Table of Contents
December
December 5, 2020.
C.M v. Jara. District Court, November 10,2020
Prevailing Party: The school system
Key Words: COVID 19, Virtual learning, FAPE
This is just another in what promises to be a long line of cases regarding a school’s response to COVID 19 and its response to the needs of its children with disabilities. Basically what the parents were requesting was a restraining order forcing the school to re-open and they actually had a lot of arguments that seemed rather sensible froma legal standpoint. But the judge said “Nay, nay, not yet.” The relief that the litigants was seeking also seemed a bit excessive to the judge who did schedule another hearing to discuss getting a preliminary injunction. Case arising out of the pandemic are inevitable, as pandemic or not, schools are still laboring under the same laws and regulations as they were pre pandemic.
December 5, 2020. Perry Zirkel’s Legal Update. This month’s update identifies recent court decisions of general significance, specifically addressing issues of (a) settlements for special education students, and (b) system-wide claims arising under COVID-19.
December 5, 2020
Norris v. Opeika Public Schools, District Court, 11/18/2020
Decided for: The teacher
Key Words: Freedom of speech, advocacy, damages
This decision was about a case where a teacher advocated for a child’s rights, was subsequently fired (her contract not renews), and then filed a lawsuit seeking damages for retaliation. The ins and outs of this case are quite fascinating, but the most important takeaway for this reviewer is that two years after the firing, all this teacher has gotten was a decision not agree to the district’s request for summary judgment.
It was a bit of a mess, to say the least. The teacher was a probationary teacher. A child in her classroom was supposed to mainstreamed in P.E. but she observed that the P.E. teacher had taped off a section of the gym where the child was being taught separately. She alerted her principal, the tape was removed, but then it was back again a few days. later. The father came in and videotaped his conversation with the teacher. She told him everythig that had and had not happened with respect to P.E. The parent was furious and asked for a due process hearing, alleging his child had been denied FAPE. The hearing officer did not find the tape barrier to be a violation of the child’s rights but that removing the child without modifying the IEP was a violation, declared the parent prevailing part, and ordered the school system to pay the parent’s legal fees. The superintendent, according to the record, on the very next day, recommended that the school board not renew the teacher’s contract.
The school system of course argued that the teacher’s contract had not been renewed because of her job performance. (Her direct supervisor, the special education director, haddeclared her behavior “not normal” after seeing the videotape and refused to engage with her after that.) The school system then provided a parade of witnesses testifying in support of their claim that the teacher just was not very competent. The principal had even filed a complaint against her with D.S.S. alleging child abuse prior to the due process hearing. Sounds like a slam dunk for the school system, but there were several problems. First and foremost, all the written performance evaluations were positive. Second the most serious complaints against her were from the teachers against whom she had lodged a complaint and were unsubstantiated by the aides assigned to her class. Who, by the way, had never been disciplined themselves. Making it appear that the D.S.S. complaint was itself retaliatory as well.
This case has still not been adjudicated on its merits. The takeaway for this reviewer would be that it’s best to avoid these kinds of confrontations whenever possible. When advocating for children’s rights teachers and administrators should not under ordinary circumstances be going at each other like two trains running in opposite directions on the same track. It’s to everyone’s mutual self interest to ensure children’s rights are upheld because when they are, parents’ right (and need) to sue is denied.
November
November 10, 2020.
Perry Zirkel’s Special Education Legal Alert
“This month’s update identifies recent court decisions of general significance, specifically addressing issues of (a) IDEA standards
for evaluations (including reevaluations) and (b) FAPE claims arising under COVID-19. ” Two recent court decisions addressing IEEs, FAPE, COVID19, and the IDEA regulations regarding evaluations.
OCTOBER
October 4, 2020;
Perry Zirkel’s October Litigation Update.
“In an officially published decision in D.S. v. Trumbull Board of Education (2020), the Second Circuit Court of Appeals addressed the question of whether an FBA is an evaluation under the IDEA, thus requiring parental consent and subject to the regulation for independent educational evaluations (IEEs) at public expense. In this case, the school district voluntarily conducted an FBA each spring as part of the planning process for the IEP of a child with problematic behaviors. Dissatisfied with the 2017 FBA and the 2014 reevaluation of the child, the parents requested an IEE at public expense addressing not only his behavior but also various other specified areas (e.g., SLT, OT, PT, AT, and CAPD). The school district refused and filed for a due process hearing to defend its refusal. The hearing officer followed OSEP guidance that an FBA is an evaluation but ruled against the parents. She ruled that they were not entitled to the requested IEE at public expenses because its scope was well beyond that of the district’s reevaluation and FBA. Upon the parents’ appeal, the district court affirmed based on the same scope rationale for the FBA after concluding that the reevaluation was beyond the statute of limitations. The parents then appealed to the Second Circuit, which addressed the FBA and related questions.”
September
September 25, 2020.
B.C. vs. Round Rock Independent School System, Western District Court, Texas, June 2020
Keywords: right to privacy, Section 504, anorexia nervosa
Decided for: the Parents (on right to sue, not on the substance)
I only came across this case from last June yesterday. A child who suffered from anorexia was asked (pressured, the parents claimed) to sit for an interview on her disorder, the content of which was subsequently published in a school yearbook. Although she gave permission for the interview and photographs that were taken, she was only 16 and legally incapable of giving consent. The parents of course were never contacted. After the article was published and gossip began to flourish on Facebook, the parents alleged that she went into a tailspin, losing more than 40 lbs in less than three months. The allegation was that the journalism teacher purposefully recruited the child, knowing of her condition, in order to have her older students interview her for an article to go into the Yearbook. The parents contend that met the deliberate indifference standard.
These kinds of ADA/504 cases are not as rare as I would have thought, and a reading of the decision above provides a number of other examples cited as precedent.
A teacher recruits a child with an anxiety disorder.to work on the school yearbook. The teacher does so with the intention of having older students interview her and take pictures. Then she publishes the results of the interview in the school yearbook. Thereby exposing a teenage girl with a disability to public humiliation. I don’t have the teacher’s side of this story, but I am intensely curious as to how anyone would ever think that was a good idea.
