Guy’s Log 2015

DECEMBER

NOVEMBER

November 17, 2015.  OSEP issues guidance saying most IEPs should be written to reflect goals at grade level.  But gives exceptions.

November 13, .2015.  Carroll v. Lawton, Tenth Circuit,11/13/2015.  18 pages
Key Phrases/words:   Exhaustion of administrative remedies; teacher abuse; damages; autism
Published? Yes.
Decided for:   The school system (on a procedural issue)

AKC is a child with autism.   The parents were alleging that the teacher had abused AKC by giving her a “wedgie” that tore her underpants and disciplined her by placing her in isolation in a dark closet.   They were alleging educational and emotional injuries and sought damages under both the ADA and Section 1983 of the Civil Rights Act as a result.  Since damages are not available under the IDEA, the parents were contending that the exhaustion of administrative remedies was not necessary.

The district court disagreed in part, since they were alleging in part education injuries, for which remediation could be obtained through administrative hearings (due process).  So he dismissed the ADA claims.  However, the judge affirmed the parents’ right to sue under Section 1983.   Then, however, the parents amended their Section 1983 complaint, including educational injuries, which led the judge to dismiss that lawsuit as well.

The Carrolls’ complaint alleges educational injuries that could be redressed to some degree by pursuing the IDEA’s administrative remedies. The Carrolls’ federal claims are therefore subject to the IDEA’s exhaustion requirement, and the district court did not err in dismissing those claims or abuse its discretion in declining 18 supplemental jurisdiction over the remaining state-law claims. Because the Carrolls failed to identify the new allegations that would allegedly correct the defects in their complaint, the district court did not abuse its discretion in denying their motion to amend. We therefore affirm the district court’s dismissal of the Carrolls’ complaint.

The substantive issues of the complaint were therefore never addressed; and it is not known from this decision what steps that parents may take in the future.

OCTOBER

October 21, 2015 O.S. v. Fairfax County School Board, 4th Circuit Court of Appeals, October 19, 2015
Key Phrase:  Definition of FAPE
Decided for:  The school system
Published? Yes

Ever since the passage of the IDEA 2004 and implementing regulations in 2006, various and sundry commentators have been arguing that the changes there raised the bar above what the Supreme Court had determined in Rowley.

Despite the best efforts of parent attorneys in arguing that Rowley is outdated, they have enjoyed scant success in making their case where it counts, in the courts of law.

This precedential Fourth Circuit case is just the latest in a string of cases definitively concluding that Rowley still rules.  (That 1982 Supreme Court case is available for download on our website at: Board of Education v. Rowley, Supreme Court, 1982

In reaching its conclusion, the Fourth wrote:

The legislature’s shift from requiring access to requiring results does not necessarily establish a shift in the meaning of FAPE from providing “some” benefit to providing “meaningful” benefit. When Congress changes the law on an issue already decided by the Supreme Court, it typically does so explicitly.

The court concluded by writing,

We hold that, in evaluating whether a school provides a FAPE, we still look to whether the IEP provides some educational benefit to the student. Here, the district court did not err in finding that the School Board met that requirement. Accordingly, the judgment of the district court is AFFIRMED

The Fourth Circuit  was explicit in saying that in defining “some educational benefit,” it was rejecting the idea that any educational benefit, no matter how trivial, would meet that standard.  It  cited its 1985 decision in Hall ex rel. Hall v. Vance Cty. Bd. of Educ., 774 F.2d 629, 636 (4th Cir. 1985).

SEPTEMBER

September 25, 2015. G.L. v. Ligonier Valley School District, Third Circuit, September 22, 2015
Key Words/Phrases:  Statute of Limitations
Published?  Yes (“Precedential”)
Decided for:  The Parents

The issues in this case seemed relatively simple.  However, the district court judge scratched his head, said I can’t figure this one out, and sent it on to the circuit court to provide an authoritative response.

The questions:

Does § 1415(b)(6)(B) limit compensatory education to injuries occurring two years before the filing of the complaint, even if earlier injuries are claimed within two years of their reasonable discovery, as urged by Appellant Ligonier Valley School District Authority? Does it limit compensatory education to injuries that occurred from two years before their reasonable discovery through the filing of the complaint, up to two years after that discovery, i.e., the “2+2” approach taken by the District Court and urged by G.L.? Does it impose only a pleading requirement, without affecting the availability of a remedy for timely and well-pleaded claims, as argued by Amici Appellees and G.L. in the alternative? Or is it simply a restatement, albeit ill-phrased, of the same two-year statute of limitations set forth in § 1415(f)(3)(C), as asserted by the United States Department of Education (“DOE”)?

The circuit court decision answering those questions ran 52 pages, and included the Congressional  legislative history and Forest Grove decision in the discussion.  (What they liked about that decision was the Supreme Court’s finding that the IDEA gives judges broad discretion in determining appropriate relief for IDEA claims.)

Their answer to the questions above was however summarized in a few relatively brief paragraphs.  The law as interpreted by the Third Circuit:

We now conclude, after careful consideration of the parties’ plain language arguments, the statutory context and structure, the DOE’s interpretive guidance, and the legislative history, that § 1415(b)(6)(B) is simply an inartful attempt to mirror § 1415(f)(3)(C)’s two-year statute of limitations. That is, both sections reflect the same two-year filing deadline for a due process complaint after the reasonable discovery of an 5 injury, and § 1415(b)(6)(B) neither imposes a pleading requirement nor in any respect alters the courts’ broad power under the IDEA to provide a complete remedy for the violation of a child’s right to a free appropriate public education

The judge wrote that  Congress was “inartful” when it wrote the law.

G.L.’s claim was filed within two years of the date his parents knew or reasonably should have known of his injury, and thus his right to compensatory education upon proof of a violation was not curtailed by the IDEA’s statute of limitations. Accordingly, we will affirm the District Court’s decision that his claims for remedy prior to March 2010 were not time-barred and will remand to the District Court for proceedings consistent with this Opinion.

Or in other words (but still their words) assuming parents timely file that complaint and liability is proven, Congress did not abrogate our longstanding precedent 52 that “a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem.”

September 13, 2015  D.M vs. New Jersey Department of Education, Third Circuit, 9/10/2015

Key Words:  Stay Put, educational placement, exhaustion of administrative remedies
Decided for:  The parents (on their right to sue in court)
Published?  Yes. (“Precedential.”)

“Stay put” requires that the child’s educational placement be maintained throughout the course of litigation unless parents and school agree otherwise.  But what is an “educational placement”?  This 24 page decision (and its 12 page dissent) addresses that issue.

First, the court’s own summary of the issues and its decision:

E.M. is a student at the Learning Center for Exceptional Children (“LCEC”). LCEC is a private school for children with intellectual disabilities. E.M.’s individualized education program—her federally-mandated education plan created by her parents, teachers, and local public-school system—says that she should attend LCEC and integrated classes with students from Today’s Learning Center (“TLC”). TLC is a private school for regular-education students that shares classroom space with LCEC. The New Jersey Department of Education (“the Department”) asserts that it has not approved LCEC or TLC to teach integrated classes of regular-education students and students with disabilities. Therefore, the Department directed LCEC to confirm that it would not place its public-school students with disabilities in classrooms with private-school regular-education students. LCEC agreed under protest.  E.M.’s parents—D.M. and L.M.—on behalf of E.M. and LCEC sued the Department and two of its officials, challenging the Department’s regulation of LCEC as arbitrary and capricious, and sought preliminary injunctive relief. The District Court granted E.M. a preliminary injunction under the so-called “stay-put” rule of the Individuals with Disabilities Education Act (“IDEA”). The injunction allowed her to attend classes with TLC’s regular-education students during the pendency of the case. We will remand the case with the injunction intact for additional fact finding.

The law requires parents to exhaust administrative remedies before accessing the courts in disputes with a school system.   In this case, however, the parents’ dispute was with the state, and no administrative remedies were available to exhaust; hence no bar in going directly to court.

Here, we find that the administrative process would be unable to grant relief, and so exhaustion of that process is unnecessary.4 Neither IDEA nor the New Jersey administrative code provides administrative means for a parent to challenge an action of a state agency, only to challenge action of a local public-school system.

In determining the standard to be applied in the Third Circuit with respect to determining what constitutes an “educational placement,” the judge wrote:

The term “educational placement” is not defined by IDEA or its implementing regulations. Nevertheless, this Court has previously interpreted the term to mean “whether [a change] is likely to affect in some significant way the child’s learning experience.” DeLeon, 747 F.2d at 153. This is because a change in the child’s educational placement “should be given an expansive reading, at least where changes affecting only an individual child’s program are at issue.” Id. We also consider the IEP of the child that is “actually functioning when the stay-put is invoked.” Drinker, 78 F.3d at 867 (internal quotation marks omitted).

The case was remanded for ajudication of the issues.

September 13, 2015: Munroe v. Central Bucks, Third Circuit, September 4, 2015
Key Phrase:  Freedom of Speech
Decided for:  The School System
Published?   Yes (“Precedential”)

This was not a special education case per se, but it should be sobering nevertheless to those who erroneously believe that their speech as a public school employee is protected by the United States Constitution.  It is not, and it never has been.  Despite high sounding phrases like “the right to free speech does not end at the school house door,” the fact is, it does for the most part end at the school house door.

The Pickering test, based on a United States Supreme Court decision, does allow for public employees to speak out on matters of significant public interest without fear of reprisal.  However, if school administrators are sufficiently ticked, they have two arguments they can make.  (1) The protected speech in which you engaged had nothing to do with your firing, they would have gotten rid of you anyway because you were grossly incompetent and, in all probability, immoral to boot; or (2) the speech for which you were fired was about your conditions of employment, and speech about your conditions of employment does not rise to the level of Constitutionally protected speech.

To read the case in its entirety, click on Pickering, US Supreme Court, 1968.

In this particular case, the court found that Munroe’s speech did not rise to the level of Constitutionally protected speech as defined in Pickering, so it didn’t really matter whether the district fired her because of it or because of poor work performance.   She was fired no matter how you cut or sliced it.

It is of course possible to win these cases, but the battle can be lengthy (this case took four years to wend its way through the courts) with a positive outcome (obviously, as this case shows) in no way guaranteed.   For an example of a case where a sped teacher did prevail, see the Settlegoode decision (LOVE that name in this context) in Settlegoode v. Portland, 9th Circuit, 2004, where she  got a settlement of over over a million dollars.   Even in that case, however, it wasn’t all smooth sailing.

For the local newspaper’s “take” on the Munroe decision above (and a different perspective than mine)  see:   Philly: Munroe v. Bucks County  as well as:  Reuters: Teacher Can’t Sue After Blog Posts

She had just been granted tenure.   Unfortunately, in her blog (intended only for a few friends, but exposed by one of her students), she was frightfully honest in her assessments of her students and colleagues.  Being “frightfully honest” is apparently not a trait universally valued by school administrators.   The lesson for all of us is that the Internet can be a dangerous place . . . so be careful out there.

