White ex rel. White v. Ascension Parish School Bd.

• Decision Date: 13 August 2003
• Docket Number: No. 02-30845.,02-30845.
• Citation: 343 F.3d 373
• Parties: Doug WHITE, on behalf of Dylan Joseph WHITE; Gail White, Plaintiffs-Appellees, v. ASCENSION PARISH SCHOOL BOARD; Robert Clouatre; Susan Vaughn, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

343 F.3d 373

Doug WHITE, on behalf of Dylan Joseph WHITE; Gail White, Plaintiffs-Appellees, v. ASCENSION PARISH SCHOOL BOARD; Robert Clouatre; Susan Vaughn, Defendants-Appellants.

No. 02-30845.

United States Court of Appeals, Fifth Circuit.

August 13, 2003.

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Paul Leonard Veazey, Jr. (argued), Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, LA, for Plaintiffs-Appellees.

Jeffery Paul Diez (argued), Gordon Crawford, Gonzales, LA, for Defendants-Appellants.

Robert L. Hammonds, Hammonds & Sills, Baton Rouge, LA, for Louisiana Sch. Boards Ass'n, Amicus Curiae.

Appeal from the United States District Court for the Middle District of Louisiana.

Before JOLLY, WIENER, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For this interlocutory appeal from injunctive and other relief awarded parents of a child, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., primarily at issue is whether, consistent with the IDEA, a school system has the right to select a centralized location for providing services to a hearing-impaired child, notwithstanding the child's parents' request that services be provided instead at his neighborhood school (site-selection issue). The summary judgment and concomitant order granting the injunction and other relief are VACATED; judgment is RENDERED for Defendants on the site-selection issue; and this matter is REMANDED.

I.

Dylan White (Dylan), a hearing-impaired student, identified and qualified under the IDEA as disabled, attends school in Ascension Parish, Louisiana. Under the IDEA, he is qualified for special education and related services by Ascension Parish Schools (Ascension). Dylan uses a cochlear implant in one ear and a hearing aid in the other to receive sound input. He does not require communication assistance outside of the classroom environment, but uses a person — a cued speech transliterator — to assist him in processing spoken information in class. (A cued speech transliterator does not translate from spoken language to a sign language, but supplements lip-reading and residual or assisted hearing by hand and finger motions to distinguish between elements of speech that would otherwise appear identical.)

Ascension provides a system through which certain services are provided at centralized school sites. For hearing-impaired students who need cued speech transliterators, Ascension provides those services at three centralized schools (a primary school, a middle school, and a high school). These centralized schools are regular education campuses, and hearing-impaired students are "mainstreamed" (educated in regular classrooms). (Deaf students who use American Sign Language attend neighborhood, rather than centralized, schools.)

Dylan attends one of the centralized schools, Gonzales Primary, and has done so since he began attending Ascension schools. It is undisputed that Dylan has achieved substantial academic benefit and success at the centralized school.

In May 2000, when Dylan was in the second grade, the annual, IDEA-required conference for his individualized education program (IEP) was held. Dylan's parents requested his transfer from the centralized school to his neighborhood school, Dutchtown Primary, along with his transliterator (provided by Ascension). Gonzales Primary, the centralized school, is approximately five miles further from Dylan's home than the neighborhood school. Dylan's parents felt that transferring him to his neighborhood school would enhance his social development, including allowing him to attend school with neighborhood children.

Lengthy discussions were held at the IEP conference between the Whites and other IEP committee members regarding the school site selection. Ascension refused the transfer request pursuant to its policy of centralizing the cued speech program and because it believed Dylan was being provided an appropriate education at the centralized school.

The Whites requested an administrative due process hearing. After an evidentiary hearing, including live testimony, the hearing officer addressed whether Ascension "can determine placement for a hearing impaired child excluding parental input" and ruled in favor of Ascension. The Whites appealed the decision to a three-judge administrative panel, which affirmed.

The Whites then filed this action, seeking review of the administrative decision, as well as asserting violations of the IDEA, 20 U.S.C. § 1400 et seq.; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; the Rehabilitation Act (Section 504), 29 U.S.C. § 794; 42 U.S.C. § 1983; and various state laws.

