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Community High School Dist. 155 v. Denz





Appeal from the Circuit Court of McHenry County; the Hon. Leonard Brody, Judge, presiding.


This appeal essentially involves the question of what is the appropriate educational placement of defendant In-grid Denz (In-grid), a trainable mentally handicapped child with Down's syndrome who is also a carrier of infectious Hepatitis Type B. Plaintiffs, Community High School District 155 (District 155) and the Board of Control of Special Education District of McHenry County (SEDOM), contend that because of the risk that In-grid might transmit the disease to others if she is placed in a classroom setting, the appropriate placement is "homebound" placement, whereby In-grid would receive her special education through a one-to-one tutor at her home. Defendants, on the other hand, maintain that the risk of transmission of the disease is remote and therefore is not a sufficient reason to exclude In-grid from classroom participation. Defendants therefore argue that the classroom setting is the least restrictive environment in which to educate In-grid and, as such, is required to be provided by plaintiffs under section 14-8.02(c) of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 14-8.02(c)), as well as the parallel Federal statute, the Education for All Handicapped Children Act (EAHCA) (20 U.S.C. § 1401 et seq. (1982)).

The factual basis for this appeal is as follows. In March 1977, In-grid Denz was hospitalized and diagnosed as having chronic persistent infectious Hepatitis Type B. Since that time, she has repeatedly tested positive for being a carrier of that disease. In-grid has also repeatedly tested positive for an "e antigen," indicating a degree of infectivity many times higher than other carriers of Hepatitis Type B virus. She is, however, totally asymptomatic. In April 1977, the Illinois Department of Children and Family Services (IDCFS) became In-grid's guardian and in September 1977 placed In-grid with the Mauer family. At that time, In-grid was of elementary school age and therefore the responsibility for her education was with the Crystal Lake Elementary School District 47 (District 47).

Meanwhile, in August 1977, District 47 performed a case study evaluation pursuant to section 14-8.02(b) of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 14-8.02(b)) to determine In-grid's need for special education. Subsequently, two multidisciplinary conferences were held by the plaintiffs in which it was determined that although In-grid was educationally capable of attending a program operated by SEDOM at the "SEDOM Center" facility, her medical condition made her ineligible for that program. As a result of these conferences, In-grid was placed in the "homebound" program in February 1978 where she received essentially the same education and services as was provided at the "SEDOM Center."

Approximately two years later, the IDCFS requested that District 47 change In-grid's placement to allow her to interact with other handicapped children. The request was denied and the IDCFS appealed the decision to an independent hearing officer pursuant to section 14-8.02(g) of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 14-8.02(g)). After hearing the evidence and arguments, the hearing officer found that the dangers posed by the health impairment for In-grid and other children could be sufficiently minimized by appropriate, relatively inexpensive prophylactic procedures and that In-grid had an overriding right to an educational placement which affords her some degree of interaction with other children. Thus, the decision of the multidisciplinary conference was reversed and In-grid's placement in the SEDOM facility was ordered. The hearing officer also ordered that In-grid be provided a teacher's aide to guard against infection of other children. District 47 appealed the order to the State Superintendent of Education pursuant to section 10.16 of the Board of Education's Rules and Regulations to Govern the Administration and Operation of Special Education. The substance of these rules is not contained in the record on appeal. After hearing additional medical evidence and testimony, which will be discussed in further detail later in this opinion, the State Superintendent of Education affirmed the order of the independent hearing officer.

District 47 then appealed the decision of the State Superintendent of Education to the circuit court of McHenry County pursuant to section 14-8.02(k) of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 14-8.02(k)). District 155 subsequently intervened as a party-plaintiff when it became legally responsible for In-grid's education. After hearing the evidence and arguments of counsel and reviewing the record below, the trial court affirmed the decision of the State Superintendent of Education. Plaintiff's motion for a stay of the judgment pending appeal was denied.

Plaintiffs appeal from the judgment of the circuit court, raising the following issues for review: (1) whether the trial court and the State Superintendent of Education exceeded the scope of judicial review authorized under section 14-8.02 of the School Code by substituting their judgment for that of the local school district; (2) whether In-grid's homebound placement is mandated by the school district's health and safety obligations to its students so that she is being educated in the least restrictive environment, as required by section 14-8.02(c) of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 14-8.02(c)) and the EAHCA; (3) whether the State Superintendent had jurisdiction to hear this matter; and, (4) whether the plaintiffs were denied due process by the State Superintendent?

Relying upon Board of Education v. Rowley (1982), 458 U.S. 176, 73 L.Ed.2d 690, 102 S.Ct. 3034, plaintiffs first contend that the trial court and the State Superintendent did not have authority to conduct de novo proceedings to reach their own independent conclusions, but rather were obligated to defer to the decision of the local school district where that decision is reasonably based on the facts. Defendants argue, on the other hand, that due deference was given by the trial court to the decision of the State authorities as required by Rowley, and that the decision of the trial court was based upon a preponderance of the evidence as required by section 14-8.02(k) (Ill. Rev. Stat. 1981, ch. 122, par. 14-8.02(k)).

