Anderson v. Thompson, Civ. A. No. 77-C-717.

• Decision Date: 05 August 1980
• Docket Number: Civ. A. No. 77-C-717.
• Citation: 495 F. Supp. 1256
• Parties: James E. and Shirley A. ANDERSON et al., Plaintiffs, v. Barbara THOMPSON et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

495 F. Supp. 1256

James E. and Shirley A. ANDERSON et al., Plaintiffs, v. Barbara THOMPSON et al., Defendants.

Civ. A. No. 77-C-717.

United States District Court, E. D. Wisconsin.

August 5, 1980.

John A. Stocking, Petrie, Stocking, Meixner & Zeisig, Milwaukee, Wis., for plaintiffs.

Bronson C. LaFollette, Atty. Gen., and John W. Calhoun, Asst. Atty. Gen., Madison, Wis., for defendant, Barbara Thompson, State Superintendent of Public Instruction.

Michael J. Sachen, City Atty., West Allis, Wis., for the School Bd.

FINDINGS OF FACT, CONCLUSIONS OF LAW, and DECISION AND ORDER

REYNOLDS, Chief Judge.

This is an action brought pursuant to 20 U.S.C. § 1415(e) to review the special educational placement decision regarding the plaintiff Monica S. Anderson made by the defendant West Allis-West Milwaukee Joint District No. 1 School Board ("West Allis") on August 8, 1977, as modified by the defendant Barbara Thompson, the State Superintendent of Public Instruction, on October 7, 1977.

Monica, who was born on August 13, 1967, is a child with exceptional educational needs ("EEN's"), see § 115.80, Wis.Stats., who is in need of "special education" as defined in 20 U.S.C. § 1401(16). For the fall of 1972, her parents enrolled her in the St. Francis Children's Activity and Achievement Center ("St. Francis"), which is a private institution devoted to the education of children with special educational needs. During the 1973-1974 school year, Monica attended St. Francis part time and the West Allis public school kindergarten part time. Pursuant to § 115.80, Wis.Stats., a West Allis multidisciplinary team ("M-team") studied Monica and in June 1974 recommended alternative placements for her either in a classroom for the educable mentally retarded ("EMR") with eventual mainstreaming into the regular first grade or in a regular first grade with transitional teacher help, plus a reassessment by a learning disability ("LD") teacher during the 1974-1975 school year. Monica's parents declined the offered placements and continued her enrollment in St. Francis where she remains through the present. In the fall of 1975, however, her parents did consent to a re-evaluation of Monica by a West Allis M-team, which was done between December 1975 and March 1976. A report was filed on March 22, 1976, which identified Monica as having an EEN in the area of speech and language ("SL") and further undifferentiated EEN's, recommended further evaluation of Monica's interactions in a peer group setting following her enrollment in the West Allis public school system, and recommended an interim placement in an SL and an LD program. Following occupational and physical therapy evaluations of Monica and reports on her prepared by a West Allis LD teacher and a West Allis EMR teacher, a supplemental West Allis M-team report was filed on June 10, 1976, which recommended a diagnostic placement for Monica in a West Allis EMR classroom.

The Andersons refused the placement offered for Monica and, pursuant to § 115.81, Wis.Stats., appealed the placement offer to the local school board. They also obtained an independent M-team evaluation of Monica, which team identified her as having EEN's in the areas of speech and language, learning disabilities, and emotional disturbance. Following twenty-one evenings of hearings, the hearing examiner appointed to make a recommendation to the West Allis school board issued a report on July 26, 1977, finding that Monica had a speech and language disability but was not learning disabled, retarded, nor emotionally disturbed, and that the EMR placement was appropriate because it offered all the components necessary for the development of a program appropriate to Monica's individual needs. The hearing officer's report was adopted by the school district on August 8, 1977, and appealed to the defendant Thompson pursuant to § 115.81(7), Wis. Stats.

