Table of Contents
Introduction
Case law is defined as law that is based on decisions by judges in previous cases. Case law, also referred to as judicial precedent, is never static and new decisions may create exceptions that in and of themselves change the interpretation of the law. For that reason if no other, it is important to remain current not only on the federal statutes and regulations but how the courts are interpreting the meaning of those statutes and regulations and the standards they develop in judging the merits of the cases brought before them. In England, that would be called Common Law. In America, judicial precedent that establish standards to be applied are only binding on the lower courts in their circuit or jurisdiction. Supreme Court decisions, on the other hand, are binding on every court in the land — although as time goes by, different circuits may interpret and apply those Supreme Courts differently, causing what is referred to as a split in the Circuits. Those cases may make their way back to the Supreme Court for further clarification. Regardless, knowing how judges decide cases is essential to advocates and schools alike as they seek to apply and comply with the evolving burdens imposed on public education by the courts to serve children. It is for that reason that this page exists. To review earlier decisions, readers are referred back to Guy’s Log.
November 2019
November 5, 2019. Perry Zirkel Legal Alert November 2019
“This month’s update highlights two recent federal court decisions that are of general significance: (a) one with multiple issues that extend to evaluation and FAPE under Section 504, and (b) another that illustrates the employee “whistleblower” side of special education. Both decisions are not officially published and are at the trial court level, thus of limited precedential weight, but their issues contribute to practitioners’ legal currency. More detailed analyses of these various issues and related caselaw are available on the Publications page of perryzirkel.com”
Perry Zirkel November 2019 Legal Alert
November 5, 2019
Doe v. Dallas Independent School District, October 25, 2019, Fifth Circuit
Key Words: Exhaustion Administrative Remedies, Title IX
Decided for: The parents
Another case addressing when administrative remedies must be exhausted and when, bassed on Fry v. Napolean, Supreme Court 2016, they do not.
This case was brought on the behalf of a special needs child who was raped by another student. The issue here however was whether or not an exhaustion of administrative remedies under the IDEA was required. The district court had determined, because the parents were alleging a denial of educational opportunity, that exhaustion was required. The parents had attempted to address the district court judge’s concern, but by the time they filed for an administrative hearing, the timeline for filing such a complaint had expired. They went back to the district court judge who ruled the same based on Fry v. Napolean, a landmark Supreme Court case. The parents appealed to the Fifth Circuit which reversed the District Court decision. Basically, in Fry, the Supreme Court had directed lower courts to consider the gravamen or essentials of each complaint in determining whether or not exhaustion was required.
In the eight page decision, the Fifth Circuit noted that in the thirteen pages of the parent complaint, twelve detailed the sexual harassment to which the child had been subjected. While the complaint did allege that as a result she had been denied educational opportunity, the Fifth reasoned that if all traces of the child’s disability were removed from the parent’s complaint, it would be identical to that of a child without a disability who had been victimized in the same manner. Also, while the parents had mentioned the child’s disability within their complaint, in context it was to show that the school had prior knowledge both of the sexual harassment and of the child’s inability to protect herself.
This is a fairly quick read, and a thoughtful application of Fry to a special needs child. In most cases this reviewer has seen where parent complaints have been rejected due to failure to exhaust, the court had concluded that the essentials of the case were about FAPE and that the parents’ attorney had merely tacked on additional complaints seeking financial damages to what was basically a FAPE case. For an alternative albeit similar review, see
October 2019
October 8, 2019
McMillan v New Caney Public Schools, 5th Circuit October 2 2019
Damages, IDEA, exhaustion of administrative remedies
Decided for: The school system
The principles here are clear. If relief being sought by parents would be available through the IDEA, then they must exhaust administrative remedies first. If, however, the relief being sought was NOT available (e.g., parents suing for a child’s injuries incurred because of inadequate supervision) then exhaustion would not be required. Even if parents sue under another law, e.g., Section 504, if the relief sought would have been available under IDEA, then IDEA remedies must be exhausted first. Many attorneys have in trying to avoid the exhaustion requirements only succeeded in revealing themselves to be too clever by half. The attorney in this case appears to have joined their number.
This student, diagnosed with autism, had developed some potentially dangerous behaviors. Instead of providing him with an appropriate IEP, the district put him back in regular ed with a teacher who herself seemed to be a total nut job. On her own, she tried to “cure” the boy of his autism by (1) giving him herbal remedies and (2) trying to convert him to Christianity. When her (non evidence based) interventions failed, she took some of his writings out of context and made him look like a potential terrorist threat. He was arrested as a result. Things got worse after that, and the parents were suing for a number of things, including damages for emotional distress.
The Circuit Court applied the principles first articulated by the Supreme Court in Fry v. Napolean Comlmunity School District (2017).
However, what the circuit court concluded was that the substance of the parents’ complaint was that he was denied FAPE, and for that reason they would have had to exhaust IDEA’s administrative remedies. The parents were as noted above ALSO seeking damages for emotional distress, which would NOT be available under the IDEA Nevertheless, the court concluded cleverly pleading by merely tacking a claim for a remedy not available under the IDEA onto a lawsuit doesn’t relieve that party seeking other reliefs or remedies that might have been available under the IDEA from seeking administrative remedies first. Slam dunk for the district.
October 7, 2019
Perry Zirkel’s:
Special Education Legal Alert for October
This month’s update highlights two recent federal court decisions that are of general significance: (a) an unpublished trial court decision that
again illustrates the varying interpretations of the need for special education, and (b) a published appellate court decision with multiple issues,
including the “reasonable period” dimension of Child Find.
Perry Zirkel’s
This month’s update concerns issues that were subject to recent, published federal court decisions and are of general significance: (a) the
longstanding but continuing application of the two-part test for eligibility under the IDEA, and (b) the new, difficult issue of medical
marijuana when legally prescribed for students with disabilities
September 2019.
September 25, 2019.
Doucette v. Georgetown Public Schools, Georgetown, First Circuit, August 26 2019
Key words: Supreme Court Frye standard, exhaustion of benefits, ADA/504
Decided for: The parent
This was a decision about procedures. The school was arguing that the parents should not be allowed to plead their case because they had not exhausted administrative remedies. The parents were arguing that the gravamen for some of their claims were not subject to administrative remedies, while with respect to the other, they HAD exhausted administrative remedies. The case was about a child with multiple problems, among them a seizure disorder. The kid had a dog who was trained to sense and give warnings when a seizure was imminent. The school initially denied the child access, and then only would only give permission if the parents would agree to a number of conditions. The parents refused to agree and the child suffered five seizures, four when the dog was not present. The court concluded that the parents’ suit was about discrimination, that the gravamen of the complain was not FAPE, and gave permission for their lawsuit seeking damages to proceed. The district court had remanded some of the parents’ claims based on state law back to state courts, but the First Circuit urged the district court to reconsider. The decision ran 55 pages, much of it a rehash of what the IDEA, Section 504, and the ADA require.
Wilson v. City of Southlake, August 28, Fifth Ciurcuit
Key Words: Assault, autism
Decided for: the parent
Again, basically a decision on procedural rights, not substance. The kid in this was an admitted handful, suffered from autism, and in the precipitating instance pulled a jump rope from his back pack, called it his nun chuks, and began twirling it around. The school was arguing that it was justified in taking the disciplinary measures it did because the child presented a real danger to others around him. Here’s where it gets really interesting, though. The kid was already upset and the SRO was called in. The SRO never seemed to regard the jump rope as a deadly weapon (i.e., he never actually said, “Put down that weapon,”) and instead of trying to defuse the situation he put the boy in handcuffs,and then simultaneously yelled at the boy, insulted the boy, and called him names — all of which incited him to even angrier outbursts. Ultimately because of his own bizarre “handling” of the situation he was fired. Again, the circuit court did not make a decision on the merits, it just remanded the case for a hearing on its merits.
September 25, 2019.
Albuquerque Public Schools v. Sledge, District Court, August 8, 2019
Key Words: Cannabis, Section 504, state law
Decided for: Parents
The child had Dravet Syndrome and suffered from seizures. One effective treatment was the administration of cannabis. Other medications used had serious side effects, sometimes leadingto hospitalization. The school offered services in school, denied the parent’s request for homebound services, but refused to administer the cannabis the child needed because state laws prohibited them from storing or administering it (dooming the parent claim that they had denied her request due to discrimination.) The accommodation provided was to clear a path for the mother to effectuate an emergency evacuation of the child if she began seizuring. What the ALJ concluded, in part, was that the parents had met their burden of showing cannabis was a necessary medication for the child’s health and, therefore, ordered that the school provide homebound services with an opportunity to attend school for socialization part time. That order was affirmed by the district court. Here’s where it gets interesting, because the school argued neither the ALJ nor the IEP team had the authority to determine a child needed an illegal substance. And both federal and laws in their state did not provide a medical exception that would apply to the school . . . although state law did exempt parents from prosecution of they were using it for medical purposes. There was some dispute, additionally, as to whether the school improperly “required” the parent to be available at the school. The court found that it was the mother, not the school, that chose for her to be there so in the event of emergency she could administer the cannabis to her child. It gets even more interesting, because while denying the child home services the school approved and implemented an IEP for full time kindergarten. The mother at that point decided to no longer accompany her child to school, and she also refused to provide the school with prescribed meds for them to administer because, in part, of their potentially life threatening side effects. The IEP as written would have subjected the chld to serious risk and failed therefore to pass the FAPE test. The judge concluded there was nothing in the IDEA that would enable a school to compel a parent to provide meds as a condition of services. However, the judge went on to say that federal law prohibited the school from mandating meds. Just to be clear, what 300.174 prohibits is schools mandating the administration of a controlled substance (e.g., Ritalin) as a condition of services.
