FOWLER BY FOWLER v. Unified School Dist. No. 259
| Decision Date | 16 October 1995 |
| Docket Number | Civ. A. No. 94-1521-DES. |
| Citation | 900 F. Supp. 1540 |
| Parties | Michael FOWLER, by his parents and next friends, Jay and Barbara FOWLER, Plaintiffs, v. UNIFIED SCHOOL DISTRICT NO. 259, Defendant. |
| Court | U.S. District Court — District of Kansas |
Mary K. Babcock, Martha Aaron Ross, Foulston & Siefkin, Wichita, KS, for plaintiffs Jay Fowler and Barbara Fowler, parents and next friends of Michael Fowler.
Thomas R. Powell, Roger M. Theis, Hinkle, Eberhart & Elkouri, Wichita, KS, for defendant Unified School District No. 259, Sedgwick County, Kansas.
This matter is before the court following trial without a jury. Plaintiff, Michael Fowler, a profoundly deaf ten-year old gifted student, challenges the denial by defendant, Unified School District No. 259 ("District"), of interpretative services at Wichita Collegiate School, a private nonsectarian school. Plaintiff brought this action pursuant to the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400, et seq. In addition, plaintiff asserts a violation of state law pursuant to K.S.A. 72-5393.
Defendant school district, does not dispute that K.S.A. 72-5393 is applicable to this case, but argues the services "cannot be practically provided."
Plaintiff must prevail in this case. After carefully and thoroughly reviewing the administrative record on appeal, considering the testimony at trial, the exhibits, the oral and written arguments of the parties, the court makes the following findings of fact and conclusions of law.
1. Michael Fowler ("Michael") was afflicted with meningitis as an infant and as a result is perlingually and profoundly deaf.
2. Michael successfully participated in the parent-infant and preschool programs offered by USD No. 259.
3. From kindergarten through the third grade, Michael attended Caldwell Elementary School ("Caldwell") where he was mainstreamed with only minimal resource room support.
4. Michael was able to function well in the mainstream environment, in part, because he had access to sign language interpreters utilizing Signed Exact English II ("SEE II").
5. In addition to interpretive services, Michael received: (1) speech/language services; (2) audiological services; and (3) assistive services from the District.
6. The services were provided, at public expense, pursuant to Michael's individualized education plan ("IEP").
7. In November, 1993, Michael was tested by the District and determined to be of very superior intellectual capacity. The District provided no special program to address Michael's intellectual ability.
8. On May 23, 1994, Jay and Barbara Fowler ("the Fowlers"), Michael's parents, requested a review of Michael's IEP. The Fowlers notified the District of their objection to the placement and educational plan for Michael.
9. The Fowlers had obtained an independent educational evaluation of Michael. Following this evaluation, the District designated Michael as gifted.
10. Because of their objection to Michael's placement and educational plan, the Fowlers enrolled Michael in Wichita Collegiate ("Collegiate"), a private nonsectarian school.
11. Michael attended Collegiate during the 1994-95 school year and is enrolled and attending Collegiate this fall.
12. The Fowlers requested that the District provide Michael interpretive services on-site at Collegiate at public expense pursuant to the IDEA and K.S.A. 72-5393.
13. The District denied the request.
14. The District, for reasons of administrative practicality and educational philosophy, has clustered deaf special education services for all elementary school children at Caldwell.
15. Of the 400 children at Caldwell, approximately 30 are profoundly hearing impaired and require some degree of interpretive assistance.
16. The cluster approach promotes an environment which is designed to maximize language skills by providing hearing impaired children the opportunity to communicate with similarly disabled children and with hearing children who also learn to sign and communicate with the hearing impaired children.
17. The cluster approach also allows staff interpreters to be centrally located which in turn allows a flexible schedule for the interpreters and an efficient use of scarce resources.
18. The District has made a commitment to insuring that interpreters are given sufficient breaks throughout the day. This reduces the likelihood of injury and burn-out from this highly intensive and stressful activity.
19. The cluster approach also seeks to insure sufficient preparation time for interpreters.
20. During the 1994-95 school year, the District employed eight interpreters at Caldwell, although there were appropriations for nine positions.
21. The District was unable to fill the ninth position.
22. There appears to be a shortage of SEE II interpreters in the District and in other areas.
23. The SEE II method is generally more difficult to learn than the more common American Sign Language ("ASL"). In addition, signing and interpreting by SEE II is a more taxing endeavor than signing and interpreting by ASL.
24. The District has a policy that interpreters will be with the children throughout the entire school day, including recess and lunch periods. This policy ensures that the hearing impaired child always has the ability to communicate and to receive communication.
