Sherri A.D. v. Kirby

• Citation: 975 F.2d 193
• Decision Date: 19 October 1992
• Docket Number: Nos. 91-8113,92-8056,s. 91-8113
• Parties: 77 Ed. Law Rep. 665 SHERRI A.D., ETC., ET AL., Plaintiffs-Appellants, v. W.N. KIRBY, Commissioner Of Education Of The Texas Education Agency, Individually And In His Official Capacity, ET AL., Defendants, and Texas Education Agency and Texas School For The Blind And Visually Impaired (Formerly Texas School For The Blind), Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 193

975 F.2d 193

77 Ed. Law Rep. 665

SHERRI A.D., ETC., ET AL., Plaintiffs-Appellants, v. W.N. KIRBY, Commissioner Of Education Of The Texas Education

Agency, Individually And In His Official Capacity,

ET AL., Defendants,

and

Texas Education Agency and Texas School For The Blind And

Visually Impaired (Formerly Texas School For The

Blind), Defendants-Appellees.

Nos. 91-8113, 92-8056.

United States Court of Appeals,

Fifth Circuit.

Oct. 19, 1992.

Dona G. Hamilton and Tammy L. Stroud, Asst. Attys. Gen., Dan Morales, Atty. Gen Cynthia D. Swartz, Henslee, Ryan & Groce, Austin, Tex., for defendants-appellees.

Lou Bright and J.D. Hooper, Asst. Attys. Gen., Kevin O'Hanlon, TEA, Austin, Tex., for defendants.

Nicholas Serna, Legal Aid Soc. of Cent. Texas, John M. Torti, Belton, Tex., for plaintiffs-appellants.

Appeals from the United States District Court for the Western District of Texas.

Before GOLDBERG, HIGGINBOTHAM and DAVIS, Circuit Judges.

GOLDBERG, Circuit Judge:

With reluctance, we will engage seasoned combatants in the war over the future welfare, education and happiness of a young woman with multiple handicaps. The dispute dates back to the birth of Sherri, A.D., at which time her parents discovered that she was blind, deaf, and mentally retarded. Unwilling or unable to care for the infant, they left her in the custody of her aging grandmother. When Sherri reached age six, the Cameron, Texas school district decided it would pay for her education, but would not itself attempt to teach her. Together, the school district and the grandmother sought and obtained Sherri's admission to a residential school for handicapped persons.

Sherri had lived for seven years at the Texas School for the Blind and Visually Impaired in Austin, Texas, when that institution, together with the state education agency, formulated new admissions standards to which Sherri did not measure up. Vigorous disputation took place regarding whether Sherri should be moved, and if so, where. Many parties wanted a voice in the decision regarding where Sherri should live and attend school, but no one seemed to want the responsibility of housing and educating her themselves.

Sherri's grandmother sought the assistance of legal counsel, who five years ago filed suit in United States District Court, presenting many grievances, and a request for certification of a class action. The district judge referred the case to a magistrate judge for decision. The referral was one of the last things on which the combatants were able to agree.

The war intensified, each combatant hauling out increasingly heavy artillery in the hope of vanquishing his opponents. At one point, the list of drafted warriors spanned ten pages. Eventually, many of the soldiers retreated or were excused from the fight. Five years into the war, the only combatants remaining on the battlefield were the grandmother, the guardian ad litem, the Texas Education Agency, and the Texas School for the Blind and Visually Impaired. These parties temporarily lost their taste for battle, and sought a truce. Each removed his heavy armor, and sat down at the same table. However, they were unable to reach a compromise.

Unlike King Solomon, the magistrate judge cannot resolve this dispute by giving the child to the person who seems most interested in her welfare. Although many are solicitous for her, no one particularly wants Sherri--not her parents, not her grandmother, not the regular schools, not the special schools, and not many of the alternative facilities which have been explored to date. It is a strange battle indeed in which the combatants fight not to obtain possession of the prize, but to foist it off upon someone else.

The combatants have once again taken up their battle stations, and appear determined to fight on valiantly at all costs. We shall venture forth from the relative calm of our bunker, hoping to infiltrate the redoubts and ramparts of the contenders. We shall attempt at all times to bear in mind the welfare of Sherri A.D. First, we shall summarize the legal issues and our conclusions.

