MEMORANDUM OPINION
BRYAN, Chief Judge.
This action is before the court on a request for review pursuant to 20 U.S.C. § 1415(e)(2) and (4) (1978), provisions of the Education for All Handicapped Children Act of 1975 (EAHCA or the Act). The defendants, in defending the request for review rely in part on § 504 of the Rehabilitation Act of 1978, 29 U.S.C. § 794. In view of its resolution of the matter under the EAHCA, the court does not reach the § 504 issue.
The parties have entered into a comprehensive Stipulation of Uncontested Facts which is attached as Appendix A.
The case arises from the attempted expulsion, in February and March, 1983, of Jerry F. Malone, a fourteen year old handicapped child, because of charges against him relating to the distribution of drugs. Jerry is handicapped because he suffers from a learning disability which, while leaving him intellectually unimpaired,
manifests itself as a severe difficulty in the comprehension and analysis of what he sees, reads and is told, and difficulty in the organization of spoken and written language. He is enrolled in the Prince William County School system in a self-contained learning disability class under Individual Educational Plans (I.E.P.’s) which all parties agree are appropriate for him. Indeed, the School Board’s testimony indicates he is doing quite well under his I.E.P.
Jerry and his parents do not contend that he may not be disciplined, even suspended, for infractions of school regulations. They contend, however, that an expulsion is a change of placement triggering the procedural and review protections of the EAH-
CA.
Stuart v. Nappi,
443 F.Supp. 1235 (D.Conn.1978). The plaintiff, School Board of the County of Prince William,- Virginia (the School Board), although it is the party invoking the court’s jurisdiction under 20 U.S.C. § 1415(e), in response to the court’s expressed concern whether the EAHCA contemplated court review of this sort of state decision, seemed to question whether the court had jurisdiction in this type of expulsion case. The irony of this, from the School Board’s viewpoint, is that if the court lacks jurisdiction, the School Board is left with a final decision of the Virginia Department of Education whose hearing officer, on May 28,1983, in overturning the School Board’s decision to expel, found that “Jerry’s involvement in the sale of drugs was related to his handicapping condition.” On the School Board’s petition for review, that hearing officer’s determination was upheld on July 25, 1983. The court concludes that it has jurisdiction.
S-1 v. Turlington,
635 F.2d 342, 348 (5th Cir.1981).
Prior to the hearing officers’ decisions the principal of Jerry’s school, Rippon Middle School, had, because Jerry was a special education student, referred the matter to the Rippon Local Screening Committee (the Committee) to determine whether there was a causal connection between Jerry’s handicapping condition and his involvement in the sale of drugs. That Committee was composed of knowledgeable persons, including professionals, involved in the classification of handicapped children and the provision of special education services. It determined, on February 23, 1983, that there was no such causal relationship (PI. ex. 51). That finding was concurred in by the Coordinator of the Secondary Learning Disability Program for the Prince William County schools (PI. ex. 52). Jerry was suspended from school from February 18, 1983 through February 28, 1983 and placed on furlough, with his parents’ consent, as of March 1, 1983. On February 26, 1983, the school principal had recommended that Jerry be expelled, and on March 16, 1983 a hearing was held on this recommendation, at which Jerry, one of his parents and their counsel were present. Following that hearing the School Board voted to expel Jerry. The Malones appealed that decision, resulting in the actions favorable to them by the State Board of Education which are described in the preceding paragraph. It is from those decisions that the School Board sought relief in this court pursuant to 20 U.S.C. § 1415(e).
Jerry was reinstated in school on April 18, 1983, and remains enrolled as of now.
At the hearing before this court on February 27, 1984, the parties adduced additional evidence, and there was presented the administrative record of the exhibits before the School Board at its March 16, 1983 hearing and the transcripts of hearings before the local hearing officer on May 2 and 10, 1983, and before the state reviewing officer on July 13, 1983. The court has now considered the administrative record as well as the additional evidence, including the deposition of Dr. Richard B. Hall.
The inquiry of the court is twofold. “First, has the State complied with the procedures set forth in the Act? .... And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits?”
