COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Humphreys Argued at Richmond, Virginia
STEVEN W. WHITE AND JANET A. WHITE, PARENTS AND NEXT OF FRIEND OF MICHAEL GLENN WHITE, AND MICHAEL GLENN WHITE OPINION BY v. Record No. 1995-00-2 JUDGE ROSEMARIE ANNUNZIATA JULY 10, 2001 SCHOOL BOARD OF HENRICO COUNTY
FROM THE CIRCUIT COURT OF HENRICO COUNTY L.A. Harris, Jr., Judge
Darrel Tillar Mason (Carpenter & Mason, P.L.C., on briefs), for appellants.
Kathleen S. Mehfoud (Reed, Smith, Hazel & Thomas, L.L.P., on brief), for appellee.
This case arises under the Individuals with Disabilities
Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., and Virginia
Code §§ 22.1-213 to 22.1-221. The appellants, Steven W. White
and Janet A. White, parents and next of friend of Michael Glenn
White, and Michael Glenn White ("Glenn") appeal a decision by
the Circuit Court of Henrico County denying a request for
tuition reimbursement by the appellee, the County of Henrico,
for Glenn's education at The New Community School (TNCS), a
private school.
Appellants contend the trial court erred: (1) in failing
to accept the findings of the state level review officer as
prima facie correct; (2) in failing to explain its reasons for rejecting the findings; (3) in failing to find that the
procedures used by Henrico in developing and implementing
Glenn's IEPs were so flawed as to ipso facto constitute a denial
of a free appropriate public education; (4) in finding that the
IEPs developed for Glenn provided him with an appropriate
education, which offered meaningful educational benefit; and
(5) erred in denying the parents' tuition reimbursement request.
For the following reasons, we conclude the decision of the
circuit court was not plainly wrong and we affirm the judgment.
I.
BACKGROUND
The Individuals with Disabilities Education Act (IDEA), 20
U.S.C. §§ 1400 et seq., provides federal funds to assist state
and local agencies in educating disabled children. The IDEA
conditions the receipt of such funds upon a state's compliance
with certain goals and procedures. The Virginia General
Assembly has enacted a number of statutes to ensure compliance
with the IDEA requirements. See Code §§ 22.1-213 to 22.1-221.
In addition, the Virginia Board of Education has developed
regulations for implementing the statutory scheme. See 8 VAC
20-80-10 et seq.
Both the IDEA and the Virginia Code require schools to make
available to disabled children "a free appropriate education."
20 U.S.C. § 1412(a)(1)(A); Code §§ 22.1-214(A) and 22.1–215.
Local agencies provide an appropriate education to each disabled
- 2 - child by means of an "individualized educational program (IEP)."
20 U.S.C. § 1414(d); 8 VAC 20-80-10, 20-80-62. The IEP is a
written document developed after a meeting attended by the
disabled child's parents, his or her teacher, and local school
division representatives. 20 U.S.C. § 1414(d); 8 VAC 20-80-62.
The IEP contains, inter alia, a description of the specific
educational services to be provided the child, annual goals, and
objective criteria for evaluating progress. 20 U.S.C.
§ 1414(d); 8 VAC 20-80-62. The IDEA favors mainstreaming
children by requiring that disabled children be taught with
non-disabled children, to the maximum extent possible, and by
requiring that the disabled child be placed in the least
restrictive environment, consistent with the child's needs. 20
U.S.C. §§ 1412(a)(5)(A) and 1414(d)(A); 8 VAC 20-80-64. The
local agency must review each child's IEP at least annually. 20
U.S.C. §§ 1414(d)(4)(A)(i); 8 VAC 20-80-62.
The local agency is required to include the parents in the
development of the child's IEP. 20 U.S.C. § 1414(f); 8 VAC
20-80-62(C). Parents have the right to an impartial due process
hearing through which to bring complaints regarding proposed
services and must be given a right to appeal to the state
educational agency. 20 U.S.C. § 1415; 8 VAC 20-80-70.
