Andress v. Cleveland Independent School DistrictAndress v. Cleveland Independent School District
Case Information
*1 Before LAY, [1] DUHÉ and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
This is аn appeal by the Cleveland Independent School District
("the school district"), which was forced to pay, under the
Individuals with Disabilities Education Act,
Wesley also sued the school distriсt and the Texas Central
Education Agency ("TEA") under § 504 of the Rehabilitation Act of
1973 (codified at 29 U.S.C. 794) and
BACKGROUND
Weslеy Andress, now a twenty-four year old man, was enrolled in the Cleveland Independent School District from 1982 to 1988. In 1982, the school district evaluated Wesley and classified him as learning disablеd and speech impaired special education student under IDEA. In 1985, the school district reevaluated Wesley and determined that while he was no longer speech impаired, he remained learning disabled under IDEA.
During the fall of 1986, Wesley was taunted and hazed by his classmates. Eventually, the taunting turned to physical violence, *3 and, once, fellow students attempted "to poke a tennis racket up his rear". As a result of this abuse, Wesley was admitted to a psychiatric hospital in the spring of 1987.
After Wesley's release from the psychiatric hospital, he was placed, at the request of his psychiatrist, Dr. Barbara Hibner, on homebound instruction for the 1987-88 school year. Wesley's three- year comprehensive reevaluation to establish his continuing eligibility for special education services ("reevaluation") was due by late-March 1988. Wesley's parents were aware that а reevaluation was needed, however, based on their understanding of Dr. Hibner's advice that Wesley would be traumatized by additional testing, they refused to allow the school district tо test Wesley. Instead, Wesley's parents obtained independent assessments. The school district rejected the assessments, as they did not comply with Texas State Board of Education criteria.
Wesley did not attend school during the 1988-89 school year. In the 1989-90 school year, Wesley's parents unilaterally placed him in Memorial Hall, a small private sсhool, where he remained through the 1990-91 school year.
In December 1989, Wesley's parents requested a special education due process hearing, and in April 1991,the hеaring officer rendered a decision. The hearing officer held that the school district cannot be compelled to accept independent assessments in liеu of completing its own reevaluation. Wesley's parents filed suit in federal district court in December 1992, seeking to overturn the hearing officer's decision. In March 1994, *4 the district court found for Wesley and reversed the hearing officer. The district court held that, while school districts have the right to use their own personnel to reevaluate students, there is an exception where "supervening medical and psychological factors suggest that further evaluations . . . would further damage the student".
The district court awarded Wesley damages of $20,870 and attorney's fees of $28,187.50. The school district filed a timely notice of appeal.
SCHOOL DISTRICT'S RIGHT TO REEVALUATE WESLEY
Congress passed IDEA in an effort to ensure that "all
handicapped children have available to them . . . a free
appropriate education which emphasizes special education and
related services designed to meеt their unique needs".
If a student's parents want him to rеceive special education
under IDEA, they must allow the school itself to reevaluate the
student and they cannot force the school to rely solely on an
indеpendent evaluation. Gregory K. v. Longview School Dist., 811
F.2d 1307, 1315 (9th Cir. 1987) ("If the parents want [the student]
to receive special education under the Act, they are obliged to
permit such testing."); DuBois v. Conn. State Bd. of Ed., 727 F.2d
*5
44, 48 (2d Cir. 1984) ("[T]he school system may insist on
evaluation by qualified professionals who are satisfactory to the
school officials."); Vander Malle v. Ambach,
Cir. 1983) (School officials are "entitled to have [the student]
examined by a qualified psychiatrist of their choosing."). A
parent who disagrees with the school's evaluation has the right to
have the child evaluated by an independent evaluator, possibly at
public expense, and the evaluation must be considered by the school
district.
It would be incongruous under the statute to recognize that the parents have a reciprocal right to an independent evaluation, but the school does not. Furthermore, the school, under the existing facts, had every right to insist on an independent evaluation because the parents' evaluations did not comply with the Texas State Board of Education criteria.
Thе district court in the instant case recognized that school districts have the right to use their own personnel to reevaluate students. However, the district court said that there was an exception to this rule when further testing by school officials would harm the child medically and psychologically. The district court found that the exception was met herе and the school district did not have a right to reevaluate Wesley.
The district court erred in creating this judicial exception to the rule. The district court cited no law in support of its position. Nothing in the statutes, regulations or caselaw supports *6 such an exception. [2] Therefore, we hold that there is no exception to the rule that a school district has a right to test a student itself in order to evaluate or reevaluate the student's eligibility under IDEA.
WESLEY'S § 504 AND
Wesley sued the school district and the TEA under § 504 of the
Rehabilitation Act of 1973 (codified at 29 U.S.C. 794) and
Wesley requested four continuances of the due process hearing
and did not oppose many of the school district's request for
continuances. Wesley's attorney sent a lettеr to the hearing
officer indicating he was waiving the 45-day requirement.
Therefore, as Wesley waived any right to a decision within 45 days,
the district court did not err in dismissing his § 504 and
CONCLUSION
A handicapped student must be reevaluated every three years to determine his continuing eligibility for special education under IDEA. A parent whо desires for her child to receive special education must allow the school district to reevaluate the child using its own personnel; there is no exception tо this rule. Wesley's parents refused to allow the school district to reevaluate him. Therefore, Wesley was not eligible for special education after March 1988, when his rеevaluation was due.
Because Wesley was not eligible for special education after
March 1988, the school district does not owe Wesley or his parents
any mоney to reimburse them for the cost of providing Wesley with
special education. Accordingly, the judgment of the district court
in favor of Wesley is REVERSED and judgment is RENDERED in favor of
defendant-aрpellant Cleveland Independent School District that
plaintiff-appellee Wesley Andress take nothing. The judgment of
the district court dismissing Wesley's § 504 and
REVERSED AND RENDERED IN PART AND AFFIRMED IN PART. reach that issue.
opin\94-40669.opn
Notes
[1] Circuit Judge of the Eighth Circuit, sitting by designation.
[2] The only case we found concerning any such exception was Doe v. Phillips, 20 I.D.E.L.R. 1150 (N.D. Cal. 1994), where the district court held that there was no medical exception to the school district's right to reevaluate a student using its own personnel.
[3] There is some question as to whether § 504 requires hearing officers to render decisions within 45 days. However, because Wesley waived any right to a decision within 45 days, we need not