One lesson to be learned from all of this is that it is okay to accept a parent’s volunteer services but not okay to compel them.
Another ridiculous argument from the school system was that if they sent a teacher into the home, s/he might witness the mother giving the child an illegal drug, subjecting the teacher to criminal prosecution and putting the school’s federal funds in jeopardy. Federal laws do require schools to take affirmative actions with respect to their employees using illegal drug. But public schools are not charged with a responsibility for monitoring or reporting parents who, for example, might be smoking a bit of Mary Jane or taking a bit of cocaine on occasion — much less parents using cannabis to help keep their child alive. So if you know a parent in your school smoked Mary Jane and don’t report it, you’re not going to jail. Even in a state that does NOT have laws allowing its recreational use. (The analysis here wouldn’t necessarily work if the teacher sold the mother her cocaine, however.)
The judge’s conclusion
For the reasons set forth above, (1) the Decision is REVERSED to the extent the DPHO concluded that APS failed to offer Student a FAPE for preschool; and, (2) the Decision is AFFIRMED to the extent the DPHO concluded that APS failed to offer Student a FAPE for kindergarten and ordered APS to offer Student homebound services with optional socialization opportunities for her kindergarten year.
Justia did not provide a summary of the memorandum discussed above.
July 2019
Key Words: IEP, FAPE
Decided for: The school system
| Albright v. Mountain Home School District |
| Court: US Court of Appeals for the Eighth Circuit
Decided for: The school system Opinion Date: June 12, 2019 Areas of Law: Civil Rights, Constitutional Law, Education Law Children with serious impairments such as autism are the most likely subjects for rancorous litigation, and this case was no exception. It was complicated by the fact that in addition to being IEP team members, the parent and her expert witness were also employees of the school system. The parent’s claim to having been denied access to IEP team meetings was rebutted by the district’s careful documentation showing that she had chosen not to participate in some meetings along with literally hundreds of emails showing that she had provided input and that her input had been considered. Of course the crux of any litigation is whether or not the child received FAPE — and even if procedural errors occurred, they would be moot if a child had in fact received meaningful benefit from his or her education. Again, the deciding factor in this case was the district’s careful documentation of the result from both behavioral and educational interventions. This particular case was complicated again by the fact that the student had been initially diagnosed as intellectually disabled and only later diagnosed with autism. But since the behavioral plans both pre and post the autism diagnosis were the same, and the district documented progress, the change in labeling was irrelevant. For Justia’s summary of this 18 page decision, click on Justia re Albright.. |
March 2019
March 31, 2019
R.F. v. Cecil County Schools, Fourth Circuit, March 25, 2019
Key Words: Procedural errors, FAPE, LRE
Decided for: The school system
This published 28 page decision illustrates a simple principle: Parents are not entitled to relief from a procedural error or errors alone unless those errors result in a loss of FAPE (as defined by the U.S. Supreme Court in Endrew v. Douglas County, 2017.). Another generalization illustrated by this case is that serious disagreements, not only between parents and schools but also between professionals serving that child, are more likely to arise when the child’s disability is severe — in this case, autism. The little girl was aggressive, engaged in “unwanted biting,” and used a NovaChat (a device that allowed her to press pictures on a screen to communicate.) The parents’ lawsuit was seeking compensation for private school tuition in a school they had chosen. As is the case whenever parents remove their child from a public school setting and place him or her in a private school, they do so at their own risk.
It appears from the record (click link above) that the child’s mother had wanted the school to provide her with a placement in a private school from the gitgo, but the district disagreed, saying it was developing a special classroom for children with intensive communication problems. The team determined that that class was the most appropriate placement and least restrictive for the child. School and parent were agreed that placement in a class with non disabled children would not have been appropriate. So contrary to the parent’s expressed wishes, the IEP team placed the child in the new class. Due to circumstances beyond the district’s control, this girl ended up being the only child placed in the class. However, she was mainstreamed during parts of the day with non disabled children for gym, art, music, as well as recess and field trips. The parent’s argument was that no mainstreaming was appropriate for her child.
What happened next constituted the main basis for the parent’s complaint. The girl was not doing well in the regular classroom setting, so the time was reduced by the special education teacher, which technically led to a change of placement on the continuum. Even though the reduction in hours spent with general ed children was not inconsistent with the parent’s desire that she not be mainstreamed at all, the parents should have been involved in any change of placement but they weren’t. This “error” resulted from a mistake the district made in calculating hours in special education — the error being that they calculated it based on hours spent in actually working toward IEP goals, whereas they should have been calculated it based on hours not in regular education classes or activities. The parent also claimed that the minimal progress made in modifying the child’s behavior was evidence of a failure to provide FAPE. The school system also had a policy requiring teachers to keep raw data for two years, which the teacher had not done, but the ALJ concluded it was because he was unaware of the policy, not because of some nefarious motive.
The ALJ, district court, and 4th Circuit found that although the child’s progress in achieving behavioral goals was minimal that that was not inconsistent with her unique circumstances as required by Endrew (see link above) . Additionally, in this case, all of the child’s needs had been consistently addressed by caring, specialized professionals with an IEP incorporating ambitious goals based on the child’s abilities.
Often in these kinds of cases failure to provide parents with the right to participate in developing an IEP is in and of itself sufficiently damning to the school’s case, For example, denying parents the right to participate in their child’s IEP team using a looming timeline as an excuse and then using that meeting to change a child with autism’s placement would almost certainly result in a loss for the school system. But the technical nature of this particular violation (the teacher didn’t realize he was changing the child’s placement on the continuum because of a misunderstanding of how that should be calculated) did not rise to that level.
The Fourth Circuit therefore concluded, “Although CCPS procedurally violated the IDEA in certain technical respects, it did not substantively violate the IDEA because it did not deny R.F. a FAPE. We therefore AFFIRM [the district court’s decision to dismiss.].”
This decision did leave one question unanswered: When would biting people ever be “wanted”?
Alternative Summary: Justia Summary of R.F. v. Cecil County
February 2019
February 12, 2019
Bentonville School District v. Smith, Western District, Arkansas, January 19, 2019
Key Words: IEP, FAPE
Decided for: The school system
As a reminder that litigation proceeds at a snail’s pace and is, therefore, unlikely to result in a timely decision in any case, it’s worth noting that this complaint was filed by the school system in response to an adverse decision in a due process hearing back in July, 2017. The parent filed her original due process complaint in October, 2016. Despite her initial victory at an administrative hearing, her ultimate loss also illustrates another cliche in spedlaw, “It’s not over until the fat lady sings.”
It would appear from the decision that the main issue in this case revolved around and was based on a labeling decision.
The boy had had serious behavioral problems since entering school and had been diagnosed with a developmental disorder based on his behavior very early on. At one point, the school had determined that he no longer met IDEA criteria for classification but continued providing related services under a 504 Plan, despite having placed him at a Therapeutic Day Treatment center in first grade. In third grade, the boy’s behavior had become so aggressive that the TDT could no longer meet his needs and recommended placement at home for 90 days. By 4th grade, an ADOS-2 evaluation showed him as qualifying for consideration for eligibility with an autism spectrum disorder.
Here’s where it gets interesting. The ultimate outcome not withstanding, the years of litigation apparently resulted from the school’s IEP team following the recommendation of a school psychologist to change the kid’s classification from AU to ED.
The hearing officer found that the school had changed the child’s classification from AU to ED without sufficient evaluation and that, as a result, failed to provide the student with FAPE. What made that finding problematic, however, is that there was no evidence of a causal link between changes in services as a result of the labeling change because there were little or no changes in services as a result of the labeling change. Additionally, the judge found that the evaluation conducted met the requirements of the IDEA.
The school psychologist’s motivation in recommending the change was based on a belief that more appropriate services would be available under the ED classification than than AU classification. Not based on a belief that the student was no longer autistic. The intent was praiseworthy but, in this reviewer’s opinion, flawed because once identified the IEP drives the services provided, and the IEP is based, not on a label, but on identified needs. The hearing officer, it seems, made the same error, with an opposite conclusion — that because the label had been changed, the IEP failed to address needs arising out of a classification of AU. But again, in order to make that conclusion stick, the parent would have had to show that needs specific to her child had gone unaddressed, not that AU children in general have needs that were not addressed. Bottom line:
“THE COURT FINDS that the administrative hearing officer erred in finding that BSD failed to conduct complete and individualized evaluations, failed to include appropriate content in the IEP, and failed to ensure that M.S.’s IEP was implemented as written.”
