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  "name": "MARGUERITE OWENS HARRELL, by her parents Allen W. Harrell and Irene Burk Harrell v. WILSON COUNTY SCHOOLS, DR. W. O. FIELDS, JR., SUPERINTENDENT and NORTH CAROLINA DEPARTMENT OF PUBLIC INSTRUCTION, DR. A. CRAIG PHILLIPS, Superintendent",
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    "parties": [
      "MARGUERITE OWENS HARRELL, by her parents Allen W. Harrell and Irene Burk Harrell v. WILSON COUNTY SCHOOLS, DR. W. O. FIELDS, JR., SUPERINTENDENT and NORTH CAROLINA DEPARTMENT OF PUBLIC INSTRUCTION, DR. A. CRAIG PHILLIPS, Superintendent"
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      {
        "text": "BECTON, Judge.\nI\nOn 17 July 1978, the parents of Marguerite Harrell, a hearing impaired child, applied to the Wilson County Schools for a grant, pursuant to G.S. 115-363 (1977), to cover the cost of sending Marguerite to the Central Institute for the Deaf (CID) in St. Louis, Missouri. CID is recognized as one of the leading institutions in the world which teaches deaf children. It emphasizes an oral program which prepares students for entry into mainstream society. When the grant was initially denied in 1978, the parents elected to send Marguerite back to CID for the 1978-79 school year at their own expense.\nIn determining how to fulfill its duty under G.S. 115-363, et seq. (1977) and 20 U.S.C. 1401, et seq., the school system evaluated Marguerite\u2019s needs and, thereafter, determined if the Wilson School System could satisfy her needs. A committee formed to evaluate Marguerite developed an Individualized Education Program (IEP) for Marguerite which provided that she be placed in a regular sixth grade class with support services.\nBeing dissatisfied with the recommendation of the committee, the parents appealed the decision. The matter was heard on 11 October 1978 before George S. Willard, Jr., who affirmed the decision of the committee. The parents appealed that decision, and, at a State Review Hearing on 20 December 1978, the decision to place Marguerite in the Wilson School System was again affirmed. The parents then appealed that decision to the Superior Court of Wilson County. Judge Stevens, making findings of fact and conclusions of law, affirmed the administrative decisions to place Marguerite in the public schools. From the adverse decision by the superior court, the plaintiff appeals to this Court.\nII\nScope of Review\nOur scope of review on this appeal of an administrative agency decision is determined by the \u201cissues presented for review by the appealing party.\u201d Utilities Comm. v. Oil Co., 302 N.C. 14, 21, 273 S.E. 2d 232, 236 (1981).\nIn Savings & Loan League v. Credit Union Comm., 302 N.C. 458, 463-64, 276 S.E. 2d 404, 408-09 (1981), our Supreme Court said:\nUnder the APA, a reviewing court\u2019s power to affirm the decision of the agency and to remand for further proceedings is not circumscribed. However, the court may reverse or modify only if\nthe substantial rights of the petitioners may have been prejudiced because the agency findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions; or\n(2) In excess of statutory authority or jurisdiction of the agency; or\n(3) Made upon unlawful procedure; or\n(4) Affected by other error of law; or\n(5) Unsupported by substantial evidence admissible under G.S. 150A-29(a) or G.S. 150A-30 in view of the entire record as submitted; or\n(6) Arbitrary or capricious.\nG.S. \u00a7 150A-51 (1978).\nOn this appeal, the plaintiff presents three arguments: (1) that during the assessment, evaluation and placement of Marguerite, the school committee did not comply with due process of the applicable federal and State regulations; (2) that the IEP developed for Marguerite is not responsive to her special needs as required by federal and State statutes and regulations; and (3) that the school system failed to provide the most appropriate education for Marguerite. These arguments therefore present the following issues under G.S. 150A-51: (1) whether the actions of the school system were in violation of constitutional provisions; (2) whether the decision by the school system regarding an appropriate education for Marguerite was affected by error of law; (3) whether the decision was arbitrary and capricious; and (4) whether the decision was supported by substantial evidence.\nIll\nAppropriate Education\nWe address first the plaintiffs argument that G.S. 115-363 (1977) and 20 U.S.C. 1401 et seq. require the local school agency to provide a handicapped student with the most appropriate education. We disagree.