September 24, 2020.
Madison County Board of Education v. S.S., District Court (NJ) September 4, 2020
Key Words: ABA, Compensatory Education, Attorney Fees
Prevailing Party: The parents
In this 20 page opinion, the district court judge upheld a decision by an Administrative Law Judge awarding the parents compensation for their one to one ABA therapy for their autistic child.
This decision was based on disagreements arising between the school and parents prior to the pandemic. In 2016 the school offered the parents an IEP, the parents rejected the IEP, and demanded reimbursement for their child to continue in a one to one ABA program. The ALJ’s decision ran 54 pages and, regretably, is not available here. In short, the ALJ concluded that the school’s proposed IEP would not provide FAPE, that the parent’s program would provide FAPE, and awarded them compensation for their educational expenses and attorney fees.
The reason that the district appealed the decision was that the parents’ program did not have state approval. It has however long been established that if the parent’s program would provide the child with meaningful benefit, whether or not the state had pre approved the program is irrelevant. (See the Supreme Court decision in Florence Cty v. Carter, 1993)
The school district offered up some other interesting arguments, as well. First they argued that the parents’ placement was not a school, and that the wording of the IDEA says parents are only eligible for reimbursement for an appropriate placement in another school. The judge nixed that argument, giving new life to an old axiom from this writer, that “When a school thinks it has found a loophole in the IDEA, more often than not it will turn out to be a noose.” Cutting to the chase, the court concluded that the language used is the IDEA was not meant to be exhaustive, just “elucidative.”
The other argument was in this writer’s opinion potentially more winning (although ultimately it failed). They said that the parents had failed to provide them with the prior notice required by the IDEA. It is a very reasonable argument, but the problem with it here is that when all the facts were considered, in this case, the judge didn’t think it held water. The parents were cooperative and involved. At the end of the day, they just didn’t like what they saw, and they let the school know.
So. (Why does everyone seem to start a sentence with “So” these days?) The parents got their full compensation for their child’s ABA program. The parents sought $159,367.24 in legal fees, and the court thought that was reasonable. And with the time I spent studying to be a school psychologist I could have become an attorney . . .
JUSTIA SUMMARY
Cost of 1:1 ABA program to be born by N.J. district, not parents
The U.S. District Court, District of New Jersey affirmed a decision by an administrative law judge at 119 LRP 17635 awarding the parents of a preschooler with autism reimbursement for the costs of a full-time private applied behavior analysis program. Reasoning that the parents’ unilateral placement was reimbursable under the IDEA and a proper placement, the court also awarded the parents $159,367 in legal fees. Madison Bd. of Educ. v. S.S. and D.S., 77 IDELR 99 (D.N.J. 2020).
September 19, 2020
Garza v. Lansing Sixth Circuit August 2020
Key Words: physical abuse, deliberate indifference
Decided for: The parent (right to sue, not the substantive issues)
Published: Definitely
A special education teacher was abusive to his students and the administration didn’t do anything. A new principal came in, an envelope full of allegations of abuse were given to her, and she had the teacher transferred to another school where the reports of continuing abuse, well, continued.
The special education teacher threw an autistic child into the furniture, kicked the kid, and finally the administration figured out he wasn’t good for public relations and fired him. The parents were not satisfied. They sued the school’s supervisory personnel under Section 1983 for damages alleging deliberate indifference. The district court judge tossed their lawsuit. The parents appealed to the circuit court. What I found intriguing was that I’ve always been told (not being a lawyer and not knowing these things from my own training) that individuals cannot be held liable in these lawsuits, just the district. But the district was not named in his lawsuit. Just individual administrators. The district court had, as I indicated above, dismissed the lawsuits against the district administrators and it was that which the Sixth Circuit reversed. If you want to review all the rotten things of which this teacher is accused, click on hte link above. Doing so, however, won’t illuminate your understanding of the law, but it will make you angry.
There are several factors of law that I consider important to be shared in a summary. There is no applicable statute of limitations in cases like this, so even though some incidents had occurred years previous, that did not justify ruling in the defendant’s favor. Having no current supervisory over someone over whom you did have supervisory authority does not render you immune, either. (You don’t get off the hook just by being fired, resigning, or retiring.)
“There must be “a causal connection between the defendant’s wrongful conduct and the violation alleged” in order to find that a defendant bears supervisory liability under § 1983). As we have explained when discussing causation in the scope of employment discrimination and retaliation actions, “[a]lthough temporal proximity . . . is relevant to the question of whether there exists a causal connection” between two events, it is not dispositive.”
However, the defendant’s behavior must be reasonably seen to have been causal to the plaintiff’s injury and
“[C]ourts have framed the § 1983 proximate-cause question as a matter of foreseeability, asking whether it was reasonably foreseeable that the complained of harm would befall the § 1983 plaintiff as a result of the defendant’s conduct.”
“Considering foreseeability, it is clearly foreseeable that if a teacher’s ongoing physical abuse of students is not responded to, that teacher will continue to physically abuse student.”
There’s also a brief discussion of qualified immunity which I’ll skip over here.
The case was remanded back to the district court and the legal circus goes on.
Most school psychologists need not be concerned or troubled by any of the above. I am confident that no one on this Listerv would ever choke a non verbal child. Most of us are in non supervisory positions. But the few of us who are might want to take a little more in depth look at this case. FAPE isn’t provided by providing de minibus benefit; and doing the least amount possible in protecting a child’s Constitutional right (in this case, the right not to be physically abused by his teacher) won’t get an administrator off the hook either. I guess the basic rule is pretty simple, aside from all the legal jargon. If you see a child being abused by another staff member, you’re supposed to do something.
September 18, 2020.
