Fowler v. Unified School Dist. No. 259, s. 95-3373
| Citation | 107 F.3d 797 |
| Decision Date | 21 February 1997 |
| Docket Number | Nos. 95-3373,95-3400,s. 95-3373 |
| Parties | , 116 Ed. Law Rep. 547, 20 A.D.D. 736, 97 CJ C.A.R. 270 Jay FOWLER and Barbara Fowler, parents and next friend of Michael Fowler, Plaintiffs-Appellees, v. UNIFIED SCHOOL DISTRICT NO. 259, Sedgwick County, Kansas, Defendant-Appellant. United States of America; National School Boards Association; Kansas Advocacy & Protective Services, Inc.; Most Reverend James P. Keleher, Archdiocese of Kansas City, Kansas; Most Reverend Stanley G. Schlarman, Diocese of Dodge City, Kansas; Most Reverend George K. Fitzsimons, Diocese of Salina, Kansas; Most Reverend Eugene J. Gerber, Diocese of Wichita, Kansas; National Association of the Deaf; National Cued Speech Association; The American Society for Deaf Children; and Kansas Association of the Deaf, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Roger M. Theis (Thomas R. Powell with him on the briefs), Hinkle, Eberhart & Elkouri, L.L.C., Wichita, KS, for Defendant--Appellant.
Mary Kathleen Babcock (Timothy B. Mustaine and Martha Aaron Ross with her on the brief), Foulston & Siefkin, L.L.P., Wichita, KS, for Plaintiffs--Appellees.
William Kanter and Frank A. Rosenfeld, Civil Division, Department of Justice, Washington, DC, filed an amicus curiae brief for the United States of America.
Gwendolyn H. Gregory, Deputy General Counsel, August W. Steinhilber, General Counsel, and Thomas A. Shannon, Executive Director, National School Boards Association, Alexandria, VA, filed an amicus curiae brief for the National School Boards Association.
Sherry C. Diel, Kansas Advocacy & Protective Services, Inc., Topeka, KS, filed an amicus curiae brief for the Kansas Advocacy & Protective Services, Inc.
J. Francis Hesse, Redmond & Nazar, L.L.P., Wichita, KS, filed an amicus curiae brief for Most Reverend James P. Keleher, Archdiocese of Kansas City, Kansas; Most Reverend Stanley G. Schlarman, Diocese of Dodge City, Kansas; Most Reverend George K. Fitzsimons, Diocese of Salina, Kansas; Most Reverend Eugene J. Gerber, Diocese of Wichita, Kansas.
Douglas R. Cyrex, Gonzales, LA, Marc P. Charmatz and Sarah S. Greer, National Association of the Deaf Law Center, Silver Spring, MD, filed an amicus curiae brief for the National Association of the Deaf, National Cued Speech Association, The American Society for Deaf Children, and Kansas Association of the Deaf.
Before ANDERSON, LUCERO, and MURPHY, Circuit Judges.
This case involves the question of whether a public school district, defendant Unified School District No. 259 (the "District"), in Sedgwick County, Kansas, must pay for full-time sign language interpretive services at a private school, for the benefit of a profoundly deaf child whose parents have voluntarily removed him from a public school in the District and placed him in the private school. The plaintiffs, Michael Fowler and his parents and next friends, Jay and Barbara Fowler, seek such services under the Individuals with Disabilities Education Act and Kansas law. They seek them on-site at the private school because those services only benefit Michael if they accompany him throughout his educational day. The district court granted injunctive relief, ordering the District to provide those services without regard to cost. We partially reverse and remand, holding that, under the applicable statutes and regulations, the District must pay for those required on-site services an amount up to, but not more than, the average cost to the District to provide interpretive services to hearing-impaired students in the public schools. We remand for further proceedings consistent with this opinion.
The district court awarded attorneys' fees and expenses to the Fowlers as prevailing parties. We affirm the award of attorneys' fees.
