Pachl ex rel. Pachl v. Seagren

• Citation: 373 F.Supp.2d 969
• Decision Date: 20 June 2005
• Docket Number: No. Civ. 03-6501DSDSRN.,Civ. 03-6501DSDSRN.
• Parties: Sarah PACHL, a minor, by her parents Kevin and Suzanne PACHL, Plaintiffs, v. Alice SEAGREN, in her capacity as Commissioner of the Minnesota Department of Education, and School Board of Independent School District No. 11, Anoka-Hennepin, Defendants.
• Court: U.S. District Court — District of Minnesota

373 F.Supp.2d 969

Sarah PACHL, a minor, by her parents Kevin and Suzanne PACHL, Plaintiffs, v. Alice SEAGREN, in her capacity as Commissioner of the Minnesota Department of Education, and School Board of Independent School District No. 11, Anoka-Hennepin, Defendants.

No. Civ. 03-6501DSDSRN.

United States District Court, D. Minnesota.

June 20, 2005.

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Judith A. Gran, Public Interest Law Center of Philadelphia, Philadelphia, PA and Sonja D. Kerr, Disability Law Center of Alaska, Anchorage, AK, for plaintiffs.

Nancy E. Blumstein, Catrina O. Sapp, Sonja J. Guggemos, and Ratwik, Roszak & Maloney, P.A. Minneapolis, MN, for Independent School District No. 11.

Martha J. Casserly, Minnesota Attorney General's Office, St. Paul, MN, for Alice Seagren.

ORDER

DOTY, District Judge.

This matter is before the court upon the motion of defendant Independent School District Number 11 for judgment on the administrative record and defendant Alice Seagren's motion for summary judgment. Based upon a review of the file, record and proceedings herein, and for the reasons stated, the court grants the motions.

BACKGROUND

Plaintiffs Kevin and Suzanne Pachl bring this action pursuant to 20 U.S.C. § 1415(i)(2) on behalf of their minor daughter, Sarah, to obtain judicial review of the result reached in an "impartial due process hearing" conducted under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-87. Defendant Independent School District Number 11 ("the District") is Sarah's school district and the "local educational agency" responsible for her education under the IDEA. See 20 U.S.C. § 1401(15). Defendant Alice Seagren is commissioner of the Minnesota Department of Education ("MDE"), which is the "state educational agency" responsible for supervising the District. See 20 U.S.C. § 1401(28).¹

Congress enacted IDEA "to ensure that all children with disabilities have available to them a free appropriate public education (`FAPE') that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. § 1400(d)(1)(A). Sarah suffers from intractable epilepsy, Dandy-Walker Syndrome and other developmental disabilities. As a "child with a disability," the District educates Sarah according to an "individualized education program," or "IEP." 20 U.S.C. §§ 1412(a)(4) & 1413(a)(1). The IEP is a written statement of, among other things, the special education services to be provided to Sarah. 20 U.S.C. § 1414(d). Sarah's IEP is formulated by an "IEP team," which consists of her parents, teachers and specialists. 20 U.S.C. § 1414(d)(1)(B).

Plaintiffs requested an administrative hearing to resolve certain disputes regarding Sarah's education and the District's observance of the procedural requirements of IDEA. The matters included (1) whether extended school year ("ESY") services provided to Sarah in 2003 were appropriate, (2) whether the District provided plaintiffs with proper written notice regarding Sarah's IEP in the fall of 2003, (3) whether the District properly observed procedural requirements in conducting the IEP team meeting which produced Sarah's IEP in the fall of 2003 and (4) whether Sarah should be classified as deaf or hard of hearing ("D/HH") and receive services from a D/HH teacher. On September 12, 2003, defendant MDE appointed Independent Hearing Officer ("IHO") Roberta A. Kreb to hear the case. The hearing was held on September 22 through September 24, 2003. On October 17, 2003, the IHO issued a written decision holding that the District had provided Sarah with FAPE and that any violations of IDEA's procedural requirements had been harmless.

The IHO also held that Sarah should not be designated as D/HH because of insufficient evidence. At the hearing, the District's audiologist had testified that, to determine whether Sarah qualified as D/HH under Minnesota's rule, Sarah's hearing loss would have to be diagnosed as either "sensorineural" or "conductive." (Tr. at 419.) The audiologist further testified that, to make the diagnosis, Sarah would have to undergo either a "bone conduction test" or an "auditory brainstem response [`ABR'] evaluation." (Id. at 419.) Although the IHO refused to designate Sarah as D/HH, she ordered Sarah's IEP team to meet within ten days to consider further audiological evaluation and to initiate such evaluation within thirty days of the meeting. However, in the meantime, plaintiffs obtained an ABR test at their own expense.

