Tucker by Tucker v. Calloway County Bd. of Educ.
| Decision Date | 23 November 1998 |
| Docket Number | No. 96-6478,96-6478 |
| Citation | 136 F.3d 495 |
| Parties | 124 Ed. Law Rep. 73 Barkley TUCKER, a minor, By and Through Charles D. TUCKER, M.D. and Marsha Tucker, his parents and next friends; Charles D. Tucker, M.D. and Marsha Tucker, individually, Plaintiffs-Appellants, v. CALLOWAY COUNTY BOARD OF EDUCATION; Calloway County School District; Dr. Jack Rose, individually, and as Superintendent of Calloway County Schools; Wayne Blackford; Robbie Hale; Robert McDaniel; Richard Murdock; John Nix; John Warren Nix; Ray Dunn; Garry Evans; Tim Stone; Steve Grogan; Kentucky Department of Education; Wilmer S. Cody, individually, and as Commissioner of Kentucky Department of Education; and Exceptional Children Appeals Board, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James A. Harris, Jr. (argued and briefed), Paducah, KY, for Plaintiffs-Appellants.
Michael A. Owsley (argued and briefed), Regina Abrams (briefed), English, Lucas, Priest & Owsley, Bowling Green, KY, for Calloway County Board of Education, Calloway County School District, Jack Rose, Dr., Wayne Blackford, Robbie Hale, Robert McDaniel, Richard Murdock, John Nix, John Warren Nix, Ray Dunn, Garry Evans, Tim Stone, Steve Grogan, Thomas C. Boysen, Dr., Exceptional Children's Appeal Board, and Wilmer S. Cody.
Michael A. Owsley, English, Lucas, Priest & Owsley, Bowling Green, KY, Morgan G. Ransdell, Office of the Attorney General, Civil Division, Frankfort, KY, for Kentucky Department of Education.
Before: MERRITT and SILER, Circuit Judges; DOWD, District Judge. *
Plaintiff-Appellants Dr. and Mrs. Charles and Marsha Tucker ("the Tuckers") brought actions under the Individuals with Disabilities Education Act ("IDEA"), 1 20 U.S.C. § 1400, et seq., on behalf of themselves and their minor son, Barkley, to recover the costs of providing a free appropriate public education ("FAPE") for Barkley, a disabled child. 2 On August 2, 1996, the district court entered its Memorandum Opinion and Order affirming the administrative decisions of Kentucky's Exceptional Children Appeals Board ("ECAB") which denied the Tuckers' request for reimbursement of costs on the ground that they had voluntarily and unilaterally chosen to enroll Barkley in a private school in Boston and had, by failure to cooperate with local school officials, prevented the creation of an individualized education program ("IEP") for Barkley for the 1993-94 school year. As a result, expenses for Barkley's schooling for that year and for the 1994-95 school year were not, in the district court's judgment, the responsibility of the local public school district. The Tuckers appealed.
Barkley was born on June 10, 1988. After a comprehensive evaluation conducted at the Menninger Clinic in Topeka, Kansas, in November of 1991, 3 he was diagnosed with the condition known as Pervasive Development Disorder ("PDD"). 4 PDD is a recognized learning disability which would qualify Barkley for special services under federal and state law.
The Tuckers initially enrolled Barkley in the Murray State University Infant-Toddler Intervention Program ("ITIP") in the Spring of 1991. ITIP is a collaborative effort between the University and the local school district. In March of 1992, Mrs. Tucker had the Menninger report sent to Nancy Lovett, Director of Special Education for the Calloway County School District. Mrs. Tucker then contacted Ms. Lovett and, following a meeting with the Admissions and Release Committee ("ARC"), the Tuckers placed Barkley in Calloway County Southwest Elementary School pre-school program for 3-year-olds. This was to serve as a transition period between ITIP and the 1992-93 school year. Barkley then attended Southwest during the 1992-93 school year. 5
The Tuckers, especially Mrs. Tucker, continually looked for opportunities to help Barkley improve. In February of 1993, the Tuckers and Barkley's pre-school teacher attended a conference presented by Dr. Arnold Miller of the Learning and Cognitive Development Center ("LCDC") of Boston, Massachusetts. Following the conference, Dr. Tucker asked Dr. Miller if he would be willing to evaluate Barkley. Mrs. Tucker thereafter sent Barkley's records to LCDC for review.
