Burlington

Why do we discuss these Supreme Court cases. After all, in some cases, since the decisions themselves, the statutory and regulatory provisions have changed. Unlike the Supreme Court cases we review in our Constitutional Law session, education disability decisions of the Supreme Court focus primarily upon statutory interpretation, and thus play a less central role in understanding the law. But we believe that the Supreme Court decisions assist our understanding first, by providing concrete an particularized facts illustrating the way in which courts have confronted the legal issues. Second, these decisions, because they come from the Supreme Court, have played a central role in the evolution of the law. We turn next to the Burlington School decision.

BURLINGTON SCHOOL COMM. v. MASS. DEPT. OF ED., 471 U.S. 359 (1985) dealt with student placement pending administrative and judicial review. When the School District proposes to change a child's plan, the parents retain a right to an administrative appeal and judicial review. The Education of the Handicapped Act guaranteed the right to maintain the status quo, the current placement, until final resolution.

Michael Panico, the son of respondent Robert Panico, was a first grader in the public school system of petitioner Town of Burlington, Mass., when he was diagnosed with "specific learning disabilities" and thus was "handicapped" within the meaning of the Act, 20 U.S.C. 1401(1). This entitled him to receive at public expense specially designed instruction to meet his unique needs, as well as related transportation. Over a period of eight years the school district and Panico's family battled over appropriate placement. While this dispute was pending, a specialist recommended placement in a highly structured private school, and the parents immediately enrolled Michael in that school. An administrative judge later determined that the private school placement was appropriate and ordered the school district reimburse for the placement. The appeals which followed involved numerous issues, but by the time the case reached the Supreme Court the issues had been narrowed to two: whether the potential relief available under 1415(e)(2) includes reimbursement to parents for private school tuition and related expenses, and whether 1415(e)(3) bars such reimbursement to parents who reject a proposed IEP and place a child in a private school without the consent of local school authorities.

The Act defined a "free appropriate public education" to mean    "special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with [an] individualized education program." 20 U.S.C. 1401(18).

The first question was whether this grant of authority includes the power to order school authorities to reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act. The Court found that the Act conferred broad authority on the Courts:

• The statute directs the court to "grant such relief as [it] determines is appropriate." The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be "appropriate." Absent other reference, the only possible interpretation is that the relief is to be "appropriate" in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with "a free appropriate public education which emphasizes special education and related services designed to meet their unique needs." The Act contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as non handicapped children, but the Act also provides for placement in private schools at public expense where this is not possible. See 1412(5); 34 CFR 300.132, 300.227, 300.307(b), 300.347.   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.

Finally the Supreme Court found that the Panicos were entitled to retroactive reimbursement for the period during which they enrolled their child in the private school during the litigation, because that placement had ultimately been found to be appropriate.

HONIG v. DOE, 484 U.S. 305 (1988) focusses upon another major area of controversy, the rights of children who engage in disruptive behavior as a result of their disability. The cases involved in Honig v. Doe illustrate the nature of the issues involved. Honig arose out of a decision of the San Francisco Unified School District (SFUSD) to expel two emotionally disturbed children from school indefinitely for violent and disruptive conduct related to their disabilities. In November 1980, one of the children, named Doe for the court case, assaulted another student at the Louise Lombard School, a developmental center for disabled children. Doe responded to the taunts of a fellow student: he choked the student with sufficient force to leave abrasions on the child's neck, and kicked out a school window while being escorted to the principal's office afterwards. After a suspension, District representatives proposed to exclude Doe permanently and set a hearing. Doe's parents sued.

The second child, Jack Smith was an emotionally disturbed child unable to control verbal or physical outburst who exhibited a severe disturbance in relationships with peers and adults. Evaluations revealed that he had been physically and emotionally abused as an infant and young child and that, despite above average intelligence, he experienced academic and social difficulties as a result of extreme hyperactivity and low self-esteem. After being assigned to a full-day program Smith began misbehaving. His behavior included stealing, extorting money from fellow students, and making sexual comments to female classmates. His behavior ultimately resulted in suspensions and then an exclusion decision. The issue posed was whether the school district could exclude these children from school pending final review of the proposed exclusion. Clearly, in most cases the proposed exclusion could not take place until completion of review, because the Act prohibits change in placement until review procedures have first been exhausted. The District, however, argued that there should be a dangerousness exception to the general rule however.

The Court rejected this contention:

• The language of 1415(e)(3) is unequivocal. It states plainly that during the pendency of any proceedings initiated under the Act, unless the state or local educational agency and the parents or guardian of a disabled child otherwise agree, "the child shall remain in the then current educational placement."

The Court could find no dangerousness exception in the statutory language. This omission was specially telling in view of the fact that the Congress had specifically considered the plight of children with serious emotional disturbances.

The Court suggested that local school districts retained adequate discretion to deal with dangerous children:

• Our conclusion that 1415(e)(3) means what it says does not leave educators hamstrung. The Department of Education has observed that, "[w]hile the [child's] placement may not be changed [during any complaint proceeding], this does not preclude the agency from using its normal procedures for dealing with children who are endangering themselves or others." ...Such procedures may include the use of study carrels, time-outs, detention, or the restriction of privileges. More drastically, where a student poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 schooldays.  This authority, which respondent  in no way disputes, 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 parents 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 1415(e)(2), which empowers courts to grant any appropriate relief.

If a child's parents insisted upon a dangerously inappropriate placement, pending the outcome of judicial review, the Court noted, the Courts retained equitable power to remedy the situation:

While many of the EHA's procedural safeguards protect the rights of parents and children, schools can and do seek redress through the administrative review process, and we have no reason to believe that Congress meant to require schools alone to exhaust in all cases, no matter how exigent the circumstances. The burden in such cases, of course, rests with the school to demonstrate the futility or inadequacy of administrative review, but nothing in 1415(e)(2) suggests that schools are completely barred from attempting to make such a showing. Nor do we think that 1415(e)(3) operates to limit the equitable powers of district courts such that they cannot, in appropriate cases, temporarily enjoin a dangerous disabled child from attending school. As the EHA's legislative history makes clear, one of the evils Congress sought to remedy was the unilateral exclusion of disabled children by schools, not courts, and one of the purposes of 1415(e)(3), therefore, was "to prevent school officials from removing a child from the regular public school classroom over the parents' objection pending completion of the review proceedings." ...The stay-put provision in no way purports to limit or pre-empt the authority conferred on courts by 1415(e)(2)... indeed, it says nothing whatever about judicial power.

Honig was significant for three reasons:

1. It established that the procedural protections applicable to disabled children applied as well to emotionally disruptive, even dangerous disabled children;
2. It granted the right to local school districts to seek judicial intervention, in advance of final decision, to change the placement of a child for appropriate reasons;
3. In an equally divided decision, the Court affirmed a lower court finding that the state, not just a local district, could be ordered to provide a free appropriate education.