918 F.2d 618 (6th Cir. 1990), 89-3546, Thomas v. Cincinnati Bd. of Educ.

Docket Nº:89-3546, 89-3597.
Citation:918 F.2d 618
Party Name:Emily THOMAS, Plaintiff-Appellee, Cross-Appellant, v. CINCINNATI BOARD OF EDUCATION, Defendant-Appellant, Cross-Appellee.
Case Date:November 06, 1990
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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918 F.2d 618 (6th Cir. 1990)

Emily THOMAS, Plaintiff-Appellee, Cross-Appellant,

v.

CINCINNATI BOARD OF EDUCATION, Defendant-Appellant, Cross-Appellee.

Nos. 89-3546, 89-3597.

United States Court of Appeals, Sixth Circuit

November 6, 1990

Argued March 3, 1990.

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Michael J. Mooney (argued), Cincinnati, Ohio, for plaintiff-appellee, cross-appellant.

Joseph J. Dehner (argued), Phyllis E. Brown, Frost & Jacobs, Cincinnati, Ohio, for defendant-appellant, cross-appellee.

Before KENNEDY and NORRIS, Circuit Judges; and GADOLA, District Judge. [*]

ALAN E. NORRIS, Circuit Judge.

Defendant Cincinnati Board of Education ("CBE"), and plaintiff, Emily Thomas through her mother Roxanne Thomas, appeal from the judgment of the district court in this case arising under the Education for All Handicapped Children Act. The CBE appeals the district court's order granting Thomas' motion for summary judgment and challenges the court's conclusion (1) that it developed an individualized educational program ("IEP") in violation of the Act's procedural safeguards, (2) that Ohio law reserves home instruction for those children who are unable to attend or to be transported to school, and (3) that school-based education is the only appropriate educational placement for Emily. Although Mrs. Thomas urges this court to affirm the district court's decision, she nevertheless cross-appeals, arguing that the court erred by failing to award compensatory educational services to make up for the period in which the CBE allegedly deprived Emily of the free appropriate education to which she is statutorily entitled. For the reasons set forth below, we reverse the district court and remand with instructions to enter summary judgment in favor of the CBE.

I.

The Education for All Handicapped Children Act ("EAHCA" or "the Act"), 20 U.S.C. Sec. 1401 et seq., was passed in 1975 in response to a congressional determination that handicapped children were not being properly educated and were, in most instances, excluded from the classroom. 1 Congress concluded that the problem was the result not only of financial constraints at state and local levels but was also due to state and local laws which enabled school districts to exclude children without consultation with their parents. Accordingly, a remedial statute which simply would assist with funding was deemed inadequate. Instead, Congress enacted legislation which

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grants disabled students the substantive right to a free appropriate public education in participating states, and conditions federal financial assistance upon compliance with the Act. Honig v. Doe, 484 U.S. 305, 310, 108 S.Ct. 592, 597, 98 L.Ed.2d 686 (1988).

In order to qualify for federal funds, state and local agencies are bound to federal guidelines delineating identification and placement of handicapped children. In addition, because the Act incorporates state law pertaining to educational rights of handicapped children, local schools must also comply with state standards. Thus, even if a school district complies with federal law, it may still violate the Act if it fails to satisfy more extensive state protections that may also be in place. 2

The Act adopts a "zero reject" principle which brings within its protective ambit a wide range of handicapped children who require special education and related services. 3 The substantive cornerstone of the Act is the provision that all handicapped are assured the "right to a free appropriate public education" 4 which is comprised of "specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions" as well as "related services" ("transportation, and such developmental, corrective, and other supportive services ... as may be required to assist a handicapped child to benefit from special education"). Although the "free appropriate education" provision only assures handicapped children a limited level of services, 5 the Act provides this guarantee unconditionally. School districts which fail to comply, therefore, are not afforded significant leeway in asserting defenses based on a child's lack of conventional academic ability or the high cost of necessary services.

