                                                Filed:   June 3, 1997


                  UNITED STATES COURT OF APPEALS

                      FOR THE FOURTH CIRCUIT



                           No. 95-1809
                           (CA-94-85)



Karl Blaise Stockton, etc.,

                                               Plaintiff - Appellee,

         versus

Barbour County Board of Education, et al,

                                           Defendants - Appellants.




                              O R D E R


    The Court amends its opinion filed May 5, 1997, as follows:

    On the cover sheet, section 7, line 4 -- the following infor-
mation is added to the counsel listing:     "ON BRIEF: Peter W. D.

Wright, Richmond, Virginia, for Appellee."

                                      For the Court - By Direction



                                          /s/ Patricia S. Connor

                                                    Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KARL BLAISE STOCKTON, by his
mother, Keri Stockton,
Plaintiff-Appellee,

v.
                                                                 No. 95-1809
BARBOUR COUNTY BOARD OF
EDUCATION; WILLIAM PHILLIPS,
Superintendent,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Irene M. Keeley, District Judge.
(CA-94-85)

Argued: March 6, 1997

Decided: May 5, 1997

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and
BLACK, Senior United States District Judge for the District of
Maryland, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Claudia West Bentley, BOWLES, RICE, MCDAVID,
GRAFF & LOVE, Martinsburg, West Virginia, for Appellants. Nancy
A. Dalby, HAMSTEAD & ASSOCIATES, L.C., Charles Town, West
Virginia, for Appellee. ON BRIEF: Peter W. D. Wright, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Keri Stockton brought suit on behalf of her disabled son, Karl
Blaise Stockton (Blaise), against the Barbour County Board of Educa-
tion under the Individuals with Disabilities Education Act (IDEA), 20
U.S.C. § 1400 et seq. On March 3, 1995, the district court granted
Stockton a preliminary injunction requiring the Board to bear the cost
of Blaise's education at a private school, The Pathway School, for the
remainder of the 1994-1995 school year. The Board argues that the
district court erred in finding that Pathway was Blaise's "current edu-
cational placement" for purposes of 20 U.S.C. § 1415(e)(3) and there-
fore was barred from granting the injunction. We affirm the judgment
of the district court, finding that, in the circumstances here, the relief
awarded was "appropriate" under 20 U.S.C. § 1415(e)(2).

I.

Karl Blaise Stockton suffers from a number of disabilities includ-
ing Tourette's syndrome (a neurological disorder), obsessive-
compulsive disorder, and attention deficit hyperactivity disorder. He
has specific learning disabilities related to spelling and mathematics.
Blaise also becomes easily depressed, to the point of being suicidal.

After being taught by his mother through sixth grade, Blaise
attended seventh grade at Philip Barbour Middle School in Barbour
County, West Virginia. Despite receiving special education services,
during the year he went from receiving B's and C's to making D's
and F's and began avoiding school. In eighth grade, his school avoid-
ance problem became severe; Blaise missed twenty-six days of school
during the first nine weeks of classes. His IQ score declined from the
superior range to the low average range. On November 18, 1992,
Blaise was involuntarily admitted to Chestnut Ridge Hospital for psy-
chiatric care after he threatened his mother and brother and attempted

                     2
to harm himself. Upon returning to school on March 8, 1993, Blaise
attended for only nine days. On April 15, 1993, Stockton requested
permission to home school her son. The school approved the request
without any review of Blaise's individualized education program
(IEP) and did not offer to provide any special education services.

On August 31, 1993, Stockton requested a due process hearing,
contending that Blaise needed a residential placement in order to
receive the "free appropriate public education" to which he was enti-
tled under IDEA. Prior to the hearing, Blaise underwent examination
by a child psychiatrist, a neuropsychologist, a neurologist, a social
worker, and a Pennsylvania school psychologist certified in West Vir-
ginia. All advised that he was likely to be harmed by continued place-
ment in public school and recommended that he be transferred to a
residential setting. At the hearing, the county school psychologist and
a psychiatrist testified that residential placement was unnecessary.
The psychiatrist, who had not examined Blaise, stated that he was not
familiar with the special education services available in the Barbour
County schools.

In a decision dated May 17, 1994, the hearing officer concluded
that Blaise did not require a residential setting provided that the
county could furnish him, at a minimum, with school aversion therapy
and instructors trained in Tourette's syndrome. The hearing officer
instructed the county to convene an IEP committee within twenty
days to consider all the educational alternatives open to Blaise. If the
specified services could not be provided or proved ineffective, the
hearing officer advised the committee to consider residential place-
ment. The IEP committee met on June 6 and June 20. No decisions
were made, and the school declined to discuss placement.