AUGUST

August 14, 2015.  James Hill v. Madison County, 11th Circuit, 8/12/2015 James Hill v. Madison County School Board, Eleventh Circuit, 8/12/2015 75 pages
Key Words:  Title IX, sexual harassment, damages, Section 1983 of the Civil Rights Act
Published?  Yes
Finding for:   The parents and student

In summary, this was a case wherein a 14 year old special education student was intentionally encouraged by staff to engage with a known sexual predator in order to catch him in the act.   The staff using this child as bait failed to provide her with adequate protection and she was, in fact, raped.  In the press, it has become known as the rape bait case.  Instead of working to obtain an amicable settlement, the school system pursued this case all the way to the circuit court in an attempt to justify its staffs actions.  Ultimately, it settled for $200,000 although it is likely that its legal expenses would have more than doubled the cost.   As discussed further below, the legal principle upheld by the courts was that schools have a duty to protect its students.   Intentionally putting or allowing children to be put in harms way is not defensible..

This decision has received nationwide attention, and it is of considerably  greater importance than the two sped decisions I have reported upon this date.  Title IX is a civil rights law prohibiting sexual discrimination.   It is enforced in public schools by the Office for Civil Rights, the same federal rights agency responsible for investigating and taking action against schools that violate children’s right under the ADA/Section 504 and other civil rights laws.   The Office for Civil Rights describes Title IX thusly:

The U.S. Department of Education’s Office for Civil Rights (OCR) enforces, among other statutes, Title IX of the Education Amendments of 1972. Title IX protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance. Title IX states that:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.  For further information on Title IX, see:  OCR information on Title IX

This case was about a 14 year old girl who was being harassed by a 15 year old eighth grader.   She told an assistant, who said that they needed to catch him in the act in order to take disciplinary action.   At the assistant’s urging, the girl agreed to be used as “bait.”  The plan was to have the encounter videotaped and for teachers to intervene before anything happened.   The plan collapsed, because instead of being saved at the last minute, the girl was sodomized.   No charges were ever filed, the boy did get sent to an alternative school, but then he was allowed to return to the same school that Jane Doe was attending.   As a result, she dropped out of school.   Making a long story short, this case, which has been finding its way through the courts for the past five years, was decided at the district court level in the school system’s favor.   Upon appeal, however, the 11th Circuit reversed, remanding the case back to district court for trial.   The decision was reported by CNN and a number of other news agencies.  For their “take” on the decision, see:   CNN Rape Bait Story

Although nothing in the court’s decision suggests either student was disabled, two references are made to misconduct occurring in “the special education bathrooms.”

The school in this case had a sexual harassment policy, and they had made sure all students were aware of their rights under that policy.  So what went wrong?    Well, let start from the beginning, and count the ways.

1. Although they claimed that administrators were trained, there was no record of the trainings nor of the contents of that training

2. Nobody could remember the name of the Title IX coordinator (and there should have been one.)

3. The standard for “proving” sexual harsassment was high.  A student had to “caught in the act;” or there could be “physical evidence of sexual harassment,” or “the student admits guilt.”  An accusation by another student was insufficient.   It was that policy that led the teacher’s assistant to tell Jane Doe that they had to catch the 15 year old in the act to take disciplinary action.

4. Reports of harassment were kept in a student’s file, but the conduct files were shredded every summer, so no pattern could be established.

5. Coding of offenses was done by a secretary without guidance from administration (so the seriousness of the offense was not always correctly recorded)

6. Despite the shredding there was considerable evidence from previous reports regarding the student’s sexual harassment of other students.  The school had taken no action on those reports.

7. Even after the allegations, and even after having assigned the boy to in school suspension, there was no provision for anyone to be with him at all times.

If you want the details of the rape itself, see the link above.    They’re disturbing.

8. After the rape allegations were made, the boy was suspended for five days for “inappropriate touching” because no one witnessed the rape.  (Because that was all the boy admitted to doing)

9. There was however extensive  physical documentation of the assault, including photographs, but charges were never filed against the boy.’

10. None of the policies summarized above were changed by the school board after the rape.  Except they discontinued training for their administrators.

11. Despite a directive from the child’s attorney, the school preserved no records relating to the rape other than the boy’s disciplinary record for that year.

Here we begin to get to the nub of the matter.   The legal standard for proving sexual harassment in student-on-student cases is considerably higher than in teacher-on-student cases.  The 11th articulated the standard thusly:

First, the defendant must be a Title IX funding recipient. Id. at 1293. Second, an “appropriate person” must have actual knowledge of the alleged discrimination or harassment. Id. (quotation omitted). Third, the discrimination or harassment—of which the funding recipient had actual knowledge under element two—must be “severe, pervasive, and objectively offensive.” Id. (quotation omitted). Fourth, the plaintiff must prove “the funding recipient act[ed] with deliberate indifference to known acts of harassment in its programs or activities.” Id. (quotation omitted). Fifth, the plaintiff must demonstrate the discrimination or harassment “effectively barred the victim’s access to an educational opportunity or benefit.” Id. at 1298 (quotation and internal alterations omitted).

Although the district court applied the correct standard, its finding that no reasonable jury would convict is what was overturned by the appeals court.  The circuit court applied each of the standards above, and spent the next forty pages showing that each standard was in fact met by the plaintiff.  In the opinion of the court, the fact that the child was set up for the rape by its own employee, that the “set-up” was in response to an overly restrictive board policy, the board’s lack of response to the incident, its failure to offer effective assistance to the student, and its failure to take action against the rapist all could in the eyes of a jury rise to the level of “deliberate indifference.”

The case is far from over; the arguments will be made again in a jury trial.   But it is also not one of those IDEA or 504 cases where its only public money that is at stake in the form of compensatory education (IDEA) or damages (ADA/504).   It is not of course established by this decision that the administrator, Blair, acted with deliberate indifference.  But the court was very clear in saying it thought that a reasonable jury COULD find he had acted with deliberate indifference.

[A] governmental official . . . may be held liable under section 1983 upon a showing of deliberate indifference to known sexual harassment.”

Some of the district courts findings with respect to Section 1983 claims were affirmed, but not all of them.

The case was remanded.  School administrators should be taking notice of this case, because the country, parents, and parent attorneys are already taking notice thereof.

Al.com news report

The United States Department of Justice Brief on Behalf of Jane Doe  Brief filed on behalf of Jane Doe by the United States Department of Justice

The 75 page decision in this case, can be boiled down to a simple, single legal precept:  School administrators are supposed to take reasonable steps to safeguard their children; they are not supposed to put them in harm’s way.

August 8, 2015.  Sneitzer v. Iowa Department of Education, 8th Cir., 8/7/2015  14 pages
Key Words:   Tuition reimbursement, parentally placed children in private schools, motion to dismiss, statute of limitations
Published?  Yes
Decided for:  The school system

This case had been winding its way through administrative and court proceedings for a relatively short five years.  The student involved was a junior in high school, with an IQ in the gifted range, but with a diagnosis of Aspergers.   She had an IEP, numerous modifications, and a paraprofessional to assist her during the school day.   She had a GPA of above 4.0 due to her placement in gifted classes.

The student was raped while on a cruise, and her behavioral problems worsened.  She accused other students of harassing her but there was no confirmation from other peers.  She applied for but did not make the cut for the school choir, and relations deteriorated after that, with the mother accusing the school of having discriminated against her child because of her disability and her race (the student was bi-racial.)  The school had offered other options for her extracurricular participation other than the choir that the mother insisted was necessary for her, but in August, the parents notified the school that because of the alleged bullying and discrimination, they were sending their child to a private school in Connecticut and asking for a due process hearing with the intention of seeking tuition reimbursement.

There are two (2) criteria that must be met for a parent to recoup private school tuition.  (1) that the school failed to provide FAPE.  (2)  That private school was “appropriate” within the meaning of the IDEA.   The person seeking relief (in this case the parent) bears the burden of proof.  One interesting sidenote.   The parents made multiple claims about the IEP, including that it had not been revised from the previous year.   The court ruled that the IDEA only requires schools to review IEPs annually.   Not necessarily to revise them.

Because the school had documented and could show significant progress even after the rape and even after being denied a role in the Happiness choir,  the court found in the school’s favor.

Renee’s complaints–that K.S.’s placement at Kennedy for the Fall 2012 semester likely would have triggered a “downward spiral” in her emotional health, and that K.S. needed a more intensely therapeutic environment than Kennedy could offer–do not carry the day in this IDEA litigation. This case is, unfortunately, not about what is the ideal placement for K.S. Our analysis is whether the district was providing K.S. with a FAPE at the time she was removed from the school. Or perhaps more pertinently, whether Renee has proven the district was not providing K.S. a FAPE at that time. We find that she has not met that burden, because the IEP advanced by the district was providing K.S with “some educational benefit” as of August 2012

August 6, 2015.  T.B. v. San Diego Unified School DistrictT.B. v. San Diego Unified School Disrict, Ninth Circuit, 7/15/2015
Key Words: Section 504, damages, motor disabilities, feeding tube
Published:  Yes
Decided for:   The parent, in part (And remanded. Again.)

This is another damages case brought under the ADA/Section 504, wherein parents are seeking damages not available under the IDEA based upon an allegation that a school system was deliberately indifferent to the needs of their child.

The case has been in the court system  for almost ten years and, upon remand, likely to surpass the ten year mark.  The “student’ is now 21 years old.

There were several issues here, among them the the lawsuit over damages. In the original due process hearing, the ALJ found for the school on most counts except it found the IEP to be inadequate because it did not provide “a legally adequate way for T.B. to receive g-tube feedings.” It was this issue for which the parents subsequently sought damages.

Another issue  was the subject of attorney fees.   The parents requested 1.4 million dollars for their attorney.   The district court only awarded $50,000 because the parents, the judge concluded,  had unreasonably rejected a mediation agreement. In brief, if the parents reject a settlement offer, and then get no more than they were offered, the IDEA says that their legal fees may be substantially reduced.   The circuit court disagreed with the district court judge, saying that the parents did get more than the settlement offer would have provided and . . . of course . . . remanded back to the District Court for further consideration.

(Parenthetically, this was not and is not a case where the school system would be seen by most objective observers as a bad guy in all of this.   The parents had at one point asked for $200,000 a year to educate the child privately. The school system rejected their request, offering $150,000. Their attorney rejected their offer on the same day, upping the parents demand to $250,000.)

Regardless, CA requires schools to include specialized health services in the IEP. The school actually did address the issue in the IEP, but the ALJ concluded it had not done so adequately.

The standard that must be met in any claim of “deliberate indifference” hinges on the judicial definition of deliberate indifference.   Deliberate indifference is defined as “knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood.”  It isn’t just neglect.

While the court dismissed two of the parents’ claims, it did NOT dismiss the third because the school  had not incorporated the language in a subsequent IEP recommended by the ALJ.

A reasonable jury might find that the district was being deliberately indifferent to T.B.’s rights under California law—as opposed to merely negligent or wrong—by refusing to specify that a nurse, SEHT, or SET should carry out the g-tube feedings when the ALJ had suggested strongly that this was the only way in which the district could fulfill its legal duties. Furthermore, a jury might consider that the district’s failure to increase the number of hours of training for the BSA in the first week (three hours), was a sign of deliberate indifference, particularly after the ALJ had pointed out that the statute required that an SET or SEHT be trained through “standardized procedures.”

So the was remanded for further ajudication.