The situations described in this decision are not unlike those confronted by schools and school psychologists in every school district in every state. There were no saints, no sinners in this adversarial proceeding. The level of behavioral challenges presented by this student at times exceeded the ability of the public school’s ability to successfully cope. But their efforts were unremitting, and despite some questionable or at least debatable decisions along the line, and despite data showing behavioral improvements plateauing during the months preceding the parent’s initial filing, one thing and one thing only saved Bentonville’s bacon: the judge’s finding that the school had made continuing good faith efforts to implement the IEP as written. Sometimes trying your best, even when the results are disappointing, is all that you can do and all that anyone can reasonably ask you to do. Of course, that all depends on whether the court also concludes that the IEP was reasonably calculated to provide benefit from the gitgo. There are no slam dunks in spedlaw
K.C. v. Marshall County Board of Education, Sixth Circuit, January 29, 2019
Key Words: Title II of the ADA
Decided for: The school system
“NOT RECOMMENDED FOR PUBLICATION” (Heading on this decision)
The parents were suing because of the alleged abuse of their child by a special education teacher. In order to make the case that a school administration had been deliberately indifferent to a child’s plight, the parents have to show first of all that they knew about it. Or that the school system, after learning about it, did nothing. The lower court correctly determined that Marshall could not be liable for not doing something when it did not know there was something they should be doing something about; and that once informed, Marshall’s administration had in fact taken appropriate action after a thorough investigation. Three years of litigation ending not with a bang but with, at best, a whimper.
The school system after investigation concluded that the teacher had been neglectful and ultimately removed the teacher from the classroom. However, it could not substantiate the claim that she had actually been abusive, e.g., in defense against the allegation that she had pulled the child’s hair, her rebuttal was that he was pulling his own hair and she was just trying to stop him. The parents, it should be said, had based their opinion on some serious allegations presented to them by other parties — it was just that the school’s more careful investigation failed to substantiate those allegations. Where there’s smoke (and there was a lot of smoke) there isn’t always fire.
One other legal point worth mentioning is that while the parent attorney based the parents’ claim on an allegation of deliberate indifference in district court, on appeal to the circuit court the lawyer attempted to argue a standard called “vicarious liability.” Since the argument was not raised in the lower court, the circuit court judges refused to consider it, and, following their lead, so shall this reviewer here. The moral of that particular tale is that it is important when arguing these cases in lower venues to throw in everything including the kitchen sink, if one has one.
January 2019
January 20, 2010.
Renee J. v. Houston Independent School District, January 16, 2019, Fifth Circuit
Key Words:
Decided for: HISD
The student in question had autism, an IQ of 51, and was diagnosed with ADHD.
The parents had requested ABA from the school system and the school system did not have an ABA program as such. In this reviewer’s experience, typically schools have lost when they did not provide ABA when requested but more often than not won when they provided some albeit not as much as the parents would have liked or requested.
From the outset, it would have appeared that the parents were understandably upset. He had not been tested academically since third grade, and the school actually used that third grade data for his eighth grade IEP. Also the boy ‘s transition plan called for him to be prepared to become a police officer, although it was pretty clear he’d never meet the basic qualifications. Additionally the parents complained that he was being bullied at school and was afraid to come, and that the school was callous and indifferent to his plight.
So how did the parents lose? Summarizing from the 14 page decision, the school argued that it had included some components of ABA in the boy’s IEP and that the parents had actually never asked for ABA. With respect to transition, it argued that even though the goal of becoming a police officer was unrealistic, it had nevertheless provided services in the IEP related to his needs and calculated to ease the transition from school when aging out of the program. With respect to the bullying, the school noted it had made literally dozens of attempts to get the boy back in school, making a number of offerings including having the teacher escort him from bus to classroom and allowing him to stay in the office of student support for an hour in order to ease his transition. The H.O. concluded it wasn’t the school’s negligence that was keeping him out, it was the parent’s refusal to let him come.
Thusly what seemed like a sure slam dunk for the parents was turned into a win for the school system. There are many lessons that might be drawn from this decision, but at the very least, it seems to this reviewer, if a parent wants ABA for their child, they really should speak up and ask for it.
January 19, 2019.
E.D. v. Palmyra B. School District, Tenth Circuit January 3, 2019
Key Words: Parent refusal of services, IDEA, Section 504
Decided for: The school system
OSEP has opined that if a parent declines services under the IDEA, then a school system is not obliged to offer services under Section 504.
The exact language bearing on this issue, however, that was quoted by the court says
“[n]othing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, [or section 504] of the Rehabilitation Act of 1973, . . . except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA’s administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA]”
The school had offered the parents two IEPs, essentially the same as the 504 Plan that the parent wanted, except that the child would have been required to attend special education classes. The parents, exercising their right under the 2008 Amendment to the IDEA regulations giving parents the right to unilaterally decline services, said “No.” The parents then asked for a 504 Plan with accommodations. The school said “No.” Hence the lawsuit.
Basically this is just another example where parents sought to avoid the administrative remedies phase of litigation by by-passing the IDEA. The federal courts both said “No, you have to exhaust adininistrative remedies.” Case tossed.
Click on Justia’s “take” on E.D. v. Palmyra for their summary.
January 19, 2019.
Culley v. Cumberland School District, Third Circuit, December 20, 2018
Key Words: Crohn disease, 504, IDEA, IEP v. 504 Plan
Precedential: No
Decided for: The parents
This is one of those “WTF was the district thinking” court cases. The child had suffered from Crohn disease since he was six. By the time he had reached high school, his doctor was saying he needed homebound. The school provided homebound. A lot of the time he apparently was not there or was uncooperative. The district had him on a 504 Plan rather than on an IEP. Under 504, if a child’s behaviors are not a manifestation of his disability, the school can do whatever it wants, as long as it would have done the same thing to a child who did not have a disability. It is not clear from this decision what it was that the school psychologist did or did not recommend; but what is clear is that based on that report the team concluded that while Crohn’s disease indisputably qualified the young man under 504, it did not quality him under IDEA.
So Cumberland jumped on that difference between the laws, exploiting the difference. They concluded the child’s behaviors were not the result of his Crohn’s disease so they expelled him. They also argued that the discrepancy between ability and achievement in math had only recently appeared, and he didn’t have it in earlier grades, he couldn’t be SLD. Because as we all know (saracasm here) learning disabilities have their origins in psychological processing disorders which (presumably) would have been present since birth. (The “wait to fail” model didn’t get its name for nothing.) They also argued that just because they had used some IEP pages in their 504 Plan that didn’t mean he was disabled based on IDEA criteria. None of those creative arguments gained any credence from the district court judge, who decision was upheld in its entirety by the Third Circuit.
They also complained that the parents had not provided them with a comprehensive evaluation showing that the child needed sped. The Circuit Court pointed out rather acerbically that Child Find was the responsibility of the school district, as was the responsibility for providing a comprehensive evaluation at no cost to the parents.
Two comments by this reviewer. First, thirty years ago it would have been understandable if a school district did not understand Crohn’s disease and its educational and behavioral implications. Today we have the Internet. A Google search on Crohn’s disease turned up 11.2 million hits in less than a second. It is sometimes known as inflammatory bowel syndrome, not to be confused with irritable bowel syndrome. Children with Crohn’s disease may suffer from chronic pain. Chronic pain can result in depression, mood swings, restlessness, and symptoms mimicking attention deficit disorder (not hyperactive) due to loss of concentration and/or motivation. “Discovering” that took wo minutes research tops. Even under 504 rules, hard to see how the behaviors described were NOT substantially linked to the disorder. ALL of them were related.
Both the district court and the circuit court concluded that the source of the school’s misperception was that they (and the hearing officer) “treated the disease as something discrete and isolated rather than the defining condition of J.C.’s life. The District Court did not err in finding to the contrary.” What I think the courts were trying to say was that the school system erred because the staff simply could not conceive of a digestive disorder resulting in a need for sped. IDEA does not, of course, require that a child be defined by his or her disability, and generally we emphasize our belief that disabilities do not define a child by writing about children with learning disabilities or children who are blind rather than “learning disabled children” or “blind children.”
Just one of the eleven million online references: Crohn’s Disease and Ulcerative Colitis: A guide for teachers and other school personnel
And for a much shorter summary see Justia’s Review.
December
H.P. v. Naperville Community Unit School District, Seventh Circuit, December 11, 2018
Key Words: Discrimination
Decided for: The School System
A sad story. A girl’s mother kills herself. She moves to live with her father in another district. She finishes her junior year but, as she is out of district, is not allowed to finish schooling in her previous school district in her senior year. The father sues, alleging discrimination based on her depression, anxiety, and seizures. The court didn’t find that the school system had acted in any way contrary to how it would have acted with a non disabled student. No discrimination, no case.
J.S. v Westerly School District, First Circuit, December 7, 2018
Key Words: Attorney fees, Lyme disease, evaluation
Prevailing Party: The school system
The moral of this particular tale is far from clear although the legal principles are clear enough. The parents of this student with Lyme disease wanted him to have an IEP. When they got to district court, the district court judge told the district to schedule an eligibility meeting without conducting its own evaluations to determine if he was eligible for an IEP. The district held the meeting and said “No.” The district court judge then awarded the parents attorney fees as the prevailing party. The district appealed to the circuit court. The circuit court judges said they weren’t going to review the merits of the case because the parents had moved out of the district. Where to start . . . first and foremost, the district had asked for parental consent to conduct additional assessments but instead of complying with the district’s request, the parents requested a due process heairng. The ALj concluded that the district had a right to conduct its own evaluation . . . which was an opinion consistent with the bulk of spedlaw precedent. The parents instead of complying with the ALJ decision appealed to district court. So . . . interpolating some editoral comments here . . . a process that should have taken weeks or months took years, from 2015 when the parents first appealed to 2017 when the district court heard the case.
