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ANGEVINE v. JENKINS

December 7, 1990

ANN MARIE ANGEVINE, et al., Plaintiffs,
v.
ANDREW JENKINS, et al., Defendants


John Garrett Penn, United States District Judge.


The opinion of the court was delivered by: PENN

JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE

 This case was filed pursuant to the Education for All Handicapped Children Act (HCA), as amended, 20 U.S.C. § 1400, et seq. The case is now before the Court on the defendants' Motion To Alter Or Amend Judgment.

 The defendants had recommended placement of the child, Ann Marie, at the Sharpe Health School (Sharpe), a District of Columbia Public Schools (DCPS) facility. The parents disagreed with that recommendation and requested an administrative hearing. Two such hearings were held. After the first hearing the hearing officer remanded the matter to DCPS for a revision of the Individualized Educational Program (IEP). Determination filed December 5, 1984 (1984 Determination). In January 1985, the parents placed Ann Marie at Kennedy Institute (Kennedy), a private special education school in the District of Columbia and requested DCPS to fund that placement. DCPS revised the IEP, purporting to incorporate the changes directed by the hearing officer. The plaintiffs disagreed with the recommendations and requested a second due process hearing. After the hearing, the hearing officer concluded that Sharpe constituted an appropriate placement and that Kennedy was not an appropriate placement. Determination filed July 2, 1985 (1985 Determination). The plaintiffs filed this case and, after a trial, this Court filed a Memorandum in which it found that Sharpe was not an appropriate placement and that Kennedy was appropriate. Memorandum filed March 4, 1988. Defendants then filed the instant motion and thereafter amended and supplemented their motion based upon several recent decisions by the Court of Appeals, primarily, Leonard by Leonard v. McKenzie, 276 U.S. App. D.C. 239, 869 F.2d 1558 (1989) and Kerkam v. McKenzie, 274 U.S. App. D.C. 139, 862 F.2d 884 (1988).

 The defendants argue that the Court did not give due deference to the hearing officer's determination, that the plaintiffs did not meet their burden of demonstrating that the hearing officer's determination was wrong and that the Court gave consideration to the fact that the child had progressed at Kennedy and that such consideration was inappropriate and suggestive of potential-maximizing and therefore inconsistent with the "some educational benefit" standard of Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). The Court will briefly address those arguments.

 As plaintiffs point out, in the Memorandum filed in March 1988, the Court did not overlook the teaching of Rowley in reaching its decision. This Court noted that the EHA does not require the state to maximize a child's potential and that courts should not impose their view of preferable educational methods upon the states. Memorandum at 7-8, 10. The question is whether the Court followed the guideline set forth in Rowley. This turns, in part, on what is meant by an "appropriate" education.

 The Supreme Court observed that:

 
According to the definitions contained in the Act, a "free appropriate public education" consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child "to benefit " from the instruction.

 Rowley, 458 U.S. at 188-89, 102 S. Ct. at 3042 (emphasis this Court's). The Supreme Court noted, however, that: "Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children." 458 U.S. at 189, S. Ct. at 3042. The Supreme Court did state, however, that "the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." 458 U.S. at 192, S. Ct. at 3043. The Supreme Court appeared to reject the argument that the purpose of the HCA was to provide an equal educational opportunity, and observed: "The requirement that States provide 'equal' educational opportunities would thus seem to present an entirely unworkable standard requiring impossible measurements and comparisons." 458 U.S. at 198, S. Ct. at 3047.

 The above language does not define what is meant by an appropriate or an adequate education for a handicapped child. The Supreme Court, in further addressing this issue, went on to state:

 
Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from that education.

 458 U.S. at 200-201, S. Ct. at 3048. Thereafter the Supreme Court stated that: "We therefore conclude that the 'basic floor of opportunity' provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." 458 U.S. at 201, S. Ct. at 3048 (footnote omitted).

 The Supreme Court then recognized that "the determination of when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the Act presents a more difficult problem," 458 U.S. at 201-202, S. Ct. at 3048, and stated that it would not attempt to establish any one test for determining whether the benefits conferred upon a child are adequate and that it was limiting its analysis to the facts in Rowley, 458 U.S. at 202, S. Ct. at 3049.

 Thus, it seems clear that there is no general rule upon which to test the adequacy of any placement. The key appears to be that the child receive "some educational benefit," but that does not mean that the child is not to advance. Advancement is not necessarily "potential maximizing." In Rowley, it meant that if the child is being educated in a regular classroom, the special education "should be reasonably calculated to enable the child to ...


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