June 10 Perry Zirkel June Update 2023
Perry reported on two cases. His summaries are reprinted below, but for his extended analyses download the complete report from his website.
On April 26, 2023, a federal [district] court in California issued an unofficially published decision in E.E. v. Norris School District,
addressing the IDEA FAPE claims of a second grader with autism. When the child was in kindergarten (2018–2019), the
school district provided an IEP that was for full inclusion except for speech and language services. The IEP continued in
first grade (2019–2020), when the parents refused to agree to a new IEP that proposed to change the child’s placement to a
special education class with a behavior aide for the majority of the school day. For the last 7 weeks of the school year, the
district switched to remote instruction due to the pandemic. After a due process hearing, the hearing officer ruled, in
relevant part, that the proposed IEP was appropriate but the district denied FAPE to the child during the pandemic period.
The parents and school district appealed these two respective rulings to federal court
On March 26, 2023, the Sixth Circuit Court of Appeals issued an officially published decision in Ja. B. v. Wilson County
Board of Education, addressing the IDEA’s child find obligation. In this case, the student struggled to regulate his emotions
since an early age. During elementary school, while the family resided in Illinois, he sufficiently met academic and
behavioral expectations in school with close parent-school collaboration and without a 504 plan or an IEP. The family
moved to Tennessee when he was in eighth grade. During the third week at middle school, he received an in-school
suspension for disruptive behavior. His parents responded by notifying his teachers about his adoption and behavioral
history and by suggesting strategies that worked in his prior school. When his problems persisted, including lack of effort
on tests and refusals to complete homework, his parents met in late September with his teachers and the assistant principal
to discuss interventions and resources. However, the next day he received an in-school suspension for ripping up a folder of
classwork and throwing it on the floor. His behaviors escalated at home that evening to the point of having him admitted for
therapeutic hospitalization. His discharge 9 days later listed diagnoses of conduct disorder and generalized anxiety
disorder. The parents promptly notified the school counselor of the hospitalization and diagnoses, and she explained that
the school’s multi-tiered approach was to use the Section 504 process, which started with a 2-week data-collection period,
before engaging in an IDEA evaluation. Early during that period, he received an in-school suspension for disobeying a
teacher’s instructions and an out-of-school suspension for cursing at the school librarian. Before the end of the period in
late October, a school resource officer arrested him for disorderly conduct. Although the charges were eventually dropped,
the school suspended him pending a disciplinary hearing to determine possible placement in the district’s alternative school.
Concerned about the impact of this possible placement, the parents withdrew him from the district and home-schooled him
for the rest of the school year. During that remaining period, they met with school officials to provide new diagnoses from a
private neuropsychology evaluation and to discuss Section 504 and IDEA eligibility. For grade 9, they enrolled him in a
local private school. In November and January, they had him re-admitted for therapeutic hospitalization due to behavior at
home. Upon his discharge from the January hospitalization, they placed him in a residential treatment center in Texas.
Upon his return during the spring, he finished his 9th grade year at the local private school. Then the parents filed for a due
process hearing, alleging that the district violated its IDEA child find obligation during during the first few months of grade
8 and seeking reimbursement for the alleged resulting denial of FAPE. Upon the resolution-session step of the process, the
district conducted an IDEA evaluation and determined that he was eligible for special education services. After hearing 4
days of testimony and arguments, the hearing officer ruled in favor of the district. Upon the parents’ appeal, the federal
district court affirmed the hearing officer’s decision. The parents then filed an appeal with the Sixth Circuit.
The editor of this website has added links to the original text to the actual decisions.