The primary vehicle through which handicapped children are assured a free appropriate public education is the "individualized education program." 20 U.S.C. Sec. 1401(18). The IEP is a written statement prepared as the result of consultation among a representative of the local educational agency, the teacher, and the parents, which must contain, whenever appropriate

(A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on an at least annual basis, whether instructional objectives are being achieved.

20 U.S.C. Sec. 1401(19). The IEP must be reviewed not less than annually, and must be revised when appropriate. 20 U.S.C. Sec. 1414(a)(5).

In addition to the Act's substantive provisions, parents are also afforded significant procedural protections. They have the right to examine all relevant documents with respect to their child's education. 20

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U.S.C. Sec. 1415(b)(1)(A). They must be notified of any proposed changes in the identification, evaluation, or educational placement of the child. 20 U.S.C. Sec. 1415(b)(1)(C). Parents who have a complaint with their child's IEP must be given the opportunity to present their complaint at an impartial due process hearing before a state or local educational agency as determined by state law. 20 U.S.C. Sec. 1415(b)(2). If the parents still find themselves aggrieved, they may bring an action in the United States District Court. 20 U.S.C. Sec. 1415(e)(2). Finally, and most important to this case, the Act provides that "[d]uring the pendency of any proceedings ... unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child." 20 U.S.C. Sec. 1415(e)(3).

II.

Emily Thomas is a severely retarded, multi-handicapped eleven year-old child who is confined to a wheelchair. Emily was born with Pierre-Robin syndrome; the symptoms of the syndrome include a bilateral cleft palate and micrognathia. At the age of two, Emily suffered an anoxic insult which deprived her body of oxygen for approximately thirty minutes. As a result of this oxygen deprivation, Emily sustained severe brain damage.

On September 12, 1984, the Cincinnati Center for Developmental Disorders ("CCDD") completed a diagnostic evaluation which summarized Emily's condition. Emily has severe psychomotor retardation and functions at no better than a one-month level developmentally. She has no self-help skills. Although she has minimal visual awareness, is legally blind and has borderline hearing loss, she does respond to some auditory stimuli and tactile stimulation. Emily has a seizure disorder which is presently controlled with phenobarbital. Because of multiple complications from her Pierre-Robin syndrome, she suffers from severe feeding problems and must use a gastrostomy tube. Finally, Emily must breathe through a tracheostomy which requires constant monitoring and suctioning.

Despite this pessimistic assessment, the evaluating physician concluded that the one hour of home training per week which Emily received was insufficient to meet her needs. He reasoned that although the Hamilton County Board of Mental Retardation and Developmental Disorders ("HCBMR/DD"), the agency responsible for Emily's education, was supposed to provide home education one day per week, frequent difficulties interfered with this schedule and, in practice, Emily only received home education once every two weeks. Therefore, he recommended enrolling her in a small, self-contained, special education program for the severely and profoundly retarded.

Following the CCDD's evaluation, Mrs. Thomas met with the following personnel on September 19, 1984 in order to develop an IEP for Emily: Dr. Nancy Tolley, a psychologist representing the Cincinnati Public Schools ("CPS"), Dr. William Russ, Associate Director of Special Education for the CBE, Dr. Anna Byrne-Jandacek, a consultant in special education at the CCDD, and Bernadine Kessinger, Director of Services for Children at HCMBR/DD. Based upon the information available to them--CCDD educational and psychological evaluations, an independent psychological evaluation conducted by Dr. Tolley, a report from the home instructor who had been working with Emily and a 1983-84 IEP--the group unanimously decided that the appropriate and least restrictive educational placement for Emily would be the Sensory Motor Integration Program ("SMI") at the Bobbie Fairfax School operated by HCBMR/DD. The program consists of a teacher and several aids who work with a small number of children requiring intensive stimulation of their motor and sensory development. It includes occupational, physical, speech, and language therapy. In addition, a nurse is available to dispense medication and provide specialized medical care.

While CPS and HCBMR/DD officials were preparing to implement the IEP, two

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unforeseen circumstances intervened. First, a dispute arose between the CPS and the HCBMR/DD...

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