Killoran v. Westhampton School District, September 10, 2020, District Court, Eastern District of New York
Key words: Stay put during pandemic
Decided for: The school system
This eight page decision is the tail end of a lengthy litigation process and it addressed a simple issue. The child in this case had been receiving all his special education instruction in the public library which closed, and the parents wanted him to get his instruction in the school library which was also closed. Also, the agreement between parent and school specifically said that if the public library became unavailable, the stay put placement would be the home. Now none of that makes a whole lot of sense unless you go back and dig up the previous court decisions settling all that, which I no intention of doing here (but you, gentle reader, can Google this dispute as easily as I can.). What’s important here is that the parents had agreed to the stay put placement previously and now, because both worked, wanted to change it because, apparently, they believed it would impose upon them an unwarranted and unreasonable hardship. What I found interesting was that in reaching its decision against the parents the judge the judge said “The Court is sympathetic to Plaintiff’s concerns, as well as the struggles of every working family trying to balance childcare needs during these times. However, the balance of hardships does not tip in Plaintiff’s favor. ” The judge went to say, “Again, all students nationwide are grappling with modified learning right now. Further, even if Plaintiff had “demonstrated that they will likely suffer irreparable harm in the absence of injunctive relief, a careful balancing of the equities nevertheless favors Defendant.” Personally, I am not unsympathetic to the parents’ plight. But this pandemic is screwing up things for everybody.
(As noted above, this is just the latest chapter in an on-going history of an inclusion case that has in the past attracted considerable media attention. Previous rulings on this Down’s Syndrome child’s fight to be included are worth a read — but not the issue here.)
September 17, 2020. Perry Zirkel’s COVID 19 update.
“Remaining as unsettled as the pandemic, the primary two-part question arising under the IDEA and Section 504 as a result of COVID-19 continues to be: (a) has the district denied FAPE to the eligible child and, if so, (b) what is the resulting relief, typically but not exclusively in the form of compensatory education? Additionally, an interim but significant issue has emerged—upon parental filing for a due process hearing on such pandemic-related issues, what is the “stay-put”?” Perry discusses three new administrative hearing results. Again, in the normal course of events, those are not reported on this website as they are of limited precedential value. But it literally takes years for sped cases to get through the higher courts, right now, what Perry’s delivering is the best we;ve got during this pandemic. Several lawsuits have reached the courts, but seem to be primarily about procedural or funding issues. Basically not very informative.
September 12, 2020
CHERRYL KIRILENKO-ISON; SUSAN BAUDER-SMITH, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF DANVILLE INDEPENDENT SCHOOLS, Sixth Circuit, September 4, 2020
Key Words: Freedom of speech, retaliation, ADA accommodations
Decided for: The nurses (procedural rights only and only in part) and in part for the school system
Two nurses claimed that they had been retaliated against for advocating on behalf of several students with diabetes in violation of the ADA. The school district had predictably argued that the action taken had nothing to do with their advocacy and the district court believed the school system’s story. On appeal, the Sixth Circuit said, “Not so fast.” One of the nurses alleged additionally that she had been forced to resign because of her own disability and the district’s failure to provide reasonable accommodations for her under the ADA. A complicated case. And additionally, just to make it even more complex, one of the nurses said she had reported a parent for suspected neglect and she was retaliated against for that, as well. What the school district was asking for here was that the circuit court uphold a district court’s decision to provide summary judgment against the nurses.
The most important takeaway that is relevant to the practice of school psychologists is the standard to be applied. In order to show a court that a school has retaliated for protected speech, four conditions must be met: (1) she engaged in protected activity under the ADA and Section 504, (2) the defendant knew of the protected activity, (3) the defendant took an adverse action against the plaintiff, and (4) there was a causal connection between the adverse action and the plaintiff’s protected activity.
There was another takeaway as well. The nurses were arguing that for the child to partake of breakfast even when late for school put that child at risk. The district’s position was that denying the child breakfast would in and of itself be discriminatory. The district’s position in this regard might have been tenable had denial been basely solely on the child’s diagnosis of diabetes. Denying a child a service solely because he or she has a disability would in fact be a violation of the child’s civil rights. However, the nurses’ argument was not based on the child’s label but on a medically based concern that they were putting the child’s health at risk. An important distinction.
The one nurse’s complaint that she was discriminated against based on her own disability failed because she had failed to provide the district with proof of her disability. Since she had provided no documentation of a disability, her claim that she was forced to resign (she quit, she wasn’t fired) because the district provided no accommodations under the ADA also failed. Lesson? If you want accommodations for your disability, it would help, in fact it is required, that you provide your employer with some documentation of your disability.
Proximity of the protected speech and an adverse action can be helpful in establishing causation. Similarly, if several years have gone by, that can be fatal to a plaintiff’s case. Except if there was no previous opportunity for retaliation between the speech and adverse action. No slam dunks here.
Ordinarily, this writer would caution against relying on the protected speech argument while making every effort to avoid a potentially adversarial situation. This case is worth a read because it illustrates how uncertain the application of the standard above with respect to potential outcomes can be in a real life situation. But here it wasn’t that simple for the nurses involved. The nurses were afraid that the parent and their own school system weren’t just putting the child’s FAPE in jeopardy. They believed that the limitations being placed upon them in serving the children put their lives in jeopardy. Sometimes we are placed in positions where we have to take a stand, no matter what the personal risk might be or what a court might later decide. Not often. But every once in awhile. Sometimes life sucks.
The school system’s arguments were that the actions taken against the nurses were not in retaliation for their speech but imposed as consequence of non protected actions. The nurses of course argued that those arguments were pretextual, and while that was sufficient to void the district court’s decision to give summary judgment to the schools, there is no way of knowing how it will play out in subsequent litigation.
And of course this case was remanded back to the lower court for trial on the merits.
For a more authoritative (andbrief) summary from Justia, click on Justia Opinion Summary.
September 4, 2020. Marreto v. Commonwealth of Puerto Rico. (August 2020, District Court)
Key Words: ABA, autism
Decided for: The parents
A rather boring and detailed listing of all the events leading up to the conclusions in this case wherein the parents were supported in some of their claims, but where the school’s IEP for this year was ruled appropriate in part because of expert testimony to that effect. The most interesting part of the final order for this reviewer was the court’s order during this pandemic that
“Given the health and safety concerns posed by the Covid-19 pandemic, any evaluations and meetings may be held by video or telephonic conference.”
A more complete excerpt follows. If you want to skip it, what it says, gentle reader, is that the parents got compensatory services and legal fees, but the school got partial vindication for its current IEP. Not exactly an overwhelming victory for the Commonwealth.
