Table of Contents
October
October 5, 2018
Q and A. Is there research supporting the use of a ticket-based token system school-wide as part of implementing PBIS in general education?
Although the mandate in the ESSA is for interventions, including behavioral interventions, to be evidence-based, the standards therein provide a great deal of flexibility in terms of the level of evidence necessary for compliance. The OSEP-sponsored PBIS website (www.pbis.org) contains an abundance of research showing that strategies based on positive reinforcement have been effective in reducing behavioral problems in public schools.
Providing a rationale based on high quality research will, when direct evidence for a specific intervention is lacking be sufficient to comply with federal standards, Providing, of course, that there are on-going efforts to document the effects of that strategy or intervention.
The “ticket” plan referenced above is just one version of a school-wide token economy, a type of intervention for which numerous research articles are available. (Tokens could also be plastic chips, slips of paper, stickers, etc.), Three examples of reviews available on-line follow. Additional citations and bibliographies can be found using “token economy” and “research” as search terms in Google.
The Token Economy: An Evaluative Review
For additional resources and a link to state based PBIS websites, see our Resource/Positive Behavior Interventions and Supports section.
Research has shown that token economies not only can result in decreases in classroom behavioral problems but also be ins.trumental in improving school attendance and academic performance.
The reason that using positive behavior interventions and supports has become such an important factor in school life is not about improving the behavior of an individual child. It has achieved such importance as a part of a national endeavor to improve school climate and to reduce the violence we’re seeing in the seemingly endless series of school shootings. In the early years following Columbine, experts focused on identifying threats and how to respond appropriately. The problem was then and is now that school shooters did not and do not fall into any particular profile. Hence the addition of preventative measures by improving school climate in the latest offering from the Secret Service in July 2018.(Step 7). The goal, however, is not just to reduce the chances of a teacher or student being shot by another student but also to reduce school bullying. improve attendance, and improve academic performance. Employing a token economy is just one of many factors that were cited in the publication above. The teachers themselves have front row seats when it comes to school climate, and their expertise should be valued and sought after in developing any school-wide plans.
Research supporting token based economies will not by itself be responsive to teachers’ underlying issues. One unspoken question being asked is, “Why is this even relevant? I’ve been teaching for twenty years, everyone says I’ve been doing a great job, and I never had to cut out a single ticket or give out a single token. Why now?” Putting a school-wide token system within the context of a larger initiative to improve school climate, to reduce bullying, and as part of a multi-tiered continuum of interventions available to all general education students, not just children with or suspected of having disabilities, might be helpful in making general education PBIS intervention seem more palatable. Also, many teachers are already giving out stickers to reward student performance. A token system is just an expansion and systematization of something many have already been doing. And, of course giving out grades is in and of itself a reinforcer.
Putting your ticket or token system within the larger context of PBIS also opens up a slew of additional resources. OSEP in addition to its own PBIS website supports state organizations devoted to the same principles. A reader can find his or her state organization on its PBIS Partners Web Page. h an important part of the federal government’s safe schools initiative, the state education agencies themselves usually have posted helpful information as well. An interested party can access that information by using Advanced Google Search, typing in PBIS as the search term, and the SEA home page under “Site or Domain.”
School-wide PBIS initiatives have also been supported by the NEA. That support is expressed in a publication entitled Positive Behavior Interventions and Supports: A Multi-Tiered Framework that Works for Every Student.
That article nicely explains how school wide positive behavior interventions and supports are just the first part of a continuum of interventions available to all general education students.
Teaching is a stressful occupation, and change, whether good or bad, adds to that stress. It’s important, to empathize without necessarily agreeing to every proposed solution (e.g., “Let’s do nothing at all..”) . Adding even a feather’s worth of stress to a work situation that for some teachers has already become overwhelming can evoke a disproportional emotional response. . We’ve all been there at one time or another in our professional careers. An administrator makes what appears to be an arbitrary and capricious change to our working conditions and it’s all we can do to keep from piling the folders of untested children on the secretary’s desk and walking out forever. “You’ve moved my mailbox to the other end of the building? Do you know how much time I’m going to waste walking twice as far every day? Take this job and shove it.. I’d rather work at Hardees.”
Nevertheless the importance of buy-in cannot be overstated. Heartland AEA 10 found in the early days of implementing the problem solving model (RTI) that without fidelity monitoring teacher implementation of an intervention at Tier III tended to fall off after two weeks, and sooner if the teacher did not think the intervention was working. School-wide interventions are basically Tier I interventions, and no one is suggesting that Tier I interventions be monitored for fidelity of implementation. However, teachers have front row seats for identifying their school’s needs. Theirs is a resource that should not go untapped.
August
August 30, 2018.
Maine SLD Update. Maine used to require test results showing a psychological processing disorder as a sine qua non for the identification of SLD. After a complaint from OSEP, they eventually dropped that requirement for identification.
The revised form was called LearningDisabilityEvaluationReport-3
The question that must be answered “Yes” now is “Does the child exhibit a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, state-approved grade level standards or intellectual development that is determined by the IEP Team to be relevant to the identification of a specific learning disability, using appropriate assessments?”
The team in answering that question may consider psychological processing data, but it is optional. Other sources of information include data gathered from an RTI intervention process, classroom performance, and state achievement data.
The key paragraph from their SLD guidance in its entirety:
The Option to Administer Processing Measures
While documentation of a processing disorder is no longer required to identify a specific learning disability, PPTs may consider a student’s performance on processing measures as needed. For example, if a student appears to have a learning disability in reading, measures of phonological processing may help to provide information about her or his overall strengths and weaknesses in the oral language abilities that are foundational for reading, when given as part of a broader evaluation that also includes other measures of language and reading. In addition, measures of working memory may sometimes be useful, because students with a comprehension component to their reading difficulties often have problems with working memory (Nation, 2005). As another example, measures of executive function or fine motor skill may be helpful as part of a broader evaluation of a student who has difficulties with written expression (Hooper, Swartz, Wakely, deDruif and Montgomery, 2002). Teams should take care to use technically adequate processing measures that are relevant to the student’s domain of difficulty (e.g., reading, math or written expression), and to interpret those measures in the context of other information, such as information about appropriate instructional strategies and response to intervention. It is important that the information collected be useful in planning appropriate instruction and programming for the student.
August 18, 2018.
Nelson v. Charles City Community School District, Eighth Circuit, August 15, 2019
Decided for: The school system
Key words: Exhaustion of administrative remedies
The parents in this case were suing because they thought their application under the school system’s open enrollment policies had been mishandled and that their child had been discriminated against.