On June 24, 1994, Stockton enrolled Blaise in Pathway, a residen-
tial private school, and requested a due process hearing regarding the
alleged futility of the IEP process. The second hearing officer limited
her review to evidence not considered in the first hearing. She issued
a decision on August 22, 1994 concluding that none of that evidence
warranted reversal of the first hearing order.

On August 26, 1994, the IEP committee met for the third time and
issued an IEP placing Blaise in the Barbour County schools with over

                    3
half of his time in regular education classes. The IEP called for school
aversion therapy with either of two named professionals. Stockton
contacted both doctors only to be informed that neither had been con-
tacted by the school and neither was willing to perform the counsel-
ling. As of the first day of school, none of the relevant school staff
had received training in Tourette's syndrome.

Blaise began attending Pathway on September 8, 1994. He
promptly began receiving good grades, maintaining excellent atten-
dance, and suffering no school aversion. He quickly met many of the
goals set forth in the August 1994 IEP, achieving the math goal
within one week. Furthermore, Blaise regained IQ scores in the supe-
rior range and became involved with the local emergency squad and
a volunteer youth group.

On July 8, 1994, Stockton had brought suit in federal court chal-
lenging the May 17 hearing decision. On December 18, 1994, she
filed a second suit requesting review of the second hearing decision.
Unable to continue paying the tuition at Pathway, on February 27,
1995 Stockton sought a preliminary injunction requiring the Barbour
County Board of Education to pay for Blaise's education for the
1994-1995 school year. The district court granted relief on the alter-
native grounds that either Pathway was the educational placement
mandated by the "stay-put" provision, 20 U.S.C. § 1415(e)(3), or the
injunction was appropriate under the traditional standards for prelimi-
nary relief established in Blackwelder Furniture Co. v. Seilig Mfg.
Co., 550 F.2d 189 (4th Cir. 1977). The Board appeals.

II.

Under the Individuals with Disabilities Education Act (IDEA), the
federal government provides qualifying states with funding for the
education of disabled children. States such as West Virginia which
receive federal funds must "assure[ ] all children with disabilities the
right to a free appropriate public education." 20 U.S.C. § 1412(1). A
"free appropriate public education" consists of special education and
related services tailored to the specific child's needs according to an
individualized education program (IEP). See 20 U.S.C. § 1401(18) &
(20). Parents who are dissatisfied with the education their child is
receiving are entitled to an administrative due process hearing. 20

                    4
U.S.C. § 1415(b)(2). IDEA permits a party adversely affected by an
administrative decision to obtain judicial review and gives courts
"broad discretion," School Comm. of Burlington v. Dept. of Educ. of
Mass., 471 U.S. 359, 369 (1985), to grant "such relief as the court
determines is appropriate," 20 U.S.C. § 1415(e)(2).

The Board contends, however, that the relief available under sec-
tion 1415(e)(2) is limited by the stay-put provision of IDEA, which
states that:

        during the pendency of any proceedings conducted pursuant
        to this section, unless the State or local educational agency
        and the parents or guardian otherwise agree, the child shall
        remain in the then current educational placement of such
        child, or, if applying for initial admission to a public school,
        shall, with the consent of the parents or guardian, be placed
        in the public school program until all such proceedings have
        been completed.

20 U.S.C. § 1415(e)(3). The Board contends that Stockton was not
entitled to relief under the stay-put provision because Pathway was
not the "then current educational placement" for Blaise, who was
being home schooled at the time administrative proceedings com-
menced. Appellant further suggests that courts are bound to honor the
placement dictated by the stay-put provision and therefore may not
grant a preliminary injunction under section 1415(e)(2) which estab-
lishes a different placement.

The Supreme Court has rejected the Board's reading of sections
1415(e)(2) and (e)(3). "The stay-put provision in no way purports to
limit or pre-empt the authority conferred on courts by § 1415(e)(2);
indeed, it says nothing whatever about judicial power." Honig v. Doe,
484 U.S. 305, 327 (1988). Instead, section 1415(e)(3) simply creates
a rebuttable presumption that the current placement is correct. See id.
at 328. In Honig, the Court specifically found that in an appropriate
case, a court might grant preliminary injunctive relief removing a
dangerous child from his "then current educational placement" in pub-
lic school pending the outcome of administrative and judicial pro-
ceedings. Id. at 327.

                    5
Furthermore, the Supreme Court has established that a court may
require a public school to pay for a private school placement.
Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993);
Burlington, 471 U.S. 359 (1985). This is so even where the placement
is made unilaterally by the parents in contravention of the stay-put
provision. See Florence County, 510 U.S. at 15; Burlington, 471 U.S.
at 371-72. To order such payment, however, a court must first find
that the private placement is appropriate under IDEA and that public
placement would not be. See Florence County, 510 U.S. at 9-10, 15;
Burlington, 471 U.S. at 369-70. Parents making a unilateral place-
ment run the significant risk that a court ultimately will find against
them and they will be left bearing the cost of that placement. Florence
County, 510 U.S. at 15; Burlington, 471 U.S. at 373-74.