At an April 16, 1993 meeting with school officials, the Tuckers asked if they could wait until fall to formulate Barkley's IEP for the 1993-94 school year because Barkley would be attending a summer program at LCDC. 6 They wanted the IEP to reflect any improvement which he might show over the summer. School officials agreed that waiting would be a good idea. It seems to be undisputed that the meeting ended with all parties in agreement that Barkley would return to his Southwest pre-school class in the fall of 1993.
There is some dispute over the chronology of subsequent events. Everyone agrees that Ms. Lovett and Dr. Tucker talked by telephone on or about May 6, 1993. Ms. Lovett says Dr. Tucker told her during that conversation that Barkley would be attending school in Boston for a year or so and wanted to know whether the local public school district would pick up the resulting expenses. Dr. Tucker says Ms. Lovett told him that the school had decided (unilaterally and without a new IEP) to place Barkley in the general primary school for the 1993-94 school year because he was too old (5 years old) to remain in the pre-school program. 7 Dr. Tucker said that this drove the Tuckers to decide to enroll Barkley in LCDC for the 1993-94 school year, provided he would be accepted there after his initial evaluation. In any event, Ms. Lovett told Dr. Tucker that his request for financial assistance would have to be considered at an ARC meeting.
The ARC meeting was held on May 14, 1993. Mrs. Tucker did not attend this meeting because she was in Boston looking for an apartment. Dr. Tucker purportedly informed the people at the meeting that Mrs. Tucker and Barkley were moving to Boston for a year so Barkley could attend LCDC. The minimum cost of tuition for one year would be $27,000. In view of this information, possible placements in the Calloway County Schools for the 1993-94 school year were discussed. It became clear that the only program being offered for Barkley by the local school district was placement in the general ungraded primary school. This program consisted of homerooms of 48 pupils (5- and 6-year-olds), with 24 students to one teacher, with a "free-flow" of students between classes that would allow as many as 100 students to work together, and with occasional pull-out services for Barkley for speech (and possibly physical) therapy.
Dr. Tucker opposed this placement and asked for a hearing by the Administrative Admissions and Release Committee ("AARC"). This hearing was conducted on May 17, 1993. It concluded with the Tuckers refusing the proposed primary school placement and the AARC refusing to reimburse the Tuckers for any costs associated with LCDC. The Tuckers requested the statutory due process hearing, which was conducted on July 10, 1993.
The hearing officer ultimately decided, on April 9, 1994, that the program offered by the Calloway County School District did not constitute an appropriate placement under the law. She ordered, inter alia, that the school district pay Barkley's tuition at LCDC for 1993-94. 8 By the time the hearing officer rendered her decision, the Tuckers had already enrolled Barkley in LCDC and Mrs. Tucker and Barkley had made their move to Boston.
The school board appealed the hearing officer's ruling to the ECAB. On June 22, 1994, the ECAB overruled the hearing officer, concluding that after the Tuckers requested that the development of the 1993-94 IEP be delayed, they had then unilaterally chosen to enroll Barkley in LCDC. The ECAB found that the school district had no responsibility for any costs incurred by the Tuckers.
By the time this decision was rendered, it was time to plan for the 1994-95 school year. The Tuckers wanted Barkley to remain at LCDC and also still wanted the local school district to pay for both school years. They had already filed their first federal lawsuit over the 1993-94 school year expenses. The school board wanted Barkley to come back to the local school for placement in a class of disabled students at North Elementary School. The Tuckers filed a second administrative appeal and, on January 23, 1995, the hearing officer concluded that the school district had followed all state requirements and that no procedural violations had occurred with respect to the formulation of an IEP for 1994-95. The hearing officer also determined that the recommended placement at North Elementary School complied with the IEP and would provide Barkley with a free appropriate public education. This decision was upheld on April 12, 1995 by the ECAB. The Tuckers filed a separate lawsuit in federal court appealing this second decision of the ECAB.
The Tuckers' two federal cases were consolidated in the district court. On July 31, 1996, following submission of the matter on the record and briefs, the district court concluded that the Tuckers had made a unilateral decision to get the "world's best" program for Barkley and had not given the school district an opportunity to develop an appropriate IEP for the 1993-94 school year. The court further concluded that, as a result, the defendants were not responsible for any expenses incurred by the Tuckers for the 1993-94 school year. With respect to the 1994-95 school year, the district court concluded that the "stay put" provisions 9 of the relevant statute did not apply since the Tuckers had made clear that LCDC was the only placement they would accept for that school year, notwithstanding having been offered other options by the school district. The court affirmed both ECAB decisions, entered judgment in favor of the defendants, and dismissed the case. The district judge subsequently denied plaint...
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