It’s only interesting because they had gotten the compensatory services they had asked for but were suing for compensatory and punitive damages. The parents claimed that they hadn’t mentioned the IDEA in their complaint so they shouldn’t have to exhaust administrative remedies before getting a hearing in court. The court considered their argument within the context of three exceptions to the exhaustion requirement:
There are three exceptions to the exhaustion requirement in the IDEA context: “(1) futility, (2) ‘inability of the administrative remedies to provide adequate relief,’ and (3) ‘the establishment of an agency policy or practice of general applicability that is contrary to law.’”
The court then asked the two questions framed by the Supreme Court and answered both of them “No.”
The court then ruled that the above exceptions did not apply. The court also ruled that if what was requested under 504 (or any other civil rights law) could be obtained through the IDEA, then it became a denial of FAPE case AND they were required to exhaust administrative remedies first. And the court found that this was at its heart a denial of FAPE lawsuit.
In the words of the court:
Because they did not invoke the administrative process, we can only speculate about educational opportunities that might have been available to provide C.N. with a free appropriate public education. Under the statute, however, it is the responsibility of parents to bring their grievance in that manner if they wish to bring a lawsuit alleging the denial of a FAPE. Frustrating though it may seem to parents struggling to manage a difficult educational situation for a child with special needs, the law does not allow them to forego the administrative process and seek later to recover damages to compensate for their own self-help remedies.
Berardelli v. Allied Services Institute of Rehabilitation Medicine, No. 17-1469 (3d Cir. 2018)
Key words; Service animal, Section 504
Decided for: The parent
This is a lawsuit against a dePaul school, which was operated by Allied Services (above). The decision ran 37 pages and reversed a district court decision wherein that court had wrongly instructed a jury. As is usually the case when a circuit court disagrees with a district court judge, the case got remanded back for further adjudication.
The details of this case are as also so often the case heart breaking. The child needed a service dog on the advice of her physician because of a seizure disorder. She was also diagnosed with dyslexia She applied to and was accepted by the dePaul school which specialized in teaching children with dyslexia. But the child’s need for a service dog that helped with her seizure disorder by alerting others when she was having a seizure almost immediately became problematic. First the school told her mother that she couldn’t have the dog in school because would be a distraction and later that another child was allergic to dogs. After the parents of that child called the school and told them that their child was being treated for allergies and that they did not want the dog excluded on their son’s behalf, the school allowed the dog back. Although the principal had relented, he demanded that the dog wear a therapeutic shirt designed to decrease allergens. Unfortunately, the shirt caused the dog to become overheated, and as a result poor Buddy failed to notify staff when the child had a seizure.
Cutting to the chase, the real issue before this court was whether or not having a service dog at school was a reasonable accommodation and whether the school should have provided that accommodation. The Third Circuit court concluded that by law it was a reasonable accommodation and should have been provided. That’s not what the district court had told the jury, however, and so the case got remanded back. Most of the discussion in this decision was about why it disagreed with the district court judge. Worth reading if you’re an advocate for a child with a service dog and a school that’s barring that dog, but otherwise probably not worth the extra time.
Lawton and Johnson-Lawton v. Success Academy. Charter Schools. Inc, District Court, August 1, 2018
Decided for: The Parents, in part
Key Words: Code of Conduct, Discrimination, Section 504, exhaustion of administrative remedies
This is another non decision regarding the merits of a case. The facts of the case are none the less unusual. The five children with disabilities involved were held to a strict code of conduct and, when they could not meet the standards, they were repeatedly suspended and their parents pressured to remove them from school. They were even told if they didn’t come and pick up their kids right away, law enforcement would be called. Turned out that the principal had a “Got to Go” list on which those students appeared. His goal was to get the kids out of his charter school, believing that if he did not, he could not turn the school around.
Now obviously if the complaint was about a denial of FAPE, then the parents would have had to exhaust administrative remedies before going to court. Parents can only go straight to court if the gravamen of their complaint is something other than denial of FAPE. And judges have some discretion in determining whether those complaints are substantive or just artful subterfuges on the part of the attorney to bypass the exhaustion of administrative remedies requirement. The Supreme Court standard consists of two parts that a judge must ask.
“First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school . . . have pressed essentially the same grievance?”
If a judge answers both the above questions “Yes,” then the lawsuit may proceed. Where this principal went wrong was putting these kids on a special written list and even threatening to call the police if the parents didn’t come to get them. That is potentially (well, actually) discrimination. It would have been discrimination if a librarian had done it. It would have been discrimination if that same librarian had put disabled adults on a “Got to Go” list.
The parents failed to show that the school setting was actually a hostile learning environment; and it had failed to file within the 90 days required by state (NY) law. Those were the only claims dismissed. The school remained on the hot seat for everything else.
August 15, 2018. Education Department Determination Letters on State Implementation of the IDEA. Only 21 states were fully compliant. To check out whether your state was compliant, click on the Education Department’s July 24 letter at the link above.
August 12, 2018. Board of Education of the North . Rockland Central School District. v. C.M, Second Circuit, 8/1/2018
Key Words: Statute of Limitations
Decided for: The school system
This case was decided on virtually the same principles as in a decision I reported on August 4. The circumstances of this case, however, were not as unusual. The parents had filed for a due process hearing to consider both IDEA and 504 claims. The hearing officer declined to hear the 504 claims, but found the IDEA claims untimely. The state review officer confirmed. The district court confirmed. I have to note that the actions that were before the circuit court occurred back in 2011 or at the latest 2012. If the goal had been to get some help for their child, even if they had prevailed seven years later (and this case wasn’t about the substantive issues, so it would have been more than 7 years), help would have been a bit slow in arriving.
The parents were arguing that a three year statute of limitations should apply for 504, they argued that the time should be tolled from the time they realized how much their child was harmed by the district decision, and they argued that they didn’t know their rights so they shouldn’t be penalized for not doing something they didn’t know they should do. The court ruled that the limits must be tolled from the time the action they were litigating occurred, not from the time they realized it was harmful. The court also ruled that the parents knew or should have known their rights because the district had provided them and knew or should have known that the district’s refusal to provide residential services would hurt their child three years before first filing a complaint.
