December

December 23, 2022.   Perry Zirkel Updates’

Perry Zirkel October 2022.

Discussed Minnetonka Public Schools v.  M.L.K (July, 2022) in which the Eighth Circuit ruled that the school provided FAPE applying the Endrew standard and that failure to also diagnose a child with autism with dyslexia and ADHD was not a failure to provide FAPE.  Also discussed was Falmouth School Department v. Doe (Auust 2022) in which the parents basically threw everything but the kitchen sink at the school system hoping something would stick.  At least one thing did stick, but a lot of their claims, including a claim alleging retaliation, were rejected.

September 2022

September 23, 2022.Bannister v. Knox County, 6th Circuit, 2022
Decided for: the school system

A sad case lost in part (or whole) by inadequate lawyering. A student was perceived as gay by school administrators.  Punished without due process.  The punishments appeared on the face of them to have been discriminatory.  (E.g., he was suspended for 100 days for having bought some pills he thought were illicit but were not, while the boy who sold them to him received no punishment.) The boy (speaking as a psychologist) cried out for help by writing down his suicidal thoughts in several assignments.  .  No one told the parents.  Ultimately he shot himself and died.

The original attorney sued under state law but apparently dragged his feet (for years) so the parents hired  a second lawyer who thought they had a better chance under federal law.  His arguments appear to have been sound, but this writer has no actual opinion as the first attorney never got around to presenting them to a state court. However, we’ll never know whether the federal claims had any merit.  because things had dragged on for so long that the federal claims were time barred.  If you want to be depressed, read the entire opinion (only 20 pages) at the link above.

September 1, 2022 Perry Zirkel’s September Update (Click on link) zirkel-legal-alert-september-2022

Perry’s summaries typically do not include links to the decisions themselves, which are added for reader’s convenience by this editor.

Perry discusses two cases; for the complete analysis see the preceding link.  

On July 29, 2022, the Eighth Circuit Court of Appeals issued an officially unpublished decision in Minnetonka Public Schools v.  M.L.K.  The lawsuit addressed the comprehensiveness of the evaluation provided, and the hearing officer found for the parents because their evaluation had not specifically addressed dyslexia and ADHD. The Eighth Circuit reversed the district court’s decision in favor of the parents.   The case is under appeal

Minnetonka v. MLK, Eighth Circuit, July 2022

This case was also summarized by Justia 

“A child, through his parents, brought a due process challenge under the Individuals with Disabilities Education Act (IDEA), claiming that the School District failed to provide him a free appropriate public education (FAPE). An administrative law judge agreed and  ordered compensatory education. The district court affirmed but reduced the compensatory education award based on the statute of limitations. The parties cross-appealed. On appeal, the Eighth Circuit found that the school provided the child with a FAPE and reversed the district court’s order.”

On August 9, 2022, the First Circuit Court of Appeals issued an officially published decision in Falmouth School Department v. Doe,   addressing various issues relating to the parents’ unilateral placement of a child with dyslexia and ADHD.  The parents had applied for tuition reimbursement for a unilateral placement plus, additionally, an award based on retaliation.  The First Circuit ruled in favor of  the school system.

Falmouth School Dept. v. Doe, August 9, First Circuit, 2022

Drummond and Woodsum are well known attorneys in Maine.  Their summary can be found on their website. 

From the first paragraph: “n an important ruling for Maine and New Hampshire, the First Circuit Court of Appeals last week flipped an earlier federal district court decision and instead concluded that Falmouth did not violate the IEP (Indiviudalized Education Plan) when the school set aside a reading program that the parent had said she did not want. The First Circuit ruling in Ms. M. v. Falmouth School Department[1] puts an end to a longstanding case that had left many school officials shuddering when the lower court concluded that statements found in Falmouth’s Written Prior Notice to parents should be incorporated into the child’s actual IEP.”

 

August

August 5, 2022.  There have been several recent cases regarding child abuse and teacher liability.   In order to rise to the level of an ADA/504 violation, the actor’s actions would have had to rise to such a level as to offend the public conscience.

