O'Toole v. Olathe Dist. Schools

Decision Date08 April 1997
Docket NumberNo. 96-2329-JWL.,96-2329-JWL.
Citation963 F.Supp. 1000
PartiesMolly O'TOOLE, by and through parents and legal guardians, Kevin and Kathy O'TOOLE, Plaintiff, v. OLATHE DISTRICT SCHOOLS UNIFIED SCHOOL DISTRICT NO. 223, Defendant.
CourtU.S. District Court — District of Kansas

Stephen Walker, Beachwood, OH, James L. Germer, K A P S, Topeka, KS, Peter R. Williams, Russell, KS, for plaintiff.

Daniel B. Denk, Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, Joan K. Rowland, Hillix, Brewer, Hoffhaus, Whittaker & Wright, L.L.C., Kansas City, MO, Michael G. Norris, Norris, Keplinger & Logan, Overland Park, KS, for defendant.


LUNGSTRUM, District Judge.

I. Introduction.

This matter comes before the court on the defendant's motion for judgment as a matter of law pursuant to Fed.R.Civ.Pro. 52(c) or, in the alternative, for summary judgment pursuant to Fed.R.Civ.Pro. 56 (Doc. # 28), the plaintiffs motion for an enlargement of time (Doc. # 51), and the plaintiffs motion to reconsider (Doc. # 61). In her complaint, the plaintiff argues that the defendant denied her a "free appropriate public education" as required by the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., and Kansas law. The defendant contends that the uncontroverted evidence demonstrates otherwise. For the reasons discussed below, the court grants the defendant's summary judgment motion and denies the plaintiff's motions. As a result, the court orders that the plaintiff's complaint be dismissed.

II. Background of Individuals with Disabilities Education Act.

The Individuals with Disabilities Education Act (IDEA) provides federal money to state and local educational agencies for the education of disabled children. See 20 U.S.C. § 1400(b)(9). The IDEA guarantees all disabled children between the ages of three and twenty-one access to "... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs...." 20 U.S.C. § 1400(c). The IDEA defines "a free appropriate public education" as,

special education and related services that —

(a) have been provided at public expense, under public supervision and direction, and without charge (B) meet the standards of the State educational agency,

(C) include an appropriate preschool, elementary, or secondary school education in the State involved, and

(D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title.

20 U.S.C. § 1401(a)(18). The IDEA "... also creates an obligation to educate disabled children in the least restrictive environment in which they can receive an appropriate education." Urban by Urban v. Jefferson County School Dist. R-1, 89 F.3d 720, 722 (10th Cir.1996) (citations and internal quotations omitted).

In order to implement these goals, the IDEA requires that states provide each disabled child with an individualized education program (IEP), which must be reviewed at least annually. 20 U.S.C. § 1414(a)(5). An IEP is a written statement of (1) the child's present performance level, (2) the annual goals and short-term instructional objectives to be attained, (3) the specific educational services to be provided and the extent to which such child will be able to participate in regular educational programs, (4) the child's needed transition services, (5) the projected dates for initiation and completion of such services, and (6) the appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether the instructional objectives are being achieved. 20 U.S.C. § 1401(a)(20); 34 C.F.R. §§ 300.343(d), 300.346(a). The IDEA places special emphasis on parental participation in the development of the IEP, requiring written parental notification of any change of or refusal to change the "identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child...." 20 U.S.C. § 1415(b)(1)(C). Parents are also entitled to bring a complaint on any matter relating to the evaluation or placement of their child and to seek an impartial due process hearing on their complaint. 20 U.S.C. § 1415(b)(2). Any party aggrieved by the Hearing Officer's administrative findings and decision may appeal to the state educational agency for an impartial review. 20 U.S.C. § 1415(c). The Reviewing Officer must make an independent decision. Id. Any party aggrieved by the Reviewing Officer's decision may appeal it to a district court of the United States without regard to the amount in controversy. 20 U.S.C. § 1415(e)(2). The reviewing court is required (1) to examine the records of the administrative proceedings, (2) to hear additional evidence if requested by a party, and (3) to base its decision on the preponderance of the evidence. Id.