Plaintiffs commenced this civil action to appeal the IHO's decision. Plaintiffs also join claims against defendant MDE. Plaintiffs previous motion for partial summary judgment and defendant MDE's motion to dismiss were denied by order dated September 3, 2004. The District now moves for judgment on the record, and defendant MDE moves for summary judgment.

DISCUSSION

I. Standard of Review/IDEA Framework

"Because judges are not trained educators, judicial review under the IDEA is limited." E.S. v. Indep. Sch. Dist., No. 196 Rosemount Apple Valley, 135 F.3d 566, 569 (8th Cir.1998). Although the court must base its decision on the preponderance of the evidence, it must also give "due weight" to the results of administrative proceedings and resist "any impulse to `substitute [its] own notions of sound educational policy for those of the school authorities.'" Id. at 569 (alteration in original) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)); see also Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1028 (8th Cir.2003). The court may grant judgment on the record in an IDEA case even if disputed issues of material fact exist. See Indep. Sch. Dist. No. 283 v. S.D. ex rel. J.D., 88 F.3d 556, 561 (8th Cir.1996). The burden of proof rests upon the party challenging the administrative decision. E.S., 135 F.3d at 569.

The overriding concern of the IDEA judicial review process is to ensure that the child has been provided access to FAPE. See Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 610 (8th Cir.1997). Whether FAPE has been provided presents a mixed question of law and fact. See id. at 611. An educational agency provides FAPE when it complies with IDEA procedures and offers an educational program "`reasonably calculated to enable the child to receive educational benefits.'" Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034.

Procedural violations of IDEA are subject to harmless error analysis. See S.D., 88 F.3d at 562 (quoting Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir.1990)). Such violations are actionable only when they seriously hamper parents' participation rights, cause a deprivation of educational benefits or otherwise compromise a child's right to appropriate education.² Id. at 562. The substantive requirements of IDEA are viewed in the light of limited public resources. See Fort Zumwalt, 119 F.3d at 611. Accordingly, "IDEA does not require that a school either maximize a student's potential or provide the best possible education at public expense." Id. at 611 (citing Rowley, 458 U.S. at 203, 102 S.Ct. 3034). Rather, IDEA is satisfied when the educational agency provides individualized education and services sufficient to provide the disabled child with "some educational benefit." Neosho R-V, 315 F.3d at 1027.

II. Judgment on the Record

A. Deafness Issue

Plaintiffs contend that the hearing officer erred when she failed to order that Sarah receive services related to hearing impairment ("D/HH services"). The District responds that plaintiffs did not properly raise the issue of D/HH services before the IHO and that plaintiffs have therefore failed to exhaust their administrative remedies. The District argues that plaintiffs raised only the issue whether Sarah should receive a formal disability classification of "D/HH."

The court rejects the District's exhaustion argument. At the prehearing conference, the IHO demonstrated that she understood plaintiffs to have raised both the issues of classification and services. The IHO and counsel engaged in the following colloquy:

HEARING OFFICER KREB: But I do hear within the counsel's request and parent's request that the issue is not the classification. I think it's the additional services that's being requested that comes with —

MS. KERR: A DHH teacher on the team.

HEARING OFFICER KREB: So, that's the issue that's being raised.

(Preh'g Tr. at 20.) After the prehearing conference, the IHO issued an order framing plaintiffs' issue as follows:

Should the Student be classified as having a hearing impairment as outlined in the Minnesota Deaf and Hard of Hearing Rule which would then require the participation of a deaf and hard of hearing teacher on the Students [sic] IEP team?

(Preh'g Order ¶ 1(d).) The IHO's order shows that plaintiffs fairly presented the question whether the District should have provided Sarah with services from a D/HH teacher. (See also IHO Decision at 8.) Therefore, plaintiffs did not fail to exhaust their administrative remedies.

Nevertheless, the IHO's framing of the D/HH issue was problematic because it erroneously assumed that Sarah must meet the criteria of Minnesota Rule 3525.1331 ("D/HH rule") to receive services geared toward her hearing impairment. The D/HH rule appears in a subchapter entitled "Entrance and Exit Criteria." The purpose of the rules in that subchapter is to provide objective standards to determine whether a pupil should "enter" special education on account of a particular disability.³ See Minn. Rule 3525.1331, subp. 1. Once the District determines that a pupil requires special education, it must address all of the pupil's needs "whether or not commonly linked to the disability category in which" the pupil was initially classified. 34 C.F.R. § 300.532(h); see also § 300.300(a)(3)(ii) ("services and placement needed by each child with a disability to receive FAPE must...