LENHOFF BY LENHOFF v. Farmington Public Schools, 87-CV-71807-DT.

• Decision Date: 02 March 1988
• Docket Number: No. 87-CV-71807-DT.,87-CV-71807-DT.
• Parties: Adam LENHOFF, by his parents, Saul and Rochelle LENHOFF, Plaintiff, v. FARMINGTON PUBLIC SCHOOLS; Mary Lou Ankele, in her official capacity as Acting Superintendent of Farmington Public School District; and the State Board of Education, Defendants.
• Court: U.S. District Court — Western District of Michigan

680 F. Supp. 921

Adam LENHOFF, by his parents, Saul and Rochelle LENHOFF, Plaintiff, v. FARMINGTON PUBLIC SCHOOLS; Mary Lou Ankele, in her official capacity as Acting Superintendent of Farmington Public School District; and the State Board of Education, Defendants.

No. 87-CV-71807-DT.

United States District Court, E.D. Michigan, S.D.

March 2, 1988.

Patricia A. Stamler, Detroit, Mich., for plaintiff.

Paul J. Zimmer, Lansing, Mich., for defendant State Bd. of Educ.

J. Kingsley Cotton, III, Bloomfield Hills, Mich., for defendant Ankele and Farmington Schools.

MEMORANDUM OPINION AND ORDER

ZATKOFF, District Judge.

Before the Court are Motions for Summary Judgment filed by the Plaintiff and the Defendants Farmington Public Schools (FPS) and Mary Lou Ankele. The parties have responded and this matter is ripe for disposition.

Summary judgment is appropriate where no genuine issue of material fact remains to be decided and the moving party is entitled to judgment as a matter of law. Blakeman v. Mead Containers, 779 F.2d 1146 (6th Cir.1986); Fed.R.Civ.P. 56(c). In applying this standard, the Court must view all materials offered in support of a motion for summary judgment, as well as all pleadings, depositions, answers to interrogatories, and admissions properly on file in the light most favorable to the party opposing the motion. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed. 2d 176 (1962); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979), cert. denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979). In deciding a motion for summary judgment, the Court must consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. 247, 106 S.Ct. at 2512.

I. FACTS

The facts stated herein are a combination of Plaintiff's and Defendant FPS' briefs in support of their motions.

The Education for the Handicapped Act (EHA), 20 U.S.C. § 1401 et seq., creates a comprehensive scheme assuring that handicapped children receive a "free appropriate public education." 20 U.S.C. § 1401. A "free appropriate public education" includes "special education" and "related services." No state or local educational agency may receive Federal funding unless it provides the handicapped with this opportunity. 20 U.S.C. § 1412(1). Federal regulations propounded pursuant to the EHA appear at 34 CFR § 300 et seq. The Michigan Mandatory Special Education Act (MMSEA), M.C.L.A. § 380.1701, et seq. and the Michigan Administrative Rules for Special Education, 1979 A.C. § 340.1701 et seq., have been amended to conform to Federal requirements.

The genesis of the right to education for students with handicapping conditions began with the enactment of the EHA. 20 U.S.C. § 1401, et seq. Michigan enacted MMSEA to address the needs of students with handicaps. M.C.L.A. § 380.1701, et seq. The statutes require schools to provide each student with handicaps a free appropriate public education (hereafter FAPE) designed to meet their unique needs. 20 U.S.C. § 1401(18); 34 C.F.R. 300.4; and M.C.L.A. § 380.1701(a); 380.1711(1)(a); 380.1751(1). (Program must "maximize potential").

An Individualized Education Program (IEP) must be developed for each handicapped child. It describes the educational needs of the child and the specially designed instruction and related services to be utilized in maintaining those needs. 20 U.S.C. § 1401(19). The IEP is developed at a meeting of the child's Individualized Educational Planning Committee (IEPC) along with the child's parents or other representatives. EHA also imposes detailed procedural requirements upon states receiving Federal funds in accordance with the provisions of the Act. A parent, school district or state department of education may initiate a due process hearing before an impartial hearing officer regarding the issues of identification, evaluation, special education program, educational placement of the person or the provision of special education programs and services. 1979 A.C. § 340.1724.¹ Any party aggrieved by the findings and decision of a local hearing officer may appeal to the Michigan State Department of Education which appoints a state level review officer. 1979 A.C. § 340.1725. After the reviewing officer makes his findings and reaches a decision, a party may seek review by bringing a civil action in any court of competent jurisdiction. 20 U.S.C. § 1415(b), 1415(e); 1979 A.C. § 340.1725a.

Plaintiff became a resident within Defendant FPS' district in 1979. During the school year of 1984 through 1985, Plaintiff attended seventh and eighth grade at O.E. Dunckel Middle School. He was a recipient of special education services under the identification of emotional impaired ("EI").

