Hunger v. Leininger, s. 93-1777

Citation15 F.3d 664
Decision Date31 January 1994
Docket NumberNos. 93-1777,93-1881,s. 93-1777
Parties89 Ed. Law Rep. 421, 4 A.D.D. 1156 Gene HUNGER, as next friend of Kristi Hunger, and Kristi Hunger, a minor, Plaintiffs-Appellants, Cross-Appellees, v. Robert LEININGER, in his official capacity as Superintendent of the Illinois State Board of Education, Defendant-Appellee, and John Murphy, in his official capacity as Superintendent of Geneva Community Unit School District 304, Defendant-Appellee, Cross-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Deborah W. Owens (argued), Susan E. Wayne, Hinsdale, IL, for plaintiffs-appellants.

Susan Frederick Rhodes, Asst. Atty. Gen., Patricia J. Whitten, Fay Hartog-Rapp (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for defendants-appellees.

Before POSNER, Chief Judge, and LAY * and EASTERBROOK, Circuit Judges.

POSNER, Chief Judge.

The Individuals with Disabilities Education Act, 20 U.S.C. Secs. 1400 et seq., gives disabled children an enforceable right to a "free appropriate public education which emphasizes special education and related services designed to meet their unique needs." Sec. 1400(c). Kristi Hunger has a neurological disorder of unknown etiology and character that has retarded her development, enlarged her cranium, and caused her to have convulsions. When she was in the seventh grade the problem affected her inner ear, making it impossible for her to walk without assistance. Her parents withdrew her from school. For the next two years she received a meager amount of instruction (furnished by the school) at home. Her mental and psychological state worsened. She completed little of her assigned work, her comprehension and memory deteriorated, she gained a lot of unnecessary weight, and she became fearful and withdrawn. The school authorities thought she would be better off returning to school. They issued an Individual Educational Plan for her in June 1991 that so provided, adding that she should receive occupational and physical therapy but without indicating whether these services would be performed in her home or at school. Kristi's parents were skeptical about her ability to return to school, but on August 19, 1991, they agreed to a revised Individual Educational Plan under which their daughter would as under the June plan return to school but would do so in circumstances designed to ease her way back into the life of the school. The school would provide safety bars in the bathrooms to assist her, counseling by a social worker, and wheelchair assistance if she needed it, would make sure that someone would meet her when she arrived and that the school staff was cognizant of her special needs, and would permit her at first to attend school for only one period a day.

Kristi's reentry was a flop. She attended school on two separate days and almost everything that could go wrong did. Both days the bus that brought her to school arrived either before or after the people who were supposed to meet her were there to do so and as a result there was no one to help her when she arrived. On one of the days the bus broke down. It was a very hot day, the bus had no air-conditioning, and the bus's windows would not open. There were no bathroom safety bars in the school as promised; the classroom teacher would not let Kristi leave class early as she had been told she could; and the class was very large.

After the second day, Kristi refused to return to school, and her father told the school's social worker that he didn't have the physical strength to force Kristi into her wheelchair. Kristi never returned to school after that. Instead her father instituted a proceeding under the Act challenging the suitability of the Individual Educational Plan that the school district had devised for her, that is, the August plan. It is not argued that his having agreed to the plan bars his challenging it. The impartial hearing officer designated to consider the challenge pursuant to 20 U.S.C. Sec. 1415(b)(2) and 34 C.F.R. Sec. 300.507 upheld the plan but ordered the school district to provide to Kristi, in her home, counseling by a social worker and also, to the extent that space in the home permitted, occupational and physical therapy, in order to prepare Kristi better for another try at going back to school. Both sides appealed to a hearing officer appointed by the state board of education pursuant to 20 U.S.C. Sec. 1415(c), the parents arguing that the plan was no good and that Kristi should be sent to a school with special facilities for handicapped children, the school district objecting to the order to provide transitional services in the home on the ground that it was inconsistent with the hearing officer's determination that the plan was valid. The appellate hearing officer affirmed, reminding the school district that the order it was complaining about was for the most part conditional upon there being space in Kristi's home for the transitional services. In compliance with the administrative order, the school district provided in-home counseling services for a time, but apparently it never provided occupational or physical therapy for Kristi. Whether this was because of lack of space in the home we do not know, as we know neither the size and layout of the home nor the precise nature of the occupational and physical therapy that had been ordered.

