KR BY MR v. Anderson Community School Corp., IP 94-766-C H/G.
| Decision Date | 25 May 1995 |
| Docket Number | No. IP 94-766-C H/G.,IP 94-766-C H/G. |
| Citation | 887 F. Supp. 1217 |
| Parties | K.R., an infant by her parents and next friends, M.R. and K.R.R., and M.R. and K.R.R., Plaintiffs, v. ANDERSON COMMUNITY SCHOOL CORPORATION, Defendant. |
| Court | U.S. District Court — Southern District of Indiana |
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Milo G. Gray, Jr., Gary W. Ricks, Indiana Protection and Advocacy Services, Indianapolis, IN, for plaintiffs.
David Gotshall, Anderson, IN, for defendant.
The central issue in this case is whether the federal Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1485, requires a local school corporation to provide for a child with disabilities an instructional assistant at a private parochial school. Plaintiffs are K.R., who is seven years old, and her parents. The defendant is the Anderson Community School Corporation. If K.R. attended public school, her disabilities would require the school corporation to provide a full-time instructional assistant to attend class with her. Plaintiffs seek declaratory and injunctive relief to obtain the same assistance for K.R. at the private parochial school she attends. The court has subject matter jurisdiction under 20 U.S.C. § 1415(e) and 28 U.S.C. § 1331. The court grants the requested relief because the applicable federal regulation requires the school corporation to provide benefits to disabled private school students that are "comparable" to the benefits provided to disabled public school students. The school corporation must provide an instructional assistant for K.R. at St. Mary's School in Anderson, Indiana.1
K.R. has been diagnosed with several serious conditions: myelomeningocele, spina bifida, and hydrocephalus with a shunt. K.R. uses a wheelchair, which helps her achieve some limited mobility. However, she still needs someone to help move her from place to place, to position her, and to secure her so that she can participate in school activities. She also needs assistance in expressing language, both orally, through special speech therapy, and in writing, through compensation for her limited finger dexterity.
When K.R. was three years old, her parents enrolled her in the school corporation's pre-school program. She received there a number of special services. As K.R. approached kindergarten age, the school corporation held case conference committee meetings to develop an "individualized educational program" for K.R., as required and defined by the IDEA. See 20 U.S.C. § 1414(a)(5), 20 U.S.C. § 1401(a)(20). K.R.'s parents attended these meetings. At some point, they expressed a desire, based on their religious beliefs, for K.R. to attend St. Mary's School, a private parochial school, rather than the local public school. Records from as early as April 9, 1993, indicate this possibility.
Three case conference meetings resulted in a final recommendation on August 9, 1993, that K.R. be placed in a regular kindergarten class and be provided with related educational services including speech therapy, occupational therapy, physical therapy, transportation, and the services of an instructional assistant. Occupational and physical therapists would develop ways to transport and position K.R. They in turn would train both K.R.'s classroom teacher and an instructional assistant in the proper methods of transporting and positioning K.R. (A classroom teacher would have "extreme difficulty" providing K.R. assistance without an aide in the classroom.) The therapists would see K.R. approximately once a week to refine her services constantly and to make sure existing assistance was being provided properly. Neither party disputes these recommendations.
At the case conference meeting on August 9, 1993, the school corporation informed K.R.'s parents that it would not provide special services to K.R. at St. Mary's. The school corporation relied on 511 Ind.Admin.Code § 7-4-4(c), which authorizes a school corporation to decide where it will provide special education services. Pursuant to the procedure set forth in the IDEA at 20 U.S.C. § 1415 and in related Indiana regulations, plaintiffs requested on August 26, 1993, a due process hearing to address the school corporation's refusal to provide an instructional assistant at St. Mary's. News of the plaintiffs' request for a hearing apparently prompted the school corporation to take new action. Without notice to plaintiffs, it sent a physical therapist and an occupational therapist to St. Mary's on September 3, 1993, to evaluate physical accessibility there.
