Fowler v. Unified School Dist. No. 259, Sedgwick County, Kan.

Decision Date04 November 1997
Docket NumberNos. 95-3373,95-3400,s. 95-3373
Citation128 F.3d 1431
Parties122 Ed. Law Rep. 391, 97 CJ C.A.R. 2724 Jay FOWLER and Barbara Fowler, parents and next friend of Michael Fowler, Plaintiffs--Appellees, v. UNIFIED SCHOOL DISTRICT NO. 259, SEDGWICK COUNTY, KANSAS, Defendant--Appellant. United States of America; National School Boards Association; Kansas Advocacy & Protective Services, Inc.; Most Reverend James P. Keleher, Archdiocese of Kansas City, Kansas; Most Reverend Stanley G. Schlarman, Diocese of Dodge City, Kansas; Most Reverend George K. Fitzsimons, Diocese of Salina, Kansas; Most Reverend Eugene J. Gerber, Diocese Of Wichita, Kansas; National Association of the Deaf; National Cued Speech Association; The American Society for Deaf Children; And Kansas Association of the Deaf, Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Roger M. Theis and Thomas R. Powell of Hinkle, Eberhart & Elkouri, L.L.C., Wichita, KS, on the briefs, for Defendant-Appellant.

Mary Kathleen Babcock, Timothy B. Mustaine, and Martha Aaron Ross of Foulston & Siefkin, L.L.P., Wichita, KS, on the briefs, for Plaintiffs-Appellees.

William Kanter and Frank A. Rosenfeld, Civil Division, Department of Justice, Washington, DC, on the briefs, for amicus curiae, the United States of America.

Gwendolyn H. Gregory, Deputy General Counsel, August W. Steinhilber, General Counsel, and Thomas A. Shannon, Executive Director, National School Boards Association, Alexandria, VA, on the briefs, for amicus curiae, the National School Boards Association.

Sherry C. Diel, Kansas Advocacy & Protective Services, Inc., Topeka, KS, on the briefs, for amicus curiae, the Kansas Advocacy & Protective Services, Inc.

J. Francis Hesse, Redmond & Nazar, L.L.P., Wichita, KS, on the briefs, for amicus curiae, Most Reverend James P. Keleher, Archdiocese of Kansas City, KS; Most Reverend Stanley G. Schlarman, Diocese of Dodge City, KS; Most Reverend George K. Fitzsimons, Diocese of Salina, KS; Most Reverend Eugene J. Gerber, Diocese of Wichita, KS.

Douglas R. Cyrex, Gonzales, LA, Marc P. Charmatz and Sarah S. Greer, National Association of the Deaf Law Center, Silver Spring, MD, on the briefs, for amicus curiae, the National Association of the Deaf, National Cued Speech Association, The American Society for Deaf Children, and Kansas Association of the Deaf.

Before ANDERSON, LUCERO, and MURPHY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

In February, 1997, we held that the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1420 ("IDEA"), and the regulations thereunder, as well as Kansas law, required the defendant, Unified School District No. 259, to at least partially pay for an on-site sign language interpreter for the plaintiff, Michael Fowler, a deaf child voluntarily attending a private school. Fowler v. Unified Sch. Dist. No. 259, 107 F.3d 797 (10th Cir.1997), cert. granted and vacated, --- U.S. ----, 117 S.Ct. 2503, 138 L.Ed.2d 1008 (1997). Both sides filed petitions for certiorari, which the Supreme Court granted in order to vacate our decision and remand the case to us "for further consideration in light of the Individuals With Disabilities Education Act Amendments of 1997." Unified Sch. Dist. No. 259 v. Fowler, --- U.S. ----, 117 S.Ct. 2503, 138 L.Ed.2d 1008 (1997); Fowler v. Unified Sch. Dist. No. 259, --- U.S. ----, 117 S.Ct. 2503, 138 L.Ed.2d 1008 (1997) (same). 1 We directed the parties to submit simultaneous briefs on the effect of those Amendments on this case, including the impact, if any, of the effective date of those Amendments and whether this case should be remanded to the district court for further factual findings. We have considered the parties' briefs, as well as the amicus brief filed by the United States, and we again reverse the district court's decision and remand for further proceedings.

BACKGROUND

We need not set out in detail the facts or procedural history of this case, as they were stated in our prior panel decision. We only present essential facts as necessary for us to address the effect of the IDEA Amendments on this case.