\nG.S. 115-363 (1977) provides that \u201c[t]he policy of the State is to provide a free appropriate publicly supported education to every child with special needs.\u201d The federal statute likewise provides that \u201c[i]t is the purpose of this chapter to assure that all handicapped children have available to them, ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs. . . .\u201d 20 U.S.C. 1400(c) (1982 Cum. Supp.). Title 16 of the North Carolina Administrative Code Chapter 2, subchapter E section 1501(c) provides that a free appropriate public education is special education related services which:\n(1) are provided at public expense, under public supervision and direction without charge;\n(2) meet the standards of the state education agency;\n(3) are provided in conformity with an individualized education program.\nThe federal statute defines free appropriate public education as special education and related services which\n(A) have been provided at public expense, under public supervision and direction, and without charge,\n(B) meet the standards of the State Educational Agency,\n(C) include an appropriate preschool, elementary, or secondary school education in the State involved, and\n(D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title.\n20 U.S.C. 1401 (18).\nWhile there are no State cases interpreting our State provisions, the United States Supreme Court recently interpreted the federal provision to mean a free appropriate education, not the best or most appropriate education. Board of Education v. Rowley, 50 U.S.L.W. 4925 (28 June 1982). Specifically, with regard to the federal statute the Rowley Court said:\nWhen the language of the Act and its legislative history are considered together, the requirements imposed by Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a \u201cfree apropriate public education,\u201d we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State\u2019s educational standards, must approximate the grade levels used in the State\u2019s regular education, and must comport with the child\u2019s IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.\n50 U.S.L.W. at 4932-33.\nAlthough our statute was designed, in part, to bring the State in conformity with the federal statute, see G.S. 115-363 (1977), the Rowley Court\u2019s interpretation of Congress\u2019 intent does not control our interpretation of our General Assembly\u2019s intent. We believe that our General Assembly \u201cintended to eliminate the effects of the handicap, at least to the extent that the child will be given an equal opportunity to learn if that is reasonably possible.\u201d Rowley, 50 U.S.L.W. 4925, 4936 (White, J., dissenting). Under this standard a handicapped child should be given an opportunity to achieve his full potential commensurate with that given other children.\nNothing we have said, however, helps the plaintiff on the facts of this case. Our statute, as progressive as it may be, was not designed to require the development of a utopian educational program for handicapped students any more than the public schools are required to provide utopian educational programs for non-handicapped students. We believe that the Wilson County School System has fulfilled its obligation to provide Marguerite with a free, appropriate education. We, therefore, hold that the decision was not affected by error of law and overrule this assignment.\nIV\nDue Process\nPlaintiff argues that she was denied due process of law because she was not provided with a fair tribunal. Specifically, plaintiff argues that because of the presence and influence of Mildred Blackburn, a consultant for programs for the hearing impaired in the public schools of North Carolina with a preference for mainstreaming hearing impaired students rather than putting them in residential facilities, the conferences held to develop Marguerite\u2019s IEP were biased. Plaintiff further alleges that Ms. Blackburn\u2019s opinions, because of her position, were viewed as expert opinions and were given too much weight. Alleging that this bias prevented the committee from considering that the CID residential facility was the most appropriate place for her, the plaintiff contends that the rules and regulations under which the IEP were developed were also violated. We disagree.