Petersen v. Hastings Public Schools, 4:CV92-3226.

• Decision Date: 30 August 1993
• Docket Number: No. 4:CV92-3226.,4:CV92-3226.
• Parties: Nicholas R. PETERSEN and Alex M. Petersen, Minor Children, By and Through their parents and next friends, Daniel J. PETERSEN, and Janet J. Petersen; and Kendra E. Janssen, a Minor Child, By and Through her parents and next friends, Kevin Janssen, and Michelle Janssen, Plaintiffs, v. HASTINGS PUBLIC SCHOOLS, also known as School District # 0018 of Adams County, Nebraska, Defendant.
• Court: U.S. District Court — District of Nebraska

831 F. Supp. 742

Nicholas R. PETERSEN and Alex M. Petersen, Minor Children, By and Through their parents and next friends, Daniel J. PETERSEN, and Janet J. Petersen; and Kendra E. Janssen, a Minor Child, By and Through her parents and next friends, Kevin Janssen, and Michelle Janssen, Plaintiffs, v. HASTINGS PUBLIC SCHOOLS, also known as School District # 0018 of Adams County, Nebraska, Defendant.

No. 4:CV92-3226.

United States District Court, District of Nebraska.

August 30, 1993.

COPYRIGHT MATERIAL OMITTED

Randal B. Brown, Nebraska Advocacy Services, Inc., Lincoln, NE, for plaintiffs.

Robert W. Wagoner, Wagoner Law Offices, Grand Island, NE, for defendant.

MEMORANDUM OF DECISION

PIESTER, United States Magistrate Judge.

In this action pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq., the Nebraska Special Education Act, Neb.Rev.Stat. § 79-3301, et seq., and the Americans with Disabilities Act, (ADA), 42 U.S.C. § 12131, et seq., plaintiffs, three hearing-impaired children and their parents, appeal the decision of Hearing Officer Richard A. Birch rejecting, in part, their challenge to the Individualized Education Programs ("IEP's") developed for the minor plaintiffs. The parents objected to the IEP's designed for plaintiffs Nicholas, Alex and Kendra, and requested a due process hearing to determine their adequacy. The hearing officer's opinion found for plaintiffs with respect to one claim regarding the need for interpreters during the entire day rather than only during the academic periods, and for the defendant with respect to the type of signing system to be used by the interpreters.

Plaintiffs filed this action appealing the hearing officer's opinion to the extent it determined defendant's choice of a "modified" Signing Exact English sign-language system provided the minor plaintiffs with a "free appropriate public education" as required by IDEA. Plaintiffs also claim defendant's choice of the modified signing system, rather than plaintiffs' chosen strict Signing Exact English (SEE-II), violated the ADA. This court held a non-jury trial on August 16, 1993.¹ The record is supplemented by a state administrative hearing record for each minor plaintiff. For reasons stated more fully below, I shall enter judgment for the defendant.

FINDINGS OF FACT

The parties stipulate to a number of facts. Plaintiff Nicholas R. Petersen, a minor child, was born on January 8, 1981. Nicholas has a severe to profound hearing impairment and is entitled to a "free appropriate public education" from defendant. Plaintiff Alex M. Petersen, Nicholas' brother and also a minor child, was born on September 16, 1984. Alex has a severe hearing impairment and is entitled to a "free appropriate public education" from defendant. Plaintiff Kendra E. Janssen, a minor child, was born on June 17, 1985. Kendra has severe to profound hearing impairment and is entitled to a "free appropriate public education" from defendant. Nicholas, Alex and Kendra are "qualified individuals" for purposes of the ADA. Defendant is a public entity that receives federal funding within the meaning of Title II of the ADA.

Due to the nature and extent of their disabilities, the minor plaintiffs require the services of qualified sign language interpreters in order to derive educational benefit from the special education programs and services provided them by defendant as set forth in the IEP's. Defendant has developed a "modified" SEE-II signing system for use in its school system. The evidence at trial and in the state record demonstrate that this signing system utilizes SEE-II principles and employs SEE-II signs 85% of the time. The remaining 15% employs the modifications designed by defendant to supplement the educational needs of plaintiffs. During the IEP meeting, as well as since that time, plaintiffs' parents requested defendant use a strict SEE-II signing system. The parents' request has been consistently rejected in favor of the modified system.

