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PINK v. MT. DIABLO UNIFIED SCH. DIST.

May 25, 1990

JASMINE PINK, by her parents, ANGELA and STAN CRIDER, and ANGELA and STAN CRIDER, individually, Plaintiffs,
v.
MT. DIABLO UNIFIED SCHOOL DISTRICT, Defendant



The opinion of the court was delivered by: SMITH

 FERN M. SMITH, UNITED STATES DISTRICT JUDGE.

 This is an action under 20 U.S.C. § 1400, et seq., the Education of the Handicapped Act ("EHA") for review of a decision of the Office of Administrative Hearings for the State of California. At bar is plaintiff's motion for a higher standard or, stated otherwise, a motion for determination of the standard of review. *fn1" Defendant Mt. Diablo Unified School District ("District") has also made a motion for partial dismissal. After full consideration of the papers, this Court adopts California Code of Regulations § 3001(b) as the standard for review. Additionally, this Court GRANTS the motion for partial dismissal.

 Standard for Review2

 a. Background

 To qualify for federal funding under the Education of the Handicapped Act, a state must provide its handicapped with "appropriate education." 20 U.S.C. § 1412(1). "Appropriate education" is education which meets both federal and state statutory requirements. 20 U.S.C. § 1401(a)(18).

 In 1981, the U.S. Supreme Court confronted the question: What is "appropriate education" under the EHA? Relying on the legislative history for evidence of Congress' intent, the Court concluded that a reviewing court's "appropriate education" inquiry was limited to two questions: 1) Has the responsible agency complied with EHA procedures? and 2) Is the Individualized Educational Program ("IEP") reasonably calculated to enable the child to receive educational benefits? Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 206-07, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1981) (" Rowley "). In defining the EHA's "appropriate education" requirement, the Supreme Court said nothing about whether a state could impose on itself a higher standard for education of the handicapped.

 California Code of Regulations § 3001(b) requires educational programs for the handicapped to "provide the equal opportunity for each individual with exceptional needs to achieve his or her full potential commensurate with the opportunity provided to other pupils." Since the U.S. Supreme Court did not construe the EHA to prevent a state from adopting an educational standard which is equal to or exceeds the standard set forth in Rowley, plaintiff urges that this Court review the administrative determination at issue here under the standard imposed by the California Code of Regulations.

 b. Analysis

 1. Adoption of the California Standard

 Although there are no controlling cases in this circuit, the two circuit courts which have addressed a choice of law under the EHA have enforced the state standard where it exceeded the federal standard. See e.g., Town of Burlington v. Dept. of Educ. Com. of Mass., 736 F.2d 773 (1st Cir. 1984), aff'd sub nom. 471 U.S. 359, 85 L. Ed. 2d 385, 105 S. Ct. 1996 (1984) (" Burlington ") and Geis v. Brd. of Educ. of Parsippany-Troy Hills, 774 F.2d 575 (3rd Cir. 1985) (" Geis ").

 Focusing upon the legislative intent behind the EHA, the First Circuit found that the Act intended to give each state the power to establish a standard for the education of its handicapped. Burlington, 736 F.2d at 774. Under the EHA, states were intended to enforce their own laws and regulations and not the "skeletal federal provisions designed as minimum standards." Id. As the court stated in Burlington, "We find no indication in either the statutory language or the legislative history of the Act that Congress intended to create either a substantive or procedural ceiling regarding the rights of the disabled child." Burlington, 736 F.2d at 784. *fn3"

 In light of the legislative intent of the act and because the state standard is by reference incorporated in the EHA, this Court is inclined to follow the reasoning set forth by the First and Third Circuits. Under the EHA, each state is given the power to enunciate its own procedural and substantive protections for its handicapped, provided it meets the federal minimum standard. Any ...


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