Age v. Bullitt County Public Schools, 80-3488
| Decision Date | 11 March 1982 |
| Docket Number | No. 80-3488,80-3488 |
| Citation | 673 F.2d 141 |
| Parties | 3 Ed. Law Rep. 303 Michael AGE, et al., Plaintiffs-Appellants, v. BULLITT COUNTY PUBLIC SCHOOLS, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Phillip E. Allen, Louisville, Ky., Basil Lorch, III, Lorch & Lorch, New Albany, Ind., for plaintiffs-appellants.
J. D. Buckman, Jr., Charles C. Sanders, Shepherdsville, Ky., for Bullitt.
Edward L. Fossett, Legal & Legislative Service, Frankfort, Ky., for Kentucky Dept. of Ed.
Before WEICK * and KENNEDY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
This appeal involves a determination by the Kentucky Department of Education of an appropriate educational program for the minor plaintiff under the Education for All Handicapped Children Act, 20 U.S.C. § 1401 et seq. The district court approved the determination of the Department. Plaintiffs appeal.
Appellant Michael Age is a twelve year old boy suffering from a severe to profound hearing loss. Through his parents as next friends, he objects to the State's proposed placement of him in a program developed by the Bullitt County Public Schools. Although the appellant is a resident of Bullitt County, he seeks to continue commuting to school in Jefferson County, because he believes the Jefferson County system offers a more appropriate program for one with his particular handicap. The State, on the other hand, prefers the Bullitt County program, asserting that it is appropriate within the meaning of the Act and that it will cost the State considerably less in tuition and transportation.
The Kentucky Department of Education and the Bullitt County Public Schools receive federal financial assistance under the Education for All Handicapped Children Act (hereafter the Act). Under the provisions of the statute, they are obligated to provide appellant Michael Age with a free, appropriate public education, as defined by the Act. See 20 U.S.C. §§ 1401(18), 1412(2) and 1414(a).
The present dispute requires a determination of whether the Bullitt County Public Schools program is "appropriate" for Michael under the Act. A prior proposed program had been appealed by the parents through the State administrative channels. The State agencies approved the plan, but the district court, pursuant to § 615(e)(2) of the Act, rejected it. The State then proposed a second program significantly modifying the initial plan, and this program was approved by the district judge. The approval of the district court of this second proposed program is before this court on the present appeal. We affirm.
The parents of Michael Age object to the Bullitt County program on the following grounds: it places Michael in a classroom with a child who will be taught by the "total" method of instruction, whereas Michael's Individualized Education Program, as defined in 20 U.S.C. § 1401(19), requires that he be taught by the "oral/aural" method (hereafter the oral method). The principal difference between the two methods is that the total method employs sign language and finger spelling, whereas the oral method relies exclusively on residual hearing, lip reading and speech. The oral method avoids the use of sign language because it can detract from the child's development of speech communication skills. A hearing-impaired child's reduced auditory feedback can make sign language and finger spelling much easier to learn than speech, and the child consequently may concentrate on sign language at the expense of his speech development. It is preferable where feasible for the child to learn speech communication skills so that he can participate to the greatest extent possible in the mainstream of society.
Michael has suffered since birth from a severe to profound hearing loss, with no measurable hearing above 1000 Hz in his right ear and none above 1500 Hz in his left ear. With binaural body hearing aids he can hear approximately 44 per cent of the words presented to him at a normal conversation level. For his preschool education he attended the Louisville Deaf Oral School, where he was taught by the oral method. Since the 1976-77 school year, he has attended the Layne Elementary School in Jefferson County, which is some 13.6 miles from his home in Bullitt County. At the time Michael started school, Bullitt County offered no program for students with hearing impairments. The Jefferson County school offered the type of program prescribed for the appellant in his Individualized Education Program, namely, a self-contained class utilizing the oral method. Bullitt County paid the costs of his tuition and transportation to Jefferson County.