Bd. of Ed. of the Hendrick Hudson Central School District v. Rowley,
458 U.S. 176, 206-207, 102 S.Ct. 3034, 3050-51, 73 L.Ed.2d 690 (1982) (footnotes omitted).
There is no question concerning the first of the inquiries. While the Malones in their answer assert that they had no notice or opportunity to be heard before the Committee, they were given these rights, and they and their counsel were heard before the School Board and at each of the hearings before the local hearing officer and the state reviewing officer. Indeed the process which they were afforded resulted in the administrative ruling in their favor which is the subject of the instant action for review.
The situation of an expulsion does not fit into the
Rowley
court’s second inquiry in a completely comfortable manner, but there is no question that the I.E.P. developed,
and which under the administrative ruling will be continued, is reasonably calculated to enable Jerry to receive educational benefits. Expulsion will result in his receiving no public educational benefits. The “disruptive” child has been the subject of comment in the regulations, and a handicapped child’s placement is considered inappropriate whenever the child becomes so disruptive that the “education of other students is significantly impaired.” Comment, 34 CFR § 300.552.
Even such a determination, however, warrants a transfer to a more restrictive placement — not expulsion. Certainly it can be persuasively argued that allowing a child who is dealing in drugs to remain in school would significantly impair the education of other students, although there is no evidence that there has been a recurrence of the activity of January, 1983. But there is also no evidence that the alternative of a more restrictive placement was ever considered by the School Board, the principal or the Committee.
Turning to the factual issue before the court presented by the plaintiff, § 1415(e)(2) directs the court to “receive the records of the administrative proceedings, ... hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, ... grant such relief as the court determines is appropriate.” The records have been received and considered and the additional evidence has been heard. The murkiness of the standard for review has been somewhat cleared by
Rowley.
There the Supreme Court concluded that the proper balance is for the reviewing court to give greater deference to the state’s placement decision if the procedural requirements of the Act are met.
Rowley, supra
at 206, 102 S.Ct. at 3050;
see also Roncker v. Walter,
700 F.2d 1058, 1062 (6th Cir.1983). Rejected was the notion that the “preponderance of the evidence” standard was an invitation to the court to substitute its own ideas of sound educational policy for those of the school authorities. Here the hearing officers, selected by the State Department of Education as capable of resolving educational policy disputes, in thoughtful and well considered opinions in which all the relevant material was evaluated, have rejected the local School Board’s determination that expulsion is an appropriate placement. And they have based that rejection on a factually founded determination that any drug dealing was causally related to the handicapping condition. Given that the procedural requirements were strictly complied with, deference should be given that determination.
Even without that deference, however, the additional testimony presented here persuades the court that expulsion was not appropriate, because not only was no alternative considered, but the behavior of Jerry was caused by his handicapping condition. The testimony of Dr. David Schostak, an expert in child psychology, as well as that of Dr. Richard Hall, is very convincing. Neither asserted that discipline, and even some suspension were not warranted in the case. Indeed they said discipline for the infractions was imperative. It has shown him, by the attention the incidents have attracted, that this is a major thing he must not do. He will not do it again, although there is no guarantee he will not do something else that is an infraction (Hall depo. at 25, 47, 48).
Although fourteen in chronological years, Jerry is operating at the level of a five or six year old. He was told; and fairly extensively, and expertly, instructed that drug use and drugs were forbidden. He could probably articulate an affirmative response if asked if drug use or drugs were wrong. But his very learning disability prevented him from comprehending or giving long term consideration to the consequences of his actions. A direct result of Jerry’s learning disability is a loss of self image, an awareness of lack of peer approval occasioned by ridicule or teasing from his chronological age group. He
can’t keep pace with these peers. He is ostracized from their group. He doesn’t understand their language. These emotional disturbances
make him particularly susceptible to peer pressure. Under these circumstances he leaps at a chance for peer approval. He is a ready “stooge” to be set up by peers engaged in drug trafficking. That is what happened here — the incidents involved Jerry’s acting as a “go between” for drugs at the request of two females.
That the infractions stemmed from the learning disability is established to the court’s satisfaction by at least a preponderance of the evidence.