Beginning in November of 1984 and up to including May of 1985, Plaintiff exhibited increasing severity of emotional problems; i.e., loud humming, disruptive comments, oppositional behavior, inappropriate sexual behavior and significant decline in academic achievement. Plaintiff's teacher made numerous contacts with Plaintiff's parents to discuss his increased behavioral problems in school. Also, Defendant FPS's assistant principal at Dunckel Middle School contacted Plaintiff's parents to discuss Plaintiff's behavioral problems. Ultimately, in April, 1985, Defendant FPS suspended Plaintiff.

In May of 1985, Defendant FPS convened an IEPC for Plaintiff. On May 30, 1985, Farmington completed Plaintiff's IEPC for his program's annual review. 1979 A.C. § 340.1722E(1). Each year, Farmington conducts individual IEPC meetings for each of its special education students. Also, an annual review IEPC is held. Further, every three years each student receives a comprehensive re-evaluation prior to his IEPC. 1979 A.C. § 340.1722d. Plaintiff's last three year re-evaluation was held in March of 1983. In May, 1985, Plaintiff's parents signed their approval to his annual review IEPC, indicating they participated in the IEPC, understood it and indicated their satisfaction. The IEP provided:

A. Up to five hours of special education services comprising of: social work services; EI teacher consultant; and speech and language; and

B. Up to 25 hours of regular education.

In September of 1985, Plaintiff began the eighth grade at O.E. Dunckel Middle School with the program prescribed in the May, 1985 IEPC. He was suspended for three days commencing October 9, 1985, for swearing in school. At that point, Plaintiff had been present in school only 17 days of the school year and had been absent eight days. Plaintiff's resource room teacher prepared a progress and performance report regarding Plaintiff. The report stated that Plaintiff continued to display inappropriate behavior patterns.

Plaintiff was scheduled to return to school on October 14, 1985. However, on that date, Plaintiff was hospitalized at Kingswood Hospital for a suicide attempt.

Plaintiff never returned to O.E. Dunckel Middle School. Instead, Plaintiff's parents consulted with Dr. Barry Tigay, Plaintiff's treating psychologist, Ms. Marilyn Wineman, MSW, ACSW, child placement consultant, and Dr. Pasternak, Plaintiff's psychiatrist at Kingswood Hospital, to discuss the appropriate program and placement for Plaintiff. They recommended that Plaintiff be placed in a year round private residential placement with a highly structured environment, and with appropriate related services to meet Plaintiff's unique needs.

Consequently, on October 15, 1985, Plaintiff's parents applied for Plaintiff's admission to Devereux Foundation. Devereux is an educational and therapeutic residential facility located in Devon, Pennsylvania. Plaintiff was originally admitted in the Brook-Brier Program at Devereux but he has been transferred to the Manor High School Program of the Devereux Foundation's Boyd Campus, located in Devon, Pennsylvania. On November 4, 1985, Plaintiff's parents unilaterally placed him in the Devereux Foundation. There is no dispute that school authorities were not consulted regarding this placement, nor was an IEPC requested to discuss a change in Plaintiff's educational plan. The school authorities assert that they did not learn of this placement at Devereux Foundation until an IEPC was convened at the parents' request on November 20, 1985. The parents' request for the November 20, 1985 IEPC came after Plaintiff was placed in Devereux and before the school district could evaluate Plaintiff for a possible change in program.

At the November 20, 1985 IEPC, Plaintiff's parents announced that Plaintiff had been placed in the Pennsylvania school. They charged the school district with failing to provide a proper education for Plaintiff and further asked the school district to pay the cost of Devereux, $36,000 per year. They said he required placement in a 24-hour residential facility and that only Devereux met his needs. The IEPC was adjourned so Plaintiff's parents could submit data regarding Plaintiff's condition. The IEPC was set for reconvening on a number of dates, but each date was postponed because the data had not been supplied to the school officials.

Plaintiff asserts that on or about December 18, 1985, Defendant Ankele, on behalf of Defendant FPS, received the following records from Devereux: (1) psychological evaluation, (2) achievement testing, and (3) physical exam. Additionally, prior to the reconvened IEPC meeting of February 13, 1986, Defendant FPS's staff of Ms. Aldrich, Mr. Daoust, Mr. Miner, and Mr. Skowronski, met and prepared a Multidisciplinary Evaluation Team report for Plaintiff.

In February of 1986, Plaintiff's parents informed the school district that they could wait no longer for additional data to be sent and requested an IEPC be convened on February 13, 1986. Defendant Ankele arrived at the IEPC meeting with a completed IEP form. Addi...