Michael Fowler is a profoundly deaf twelve-year-old boy who, because he requires specially designed instruction for this condition, qualifies as a child with disabilities under Part B of the IDEA. He is also gifted, having been found by the school district to be "of very superior intellectual capacity." Fowler v. Unified Sch. Dist. No. 259, 900 F.Supp. 1540, 1541 (D.Kan.1995), rev'd, 107 F.3d 797 (10th Cir.), cert. granted and vacated, --- U.S. ----, 117 S.Ct. 2503, 138 L.Ed.2d 1008 (1997). After he spent four years at the public school where the District elected to cluster hearing-impaired students, Michael's parents voluntarily placed him in a private nonsectarian school where they felt his intellectual needs would be better met. They requested that the District provide interpretive services to Michael on site. The District denied the request. That denial was upheld through administrative proceedings.

When the Fowlers appealed the denial to the district court, the district court held that the District must pay the entire cost of such services. On appeal from that decision, we held that the District must pay "an amount up to, but not more than, the average cost to the District to provide that same service to hearing-impaired students in the public school setting." Fowler, 107 F.3d at 807-08. We derived that obligation from both the IDEA and its regulations and from Kansas statutory law. Because the 1997 IDEA Amendments address the scope of services to students voluntarily placed in private schools, the Supreme Court vacated our decision and remanded it to us to consider the effect of those Amendments.

I. IDEA:

The IDEA provides federal grants to states, which states then use as part of the funds they give to local educational agencies to assist such agencies in educating students with disabilities. States electing to participate in this system of grants must establish and have "in effect a policy that assures all children with disabilities the right to a free appropriate public education." 20 U.S.C. § 1412(1). Among the many areas of contention since the IDEA's passage has been the extent to which children whose parents have voluntarily placed them in private schools may participate in special education programs and services provided pursuant to the Act, and, more specifically, what obligation, if any, a school district has to pay for such services.

Prior to its recent amendment, the IDEA provided that, with respect to students, like Michael, voluntarily attending private schools, each state must:

set forth policies and procedures to assure-that, to the extent consistent with the number and location of children with disabilities in the State who are enrolled in private elementary and secondary schools, provision is made for the participation of such children in the program assisted or carried out under this subchapter by providing for such children special education and related services.

§ 1413(a)(4)(A). While the IDEA regulations did make clear that if a "free appropriate education" ("FAPE") was available to a student, and the parents voluntarily placed the student in a private school, the local educational agency was not obligated to pay for the full cost of the student's education, 34 C.F.R. § 300.403(a), what was unclear under the Act and its regulations was the extent of the agency's obligation to make special education services available to such a student. Compare Cefalu v. East Baton Rouge Parish Sch. Bd., 103 F.3d 393, withdrawn and superseded on rehearing, 117 F.3d 231 (5th Cir.1997) and Russman v. Sobol, 85 F.3d 1050 (2d Cir.1996), cert. granted and vacated, --- U.S. ----, 117 S.Ct. 2502, 138 L.Ed.2d 1008 (1997) with K.R. v. Anderson Community Sch. Corp., 81 F.3d 673 (7th Cir.1996), cert. granted and vacated, --- U.S. ----, 117 S.Ct. 2502, 138 L.Ed.2d 1007 (1997) and Goodall v. Stafford County Sch. Bd., 930 F.2d 363 (4th Cir.1991).

The IDEA was recently amended by Congress, so that now the Act provides as follows for children enrolled by their parents in private schools:

(A) CHILDREN ENROLLED IN PRIVATE SCHOOLS BY THEIR PARENTS.-

(i) IN GENERAL.-To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary and secondary schools, provision is made for the participation of those children in the program assisted or carried out under this part by providing for such children special education and related services in accordance with the following requirements, unless the Secretary has arranged for services to those children under subsection (f):

(I) Amounts expended for the provision of those services by a local educational agency shall be equal to a proportionate amount of Federal funds made available under this part.

(II) Such services may be provided to children with disabilities on the premises of private, including parochial, schools, to the extent consistent with law.

(ii) CHILD-FIND REQUIREMENT.-The requirements of paragraph (3) of this subsection (relating to child find) shall apply with respect to children with disabilities in the State who are enrolled in private, including parochial, elementary and secondary schools.

....

(C) PAYMENT FOR EDUCATION OF CHILDREN ENROLLED IN PRIVATE SCHOOLS WITHOUT CONSENT OF OR REFERRAL BY THE PUBLIC AGENCY.-

(i) IN GENERAL.Subject to subparagraph (A), this part does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility.

Individuals with Disabilities Education Act Amendments of 1997, Pub.L. No. 105-17, tit.1, § 612(a)(10)(A), (C), 111 Stat....

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