Adams Cent. School Dist. No. 090, Adams County v. Deist

• Decision Date: 13 May 1983
• Docket Number: No. 81-773,No. 9,A,9,81-773
• Citation: 214 Neb. 307,334 N.W.2d 775
• Parties: , 11 Ed. Law Rep. 1020 ADAMS CENTRAL SCHOOL DISTRICT NO. 090, ADAMS COUNTY, and Educational Service Unit.ppellees, v. Marvin DEIST and Myrtle Deist, Appellants.
• Court: Nebraska Supreme Court

Page 775

334 N.W.2d 775

214 Neb. 307, 11 Ed. Law Rep. 1020

ADAMS CENTRAL SCHOOL DISTRICT NO. 090, ADAMS COUNTY, and Educational Service Unit. No. 9, Appellees, v. Marvin DEIST and Myrtle Deist, Appellants.

No. 81-773.

Supreme Court of Nebraska.

May 13, 1983.

Syllabus by the Court

1. Schools and School Districts: Special Education: Appeal and Error. The courts, in reviewing special education appeal proceedings under Neb.Rev.Stat. §§ 43-661 et seq. (Reissue 1978), are not to make independent findings of their own but must follow the criteria set forth in Neb.Rev.Stat. § 84-917 (Reissue 1981) and determine if the action was supported by substantial and competent evidence and was neither arbitrary nor capricious.

2. Schools and School Districts: Special Education. A state which accepts financial assistance from the federal government under the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401 et seq. (1976), is obligated to provide all handicapped children with a free appropriate public education.

3. Schools and School Districts: Special Education. A free appropriate public education requires that each handicapped child be given the opportunity to achieve such child's full potential commensurate with the opportunity provided to other children.

4. Schools and School Districts: Special Education. When a handicapped child is sent home from a school setting and is not allowed to return, such child has been expelled from the school.

5. Schools and School Districts: Special Education. The expulsion of a handicapped child from school constitutes a change in placement, and when that occurs the procedural protections of the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401 to 1415 (1976), are to be followed.

6. Schools and School Districts: Special Education. Local school officials are prohibited, under the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401 et seq. (1976), from expelling students whose handicaps cause them to be disruptive; in such a case a school may only transfer the disruptive student to an appropriate, more restrictive environment.

7. Schools and School Districts: Special Education. The burden rests with the local school officials to produce evidence as to whether or not the student involved was expelled for behavior due to such child's handicap.

8. Schools and School Districts: Special Education. A school district, responsible for providing a "free appropriate public education" to a handicapped child, which fails to furnish adequate facilities and programs to afford such education, is liable to reimburse a parent who, in order to protect the physical and emotional health of such child, does obtain such reasonable services.

9. Schools and School Districts: Special Education. The state is not obligated under either the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401 [214 Neb. 308] et seq. (1976) or the state care and education of handicapped children legislation, Neb.Rev.Stat. §§ 43-601 et seq. (Reissue 1978), to provide a free appropriate public education beyond the child's 21st birthday.

Jacobsen, Orr & Nelson, Kearney, for appellants.

John F. Recknor of Barlow, Johnson, DeMars & Flodman, Lincoln, for appellees.

KRIVOSHA, C.J., BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ., and MORAN, District Judge.

HASTINGS, Justice.

This action began as a special education hearing brought pursuant to 20 U.S.C. § 1415 (1976) and Neb.Rev.Stat. § 43-661 (Reissue 1978) before the Nebraska Department of Education. Marvin and Myrtle Deist brought this action on behalf of their son David against Adams Central School District No. 090 (Adams Central), Educational Service Unit No. 9 (ESU No. 9), and the Nebraska Department of Education (NDE), alleging that David had been denied a free appropriate public education. The NDE was dismissed as a party at the administrative level.

After a hearing was held, the hearing officer, Michael Sullivan, found that David had been denied a free appropriate public education. Sullivan ordered the appellees to provide David with a residential placement near his home, to pay for David's past placement in the Hastings Regional Center and the Nebraska Psychiatric Institute, and granted David 16 additional months of free appropriate public education as compensation for education he failed to receive in the past.

