Appeal from the Order of the Secretary of Education in case of In Re Educational Assignment of Barry, Special Education Appeal No. 51.
Ross A. Unruh, with him Lynn S. Palenscar, and MacElree, Harvey, Gallagher & Kean, Ltd., for appellant.
John A. Alzamora, Assistant Attorney General, for appellees.
James E. McErlane, with him Lamb, Windle & McErlane, for intervenors.
Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
This appeal is one of many we are called upon to consider where there is a conflict of opinion of the authorities and parents of emotionally disturbed school age children.
The Secretary of Education affirmed a hearing officer's determination that a day school program was the appropriate educational placement for a socially and emotionally disturbed school-aged child who lived in the School District (District). The District appeals. We affirm the Secretary.
Is the Secretary's decision recommending placement in a day special education program (in either a public or private school) supported by substantial evidence?
The Secretary's dilemma, as might be expected, resulted from the conflicting opinions of the child's parents and the District. The parents preferred
placement in a day school while placement in a residential treatment facility was recommended by the District. All parties agree the child needs some kind of special education. In December, 1966, he began receiving special instructions at school and has since been provided extensive treatment in a number of school settings and treatment facilities. However, the present controversy arises when in November, 1975, the District recommended re-admission to a residential treatment facility intertwined with interim home instruction. It believed adequate facilities for the necessary care and treatment could best be provided by a residential treatment facility. The parents, as was their right, rejected this proposal and requested a due process hearing.*fn1 At the conclusion of the examiner's hearing where testimony was submitted in support of both contentions, including that of psychiatrists who had examined the child and of several school administrators, he concluded that a day program which would provide a full range of educational and treatment services is the most desirable one. The Secretary, on December 9, 1976, issued an opinion and final order affirming the hearing officer's recommendation but adding to it the required outside psychotherapy.
Our duty in reviewing the Secretary's adjudication is to affirm his decision unless a violation of constitutional rights has occurred, an error of law has been committed, or the findings of fact are not ...