Linder v. Wake County Board of Education ( 1981 )

CLARK, Judge.

This Court reverses the judgment of the Superior Court and remands this case for dismissal. No judgment should have been entered in this case for the reason that the petitioners in the original hearing, the parents of Kathryn Dianne Linder, lacked standing.

The Linders clearly have no stake in the funds themselves. Even if no governmental entity ever provided necessary funds, the parents of a special child such as Kathryn could never, under present law, be charged with the expenses of providing that child with an appropriate education. G.S. 115-363 and -364. Whether the Linders win or lose this case, then, their economic situation will not change. They will receive no funds; they will pay out no funds. They argue, however, that the issue in which they have a justiciable interest is not who pays the money, but whether their daughter continues to receive the “free appropriate publicly supported education” to which she is entitled. G.S. 115-363. They argue that their daughter will be denied an appropriate education unless the issue of who pays for it is resolved.

The parents claim standing to raise the issue of what governmental entity is responsible to the Frankie Lemmon School for their daughter’s education expenses by virtue of G.S. 115-179.1 (a), which provides for review “of an... omission by State or local authorities on the ground that the child... is about to be: (1) Denied... continuance in a program appropriate to his condition and needs____” They argue that Frankie Lemmon School is the only school in the area equipped to provide their child with the appropriate education that is her right, G.S. 115-363 and -364, and further that the school might be forced to close its doors if it does not receive funds from either the Wake County Board of Education or the State Department of Human Resources. They contend that this statute confers on them standing to appeal the decision of the Wake County School Board not to pay the Frankie Lemmon School for their daughter’s education because the decision threatens their daughter’s continuance in the Frankie Lemmon School. We disagree.

The statute under which the Linders claim standing provides clear guidelines for notice to parents of any impending denial of a program appropriate to their child’s special educational needs. G.S. 115-179.1 (b). The Linders did not allege receipt of such notice, and they admitted at the oral arguments on this case that their child had in fact received her free and appropriate education in the Frankie Lemmon School, both in the school year in which this action was commenced and in the two school years since its commencement.

The same statute which establishes the responsibility of the State to provide “special education and related services appropriate to all children with special needs,” also provides that the responsible governmental unit must develop and administer an appropriate program only if the same service is not being provided by existing facilities. G.S. 115-367 (a). This provision seeks only to avoid useless duplication of programs, and in no way relieves the State of its responsibility for Kathryn Linder’s education. Since the Frankie Lemmon School offered a program appropriate to Kathryn Linder’s needs, it would be useless duplication for either Wake County or the State Department of Human Resources to develop an identical program of its own. If, however, the Frankie Lemmon School closed its doors, one of these entities would be statutorily required to provide to Kathryn Linder the education' she now receives from the Frankie Lemmon School. We think that only if no such program were then developed would Kathryn Linder actually be denied her free and appropriate education. We believe further that, since the Frankie Lemmon School has at all times in the past and is currently providing Kathryn with an appropriate education, any decision by us of which State agency might be required to develop such a program would be premature and in the nature of an advisory opinion.

The Linders’ claims of standing are all based on the erroneous premise that if the Frankie Lemmon School closes its doors, it will be impossible for the State to provide their daughter with an appropriate education. We believe that Kathryn Linder’s right is to a free and appropriate education, and not necessarily to an education at the Frankie Lemmon School. The continuance of the Frankie Lemmon School is irrelevant to the continuance of Kathryn Linder’s appropriate education in light of the mandate of G.S. 115-367 (a) that the responsible governmental entity directly provide an appropriate program if no private agency offers such program. The unavailability of an appropriate education elsewhere in Wake County is a direct consequence of its availability through the Frankie Lemmon School. The Linders have advanced no basis for believing that the State would have failed to follow the mandate of G.S. 115-367 (a) if no private agency capable of providing the required services existed, and thus have failed to establish that their child was about to be denied continuance in a program appropriate to her special needs under G.S. 115-179.1 (a).

We note in closing that any review by us of the merits of the Linders’ claim is rendered moot by the admission of the parties at the oral arguments on this matter that the educational expenses of Kathryn Dianne Linder for the 1978-79 school year have since been paid at no cost to the parents.

The judgment is reversed and the case remanded to the Superior Court for dismissal.

Judges Hedrick and Whichard concur.