In the summer of 1978 the Bullitt County Public Schools developed a program of education for students with hearing impairments, and advised the parents of appellant that he would be required to attend the Bullitt County program the following school year. The proposed program would have placed Michael in a classroom with two other children. The other children were to be taught by the total method and Michael by the oral method. Michael was to be "mainstreamed" for his nonacademic classes such as art, physical education and library. The appellant's parents appealed the decision of the County, pursuant to § 615 of the Act, maintaining that the combination of the two methods in the same classroom was inappropriate for Michael because it exposed him to sign language and it denied him interaction with other children taught by the oral method. The hearing officer issued a decision in favor of Bullitt County which ultimately was affirmed on appeal by the Kentucky Department of Education.
The appellant's parents appealed this decision to the district court, pursuant to § 615(e)(2) of the Act. After a hearing at which both sides presented extensive expert testimony, District Judge Thomas A. Ballantine disapproved the proposed placement, finding that, while the experts disagreed about the possible adverse effects of the sign language on Michael's oral development, they all agreed that peer interaction was of compelling importance to his development under the oral method, and that this interaction would be lacking in the proposed program. For this reason, Judge Ballantine found that the program did not satisfy the requirements of the Act. He retained the case on his docket for further consideration of proposed changes. Presumably Michael continued to attend school in Jefferson County during the 1979-80 school year.
The County proposed a second program for the school year 1980-81. Under this program, the appellant would be placed in a classroom with four other children. One of the children would be taught by the total method and the others, including Michael, by the oral method. The other children do not know or use sign language. The single child to be taught by the total method is to be segregated from the other children in the classroom when sign language is employed.
Michael's parents protested the use of the two methods of instruction in the single classroom, again presenting expert testimony with respect to the detrimental effects of sign language on a child's oral development. The County offered evidence that other programs within the State combine the two methods without apparent adverse effects, and that the children presently in the County's program have continued to develop their oral speech communication skills.
Michael's parents are concerned that several factors increase the risk that Michael will tend to pick up sign language and neglect his oral development. First, Michael's hearing loss is severe to profound, whereas the other children taught by the oral method in the classroom suffer only a moderate hearing loss. Learning and using oral communication skills are thus significantly more difficult for Michael than for the other children. In addition, the other children on the oral method are younger than Michael,...
To continue reading
Request your trial
-
Natrona County School Dist. No. 1 v. McKnight
...actually educable within their achievable capacity to become fully self-sustaining and participating adults. Age v. Bullitt County Public Schools, 673 F.2d 141, 145 (6th Cir.1982). 1 Our standard of philosophical review is the issue of appropriateness as addressed in majority opinion by now......
-
John K., In re
...of administrative decisions (Roncker on Behalf of Roncker v. Walter (6th Cir.1983) 700 F.2d 1058, 1062; Age v. Bullitt County Public Schools (6th Cir.1982) 673 F.2d 141, 144; Lang v. Braintree School Committee (D.Mass.1982) 545 F.Supp. 1221, 1226), rejecting the more "deferential abuse of d......
-
Bonadonna v. Cooperman, Civ. A. No. 84-1104.
...is not, apparently, a factor in this decision, as it may be. See, e.g., Roncker, supra, 700 F.2d at 1063, citing Age v. Bullitt County Schools, 673 F.2d 141, 145 (6th Cir.1982) 4 The court has, of course, found certain procedural failings in the method of evaluation used for Alisa. See supr......
-
Mavis v. Sobol
...requirement." Daniel R.R., 874 F.2d at 1049 n. 9 (citing Roncker, 700 F.2d at 1063) (citing, in turn, Age v. Bullitt County Schools, 673 F.2d 141, 145 (6th Cir.1982)). However, because cost was never raised as a factor by the parties, the court need not consider that issue either. See id. 3......
-
Attack on the Eha: the Education for All Handicapped Children Act After Board of Education v. Rowley
...referred to the maximum potential standard. See Age v. Bullitt County Pub. Schools, No. (78-0461-L(B)), 3 E.H.L.R. 551:505 (1980), aff'd, 673 F.2d 141 (6th Cir. 1981); DeWalt v. Burkholder, No. 80-0014-A, 3 E.H.L.R. 551:550, 553 (E.D. Va. 1980). A number of courts have referred to self-suff......