Barnett v. Memphis City Schools , 113 F. App'x 124 ( 2004 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0045n.06
Filed: October 28, 2004
Case No. 01-5050
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ADAM BARNETT, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
MEMPHIS CITY SCHOOLS, ) DISTRICT OF TENNESSEE
)
Defendant-Appellee. )
)
_______________________________________ )
BEFORE: KENNEDY, SUHRHEINRICH and BATCHELDER, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Terry and Janeene Barnett, on behalf of their
son, Adam Barnett, appeal the district court’s order affirming the administrative law judge’s (“ALJ”)
denial of their claim for compensatory education pursuant to the Individual’s with Disabilities
Education Act (IDEA), 20 U.S.C. § 1401 et seq. Adam Barnett was born prematurely on April 17,
1979, with cerebral palsy, no hands, and only one foot. He has low average intelligence and learning
disabilities in reading and mathematics. Adam uses a wheelchair and requires assistance when
eating, dressing, and bathing. He attended Memphis City Schools, specifically the Shrine School,
from ages six to twenty-one, before graduating in Spring 2000 with a special education diploma.
On behalf of Adam, his parents requested a hearing before a state-appointed ALJ in August
1999. They asserted that the Memphis City Schools failed to provide Adam with a free appropriate
public education (“FAPE”) as required under the IDEA. On February 29, 2000, the ALJ concluded
that the Shrine School had provided Adam with the requisite FAPE, and held in favor of the
Memphis City Schools. Barnett’s parents then challenged that decision in the United States District
Court for the Western District of Tennessee. The district court affirmed the decision of the ALJ.
The court concluded that the school system committed procedural violations of the IDEA by failing
to relay information contained in a psychological evaluation and a “vocational rehabilitation
assessment” to Adam’s parents, but nevertheless held that these procedural violations do not
preclude the ALJ’s decision that Adam received a FAPE, and therefore denied plaintiffs’ claim for
compensatory education. Plaintiffs appealed to this Court.
After carefully reviewing the parties’ briefs and the record, and considering additional claims
made at oral argument, we concluded that we were not in a position to determine whether, as a
jurisdictional question, the case was moot. We noted that Adam is no longer attending the Shrine
School, and we therefore vacated the district court’s holding and remanded for the sole purpose of
determining whether Adam’s removal from the Memphis City Schools makes this case moot.
Pursuant to our remand, the district court held an evidentiary hearing, in which Adam
testified under oath that he had requested compensatory education but had been denied it. Adam
described his reasons for leaving the Shrine School, including harassment from school staff as a
result of his bringing a prior personal injury suit, as well as witnessing the harassment and assault
of other disabled students, and generally not feeling safe and comfortable in the school environment.
He acknowledged that he had received a special education diploma and testified that he would like
further assistance with reading, math, and computer skills. He receives instruction once per week
at the Mid-South Assistive Technology Center and is willing to take a variety of courses more
frequently, but cannot due to lack of funds. Following the evidentiary hearing, the district court held
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that plaintiffs’ request for compensatory education is not moot, despite his age.1 According to the
district court, “[a] proper request for compensatory education presents no issue of mootness, since
the reviewing court investigates [and compensates for] past violations.”
Because the district court found that the case is not moot, plaintiffs once again appeal the
district court’s initial decision affirming the judgment of the ALJ. The defendant Memphis City
Schools contends that the district court erred in finding that plaintiffs’ claim for compensatory
education is not moot, and argues that if we hold otherwise we should nonetheless affirm the district
court’s and ALJ’s earlier denial of plaintiffs’ claims under the IDEA.
I.
The district court did not err in holding that plaintiffs’ claim for compensatory education is
not moot. Plaintiffs claim that the Memphis City Schools must pay for educational services because
the school system illegally denied Adam Barnett a FAPE when he was under age twenty-one.
Compensatory education is a judicially-constructed form of relief designed to remedy past
educational failings for students who are no longer enrolled in public school due to their age or
graduation. See Pihl v. Massachusetts Dept. of Educ., 9 F.3d 184, 189 (1st Cir. 1993). Plaintiffs
in this case have asked the court to investigate past violations and to compensate for the denial of
a FAPE with present educational services.
The district court relied on Sch. Comm. of the Town of Burlington v. Dept. of Educ., 471 U.S.