The court concluded, “We agree with the district court that this timeline shows that “Parent knew of her rights no later than August 2012,” which means that even if we applied the Withholding of Information Exception, Parent’s IDEA claims remain untimely because she should have filed them by August 2014 at the latest”
It’s a seven page decision, but worth reading in its entirety, because while not applicable here, the circuit court provided a handy dandy summary of those circumstances under which the statute of limitations would NOT apply.
But the real lesson for a school system is quite simple: Keep good records. Because even if your actions are questionable, good records might still save you.
August 4, 2018.
The two decisions summarized below were based on Section 504 of the Rehabilitation Act. In both decisions, one from New Hampshire, the other from Massachusetts,for the most part the parents lost but for very different reasons. (In both cases, the parents did win on one relatively minor point.) In Elizabeth Tveter’s case, in brief, the parents lost on most of their claims because (1) they had failed to exhaust administrative remedies and (2) even though the public school system was paying for her (along with other children) to attend a private school, the public school was not culpable for the private school’s failings. Readers are reminded additionally that district court decisions carry no precedential value outside their own catchment areas.
Tveter v. Derry, NH District Court, July 20, 2018
Key Words: Discrimination, ADA/504 compensatory education, exhaustion of administrative remedies
Decided for: The public school system
A girl attending a private school, PInkerton, paid for by her home district, Derry. She suffered a traumatic brain injury outside the school system. Returning to Pinkerton, she was harassed by fellow students and even a coach, and the private school did little or nothing about it. The parents requested a hearing under 504, and the hearing officer’s conduct of the hearing in and of itself was disturbing.
“The hearing officer did not allow Elizabeth to submit evidence within five days of the hearing, did not give her money to copy documents that were necessary to present her case, permitted school officials to admit records from Holly’s divorce, did not allow Elizabeth to present claims that were not based on § 504, did not allow Holly to complete her cross examination of certain witnesses, and did not take Holly’s own unspecified disability into account. Doc. No. 40 at 90-92.”
The judge dismissed all claims relating to FAPE because the 504 hearing didn’t count as an IDEA due process hearing . . . the parents thought they had done what they were supposed to have done, but failed unknowingly to dot the prerequisite i’s or cross the mandated t’s. It’s almost heart breaking. The judge in this case relied upon section e of the 300.516 of the IDEA 2006 Part B Regulations. The court edited it (for clarification) to read::
Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], Title V of the Rehabilitation Act [including § 504], or other federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA’s administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA]. (Editing by the court.)
All of the claims against the public school system were dismissed because the parents failed to show that the Derry public school knew what was going on. And thereby, of course, failed to show that Derry’s alleged inaction shocked the conscience or that they could be considered culpable..
The private school almost got off scott free, but the coach’s behavior toward the girl was bizarre. The judge did leave that portion of the parent’s lawsuit intact. (The private school had argued that part should be dismissed too, because physical education was a related service. However, it wasn’t listed as a related service in the student’s IEP, and nobody was claiming that it was needed for the child to receive FAPE.)
It is in many ways a puzzling case. For example, one of the reasons why the judge rejected the school’s argument that P.E. was a related service was that it wasn’t listed in her IEP and nobody claimed it was needed for her to receive FAPE. But she didn’t have an IEP, another reason why the parents didn’t think they had to exhaust IDEA requirements. They had applied to the NH SEA several times for services, but they had been told since the student was only on a 504 Plan she didn’t qualify for an IEP.
That was of course technically true, but it wasn’t that she didn’t qualify . . . she COULDN’T qualify. The problem for the parents was that in order to be identified under the IDEA one must be evaluated first. The judge in this case blamed the parent for not requesting that the child be evaluated for services under the IDEA. If they had, and the child had been found ineligible then they could have requested a hearing under the IDEA. Words are important, and the parent’s complaint included a demand for services under the IDEA . . . which, since out of their own mouths was more or less an admission that what they wanted could have been provided under the IDEA and they hadn’t had a hearing under the IDEA meant that any claims that might have been made under any law were forfeit.
The judge’s decision: “All of the Tveters’ claims are dismissed except Elizabeth’s sports-related ADA and Rehabilitation Act discrimination, harassment, and retaliation claims against Pinkerton and her negligence claims against Pinkerton and her former field hockey coach, Jennifer Resmini.” Of course, while damages may be obtained from school systems for acts that shock the conscience, they would not be available under 504, at least, from individual teachers. State laws, however, vary on that issue.
*********
Which brings us to the next 504 case. In this case, the parents had had their child evaluated, and had requested a hearing under the IDEA, not once but three times. Unfortunately, they did not make any of the requests at the time they disputed services and, with respect to the first two. requests failed to follow up. By the time they got around to making their third request, more than two years had lapsed and were time barred.
Katelin O. v. Massachusetts Bureau of Special Education Appeals, July 20, 2018
Key Words: Dyslexia, tuition reimbursement
Decided for: The School system
In some ways a very unusual case in that the student involved graduated from high school in 2014, and what the parents were seeking was reimbursement for a year’s worth of schooling post high school. Since the basis for most of their claims was time barred by the statute of limitations, their case for tuition reimbursement was ultimately based solely on the fact that for six weeks at the end of the school year the school system had failed to provide the student with agreed upon services under 504. The parent had asked for Katelin to be provided with an IEP but the school had denied the request and opted for a 504 Plan instead. The parent disagreed but never appealed. The parent had provided the school with their own IEE but denied the school’s request to complete its own evaluation. (Schools generally are entitled to their own evaluations, but that does not appear to have been a factor here.)
In short, the judge agreed with the Massachusetts BSEA but left the claim for compensation for six weeks missed services intact. Claims for tuition reimbursement are addressed by a fairly simple principle applied to every tuition reimbursement case, but I’ll make it even simpler here: (1) The school failed to provide FAPE or a plan reasonably calculated to provide FAPE. (2) The private school did provide appropriate services. In this instance the judge ruled that the services provided were NOT appropriate. So even if a six week lapse in services could be construed as justifying tuition reimbursement for a year in post graduate private school, which would have been a really tough row to hoe in and of itself, in this instance it wouldn’t have mattered because the gap year school didn’t meet the federal standard anyway.
In addition to the above, one rather important principle of law was re-examined and re-applied. The parents were arguing that the statute of limitations under the IDEA should not apply to a 504 case or to an adult. Their arguments failed on both counts. (A two year statute of limitations is included in the IDEA Part B regulations, BUT states may override with their statute of limitations. For example, in NC, it used to be 90 days. Current regulations give the parents one year, not two, to file a complaint.)
