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December 19, 1994

JONATHAN G., by and through his parents and natural guardians, CHARLIE JOE. G. AND JANET G.

The opinion of the court was delivered by: ROY S. PAYNE

 The parents of Jonathan G., a special education student, contend that Jonathan's rights have been violated under federal and state laws pertaining to the education of students with disabilities. The defendants are the Caddo Parish School Board ("CPSB") and Dr. Terry Terril, in his official capacity as Superintendent of CPSB. The case is before the Court for the purpose of judicial review of administrative proceedings and for consideration, based upon the evidence submitted by the parties (including the transcript of the administrative proceedings, depositions, written exhibits and stipulated facts), of whether plaintiffs are entitled to relief on any of the various theories of recovery urged in their Complaint. By consent of the parties, the matter has been referred to the undersigned Magistrate Judge for disposition.


 The events at issue occurred in 1990 and 1991, at which time Jonathan was fourteen years old and attending Youree Drive Middle School ("Youree") in Shreveport. In order to understand the factual background leading to the complex and troubling issues presented by this case, however, it is appropriate to review Jonathan's experiences in the public schools prior to 1990.

 In 1986, at the age of eight, Jonathan was evaluated by CPSB regarding the possibility that he required special education services. He was attending Hillsdale Elementary School at the time. The primary reason that Jonathan was referred for evaluation was academic difficulty, particularly in reading and math. Behavior difficulties and temper control were also noted as problems. The evaluation concluded that Jonathan should be classified as learning disabled, and he was placed in CPSB's special education program.

 In January of 1989, while enrolled as a fifth grader at Arthur Circle Elementary School, Jonathan was re-evaluated "because of concerns regarding behavioral difficulties and continued academic deficits." The evaluation concluded that Jonathan met the criteria for classification as "behavior disordered/emotionally disturbed," with a secondary exceptionality of learning disabled. He was therefore transferred to the Alexander Special School for the balance of the 1988/89 school year and the entire 1989/90 year. Only exceptional students attend Alexander.

 Having made relatively good progress at Alexander, partial "mainstreaming" was desired and Jonathan began the 1990-91 school year in a "self-contained" special education class at Youree for students with behavior disorders. However, not all students in the class were classified as emotionally disturbed. In fact, very few of Jonathan's fellow students were classified as having such an exceptionality. At Youree, Jonathan had some interaction with students who were not part of the special education program, during physical education class and at lunch.

 The characteristics of Jonathan's behavior disorder, as described in CPSB's 1989 evaluation, included inability to retain control of his temper, refusal to follow instructions, defiance of authority and poor interpersonal relationships. Unfortunately, this evaluation turned out to be an accurate forecast of the problems Jonathan experienced at Youree during the 1990-91 school year. During that year, Jonathan was referred to the office of the assistant principal on thirty-one occasions for disciplinary incidents usually involving disrespect of his teachers, cursing and refusing to follow instructions. Between January and May, 1991, he received five disciplinary suspensions for a total of 22 days, for conduct ranging from running away from his teachers, leaving campus without authorization and, on one occasion, saying to his teacher that if he had a gun (which he did not), "I ought to put it to your head and pull the trigger."

 By May, 1991, Youree administrators and teachers felt that they could not control Jonathan's conduct and desired that he not attend Youree the next school year. They did not, however, seek to have CPSB re-evaluate Jonathan's placement status and educational needs. Instead, they attempted to convince Jonathan's parents that Youree was not the appropriate setting for his education, and that he should transfer to the Bethune Elementary School Early Adolescent Program, a highly structured program for students with behavior disorders. In May, June and August, 1991, Youree administrators advised Jonathan's parents that he should enter the Bethune program, or, in any event, not return to Youree. In correspondence to Jonathan's parents dated June 5, 1991, Youree's principal flatly stated that the school's building and screening committee had decided "that Jonathan not be placed at Youree Drive in the 1991-92 school year."

