Cleveland Heights-University Heights City School Dist. v. Boss By and Through Boss

• Decision Date: 06 May 1998
• Docket Number: Nos. 96-4333,HEIGHTS-UNIVERSITY,96-4376,s. 96-4333
• Parties: 126 Ed. Law Rep. 633 CLEVELANDHEIGHTS CITY SCHOOL DISTRICT, Petitioner-Appellant/Cross-Appellee, v. Sommer BOSS By and Through her parents, Robert and Donna BOSS, Respondent-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 391

144 F.3d 391

126 Ed. Law Rep. 633

CLEVELAND HEIGHTS-UNIVERSITY HEIGHTS CITY SCHOOL DISTRICT, Petitioner-Appellant/Cross-Appellee, v. Sommer BOSS By and Through her parents, Robert and Donna

BOSS, Respondent-Appellee/Cross-Appellant.

Nos. 96-4333, 96-4376.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 6, 1998.

Decided May 6, 1998.

Susan C. Hastings (argued and briefed), Brian T. Robinson (briefed), Squire, Sanders & Dempsey, Cleveland, OH, for Petitioner-Appellant/Cross-Appellee.

Ellen L. Foell (argued and briefed), Cleveland Heights, OH, for Respondent-Appellee/Cross-Appellant.

Before: MERRITT, KENNEDY, and BOGGS, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

The Cleveland Heights-University Heights School District ("the District"), appeals a decision of the district court affirming the ruling of an Ohio State Level Review Officer ("SLRO") finding that the District violated the Individuals with Disabilities Education Act ("IDEA") and was required to reimburse Sommer Boss's family for expenses associated with Sommer's attendance at a private school for the 1994-95 school year. The Boss family cross-appeals, seeking to reverse the district court's rulings that the SLRO properly denied them reimbursement for expenses associated with Sommer's attendance at a private school for the 1993-94 school year. For the reasons that follow, we find that the District's appeal lacks merit and that we do not have jurisdiction to hear the Boss family's cross-appeal. Accordingly, we affirm the ruling of the district court.

I

Mr. and Mrs. Boss enrolled their daughter Sommer in kindergarten in the Cleveland Heights-University Heights School District in the fall of 1989, after holding her back for one year on the recommendation of school staff. Shortly after Sommer started school, her kindergarten teacher recommended she undergo evaluation to determine whether she had a speech and/or language disability. Sommer's parents signed a "Notice of Intent to Identify and Evaluate a Student." This form explained the rights of parents in the process of evaluating a student for a disability. By signing the form, Sommer's parents acknowledged that their rights under the IDEA relating to the testing procedure had been explained to them and that they had received a written explanation of their rights. The District subsequently confirmed that Sommer did have a speech and language problem. Consistent with its obligation under the IDEA, the District prepared an Individual Educational Program ("IEP") setting forth ways to address Sommer's speech and language problems. Mr. and Mrs. Boss approved this IEP and it was implemented.

The following year, when Sommer was in first grade, another IEP was prepared by the school and approved by Sommer's parents and she continued her speech and language therapy. That same year, Sommer was also placed in a federally-funded reading program called Chapter I, which is not considered special education and was not required by the IEP developed to address her speech and language problems. At the end of her first grade year, Sommer took the Iowa Basic Skills Test and scored in the 15th percentile for reading and the 33rd percentile overall. Sommer's Chapter I progress report for the first grade indicated that her word recognition, reading comprehension, and total reading had improved slightly; that her vocabulary had regressed and that overall she was working at a mid-kindergarten level. Nevertheless, Sommer received "satisfactory pluses" for reading on her report card.

The next year, when Sommer was in the second grade, another IEP was developed for her speech and language problems and approved by Mr. and Mrs. Boss. Sommer also continued in the Chapter I program. During her second grade year, Sommer began to get frustrated with school. Her Iowa Test scores declined from the previous year. Sommer's scores placed her in the 21st percentile overall and the 8th percentile in reading. According to Sommer's Chapter 1 reports, she had made modest improvements and her total reading ability was now at an early second grade level, but her reading comprehension was still at a mid-first grade level. On her report card, Sommer received marks indicating that her performance in reading was somewhere between minimal and satisfactory. Concerned about Sommer's test scores and her attitude towards school, Mrs. Boss met with Sommer's second grade teacher and her Chapter I teacher. The teachers recommended that Sommer work with a private tutor over the summer and that the Bosses wait until the following year before deciding whether to have Sommer tested for a learning disability beyond the problem identified with her speech and language.

