BONNIE ANN F. BY JOHN RF v. CALALLEN SCHOOL D., Civ. No. C-91-259.

• Decision Date: 09 September 1993
• Docket Number: Civ. No. C-91-259.
• Parties: BONNIE ANN F., by her next friends JOHN R.F. and Karen A.F., Plaintiffs, v. CALALLEN INDEPENDENT SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Southern District of Texas

835 F. Supp. 340

BONNIE ANN F., by her next friends JOHN R.F. and Karen A.F., Plaintiffs, v. CALALLEN INDEPENDENT SCHOOL DISTRICT, Defendant.

Civ. No. C-91-259.

United States District Court, S.D. Texas, Corpus Christi Division.

September 9, 1993.

Clyde Lee Wright, III, Corpus Christi, TX, for plaintiffs.

Elena M. Gallegos, Cheryl Denise Howell Anderson, Walsh, Judge, Anderson, Underwood & Schulze, Austin, TX, for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MILES, Senior Judge, Sitting by Designation.

In this action filed under the Individuals with Disabilities Education Act ("IDEA," formerly the Education of the Handicapped Act), 20 U.S.C. § 1400 et seq., the plaintiff, a hearing impaired child, is alleging that the defendant school district failed in its obligation to provide her with a free appropriate public education as required by federal law. On her behalf, her next friends and parents are seeking reimbursement from the defendant for the costs of attendance at a private school for the deaf during a nine-week period in 1991.

At the conclusion of an administrative hearing, a hearing officer determined that the defendant had fulfilled its responsibility to provide the plaintiff with a free appropriate public education as required by the IDEA. The plaintiff then filed this action under 20 U.S.C. §§ 1415(e)(2) and (e)(4)(A). The matter is now ready for decision.

FINDINGS OF FACT

Based on the administrative record on file with the court, based on the testimony and exhibits received at trial, based on the pretrial order on file with the court, including the admissions of fact contained therein, the court makes the following findings of fact as required by Fed.R.Civ.P. 52(a)¹:

1. Plaintiff Bonnie Ann F. (hereinafter "Bonnie") was born on May 21, 1987.

2. This action is filed on the plaintiff's behalf by her next friends, her parents John R.F. and Karen A.F.

3. At all times pertinent to this action, Bonnie resided with her parents within the boundaries of the defendant Calallen Independent School District ("CISD").

4. Bonnie was born a hearing child. However, on May 3, 1989, near the age of two, she contracted meningitis and suffered a profound loss of hearing in both ears. On August 10, 1989, testing indicated that she had no detectible hearing.

5. After Bonnie lost her hearing, her parents immediately began a parent/infant program through the CISD.² This program used the "total communication" methodology by mutual consensus of the CISD and Bonnie's parents. As part of the program, and at the choice of her parents, both Bonnie and her parents began sign language instruction.

6. Total communication is an instructional methodology employing a multimodal, multichannel method of instruction for speech, listening, language, and academic development of hearing impaired children. The philosophy of the methodology focuses on the use of any and all channels or modes of communication in order to reach effective two-way communication with a child. Total communication allows and encourages the use of signed English, provided it is helpful in a given situation with a given child.

7. In mid-March, 1990, Bonnie received a cochlear implant. The implant was activated on April 28, 1990.

8. A cochlear implant is a relatively new technology available for use by hearing impaired children who have a specified degree of hearing loss. The implant does not restore normal hearing; sounds that are heard through the device do not precisely resemble those heard by persons with normal hearing capabilities.

9. Bonnie remains a hearing impaired child despite her cochlear implant.

10. Implant users, such as Bonnie, must go through a great deal of relearning following receipt of the device. After receiving her implant, Bonnie made significant progress in her speech development.

11. During the 1990-91 school year, Bonnie was placed at the Regional Day School for the Deaf, located at Calk Elementary School, located approximately 25 miles from her home district.³

12. At Calk Elementary, Bonnie was placed in teacher Sue Ann Jasper's class, a self-contained classroom in which, at the time, five handicapped students, ages three and four, were being instructed by Ms. Jasper and a paraprofessional. Ms. Jasper holds certificates in speech pathology, speech and hearing therapy, and deaf education. Bonnie's school day began at 8:00 a.m. and ended at 3:00 p.m.

13. The instructional methodology used in Ms. Jasper's class was total communication. At the beginning of the 1990-91 school year, Bonnie communicated using total communication.