There were two errors made by the school system in this case, neither of which necessarily indicated bad faith on their part.  First, they failed to adequately address an extra burden imposed upon them by their own state’s regulations, enforcible by a federal court.  The second was that in drawing up the next year’s IEP for a student they failed to address and fully implement the directions of the ALJ.   Whether these failings will ultimately prove fatal is unknown, but they do suggest a lack of prudence in a situation that was already adversarial.

August 6, 2015.   July OSEP Letter to ASHA regarding ASD and Part C and Part B service providers.

It is explicitly directed toward Part C providers as well as Part B providers.

The letter says that ABA is only one methodology for treating children with autism and that services, including speech and language services,  need to be based upon the children’s individual needs . . . something ASHA found particularly encouraging, because they’ve apparently felt that they were being left out of the process much too often.   ASHA  in a 2015 response saw (and sees) the letter above as strongly  reinforcing their position in the intervention process.

ASHA was not the only organization pleased with the OSEP letter above.  The Autistic Self Advocacy Network also praised the ED letter urging schools to look beyond ABA.

In assessing the credibility of any organization’s interpretation of OSEP policy, it may be helpful in looking at the credentials of their board members; ASAN’s  board of trustees establishes them as being somewhat more influential than your average Mom and Pop website (like MySchoolPsychology.com)

Practitioners might also find it relevant referencing the federal Medicaid FAQ.

JULY

July

July 28, 2015. July 6 OSEP Letter from Musgrave to Colleagues re ASD

On July 6th of this year, OSEP sent a Letter to Colleagues to all of the  states regarding the importance of providing adequate speech and language services to children identified on the Autism Spectrum Disorder under both Part B and Part C programs.

July 25, 2015. T.P. v. Bryan School District, 11th Circuit, July 2, 2015.
Key Words:  IEE, time limits
Published?  Yes
Decided for:   The school system

In a letter to Baus earlier this year (link this date on our website), OSEP said that when a parent requests an IEE, the district has two options.  (1)  Provide the parents with an IEE.  (2) schedule an administrative hearing.   In this instance, we find an exception.   The parents in this case requested their IEE two years after the initial evaluation had been completed.   The school district declined the parents’ request, saying that their request was time barred, but that they would conduct a reevaluation and, if the parents disagreed with that, they could request an IEE again at that time.  The parents asked for an impartial administrative hearing.  The hearing officer ruled that their request was time barred and ordered the parents to consent to a new evaluation.   The parents refused to provide the consent, appealing the decision.  However, the court found that while the parents might have brought a legitimate issue to be heard before the court, they had not.   Therefore, the court ruled:

Thus, the Parents lack a legally cognizable interest in the outcome of the appeal, and their appeal is moot.15 See BankWest, Inc., 446 F.3d at 1364. IV. We VACATE the judgment of the District Court and REMAND with instructions to dismiss the complaint for lack of subject-matter jurisdiction.

Within the decision (although not particularly relevant to the outcome) was a concise summary of the standards to be applied by a judge when determining whether or not a procedural violation constituted a violation of the IDEA.

“Not every procedural defect results in a violation of the IDEA.” G.J., 668 F.3d at 1270. Such a defect only violates the IDEA if it: (I) impeded the child’s right to a free appropriate public education; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parents’ child; or (III) caused a deprivation of educational benefits.

Meridian Joint School District v. T.A., Ninth Circuit, July 6, 2015
Key Words: IEE; attorney fees
Published?   Yes
Decided for:  the parents in part, but mostly for the school system

It appears to have been the month for IEEs.  In short, the parents of the child with Aspergers in this case wanted the district to pay for an IEE.  The school refused but the parents prevailed in court.   Ordinarily, you would expect the parents would get their attorney fees as the prevailing party.   The Ninth Circuit, however, said “No,” because in order to prevail, it said, the student must qualify for special educational services.   In this case, the IEE did not establish a need for sped.  No need for sped, no entitlement to attorney fees.

Although Congress could have established a more inclusive fee shifting provision, we agree with the Fifth Circuit that Congress chose plain language that limits eligibility for attorneys’ fees under the IDEA to parents whose children have been determined to need special services.

We have from time to time observed (and not incorrectly) that whenever a school district thinks it has found a legal loophole, more often than not it turns into a hangman’s noose.   As this case illustrates, “more often than not” is not “always.”

Leggett v. District of Columbia, U.S. District Court of Appeals for the D.C. Circuit, July 10, 2015
Key Words: tuition reimbursement; parentally placed children in private schools when FAPE is an issue
Published?  Yes
Decided for:  The parents

As the court observed, this is a recurring issue that comes before the courts with depressing regularity.   The standard, which we’ve published previously, for parents to succeed in obtaining reimbursement is fairly clearcut.   The school and original hearing officer did not find that the child needed a residential placement and so denied the parents’ request.   However, whether a student “needs” to be in a residential placement is largely irrelevant as (in this case) the record shows that the school had failed to provide a child with a disability with FAPE.  This case should be distinguished from Forest Grove v. T.A., in which the district court concurred with the school system that the child did not require special educational services in any setting.

This court said in part,

On the record before us, however, all statutory, regulatory, and judicial requirements for reimbursement of the costs of private school have been satisfied: the school district failed to offer the child a “free appropriate public education” in either a public school or a non-residential private school, 20 U.S.C. § 1412(10)(C)(i); the private boarding school the parent selected was, at the time, the only one on the record “reasonably calculated to enable the child to receive educational benefits” designed to meet the child’s needs.

What also distinguished this case from some other recently reported decisions that went against the parent is that while the parent notified the school system she was going to enroll the student in a private school, she indicated in a letter that she would make her child available for evaluation and expressly said that she was prepared to enroll the student in public school if the school offered an appropriate program that even the school agreed the student needed.   The school lost this case basically because it did not meet with the parent to draw up an appropriate IEP or offer one.

And in concluding, the judge wrote in part

To sum up, given that DCPS failed to provide K.E. a FAPE at Wilson or anywhere else, that the Grier placement was “reasonably calculated to offer educational benefit,” that the residential program was “necessary” to achieve that objective, and that DCPS has, on this record, failed to show that Leggett acted “unreasonabl[y],” Leggett is entitled under the Act and the regulation to reimbursement for tuition, room and board, and any other costs necessary to attend Grier

The case was remanded.   This case actually dates back at least to 2011, when the parent took the school system to due process because it had refused her request to evaluate her child (instead recommending that she pay for a private evaluation herself).   A final decision had yet to be reached on the merits of their case.

July 25, 2015. OSEP Letter to Baus (February 2015).

Does a parent  have the right to request an IEE in an area not assessed by the school?   OSEP’s short answer was “Yes.”  An excerpt from their letter:

When an evaluation is conducted in accordance with 34 CFR §§300.304 through 300.311 and a parent disagrees with the evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.  Under 34 CFR §300.502(b)(2), if a parent requests an IEE at public expense, the public agency must, without unnecessary delay, either: (i) initiate a hearing under 34 CFR §300.507 to show that its evaluation is appropriate; or (ii) ensure that an IEE is provided at public expense, unless the agency demonstrates in a hearing under 34 CFR §300.507 that the evaluation obtained by the parent did not meet agency criteria.

McAllister v. District of Columbia, District of Columbia Circuit Court, July 14, 2015
Key Terms:  Fees for expert witnesses
Published?  Yes
Decided for:  The school system (Sort of)

The parents  argued that a paralegal’s fees should be reimbursed because her expenses were incurred directly by their attorneys, and should be included since they won their case against the school system.     The parents might have had a case if the expert’s credentials were consistent with  the definition of a paralegal.    The problem with their argument was that nowhere in the expert’s resume was there anything suggesting she had had any legal training whatsoever.  She was a self described advocate and expert witness.

Essentially, plaintiffs argue that Murphy deals only with costs, and that because IDEA mentions both costs and attorneys’ fees, the decision has no applicability where, as here, plaintiffs seek to recover the cost of an expert as part of attorneys’ fees. In Murphy, however, the Supreme Court expressly rejected this argument, holding that IDEA “does not say that a court may award ‘costs’ to prevailing parents; rather, it says that a court may award reasonable attorneys’ fees ‘as part of the costs.’

The court held that regardless of whom or to whom the expert presented her bill, the plaintiffs would have had to show that the IDEA unambiguously gave parents the right to recover expert consulting  fees if they were the prevailing party . . . which, the court held, the parents didn’t even attempt to do.

The school system won that part of the argument, butthe district court had also ordered the school system to pay 159,133 dollars in attorney’s fees.  Better than the three hundred thousand asked for by the parents atorney, of course.

M.O. v. New York Department of Education Second Circuit, July 15, 2015
Key Term:  Tuition reimbursement; parentally placed private school student when FAPE is an issue
Published? Yes
Decided for:  The school system

The Supreme Court in 2008 ruled against Forest Grove in Forest Grove v. T.A., saying that it was not necessary for a student to actually have been enrolled in a special education program in order to have a right to sue for tuition reimbursement in when FAPE was not offered.   One difference between that case and this case was that Forest Grove had offered the student neither an IEP nor a 504 Plan.  In this case, the school had offered the student an IEP but it was declined, the parent contending that it was on its surface inappropriate.  She told the school that she was enrolling the student in a private school and would be seeking tuition reimbursement.  This was in 2011.   Four years later, the Second Circuit ruled that she could not establish that an IEP was inappropriate based on speculation alone and denied her request for reimbursement.

July 9, 2015.   Update on OSEP Letter to Maine complaining about their SLD criteria.  Note:  This discussion has been updated and is no longer relevant. See Guy’s Log 2018 Maine Update August 2019.

Well over a year ago, I came across Maine’s Evaluation Criteria for SLD and filed a letter of complaint with OSEP.     Essentially, the main areas of concern were (1) Maine’s requirement that the teams document a cognitive score (any score) no more than 1.5 standard deviations below the mean; and that the team document the existence of a psychological processing deficit related to the area of academic achievement.  It was one of only three states at the time to do so, and OSEP’s response should be instructive to practitioners in those states as well.  Additionally, some public agencies in neighboring states, e.g., New Hampshire, had reportedly adapted the Maine form for their own school systems, so the impact of Maine’s practices extends beyond state borders.

Cutting to the chase, OSEP told Maine that it was concerned that it was restricting its public agencies to the use of a single methodology in identifying children as SLD, which is prohibited under the IDEA.

As required in § 300.304(b), consistent with section 614(b)(2) of the Act, an evaluation must include a variety of assessment tools and strategies and cannot rely on any single procedure as the sole criterion for determining eligibility for special education and related services.   2006 FR, p. 46648.

It was only a week ago, however, that the link to the disputed form went dark.  A few days later, a new link to Maine’s form appeared.

To see the form in its entirety, click on Learning Disability Evaluation Report

The new form appears in format to be very similar in content to the old form, but there have been some significant changes that should inform the practice of every eligibility group.  The form, despite the revision, is still in this reviewer’s opinion, problematic in some ways.

First, it says, “Notice: In making a determination whether or not a child has a specific learning disability, the IEP team must consider more than a single measure.”

That is of course, consistent with the regulatory language, but it does not address the requirement cited above  . . . that no single procedure may be used, either.