The next step in the procedural scheme of the Act is a suit in federal district court. 20 U.S.C. Sec. 1415(e). Dissatisfied with the appellate hearing officer's determination that the August plan was valid, Kristi's father filed such a suit, asked for summary judgment, and also asked for a preliminary injunction against the defendants' terminating the transitional services that the hearing officers had ordered. The administrative order had not specified the duration of those services and the defendants had after nine months told Kristi's father that they were terminating "them"--actually "it," because only the counseling had been provided; occupational and physical therapy had never begun. The district judge not only refused the injunction (upon the recommendation of a magistrate judge to whom he had referred the request) and denied the plaintiff's motion for summary judgment, but also granted summary judgment for the defendants even though they hadn't asked for it. The judge did, however, award the plaintiffs several thousand dollars in what he called "interim" attorney's fees for the litigation at the administrative level. Kristi's father appeals from the denial of injunctive relief, from the grant of judgment on the merits to the school district, and from the judge's refusal to grant additional attorney's fees. The school district cross-appeals, contending that no attorney's fees should have been awarded.

The Act contains a "stay-put" provision whereby the initiation of proceedings to challenge an Individual Educational Plan bars the school district from altering the child's educational program. 20 U.S.C. Sec. 1415(e)(3). The parents argue that the school district violated this provision when it terminated the transitional services that the hearing officers had ordered it to provide. This alleged violation is the basis of the request for a preliminary injunction. The request was properly denied. The plan that was frozen in place when the proceedings were initiated was the August 19, 1991, plan to return Kristi to school, because that plan had gone into effect (with her parents' agreement) before the proceedings to challenge it were initiated. The plan contained no provision for transitional services in the home, as it contemplated Kristi's immediate return to school. Those services were ordered later, when she refused to return.

It is true that in February 1992, after the in-home transitional services were ordered by the first hearing officer, the school district issued an amended Individual Educational Plan that confirmed their provision. This part of the amended plan may have been conditional on the outcome of the school district's impending challenge to the order. Otherwise--if the school district had complied unconditionally with the part of the administrative order that it was challenging on appeal--its appeal would have been moot. If an order is not stayed, the party against whom it is directed must comply with it, pending his appellate challenge to it; perhaps that is the only significance of the amendment: as the statement of an interim duty. Against this it can be argued that the "stay-put" provision prevented the school district from complying with any order that altered Kristi's educational treatment until the proceedings had run their course, unless the plan that prescribed that treatment was altered; but the parents can consent to an alteration. At all events, after the order was affirmed by the appellate hearing officer, the school district dropped its challenge, so the condition (if there was one) dropped out and the amended plan became unconditional.

A departure from an amended as from an original plan could, no doubt, violate the stay-put provision; the defendants so concede. The plaintiffs failed, however, to argue to the magistrate judge to whom the district judge had referred the motion for a preliminary injunction that the defendants had departed from the August 1991 plan as amended in February 1992. Instead and confusingly they argued that the February 1992 plan was an amendment to the June 1991 plan--which the August plan, however, had superseded.

Even if, confusing as it was, this argument was close enough to an argument that the defendants were violating the August 1991 plan as amended to avoid a conclusion that the argument was waived, we note that the plaintiffs failed to submit timely objections to the magistrate judge's recommended decision. The statute allows ten days for such submissions. 28 U.S.C. Sec. 636(b)(1). The plaintiffs took three weeks. Thomas v. Arn, ...

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