Monahan v. School Dist. No. 1 of Douglas County, 87-890

• Decision Date: 08 July 1988
• Docket Number: No. 87-890,87-890
• Citation: 425 N.W.2d 624,229 Neb. 139
• Parties: , 47 Ed. Law Rep. 738 James H. MONAHAN, Appellant and Cross-Appellee, v. SCHOOL DISTRICT NO. 1 OF DOUGLAS COUNTY, Nebraska, also Known as Omaha Public Schools, Appellee and Cross-Appellant.
• Court: Nebraska Supreme Court

Page 624

425 N.W.2d 624

229 Neb. 139, 47 Ed. Law Rep. 738

James H. MONAHAN, Appellant and Cross-Appellee, v. SCHOOL DISTRICT NO. 1 OF DOUGLAS COUNTY, Nebraska, also Known as Omaha Public Schools, Appellee and Cross-Appellant.

No. 87-890.

Supreme Court of Nebraska.

July 8, 1988.

Syllabus by the Court

1. Appeal and Error. In dealing with a question of law on appeal, this court has an obligation to reach a conclusion independent from the conclusion reached by the trial court.

2. Statutes. We do not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Words should be given their ordinary meaning.

3. Statutes: Words and Phrases. The age of 21 years is reached upon a

person's 21st birthday, and, therefore, the terms "to age twenty-one years," "under the age of twenty-one years," "not to exceed twenty-one years of age," and "children who do not exceed twenty-one years of age" exclude any persons who have reached their 21st birthday.

4. Statutes: Legislature. The construction of a statute by those whose duty it is to enforce the statute, in which construction the Legislature has, by its continued noninterference for a number of years, acquiesced, will be approved unless, as thus construed, it contravenes some provision of the Constitution or is clearly wrong.

5. Statutes: Legislature: Presumptions. The Legislature is presumed to know the construction of its statutes by the executive departments of the state.

6. Constitutional Law. The Nebraska Constitution, as amended, must be read as a whole.

7. Constitutional Law. A constitutional amendment becomes an integral part of the Constitution and must be harmonized with all provisions.

8. Appeal and Error. Ordinarily, this court will dispose of a case on appeal on the theory on which it was presented in the lower court.

William L. Monahan, Omaha, for appellant and cross-appellee.

Barbara E. Person and John P. Heil, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, and Robert M. Spire, Atty. Gen., and Harold I. Mosher, Asst. Atty. Gen. for appellee and cross-appellant.

HASTINGS, C.J., and BOSLAUGH, WHITE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and ENDACOTT, District Judge.

HASTINGS, Chief Justice.

Plaintiff-appellant, James H. Monahan, filed this special education action with the State Department of Education, pursuant to Neb.Admin.Code tit. 92, ch. 55 (1985), contending his son Daniel J. Monahan is entitled to remain in special education programs conducted by the defendant-appellee school district until his 22d birthday. An education department hearing officer dismissed the petition, Daniel having reached the age of 21 years. The district court for Douglas County, following an appeal under Neb.Rev.Stat. § 43-666 (Reissue 1984) (recodified at Neb.Rev.Stat. § 79-3354 (Supp.1987)), affirmed, but permitted Daniel to stay in school pending the resolution of this appeal filed by James Monahan. The school district has cross-appealed.

Plaintiff assigns as error: (1) The judgment of the district court was not sustained by the evidence and was contrary to law; (2) the court erred in not finding that 20 U.S.C. § 1412(2)(B) (1982), Neb.Rev.Stat. § 43-646 (Reissue 1984) (recodified at Neb.Rev.Stat. § 79-3315 (Supp.1987)), and Neb. Const. art. VII, § 1, require that handicapped students remain in school district special education programs until their 22d birthday; and (3) the court erred in failing to find that a part of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1982), requires that school districts using federal funds for the education of persons over 21 years of age provide education for handicapped persons over 21 years of age.

The school district claims on cross-appeal that the district court erred in failing to rule that the automatic stay under 20 U.S.C. § 1415(e)(3) (1982), § 43-666(3), or Neb.Admin.Code tit. 92, ch. 55, § 010 (1985), was inapplicable and did not require the school district to maintain Daniel's educational placement beyond his 21st birthday regardless of the appeal.

Because the facts are not in dispute and we are faced only with a question of law, we have an obligation to reach a conclusion independent from the conclusion reached by the trial court. Boisen v. Petersen Flying Serv., 222 Neb. 239, 383 N.W.2d 29 (1986).

The facts necessary to understand the problem are set out in the narration which follows. Daniel Monahan, born February 16, 1966, is multihandicapped. He attends Spring Lake School, operated by the defendant school district.