III. Facts.1

The plaintiff was born on May 6, 1982. Shortly after her birth, the plaintiff was diagnosed with edema and eventually developed pancreatitis and hepatitis. When she was thirty months old, the plaintiff was diagnosed with a hearing impairment and, shortly thereafter, began using hearing aids. On June 25, 1985, physicians at Kansas University Medical Center described the plaintiff's hearing loss as moderate to severe bilaterally. Subsequent evaluations indicated a moderate to severe sensorineural hearing loss in her right ear and a moderate to profound hearing loss in her left ear.

In the fall of 1988, the plaintiff was admitted to the defendant's hearing impaired program located at Scarborough Elementary School (SEC). On or about May 8, 1989, Ms Peggy Cumley, a psychologist employed by the defendant, measured the plaintiff's IQ using the Wechsler Intelligence Scale for Children-Revised. Ms. Cumley concluded that the plaintiff's performance IQ score was 72.

While the plaintiff attended SEC, an IEP was developed for her and reviewed and revised as needed (at least annually) during meetings attended by various specialists as well as the plaintiff's parents. During the 1991-92 school year, the plaintiff was in a dual mainstream and contained program. The plaintiff was in a resource room for 130 minutes a day and received speech and language therapy for 30 minutes a day.

In the summer of 1992, the plaintiff's biological mother died. As a result, the plaintiff's father, Mr. Kevin O'Toole, became more active in the plaintiff's education. The death of her mother had an understandably adverse impact on the plaintiff's attitude and behavior.

On February 23, 1993, Mr. O'Toole and Ms. Kathy Fulgham2 were part of a team that formulated an IEP for the plaintiff. Other members of the team were G.L. Cox, the principal of SEC; Larry Meyer, a school psychologist; Hidy Scheisser, an audiologist; Deb Stryker, the plaintiff's hearing impaired teacher during the 1991-92 and 1992-93 school years; Amy Bonham, a school counselor who counseled the plaintiff from time to time; Patricia Bowers, a classroom teacher; and Norina Hatcher, the plaintiff's speech and language pathologist during her time at SEC. During this pleasant and congenial meeting, the plaintiff's level of educational performance, tests, and evaluation reports were discussed and explained to Mr. O'Toole and Ms. Fulgham. A statement of annual goals, a statement of short-term objectives, and a statement of specific special education services and related services were fully discussed with Mr. O'Toole and included in the plaintiff's IEP. Mr. O'Toole and Ms. Fulgham had access to the plaintiff's files and were encouraged to comment and ask questions, which were responded to by members of the team. During the IEP meeting, Mr. O'Toole and Ms. Fulgham did not express any unhappiness or disappointment with the plaintiff's academic progress. They were supportive of the goals and objectives outlined in her IEP. At the end of the meeting, Mr. O'Toole and Ms. Fulgham were given a copy of the plaintiff's IEP and Mr. O'Toole consented to the plaintiff's continued placement at SEC.

In the months following the February IEP meeting, Mr. O'Toole and Ms. Fulgham received monitoring reports discussing the plaintiff's progress toward meeting the objectives in her IEP. Specifically, these monitoring reports indicated that the plaintiff met certain objectives, made adequate progress toward certain objectives, and did not make adequate progress toward other objectives. Upon receiving these reports, Mr. O'Toole felt free to contact either Ms. Stryker or Ms. Hatcher about any questions he might have concerning the reports. In fact, Mr. O'Toole kept in close contact with Ms. Stryker concerning the plaintiff's academic progress between February and May of 1993.

In June of 1993, Mr. O'Toole decided to have the plaintiff evaluated at the Central Institute for the Deaf (CID), which is located in St. Louis, Missouri. After evaluating the plaintiff, the CID issued a report setting forth the following pertinent recommendations:

1. Molly needs full-time special education with children of similar age and ability and should not be mainstreamed;

2. Molly needs intensive, individualized reading instruction by teachers experienced with hearing impaired children;

3. Molly's language and reading should be re-evaluated in one year, her intellectual ability should be re-evaluated in three years, and her hearing and hearing aids should continue to be evaluated on an annual basis; and

4. Molly should continue using hearing aids in both ears on volume # 3. See Def.'s motion for Summ. J., Book 13 Exhibit # 10. Shortly after this evaluation, Mr. O'Toole applied, on behalf of the plaintiff, to the CID. In a letter dated July 9, 1993, the CID accepted the plaintiff as a full-time residential student for the 1993-94 school year. After receiving the CID's acceptance letter, Mr. O'Toole decided that he would send the plaintiff to the CID unless the members of the...

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