Petersen v. Hastings Public Schools, 93-3358

• Decision Date: 08 August 1994
• Docket Number: No. 93-3358,93-3358
• Citation: 31 F.3d 705
• Parties: 93 Ed. Law Rep. 525, 3 A.D. Cases 801, 6 A.D.D. 1, 5 NDLR P 252 Nicholas R. PETERSEN, minor child, by and through his parents and next friends; Alex M. PETERSEN, minor child, by and through his parents and next friends; Daniel J. Petersen; Janet J. Petersen; Kendra E. Janssen, a minor child by and through her parents and next friends; Kevin Janssen; Michelle Janssen, Plaintiffs-Appellants, v. HASTINGS PUBLIC SCHOOLS, also known as School District # 0018 of Adams County, Nebraska, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 705

31 F.3d 705

93 Ed. Law Rep. 525, 3 A.D. Cases 801,

6 A.D.D. 1, 5 NDLR P 252

Nicholas R. PETERSEN, minor child, by and through his parents and next friends; Alex M. PETERSEN, minor child, by and through his parents and next friends; Daniel J Petersen; Janet J. Petersen; Kendra E. Janssen, a minor child by and through her parents and next friends; Kevin Janssen; Michelle Janssen, Plaintiffs-Appellants, v. HASTINGS PUBLIC SCHOOLS, also known as School District # 0018 of Adams County, Nebraska, Defendant-Appellee.

No. 93-3358.

United States Court of Appeals Eighth Circuit.

Submitted April 13, 1994.

Decided Aug. 8, 1994.

Shirley Mora James, Lincoln, NE, argued, for plaintiffs-appellants.

Robert W. Wagoner, Grand Island, NE, argued (Charles W. Hastings, Hastings, NE, on the brief), for defendant-appellee.

Before LOKEN, Circuit Judge, FRIEDMAN ^* and JOHN R. GIBSON, Senior Circuit Judges.

JOHN R. GIBSON, Senior Circuit Judge.

Three hearing-impaired children and their parents appeal the judgment of the district court ¹ rejecting their challenge to the Hastings Public Schools' decision to educate hearing-impaired students by use of a particular sign language system other than that used in their homes. We affirm the district court's judgment.

Nicholas Petersen, Alex Petersen and Kendra Janssen, who are severely hearing-impaired, require sign-language interpreters in the classroom. They use the strict Signing Exact English or SEE-II signing system in their homes. The children's school district has developed a "modified" SEE-II system which utilizes strict SEE-II principles eighty-five percent of the time. The school district uses modifications of the SEE-II system which the school district designed to supplement the educational needs of hearing-impaired children the remaining fifteen percent of the time. The modifications include several simplifications of the strict system, which the school district used to allow young students just beginning to sign to learn the language more easily. After the parents' numerous requests to the school district to implement a strict SEE-II system were rejected, the parents sought a state administrative hearing on behalf of the children with the Nebraska Department of Education.

At the administrative hearing, the parents alleged that the school district's choice of a modified signing system did not provide their children with minimally adequate individualized special educational programs as required by federal and Nebraska law, and that the school district was required to provide sign interpreters during non-academic portions of the school day in addition to the classroom activities for which interpreters had been previously supplied. The hearing officer found that the school district articulated reasonable grounds for its modification of the strict SEE-II system, but that an individualized educational program should be developed for each child which provides for an interpreter during both academic and non-academic portions of the school day. The children and their parents then filed this lawsuit, alleging that the hearing officer erred in holding that the modified SEE-II system did not violate the school district's obligations to provide individualized special education programs under the Individuals with Disabilities Education Act, 20 U.S.C. Secs. 1400-1484a (Supp. IV 1992), and its state counterpart, the Nebraska Special Education Act, Neb.Rev.Stat. Secs. 79-3301-3365 (1987 & Supp.1992). They also argued that the Americans with Disabilities Act, 42 U.S.C. Secs. 12131-12213 (codified in 1990) (Supp. IV 1992), requires the school district to honor the children's and parents' choice of the strict SEE-II signing system.