25. Because of the above stated policy, the District determined that it would be required to provide more than one interpreter at Collegiate to serve Michael.
26. The District asserts, therefore, that one-on-one interpretive services could not be "practically provided" at private schools throughout the District.
27. Barbara Fowler served as Michael's interpreter at Collegiate for the 1994-95 school year.
28. Collegiate officials structured Michael's daily schedule to allow Barbara Fowler sufficient down time, break time and preparation time during the course of the day. Such scheduling greatly reduces the need for a back-up interpreter.
29. Michael will continue to need interpretive services during the course of his school career.
30. Michael's need for gifted services were met this past year at Collegiate when the District provided a gifted consultant who met monthly with Michael's teacher at Collegiate.
31. On May 30, 1995, an IEP meeting was conducted to discuss Michael's intellectual and academic potential and to determine the appropriate services to meet Michael's special educational needs.
32. The team developed an IEP which requires full-time interpretive services, assistive devices, speech/language services and audiologist services. In addition, the team determined that Michael should have 180 minutes of gifted services per day in a gifted resource room.
33. Caldwell does not have a gifted resource room. During the IEP meeting, the team discussed transporting Michael to Minneha Elementary School to receive the services in a gifted resource room.
34. During the trial to the court, the District indicated it would consider establishing a new gifted resource room at Caldwell and transfer some students currently receiving such services at other schools to Caldwell.
35. There is currently no gifted resource room program at Caldwell. Michael, at this point, would be the only hearing impaired student in the gifted room, which would result in him receiving one-on-one interpretation during the hours he was in the room.
36. There are at least two other hearing impaired students within the District who are not placed at the cluster schools and who receive one-on-one interpretive services.
37. There was no evidence that the interpreters in these special situations had regularly scheduled back-up interpreters.
38. The cost of providing interpretive services for Michael at Collegiate may be higher than the cost of those services at Caldwell. However, some increase in cost is not necessarily financially burdensome to the District.
39. Because the District has provided individual interpreters in other special settings, there is no indication that doing so in this instance will be administratively burdensome to the District.
40. The District's argument that supervision of an interpreter at Collegiate would present an overwhelming burden to the District is not supported by the evidence that other individual interpreters work without on-site supervision at Starkey Developmental Center and the Vo-Tech School.
41. The Fowlers requested a Level I due process hearing on May 23, 1994. That hearing was held on August 4, 1994.
42. The hearing officer issued his decision on August 25, 1994, concluding that the District was obligated under IDEA to provide interpretive services for Michael at Wichita Collegiate pursuant to K.S.A. 72-5393.
43. On September 12, 1994, the District appealed the decision to the State Board of Education.
44. A state Review Officer was assigned and on October 5, 1994, the record of review was opened to permit submission of additional evidence by the District. Plaintiff objected to the taking of additional evidence.
45. The Review Officer conducted a hearing on October 13, 1994. At that hearing, the Review Officer ruled that the District could submit affidavits by October 24, 1994, to rebut affidavits offered by the Fowlers at the hearing. The Fowlers objected to the ruling.
46. On November 4, 1994, the Review Officer reversed the decision of the Hearing Officer, ruling that the District was not required to provide one-on-one interpretive services for Michael at Collegiate. The officer noted that the statute requires the District to provide services to students in private schools on a "equal basis" and found that one-on-one interpretive services for Michael were greater services than what the District was providing students in the public schools.
47. The Fowlers commenced this action seeking judicial review of an administrative order in this court on November 29, 1994...
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Tucker by Tucker v. Calloway County Bd. of Educ.
...(2d Cir.1996), cert. granted and judgment vacated, --- U.S. ----, 117 S.Ct. 2502, 138 L.Ed.2d 1008 (1997); Fowler v. Unified School Dist. No. 259, 900 F.Supp. 1540 (D.Kan.1995), rev'd, 107 F.3d 797 (10th Cir.1997), cert. granted and judgment vacated, --- U.S. ----, 117 S.Ct. 2502, 138 L.Ed.......
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Natchez-Adams School Dist. v. Searing, Civil Action No. 5:94-cv-97BN.
...a child without special needs would have. Id. (citation omitted). K.R. by M.R. was also followed in Fowler by Fowler v. Unified Sch. Dist. No. 259, 900 F.Supp. 1540, 1545 (D.Kan.1995). In this case, as in Cefalu, the court ruled that a local school district was required to provide one-on-on......
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Fowler v. Unified School Dist. No. 259, Sedgwick County, Kan.
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Fowler v. Unified School Dist. No. 259, s. 95-3373
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