Brimmer v. Traverse City Area Public Schools

• Decision Date: 23 September 1994
• Docket Number: No. 1:94-CV-195.,1:94-CV-195.
• Citation: 872 F. Supp. 447
• Parties: Jessica BRIMMER, Adam Brimmer, by and through their parents, David and Wendy Brimmer, and David Brimmer and Wendy Brimmer, individually, Plaintiffs, v. The TRAVERSE CITY AREA PUBLIC SCHOOLS, Peter Wharton, in his official capacity as Superintendent of The Traverse City Area Public Schools, The Traverse Bay Intermediate School District, Michael D. McIntyre, in his official capacity as Superintendent of The Traverse Bay Intermediate School District, jointly and severally, Defendants.
• Court: U.S. District Court — Western District of Michigan

872 F. Supp. 447

Jessica BRIMMER, Adam Brimmer, by and through their parents, David and Wendy Brimmer, and David Brimmer and Wendy Brimmer, individually, Plaintiffs, v. The TRAVERSE CITY AREA PUBLIC SCHOOLS, Peter Wharton, in his official capacity as Superintendent of The Traverse City Area Public Schools, The Traverse Bay Intermediate School District, Michael D. McIntyre, in his official capacity as Superintendent of The Traverse Bay Intermediate School District, jointly and severally, Defendants.

No. 1:94-CV-195.

United States District Court, W.D. Michigan, Southern Division.

September 23, 1994.

COPYRIGHT MATERIAL OMITTED

Thomas M. Schraw, Boyne City, MI, for plaintiffs.

Kurt D. Hassberger, Rhoades, McKee, Boer, Goodrich & Titta, Grand Rapids, MI, for defendants.

OPINION OF THE COURT

McKEAGUE, District Judge.

This is an action for judicial review under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(e). The decision at issue requires that special education services be provided to hearing impaired minors, Jessica and Adam Brimmer, in their resident school district, Traverse City, instead of at the Michigan School for the Deaf in Flint, where they have been educated for the last three years. The state-level decision is an affirmance of the local hearing officer's decision which approved the Individualized Educational Program (IEP) formulated at the local school district level. The decision represents a determination that facilities and programs for the hearing impaired in the Traverse City Area Public Schools have been upgraded, so as to enable the provision of a free appropriate public education to the Brimmer children in an environment less restrictive than the Michigan School for the Deaf. Plaintiffs, the two Brimmer children and their parents, challenge the IEP decision on procedural and substantive grounds.

On June 30, 1994, the Court denied plaintiffs' motion for leave to present additional evidence. The Court now undertakes review based on the administrative record, the parties' briefs and oral arguments of counsel, heard on August 29, 1994.

I. STANDARD OF REVIEW

The applicable standard of review has been characterized as "modified de novo review." Doe v. Bd. of Educ. of Tullahoma City Schools, 9 F.3d 455, 458 (6th Cir.1993). Whether a school district has complied with the applicable procedural requirements is a question subject to de novo review, but the Court must give "due weight" to the state administrative proceedings. Id.; Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 624 (6th Cir.1990). The procedural sufficiency of the IEP is subject to strict review, but merely technical deviations do not warrant judicial interference. Doe By and Through Doe v. Defendant I, 898 F.2d 1186, 1190 (6th Cir. 1990). The Court should not exalt form over substance. Id. Further, the factfinding of the state agency with expertise in the field is entitled to due respect. Thomas, supra, 918 F.2d at 624. The substantive decisions of educators and parents in fashioning IEPs are entitled to the utmost deference, once it is determined that they stem from adherence to the procedural requirements. Doe By and Through Doe, supra, 898 F.2d at 1198-99.

The party challenging the terms of an IEP bears the burden of proving by a preponderance of the evidence that the IEP is the product of defective procedure or is substantively inappropriate. Tullahoma City Schools, supra, 9 F.3d at 458.

II. PROCEDURAL OBJECTIONS

A. Hearing Officer Selection

Under 20 U.S.C. § 1415(b)(2), parents of a handicapped child who object to the educational placement of the child "shall have an opportunity for an impartial due process hearing," as determined by state law. Plaintiffs contend this requirement was violated when they were denied the opportunity to participate in the selection of an impartial hearing officer, as required by state regulation. The state rule provides in pertinent part as follows:

The superintendent of the public agency shall contract for the services of an impartial hearing officer who is mutually agreeable to both parties or who has been appointed by the department of education.

If the parent and the public agency cannot agree on a hearing officer, the superintendent shall request that the department appoint an impartial hearing officer.