Furthermore, "[a]ny party aggrieved by the findings and
decision" at the state administrative hearing has "the right to
bring a civil action with respect to the complaint . . . in any
- 3 - State court of competent jurisdiction or in a district court of
the United States without regard to the amount in controversy."
20 U.S.C. § 1415(i)(2); see also Code § 22.1-214(D) (giving
parties the right to "bring a civil action in the circuit court
for the jurisdiction in which the school division is located.");
8 VAC 20-80-76(O)(1). When the public school cannot provide a
disabled child with an appropriate education, the school must
"pay to, or on behalf of, the parent or guardian of such child
the reasonable tuition cost" of an appropriate private
education. 20 U.S.C. § 1412(a)(10)(C)(ii); Code § 22.1-218(A).
Glenn is learning disabled in the areas of reading, written
language and spelling. Glenn attended Henrico County Public
Schools ("Henrico") through fifth grade and was provided with
special education services for the duration of his enrollment
there, beginning in preschool. While Glenn was a student in
Henrico, his parents ("the Whites") each year participated in
and gave permission for the implementation of an IEP, which
delineated the special education services that Glenn was to
receive.
Glenn's 1995-96 IEP, the IEP for his fifth grade year at
Tuckahoe Elementary School, provided him with special education
services for two hours per day and speech services for one-half
hour per week. Because Glenn's disability did not prevent him
from participating in some grade-level activities and he was
able to benefit from the instruction given in grade-level
- 4 - subjects, with accommodations made for his reading disability,
the remainder of his day was spent in regular education classes.
The Whites agreed to this IEP on June 5, 1995.
From September until October 2, 1995, Henrico used a
collaborative teaching method to deliver Glenn's special
education services, consisting of two hours of special education
services each day, as specified by his 1995-96 IEP. The
collaborative teaching approach allowed Glenn to receive his IEP
services in a regular class, co-taught by a regular education
teacher and a special education teacher.
On October 2, 1995, shortly after school began in September
1995, Henrico reverted to employing the "pull-out" teaching
method to provide special education services to Glenn. The
"pull-out" method entailed removing Glenn from his regular
classes and teaching him in a special education setting for
disabled students only. Services were provided in a "pull-out"
model form for two hours daily and in a collaborative model form
for thirty minutes daily for the remainder of the school year.
In February 1996, Glenn's IEP was amended to include an
additional one-half hour per day of special education services.
The increase in services was designed to prepare him for middle
school and to improve his skills. At the beginning of Glenn's
fifth grade year, his reading level was at the beginning of
second grade level. At the end of his fifth grade year, Glenn's
- 5 - reading level was at the end of second grade/beginning of third
grade.
Glenn was scheduled to attend Tuckahoe Middle School as a
sixth grade student during the 1996-97 school year. In the
spring of 1996, the Whites informed Henrico that Glenn would be
attending TNCS for the 1996-97 school year. On June 6, 1996,
Henrico held a meeting to develop Glenn's IEP for the 1996-97
school year. Glenn's mother was unable to attend the meeting
but gave Henrico permission to hold the meeting in her absence.
On June 10, 1996, after reviewing the content of the proposed
IEP with Cecelia Batalo, Glenn's fifth grade special education
teacher, Mrs. White signed and gave permission for the
implementation of the IEP developed by Henrico.
The proposed IEP for the 1996-97 school year provided Glenn
with one period of instruction in each of the following areas in
the special education program: English, reading, math and
science. The IEP also offered Glenn the opportunity to interact
with regular education students in those classes in which he did
not require special education assistance, including his elective
and physical education classes and his lunch period. The IEP
classified Glenn as "self-contained" because he was scheduled to
spend more than one-half his school day supported by special
education services. The IEP provided for extensive
modifications in Glenn's regular education classes, which
included untimed tests, small group instruction, oral
- 6 - administration of tests, and acceptance of short answers rather
than lengthy responses to test questions.
Despite giving their permission to implement the IEP
proposed by Henrico, the Whites unilaterally removed Glenn from
Henrico in September 1996 and placed him in TNCS, a private
school that serves only disabled students. On May 30, 1997, the
Whites initiated a due process hearing seeking reimbursement for
the cost of Glenn's private special education at TNCS. Upon
receipt of the hearing request, Henrico initiated a full
evaluation of Glenn, which consisted of a psychological
evaluation and a social history.