Plaintiff Sherri A.D., through her guardian and grandmother Nell D., appeals from an interlocutory order of a United States magistrate judge, [February 5, 1991 Order, hereafter "February Order"] requiring that she be transferred from an institution for the visually impaired to a community placement as soon as one can be located or appropriately tailored to fit Sherri's needs. Plaintiff also appeals interlocutory orders denying a stay of the February Order, finding the parties in contempt, ordering mediation and setting a hearing on the matter of contempt. ¹ Although it appears that plaintiff did not file notice of appeal on the appointment of a guardian ad litem, she requests that we address that matter as well. Moreover, on March 29, 1991, an order granting plaintiff's motion to permit appeal on the question of class certification was granted by the United States magistrate judge, although in an order dated June 26, 1991, the magistrate judge declined to certify that the plaintiff's class action claims were not frivolous.

Finding that we have jurisdiction to consider the appeal of the February Order, we affirm the magistrate judge's directive that Sherri A.D. be moved from the Texas School for the Blind and Visually Impaired to community-based housing, and that she receive free, appropriate education in her local public school district until her eligibility for public education expires.

Because we believe that the other matters plaintiff urges us to address on interlocutory appeal present no threat of irreparable harm, and do not relate to any conclusive collateral order separable from the merits of plaintiff's claims, we decline to reach them. Although the record is already voluminous, the district court is in a better position than we are to assess the merits of these other claims, all of which can be appealed after entry of judgment without prejudice to any of the parties.

I. BACKGROUND

Twenty year-old Sherri A.D. is profoundly mentally retarded, deaf and blind. In 1987, a special education hearing officer found that Sherri functioned cognitively at the level of a child aged eight to twelve months. Plaintiff now claims that Sherri functions at the level of a child aged sixteen to twenty-two months.

The special education hearing officer who reviewed her case in 1987 determined that "Sherri might reasonably be expected to progress at an extremely slow rate and will exit public education at age twenty-two ² functioning at the cognitive level of a small child." All parties to this action agree that an appropriate educational program for Sherri should include motor development, communication, socialization and recreational components. Emphasis must be placed on assisting Sherri to develop independence in the activities of daily living, such as toileting, washing, and eating.

It is unclear from the record where Sherri lived from birth to age six. It appears, however, that she was not institutionalized, although she functioned then, as now, at the cognitive level of a one to two year-old child. In 1978, an "admission, review and dismissal committee" ["ARD"] of Sherri's local public school district ["School District"] decided to place Sherri at the Texas School for the Blind and Visually Impaired ["School for the Blind"], the only residential institution in Texas established for the specific purpose of educating blind and visually impaired people at public expense until they attain age twenty-two.

In 1985, the School for the Blind and the Texas Education Agency ["TEA"] developed new eligibility criteria for students at the School for the Blind. The School for the Blind then notified Sherri's School District that Sherri might no longer be eligible for continuing admission to the School. On March 14, 1986, an ARD convened at the School for the Blind determined that Sherri did not meet the new eligibility criteria and should be returned to a community placement and educated by her local School District. Representatives of the School District initially agreed, but soon changed their position for reasons not revealed in the record.

On March 27, 1986, Sherri's grandmother, Nell D., acting as Sherri's guardian and next friend, requested a due process hearing under the Education for All Handicapped Children Act ["EAHCA"]. ³ Following the hearing, the School District convened two ARDs to decide whether the March 14, 1986 ARD had reached the correct decision. The ARDs convened by the School District found that the School for the Blind was the least restrictive placement available to accommodate Sherri's needs.

Because the School District's ARDs reached a different decision than did the ARD convened at the School for the Blind, and because Nell D. did not believe she could care for Sherri at home, Nell D. appealed to a special education hearing officer, alleging that the School for the Blind's eligibility criteria were discriminatory or otherwise unlawful, and that the School for the Blind was the least restrictive environment in which Sherri could receive free, appropriate special education services to which she is entitled until age twenty-two. A hearing was held over the course of sixteen calendar days in late 1986 and early 1987.

On September 1, 1987, the special education hearing officer rendered a decision, finding that under Board of Educ. of Hendrick Hudson Cent. School Dist., Westchester County v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), Sherri's placement at the School for the Blind was "appropriate," because Sherri obtained "educational benefit" from services provided there. However, the special education hearing officer found that Sherri should nevertheless be transferred from the School for the Blind to a community placement, because the School for the Blind was not the least restrictive environment in which Sherri could receive specialized...