Magyar v. Tucson Unified School Dist.

• Decision Date: 14 March 1997
• Docket Number: Civ. No. 96-448 TUC RMB.
• Citation: 958 F.Supp. 1423
• Parties: Jeremy MAGYAR, by and through his father, Steven Magyar, Plaintiff, v. TUCSON UNIFIED SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — District of Arizona

958 F.Supp. 1423

Jeremy MAGYAR, by and through his father, Steven Magyar, Plaintiff, v. TUCSON UNIFIED SCHOOL DISTRICT, Defendant.

Civ. No. 96-448 TUC RMB.

United States District Court, D. Arizona.

March 14, 1997.

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ORDER

BILBY, Senior District Judge.

I. Introduction

This dispute arises from the successful efforts of Tucson Unified School District ("TUSD" or the "District") to expel Plaintiff Jeremy Magyar for bringing a knife to school. At the time of his expulsion, Jeremy qualified for special education services under the Individual with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. (Supp.1996). After unsuccessfully appealing the District's expulsion decision, Steven Magyar on behalf of Jeremy, brings this suit against TUSD challenging the hearing officer's conclusion, its reliance on Doe v. Maher, infra, and the District's expulsion policy as it relates to handicapped students. The Magyars seek: (1) a declaration of rights; (2) to enjoin the defendant from excluding him the educational services; and (3) to compel the defendant to provide him with compensatory education. TUSD objects to any relief asserting that its expulsion policy comports with the IDEA.

Before the Court today are the parties' cross-motions for summary judgment. The Court granted the United States leave to file a brief as amicus curiae on behalf of the United States Department of Education. Upon review of the administrative record the pleadings submitted and relevant law, the Court concludes that TUSD must provide educational services to handicapped students who are expelled for reasons found to be unrelated to their handicapping condition. Additionally, TUSD violated the IDEA when it suspended Jeremy for 175 days without providing educational services as required by Jeremy's Individualized Education Plan ("IEP"). Finally, as a direct result of TUSD's conduct, Jeremy is presently being denied a free and appropriate education as mandated by the IDEA.

II. Standard of Review

Judicial review under the IDEA provides that "the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2). This is contrary to the usual judicial review which is limited to the record below and requires the court to accord agency actions with great deference. Ojai Unified Sch. Dist v. Jackson, 4 F.3d 1467, 1471 (9th Cir.1993), cert. denied, 513 U.S. 825, 115 S.Ct. 90, 130 L.Ed.2d 41 (1994).

Section 1415(e)(2) does not, however, invite the reviewing court to "substitute [its] own notions of sound educational policy for those of the school authorities." Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982). Thus, the court should give deference to the administrative findings of the hearing officer when they are thorough and careful. Union School Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir.), cert. denied, 513 U.S. 695, 115 S.Ct. 428, 130 L.Ed.2d 341 (1994). The reviewing court should also "accord deference to the policy decisions of a school district when it is acting within the bounds of federal and state law." Id.

The Ninth Circuit in Union School Dist. v. Smith, stated that a federal court sitting in review of a school district's hearing officer's decision under the IDEA is a two-step process:

First, the court must determine whether the rigorous procedural requirements of IDEA have been met.

Second, the court must determine whether the state has met the substantive component of the IDEA—the requirement that the state provide an `appropriate' education.

Id. (citing Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3050-51).

III. Undisputed Facts and Procedural Background

The relevant facts are not in dispute. Jeremy is a fifteen-year-old child who qualifies for special education services under the IDEA. His father, and legal guardian, Steven Magyar, lives within the attendance boundaries of TUSD. Jeremy attended Secrist Middle School from January 1995 through September 21, 1995. His last agreed-upon IEP was drafted on February 13, 1996. That Plan is effective for one calendar year and indicates that Jeremy is to receive 825 minutes of specialized instruction per week. His program is described as "Emotional Disabled/Cross Categorical."

On September 21, 1995, at the age of fourteen, Jeremy gave an assault-style knife to another student who then put the knife in his own pocket. When questioned by the assistant principal, the student produced the knife and said it belonged to Jeremy. Jeremy readily admitted ownership, but when asked why he brought it to school, Jeremy repeatedly said, "I don't know." The knife was not brandished or used in any threatening way.