Although the Whites communicated their intent to keep Glenn
at TNCS for the 1997-98 school year, Henrico held a meeting on
September 18, 1997, to develop an IEP for the 1997-98 school
year. The Whites participated in the 1997-98 IEP development
meeting, but they did not sign the IEP giving permission for its
implementation. Numerous professionals from Tuckahoe Middle
School participated in the development of the 1997-98 IEP,
including Cecilia Batalo, Glenn's fifth grade special education
teacher, John Markey, a psychologist who had recently evaluated
Glenn, Judy McCallum, a Henrico special education teacher with
twenty years experience, and Jan Parrish, who had conducted a
social evaluation of Glenn just prior to the meeting. Although
no one from TNCS attended the meeting, the IEP committee had
available to it information from TNCS, including the IEP
- 7 - developed by TNCS for the 1996-97 school year, Glenn's progress
reports from TNCS and information that the Whites presented
regarding Glenn's progress at TNCS. The Henrico IEP committee
also had access to the results of the re-evaluation conducted by
Henrico immediately prior to the IEP meeting, which indicated
Glenn had not made educational progress while being educated at
TNCS and had, in fact, regressed in the areas of reading,
written language and math during his year at TNCS. 1
The local hearing officer at the first tier of the
administrative proceedings heard testimony from twelve witnesses
over three days in the fall of 1997. The local hearing officer
concluded, on April 15, 1998, that Henrico had made a free
appropriate public education available to Glenn under the IDEA
and denied the Whites' reimbursement request. In making that
decision, the local hearing officer "particularly and
significantly [gave] considerable weight to both the quantity
and quality of the evidence through the testimony of [eight
Henrico witnesses]." He went on to state that, "beyond any
required burden of proof the County's evidence demonstrates
clearly and convincingly that the County has met and is able to
meet all of the requirements of the special education offering
1 Glenn's standardized test scores in the area of reading regressed from a standard score of 70 in 1996 to a standard score of 60 at the end of his first year at TNCS. His scores in math regressed from a standard score of 95 to a standard score of 79 at TNCS. The written language score decreased from 61 while in Henrico to 41 after a year of educational services at TNCS.
- 8 - of service to this STUDENT." In denying the Whites' tuition
reimbursement, the local hearing officer stated, "[m]y reasons
described above and now in summary are that Henrico has and by
its IEP's proposed to provide the STUDENT with a free
appropriate public education." The hearing officer also
determined that the failure of Henrico to include a teacher from
the private school at the IEP meeting in September 1997, while a
violation of state regulations, did not invalidate the IEP
because the committee had information from TNCS available for
its consideration.
The Whites appealed the decision of the local hearing
officer to a state level review officer on May 12, 1998. The
state level review officer heard only limited additional
evidence. He reversed the local hearing officer's decision,
finding the alleged procedural violations invalidated the
proposed IEPs for Glenn's sixth and seventh grade years and that
the education offered by Henrico was inappropriate. The state
level review officer awarded the Whites tuition reimbursement
for the 1996-97 and 1997-98 school years, as well as prospective
relief.
On August 11, 1998, Henrico filed a civil action in the
Circuit Court of Henrico County, pursuant to Code § 22.1-214(D).
The trial court ruled in favor of Henrico on July 21, 2000,
finding Henrico had made available to Glenn a free appropriate
public education in accordance with the IDEA and that the
- 9 - procedures used by Henrico did not prevent Glenn "from receiving
appropriate educational benefits." Accordingly, the circuit
court denied the Whites' request for tuition reimbursement. The
Whites appealed the circuit court decision to this Court on
August 16, 2000. For the reasons that follow, we affirm.
II.
ANALYSIS
A.
Standard of Review
The Whites contend the circuit court failed to apply the
applicable standard of review because it did not find the state
level review officer's factual findings to be prima facie
correct, and failed to explicitly state in writing its reasons
for reversing the state level review officer's decision. We
disagree with the Whites' claim of error.