This action began as a special education hearing brought pursuant to § 1415 (1982 & Supp.IV 1986), Neb.Rev.Stat. § 43-661 (Cum.Supp.1986) (recodified at Neb.Rev.Stat. § 79-3349 (Supp.1987)), and Neb.Admin.Code tit. 92, ch. 55 (1985), before the Nebraska Department of Education. James Monahan brought this action on behalf of his son Daniel against the school district, alleging that Daniel should be entitled to receive a free appropriate public education until he reaches his 22d birthday. The petition was dated February 4, 1987, 12 days before Daniel's 21st birthday.

On March 10, 1987, a hearing was held before hearing officer W. Russell Bowie. He found no authority for the district to provide special education programs beyond a student's 21st birthday, citing § 1412(2)(B), § 43-646 ("to age twenty-one"), Neb. Const. art. VII, § 11 ("under the age of twenty-one years"), and Neb.Admin.Code tit. 92, ch. 51, § 011.02B4 (1983) ("until the student's twenty-first birthday"). The order also relied upon two Nebraska statutes which have since been repealed: Neb.Rev.Stat. § 43-601 (Reissue 1984) (repealed April 8, 1987) ("not to exceed twenty-one years of age") and Neb.Rev.Stat. § 43-629 (Reissue 1984) (repealed April 8, 1987) ("children who do not exceed twenty-one years of age").

On September 11, 1987, the district court issued a memorandum order in which it affirmed the findings of the hearing officer and dismissed the petition. The plaintiff filed an amended motion for a new trial, to which the court responded by allowing Daniel to remain in school pending the outcome of this litigation. The court did not rule on the plaintiff's contentions under § 794 of the Rehabilitation Act of 1973, and refused to hear arguments on the statute.

In Nebraska, the school district's duty to provide special education programs to handicapped students arises under Neb.Rev.Stat. § 43-641 (Cum.Supp.1986) (recodified as amended at Neb.Rev.Stat. § 79-3320 (Supp.1987)), which provides in pertinent part: "It shall be the duty of the board of education of every school district to provide or contract for special education programs and transportation for all resident children who would benefit from such programs." The term "children" is defined in § 43-646, which provides in relevant part: "This act shall apply to any children from the date of diagnosis or the date of notification of the resident school district to age twenty-one." (Emphasis supplied.)

We have explained the correlation between federal and state law in the area of special education.

The laws governing the educational rights of the handicapped are found in both federal and state law. The Education for All Handicapped Children Act of 1975 (the Act), 20 U.S.C. §§ 1401 et seq. (1976), represents the federal body of law, and the care and education of handicapped children is provided for in Neb.Rev.Stat. §§ 43-601 et seq. (Reissue 1978) on the state level. The Act is a funding statute under which the federal government supplies financial assistance to the states for the education of handicapped children. By accepting these funds the state implicitly agrees to meet certain criteria and requirements.

Adams Central School Dist. v. Deist, 214 Neb. 307, 314, 334 N.W.2d 775, 780 (1983), cert. denied 464 U.S. 893, 104 S.Ct. 239, 78 L.Ed.2d 230.

Appellant makes much of the language of § 1412(2)(B) regarding qualification for federal assistance under the education of the handicapped act. Under the statute, the state must demonstrate that it has developed a plan assuring

a free appropriate public education will be available for all handicapped children between the ages of three and eighteen within the State not later than September 1, 1978, and for all handicapped children between the ages of three and twenty-one within the State not later than September 1, 1980, except that, with respect to handicapped children aged three to five and aged eighteen to twenty-one, inclusive, the requirements of this clause shall not be applied in any State if the application of such requirements would be inconsistent with State law or practice, or the order of any court, respecting public education within such age groups in the State....

(Emphasis supplied.)

The word "inclusive" tends to require that students be educated until they reach their 22d birthday. Yet this language is immediately followed by a provision deferring a decision on age restrictions to the states. This is made clear in 34 C.F.R. § 300.122 (1987). The requirement that free appropriate education be made available to all handicapped children age 3 through 21, § 300.122(a),

does not apply to a State with respect to handicapped children aged three, four, five, eighteen, nineteen, twenty, or twenty-one to the extent that the requirement would be inconsistent with State law or practice, or the order of any court, respecting public education for one or more of those age groups in the State.

§ 300.122(c).

An additional indication of the state's right to decide against providing educational services to handicapped students beyond their 21st birthdays appears at 34 C.F.R. § 300.300(b)(5) (1987):

A State is not required to make a free appropriate public education available to a handicapped child in one of these age groups [3, 4, 5, 18, 19, 20, or 21] if:

(i) State law expressly prohibits, or does not authorize, the expenditure of public funds to provide...