ORDER
For the foregoing reasons, Dennis-Yarmouth’s motion for summary judgment is ALLOWED as follows. All claims arising from events prior to April 4, 2014 are DISMISSED. Katelin’s cross-motion for summary judgment is ALLOWED with respect to the FAPE violation that occurred between May and June of 2014. The parties will meet to agree on a suitable compensatory sum to be paid to Katelin and her parents for that violation and report to the court within thirty (30) days of the date of this decision on the results.
.
July
July 28, 2018
Parrish, et. al. v. Bentonville School District, 8th Circuit, July 24, 2018
Key Words: autism, FAPE, exhaustion of administrative remedies
Decided for: The school system
Most commonly higher courts have one of two choices to make. “The district court got it right, so you losers get over it,” or “The district court judge applied all or some of the wrong standards, so we’re sending it back to him/her so hopefully s/he can get it right this time.”
This is an example of the first type of decision.
Two of the parents apparently tried to coat tail on the lawsuit by two other parents after the SEA rejected their appeal. Their claims were dismissed by the district court out of hand because those parents had not exhausted their administrative remedies first. The parents of the other two children had also objected to the use of physical restraint to protect the child or others as a last resort, but the judges concluded that it was not conducted in such a way as to deny the students FAPE. A day before the court hearing, the parents had provided the school system with a written report from their “expert,” but the district court judge excluded it because it had not been submitted in a timely manner. The circuit court held it was well within the district court judge’s discretion to ban it as have decided otherwise would have meant granting the school system a continuance, interrupting the court’s already busy schedule . . . and that, besides, “The report contained pages of general information about the statutes giving rise to the claims and then formed conclusive opinions with virtually no specifics or detail about the District’s alleged failures,” rendering its exclusion harmless. (Because it wouldn’t have helped their case.)
It’s almost never a good idea to skip the due process hearing and an administrative review at the state level before asking a federal judge to interview in a sped case. (Not all cases involving disabled children, however, are necessarily spedlaw cases. Just almost all.)
The circuit court concluded the district court judge got it right the first time around.
“Upon review of the record and the deference afforded in these types of cases, we agree with the district court that Child L and Child A failed to establish a cognizable claim under the IDEA, § 1983, § 504 of the Rehabilitation Act, or the ADA. The district court properly dismissed Child S and Child’s G’s claims for failure to exhaust administrative remedies. The district court did not abuse its discretion in excluding Dr. Knoff’s expert report.”
Guy McBride, SP, Retired
July 28, 2018
T.B. v. Prince George Board of Education, Fourth Circuit July 26, 2018
Decided for: The school system
Published: Yes
Key words: FAPE, anxiety disorder, testing timelines
The principle applied in this case was that a minor procedural error that does not result in a loss of FAPE does not entitle parents to compensatory education for their child.
In this case, “the “finding that T.B. would not have attended school even if he had been tested” supported the “conclusion that the procedural failure to respond to [T.B.’s parents’] request for an evaluation did not actually interfere with the provision of” a free appropriate public education” was crucial to the overall conclusion that the district had provided FAPE and the timeline violation did not deny him FAPE.
Knowing the outcome may make this sound like a slam dunk for the school system or, at the least, an obvious win for the school district. But that is not the case.
The student had been having problems for two years . . . yes, two years . . . before the school system decided it had better evaluate him. The results of that evaluation showed him as eligible under the IDEA as ED.
The hearing officer’s decision, upheld by both the district and circuit courts, “was reached following a 6-day, 21-witness, 95-exhibit hearing, and represents the culmination of 67 specific factual findings.” The circuit court decision was handed down by a three judge panel. Curiously, from this reviewer’s perspective, one of the judge’s, while concurring in the judgment, was extremely critical of the school system; one of the kindest words used was “lackadaisical.”
There’s more. While the boy’s problems began in 2012, the school system was unresponsive to the parents’ request for an evaluation. So they got an IEE at their own expense and asked that the district pay for it. The district refused. The IDEA only requires schools to pay for an IEE if a parent disagrees with an evaluation conducted by the school system. The parents eventually got paid for the IEE, but not any services, from the district court judge who (and without reading that court’s decision) apparently concluded that disagreeing with a school system’s refusal to test was sufficient grounds for reimbursement.
So here we are in 2018. The boy started high school in 2012 so, presumably, he graduated in 2015 or 2016. Even if the parents had won, at this point in the game . . . and this isn’t peculiar to this case . . . what people appear to be arguing spedlaw, the bottom line is that this late in the game it’s mostly about money.
In short, I suppose, although this case is precedential ,agreeing to test a student when parents have been seeking help for years only when they have invoked their right to sure is still, this school’s success not withstanding, probably not a good idea.
July 23, 2018
JACK J., through his Parent JENNIFER S., v. COATESVILLE AREA SCHOOL DISTRICT, District Court, July 18, 2018
Key Words: Consent v. Notice
Decided for: The school system
Cutting to the chase, the parent sued under the IDEA alleging that the school system had failed to provide her child with FAPE.
The parent lost this case because (1) the hearing officer found that the IEP proposed (as well as the IEP subsequently enacted) would have provided and did provide the child with FAPE if (2) the parent had signed the consent (in PA called a Notice of Recommended Educational Placement or NOREP) for the initial provision of services. So the child did not receive any services during the period in question. When the parent realized she had to sign the consent, the district immediately implemented an IEP for the child. The parent’s dissatisfaction did not end there, however.
The parent’s contention was that neither the proposed IEP or the enacted IEP provided sufficient levels of support with respect to study skills. The district countered that the IEP did indeed provide for assistance in developing organizational skills. The district’s case was bolstered by the fact that the student was at grade level in all areas, receiving A’s and B’s in some subjects.
The district judge dismissed the parent’s case “with prejudice.” Despite the above, this case could have gone either way in this reviewer’s opinion, because the uncontested evidence showed:
“(a) Jack was supposed to be provided small group instruction in a learning support classroom, but never was; (b) teachers admitted to not following his IEP in major respects; and (c) Jack’s teachers felt free to ignore the requirements of the IEP based on their own personal judgement as to whether agreed-upon supports were `necessary.'”