After a one-day bench trial, the magistrate judge affirmed the hearing officer's decision. The court held that the children and parents failed to prove by a preponderance of the evidence that the school district violated the requirements of the Individuals with Disabilities Act and the Nebraska Special Education Act when the school district employed a modified SEE-II system. The court also ruled that the children and parents failed to prove that the use of the modified signing system discriminated against the children in violation of the Americans with Disabilities Act. 831 F.Supp. 742. This appeal followed.

The children and parents argue on appeal that the Individuals with Disabilities Education Act and the Americans with Disabilities Act require the school district to provide classroom instruction in the signing system the children choose rather than the school district's choice. The children and parents argue that in choosing a modified SEE-II system, the school district failed to develop and implement statutorily required "individualized education programs" and therefore deprived the children of the "free appropriate public education" required by the Act, 20 U.S.C. Sec. 1400. They also argue that the school district violated the Americans with Disabilities Act, contending that the modified system deprives the children of access to or participation in their education programs and therefore discriminates against them because of their disabilities.

I.

The Individuals with Disabilities Education Act provides federal money to assist state and local agencies in educating disabled persons, but conditions the funding upon a state's compliance with certain guidelines. Mark A. v. Grant Wood Area Educ. Agency, 795 F.2d 52, 53 (8th Cir.1986), cert. denied, 480 U.S. 936, 107 S.Ct. 1579, 94 L.Ed.2d 769 (1987). A state must show that it has in effect a policy that ensures all handicapped children the right to a "free appropriate public education," see id.; 20 U.S.C. Sec. 1412(1), which must be tailored to the unique needs of the child by means of an individualized educational program. See Mark A., 795 F.2d at 53 (citing 20 U.S.C. Sec. 1401(18)). The Act gives parents or guardians of a disabled child an opportunity to present complaints about that student's program at an "impartial due process hearing" and allows either party to appeal the hearing officer's decision to the district court. 20 U.S.C. Secs. 1415(b)(1)(E), 1415(e)(4)(A); see Schuldt v. Mankato Indep. Sch., Dist. No. 77, 937 F.2d 1357, 1361 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 937, 117 L.Ed.2d 108 (1992).

In reviewing the decision of the administrative hearing officer, a district court must independently determine, based on a preponderance of the evidence, whether the requirements of the Individuals with Disabilities Education Act have been satisfied by the school district. 20 U.S.C. Sec. 1415(e)(2); Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 293 (7th Cir.), cert. denied, 488 U.S. 925, 109 S.Ct. 308, 102 L.Ed.2d 327 (1988). This review is, in reality, quite narrow. In Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), the Supreme Court set forth a two-part inquiry for evaluating challenges to individualized educational programs developed pursuant to the Act:

First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.

Id. at 206-07, 102 S.Ct. at 3051. The children and their parents do not contend that the State violated the first part of the inquiry. Thus, this dispute concerns the second part of the inquiry, namely whether the school district's choice of a modified signing system for each child's individualized educational program is "reasonably calculated" to enable the children to receive the educational benefits they are entitled to under the Act. In resolving this issue, Rowley instructs us that we may not substitute our own "notions of sound educational policy for those of the school authorities." Id. at 206, 102 S.Ct. at 3051.

Under Rowley, the school district meets the Act's requirements of providing a "free appropriate public education" when the personalized instruction is given "with sufficient support services to permit the child to benefit educationally." 458 U.S. at 203, 102 S.Ct. at 3049. The instruction must allow the child to meet the State's educational standards, approximate the grade levels used in the State's regular education, and comport with the child's individualized educational program. Id. at 209-10, 102 S.Ct. at 3052-53. Further, Rowley instructs the courts to look to the disabled student's achievement of passing marks and progress from grade to grade to determine whether that child is receiving an "adequate" education. Id. at 207 & n. 28, 102 S.Ct. at 3051 & n. 28.

Following the mandate set forth in Rowley to consider student achievement, the district court found that the modified signing...