\nFirst, the parties agreed at the hearing on 11 October 1978 that the required due process procedures had been adequately followed prior to and during the hearing. The State Review hearing officer found that all State and federal regulations had been followed in determining the needs of the child. No exception was taken to this finding. Further, the trial court found that the parents had been given notice of the hearings.\nDue process requires that an individual receive adequate notice and be given an opportunity to be heard. In re Moore, 289 N.C. 95, 101, 221 S.E. 2d 307, 309 (1976). This requirement applies to administrative agencies performing adjudicatory functions. Goldberg v. Kelly, 397 U.S. 254, 25 L.Ed. 2d 287, 90 S.Ct. 1011 (1970); Thomas v. Ward, 529 F. 2d 916 (4th Cir. 1975). \u201cA fair trial in a fair tribunal is a basic requirement of due process.\u201d In re Murchison, 349 U.S. 133, 136, 99 L.Ed. 942, 946, 75 S.Ct. 623, 625 (1955). We are convinced that the notice requirements of due process were met in both the hearings below and in the adjudication in the superior court. We also find no merit to the plaintiffs claim that the \u201cbias\u201d of Mildred Blackburn resulted in a denial of due process.\nThe mere fact that a member of the panel which developed the IEP for Marguerite had expressed a certain professional opinion on mainstreaming versus residential placement does not result in a violation of due process. First, it is possible for members of boards or agencies to make policy decisions and later perform adjudicatory functions as well. \u201cThe fact that an administrative tribunal acts in the triple capacity of complainant, prosecutor and judge is not violative of the requirements of due process.\u201d 73 CJS Public Administrative Bodies and Procedure \u00a7 60, p. 385 (1951). In Thompson v. Board of Education, 31 N.C. App. 401, 230 S.E. 2d 164 (1976), reversed on other grounds, 292 N.C. 406, 233 S.E. 2d 538 (1977), this Court addressed the question of bias on the part of a school board charged both with determining if cause existed for suspension of a teacher and for thereafter determining if the teacher should be dismissed. In finding that no bias or violation of due process existed, the Court relied upon United States Supreme Court cases which addressed the issue of bias and prejudgment on the part of agency or board members.\nIn Trade Comm. v. Cement Institute, 333 U.S. 683, 92 L.Ed. 1010, 68 S.Ct. 793 (1948), members of the Commission who had investigated the pricing system of the respondent and suggested that it was illegal were asked to disqualify themselves. The Supreme Court stated that there was no need for them to do so; the fact that the commissioners had formed an opinion as a result of their prior investigation did not mean that they could not later render an objective opinion. 333 U.S. at 702, 92 L.Ed. at 1035, 68 S.Ct. at 804. The court analogized the role of the Commissioners to that of a trial judge. It reasoned that due process would not require a judge to recuse himself simply because he had expressed an opinion on certain types of conduct. Id. at 702-03, 92 L.Ed. at 1035, 68 S.Ct. at 804. In Hortonville District v. Hortonville Education Assoc., 426 U.S. 482, 49 L.Ed. 2d 1, 96 S.Ct. 2308 (1976), the Supreme Court rejected the claim of bias by discharged striking teachers that the School District could not terminate their employment since the Board had been involved as a negotiator during the teacher strike. The Court stated that the fact that the Board was involved in the collective bargaining process did not \u201covercome the presumption of honesty and integrity in policymakers with decisionmaking powers,\u201d and that this involvement was not \u201cthe sort of bias\u201d that had disqualified other deci-sionmakers as a matter of federal due process. Id. at 496-97, 49 L.Ed. 2d at 11-12, 96 S.Ct. at 2316.\nIn the case sub judice, Mildred Blackburn participated on the committee to determine Marguerite\u2019s IEP. She expressed views against residential placement for children such as Marguerite. This view was contrary to that presented by Marguerite\u2019s mother. Mainstreaming and residential placements were two of the alternatives considered by the committee. First, viewing the record under the whole record test, we find that there is competent, material and substantial evidence to support the decision below. Second, the degree of involvement, prejudgment and predisposition of Mrs. Blackburn was far less assuming than that of the FTC Commissioners in Cement Industries and of the School Board in Hortonville Education Assoc. In view of Cement Industries and Hortonville Education Assoc., we find that the predisposition or professional theory which Mrs. Blackburn had, and brought to the Committee, was not enough to constitute bias and a violation of due process.