In support of their argument, the Whites cite several
federal court cases from the Fourth Circuit which state that the
opinion of a state level review officer is to be considered
prima facie correct and that the district court is required to
explain, in writing, why it does not adopt those findings.
Federal case law regarding the standard of review to be applied
by federal district courts is not binding on this Court. The
Virginia Supreme Court has established the appropriate standard
of review to be applied in IDEA cases appealed to the circuit
- 10 - court in School Bd. of Campbell County v. Beasley, 238 Va. 44,
380 S.E.2d 884 (1989):
Review of an administrative decision by officers appointed under authority of the Board of Education concerning a special education program for a handicapped child is not subject to the Administrative Process Act (APA), but to the provisions of § 22.1-214(D). . . . [T]he statute permits the court to hear additional evidence, to weigh the evidence as a whole, and to base its decision on a preponderance of the evidence. The trial court is not limited in determining, as under the APA, whether there is "substantial evidence in the agency record" to support the administrative findings of fact.
* * * * * * *
Therefore, the proper standard to be employed by the circuit court is "to determine, based on a preponderance of the evidence, whether the substance of the proposed individualized educational program is reasonably calculated to enable the child to receive educational benefits."
Id. at 50, 380 S.E.2d at 888 (citations omitted).
The Supreme Court further held that, although "[d]ue weight
must be given by the trial court to the administrative
proceedings," id. at 51, 380 S.E.2d at 888, the trial court is
charged with making "an 'independent decision' based on the
preponderance of the evidence." Id. at 50, 380 S.E.2d at 888
(citation omitted); see also Hendrick Hudson Dist. Bd. of Ed. v.
Rowley, 458 U.S. 176, 205 (1982); Code § 22.1-214(D).
Further, under Virginia law, the circuit court is not
required to state in writing its reasons for rejecting the
- 11 - findings of fact made by the state level review officer.
Therefore, the circuit court in this case was not required to
find the state level review officer's findings to be prima facie
correct nor did it have to state, in writing, its reasons for
not adopting the factual findings made by the state level
officer.
Additionally, the standard of review that governs an appeal
to this Court requires that we view the evidence in the light
most favorable to Henrico, the party prevailing below. Beasley,
238 Va. at 51, 380 S.E.2d at 889. We will not set aside the
circuit court's decision "unless it appears from the evidence
that such judgment is plainly wrong or without evidence to
support it." Id. (citations omitted). We are "not permitted to
reweigh the evidence or to substitute [our] judgment for that of
the circuit court." Id.
B.
Free, Appropriate Education
The United States Supreme Court, in Rowley, 458 U.S. 176,
established a two-part test for determining whether a school has
complied with the requirements of the IDEA in providing a
student with a free appropriate education: (1) whether the
school complied with the procedural requirements of the Act; and
(2) whether the IEP developed by the school was reasonably
calculated to enable the child to receive educational benefits.
Id. at 206-07.
- 12 - The Whites contend that Henrico not only failed to comply
with the procedural requirements of the IDEA but also that the
IEP developed by Henrico was not reasonably calculated to enable
Glenn to receive educational benefits.
1. Procedural Violations
The Whites contend Henrico committed several procedural
violations in conjunction with its development of the IEP and
that these violations effectively deprived Glenn of a free
appropriate education. While we acknowledge that procedural
violations, alone, may constitute a failure to provide an
appropriate education under certain circumstances, Rowley, at
206-07, each case must be reviewed in the context of the
particular facts presented. An IEP will not be set aside absent
"some rational basis to believe that procedural inadequacies
compromised the pupil's right to an appropriate education,
seriously hampered the parents' opportunity to participate in
the formulation process, or caused a deprivation of educational
benefits." Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994
(1st Cir. 1990) (finding procedural violations insufficient to
render the IEP inadequate); see also Burke County Bd. of Educ.
v. Denton, 895 F.2d 973, 982 (4th Cir. 1990) (finding the
Board's procedural violation did not deprive the child of
educational benefits or opportunity); cf. Hall v. Vance County
Bd. of Educ., 774 F.2d 629, 635 (4th Cir. 1985) (court found
- 13 - consistent failure to comply with IDEA requirements constituted
failure to provide child with free appropriate education).