The district court judge nevertheless found that the parents were “prevailing parites” and awarded them $53,290.50 in attorney fees. The circuit court considered that issue still “live” because the alteration in the relationship between the two parties happened before the parents moved. The parents did prevail in getting the school system to consider eligibility without doing its own evaluation . . . but what they were asking for was for the court to make the district declare their child eligible for an IEP. The judge did not do that, and the school did not do that. And the circuit court concluded “Obtaining an order forcing a decision without additional information was no more than a Pyrrhic procedural victory that did not advance, and may well have undercut, the goal of obtaining any success at all on the merits of the parents’ claims.” The award of attorney fees was reversed.
E.R. v. Spring Branch Independent School District, Fifth Circuit, November 29, 2018
Key Words: Tuition reimburse for parentally placed private school student
Decided for: The school system
The child had multiple disabilities, with a FSIQ of 51, a seizure disorder which could be life threatening, ADHD, and other problems exacerbated by the side effects of all the medications she needed to take. Given the potentially life threatening nature of the child’s disorders, the parents’ concern over where she received services and by whom the services were provided was understandable, although generally schools have the authority to determine where and by whom services in an IEP are delivered. It appeared that the father’s decision to withdraw the child from the public school was triggered by an event that was beyond the control of the school system . . . the resignation of a trusted assistant. (In reality, however, the planning for the transfer had been in the works for several months before the resignation.) Although the replacement assistant was “very experienced” the father announced he was withdrawing the child from public school and sought tuition reimbursement. Their legal argument in requesting tuition reimbursement was that the school system had violated the child’s right to FAPE by providing her with goals that were too easy. A hearing followed, with the H.O. concluding not only was the IEP proffered by Spring Branch appropriate but also that the private school program was not appropriate.
In subsequent decisions, once finding that the school’s IEP was appropriate, the judges concluded it was not necessary to consider whether or not the private school’s program was or was not appropriate for the child.
Endrew of course was invoked by the parents, but the Fifth Circuit’s standards had always been consistent with what the Supreme Court in Endrew required. The test applied in the Fifth for determining whether an IEP is appropriate is therefore worth repeating here.
(1) the program is individualized on the basis of the student’s assessment and performance; (2) the program is administered in the least restrictive environment; (3) the services are provided in a coordinated and collaborative manner by the key “stakeholders”; and (4) positive academic and nonacademic benefits are demonstrated
The Fifth found that the district court’s conclusion regarding the appropriateness of the school’s IEP, noting again that perfection is not required, correct, and upheld its decision denying the parents in their quest for tuition reimbursement.
November
November 18, 2018
S.C. v. Oxford School District, Third Circuit, November 2, 2018
Not Precedential
Key Words; FAPE
Not Precedential
Decided for: The school system
The mother in this case charged that the school had ignored her son’s anxiety but the judge concluded that she had not proven that they had denied him FAPE. The reason was that once the school system became aware of his issues, they adjusted his IEP appropriately. An IEP must be reasonably calculated to provide a child with benefits consistent with his or her particular circumstances, but it need not be perfect. The Third Circuit affirmed the District Court decision which affirmed the ALJ’s decision.
November 5, 2018.
Matthew v. Douglas County, Colorado District Court, October 4, 2018
Key Words: Wilson, School’s choice of methodology, timeline, IEE
Decided for: The school system
The only thing really remarkable about this case is that Douglas County in Colorado had recently lost the Endrew v. Douglas County lawsuit in the Supreme Court and as result paid out 1.3 million dollars to the parents.
This time, however, they won. The decision ran 18 pages and affirmed the ALJ’s decision. The parents had had an IEE done and their independent evaluator had recommended the school use Orton-Gillingham to teach their child, who had multiple disabilities. The school system adopted the Wilson Reading program, agreed that the teacher would be trained, but the training took about a month for her to complete, and implementation was therefore delayed a month. The ALJ concluded that Wilson was an Orton Gillingham based program, that the school district had in fact considered the parents’ IEE, that schools weren’t required by law to use any specific methodology, that the parents apparently thought Orton Gillingham was a separate program and that it is not, that schools are not required by law to list methodologies in the IEP, and that missing a month of Wilson did not result in a loss of FAPE. And that’s about it. In short, the court concluded as did the ALJ that the school had not violated the child’s right to FAPE by using the Wilson Reading Program
Y.N. and S.H. v. Board of Education of the Harrison Country Central School District, District Court, September 25, 2018
Key Words; Observation, Procedural Violation, FAPE
Decided for: The school system
This was a 58 page decision. Cutting to the chase, the burden was on the parents to make their case, and they just didn’t make it. Their “expert” clearly did not know much about how public education works, and they couldn’t show that the accommodations that the school was proposing would not have provided him with FAPE. In the final (court) analysis, all they could show were some procedural violations. And the procedural violations, in the opinion of the ALJ, State Review Officer, were not sufficient to result in a loss of FAPE. Absent any evidence that the SRO’s opinion was baseless, the court ruled in favor of the school system.
October
October 25, 2018.
S.M. v. Arlotto, District Court, September 14, 2018
Key Words: FAPE, tuition reimbursement
Decided for: The school system
It’s probably irrelevant, but the parents brought 8 witnesses to the hearing, the school brought 5, and the hearing lasted nine days. Also, confirming the importance of the Endrew decision, excerpts from that decision were provided at four different points in this decision. If a school professional only reads two decision in their entirety, those decisions should be the Rowley Supreme Court decision of 1982 and the Supreme Court Endrew decision.
“The thrust of each witness’s testimony was that the IEPs were not calculated to permit S.M. to make meaningful progress because they did not provide for full-time, self-contained education which was necessary given S.M.’s attention and distraction issues. On the other hand, AACPS called five witnesses who responded that each IEP was calculated to permit S.M. to make meaningful progress through the provision of specialized education, supplementary aids and services, and instructional and testing accommodations.” The Administrative Law Judge found that the school’s IEPs were reasonably calculated to help the student make meaningful progress. Another common thread throughout the parents’ arguments was that the child needed to be in a self contained placement. The school said that he did not. Cutting to the chase, the ALJ, while finding the parents’ experts credible, also found that the testimony failed to explain why the LD/ADHD child could not be adquately served in a public school, especially since it appeared from other testimony that he could be easily redirected. To make a case for tuition reimbursement, the parents must first make the case that the school’s proposed IEPs would have failed to provide the child with meaningful benefit (FAPE) and then that their private school did. The parents’ evidence supported the second part of the test. But did not meet their burden with respect to the first. The parents also complained that the ALJ’s assessments of credibility should not be given deference, but generally that’s what courts usually defer to — unless there is clear evidence that the ALK made those decisions by flipping a coin or throwing darts or some other arbittrary and capricious method. Cutting the chase, however, what the district court judge also concluded that the school’s offering of a combination of self contained, co-taught (sped and general teacher) classes, and numerous other supports and services was reasonably calculated to provide him with meaningful benefit. ALJ decision affirmed.
Naquis Corkran v. Columbus Cith Schools, Sixth Circuit, October 10, 2018
Key Words: Section 1983, damages
Decided for: the school system
Published: Not recommended for full publication
Back in 2015, the local newspaper reported that the boy’s teachers put the boy, diagnosed with autism and ADHD, in a body sock that zipped up over his face. The teacher hadn’t forced the boy to step into the body sock. He got into it willingly. However he fell. According to the newpaper report, the teachers tried to force his teeth back into his mouth. By the time this complaint reached the Sixth Circuit, howeer, that particular claim claim was no longer before the court. Undisputed, however, was that he knocked out his two front teeth. Regardless, the parents sued. Which brings us up to now. Now the parents were alleging violation the teachers had violated his Constitutional rights.
The court found that putting him in the body sock, which was intended therapeutically to help him calm down, was not a violation of his Constitutional rights. He might still have viable negligence claims in state court, the judge ruled, but there was no evidence that he’d been discriminated against or that the intervention used was an inappropriate intervention. “The proffered evidence does not permit a reasonable jury to find in his favor on the constitutional and statutory claims alleged in this Case. District Court decision affirmed.
October 24, 2018,
Swanger v. Warrior Run, District Court, October 2, 2018 (11 pages)
Key Words: Duty to Warn, Section 1983
Decided for: Mixed
Interesting to this reviewer because it once again illustrates how these things seem to drag on and one forever. Not about FAPE this time. Cutting to the chase, a child was admitted to a class for intellectually disabled children who had a history both of sexual abuse and sexually abusive behavior. He inappropriately touched a female in the class. The incident precipitating this lawsuit occurred in 2011. The parents were more than just a little annoyed. The parents sued alleging the school had a duty to warn and had negligently placed their child in harm’s way. The Third Circuit finally got the case in 2016 and ruled in favor of the school system and remanded back to the district court. Among its other findings, it ruled that the school did not have a duty to warn because it couldn’t have reasonably known that their child would potentially be a victim. (Here’s a link to the 2016 Circuit Court decision.) So here we are again in 2018. The parents filed nine allegations against the school system and mental health system . The district court dismissed eight of them. But it affirmed one (number 9), substantive violation of due process rights. The court found that there was
Newly Available Evidence Creates An Issue of Fact as to the Existence of Deliberate Indifference on the Part of the Mental Health Defendants.