The School Board argues that it faces a real dilemma if it is unable to expel a student, even a handicapped one, who violates the regulations, particularly with regard to drugs. But aside from its own hierarchy having disagreed with it on this particular case, there are alternatives short of expulsion that can be explored. As indicated, the Malones do not assert that Jerry cannot be disciplined, even suspended, for infractions. A more restrictive placement,. with a changed IEP,
could have been explored.
In light of the foregoing, judgment will be entered in favor of the defendants; and the complaint dismissed.
The court has received an objection to the deposition of Richard B. Hall. The objection to the relevancy of the testimony of Dr. Hall to the extent that it undertakes to establish an independent handicap for emotional disturbance is sustained, although the emotional disturbance as an outgrowth of his learning disability the court feels is relevant, and the testimony of Dr. Hall on Jerry’s emotional disturbance is admitted for that purpose. The objection on the basis of the relevancy to the opinion of Dr. Hall with regard to Jerry as he appeared on November 18, 1983 is overruled since the testimony at trial indicated no substantial change since February and March, 1983.
ORDER
For the reasons set forth in the Memorandum Opinion this day filed, it is hereby
ORDERED that judgment is entered in favor of the defendants, Jerry F. Malone, Verda J. Malone and Robert A. Malone, against the plaintiff, School Board of the County of Prince William, Virginia; and this action is dismissed.
APPENDIX A
Dec. 15, 1983
JOINT STIPULATIONS OF UNCONTESTED FACTS
The parties hereto, through their respective counsel, enter into the following stipulations reserving the right to object to the relevancy or materiality of any facts or exhibits to which they have stipulated.
1. The plaintiff School Board of Prince William County, Virginia (“School Board”) is responsible under state law for the supervision of the Prince William County Public Schools, including,
inter alia,
the suspension and expulsion of students. The School Board has its office in the County of Prince William, Virginia.
2. Defendant Jerry F. Malone (“Jerry”) is a resident of Prince William County, Virginia, and a student in the Prince William County Public Schools.
3. The defendants Robert A. Malone and Verda J. Malone are residents of
Prince William County, Virginia, and are Jerry’s parents.
4. The School Board receives federal financial aid pursuant to the Education of the Handicapped Act 20, U.S.C. § 1401
et seq.
As such, plaintiff is responsible for the provision of special education services pursuant to the Education of the Handicapped Act 20, U.S.C. § 1401
et seq.
(“EHA”). Section 504 of the Rehabilitation Act of 1973 (“§ 504”) also applies to the School Board.
5. The School Board has provided Jerry with a free appropriate public education in the Prince William County Public Schools.
6. Jerry is a fourteen year old handicapped child who has been receiving services for a learning disability.
7. These special education services were provided pursuant to Individual Education Programs (“IEP’s”) which specified the program of special education services to be given Jerry and the location at which the services were to be provided.
8. Either Mr. or Mrs. Malone consented to each IEP developed for Jerry by the School Board.
9. Pursuant to the IEP developed for him, Jerry was in a self-contained classroom for the learning disabled at the School Board’s Rippon Middle School at the beginning of the 1982-83 school year. On February 17, 1983, the principal of the school learned that Jerry, together with some non-handicapped students, had been involved in the illegal distribution of drugs in the school. When confronted with this information, Jerry admitted to the principal that during January, 1983 he distributed illegal drugs on three occasions on school property and during the school day. Jerry also signed a statement to this effect.
10. Because Jerry was a special education student, this matter was referred to the Rippon Local School Screening Committee (“Committee”) to determine whether there was a causal connection between Jerry’s handicapping condition and his involvement in the sale of illegal drugs. The Committee was composed of a number of professionals involved in the identification of handicapped children and the provision of special education services. Serving on the Committee were a learning disability teacher, a school psychologist, a visiting teacher and an administrator.
