Natrona County School Dist. No. 1 v. McKnight

• Citation: 764 P.2d 1039
• Decision Date: 15 November 1988
• Docket Number: Nos. 88-75,88-76,s. 88-75
• Parties: 50 Ed. Law Rep. 591 NATRONA COUNTY SCHOOL DISTRICT NO. 1, Petitioner, v. Arthur D. McKNIGHT and Carole Lee McKnight, parents and next friends of David McKnight, a minor; David McKnight; and The Wyoming State Department of Education, Respondents. WYOMING STATE DEPARTMENT OF EDUCATION, Petitioner, v. Arthur D. McKNIGHT and Carole Lee McKnight, parents and next friends of David McKnight, a minor; and David McKnight, Respondents.
• Court: United States State Supreme Court of Wyoming

Page 1039

764 P.2d 1039

50 Ed. Law Rep. 591

NATRONA COUNTY SCHOOL DISTRICT NO. 1, Petitioner, v. Arthur D. McKNIGHT and Carole Lee McKnight, parents and next friends of David McKnight, a minor; David McKnight; and The Wyoming State Department of Education, Respondents.

WYOMING STATE DEPARTMENT OF EDUCATION, Petitioner, v. Arthur D. McKNIGHT and Carole Lee McKnight, parents and next friends of David McKnight, a minor; and David McKnight, Respondents.

Nos. 88-75, 88-76.

Supreme Court of Wyoming.

Nov. 15, 1988.

Robert H. McCrary of Schwartz, Bon, McCrary & Walker, Casper, for petitioner Natrona County School Dist. No. 1 in No. 88-75.

Donald J. Sullivan of Sullivan and Zunker, Cheyenne, for respondents McKnight in Nos. 88-75 and 88-76.

Joseph B. Meyer, Atty. Gen. and Rowena L. Heckert, Sr. Asst. Atty. Gen., for respondent Wyoming State Dept. of Educ. in No. 88-75 and for petitioner in No. 88-76.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

URBIGKIT, Justice.

This appeal, third in sequence, considers the hearing officer determination that the local school district must provide compensatory education to a handicapped student for thirty-seven months beyond attained age of twenty-one years at an anticipated minimum cost of $113,208 per year, $9,434 per month or $310 per day for a total of $349,058 to be added to the previous tuition expenditure of $539,841, in addition to other amounts spent for the student's "regular" educational assistance by the Natrona County School District during his eleventh through twenty-first years. The child, born in 1966, was twenty-one on November 8, 1987 and has continued to receive the educational assistance and habilitation maintenance since that date, leaving about twenty-six months of compensatory education not yet provided for prospective costs in continuing controversy which will additionally total a cost to the state's educational system of not less than $245,284, plus the significant associated monitoring and supervisory expenses.

This court will follow Natrona County School District No. 1 v. Ryan, 764 P.2d 1019 (Wyo.1988) and Wyoming State Board of Education v. Cochran, 764 P.2d 1037 (Wyo.1988) in determining that entitlement to education ends at the twenty-first birthday, and reverse the bad faith decision of the hearing officer and award of compensatory education past the twenty-first birthday as a service that the Wyoming educational institutions lack constitutional and statutory authority to provide. Monahan v. School Dist. No. 1 of Douglas County, 229 Neb. 139, 425 N.W.2d 624 (1988). Nor are we unmindful in application of this case to the statutes and constitution of the State of Wyoming of what was said by the United States Supreme Court in Brown v. Board of Education of Within this complex of mixed issues of fact and law is the requirement to reconcile satisfactorily the "need for a free appropriate public education [for the student] with the need for the State to allocate scarce funds among as many handicapped children as possible," while at the same time maintaining the constitutional responsibility for a proper education for the 90% of the students who are not handicapped and the 89% of the handicapped students who are actually educable within their achievable capacity to become fully self-sustaining and participating adults. Age v. Bullitt County Public Schools, 673 F.2d 141, 145 (6th Cir.1982). ¹ Our standard of philosophical review is the issue of appropriateness as addressed in majority opinion by now Chief Justice Rehnquist in Board of Educ. of Hendrick Hudson Central School Dist. Bd. of Ed., Westchester County v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). We will also recognize in historical perspective the constitutional, ethical and proportionality issues which presented the endowment for congressional passage of the 1975 Education for All Handicapped Children Act (EHA). Comment, The Handicapped Child Has a Right to an Appropriate Education, 55 Neb.L.Rev. 637 (1976); Comment, Toward a Legal Theory of the Right to Education of the Mentally Retarded, 34 Ohio St.L.J. 554 (1973).

