Berger v. Medina City School Dist.
| Decision Date | 29 October 2003 |
| Docket Number | No. 01-3912.,No. 01-3874.,01-3874.,01-3912. |
| Citation | 348 F.3d 513 |
| Parties | Tammy and Steve BERGER, as parents and legal guardians for their minor child, Travis Berger, Plaintiffs-Appellants/Cross-Appellees, v. MEDINA CITY SCHOOL DISTRICT, Defendant-Appellee/Cross-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Stephen O. Walker, Beachwood, Ohio, for Appellants.
Julie Carleton Martin, SCOTT, SCRIVEN & WAHOFF LLP, Columbus, Ohio, for Appellee.
ON BRIEF: Stephen O. Walker, Beachwood, Ohio, for Appellants.
Julie Carleton Martin, SCOTT, SCRIVEN & WAHOFF LLP, Columbus, Ohio, for Appellee.
Before: GUY and DAUGHTREY, Circuit Judges; LAWSON, District Judge.*
Plaintiffs, Tammy and Steve Berger, appeal the judgment entered in this action brought under the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. § 1415, which sought reimbursement for the tuition plaintiffs paid to have their hearing-impaired son, Travis, attend private school for the 1999-2000 school year. The district court found that although the Medina City School District failed to offer Travis a free appropriate public education (FAPE), plaintiffs were not entitled to tuition reimbursement both because the private placement was not proper and because plaintiffs failed to give notice of their intention to withdraw their son from the public school.
Plaintiffs' appeal challenges the district court's denial of their requests for reimbursement and for attorney fees as a "prevailing party." Defendant Medina cross-appeals from the determination that it failed to offer Travis a FAPE. After review of the record and the arguments presented on appeal, we affirm.
In September 1994, plaintiffs and their five-year-old son, Travis, moved into the Medina City School District and enrolled him in Medina's Kindergarten Center. Travis, born July 31, 1989, has a profound hearing loss which entitles him to special education services under the IDEA.1 At plaintiffs' insistence, Medina provided Travis with a frequency modulation (FM) system for Travis to use at school. The FM system allows a teacher or other student to speak into a microphone that sends a radio signal to a receiver connected to Travis's hearing aides. Its purpose is to overcome distance and noise by functioning as if the speaker is only six inches from the ear. The staff also was provided in-service training by Jo Ann Ireland, a consultant from a resource center for special education.
During the next four years, Travis attended first through fourth grades at Medina's Heritage Elementary School, which had an "open" classroom structure with dividers that did not reach all the way to the ceiling. In each year, Travis was educated in a regular education classroom with special education support; provided additional speech and language therapy; and offered some "pre-tutoring" of new vocabulary and concepts. Travis also received speech and language therapy through the summer breaks. Plaintiffs participated, with the advice of counsel, in the development of an Individualized Education Program (IEP) during each of those years. In his first-grade year, Medina provided a "back up" FM system; speech and language therapy twice a week with Marjorie Kulbis, who had 25 years' experience and a master's degree in speech and language pathology; and special education support in the classroom from Eileen Lehrer, a certified special education teacher, and her aides.
At plaintiffs' request, the IEP developed in his second-grade year added articulation goals for speech and language therapy. In third grade, Ms. Ireland, who was then employed by defendant as a special education coordinator, provided in-service training for the staff at Heritage Elementary who were working with Travis. Travis also began receiving separate articulation therapy with Gina Ellibee, who had bachelor's and master's degrees in communication disorders with an emphasis in speech and language pathology. Mrs. Berger attended most of those therapy sessions. An evaluation completed at the end of third grade noted that Travis had demonstrated progress, but that he continued to have difficulty with comprehension and abstract concepts. His scores on IQ and achievement tests at that time were in the average or low normal range.
For fourth grade, Travis was placed in Joan Smith's regular classroom with the FM system and support from Mrs. Lehrer and her aides. As in the past, the IEP, signed in December 1998, continued to include speech and language therapy with Ms. Kulbis, articulation therapy with Ms. Ellibee, and pre-tutoring of new vocabulary both in therapy and at home. Mrs. Smith provided plaintiffs some information on most Mondays for pre-tutoring purposes and had Travis keep a daily assignment book.
