Barwacz v. Michigan Dept. of Educ., G87-65.

• Citation: 681 F. Supp. 427
• Decision Date: 22 March 1988
• Docket Number: No. G87-65.,G87-65.
• Parties: Mary Ellen BARWACZ, individually, as parent and next friend of Jennifer Kulmacz, a minor, Plaintiff, v. MICHIGAN DEPARTMENT OF EDUCATION; Phillip E. Runkel, Superintendent of Public Instruction; Ed Birch, Director of Special Education for the State of Michigan; the Kent Intermediate School District; George Woons, Superintendent of Kent Intermediate School District; Northview Public Schools; and Paul C. Lemin, Superintendent of Northview Public Schools, Defendants.
• Court: U.S. District Court — Western District of Michigan

681 F. Supp. 427

Mary Ellen BARWACZ, individually, as parent and next friend of Jennifer Kulmacz, a minor, Plaintiff, v. MICHIGAN DEPARTMENT OF EDUCATION; Phillip E. Runkel, Superintendent of Public Instruction; Ed Birch, Director of Special Education for the State of Michigan; the Kent Intermediate School District; George Woons, Superintendent of Kent Intermediate School District; Northview Public Schools; and Paul C. Lemin, Superintendent of Northview Public Schools, Defendants.

No. G87-65.

United States District Court, W.D. Michigan.

March 22, 1988.

Gruel, Mills, Nims & Pylman by J. Clarke Nims, Grand Rapids, Mich., for plaintiff.

Frank J. Kelley, Atty. Gen. by Paul J. Zimmer and Gerald F. Young, Asst. Atty. Gen., Lansing, Mich., for defendants Michigan Dept. of Educ., Runkel and Birch.

Day, Sawdey, Flaggert & Porter by William A. Hubble, Grand Rapids, Mich., for defendants Kent Intermediate School Dist., George Woons, Northview Public Schools and Paul C. Lemin.

OPINION

ENSLEN, District Judge.

Jennifer Kulmacz is a fifteen year old handicapped student who is severely hearing impaired. Plaintiff Mary Ellen Barwacz brought this action pursuant to the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401-20 ("EHA" or "EAHCA") following a decision by defendant Michigan Department of Education that the Individualized Education Program ("IEP") offered by defendant Northview Public Schools for the 1986-87 school year was appropriate for her special education needs. For a full account of the factual and procedural history of this case see Barwacz v. Michigan Dept. of Educ., 674 F.Supp. 1296 (W.D.Mich.1987). Plaintiff seeks review of Warren C. Jahnke's state level decision of November 26, 1986 which affirmed the October 7, 1986 decision of the local hearing officer, Dr. Mange. Dr. Mange found that the Total Communication Program ("TCP") at Northview Public Schools ("NPS") was an appropriate placement for Jennifer. Dr. Mange also found that the NPS placement would best develop Jennifer's maximum potential in the least restrictive environment ("LRE"). The LRE is commonly referred to as the mainstreaming requirement, or, put differently, the requirement that a student be placed in a non-segregated setting. Dr. Mange concluded that NPS had offered an appropriate placement for Jennifer, that plaintiff had rejected that placement, and that the school district had no responsibility to reimburse plaintiff for transportation expenses to and from the Model Secondary School for the Deaf ("MSSD"). Plaintiff seeks reimbursement for transportation expenses she incurred by unilaterally placing Jennifer at MSSD. Defendants argue that they have no obligation to reimburse plaintiff for those expenses because the program developed for Jennifer at NPS was appropriate under the provisions of EAHCA and the Michigan special education statutes.

Defendants do not challenge plaintiff's right to seek a judicial review of the administrative proceedings which occurred below. 20 U.S.C. § 1415(e)(2) directs that in reviewing an administrative decision under the EAHCA, "the court shall receive the records of the administrative proceeding, 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."

The Administrative Findings

Warren C. Jahnke, the state level reviewing officer, indicated that he made an independent review of the submitted material and adopted Dr. Charles V. Mange's findings of fact and conclusions of law. The Court has reviewed in toto the transcript of the October 7, 1986 hearing, the exhibits presented there, and the decision of Dr. Charles V. Mange. Evidence presented at the hearing included testimony by the following witnesses: Dr. Eugene Kyle, Regional Director of Special Education; Maurita Marr, Interpreter for Jennifer, NPS; Dan Duba, Jennifer's Seventh Grade Mathematics Teacher, 1985-86 school year; Luann Sheridan, Coordinator of TCP, NPS; Martha Boutet, Teacher of Hearing Impaired and Jennifer's teacher, 1981-84; and Mary Ellen Barwacz, mother of Jennifer Kulmacz.

