Lapp v. Reeder Public School Dist. No. 3

• Decision Date: 01 October 1992
• Docket Number: No. 910421,910421
• Citation: 491 N.W.2d 65
• Parties: 78 Ed. Law Rep. 1031 Aaron LAPP and Cindy Lapp, Plaintiffs and Appellants, v. REEDER PUBLIC SCHOOL DISTRICT NO. 3; Southwest Multi-District Special Education Unit; and North Dakota Department of Public Instruction, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 65

491 N.W.2d 65

78 Ed. Law Rep. 1031

Aaron LAPP and Cindy Lapp, Plaintiffs and Appellants, v. REEDER PUBLIC SCHOOL DISTRICT NO. 3; Southwest Multi-District Special Education Unit; and North Dakota Department of Public Instruction Defendants and Appellees.

Civ. No. 910421.

Supreme Court of North Dakota.

Oct. 1, 1992.

Jeff Rotering (argued), of Rotering Law Office, Hettinger, for plaintiffs and appellants.

Gary R. Thune (argued), of Pearce & Durick, Bismarck, for defendants and appellees.

JOHNSON, Justice.

Aaron and Cindy Lapp appeal from a district court judgment which affirmed an order of the Department of Public Instruction [Department] holding that the Lapps were not entitled to receive boarding care payments from the Southwest Multi-District Special Education Unit for their daughter, Lisa Lapp. We reverse the judgment of the district court and remand for consideration of the Lapps' request for attorney fees.

The parties have stipulated to the facts. Before the 1988-89 school year, Aaron and Cindy, and their two daughters, Lisa and Jennifer, lived within the boundaries of North Dakota's Southwest Multi-District Special Education Unit [Southwest]. Lisa, born in 1984, has "a profound sensori-neural hearing loss" and began attending the North Dakota School for the Deaf [NDSD] in Devils Lake during the fall of 1988. Lisa was most recently enrolled in the first grade at NDSD pursuant to an approved 1990-91 Individual Education Program [IEP]. During the 1988-89, 1989-90, and 1990-91 school years, Lisa lived with Cindy and Jennifer in Devils Lake. Jennifer is a seventh grader at Central Junior High School in Devils Lake and was listed as a resident student in the Devils Lake School District for purposes of foundation aid and tuition apportionment for the 1989-91 school years.

During these three years, Aaron, who is employed at the Knife River Coal Mine ¹ near Scranton and provides most of the financial support for the family, has remained in the Southwest district, living most recently in Reeder, where he maintains his legal residence. During the summers of 1988, 1989, and 1990, and during most holiday school vacations, Cindy and the two girls have returned to the Southwest district to live with Aaron.

During the 1988-89 and 1989-90 school years, Cindy and the two girls lived in a rented apartment in Devils Lake and Aaron applied for and received boarding care payments for Lisa from Southwest. Before the 1990-91 school year, Aaron and Cindy purchased a house in Devils Lake for Cindy and the two girls to live in. Southwest has denied Aaron's applications for boarding care payments for Lisa during the 1990-91 school year. It is undisputed that no registration certificate has been issued to Cindy or Aaron to qualify the Devils Lake house as a family boarding home and that no license has been issued to them to qualify the house as a foster family home or a group home. Cindy and Aaron have never been told that any certification or license was necessary to qualify for reimbursement.

Pursuant to provisions of the Individuals with Disabilities Education Act, 20 U.S.C. Secs. 1400 et seq., the Lapps requested a due process hearing before the Department to challenge Southwest's refusal to continue paying for boarding care for Lisa. Based on these stipulated facts, the hearing officer denied the appeal, determining that although Aaron "legally resides within Southwest," both Jennifer and Lisa had established residency within the Devils Lake School District. The hearing officer reasoned:

"If the Lapps maintain that the family's residence is such that one sister, Jennifer, is residing within the Devils Lake Public School District, then their residence may be such that the other sister, Lisa, is residing within the Devils Lake Public School District for purposes of that district furnishing facilities. Accordingly, Aaron Lapp is not entitled to receive boarding care payments for Lisa Lapp from Southwest because boarding care is being provided by Cindy Lapp in the Lapp home in Devils Lake."

The hearing officer further ruled that Southwest could not make the boarding care payments because the Lapps were not in compliance with the registration requirements under Chapter 15-59.3, N.D.C.C.

The Lapps appealed to the district court, which affirmed the Department's decision on the residency issue. This appeal followed.