The form then goes on to ask the same questions asked in the old form, that is, whether or not the team has identified a psychological processing deficit and whether or not a cognitive score no more than 1.5 standard deviations below the mean has been identified.   Maine lists several reasons why neither of these may not be present and now provides a “NA” option.  However,  the main problem with requiring documentation of a processing deficit as a sine qua non for identification is that the team can never know when the test results are all normal whether (1) the child doesn’t have a processing disorder or(2) the school psychologist just didn’t give the right test.  With respect to the cognitive requirement, there is nothing in the FR that requires a specific IQ score; the onlycognitive  exclusion is that the child not have an intellectual disability.  Addition of a cognitive a cutoff back in the 1990’s distressed OSEP so significantly that it threatened to cut off funds to Wisconsin if they didn’t mend their ways.  This time around, it didn’t seem to ruffle their feathers very much.

I have a  minor quibble over Question 3, which begins, “If a student is not achieving adequately in all areas,” and then goes on to list the exclusionary criteria.  It is of course not required for a student to have inadequate skill development in all areas, and it is possible that while low achievement in one area might be the result of an exclusionary factor, it is also possible that low achievement in another of the eight areas might not.  As I said, a minor quibble, but there is at least a possibility in addressing this question that someday somewhere some baby might get thrown out with the bath water because of an overly literal reading of the Question..

Part C, Conclusions, gives practitioners and eligibility groups considerably more leeway in making eligibility determinations than previously.  While every question still must be considered by the eligibility group, the only questions that MUST be answered “Yes” are:

Depending on how they interpret it, that should give eligibility groups a considerable boost in professional discretion when it comes to eligibility determinations.   As to whether those changes will be meaningful in practice remains to be seen; the proof of the pudding will be in the eating.

Number 2, above, referencing Patterns of Strengths and Weakness, was described by OSERS in the 2006 FR as referring to

 Patterns of strengths and weaknesses commonly refer to the examination of profiles across different tests used historically in the identification of children with SLD. We believe that the meaning of ‘‘pattern of strengths and weaknesses’’ is clear and does not need to be clarified in these regulations.  2006 FR  p 16654

Despite saying no clarification is necessary, elsewhere, they talked about patterns of strengths and weakness between achievement or performance and intellectual development as referring to state discrepancy models; Maine’s evaluation form does not, however, provide any guidance in the form above for applying a discrepancy methodology.  OSERS warned against the use of intra individual differences on cognitive measures as an indicator of SLD as lacking validity.  “State approved grade level standards” was described as referring to the standards in state tests, but OSERS warned against basing an eligibility decision based on a poor state test score alone.

Question 10 asks if the evaluations used were reliable and valid and performed by qualified examiners.  Without explanation (at least on the form) the Conclusions section says that Question 10 may not be applicable to English Language Learners.  (Legally and ethically, of course, test users are required to use tests that are both reliable and valid for the purpose for which they are being administered.  An English language test designed to measure intelligence would, in the case of an English Language Learner, more likely than not be measuring second language skills, not intelligence.)

July 6, 2015   Doe by Doe v. East Lyme Board of Education, Second Circuit, June 16, 2015
Key Words:  Stay Put, compensatory education, parentally placed students in private schools when FAPE is an issue
Published?  Yes
Decided for:  The parents, in part

Some school systems have tried to do an end run around the stay put  provisions of the IDEA by offering to pay parents back for stay put services upon their production of receipts for their costs, knowing full well that many parents are unable to fund those costs up front.   That can, as the decision below shows, lead to successful claims for compensatory services, even when a district prevails on other issues.  A number of courts have concluded that the rights afforded to parents under the IDEA under stay put are not contingent upon their ability to front the costs, as would be the case if parents were unilaterally placing their child in a private school and then seeking tuition reimbursement.

JUNE

June 26, 2015 M. v. Cumberland Public Schools, District Court, Rhode Island, June 3, 2015
Key Words:  Classroom observation
Published?  Yes
Decided for:  The school system

The parent had asked to observe in a class where her second grade student was to receive intense academic instruction in reading.  The school, citing confidentiality concerns, declined the parent request, instead offering to let her visit the class when no other students were present.   She declined, although she did visit the classroom briefly with the instructor and her child during a Celebration of Learning day at the school.   The parent filed for a due process hearing, alleging that her rights had been violated because she had not been allowed to visit her child’s classroom along with some other allegations.   All were dismissed by the hearing officer, except the H.O. found that the school had committed a procedural error by failing to allow the parent to visit the classroom, while at the same time noting that the IDEA did not carve out a specific right for parents to observe in a classroom.  The parents filed, based on that single finding, for attorney’s fees.   The H.O. it should be noted had NOT found that the procedural violation resulted in a loss of FAPE for the child.  The parents filed in district court asking for the award of attorney fees; the school system in response asked the district court to find that the H.O. had erred in his application of the law in finding that the school had made a procedural error or, in the alternative, find that the parents were not the prevailing party because that error, if it was an error, did not result in a loss of FAPE.   A H.O. does have the power to address the issue of prevailing party status, but in this case, the H.O. (for reasons not given) chose not to do so.

Shifting gears, OSEP has addressed this issue in the past, both in a Letter to Mamas in 2004 as well as a Letter to Savit in 2014.   In both, OSEP has taken the position that the law does not require schools to allow parents or their advocates to visit classrooms.   However, in the Mamas letter, OSEP did recommend that schools work with parents in providing them with access to proposed placement options.

Both letters above are archived on this website:

Letter to Savit 2014
Letter to Mamas 2004

This court found that the school system had met any obligation it might have had by offering the parents a chance to visit the classroom when the other children were not present and that in fact that parent had visited the classroom with the instructor and child.

In finding for the school system, the court wrote in part, “The Court notes that, even if the Court were to affirm the sole finding by the IHO in the Petitioners’ favor, the Petitioners do not qualify as “prevailing parties” because they undisputedly received no benefit from that finding and because no changes were made because of it. Accordingly, the Petitioners would not be entitled to attorney fees even if the IHO’s finding on the access issue were to be affirmed.”

I need to point out that this case and this decision is far from setting a precedent that would, could, or should prove decisive any other cases revolving around this issue.   Although there is nothing in the IDEA that specifically requires that parents be given the opportunity to observe proposed placements,   Confidentiality, the issue cited by the school system as a reason for denying parents’ access, is only protected by FERPA, and FERPA only applies to educational records.  Owasso v. Falvo, US Supreme Court 2002

Additionally, parents by law are entitled to participate as equal partners in the IEP team process and are, therefore, also entitled to review the same information being considered by that team in determining a child’s needs and in developing interventions for that student.   Even given this particular court’s interpretation of the law, if the facts had been different (e.g., if the H.O. had found that FAPE had been denied), the outcome could have been different.  For additional discussion of this issue also see:

Parent Observation vs. Confidentiality (Wrightslaw)

Observing your Child’s Classroom: What are Your Rights?

Additionally, where you live could also affect the outcome of a court action based on a refusal to allow a classroom observation prior to placement, e.g., Massachusetts.
Right to Observe in Massachusetts

June 15, 2015.   JS et. al. v. NY Department of Education, District Court 5/6/2015
Key Words:  Compensatory education, parentally placed student in private school when FAPE is an issue, stay put
Published?  Yes
Decided for:  The school system

In Jalen Z, reported earlier this month, the court found that the application of judicial criteria for unilateral placements were not appropriate when stay put rules should have been applied.  The facts in this case appeared similar, but the outcome was different because (in this case) the standards applied were the ones generally applied to parent requests for tuition reimbursement.

In the case cited previously this month, the state review officer had applied the standard used in evaluating unilateral parental placements for determining whether or not a parent was due tuition reimbursement.  Briefly, the standard that must be met is (1) the parents choice provided the student with an appropriate education; and (2) the proposed IEP from the school system was not reasonably calculated to provide the child with benefit.  The district court in Pennsylvania found that the SRO was correct in saying that that school system’s IEP was reasonably calculated to do so; but it also found he applied the wrong standard.  Since the services being provided by the parent were consistent with the previous IEP, then stay put during litigation applied, and the parents were entitled to compensation.

It does not appear from the written decision in this NY case that the parents or their attorney ever presented the case as stay put or invoked stay put standards, even though the student had remained in the same placement as he had before moving to due process.   A  chronology of events may provide some clarification, while at the same time illustrating that importance of language and the necessity for filing timely appeals.   Here is what happened:

Born: 2000 (15 years old now)

2010-2012 Attended Lang School for Children who are twice exceptional in sixty and seventh grades.   NY DOE paid for it.

In early 2011, the parents had an IEE completed

In February, 2012 a new psychoeducational evaluation was completed.

May 29, 2012, the parents signed a contract for the 2012-2013 school year with the Lang School.  It included an escape clause (that the contract would be void if the school offered an IEP providing FAPE) but it didn’t help the parent when the school subsequently argued she had already made up her mind for the student to stay at Lang no matter what the school offered.

A month later, the IEP team (“CSE” In NY) met on June 12, 2012. At that meeting, they declined to consider the 2011 parent’s IEE.  The IEP was completed subsequent to that meeting and the placement decision made by NY was a public school setting with 25 kids and two teachers.  The parent complaint alleged that the school system had committed a fatal error by not considering the IEE.  That argument could have been fatal to the school’s case, but the school system successfully argued that they didn’t consider it because it also had a 2012 evaluation that they believed more accurately reflected the child’s current needs.   (Note:  “Consider” does not mean “adopt” or “agree.”  The school presumably could have avoided having to address this issue if they had documented they had considered the IEE but did not adopt the recommendations therein  because they were outdated.)

Parents in subsequent pleadings claimed they had met with an assistant principal who told them, among other things, that they should run from the proposed school placement because it was a dumping ground for sped students.  The Asst. Principal later claimed that he never said any such thing.   Someone obviously lied, but there was no proof as to which party was guilty.

August 29, 2012.   Parents inform school that they were rejecting the proposed placement and were unilaterally enrolling the student at Lang and that they would be seeking tuition reimbursement.   Had they requested a hearing at that time and invoked stay put, then the request for tuition reimbursement would more likely have been regarded similarly to the Jalen Z. case.   But they did not.

§ 300.518 Child’s status during proceedings. (a) Except as provided in § 300.533, during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under § 300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.

April 22, 2013 (almost eight months later). Parents file a due process complaint.

June 6, 2013 through September 13, 2013. Due process hearing began and concluded.   The decision reported above does not document what circumstances in a tuition reimbursement case could have caused it to drag on for more than three months.  Nor does it give a clue as to how much money the attorneys were raking in.

Subsequent to the hearing, the HO awarded the parent only half of what she was asking for with respect to tuition (25,000 dollars) because the HO thought the parent had already made up her mind before the hearing but still didn’t consider the proposed placement appropriate. .

Both parties appealed (date not provided) to the state.   The SR0 found the IEP was appropriate, discounted the parent complaint  that the goals were not written until after the meeting because they had been discussed at the meeting, and said the school wasn’t required to defend its program because the child had never attended its program.  The SRO vacated the $25,000 award.

June 16, 2014.     Appealed to the District Court.   (So far, we’re only on page 8 of a 34 page decision.)

The judge cited the Burlington/Carter standard (page 10) and applies it to the facts of this case.   Burlington/Carter references unilateral placements by parents when FAPE is on the line.

