Foley v. Special School Dist. of St. Louis County, 4:95 CV 448 DDN.

• Decision Date: 29 March 1996
• Docket Number: No. 4:95 CV 448 DDN.,4:95 CV 448 DDN.
• Citation: 927 F. Supp. 1214
• Parties: Daniel and Margaret FOLEY, as parents and next friend of Clare Foley, Plaintiffs, v. The SPECIAL SCHOOL DISTRICT OF ST. LOUIS COUNTY, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

927 F. Supp. 1214

Daniel and Margaret FOLEY, as parents and next friend of Clare Foley, Plaintiffs, v. The SPECIAL SCHOOL DISTRICT OF ST. LOUIS COUNTY, Defendant.

No. 4:95 CV 448 DDN.

United States District Court, E.D. Missouri, Eastern Division.

March 29, 1996.

Michael H. Finkelstein, Missouri Protection & Advocacy Services, Jefferson City, MO, for plaintiffs.

Celynda L. Brasher, Peper and Martin, St. Louis, MO, James G. Thomeczek, St. Louis, MO, for defendant.

MEMORANDUM

NOCE, United States Magistrate Judge.

This action is before the Court upon the motion of the defendant for summary judgment under Rule 56(c), Federal Rules of Civil Procedure. The parties have consented to the exercise of authority by a United States Magistrate Judge under 28 U.S.C. § 636(c)(3).

Plaintiffs are Daniel and Margaret Foley, the parents of Clare Foley. They seek relief under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1485. Plaintiffs seek judicial review of a three-member due process panel hearing held pursuant to 20 U.S.C. § 1415 and Missouri Revised Statutes § 162.961. Plaintiffs allege that the Special School District of St. Louis County ("SSD") is required under the IDEA to provide certain educational and related services to their daughter, Clare Foley ("Clare") at St. Peter's Catholic School ("St. Peter's"). They ask the Court to reverse the decision of the three-member hearing panel, find that SSD has violated the law by failing to provide special education services to Clare at St. Peter's, order that such services as requested be provided, and award attorneys' fees and costs to plaintiffs.

The SSD argues that the IDEA does not require the SSD to provide Clare with the services requested at St. Peter's, in that the SSD has offered Clare a free appropriate public education in the public school setting, and plaintiffs have elected unilaterally to place Clare in a private parochial school. The SSD argues that the United States Constitution and the Missouri Constitution prohibit the SSD from providing the services to Clare on the grounds of the parochial school.

The following facts are undisputed:

FACTS

1. Clare Foley is a female born on October 24, 1986. She is the daughter of Daniel and Margaret Foley. Clare resides in the Kirkwood School District and the Special School District of St. Louis County ("SSD"). Clare has a medical diagnosis of Down Syndrome. Clare's educational diagnosis is mild mentally disabled, with delays in the areas of cognition, adaptive behavior, language, fine motor, and gross motor. (Complaint at ¶¶ 4, 11, 12; Legal File, filed June 23, 1995, at 95).

2. From the age of seven weeks until sometime during the 1992-93 school year, Clare received services from the Belle Center, a private school for students with disabilities located in the City of St. Louis. In June 1991, Clare attended the Belle Center twice a week from 9:00 a.m. to 1:00 p.m. Clare also attended Kirkwood Baptist Preschool one morning per week. (Complaint at ¶ 13; Legal File at 95).

3. About June 1991, Clare's mother sought information about receiving educational services from the SSD. Mrs. Foley completed an SSD "Early Childhood Special Education Referral Form" on or about June 22, 1991. Becky Hughes, Clare's program director at the Belle Center, completed the "Preschool Section" of the referral form in September 1991. The "Screening Section" of the referral form was completed on September 21, 1991, by Molly Dunkin, a parent educator from the Kirkwood R-VII School District. (Complaint at ¶ 15; Legal File at 95.)

4. The Belle Center completed an individual treatment plan ("ITP") for Clare on October 15, 1991, after the SSD requested that Mr. and Mrs. Foley provide the SSD with a copy of Clare's current educational plan from the Belle Center. The ITP addressed gross motor skills, fine motor skills, cognitive skills, social/integration skills, daily living skills, and computer skills. (Complaint at ¶ 17; Legal File at 96.)

5. The SSD completed a multi-disciplinary evaluation of Clare on December 4, 1991. Based on the results of that evaluation, the SSD found Clare to be mentally retarded-mild, with delays in the areas of cognition, adaptive behavior, language, fine motor, and gross motor. An Individualized Education Program ("IEP") team met on January 8, 1992, to consider the results of the multi-disciplinary evaluation and to develop goals and objectives for Clare. At the conclusion of the IEP meeting, a plan was drafted. However, the Foleys did not sign the plan on that date. Instead, the Foleys took the plan home to consider it. (Complaint at ¶¶ 18, 19; Legal File at 96.)

