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Court Hears Complex 'Placement' Case

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Washington--The parents of a learning-disabled child had no right under federal law to unilaterally move their son from a public school to a private school at a local school system's expense, even though the private school was subsequently found to be the appropriate placement for the child, a lawyer for a Massachusetts school committee told the U.S. Supreme Court last week.

Under the Education for All Handicapped Children Act of 1975, P.L. 94-142, students must remain in a placement made by school officials until all due-process procedures have been exhausted, David Berman, a lawyer for the Burlington, Mass., school committee, told the Justices during arguments in a case brought by the parents of Michael Panico, a 14-year-old with learning disabilities.

If the Panicos are awarded fees to cover the cost of their son's "self-help" private-school placement, argued Mr. Berman, the section of P.L. 94-142 dealing with educational placements will be unenforceable.

"Are we going to say to the parents, 'You were very naughty, you shouldn't have done it, but it won't matter'?" he asked the Justices.

The school committee petitioned the Court to hear the case, although the federal district court is still wait-ing to make a final ruling on how much the parents should be awarded in tuition costs. The Court is being asked to decide whether, under the circumstances of the case, the parents are entitled to such a reimbursement under P.L. 94-142.

State Argument

The section of the statute in question states that "during the pendency of any proceedings ... unless the state or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child" until all proceedings have been completed.

But Ellen L. Janos, an assistant state attorney general who argued the state's position in favor of the parents, countered that the Congress, in fashioning P.L. 94-142, "did not intend to displace choices" that parents have traditionally been allowed to make. "I don't think Congress intended to keep children in an inappropriate placement," she added. "Parents should be allowed to move their child to what they believe is an appropriate placement, and if it turns out they were right, they should be reimbursed."

Learning Disabilities

The case before the Court, School Committee of the Town of Burlington v. Department of Education of the Commonwealth of Massachusetts8(Case No. 84-433), dates from 1976, when Michael, then 5 years old, was enrolled in a public school in Burlington. By the middle of his second year, it became clear that the boy had learning disabilities, and local school authorities drew up an individual-education plan, according to court documents.

At the end of the school year, the Panicos met with a team under the auspices of the town's coordinator of special education. A new iep drawn up at that time would have placed Michael in a special-education class in another public school in Burlington for the 1979-80 school year.

The Panicos, however, rejected the iep and placed their son in a private school without the permission of school authorities. At the same time, they appealed the iep to the state deparment of education.

The state agency decided in early 1980 that the appropriate placement for Michael was in the private school and ordered the school committee to pay the tuition.

Case Appealed

The school committee appealed the state's ruling in federal district court in 1980. Later that year, the court ruled in favor of the parents and the state, and in February 1981 ordered the local officials to reimburse the parents for tuition and related expenses. The town put $7,000 for the 1979-80 school-year tuition and transportion in escrow, and paid the parents $12,000 for the next two years, said Ms. Janos.

Faced with a possible cutoff of federal funds under P.L. 94-142, the school committee agreed to pay Michael's tuition, with the understanding that it would be reimbursed if its litigation were successful.

Order Overturned

In June 1981, the U.S. Court of Appeals for the First Circuit overturned the lower court's order regarding repayment and sent the case back for a new trial, ruling that it should not have been decided under state law. In August 1983, the district court ruled in the school3committee's favor, saying the public-school placement was appropriate, and ordered the parents to pay back all the tuition money up to June 1982.

On appeal for a second time, the First Circuit Court ruled in May 1983 that the parents should have been reimbused for tuition paid from January 1980 until the end of the school year--the period during which Michael was in the school with the approval of the state. He is currently enrolled in another private school, not paid for by the school committee.

Further Reimbursement

The First Circuit Court also ruled that the parents had a possible right to further reimbursement if the dis-trict court determined "serious procedural violations" by local school officials.

Until the lower court makes such a determination, the lawyers for the state argued, "the legal questions presented are entirely hypothetical."

Nonetheless, said David W. Rosenberg, the lawyer for the parents, "the primary aim of [P.L. 94-142] is to make sure that a child is provided with a free, appropriate public education."

The parents "exercised their rights in complete conformity with state and federal law," he told the Court.

'Child Must Remain'

Asked by Associate Justice John Paul Stevens if the parents have a duty to leave the child in a school's designated placement, no matter how poor the iep is, Mr. Berman, the school committee's lawyer, replied that "the child must remain in the current placement."

"I have the supposition that schools are right," he said. "If not, [the parents] can get preliminary relief from the court; but they can't resort to self-help."

"The fallacy that runs through the parents' arguments is that most placements are bad--that parents will almost always be right and that the school committee will almost always be wrong," Mr. Berman continued.

However, Mr. Rosenberg argued that if the Court upholds the school committee's reading of the statute, a child "will have been denied either the 'appropriate' portion' or the 'free portion"' of the free, appropriate public education guaranteed by the law.

The Court is not expected to hand down a ruling in the case until late this spring or next fall.

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