“An issue of fact” doesn’t necessarily mean that the mental health agency’s actions were so egregious as to shock the conscience. It just means that the judge thought it was an issue that should be settled by a fact finder at a new (another) trial. In the judge’s words
“The Court does not express an opinion on whether such knowledge is sufficient for a finding of liability under the state created danger theory. Rather, it is sufficient for the Court to note, at this stage, that the questions of whether the Mental Health Defendants indeed re-enrolled Mattison in twelfth grade at Warrior Run, and whether such an action, if true, is conscience-shocking, should be reserved for the factfinder at trial. “
The order that was filed subsequent to this finding concluded by saying that the judge would send out a separate (another) order to set up a telephone conference to set a new (another) trial date. Since it appears the school is finally off the hook, I’ll end my review here. Still not knowing if the parents will ever get any judicial relief for their claims (and, since it appears this is no longer a case against the schools, probably never will know.)
October 17, 2018
Matuori v. District of Columbia, District Court, 9/26/2018
Key words: BIP, Child Find, compensatory education
Decided for: The parents
The parents and school system cross filed objections to the magistrate’s decision, the parents seeking compensatory education, the schools seeking a reversal of the finding that they had failed to provide the child with FAPE. The parents alleged a number of failings on the school system’s part. The court dismissed many of them but with respect to the most important issue did agree that the school system had denied their child FAPE. There were two main reasons for that judgment. First, the district had failed to reconvene the IEP team after his classification was changed and his behavioral needs escalated. Second, even though the school developed a BIP, it wasn implemented.
In general, also, courts will defer to the magistrate’s (hearing officer’s) findings if the judge finds them well reasoned. Which the judge did in this case.
One of the puzzling disputes was that the school had claimed the student had had a 504 Plan in elementary school prior to identifying him as eligible under IDEA, while the parents were claiming that the first time they had ever heard of it was at the administrative hearing. .
The judge said the parents offered no evidence to support that claim. The school’s records showed he did have a 504 Plan in elementary school. The parents also said they had never been invited to a 504 Committee meeting. Not being invited to a 504 meeting is not determinative, but OCR has made it pretty clear (not crystal clear) that consent is required before services are provided. Apparently in this case no one thought that the lack of written consent was important. So . . . at least in this judge’s view, apparently a child can have a 504 Plan even if the parents never heard about it.
The parents also complained that they were not involved in a meeting to determine placement for implementation of the IEP. Failure to involve parents in IEP team meetings can in and of itself be fatal to a school’s case. Parents can file for due process if the school is insisting on a more restrictive placement on the LRE continuum. But , as long as the placement on the continuum remains unchanged from what is required by the IEP, where services are provided and by whom (as long as they meet state highly qualified standards) is the school’s prerogative. (The same limited exceptions as would apply to general education students would of course apply.)
“The Court also goes further in its analysis to conclude that A.M. was denied a FAPE during the first half of the 2016-2017 school year due to the failure to implement A.M.’s BIP. The Court shall GRANT-IN-PART and DENY-IN-PART Plaintiffs’ Motion for Summary Judgment and shall GRANT-IN-PART and DENY-IN-PART Defendant’s [14] Cross Motion for Summary Judgment. The Court shall remand for further administrative proceedings regarding the award of compensatory education for the Child Find violation and the denial of a FAPE during the first half of the 2016-2017 school year”
October 12, 2018
Cameron D. v. Arab City Board of Education, Alabama District Court, September 26, 2018
Key Words: IDEA, 504, spoliation
Decided for: the school system
Cutting to the chase, the parents were alleging that their child was unlawfully restrained and harmed in something called a Rifton chair (See note below) for periods of timeout. The Rifton chair had a belt and buckle on it that Cameron was unable to release himself, although for most children it would not appear to have been problematic. The use of the chair was not frivolous. The “”School documented disciplinary problems with J.D., such as him hitting, punching, kicking, head-butting, pulling hair of teachers and students; spitting at people; throwing rocks and chairs; rolling on the ground; screaming; and on one occasion, exposing himself.” The parents claimed it had been used twenty or thirty times, but the available documentation only confirmed two or three times. The parents had requested copies of the videotapes, but apparently only portions were provided. Whether that reflected an intent of the district to withhold information or to protect the identify of other children on the tape is unclear to this reviewer.
When the parent complained to the principal, the chair was removed from the teacher’s classroom. Despite other claims that other teachers had used the chair, they presented no evidence supporting that allegation, and the evidence only confirmed the sped teacher having used it three times. The judge dismissed their claims of false imprisonment under state law because the parents offered no evidence to show that the individual defendants acted in violation of state laws with respect to the lawful discipline of students by teachers, although the parents had also alleged that the child had experienced bruising and displayed signs of trauma at home. The judge concluded that the teacher’s actions fell within state guidelines and therefore entitled the defendant teachers to immunity. The parents had moved the student to Mississippi so there was nothing that the Arab City Board could do with respect to compensatory services. The parents wanted monetary damages but monetary damages are not available under the IDEA and only under very limited circumstances under 504. (In their brief, they said they wanted “reimbursement for their out of pocket expenses, transportation to and from Mountain Lakes, Arab Family Healthcare, LLC., and expenses involved in moving to relocate J.D., etc. Of course parents can always sue for compensation for services incurred as the result of a school system to provide FAPE, but the parents provided no evidence showing they had incurred any out of pocket expenses. their attorney had said that they weren’t seeking compensation for the therapy. Most of the other claims by the parents were also rejected, primarily because the judge concluded that they had failed to provide supporting evidence.
This case would be unremarkable except for the criminal charges, but also for the fact that their attorney also added a charge of spoliation. This reviewer had never seen that before. Summarizing, destroying evidence crucial to the other party in proving his or her case is not only unethical under federal law but can actually result in huge fines and prison terms of up to twenty years. In this case, the disagreement over the number of times that it had been used is what gave rise to the parents’ suspicion that evidence had been destroyed. Still, why they raised this as an issue in this instance is a bit of a puzzle, as neither the parents nor their lawyer could offer any proof that documentation they sought had actually been destroyed )according to the judge) or that it would have been crucial to their case.
Note: This reviewer had also never heard of Rifton chairs. They are available in various sizes and configurations from Rifton.com. Advertised uses are for feeding, maintaining the comfort or safety of some students or for the provision of speech therapy. The Home Page does not mention time-outs as an anticipated use. Regardless the lesson here is whatever the intended use, that should be documented in the IEP or as part of a BIP attached to the IEP just so everyone is on the same page. The cost of a Rifton chair is well over one thousand dollars, the exact pricing dependent on the size needed and the accessories desired. Less expensive alternatives may be found on the Internet. They’re not exactly copy cat chairs nor are they of the same quality, but may in same cases satisfactorily serve the same function.
October 5, 2018
McKnight v. Lyon County Schools, District Court, Nevada, September 25, 2018
Key Words: FAPE, LRE, One to One Assistant
Decided for: The school system
Cutting to the chase, the parents wanted their child to have a one to one assistant. The school system argued that a one to one assistant would have impaired the child’s opportunities for socialization with other students. The court applied the standard for determining LRE that was first put forth by the Ninth Circuit in Holland v. Sacramento 1994 (where the parents wanted their kindergarten child mainstreamed full time, the school did not, and the school lost big time.) The Ninth’s standard (which is not quite the same as established by other circuits) requires the following considerations.
(1) the educational benefits of placement full-time in a regular class;
(2) the nonacademic benefits of such placement;
(3) the effect [J.] had on the teacher and children in the regular class; and
(4) the costs of mainstreaming (In the Sacramento case, the school argued it would be very expensive; the court concluded they were not exactly telling the truth.)
The school system in this instance argued that providing a one to one assistant as requested by the parents would have been in conflict with the legislative preference for the child to be educated in the least restrictive environment. The parents case was essentially undermined by the fact that the school could produce evidence showing that the student had received passing grades without a one to one assistant. The court, finding no reason to do otherwise, gave deference to the state hearing review officer (SHRO) decision. Not exactly a landmark decision, but interesting as an illustration of how applying exactly the same principles, only varying the facts, one school lost (Sacramento in 1994) while another scores a win (Lyon County). 22 years later.
The decision was also instructive in detailing some of the disadvantages of having a one to one assistant.
Here, J. did receive passing marks, even if he was not meeting the standardized testing score cutoffs in his grade. Moreover, the costs of providing a one-on-one aide to J. while he was in the regular classroom time would have outweighed any additional benefit such a scenario would provide. Not only would it cost the school district additional money to provide this aide, but it would detract from J.’s socialization with other students and the teacher in the regular classroom. Similarly, J.’s principal pointed out that the goal of education is for students to be able to learn independently, without dependence on others. (AR 144.) By remaining in the regular classroom without a one-on-one aide with him constantly, J. is better able to develop the skill of thinking and working independently. The Court therefore finds that the failure to provide a one-on-one aide to J. in his regular classroom did not result in the denial of a FAPE under the IDEA or Section 504.
