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Briggs v. Board of Education

decided: August 10, 1989.

EDWARD C. BRIGGS AND SUZANNE BRIGGS ON BEHALF OF THEMSELVES AND THEIR MINOR CHILD JAMES BRIGGS, PLAINTIFFS-APPELLEES,
v.
THE BOARD OF EDUCATION OF THE STATE OF CONNECTICUT, AND GERALD TIROZZI, COMMISSIONER OF EDUCATION, EDWARD PEPYNE, HEARING OFFICER, AND THE NEW HAVEN BOARD OF EDUCATION, DEFENDANTS, THE NEW HAVEN BOARD OF EDUCATION, DEFENDANT-APPELLANT



Appeal from a judgment of the United States District Court for the District of Connecticut, Daly, J., holding that defendant-appellant the New Haven Board of Education failed to provide an appropriate educational program for plaintiffs-appellees' minor child, that the child was denied his right to a free public education and that plaintiffs-appellees were entitled to reimbursement of the costs associated with enrolling the child in a private school for two school years. Reversed.

Meskill, Pierce and Mahoney, Circuit Judges.

Author: Meskill

MESKILL, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the District of Connecticut, Daly, J., holding that defendant-appellant the New Haven Board of Education (the Board) had failed to offer James Briggs, the minor child of Edward C. and Suzanne Briggs (the Briggs), an appropriate educational program as required by the Education of the Handicapped Act, 20 U.S.C. §§ 1400-1485 (1982 & Supp. V 1987), as amended by Handicapped Programs Technical Amendments Act of 1988, Pub.L. No. 100-630, 102 Stat. 3289 (the Act), that James was denied his right to a free public education and that the Briggs were entitled to reimbursement of the costs incurred in connection with sending James to a private school for the 1986-87 and 1987-88 school years.

We reverse.

BACKGROUND

James Briggs was born on April 13, 1983. He suffers from a moderate to severe sensorineural hearing loss in both ears and mild to moderate speech and language delays. On May 2, 1986, when James was just over three years old, a Planning and Placement Team (PPT) meeting was held to evaluate James' need for special education and to develop a plan for James' placement. At the meeting, the PPT recommended that James be placed in the Board's pre-school program for hearing-impaired children and that he attend the Board's Pre-school Handicapped Summer School Program in the summer of 1986. The Briggs were of the opinion that James needed more interaction with non-handicapped children and should be "mainstreamed." Therefore, they declined to follow the PPT's recommendation and placed James in a summer program at The Soundings, a private nursery school that enrolled both hearing-impaired and non-hearing-impaired children. At The Soundings, James received speech and language therapy from the director of the school. At the end of the summer, James showed some improvement in his speech and language abilities.

A second PPT meeting was held on September 12, 1986. At that meeting, the PPT again found that James required special education and recommended that James be placed in the New Haven segregated pre-school program for the hearing-impaired (the Board's program) for the school year. The justification for the recommendation was James' "[significant] speech and language delays with hearing impairment." The Individualized Educational Program (IEP) stated that "[a] less restrictive environment will be appropriate when the intelligibility of his speech and language no longer interferes with his communication to peers [and] adults in his learning environment."

Disagreeing with that IEP, the Briggs, in the fall of 1986, returned James to The Soundings, where he remained for the school years 1986-87 and 1987-88. Pursuant to their rights under 20 U.S.C. § 1415 and Conn.Gen.Stat. Ann. § 10-76h(a) (West 1986), the Briggs requested an administrative hearing before the State of Connecticut Department of Education regarding the special education program that the Board offered for James. The Connecticut State Board of Education appointed a hearing officer and the hearing was held on December 12, 1986 and January 16, 1987. The Briggs' main contention was that James should have more interaction with non-handicapped children than was provided for by the Board's program and that therefore the Board's program was not an appropriate placement for James.

At the hearing, a comparison of the two pre-school programs revealed the following. The Board's program was held in an elementary school in New Haven. The program met five days a week, five hours a day during the 180 day school year. The teacher in charge of the pre-school program for the hearing-impaired held a Masters degree in education of the deaf and was a certified teacher of the hearing-impaired. She was assisted by two aides with experience working with hearing-impaired children. Seven children were enrolled in the program. The Board's program "[stressed] language and vocabulary concentration." Specialized equipment, such as auditory trainers, which are FM receivers that amplify the sound that is transmitted by the teacher who wears a microphone, was used for part of the day. Students typically spend one or two years in the program and then are placed in non-specialized or mainstream kindergarten programs.

The program at The Soundings met three days a week for four hours a day. The director of The Soundings was a speech and language pathologist with a background in psychology and social work. She was not certified as a teacher of the hearing-impaired. None of the staff members at The Soundings had any special education training. Eighteen to twenty children were enrolled in The Soundings. Of those eighteen to twenty children, two or three besides James had speech and language problems.

At the hearing, several members of the Early Childhood Assessment Team (ECAT) that evaluated James regarding his educational needs and his readiness for a mainstreamed program testified. One ECAT team member who had tested James in April and September of 1986 testified that James was not ready for mainstreaming in September 1986 because of his inability to communicate with the children in the classroom and take advantage of the group teaching situation. The coordinator of the ECAT team, who had evaluated James in both the spring and fall of 1986, testified that James needed "a whole team approach, within a hearing impaired classroom, that there [had] to be not only a teacher of the hearing impaired but a speech therapist who [could] consult and do therapy with awareness and consultation about the curriculum and [James'] needs on a regular basis."

In a decision rendered on February 20, 1987, the hearing officer concluded that the program developed by the PPT which recommended placing James in a segregated setting was "reasonably designed to meet [James'] special education needs and is therefore an appropriate program for him at this time." The hearing officer further found that "[the] [Briggs] have failed to support their contention that [James'] needs can be met only in a social milieu of predominantly non-handicapped children." In addition, the hearing officer stated that "having concluded that the program offered by the Board is appropriate to meet [James'] special education needs, no need exists to discuss The Soundings program further." Finally, the hearing officer decided that "[because] the placement of [James] at The Soundings was a unilateral act of the [Briggs], and because the Board had offered an appropriate program, the Board bears no financial responsibility for this placement."

Pursuant to their rights under the Act, the Briggs filed suit in the United States District Court for the District of Connecticut seeking review of the hearing officer's decision. They contended that the hearing officer erred in determining that the Board's program was an appropriate placement in the least restrictive environment and by effectively placing the burden on them to prove that James can only receive an appropriate education in a less restrictive setting. The Briggs asserted that the Board's actions constituted a denial of James' right to a free appropriate public education. The parties declined to present any additional evidence that had not been presented to the hearing ...


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