We find that because any procedural inadequacies in this
case did not hamper the Whites' opportunity to participate in
the development of Glenn's IEP and did not result in a loss of
an educational opportunity or benefit for Glenn, the violations
did not invalidate the IEP. We will address each alleged
violation.
a. For a period of one month at the beginning of Glenn's fifth
grade year, Henrico provided special education services to Glenn
through a collaborative, rather than a "pull-out" teaching
method. The Whites contend that changing the teaching method
without amending the IEP constitutes a procedural violation that
invalidates the IEP. Henrico counters that because the IEP did
not specify the method of services, it was not required to amend
the IEP.
Parents must be given written notice prior to a change in
"the identification, evaluation, or educational placement of the
child." 20 U.S.C. § 1415(b)(3); 8 VAC 20-80-70(C). Glenn's
1995-96 IEP did not specify a particular method for implementing
his special education services but, rather, provided that he
would receive two hours of special education services per day.
Substituting the "pull-out" teaching method for the
collaborative method did not constitute a change in the services
he was receiving, nor did it involve a change in his
- 14 - identification, evaluation or placement. See, e.g., Erickson v.
Albuquerque Public Schools, 199 F.3d 1116, 1120, 1122 (10th Cir.
1999) (finding that a change in the type of occupational therapy
provided the child "was merely a change in methodology of
services, not a change in educational placement" or "delivery of
services"); see also Rowley, 458 U.S. at 207 ("questions of
methodology" are left to the states); Barnett v. Fairfax County
School Board, 927 F.2d 146, 152 (4th Cir. 1991) (selection of
educational policy and method is within authority of state and
local officials). Therefore, Henrico did not commit a
procedural violation by failing to inform the Whites of the
change or in not amending Glenn's IEP.
Furthermore, the Whites limited their request for tuition
reimbursement to Glenn's sixth and seventh grade years and did
not request tuition reimbursement for his fifth grade year. The
Whites cite no legal basis for or any authority in support of
their contention that an IEP for a given year may be invalidated
because of procedural violations occurring in a prior year, nor
could we find any.
b. Although Glenn's mother gave permission for Henrico to
conduct the IEP development meeting for Glenn's sixth grade IEP
in her absence and later reviewed and signed the IEP, the Whites
contend that her absence at that meeting constitutes a
procedural violation that invalidates the IEP.
- 15 - The IDEA requires that parents be offered the opportunity
to participate in IEP development meetings. 20 U.S.C.
§ 1414(f); 8 VAC-20-80-62(D). Henrico informed Mrs. White of
the scheduled meeting and received her permission to proceed in
her absence. In addition, after the meeting, Cecilia Batalo,
Glenn's fifth grade special education teacher, reviewed the
proposed IEP with Mrs. White, who signed the IEP, giving her
consent for its implementation. Although the parents had
informed Henrico they were enrolling Glenn in TNCS for the
1996-97 school year, the parents did not subsequently voice any
complaints or objections to Henrico regarding the services
proposed in the June 1996 IEP. Likewise, the Whites did not ask
Henrico to make any changes to the proposed program.
We find the record supports a finding that Henrico provided
Mrs. White with the requisite opportunity to participate in the
development of the IEP. Any failure to participate is
attributable to the Whites' decision not to do so and does not
constitute a procedural violation by Henrico. In addition, Mrs.
White's signature on the form evidences her consent to the IEP,
and any objection to its implementation one year later was
untimely. See Warren G. v. Cumberland County Sch. Dist., 190
F.3d 80, 84 (3rd Cir. 1999) (parents cannot recover "tuition
reimbursement for the period preceding the parents' request for
a due process hearing"); Bernardsville Bd. of Educ. v. J.H., 42
F.3d 149, 158 (3rd Cir. 1994) ("[M]ere notice of parental
- 16 - 'dissatisfaction' does not alone put the Board on reasonable
notice. . . . [T]he right of review contains a corresponding
parental duty to unequivocally place in issue the
appropriateness of an IEP.").
c. Henrico did not develop an IEP for Glenn's seventh grade
year until two weeks after the school year at Henrico had begun.
