Jenkins v. Carney-Nadeau Public School, CARNEY-NADEAU

• Decision Date: 03 August 1993
• Docket Number: CARNEY-NADEAU,Docket No. 151337
• Parties: , 85 Ed. Law Rep. 928, 5 A.D.D. 1127 Amber JENKINS, by her next friend, Susan Jenkins, Plaintiff-Appellant, v.PUBLIC SCHOOL, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 893

505 N.W.2d 893

201 Mich.App. 142, 85 Ed. Law Rep. 928,

5 A.D.D. 1127

Amber JENKINS, by her next friend, Susan Jenkins, Plaintiff-Appellant, v. CARNEY-NADEAU PUBLIC SCHOOL, Defendant-Appellee.

Docket No. 151337.

Court of Appeals of Michigan.

Submitted May 4, 1993, at Marquette.

Decided Aug. 3, 1993, at 9:05 a.m.

Released for Publication Oct. 19, 1993.

Petrucelli & Petrucelli, P.C. by Joseph C. Sartorelli, Iron River, for plaintiff-appellant.

Weber, Swanson & Dettmann by Keith E. Swanson, Marquette, for defendant-appellee.

Before SAWYER, P.J., and HOOD and WEAVER, JJ.

PER CURIAM.

This is a discrimination action brought under the Handicappers' Civil Rights Act (HCRA), M.C.L. § 37.1101 et seq.; M.S.A. § 3.550(101) et seq. Plaintiff appeals as of right from the trial court's grant of summary disposition to defendant under MCR 2.116(C)(8). We affirm.

Plaintiff was born with spina bifida and suffers from related disabilities. She complains that the school will not allow her to use her motorized wheelchair in the school building, that she is forced to walk up stairs, which causes her pain, and that attention is drawn to her handicap because an aide has been assigned to accompany her at school even though she does not need such assistance. The school contends that the complained-of conditions are required by plaintiff's individualized education program (IEP) and that in order to challenge them, she must follow certain administrative procedures. We agree with defendant.

Under the Individuals with Disabilities Education Act (IDEA),20 U.S.C. § 1400 et seq., ¹ states must fulfill certain conditions in order to receive federal assistance. See 20 U.S.C. § 1412. Among other things, states must have "in effect a policy that assures all children with disabilities the right to a free appropriate public education" and must develop a detailed plan with goals and timetables implementing that policy. 20 U.S.C. § 1412(1) and (2). Further, "[e]ach local educational agency ... will maintain records of the individualized education program for each child with a disability, and such program shall be established, reviewed, and revised" at least annually. 20 U.S.C. § 1412(4); 20 U.S.C. § 1414(a)(5).

Under the IDEA, states are required to provide an administrative appeals procedure for the review of decisions regarding the "identification, evaluation, ... educational placement, or the provision of free appropriate education." 20 U.S.C. § 1415(b)(1)(E). Administrative decisions may eventually be appealed to either state or federal court. 20 U.S.C. § 1415(e)(2). However, administrative remedies must be exhausted before resorting to the courts. Doe v. Smith, 879 F.2d 1340, 1343 (C.A.6, 1989).

Michigan has implemented the IDEA through the mandatory special education act (MSEA), M.C.L. § 380.1701 et seq.; M.S.A. § 15.41701 et seq. See Woolcott v. State Bd. of Ed., 134 Mich.App. 555, 562, 351 N.W.2d 601 (1984). Pursuant to the MSEA, regulations have been promulgated controlling the preparation, content, and appeal of IEPs. See 1987 AACS, R 340.1721-340.1725e; see also 1990 AACS, R 340.1722a. As mandated by the IDEA, once the administrative process is exhausted, the school board's decision may be appealed to either state or federal court. See 1987 AACS, R 340.1725(3); 1980 AACS, R 340.1725a; see also 20 U.S.C. § 1415(e)(2) and Doe, supra, at 1343.

Here, plaintiff has declined to follow this administrative procedure and has instead filed suit directly in the circuit court under the HCRA. She relies on a provision that makes it unlawful for an educational institution to "[e]xclude, expel, limit or otherwise discriminate against an individual ... enrolled as a student in the terms, conditions, and privileges of the institution, because of a handicap that is unrelated to the individual's ability to utilize and benefit from the institution, or because of the use by an individual of adaptive devices or aids." M.C.L. § 37.1402(b); M.S.A. § 3.550(402)(b). Plaintiff argues that she has an independent right to sue under that section. See M.C.L. § 37.1606(1); M.S.A. § 3.550(606)(1). We disagree.

Specific statutes prevail over general statutes covering the same subject matter. Woolcott, supra at 563, 351 N.W.2d 601. Contrary to plaintiff's arguments, the MSEA is unquestionably more specific than the HCRA.

As noted above, the HCRA prohibits discrimination on the basis of handicap. See M.C.L. § 37.1402(b); M.S.A. § 3.550(402)(b). The MSEA, on the other hand, affirmatively requires the state to provide "special education programs and services designed to develop the maximum potential of every handicapped person." M.C.L. § 380.1701(a); M.S.A. § 15.41701(a). This means not only refraining from excluding, expelling, limiting, or otherwise discriminating against handicapped students, but also affirmatively providing them with special programs and services designed to maximize their potential. The MSEA therefore more specifically addresses the education of disabled children than does the HCRA.

Additionally, regulations issued pursuant to the MSEA govern the preparation and content of IEPs and provide an administrative procedure for appeals. The HCRA does not address IEPs at all. Clearly then, the MSEA is also more specific than the HCRA regarding the source of the allegedly discriminatory conditions.

The case relied upon by plaintiff, Littsey v. Wayne State University Bd. of Governors, 108 Mich.App. 406, 310...