Opinion
Case No. 4:00-CV-42
January 17, 2001
ORDER
In accordance with the Opinion filed on this date,
IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment (docket no. 48) is GRANTED.
This case is closed.
OPINION
On or about March 31, 2000, Plaintiffs, Marla and Michael Schwartz, filed this claim against Defendant, the Learning Center, a charter school located in Byron Center, Michigan, alleging violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the "Rehabilitation Act"). On July 18, 2000, Plaintiffs filed a first amended complaint, alleging that Michael was being denied a Free Appropriate Public Education ("FAPE") and requesting the Court to order Defendant to comply with the Rehabilitation Act and to pay Plaintiffs' reasonable costs and attorney's fees. Now before the Court is Defendant's motion for summary judgment. For the reasons that follow, Defendant's motion will be granted.
Plaintiffs state that they are not seeking monetary damages.
Plaintiffs have also appealed the conditions of Magistrate Judge Hugh W. Brenneman's decision granting the Learning Center a right to evaluate Michael, and have moved for leave to file a supplemental brief regarding this appeal. Because the Court will grant summary judgment to Defendant, this appeal and motion are moot.
Relevant Statutes and Regulations
The statutes and regulations relevant to this action follow. Section 504(a) of the Rehabilitation Act, 29 U.S.C. § 794(a), provides that "[n]o otherwise qualified individual with a disability in the United States, as defined in section 7(8), shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). A "program or activity" includes all operations of "a local educational agency . . ., system of vocational education, or other school system." 29 U.S.C. § 794(b).34 C.F.R. § 104.35 provides that
A recipient that operates a public elementary or secondary education program shall conduct an evaluation in accordance with the requirements of paragraph (b) of this section of any person who because of handicap, needs or is believed to need special education or related services before taking any action with respect to the initial placement of the person in a regular or special education program and any subsequent significant change in placement.
34 C.F.R. § 14.35(a).
Michigan Compiled Laws § 380.504(3) provides that "[e]nrollment in the public school academy . . . shall be open to all pupils who reside within the geographic boundaries, if any, of the authorizing body . . . who meet the admission policy." Id.
34 C.F.R. § 104.36 provides that
A recipient that operates a public elementary or secondary education program shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of the Education of the Handicapped Act is one means of meeting this requirement.Id. 34 C.F.R. § 104.34(a) provides that
A recipient to which this subpart applies shall educate, or shall provide for the education of, each qualified handicapped person in its jurisdiction with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person. A recipient shall place a handicapped person in the regular educational environment operated by the recipient unless it is demonstrated by the recipient that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily.Id.
The Learning Center does not dispute the application of any of these statutes or regulations to it.
Facts
Michael Schwartz is a minor who has been enrolled as a student at the Learning Center since the 1999-2000 school year. Due to an alleged social phobia, however, Michael has never attended school at the Learning Center. Instead, the Learning Center has provided Michael with a home instruction program consisting of sending a tutor to Michael's house, who provides Michael 10 hours of instruction per week in math, science, social studies, and language arts. Marla Schwartz is Michael's mother. Ms. Schwartz filed this action in pro peron March 31, 2000, alleging that the Learning Center was violating the Rehabilitation Act by failing to provide an appropriate education for her son. The complaint claims that Michael needs more instruction to reach grade level achievement, that a substitute teacher is not provided if Michael's regular teacher must be absent, and that Michael is in need of books, lab kits, and other hands-on materials. The first amended complaint adds no further facts or claims, but reiterates Ms. Schwartz's contention that the Learning Center is in violation of the Rehabilitation Act. The Learning Center responds that the