 Jonathan's mother, however, did not want him to attend Bethune, and declined Youree's strongly worded suggestions that he do so. *fn1" In August, Jonathan enrolled at Youree for the Fall semester of 1991, and for a time seemed to show some improvement. Then matters deteriorated. In September he threatened to hit a teacher's aide, and was told that he would be suspended if such conduct recurred. On October 9, he was suspended for four days after he lost his temper and yelled at his teachers. While serving this suspension, he received an additional five day suspension for incidents that occurred at a school sponsored football game, including cursing the assistant principal. This suspension was upheld at a CPSB disciplinary hearing conducted on October 29, 1991.

 At the October 29 hearing, Youree again recommended that Jonathan be placed at "a more appropriate setting," and the disciplinary officer agreed. By this time, however, Mrs. G. was represented by counsel who advised CPSB that Jonathan's parents demanded a due process hearing under the applicable state and federal laws before any change in Jonathan's placement was made. Plaintiffs also indicated that they would invoke certain statutory protections, further discussed below, which would preclude CPSB from changing Jonathan's placement pending the outcome of any administrative and judicial proceedings pertaining to the proposed transfer. Jonathan thus returned to Youree after serving his suspension, but not for long. On November 12, 1991, CPSB instituted a civil action in this Court (91-cv-2420) and obtained a temporary restraining order authorizing Jonathan's temporary placement at Bethune, pending the outcome of these proceedings, on the ground that his presence at Youree constituted a threat of imminent harm to himself and others. By consent of the parties, the temporary restraining order was converted to a preliminary injunction on November 22, 1991. Jonathan thereafter began attending Bethune, where he showed some improvement but still experienced behavior problems.


 As Jonathan began attending Bethune, his parents sought relief under the two-tiered administrative remedy system provided by Louisiana law for disputes involving special education students. Their objections to CPSB's actions with respect to Jonathan were first initially presented to a hearing officer in January, 1992. At that time, an extensive record was developed that included the testimony of Mrs. G., administrators and teachers from Youree and Bethune, expert witnesses and other involved parties. Plaintiffs' contentions at the administrative hearing fell into two major categories: (1) that while at Youree, CPSB had disciplined Jonathan for conduct related to his behavior disorder, in violation of federal and state law, and (2) that CPSB had failed to follow the applicable statutory notice and procedural requirements before changing Jonathan's educational placement.

 Based upon the evidence presented, the hearing officer found that CPSB had improperly transferred Jonathan to Bethune without following the notice and re-evaluation procedures required by the applicable statutes and state regulations. The hearing officer also determined that the disciplinary suspensions which occurred subsequent to May, 1991 involved conduct related to Jonathan's disability and thus were inappropriate. Accordingly, the hearing officer ordered CPSB to provide "compensatory education" to Jonathan for the days which he was suspended, and ordered that CPSB immediately review and revise its individualized program for Jonathan's education. Finally, the hearing officer issued broad orders to CPSB requiring revision of certain procedures, in particular disciplinary procedures employed for special education students.

 A three member state level review panel reversed the hearing officer's findings and concluded that (1) Jonathan was not disciplined for conduct related to his behavior disorder; (2) CPSB complied with all pertinent notice and procedural requirements; and (3) the hearing officer lacked authority to change or modify CPSB's special education and disciplinary procedures, and was instead limited to findings of fact in the case before him. Plaintiffs thereafter sought judicial review from this Court.



 (1) The Guarantee of a "Free Appropriate Education "

 Many of the issues presented by this case arise under 20 U.S.C. § 1400, et seq., the Individuals with Disabilities Education Act (IDEA). This statute was enacted "to address a long history of discrimination by public schools against disabled children." Teague Independent School Dist. v. Todd, 999 F.2d 127, 129 n. 4 (5th Cir. 1993). As a condition of federal funding, IDEA requires that states provide all children with a "free appropriate education," 20 U.S.C. § 1412(1), which the United States Supreme Court has defined as an education from which the child receives some degree of benefit. Board of Education v. Rowley, 458 U.S. 176, 200, 102 S. Ct. 3034, 3047, 73 L. Ed. 2d 690 (1982).