11. The administrator on the Committee was Edward L. Norris, an Assistant Principal at Rippon Middle School. Mr. Norris has 22 years experience in education with the Prince William County Public Schools, including 11 years experience as a classroom teacher and 11 years as an administrator. Mr. Norris is endorsed by the State of Virginia as a Secondary Principal and Physical Education teacher. He holds a Masters of Education from the University of Virginia. Mr. Norris is Chairman of the Local School Screening Committee which considered Jerry’s case and had been chairman for five years. Mr. Norris knew Jerry personally and was familiar with his Category II file.
12. The teacher of the learning disabled who served on this Committee was Henrietta Huising. Ms. Huising has a degree in education from Southwestern University in Texas and has taught learning disabled children for four years. Ms. Huising is endorsed by the State of Virginia in learning disabilities. Ms. Huising knew Jerry personally and was familiar with his Category II file.
13. The School Psychologist serving on the Committee was Carolyn Uttaro. Ms. Uttaro had four years experience as a school psychologist and has IV2 years teaching experience. Ms. Uttaro graduated from Mississippi State University with a degree in psychology and education. Ms. Uttaro was familiar with Jerry’s Category II file.
14. The Visiting Teacher serving on the Committee was Curtis Elam. Mr. Elam has 31 years experience in education in Prince William County, including 27 years experience as a visiting teacher. He is endorsed as a Visiting Teacher by the State of Virginia. Mr. Elam has 75 credit hours of education beyond his college degree. Mr. Elam spends 80% of his time involved in the special education process, including serving on the Local School Screening Com
mittee and assisting in the preparation of the sociological evaluations. Mr. Elam knew Jerry personally, had visited him in his home, and was familiar with Jerry’s Category II file.
15. This Committee reviewed the charges against Jerry relating to the distribution of drugs.
16. The Committee met on February 23, 1983, and determined that there was no causal relationship between Jerry’s handicapping condition and his involvement in the sale of drugs. This finding is contained in a report which is part of the record.
17. The Coordinator of the Secondary Learning Disability Program for the Prince William County Public Schools also reviewed the matter and concluded that there was no relationship between Jerry’s handicapping condition and his involvement in the sale of drugs. Her report is a part of the record.
18. The Coordinator was Kathy LaScala whose qualifications are set forth in pages 149 to 151 of the transcript of the May 2, 1983 local due process hearing.
19. Available to the Committee at its meeting on February 23,1983, were Jerry’s past discipline record and his Category II file. The Category II file contains all psychological, educational, medical and sociological evaluations, annual review reports, IEPS, permission forms, and includes informal reports and observations from classroom teachers.
20. Evidence regarding the charges against Jerry was presented to the Committee by Ronald Keeler, Principal of Rip-pon Middle School.
21. Prior notice of the Committee meeting on February 23, 1983, was not given to Mr. or Mrs. Malone. Mr. and Mrs. Malone were not invited to attend, nor did they attend the Committee meeting.
22. Mr. and Mrs. Malone were not advised following the February 23, 1983, meeting of their right to appeal the decision of the Committee.
23. Mr. and Mrs. Malone had been advised previously of their rights under Pub-lie Law 94-142. These rights were given to them in writing at the signing of each IEP and at each year-end review and were printed on these forms.
24. Jerry was suspended from school as of February 18, 1983 through February 28, 1983.
25. The Prince William County Public Schools requested that Jerry be placed on furlough (“leave”) from school as of March 1, 1983 and his parents consented.
26. Homebound instruction was given to Jerry by the Prince William County Public Schools three times on March 11, 14 and 15, 1983 for two hours each day.
27. On February 26, 1983, Mr. Keeler recommended that Jerry be expelled from the Prince William County Public Schools. The School Board held a hearing on the recommendation on March 16, 1983, which hearing was attended by both Mr. Malone and Jerry. Jerry again admitted to the School Board his involvement in the distribution of drugs. Following the hearing, the School Board voted to expel Jerry from its schools.
28. Pursuant to the advice of legal counsel, by letter dated April 8, 1983, the defendants requested a due process hearing regarding the expulsion pursuant to The Education of the Handicapped Act and the Virginia special education statutes and requested reinstatement. A copy of that letter is attached as Exhibit 1.