regulations implementing the Rehabilitation Act require it to conduct an evaluation of Michael prior to placing him in or changing his educational program, and that Ms. Schwartz has refused to allow such an evaluation to take place. See 34 C.F.R. § 104.35(a).The Learning Center is required by Michigan law to accept any student for whom it has space. See M.C.L. § 380.504(3). Ms. Schwartz initially contacted the Learning Center in August 1999, requesting enrollment for Michael. After meeting with Mr. Tom Kruzel, the principal of the Learning Center, to enroll Michael in the Learning Center, Ms. Schwartz was requested to provide Mr. Kruzel with appropriate materials to help the Learning Center determine a suitable placement for Michael. The Learning Center did not receive many of the materials they desired to use in evaluating Michael. Rather, Ms. Schwartz presented Mr. Kruzel with 3 letters from various doctors, dated 1998, which stated that Michael should not currently attend school full-time, though he should be integrated into a school setting over time. (See Kruzel Dep. at 9-10, Def's Br. Supp. Summ. J. Ex. l.C.; Letter from Mettler of 3/5/98, Letter from Kapik of 1/20/98, Letter from Green of 1/5/98, Def's Br. Supp. Summ. J. Exs. 2-4.) On the basis of these letters, Mr. Kruzel and Ms. Schwartz agreed that the Learning Center would provide Michael with a certified teacher in his home for 10 hours of instruction per week. (See Kruzel Dep. at 10-11; Homebound Working Agreement, Def.'s Br. Supp. Summ. J. Ex. 5.) The Learning Center did this to provide Michael with needed services while a plan for his reintegration into a school setting was developed. (See Kruzel Dep. at 17-18.) No mention of the Rehabilitation Act was made at this time. (See Kruzel Dep. at 11, 19.) Because of the limited time frame, the requirement that Michael be enrolled, the receipt of insufficient materials to conduct a full evaluation in the required time frame, and the lack of any mention by Ms. Schwartz of Michael's potential eligibility under the Rehabilitation Act, a full evaluation of Michael was not conducted at that time.
Upon admitting Michael, the Learning Center requested that Ms. Schwartz forward to them Michael's records from the Portage Public Schools, his former school system. (See id. at 41-42.) The Learning Center received several documents but not as many as they typically received from other schools. Mr. Kruzel then phoned Ms. Schwartz and the Portage Public Schools, but he received no further information at that time. Portage Public Schools informed Mr. Kruzel that they did not feel comfortable releasing more records without Ms. Schwartz's written consent (See id. at 41-43.) In October of 1999, in spite of her agreement signed in August, Ms. Schwartz informed Mr. Kruzel that she was not satisfied with Michael receiving only 10 hours of instruction per week and that she would invoke the Rehabilitation Act if necessary in order for Michael to receive more hours of instruction. (See id. at 11; Mem. to Kruzel from Marla Schwartz of 10/18/99, Def.'s Br. Supp. Summ. J. Ex. 8.)
On November 9, 1999, Portage Public Schools sent Ms. Schwartz a record of all documents it had regarding Michael, asking her to note which ones she would consent to have released to the Learning Center. Ms. Schwartz refused to allow the Learning Center access to the vast majority of Portage Public School's records, including most of the psychological and Rehabilitation Act records. (Letter from Boersma to Marla Schwartz of 11/9/99, Def.'s Br. Supp. Summ. J. Ex. G.) These documents were not received by the Learning Center until it subpoenaed them in this case in August 2000. Similarly, other testing and evaluation documents relating to Michael, while requested four or more times by the Learning Center between August and November 1999, were not released by Ms. Schwartz until they were ordered released by this Court in June 2000. Nevertheless, on December 1, 1999, pursuant to 34 C.F.R. § 104.36, the Learning Center invited Plaintiffs to a meeting regarding Michael's educational program. (See Invitation to Attend the 504 Planning Meeting, Def's Br. Supp. Summ. J. Ex. 10.) There is no indication in the record that the Learning Center notified Ms. Schwartz of her opportunity to be represented by counsel at this hearing.
34 C.F.R. § 104.36 provides that at such a hearing there should be "an opportunity for participation by the person's parents or guardian and representation by counsel."
