Johnson By and Through Johnson v. Independent School Dist. No. 4 of Bixby, Tulsa County, Okl.

• Decision Date: 11 December 1990
• Docket Number: No. 89-5111,89-5111
• Citation: 921 F.2d 1022
• Parties: 64 Ed. Law Rep. 1027 Natalie JOHNSON, a minor who sues By and Through Fred and Jennifer JOHNSON, her father and mother, as next friends, Plaintiff-Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. 4 OF BIXBY, TULSA COUNTY, OKLAHOMA; Oklahoma State Department of Education; Children's Developmental Center, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1022

921 F.2d 1022

64 Ed. Law Rep. 1027

Natalie JOHNSON, a minor who sues By and Through Fred and Jennifer JOHNSON, her father and mother, as next friends, Plaintiff-Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. 4 OF BIXBY, TULSA COUNTY OKLAHOMA; Oklahoma State Department of Education Children's Developmental Center Defendants-Appellees.

No. 89-5111.

United States Court of Appeals Tenth Circuit.

Dec. 11, 1990.

Lowell Thomas Price, Jr., of Protection & Advocacy Agency, Tulsa, Okl., for plaintiff-appellant.

Andrea K. Allbritton, of Rosenstein, Fist & Ringold, Tulsa, Okl. (John G. Moyer, Jr. with her on the briefs), for defendant-appellee Independent School District No. 4 of Bixby, Tulsa County, Okl. and defendant-appellee Children's Developmental Center.

Kay Mildren, Oklahoma State Dept. of Educ., Oklahoma City, Okl., for defendant-appellee Oklahoma State Dept. of Educ.

Before HOLLOWAY, MOORE and BRORBY, Circuit Judges.

PER CURIAM.

This case involves an action brought under the Education of All Handicapped Children's Act, 20 U.S.C. Secs. 1400-1485 (1989), as implemented by 34 C.F.R. Secs. 300.1-300.754 (1989) (collectively referred to as "the Act"). Natalie Johnson is a severely and multiply handicapped child who was eight years old at the time her local school district rejected her parents' request for a structured summer educational program. Natalie's parents invoked the due process provisions of the Act, and the schools' decision was administratively and judicially affirmed. There are two issues on appeal: (1) What information should be considered as a basis for entitlement under the Act to a free extended year school program in addition to the traditional September through May nine-month school program? (2) In Oklahoma, is the cooperative special education service provider a necessary party to the due process procedure mandated by the Act? As to the first issue, we reverse the district court's grant of summary judgment in favor of the schools because insufficient information was utilized in both the administrative proceedings and the district court to satisfy the Act's procedural requirement for individualized review of Natalie's program plan. As to the second issue, we conclude that the special education cooperative unit is a not necessary party to this action.

I.

It is undisputed that Natalie has profound autistic defenses with at least moderate mental retardation and seizures. She has received educational services since the age of eighteen months from the Children's Development Center (CDC), a cooperative special education program serving severely and multiply handicapped children from several local county school districts, administered by the Superintendent of the Tulsa County Public Schools. ¹ Natalie and her family are legal residents within the Independent School District No. 4 of Bixby, Tulsa County, Oklahoma (the Bixby school district), which is, in turn, a member of the CDC cooperative program. CDC operates for nine months of the year, September through May. The Bixby school district does not provide a structured summer program for its severely and multiply handicapped children.

During the nine months of the regular school year, Natalie attended the CDC. For four years, 1982-1986, she attended a recreational day camp for handicapped children run by the Tulsa Association for the Retarded (TAR) during six weeks in the summer. The parties dispute whether this day camp experience had a positive educational effect on Natalie or whether it was tantamount to no structured educational program.

In January 1987, at the regular annual meeting held to plan Natalie's educational program, the Johnsons requested that Natalie be provided with a structured summer educational program. This request was denied after a separate meeting was held in April 1987 to discuss the issue. The Johnsons then invoked the due process procedures defined by the Act, beginning with a hearing before an administrative hearing officer appointed by the Oklahoma State Department of Education.