.” Roland, 910 F.2d at 989. Accordingly, “[c]ourts should be hesitant to impose their views of what constitutes proper educational practice” on the state. Gonzalez, 969 F. Supp. at 814 (citing Rowley, 458 U.S. at 208). For the foregoing reasons, the Court finds that the proposed 2019-2020 IEP would provide GAJVM with a FAPE in compliance with the IDEA and the Court’s previous orders but declines to determine appropriate placement for GAVJM for the 2020-2021 school year. The Court DENIES IN PART Plaintiffs’ Motion for Summary Judgment at Docket No. 167 and GRANTS IN PART Defendants’ Motion for Summary Judgment at Docket No. 184
As a new school year is upon on us, a new IEP must be drafted. Given the time that has elapsed, the insufficient record and the constraints caused by the Covid-19 pandemic, the Court is not in a position to determine an appropriate placement for GAJVM, even on an interim basis. The Court GRANTS IN PART Plaintiffs’ request for permanent injunction as follows:
• The parties are hereby ORDERED to meet and approve a 2020-2021 IEP for GAJVM by September 8 , 2020 that incorporates ABA services and is devised with the assistance of an ABA-certified professional. If the Department does not have an ABA-Certified professional on hand, then it shall contract with one.
• If the parties are unable to agree on an IEP or an appropriate placement for GAJVM for the 2020-2021 school year, the parties are ORDERED to exhaust the administrative remedies available under the IDEA. See 20 U.S.C.A. § 1415.
Given the health and safety concerns posed by the Covid-19 pandemic, any evaluations and meetings may be held by video or telephonic conference. See 34 C.F.R. § 300.328. The parties are called to set aside their differences and reminded of their obligation to collaboratively and expeditiously prepare a 2020- 2021 IEP that meets GAJVM’s needs in compliance with the IDEA and the DOE’s regulations.
Additionally, the DOE is hereby ORDERED to:
• Reimburse Plaintiffs for the private school costs incurred from November 2018 through February 2019 totaling Three Thousand Twenty Dollars ($3,020.00); and
• Provide eleven (11) months of compensatory education corresponding to the period from April 2018 through February 2019 in which GAJVM was not offered an IEP that would provide him with a FAPE.
Lastly, Plaintiffs SHALL file an itemized claim for their attorney’s fees within fourteen (14) days.”
September 4. Perry Zirkel’s Legal Update for September
“This month’s update identifies recent court decisions that illustrate the significance, in some cases, of the parties’ course of conduct as perceived by the court. This judicial balancing of reasonableness and good faith, referred to as the “equities,” is not limited to the remedies, such as tuition reimbursement. It also extends with less frequent prominence to the underlying merits, such as the determination of “free appropriate public education” and “least restrictive environment” (LRE). “
August
August 25, 2020
Perry Zirkel’s Update on COVID 19 for August
“In sum, the state of the law, like that for the resumption of schools, remains a rather fluid and largely indefinite picture that warrants the continued resiliency and creative cooperation of both special educator and parents. It is unlikely that we will have definitive legal answers as to the FAPE and remedy questions until not only the pandemic but also the courts have finished their ponderous process. Hearing officers will be the key to the development of sensible judicial precedent”
Perry Zirkel’s Legal Update for August 2020
“In an officially published decision in Osseo Area Schools Independent School District No. 279 v. M.N.B. (2020), the Eighth Circuit Court of Appeals addressed the issue of whether the IDEA requires a school district, upon accepting the application of a nonresident student with disabilities under a state open enrollment law, to provide transportation, as specified in the student’s IEP, to and from school. Based on the parent driving the child and the open enrollment statute’s provision for transportation within district boundaries, the district only reimbursed the parent for the segment of the round trip between the school and the intersection of the district border. Both the hearing officer and the federal district court ruled that under the IDEA the district was responsible for the cost of the full round trip between the home and the school. The district filed an appeal with the Eighth Circuit to challenge their interpretation of the IDEA.”
.A. et. al. v Fayette County Board of Education, district court 8/14/2020
Decided for: the parents
Key word: liability
When the child in this case, diagnosed with autism and a number of other related disabilities, was receiving services from an occupational therapist, she allegedly slammed him into a chair causing him to incur physical injury.
This was a decision on legal rights, not on the merits of the parents’ case.
The school was arguing that they were entitled to qualified immunity.
The judge here ruled that slamming a four year old into a chair did not entitle the school system to qualified immunity and refused to dismiss the case. It took the judge 23 pages to say that.
The singularly important lesson for everyone to learn from this decision, but especially those who might be working in the state of West Virginia, is that just because federal laws give school employees certain rights, e.g., the right NOT to be sued for punitive damages, that doesn’t necessarily end the inquiry.
In this case, the parents are suing under a state law, the Governmental Tort Claims and Insurance Reform Act — which does NOT exempt individual school employees from a lawsuit seeking punitive damages.
With respect to the school system, liability under Section 504 would only arise if the behavior for which the school was being sued was discriminatory, that is, based on the child’s disability. But that was allegedly not the case here.
I’m not sure how this will actually play out should this case come to trial (that is, if an out of court settlement is not reached). But the judge’s analysis of what is and what is not required to establish liability is probably worth at least a quick read. Anybody can be sued at any time. Even really nice people can be sued.
You might conclude from this decision that if you’re a mean spirited person with hate in your heart, you’d be better off being despicable to everybody, not just the children with disabilities. Personally I don’t think that would be a good take-away.
July 2020
July 10,2020
G.D. v. Swapscott Public Schools, District Court, Massachusetts 2020
Key Words: Private schools, FAPE, tuition reimbursement, Endrew
Decided for: The school system
The parents in this case were not satisfied with the progress made by their son, so they placed him in a private school for children with specific learning disabilities.
