Moubry v. Independent School Dist. 696, Ely, Minn.

Citation9 F.Supp.2d 1086
Decision Date30 June 1998
Docket NumberNo. Civ. 5-96-266(RLE).,Civ. 5-96-266(RLE).
PartiesRita MOUBRY, on behalf of herself and her minor son, Joe Moubry, Plaintiff, v. INDEPENDENT SCHOOL DIST. 696, ELY, MINNESOTA, Defendant.
CourtU.S. District Court — District of Minnesota

Sonja D. Kerr, Matthew John Arthurs, Kerr Law Office, Inver Grove Heights, MN, William A. Welp, Welp Law Office, Inver Grove Heights, MN, for Rita Moubry.

Susan E. Torgerson, Charles E. Long, Timothy R. Palmatier, Knutson Flynn Deans & Olsen, St. Paul, MN, for Independent School Dist. No. 696, Ely, Minn.

MEMORANDUM ORDER

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to the consent of the parties, made in accordance with the provisions of Title 28 U.S.C. § 636(c), upon the Defendant's Amended Motion for Judgment on the Record, and its Motion for Summary Judgment.

A Hearing on the Motion was conducted on November 13, 1997, at which time, the Plaintiffs appeared by Sonja D. Kerr, Esq., and the Defendant appeared by Susan E. Torgeson, Esq. For reasons which follow, the Defendant's Motions for Judgment on the Record, and for Summary Judgment, are granted.

II. Factual and Procedural History

A. Procedural Posture. Pursuant to the Individuals with Disabilities Education Act ("IDEA"), Title 20 U.S.C. §§ 1400 et seq.,1 the Federal Government ensures that students with disabilities receive a "free, appropriate public education" ("FAPE"). Title 20 U.S.C. § 1400(c). The IDEA imposes extensive procedural and substantive requirements on participating State and local agencies, in order to safeguard a disabled student's right to FAPE. Among the procedural frameworks created by the IDEA, Section 1415(b)(2) requires an independent Due Process Hearing to be conducted by a State educational agency, so as to ensure that the parents of handicapped children will be afforded an opportunity to register their complaints concerning a public school's evaluation, or educational placement of their child. Pursuant to the IDEA, the State of Minnesota has promulgated Rules which create a procedure for the conduct of such Hearings. See, Minnesota Statutes Section 120.17, Subdivision 3b(e); Minnesota Rule 3525.4000.2 The process is intended to "guarantee parents both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decision they think inappropriate." Honig v. Doe, 484 U.S. 305, 311-12, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988).

At the pertinent times, the Plaintiff Joe Moubry ("Plaintiff") was a nine year old boy who suffers from verbal apraxia,3 whose mother, Rita Moubry ("Moubry"), has commenced a discrimination claim in her own right, and on his behalf. The Plaintiff, and his mother, are not unfamiliar with the IDEA process. This is the second lawsuit which has followed State administrative proceedings concerning the Plaintiff's education. See generally, Moubry v. Independent Sch. Dist. No. 696 (Ely), 951 F.Supp. 867 (D.Minn.1996) ("Moubry I"); Moubry v. Independent Sch. Dist. No. 696 (Ely) ("Moubry II"), Civ. No. 5-95-186(RLE), slip op. (D.Minn., May 13, 1997) (Order granting Defendant's Motion for Judgment on the Record).

At the first level of the administrative process, upon which this action is predicated, a Hearing Officer ("HO"), who was appointed by the Minnesota Commissioner of Education, heard three days of testimony, and ruled that the School District had provided the Plaintiff with FAPE, as required by the IDEA, but directed the District to provide a paraprofessional, as needed, to assist in providing educational support for the Plaintiff. The Plaintiff appealed this determination to a Hearing Review Officer ("HRO"), who was also appointed by the State Commissioner of Education. The HRO conducted an administrative review, considered additional evidence, and affirmed the HO's decision in its entirety.

On September 4, 1996, the Plaintiff filed this action, which seeks to overturn the HRO's decision, and which also alleges that the Defendant violated Section 504 of the Rehabilitation Act, Title 29 U.S.C. § 794; discriminated against him on the basis of his learning disability under the Americans with Disabilities Act, Title 42 U.S.C. §§ 12101-12213 ("ADA"), and the Minnesota Human Rights Act ("MHRA"), Minnesota Statutes Section 363.01-14; failed to adhere to the Minnesota Education Laws, Minnesota Statutes Section 120.17, Subdivisions 3a(1) and (3), and Section 120.185; and failed to promptly respond to a request for information, in violation of the Minnesota Government Data Practices Act ("MGDPA"), Minnesota Statutes Sections 13.01 et seq. As a prelude to our discussion of the merits of these claims, we summarize the operative facts.

