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Concerned Parents & Citizens for Continuing

decided: July 8, 1980.

CONCERNED PARENTS & CITIZENS FOR THE CONTINUING, EDUCATION AT MALCOLM X (PS 79), ET AL., PLAINTIFFS-APPELLEES, AGAINST THE NEW YORK CITY BOARD OF EDUCATION; FRANK J. MACCHIAROLA INDIVIDUALLY AND AS CHANCELLOR OF THE NEW YORK CITY BOARD OF EDUCATION, ET AL., DEFENDANTS-APPELLANTS


Appeal from order of the United States District Court for the Southern District of New York, Robert L. Carter, J., enjoining defendants for failure to comply with provisions of the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401 et seq. Reversed and remanded.

Before Feinberg, Chief Judge, and Newman and Kearse, Circuit Judges.

Author: Feinberg

This case involves the interpretation of the Education for All Handicapped Children Act of 1975, one of the many recent congressional enactments that bring new and complex questions into the federal courts. The New York City Board of Education and various Board officials and trustees (hereafter collectively referred to as the Board) appeal from an order entered in the United States District Court for the Southern District of New York, Robert L. Carter, J., holding that the Board had violated the Act by transferring approximately 185 handicapped children from Public School 79 to other schools in Manhattan School District 5 without providing adequate prior notice and a hearing to the parents or guardians of such children. The court's order compelled the Board to provide the transferred students with "those curricular and extra-curricular programs and related services which were available to plaintiff children at P.S. 79." For reasons stated below, we hold that the transfer did not violate the Act and we reverse the order of the district court.

I

The facts of this case may be briefly summarized as follows. In the summer of 1979, the trustees of School District 5 decided to close P.S. 79 for budgetary reasons.*fn1 Approximately 185 of the 310 students at P.S. 79 were handicapped children enrolled in special education classes, and the Division of Special Education determined that these students should begin the coming school year at their new locations rather than face disruption in the middle of the term. Thus, in late August 1979, the Board endeavored to notify the parents of children attending P.S. 79 that the school was being closed and that the students would be transferred to other schools within the district, with teachers and their classes being kept intact as much as possible. The transfer was marred, however, by several bureaucratic mix-ups, and the Board was not entirely successful in assuring that teachers and their classes remained together.*fn2

In November 1979, plaintiffs in this case a group of handicapped students at P.S. 79, their parents and guardians, and an unincorporated association formed to preserve quality education for the students filed this action against the Board, alleging that the transfer of handicapped students from P.S. 79 had violated the Due Process clause of the Fourteenth Amendment, the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794 and various provisions of the New York Education Law. Plaintiffs sought class certification, declaratory relief, and an injunction compelling the return of the plaintiff children to P.S. 79. District Judge Carter enjoined the Board from making structural modifications of P.S. 79 that would prevent the return of plaintiff children to the school should they ultimately prevail on the merits, and promptly held a hearing on plaintiffs' request for class certification and a preliminary injunction. In early February 1980, Judge Carter orally granted plaintiffs' motion for a preliminary injunction; rather than requiring the return of plaintiff students to P.S. 79, however, the district court ordered the Board to provide the students at their new schools with educational programming equivalent to what they received prior to the transfer. On February 27, 1980, the court issued a written opinion which described the "extremely innovative educational program" previously provided to handicapped children at P.S. 79 and detailed the trauma caused by the transfer and the inadequacy of some of the new assignments. The court concluded that the transfer was "made in haste" and "seem(ed) totally at variance with both the letter and the spirit of the federal and state laws designed to provide procedural protection for the handicapped."

