Dreher v. Amphitheater Unified School Dist., CIV 91-647 TUC RMB.

• Decision Date: 10 June 1992
• Docket Number: No. CIV 91-647 TUC RMB.,CIV 91-647 TUC RMB.
• Citation: 797 F. Supp. 753
• Parties: Kristy DREHER, Lynn Dreher, and Chris Dreher, Plaintiffs, v. AMPHITHEATER UNIFIED SCHOOL DISTRICT; Arizona State Department of Education; C. Diane Bishop, Superintendent, Defendants.
• Court: U.S. District Court — District of Arizona

797 F. Supp. 753

Kristy DREHER, Lynn Dreher, and Chris Dreher, Plaintiffs, v. AMPHITHEATER UNIFIED SCHOOL DISTRICT; Arizona State Department of Education; C. Diane Bishop, Superintendent, Defendants.

No. CIV 91-647 TUC RMB.

United States District Court, D. Arizona, Tucson Division.

June 10, 1992.

Grant Woods, Atty. Gen., Mariannina E. Preston, Eva K. Bacal, Asst. Attys. Gen., Phoenix, Ariz., for plaintiffs.

Sarah R. Allen, Ariz. Center for Law in the Public Interest, Phoenix, Ariz., Barry Corey, Corey & Farrell, P.C., Tucson, Ariz., for defendants.

ORDER

BILBY, District Judge.

Before the Court is Defendant C. Diane Bishop's Motion to Dismiss; Plaintiffs' Motion for Summary Judgment; Defendant Bishop's Cross-Motion for Summary Judgment; and Defendant Amphitheater Unified School District's Cross-Motion for Summary Judgment.

I.

A.

Plaintiffs allege the following facts in their Complaint:

Kristy Dreher is a seven year-old student whose parents reside within the boundaries of the Amphitheater Unified School District. Kristy has been profoundly deaf since birth and is considered a "handicapped child," as defined in the Individuals with Disabilities Education Act ("IDEA"). 20 U.S.C. § 1401(a). In August, 1989, the School District developed an Individualized Education Plan ("IEP") for Kristy, pursuant to the IDEA, and determined to place her at the Arizona School for the Deaf and Blind.

Plaintiffs disagreed with the proposed placement, whereupon they requested an impartial due process hearing to demonstrate that the proposed placement would not deprive Kristy of a free appropriate public education commensurate with her abilities and needs. A due process hearing was held over four days in December, 1989 to January, 1990. The sole issue was whether or not the educational placement proposed by the School District provided Kristy with a free appropriate public education, as required by federal law. The hearing officer determined that the School District's proposed placement was appropriate. Plaintiffs appealed to the Arizona Department of Education, who subsequently upheld the hearing officer's decision.

In January, 1990, the Drehers enrolled Kristy at St. Joseph's Institute for the Deaf in St. Louis, Missouri. In September 1990, the Drehers requested that the School District reimburse them for the speech therapy services provided at St. Josephs, and for the costs of such services in the future. The School District refused. On January 16, 1991, Plaintiffs requested a due process hearing to contest the District's denial of reimbursement for speech therapy services. The District refused to schedule a hearing. Plaintiffs then filed an administrative complaint with the Arizona Department of Education, pursuant to 34 C.F.R. § 76.782. On June 7, 1991, the Arizona Department of Education issued a letter of finding, upholding the District's refusal to reimburse the speech therapy costs or to provide a hearing.

B.

The following is a summary of the hearing officer's decision:

1. ISSUE PRESENTED

Whether the proposed and recommended placement of this child by the school district is an appropriate placement to provide a Free Appropriate Public Education in the Least Restrictive Environment.

