Poolaw v. Bishop
| Decision Date | 04 October 1995 |
| Docket Number | No. 94-15324,No. 27,27,94-15324 |
| Parties | 104 Ed. Law Rep. 48, 12 A.D.D. 689, 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; and Parker Unified School District, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
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.
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 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 Blind. This proposal was presented to Lionel's parents at an IEP meeting held on July 23, 1992. The Poolaws refused to have Lionel placed at the ASDB. The School District then initiated an impartial hearing pursuant to the IDEA and 34 C.F.R. Sec. 300.506. The hearing officer concluded that Lionel should be placed at the ASDB. The Poolaws appealed to the Arizona Department of Education pursuant to 20 U.S.C. Sec. 1415(b)(2). The appellate hearing officer upheld the hearing officer's decision. The Poolaws then filed a complaint in federal district court challenging these decisions.
The Parker School District moved for summary judgment on June 2, 1993. The district court held a 2-day evidentiary hearing pursuant to 20 U.S.C. Sec. 1415(e)(2) on July 27 and 28, 1993. The court also convened at the ASDB on August 27, 1993. On September 17, 1993, it held further proceedings at Marcos de Niza High School in Tempe, Arizona, and at the Phoenix Day School for the Deaf, two other schools considered as possible placements for Lionel. On January 7, 1994, the district court entered its thorough and carefully reasoned 44-page findings of fact, conclusions of law and order. The district court concluded that the appropriate placement for Lionel was the ASDB and affirmed the decision of the hearing officer. The district court further ordered that "as previously stipulated, Parker will arrange to provide the Poolaw family with a monthly travel allowance to facilitate visits to ASDB." The Poolaws then filed the present appeal. The appeal was timely and we have jurisdiction under 28 U.S.C. Sec. 1291.
The appropriateness of a special education placement under the IDEA is reviewed de novo. W.G. v. Board of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1483 (9th Cir.1992). A district court's factual determination that a student is incapable of deriving educational benefit unless placed in a residential program, however, is reviewed for clear error. Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398, 1402 (9th Cir.), cert. denied, 114 S.Ct. 2679, 129 L.Ed.2d 813 (1994) (citing Ash v. Lake Oswego Sch. Dist., 980 F.2d 585, 588 (9th Cir.1992)). The Poolaws bear the burden of proving that the state educational agency did not comply with the IDEA. See Clyde K. v. Puyallup Sch. Dist., No. 3, 35 F.3d 1396, 1398-99 (9th Cir.1994) ().
The IDEA, 20 U.S.C. Secs. 1400 et seq., requires states receiving federal assistance for the education of disabled children to establish "procedures to assure that, to the maximum extent appropriate, handicapped children ... are educated with children who are not handicapped." 20 U.S.C. Sec. 1412(5)(B). The language of the IDEA, therefore, clearly indicates a strong preference for "mainstreaming," i.e., educating handicapped children alongside non-handicapped children in a regular educational environment. In carrying out this directive, the state educational agency must develop and implement an IEP aimed at providing each disabled child with a "free appropriate public education," 20 U.S.C. Sec. 1412(1), in the least restrictive environment. 34 C.F.R. Sec. 300.550 et seq. Likewise, the state educational agency must ensure that private schools and facilities develop and implement IEPs for disabled children who are placed in or referred to private schools or facilities by public agencies. Id. at Sec. 300.341(b). These plans must be "designed to meet the unique needs of the handicapped child,...
To continue reading
Request your trial
-
M.L. v. Federal Way School Dist.
...ALJ and the district court that the IEP meets the substantive requirements of the IDEA are clearly erroneous. B. Citing Poolaw v. Bishop, 67 F.3d 830, 833 (9th Cir.1995), FWSD contends that "[a] district court's determination that a student is incapable of deriving educational benefits unle......
-
Ketherine G. ex rel. Cynthia G. v. Kentfield Cch.
...compliance with its obligations under the IDEA are "procedural," falling under the first step of the Rowley inquiry. In Poolaw v. Bishop, 67 F.3d 830 (9th Cir.1995), the Ninth Circuit applied the two-step analytical framework of Rowley to determine whether the defendant school district had ......
-
ML v. Federal Way School Dist.
...ALJ and the district court that the IEP meets the substantive requirements of the IDEA are clearly erroneous. B. Citing Poolaw v. Bishop, 67 F.3d 830, 833 (9th Cir.1995), FWSD contends that "a district court's determination that a student is incapable of deriving educational benefits unless......
-
J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist.
...i.e. educating handicapped children alongside non-handicapped children in a regular educational environment." Poolaw v. Bishop, 67 F.3d 830, 834 (9th Cir.1995) (citing Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034). "Disabled children, to the maximum extent appropriate, should be educated wi......
-
Individuals With Disabilities Education Act - the Right 'idea' for All Childrens' Education
...environment is appropriate see Clyde K. ex rel. Ryan K. v. Puyallup Sch. Dist., 35 F.3d 1396 (9th Cir. 1994); Poolaw v. Bishop, 67 F.3d 830 (9th Cir. 1995). Hudson by Hudson v. Bloomfield Hills Pub. Sch., 910 F. Supp. 1291 (E.D. Mich. 1995). For cases involving younger students agreeing les......
-
The disability integration presumption: thirty years later.
...high school other than the one closer to his home so that he could have access to "cued speech" services). (94) But see Poolaw v. Bishop, 67 F.3d 830, 837-38 (9th Cir. 1995) (upholding placement of a child with auditory impairment in a school for the deaf 280 miles from his home where the e......