The record here supports the district court's conclusion that Path-
way was an appropriate placement while the public school was not.
A "free appropriate public education" is one "sufficient to confer
some educational benefit upon the handicapped child," Board of
Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S.
176, 200 (1982), but it must produce more than "some minimal aca-
demic advancement." Hall v. Vance County Bd. of Educ., 774 F.2d
629, 636 (4th Cir. 1985). Furthermore, an IEP must be "reasonably
calculated to enable the child to receive educational benefits."
Rowley, 458 U.S. at 206-07.

Blaise's public school education and the August 1994 IEP fell dis-
cernably short of the Rowley standards. The record shows that Blaise
actually regressed in public school. His grades and IQ declined
sharply, he developed a severe school avoidance problem, and, as the
district court found, his hospitalization at Chestnut Ridge was "a
direct consequence of the escalating school problems." The August
1994 IEP offered no better prospects. The district court concluded
that the school never seriously considered residential placement for
Blaise, despite the hearing officer's directive to review all placement
options. The court noted that the school applied in June 1994 for
funding to place Blaise in the Barbour County schools even though
it had not yet completed the eligibility and educational criteria analy-
sis that would determine placement. Most significantly, the district
court found that the school was not prepared to provide Blaise with
the minimum services required by the May 17 hearing decision. The

                    6
professionals identified to provide school aversion therapy refused to
do so, and none of the staff at the Barbour County schools had
received the required training in Blaise's neurological disorder. The
one woman whom the school identified as having expertise in Touret-
te's syndrome was employed full time in another school system.
Other than the county school psychologist, every expert who exam-
ined Blaise concluded that he should be in a residential setting and
that returning him to the public school would be harmful.

The Board complains that the district court failed to give proper
deference to the allegedly contrary decisions of the hearing officers.
In IDEA cases, however, "courts are required to make an independent
decision based on a preponderance of the evidence, while giving due
weight to state administrative proceedings." Doyle v. Arlington
County Sch. Bd., 953 F.2d 100, 103 (4th Cir. 1991). The court's deci-
sion is quite consistent with the administrative finding that public
school placement would be appropriate provided that certain services
were available for Blaise. The court found that the school was not
prepared to provide those services and accordingly held that the pub-
lic school was not an appropriate placement.

In contrast, Blaise flourished academically at Pathway. He was
receiving virtually all A's and B's, his attendance was excellent with
no further demonstration of school aversion, and his IQ score had
returned to the superior range. The Board, however, complains that
a residential placement at Pathway disregards IDEA's preference for
mainstreaming. IDEA requires states "to assure that, to the maximum
extent appropriate, children with disabilities . . . are educated with
children who are not disabled." 20 U.S.C. § 1412(5). The Act specifi-
cally acknowledges, however, that mainstreaming is not appropriate
in a case such as this, where "the nature or severity of the disability
is such that education in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily." 20 U.S.C.
§ 1412(5); accord Rowley, 458 U.S. at 181 n.4. Given the statutory
admonition that mainstreaming is not appropriate when no educa-
tional benefit can be derived thereby, appellant's argument must fail.

On this record, we are unable to conclude that the district court
abused its discretion under Blackwelder Furniture Co. v. Seilig Mfg.
Co., 550 F.2d 189 (4th Cir. 1977), in awarding appellee relief. Inas-

                    7
much as the critical findings here relate to success on the merits, we
see no need for the court to have adopted the Blackwelder framework.
The district court did, however, make the findings required by
Florence County and Burlington, namely, that the public schools
failed to provide any educational benefit for Blaise and that the prog-
ress Blaise made in the private school setting of Pathway was sub-
stantial. Not only were the relevant findings made, but they are
solidly grounded in the record. Indeed, the record is replete with evi-
dence that Blaise's attendance problems and grades worsened while
he was in the Barbour County school system and that both his per-
sonal conduct and academic achievement improved in the more struc-
tured environment of Pathway. In view of these findings, it would be
remiss to reverse a district court under a statute which affords that
court the authority to fashion "such relief as the court determines is
appropriate." 20 U.S.C. § 1415(e)(2). As the district court recognized,
of course, its findings on the request for preliminary injunctive relief
remain subject to further inquiry. Final relief is contingent on the dis-
trict court's resolution of the merits of Stockton's claim that Barbour
County failed to provide Blaise with a "free appropriate public educa-
tion" and that Pathway has done so.

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

                    8