In the meantime, K.R. started kindergarten at St. Mary's that fall. Since then, K.R.'s mother, M.R., has attended school full-time with K.R., serving as the instructional assistant that the school corporation refused to provide. The school district has provided speech therapy, occupational therapy, and physical therapy for K.R. at a public school site, as well as transportation to that site. Plaintiffs do not challenge the location for those services.
A hearing officer presided over an evidentiary hearing on October 26, 1993, which addressed the location for K.R.'s instructional assistant services. School corporation witnesses testified that the positioning methods they used for K.R. in pre-school could also be used at St. Mary's because no special equipment was required. However, they expressed concerns about K.R.'s safety in being transported at St. Mary's.2 Although the school corporation had not based its original refusal to provide an instructional assistant at St. Mary's on this ground, it argued in the hearing (and before this court) that safety was a specific goal expressed in K.R.'s individual education program, and that it cannot in good conscience provide an instructional assistant to K.R. at St. Mary's, thereby facilitating K.R.'s education in violation of the safety goal.
The hearing officer ultimately decided that the school corporation was not obligated to provide the instructional assistant for K.R. at St. Mary's. Plaintiffs appealed to the Indiana Board of Special Education Appeals, which upheld the decision of the hearing officer. Having exhausted their administrative remedies, plaintiffs then filed a complaint with this court. K.R. has nearly completed the first grade at St. Mary's. Her mother, M.R., still attends school with her and serves as her instructional assistant.
K.R. and her parents rely on the IDEA and accompanying regulations which require the school corporation to provide to children in private schools special education services that are "comparable" to those services offered to children in the public school system. Plaintiffs also argue that even if the IDEA itself does not require the school corporation to provide an instructional assistant for K.R. at St. Mary's, the school corporation's failure to do so, along with K.R.'s acknowledged need for an instructional assistant, imposes a substantial burden on their choice to have K.R. attend St. Mary's. Plaintiffs claim that this burden violates their First Amendment right to free exercise of religion and also violates the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb to 2000bb-4.
The school corporation acknowledges K.R.'s need for an instructional assistant, and it is willing to provide an instructional assistant if K.R. and her parents choose for her to attend a public school. However, the school corporation argues that the federal regulations do not entitle K.R. to an instructional assistant at a private school, and it further asserts that an Indiana state regulation gives it the discretion to choose where to provide an instructional assistant. The school corporation denies that its exercise of discretion here violates the First Amendment's Free Exercise Clause or the Religious Freedom Restoration Act. Instead, the school corporation claims that providing an instructional assistant for K.R. at St. Mary's would violate the general goal of safety set forth in the individual education plan for K.R., and would violate Article I, Section 6 of the Indiana Constitution, which prohibits expenditures of public funds for the benefit of religious institutions.
In reviewing administrative decisions under the IDEA, a district court must make an independent decision as to whether the requirements of the IDEA have been satisfied. Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 293 (7th Cir.1988). The court must base its decision on a preponderance of the evidence, and may receive and consider evidence not presented earlier in administrative proceedings. 20 U.S.C. § 1415(e)(2). The administrative proceedings must receive "due weight," however, because courts should not "substitute their own notions of sound educational policy for those of the school authorities which they review." Board of Education v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982). Thus, as Judge Brooks has described, for most cases, "the standard of review for IDEA cases lies somewhere in between the review accorded an administrative determination and a de novo examination." Elizabeth K. v. Warrick County Sch. Corp., 795 F.Supp. 881, 885 (S.D.Ind.1992). In light of the issues in this case, the standard of review is closer to the de novo end of the spectrum. This case does not present any substantial question of educational policy. The parties agree that K.R. needs an instructional assistant. The central dispute here is a matter of law: the interpretation and application of a federal regulation that extends certain rights to disabled children who choose to attend private schools.
The IDEA was enacted in part to "assure the effectiveness of efforts to educate children with disabilities." 20 U.S.C. § 1400(c). The Act emphasizes special education and related services, and provides funding for local school district programs....
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