They submitted documents showing the boy’s performance at the private school was better than at the public school but it wasn’t really clear what their evidence showed. Even it did document better progress, the question remained to be answered was whether progress in a mainstreamed setting was offset by bigger gains in a completed segregated setting. The administrative law judge said “No,” and the district court found no reason not to give that decision due deference. Even after Endrew, kids with disabilities are not entitled to an IEP promising maximum benefit So the parents lost their bid to get tuition reimbursement. A reminder, I suppose, that when parents choose to unilaterally place their child in a private school, they also take on the risks associated with that action. Endrew didn’t guarantee maximum benefit for children with disabilities. Endrew did not alter the principles expressed in Rowley in any way, it simply clarified them to require schools to provide children with disabilities with a reasonable expectation of something substantially more than de minibus benefit but still less than maximum benefit. For a more authoritative summary, see the two paragraph December 7, 2017 analysis from the Education Department.
July 9, 2020.
This writer has often said that missing a time line rarely results in a loss of FAPE.
July 8, 2020
Perry Zirkel’s July Legal Update.
“In an officially published decision in Independent School District v. E.M.D.H. (2020), the Eighth Circuit Court of Appeals addressed various eligibility-related issues for a gifted secondary school student with an array of diagnoses including school phobia, generalized anxiety disorder, severe depression, and panic disorder. In grade 8, her absences became increasingly more frequent until her parents placed her in a psychiatric treatment facility. Aware of her mental health issues, her teachers marked her final grades as Inc. rather than F. The attendance pattern recurred in grades 9 and 10, with increasing absenteeism leading to disenrollment for psychiatric treatment. The parents did not request an evaluation for special education until her readmission to a psychiatric facility in April of grade 10, because school personnel informed her that her placement would change from honors classes. The district did not complete the evaluation until November of grade 11, concluding that she was not IDEA-eligible. The parents responded by arranging for an IEE, which confirmed her diagnoses and recommended that she receive special education that would allow her to complete honors coursework. The district rejected the recommendations, and the parents filed for a due process hearing. The hearing officer ruled in their favor and ordered reimbursement for the IEE and tutoring expenses, quarterly IEP meetings, and future compensatory services. The district court affirmed with the exception of the future services. Both parties appealed to the Eighth Circuit.”
July 8, 2020.
The primary two-part question arising under the IDEA and Section 504 as a result of the COVID-19 pandemic are (a) has the district denied FAPE to the eligible child and, if so, (b) what is the resulting relief, typically but not exclusively in the form of compensatory education? Beyond the collective policy issues for state and local education agencies of whether and how to provide what is variously called recovery or impact services, the case law will inevitably decide this two flowchart-like question, along with various other issues (e.g., child find, eligibility, and ESY), via two separate forums: (1) the adjudicative avenue, starting with due process hearings and ultimately culminating in judicial rulings, and (2) the investigative avenues, which are the state education agency’s complaint process under the IDEA and the corresponding OCR process under Section 504 and the ADA.
June
June 15, 2020
Butte School District No. 1 v. C.S. Ninth Circuit May 27, 2020
Decided for: The school system
Key Words: IEP, transition, classification
Not for Publication
The adult student contended that the school had not evaluated him for SLD when it suspected he had SLD, but the record showed that the school had referred him but the parent resisted. If the parent does not consent,the school is held harmless. Additionally, however, the court concluded that the young man had received services in the area of suspected disability, so even if there was a mistake, that would have rendered it irrelevant.
The plaintiff also alleged his IEP was deficient. However, even under Endrew, an IEP need only be reasonable, not perfect. The court found that the IEP which included a BIP was reasonable.
The young man contended procedural errors in his transition plan denied him FAPE, and there were substantive procedural errors. However, he had received a lot of transition services so both the district and circuit court did not find the procedural errors denied him FAPE.
The last complaint was that the district appointed a surrogate parent when it should have appointed his foster parent. The district court found no error but the circuit court reversed, finding clear error. However, because the foster parent participated in all the IEP team meetings, it concluded that the error was harmless. One could argue that point, but it would be pointless.
There were a number of other objections filed alleging procedural errors by the district court judge, none upheld, and none needing summary here. Sometimes throwing the kitchen sink and its contents at an adversary to see what sticks helps. Sometimes it doesn’t.
June 14, 2020
E.C. v. Andover USD 385, District Court (Kansas) May 2020
Decided for: The school system
Key Words: FAPE, labels, BIPs
One of the decisions of the court in this case was that the plaintiff’s claims based on the district’s failure to identify the child as autistic was denied. On the face of it, this seems like an obvious conclusion, because both the IDEA 2006 Final Part B Regulations and OSEP both make it clear that children with disabilities have no entitlement to labelss, only to FAPE based on that disability. However, especiallywith respect to autism, districts that have either failed to identify or failed to tell parents of their suspicion that their child might be autistic have not fared well. The reason without going into too much detail is that a diagnosis of autism oft times opens door to services that are not available to children who are not so diagnosed, so the basis for parents’ claims were and probably will continue to be that the district’s failure to diagnose resulted in a denial of services that would have been required for that child to receive FAPE. That was not, however, the only problem the parents had in making their case. The district had requested consent for them to do their own evaluation. The parents refused. Generally (that is, 99.9 percent of the time) districts have a right to their own evaluation. (The only exception I remember from years and years ago was when the parents of a physically handicapped child convinced a judge that another evaluation would put their child at material health risk for his safety.) The judge here wrote,
The record clearly shows that Defendants requested multiple reevaluations of E.C. to update and adjust his IEP. W.C. refused to consent to any of those reevaluations. As such, E.C. is estopped from now arguing Defendants failed to properly evaluate his exceptionality. In any case, the particular label attached to E.C.’s exceptionality is irrelevant, so long as the IEP is tailored to adequately address his educational needs.
The only other claim that the parents made was that their child’s BIP was implemented imperfectly. The problem that the parents had here was in this reviewer’s opinion similar to other arguments presented by their attorney. The attorney presented (alleged) factual deviations but did not explain those those deviations materially resulted in a loss of FAPE for the child. The court made a similar finding with respect to alleged procedural deficiencies — that the parents failed to show how those deficiencies resulted in a loss of FAPE for their child.
