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Barry and Kimberly Barron, For v. South Dakota Board of Regents; Dr. Robert Tad Perry

September 9, 2011

BARRY AND KIMBERLY BARRON, FOR
THEMSELVES, ON BEHALF OF D.B. AND N.B.,
THEIR MINOR CHILDREN; JOEL AND DEANNE
CURRAN, FOR THEMSELVES, ON BEHALF OF J.C.
AND A.C., THEIR MINOR CHILDREN; LEO
WILLEY AND JENNIFER DANS-WILLEY, FOR
THEMSELVES, ON BEHALF OF S.W. AND T.W.,
THEIR MINOR CHILDREN; CINDY SPARKS, FOR HERSELF, ON BEHALF OF K.S., HER MINOR CHILD; TIMOTHY AND TERESA NOLD, FOR THEMSELVES, ON BEHALF OF I.N., THEIR MINOR CHILD, AND OTHER PARENTS AND CHILDREN SO SIMILARLY SITUATED; PLAINTIFFS/APPELLANTS,
v.
SOUTH DAKOTA BOARD OF REGENTS; DR. ROBERT TAD PERRY, IN HIS INDIVIDUAL CAPACITY AS FORMER DIRECTOR FOR THE SOUTH DAKOTA BOARD OF REGENTS; DR. JACK WARNER, IN HIS INDIVIDUAL CAPACITY DIRECTOR FOR THE SOUTH DAKOTA BOARD OF REGENTS, DEFENDANTS/APPELLEES.



Appeal from the United States District Court for the District of South Dakota.

The opinion of the court was delivered by: Wollman, Circuit Judge.

Submitted: May 11, 2011

Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

The plaintiffs, parents of deaf and hearing impaired children (the parents), brought suit against the South Dakota Board of Regents (the Board), Dr. Robert Perry, and Dr. Jack Warner (collectively, the defendants), claiming that the closure of the South Dakota School for the Deaf (the school) and the discontinuation of its programs at the school's campus violated state and federal law. The complaint sought, among other things, class certification and an order enjoining the closure of the school and the outsourcing of its programs to other school districts. The parents appeal from the district court's*fn1 order granting summary judgment in favor of the defendants. We affirm.

I. Background

The school was established in Sioux Falls, South Dakota in 1880. The South Dakota Constitution was adopted in 1889. Section 1 of article XIV provided, "The charitable and penal institutions of the State of South Dakota shall consist of a penitentiary, insane hospital, a school for the deaf and dumb, a school for the blind and a reform school." A constitutional amendment was approved in 1944 that removed the school for the deaf from section 1's list of institutions. See S.D. Const. art. XIV, § 1, historical note. Section 1 now reads, "The charitable and penal institutions of the State of South Dakota shall consist of a penitentiary, a hospital for the mentally ill, a school for the developmentally disabled, and a reform school for juveniles."

In 2008, the governor of South Dakota appointed a task force to study and make recommendations about the "effectiveness and efficiency of the educational services provided in South Dakota for deaf and hard of hearing students." At that time, the school offered two educational platforms: the bilingual-bicultural program, which focused on educating students using American Sign Language, and the auditory-oral program, which focused on educating students who use cochlear implants or other assistive hearing devices. The named plaintiffs in this lawsuit are parents of students who were enrolled in the bilingual-bicultural program or who sought to be enrolled in the program.*fn2

The task force held four hearings and received testimony from twenty-six people, including parents, faculty, administrators, members of the deaf community, deaf education experts, and previous superintendents of the school. The task force issued its report to the governor in November 2008. Its findings revealed changes in the demographics of educational placement of deaf and hard-of-hearing students in South Dakota. Specifically, of the 398 children with hearing impairments identified at the beginning of the 2008-2009 school year, only thirty-two attended classes at the school's campus, only six of whom were enrolled in middle or high school. The thirty-two students represented eight percent of the hearing impaired students in South Dakota, yet ninety-one percent of the school's budget was allocated to the school's Sioux Falls-based activities. The task force recommended that the school change its mission to focus on outreach programs and services.

In January 2009, Terry Gregersen, the school's superintendent, was advised by Perry, then the executive director of the Board, that the proposed budget for the school had been cut by $2 million. By letter dated January 22, 2009, Gregersen informed the students' parents, "Today, the Governor presented his revised budget for Fiscal Year 2010, in which he recommends redefining the mission of the South Dakota School for the Deaf to an outreach education and support role. This means we will not offer an instructional program on the Sioux Falls campus starting next fall." The letter went on to note that the school was "committed to provide IEP [Individualized Education Program] meetings this spring with the local education agencies to ease this transition."

By May 2009, the Board had entered into a two-year agreement with the Brandon Valley School District for the education of elementary and preschool students in an auditory-oral program.*fn3 The Brandon Valley School District program hired two instructors and obtained certain equipment from the school's auditory-oral program. According to the agenda for the May 2010 Board meeting, the school sought to enter a similar services agreement with the Harrisburg School District for a bilingual program for deaf or profoundly hearing-impaired children.*fn4 The agenda further noted that "SDSD retains in its budget sufficient funds to cover tuition expenses for a limited number of students, on a first come first serve basis, in the event that home-school districts and families conclude that certain children would benefit most from a traditional deaf education program in a residential institution setting."

In July 2009, the parents of eight deaf or hard-of-hearing children brought this putative class-action lawsuit, seeking to represent a class of "[a]ll deaf or hard of hearing children who are residents of South Dakota under the age of 21, and their parents or legal guardians." Compl. ¶ 39. The complaint alleged four causes of action. Counts one and two alleged that the defendants' decision to discontinue offering programs at the school's campus and to move those programs to other school districts violated South Dakota law and the Individuals with Disabilities Education Act (IDEA). Count three pled a declaratory judgment action, claiming that the parents' due process rights were violated because the "decision to terminate services at SDSD and out-source such services to Brandon Valley constitutes a change to the IEP's for the affected students." Id. ¶ 60. Count four alleged a civil-rights action under 42 U.S.C. § 1983, claiming that the defendants had violated the IDEA and the parents' right to due process.*fn5

The parents moved for a preliminary injunction, seeking to enjoin the Board from refusing to admit eligible students to the school, from discontinuing the services offered at the school's campus, from outsourcing its services to Brandon Valley School District, and from pursuing an outreach-based agenda. With their motion, the parents submitted six affidavits describing their children's experiences at the school. The Board opposed the motion and moved to dismiss the complaint for failure to state a claim upon which relief may be granted, see Fed. R. Civ. P. 12(b)(6).

The district court held a status conference, during which it inquired whether the plaintiffs were required to exhaust their administrative remedies and advised that it would resolve the exhaustion issue before further case scheduling occurred. Thereafter, the parents filed their opposition to the motion to dismiss, along with affidavits supporting both their opposition and their motion for a preliminary injunction. Following numerous other filings, the district court converted the ...


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