On October 7, 1977, the defendant Thompson issued her decision finding that Monica had EEN's in the areas of speech and language and learning disability but not in the area of emotional disturbance, and that an EMR placement for Monica would be appropriate although she was not EMR because the program could be tailored to suit her individual needs, but that a diagnostic placement was inappropriate in view of the extensive information about Monica already known to the West Allis school board. Thompson ordered that the West Allis M-team be reconvened with the consent of Monica's parents to develop an appropriate program to meet Monica's needs, and then to recommend an appropriate placement to carry out the program. This action was then commenced by the Andersons pursuant to 20 U.S.C. § 1415(e) for review of the defendant Thompson's decision. As set forth in the complaint, the Andersons' contentions as of the time of filing of the complaint were that the West Allis and Thompson decisions recommended an inappropriate placement for Monica and that St. Francis offered the only appropriate educational opportunity for Monica.

Since November 1977 when the complaint was filed, many things have occurred which affect both the appropriate present educational placement for Monica and the Andersons' wishes for her. Most significantly, Monica will be thirteen in August 1980 and is therefore eligible for only one more year of schooling at St. Francis. Furthermore, her parents believe that she has reached an age where she must learn to function in a less specialized environment. Thus, it is now the wish of both the plaintiffs and the West Allis school district that Monica should be enrolled in an appropriate program in the West Allis public school system in September 1980. Second, in early 1979, the Court ordered the parties to prepare updated reports and recommendations as to a suitable educational placement and program for Monica, and the parties have now agreed that Monica has EEN's in the areas of speech and language and learning disability and concur in a placement for her in a West Allis public school self-contained/integrated learning disabilities program. Their present dispute as to Monica's program, therefore, is limited to whether she also has an EEN in the area of emotional disturbance and to the details of the program which should be provided for her once the appropriate diagnosis and placement are made. The program dispute includes disagreement over the nature of the transition program from St. Francis to West Allis which should be worked out for Monica. Finally, the Andersons also seek reimbursement for the costs of this action, including their attorney's fees, the costs of the previous hearing before the hearing officer and the appeal to the Superintendent of Public Instruction, and their costs of sending Monica to St. Francis, including both tuition and transportation.

The Legislative Scheme and the Scope of Court Review

The threshold issue in this case is the nature of the review which a district court is intended by 20 U.S.C. § 1415(e) to make of a state placement and programming decision for a child with special educational needs, and the nature of the relief which the court is authorized by that statute to provide.

Subchapter IV of Chapter 115 of the Wisconsin Statutes, §§ 115.76-115.895, Wis. Stats., entitled "Children with Exceptional Educational Needs," was enacted in 1973 with full implementation to occur by July 1, 1976, see § 115.895, and is designed to accomplish the identification of and provision of a special education to all children in the State of Wisconsin who have exceptional educational needs. An EEN is defined as a "mental, physical, emotional or learning disability" and includes speech or language disability, emotional disturbance, and learning disability. § 115.76(3). "Special education" means "any educational assistance required to provide an appropriate education program for a child with exceptional educational needs and any supportive or related service." § 115.76(10). Section 115.80(3) provides for the evaluation of any child suspected of having EEN's by a multidisciplinary team appointed by the local school board, provided that parental consent is given. The M-team is responsible for recommending a child for special education and recommending to the school board an educational program fitted to the individual child's needs. § 115.80(3)(d-e). Periodic reexamination of a child with EEN's by the M-team shall occur at least trienially. § 115.80(5). The child's parents may appeal a placement and program decision to the school board, § 115.81(1), and if dissatisfied with the board's decision may appeal it to the state superintendent, § 115.81(7), and then to the state circuit court, § 115.81(8). Section 115.83(4) provides that "a special education program may be for the school term, may include a summer program or may be for the school year," and § 115.85 provides that if the school district of residence does not have a suitable program, then a child may be placed in another school district, § 115.85(2)(b), or, if necessary, in a private special education program, § 115.85(2)(c).

The federal Education of the Handicapped Act, P.L. 94-142, 20 U.S.C. § 1401 et seq., was enacted effective October 1, 1977, and is applicable to all states which accept federal funding for the education of handicapped children. It is designed to provide financial assistance to the states for the education of handicapped children and also to assure a free appropriate public education to those children. See the legislative history set out in the 1975 U. S. Code Congressional and Administrative News at 1425 et seq. As defined in the federal act, "special education" means "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." 20 U.S.C. § 1401(16). A "free appropriate public education" means a...