\nV\nCompliance With State and Federal Rules and Regulations\nWe have carefully reviewed the record and find that the school system substantially complied with the relevant federal and State rules and regulations in the development of an IEP for Marguerite. Because we so find, we also find no merit to plaintiffs arguments (1) that she was denied due process of the law due to noncompliance with those regulations; (2) that the decision was not supported by substantial evidence under the whole record test; and (3) that the decision was arbitrary and capricious.\nThe applicable regulations require that a child for whom special education is provided be identified and evaluated before such services are provided. 16 NCAC 2E.1510. For the hearing impaired student the following screening and evaluation procedures are required:\n(a) required screening or evaluation before placement:\n(i) education evaluation,\n(ii) speech/language evaluation,\n(iii) audiological evaluation,\n(iv) otological evaluation,\n(v) vision screening;\n(b) recommended screening or evaluation before placement:\n(i) medical screening,\n(ii) psychological evaluation,\n(iii) adaptive behavior evaluation,\n(iv) ophthalmological or optometric evaluation.\n16 NCAC 2E.1510(3). After the screening and evaluation has been completed, an IEP must be developed for each child within thirty days of the determination that the child is to receive special educational programs or services. 16 NCAC 2E.1512(g)(3). The IEP is developed by the local educational agency which provides the service to the student. \u201cThe entire school-based committee may or may not be involved.\u201d 16 NCAC 2E.1512(b). Chapter 16 of the North Carolina Administrative Code section 2E.1512(b) provides that the persons charged with developing the IEP must include a representative of the local educational agency other than the child\u2019s teachers, the child\u2019s teacher, the parents, and when appropriate, the child. See also 34 C.F.R. 300.344 (1978). However, 16 NCAC 2E.1512(b)(7) provides that:\nFor a child with special needs who has been evaluated for the first time, the local education agency shall have:\n(A) a member of the evaluation team participate in the Individualized Education Program meeting, or\n(B) a representative of the local education agency, a child\u2019s teacher, or some other person present at the meeting who is knowledgeable about the evaluation procedures used with the child and who is familiar with the results of the evaluation. [Emphasis added.]\nFurther, the IEP must include the following goals and objectives:\n(1) a statement of the child\u2019s present levels of educational performance;\n(2) a statement of annual goals;\n(3) a statement of short-term instructional objectives;\n(4) a statement of specific education and related services to be provided to the child;\n(5) a description of the extent to which the child will participate in regular education programs and a description of the program to be provided;\n(6) the projected dates for initiation of services and the anticipated duration of services;\n(7) objective criteria, evaluation procedures, and schedules for determining, on at least an annual basis, whether the short-term instructional objectives are being achieved.\n16 NCAC 2E.1512(c). See also 34 C.F.R. 300.346 (1978).\nUpon review of the record in this case, we find that the Wilson School System conducted the required screening and evaluation of Marguerite. The IEP committee consulted the following: Paul Speziale, a psychologist; Ray Lamm, Director of Instruction; Rosalie Wooten, Exceptional-Children Teacher; Annie Dickets, a regular Administrative Committee member; Mildred Blackburn, Consultant for the Hearing-Impaired Child, State Department of Public Instruction; Danny Hutto, Assistant Superintendent; Sandra Simmons, Staff Member at Eastern North Carolina School for the Deaf; Diane Parker, Director of Programs for Exceptional Children; Connie Michels, Coordinator of Programs for Hearing-Impaired, Atlantic Christian College; and Irene Harrell, parent. It is noted that not all of the persons listed above attended every conference. The IEP Committee consisted of Diane Parker, Martha Wrenn, and Paul Speziale, who consulted Mrs. Harrell.