No. 90-2637.United States Court of Appeals, Fifth Circuit.
June 25, 1991.
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Christopher L. Jonas, Corpus Christi, Tex., for plaintiff-appellant.
Mark S. Partin, Advocacy, Inc., Austin, Tex., for amicus curiae — Advocacy, Inc.
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Shirley Selz, Quentella K. Garza, L. Timothy Perrin, Gary, Thomasson, Hall Marks, Corpus Christi, Tex., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Texas.
Before RUBIN, KING, and JONES, Circuit Judges:
ALVIN B. RUBIN,[*] Circuit Judge:
I.
[2] Christopher M. is a profoundly mentally and physically-handicapped child. Although he is 11 years old, his IQ is 5 and his functional development approximates that of an infant between 2-6 months. Both his neurological capabilities and negative physical responses to prolonged stimulation limit his ability to receive educational programming, which consists of basic sensory stimulation: His responses to stimulation include hyperextension, sweating, turning blue, breathing distress, and extreme fatigue. He therefore requires frequent intervals of rest between periods of instruction or activity.
II.
[5] EHA mandates that in return for its acceptance of federal funding the State must provide all handicapped children a “free appropriate public education”.[3] The curriculum is tailored to the unique needs of each child through an “individualized education program” (IEP),[4] which is devised by the child’s parents or guardian, teacher, and a representative of the local educational agency[5] and reviewed at least annually.[6] EHA imposes extensive procedural requirements upon the State to assure that its goal of individualized instruction
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for each handicapped child is met.[7] The only substantive standard for an “appropriate” educational program established by EHA and the Supreme Court, however, is that a free appropriate public education must consist 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.”[8] The requirement of an appropriate education is met if the State provides “personalized instruction with sufficient support services to permit the child to benefit educationally.”[9]
While that benefit must be “meaningful,”[10] EHA does not require that the State attempt to maximize each child’s potential.[11]
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on Timothy W. v. Rochester School Dist.,[20] a First Circuit case in which the school district denied a severely handicapped child access to any public education, contending that EHA did not cover children who could not possibly derive any educational benefit from special services. The First Circuit held that demonstration of benefit was not a prerequisite to eligibility for education under EHA.[21] It observed:
[9] Since Christopher has never been denied access to special education by CCISD, his reliance on Timothy W. is misplaced. [10] The irrelevance of benefit in determining access to education, however, does not negate its pertinence in designing an individual educational program once access is assured. Christopher’s contention that his IEP should be formulated without regard to the benefit, if any, he would derive or the severity of his handicap contradicts the very mandate of EHA to create an educational program tailored to the unique needs of each child. The drafters of EHA were guided by the principle that “each child must receive access to a free public program of education and training appropriate to his learning capabilities.“[23] Rowley imposes an obligation on the states that the IEP must be “reasonably calculated to enable the child to receive educational benefits.”[24] Christopher himself stresses that CCISD is required to provide him with a program that confers meaningful benefits.[25] CCISD simply could not do so without considering Christopher’s abilities, handicaps, and the benefits he would derive. [11] In reviewing the appropriateness of an IEP, this court has previously considered these very factors: “our analysis is an individualized, fact-specific inquiry that requires us to examine carefully the nature and severity of the child’s handicapping condition, his needs and abilities, and the school’s response to the child’s needs.”[26] We have balanced the benefits and detriments to the child of a given program to determine whether the IEP is appropriate.[27] The Sixth Circuit, in a case similar to Christopher’s, recently found one hour of home instruction per day, rather than a full school day at a special education program, to constitute an appropriate education because the child could tolerate only limited amounts of sensory stimulation.[28] In balancing Christopher’s minimal ability to benefit from more than a four-hour school day against his physical distress resulting from prolonged sensory stimulation and determining that a four-hour school day was appropriate, the district court applied the correct legal standard.“Rowley focused on the level of services and the quality of programs that a state must provide, not the criteria for access to those programs. [Cite omitted] The Court’s use of “benefit” in Rowley was a substantive limitation placed on the state’s choice of an educational program; it was not a license for the state to exclude certain handicapped children.”[22]
III.
[12] Christopher contends that the limitation of his school day to four hours in his IEP is presumptively inappropriate. We have previously held — as have the majority of federal courts that have considered the issue[29] — that EHA “creates a
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presumption in favor of the education placement established by [a child’s] IEP, and the party attacking its terms should bear the burden of showing why the educational setting established by the IEP is not appropriate.”[30] Christopher therefore bears the burden of demonstrating that the four-hour school day envisioned in his IEP would not provide him any meaningful benefit. He has not done so. He has stated that longer programming might increase the benefit he receives. CCISD, however, is not obligated under EHA to supply Christopher with the maximum benefit possible, but only to provide a meaningful education.