 A fundamental requirement of IDEA is that, to the maximum extent possible, children with disabilities be educated in the least restrictive environment consistent with their needs. The statute seeks to insure that children with disabilities will receive "not only freedom from restraint, but the freedom . . . to associate with his or her family and able bodied peers," a concept known as "mainstreaming." Sherri A.D v. Kirby, 975 F.2d 193, 207 n. 23 (5th Cir. 1992).

 (2) The Individualized Education Program

 The principal tool of mainstreaming is the individualized education program (IEP). This is the vehicle by which schools are required to tailor the education of children with disabilities to their unique needs. 20 U.S.C. § 1401(a)(20). Among other requirements, an IEP must be written, must contain a statement of the child's present educational performance levels, a statement of annual goals, a statement of specific educational services to be provided, and appropriate objective criteria and evaluation procedures and schedules for determining, at least annually, whether instructional objectives are being met. Id.

 (3) Procedural Due Process

 IDEA also requires that participating states adopt procedural safeguards which provide the parents of the exceptional child with an opportunity to participate in the formulation and revision of the IEP, as well as written notice of any proposal "to initiate or change...the identification, evaluation or educational placement of the child or the provision of a free appropriate public education to the child." 20 U.S.C. § 1415(b)(1)(C). Any parent who objects to such a proposal has a right to "an impartial due process hearing" before the state or local educational agency (as determined by state law). The party aggrieved by the outcome of the administrative hearing process may bring a civil action in any state court of competent jurisdiction or in a district court of the United States. Id., § 1415 (b) & (e).

 The "stay put" clause of § 1415(e)(3) provides that during the pendency of administrative proceedings or judicial review, "the child shall remain in the then current educational placement." While this provision precludes a school system from making a change in placement while due process proceedings are pending, it does not preclude the courts from authorizing such a change. Sherri A.D. v. Kirby, supra, 975 F.2d at 205-06.


 Plaintiffs also seek relief pursuant to Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which prohibits discrimination against individuals with disabilities under any program receiving federal funding. This statute is broader in scope than IDEA, as it applies not only to the area of education, but to any program which receives federal funding.

 CPSB questions whether IDEA supersedes plaintiffs' right to assert a claim under Section 504. Clearly it does not. 20 U.S.C. § 1415(f), added to IDEA by Congress through a 1986 amendment, provides that "nothing in this chapter shall be construed to limit the rights, procedures and remedies available under the Constitution, title V of the Rehabilitation Act of 1973 [ 29 U.S.C. § 790 et seq.], or other Federal statutes protecting the rights of children and youth with disabilities...."

 The 1986 amendment plainly supersedes prior jurisprudence which held that a plaintiff entitled to relief under IDEA could not bring suit under Section 504, including Smith v. Robinson, 468 U.S. 992, 82 L. Ed. 2d 746, 104 S. Ct. 3457 (1984). See Fontenot v. Louisiana Board of Elementary and Secondary Education, 805 F.2d 1222, 1223 (5th Cir. 1986). Therefore, plaintiffs are entitled to assert claims under Section 504 in addition to their claims under IDEA. Having exhausted their administrative remedies under IDEA, plaintiffs are not required to pursue additional administrative remedies before filing suit under Section 504. Carey on Behalf of Carey v. Maine School Administrative Dst. No. 17, 754 F. Supp. 906 (D. Me. 1990); Allstate Ins. Co. v. Bethlehem Area School District, 678 F. Supp. 1132 (E.D. Pa. 1987). Further discussion of the requirements for stating a cause of action under Section 504 and the remedies which are (and are not) available under that statute is contained in the section of this Memorandum Ruling that addresses plaintiffs' claim that their son was disciplined for conduct related to his behavior disorder, Section IV(B)(2), infra.

 Having determined that plaintiffs have the right to seek relief under IDEA, Section 504 the Rehabilitation Act and Section 1983, it is now appropriate to evaluate those ...

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