So in reviewing this case as precedential, this reviewer would caution readers that an attorney who was more proficient in tying up some of the loose ends might, and I emphasize “might,” have achieved a different outcome. The same with respect to the parents’ refusal to allow the district to conduct its own evaluation, if, instead, they had allowed it. The results of the district evaluation might just as easily have strengthened rather than weakened their case. Not to mention that had the parents presented witnesses who could show their child would or could have received additional services not available to children without autism (and not provided by the school) they might have prevailed. But obviously none of that happened here.
Guy M. McBride, Ph.D.
Licensed Psychologist (and NOT an attorney)
June 5, 2020. Independent School District No. 283 v. E.M.D.H. Eighth Circuit, June 3, 2020;
Independent School District 283 v. EDMH , March 19, 2020, Eighth Circuit
Key Words: Comprehensive evaluation, compensatory reimbursement
Decided for: The parents. Decidedly
This seventeen page decision may be of special interests to school psychologists because of the underlying complaint of the parents — that their child was denied entitlement and services because of underlying flaws in the evaluation conducted by the school system. The school system’s persistence in trying this case seems questionable, but I don’t like to judge the decisions of school administrators, no matter how poor they might seems.
The school lost in the administrative hearing. Presumably at a state hearing. Then at the district court level. Annoyed, they then appealed to the circuit court. Where the district court’s decision was upheld, and reinstated the ALJ’s decision to award the parents reimbursement for compensatory educational services. Some days some things just don’t go right.
The parents had her evaluated independently and the private practitioner diagnosed the kid with major depressive disorder, autism spectrum disorder, ADHD, generalized anxiety disorder with panic and obsessive-compulsive-disorder features, and symptoms of borderline-personality disorder.
The district finally got permission from the parents to do its own evaluation, which of course was its right. Once again the kid stopped attending school (school phobia?) but the district was able to complete its evaluation. The report concluded that the kid did not qualify for services. (Not even under 504?) Unless you’re in California, there is no reason for any school psychologist to say yea or nay regarding eligibility. That’s the prerogative of eligibility groups, and only eligibility groups, even in California. Anyway, the parents got an IEE which confirmed the original evaluation’s findings. The district told the parents to shove it. Well, not that exactly, but the parents were ticked anyway and filed for a hearing.
Now here’s the part that interests this reviewer. Minnesota state law, following federal law, requires a comprehensive evaluation of every student suspected of a disability, and adds, additionally, a requirement for an FBA and an observation of the student in his/her learning environment if suspected of an EBD. The school cried boo hoo, the kid wasn’t here, so how could we do those things? Well, the circuit court concluded (1) development of an FBA doesn’t necessarily mean that the kid has to be in attendance and (2) the school could have observed the child either at home in her virtual learning environment or at one of the treatment facilities where she was receiving instruction. The school, however, did neither. And that was the nail for which a horsehoe was lost. Or at the court wrote, “The District’s failure to avail itself of these possibilities or develop another way of gathering the necessary data is virtually conclusive evidence that the District’s evaluation of the Student was insufficiently informed and legally deficient.”
The district also relied upon the girl’s intelligence. Boy is she bright they said, and we would have had nothing for her even if we did find her eligible. To which the court replied in part, “The record demonstrates that the Student’s intellect alone was insufficient for her to progress academically and that she was in need of special education and related services.”
In short, the two basic lessons this reviewer suggests should be taken from his decision are (1) Just because a student is chronically absent from school does not relieve a dschool of its responsibility to conduct a comprehensive evaluation and (2) just because a student with a disability is smart does not relieve a school system of its legal responsibility to provide that student with FAPE.
In fairness, it should be noted that the district had provided the child with a 504 Plan for her sophomore year that included extra time on assignments, adjustments to workload to prevent falling behind, regular check-ins with teachers, breaks from the classroom and a pass to the counseling office, and the use of a fidget. I especially like the fidget as an accommodation. I’d never thought of that, but it was genius. Her English, teacher, however, refused to provide the accommodations in her plan, so the girl was provided with a virtual learning opportunity. Personally, I don’t know why the teacher wasn’t fired outright. But there may have been a good reason . . .
A thought provoking decision, only17 pages, and worth a read if you have time. The district court’s decision which contains mention of the 504 Plan can be accessed by clicking on the Memorandum.
Additional Reference:
June 2, 2020 Perry Zirkel Legal Update for June.
This month’s update concerns two issues that were subject to recent court decisions of general significance: (a) FAPE in a
dyslexia methodology case, and (b) parents who proceed in due process hearings without an attorney.
For a case summary click on Zirkel Legal Update June 2020,pdf
May
May 23, 2020
Ventura de Paulino v. New York City Dep’t of Education Second Circuit 2020
Key Words: Stay Put, exhaustion of administrative remedies
Decided for: The school system
While the circumstances of this case were a bit unusual (and unlikely to be replicated in most adversarial proceedings) there were still a few points of potential general interest in this 36 page decision.
Here are the basic facts/conclusions. The district and the parents had agreed to a private school placement. The parents unilaterally changed the placement, asked the New York City Board of Education to pay for it, and the board refused. The parents asked for a hearing, invoked stay put because the new placement was essentially the same as the old one, and went to court because the school wouldn’t pay for the new private school. When parents unilaterally place a student in a private placement expecting a school to pay for it, the court (as other courts have ruled) it is at their own risk. Just because one school is similar to a previously agreed upon school placement does not make it the stay put placement the court decided.
The point of law of potentially general interest is that “An action that alleges a violation of the stay-put provision falls within one or more of the exceptions to the exhaustionof-administrative-remedies requirement of the Individuals with Disabilities Education Act (“IDEA”)”
With the stay put claims put to rest, in order for the parents to obtain financial relief they would have to exhaust administrative remedies first. The test applied by the Second Circuit, the Burlington Carter test, is three fold:
(1) Was the district’s proposed placement appropriate?; (2) If not, was the parents’ unilateral placement appropriate (but with relaxed procedural standards for the parents); and (3) If so, do the “equities,” such as the reasonableness of the cost in comparison to available private alternatives, warrant a reduction or elimination of the amount sought?