Myers v. Boardman Local School District, 7/11/2022 District Court Ohio
Decided for the parents in part and the school system in part

The court in this decision addressed the overlap of Section 504 and the ADA, and this was not a decision on the substantive issues, just regarding the issues raised by the plaintiffs on which they would be allowed to litigate.  That part is complex.  For school personnel, however, there are some general takeaways that are quite simple to remember.  First of all, it is generally not a good idea to repeatedly threaten an autistic child with beating him with a hammer or tying him to the back of your car and dragging him down the street and then telling him  it was a joke and not to tell his parents.  From this reviewer’s perspective, expecting a child to comply with your confidentiality request shows  particularly poor judgment especially when it can be reasonably assumed that that autistic child hates you.  The other takeaway is that one should never, ever, under any circumstance staple a note home to any child’s head.  Also to expect anyone to buy your argument that you were just stapling it to his hair.   That just makes you look stupid, especially when the puncture wounds are still visible.  This child suffered greatly, and I am ashamed for  laughing but this was so egregious it isn’t just almost funny.  It is funny.

Jane Doe v. Becky Guffin August 1, 2022, Eighth Circuit
Decided for plaintiff in part and teacher in part

This decision was again procedural, letting the litigants know for which allegations the teacher was entitled to qualified immunity and for which actions she was NOT entitled to qualified immunity.  The decision of this court is not necessarily the same as might be made by another circuit court but is still illuminating.  

“The court explained that it found four violations of clearly established Fourth Amendment rights: (1) secluding A.A. in the little room before February 4, 2016; (2) secluding B.B. in the calm-down corner using dividers; (3) grabbing B.B.’s arms to push him into the swimming pool; and (4) pinning C.C. down to strip his clothes off. The teacher is not entitled to qualified immunity for those violations.”

For Justia’s  more detailed summary, click here.

 

J.P. by Ogden v. Belton Sch. Districk, 7/26/22 Eight Circuit
Decided for the school system

This was an LRE case where the school wanted to place a severely disabled child in a separate public day school for children with disabilities.  The parents argued that the LRE was in the child’s home school.  Winning vs. losing depends on what you are looking at.  The school system definitely won which meant it did not have to pay the parents’ legal fees, but this case started back in 2018 which may based on stay put meant he got to stay at his home school all these years.   The parents had argued that the child had shown significant improvement in mobility skills but the school argued that was just because he was getting older, not because of anything they did.  The parent’s attorney argued that was a “novel” argument, but court agreed with the school system — that if the improvement wasn’t the result of anything that they did, it could not be used to show that the elementary school was providing him with FAPE.   So . . . did the kid win?  Or did the kid lose?  That this decision does not tell us.  

 

August 4, 2022  zirkel-legal-alert-august-2022

“This month’s update identifies two recent court decisions addressing various FAPE issues, including the foundational role of evaluations and, in the second case, the overlay of Section 504. For related publications and earlier monthly updates.”   

For further information, see the casetext for  Heather H. v. Northwest Independent Schools and  Doe v. Portland  

Both cases are potentially of relevance to school psychologists.  The first case was decided in favor of the school system, because the school psychologist had used instruments meeting the federal standard that evaluations be reliable and validated for the purpose for which they were being used, even though better instruments were available.  In this reviewer’s opinion, however, it was a Pyrrhic victory when one compares what the costs would have been for an IEE vs. what the legal costs actually were for the district to prove its evaluation was sufficiently comprehensive.  A gamble to begin with.  

The second case invoked 504 law alleging discrimination where the district did not fare quite so well because the school psychologist testified that he had a bias against finding children disabled.   This reviewer is uncertain as to what confusion regarding role or legal mandate resulted in the SP making such a statement, but whatever the lapse in training might have been, the result was not helpful to the school system.  

July

July 14, 2022.   L.C. v. Arlington County School Board.  June 22, 2022.  District Court
Decided for the school system

This was a unilateral private school placement case, with the parents alleging that the proposed IEP from the school did not provide FAPE and that the H.O. did not apply the proper (Endrew) standard.

I’m sure I’m missing something, but the school’s proposed IEP included everything that was being provided at the private school, all of the parents’ independent evaluator’s recommendations had been adopted, the Hearing Officer had specifically and explicitly addressed Endrew in his decision, and the private school’s program did not specify the specific program to being used to address the child’s dyslexia.