After the meeting, the Learning Center agreed to continue to provide Michael with 10 hours per week of individual teaching, but recommended that an attempt be made to integrate him into a school setting if possible in lieu of adding additional hours of home instruction. (See Letter from Kruzel to Mr. and Mrs. Schwartz of 12/15/99, Def's Br. Supp. Summ. J. Ex. 10; Kruzel Dep. at 17-18, 50. See also 34 C.F.R. § 104.34(a).) Ms. Schwartz then requested a review of this decision pursuant to 34 C.F.R. § 104.36. James Flaggert, a Grand Rapids attorney, was selected as the hearing officer. After a telephone conference between himself and the parties, Flaggert recommended that Michael be evaluated to determine his eligibility for a specialized educational program under the Rehabilitation Act. Ms. Schwartz did not agree to allow Michael to undergo further testing, alleging that it would be detrimental to his well-being. After warning Ms. Schwartz that if she did not allow Michael to be evaluated, he would dismiss the hearing, Ms. Schwartz still refused to allow an evaluation. Accordingly, on March 15, 2000, Flaggert dismissed the hearing. (See Letter from Flaggert to Kruzel and Schwartz of 2/2/2000; Letter from Flaggert to Kruzel and Schwartz of 2/24/2000; Letter from Flaggert to Kruzel and Schwartz of 3/15/2000, Def's Br. Supp. Summ. J. Exs. 11, 14, 15.)
1 C.F.R. § 104.34(a) provides that
A recipient . . . shall educate . . . each qualified handicapped person in its jurisdiction with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person. A recipient shall place a handicapped person in the regular educational environment operated by the recipient unless it is demonstrated that the education of the person in the regular environment . . . cannot be achieved satisfactorily.
In proceedings referred to him by this Court, Magistrate Judge Hugh W. Brenneman on October 17, 2000, granted the Learning Center's motion to conduct a mental examination of Michael. To make Michael as comfortable as possible, this examination is to take place in Michael's home. Judge Brenneman ordered that no one other than Michael and the examiner be allowed in the room. Plaintiffs request that they be allowed to have a person familiar with Michael in the room, and that the examination be videotaped. Plaintiffs have also filed a motion for leave to file a supplemental brief on this issue.
Analysis Summary Judgment Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a Judgment as a matter of law. Fed.R.Civ.P. 56. The rule requires that the disputed facts be material. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quotingMatsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986)).
Discussion
Plaintiffs allege that the Learning Center has discriminated against Michael because (1) his current educational program does not supply enough hours; (2) the school has Michael's teacher make up the hours she misses, rather than hire a substitute, when she cannot instruct Michael; and (3) they are in need of books, lab kits, and other unspecified hands-on materials. The Learning Center responds that: (1) pursuant to 34 C.F.R. § 104.34, it wishes to supply additional hours of instruction in the most integrated setting possible; (2) that it has determined as a matter of educational policy that having a teacher such as Michael's make up missed time rather than providing a substitute teacher is a more effective educational strategy; and (3) no books, lab kits or other materials have been denied to Michael on the basis of his disability.
In order to establish a violation of the Rehabilitation Act, a plaintiff must show:
(1) The plaintiff is a "handicapped person" under the Act; (2) The plaintiff is "otherwise qualified" for participation in the program; (3) The plaintiff is being excluded from participation in, being denied the benefits of, or being subjected to discrimination under the program solely by reason of his handicap; and (4) The relevant program or activity is receiving Federal financial assistance.Maddox v. Univ. of Tenn., 62 F.3d 843, 846 (6th Cir. 1995) (quotingDoherty v. S. Coll. of Optometry, 862 F.2d 570, 573 (6th Cir. 1988)).
Plaintiffs have cited no cases to show that Michael is handicapped under the Rehabilitation Act. For the purposes of this motion, and because the parties have not argued this point, the Court will assume without deciding that Michael's alleged school or social phobia constitutes a handicap under the Rehabilitation Act. See Maddox, 62 F.3d at 846 (assuming without deciding that alcoholism is a handicap under the Rehabilitation Act).