For purposes of these proceedings, the Department is an administrative agency subject to the provisions of the Administrative Agencies Practice Act, Chapter 28-32, N.D.C.C. See Secs. 15-21-07 and 28-32-01(1)(q), N.D.C.C. Our review of an administrative agency decision involves a three-step process of determining whether the findings of fact are supported by a preponderance of the evidence, the conclusions of law are sustained by the findings of fact, and the decision is supported by the conclusions of law. Miller v. Crime Victims Reparations Board, 448 N.W.2d 197, 199 (N.D.1989). In assessing whether the agency's findings of fact are supported by a preponderance of evidence, we determine only whether the agency reasonably made its factual determinations from the greater weight of all the evidence in the record. Schiff v. N.D. Workers Compensation Bureau, 480 N.W.2d 732, 734 (N.D.1992). We review the decision of the agency and look to the record compiled before the agency. Redwood Village v. N.D. Dept. of Human Services, 420 N.W.2d 333, 335 (N.D.1988).

Under our state constitution, all children in North Dakota have the right to a public school education. N.D. Const. Art. VIII, Sec. 1. Our state constitution also guarantees "equal educational opportunity" to a handicapped child. In Interest of G.H., 218 N.W.2d 441, 447 (N.D.1974). The school board of a public school district has a duty "[t]o establish for all children of legal school age residing within the district, a system of free public schools which shall furnish school privileges equally and equitably." Section 15-29-08(1), N.D.C.C.; see also N.D. Const. Art. VIII, Sec. 2. Also, the federal government's Individuals with Disabilities Education Act delineates a scheme under which a state, in order to receive federal financial assistance, is required to effectuate a plan which fulfills the requirements of the Act and assures all children with disabilities the right to a "free appropriate public education." 20 U.S.C. Sec. 1412(1); Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-181, 102 S.Ct. 3034, 3037-3038, 73 L.Ed.2d 690, 73 L.Ed.2d 690 (1982). " '[T]he right to a free appropriate education' means that all handicapped students have the right to special education and related services which must be provided at no cost to parents." Section 15-59-02.1, N.D.C.C.; see also 20 U.S.C. Sec. 1401(a)(18).

In North Dakota, "related services" includes boarding care. Section 15-59-02.1, N.D.C.C., provides that "[i]n the case of handicapped students who require boarding care away from the family residence in order to receive special education and related services in an approved program, it is the intent of the legislative assembly that the instructional costs and costs of related services, including boarding care, be borne by state special education funds and school district funds." The Department is required to "reimburse local school districts for eighty percent of the costs of room and board paid on behalf of handicapped children placed in facilities outside their school district of residence for special education services not available within their school district of residence." Section 15-59-07.2, N.D.C.C.

With this constitutional and statutory background, we must find a clear basis for excluding payment of boarding care expenses on behalf of a child with a disability.

The parties agree that the applicable test for determining Lisa's residence for educational purposes is set forth in this court's decision in Anderson v. Breithbarth, 62 N.D. 709, 245 N.W. 483 (1932). See also In Interest of G.H., supra, 218 N.W.2d at 447-448. In Breithbarth, the court interpreted the phrase "residing in the district," contained in a statute, which declared all public schools free, open, and accessible to all school-aged children residing in the district. ² The defendant school district refused to permit a child to enter a school in Wishek unless her tuition was paid because the school board believed she was not a resident of that district. The girl's parents, who were former residents of the state, had become residents of South Dakota. After the father had deserted the family, the mother sent the child to live with her aunt and uncle in Wishek for the "sole purpose" of "furnish[ing] a decent home for the girl and to lighten the financial burden of her mother." Breithbarth, supra, 245 N.W. at 484. Although the mother's parental rights and duties had not been terminated, for "all intents and purposes," the child had become "a member of the family of her aunt and uncle, and [was] treated as such." Breithbarth, supra.

The court noted that the terms "residence" and "legal residence" or "domicile" may have different meanings in determining various rights of individuals and that a "child may have a residence for school purposes distinct and separate from the domicile of the parent." Breithbarth, supra, 245 N.W. at 485. The court concluded:

"The term 'residing in the district' means what it says--a child who makes its home in that particular district, whether with its parents, or with other persons, when that place is the only home it has, a place to which she comes and where she remains when not 'called elsewhere for labor or special or temporary purpose.' " Breithbarth, supra, 245 N.W. at 487.

The court, however, was careful to point out that its interpretation of the phrase "residing in the district" would not "permit[ ] any child to come into a school district merely for the purpose of obtaining school privileges." Breithbarth, supra. If that were the...