The Whites contend that this procedural violation invalidates
The IDEA requires the school to have an IEP in effect at
the beginning of each school year and that the IEP committee
meet at least once a year to review the IEP and, where
appropriate, revise its provisions. 20 U.S.C. §§ 1414(d)(2)(A),
(d)(4)(A)(i); 8 VAC 20-80-62(B)(1), (B)(6). Because Henrico
last reviewed Glenn's IEP in June 1996, its failure to review
his IEP prior to the beginning of the 1997-98 school year
constitutes a procedural violation of the IDEA. However, we
find the violation did not deprive Glenn of access to a free
appropriate education and, therefore, did not invalidate the
IEP. At the time the IEP was developed, the Whites had already
initiated a hearing seeking tuition reimbursement for the year
in question and had informed Henrico that Glenn would be
returning to TNCS for that school year. Therefore, the
development of the IEP two weeks after the start of Henrico's
school year was not material to the Whites' decision to keep
Glenn at TNCS and did not result in the loss of an educational
- 17 - opportunity or benefit for Glenn. See Sanger v. Montgomery
County Bd. of Educ., 916 F. Supp. 518, 526 (D. Md. 1996) (in
considering the same procedural violation under circumstances
similar to this case, the court found "the [parents] never
pressed for a new IEP . . . . More significantly, the [parents]
were wedded to funding at [the private school] and nothing else.
It thus would not have mattered in the least when [the public
school] was written into the IEP because from the outset the
[parents] made it clear that they would not accept it.").
d. Henrico did not invite a representative from TNCS to the
seventh grade IEP development meeting and no one from TNCS
attended. The Whites contend that this procedural violation
invalidates the IEP.
The Virginia Regulations require that when a child is
attending a private school, a representative from that school
must be included in the IEP development meeting. 8 VAC
20-80-66. We reject Henrico's contention that the Virginia
Regulation in effect in 1997, 8 VAC 20-80-60(B)(8)(b), did not
require the attendance of a representative from TNCS. Henrico
argues that the headings used in the regulation indicate that
the presence of a private school teacher at an IEP meeting is
required only when the school places the child in a private
school, but not when the parents place the child in a private
- 18 - educational setting. 2 However, the headings used in a regulation
do not dictate the meaning of the regulation's provisions.
Jones v. Division of Child Support Enforcement, 19 Va. App. 184,
188-89, 450 S.E.2d 172, 175 (1994). Rather, we must construe
the body of the statute, which, in this case, clearly states,
"[w]here a child is presently receiving the services of a
private school" a representative from the private school is
required to attend the IEP meetings.
We agree with the Whites that the failure to invite a
teacher from TNCS to the September 1997 IEP meeting constituted
a violation of 8 VAC 20-80-66. However, notwithstanding the
requirement that a teacher from the private school attend the
IEP meeting, we find, in this instance, the procedural violation
is insufficient to invalidate the IEP. Although Henrico did not
invite a representative from TNCS to attend the meeting, the
committee had available to it information concerning Glenn's
year at TNCS in the form of documents from TNCS and had the
benefit of the Whites' observations of Glenn during his year at
TNCS. In addition, Glenn's special education teacher from the
2 The heading for the subsection requiring the attendance of the private school teacher at the IEP development meeting is entitled, "Private School Placement," and begins with the sentence, "Before an LEA (local educational agency) places a child with a disability in, or refers a child to, a private school or facility . . . ." The next subsection is entitled "Children with disabilities in private schools not placed or referred by public agencies." That section, however, does not address the procedures for developing an IEP for such children.
- 19 - previous year and two individuals that had recently completed
Glenn's psychological and social evaluations participated in the
September 1997 meeting. The individuals present at the meeting
knew Glenn, had recently worked with him, and had direct
knowledge of his needs.