SEE-II is one of approximately seven signing systems enjoying widespread use in the United States. Plaintiffs' expert witness, Dr. Barbara Leutke-Stahlman, described the seven systems on a continuum with the first being most similar to the English language and the seventh being least similar. On one end of the spectrum is Oral English in which no formal signs are used. The first actual signing system is Cued Speech, which uses hand shapes and facial gestures to cue the phonemes of speech. Cued Speech is a method of teaching a hearing-impaired person to make speaking sounds. The second system is Signing Essential English (SEE-I). This system relies on the use of signs for each morpheme of a word.² The third is Signing Exact English (SEE-II). SEE-II has many similarities to SEE-I, but it has its own dictionary. Further, SEE-II relies heavily on the use of "markers" or prefixes and suffixes added to the base morpheme.

The next system is "Signed/Manual English." Like SEE-II, this system has its own dictionary. However, it employs fewer markers than does SEE-II and has some signs which represent more than one morpheme. The fifth system is "Pidgin Signed English" (PSE). Dr. Leutke-Stahlman stated PSE has no written rules. This system acts as a "bridge" between the above, English-based, systems and American Signed Language (ASL), the sixth system. ASL is not English-based. Its grammar, syntax and word order differ from English and combine to form an independent language. The final system is finger-spelling, a system not relevant to this action.³

SEE-II is a signing system originally designed for educational purposes; it follows the English language exactly. It was designed to facilitate the development of basic English skills by accurately transmitting the precise words, in the order utilized by a speaker, to a hearing-impaired recipient. SEE-II is a popular system because of its dictionary which allows for a consistent vocabulary. As do a number of other systems, SEE-II has incorporated a number of common ASL signs. Dr. Leutke-Stahlman, although a proponent of SEE-II, stated that SEE-II is not necessarily a superior system to any of the others, depending on the particular child and family at issue. She stated that SEE-II has not caused a dramatic increase in reading levels since its creation in the early 1970's, although some studies seem to indicate its potential to facilitate better understanding of English.

Defendant employs a signing system which utilizes SEE-II the majority of the time. A short list of modifications to the SEE-II system has been developed. These modifications are listed as:

(1) directionality; (2) duplicate signs to show plurals of irregular words; (3) incorporation of the number in pronouns; (4) incorporation of the number in time; (5) location of the person and things in the signing space; (6) locatives; (7) negative incorporation; (8) eye gaze and facial expression; (9) multiple meanings, especially when a concept is introduced; (10) topic comment; (11) finger spelled long signs; (12) use of some prefixes and suffixes more consistently than others; (13) use one sign for multi-sign words; and (14) all markers signed when written word is presented.

Of the listed modifications, plaintiffs' expert, Dr. Leutke-Stahlman, stated that most of the modifications were actually consistent with SEE-II principles and, thus, were not modifications at all. Her opinion was that only numbers 9, 10, 11 and 12 were modifications. She expressed uncertainty as to whether her understanding of number 10 was correct; her explanation of its meaning was contradicted by that of Peg Bayless, a deaf education specialist contracted to the district who assisted in the design and implementation of the modifications.⁴

The parties went to great lengths debating whether one particular feature of the modified system was proper. Defendant directs an interpreter to move away from strict transliteration when it appears that the hearing-impaired student does not understand the language being used. Plaintiffs allege such a policy is an improper use of an interpreter. They claim that the interpreter should transliterate the class discussion at all times and use no personal judgment as to what words are signed to the student.

During the state hearing, defendant called Dr. Brenda Schick as an expert witness. Dr. Schick is proponent of ASL and PSE as opposed to SEE-II. She stated that, while SEE-II is valuable for teaching word order, it is difficult to use for certain suffixes and auxiliary verbs. She stated that the system is difficult to sign because of the large number of signs which are used to represent each portion of the written or spoken English language. The system takes longer to sign than other systems, sometimes contains too many signs for younger students to comprehend during a conversation, and is difficult to accurately sign by interpreters.⁵

Dr. Schick testified that exposure to a number of signing systems is beneficial to hearing-impaired children because of the large number of systems they will confront when they meet other hearing-impaired persons. She stated that she knows of only one adult who consistently utilizes SEE-II, that being one of the persons who invented the system. She further disputed plaintiffs' claim that the interpreter's role is to transliterate, stating that such a practice may be improper if the student lacks a sufficient language base to understand the intent of the message.

The IEP prepared for Nicholas Petersen's May 15, 1991 IEP conference demonstrates that as a fourth grader, Nicholas was reading in Level 4, Book 4 of the Milestones Reading Series. His Stanford Achievement Test, normed for the Hearing Impaired (SAT-HI) had improved in all areas except social sciences from the previous year. A January 23, 1992 update stated Nicholas' performance in his mainstreamed academic classes was improving.

The IEP prepared for Nicholas' May 12,...