359 (1985), in which the Supreme Court held that a school district must reimburse parents for
private placement of a student with special education needs if a court determines that the private
setting provided an appropriate education, but the public school’s proposed individualized
1
Adam was age 24 at the time of the district court’s decision; the IDEA requires each state to effect a policy
that ensures that “all children with disabilities aged 3 through 21” have the right to a FAPE. See C.F.R. § 300.121.
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educational program (“IEP”) did not. Id. at 369. The district court noted below that after
Burlington, parents in disagreement with a proposed IEP could place their children in private
settings and later be reimbursed for tuition for any services that were appropriate. See id. Several
courts of appeals, including this Court, later extended Burlington’s reasoning to award compensatory
education. School districts were ordered to provide education to a disabled child past his or her
twenty-first birthday to make up for any earlier deprivation of an appropriate education. See Pihl,
9 F.3d at 189; M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389, 395 (3d Cir. 1996); Hall v. Knott County
Bd. of Educ., 941 F.2d 402, 407 (6th Cir. 1991); Bd. of Educ. of Oak Park v. Ill. State Bd. of Educ.,
79 F.3d 654, 660 (7th Cir. 1996); Miener v. Missouri, 800 F.2d 749, 753 (8th Cir. 1986). In a case
similar to the present one, we said:
Like the retroactive reimbursement in Burlington, imposing liability for
compensatory educational services on the defendants “merely requires [them] to
belatedly pay expenses that [they] should have paid all along,” 105 S. Ct. at 2003.
Here, as in Burlington, recovery is necessary to secure the child's right to a free
appropriate public education. Id.
Hall, 941 F.2d at 407.
The defendants argue that the district court erred in finding that plaintiffs’ claim for
compensatory education is not moot. The school system suggests that the very question of whether
a claim for compensatory education is viable “is inappropriate speculation” because “such relief was
not an issue before the administrative law judge, nor was it requested of the District Court.” To the
contrary, it is clear from the record of the proceedings before the ALJ that plaintiffs did in fact
request compensatory education, such as they seek now. In its initial decision affirming the ALJ,
the district court specifically noted that the ALJ “denied Petitioner’s claim for compensatory
education.” It is this claim that the district court addressed in determining on remand that the claim
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for compensatory education is not moot.
Defendant also takes umbrage with Adam Barnett’s testimony that he left the Shrine School
because of harassment. “No issues were raised [before the ALJ] contenting [sic] that the Plaintiff
was the subject of any harassment by the Memphis School System . . . .” Plaintiff did provide
testimony about harassment, however, during the proceeding held pursuant to our order remanding
and instructing the district court to hear additional evidence to determine whether Adam’s removal
from the Memphis City Schools moots this case. Defendant relied on Russman v. Bd. of Educ., 260
F.3d 114 (6th Cir. 2001), a case in which the plaintiff left school on her own accord, to argue that
a plaintiff’s claims are rendered moot when the student withdraws from school. Adam Barnett’s
testimony was offered to rebut that argument. According to Adam, he left the Shrine School at least
in part because of harassment from school staff as a result of his bringing a prior personal injury
lawsuit. His situation is also different from that of the plaintiff in Russman because he is currently
enrolled in an educational program and requests more educational services from the Memphis City
Schools, whereas the plaintiff in Russman had no intention of re-enrolling in public or private
school. The district court did not err by allowing testimony, pursuant to our order to hold an
evidentiary hearing, that touched upon Adam’s reasons for leaving the Memphis City Schools and
was offered in response to defendant’s mootness claim.
II.
Having established that plaintiffs’ claim for compensatory education is not moot, we must
next address the merits of plaintiffs’ claim that the Memphis City Schools failed to provide Adam
with a FAPE as required under the IDEA. A court’s inquiry into suits brought under the IDEA is
twofold. Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982). First, the court must determine whether
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the state has complied with the procedures set forth in the IDEA. Id. Second, the court assesses
whether the IEP developed through those procedures is reasonably calculated to enable the child to
receive educational benefits. Id. at 206-07. In examining these issues, we review the district court’s
findings of fact under a clearly erroneous standard of review, and its conclusions of law de novo.
