Woolcott v. State Bd. of Educ.

• Decision Date: 12 July 1984
• Docket Number: Docket No. 69391
• Citation: 134 Mich.App. 555,351 N.W.2d 601
• Parties: , 18 Ed. Law Rep. 732 Pamela and Greg WOOLCOTT, the parents of Lindy Woolcott, a minor, Plaintiffs-Appellants, v. STATE BOARD OF EDUCATION, et al., Defendants-Appellees, and The Intermediate School Board of the Intermediate School District of the County of Grand Traverse, et al., Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 601

351 N.W.2d 601

134 Mich.App. 555, 18 Ed. Law Rep. 732

Pamela and Greg WOOLCOTT, the parents of Lindy Woolcott, a minor, Plaintiffs-Appellants, v. STATE BOARD OF EDUCATION, et al., Defendants-Appellees and The Intermediate School Board of the Intermediate School District of the County of Grand Traverse, et al Defendants.

Docket No. 69391.

Court of Appeals of Michigan.

Submitted Nov. 1, 1983.

Decided May 14, 1984.

Released for Publication July 12, 1984.

Deborah Mattison, Detroit, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Gerald F. Young and Paul J. Zimmer, Asst. Attys. Gen., for defendants-appellees Michigan Board of Education, Phillip E. Runkel, and Edward Birch.

Before CYNAR, P.J., and BEASLEY and GILLESPIE, ^* JJ.

GILLESPIE, Judge.

Lindy Woolcott has severe speech and hearing defects. To mainstream Lindy from special education classes to general education classes, the Traverse Bay Area Intermediate School District (hereafter ISD) hired a cued speech interpreter. The cued speech instructor was used for only one term in Lindy's general education classes. Thereafter, Lindy's parents objected to ISD's refusal to use the cued speech interpreter in Lindy's general education classes. Administrative hearings were held and the result was approval of ISD's refusal. Lindy's parents then filed suit in circuit court challenging the administrative findings. State defendants moved for summary judgment, claiming there was a failure to state a cause of action and that state defendants were not necessary or proper parties. The motion was granted. Plaintiffs appeal. Reversed in part, affirmed in part and remanded.

The following facts are taken from plaintiffs' complaint. Lindy attended Central Elementary School in the Traverse City Public School District during 1980-1981. She was assigned to the hearing impaired room. ISD had a contract with Traverse City Public Schools to operate the hearing impaired rooms.

An Individualized Educational Planning Committee (IEPC) was organized by the ISD pursuant to the Education of the Handicapped Act, 20 U.S.C. Sec. 1400, et seq. (hereafter EHA) to plan how Lindy should be educated.

Lindy's parents wanted ISD to supply a cued speech interpreter during Lindy's time spent in general education classes. Cued speech is a combination of lip reading and sign language. This would allow Lindy to understand class materials. Lindy was to receive this aid in special and general education to help "main stream" Lindy into general education. On May 4, 1982, the IEPC recommended the service for Lindy.

Lindy received cued speech instruction from September, 1981, until January, 1982. On February 11, 1982, the ISD's Special Education Supervisor circulated a memo stating that Lindy's IEPC would no longer be able to make use of a cued speech instructor in Lindy's general education program.

Another IEPC was convened in February, 1982. The IEPC and the parents agreed that Lindy needed cued speech services. However, the chairman of the IEPC vetoed the cued speech service. The plaintiffs alleged that this refusal by the IEPC was wrong.

Plaintiffs then requested a due process hearing from the ISD. They were refused. The state defendants failed to intervene when requested by plaintiffs to do so. The parties finally stipulated that plaintiffs would file an administrative complaint with the state defendants and receive an expedited ruling.

A hearing was held in May of 1982. The hearing officer's opinion was that speech instruction was necessary for Lindy to receive a free appropriate public education and ISD had a duty to provide her with such instruction.

In August, 1982, that ruling was reversed on an administrative appeal. It was concluded that Lindy did not need cued speech instruction in her general education classes.

Lindy has since been enrolled in a private school which provides her, at plaintiffs' expense, with a cued speech interpreter in general education classes. She still attends ISD's special education classes.

Plaintiffs commenced the instant action on October 14, 1982, in Ingham County Circuit Court praying for declaratory, injunctive and money damage relief. The complaint was in four counts, the sense of each count being that Lindy wanted ISD or the state defendants to provide her with a cued speech interpreter.

