Wilson v. Marana Unified School Dist. No 6 of Pima County
| Decision Date | 26 June 1984 |
| Docket Number | No. 6,83-1628,Nos. 83-1588,6,s. 83-1588 |
| Citation | 735 F.2d 1178 |
| Parties | 18 Ed. Law Rep. 197 Raymond J. WILSON and Darlinda Wilson, in their own behalf and as parents and next friends of Jessica Wilson, Plaintiffs-Appellants, v. MARANA UNIFIED SCHOOL DISTRICT NO. 6 OF PIMA COUNTY; Raymond Narum, Loren Loftin, C. Roger Fulton, George Leaming, and Olive Barry, members of the Board of Trustees, Marana Unified School District, in their official capacities, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ann M. Haralambie, Tucson, Ariz., for plaintiffs-appellants.
Richard M. Yetwin, DeConcini, McDonald, Brammer, Yetwin & Lacy, Tucson, Ariz., for defendants-appellees.
Appeal from the United States District Court for the District of Arizona.
Before ANDERSON, SCHROEDER, and ALARCON, Circuit Judges.
Raymond J. Wilson and Darlinda Wilson filed suit against the Marana Unified School District, et al., on their own behalf and as the parents and next friends of Jessica Wilson. The Wilsons appeal a state administrative decision pursuant to the Education of All Handicapped Children Act of 1975 (EAHCA), 20 U.S.C. Secs. 1400-1461 (1976 & Supp. V 1981), and the Rehabilitation Act of 1973, 29 U.S.C. Secs. 701-794 (1976 & Supp. V 1981). The district court granted the appellee's motion for judgment on the pleadings. We affirm.
At the time this appeal was filed, Jessica Wilson was a second grade student in the Marana Unified School District. Jessica is a victim of cerebral palsy and is physically handicapped. Although she possesses at least a normal intelligence, she has had difficulty in learning to read and write because of her handicap.
While in the first grade, Jessica began receiving remedial instruction from a learning disabilities teacher with the help of an aide. The teacher assisted Jessica in learning to read using an auditory approach.
Unconvinced that Jessica was making satisfactory progress, the school district proposed to send her to a school in another district located approximately 30 minutes away. There, she would be taught by a special education teacher who was certificated in physical disabilities. Although Jessica was being taught by a special education teacher in the school she was attending, that teacher was certificated in learning disabilities. It is undisputed that Jessica is inflicted with a physical and not a learning disability. The Marana School District did not have a teacher who was certificated in physical disabilities.
Jessica's parents objected to the school district's proposal to relocate their daughter because they feared that moving her away from her neighborhood and friends would create emotional problems and would stigmatize her as a "handicap." They argued that she could receive an appropriate education at her neighborhood school.
The school district argues that under state law a child who qualifies for special education must be taught by a teacher who is certificated in that child's particular area of disability. We do not agree and do not reach a decision on that broad assertion. We hold only, under our standard of review, that the school district's decision was a reasonable one under the circumstances of this case.
The parents filed a request for a due process hearing before an impartial hearing officer, pursuant to 20 U.S.C. Sec. 1415(b)(2) of the EAHCA. The officer reviewed the facts of the case and the applicable state and federal laws before ruling against the school district's proposal. The school district, pursuant to 20 U.S.C. Sec. 1415(c), appealed to a state review officer who affirmed the decision. The parties subsequently agreed, however, to resubmit the issue to a different state review officer who reversed the decision. The parents then brought suit in district court appealing the decision of the second state review officer pursuant to 20 U.S.C. Sec. 1415(e)(2). The school district moved to dismiss the case claiming that the parents had failed to exhaust their administrative remedies by not requesting a rehearing after the second state review officer handed down his decision. Both parties moved for judgment on the pleadings. The district court denied the school district's motion to dismiss but granted its motion for judgment on the pleadings. Both parties appeal the denial of their motions.