The important takeaway from this case is that it is important when a parent unilaterally places a child in a private school to continue offering an appropriate IEP for that student.  Wheit never parents unilaterally place a child in a private school, they take a risk that they won’t get their money back. In this instance, it would seem that they started out with the odds against them.  I can only hope their attorney gave them a bargain rate for his services.

July 11, 2022.  Zirkel Legal Alert April 2022

(Note:  Our website has been maintained on a daily basis but no new updates had been added since the death of the editor’s wife.  As I attempt to remedy that lapse, some older materials and cases will be posted here  in the order reviewed but not in the order decided.)

In this Alert, Perry reviewed two cases.  His summaries are pasted below, but for his entire analysis click on the link above.  This editor has added links to the decisions themselves (not available from Perry’s Alert.)

“In A.B. v. Brownsburg Community School Corporation, an unofficially published decision on February 2, 2022, a federal district court in Indiana addressed the attorneys’ fees request of the parents of a child with diagnoses of ADHD, generalized anxiety disorder, and depression. In 2017–18 and 2018–19, after a Section 504 evaluation, the school provided the child with a 504 plan. Early in 2019–20, the school suspended him, subject to further proceedings, after finding an unspent shotgun shell in his locker along with a crude device that appeared capable of discharging the shotgun shell. The school promptly scheduled a manifestation determination conference. The next day, the parents filed for due process, contending that the school should have previously evaluated him for IDEA eligibility. At the scheduled conference a few days later, the team determined that the incident was not a manifestation of his disability, whereupon the school district expelled him for the rest of the year. As a result of immediate settlement discussions, the district conducted an IDEA evaluation, determined that he was not eligible under the IDEA, provided additional 504 plan  ccommodations, and agreed to reduce the expulsion to the fall semester. After further settlement discussions during the spring semester, the district agreed to provide him with an independent educational evaluation (IEE). Upon the hearing officer’s scheduling of the impartial hearing for July 2020, after delays attributable in part to the pandemic, the district drafted a settlement agreement that provided for the rest of the parents’ requested relief, including IDEA eligibility, and $10,000 of their attorneys’ fees. In response to the proposed agreement and further motions from both sides that included further demands from the parents, the hearing officer issued a dismissal order that (a) the student was eligible as ED and OHI, (b) the IEP team shall meet within two weeks to develop an IEP, (c) the district will pay for one of the parents’ experts to attend the meeting, and (d) the student shall receive IEP services by the start of the school
year. However, after further back-and-forth acrimony, the parents’ filed a motion in federal court for district payment of their attorneys’ fees, amounting to $64K.  (The school district prevailed in this court, but the decision might be appealed again.)

On March 30, 2022 in C.M. v. Rutherford County Schools, a federal district court in Tennessee addressed the FAPE issues for a student with dyslexia. In grades 4–6, the student had an IEP based on specific learning disabilities (SLD) that included the Wilson reading program. However, upon entering middle school in grade 7, the IEP team decided to provide him with a different reading program, “Using Language!,” as well as reduced goals and accommodations. At the midpoint of the second semester of grade 7, the district  onducted the triennial evaluation, determining that he was no longer eligible under the IDEA. Instead, the district provided him with a 504 plan. The parents filed for a due process hearing, requesting an IEP with Wilson services and an IEE. The district agreed to pay for the IEE, which concluded that his low average scores in reading qualified for IDEA eligibility as SLD. After a four-day hearing, the hearing officer upheld the IEP for grade 7 and the triennial evaluation toward the end of that year. The parents filed an appeal in the district court, which focused on FAPE for the IEP

Editor’s Note:  The case also raised the issue of predetermination, a potential no-no. The facts of his case were unique and the precedential value in this writer’s opinion limited.

July 10, 2022
Doe v. Portland Public Schools. March 29, 2022. First Circuit
Decided for: the Parents
Published

This was a stay put case wherein the parents had unilaterally placed their child in a private school.  They then appealed his placement seeking tuition reimbursement and of course attorney fees.  They ended up getting neither.   Determining the “stay put” placement is not as straight forward as it might appear, especially when the parents place their child in a private school unilaterally .   The decision might have gone the other way, as one judge disagreed with the decision.

July 10, 2022

Perry Zirkels May 2022 Update.   The editor has embedded additional links to the actual decisions in the text below.