29. Jerry was reinstated in school on April 18, 1983 pending the exhaustion of administrative remedies.
30. A local due process hearing was held on May 2 and 10, 1983. The local hearing officer ruled in favor of Mr. and Mrs. Malone. His report is part of the record.
31. A state review proceeding was held at the request of the School Board on July 13, 1983. Additional testimony was presented by the School Board.
32. On July 25, 1983, the state reviewing officer held against the School Board.
33. Exhibit 2 attached is the record of the administrative proceedings.
34. Exhibit 3 attached is the Prince William County Public Schools Code of Student Conduct.
35. Exhibit 4 attached is the School Board regulations regarding expulsion of students for conduct involving drugs..
SCHOOL BOARD OF THE COUNTY OF PRINCE WILLIAM, VIRGINIA
/S/ Kathleen S. Mehfoud
By Counsel
/S/ Gerard S. Rugel
By Counsel
EXHIBIT 1
Joint Advocacy Coalition For The Mentally Disabled
100 N. Washington St.
Suite 205
Falls Church, Va. 22046
703-532-3303
Association for Retarded Citizens of Northern Virginia
Legal Services of Northern Virginia
Mental Health Association of Northern Virginia
April 8, 1983
Ms. Kathleen S. Mehfoud
Mehfoud & Lacy
P.O. Box 584
Richmond, VA 23205
Dear Ms. Mehfoud:
On behalf of Jerry Malone we are requesting that a due process hearing be scheduled so that we may contest his expulsion and consequent “change of placement.” This request is made pursuant to P.L. 94-142, 20 USC 1415(b)(i)(c), (D); 34 CFR 104.-36,300.504(a); .504(b)(i)(ii), as well as applicable Virginia laws and regulations.
It is our position that the behavior for which Jerry was expelled is related to his handicapping condition. Therefore, he continues to be entitled to special education services in the least restrictive environment. Furthermore, the school board’s refusal to allow Jerry to continue in his present placement violates his right to remain in his current placement during the pendency of the due process proceedings referred to above (20 USC 1415(e)(3), 35 CFR 300.513).
Our position is fully supported by the case law in this area, most recently in the case of
Kaelin v. Grubbs
4 EHLR 554.115 (US Ct of Appeals, 6th Circuit, 7/9/83, see also:
S1 v. Turlington
635 F.2d 345 (5th Cir Cert denied — US —, 102 S.Ct. 566 (1981);
Stuart v. Nappi
443 F.Supp. 1235 (D.Conn, 1978);
Sherry v. NYS Education Dept.,
479 F.Supp. (328 (W.D. NY 1979); and
Doe v. Roger
480 F.Supp 225 (N.D.Ind 1979).
We are formally requesting that Jerry Malone be permitted to return to his present classroom placement immediately, obviating any need to institute litigation in this matter.
Sharing in United Way of the National Capital Area
We have attempted to secure Jerry’s records directly through the school system. They have advised us to make this request to you directly. Please forward to me the record of the expulsion hearing held in March. I would also appreciate your direction to the school system that either myself or Rhonda Buckner, my assistant, be permitted to review and copy Jerry Malone’s educational record.
Sincerely,
/&/
Gerard S. Rugel
Gerard S. Rugel
Counsel
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EXHIBIT 4
Regulation 735-1
STUDENTS
February 11, 1981
STUDENTS
Illegal Drugs
The approved
Code of Behavior for Prince William County Public Schools
states that “the possession, distribution or use of illegal drugs or intoxicants while under the jurisdiction of the school is expressly forbidden.”
In addition to the requirements of policy, notice and other regulations, the following provisions shall be followed for all students involved in the use, possession, or distribution of illegal drugs, paraphernalia, or intoxicants:
I. In all cases, parents/guardians shall be notified as soon as possible. In the event parents/guardians cannot be reached or cannot come to the school promptly, the principal or his designee is to represent the best legal interests of the student(s) involved as well as the interests of the total school and community.