What is referenced by the third factor (and, again, not applied here) would be the degree to which the parents had or had not complied with the burdens placed upon parents under the 2006 FR for Part B requiring the parents to give schools prior notification prior to making a unilateral placement as well as the degree to which they had cooperated with the school system in attending IEP team meetings and so forth and so on. For a more thorough discussion of Burlington with a complete section on Equitable Factors see J.E. v. NYC Board of Education, District Court, 2017 Or Perry Zirkel’s Primer on Special Education Law (2005)
People sometimes complained that I was a bit garrulous in my reports, which, contrary to their expectation, always made me feel rather proud. But I concede defeat in that department. Thirty eight pages just to say “No.” I’m in awe.
For a more professional review, see Justia’s Opinion Summary
May 5, 2020.
Richardson v. Omaha School District, 8th Circuit Court, April 27, 2020
Key Words: Section 504, Title II of the ADA, the IDEA, FAPE, attorney fees
Prevailing Party: This time on the specific issues raised in this complaint the school system
First of all, the parents did prevail on two of their complaints before an administrative hearing office, but their attorney waited too long to file for fee reimbursement. The district court ruled that based on state law the parents shouldn’t have waited so long and based on Arkansas state law were just, well, out of luck. That’s because the IDEA has no statute of limitation with respect to attorney fees, so courts may “borrow” from state laws addressing the topic. And that’s what the district court did. The rest of the twelve page document was and is a rather confusing examination of what other district court had decided of more interest to other lawyers than special educators or school psychologists. In brief, there appears to have been a split in the circuits on this issue. A link to Justia’s summary follows: The parents also sought relief based on the school system’s failure to adequately address bullying of their child. Summarizing, in order to prevail in seeking damages, a parent would have to show that the school administrators were really mean spirited or at least shockingly incompetent. The fact that the school’s interventions might have been ineffective (emphasis on “might”) didn’t rise to that level. Bless their hearts, they tried.
Justia’s Summary of Richardson v. Omaha School District
May 5, 2020 Perry Zirkel’s May Update
Perry Zirkel’s Legal Alert May 2020
“This month’s update concerns two issues that were subject to recent court decisions of general significance: (a) the school
district of residence’s IDEA obligations to students in private schools, and (b) liability for defamation arising from the special
education context. For further examination of such issues, see Publications section at www.perryzirkel.com”
April
Note: During the months of February and March, the editor did not keep up with the current litigation due to family and personal health problems. Some of the information below, therefore, is a little dated as the editor plays catch up.
April 8, 2020
Special Education Legal Alert by Perry Zirkel
“This month’s update concerns two issues that were subject to recent, published federal appeals court decisions of general significance:
(a) tuition reimbursement under the IDEA, and (b) over-identification of “504-only” students for unwarranted accommodations.”
April 7, 2020
Disabatino v. Grand Blanc Public Schools, Court of Appeals, Michigan, February 11, 2020
Key Words: liability, injury
Decided for: The teacher
A 13 year old with autism went to a classroom for extra help in math. In order to keep the kid in the classroom, the teacher barred the door and sat on the desk so he could teach the boy some math. The boy, seeing his exit barred, became agitated and struck the teacher in the face — an action for which he was arrested. This case was decided based on Michigan state law, so is of limited applicability. But basically in order to win such a case, the plaintiff would have had to show malice. The parents couldn’t show that the teacher’s motive was anything other than a desire to teach the boy math. The teacher was absolved by the court.
S.O. v. Hinds County Public Schools, February 7, 2020, Fifth Circuit
Key Words: qualified immunity
Decided for: the school system
Not a sped case, but just interesting enough to warrant a brief comment. A child was seen selling contraband candy. The principal searched his pockets. Initially, the claim was that the principal touched the boy’s genitalia so the district court judge would not waive qualified immunity. However, when it was clear that there was no evidence showing that the principal touched the child’s genitalia, the judge gave the principal qualified immunity. The parent appealed to the circuit court. She said she’d never accused the principal of touching her child’s genitalia. Result? The circuit chastised the district judge, saying he should have given the principal qualified immunity earlier.
April 7, 2020. On February 7, 2020, Peter and Pam Wright reported a settlement of $450,00 in the case of a Wake County, NC student with autism. Typically, decisions at the hearing level are not reported on this web page, but in this case the amount of money involved warranted an exception. Apparently what happened is that a teacher of children with autism on her own initiative turned a storeroom into an isolation room and used adversives to try and control the behavior of a child in her classroom. Several colleagues apparently thought the teacher’s behavioral strategies were abusive and shared them with her principal — who disciplined them but not the teacher. Ultimately after all of this became public the teacher lost her job.
D.L. v St. Louis School District, 8th Circuit, March 2, 2020
Key Words: Tuition reimbursement
Prevailing: Parent
Cutting to the chase, the circuit court found that the district court had erred in limiting tuition reimbursement in a private school due to improvements in services offered by the school because the school never told the parents about them. The circuit awarded the parents full tuition reimbursement.
A.A. v. Northside Independent Schools, Fifth Circuit, March 6, 2020
Key Words: Procedural violations
Decided for: the school
Interesting case. The parents were seeking relief based on substantive procedural violations, and the court concluded there weren’t any procedural violations and that the school had done its best to provide the student with FAPE despite many absences.
S.O. v Hinds School District, Fifth Circuit, February 7, 2020
Key Words: Unreasonable search
Decided for: the school system
Not a sped case. I suppose it COULD have been a sped case, but I’m including it here because it’s the kind of court case that just makes one shake his or head. In this case, the principal searched a child’s pockets after he was seen selling candy. Allegedly the parent claimed he fondled the boy’s genitalia, so the district court denied him qualified immunity. The judge found there was no evidence that the principal fondled the boy’s genitalia and then granted him immunity. The parent appealed to the circuit court, saying she never claimed the principal fondled the boy’s genitalia. The 8th Circuit then ruled that in that case the district court erred by not granting the principal immunity earlier.
February
February 3, 2020
E.M. v. Poway Unified School District, January 14, 2020 CA SDC
Decided for: The parents
Key words: private placement, parent rights, LRE
Cutting to the chase, the court in this decision ruled that the school’s failure to inform the parents regarding the private school they were considering and the resources being offered was a substantive procedural violation resulting in a loss of FAPE.
