Monahan v. State of Neb.
| Decision Date | 16 May 1980 |
| Docket Number | Civ. No. 80-0-164. |
| Citation | 491 F. Supp. 1074 |
| Parties | James J. MONAHAN, as next friend of Daniel J. Monahan, and George Rose, as next friend of Marla Rose, Plaintiffs, v. STATE OF NEBRASKA; Charles Thone, Governor of the State of Nebraska; Board of Education, School District # 1, Douglas County, Nebraska; Owen Knutzen, Individually, and as Superintendent of the School District # 1, Douglas County, Nebraska; Dale Samuelson, Individually, and as Assistant Superintendent in Charge of Special Education of School District # 1, Douglas County, Nebraska; Anne Campbell, Commissioner of Education for the State of Nebraska; State Board of Education, Walter M. Thompson, Individually, and as a Member of the State Board of Education; Margaret Lockwood, Individually, and as a Member of the State Board of Education; Frank E. Landis, Individually, and as a Member of the State Board of Education; Don M. Lienemann, Individually, and as a Member of the State Board of Education; Dorothy Creigh, Individually, and as a Member of the State Board of Education; Arlene E. Hart, Individually, and as a Member of the State Board of Education; William C. Ramsey, Individually, and as a Member of the State Board of Education; Dorothy Beaver, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska; June Bostwick, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska; Walter Calinger, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska; Pat Geringer, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska; Leo Hoffman, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska; Gaynelle Goodrich, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska; Ruth Thomas, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska; Frank Bogard, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska; Ron McGruder, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska; James A. Monaghan, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska; James Beutel, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska; and Leo Kastrick, Individually, and as a Member of the Board of Education, School District # 1, Douglas County, Nebraska, Defendants. |
| Court | U.S. District Court — District of Nebraska |
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Mino St. Lucas, Omaha, Neb., for plaintiff, Monahan.
Quintin S. Hughes, Bellevue, Neb., for plaintiff, Rose.
Harold Mosher, Asst. Atty. Gen., State of Nebraska, Lincoln, Neb., John P. Heil, Omaha, Neb., for defendants.
Under the Education of All Handicapped Children Act of 1975, states which accept federal assistance for the education of the handicapped are required to provide the parents of handicapped children with certain procedural safeguards. Included among these safeguards is the requirement that a person aggrieved by the educational placement of a handicapped child "shall have an opportunity for an impartial due process hearing" to determine the propriety of the school district's placement of the child. 20 U.S.C. § 1415(b)(2).
The primary issue raised by the plaintiffs' complaint is whether Nebraska statutory law conforms with the procedural requirements of the federal act. This issue focuses on L.B. 871, which was enacted by the Nebraska Unicameral in an effort to comply with the procedures outlined in the Act. See L.B. 871, §§ 4-11, 1978 Neb.Laws 887-89 (codified in Neb.Rev.Stat. §§ 43-661 et seq.). The plaintiffs contend that L.B. 871 is not consistent with federal law because the Nebraska statute fails to provide parents with an impartial due process hearing. Specifically, the plaintiffs allege that the power of the State Commissioner of Education under L.B. 871 to review the decision made in a due process hearing prevents such hearings from being impartial under federal law.
The matter presently before the Court is the plaintiffs' request for a preliminary injunction.
Much of the preliminary relief sought by the plaintiffs is apparently designed to protect those persons whom the plaintiffs wish to represent through a class action suit. To date, the plaintiffs have not requested that this Court certify this lawsuit as a class action. Without class action certification, the Court cannot grant the plaintiffs' request for an injunction to protect persons not presently before the Court. Thus, the Court shall deny plaintiffs' request for a preliminary injunction to the extent that the request seeks protection for persons not named in this lawsuit.
With respect to the named plaintiffs, the Court shall consider the merits of the plaintiffs' request for a preliminary injunction. The following discussion constitutes this Court's findings of fact and conclusions of law on this issue. However, any legal or factual determination reached herein is made solely for the purpose of resolving the issue of whether the plaintiffs are entitled to preliminary relief. Such determinations do not constitute a final decision on the merits of plaintiffs' complaint.
The law governing the educational rights of handicapped children is a hybrid, whose elements are found in both federal and state statutory law. A brief review of these statutes will aid in understanding the factual setting of this case.
The principal federal statute involved in the instant case is the Education of All Handicapped Children Act of 1975 the Act. 20 U.S.C. § 1401 et seq. The Act is essentially a funding statute through which the federal government provides financial assistance to the states for the education of handicapped children. A state, however, is not entitled to receive these funds unless it fulfills certain prerequisites.
Among the prerequisites to funding is the requirement that the state provide procedural safeguards to protect the educational rights of handicapped children. The Act does not specifically mandate the procedural format which must be adopted by a state in order to qualify for funding. The Act, however, does require that the state procedure provide certain minimum safeguards. Within the limits of these minimum standards, the state may adopt a procedural structure suited to its needs and particular institutional setting.
For the purposes of this opinion, the minimum safeguards required by the Act may be summarized as follows. The parents of a handicapped child must be given prior written notice of any proposed change in the educational placement of their child. 20 U.S.C. § 1415(b)(1)(C). If at any time the parents become dissatisfied with any matter relating to the educational placement of their child, they must be given an opportunity to present such complaints. 20 U.S.C. § 1415(b)(1)(E). Once a complaint is filed, the state procedure must provide the parents with an opportunity for an impartial due process hearing. These due process hearings may be held at either the state or local level, whichever is specified in the state law. 20 U.S.C. § 1415(b)(2). The Act, however, does specifically require that "no hearing conducted pursuant to the requirements of this paragraph shall be conducted by an employee of such agency or unit involved in the education or care of the child." 20 U.S.C. § 1415(b)(2). Any decision made in an impartial hearing held at the state level is final except for judicial review of such decision in a court of competent jurisdiction. 20 U.S.C. § 1415(e)(1).
In response to this federal legislation, the Nebraska Unicameral enacted L.B. 871, which created a procedural framework designed to make Nebraska eligible for funding under the Act. Nebraska Legislative Floor Debate on L.B. 871, 85th Legis. 2d Sess. 08706, 09246 (1978) (statements of Senator Koch). The procedure adopted by the Unicameral permits the parent of a handicapped child to initiate a hearing on matters related to the child's placement. Neb.Rev.Stat. § 43-661 (Reissue 1978). These hearings are conducted at the state level by the Nebraska Department of Education, using hearing officers. Under the Nebraska statute, the hearing officer is required to make a hearing report containing a decision based on the officer's factual findings. Neb.Rev.Stat. § 43-662. Upon receipt of the hearing officer's report, the state statute directs that the Commissioner of Education, after reviewing the report, "shall then recommend or direct such action as may be necessary." Neb.Rev.Stat. § 43-662.
The preceding discussion summarizes the state and federal law involved in this litigation. The next matter which must be considered is the specific factual setting of each plaintiff's claim.
Plaintiff, George Rose, is the father of Marla Rose, a multi-handicapped child. Prior to the 1978-79 school year, Marla attended classes at Beveridge Junior High School. This school is part of the Omaha School District, a defendant in this action. While attending Beveridge, Marla's school day was divided between special education classes and regular classes. Thus, at Beveridge, she was able to interact with non-handicapped children of her own age group during the course of a normal school day.
In June of 1978, the Roses received written notice from the Omaha School District of a proposed change in Marla's educational placement. The district's proposed change would have placed Marla in the Nebraska School for the Deaf on a residential basis. This change was motivated by the district's assessment that the Beveridge placement no longer provided Marla with an appropriate education. At...
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