Monahan v. State of Neb.

Decision Date01 April 1981
Docket NumberNos. 80-1436,80-1469,s. 80-1436
Citation645 F.2d 592
PartiesJames H. MONAHAN, as next friend of Daniel J. Monahan; George Rose, as next friend of Marla Rose, Appellees, v. STATE OF NEBRASKA, Charles Thone, Governor of The State of Nebraska, Board of Education, School District # 1, Douglas County, Nebraska, Owen Knutzen, Individually, and as Superintendent of School District # 1, Douglas County, Nebraska, Dale Samuelsen, Individually, and as Assistant Superintendent in Charge of Special Education, of School District # 1, Douglas County, Nebraska, Anne Campbell, Commissioner of Education for the State of Nebraska, State Board of Education, Walter M. Thompson, Individually, and as a Member of the State Board of Education, Margaret Lockwood, Individually, and as a Member of the State Board of Education, Frank E. Landis, Individually, and as a Member of the State Board of Education, Don M. Lienemann, Individually, and as a Member of the State Board of Education, Dorothy Creigh, Individually, and as a Member of the State Board of Education, Arlene E. Hart, Individually, and as a Member of the State Board of Education, William C. Ramsey, Individually, and as a Member of the State Board of Education, Dorothy Beaver, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska, June Bostwick, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska, Walter Calinger, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska, Pat Geringer, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska, Leo Hoffman, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska, Gaynelle Goodrich, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska, Ruth Thomas, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska, Frank Bogard
CourtU.S. Court of Appeals — Eighth Circuit

Paul L. Douglas, Atty. Gen., Harold Mosher, Asst. Atty. Gen., State of Neb., Lincoln, Neb., John P. Heil, Baird, Holm, McEachen, Pedersen, Hamann & Haggart, Omaha, Neb., for appellants.

Quintin S. Hughes, Bellevue, Neb., for appellee Rose.

James H. Monahan, pro se.

Mino St. Lucas, Omaha, Neb., for appellees.

Before STEPHENSON and HENLEY, Circuit Judges, and HUNTER, * District Judge.

HENLEY, Circuit Judge.

The State of Nebraska, the Omaha School District, and others (collectively defendants) appeal from an order of the district court 1 granting a preliminary injunction in favor of plaintiff Marla Rose. Plaintiff Daniel Monahan also cross-appeals from the court's denial of his request for a preliminary injunction.

The primary issue 2 raised by plaintiffs in the district court was whether Neb.Rev.Stat. § 43-662 (1978) (the State Act) is consistent with provisions of the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401-1420 (the Federal Act).

20 U.S.C. § 1415 outlines procedural safeguards which state and local agencies receiving federal funds must observe to ensure that a handicapped child's right to a free appropriate public education is protected. In order to conform with these procedural requirements, Nebraska amended its law regarding hearings on the placement of handicapped students. Neb.Rev.Stat. §§ 43-661 to 43-668.

The plaintiffs contend that Nebraska's provision for review of the hearing officer's decision by the State Commissioner of Education 3 is in conflict with the Federal Act's requirement that the decision made in the hearing "shall be final." 4 Plaintiffs argue that the Commissioner's review power amounts to unlimited discretion to reject the decision of the hearing officer and that such discretion has deprived or would deprive them of the right to a due process hearing.

Marla Rose.

Marla Rose is deaf and has a related speech impairment. Prior to the 1978-79 school year, she attended classes at Beveridge Junior High School in the Omaha School District (Omaha). In June, 1978 the School District notified Marla's parents that it proposed to change Marla's placement from Beveridge to the Nebraska School for the Deaf.

On August 14, 1978 George Rose filed a petition with the Nebraska Department of Education seeking a due process hearing regarding the proposed change in his daughter's placement. See Neb.Rev.Stat. §§ 43-661 to 43-668. The case was assigned to an independent hearing officer, and a lengthy administrative hearing was held in March, 1979.

The hearing officer made his written report to the Nebraska Commissioner of Education on May 16, 1979. The report contained a summary of the evidence, findings of fact, and the officer's decision. The officer found that Marla needed the training offered by the School for the Deaf, and he concluded that Omaha's recommendation that she be placed there was appropriate. The officer recommended that the appeal by Marla's parents be dismissed.

On June 1, 1979 the Commissioner of Education entered an order acknowledging receipt of the hearing officer's report and the hearing exhibits, adopting the report verbatim as the basis for the order, and dismissing the Rose appeal. 5

Mr. Rose filed an action challenging the Commissioner's order. 6 Pending resolution of the lawsuit, the parties agreed that Marla would attend the Monroe Junior High School in the Omaha School District. In September, 1979, however, after only two weeks of school, Marla was withdrawn from Monroe by her parents. They placed her in an unaccredited private school which had no special programs for the deaf.

Daniel Monahan.

Daniel Monahan has multiple handicaps: muscular dystrophy, mental retardation and a seizure disorder. Through the 1978-79 school year Daniel attended the Madonna School, a private elementary school for mentally retarded children. Under contract with Madonna, the Omaha School District paid for Daniel's education.

Before the start of the 1979-80 school year Daniel became confined to a wheelchair. Madonna was not equipped to accommodate wheelchair students so Daniel's father sought an alternative school. He obtained permission from the Millard School District to enroll Daniel there. Omaha school officials, however, believed that a comparable program was offered at their Hartman School and they therefore refused to fund Daniel's schooling at Millard. Nevertheless, Mr. Monahan enrolled his son at Millard at his own expense.

Mr. Monahan was aware of his right to obtain a due process hearing before an independent hearing officer to review Omaha's decision. He did not seek such a hearing, however. In January,...

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