14. The major elements of Bonnie's educational program were language development, speech development, auditory training, preschool readiness activities, and motor development.

15. Ms. Jasper provided Bonnie with individual auditory training and speech therapy for a short period of time during the school day. She then reinforced and integrated these lessons throughout the day. Language development training was incorporated in daily class activities.

16. Judy Brashear, a speech therapist employed by the Corpus Christi Independent School District in which Calk Elementary School was located, supplemented Ms. Jasper's speech, language, and auditory training by providing individual therapy 45 minutes per week.

17. At some point during the 1990-1991 school year, Bonnie's father, John R.F., became concerned because he believed that Bonnie had a preference for sign language over speech. Mr. F. decided that he did not want Bonnie to use sign language, because he feared that it would lead to her becoming part of what he described as the "deaf subculture" or "deaf community."

18. On December 28, 1991, Bonnie's parents obtained an evaluation of their daughter from the Houston Ear Research Foundation. Bonnie was three years, seven months old at the time of this evaluation. As a result of this evaluation, Bonnie's language age was assessed at three years, three months on a receptive vocabulary test, and three years on an expressive English syntax test.

19. On February 8, 1991, Bonnie's parents obtained another evaluation of their daughter, this time an informal assessment, from Linda Daniel, the director of the TALK Center, located in Dallas, Texas. The TALK Center provides therapy and training to hearing impaired children directed to the development of spoken English without the use of sign language. Ms. Daniel herself does not sign. She met with Bonnie for approximately one hour and performed no formal testing. As a result of her meeting with Bonnie, Ms. Daniel recommended that Bonnie be placed in an aural/oral classroom program, combined with individual therapy or tutoring.

20. Like total communication, an aural/oral methodology uses auditory training, speech development, and language development in communicating with hearing impaired children. However, unlike total communication, the aural/oral approach excludes the use of signed English. The latter philosophy instead focuses on developing the child's use of their residual hearing for communication and speech development without signing.

21. Mr. F. left the visit to the TALK Center determined to follow Ms. Daniel's recommendations regarding his daughter in full. He was, at that point, determined that his Bonnie would be removed from any exposure to an environment in which sign language was used.⁴

22. Mr. and Mrs. F. requested an Admission, Review and Dismissal ("ARD") Committee meeting with the CISD, which was held on February 12, 1991. At this ARD Committee meeting, Mr. F. requested that Bonnie be placed in an aural/oral program, without the use of sign language. He also requested, in addition to a change in Bonnie's placement, that the CISD provide Bonnie with one hour per day each of individual speech therapy and auditory training. The ARD Committee, while generally agreeing that Bonnie should be placed in an aural/oral environment, suggested alternatives, including placing Bonnie in a private nursery school at the district's expense and placing her in a pre-kindergarten program located in the district. However, Mr. F. expressed an inability to make a decision and requested a recess of the meeting.

23. The ARD Committee reconvened on February 28, 1991. At that meeting, Mr. F. stated that he did not have any disagreement with Bonnie's Individual Educational Plan ("IEP") itself. However, he persisted in his request that Bonnie be provided with a separate aural/oral program.

At the meeting, Bonnie's teachers expressed concerns regarding Bonnie's transition from a total communication to an aural/oral program, and suggested the remaining three months of the school year as an appropriate transition period. The ARD Committee agreed that Ms. Jasper and Ms. Brashear would not use the signed English component of total communication when working with Bonnie on an individual basis; in other words, they agreed that all one-on-one communication with Bonnie would be in spoken English only. The ARD Committee, however, desired that Bonnie remain in the total communication environment of Ms. Jasper's classroom for the period from March, 1991 to May, 1991, as a transition period from her current environment to an aural/oral placement, which they agreed to provide beginning in August, 1991.⁵

24. Despite the assurances given by the ARD Committee that CISD would provide an aural/oral program for Bonnie during the 1991-1992 school year, Mr. F. remained concerned — unreasonably so, in the court's view — that the district would not provide such a program. At the February 28, 1991 ARD Committee meeting, Mr. F. presented the Committee with a typed letter to the Commissioner of Education requesting a due process hearing.

25. After the February 28, 1991 ARD Committee meeting, Ms. Jasper and Ms. Brashear discontinued the use of signed English when working with Bonnie on an individual basis.

26. The 1991 IEPs for Bonnie show that she made progress on her auditory...