Osseo Public Schools v. M.N.B., District Court, September 25, 2018
Key Words: IEP, stay put, transportation as a related service
Decided for: the parents
The child’s IEP required her to get individual transportation to and from school and for the parents to get mileage. The kid transferred to Osseo Schools under an open enrollment policy. The receiving district agreed that that transportation was needed, but only would reimburse the parents for the mileage between the school system’s border to their school, not from the student’s home to school. The parents invoked their due process rights.
It’s difficult to report on this case without reflecting on the stupidity of the school administration in deciding to go to trial rather than ante up the relatively minor cost (compared to paying an attorney) of meeting the parents’ request. So I am not going to try.
The hearing officer decreed that the school system must reimburse the parents for mileage from the home, and this decision upholds the hearing officer.. Even if the district had prevailed, the money paid to their attorney would have dwarfed what the parents were asking for originally. Having lost, they ended up having to pay for both attorneys. Plus reimbursing the parents for mileage, of course, which at the time of the decision was $7,120.96 for the period between October 17, 2016, and April 12, 2017. A bargain, I would have thought, compared to the cost of having a taxicab transport the child (since the responsibility for providing FAPE rests solely with the district, not the parents.)
Reminds one of the chorus from that old song sung by Peter, Paul and Mary as well as the Kingston Trio , “Where have all the flowers gone.” When will they ever learn?
September
September 22, 2018
Lauren C. v. Lewisville Independent School District, Fifth Circuit, September 14, 2018
Prevailing Party: School district
Key Words: autism, attorney fees
Note: Justia’s Summary of this decision is a LOT shorter. Skip to the link at the bottom if a case about attorney fees doesn’t interest you.
The parents were contending that the school district owed them attorney fees because they had failed to diagnose Laura with autism and the hearing officer had directed the school to reconvene the IEP team after finding the student should have been classified as autistic. The IEP team was serving Lauren as intellectually disabled, with multiple related services. A hearing officer found that the student had been inappropriately labeled. The district had, however, been providing services that would have ordinarily also been provided to a child with ASD. Therefor, the H.O. also found the IEP to be appropriate but nevertheless directed the district to go back and review Lauren’s IEP in light of the new diagnosis, which the district did. The IEP team determined that the IEP was appropriate as it was written. More surprising to this reviewer, neither the parent nor their attorney objected or offered new suggestions on how the IEP should be modified to provide services appropriate for a student diagnosed with ASD.
School psychologists are employed to provide eligibility groups and IEP teams with sufficient information to make a classification decision. However, strictly speaking, labeling a child is not actually required by the IDEA. Under the regulation for Child Find, at 34 CFR 300.111 the regulations state:
“Nothing in the Act requires that children be classified by their disability so long as each child who has a disability that is listed in § 300.8 and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under Part B of the Act (emphasis added)”
A bit of digression here. Some commenters expessed some concern over the language above, wondering how LEAs and states could meet their reporting obligations if children were not classified. OSERS responded with a bit of bureaucratic jargon juggling that, putting it diplomatically, was not helpful:
” In other words, while the Act requires that the Department collect aggregate data on children’s disabilities, it does not require that particular children be labeled with particular disabilities for purposes of service delivery, since a child’s entitlement under the Act is to FAPE and not to a particular disability label.” 2006 Final Part B Regulations
Regardless, it was the language above that the Fifth relied up in concluding that the Act did not require classifying a child with a disability with a specific label, only that he or she be provided with appropriate services. Since no changes were made to the student’s IEP, the school had been and continued to be providing her with FAPE as required by law.
The universal principle applied in IDEA Part B cases with respect to attorney fees was and is, ““Under the IDEA, ‘a prevailing party is one that attains a remedy that both (1) alters the legal relationship between the school district and the handicapped child and (2) fosters the purposes of the IDEA” In reality, the only substantive basis for the parents’ claim was that the H.O. had ordered the school to review the child’s IEP. However, as the H.O. had already found the IEP appropriate, the circuit court concluded the H.O. had no grounds for that order and, in any event, since the IEP remained unchanged, there was no material alteration to the parent and school relationship.
School wins, parents lose. No word on whether or not the attorney got paid by the parents.
September 21, 2018
K.D. v. Downingtown School District, PA, Third Circuit, September 18, 2018
Key words: FAPE, Deference; “reasonably calculated”
Decided for: Downingtown School District
This is another case wherein the parents were trying to get their tuition reimbursed for a unilateral private school placement. It is one of the first cases where vidence-based practices have been referenced. It is a little unusual in that the schools’ interventions had not been very effective, but the fact that all of their IEPs were based on research-based/evidence-based practices proved their IEPs had, at least, been reasonably calculated to provide benefit.
The child about whom this case was about had multiple disabilities and low average to average intelligence. The school’s interventions had been based on scientific research based interventions but they changed to a new instructional program based upon the recommendation of the parents’ independent evaluator.
The parents nonetheless asserted that the child’s IEP failed to provide him with benefit. The hearing officer, district court, and now the Third Circuit determined that each IEP was reasonably calculated to provide benefit, even when, in the final analysis, it did not. While some goals on the IEP were the same from year to year, they found that the IEPs taken as a whole were not the same, as the school system added services and changed programs but always used evidence based interventions in an on-going attempt to meet her needs.
There are some parts to this decision that are particularly thought provoking. The parents presented an OSERS letter from 2015 in partial justification of their claims. The court said that they had over read the letter and that they did not find it persuasive. As a matter of law, OSEP and OSERS letters explicitly do NOT carry the force of law and, while they might be persuasive to a court, this decision illustrates that “might be” is definitely not “always.” What OSERS had said was that students who were fully integrated into classrooms should have goals commensurate with other students and programming designed to narrow the gap. The court found that (1) this student was NOT fully integrated and (2) the IDEA did not require all students who were fully integrated to be learning at the same rate as their non disabled peers. In short, an aspiration is not the same as a federal requirement. (This reviewer could no longer find this letter on the OSERS website, even in its archives. It did lead these parents into making costly assumptions that were not supported, at least, by this court. Its helpfulness and legal accuracy therefore is highly quesitonable.)
Courts owe their deference to hearing officers and state review hearing officers in matters of methodology, of course, but they also rely heavily on hearing officers in judging the credibility of witnesses.
The H.O. in this case rendered his decision from 12/18/2015 Click on the preceding link for the entire decision.
In the 18 page decision, two of the H.O.’s findings seem to have contributed the most to the school’s victory. First, while evidence based practices were mentioned five times, it was within the context of all the changes made in the IEPs over the years. As a result, even though the girl did not make substantive progress, he concluded that at the time they were written, they were reasonably calculated to provide substantial benefit. . Second, the parents’ strongest witness was a doctoral level neuropsychologist to whom the H.O. gave “very little credibility.” What tarnished the evaluator’s credibility the most was that hearing officer believed that she know the parent’s goal and had drafted her report to help them meet that goal, having failed to even consider what the school had agreed to provide after receiving her evaluation.. The hearing officer’s complete analysis makes for an amusing read.
In this instance, the school system’s reliance upon research-based and evidence-based practices seems to have saved the school system’s bacon when it came to prove that IEPs that weren’t particularly successful had, nevertheless, been reasonably calculated at the time they were written to provide her with benefit.
September 13, 2018
JG v. NEW HOPE-SOLEBURY SCHOOL DISTRICT, Dist. Court, ED Pennsylvania August 27 2018
Prevailing Party: The school system
Key Words: FAPE, tuition reimbursement
This was an appeal from a hearing officer’s decision rendered on March 14, 2018. The hearing officer found that while this student with ADHD did not make progress on one of his IEP goals each year but not the same IEP goal each year, he did make progress on the other IEP goals each year.. The parents notified the school system that they were unilaterally withdrawing the child from public school and that they would be seeking tuition reimbursement for the private school. The hearing officer determined that despite having made no progress in one of his IEP goals each year, the progress he made in achieving his goals in all other areas was sufficient to establish that the district had provided him with FAPE One odd (unusual) feature of this case was that the parents also requested reimbursement for their IEEs, but they had never requested an IEE at public expense before having him tested privately. They claimed that they had requested another evaluation from the district in 2015 but presented no evidence to support that claim. The district court affirmed the hearing officer’s decision in favor of the district on all issues. The decision above contains numerous citations to precedential decisions that a serious student of spedlaw might find of interest. Or, then again, might not.
September 6, 2018
Key Words: FAPE, de novo review standard, Endrew
Prevailing Party: School system
This was a case dating back to 2014, wherein the parents were seeking reimbursement for private tutoring which, they alleged, had been provided because the district failed to provide FAPE. Their case was based on three(3) allegations. First, that the parents’ procedural rights were violated because the district persistently and consistently failed to consider the parents’ input. Second, that a number of goals had been repeated from one year to the next in the student’s IEP. And third that he wasn’t doing very well on state tests.
The Independent Hearing Officer had found for the parents on the first issue, but was overruled by the state hearing officer. In the Second Circuit, deference is given to the SHRO when there is a e between the iHO and SHRO. In their decision, the Second Circuit judges also observed that the evidence was clear that the school had listened to and considered the parents’ input. The school just disagreed with the parents’ recommendations. Keeping a parent from providing input would be a procedural violation, but disagreeing with a parent is NOT a procedural violation.
