Cordrey v. Euckert
| Decision Date | 05 November 1990 |
| Docket Number | No. 89-3035,89-3035 |
| Citation | 917 F.2d 1460 |
| Parties | 63 Ed. Law Rep. 798 Chance CORDREY, a minor; Karen Cordrey and Robert Cordrey, on behalf of their minor son, Plaintiffs-Appellants, v. R.J. EUCKERT, Supt.; Gregg Simon, Board Member; Mariann Gleckler, Board Member; Loren Pennington, Board Member; Evergreen Local School District; Evergreen Board of Education, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Susan G. Tobin (argued), Michael Kirkman, Ohio Legal Rights Service, Columbus, Ohio, for plaintiff-appellant.
Theodore M. Rowen, Lisa E. Pizza, B. Gary McBride (argued), Spengler, Nathanson, Heyman, McCarthy & Durfee, Toledo, Ohio, for defendants-appellees.
Thomas J. Zraik, Office of Advocates for Basic Legal Equality, Inc., Toledo, Ohio, for amicus curiae.
Before BOGGS and NORRIS, Circuit Judges, and ENGEL, Senior Circuit Judge.
Plaintiff Chance Cordrey, a minor, is a handicapped child within the meaning of The Education For All Handicapped Children Act ("the Act"), 20 U.S.C.A. Sec. 1400 et seq. (1989). With his parents he appeals a judgment entered in the district court in favor of the defendants, the Evergreen Local School District, the Evergreen School Board and several School Board officials (collectively, "Evergreen"). The Cordreys claimed that by failing to provide Chance with an extended school year (ESY) program, 1 Evergreen has denied him a "free appropriate public education" in violation of the Act. The appeal presents several issues, including whether and under what circumstances parents may be deemed to have waived a procedural right under the Act, and the proper standard by which a court should review a denial of an ESY to a handicapped child. We ultimately hold that the parents here did waive certain procedural rights under the Act, and that the district court did not err as a matter of law or fact in ruling that Evergreen was not obligated to provide Chance with an ESY.
Chance, now fifteen years old, is handicapped by severe developmental delays following an autistic pattern. His maladaptive autistic behaviors include self-stimulation, self-abusiveness, non-attending behaviors, and social withdrawal. His communication skills consist of four manual signs, and he can work independently for only three to five minutes at best. An individualized educational program (IEP), required under the Act, was formulated for Chance for the 1981-82 school year, and he was placed in a multihandicapped class in a Toledo public school. This class did not operate during the summer. In 1982, the Cordreys enrolled Chance in a summer education program operated by the Toledo Autistic Society (TAS), a non-profit private agency. In May 1984, after two summers of the private program, the Cordreys requested Evergreen to pay for Chance's program as part of his IEP. Without convening a meeting to review Chance's IEP as provided by the Act, the Evergreen Board of Education decided that Chance should receive an ESY at a summer program run by the Fulton County Board of Mental Retardation and Developmental Disabilities.
In November 1985, an IEP meeting was held, but the Cordreys and Evergreen were unable to reach an agreement regarding summer services for Chance. Instead, in May 1986, the parties negotiated a process to address the ESY issue during the 1986-87 school year. Pursuant to the agreement, the parties selected Dr. Mark Pittner, a clinical psychologist, to evaluate Chance. Dr. Pittner completed the evaluation in April 1987. He concluded that Chance would benefit from an ESY program, and faced an "unacceptable" and "untenable" risk of regression without one. Dr. Pittner also stated, however, that it was impossible to assess empirically or psychometrically whether an ESY program was necessary for Chance since he had been enrolled in a summer program for the previous several years.
On May 5, 1987, the Cordreys met with the Superintendent of Evergreen schools, a Fulton County Board psychologist, a psychology intern and counsel for the parties. Neither Dr. Pittner nor Chance's teacher, Judy Jasco, attended. Based on Dr. Pittner's evaluation, the parties agreed that Chance should be enrolled in an ESY program in the coming summer. While Evergreen suggested that Chance should be placed in the county program, the Cordreys strongly favored the TAS program. Furthermore, Evergreen refused to place an ESY program on Chance's IEP unless the Cordreys agreed to exclude the program from the "stay put" provision of the Act, 20 U.S.C. Sec. 1415(e)(3). This section provides that a handicapped child's placement may not be changed while a hearing or suit challenging an IEP is pending. Rejecting this condition, the Cordreys countered that the IEP meeting was improperly constituted under the Act because Chance's teacher was absent. Evergreen responded that the meeting was not an IEP meeting but only a preliminary discussion of Dr. Pittner's report, and offered to hold a formal IEP meeting at a later date with Chance's teacher in attendance. The Cordreys refused the offer. The meeting then ended without agreement between the parties.