Not the best place to begin your defense. So this wasn’t quite the slam dunk that it would appear to be, but the court’s finding that the deviations above were de mnimis pretty much closed off that line of argument. Still . . . in situations where school teachers think implementation of an IEP is “optional” doesn’t always end well. (See Doe v. Withers, 1993*) The lawyer for the parents basically threw in everything but the kitchen sink, which a good spedlaw attorney will always do. The attorney did raise an ADA issue not addressed at the hearing, and dismissed for failure to exhaust administrative remedies, but in all likelihood it would have been dismissed by the hearing officer (who dismissed their 504 claim) anyway. Which reinforced our oft repeated advice, “If you have a real adversarial situation, you need a real attorney.” Preferably one specializing in spedlaw, definitely one specializing in education law.
For a discussion of the difference between Consent and Notice (with particular emphasis on PA’s NOREPs) see: Consent v. Notice (Sweet, Steve s Katz, and Williams, LLP)
- Although the court in Doe v. Withers imposed damages and punitive damages against Withers in that 1993 decision, subsequent litigation in other venues made it clear that while compensatory education and (after 1997) attorney fees were available under the IDEA, damages were not. Poor Withers got the short end of the stick.
June
June 29, 2018, 4:24:11 PM EDT, OSERS Office of the Assistant Secretary delays disproportionality rule
Final Rule on Significant Disproportionality:
Compliance Date Postponed Until July 1, 2020
Dear Colleague:
Today, the U.S. Department of Education (Department) placed on public inspection in the Federal Register a final rule concerning the Department’s significant disproportionality regulations published December 19, 2016.
With this publication, the Department has postponed the compliance date for implementing the significant disproportionality regulations by two years, from July 1, 2018, to July 1, 2020. The Department has also postponed the date children ages 3 through 5 must be included in the analysis of significant disproportionality, from July 1, 2020, to July 1, 2022.
As we stated when we published the notice of proposed rule making for the postponement on February 27, 2018, we have postponed the compliance date in order to thoroughly review the significant disproportionality regulations and ensure that they effectively address the issue of significant disproportionality and best serve children with disabilities. This review is part of the Department’s regulatory reform activities pursuant to Executive Order 13777, “Enforcing the Regulatory Reform Agenda.” It is important to note that States must continue to meet their statutory obligation to make annual determinations as to whether significant disproportionality exists in their LEAs.
May
May 31, 2018.
Litigation Update (Two case)
Beecham v. Roseville City School District DistrictCout of Califnornia 31 pages April 25, 2018
Key Words: 4th Amendment, Section 1983, excessive force, “seizure”
Decided mostly for the parents.
Seizure here is defined as a restraint upon liberty to such a degree that a reasonable person would not feel free to leave. The court determined that in the case of three and four year old preschoolers with autism and speech problems, it was unlikely that they would have felt free to leave so the parents claims against the teacher were allowed to proceed. Some claims against the administrators were dismissed. It’s complicated, and anyone, especially anyone in California, confronted with a lawsuit where an employee and the school system are being sued because a teacher allegedly used excessive force against a student would find this informative reading.
This is not a particularly important case as cases go, but it is a complicated case, more so than it would appear on the surface, when the only real issue here was whether or not a parent could actually sue a school system. It is even more complicated because the parents listed twelve specific claims against the school system, and those twelve did not actually include ALL the claims made. But they are the only claims addressed in the decision above. Some claims against the administrators were summarily dismissed because they had in fact tried to address the situation. Most but not all claims against the teacher were allowed to proceed. Frankly, what I’ve gotten out of this case has nothing to do with the decision itsel but that the incidents described occurred as far back as 2013 and the parents filed in 2015. Only now has the green light been given for the case to proceed. That could conceivably take several more years to complete especially if appealed to the circuit court and then remanded back (again) to district court.
Guy, SP, Retired
Excerpts from the decision are pasted below.
Plaintiffs sued Ms. Van Wagner, Principal Rooks, Superintendent Jorgenson and the District in May 2015. ECF No. 1. The operative, amended complaint makes the following eleven claims:
42 U.S.C. §1983 Excessive Force, Equal Protection, and Substantive Due Process claims against Ms. Van Wagner, Rooks and Jorgensen (Claim 1);
California Civil Code § 52.1 (“Bane Act”) claims against all defendants (Claim 2);
Americans with Disabilities Act (“ADA”) discrimination claim against the District (Claim 3);
discrimination claim against the District (Claim 4);
Battery claim against Ms. Van Wagner (Claim 5);
Intentional infliction of emotional distress (“IIED”) claim against all defendants (Claim 6);
Negligence claim against all defendants (Claim 7);
Negligent supervision claim against the District, Rooks and Jorgensen (Claim 8); Violation of mandatory duties claim against the District, Rooks and Jorgensen (Claim 9) ;
Unruh Act claim against all defendants (Claim 10);
Education Code section 220 claim against the District (Claim 11);
and a Title VI Civil Rights Act claim against the District (Claim 12).
The parents claim 5 was not supported in the brief prepared by their lawyer and claims 3 and 4 were dismissed because the evidence did not support them. The judge as a result ordered the following to proceed to trial:
1. Claim 1: Section 1983 excessive force and equal protection (All Minors v. Ms. Van Wagner);
2. Claim 2: Bane Act (S.Y.B. and E.V. v. Ms. Van Wagner);
3. Claim 5: Battery (S.Y.B. and E.V. v. Ms. Van Wagner);
4. Claim 6: IIED (S.Y.B. and E.V. v. all defendants);
5. Claim 7: Negligence (S.Y.B. and E.V. v. all defendants);
6. Claim 8: Negligent supervision (S.Y.B. and E.V. v. Rooks, Jorgensen, District);
7. Claim 9: Violation of mandatory duty (S.Y.B. and E.V. v. Rooks, Jorgensen, District);
8. Claim 10: Unruh Act (S.Y.B. and E.V. v. Ms. Van Wagner); 9. Claim 11: Education Code section 220 (S.Y.B. and E.V. v. District)
Price v. Commonwealth Charter Academy – Cyber May 17, 2018, District Court
Key Words: School reimbursement for attorney fees
Decided for: the parents
A more typical case where a school tries to get the parents who lost a court case to reimburse them for their attorney fees — which can be neatly summarized as, “Nice try but no cigar.”
What it was all about was that the parent had won at due process but was seeking through the court to enforce what she had won. However, she failed to file her claims in a timely manner so her claims were dismissed.
The school system then filed a counter claim for attorney fees claiming her sole purpose in suing was to harass them.