Perry reviews G.D. v. Swamscott’s Public Schools, February 7, 2022, First Circuit Court.  This was a published decision,.  For more details, click the preceding link.  Perry’s Summary:

“In G.D. v. Swampscott Public Schools, an officially published decision  n February 7, 2022, the First Circuit Court of Appeals addressed the tuition reimbursement request of the parents of an eleven-year-old with dyslexia. In 2016–17 (grade 1), the school district conducted an initial evaluation, determining that she was eligible for special  ducation under the classification of specific learning disabilities (SLD). Rejecting the parents’ request for a “substantially-separate school” that provided scientifically-based instruction for children with dyslexia, the IEP team proposed for 2017–18 (grade 2) specialized instruction in a language-based classroom for a limited part of each day and inclusion support in the general education classroom for science, social studies, and nonacademic subjects. The parents arranged for a private evaluation during the intervening summer, resulting in diagnoses of double-deficit dyslexia and dysgraphia and a recommendation of a substantially-separate school for students with SLD. In November, in response to the private evaluator’s further testing that reportedly did not show statistically significant improvement and his repeated   commendation for placement in a specialized school, the IEP team revised the IEP so that the bulk of the time was in the separate language-based classroom. In March, based on formal and informal assessments, the district reported positive progress. However, disagreeing with this information, the parents provided timely notice of unilateral placement of the child for grade 3 in a private school specializing in students with SLD and soon thereafter filed for a hearing. Characterizing it as a “close case,” the hearing officer denied reimbursement. Upon appeal, the federal district court in Massachusetts affirmed. The parents proceeded to the First  Circuit.” (And lost. Editor)

The other case reviewed was 

Kayla W. v. Chichester School District, February 18, 2022.   An “unofficially published” decision. Perry’s summary follows.

“In Kayla W. v. Chichester School District, an unofficially published decision on February 18, 2022, a federal district court in Pennsylvania addressed the FAPE issues for an elementary school student who started in the district in grade 5 (2016-17). Having attended a private religious school from kindergarten through grade 4, the student found the transition to public school difficult, as evident in academic and behavioral problems during that school year. In February 2017, her school struggles intensified when her brother contracted leukemia, causing her to live with relatives while her parent stayed with her brother in intensive hospital care. In March 2017, after report cards with failing grades and upon receiving a telephone-call notice of another in a series of out-of-school suspensions, the parent requested an evaluation for special education. Although knowing about her family situation, the school provided the consent form to the student to take home to the parent. The parent did not receive it, and, contrary to the district’s protocol for prompt multiple attempts, the school psychologist followed up only with an email two months later without checking its receipt or any further efforts to obtain a reply. In August, the district met with the parent and obtained consent for the special education evaluation. For grade 6 (2017-18), the district arranged for the student’s placement in a small alternative class at a regional intermediate unit (IU), which conducted the evaluation. The IU evaluation report in mid-October 2018 concluded that the student was not eligible under either the IDEA or Section 504. The district adopted the report without a multi-disciplinary team meeting or any written notice to the parent. Next, in mid-November, the district disenrolled the student based on non-residency. Forced to move out of the rental property due to infestation and lack of heat, the family members were temporarily homeless; they were living with relatives outside the district while the parent sought housing. The district did not provide the parent with the evaluation report until December. Early the next year, the parent found housing in a neighboring district, which promptly conducted an evaluation, determined the child to be eligible under the IDEA, and provided her with an IEP. After the parent’s belated filing, the hearing officer denied the parent’s various claims, concluding that the procedural deficiencies did not result in substantive harm due to ineligibility and disenrollment.”

“

Perry Zirkel’s June Update.
Perry reviewed two cases, Beebe School District v. Does and H.W. v. Comal, which this writer addressed below.   Perry however provides an additional discussion of the four factors considered by the court which in turn gives additional insight into why the parents lost this case while other parents applying the same principles have prevailed.  Beebe is particularly instructive as it is both a dyslexia case and a pandemic based lawsuit alleging denial of FAPE  As in H.W. v. Comal, the school system prevailed.  However, this district court case was unpublished (limiting its precedential value even in Arkansas), and this writer was unable to find a link to the decision itself online.