Furthermore, Julia Greenwood, the director of TCNS,
testified at the state level review hearing regarding the
information she would have provided at the September 1997 IEP
meeting had she been invited. The program she described as
being appropriate for Glenn was, with a few minor exceptions,
identical to the program proposed by Henrico. 3 Her testimony
established that the very program elements she believed should
have been included in the IEP developed by Henrico in her
absence, were, in fact, included in Henrico's IEP.
We conclude that, because the committee had before it
sufficient current information to develop an appropriate IEP for
Glenn and that it reflected the program elements which the
private school believed were necessary to provide Glenn with
appropriate educational services, any procedural error in not
including a representative from TNCS did not result in a loss of
3 Greenwood testified that Glenn needed one-on-one assistance in reading, a multi-sensory approach to reading, and grade level instruction in small classes, taught by teachers who understood the extent of his disability. Greenwood also testified that accommodations should be made for Glenn, such as allowing oral testing or untimed tests. The IEP developed by Henrico contained all of these elements.
- 20 - educational opportunity or benefit for Glenn and, therefore,
does not invalidate the IEP developed by Henrico. See Roland M.
v. Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir. 1990).
e. The Whites also allege that Henrico pre-determined Glenn's
placement prior to the sixth and seventh grade IEP development
meetings by drafting a proposed IEP before the meeting. There
is no evidence in the record to support this contention.
The IDEA requires that placement decisions be based on the
IEP. 34 C.F.R. § 300.552; 8 VAC 20-80-60(B)(7)(a)(2). Deciding
to place a child in a particular school before developing an IEP
"violates the spirit and intent" of the IDEA. Spielberg v.
Henrico County Public Schools, 853 F.2d 256, 259 (4th Cir.
1988). However, the fact that an Henrico representative brought
a draft of a proposed IEP to each of the meetings does not
conclusively establish that Henrico impermissibly determined
Glenn's placement prior to the IEP meeting. The IDEA permits a
school board to bring a draft IEP to meetings for the purposes
of discussion. See Doyle v. Arlington County Sch. Bd., 806 F.
Supp. 1253, 1262 (E.D. Va. 1992), aff'd 39 F.3d 1176 (1994)
("[W]hile a school system must not finalize its placement
decision before an IEP meeting, it can, and should, have given
some thought to that placement."). The draft IEP provided a
starting point for the discussion and nothing more. The Henrico
representatives who participated in the IEP development meetings
testified that they considered all placement options available
- 21 - to Glenn, that they were open to suggestions from the Whites
regarding the appropriate placement for Glenn, and that the
draft IEP could and was modified during the IEP meetings.
Furthermore, there is no evidence in the record suggesting that
any IEP placement decisions were finalized in advance of the IEP
meeting. We find the record supports a finding that the
committee did not pre-determine Glenn's placement and that no
procedural violation occurred with regard to this issue.
f. Finally, the Whites contend that the IEP developed by
Henrico for the 1996-97 school year, Glenn's sixth grade year,
did not contain meaningful annual goals, short-term objectives,
or criteria for measuring Glenn's progress. Henrico contends
this issue is barred under Rule 5A:18. We agree with Henrico
that the issue is barred.
The Whites raised the issue for the first time in their
motion requesting the circuit court to reconsider its decision
to deny the Whites' tuition reimbursement. Because the Whites
failed to raise the issue during the administrative proceedings,
this issue was not properly before the trial court. See Hampton
School District v. Dobrowolski, 976 F.2d 48, 53 (1st Cir. 1992)
("Claims of procedural errors not presented to the
administrative hearing officer are not preserved for judicial
review by the trial court."); David D. v. Dartmouth School
Committee, 775 F.2d 411, 424 (1st Cir. 1985) ("[F]or issues to
be preserved for judicial review they must first be presented to
- 22 - the administrative hearing officer."). Accordingly, we hold
this issue was not properly preserved and is not properly before
us.
Because we find that any procedural violations committed in
this case did not deprive Glenn of access to an appropriate
education, we proceed to the appropriateness of the substance of
the program offered by Henrico.