This matter comes before this court on a stipulated set of facts. Therefore, the issue to be decided is whether the district court correctly interpreted and applied state law. Yazzie v. Olney, Levy, Kaplan, & Tenner, 593 F.2d 100 (9th Cir.1979). A de novo review is also to be applied to questions of whether a state department of education's proposed individual educational program constituted a "free appropriate education" within the EAHCA. Department of Education, State of Hawaii v. Katherine D., 727 F.2d 809, 814 n. 2 (9th Cir.1983).
Arizona has, in addition to the procedures under the EAHCA, a statute requiring the State Department of Education to permit a rehearing on decisions regarding the provision of a free appropriate public education to a handicapped child. Ariz.Rev.Stat.Ann. Sec. 41-1010(B) (supp. pamphlet 1975-1983). Arizona also has a statute providing that when a statute or rule of an administrative agency allows for a rehearing, the decision of the agency is not final until the application for the rehearing is denied or the decision is rendered. Ariz.Rev.Stat.Ann. Sec. 12-901(2). Because Jessica's parents did not request a rehearing of the second review officer's decision, the school district argues that they failed to exhaust their administrative remedies and the district court lacked jurisdiction over the case.
We do not agree that the parents failed to exhaust their administrative remedies. Although they never formally filed a request for a rehearing, their case was heard twice by state review officers. The first hearing occurred when the school district appealed the decision of the impartial hearing officer to the state review officer. The second hearing occurred when the case was resubmitted to a second state review officer upon stipulation of the parties. This was the functional equivalent of a rehearing and to hold otherwise would exalt form over substance.
It is true that a division of the Arizona Court of Appeals has held that a party must utilize available rehearing procedures before seeking judicial review. Herzberg v. David, 27 Ariz.App. 418, 555 P.2d 677 (1976). In that case, however, there had been no administrative review prior to the institution of judicial proceedings. The second hearing in the present case fulfilled the purpose of the Arizona rehearing requirement by allowing the state review officer "the first opportunity to correct its own mistakes." Id. at 419, 555 P.2d at 678. It would be a futile exercise for the Wilsons to request another hearing of the matter because it would add nothing but confusion to an already divided result at the state review level. If the Wilsons won in a potential rehearing, would the school board, as an aggrieved party, then be expected to submit to yet another rehearing?
Where administrative procedures cannot afford adequate relief, the remedy need not be exhausted. Monahan v. State of Nebraska, 645 F.2d 592, 593, 597 (8th Cir.1981); 20 U.S.C. Sec. 1415(e)(2).
A further reason for rejecting the idea that the Wilsons were required to request another hearing at the state level is furnished by the opinion of the second state review officer who noted that the aggrieved party did have the right to bring civil action as the next step in the proceeding.
The EAHCA is a federal funding program which was designed to assist states in providing for the unique educational needs of handicapped children. If a state is to receive federal funding under the EAHCA, it must have in effect a policy that assures all handicapped children the right to a "free appropriate public education." 20 U.S.C. Sec. 1412(1).
The school district argues that in order for Jessica to be given an appropriate education, she must be taught by a special education teacher specifically certificated in the area of physical disabilities. The school district contends that a teacher certificated in learning disabilities will not suffice. Therefore, it has proposed to send Jessica to another district where there is a teacher certificated in physical disabilities.
The parents maintain that neither Arizona nor federal law supports the school district's contentions. They argue that the EAHCA does not require the states to provide handicapped children with the best education possible. Instead, they contend that the congressional intention is that handicapped children be enabled to achieve a "reasonable degree of self-sufficiency." Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 201 n. 23, 102 S.Ct. 3034, 3048 n. 23, 73 L.Ed.2d 690 (1982). The parents further maintain that the auditory approach, by which Jessica was given reading lessons in the first grade, is adequate to enable her to achieve a reasonable degree of self-sufficiency.
The parents have misinterpreted the federal and state laws. It may be true that the EAHCA does not require the states to provide handicapped children with the best education possible. This does not mean, however, that the states do not have the power to provide handicapped children with an education which they consider more appropriate than that proposed by the parents. In fact, the federal regulations promulgated pursuant to the EAHCA indicate that teachers of special education must meet state requirements in their field:
As used in this part, the term "qualified" means that a person has met State educational agency approved or recognized certification, licensing, registration, or other comparable...
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