Alban v. BOARD OF EDUC. OF HARFORD CTY.

¹⁷¹ MOYLAN, Judge. In January of 1981, Tracie Ann Alban, the handicapped minor child of the appellants, Michael and Jacqueline Alban, was an eighth-grade student at Fallston High School in Fallston, Maryland. As required by Education Article, §§ 8-401 through 415 of the Maryland Annotated Code, providing for special educational programs for handicapped children, the Harford County School System developed an Individual Education Program (IEP) for Tracie. In preceding school years, IEPs had been developed for Tracie’s educational needs, and a review of Tracie’s progress was made in May, 1980.

As a result of that review, an IEP was developed for Tracie for the school year 1980-81. As part of that new program, Tracie was placed in the regular eighth-grade physical education class, with no limitations on her participation. On January 30, 1981, participating in her physical education class, Tracie fell while attempting to maneuver on an apparatus called a “Swedish Box” and sustained serious injuries. Appellants filed the instant action against the appellees, the Board of Education of Harford County and Ms. Juanita Purnell, Tracie’s physical education instructor.

They contended that the appellees were negligent in placing Tracie in a regular physical education class with no special safeguards to protect the child from injury. Although in their declaration the appellants averred facts which might go to support various forms or theories of negligence, the actual claim was that Tracie should not have been placed in a regular physical education class. They alleged not negligent conduct causing the accident but anterior negligent placement. The appellees filed a motion in limine to prohibit the appellants from introducing evidence concerning Tracie’s placement.

They based their motion on § 8-415 of the Education Article of the Maryland Annotated Code, which provides that after a placement decision for a handicapped child has been made by the appropriate county board of ¹⁷² education, the parent or guardian of the handicapped child may request a review of the placement decision by the local school board. Further review may be obtained from the state board and, if appropriate, the circuit court. The placement decision, however, must initially be challenged and reviewed at the administrative level. In granting the motion, Judge Cypert 0.

Whitfill of the Circuit Court for Harford County found that the statutorily prescribed IEP was designed to provide a mix of special education classes and normal ones. In the instant case, the IEP developed for Tracie contained both kinds of educational treatment, with the physical education subject being taught in a normal eighth-grade class. Once the IEP had been formulated and approved by the parents, absent a request for review of that decision, Tracie was to be treated as a normal participant in the eighth-grade class. Judge Whitfill ruled that the placement of Tracie could not be challenged initially in the circuit court and that any evidence concerning the placement itself was, therefore, properly subject to the motion in limine.

The appellants’ counsel proffered the testimony which would otherwise have been offered to the court. The appellees thereafter made a motion for directed verdict, which was granted; final judgment in favor of the appellees was entered on November 14, 1984. The appellants noted this timely appeal. As framed by the appellants, two questions are presented for review.

They are: 1) Did the circuit court err in granting defendants’ motion in limine, and ruling inadmissible all evidence relating to the evaluation and placement of a mentally retarded child by the Harford County Board of Education, where the Board’s negligent placement caused the child to suffer serious physical injuries? 2) Is the application of Maryland Annotated Code, Education Article, § 8-415, so as to prohibit litigation of a claim for money damages for physical injuries negli ¹⁷³ gently caused by the actions of a teacher and a local school board an unconstitutional denial of due process rights guaranteed under the United States and Maryland Constitutions? In Hunter v. Board of Education of Montgomery County, 292 Md. 481 , 439 A.2d 582 (1982), the