In Rowley, the court considered the educational needs of a deaf child, Amy Rowley, who was an excellent lip reader and was receiving her education in a regular classroom. Amy's parents requested that the local school district provide Amy with a sign language interpreter. However, after several weeks of experimentation with an interpreter in the classroom, the school administrators concluded that Amy did not need an interpreter and the parents' request was denied. The parents then demanded and received a hearing before an independent hearing officer who agreed with the administrators' determination that Amy did not need an interpreter because she was "achieving educationally, academically, and socially" without such assistance. (458 U.S. 176, 185, 73 L.Ed.2d 690, 698, 102 S.Ct. 3034, 3040.) The examiner's decision was affirmed on appeal by the New York Commissioner of Education on the basis of substantial evidence in the record. However, the district court reversed the Commissioner's decision finding that the right to a "free appropriate public education" required that the handicapped child be provided with "an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children." (458 U.S. 176, 185-86, 73 L.Ed.2d 690, 699, 102 S.Ct. 3034, 3040.) The district court also assumed that the responsibility for giving content to the requirement of an "appropriate education" had "been left entirely to the [federal] courts> and the hearing officers." (458 U.S. 176, 186, 73 L.Ed.2d 690, 699, 102 S.Ct. 3034, 3040.) The United States Court of Appeals for the Second Circuit affirmed the district court's opinion.

The United States Supreme Court considered two questions in its review of the appellate court's decision: (1) what is meant by the EAHCA's requirement of a "free appropriate public education?" and (2) what is the role of State and Federal courts> in exercising the review granted under the Act? It is undisputed in the instant case that the provisions of the EAHCA and the Illinois statute are essentially identical and that the Illinois statute incorporates by reference the provisions of the EAHCA which were discussed in Rowley. (Ill. Rev. Stat. 1981, ch. 122, par. 14-8.02(f).) With respect to the first issue, the court determined that contrary to the opinions of the district and appellate courts>, the EAHCA did not require the States to maximize the potential of handicapped children "commensurate with the opportunity provided to other children," but required only that the child be provided with specialized educational instruction supported by such services as are necessary to permit the child "to benefit" from the instruction. (458 U.S. 176, 186-89, 73 L.Ed.2d 690, 699-701, 102 S.Ct. 3034, 3040-41.) The court further noted that while the EAHCA also requires participating States to educate handicapped children with non-handicapped children whenever possible, i.e., "mainstreaming," that aspect of the Act was not in issue in that case since Amy Rowley was in fact enrolled in a regular classroom of the public school system and was performing above average in that setting. The court emphasized that due to this fact, it was not establishing a test for determining the adequacy of the educational benefits conferred upon children covered by the Act. 458 U.S. 176, 202, 73 L.Ed.2d 690, 709, 102 S.Ct. 3034, 3049.

Rowley is distinguishable from the instant case in several respects. First, the parties here do not dispute the fact that In-grid is "benefiting" from her "homebound" education. Thus, the question whether In-grid is receiving a "free appropriate public education" within the meaning of the Rowley decision is not in issue here. Second, the Rowley case did not discuss the circumstances under which a school district's refusal to "mainstream" a child would constitute a violation of the EAHCA. (See 20 U.S.C. § 1412(5) (1982).) Thus, the decision offers little guidance on the proper interpretation of the "mainstreaming" requirement.

Despite its distinguishing features, however, the Rowley decision is instructive on the proper interpretation to be given to essentially identical provisions in the Illinois statute regarding the scope of judicial review. The Rowley court analyzed certain language in the Federal statute which authorized a reviewing court to base its decision on the "preponderance of the evidence." This language is also contained in the Illinois statute. (Ill. Rev. Stat. 1981, ch. 122, par. 14-8.02(k).) The court determined that this language does not give authority to reviewing courts> to "substitute their own notions of sound educational policy for those of the school authorities which they review." (Board of Education v. Rowley (1982), 458 U.S. 176, 206, 73 L.Ed.2d 690, 712, 102 S.Ct. 3034, 3051.) The court further stated that any relief which is granted by a reviewing court must have as its reference point the obligations, largely procedural in nature, which are imposed on recipient States by Congress. Thus, the court concluded that a court's inquiry in suits brought under the EAHCA is limited to determining whether the requirements of that Act have been met, and that questions of methodology are for resolution by the States. In reaching this conclusion, the court cautioned that courts> lack the "`specialized knowledge and experience' necessary to resolve `persistent and difficult questions of educational policy,'" and stated that "[t]he primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child." (Emphasis added.) 458 U.S. 176, 207-08, 73 L.Ed.2d 690, 712-13, 102 S.Ct. 3034, 3051-52.

In Roncker v. Walter (6th Cir. 1983), 700 F.2d 1058, 1062, the court discussed the requirement of "mainstreaming" in light of the Rowley decision and determined that a trial court may conduct a de novo review of the "mainstreaming" requirement since it is essentially a question of compliance with the Act rather than methodology of education. However, the court stated that due weight should be given to the State administrative proceedings in reaching a decision. 700 F.2d 1058, 1062.

• 1 Applying these principles to the instant case, we believe the trial court here complied with the standards of judicial review enunciated in Rowley and Roncker. In affirming the decision of the State Superintendent of Education, the trial court gave due deference to that agency's determination of educational policy under the circumstances presented here. Additionally, while plaintiffs argue that the standard of review enunciated in Rowley requires the State Superintendent to give due deference to the decisions of local school districts, we find this argument unpersuasive. First, the role of the State Superintendent in the reviewing process was not in issue in Rowley and thus that decision does not support plaintiffs' argument. Second, it is clear that the reasons which justify a limited judicial review by the courts>, i.e., a lack of specialized knowledge and experience, do not apply to ...

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