Evans v. District No. 17 of Douglas County, Neb.
| Citation | 841 F.2d 824 |
| Decision Date | 06 April 1988 |
| Docket Number | No. 87-1650,87-1650 |
| Parties | 45 Ed. Law Rep. 543 Elliott EVANS and Katherine Evans, Next Friend and Parent of Christine Evans, Appellants, v. DISTRICT NO. 17 OF DOUGLAS COUNTY, NEBRASKA, a/k/a Millard Public Schools; and the Nebraska Department of Education, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Kelly Breen, Omaha, Neb., for appellants.
Rjean K. Knowles, Omaha, Neb., for Millard Public Schools.
Robert M. Spire, Atty. Gen., Harold Mosher, Asst. Atty. Gen., Lincoln, Neb., for Dept. of Education.
Before LAY, Chief Judge, and HEANEY and MAGILL, Circuit Judges.
Elliott and Katherine Evans, on behalf of their child Christine Evans, brought an action against Millard Public Schools in Omaha, Nebraska, and the Nebraska Department of Education under the Education for the Handicapped Act, 20 U.S.C. Secs. 1400-62 (EHA). The EHA requires states to provide handicapped children a "free appropriate education" as a condition to receiving federal financial assistance. To attain this objective, the EHA establishes a system of "procedural safeguards" which permits parents to participate in, disagree with, and contest decisions made by public schools concerning their child's education. In addition, the EHA mandates that school districts meet a substantive standard of a free appropriate education.
In this suit, the Evanses claim that Millard violated both the procedural and substantive elements of the EHA. For the reasons stated below, we affirm the district court's denial of relief with one minor exception.
Christine Evans is ten years old and has cerebral palsy, mental retardation, and a severe behavioral impairment. She was diagnosed as being disabled in March 1978 by the Meyers Children's Rehabilitation Institute of Nebraska. She participated in physical therapy, a parent-child language program, and the Infant Stimulation Program at Meyers Institute. At the age of two and one-half, she entered a preschool program in the Millard Public Schools. She received speech, occupational, and physical therapy.
In March, 1982, Millard had a psychological evaluation performed to determine her appropriate placement after completion of preschool. Based on this evaluation and other reports, a multi-disciplinary team (consisting of Ms. Evans, a special education administrator, psychologist, physical therapist, occupational therapist, and several teachers) recommended that Christine be placed in the Trainable Mentally Retarded Program in Westside School District, a district which contracted with Millard to provide special educational services. Christine, however, did not attend during the 1982-83 school year because she moved with her parents to Florida where she attended a special education program.
The following year, the Evanses returned to Omaha and reenrolled Christine in the Millard Public Schools. In October, 1983, a multi-disciplinary team consisting of a psychologist, a speech therapist, a special education administrator, and a teacher met. From their findings, an individual education plan (IEP) was developed. 1
Ms. Evans participated in the preparation of the IEP and approved it. It recommended placement in the trainable program at Rockbrook School in the Westside district. This program included functional academics, behavior management, communication, gross motor/adaptive physical education, and physical and occupational therapy. Carla Ohm, with the assistance of a paraprofessional, taught the class which consisted of about eight to ten students.
Carla Ohm and Ms. Evans reviewed the 1983-84 IEP in the spring of 1984. They concluded that Christine had severe behavioral problems, but that she had made some improvements in certain academic areas. Ohm used two techniques to cope with Christine's misbehavior: "time-out" which involved placing her in an isolated setting; and "manipulation through activities" which involved physically leading Christine through tasks.
In the spring of 1984, at the request of the Evanses, Millard sent Christine to the Meyers Children's Rehabilitation Institute for reevaluation of her occupational and physical therapy. The reevaluations concluded that Christine was receiving sufficient help in those areas. 2
A new IEP was prepared in October of 1984 by Ms. Evans, Ohm, an occupational therapist, speech pathologist, and psychologist. Ms. Evans approved the IEP. During the 1984-85 school year, however, Christine's behavior continued to pose problems. Her most severe tantrums included "headbanging and screaming." Ms. Evans told Ohm that her "home life was falling apart" due to Christine's behavior. Christine required more one-on-one assistance both in school and at home. At Ohm's request, Ken Bird, Director of Special Education for Westside, observed Christine in the classroom. He agreed with Ohm's assessment.
Ohm and Christine's mother had frequent "open and honest" conversations about Christine's behavior from December of 1984 through the spring of 1985. They discussed possible changes in Christine's placement. Ohm believed a program with stronger behavior management and with a lower pupil to teacher ratio might be necessary. Ohm told her to contact the Department of Education about a different placement. Ohm said she also told Ken Bird and Adeline Reis, Director of Special Education from Millard, about Ms. Evans's concerns.
Ohm met with Christine's mother in May, 1985, to review Christine's 1984-85 IEP. Christine's mother was given a pamphlet describing her EHA rights. Ohm told Ms. Evans that a new placement could not be considered until a multi-disciplinary meeting was held. 3 Ms. Evans understood that there would be placement changes in the fall of 1985, but she did not think there was an available program in the school system, and therefore she was considering a private placement including one out-of-state.
