67 F.3d 830 (9th Cir. 1995), 94-15324, Poolaw v. Bishop

Docket Nº:94-15324.
Citation:67 F.3d 830
Party Name:95 Cal. Daily Op. Serv. 7771, 95 Daily Journal D.A.R. 13,329 Lionel POOLAW, and Daphne Poolaw, as next friends of Lionel B. Poolaw III, Minor Child, Plaintiff-Appellant, v. Diane BISHOP, Superintendent of Public Instruction; Arizona Department of Education, Parker United School District No. 27; and Parker Unified School District, Defendants-Appelle
Case Date:October 04, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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67 F.3d 830 (9th Cir. 1995)

95 Cal. Daily Op. Serv. 7771,

95 Daily Journal D.A.R. 13,329

Lionel POOLAW, and Daphne Poolaw, as next friends of Lionel

B. Poolaw III, Minor Child, Plaintiff-Appellant,

v.

Diane BISHOP, Superintendent of Public Instruction; Arizona

Department of Education, Parker United School

District No. 27; and Parker Unified

School District, Defendants-Appellees.

No. 94-15324.

United States Court of Appeals, Ninth Circuit

October 4, 1995

Argued and Submitted Feb. 15, 1995.

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[Copyrighted Material Omitted]

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Randolph H. Barnhouse, Native American Protection and Advocacy Project, Window Rock, Arizona, for plaintiff-appellant.

Eva K. Bacal, Assistant Attorney General, Phoenix, Arizona, and Richard M. Yetwin, DeConcini, McDonald, Brammer, Yetwin & Lacy, Tucson, Arizona, for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before HUG, FARRIS, and POOLE, Circuit Judges.

OPINION

HUG, Circuit Judge:

The issue presented in this case is whether the district court erred in finding that Lionel B. Poolaw III, a profoundly deaf Native American child, could not receive an appropriate education in a mainstream school environment. The district court granted summary judgment in favor of the Parker Unified School District and the Arizona Superintendent of Public Instruction in an action brought by Lionel's parents under the Individuals with Disabilities Education Act ("IDEA") challenging the Superintendent's decision to place Lionel in a school for the deaf located 280 miles from his home. We affirm.

BACKGROUND

Lionel Poolaw is a thirteen-year-old Native American boy who is profoundly deaf. In 1985, when Lionel was four years old, his parents sought to enroll him in school. At that time Lionel resided on the Colorado River Indian Reservation in Arizona, part of the Parker Unified School District ("Parker"). He was enrolled in the Head Start preschool program in Parker. At Parker's request, Heidi Gray, a certified teacher of the hearing impaired, evaluated Lionel. Based on her review of his academic record, her observation of Lionel, and interviews with his parents and his teacher, she found that Lionel's receptive and expressive language skills were delayed by about two years, that he was nonverbal and had a very limited sign vocabulary, and that his language-based areas of cognitive and social skills also were delayed. She recommended intensive language instruction, speech therapy and sign language instruction for the family. Peggy Kile, the Parent Outreach Program Coordinator for the Arizona School for the Deaf and Blind ("ASDB"), recommended residential placement at ASDB because Lionel's profound hearing loss would probably preclude effective functioning in a public school classroom. Lionel's parents refused to place Lionel at ASDB.

Shortly thereafter, the family moved to Baton Rouge, Louisiana, where Lionel was placed in a mainstream education environment. Neither party produced records documenting Lionel's education in Louisiana.

During this time, Lionel's parents became ordained ministers. In pursuit of their calling, the Poolaws moved from Baton Rouge to establish a ministry in Fredonia, Arizona. Mrs. Poolaw testified that Lionel was the first hearing impaired child in the school district in Fredonia, that she was hired by the school to serve as his interpreter, and that she provided the only language training Lionel received in Fredonia. The Parker School District received some records from Fredonia Elementary School. Loretta Nelson, a special education teacher, wrote that Lionel attended only the first grade at the school and that he spent time in the regular classroom and in a special education class. The Individualized Education Program ("IEP") developed for Lionel in Fredonia noted that he was expressing only one to three words at a time and had very little spontaneous language. 1

Lionel attended first grade in Fredonia, but in 1988, when Lionel was eight years old, the family moved to Plummer, Idaho, to start another church. The Poolaws lived in Plummer for four years and Lionel attended Plummer Elementary School from second through fifth grades.

The Plummer Elementary School District in Idaho developed and implemented an IEP for Lionel during his first year in that district. The IEP recommended partially mainstreaming Lionel while also providing supplemental

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services, including a speech therapist twice a week, a full-time interpreter, and weekly sessions with a teacher for the hearing impaired. Lionel's IEPs from 1988-90 showed Lionel consistently lagging behind his peers in his language and communicative skills.

In 1991, when Lionel was ten years old, Plummer conducted its 3-year review of Lionel's IEP. The evaluation found that Lionel's reading skills were only at the first grade level and that his math skills were at the second grade level. The evaluation further found that Lionel's language and communication skills were "nearly nonexistent without help." Lionel's 1991 IEP recommended additional supplemental services including one-on-one and small group instruction, individual resource support, a full-time interpreter and approximately 18 hours per week in the regular classroom. Unfortunately, the 1991 IEP did not significantly improve Lionel's performance and, in the spring of 1992, Plummer revised its IEP and recommended placing Lionel in the Idaho State School for the Deaf and Blind for the following school year. Lionel's parents initially agreed to place him at the special school, but never actually signed the IEP.

Prior to the end of the 1991-92 school year, Lionel's parents moved from Idaho back to Arizona. The Poolaws sought to enroll Lionel at Wallace Elementary School in the Parker School District for the 1992-93 school year. The Poolaws indicated to Arthur Sirianni, Parker's Special Education Coordinator, that they would prefer Lionel to be mainstreamed at Parker. Sirianni initially began searching for a certified teacher of the hearing impaired to assist Lionel in the mainstream environment. After reviewing Lionel's IEP and reports from Idaho, however, Sirianni determined that mainstreaming Lionel would not result in any educational benefit to him. As part of the two-person IEP team in the Parker School District, Sirianni proposed that Lionel be sent to the Arizona School for the Deaf and...

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