1987 Annual Administrative Code Supplement, R 340.1724a.

It is undisputed that the school district in this case requested the Department of Education to appoint a hearing officer before any attempt was made to identify a mutually agreeable hearing officer. The question posed is whether the first sentence of Rule 340.1724a impliedly requires the parties to try to reach agreement before resort to the appointment method set forth in the second sentence.

The first sentence of § 1724a indicates generally that the hearing officer may be selected by mutual agreement or by appointment. Neither it, nor the second sentence expressly requires that the parties try to reach agreement as a prerequisite to appointment. Neither sentence suggests that appointment is proper only when the parties disagree. The second sentence may be construed simply as explaining that, if the parties try to reach agreement and fail, the disagreement will not become an impasse, but will be resolved through the appointment method. This construction best lends integrity to the first sentence. If the second sentence were intended to modify the first, so as to provide that appointment is proper only after the parties have tried to agree and failed, that intent can be expected to have been more clearly stated.

Moreover, to the extent that the parents' full participation in the proceedings below may be viewed as having been infringed, the error would appear to have been cured through their motion to disqualify presented to the local hearing officer appointed by the Department of Education, which permitted the issue of hearing officer bias to be addressed and resolved.

Ultimately, the appointment of Local Hearing Officer Frank J. Wawrzaszek was in accord with the first sentence of § 1724a. The argument that the manner or timing of the appointment was a procedural violation is either based on an erroneous interpretation of § 1724a or points at worst to a mere technical violation that does not warrant judicial interference. See Doe By and Through Doe, supra, 898 F.2d at 1190. The Court therefore concludes that plaintiffs' right to an impartial due process hearing was not materially infringed.

B. Non-Attendance of Teachers at IEP Committee Meeting

It is undisputed that none of Jessica's or Adam's teachers from the Michigan School for the Deaf ("MSD") attended the IEP committee meeting on May 6, 1993, at which the decision was made to return them from MSD to Central Grade School in the Traverse City Area Schools. Defendants contend they discharged their duty by inviting representatives of MSD to attend, who chose to decline.

The testimony of MSD Principal Carol Harris indicates that, indeed, she was invited to attend the IEP committee meeting. She had conducted all previous IEP committee meetings since the children had been attending MSD, but was unable to attend on May 6, 1993, because she was required to attend other prior scheduled IEP meetings. She deemed it sufficient to send reports from the children's teachers and speech therapist and did not request that the IEP committee meeting be rescheduled. She also testified she did not know a change of placement was contemplated; had she known, she would have participated.

Because the IEP committee meeting was conducted without the children's teachers' participation, plaintiffs contend the placement decision is in violation of 34 C.F.R. § 300.533(a)(3). Section 533(a)(3) requires that placement decisions be made by a group of persons "knowledgeable about the child." Plaintiffs contend the IEPs are defective because the persons most knowledgeable about Adam's and Jessica's educational needs and progress were not present.

The children's parents are obviously knowledgeable about them and were included in the group responsible for the decision. Section 533(a)(3) might, therefore, be said to have been facially satisfied. However, the parents dissented from the placement decision, as would have MSD representatives had they been present. Thus, the decision to transfer Jessica and Adam back to Traverse City was actually made by a group of persons who had little personal familiarity with the children's recent progress and needs.

Six persons signed the IEP committee reports: the parents; Brenda Wright (interpreter for the parents); Sandy Harms Reay, hearing impaired teacher at Central Grade School; Jim Linsell, principal of Silver Lake Elementary School and District Representative; and Suzette Cooley-Sanborn, Traverse Bay Area Intermediate School District Supervisor. The three persons responsible for this decision, Ms. Reay, Mr. Linsell and Ms. Cooley-Sanborn, appear to have had little personal knowledge about Jessica's and Adam's recent progress and needs.

Granted, there are different ways to become knowledgeable about a person. Though these three persons may have had little recent personal familiarity with the children, they may have become somewhat knowledgeable through their review of the children's test results and teachers' reports and their communications with the parents. Yet, the extent of knowledge required to satisfy § 533(a)(3) must reasonably be deemed to depend on the gravity of the placement decision to be made. The decision to remove the Brimmer children from the residential institution where they have not only gone to school, but lived, five days a week for the last three years, is a weighty one, having profound impact on all aspects of their lives. The wisdom of such a decision can hardly be fairly measured without input from teachers and therapists at MSD about the progress and difficulties the Brimmers have experienced in the MSD...