Several days later, on May 11, the Cordreys requested an impartial due process hearing pursuant to the Act to challenge the lack of an ESY in Chance's IEP. Following a hearing in December 1987, the impartial hearing officer concluded that Chance should receive ESY services, and that these could be provided through the county program. On appeal the state-level reviewing officer reversed, concluding that the Cordreys had failed to demonstrate that Chance needed an ESY. The Cordreys then began the present suit in federal district court, where they further alleged that Evergreen had discriminated against Chance on the basis of his handicap. On December 8, 1988, the district court held that Evergreen had not violated the procedural mandates of the Act and that the Cordreys had failed to prove that Chance would suffer significant regression of skills without a summer program. The court did not directly address the discrimination claim.
On appeal, the Cordreys argue that Evergreen violated the procedural requirements of the Act as well as its "stay-put" provision. They also contend that Evergreen's failure to provide an ESY to Chance denied him a "free appropriate public education" under the Act, and that the district court further erred in placing the burden of proof on this issue on the Cordreys. Last, they renew their discrimination claim.
The Act requires any state that receives funding thereunder to provide all handicapped children with a "free appropriate public education," 20 U.S.C. Sec. 1412(1), "regardless of the severity of their handicap." Sec. 1412(2)(C). A "free appropriate public education" is one which is designed to meet the unique needs of the child, by means of an "individualized education program" (IEP). Secs. 1401(a)(16), (18). The Act and corresponding federal and state regulations detail the procedures by which an IEP is to be developed and revised by the parents, the school district and the teacher. Secs. 1401(a)(19), 1415; 34 C.F.R. Sec. 300.340-349; Ohio Admin.Code. Sec. 3301-51-02. If dissatisfied with any matter relating to the child's evaluation or educational placement, the parents may seek an impartial due process hearing to resolve the matter, with appeal to the state educational agency. Secs. 1415(b)(2), 1415(c). Thereafter, "[a]ny party aggrieved by the findings and decision" of the state administrative hearing may bring a civil action in a federal district court. Sec. 1415(e)(2).
In Hendrick Hudson Bd. of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), the Supreme Court observed that neither the Act nor its legislative history establishes a substantive standard defining what level of education amounts to a "free appropriate public education." 458 U.S. at 189, 102 S.Ct. at 3042. The Court did conclude, however, that "adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content of an IEP." 458 U.S. at 206, 102 S.Ct. at 3050. 458 U.S. at 206, 102 S.Ct. at 3051. Rowley thus "requir[es] adherence to the procedural demands of the Act, while giving utmost deference to specific educational decisions once it is determined that they stem from the procedures outlined in the Act." Doe v. Defendant I, 898 F.2d 1186, 1188-89 (6th Cir.1990).
We now consider various procedural issues under the first prong of the Rowley inquiry.
1. Standard of review
The Cordreys do not contest any of the trial court's factual findings relating to this issue. Although neither party discussed the proper standard of review on appeal, we conclude that the issue of waiver is a question of law or at least of mixed law and fact, subject to de novo review. See Taylor & Gaskin, Inc. v. Chris-Craft Industries, 732 F.2d 1273, 1277 (6th Cir.1984).
2. Waiver
A waiver normally occurs by "an intentional relinquishment of a known right." See, e.g., Palfy v. Cardwell, 448 F.2d 328, 332 (6th Cir.1971). The waiver must be knowing, intelligent, and voluntary. Leaman v. Ohio Dep't. of Mental Retardation, 825 F.2d 946, 956 (6th Cir.1987) (en banc). The burden of proof is upon the party claiming the waiver. Masden v. Travelers Ins. Co., 52 F.2d 75, 76 (8th Cir.1931); see Palfy, 448 F.2d at 332.
The trial court found that the May 5, 1987 meeting was an IEP meeting. Because Chance's teacher did not attend, the meeting...
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