Numerous exhibits including the summary of the educational history of Jennifer, the Michigan School for the Deaf grade report, teacher evaluation forms, reading test results (April 1986) and a psychological report (April 1986) as well as a full IEPC report were also admitted. The hearing officer indicated that an IEPC meeting was convened May 22, 1986 for the purpose of the annual review of Jennifer's program. The report proposed the following:

1. Placement with teacher consultant services in the program for hearing impaired approximately 10% of the day.

2. Speech and language services for two thirty minute periods weekly.

3. "Social work/psych" services for two forty-five minute periods monthly.

4. Participation in regular education classes approximately 90% of the time with a certified interpreter. Classes specified were: English, mathematics, reading and social studies at the eighth grade level; science at the seventh grade level; physical education and "applied arts as deemed appropriate by the professional staff."

On May 28, 1986, Mrs. Barwacz signed the report indicating her disagreement with it and requested a hearing on the matters relating to the proposed placement.

The hearing officer correctly noted that the central issue is the degree to which the present program and the proposed program filled the requirements of Michigan and federal special education law. The officer found that the proposed program for Jennifer stated in the IEPC report of May 22, 1986 was one which offered the best opportunity for the development of Jennifer's maximum potential in the least restrictive environment as required under Michigan and federal law and regulations. In considering the quality of the program offered (see proposed IEP set forth above), the hearing officer emphasized Jennifer's ability to function — both academically and socially — in the regular classroom with the interpreter service. In forming this conclusion, the officer relied on Jennifer's past academic grades, her vocabulary and comprehension scores, and on student evaluation forms completed by mathematics teacher Duba, English teacher Bolyard, art teacher Clapp, and mechanical drawing teacher Stuit. See Decision of Charles V. Mange dated October 7, 1986 at 6. The hearing officer conceded that there is some evidence of lesser achievement in the last half of the 1985-86 school year as demonstrated in the grades for mathematics and reading. In addition, Mr. Duba testified that the direct cause of lower grades was increased absence and missed assignments.

Plaintiff argued at the hearing that Jennifer's reading test scores, which indicate that she is functioning at the seventeen percentile for seventh graders on national norms, are "... overwhelming evidence ... that the school district is not providing her with an opportunity to maximize her potential." (T. at 16). The hearing officer concluded that "in the presence of a life-long profound deafness which is commonly known to result in severe language deficits despite instruction, plaintiff's argument appears to lack sufficient substance when it is understood that this percentile score is based upon norms for the non-handicapped population." (T. at 93).

The hearing officer also initially considered the presumption of the superiority of a "model program," MSSD. After considering the apparent quality of the NPS program and the services proposed, as well as Jennifer's past achievements and her ability to function in the regular education environment, the officer concluded that that presumption was successfully rebutted by the proposed NPS program and would be invalid in Jennifer's situation. The officer noted further that there was strong evidence that the MSSD personnel did not sufficiently consider Jennifer's past demonstrated success in the regular environment as required by the federal LRE regulations. See Mange's decision at 7.

The hearing officer concluded that the NPS met the test of providing a quality program, that is, a program which would maximize Jennifer's potential in the least restrictive environment and that the evidence for plaintiff's view lacks support from professionals, exhibits or other data. The Court notes that the hearing officer observed that the LRE provisions were numerous but not absolute and that programs for more severely handicapped students may be housed in places other than schools with regular education programs. Id. at 5. Still, the officer rejected plaintiff's contention that the MSSD program, the program in which Jennifer is currently enrolled, is better designed to develop Jennifer's maximum potential in the least restrictive environment. Id. at 3. Because the hearing officer concluded that the record did not contain sufficient evidence "beyond a personal conviction to support the validity of plaintiff's position," the officer concluded that the NPS bore no obligation to provide or reimburse any expenses incurred by plaintiff for transportation arising out of the MSSD placement. Id.

Evidence Presented at Trial

In addition to the administrative hearing record, the parties also offered several witnesses to supplement that record. The additional evidence was offered by witnesses who did not appear at the earlier hearing. The Court believes that the evidence was noncumulative and did not change the character of the hearing from one of review to a trial de novo. See e.g., Town of Burlington v. Department of Education, 736 F.2d 773, 790-91 (1st Cir. 1984). Defendants contended at trial that the "additional evidence" provision of 20 U.S.C. § 1415(e)(2) should preclude Jennifer Kulmacz from testifying. Defendants argued that plaintiff chose not to present Jennifer as a witness at the administrative level and that to allow her to testify at trial would be unfair and...