Michael was born on August 5, 1985, and contracted meningitis at the age of six months, which left him profoundly, and prelingually, deaf. Because he requires specially designed instruction for this condition, he qualifies as a child with disabilities under Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1420 ("IDEA"). See § 1401(a)(1)(A)(i), (ii) (1990 & Supp.1996); 34 C.F.R. § 300.7(a)(1) (1996). He attended Caldwell Elementary School, a public school in the District, from kindergarten through the third grade. Of the 400 students at Caldwell, approximately 30 had severe hearing impairments and required interpretive services. These 30 students were all the severely hearing impaired students in the District, whom the District elected to cluster at Caldwell Elementary. The District had funding for nine full-time interpreters, but only had eight such interpreters during the 1994-95 school year, because of the resignation of one interpreter and the difficulty in finding qualified interpreters in Signed Exact English II ("SEE II"). 1 At Caldwell, Michael received sign language interpretive services from interpreters trained in speech/language services, audiological services and assistive services. These services were provided to Michael pursuant to his individualized education program ("IEP"), required by the IDEA. 2
In November 1993, the District tested Michael and found him to be "of very superior intellectual capacity," and he was eventually designated as gifted. Fowler v. Unified Sch. Dist. No. 259, 900 F.Supp. 1540, 1541 (D.Kan.1995). Unhappy with whatever the District could offer to address Michael's giftedness at Caldwell Elementary, the Fowlers requested a review of Michael's IEP and notified the District that they objected to his placement and educational program. In accordance with the IDEA, 20 U.S.C. § 1415(b)(1), (2), and Kansas law, Kan.Stat.Ann. § 72-972, on May 23, 1994, the Fowlers requested a Level I due process hearing in order to challenge the appropriateness of Michael's IEP.
The Fowlers then enrolled Michael in Wichita Collegiate, a private nonsectarian school where they believed his intellectual needs would be better met. They requested that the District provide to Michael interpretive services on site at Wichita Collegiate. The District denied the request. 3
The due process hearing took place on August 4, 1994. The hearing officer issued his decision on August 25, and held that the District was required under the IDEA and Kan.Stat.Ann. § 72-5393 to provide interpretive services for Michael at Wichita Collegiate. 4 The District appealed that decision to the State Board of Education. A state Review Officer held a hearing and, on November 4, reversed the hearing officer's decision, concluding that the District was not compelled to provide interpretive services to Michael at Wichita Collegiate. The Fowlers appealed that decision in federal district court, pursuant to 20 U.S.C. § 1415(e)(4)(A).
The district court, after finding that "the District cannot deny interpretive services to Michael at Collegiate unless it can prove there is no reasonable way to provide those services," held that the Fowlers had "shown The District argues that: (1) the IDEA and its implementing regulations do not mandate provision of individualized special education services for students whose parents have voluntarily placed them in private schools; (2) the Department of Education has consistently interpreted the Act and regulations to require no such individualized services, and that interpretation is entitled to some deference; and (3) Kansas law similarly imposes no such obligation where the individualized services cannot be "practically provided" or if they result in services not being provided on an "equal basis." The District also argues the district court erroneously placed upon it the burden of proving that there was "no reasonable way to provide those services" to Michael. Fowler, 900 F.Supp. at 1546. The District further challenges the award of attorneys' fees and costs.
by a preponderance of the evidence that the District must provide interpretive services to Michael at Collegiate...." Fowler, 900 F.Supp. at 1546. It therefore granted the Fowlers' motion for injunctive relief and ordered the District to provide interpretive services to Michael at Wichita Collegiate. It also awarded the Fowlers $15,550.43 in reimbursement for the cost of interpretive services for the 1994-95 school year and "an additional amount for the cost of services to date in the 1995-96 school year." Id. The court subsequently granted the Fowlers' application for attorneys' fees and expenses. The District filed a motion to stay the injunction and the reimbursement award. The court denied the stay of the injunction, but did grant a stay of the money judgment. The District appeals both orders
Amicus briefs have been filed by: (1) the National School Boards Association, in support of the District; (2) Kansas Advocacy & Protective Services, Inc., in support of the Fowlers; (3) the Most Reverend James P. Keleher, Archdiocese of Kansas City, Kansas, the Most Reverend Stanley G. Schlerman, Diocese of Dodge City, Kansas, the Most Reverend George K. Fitzsimons, Diocese of Salina, Kansas, and the Most Reverend Eugene J. Gerber, Diocese of Wichita, Kansas, in support of the Fowlers; (4) the National Association of the Deaf, the National Cued Speech Association, The American Society for Deaf Children, and the Kansas Association of the Deaf, in support of the Fowlers; and (5) the United States, in support of the District.
The IDEA provides federal grants to states, which states then use as part of the funds they give to local educational agencies, to assist such agencies in educating students with disabilities. A state electing to participate in this system of IDEA grants must establish and have "in effect a policy that assures all children with disabilities the right to a free appropriate public education." 20 U.S.C. § 1412(1). To accomplish this objective, local educational agencies...
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