E.S. v. Independent School Dist., No. 196 Rosemount-Apple Valley, ROSEMOUNT-APPLE

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 135 F.3d 566
• Docket Number: No. 96-4214,ROSEMOUNT-APPLE,VALLEY-EAGAN,96-4214
• Parties: 123 Ed. Law Rep. 1083 E.S., a disabled minor; Jeanne Stein, parent and legal guardian, Appellants, v. INDEPENDENT SCHOOL DISTRICT, NO. 196,; Bruce Johnson, in his official capacity as the Commissioner of the Minnesota Department of Children, Families and Learning; State Board of Education for the State of Minnesota; State Board of Teaching for the State of Minnesota, Appellees.
• Decision Date: 30 January 1998

Page 566

135 F.3d 566 123 Ed. Law Rep. 1083 E.S., a disabled minor; Jeanne Stein, parent and legal
guardian, Appellants,
v.
INDEPENDENT SCHOOL DISTRICT, NO. 196, ROSEMOUNT-APPLE
VALLEY-EAGAN; Bruce Johnson, in his official capacity as
the Commissioner of the Minnesota Department of Children,
Families and Learning; State Board of Education for the
State of Minnesota; State Board of Teaching for the State
of Minnesota, Appellees. No. 96-4214. United States Court of Appeals,
Eighth Circuit. Submitted Oct. 22, 1997.
Decided Jan. 30, 1998.

Page 567

Sonja D. Kerr, Inver Grove Heights, MN, argued (William Welp, on the brief), for Appellants.

Timothy R. Palmatier, St. Paul, MN, argued (Susan E. Torgerson, on the brief), for Appellee Independent School District.

Bernard E. Johnson, Asst.Atty.Gen., St. Paul, MN, argued (Rachel L. Kaplan, on the brief), for Appellee State Board of Education and Bruce Johnson.

Before BEAM, FLOYD R. GIBSON, Circuit Judges, and WEBB ¹, United States Chief District Judge.

BEAM, Circuit Judge.

E.S., a handicapped child within the meaning of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400-1491, ² and her mother, Jeanne Stein, appeal the district court's ³ dismissal of their IDEA claims against Independent School District Number 196 and various state defendants. Because we find that E.S. was receiving a free appropriate public education as required by the IDEA, we affirm.

I. BACKGROUND

E.S. suffers from dyslexia, a handicap entitling her to special education services. See 20 U.S.C. §§ 1401(a)(1)(A)(i), 1401(a)(15). Independent School District Number 196 (the District) began providing E.S. with special education services in 1992. At that time, as E.S. was entering the fourth grade, testing indicated that E.S.'s broad reading skills were at a 3.0 grade-level equivalent, her reading comprehension was at a 3.2 grade level, her broad written language was at a 2.7 grade level and her writing skills were at a 2.1 grade level. Three years later, as she prepared to enter the seventh grade, E.S. was reassessed. The reassessment tests indicated that E.S.'s broad reading skills were now at a 3.8 grade equivalent, her reading comprehension had improved to a 5.1 grade equivalent, her broad written language was at a 3.1 grade level and her writing skills were 3.8 grade equivalent. After this assessment,

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Ms. Stein and the District agreed that E.S. would be provided extended services during the summer of 1995. That summer E.S. received one-to-one tutoring using the Orton-Gillingham instructional technique. ⁴ Ms. Stein was apparently pleased with the progress she perceived from those tutoring sessions, because she requested that E.S.'s individualized education plan (IEP) ⁵ specify that she receive one-to-one instruction using the Orton-Gillingham method during the 1995-96 school year. ⁶ The District declined to mandate only the Orton-Gillingham method in the IEP, arguing that E.S.'s teachers should be able to select from a variety of teaching methodologies, including Orton-Gillingham. Furthermore, the District did not agree that E.S. needed exclusively one-to-one tutoring, and proposed placing her in "pull-out" classes of 3-5 students who were at similar educational levels. When the District refused to modify E.S.'s IEP as requested, Ms. Stein requested a due process hearing. The level I (local review) Hearing Officer received evidence for two days. The hearing officer, relying on the testimony of E.S.'s tutor, found that E.S. could learn either with one-to-one instruction or in a small group of three to five students, as long as those students were at E.S.'s achievement level. The hearing officer therefore refused to order the school to provide one-to-one instruction using Orton-Gillingham. Ms. Stein appealed to a level II (the state educational agency) Hearing Review Officer. The Hearing Review Officer concluded that "[t]his record does not indicate any substantive violations of [the] IDEA" and denied Ms. Stein's requests.

Their administrative remedies exhausted, E.S. and Ms. Stein filed a complaint in federal district court. Along with the District, they named the State Board of Education, the State Board of Teaching, and the Commissioner of the Minnesota Department of Children, Families and Learning (collectively "the State...