The Rehabilitation Act provides relief from discrimination on the basis of disability. See id. The Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA", a/k/a the Education of the Handicapped Act), provides relief from inappropriate educational placement decisions regardless of discrimination. See Sellers v. Sch. Bd. of City of Manassas, 141 F.3d 524, 528 (4th Cir. 1998). Many circuit courts have held that parties are not qualified for an educational program under IDEA if they do not consent to an evaluation by the school district. See Patricia P. v. Bd. of Ed. of Oak Park, 203 F.3d 462, 468-69 (7th Cir. 2000); Johnson by Johnson v. Duneland Sch. Corp., 92 F.3d 554, 558 (7th Cir. 1996) (citing Andress v. Cleveland Indep. Sch. Dist., 64 F.3d 176 (5th Cir. 1995)); Gregory K. v. Longview Sch. Dist., 811 F.2d 1307,1315 (9th Cir. 1987) (citing Dubois v. Conn. State Bd. of Educ., 727 F.2d 44, 48 (2d Cir. 1984), and Carroll v. Capalbo, 563 F. Supp. 1053, 1058 (D.R.I. 1983)); Vander Malle v. Ambach, 673 F.2d 49, 53 (2d Cir. 1982). See also Tucker by Tucker v. Calloway County Bd. of Educ.,136 F.3d 495, 503-5 (6th Cir. 1998) (where school could not develop an appropriate educational plan for student because parents' actions (initially requesting a delay of implementation of the plan, and then informing the school that they were withdrawing their son from school) prevented it from doing so, school did not violate IDEA). Furthermore, with respect to whether or not an educational program discriminates on the basis of disability, claims under the Rehabilitation Act stand or fall with claims under IDEA. See Soraruf v. Pinckney Cmty. Schs., No. 98-2052, 2000 WL 245501, at *4 (6th Cir. Feb. 23, 2000) (per curiam) (because the school district did not violate plaintiffs right to a free appropriate education under IDEA, it did not violate his rights under the Rehabilitation Act); Cordrey v. Euckert, 917 F.2d 1460, 1475-76 (6th Cir. 1990) (claim that the School District, School Board and school officials discriminated in provision of plaintiff's extended school year program "stands or falls with their claim under the Education of the Handicapped Act"). See also Urban v. Jefferson County Sch. Dist., 89 F.3d 720, 728 (10th Cir. 1996)(citing, among other cases, Smith v. Robinson, 468 U.S. 992, 1017, 104 S.Ct. 3457, 3471 (1984) (stating that IDEA and the Rehabilitation Act "are built around fundamental notions of equal access to state programs and facilities" and therefore "their substantive requirements . . .have been interpreted to be strikingly similar")); but see Sellers, 141 F.3d at 528 ("IDEA and the Rehabilitation Act are different statutes. Whereas IDEA affirmatively requires participating states to assure disabled children a free appropriate public education, . . . the Rehabilitation Act instead prohibits discrimination against disabled individuals"). At least one federal court has already recognized the parallels between a required evaluation under IDEA and one under the Rehabilitation Act, and held that parents must consent to an evaluation under the Rehabilitation Act before it applies. See Jensen v. Reeves, 45 F. Supp.2d 1265,1277 (D.Utah 1999).
Because Michael has not submitted to testing by the school administrators to determine the existence of and possible extent of his handicap — an examination that is required by 34 C.F.R. § 104.36, which a school is allowed to conduct with personnel of its own choosing — Michael is not "otherwise qualified" to receive programs under the Rehabilitation Act and is not being subjected to discrimination on the basis of his disability. The Learning Center is required by law to conduct an evaluation of all students who are handicapped or suspected of being handicapped. It is not specially singling Michael out for an evaluation. No exception to an evaluation requirement exists when a party alleges that an examination will be physically or mentally harmful. See Andress, 64 F.3d at 178-79. In addition, while a disabled person is otherwise qualified if he or she can meet the requirements of a program with or without reasonable accommodations, "discrimination laws do not require `an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person.'Kaltenberger v. Ohio Coll. of Podiatric Med., 162 F.3d 432, 436 (6th Cir. 1998) (quoting SE. Cmty. Coll. v. Davis, 442 U.S. 397, 413, 99 S.Ct. 2361 (1979). Preventing the Learning Center from examining Michael would be contrary to law and would require the school to substantially modify its policies and procedures to the detriment of both the school and taxpayers. A current evaluation by a psychiatrist of the school's choosing (which, of course, may not be conducted arbitrarily or in bad faith) allows a school to both refrain from giving unnecessary accommodations to those who do not need them or would be harmed by them, and to accurately determine the type of program that would best benefit a student in need of special accommodations.