\nThe conference reports indicate that several alternatives were discussed at meetings held on 11 August, 22 August, and 28 August 1978 before it was determined that Marguerite should be placed in a regular classroom with support services. The records also show that the observation, assessment and testing to determine Marguerite\u2019s needs were all done between 27 July 1978 and 17 August 1978; that the IEP was developed as a result of meetings on 22 August and 28 August 1978; and that the committee made its recommendation on 28 August 1978. Further, our review of the IEP reveals that it includes the goals and objectives required by NCAC 2E.1512(c) and 34 C.F.R. 300.346 (1978). It is clear to us that the school system complied with the applicable regulations.\nThe plaintiff argues that the school system made a decision to mainstream Marguerite and then proceeded to develop an IEP to suit the mainstreaming. That is, what was offered the plaintiff was what the school system could provide, not what the plaintiff needed. This, the plaintiff maintains, was arbitrary and capricious. We find no merit in this argument. The record indicates that an evaluation was performed prior to a determination of what Marguerite\u2019s needs were. Based on the evaluation and assessment the committee determined that Marguerite could be served by enrollment in a regular sixth grade class with support services.\nIn addition, the decision to place Marguerite in a regular sixth grade classroom is consistent with policies established in federal and State regulations that handicapped children be educated along with the non-handicapped to the extent possible. See 20 U.S.C. \u00a7 1412(5)(B); and 16 NCAC 2E.1515(a). This policy has a rational basis to promote a valid state goal; it does not violate due process. Therefore, we do not find this decision to be arbitrary and capricious.\nThe plaintiff argues that the decision by the school system was erroneous because the school system did not consider Marguerite\u2019s records from the CID and because it only used the Peabody Individual Achievement Test. We find no merit in this argument. First, the hearing officer who affirmed the school committee\u2019s decision had before him numerous exhibits offered by the plaintiff. Among those exhibits were Marguerite\u2019s report cards from CID, an IEP prepared by the private school, and several publications regarding education of deaf children. In addition, the hearing officer considered, and included in his findings of facts, the reports from the Coordinator of the Hearing Impaired Program at Atlantic Christian College, and from an audiologist at East Carolina University. The hearing officer, after considering that evidence and the evidence presented by the school system, issued a Decision and Rationale, which affirmed the placement determination of the school system.\nIn addition, the regulations do not require, as plaintiff suggests, that the records from the CID, her report cards, and work samples be considered by the committee as it reached its decision. The statutes and regulations require that a multi-disciplinary diagnosis and evaluation be performed by the school system. G.S. 115-375; 16 NCAC 2E.1510. This the school system did. Significantly, the trial court made the following findings of fact to which no exception was made and which are supported by substantial evidence in view of the entire record:\n5. At a conference on July 27, 1978, including, among others, Dr. W. 0. Fields, Superintendent of the school system, and Mrs. Harrell, it was determined that it would be necessary to evaluate Marguerite to determine if the school system could furnish her with an appropriate educational program.\n6. A multi-disciplinary diagnosis and evaluation of Marguerite was made by the respondent. She was assessed in all areas related to her disability. The respondent conducted conferences on August 11, 14, 22 of 1978 with the petitioners and various educational experts. After the conferences had been concluded, an individualized education program was developed for the child by the School System.\nFurther, the local hearing officer also made extensive findings of fact which supported the decision to place Marguerite in a regular sixth grade class.\nThe plaintiff also argues that the IEP is unresponsive to her needs. Specifically, she argues that the IEP was incomplete in that it did not include a statement of the educational services to be provided for the child and a description of the extent to which the child will be in the regular classroom. The IEP states that the percentage of time to be spent in the classroom and with resource persons was \u201cto be determined by child\u2019s needs.