B. Factual Background.

The Plaintiff was first diagnosed with verbal apraxia in July of 1992, when he was three years old, and after his mother became concerned that his speech was not developing normally. Among other symptoms, apraxia adversely impacts upon the Plaintiff's speech communication abilities. As a consequence, on September 22, 1992, the Plaintiff was referred to the School District for an early childhood development assessment. Based upon this assessment, as well as treatment notes from the University of Minnesota Clinic, an Individual Education Plan ("IEP")4 was developed for the Plaintiff, with the participation of Moubry, who was accompanied by her legal advocate, Linda Bonney, and a variety of School District representatives.

As provided in the first IEP, which Moubry signed on November 18, 1992, the Plaintiff received 75 minutes speech therapy, 35 minutes of occupational therapy, and 270 minutes of early childhood special education, on a weekly basis. Moubry II, supra at 3. This IEP has been reviewed, and modified, on several occasions in an effort to tailor it to the Plaintiff's needs.

Since the first IEP, Moubry has frequently contested, on her son's behalf, the Defendant's efforts to facilitate an education appropriate to the Plaintiff's needs, and those confrontations have been detailed in this Court's prior Orders. In the midst of this contentiousness, the Plaintiff left Ely to live with his aunt, in Madison, Wisconsin, and he commenced the 1995-96 school year in attendance at the Madison public schools. See, Moubry II, supra at 17.

In January of 1996, the Plaintiff returned to Ely and, on January 5, 1996, having learned of the Plaintiff's return, the District's Special Education Director, Francis Spencer ("Spencer"), sent Moubry a brief letter which stated that he would like to assist in arranging programs, and services, for the Plaintiff, but that he had been unable, thus far, to contact her by telephone. He requested that Moubry telephone him in order to make those arrangements. Letter from Spencer to Moubry of 1/5/96, Certified Inventory Document Number (hereinafter "CI") 10. On January 16, 1996, Moubry contacted the School District, by hand delivering a note to its Superintendent, Terrence K. Merfeld ("Merfeld"), which advised that she would like to re-enroll the Plaintiff in the Public Elementary School in Ely, and requested the earliest starting date, as well as a description of the educational program that would be provided for her son. Note from Moubry to Merfeld of 1/16/96, CI 196. The Plaintiff's counsel also wrote a similar letter, asking what services would be provided to the Plaintiff, if he were to enroll in the District. Letter from Kerr to Long, CI 125.

The Principal of Washington Elementary, Robert Jalonen ("Jalonen"), informed Moubry, on January 22, 1996, that the Plaintiff could start school as soon as Moubry signed the required enrollment forms. Letter from Jalonen to Moubry of 1/22/96, CI 198. In response to Moubry's request for information concerning the services that would be provided to the Plaintiff, Jalonen explained that the School District planned to "follow usual procedure which [wa]s to request his former school to forward his school records, including his IEP to [the School District]" and, "[u]pon receipt of the records [the School District] w[ould] schedule a staffing, at [Moubry's] convenience, to review the IEP and its implementation." Letter from Jalonen to Moubry, CI 198. Moubry refused to enroll her son in school unless she knew, in advance, what program the Plaintiff would enter, and she kept her son out of school for another week. Meanwhile, the School District personnel obtained the Plaintiff's most recent IEP, which had been developed by the Madison School District on January 23, 1995. By letter dated January 30, 1996, Spencer informed Moubry that services — premised upon the Madison IEP — would be implemented unless she elected to have a new IEP implemented. Letter from Spencer to Moubry of 1/30/95, CI 199. The Madison IEP provided for the supplementation of the Plaintiff's regular education program with an orthopedic impairment program, speech and language training, and physical therapy and occupational therapy, but it did not prescribe academic assistance, or transportation, as related services. Level II Findings of Fact5 ¶ 3; Madison IEP of 1/23/95, CI 222.

During the Plaintiff's first week of school, Cheryl Beymer ("Beymer"), who was the first grade teacher, inventoried his academic skills, and concluded that he lagged significantly behind the other first graders, and appeared to be on a par with his classmates' abilities as they existed at the beginning of the school year. Level I Hearing Transcript ("Tr.") at 453-54, 460, CI 273. Beymer discussed this problem with Jalonen, who also served as Washington Elementary's director for Title One services, which is a regularly provided educational program. Tr. at 552, CI 273. The two decided that Title One services should be provided to the Plaintiff, if Moubry agreed, because: 1) the madison IEP, which was...

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