The judge however concluded,
“Here, Plaintiff is proceeding pro se, and apparently filed this civil action under a belief, valid or not, that the minors had been deprived of their proper educational services and that the terms of the Decisions were not fully honored. Plaintiff was successful at the administrative due process hearings, and pursued further remedies. Though Plaintiff was unsuccessful here, this Court cannot conclude, on the present record, that Plaintiff filed this action for an improper purpose, or that Plaintiff’s pursuit of this litigation was frivolous or without foundation. Accordingly, this Court declines to award attorneys’ fees to Defendant CCA.”
Guy, SP, Retired
Pro Se
For one’s own behalf; in person. Appearing for oneself, as in the case of one who does not retain a lawyer and appears forhimself or herself in court.
Just being wrong — or late — does not make a parent a bad person under the IDEA.
May 25, 2018,
Litigation Update.
LRP reported recently an Order by a district court judge in Massachusetts, Jane Doe v. The League School of Greater Boston, May 3, 2018. The decision in this Title IX sexual harassment case was itself not of earth shaking relevance to the rest of the world, as all the court really decided in this case (which has already been dragging on for a couple of years, apparently) was to deny the school’s motion to dismiss. The reason based on eight pages of background (which frankly I’ve not read) was
” Doe has shown that genuine issues of material fact exist as to when League School knew of student-on-student harassment so as to trigger its duty to respond as well as to whether League School’s response to A.B.’s known conduct was clearly unreasonable.”
What is important about this decision is that it reminds us of how important it is for school employees to report and for school administrators to address sexual harassment claims. (Title IX only applies to sexual harassment claims, not to other types of harassment.) Damages are available under Title IX only if claims of sexual harassment are met with deliberate indifference from school administrators and in that respect are similar to lawsuits under Section 504. The right to sue is additionally limited to those instances where someone other than the actual violator is aware of the harassment, e.g., if a teacher molests an elementary student and the school doesn’t know about it, the school should not be liable for damages under Title IX.
Sexual harassment is a topic that is currently much talked about with respect to Olympian gymnasts and swimmers in university sponsored programs, but as meritorious as those claims seem to be, in schools it can get ridiculous, e.g., suspending a five year for pinching a little girl’s bottom, or suspending a six year old boy who kissed a six year old girl without her consent based on his having violated the girl’s rights under Section IX. (For more details on those cases as well as actual court cases involving Title IX, see our web page, Spedlaw/OCR/Title IX. )
Virtually all of the lawsuits I have reviewed alleging sexual harassment and seeking monetary damages have been against educational institutions receiving federal funding not against on individuals. Title IX does not impose any liability on a person actually committing the act of sexual harassment. Principals and teachers can of course be sued individually under Title IX, but those claims are almost always (always?) dismissed because Title IX applies to federally funded institutions, not to individuals. (Note: Anybody can be sued for anything at any time, even if the law is on their side.) For a more detailed discussion see:
However it is indisputable that if a school administrator is deliberately indifferent to reports of sexual harassment, he or she under the laws of some states can be prosecuted, e.g., a former Penn State President who was found guilty of a misdemeanor last year for failing to report allegations that had been shared with him to law enforcement in the Jerry Sandusky case
Title IX is also prohibits discrimination in athletics based on sex, e.g, discrimination in any of the following athletic situations could trigger a Title IX complaint to OCR. According to OCR the following factors would be considered;
- The particular sports and levels of competition selected by an institution to accommodate members of both sexes
- The quality and quantity of equipment and supplies that are provided to teams of each gender
- The scheduling of games and practice time
- Travel and per diem allowances
- Opportunities to receive coaching and academic tutoring
- Compensation of coaches and tutors
- Provision of locker rooms, as well as practice and competitive facilities
- Provision of medical and training facilities and services
May 23, 2018.
Rena C. v. Colonial School District, Third Circuit Court, May 18, 2018
Key Words: Attorney Fees
Decided for: The Parents
Decisions in circuit court cases are never binding in other circuits. The decision here may or may not be persuasive to other circuit courts. It is rather arcane ruling based on a particular set of circumstances that will arise very in frequently in other spedlaw litigation. The short (very short) summary is that failure to address attorney fees in a settlement agreement is substantial justification for rejecting that agreement. The practical implication is that even if a parent does not get substantially more relief than offered in the settlement, he or she could still obtain attorney fees incurred subsequent to the settlement offer based on their having had sufficient reason to reject the school’s offer.
Section 300.510. This section explains that any settlement agreement reached after a due process hearing has been requested (or during the hearing) is enforceable by state or federal district courts. It does not address attorney fees. For that we need to look at Section 300.517. This section explicitly states:
Attorneys’ fees may not be awarded relating to any meeting of the IEP Team unless the meeting is convened as a result of an administrative proceeding or judicial action, or at the discretion of the State, for a mediation described in § 300.506.
(iii) A meeting conducted pursuant to § 300.510 shall not be considered –
(A) A meeting convened as a result of an administrative hearing or judicial action; or
(B) An administrative hearing or judicial action for purposes of this section.
These rules were paraphrased in the Third Circuit’s decision . . . which also noted (correctly) that attorney fees were not addressed in Section 510.
At least ten days before the dispute reaches a hearing, the school district can extend a settlement offer to the parent, referred to herein as a “ten-day offer.” If the matter proceeds to a hearing and the parent is the prevailing party, this ten-day offer becomes significant. A parent who is the prevailing party may be awarded reasonable attorney’s fees under the IDEA, but the ten-day offer allows a school district to limit its exposure to such fees by limiting a parent’s eligibility for attorney’s fees to only those fees accrued before the time of the ten-day offer. If a parent rejects the ten-day 4 offer, the parent may only receive attorney’s fees for work done after the time of the offer if (1) the hearing leads to more favorable relief than the offer included, or (2) the parent was substantially justified in rejecting the offer.
With respect to the second standard (“substantially justified”) the Third Circuit also noted (correctly) that there is no general consensus as to what that means. Not that no one ever asked . . . but once again, rather than resolve any ambiguity, OSERS punted:
It would be inappropriate to include a standard for determining whether a parent is substantially justified in rejecting a settlement offer because such matters will depend on the specific facts and circumstances in each case. The hearing officer, as the designated trier of fact under the Act, is in the best position to determine whether a parent was substantially justified in rejecting a settlement offer. We would expect that a hearing officer’s decision will be governed by commonly applied State evidentiary standards, such as whether the testimony is relevant, reliable, and based on sufficient facts and data.