H.W. v. Comal Independent School District, April 27, 2022.  Fifth Circuit
Decided for: the school system
Basically an LRE case.  The girl had been identified as having a disability (Down Syndrome, ADHD, speech impairment) but was completely mainstreamed with accommodations.  The school reviewed her progress and found it was at best minimal and while still mainstreaming her for part of the days provided her with an IEP that included more direct services.   Additionally there were some behavioral issues that were distracting to the other students.  The parents objected to the proposed IEP, wanting their little girl to be continued 100 percent mainstreamed.  This dispute wound through a hearing, administrative review, district court, and finally the 5th Circuit.   While it was conceded at every level that the student had received some benefit in the mainstreamed setting, it was not in the school’s opinion meaningful benefit.  These kinds of cases can go either way, but ultimately the facts will dictate the outcome.  In this case, the court found “Although H.W. occasionally saw glimpses of progress, the bottom line was one of stagnation, minimal improvement, and, at times, even regression. The proposed blended placement IEP was the next logical step when the District found that H.W. was still not improving. H.W. has not carried her burden to establish that the District’s decision violated the IDEA.”  Ultimately how the courts define meaningful is crucial.  Before the Supreme Court decision in Endrew, in some states minimal progress would have been sufficient to sustain the parents’ claim.  For Justia’s Summary, click here.

July 9, 2022

J.B. v. Summit City  July 1 2022.  Third Circuit
Decided for:  the school system at the administrative, district court, and circuit court levels
Published
A case wherein a child was referred, evaluated, and found ineligible  for services until 14 months when he was diagnosed with autism.  The parents raised a number of issues regarding the school’s obligations to evaluate and identify students with disabilities but ultimately failed because the court found that the parents had not exhausted all of their administrative remedies.  An interesting read, particularly for New Jersey school psychologists, because New Jersey allowed but does not require consideration of a severe discrepancy in determining LD eligibility.  There actually was a severe discrepancy between IQ and achievement, but the eligibility group found him ineligible anyway.  Since it wasn’t required by NJ law, the courts found there was no foul.  Also a discussion of the differences in the definition of a disability under the ADA/504 and the IDEA, but that information can be found elsewhere on this website.

 

Note:  This reporter only records decisions at the district court level and above.  Other online legal resources may provide additional guidance from SEA decisions.

July 7, 2022  Perry Zirkel’s Legal Update for July Zirkel Legal Update July 2022

A review of two cases addressing FAPE and Exhaustion of Remedies.

Additional references (links to the actual decisions)

G.A. v. Williamson Board of Education, District Court
Decision Date:  March 25, 2022
Unpublished
Decided for: The school system

T.B. v. Northwest Independent School System, Fifth Circuit
Decision date:

 

As Perry points out in his review, this case has been in the works for many years.  A Google search turns up multiple links to multiple decisions in a variety of court venues.  An interesting case because while the lower courts ruled against the parents with respect to their IDEA claims, not all of the claims were based on the IDEA.  Some were based on the ADA, and the court in this latest instance ruled that their ADA claims weren’t IDEA claims glossed over–that the relief sought could not have been obtained through  due process hearing.  “This case arises out of an incident on April 4, 2017 that began with then-10-year-old T.B. calling his mother to come pick him up from school. At some point, T.B.’s teacher got on the call and told T.B.’s mother that she was “losing patience” with T.B. Soon thereafter, T.B. climbed on a table in an effort to avoid his teacher who then allegedly “knocked him to the ground, dragged him through two classrooms, and climbed on top of him” before kicking him in the chest when he began to run around the room.” Legal precept to be learned here::  It’s not a good idea to knock a sped kid down, drag him through two classrooms, and then kick him in the chest.”  Not a good idea at all.

Moving on  . . .

Regina Webster v. Chesterfield County School Board, No. 21-1545 (4th Cir. 2022)

Date:  March 8, 2022
Decided for: the school system
Published

In this  case, it was an instructional assistant bringing a lawsuit against the school system alleging that an eight year old sped student had repeatedly harrased her sexually and the school system had done nothing about it.  That wasn’t strictly true.  The court’s final finding for the school system was that the plaintiff couldn’t demonstrate that the child’s behavior was based on sex or that it met Title VII’s requirement that it be severe and pervasive.  It is quite easy to understand the assistant’s point of view, actually.  Nobody likes to be groped, not even by an eight year old.  But for a more authoritative “take,” see Justia’s Summary.