The school is required by law to mainstream Michael as much as possible, and the only objection to the examination is apparently based on the fact that, as a social phobic individual, Michael will be harmed simply by participating in a psychological examination — an unfamiliar situation with unfamiliar people. However, Ms. Schwartz has allowed Michael to be examined in the past. Furthermore, while the desire to protect Michael from unnecessary interaction with others can be understood, Michael needs therapy for his phobia, and therapy involves people other than Michael's parents. If Michael is to be perpetually shielded from contact with everyone except his parents, he will be hard put to ever recover from his condition. This is not to say that there would be no difference in having Michael examined by a sensitive psychiatrist using accepted psychiatric methods and having him examined by a team of psychiatrists completely unfamiliar with his case and showing no awareness of Michael's fear of others. Barring such an extreme example, however, having Michael examined by a psychiatrist of the school's choosing is required by law and useful and necessary for the school to determine the appropriate placement for him.
Schools are not required to design an individual education program for individuals simply because the allege they are handicapped. Otherwise, resources would be diverted from other children — including those determined to genuinely possess a handicap — to design educational programs of questionable affect (but potentially substantial expense) for allegedly handicapped individuals. If the Schwartzes wish to take advantage of the Rehabilitation Act, they must first allow the school to determine whether or not they are entitled to do so. Only then may they successfully challenge the school's determination in a court of law. This Court will not hold that the Learning Center must ignore the provisions of 34 C.F.R. § 104.36, requiring an examination of Michael, because Ms. Schwartz does not want him evaluated. To do so would allow unsubstantiated claims of handicaps to turn the Rehabilitation Act into a generalized provision requiring schools to develop individual education plans for students upon request, regardless of their currentmental or physical condition.
Since Michael is not otherwise qualified or subject to discrimination solely on the basis of his disability, any further questions of discrimination under the Rehabilitation Act are moot. The Court notes that the Learning Center may not have followed appropriate procedures under 34 C.F.R. § 104.35 and 104.36 in two ways. First, as to § 104.35, it may not have conducted a full evaluation of Michael prior to agreeing to enroll him for the 1999-2000 school year. Secondly, it is not clear that it notified Ms. Schwartz of her right to have an attorney present at the December hearing on Michael's eligibility under the Rehabilitation Act (though it is not certain that it would be required to notify her of this right rather than simply provide it). Barring Ms. Schwartz's refusal to let the Learning Center evaluate Michael, these possible lapses in procedure potentially have some relevance to this Court's decision. See Cordrey, 917 F.2d at 1469 (stating that in reviewing a placement decision by a school under the IDEA, the Sixth Circuit exercises de novo review, but accords it "due weight" and "greaterdeference . . . if the procedural requirements of the Rehabilitation Act are met. In this way, the court's encroachment on the basically legislative decisions involving the distribution of educational resources is kept to a minimum"). Id. (quoting Roncker v. Walter, 700 F.2d 1058, 1062 (6th Cir. 1983) (emphasis added)). See also Babb v. Knox County Sch. Sys., 965 F.2d 104, 108 (6th Cir. 1992) (after finding that the school district had not properly complied with the procedures of the IDEA, the court ruled that the school's placement decision was not appropriate); Soraruf, 2000 WL 245501, at *3 ("Failure to comply with the Act's requirements, where the procedural violation does not actually interfere with the provision of a free appropriate public education, does not support a finding that the agency failed to provide a free appropriate public education." Id. (citing Gadsby v. Grasmick, 109 F.3d 940, 956 (4th Cir. 1997)). In this case, however, such considerations are moot because Michael is not otherwise qualified under the Rehabilitation Act and he is not being discriminated against solely because of his disability.
Conclusion
For the foregoing reasons, Defendant's motion for summary judgment will be granted.An Order consistent with this Opinion will be entered.