Bringing a knife to school violated TUSD's Guidelines for Student Rights and Responsibilities, Code #31—"Possession and/or Concealment of Weapon." Consequently, Jeremy received an immediate short-term suspension, effective September 21, 1995 to October 4, 1995. He was also arrested by the Tucson Police Department for possession of a weapon on a school campus.

On September 22, 1995, pursuant to District policy, a "knowledgeable group" of District personnel met to determine if Jeremy's misconduct was related to his handicapping condition. This group consisted of the assistant principal, special education teacher, regular education teacher, and school psychologist. Neither Jeremy, nor his father were given an opportunity to participate at this meeting. By notice of September 25, 1995, the District informed Steven Magyar of its decision that Jeremy's conduct was unrelated to his disability. The notice also informed Mr. Magyar that if he disagreed with the determination, he could request a due process hearing. No such hearing was requested.

On September 29, 1995, a discipline hearing was conducted. By letter dated October 11, 1995, the hearing officer announced her decision to extend Jeremy's suspension for a total of 175 days and to recommend that Jeremy be expelled.

The District did not convene an IEP meeting, nor did it provide any educational services to Jeremy during the entire period of his long-term suspension. From October 2, 1995 until November 29, 1995, Jeremy worked in the Graffiti Abatement Project under the supervision of a Pima County Juvenile Court surveillance officer. There is no educational component associated with that project.

On November 11, 1995, the Governing Board met in executive session to consider the recommendation to expel Jeremy. The Governing Board referred the matter to a hearing officer for report and recommendation. Mr. Magyar was notified that an expulsion hearing was to be held on December 12, 1995.

After that hearing at which Jeremy's Court Appointed Special Advocate and Jeremy attended, the hearing officer recommended that Jeremy be expelled until the second semester of the 1996-97 school year. The hearing officer also recommended the following conditions be fulfilled prior to Jeremy's readmission:

1. That he has complied with all terms of his probation related to his arrest for this incident ...;

2. That he has completed an alternative education program outside of TUSD during each of the Spring 1996 and Fall 1996 semesters, or alternatively, that he has, alternatively, completed 20 hours of employment or community services during each week of those school semesters.

Index to Administrative Record Item No. 4, Exhibit J (hereinafter "Index"). The hearing officer recommended that the District evaluate Jeremy's special education program in January 1997. In the notice to Mr. Magyar, the expulsion hearing officer provided the father with a list of alternative education programs as a convenience. This Report and Recommendation indicates that there may be a cost involved in the suggested programs. The document does not indicate that the District would assume the costs of these alternatives. The District also did not take any action to enroll Jeremy in an alternative program. On January 23, 1996, the Governing Board adopted the expulsion hearing officer's Report and Recommendation and voted to expel Jeremy.

The District did not convene an IEP meeting since it is the District's written policy that educational services may be discontinued for children with disabilities who are long-term suspended or expelled from school for conduct unrelated to the disability. TUSD's long-term suspension/expulsion policy states in relevant part:

If the knowledgeable group determines that the behavior is NOT a result of a student's handicapping condition, educational services may be interrupted. This means that the student can be treated exactly as though s/he were a non-special education child.

Index, Exhibit P, "Discipline, Suspension, Expulsion For Special Education Students" at 2 (emphasis in original).

On January 31, 1996, Steven Magyar made a written request for a special education due process hearing. The District convened an IEP meeting on February 13, 1996, for the stated purpose of "insur[ing] that when Jeremy returns to school his IEP would still be in compliance and he could still receive services without interruption." The proposed IEP includes an initiation date of February 13, 1996. The IEP states, however, that the IEP goals and objectives will not be "attempted this 1995-96 school year due to a long term suspension of Jeremy." Index at Item 4, Exhibit M. The proposed IEP offers no alternative educational program for Jeremy during his expulsion.

Jeremy attended Home Quest, a private non-profit alternative day school operating under the auspices of Vision Quest, from approximately late January to early May 1996. His placement was arranged through and the costs underwritten by the Pima County ...