The parents then go on to list a number of complaints they claim rendered the 2012 IEP fatally flawed, and the rest of the judge’s decision takes them one by one,refuting each.

In the end, the judge granted summary judgment to the district, rejected the summary judgment requested requested by the parents, and in the end left the parents with nothing, not even the $25000 originally granted by the original  hearing officer.

June 15.   Sam K. v. Hawaii Department of Education  (Ninth Circuit, June 5, 2015)
Key Words:  Tuition reimbursement, private school, unilateral versus bilateral placement, attorney fees
Published?  Yes
Decided for:  The parents

A 21 page published decision with precedential value for nine western states including Alaska, Hawaii, California, Washington, Oregon, Idaho, Montana, Nevada, and New Mexico.

The student suffered from emotional problems.  He was parentally placed in a private school in 2007 and the Dept. of Education agreed to pay for his tuition that year in a settlement agreement through 2010.  The parents and school system met several times in the summer and fall to develop a new IEP, and the student continued in the private placement as the school year began.  The school system did not present a proposed placement until January, 2011.  They were not informed that this was the district’s final offer until March, 2011.  The parents rejected the proposal and filed a request for a due process hearing in October, 2011.  The Hearing Officer found the proposed public school placement inappropriate and that the placement proposed had been predetermined by the school system prior to the development of an IEP and without significant parental involvement.  The parents however had received notice of the decision in March, 2011 and did not file for a hearing within the 180 days required by Hawaii.  Ordinarily, if a parentally placed child in a private school setting is receiving FAPE, and the offered IEP was not reasonably calculated to offer FAPE, then . . . absent the alleged untimely filing . . . the parents would have prevailed.  However, the district court found that because the school system had paid for the preceding three years, and had failed to provide an IEP before the beginning of the 2010-2011 school year, that the placement was bilateral, not unilateral, and that (therefore) the state 180 timeline did not apply.  Although the school system had not provided written approval of the placement, the Ninth Circuit held that consent may be tacit.  Since the school system knew the child was attending Loveland, the private school, and since they had paid for his tuition the previous three years, and since it had not offered an IEP prior to the 2010 school year, the school system was responsible.

The award of attorney fees in these cases can be significant.  In this decision, the award to the parent attorney by the district court was “only” $77,226.93 based on an hourly rate of 285 dollars per hour (the total would of course be higher after preparation for the Ninth Circuit hearing.)  The parent attorney had been asking for $375 an hour.  The discussion of attorney fees was probably the most generalizable of the conclusions in this decision.

Although of precedential value in the Ninth, one of the judges disagreed with the distinction made between bilateral and unilateral placements made by this court.  A different set of judges could therefore have resulted (and in a different circuit could result)  in a very different outcome.  Also, timelines vary from state to state, so the timeline violation alleged in this case would not have been an issue in a state, even a state in the Ninth Circuit, with a different timeline.  Another illustration of that very basic principle in spedlaw, i.e., the outcome of any court case always rests in part on a roll of the dice.

 Jalen Z. v. Philadelphia District Schools, Eastern District Court, May 15, 2015
Published? Yes
Key Words:  Preschool, stay put, FAPE, IEP, autism
Decided for:  The parent in part, the school system in part

This is a dispute dating back to 2011 who when the dispute began was in a preschool program.  At that time the parents prevailed, receiving a number of compensatory education hours, which they used to provide Lovaas interventions in the home.   In a subsequent disagreement with the district, a hearing officer determined (1) that the school was not required to provide the student with preschool services while the disagreement was pending (and the parents were not therefore entitled to compensatory education and (2) despite some minor deficits in the IEP, they weren’t fatal (paraphrasing), and, therefore, reasonably calculated to provide FAPE.

The district court in this decision found FOR the school system with respect to the hearing officer’s conclusion that the procedural errors in developing the IEP did not result in substantial harm and that the IEP was appropriate.   The 54 page decision addresses each of the points raised by the parents in some depth, in each case finding the hearing officer’s reasonable in support of the district until . . . and here it becomes interesting . . . it addressed the issue of compensation for services that the parents were continuing under the old IEP.

The court differentiated this case from others where the parents had unilaterally placed the child in a private school setting in a dispute over FAPE.  In this case, the parents were simply continuing the services they had received under the old IEP; and even though the old IEP had not been developed by the present school system, it still constituted the “stay put” placement for the child (and the school was responsible for paying for it.)  After a detailed examination of the facts within the context of the IDEA’s requirement that students continue to receive services during the pendency of a hearing, the judge concluded that services being provided at home constituted the stay put placement, not a unilateral parental placement and that they were entitled to compensation:

In light of the above, the Court finds the Hearing Officer’s denial of pendency to be error and will schedule a separate evidentiary hearing to determine the amount of reimbursement to which Plaintiffs are entitled.

MAY

May 22, 2015. H.G. v. Upper Dublin School District in Federal District Court (April 17, 2015).
Key Words:   LRE, FAPE, IEP, Fragile X
Published:  Yes
For:  The  school system

This was a case about LRE v. FAPE.  Generally, placement in the LRE is considred a right, not a preference, by the courts, but being on the side of the LRE is not a slam dunk.  The age and needs of the child and whether services in the least restrictive environment, even with appropriate modifications and accommodations, will provide him with FAPE (more than non trivial benefit) are all factors courts will consider.   In this case, boiling it down, the school had proposed an IEP that would provide a student with Fragile X syndrome remedial services for a portion of the day in a special education classroom.  The parents disagreed.  They wanted an IEE, they wanted the kid to be taught full time in regular classrooms.  They went to due process and lost.  They appealed.  They lost.  They appealed to district court.  Lost again.  Which of course meant no help from the school system in paying all their attorney fees.

What is potentially of particular interest to school psychologists is how and why the district won on the IEE request.  In brief (again) it was because the school psychologist had done the necessary homework about children with Fragile X and provided the school (and parents) with an unusually comprehensive evaluation.   Indeed, one of the complaints made by the parents was that the school system had over tested their son, one of many complaints that gained absolutely no traction with the district court.

Plaintiff has also asserted that the District’s testing was “excessive” and a “self-serving effort to show that H.G. [was] intellectually disabled, by giving so many tests with the same scores that there would be no way to challenge the District’s diagnosis.”²⁶ Plaintiff’s Objection is without merit.

The judge summarized what the school psychologist did as follows:

In October 2011, the District’s school psychologist overseeing H.G.’s reevaluation researched standardized tests appropriate for H.G.’s disability, determined that there is no particular formula for selecting appropriate assessments, and selected specific tests to try to be “as comprehensive as possible” and capture “different theories of intelligence.”¹⁵ The school psychologist organized the assessments in a manner thought to be most conducive to H.G.’s success, e.g., testing in shorter sessions over a longer period of time, allowing frequent breaks, and avoiding use of the word “test,” which made H.G. anxious¹⁶ The reevaluation also included observation of H.G.’s performance in class and social settings, as well as behavioral rating scales submitted by H.G.’s teachers.¹⁷ In December 2011, the District released its Reevaluation Report, which described H.G. as exhibiting “significant deficits in all areas of cognitive, academic, adaptive, [communicative] and social functioning,” and indicated that, under Pennsylvania Special Education regulations, H.G. qualified as a student with a disability.

In most cases, it’s not the psychological but the IEP that attracts the most attention, and that was of course also true in this case.  But this case also illustrates how when a school psychologist does his or her job well, they help lay a foundation upon which a winning case can stand, especially if the school’s proposals are not inconsistent with what the school psychologist has found.

The parent’s, who also sought reimbursement for their IEE, were relying on a evaluation that sought to refute the district’s finding that the child qualified as intellectually disabled based on the administration of  a PPTV IV and the TONI  IV.    In contrast, in the footnotes the judge reported that the school psychologist had administered the following battery of tests:

28. Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV Integrated); Kaufman Brief Intelligence Test-Second (KABC-II); and Comprehensive Test of Non-Verbal Intelligence-Second Edition (CTONI-II). Decision ¶14.

30. Wechsler Individual Achievement Test-Third Edition (WIAT-III); Critical Reading Inventory (CRI); and Yopp-Singer Test of Phonological Awareness. Decision ¶ 18.

31. Clinical Evaluation of Language Fundamentals-Fourth Edition (CELF-4); and Peabody Picture Vocabulary Test, Fourth Edition (PPVT-IV). Decision ¶ 2

32. Decision ¶ 24.

33. Behavior Assessment System for Children-Second Edition (BASC-2); Behavior Inventory of Executive Functions (BRIEF); Vineland-II Adaptive Behavior Scales; and Student Interview/Self Report.

Their argument for relying on screening tests over the district’s evaluation was that the school’s psychologist had only tested the child with instruments designed to identify disabilities and that were not designed to “tease out” areas of strength that might be obscured by a disability.  The judge concluded that the school psychologist had done exactly what school psychologists’ are supposed to do

Plaintiff’s reliance, however, is misplaced. Dr. Barenbaum’s opinion underscores the IDEIA’s requirements and supports the District’s 2011 reevaluation. As provided by regulation, testing is done to “assess the child in all areas related to the suspected disability.” This is exactly what the District did, taking into account H.G.’s disability and evaluating H.G.’s academic, cognitive, functional, and behavioral performances in a regular education classroom. Contrary to Plaintiff’s assertion, the record does not support a finding that the District violated the IDEIA when conducting the 2011 reevaluation of H.G. The District’s 2011 reevaluation was comprehensive and appropriately completed over a span of two months. Additionally, consistent with the Magistrate Judge’s finding, the record does not contain any contrary or non-testimonial evidence to justify a departure from the Hearing Office’s determination that the District’s 2011 reevaluation did not violate the IDEIA. This Court is cognizant that it is not the job of the court to dictate educational methods to special education experts.See Rowley, 458 U.S. at 208 (“[O]nce a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States.”) (citations and footnotes omitted); L.R. v. Manheim Twp. Sch. Dist., 540 F.Supp.2d 603, 618 (E.D. Pa. 2008) (“The Court is not properly equipped to follow Plaintiff into the thicket of methodological debate . . . [t]herefore, the Court will not independently review the methodology of the testing underlying [plaintiff’s] IEP.”). Here, Plaintiff has not shown that the District’s 2011 reevaluation was inappropriate. Therefore, Plaintiff’s Objection 11 is overruled.

May 17, 2015
Grants Pass School District v. Student, District Court of Oregon, April 29, 2015
Key Words:  ESY, regression, recoupment, autism
Published?  Yes
Decided for:   The school system

The criteria for determining a child’s eligiblity for extended school year services are not well defined and are often misunderstood.   Wrightslaw, for example, offers support to parents saying that no single standard may be applied and that the decision is up to the IEP team based upon a comprehensive review of the child’s needs.   http://www.wrightslaw.com/info/esy.standards.barlev.htm

Different states offer different guidance.   North Carolina state guidance lists basically three factors to be considered:  (1) amount of regression (2) whether expected skill recoupment when services are resumed would be so slow as to jeopardize the progress that had been made and (3) window of opportunity (whether the child is developing emerging skills and a window of opportunity may be lost if that skill acquisition is interrupted.)