The parties stipulated that the dispute was essentially a legal issue and filed cross motions for summary judgment. Under the stipulation, the only issue was whether the School Board has the right to select the school that a student shall attend.

In March 2002, after oral argument, the district court granted summary judgment in favor of the Whites; it subsequently entered a declaratory judgment and injunction ordering, inter alia, that Dylan be assigned to his neighborhood school, along with his transliterator. Other claims remain pending in district court.

II.

For this 28 U.S.C. § 1292(a)(1) interlocutory appeal from the injunctive relief, Ascension insists it fully complied with the IDEA. The Whites respond that the Act was violated because: they were not allowed input into the site determination; and, in any event, the IDEA contemplates neighborhood school site selection. They also maintain that Dylan's placement at the centralized school violates state law.

As noted, the injunction was rendered pursuant to a summary judgment. Such judgments are reviewed de novo. E.g., Amburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805, 809 (5th Cir. 1991). A summary judgment is proper when, viewing the evidence in the light most favorable to the non-movant, "`there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law'". Id. (quoting FED. R. CIV. P. 56(c)).

Our role under the IDEA is purposefully limited.

Congress left the choice of educational policies and methods where it properly belongs — in the hands of state and local school officials. Our task is not to second guess state and local policy decisions; rather it is the narrow one of determining whether state and local school officials have complied with the Act.

Flour Bluff Indep. Sch. Dist. v. Katherine M., 91 F.3d 689, 693 (5th Cir.1996) (quotation omitted), cert. denied, 519 U.S. 1111, 117 S.Ct. 948, 136 L.Ed.2d 836 (1997). Moreover, the IDEA creates a presumption in favor of a school system's educational plan, placing the burden of proof on the party challenging it. E.g., Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 132 (5th Cir.1993).

The Whites frame the issue as whether, under the IDEA and state law, the school board may, at its sole discretion, reject placement in the school the child would attend if not disabled and the school closest to the student's home (the neighborhood school) without parental involvement in that decision and where the IEP can be feasibly and appropriately implemented there. However, the school district did not stipulate (at least in district court) that no parental input was allowed on the issue of school selection. (In the administrative hearing, however, the issue was framed as: "Whether [Ascension] can determine placement for a hearing impaired child excluding parental input". (Emphasis added.)) Nor does such a stipulation fit the evidence: Dylan's mother testified before the hearing officer that, "[d]uring the IEP meeting[,] we discussed at length [Dylan's] going to Dutch Town [the neighborhood school] and why this had to continue for him to be at Gonzales Primary [the centralized school]".

The Whites, in essence, ask us to do one of two things: (1) render an advisory opinion based on a situation that is not before us (parents not given opportunity to offer any input concerning school selection); or (2) as the district court apparently did, equate giving input with dictating the outcome. Of course, we cannot render advisory opinions. Moreover, as discussed infra, we reject the assertion that parents are denied input into a decision if their position is not adopted.

Although Ascension and the Whites dispute whether there was "input", there is no genuine issue of material fact. Indeed, the parties do not dispute any facts, but instead dispute what constitutes the requisite parental input under the IDEA. Thus, based upon the input described by Mrs. White (discussions at the IEP meeting), we will address the question that is before us in this case: whether the school district violated the IDEA in assigning Dylan to a centralized school, notwithstanding his parents' request that he be assigned to his neighborhood school.

A.

Ascension first asserts that the IDEA was not violated. The IDEA governs the rights and responsibilities of students who are qualified as disabled under the provisions of the Act. It requires that States provide disabled children with a "free appropriate public education" (FAPE). See 20 U.S.C. § 1412(a)(1). The cornerstone of the IDEA is the IEP, which is produced by a team that includes: the child's parents or guardian; a qualified representative of the local education agency who is knowledgeable about, inter alia, the resources of the school district; a regular education teacher of the child; a special education teacher of the child; other individuals at the discretion of the agency or the parent; and, where appropriate, the child. 20 U.S.C. § 1414(d)(1)(B). The written IEP specifies the program of benefits to which the student is entitled in order to receive a FAPE. Once a child's educational program is determined, the school must attempt to place the child in the "least restrictive environment" (LRE) (e.g., as best it...