Even after taking the Endrew standard into account, the court found that the student’s IEP had been reasonably calculated to provide him with benefit given his strengths and weaknesses. It also found based on the record that the student had made progress consistent with his abilities, even if it was not as much progress as the father would have wanted.
This 4 page non precedential decision affirmed the district court’s decision from 2017. For a much more detailed discussion of the standard for review, with multiple links, see that decision.
Scordato v. Kinnikinnick School District, District Court, Illinois District Court, August 22, 2018
Key Words: Stay Put
Decided for: The School System
This is another example of why it takes so long to adjudicate what at the outset might seem like a simple question of FAPE. This decision was about one small issue — what was the stay put placement for a 14 year old whose parents were contesting his IEP. The IEP included a provision that it would be implemented within ten days after the meeting. The parents did not file an objection until more than ten days after the IEP team meeting, so (with respect to their stay put claim) they were already at a disadvantage. The Seventh Circuit had in previously adjudicated cases provided guidance to the district courts on how to settle this kind of dispute.
“This is not to say that the determination of a student’s then-current educational placement looks solely to a student’s current IEP. Rather, under the Seventh Circuit’s guidance the inquiry must be fact-driven, and must take into account the student’s educational goals. According to the February 2018 IEP, the educational goals for P.S. include preparing during the coming years for eventual employment after graduation, or for post-secondary education or training. . As explained in the IEP, these services are available at Hononegah High School, such as a vocational internship program in which P.S. might find the opportunity to work at the YMCA or Boys & Girls Club to pursue his expressed interest in the field of fitness. Id. Granted, the IEP doesn’t call for P.S. to begin interning this coming school year, but the staff members from both the middle and high schools believe that based on P.S.’ age, he is ready to transfer to the school where he can work towards such goals.”
The parents’ attorney argued, of course, that the Seventh’s guidance should lead the judge to conclude that even though they’d procrastinated in filing an objection, the middle school placement should still be the stay put placement. The judge was unpersuaded.
In this particular case, the middle school and high school were in different school districts, which may explain why the parents were so eager to argue their position, but that fact appears to have had no relevance in the judge’s final decision.
September 1, 2018
B.G. by J.A.G. v. Board of Education of the City of Chicago, August 27, 2018, 7th Circuit, 24 pages
Key Words: IEE at public expense
Decided for: The school system
A case of potentially particular interest to school psychologists. Cutting to the case, after a length due process hearing, and a hearing before a district court judge in March 2017 who upheld the hearing officer’s decision, the parents appealed to the 7th Circuit which affirmed the district court judge’s decision because, in its view, minor errors in an evaluation do not justify parents getting an IEE at public expense.
Before getting to the heart of the matter, this reviewer must digress. In any average sized school system with average sized pockets, this would or should have outraged taxpayers who saw their school squander tens of thousands of dollars just to avoid going an extra mile for only a thousand dollars or so to help a child with a disability. Of course every district has to conduct its own cost analysis . . . “If we cave in to this parent’s demands, will we be deluged with hundreds of similar baseless complaints from other parents seeking public funds to help their child?” If the answer is “Yes,” then maybe and just maybe litigation would be a logical last result. But for the most part, angering parents and emptying the district’s coffers just to prove a point is pretty pointless.
One additional side note. The Supreme Court has said that in matters of methodology, the courts must defer to the schools. That doesn’t mean obviously that whatever undocumented and unsupported assertions a teacher might make must be taken at face value, but what some may not realize is that when higher courts do give deference, it is to the administrative law judge or hearing officer . . . not the public school system.
In any event, this was a child whose history was absolutely horrible with far more needs than the average child with a disability, but the district provided a number of services in an effort to address his needs. This was NOT a case alleging that the district had denied him FAPE. It was about the educational evaluation provided by the school system.
Here’s where the troubles began . . . after attending an IEP team meeting, where she voiced no objection to the district’s plan of services,
B.G.’s mother soon requested Independent Educational Evaluations (IEEs) at public expense in seven areas: psychology, speech and language, physical therapy, occupational therapy, nursing, social work, and assistive technology. Believing its evaluations were appropriate, the District sought a Due Process Hearing with the State Board of Education to defend its decision not to fund IEEs
The testimony of the parents’ witnesses to the effect that the district’s evaluations were inadequate was discredited by the hearing officer because they had not seen, much less actually evaluated, the student. The parents complained that a blank protocol in the child’s folder (the CASL) supported their claim, and also upon appeal to the district court wanted two new (post hearing) evaluations considered. Following guidance from the 7th not to review the case as de novo, but restricting the review to consideration of the hearing officer’s findings, that request was denied. The 7th agreed.
Important Note: The circuits are split on this issue. Other circuit courts apply a “modified de novo standard” that would require a district court judge to consider new evidence presented by either part. Although the Supreme Court required lower courts to give deference to hearing officer’s decisions, deference is usually applied only to the factual findings; a review of the legal standards applied is always de novo.
Extensive quotes from the 7th’s decision are reported below as they may prove instruction both as to the complaints that parents might make against them AND as to what effective rebuttals might be made. But at the risk of seeming repetitive, this reviewer’s preference would always be to avoid these kinds of adversarial situations as often as possible. It is a far, far better thing that we do when we spend a few extra dollars to help a child that we might not legally be required to spend than when we spend ten times that amount to fund some attorney’s condo in Cancun.
Two psychologists, Nicole Cintron and Yazmin Coehlo, conducted the district’s psychological assessment of B.G. At the time of the administrative hearing, Cintron had been a lead psychologist for the district for eight years. Before that, she was a first grade teacher for seven years and a special education teacher for three years. She holds a bachelor’s and a master’s degree in bilingual special education. Coehlo had been a school psychologist for three years and holds a master’s degree in special education, an Illinois Type 73 license,2 and bilingual certification in Spanish. Coehlo administered two assessments before she went on maternity leave and left Cintron to interpret the data: the Wechsler Intelligence Scale for Children, Fourth Edition (WISC-IV),3 and the Behavior Assessment System for Children, Second Edition (BASC-II).4 Cintron then attempted to administer the Kaufman Test of Educational Achievement, Third Edition (KTEA-3),5 but found B.G. to be uncooperative and the test results unreliable.
Cintron reviewed B.G.’s academic history, previous evaluations, and medical history. She also performed classroom observations in a general education class and in B.G.’s special education classroom. Cintron noted that B.G. had been hospitalized in May 2014 and diagnosed with morbid obesity, hypertension, and diabetes among other things. She also observed that B.G. was exhibiting some signs of depression after his father died around that same time and he had to move in with an aunt (his godmother) while his mother sought stable housing. Unfortunately, due to B.G.’s uncooperativeness, Cintron was unable to conduct an interview with him on two separate occasions. After all this, Cintron composed a report for B.G.’s IEP team which the hearing officer deemed “comprehensive.” Hearing Officer’s Decision, Findings of Fact ¶ 42. Based on Cintron’s report, the IEP team concluded B.G. was eligible for services under the emotional disability and special learning disability categories. The team also used Cintron’s report to write goals for B.G. At the IEP meeting, the team shared the report with B.G.’s mother, who raised no objections.
The parent raised eight objections to that evaluation.
B.G. has eight main objections to the psychological assessment: (1) the psychologists were not sufficiently trained and knowledgeable; (2) errors in administering the assessments rendered them invalid, and, relatedly, the District’s failure (in his view) to assess whether B.G. has an intellectual disability; (3) the psychologists erred when they concluded that B.G. was an English speaker (and further erred by providing minimal Spanish translation on one of the tests administered); (4) the psychologists incorrectly thought B.G. was suffering from an emotional disability; (5) the assessment did not consider that B.G. might have had Attention Deficit Hyperactivity Disorder (ADHD); (6) Cintron entered the IEP meeting thinking that B.G. should no longer be classified as learning disabled; (7) the District failed to report certain academic data; and (8) Cintron’s recommendations to the IEP team were erroneous. We consider these objections in turn and ultimately find that, in light of the record and factual findings by the hearing officer and the district court, none has merit.
Why did the arguments not have any merit? Here this reviewer will summarize, referring the reader to the link above for a considerably more detailed analysis from page 10 through page 23 .
1. No persuasive evidence was provided to show that the duly licensed school psychologists were unqualified to administer any of the tests.
2. Although intellectual scores were in the mildly intellectually disabled range, this was a child who had been through hell and not the most cooperative examinee to begin with. The judge thought the psychologist’s conclusion that the low scores he obtained were not reflective of his actual ability reasonable.T
3. Testing in English. The student did speak English as a second language, but he was no longer receiving ESL/LEP services, was instructed in English, and preferred to speak English rather than Spanish at home. The judges credited these facts as supporting the SPs’ decision to measure his intelligence using an English language IQ test.