Throughout the summer between her second and third grade years, Sommer worked with a private tutor. By the time Sommer's third grade year began, the District had developed, and her parents had approved, another IEP to address remaining speech and articulation problems Sommer had. Sommer also resumed participation in the Chapter I program. During third grade, Sommer was overwhelmed by the workload and had to take a great deal of work home because she could not complete it during assigned school periods. At the request of Sommer's parents, her teacher reduced her workload. Sommer's Iowa Test scores for her third grade year showed that she was continuing to fall behind her peers. Her overall composite score placed her in the 6th percentile and her reading ranked in the 5th percentile. Her Chapter I reports indicated that her vocabulary and total reading ability had regressed to a mid-first grade level. Despite these indicators, Sommer received a grade of "satisfactory" for reading on her third grade report card.

Sommer's parents were alarmed by the decline in her scores and Mrs. Boss met with Sommer's third grade teacher and her principal, Mrs. Moore, to discuss the possibility of home schooling. Mrs. Boss also indicated that she wanted Sommer tested for a learning disability. Mrs. Moore responded by filing a Pupil Services Referral Form. In response to the referral form, a Pupil Services Team consisting of Sommer's third grade teacher, speech pathologist, and reading teacher as well as a school counselor and the school psychologist met with the Bosses to develop an "action plan." The "action plan" called for Sommer to have private tutoring throughout the summer before her fourth grade year, enroll in a reading program at the library and also stated that her progress would be monitored throughout her fourth grade year. The Pupil Services Team also gave the Bosses materials on Attention Deficit Disorder.

The District did not get around to testing Sommer for a learning disability before the end of her third grade school year. Without testing by the District, and a finding that she was learning disabled, Sommer could not be admitted to special education programs to address her reading problems. Over the summer, Mr. and Mrs. Boss had Sommer undergo private testing. This testing did not state that Sommer was learning disabled, but did state that she should continue in the Chapter I program and that she was "a very holistic learner and require[d] ... multi-sensory" instruction. Sommer's summer tutor, a learning disabilities teacher from a neighboring school district, advised Mr. and Mrs. Boss that Sommer would not catch up to her peers unless she was admitted to special education programs at her present school or sent to a school that focused on her need for intensive instruction.

Over the summer, Mr. and Mrs. Boss researched private schools in the area catering to students with Sommer's need for individualized instruction. In August, Mr. and Mrs. Boss filed an enrollment application and paid a fee to reserve a place for Sommer at the Lawrence School, which was recommended by Sommer's summer tutor. The Bosses then requested a waiver from the District that would permit Sommer to receive special education even though she had not yet been tested and determined to have a learning disability. The District was unable to act on the request for a waiver before school started at the Lawrence School, so the Bosses decided to send Sommer to Lawrence for the 1993-94 school year.

In September 1993, the District informed the Bosses that Sommer could still undergo a multi-factored examination ("MFE") to determine whether she had a disability, despite the fact that she was now going to the Lawrence School. The Bosses had Sommer take the MFE. It indicated that she had a specific learning disability. Because Sommer was committed to attending Lawrence for the 1993-94 school year, the Bosses consented to postpone until May 1994 the development of an IEP to address Sommer's reading disability for the following school year.

In early May 1994, Mrs. Boss and Sommer's teacher from Lawrence met with District personnel for what they believed was to be a meeting to develop an IEP for Sommer for the following school year. The meeting, however, degenerated into an argument about whether the District had any obligation to develop an IEP for Sommer before the Bosses decided whether Sommer would remain at the Lawrence School for the 1994-95 year or re-enroll in the District. After the District realized that it was obligated under federal law to develop an IEP for Sommer even though she was attending Lawrence, a second meeting was convened on June 2, 1994 to discuss an IEP for Sommer. Following this meeting, an IEP was sent to the Bosses but they refused to approve it because it provided no objective way to measure Sommer's progress, ¹ it did not adequately explain the specific services she would receive during the 50% of the school day when she was in a normal classroom setting, and it had her attending a school with a high student-teacher ratio. The District and the Bosses agreed that Sommer should attend another school in the District with a lower student-teacher ratio. However, the dispute over the...