Knable v. Bexley City School District, 238 F.3d 755, 764 (6th Cir. 2001); Tucker v. Calloway County
Bd. of Educ., 136 F.3d 495, 503 (6th Cir. 1998).
The district court properly found that the Memphis City Schools committed procedural
violations of the IDEA in failing to inform Adam’s parents of the results of his 1995 psychological
evaluation and his 1998 vocational evaluation. The procedural requirements of the IDEA entitle
parents of a disabled child to “examine all records relating to such child,” 20 U.S.C. § 1415(b)(1),
and to participate in the formulation of the child’s IEP. 20 U.S.C. § 1414(d)(1)(B). Despite the fact
that the Barnetts met with Shrine School officials in 1996, 1997, 1998, and 1999 to develop Adam’s
annual IEP, they were never informed of the results of his most recent evaluations. The IEP team,
including the parents, therefore, did not consider the most recent data or have the opportunity to
revise Adam’s IEP to address the results of his reevaluations. See 20 U.S.C. § 1414(c)(1)(A); §
1414(c)(1)(B)(i)(ii)(iv); § 1414(d)(3)(A)(ii); § 1414(d)(4)(A)(ii). The failure of the school to inform
Adam’s parents of the results of his evaluations prevented the parents from participating adequately
and meaningfully in the formulation of his IEPs. These failures violated the procedural requirements
of the IDEA.
Since a school system’s failure to comport with the procedural requirements of the IDEA
will constitute a denial of a FAPE only if such violations caused substantive harm to the child or his
parents, Knable, 238 F.3d at 764, we must next address whether the IEPs developed through the
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act’s procedures were reasonably calculated to enable Adam to receive educational benefits.
Although the IDEA does not require the state to “maximize the potential of each handicapped child,”
the statute does require that the schools provide “access to specialized instruction and related
services which are individually designed to provide educational benefit to the handicapped child.”
Rowley, 458 U.S. at 200-01. We have specifically recognized that “the educational benefits the state
does provide must be more than de minimis in order to be appropriate.” Doe v. Board of Educ. of
Tullahoma City Sch., 9 F.3d 455, 459 (6th Cir. 1993) (internal quotation omitted).
Despite finding that the Memphis City Schools committed procedural violations of the
IDEA, the district court nevertheless held that these procedural violations do not preclude the ALJ’s
decision that Adam received a FAPE. The burden is on the parents to prove by a preponderance of
the evidence that the IEPs were inadequate, Renner v. Bd. of Educ of the Pub. Sch. of Ann Arbor,
185 F.3d 635, 642 (6th Cir. 1999), and as we noted in our order remanding this case, we have some
sympathy with the school system’s contention that the evidence presented by Adam’s parents was
not particularly helpful in demonstrating whether Adam’s capabilities are as extensive as his parents
claim. But as we noted in that order, the intended beneficiary of the IDEA is not the parents of the
individual with a disability, but the disabled individual. In its brief as amicus curiae in support of
plaintiffs, the United States aptly recognized that the objective evidence supports the conclusion that
Adam did not receive more than a de minimis educational benefit from the Memphis City Schools.
We agree.
The district court expressly recognized that Adam’s scores on the Vineland Adaptive
Behavior Scales, measuring a student’s personal and social skills, decreased between 1995 and 1999,
indicating “that he lost skills during those years.” The results of Adam’s 1998 vocational evaluation
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also showed that he had developed no independent living skills or vocational abilities, but the court
never considered this evidence. The Woodcock-Johnson Tests of Achievement measure what a
student actually learns in subjects such as math and reading, and Adam exhibited essentially the
same achievement level from 1995-1999 prompting the school system to note that “Adam earned
standard scores significantly lower than would be expected based upon his current level of
intellectual functioning.”2 The district court nevertheless disregarded this lack of meaningful
progress because the second administration of the test was unstandardized as the material was
enlarged and extra spaces were placed between the words to accommodate Adam’s visual
deficiency. We think it not insignificant that Adam’s scores failed to improve appreciably even after
accommodations were contrived to account for his physical limitations. The district court also
considered Adam’s improvement on the Wechsler Intelligence Scale to be evidence that he received
an educational benefit. Not only does the Wechsler test measure natural intelligence rather than
academic achievement, but Adam’s scores also consistently remained within the applicable margin
of error. The results of the Wechsler tests, therefore, were insignificant and in no way indicative of
an educational benefit.