In this case, Colonial made an adequate settlement offer to the parents and the hearing did NOT lead to more favorable relief than the offer included (a private school placement.) However, under the second prong, the circuit court found that the parents were substantially justified in rejecting the original offer from Colonial because that offer did not address attorney fees. So . . . the court ruled that the parents were entitled to attorney fees not only for work done prior to the settlement offer but also for attorney fees AFTER the offer was made.
Ths district court, applying the same standard above, had rejected their claim for fees incurred after the settlement offer. In the meantime, Colonial had filed its own lawsuit seeking reimbursement of THEIR attorney fees from the parents, arguing that their litigation was frivolous. Despite the success of a school system reported earlier this month in recouping attorney fees from one of its parents, predictably (since these case almost never end well for the school system), the district did not succeed in its claims.
Although not specifically germane to this case, when and where attorney fees may be awarded is a complicated topic and not one that this website has ever addressed (or is likely to address in great detail.) However, just the complexity of the issue has had some serious if unintended effects on parents’ accessibility to legal help.
In the early days of the IDEA, parents were seeking and getting attorney fees for lawyers who had assisted them in getting favorable results from an IEP team. The reasoning for this was known as the catalyst theory. (For a more lengthy discussion of the rise and fall of catalyst theory, see this 2005 article in the NY Legal Ethics Reporter by Roy Simon.) Even though at that time (pre 1997), the IDEA did not explicitly provide for attorney fees being available to the prevailing party. (The regulations for Part C of the IDEA do not contain such a provision today, and courts have more recently found that, because they’re not mentioned, even if a Part C parent prevails, he or she can’t be reimbursed for attorney fees.)
What “did in” the catalyst theory, however, wasn’t Congress, but a a Supreme Court decision in 2001, Buckhannon Board v. West Virginia. This landmark decision limited parents’ right to obtain attorney fees to those cases where they actually prevailed in a hearing or court case (or other situations were a settlement could be enforced by a court). The scope of this decision is not particularly relevant to the case at hand, but it’s worth noting that it had a somewhat chilling effect on parents’ ability to obtain legal representation on a contingency basis. It also meant and means parents are unlikely to obtain legal representation on contingency for IEP team meetings or mediation meetings — putting them on an unequal footing with schools who have attorneys at their disposal prior to any such meetings even when not in actual attendance. Also, even though Buckhannon settled one issue, it raised a whole lot of additional questions making its application much more complicated than it seems. For a discussion of its implications that only a lawyer could love, see “The Effect of Buckhannon on the Awarding of Attorney Fees” in Touro Law Review. Complexity adds uncertainty, and when it comes to getting paid, attorneys are no different than the rest of us . . . when it comes to getting paid, uncertainty is not a welcome factor. So even though Congress has given the parents of children with disabilities every due process right known to man, and even though it invented some new ones, parents without the financial wherewithal to hire an attorney to help them exercise those rights are at a serious disadvantage.
With respect to this particular case, also recommended is Justia’s more succinct summary. For another legal perspective, also see this Findlaw article, Mother Gets More Attorney Fees in School Disability Case.
May 12, 2018. Although a district court decision, this case may become a landmark in judicial decisions. The IDEA regulations since 2006 provided that courts could award schools attorney fees from parents under the following conditions. (Note 5/23/1018) Although an unusual ruling, it was not been well publicized on the web. Which may mean it will not have major influence on any future court decisions.)
To a prevailing SEA or LEA against the attorney of a parent, or against the parent, if the parent’s request for a due process hearing or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. Section 300.515.
Which is what happened to the parents in the decision below. For the first time ever.
Lincoln-Sudbury Regional Public Schools v. Mr. and Mr.s W, Massacusetts District Court, January 25, 2018.
Key Words: Attorney fees
Prevailing Party: The school system (BIG time)
The reasons for awarding the attorney fees can be found in the decision above but the actual amount was not decided until May 1, 2018. The amount awarded was $188,996.
The court found:
Defendants’ arguments were frivolous and unreasonable
Defendants’ claims were brought in bad faith
I don’t often recommend reading a decision in its entirety, and I’m not going to this time. However, I do recommend reading from page 38 to page 43 to see what kind of evidence a school would need to present in order to prevail in an attorney fees reimbursement case.
Schools have from time to time threatened parents with this kind of lawsuit under 300.515 in an effort to intimidate them. It has never up to this time ever ended well for the school system. For an authoritative (and conservative) analysis of this case, I’d also recommend Perry Zirkel’s Legal Alert from March, 2018. It’s very concise and a very quick read.
Despite the ruling above, the chances of a parents seeking services for their child being hit with the kind of penalty imposed by this district court are still less than getting hit by a lava bomb from Mt. Kilauea.
Other References;
Decision from Massachusetts Bureau of Special Education Appeals April 8, 2016
May 4, 2018
Z.B. v District of Columbia, United States Court of Appeals, May 1, 2018
Key Words: Tuition reimbursement, comprehensive evaluation
Decided for: The school in part; the parents got a remand on one issue
The principles regarding a parent’s right to tuition reimbursement were the same. Prove that school did not offer FAPE, prove the private school did provide FAPE. At issue here were the IEPs for two years; one for 2014, the other for 2015. Both the lower court and the appeals court found that the 2015 IEP provided FAPE.
However, the appeals court had some issues wiht the lower court’s reasoning with respect to the 2014 IEP. The district apparently relied primarily on the evaluation provided by the parent and did not conduct any assessments of its own prior to determining that the student was eligible for special education under the IDEA. The district court acknowledged that additional assessments had been needed to identify all of the student’s needs but excused those deficiencies because of the “short time” between the determination of eligibility and writing the IEP. The appeals court recognized that that was no excuse whatsoever because the IDEA clearly requires schools to conduct a comprehensive evaluation (paraphrasing) before determining eligibility. The district court concluded that the school had been responsive to the parents’ request, but just responding to a parent’s requests hardly addresses the burdens imposed upon a school system under the IDEA. That in the appeals court’s judgment constituted error. Still another error according to the appeals court was that the district court placed a heavier burden on the parents than is required by law. The district court required the parents to show that what the school system could have offered would not have provided FAPE. The only burden parents must meet (and it is not an insignificant one) is to show the actual IEP did not or likely would not have provided FAPE.
The circuit court, however, did not reach a conclusion as to whether the IEP was or was not appropriate because the school system had not conducted a comprehensive evaluation which would have provided baseline data.
