On Appeal from the United States District Court for the Middle District of Pennsylvania
Before: ADAMS, BECKER, Circuit Judges, and SAROKIN, District Judge*fn*
This appeal presents the question whether a change in the method of transporting a seriously handicapped child to a special education facility can be considered a change in "educational placement" within the meaning of the Education of All Handicapped Children Act, 20 U.S.C. § 1415(e)(3) ("EHA"). Section 1415(e)(3), which is known as the "stay put" provision, requires that a school district keep a handicapped child in his or her current "educational placement" while conducting the statutorily mandated "due process" proceedings concerning changes in the child's educational program. Thus, if the change involved in this case is a change in "educational placement," the parents of the child were entitled to a "due process" hearing under section 1415(b)(2) before the change became effective.
The change at issue involves the method by which a handicapped child, Lorin DeLeon, is transported to school. During the 1982-83 school year, appellant Mania DeLeon, Lorin's mother, transported Lorin to school in her own car. Under the challenged modification, Lorin was to be transported together with other children by someone other than his parent, slightly increasing Lorin's travel time on the trip home. After a hearing, the district court dismissed the complaint. We conclude that the plaintiffs failed to demonstrate on the trial record that the change involved is a change in "educational placement." The alleged adverse effect on Lorin's ability to benefit from his education, which is the critical element in determining whether a change in a "related service" such as transportation should be characterized as a change in educational placement, is wholly speculative. Although we conclude that appellants' claim has no merit, the issues presented under the EHA are of sufficient importance that we address them in full.*fn1 We will affirm the judgement of the district court.
Appellants, David and Mania Deleon, have sued for themselves and on behalf of their son, Lorin. Lorin is a profoundly retarded child and, as such, is entitled to a free program of special education under the EHA. In 1980, when Lorin attained school age, the defendant Susquehanna Community School District (the "District") placed him in a special education program at Clarks Summit, Pennsylvania. Appellants objected, and expressed a preference for the Bell School in Kirkwood, New York, on the grounds that the longer travel time necessary to reach Clarks Summit might be harmful to Lorin.*fn2 Due process procedures were instituted under the EHA, and a hearing was conducted by a hearing officer who upheld the placement at Clarks Summit. Mr. and Mrs. DeLeon then appealed to the Pennsylvania Secretary of Education, and the District agreed to an interim placement at the Bell School. In April 1981, the Secretary overruled the hearing officer and directed that the parties seek placement closer to Lorin's home. After further negotiation, the District approved a placement at the Bell School.
Subsequently, the Bell School was moved to Apalachin, New York, which eliminated its travel time advantage over Clarks Summit. At the urging of the Pennsylvania Department of Education, the District instituted due process proceedings to have Lorin transferred to Clarks Summit. Appellants agreed to the transfer, provided that Mrs. DeLeon continue to provide his transportation from door to door; Mrs DeLeon had driven Lorin to Apalachin during his placement at the Bell School, and had been paid $75.91 per day by the District to do so. The District also agreed, and the arrangement was made part of Lorin's Individual Educational Program (IEP) for the 1982-83 school year.*fn3
In March 1983, an IEP was agreed on for Lorin for the 1983-84 school year. This IEP did not specify the mode of transportation. In early August 1983, the District solicited bids for a combined transportation run involving Lorin and several other children in special education programs. The other children attended the Lourdesmont School, which was located about two miles from Clarks Summit. The DeLeons bid on the "combined run," and also objected to Lorin's inclusion in the run. The DeLeons were not the low bidders and were not awarded the contract.*fn4 When the school year started, they refused to allow Lorin to be transported with the other children, in spite of the fact that Lorin would be driven directly to school in the morning and would only have to make one brief stop in the afternoon to pick up the other children.
The DeLeons objected to the combined run on the ground that the increase in transportation time on the trip home would be detrimental to Lorin's education. The school district treated the DeLeons' letter of objection, dated August 19, 1983, as a request for a due process hearing. The District forwarded the letter to the Department of Education and requested that a "due process" hearing be held. However, the District did not consider the change in the mode of transportation to be a change in "educational placement," and thus did not feel bound to continue Lorin's previous mode of transportation pending the outcome of the hearing.
On the first day of the new school year, September 7, 1983, the DeLeons filed a complaint in the district court for the Middle District of Pennsylvania. The complaint alleged that the new method of transportation was in conflict with Lorin's IEP, and thus that the District had violated the "stay put" provision, 20 U.S.C. § 1415(e)(3).*fn5 The complaint requested relief under the EHA and 42 U.S.C. § 1983, alleging violations of section 1415(e)(3), the Rehabilitation Act, 29 U.S.C. § 701 et seq., the "due process of law guaranteed by the Constitution of the United States including but not limited to the Fourteenth Amendment," and the equal protection clause. Appellants sought a preliminary and final injunction to prevent the District from making the change in transportation prior to a due process hearing, as well as damages.
In support of their contention that Lorin would be harmed by the new method of transportation, the DeLeons submitted an affidavit from Dr. Freda Brown, an Assistant Professor of Education at the State University of New York at Binghamton. Dr. Brown is a specialist in the education of severely and profoundly impaired children. Based on her evaluation of Lorin, Dr. Brown stated that "lengthy travel, that is, travel of 50 minutes to 1 hour, will exacerbate [Lorin's tendency to become agitated while traveling] and have a debilitating effect on his ability to benefit from his education." An affidavit from Mrs. DeLeon was also submitted, along with evidence concerning the length of Lorin's school day and the travel times on the original and combined runs. The evidence indicated that the trip from the DeLeon driveway directly to Lorin's school took between 50 and 60 minutes, and that the combined run followed the same route as the original run, and that the return trip on the combined run, including the stop to pick up the other children at Lourdesmont School, took 60 to 70 minutes.
After a hearing, the district court denied the DeLeon's request for a preliminary injunction. In a brief written opinion, the court found that the combined run would not be so harmful to Lorin as to amount to "irreparable injury" and that the DeLeons had not shown a probability of success on the merits, given the limited scope of review over decisions concerning special education placement. See Board of Education v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). On the latter question, the court concluded that, because the state procedures had not yet been completed on the question of Lorin's transportation, it could not review the adequacy of those procedures and should not pass judgment on the merits until the state had completed its review. Then, because both parties indicated that they were relying on the affidavits and memoranda ...