6. On Wednesday, January 15, 1992, Mrs. Foley called Janet Munger of the SSD, and informed her that the Foleys were declining placement and services from the SSD. Clare completed kindergarten at St. Peter's Catholic School during the 1992-93 school year. (Complaint at ¶ 21; Legal File at 96.)

7. On July 12, 1993, the Foleys notified the SSD that they were again interested in obtaining services for Clare. The notation on the "Reactivation/Transfer Form" suggested that the Foleys were interested in the Special Non-Public Access Program ("SNAP"). The SNAP program includes both the after-school program and the dual enrollment program. However, Mrs. Foley maintains that she has never been interested in the SNAP Program. Instead, Mrs. Foley stated that, in light of her interpretation of recent Supreme Court decisions, she believed that the SSD was obligated to provide Clare with educational and related services at St. Peter's Catholic School, where Clare had attended kindergarten. (Complaint at ¶¶ 22, 23; Legal File at 96.)

8. On July 14, 1993, because of the notation on the "Reactivation/Transfer Form," it was sent to Debbie Smith, who is the Coordinator of the SNAP Program. A letter was sent to Mr. and Mrs. Foley on July 19, 1993, indicating that the Reactivation Form was being processed for a SNAP program. On August 19, 1993, Mr. and Mrs. Foley wrote Dr. David Willard, the Director of Special Education Support Services for SSD. In that letter, the Foleys stated that they were not interested in the SNAP Program. Instead, relying on Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993), the Foleys suggested the following services: (1) a special education teacher to coordinate and oversee Clare's IEP; (2) itinerant speech services to be provided at St. Peter's Catholic School; (3) itinerant occupational therapy services to be provided at St. Peter's Catholic School; and (4) an aide for reading and math to be provided by SSD at St. Peter's Catholic School. (Complaint at ¶¶ 22, 23; Legal File at 97.)

9. On August 25, 1993, Dr. Willard informed Mrs. Foley that the SSD could not implement Clare's IEP at St. Peter's Catholic School. Dr. Willard suggested three alternatives: (1) enrollment in a public school; (2) enrollment in an after-school program; or (3) dual enrollment. (Complaint at ¶ 24; Legal File at 97.)

10. The Foleys agree that the SSD and the Kirkwood School District can fully include Clare in a regular public school classroom and that the SSD offered Clare a free appropriate public education by offering to educate her on a full-time basis at Keysor Elementary School, a public school. The offer to fully include Clare in the Kirkwood public school was made to her by Judy Kamper, the Kirkwood liaison to the SSD, before the beginning of the 1993-94 school year. (Hearing Tr. at 44, 45; Legal File at 99.)

11. An IEP meeting was held on September 8, 1993. Mrs. Foley indicated that Clare would be attending St. Peter's. At the conclusion of the IEP meeting, it was determined that Clare should receive two hours of services per week from a special educator for students with mental handicaps through the SNAP program. It was also determined that some assessment should be made to determine the exact degree of services Clare should receive from an occupational therapist (OT), a physical therapist (PT), and a speech/language pathologist. (Complaint at ¶ 25; Legal File at 97.)

12. The IEP team reconvened on October 13, 1993. At that time, it was determined that Clare would receive 60 minutes of occupational therapy per week, 30 minutes of physical therapy per week, and 60 minutes of language services per week. To receive the services, Clare was dually enrolled, under protest by the Foleys, at St. Peter's and Keysor Elementary School in the Kirkwood School District. (Complaint at ¶ 26; Legal File at 97-98.)

13. While receiving services through the dual enrollment program, Clare made progress in her academics. On May 4, 1994, Clare achieved a grade equivalent score of 1.6 on the vocabulary section of the Gates-MacGinitie reading test. That placed Clare on stanine five, 41st percentile. Those are average scores. In the report card issued by St. Peter's School for Clare for the 1993-94 school year, in the fourth quarter, Clare received either "outstanding" grades, "progressing well" grades, or "making some progress" grades in all areas assessed. (Petitioners' Hearing Exh. F; Legal File at 98-99.) This was during the time that she was dually enrolled.

14. On November 4, 1993, Mr. and Mrs. Foley wrote Dr. Ronald Rebore, the Superintendent of SSD, requesting an administrative review. The administrative review was held on December 3, 1993. Marc Montgomery, Director of Region III for the SSD, served as the administrative review chairman. His decision was issued on January 14, 1994. His decision is found at Exhibit R-23 of the exhibits submitted into evidence at the due process hearing. (Complaint at ¶¶ 28, 29; Legal File at 98.)

15. The parties stipulated that, if called to testify, SSD witnesses would testify that it would be more costly to provide the therapy and language services to Clare at St. Peter's than at the public school. (Legal File at 98.)

16. Mr. and Mrs. Foley, by letter dated ...