The record demonstrates that when Adam failed to reach the goals set forth in his IEPs in any
given year, the school district did not recommend, let alone adopt or implement, any approaches to
his instruction different from those already demonstrated to have failed. Despite the district court’s
reliance on the testimony of Betty Pulley, Adam’s former math teacher, who testified that he made
2
In 1995, when Adam was 16, his broad reading score was at age level six years, nine months, with a grade
equivalent of 1.3. In mathematics (applied problems), his score placed him at age level five years, eleven months,
with a grade equivalent of K.8. In 1999, when Adam was 21, his broad reading score was at age level seven years,
one month, with a grade equivalent of 1.5, while his mathematics score was at age level six years, 9 months, with a
grade equivalent of 1.5. At all times he remained in the lowest one percentile in terms of achievement.
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steady improvement in her class, in addition to “gradual slow progress” in other areas, neither his
IEPs nor his test results corroborate such a conclusion. Ms. Pulley’s testimony, however, does
suggest that Adam has been capable of progressing beyond that which was called for in the IEPs.
Accordingly, we find that the district court erred in concluding that Adam received a FAPE as
required by the IDEA, and plaintiff is entitled to compensatory education.
III.
For the foregoing reasons, we AFFIRM the decision of the district court on the issue of
mootness. We REVERSE the decision of the district court as to plaintiffs’ claims under the IDEA
and REMAND for further consideration as to the appropriate relief.
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KENNEDY, Circuit Judge, concurring. I agree with the majority that plaintiff’s case is not
moot. I also agree with the majority that plaintiff did request compensatory education at the
administrative hearing in that he was asking for a transitional plan and transitional services so that
he could achieve some type of community integration and level of independence in the work world.
I agree with the ALJ and the district court’s original decision that the plaintiff, who had the
burden of proof to establish that Adam failed to achieve progress at Shrine School, did not present
any evidence that he had not made progress. The evidence plaintiff presented established only that
with other assistive technology he might well have made greater progress.
However, I would find that the ALJ’s determination that Adam’s transitional plans complied
with the IDEA was not supported by substantial evidence and that he is, therefore, entitled to relief.
The ALJ relied on the testimony of Mr. Raney that the plan documents (beginning with the
1994 IEP) “go completely beyond requirements” to support the conclusion that Adam’s transitional
plans met IDEA requirements. However, Mrs. Barnett testified that Adam received no transitional
services and the school district offered no evidence to the contrary. There was no evidence he
received transitional services. Karen Anderson, an instructor in the University of Memphis College
of Education, who taught undergraduate and graduate teachers how to conduct IEP meetings and
write IEPs, and was formerly director of the Mid-South Access Center for Technology at the
university, an evaluation site for individuals with disabilities of all ages, testified that Adam’s
transitional goals were first written beginning in 1994. (Hearing Transcript 334) None were noted
as being completed. She also testified that some were inappropriate for a transition plan. For
example, one goal states at age 20 Adam will acquire a driver’s license. There was no explanation
of how he could attempt to achieve that goal or what steps could be taken. There was no indication
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anywhere in the transition plans about what Adam would be doing vocationally after schooling.
Nothing about possible employment -- nothing even about supported employment. Ms. DePriest,
the Director of Exceptional Children for the Memphis City School System who monitors compliance
with the IDEA, testified that nothing in Adam’s record indicated he had received any vocational
rehabilitation services in the five years before the hearing . (Hearing Transcript 385).
Ms. DePriest acknowledged that there were no records that showed any plan as to how Adam
would attempt to achieve a driver’s license and that many of the stated objectives that involved the
parents doing something were not designed for Adam’s unique needs to transition him to the real
world. (Hearing Transcript 390-391).
Not until the 1998-99 IEP did a transition plan say anything about interaction with
community agencies and that gainful employment is a goal. (Hearing T. 399) However, Adam was
determined during the course of that year not to be entitled to vocational rehabilitation.
Indeed, Ms. DePriest acknowledged that even Adam’s transition plan for 1998 was not an
appropriate transition plan.
Because the transitional plans were such an important component of the IEP’s for the last
few years of Shrine school, I agree that he did not receive a FRAP during his last years at Shrine
School and concur.
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