the school and Mrs. Albanese noted some improvements from her continuation of Paul's day-time training, after two weeks the Kruelles withdrew Paul from Meadowood. Having objected from the start to the lack of a residential placement in Delaware, as well as to Paul's assignment to a mixed class of trainable mentally retarded, which had previously failed, the Kruelles next began, through the administrative process,*fn3a an unsuccessful quest for a residential program.
Parents or guardians challenging a child's educational placement are offered an impartial hearing under the Education Act. 20 U.S.C. § 1415(b)(2). In states such as Delaware, where the hearing is conducted by a local or an intermediate educational unit, the party may appeal to the state educational agency. 20 U.S.C. § 1415(c). Both the district hearing officer and the state-level review officer determined that the individual educational program (IEP) proposed by the Meadowood staff was "appropriate" within the meaning of the Education Act. The district hearing officer found that residential placement was "too restrictive," while the state review officer asserted that the full-time services sought "were more in the nature of parenting than education." The Kruelle's request for Paul's placement in a residential setting was therefore denied.
In October, 1979, Paul's parents, pro se, sought review of the administrative decision by filing a civil suit in district court.*fn4 The multiple defendants included the local New Castle County School District (NCCSD), the supervisory State Board of Education, the Superintendent of the Division of Public Instruction, Dr. Kenneth Madden, as well as the state authorities with general jurisdiction over programs for handicapped children in Delaware the Division of Health and Social Services and the Division of Mental Retardation. Both sides requested the opportunity to present additional evidence at the court hearing.
Dr. Angert, who had previously served as a consultant for the NCCSD but who had no firsthand knowledge of Paul's experience at Meadowood, was the principal witness for the Kruelles.*fn5 Although he generally was inclined against residential placement, he recommended such a program for Paul, because of Paul's need for a consistent environment. Dr. Angert believed, in light of Paul's history, that "inconsistency of approach, environment or caretakers typically led to stress and self-destructive behaviors such as vomiting." Accordingly, he urged a 24 hour placement "with programming by people who know how to do it" in order to maximize Paul's chances of learning. Kruelle v. Biggs, 489 F. Supp. at 173. The defendant school and state authorities continued to maintain that the day program at Meadowood satisfied Paul's educational needs, and any necessity for residential placement arose from social and emotional problems clearly beyond the competency and responsibility of school officials.
Much like Dr. Angert, the district court concluded that Paul required a greater degree of consistency than many other profoundly retarded children. Specifically, it held that the present educational program provided by the NCCSD was not a free appropriate public education within the meaning of the Act. Then, in a supplemental order, the district court directed the State Education Board to provide Paul with a full-time residential program. The local and state school authorities now appeal this decision challenging both the residential placement and the imposition of the order against the state agency as erroneous interpretations of the requirements of the Education Act. We affirm.
The Education Act embodies a strong federal policy to provide an appropriate education for every handicapped child. Three interrelated purposes underlay its passage. First, Congress sought to secure by legislation the right to a publicly-supported equal educational opportunity which it perceived to be mandated by Brown v. Board of Education,*fn6 and explicitly guaranteed with respect to the handicapped by two seminal federal cases, Pennsylvania Ass'n for Retarded Children v. Pennsylvania*fn7 and Mills v. Board of Education.*fn8 Second, Congress intended the provision of education services to increase the personal independence and enhance the productive capacities of handicapped citizens.*fn9 Third, Congress acknowledged the need for an expanded federal fiscal role to aid state compliance with the court decisions and to assure protection for the rights of handicapped children.*fn10 A cost-benefit philosophy supported these interlocking goals. Instead of saddling public agencies and taxpayers with the enormous expenditures necessary to maintain the handicapped as lifelong dependents in a minimally acceptable institutionalized existence, Congress reasoned that the early injection of federal money and provision of educational services would remove this burden by creating productive citizens.*fn11
To a large extent the Education Act establishes only procedural guidelines and safeguards, leaving school officials and parents relatively unconstrained in creating individualized educational programs (IEPs) for handicapped children. Recognizing the broad range of special needs presented by handicapped children, the lack of agreement within the medical and educational professions on what constitutes an appropriate education, and the tradition of state and local control over educational matters, Congress refrained from mandating overly detailed programs.*fn12 The Education Act, however, is not silent on what qualifies as a free appropriate public education (FAPE). In fact, the 1975 statute and regulations promulgated thereunder, for the first time, give definitional content to the term "appropriate education" and its component parts, "special education" and "related services."*fn13
Theoretically, the scope and details of an appropriate education which the local educational agencies are obligated to provide as a condition to receiving federal grants under the statute, are left primarily to state definition.*fn14 ...