On March 31, 1980, the court issued a further, detailed order that held that the transfer constituted a "change in placement" under the Education for All Handicapped Children Act of 1975 (the Act); the order defined a "change in placement" as "any significant alteration in the programs, activities, or services provided by defendants to handicapped children . . . . including changes in the degree to which handicapped children are integrated with non-handicapped children in these programs and activities, as well as significant changes in curriculum, extra-curricular offerings, class composition and teacher assignments." The court found that the failure of the Board to provide plaintiffs with notice and a hearing prior to the change in placement violated the procedural provisions of the Act, 20 U.S.C. § 1415. To remedy this violation, the order required the Board to provide the transferred students with a broad array of curricular and extra-curricular programs and services that had previously been available at P.S. 79. The order also set forth the procedural steps that the Board would be required to follow before making any further "changes in placement," as well as provisions for monitoring compliance. Finally, the order dissolved the temporary restraining order enjoining structural modifications of P.S. 79*fn3 and granted plaintiffs' motion for class certification. Full implementation of the district court's order has been stayed pending disposition of this appeal.

II

On the record before us, it is clear that the transfer of students from P.S. 79 was poorly planned, and that the move was disconcerting to many of the handicapped children that had attended the school. Moreover, as the district court found, the schools to which the students were transferred do not in all respects duplicate the "extremely innovative educational program" formerly provided to handicapped children at P.S 79. However, the issue before us is not whether the Board acted wisely or carried out its decision properly. Instead, the narrow question on this appeal is whether the transfer of handicapped children in special classes at one school to substantially similar classes at other schools within the same school district constitutes a change in "placement" sufficient to trigger the Act's prior notice and hearing requirements.

The primary purpose of the Act is to encourage states, through the use of fiscal incentives, to provide a "free appropriate public education" for all handicapped children. See, e. g., 20 U.S.C. § 1412(1). In furtherance of this goal, the Act also embodies a range of procedures designed to ensure that fundamental decisions concerning the education of handicapped children are made correctly and with appropriate input from the parents or guardians of such children. See generally Note, Enforcing the Right to an "Appropriate" Education: The Education for All Handicapped Children Act of 1975, 92 Harv.L.Rev. 1103 (1979). The interpretation of one such procedural mechanism is at issue here. Pursuant to 20 U.S.C. § 1415(b)(1)(C), whenever an educational agency covered by the Act

(i) proposes to initiate or change or

(ii) refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate education to the child, (emphasis supplied)

it must provide the parents or guardian of the child with prior written notice. Other subsections of § 1415(b) require the agency to provide parents or guardians in such cases with an opportunity for "an impartial due process hearing." See §§ 1415(b)(1)(D), 1415(b)(2). The statute fails to define "change . . . (in) educational placement." The district court, in concluding that the Board's action violated these procedural requirements, construed the term to encompass the transfer of handicapped students between schools in the same district, as well as any other significant alteration in the curriculum, extra-curricular offerings, support services, class composition, or teacher assignments provided to handicapped children. Although this is a possible reading of the section, we nonetheless believe that the term "educational placement" refers only to the general type of educational program in which the child is placed. So construed, the prior notice and hearing requirements of § 1415(b) would not be triggered by a decision, such as that made by the Board in this case, to transfer the special education classes at one regular school to other regular schools in the same district.

Several factors support this conclusion. First, in § 1415(b)(1)(C) the term "educational placement" is used in the context of changes in the "identification, evaluation, or educational placement" of the handicapped child. This language suggests that the full notice and hearing requirements of § 1415(b) were limited to certain fundamental decisions regarding the existence and classification of a handicap, and the most appropriate type of educational program for assisting a child with such a handicap. The legislative history of the Act supports this interpretation, for it indicates that a primary concern of Congress in enacting these procedural protections of § 1415(b) was to prevent the erroneous identification or classification of children as handicapped and the impairment of their subsequent education by ensuring that parents would be afforded prior notice and an opportunity to participate in such fundamental determinations. The Senate Report, for example, notes that the Committee on Labor and Public Welfare was "deeply concerned about practices and procedures which result in classifying children as having handicapping conditions when, in fact, they do not have such conditions." S.Rep. No. 94-168, 94th Cong., 1st Sess. 26 (1975), reprinted in (1975) U.S.Code Cong. & Admin.News, pp. 1425, 1450-51. ...


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