2. Substantive Provisions of Henrico's IEP
The Whites contend that, because Glenn could not read at
grade level, Henrico did not and could not provide him with an
appropriate education. However, the evidence shows Glenn
received educational benefits from the Henrico program and that
the proposed IEPs offered by Henrico would have continued to
provide Glenn with educational benefits, in the least
restrictive environment, as required under the IDEA.
Under the IDEA, "a 'free appropriate 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. The education must
"be provided at public expense and under public supervision,
meet the state's educational standards, approximate the grade
levels used in the state's regular education, and comport with
the child's IEP." Id. at 189. States are not required to
"maximize each child's potential 'commensurate with the
- 23 - opportunity provided other children.'" Id. at 198. "[I]f
personalized instruction is being provided with sufficient
supportive services to permit the child to benefit from the
instruction and the other items on the definitional checklist
are satisfied, the child is receiving a 'free appropriate public
education' as defined by the Act." Id. at 189; see Beasley, 238
Va. at 50, 380 S.E.2d at 888. We will not reverse the circuit
court's finding that the IEP developed by Henrico was reasonably
calculated to provide Glenn with educational benefits unless
that finding is plainly wrong or without evidence to support it.
Id. at 44, 380 S.E.2d at 884.
Notwithstanding the fact that Glenn failed to progress
during his year at TNCS, the Whites contend that TNCS could
provide Glenn with a more appropriate education. Their argument
is without merit, however, because the availability of a better
private school placement, even if proved, does not establish
that a public school program, which is providing a free
appropriate education, is an improper placement. See Hessler v.
Maryland State Bd. of Educ., 700 F.2d 134, 139 (4th Cir. 1983).
The evidence in this case establishes that Henrico provided
Glenn with a free and appropriate education, consistent with the
requirements of the IDEA.
The IEP developed by Henrico for Glenn's sixth and seventh
grade years provided more extensive services than Glenn had
received during his fifth grade year. The proposed IEP for his
- 24 - sixth grade year provided that one period of instruction in each
of the following areas of the special education program be
given: English, reading, math and science. Each subject was to
be taught by teachers who were certified to teach special
education and had expertise in the particular academic subjects
they were assigned. The IEP also provided that Glenn
participate in the regular education program for his elective
class, for health and physical education and that additional
reading time was to be scheduled. The IEP classified Glenn as
"self-contained" because he was to spend more than one-half of
his school day supported by special education services. The IEP
provided for extensive modifications in Glenn's regular
education classes. They included: untimed tests, small group
instruction, oral administration of tests, short answers being
accepted in place of a lengthy essay, organizational
modifications, special equipment and other accommodations. The
IEP prepared for the 1997-98 school year, Glenn's seventh grade
year, proposed a similar program.
Unlike the program at TNCS, the IEP proposed by Henrico
offered Glenn the opportunity to interact with regular education
students. Under the IDEA, schools are required to place
students in the least restrictive environment in which they can
receive an appropriate education. A private program such as
TNCS would be required only if Glenn's disability was one in
which "a [private] setting is the only educational placement
- 25 - reasonably calculated to enable [the child] to receive
educational benefits." Martin v. School Bd. of Prince George
County, 3 Va. App. 197, 210, 348 S.E.2d 857, 865 (1986). The
evidence fails to establish that TNCS is the only educational
setting reasonably calculated to enable Glenn to receive
education benefits.
The evidence showed Glenn had made progress during his
fifth grade year at Henrico under an IEP that provided less
individualized instruction than the program proposed in the
sixth and seventh grade IEPs. In fact, he progressed almost a
full grade level in reading in his fifth grade year. Glenn has
a severe learning disability and, although he was not
progressing at the same rate as his peers, his progress was real
and measurable.
We find, in sum, credible evidence to support the trial
court's finding that the IEP proposed by Henrico would have
enabled Glenn to benefit educationally and that Henrico complied
with the requirement that the state provide Glenn with a "free
appropriate public education." Because we conclude the decision
of the trial court is not plainly wrong and that there is ample
evidence to support it, we affirm the judgment. See Beasley,
238 Va. at 51, 380 S.E.2d at 889.
Affirmed.
- 26 -