2. SUMMARY OF FINDINGS OF FACT

a. Kristy is a five year, eleventh month old child who is hearing impaired with a current profound hearing loss.

b. The parents did research into methods of education for the deaf and became convinced that their goal was for Kristy to be an oral child — to be able to speak.

c. They enrolled Kristy in an oral/auditory program in Phoenix for a two year period. This is not an academic program, but a speech therapy program.

d. After lengthy testing, Amphitheater determined that the oral program was not effective for Kristy, and it was recommended that she be placed in a total communication program ("TC") — this includes both oral methods augmented with sign language.

e. The parents disagreed with this methodology because they did not want Kristy to rely on sign language. The parents believed that Kristy would not learn to speak if placed in a TC program. They then placed Kristy at St. Josephs's School in St. Louis. This school uses only the oral method.

f. There was conflicting expert testimony concerning whether Kristy would advance or fall behind if taught by only a strictly oral approach. However, there was also testimony that Kristy had not advanced quickly enough with the oral program.

3. DECISION AND ORDER

a. The proposed placement is not a placement of manual communication, but a placement of augmented communication so that the child may progress with the development of the necessary language that is needed in order to progress academically. There was evidence that an oral emphasis was not a part of the IEP in the proposed placement; only that sign language be incorporated.

b. The basic disagreement between the parents and the school district is not whether this child should become oral and learn to speak, but in the methodology that will be used in the education of this child to reach that goal.

c. "Parents have no right under Education for All Handicapped Children Act to compel school district to provide specific program or to employ specific methodology in providing education for their handicapped child." Lachman v. Illinois State Board of Education, 852 F.2d 290 (7th Cir.1988), cert. denied, 488 U.S. 925, 109 S.Ct. 308, 102 L.Ed.2d 327 (1988).

d. Methodology is left to the determination of the school district in fulfilling the goals of the IEP and in this case the goals definitely show an oral strengthened base.

e. However, the law does allow a parent who has specific goals to remove the child from the public schools and place that child in a private placement according to 34 C.F.R. § 300.403(a). However, the public agency, in this case the school district, is not required to pay for the child's education.

This decision was subsequently appealed by the Drehers. The appeals board reviewed the procedures followed by the hearing examiner, and concluded that there was no due process violation. The appeals board then made the following conclusions of law:

a. "Free appropriate education" ("FAPE") is defined as special education and related services which are provided at public expense, meet State educational agency standards, and are provided in conformity with the child's required IEP. This includes "educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction." Bd. of Education v. Rowley, 458 U.S. 176, 189, 102 S.Ct. 3034, 3042, 73 L.Ed.2d 690 (1982).

b. A child is receiving the proper FAPE when personalized instruction is provided to permit the child to benefit from the instruction.

c. The Drehers failed to show evidence that Kristy would fail to benefit from instruction as set forth in the IEP. On the contrary, the evidence and testimony indicated that the IEP is specifically designed to meet the current needs of Kristy such that she will benefit from the instruction.

d. This case is like Lachman v. Illinois State Bd. of Educ., supra, where the court determined that the disagreement between the parents and the school district concerned which method was most appropriate for facilitating the education of the child. The court in Lachman concluded that the district's IEP was based on accepted, proven methodology for facilitating the early primary education of a profoundly hearing impaired child. The Lachman court found that the IEP provided for a FAPE.

e. The appeals board distinguished Visco v. School Dist. of Pittsburgh, 684 F.Supp. 1310 (W.D.Pa.1988), where the court upheld the child's desire to attend an oral communication school as the appropriate placement for the child. In Visco, the court based its decision on the child's previous enrollment in the oral school, where the child had made satisfactory progress.

The court also took into consideration the fact that the child's parents are also hearing impaired and therefore, the child is not spoken to in the home. In this case, the appeals board concluded that Kristy has not made satisfactory progress, and her home circumstances were different than those found in Visco.

The appeals board upheld the findings of fact, conclusions of law and order of the hearing officer.

II.

A. STANDARD OF REVIEW UNDER THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT

The IDEA permits "any party aggrieved by the findings and decision" of the state administrative hearings "to bring a civil action in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." 20 U.S.C. § 1415(e)(2). This Court's inquiry into suits brought under § 1415(e)(2) is twofold:

First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.

Bd. of Educ. of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982). Plaintiffs do not contend that Defendants have failed to comply with the procedures set forth in the Act when it developed Kristy's IEP. Plaintiffs' belief that the IEP is not reasonably calculated to enable Kristy to receive educational benefits lead them to remove Kristy from public school.

In reviewing the Complaint, the Act provides that a court "shall receive the record of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2); see...