Nevertheless the court found that the IEP being offered did provide a reasonable expectation of providing FAPE.
But the court also found that without knowing the services being offered, the court couldn’t determine whether the placement in a private school would be more appropriate than the current one.
Nor did the court rule on the parents’ request to declare them the prevailing party, at least not until they filed a separate motion seeking attorney fees.
There is, this reviewer believes, an important principle being upheld by the court in this instance. Parents have the right to know what services are being offered by a more restrictive placement before they are asked to agree to it. In this reviewer’s school system, parents were offered the opportunity to visit the site or sites under consideration when a child was being considered for a more restrictive placement on the continuum. Then, in the last year of this psychologist’s employment, a new program administrator abolished the practice alleging that we were giving the parents the right to determine their child’s placement. Then as now, this reviewer disagreed with that analysis. Giving parents the opportunity to meaningfully participate in disucssions about their child’s placement by allowing them to review what additional services in a district’s recommended placement would be available is NOT the same as giving parents the unilateral right to choose the setting they like the best. That authority belongs to the team, placement decisions are not decided by a popular vote, and ultimately it is the district’s representative who has the final authority.
One other point raised in this particular case was the parents’ refusal to sign a release of information that would have allowed the school to discuss the specific needs of the student with an alternative placement. The district claimed that this impeded their ability to seek a specific placement for the child. The district court judge ruled that that in and of itself did not prevent the district from discussing the child’s needs as a hypothetical (without idneitfying him personally). The judge also noted that regardless of whether or not the parents signed a release or even if they didn’t want to visit the visiti, the IEP team was still obligated to make a specific offer of an educational placement.
AND
Schuler v. Monmouth County Vocational School, NJ District Court, January 9, 2020 (2 pages)
Decided for the School (on some issues) and the Parent (on other issues)
Key Words: Right to sue
Basically another non substantive procedural issue before the court. Link not provided intentionally — not worth reading.
PACER summary: ORDER that the District’s10 Motion to Dismiss is Denied as to Counts One, Two, and Eight. It is further Ordered that the District’s10 Motion to dismiss is Granted as to counts, Three, Four, Five, Six, Seven, Ten, Eleven, and Twelve. The Complaint is Dismissed Without Prejudice as to Counts Three, Four, Five, Six, Seven, Ten, Eleven, and Twelve. Schuler has 21 days from the date of this order to file an amended complaint curing the deficiencies addressed in the accompanying opinion. Signed by Judge Brian R. Martinotti on 01/09/2020. (jmh)
LRP Summary:
A 12th-grader who was excluded from a high school cosmetology program after she suffered severe injuries in a car accident and began using a wheelchair could sue her New Jersey district for disability discrimination. The U.S. District Court, District of New Jersey denied the district’s motion to dismiss the student’s Section 504 and ADA claims. However, the court dismissed the student’s constitutional claims against the district, as well as her Title IX claim for gender discrimination.
NJ district must defend 12th-grader’s exclusion from cosmetology program
A 12th-grader who was excluded from a high school cosmetology program after she suffered severe injuries in a car accident and began using a wheelchair could sue her New Jersey district for disability discrimination. The U.S. District Court, District of New Jersey denied the district’s motion to dismiss the student’s Section 504 and ADA claims. However, the court dismissed the student’s constitutional claims against the district, as well as her Title IX claim for gender
February 2, 2020
L.F. v. Lake Washington School District, Ninth Circuit, January 2020
Decided for the school system
Key Words: First amendment rights
This case raised a number of issues that could affect any child, not just a child with a disability. In this case, a divorced father was harassing school employees with incessant emails alleging that they were mis-treating his daughters. He alleged that his daughters had emotional problems and sought a 504 Plan for one of them. His ex-wife, who had custody, opined that no 504 Plan was needed and the school went with Mom instead of Dad. Dad said he was going to appeal the decision but did not. Instead, he sent a barrage of repetitive emails to staff members with his complaints. So the school sent him an email outlining what it called its Communication Plan.
On November 23, 2015, citing “the unproductive communication pattern that has developed” and “the tone and manner of some of [L.F.’s] communication and interaction with District staff and administrators, [which] has regrettably made several of these individuals feel intimidated and bullied,” the District imposed the Communication Plan. The terms of the plan were spelled out in an email to L.F. from Sue Anne Sullivan, a District administrator. Under the plan, L.F.’s substantive communications with the District about his daughters’ education would be limited to bi-weekly, in-person meetings with Sullivan and another administrator. L.F. was advised not to “email or attempt to communicate (in any form) with any District employees” aside from the bi-weekly meetings, “as they will not respond to [his] emails or attempts to communicate.” The Communication Plan’s restrictions did not apply in the event of an emergency, did not affect L.F.’s right to appeal the decision regarding the Section 504 plan, and did not bar him from attending school activities or accessing school records. L.F. was told that he had a right to challenge the Communication Plan by filing an appeal in state court
A separate email sent to the children’s teachers advised them of the plan telling teachers not to respond to his emails..
The father adhered to the plan for awhile, but then began violating it. The district responded by cutting back on their agreement to bi-monthly meetings to once a month. The father asked that the restrictions be rescinded, the district refused, and he fired suit in district court alleging that his first amendment rights had been violated, that the district had retaliated against him because of his 504 claim, and that it had discriminated against him because he was divorced. The district court ruled in favor of the district and tossed his claims “with prejudice.” The circuit court panel affirmed the district judge’s ruling. The courts both found that while the means of communication was restricted, the content was not, and that there still was ample opportunity in the plan for the father to make his views known to district administrators. The only speech that was being restricted, the court found, was the speech of the district teachers — not the parent. The only consequence for the parent if he violated the plan was that his complaints would be met with silence.
The court, in response, and paraphrasing, concluded that that was not a big deal.
For another “take” on that decision, see Justia’s Summary of L.F. v. Lake Washington
February 2, 2020
This month’s update concerns issues that were subject to recent, unpublished federal court decisions of general significance: (a)
liability for money damages under the IDEA, and (b) the reverse effect of general education interventions on IDEA child find and
eligibility. For further examination of both of these issues, see Publications section at perryzirkel.com.