Count I alleged a violation of the Education of the Handicapped Act, 20 U.S.C. Sec. 1400 et seq., because the refusal of ISD to supply Lindy a cued speech interpreter in general education was a failure to provide her with a free appropriate public education. This count also alleged a right to a full hearing.

Count II alleged a violation of Michigan's mandatory special education act (hereafter MMSE), M.C.L. Sec. 380.1701, et seq.; M.S.A. Sec. 15.41701 et seq., in that failure to provide cued speech resulted in Lindy's losing the right to an appropriate education which maximizes her potential.

Count III alleged a violation of the Michigan Handicappers' Civil Rights Act, M.C.L. Sec. 37.1101 et seq.; M.S.A. Sec. 3.550(101) et seq.

Count IV alleged a violation of Sec. 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794.

State defendants moved for summary judgment in December of 1982, claiming that they were not necessary or proper parties. They also claimed that plaintiffs failed to state a claim for which relief could be granted.

The issues raised on appeal are essentially two. First, are the claims presented in plaintiffs' amended complaint, Counts I-IV, sufficient to withstand motions for summary judgment under GCR 117.2(1)? Second, in relation to those claims were the state defendants, the Michigan Department of Education, Phillip E. Runkel and Edward Birch, properly joined parties?

When reviewing a motion for summary judgment, this Court is to determine whether plaintiffs' claims as set forth in their pleadings are so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recover. All well-pled facts in the complaint are considered true and only the legal sufficiency of the pleadings are tested. Proof to support the allegations is not required. Reeder v. Hammond, 125 Mich.App. 223, 336 N.W.2d 3 (1983).

20 U.S.C. Sec. 1412(1), states that, to receive federal funds, "the state has in effect a policy that assures all handicapped children the right to a free appropriate public education".

A free appropriate public education is to be determined by an individualized educational program designed to meet the unique needs of the handicapped child, the teacher and parent(s) or guardian(s). 20 U.S.C. Sec. 1401, subds. (18), and (19).

Regulations promulgated under the EHA provide:

"(b) Each public agency shall insure:

"(1) That to the maximum extent appropriate, handicapped children including children in public or private institutions or other care facilities, are educated with children who are not handicapped, and

"(2) That special classes, separate schooling or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 34 CFR 300.550. (Emphasis added.) 20 U.S.C. Sec. 1412(5)(B).

Subsection (B)(1) is the regulatory language for mainstreaming handicapped students.

A program must also provide a continuum of placements which shall:

"(1) Include the alternative placements listed in the definition of special education under Sec. 300.13 of Subpart A (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions ), and

"(2) Make provisions for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement." 34 CFR 300.551. (Emphasis added.)

Michigan's implementing statute, M.C.L. Sec. 380.1701 et seq; M.S.A. Sec. 15.41701 et seq, MMSE, goes even further than the EHA. The goal in Michigan is to "develop the maximum potential of every handicapped person". M.C.L. Sec. 380.1701(a); M.S.A. Sec. 15.41701(a).

In addition, the EHA provides a procedural system for redress of complaints giving dissatisfied parties a right to an impartial due process hearing followed by a right of appeal to the state educational agency. If the party is still dissatisfied they have a right to bring a civil action in either a state court of competent jurisdiction or in a federal district court. 20 U.S.C. Sec. 1415, subds. (a)-(e).

The plaintiffs have alleged that Lindy is handicapped and of age for public education. Thus, her rights vest under the EHA and the MMSE.

Plaintiffs also allege that Lindy has a right to a free appropriate public education, 20 U.S.C. Sec. 1412(1), which will develop her maximum potential, M.C.L. Sec. 380.1701(a); MSA 15.41701(a). They also claim that she has a right to be educated in a regular educational environment with the use of supplementary aids or services. 20 U.S.C. Sec. 1412(5)(B); 34 CFR 300.550. They further claim a cued speech interpreter is an aid or service within the meaning of the statutes to enable Lindy to be mainstreamed. Further, allegations are that the failure of ISD and the state board to provide Lindy with a cued speech interpreter is a violation of the EHA and the MMSE. Plaintiffs pursued their administrative remedies and now claim a right to file a civil action in the circuit court. 20 U.S.C. Sec. 1415, subds. (a) -(e). We are convinced that the above facts, taken to be true in a motion for summary judgment, make out a cause of action in counts I and II.

Counts III and IV allege general handicappers civil rights violations. These are general acts concerning basic civil rights for handicappers whereas the EHA and the MMSE are specific rules for education or handicappers. In Flint Bd. of Ed. v. Williams,...