This reviewer finds the school’s explanation that testing for an IQ score in English was appropriate since the child was no longer receiving ESL services seriously flawed. Additionally, observational data showing him speaking in English most of the time was irrelevant, because (as we all know ) achieving basic interpersonal communication skills (BICS) is not the same as attaining cognitive acdemic language proficiency (CALP). Legally, of course, a child must be tested in his or her native language, but schools may consider a LEP child’s native language to be English if English is the primary language used in the learning environment. That’s NOT the same as saying that the scores for an ESL student from an intellectual test administered in English are a valid measure of intelligence. Alleged observational data aside, it was also well documented that the child’s mother only spoke Spanish. So it’s highly unlikely that the primary language used at home was anything other than Spanish.
4. Emotional disability. Parent said that the psychologists were conflating grief with ED, but the boy had expressed suicidal ideation, said that things always seemed to get worse rather than better, had no friends, and test data showed significantly decreasing IQ scores over time. The judge concluded that a finding of ED was reasonable.
5. ADHD. The judge in this case contends that ADHD was a medical diagnosis, so the psychologists could not be held accountable. “Without a diagnosis, there was notihing the school psychologists could have done differently.”
Important note: The misconception that only medical doctors can diagnose ADHD was first articulated in this case in the decision by the independent hearing officer. Although best practice in diagnosing ADHD would ideally be the result of a multi-disciplinary evaluation (as recommended by at least one drug manufacturer), appropriately trained school psychologists are qualified to diagnose ADHD (which could qualify a child in and of itself for 504 consideration) even when IDEA regs require a medical evaluation for children classified as OHI. A SP can always evaluate for ADHD even if in the end he or she recommends a medical to rule out other medical conditions. In which case, he or she would be recommending a medical at public expense. It is simply not true that SPs are rendered helpless just because a parent hasn’t provided a medical at parental expense. It has been the official position of both the Office for Civil Rights and the Office of Special Education Programs in a 1991 Joint Memorandum and a 1992 clarification that if ADHD is suspected, schools must pay for the medical if it is needed to determine eligibility. (504 does not require a medical, but if a school requires it, the school must pay.)
6. The psychologist didn’t think that the child had a specific learning disability, BUT the IEP team (eligibility group) overruled and classified the student so he could get the same services (e.g., audiobooks) he had always received. So what the school psychologist thought or didn’t think was not really relevant. (Another good example of why it’s a good idea to make sure the buck never stops with us.)
7. Educational data. The psychologist’s failure to get cooperation on some of the subtests didn’t really matter, especially since another IEP team member performed a comprehensive Learning Environment Screening that “provided considerable detail” regarding the boy’s educational needs.
8. The psychologist’s recommendations. The parent alleged that the school psychologist had failed to recommend services the child needed. However, the judge’s view was that it was the IEP team’s responsibility to develop an IEP based on the psychological along with other assessments, and the team did address and provide the contested services.
The judge’s decision also analyzes the quality of the other evaluations performed, but as this is a website for school psychologists, readers with an interest in how other evaluators from other disciplines might be reviewed are again referred to the link to this decision above. The speech language assessment analysis was particularly detailed.
From a school psychologist’s perspective, some of the reasoning above was flawed. What this reviewer suggests as a “take-away” however is that had the court reasoned differently on one or more of the issues before it, the decision could have gone in a totally different direction. The district gambled the court would see things its way, and it did. But from the git-go it was a gamble nonetheless.
Click here for Justia’s (much more succinct) summary of this case.
August 2018
L.H. v. Hamilton County Department of Education, Sixth Circuit, August 20, 2018 22 pagesx`
Key Words: FAPE in the LRE
Decided for: The parents. Affirmed in part, remanded in part
The local media in Tennessee is already giving this decision a lot of attention, because they say this decision could cost Hamilton County thousands of dollars. After years of litigation, the Circuit court found that Hamilton County had violated the rights of an 11 year old boy with Down’s Syndrome by placing him in a day school because he could not keep up with the general curriculum. Bad reasoning. The district court had concluded the same thing but had denied the parents’ claim for reimbursement because it had concluded the parents’ placement did not meet the standards for FAPE. The Circuit court concluded otherwise and sent the case back for the district court judge to calculate how much they were due.
This was a nice kid with very involved parents who wanted the boy mainstreamed. He was, until third grade, when overall academically he was still at a kindergarten level. The school apparently tried initially to teach him at grade level, and he became increasingly disruptive . . . probably because of instructional mismatch . . . but improved considerably in his behavior when they re-introduced him to a kindergarten curriculum. In third grade, because of his lack of progress, the school unilaterally changed his placement to a different day school. There were a number of problems with the placement, but what the parents were most upset about was that they weren’t giving him any homework so they could help him at home. There also were no report cards, and the curriculum wasn’t tied to the state curriculum.
The Sixth Circuit applied a standard first put forth in 1983, wherein the court had noted (correctly) that the IDEA has always expressed a strong preference (as does Section 504) for mainstreaming children. But as the court reiterated here, “This preference is not absolute, however, and a school may separate a disabled student from the regular class under circumstances when: (1) the student would not benefit from regular education; (2) any regular-class benefits would be far outweighed by the benefits of special education; or (3) the student would be a disruptive force in the regular class. Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983).”
But the flaw in the district’s argument was that their staff argued that the child was moved to a more restrictive placement because he was not meeting grade level standards. That is not and never was the standard for determining whether a child was receiivng FAPE in the LRE. The question isn’t even whether or not a child is meeting his or her IEP goals. The question is, “Could this child receiving meaningful benefit from a placement in the LRE appropriate to his strengths and weaknesses?” (Paraphrasing.) This reviewer would also note that asserting that a child would get more benefit from a placement in a more restrictive environment is also not germane to answering the question, “Could this student receive meaningful benefit in the LRE?”
The school system also argued that placement in the LRE was about methodology. One word from the Sixth circuit sums up THAT argument: “Bizarre.”
Nor did the district’s argument that this was just about location fly. The parents were not mostly upset about location. They didn’t like anything about the new school.
The private school the parents chose was a Montessori school. Hamilton’s teachers argued that it was too unstructured and that the boy needed structure, so it was inappropriate for his needs. The district court bought that argument, but the proof of a pudding is in the eating. And in this case, the boy had an individualized curriculum, had a one on one assistant (paid for by the parent), and was clearly making progress. Just because a school is a Montessori School does not render it inappropriate for all children with Down’s Syndrome. And not for this kid, either.
Lastly, the school system invoked stay put as an argument, saying that the kid could have stayed at his regular school where he was receiving some benefit. Unfortunately for the school system, basically it got blown up by its own petard, because their teachers made it clear at the administrative hearing they either could nor or would not teach the child. This reviewer thinks they were trying to strengthen their district’s case for the more restrictive placement, but it’s also an illustration of how swords can cut both ways.
Clearly this was a case where school personnel thought that they were recommending what was best for the boy, but in general, if the parents of an ID child are arguing for LRE, odds are their position will prevail. While news media were reporting a potential cost of thousands of dollars, in point of fact these kinds of adverse decisions can end up costing a million dollars or more . . . for an example of that, see Sacramento v. Rachel H. (1983) where legal fees were estimated to have cost the Sacramento school system at least 1.2 million dollars. I don’t think lawyers have reduced their rates over the past 24 years.
The district court decision is also online from 2015. Another illustration of why “It’s not over until the fat lady sings” is as applicable in spedlaw as it is in opera.
Click here to read Justia’s Summary.
Richard v. Regional School District 27, First Circuit, August 2018 30 pages
Key word/phrase: Freedom of speech, retaliation, ADA, Section 504
Decided for: The school system
Theoretically, a teacher’s right to free speech does not end at the schoolhouse door IF the speech in which he or she was engaged was on a matter of public concern, not simply about the conditions of his or her employment.
Whether or not a school takes action against a teacher for just cause or in retaliation for having advocated for her children, the school will of course that the actions taken were for just cause, not because of anything the teacher said on behalf of her kids. In this case, the First Circuit was not convinced the school had retaliated based on the kindergarten teacher’s advocacy, but this case also illustrates that any time anyone goes to court, it involves a roll of the dice. This was a two to one decision — one judge believed her, two did not.
The teacher was alleging that her rights were violated under the ADA, Section 504, the Maine Whistleblower Act, and the Maine Human Rights Act. Richard was a conscientious teacher and on many occasions took appropriate action to advocate, including reporting an incident where a specialist had requested a janitor to remove the handle from the inside of a time-out room — a clear violation of law. The record was clear. The administration was seriously ticked by the inconvenience she caused them, and the Superintendent even asked on one occasion what he would need to do to get her to resign . . after ten years of seemingly exemplary service.
So what happened? In a 67page decision, the district court concluded that the actions taken by Richard were not dissimilar to the actions taken by others on behalf of children with or suspected of disabilities. However, it found the reason given for the action taken by the school district to be pretextual — that is, false. The action taken by other administrators were directed by him, not out of any personal animus. The district court and the first circuit found that just proving the reason given by the district was false was not enough; the plaintiff had to show that the real reason was retaliation, and that Richard had not met that burden.
The angry ten page (out of the thirty) dissent thus becomes more understandable. That in my opinion Richard should have won (or that one judge out of three thought she should have won) is of course irrelevant. But for a layman, it’s hard to see how, having concluded that the reason for the transfer was a pretext the court could not see that it was a pretext for transferring her because of her special education advocacy. But that was too much for them.
Click here for Justia’s Summary