Adams Central and others appealed the hearing officer's decision to the District Court of Adams County, Nebraska, which reversed the decision of the hearing officer. That court found David to be entitled to classroom placement without any residential care other than by his parents; that Adams Central is not liable for the costs of David's placement in the Hastings Regional Center or the Nebraska Psychiatric Institute, as such placement was voluntary and without the consent of Adams Central; and that David is not entitled to 16 months' additional free appropriate public education as compensation for education missed in the past.

The Deists have appealed, assigning several errors in the decision of the District Court. They complain that the District Court erred (1) in holding that a day educational program could provide David with free appropriate public education; (2) by failing to hold that David was unlawfully excluded from public school; (3) by not ordering residential placement for David; (4) by failing to assign primary responsibility for David's education to appellees; (5) in holding that David was voluntarily placed in the Hastings Regional Center and the Nebraska Psychiatric Institute; (6) by denying appellants reimbursement for the cost of that placement; and (7) in denying David any compensatory education.

There is no real dispute as to the facts in this case. David Deist was born July 25, 1963. His early development was fairly normal. In 1966, after David began to exhibit some antisocial behavior, the Deists had him examined by Dr. Frank Menolascino of the Meyer Children's Rehabilitation Institute in Omaha and by Dr. Michael O'Neill of the Norfolk Regional Center. At that time both of these doctors described David as autistic. Twice a week during the next 2 years David received services from the Norfolk Regional Center. When he reached the age of 6 the Deists moved to Hastings, and there David began attending school at the School for the Trainable Mentally Retarded (TMR School) and the Hastings Regional Center, one-half day each. Eventually David attended a full-day program at the TMR School. When he was 12, in approximately 1976, he developed grand mal epilepsy. The general consensus of the experts who have examined David is that he suffers from autism or organic brain syndrome, mental retardation, and epilepsy.

In the fall of 1977 David began exhibiting increasingly destructive and disruptive behavior at school and at home. As a result of this behavior he became increasingly difficult to handle at school. On approximately December 21, 1977, David was sent home from school early. Mrs. Deist testified that a note was sent home with David stating, in short, that he could not return to school until his behavior was altered.

On December 22, 1977, the Deists met with the local school officials to discuss David's placement. Mrs. Deist testified that it was her understanding from this meeting that David would not be permitted to return to the TMR School and that there was no available suitable placement for David at that time. This was confirmed by the testimony of Don Sutton, supervisor of special education of the trainable mentally handicapped, who said that he was not surprised when David did not come back to school in December because "I think we had requested that they keep him home." He also confirmed that at the meeting with the parents they were told that David was going to have to stay home because he was just unmanageable. On December 28, 1977, unable to care for him at home, the Deists placed David in the Hastings Regional Center.

As early as January 4, 1978, Thom Pickton, a social-emotional consultant at ESU No. 9, who had worked with David, recommended: "The most appropriate or ideal placement for David at this time would be a completely structured 24-hour setting incorporating the use of applied behavioral techniques such as premacking, time-out, contingency management, etc." Pickton also observed that David's aggressive behavior had increased after an increase in his seizure medication had been prescribed. Similar recommendations calling for a 24-hour-per-day structured program for David were also made by other ESU No. 9 staff members in the first few months of 1978, and Mr. Sutton agreed that ESU No. 9 undertook no actions on the basis of those recommendations. He also conceded that at the January 23 meeting he did have objections to David's returning to the TMR School because he did not think he was ready. No homebound instruction was given to David during the month of January because he could not find any teacher to work with him. After January 30 Mr. Sutton said that he found a friend of his to work with David, a person who at the time was working for a bakery, who was not a certified teacher of any sort but did have a degree in business. Therefore, while at the regional center David received, at best, 2 hours of educational instruction per day.

While in the regional center David deteriorated greatly, losing many of the skills he had mastered prior to his being placed there. Members of the ESU No. 9 staff, Adams Central staff, and the Deists met monthly during David's stay at the regional center to discuss his placement. No alternative placement for David was made, even though it was agreed that the regional center was not the appropriate place for David. Finally, the regional center staff, in May of 1979, informed the Deists that their only option was to move David to the state institution in Beatrice and that this would have to be done by May 10,...