Ms. Evans called Ken Bird after the IEP review meeting. Bird testified that he advised her of her procedural rights and told her to talk to Adeline Reis of the Millard School District about alternative residential placements because Millard was primarily responsible for any changes in Christine's placement. Ms. Evans denies Bird told her this. Bird did, however, mention that the Evanses had to seek an in-state placement first before seeking an out-of-state one. He also testified that Ms. Evans did not object to the current placement but she stated that she and her husband might consider seeking a private placement for Christine.
Christine attended summer school at Rockbrook. Adeline Reis evaluated Christine The district first learned in the summer or early fall of 1985 that Christine was going to be placed in a private school in the fall of 1985. Ms. Evans talked to Ken Bird in August about possible reimbursement, and she was again told to talk to Adeline Reis. The Evanses, with the assistance of Reis, eventually filed an application with the Nebraska Department of Education. This application was denied.
on June 13 and came to the conclusion that a change in placement needed to be made for the fall. She also testified that she placed Christine on her informal referral list for psychological reevaluations.
The Evanses filed a petition on March 24, 1986, with the Nebraska Department of Education seeking an order placing Christine in the 24-hour program at the Institute of Logopedics in Kansas and payment for past and future costs of such education and care. A hearing examiner on July 15, 1986, denied the Evanses any relief. On August 12, 1986, the Evanses filed a complaint in the district court. After a hearing on December 22, 1986, limited to the issue of whether the district had provided Christine a free appropriate public education, the district court decided against the Evanses.
Section 1415 delineates the procedural safeguards in the EHA. As the Supreme Court stated in Board of Education v. Rowley, "the importance Congress attached to these procedural safeguards cannot be gainsaid." 458 U.S. 176, 205, 102 S.Ct. 3034, 3050, 73 L.Ed.2d 690 (1982). "Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process * * * as it did upon the measurement of the resulting IEP against a substantive standard." Id. at 205-06, 102 S.Ct. at 3050.
It is clear that in the proper case, monetary relief can be awarded for procedural violations. McKenzie v. Smith, 771 F.2d 1527, 1535-36 (D.C.Cir.1985) (); Hall by Hall v. Vance County Board of Educ., 774 F.2d 629, 633-34 n. 4 (4th Cir.1985) (). This authority stems from the "broad discretion" conferred on the courts to grant appropriate relief under section 1415(e)(2). See School Committee of Town of Burlington v. Department of Educ., 471 U.S. 359, 370, 105 S.Ct. 1996, 2003, 85 L.Ed.2d 385 (1985). The Evanses contend that Millard refused to change Christine's placement upon their request and did not give them proper written notice of their refusal as required by the EHA.
Section 1415(b)(1)(C) requires written notice to the parents when a school district "refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child." Under 34 C.F.R. Sec. 300.505 (1987), notice includes a full explanation of the reasons for the refusal and an explanation to the parents of their rights to contest that decision. 4 The district court held that the Evanses never made a request for a change in Christine's placement and thus the notice requirements were never triggered. While the question...
To continue reading
Request your trial
-
JL v. FRANCIS HOWELL R-3 SCHOOL DIST.
...their home, and residential placements should be resorted to only if these attempts fail or are plainly untenable." Evans v. Dist. No. 17, 841 F.2d 824, 832 (8th Cir. 1988). T.F. v. Special Sch. Dist. of St. Louis County, 449 F.3d 816, 820 (8th Cir.2006) (emphasis added). IDEA, § 1414 addre......
-
RAYMOND S. v. Ramirez
...disagreed with the results of an evaluation performed by the School District. See 34 C.F.R. § 300.503; Evans v. District No. 17 of Douglas County, 841 F.2d 824, 830 (8th Cir.1988); accord Board of Educ. of Murphysboro, 41 F.3d at 1169; Hudson by and through Tyree v. Wilson, 828 F.2d 1059, 1......
-
Banwart v. Cedar Falls Cmty. Sch. Dist.
...to a private residential program and seek reimbursement for the resulting educational expenses. See Evans v. Dist. No. 17 of Douglas Cty., Neb. , 841 F.2d 824, 832 (8th Cir. 1988). They do so at their own financial risk, however, as "[t]hey are entitled to reimbursement only if a federal co......
-
Hill v. Ibarra
...such prerequisites must be satisfied before any enforceable statutory entitlement can be said to exist. See, e.g., Evans v. Dist. No. 17, 841 F.2d 824, 828-29 (8th Cir.1988) (procedural rights conferred by Education for the Handicapped Act inapplicable where requisite change-of-placement re......
-
Case Law for Functional Behavior Assessments and Behavior Intervention Plans: an Empirical Analysis
...that incomplete compliance with the state's BIP regulation was a minor procedural violation), with Evans v. Dist. No. 17 of Douglas Cnty., 841 F.2d 824 (8th Cir. 1988) (skirting the issue of a lack of a BIP by resolving tuition reimbursement on lack of parental notice). 123. See, e.g. , J.L......