This child with autism transferred from Hawaii to Oregon, had previously had an IEP that provided ESY services during breaks lasting more than ten days, and was initially provided with ESY services from his school system in Oregon.  In Oregon, the standard relied upon by the court only referred to undue regression and recoupment threatening the progress of the student in meeting IEP goals, which should be supported by data, but could be determined based upon the professional judgment of the IEP team in the absence of that data.  The district then used winter and spring breaks (with no services) to determine regression/recoupment and concluded that the child did not need ESY services in order to receive FAPE.   The parent invoked due process rights to an impartial hearing.   The hearing officer sided with the parent.  The school system appealed to the U.S. district court.  After reviewing the evidence provided by the school system, the judge reversed the hearing officer’s decision.   Who wins and who loses, of course, is exceedingly important, no matter what the issue, because the loser is responsible for paying the parent’s attorney.

Generally, judges are required to give deference to an ALJ (hearing officer) decision.   The judge in this case did not, citing among other things her failure to consider the spring regression/recoupment data, her mis-characterization of the parents’ experts’ testimony, and the ALJ’s requirement that the district implement the Hawaii IEP —  which had been superceded by the Oregon IEP and which the parents were not contesting, except of course for its lack of ESY services.  Most importantly, from the judge’s perspective, the ALJ failed to apply the regression/recoupment standard in determining whether or not the student was eligible for services.  In the Wrightslaw summary (link above), a Tenth Circuit decision was cited in support of the contention that ESY may not be based on a single standard.    However, Oregon is in the Ninth Circuit, which explicitly upheld a previous lower court decision based on the regression/recoupment standard.  The judge also cited a USDOE document saying that it was up to the states to determine the appropriate standard for ESY services.

Given the differences in how the circuits (and the states themselves) have addressed the question of ESY standards, what this decision makes clear is that practitioners need to be crystal clear as to what their state guidance says about making ESY decisions; when adversarial situations over ESY arise, a review of decisions in their circuits in order to provide additional guidance to their decisions would seem appropriate; and, especially when dealing with children with severe disabilities like autism, making decisions based on copious amounts of data rather than professional judgment alone will be most helpful in building a defensible case.   In this case, references were made at the hearing  to the data collected by Hawaii in support of ESY for breaks of more than ten days.  However, Hawaii never provided that data to the school system, despite numerous documented attempts to obtain them, once even while the administrative hearing was in progress.  That documentation showing repeated attempts to obtain that information from Hawaii was also helpful in defending their use of data gathered over the spring break as well.  While on-line guidance from sources like Wrightslaw regarding ESY standards may be helpful as a starting point, your own state’s guidance and Circuit court decisions will offer the most reliable (and defensible) precedents.

May 16, 2015 Pollack v. Regional School Unit 75, U.S. District Court of Maine, April 29, 2015
Key Words:   Autism, IEP Meeting, Parent Participation, Harmless Error, Tape Recording Classes, FERPA
Published; Yes
Decided for:  The school system in part, the parents in part

One of the key decisions was that since taking this non verbal student with autism on lunch excusions was discussed at an IEP team, the judge concluded that the school’s failure to address the issue in the IEP not only was harmless but also (over ruling the hearing officer’s decision) that it did not constitute error.   Where schools and parents disagree in an IEP team meeting, the school gets to decide.   While that decision may be appealed, the fact that parents’ wishes are not granted (or failing to record the debate and decision)  does not rise to the level of failing to allow them meaningful participation, which was what the parents were alleging here.

However, that was not the only issue.    Generally we can assume that if a school system acts in compliance with the 2006 federal regulations for the IDEIA, then that is all that is required.   However, the parents in this case were alleging that the school system had not provided them with emails they claimed were privileged communications between the school and its attorney.  That’s usually a persuasive argument.   However, the judge in this case went back to the the Act itself, which references “all records,” interpreted in the 2006 FR by OSERS as meaning and having the same meaning as “education records” under FERPA.   The judge here disagreed, saying in her opinion that the term “all records” in the IDEIA was more inclusive and, while the school still (as I understand the ruling) probably would not be required to release privileged communications, it was obliged, in her words,

Although from the summary above one might conclude  that the issues before the court were trivial, this was one of the more acrimonious conflicts I’ve reviewed.  Also at issue was whether the parents should be allowed to place a tape recorder on their non verbal child so that they would know what was going on in his classroom during the day.   This demand arose out an incident where the teacher had accused one of the parents of “spying” on her class during an outing, following which the child left school severely agitated.  The parents suspected a connection and did not believe the teacher when she said she had no idea why the student was so upset.  They had shared their suspicions with the school, which responded with a letter from their attorney that cited a state law against voyeurism and threatened them with a possible lawsuit for defamation of character.  They never did get their tape recorder, despite the fact that other students were allowed to use tape recorders without the school raising so much as a murmur about “voyeurism” or any concerns about the privacy of other students.  And the judge in this decision, although it didn’t show up in her final conclusion, again denied the parent request to tape record their child’s day.

APRIL

April 24, 2015   OSEP Letter on Dispute Resolution

On April 15, 2015, Melody Musgrove, OSEP Director, published a Dear Colleague letter warning school systems that by filing a due process lawsuit against a parent who has already addressed a problem through the state agency, that they are acting in a manner contrary to Congressional intent and the spirit of the IDEA.   Apparently, when parents have filed a complaint with the SEA, the school has initiated a due process hearing, which effectively bars the state from taking any action until the complaint has been resolved.  As a quick review of just the lawsuits reported herein over the past six months, once a case goes to due process, resolution may not be achieved for many (many) years . . . long after the “child” has graduated from school and is now an adult, in fact.   This odious attempt to stifle parents’ complaints appears to be legal, although OSEP points out in their letter that if the school loses a due process complaint that it has initiated, then they will be liable for the parents’ attorney fees as well as their own . . . and federal Part B funds may not be used to pay their lawyers.

April 17, 2015. Wenk v. O’Reilly and Schott, 6th Circuit, 4/15/2015
Key Words:  Section 1983, retaliation, reporting suspicion of abuse
Published?  Yes.
Decided for:  The parents (remanded for adjudication)

This is another unusual case reported both by LRP and Justia.  The court hearing  was to considerwhether  allegations of retaliation by school officials for the parents’ advocacy for their 17 year old ID child could be brought to trial.   The parents were alleging the school unlawfully retaliated against them  by telling DSS they suspected that the father had sexually abused his daughter.   The judge in this case determined that the defendants, school officials, were not entitled to qualified  immunity under Section 1983 and remanded the case back to district court for adjudication.  The actions of the defendants have not therefore been reviewed by trial in this case, and the final outcome is uncertain.   However, the standard for review in granting a motion to dismiss requires the court to review the plaintiff’s arguments in the most favorable light, concluding that no juror could reasonably conclude that there was  retaliation in this case.   There were on the face of it sufficient grounds for school administrators to file a report regarding this child  with the department of social services.   Unfortunately for the school administrator, it appeared she had failed report her suspicions in a timely manner, only doing so after the parents had become (my paraphrase) a nuisance, arguing as they had for changes in their child’s IEP, and three weeks after first learning of at least some of the behaviors observed in the classroom.   It was only because of that latter argument, that the school officials were mandated reporters, that the 6th Circuit panel did not award the parents attorney fees for the sixth circuit appearance.    Administrative emails had been subpoenaed, a fact not mentioned by by Justia, in justification of the parents’ complaint, which while not exactly constituting a smoking gun, was supportive of the parents’ allegation that the school administrator held some animus toward them.   In NC, state statutes protect mandatory reporters from being identified by DSS.  This case however began in Ohio back in 2011.  There may (and almost certainly are) more important lessons to be learned from this case than to be careful what you write using your district email; but it’s not an unimportant lesson regardless.  Another important lesson: that it is always prudent to be nice to the parents, even when writing emails about them.  (It is not of course necessary to be disrespectful or contemptuous of a parent when saying “No” to their requests.)  When the time comes not to be nice, that is why school boards hire attorneys.
Schiffbauer v. Schmidt, District Court of Maryland 2015
Key Words:  physical restraint, Section 1983, ADA and Section 504 claims, Title VI
Published?  Yes
Decision for:  The school system

The parent’s attorney apparently took a shotgun approach in charging the school system with abuse and seeking damages, invoking Section 1983, ADA and Section 504, and Title VI.

The parents were upset that their child, the only Caucasian in a special education class of African American children,  came home with bruises after being restrained in a Quiet Room by a teacher’s assistant.  The child had been bullied by another student and, as a result, allegedly had a meltdown.   Multiple other allegations were made by the parents against the school system but aside from the one incident, which lasted only a few minutes, none of the others were supported by factual evidence.   The court dismissed their multiple claims and found for the school system.   However, the court did outline the criteria it would have applied under the ADA/Section 504 if more factual evidence confirming the parents’  claims had been presented.

Several courts, including this Court, have found by analogy to Davis , that a school district’s deliberate indifference to severe and pervasive harassment of a disabled child by his peers states a claim under § 504 of the Rehabilitation Act and Title II of the ADA, when five elements are satisfied: (1) the child is an individual with a disability; (2) he or she was harassed based on that disability; (3) the harassment was sufficiently severe or pervasive that it altered the condition of his or her education and created an abusive educational environment; (4) the defendant had actual knowledge of the harassment; and (5) the defendant was deliberately indifferent to the harassment.

(The reference to Davis is to Davis v. Monroe County Board of Education, US Supreme Court, 1999, 526 US at 650)  School systems may be liable for damages for substantiated claims of deliberate indifference, but the actual individuall perpetrators would by law remain immune under federal civil rights laws.   However, spedlaw is never exactly what it seems, and individuals charged with abuse could be charged under state laws   See:.

Witte v Clark 1995  and

Baird v Rose 1999

The court in this case did not find the parents met their burden of proof.

April 12, 2015 H.M. v. Weakley School Board (W.D, Tennessee, Eastern Division, March 13, 2015)
Key Words:  Emotional Disability, social maladjustment, tuition reimbursement
Published?  Yes
Decided for:  The parents

Although not a circuit decision, this case illustrates a seemingly obvious but important point:  apply the same principles of law, but change the facts, and you can get a very difficult outcome.   Compare this case to Springer v. Fairfax, where an adolescent male was denied eligibility by the Fourth Circuit because, in their view, he was just socially maladjusted, not emotionally disabled.  In that case, however, the student in question had done well academically until he fell in with bad company, and even then was liked by almost everyone, including his teachers.

Adversarial proceedings in this case date back to 2008, when it was first heard before an administrative law judge.   IDEA related cases that reach the courts number on average less than a hundred per year, but once a school is engaged, they initiate a process that will consume staff and financial resources for years.  In this instance, briefly, the court had before it a child who had been sexually abused by an adult at the age of nine, who had suffered loss around the same time due to the death of her beloved grandfather, and who subsequently, though bright, engaged in a variety of maladaptive behaviors over time including cutting herself and (later) running away with her boyfriend.  The initial hearing in 2008 found for the parents, but the ALJ had not determined that the child actually qualified as emotionally disturbed.  The school system appealed, the case was remanded to another ALJ (the original ALJ having been dismissed by the state of Tennessee) who found, based on current psychiatric testimony, that the girl was NOT emotionally disabled, just socially maladjusted.   This despite a 2005 psychiatric evaluation that had diagnosed  an “oppositional defiant disorder; major depression, recurrent, moderate; parent child relational problems; alcohol abuse; sexual abuse of a child victim issues and PTSD symptoms and Axis IV: severe stressors, history of childhood sexual abuse, parents’ divorce, difficulty with academics and difficulty with peer relations.”