At the hearing, the Johnsons presented evidence in the form of testimony from Natalie's mother and from the social worker for Natalie's family, R. Vol. II, tr. at 9-33, 58-85, as well as written opinions from her pediatrician, her neurologist, and a psychologist who evaluated Natalie. R. Vol. II. All agreed that she needed to continue her experience in a structured educational setting during the summer months to prevent regression.

The school district presented testimony from Natalie's classroom teacher and her speech therapist for the 1985-86 and 1986-87 school years. Both teachers testified that, in fact, Natalie had not regressed during the summer of 1986 even though she had not participated in an extended school year program during that period. R. Vol. II, tr. at 89-90, 99-101.

The hearing officer found that Natalie's educational record did not provide objective documentation of improvement or lack of regression, despite her teachers' optimistic testimony. R. Vol. II, Hearing decision, findings of fact, pp 7, 8. The hearing officer concluded that an extended school year program was not warranted for Natalie. The hearing officer's decision was based, first, on the legal premise that predictions of future regression are insufficient to compel the schools to provide an extended school year to a handicapped child, and, second, on the factual finding that Natalie's parents failed to demonstrate that Natalie had in fact regressed during the summer of 1986.

Natalie's parents appealed the decision, and the appeals officer affirmed the hearing officer's decision, stating that "[a]ll parents are encouraged to supplement their children's required education in an effort to maximize the individual child's potential; but, this additional effort is not the School's responsibility." R. Vol. II, Appeal Review Decision at 3.

Natalie's parents then filed this action against the Bixby school district, the CDC and the Oklahoma State Department of Education (collectively referred to as "the schools") in the district court for the Northern District of Oklahoma, seeking judicial review of the decision. No additional evidence was offered by either party and the matter was referred to a magistrate following cross motions for summary judgment. The magistrate issued a report and recommendation stating that the preponderance of the evidence indicated that Natalie could be predicted to regress during the summer months without a structured summer program, and concluding that, pursuant to the Act, the schools must provide Natalie with a structured summer educational program as a continuation of her program during the regular school year. R. Vol. I, tab 27.

However, the district court, basing its decision on the same regression evaluation standard used by the administrative hearing officer, found the evidence that Natalie had not regressed during the previous summer, presented by two teachers who had worked with Natalie on a daily basis for many months, to be more compelling than the predictions of outside experts, who had less continuous contact with the child, that such a summer program would prevent regression in the future. The district court therefore granted the schools' motion for summary judgment, holding that, as a matter of law under the Act and the Oklahoma statute, the Bixby school district was not required to provide an extended school year program to Natalie. Johnson v. Independent School District No. 4, No. 88-C-340-C (N.D.Okla. June 5, 1989). Natalie's parents appealed.

II.

This court has jurisdiction on appeal pursuant to Sec. 1415(e) of the Act, and 28 U.S.C. Sec. 1291 (1989). See also Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176, 186 n. 9, 102 S.Ct. 3034, 3041 n. 9, 73 L.Ed.2d 690 (1982) (the court has jurisdiction over an issue which evades review yet is capable of repetition).

The final district court order in this case was grant of the schools' motion for summary judgment.

We review the summary judgment orders de novo, applying the same legal standard used by the district court under Rule 56(c) of the Federal Rules of Civil Procedure. Summary judgment should be granted only if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When applying this standard, we are to examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. However, the nonmoving party may not rest on his pleadings; the party must set forth specific facts showing that there is a genuine issue for trial.

Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir.1990) (citations omitted).

In Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), the Supreme

Court established a twofold inquiry for district courts to use in determining whether the Act's requirements have been met: (1) Has the State complied with the procedures set forth in the Act? (2) Is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? Id. 458 U.S. at 206-07, 102 S.Ct. at 3051.

The legal standard to be used by the district court in considering each of these issues is set forth in the Act: "In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. Sec. 1415(e)(2); see Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 173 (3d Cir.1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989). ² This case was submitted to the district court on the administrative record, including...