Although plaintiffs saw a slide in Travis's grades and competency test scores from second grade on, it was during the fourth grade that he lost his enthusiasm for school and complained that he did not understand what he was being asked to do. Travis began having at least two and sometimes as much as four hours of homework a night. In the first half of the year, Travis was having difficulty with the math curriculum and was receiving a "D" in math. As a result, the IEP team met in February 1999 and agreed that Travis should receive specialized instruction from a math teacher, Alice Paul, four times a week for thirty minutes a day. Because this math intervention program was a regular education program for "at risk" students, the IEP was not amended to reflect it. However, the IEP's objectives for math were modified to allow Travis to use a calculator, number line, or multiplication table in doing three-digit addition, subtraction, and multiplication. The IEP, with those changes, was signed by everyone, including plaintiffs. In the last quarter of fourth grade, Travis received a "D" in written language, and an "F" in both math and reading. Plaintiffs made it known that they thought Travis should be retained in fourth grade.
On May 18, 1999, the IEP team, including plaintiffs, met to review the year's progress and discuss placement for the following year. Ms. Ireland prepared an outline of reasons why Travis should not be retained and reviewed them at the meeting. Emphasizing the importance of support from his peer group, she also suggested that repeating the fourth grade would not change the fact that Travis was a "concrete thinker" who would struggle with an abstract curriculum. Ireland felt it was better to modify and adapt the fifth-grade curriculum than to retain him in fourth grade. It was recommended that Travis be promoted to fifth grade and placed in the resource room for part of the day to receive small group instruction in math and language arts and to allow the instruction to be presented in a more concrete form. There was also discussion about whether Travis would be placed in a fifth-grade classroom with or without support from Mrs. Lehrer. There was testimony that, either way, the resource room aides would be involved in Travis's regular education classroom.
Mrs. Lehrer, Mrs. Smith, Ms. Paul, and Ms. Ellibee all agreed that resource room placement would be appropriate. Each member of the IEP team, including plaintiffs, initialed and dated the IEP with the understanding that Travis would be promoted to fifth grade and placed in the resource room for part of the day. Plaintiffs concede that they consented to this placement, did not advise the school that they rejected this plan, and did not mention the possibility of removing Travis from Heritage Elementary. The question of which fifth grade classroom Travis would be placed in was left open, but the principal, Barbara Gunkelman, advised plaintiffs by telephone during the summer that Travis would be in Mrs. Ellenberg's regular fifth grade class without Mrs. Lehrer and her aides.
In a letter dated July 23, 1999, plaintiffs requested a due process hearing. The letter, sent to the superintendent, Charles Irish, stated as follows:
My Wife and I are not happy and have not been happy with the program the Medina Schools have offered our child. We believe that the service offered was not sufficient to meet our child['s] needs. I guess the last straw was the school['s] decision to pass him on to the next grade. With the years of failure in the previous program and our child['s] growing unhappiness we have decided to look elsewhere to meet his needs. We are requesting a due process hearing and as part of that process we will be looking to the school to reimburse us for the cost of properly educating him elsewhere. We have "Whose Idea Is It Anyway" please send any other documents pertaining to our rights.
This letter was referred to Dr. Brad Garner, Medina's Director of Student Services, who notified the state of plaintiffs' request for a due process hearing. He then called plaintiffs and offered to meet with them about their concerns, or, in the alternative, to submit the matter to the state's mediation process. Mr. Berger declined, advising Dr. Garner that Travis was going to attend another school and that Medina was going to pay for it. Plaintiffs also sent a note to the principal dated August 24, 1999, which stated only that Travis would not be attending Heritage Elementary that year.
Before writing to defendant, plaintiffs had visited Medina Christian Academy (MCA), a private sectarian school, and arranged for Travis to repeat fourth grade in the fall. MCA provided no special education services, but offered smaller class sizes and a "closed" classroom building with carpeted hallways. Plaintiffs took it upon themselves to arrange for Travis to continue receiving speech and language therapy outside school.2
Plaintiffs testified that Mrs. Chase, Travis's fourth-grade teacher at MCA, received training on how to use the FM system and...
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