The court in this instance compared the facts of this case using the principles of law enumerated in Springer, saying in part,

Although “socially maladjusted” is not specifically defined by the statute, the Fourth Circuit’s decision in Springer v. Fairfax County School Board, 134 F.3d 659 (4th Cir. 1998) is informative. The court defined the term as “continued misbehavior outside acceptable norms” and “a persistent pattern of violating societal norms with lots of truancy, substance abuse, i.e., a perpetual struggle with authority, easily frustrated, impulsive, and manipulative.” Springer, 134 F.3d at 664.

However, the court  in this instance distinguished this child’s situation by citing her history, of which I am only quoting a small part below:

“While this Court agrees with the ALJ that the evidence indicates that H.M. was socially maladjusted, there was also substantial proof in the record that she was emotionally disturbed in at least one category — a general pervasive mood of unhappiness or depression. Thus, this case is clearly distinguishable from Springer. The evidence reflects that H.M. had suffered from depression since she was nine years old. Dr. Farr diagnosed her with PTSD as early as 2003. Dr. Wood at Carey Counseling Center also diagnosed PTSD, along with severe major depression. At that time, H.M. was placed on antidepressant drugs. Her homebound education application of 2004 reflected that she was unable to attend a regular school because her anxiety level interfered with her concentration. WCS’s own report reflected an overall rating by her teachers as “at-risk” with “Depression in the Clinically Significant range,” as well as low adaptive skills. In 2005, Dr. Boxley diagnosed, among other things, major depression, PTSD and difficulty with academics.”

While the decision favored the parents in this case, unfortunately the decision has not ended the adversarial process for either party.   More time, more money, more stress and strain.  It must seem to all parties concerned that this case will NEVER be over.

“Accordingly, the Court finds that Judge Summers erred in finding that H.M. was not emotionally disturbed for purposes of the statute and, therefore, a child with a disability. The decision of Judge Summers is, therefore, REVERSED. This matter is REMANDED to the ALJ for proceedings consistent with this opinion and those entered in Case No. 08-1254. The ALJ is also directed to consider the preclusive effect, if any, of Judge Reynolds’s decision with respect to that determination. Finally, the ALJ is to address Plaintiffs’ claim under Section 504 if he or she concludes that said claim is properly before him or her.^[7]“

April 2, 2015 Lee v. Natomas Unified School District,  E.D. California 2/2015
Key words:  parent communications, restraining order, retaliation, adverse action, causal connection, burden shifting, pretext
Published?  Yes.

This is a case dating back to 2010.   The parent was writing everyone under the sun with complaints that their child was not receiving all the services that were in the IEP.   What makes this case of particular interest to school psychologists was that the parent even filed a complaint with the National Association of School Psychologists, apparently charging a school psychologist with the school system with unethical conduct.   The school system claimed the parent was harassing its staff and filed in court for a restraining order.  That of course really ticked the parent off, who filed a claim in court alleging retaliation and seeking damages.   The decision here only denied the district’s claim that monetary damages were unavailable and its request for summary judgment.   Clearly some parents are exceedingly annoying.  And clearly districts have the right to protect its staff members from harassment.   However,  while this case did not settle the primary question (Is the parent entitled to a cash award and for how much), it does clearly elucidate the principles needed to establish a claim, including what constitutes a protected activity, what constitutes an adverse action, the standard for inferring a causal connection, the concept of burden shifting, and then, finally, the burden on the plaintiff to establish that the defendant’s arguments are pretextual.    Worth a read if a parent is seriously ticking you off.

MARCH

March 27, 2015 District of Columbia v. Alice Kirksey-Harrington US District Court, 2/4/2015
Key words:  IEP, choice of setting, observation
Published?  Yes
Decided for:  The parent

This court found that the parent was denied her due process rights because she was unable to independently assess the ability of the new setting to implement her child’s IEP.  The finding that the two settings were factually NOT equivalent didn’t hurt her case either.

The R&R found that the hearing officer did not  err in concluding: (1) “that Defendant {the parent GMM] was unable to effectively evaluate whether Dunbar High School was capable of implementing D.K.’s IEP,”  id.at 19, and (2) that Kennedy at Dunbar and  Dunbar High School’s implementation of the IEP were not equivalent, id. at 24 (“Plaintiff has  not demonstrated by a preponderance of the evidence that the Hearing Officer erred in findingthat there were differences in educational programming that favor the selection of Kennedy at Dunbar over Dunbar High School.”)

Denying parents the right to observe in a recommended placement is not always fatal, however.   For an example of a decision where the school prevailed, see June 26, 2015 M. v. Cumberland Public Schools, District Court, Rhode Island, June 3, 2015 under the June heading above.  The discussion of that case also references several additional sources, including OSEP and Wrightslaw, discussing parents’ rights with respect to classroom observations.

March 11, 2015 National School Boards Association Questions Joint DOJ/ED FAQ on IDEA, Section 504, and Title II

For years, decades actually, OCR had been telling schools that if they complied with the IDEA, as far as they were concerned, they would be in compliance with Section 504/ADA.

Then in 2013, the United States Ninth Circuit published a decision wherein they said that just because a school district had met its IDEA obligations, that did not doom any claims a parent might make  under Section 504.

The panel rejected the reasoning that (1) a valid IDEA individualized education program, or IEP, satisfies a regulation promulgated under § 504 of the Rehabilitation Act requiring schools to make available to children with disabilities a free appropriate public education; (2) § 504 and Title II are substantially similar statutes; (3) therefore, a valid IDEA IEP also satisfies Title II. The panel held that compliance with the IDEA does not doom all § 504 claims. In addition, there are material differences between § 504 and Title II of the ADA. According deference to the Department of Justice’s interpretation of the ADA effective communication regulation, as expressed in an amicus brief, the panel concluded that the ADA requirements regarding students who are deaf or hard-of-hearing are different than those imposed by the IDEA. 

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/07/11-56259%20web%20revised.pdf

As a result of that decision, the Office for Civil Rights/Education Department and the Department of Justice in a Joint Memorandum modified its guidance with respect schools meeting their obligations under 504/ADA to provide students with effective communication.

Public schools must comply with all three laws, and while compliance with one will often result in compliance with all, sometimes it will not.

http://www.ada.gov/doe_doj_eff_comm/doe_doj_eff_comm_faqs.htm

The National School Boards Association  issued a response dated March 5, 2015.   It concluded its ten page legal analysis both of the decision and OCR’s response by saying

It is our hope that through NSBA’s comments here, the Departments recognize and address some unintended legal and practical challenges arising from the DCL. First, the DCL puts forward an expansive view of the law when it states that all school districts must apply both an IDEA and a Title II effective communications analysis in determining how to meet the communication needs of IDEA eligible students with hearing, vision, and speech disabilities. Second, the DCL may dismantle the entire IEP process if the Departments do not clarify the issues with regard to the impact that the analysis of the Title II effective communications standard will have on that process. Finally, school districts need clear criteria regarding what kind of situations constitute a fundamental alteration in a program, service or activity, and/or constitute an undue administrative and financial burden sufficient to prevent them from having to provide a specific requested auxiliary aid or service.

OCR has also always contended that there is no financial limitation on what a district would have to pay because in the 504 regulations, the burden imposed is FAPE, not “a reasonable accommodation” which (in the work world) would be limited to those accommodations that could be provided without an overly burdensome cost..

Bottom line?  The Ninth Circuit raised a whole lot more in the way of questions than they answered.    The only principles that one can deduce from all of this with any degree of certainty are that (1) spedlaw is never what it seems, (2) any litigation over spedlaw always involves a roll of the dice.  One might in happier days have turned to Congress to resolve some of these thorny issues.   These are not,  however, happier days.  Mostly, I suspect, school administrators try to do the best they can while thanking God that if their districts are sued parents are barred from getting at their personal cows and chickens if in trying to decide what the law required they guessed wrong.

March 7, 2015 Letter from  Musgrove (OSEP) to Breton (Special Ed Director, Maine) February 23, 2015

Maine is one of three states requiring the assessment for and identification of a processing deficit as a sine qua non for a child to be identified as SLD.  Their entire criteria can be found outlined in their special education form for SLD in their Forms manual (updated since this letter was written to address OSEP’s concerns.)  (Update:  Maine no longer requires the identification of a processing deficit to identify a child as SLD.)

What both I and a Maine advocate, Buckley J. Hugo,  had independently found objectionable was the rigid discrepancy criteria that was formalized within the context of those forms.  On November 25, 2015 OSEP responded to my letter, including a copy of a letter to Mr. Hugo in which they had written him (in part) the following:

Specifically, the LDR requires an IEP Team to determine that the criterion outlined in MUSER §VII.2.L(2)(a)(ii) – i.e., that a child score 1.5 standard deviations below the mean in at least one area of psychological processing or 1 standard deviation below the mean in two or more areas of psychological processing – is satisfied in order for the child to qualify for special education as a student with an SLD as defined in 34 CFR §300.8(c)(10). The LDR also requires that the criterion in MUSER §VII.2.L(2)(a)(iii) – i.e., that a child in grades 4 through 12 obtains a composite standardized score no lower than 1.5 standard deviations below the mean on at least one index/scale of cognitive functioning – is satisfied in order for the IEP Team to determine that a child in grades 4 through 12 has an SLD.   Therefore, OSEP construes the LDR as using a single assessment – here, a test of psychological processing or of cognitive functioning – as the sole criterion for determining whether a child has an SLD

They told me that they were entering into discussions with Maine in order to address those concerns.  Aside from a quick note sometime later saying they were still working on it, I did not hear from them again until today, when they forwarded me a copy of a letter Melody Musgrove, Director of OSEP  had sent  to Janice Breton, Director of the Office of Special Services, in the Maine Department of Education in August, Maine on February 23, 2015.  That letter has not as yet been posted on the OSEP website.   They key passage from that letter, signifying that an agreement had been reached, reads:

Therefore, as you referenced in your letter, we anticipate that MDE will be issuing guidance to Maine School Administrative Units (SAUs) clarifying that the LDR must be interpreted and implemented in a way that does not use a single measure or assessment as the sole criterion for determining whether a child is a child with a disability. In addition, to help ensure that the LDR accurately reflects this IDEA requirement and that SAUs are correctly interpreting and implementing the LDR, MDE may either modify the questions on the LDR or add a notation on the LDR stating that, in accordance with 34 CFR $300.304(bxl) and (b)(2), the LDR must not use a single measure or assessment as the sole criterion for determining whether a child is a child with a disability.

Whether using a model based on discrepancy, response to intervention or, as in three states, at least in part on an assessment of psychological processing deficits that the test scores may be applied in a formulaic, cut and dry reminiscent of North Carolina’s old “fifteen points, but fourteen points you’re not” formula that was even applied to reevaluations,  and even unfortunately to many cases after 1999 when IEP teams inexplicably asked for a student to get a new cognitive and achievement test.   “What, he only had a fourteen point discrepancy this time?  Too bad, so sad, he’s out for now, but maybe he’ll fall further behind when we test him again next year.”