\u201d While a more specific determination of the above requirements is desired, it is our opinion that on the facts of this case, the answers were sufficient. We note that this IEP was developed between 22 August and 28 August 1978, and that the initial request for funds was not made until 17 July 1978 for the 1978-79 school year. We believe that the school board acted diligently and in good faith in evaluating Marguerite\u2019s needs and developing the IEP within this relatively short period of time. We also note that the trial court found that Marguerite was enrolled in the Wilson School System in September 1980 and that she is progressing with her studies.\nFor the foregoing reasons, the judgment below is\nAffirmed.\nJudge Hill concurs.\nJudge WELLS concurs in the result.\n. Chapter 115, under which this action was brought, was rewritten by Session Laws 1981, c 423, s.l, effective 1 July 1981, and has been recodified as Chapter 115C. In Chapter 115C, the General Assembly clearly spelled out its intent by declaring \u201cthat the policy of the State is to ensure every child a fair and full opportunity to reach his full potential. . . .\u201d G.S. 115C-106.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Hopkins & Allen, by Janice Watson Davidson and Grover Prevatte Hopkins, for plaintiff appellant.",
      "Rose, Jones, Rand & Orcutt, P.A., by Z. Hardy Rose and L. Patrick Fleming, Jr., for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "MARGUERITE OWENS HARRELL, by her parents Allen W. Harrell and Irene Burk Harrell v. WILSON COUNTY SCHOOLS, DR. W. O. FIELDS, JR., SUPERINTENDENT and NORTH CAROLINA DEPARTMENT OF PUBLIC INSTRUCTION, DR. A. CRAIG PHILLIPS, Superintendent\nNo. 817SC793\n(Filed 20 July 1982)\n1. Schools \u00a7 10\u2014 free appropriate public education for handicapped children\u2014 most appropriate education not required\nStatutes requiring a free appropriate publicly supported education for handicapped children, G.S. 115-363 and 20 U.S.C. 1400(c), do not require a local school agency to provide a handicapped student with the most appropriate education. Therefore, the decision of a county school system to place a 13-year-old hearing impaired child in a regular sixth grade class with support services rather than to provide a grant to subsidize the child\u2019s education at an out-of-state residential institution was not affected by error of law.\n2. Schools \u00a7 10\u2014 hearing impaired student \u2014 individualized educational program-predisposition of consultant to mainstream handicapped students\nA hearing impaired student was not denied due process because a consultant for programs for the hearing impaired in the public schools of North Carolina with a preference for mainstreaming hearing impaired students rather than putting them in residential facilities served on the committee which developed an individualized educational program for the student.\n3. Schools \u00a7 10\u2014 hearing impaired student \u2014 individualized educational program-compliance with rules and regulations\nA county school system substantially complied with relevant State and federal rules and regulations requiring a multi-disciplinary diagnosis and evaluation in developing an individualized educational program for a hearing impaired student. Furthermore, the decision of the school system to place such student in a regular sixth grade class with support services rather than to provide a grant to subsidize the child\u2019s education at an out-of-state residential institution was supported by substantial evidence under the whole record test and was not arbitrary and capricious. G.S. 115-375; 16 NCAC 2E. 1510.\nJudge Wells concurs in the result.\nAPPEAL by plaintiff from Stevens, Judge. Judgment entered 27 February 1981 in Superior Court, WILSON County. Heard in the Court of Appeals 31 March 1982.\nThis appeal questions whether the Wilson County School System properly determined that a 13-year-old hearing impaired child would receive a free appropriate education by placing her in a regular sixth grade class within the Wilson Public Schools instead of providing a grant to subsidize the child\u2019s education at an out-of-state residential institution.\nHopkins & Allen, by Janice Watson Davidson and Grover Prevatte Hopkins, for plaintiff appellant.\nRose, Jones, Rand & Orcutt, P.A., by Z. Hardy Rose and L. Patrick Fleming, Jr., for defendant appellees."
  },
  "file_name": "0260-01",
  "first_page_order": 292,
  "last_page_order": 304
}