[13] Christopher claims, however, that federal and state law embody the presumption that a student will receive a full day of schooling unless CCISD proves that this schedule will physically endanger the child. He therefore argues that his burden was merely to demonstrate that limiting his school day to four hours was unnecessary. While Texas law adopts the presumption that all students will attend school for seven hours each day,[31] state law also recognizes that educational services may be modified for handicapped children,[32] whose “regular school day” will be defined by the terms of their IEP; the general practice of providing a seven-hour school day to nonhandicapped students therefore does not apply to a handicapped child whose Admission, Review, and Dismissal Committee has found a shorter school day to be appropriate.[33] [14] Moreover, to presume that every child’s school day should be of uniform length is at odds with the conception of individually tailored education embodied in EHA. The Act’s presumption in favor of “mainstreaming” handicapped children whenever possible does not imply any presumption in favor of the generally-administered length of programming. Certainly a state cannot restrict its consideration of handicapped children’s needs for lengthened periods of instruction by presuming that a “normal” schedule is adequate.[34] No other courts have applied a presumption that a full school day is required under EHA. The Ninth Circuit has stated that an abbreviated school day might be valid under EHA if contemplated by the IEP and tied to proper educational goals.[35] Both the Sixth and Seventh Circuits have found that a shortened school day may be warranted if the harm from longer programming outweighs the benefit the child might receive.[36] We now join those courts in declining to impose a presumption in favor of a full school day under EHA.IV.
[15] Lastly, Christopher contends that the district court erred in crediting the school personnel’s testimony over that of Christopher’s pediatrician. Christopher’s pediatrician, diagnostician, and grandmother all
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testified that he could physically withstand a seven-hour school day and would benefit from increased programming. His grandmother and pediatrician also testified that he had made better progress with a longer school day in the past, but little or no progress with a four-hour school day. On the other hand, Christopher’s teacher for the past two years, his school principal, psychologist, nurse, occupational therapist, and physical therapist all testified that any benefit Christopher received from more than two hours of programming per day — interspersed with rest periods totalling two hours — would be negligible and that Christopher suffered extreme distress and fatigue from increased programming. The hearing officer and the district court both found CCISD’s witnesses to be more persuasive, since their assessments were based on daily and continuing observation within the classroom environment. Christopher’s physician, by contrast, saw him only infrequently and for short periods of time, nor did he regularly observe the actual effects of the educational program on Christopher. Nor were Christopher’s witnesses able to identify any educational objectives that would be met by additional programming, beyond the general assertion that more would be better.
[16] Christopher insists that his medical doctor’s evaluation should be presumptively valid. While Christopher’s pediatrician may have known him a great deal longer than his teachers and therapists, he has, however, at most observed him in a school environment only once for a short period of time. School personnel often have greater contact with a handicapped child than does a treating physician. We therefore decline to create any presumption in favor of the testimony of the child’s treating physician. The district court is certainly capable of assessing the individual circumstances of each case and evaluating the credibility of both medical and nonmedical witnesses. In this case, the district court found the testimony of school personnel who had not only repeatedly observed Christopher’s reactions to sensory stimulation programming but also demonstrated obvious concern and affection for their student to be persuasive. The school’s contention that Christopher’s physical condition is extremely fragile is also bolstered by evidence that during the school terms 1987-89, Christopher was absent 21%-35% of school days. The district court’s conclusion that a full school day of programming would be detrimental to Christopher is amply supported by the record. V.
[17] Advocacy, Inc., an organization devoted to representing the disabled, has filed a brief as amicus curiae in support of Christopher, and raises two additional arguments on appeal. Advocacy asserts that CCISD violated the procedural requirements of EHA by failing to obtain current medical assessment data. During the course of this dispute, Christopher has never raised any claim of procedural violation of EHA. The district court specifically commented on the absence of a procedural claim at the supplemental hearing; Christopher neither objected nor appealed. Therefore, any claim of procedural violation raised now by Christopher himself would be barred. As amicus curiae, Advocacy cannot raise an issue raised by neither of the parties absent exceptional circumstances.[37] Since Advocacy has alleged no exceptional circumstances, we do not address its claim of procedural violation.
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consent. Since Christopher has not appealed that decision to this court, this claim has been waived.[38] Absent exceptional circumstances, an issue waived by appellant cannot be raised by amicus curiae.[39] Any claim that CCISD violated the Rehabilitation Act is therefore not properly before this court.
[19] For the foregoing reasons, the ruling of the district court is AFFIRMED.(1st Cir. 1990), cert. denied ___ U.S. ___, 111 S.Ct. 1122, 113 L.Ed.2d 230 (1991); Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 180-82 (3rd Cir. 1988), cert. denied 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989).
(9th Cir. 1987).
(1st Cir.), cert. denied ___ U.S. ___, 110 S.Ct. 519, 107 L.Ed.2d 520 (1989).
n. 15.
(5th Cir. 1989).
(D.C. Cir. 1985); Doe v. Brookline School Comm., 722 F.2d 910, 919 (1st Cir. 1983); see Comment, A School Board Bears the Burden of Proving that the Education of a Handicapped Child is “Appropriate” under the Education for All Handicapped Children Act of 1975, 22 Rutgers L.J. 273, 279-80 (1990); contra Grymes v. Madden, 672 F.2d 321, 322 (3rd Cir. 1982).
(1984); accord Doe v. Defendant I, 898 F.2d at 1191.
(1981); Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 980
(4th Cir. 1990); Abrahamson v. Hershman, 701 F.2d 223, 227 (1st Cir. 1983).
n. 2, 101 S.Ct. 1559, 1562-63 n. 2, 67 L.Ed.2d 732 (1981) General Engineering Corp. v. Virgin Islands Water Power Auth., 805 F.2d 88, 92 n. 5 (3rd Cir. 1986).