There is an underlying assumption in the IDEA  that the professionals on eligibility groups and IEP teams will apply some professional judgment in these situations, not just rely on a simple mathematical formula to make their decisions for them.   Maine, apparently, was a little slow on the uptake, but they’re almost certainly not alone.   The complete text of the OSEP letter to Maine may be read below.

OSEP MAINE PAGE 1

OSEP MAINE PAGE 2

March 6, 2015 C.W. v. Capistrano United school District, March 2, 2015 (U.S. Ninth Circuit)
Key Words:  IEE, Frivolous Lawsuits, Section 1983, Americans with Disabilities Act
Published?  Yes
Decided for:   Mostly for the school system, with a small amount of relief to the parents
Decision:  The 33 page PDF version of this decision  may be found at:  C.W. v Capistrano Uniited, Ninth Circuit, March 2, 2015

The new word for today is “frivolous.”

In law, frivolous litigation is the practice of starting or carrying on lawsuits that, due to their lack of legal merit, have little to no chance of being won. The term does not include cases that may be lost due to other matters not related to legal merit.

This case started out as a disagreement over an IEE.  The school provided the student with an occupational therapy evaluation.  The parents asked for an IEE because they disagreed with the results of the evaluation.   The school went to due process (which is never really the brightest thing to do regardless of outcome) and won.   The parents subsequently took them to court, suing them (remember, this was just over an IEE) for alleged violations of the IDEA, Section 504, the ADA, and Section 1983 of the Civil Rights Act.   The school system won again and counter sued for attorney fees.  The lower court sided with the school system and awarded them attorney fees for legal actions taken under all four statutes.  The parents appealed, with a partial win (if it can be called that) in that the Ninth Circuit, applying the Christiansburg standard below, overturned the district court judge’s findings that the action undertaken under the IDEA and 504 were frivolous within the meaning of the law, but upheld the conclusions regarding the ADA and Section 1983.  One has to wonder how much local tax money would have been saved if the district had just approved another evaluation since, having lost on the IDEA and 504 claims, the award for legal fees for the school system originally set about $100,000  would be expected after the Ninth’s ruling to be norminal; sometimes just being right is not enough.   Some administrators, however, can’t seem to resist the temptation of gambling with taxpayer money.)

Under Christiansburg, a prevailing defendant is entitled to attorney’s fees only if plaintiff’s “claim was frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so.” 434 U.S. at 422. In considering what constitutes a claim that is frivolous, unreasonable or groundless, “it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” Id. at 421–22. And, “if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney’s fees incurred by the defense.” Id. at 422

If the Ninth had upheld the district court’s decision regarding the IDEA and Section 504, it would have had a dampening effect on parents willingness to advocate for their children’s rights under those two statutes.   I suppose that the tendency of some attorneys to throw every legal argument they can find at a problem in the hopes that one of them might stick might be suppressed, but a careful reading of the case doesn’t exactly show that as having happened here.  The ADA and Section 1983 claims were not raised within the context of special educational issues, but in response to district threats to seek sanctions if the parents continued to exercise their rights of appeal.  The parents and their attorney found that outrageous. The  Ninth didn’t think much of their case  so they found for the school system.   However, it still remains debatable (though in this case moot) whether the attorney’s lawsuit was frivolous on any count.  Not just my lay opinion; also the opinion of the dissenting judge.

March 5, 2015. A.W. v. Middletown Area School District, PA Middle District Court, Jan 28,2015
Key Words:   Child Find, Timelines, Section 504, Compensatory Education, comprehensive evaluation, burden of proof
Decided for:   The parents
Published?  Yes

The case was A. W. et. al. v Middletown Area School District in Pennsylvania.  Like many such cases, it had dragged on for more than a year,  originally being filed  on September 13, 2013.   The basic contention in this case was that the parents alleged FAPE had been denied in part because the district failed to meet state testing deadlines and had as a consequence failed to develop a timely IEP.   They had lost their case at the due process hearing level, so for there to be a reversal, it  was of course more complicated than that.   Since they were the ones challenging the status quo, they were also the ones bearing the burden of proof.

Typically, in these cases, missing timelines does not reach the level of a denial of FAPE and, at least in court hearings, tend to be dismissed as relevant by the judges.   This case, however, illustrated the exception to the rule, because instead of missing the deadline by a couple of days or even a month, this district took 13 months to complete its assessments and offer an IEP, and by that time the parents placed their child in a private school, where his academic achievement soared.   Since the hearing officer had found for the school system, he had not considered what would be an appropriate award.   The judge, overturning the H.O. decision, wrote “Given the Hearing Officer’s expertise in this subject, the court concludes that the Hearing Officer should address the issue of compensatory education in the first instance. The court will thus remand this matter to the Hearing Officer .”

FEBRUARY

February 20, 2015 Alboniga v. Broward Country Public Schools, Florida District Court, February 11, 2015
Key Words/Phrases:   ADA, Service Animals, Exhaustion of Remedies
Published:  Yes
Decided for:   The parents

The child had multiple handicaps, including a severe seizure disorder.   He had a service animal  that was trained to recognize the warning signs of an impending seizure and provide 30 to 40 minutes advance warning.  The Broward County school board said it wasn’t responsible for service animals, requiring the parents to not only provide evidence of vaccinations but also proof of liability.  The parents were also asking the school to provide someone to look after the  dog.  The school system was alleging that the federal government had exceeded its statutory authority in issuing regulations regarding service dogs, which prompted a quick and detailed response from the United States Attorney General vigorously defending the regulation in question.   For the A.G.’s 14 page response  see:

http://www.ada.gov/briefs/broward_county_school_board_soi.pdf

Normally, in cases involving the IDEA or Section 504, exhaustion of administrative remedies would be required before accessing the courts, and the school system also noted, correctly, that the parents had not asked for a due process hearing.    The counter argument:

“Plaintiff does not claim that A.M. has been denied a free and appropriate public education. Plaintiff does not claim that A.M.’s IEP is in any way deficient. Plaintiff does not claim that A.M.’s service animal is educationally necessary, or that the School Board’s provision of A.M.’s education would be impacted by the presence of the service animal. Defendant, in point of fact, agrees. Elsewhere in its submissions, Defendant argues that the service animal is not necessary for or relevant to A.M.’s educational experience – that the services provided by the animal are performed through other means by school staff in order to provide A.M. a FAPE in accordance with his IEP. See Defendant’s Mtn. at 15; Defendant’s Resp. at 6. Plaintiff asserts claims for violation of the ADA and Section 504 regardless of Defendant’s compliance with the IDEA. The IDEA and its administrative scheme are simply not implicated by Plaintiff’s claims here. As such, exhaustion of those procedures is not a prerequisite to this action.”  P. 13 of the decision.  The school continued to argue that providing the services requested would fundamentally change the nature of its services.   The court’s response (“How could it?”) requires no additional comment.    Summary judgment was given in favor of the parent on all counts.

http://allergylawproject.com/wp-content/uploads/2015/02/AlbonigavBroward.pdf

February 12, 2015 S.T. et. al. v. Howard County Public Schools (District Court Maryland, 01/05/2015)
Key Terms: Autism, FAPE, tuition reimbursement, burden of proof, credibility of witnesses, deference
Published?  Yes
Decided for: Howard County Public Schools

Autism  cases continue to dominate sped litigation.   Typically, even when not specifically addressed as an issue, tuition reimbursement claims are the underlying causes of autism litigation.

In this instance, the parents had asked  the court to overturn a hearing officer’s decision.  The school had told the parents that they had a program set up that could fulfill the requirements of the student’s IEP.  The Hearing Officer assessed the credibility of the witnesses for the school system and believed their testimony.   The parents claimed that the Hearing Officer had unfairly  required them to demonstrate that their program would provide FAPE.   The district court judge disagreed, saying that in this case, they only had to prove the district’s program did  not.  The district (and the parents) both asked the judge for a summary judgment.  Two legal principles are worth reprinting here:

“Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P 56(a); Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). A genuine dispute about a material fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When reviewing a motion for summary judgment, the court must look at the facts and inferences drawn from there in the light most favorable to the non-moving party.”  (Judge Motz’s decision)

The legal standards in proving a tuition reimbursement claim:
(1) The party challenging the status quo bears the burden of proof.
(2) The parents must prove that the school system’s IEP would not provide FAPE
(3) The parents must prove that their private school did or would provide the child with FAPE

The school’s request for summary judgment was granted.

February 7, 2015 M.W v. Brd. of Educ. of Fayette Cty, KY , et al., January 14, 2015. E.D. of Kentucky
Key Words: Autism,   exit criteria, burden of proof
Published?  Yes
Decided for:  The school system

The school had contended that the student was making appropriate progress academically and was adapting well  without special educational services.   Neither the hearing officer nor the judge found the parent’s argument, that the student continued to have problems at home or in the community, persuasive.   The party challenging the status quo bears the burden of proof and the court held that the parents had failed to meet that burden.

In the words of the court:

The Board has adduced that Q.W. experienced no educational problems in the school setting, and the plaintiffs have not presented sufficient evidence to the contrary. The preponderance of the evidence – the standard articulated in § 1415(i)(2)(B) of the IDEA – favors the Board. While “educational performance” may be understood to extend beyond the four corners of a report card to include a student’s classroom experience, it does not include the child’s behavior at home. Social and behavioral deficits will be considered only insofar as they interfere with a student’s education. Here, they do not. Q.W. is not eligible for special education because his educational performance is not significantly below that of his same age peers.

JANUARY

January 16, 2015 J.T. ex rel. A.T. v. Dumont Pub. Schs.,New Jersey Superior Court, 11/14/2014
Key words:  autism, neighborhood schools, discrimination, LRE
Published?  Yes.
Decided for:  The school system

Dumont Public Schools had inclusion classes providing services to children with autism, and they assigned a child to that school a few miles further from his home.   A federal court judge had dismissed the IDEA claims back in 2009 because the evidence showed that the student had been receiving benefit from his inclusion class and because the parents had not exhausted all administrative remedies before going to federal court.   That alone would have proven fatal to parents’ claims in virtually all federal courts. Their claims under the NJ statute were dismissed without prejudice because the federal judge ruled that settling claims under state laws was outside his jurisdiction.   The parents appealed to the Third Circuit Court which upheld the magistrate’s  decision and emphasized that the IDEA permits schools to provide services in a centralized location.

The New Jersey law did not require exhaustion of administrative remedies, so apparently the parents thought they had a chance with the state court system to get a ruling they were unable to get from the federal court system.   Their argument was that by placing the child in non neighborhood school, everyone would know that he was disabled, a violation of his rights; and that the inclusion class in the non neighborhood school could just as easily be provided in the neighborhood school.   The Supreme Court held in a 33 page ruling that since the child was receiving FAPE under the IDEA  the parents’ claims were without merit.  The case was published and in NJ can be relied upon for  precedent.

The final decision, summarized, was

Because here, the alleged discriminatory component, the location of the services, was part of the comprehensive IEP developed to provide A.T. with a FAPE, and did so provide, plaintiffs have not demonstrated a prima facie claim for disability discrimination under the [New Jersey Discrimination Statute].