II. Students involved in the possession/use of alcoholic beverages at school or who arrive at school under the influence of same, are subject to either suspension or expulsion from school. The illicit beverages may either be turned over to the parents/guardians or destroyed by the principal. A school witness shall be present in either case. Police representatives would normally not be contacted in these cases unless the student is disorderly, disruptive and/or a threat to the safety of others or property. In such instances, the police may be contacted and requested to assume custody. Parents/guardians are to be notified as soon as possible that their youngster is being placed in the protective custody of the police. Normally, however, these youngsters should be turned over to the parents/guardians and suspended from school.
The length of suspensions in these cases may vary from one day to the maximum allowable due to the nature and degree of involvement in each individual case. All student expulsion recommendations must be cleared by the appropriate Director (normally the Administration Director), prior to the principal informing parents/students of such a recommendation.
III.Students involved in the possession, use or distribution of illegal drugs and/or paraphernalia on school property, or who arrive at school under the influence of same, are subject to suspension and/or expulsion from school. A five-day suspension from school is required in all but very unusual and extenuating instances for all students using or in possession of such drugs or paraphernalia, or if these substances are found in a location clearly under the direct control of the student(s). The second such offense in the same school year will bring an automatic recommendation to the School Board for the expulsion from school of said student(s). An automatic recommendation for expulsion is also to occur the first time a student is involved in the distribution of illegal drugs or paraphernalia. Parents/guardians and the community resource officer are to be contacted as soon as possible. The student is to be suspended from school until such time as the School Board has a hearing on the expulsion recommendation. The principal is to contact the appropriate Director (normally the Administration Director), and work with that department in preparing all material and other matters for the parents/guardians and the School Board hearing. In any case of suspension or expulsion, the procedures required for such action must be consulted and followed.
A principal should conduct whatever investigation he deems reasonably necessary before making a final decision concerning whether a student has been involved in using, possessing, or distributing an illegal drug. This investigation shall be for school purposes only, and all prosecution shall be un
dertaken by the appropriate authorities. If the investigation reveals facts and circumstances from which the principal can reach an immediate conclusion, he should act forthwith. Some examples include cases in which a student sells, distributes, uses or possesses material which the student has represented to be an illegal drug, cases in which the material can be identified with reasonable certainty by the principal or the authorities as an illegal drug, cases in which a student admits to the allegations, and the like. A principal may rely upon any source of information he considers to be reliable in reaching his conclusion, including information from students, teachers, or police authorities. If, however, the investigation reveals that there may be an innocent explanation for the simple use or possession of a substance, the principal should use discretion in determining whether to suspend or expel before the results of a police investigation or chemical analysis are received. The principal should in the interim take administrative action as necessary to prevent recurrence of the incident, as by forbidding the student from bringing unexplained substances to school, conferring with the parents/guardians, and so forth.
IV. The disposition of illegal drugs and/or paraphernalia that are involved in possession, use or distribution cases shall be dealt with as follows:
A.The school administrator or faculty members coming into possession of the above will contact the Community Resource Officer responsible for support to that particular school. The officer is to be fully briefed concerning the circumstances and will make the decision concerning prosecution. If the Community Resource Officer cannot be contacted, contact the Juvenile Bureau, Police Department. Attempts will be made to dispatch a member of the bureau to your location.
B. If no member of the Juvenile Bureau is available, the administrator or faculty member should take necessary action administratively, secure the contraband and turn it over to the Community Resource Officer as soon as possible for investigation or disposition.
C. In no event should a regular patrol unit be requested unless you have an uncontrollable situation. After he has stabilized the situation, you should request that he make no decision concerning prosecution of or take possession of the contraband until the matter has been coordinated with the Community Resource Officer or Police headquarters. The School Division has, in conjunction with the Commonwealth’s Attorney and the Chief of Police, determined that the Community Resource Officer will make the decision as to the question of prosecution and handling the contraband material.
D. The contraband itself should not be transferred between persons but retained by the first person who takes possession. It should be sealed and annotated as indicated on the attached form. This person must insure that the contraband is in his sole possession, under such security as is necessary to insure that it cannot be removed, replaced, or tampered with until delivered to the police officer. The attached form shall be completed and used by the school official and police officer in all cases involving illegal drugs and/or paraphernalia.
Prince William County
Public Schools
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