                Topeka, Kansas, 349 U.S. 294, 299, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II)--"School authorities have the primary responsibility for education * * *."   Upon reflection of this axiom, we apply the educational standard without inappropriate favor or discrimination in assessing and providing education for the handicapped as equally required for the non-discriminatory education for the unimpaired.  Levine v. State Dept. of Institutions and Agencies, 84 N.J. 234, 418 A.2d 229 (1980)
                

I. ISSUES

Issues enunciated for appeal by petitioner, Natrona County School District No. 1 (School District), include as dispositive subjects ² the contentions that the hearing officer erred:

[I]n granting DM compensatory education beyond the age of twenty-one (21) years because no child in Wyoming can be educated at public expense beyond the age of twenty-one (21).

[I]n determining that the prior administrative hearing regarding an appropriate educational placement and discussing the issues of due process violations, which was not appealed from by any party, did not create an estoppel nor was the same res judicata with respect to the present request for hearing involving educational deprivation, the claim for which arose out of the same issues determined in the prior administrative hearing.

Respondents, Arthur and Carole McKnight, father and stepmother (parents), of the involved child (DM), differently phrase these subjects as whether:

[I]n an appellate review of an agency hearing determination in which Petitioners offer no showing of lack of substantial evidence supporting the findings of fact about which they appeal, any consideration should or may be given to any other matter asserted by Petitioners.

[A] party who successfully urges a rule of law upon a tribunal, so that it becomes the law of the case, may subsequently appeal from the application of the very rule of law which it had urged.

Creating a collateral issue, the State Department of Education (State Board) appeared

both as a captioned party and by appellate brief after filing a separate petition for review as now combined in this appeal. At issue was whether the Department or Board was a proper litigant or even properly before the hearing officer because of the parents' contention of pleading default. Our present disposition will not require any separate controversy resolution between state educational agencies and DM. Initial litigants are the School District and DM who properly and adequately present the issues to be decided. The relationships between the Wyoming state educational agencies and the controlling features of state constitution and statute as related to the federal statutes were comprehensively considered in Ryan, 764 P.2d at 1027 and will not be further discussed. Compensatory education after the termination of the statutory age eligibility period is this case for present appeal.

II. FACTS

Extended review of this educational effort of the School District will be addressed, since the present compensatory education claim relates to contended denial of the required free appropriate public education in a confined period between 1979 and 1982 of thirty-seven months. At age twenty-one, DM was considered by expert testimony to have attained something less than a chronological two year old academic development as the result of fifteen years of education and habilitation efforts of the School District. The problems of this young man are sufficiently severe so that different experts did not even agree on a diagnosis of autism, mental retardation or a combination of both.

DM moved to Casper with his family in 1973 at the age of seven. He was placed in the A.J. Woods school as specially structured by the School District to be a high effort, heavily staffed facility for educable or trainable handicapped children, including both educable mentally retarded and trainable mentally retarded students, although primarily the latter, within the Casper school system's 13,000 students. The Woods school in Casper like Miller in Cheyenne was in the forefront of handicapped education for Wyoming public education as an advanced educational system which, commencing in the mid-1960's, undertook responsibility for trainable as well as educable students with either or both physical and mental impairment.

Despite all staff efforts within the special education environment at Woods, with apparent instigation of the parents, by 1977, factors of low attainment, advancing chronological age, and severity of problems induced the School District to place the child, then ten years old, in the Behavior Research Institute in Providence, Rhode Island (BRI), a high tuition private handicapped facility. About two years later with concern about cost, distance, and ultimate post-education transition, DM was moved from BRI and enrolled for maintenance-educational assistance in the Devereux Foundation, another private institution located in Scottsdale, Arizona.

It is out of this move from BRI to the Devereux Foundation that principal controversy has subsequently been generated through two separate administrative hearings, one in 1981 and this present proceeding now on appeal. After eighteen months, the Devereux Foundation, by maximum age limitation and disinclination to retain DM because of his condition, denied continued care. In November 1980, DM was returned to Casper for anticipated re-entry into Woods. This change was not acceptable to the parents who contended that residential placement was required. Evaluation for care, maintenance and education by the Wyoming State Training School, a state institution for handicapped, was made at the request of the School District resulting in the facility's conclusion that it was not organized to provide adequate education for an individual of the status of DM. From a...