So in conclusion, the appeals court wrote “We affirm the district court’s holding that DCPS complied with the IDEA in offering Z.B. the 2015 IEP, and remand for a determination as to whether it did so when it offered her the 2014 IEP..” What the appeals court wanted the district court to determine was whether the school district knew or should have known it needed additional information before developing the child’s 2014 IEP.
All of this may seem confusing, but if it does, it is only because it is confusing.
However, the bottom line is this.. Before an IEP team accepts a parent’s IEE and determines no additional testing is needed, it really needs to be sure that no additional testing really is not needed. The old adage, “No good deed in spedlaw goes unpunished,” seems applicable here, but in this reviewer’s opinion the real message is that cutting corners to please a parent without giving due consideration to the child’s actual rights is hardly ever a good idea.
And despite the partial parental victory in the appeals court on some significant points of law, the fat lady still hasn’t sung.
A.P., IV, (“LT”) v. Lewis Palmer School District, Tenth Circuit, April 2, 2018
Key Words: Exhuastion of Aministrative Remdies
Decided for: The School System
Precedential decision: No
This was an eight page decision over a case that began three years ago.
Cutting to the chase, the legal issue here was whether filing an OCR complaint met the standard for exhaustion of administrative remedies. The legal conclusion was that it did not, and, for that reason, both the district court and the circuit court tossed the lawsuit.
It’s a sad case made sadder because failure to exhaust administrative remedies resulted in this case being decided on procedural grounds rather than the substantive facts.
The substantive facts, rendered irrelevant, were this. The ADHD student had been bullied for years causing him to become depressed and (according to the court records) suffer from PTSD. His behavior and outbursts in response to the bullying became more extreme and ultimately included a threat to “shoot up the school.” He had been on both an IEP and a 504 Plan until 7th grade, when he was taken off the IEP. There was disagreement over whether the bullying was appropriately addressed, but regardless, the school held an expulsion hearing without considering whether it was a manifestation and expelled him. A manifestation hearing before long term disciplinary action is of course required by Section 504 as well as the IDEA. The parents complained, the school conducted a manifestation hearing, another expulsion hearing, and expelled him again. Claiming the process was defective, the parents filed an OCR complaint and the school entered into a voluntary agreement with OCR The school then held another expulsion hearing and expelled him for a third time. Under the IDEA, children with disabilities who violate a student code of conduct continue to have a right to FAPE but under 504, if there was no manifestation, the same disciplinary rules that apply to all children would apply to a child with a disability being served under 504.
Instead of filing for due process, the parents went to court. Huge mistake. But that wasn’t the only mistake. When the case got to the circuit court, the attorney argued that exhausting administrative remedies would have been futile, and that the district never notified the parents about available administrative remedies. The circuit court declined to consider those arguments because they had not been raised in the district court. However, the court did go on to discuss them. Apparently if you argue that a student was denied FAPE that makes it pretty difficult to argue administrative remedies would have proven futile.
The attorney also argued in circuit court that the parents had not received their rights, so they didn’t know administrative reviews were available. Normally if parents don’t get their rights, that means timelines for filing a complaint are extended. Not that parents get to skip the exhaustion requirements. And one might have also thought that even if a school system had failed to apprise parents of their rights and obligations, that would not excuse an attorney from advising his/her clients appropriately.
Bottom line: Three years of litigation brought the parents’ no relief for their child.
April
April 23, 2018.
Durbrow v. Cobb County, April 17, 3018, Eleventh Circuit
Key Words: Exhaustion of administrative remedies, evaluation for a disability, ADHD
Decided for: The parents
April 1, 2018
MR. P AND MRS. P, ON THEIR OWN BEHALF AND AS NEXT FRIENDS OF M.P. —v.— WEST HARTFORD BOARD OF EDUCATION, March 27, 2018 (Second Circuit) (58 pages)
Key Words: ED, autism (Aspergers), Procedural violations, FAPE (Endrew), Section 504, parent participation in the IEP process, two year limit on filing a claim, homicidal threats
Decided for: The school system
Another complicated case. In high school, in December of 2012, the student began to experience suicidal and homicidal ideation. He had a 504 Plan but the parents wanted him entitled under the IDEA for special education. The school complied. With the IEP in place, despite having been on homebound for an extended time, the student ultimately graduated in 2014.. The parents wanted two years of compensatory education post graduation in a setting of their choice. The school, having already offered post graduation services in their own district, declined. After a relatively brief hearing, the hearing officer found for the school system. The parents appealed to the district court and the judge affirmed the hearing officer’s decision. They appealed his decision to the circuit court and the court affirmed the district officer’s decision.
The road was a little bumpier than that suggests. The student had at one point (actually two) expressed a desire to kill his psychiatrist and at least once his fellow high school students, and as a result ended up getting only got eight hours of homebound instruction for several months. Complicating matters the parents appeared reluctant to share the results of their various evaluations with the school system. But in June, 2012, the IEP team met and recommended placement at STRIVE (Success Through Responsibility, Initiative, Vision and Education) , an alternative program for children with behavioral issues. At STRIVE, he was receiving 31 hours of instruction and 5 hours of counseling per week.
The school actually had a post graduation program at STRIVE called ACHIEVE, but the parents wanted them to pay for him to attend an out of district program called OPTIONS. The school declined, and the parents, not accepting their offer, asked for a hearing. This was in 2014. Despite extensive litigation, things just didn’t work out for them. In part because all the judges thought ACHIEVE was a perfectly reasonable recommendation.
Actually, this case is probably worth a look in its entirety because the parents’ attorney threw everything but the kitchen sink into his arguments. As a result this seemingly lengthy opinion actually provides a pretty good summary of spedlaw as applied to an ED Aspergers student with behavioral issues andADHD. It’s almost refreshing to read a decision where the parents’ attorney was so thorough. Personally, I have to give the fellow creds even though he lost. It wasn’t through a lack of effort.
Stay put Decisions
Let me recap the relevant laws briefly.
“Stay put” refers to a disabled child’s right to remain in his or her present educational setting while a dispute is being litigated.
However, Section 500.530 gives schools additional authority to remove a child to an interim alternative educational setting, providing it provides the child with FAPE, under the following circumstances. (The removal must be made within the context of an IEP team, with the parent invited.)
Special circumstances. School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the child— (1) Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA; (2) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA; or (3) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA.
Schools have been prohibited since the Supreme Court decision in Honig v. Doe from unilaterally removing a child with a disability from a pubic school setting. However, in Honig v. Doe, the Supreme Court gave schools the right to seek what has since come to be known as “a Honig Injunction” whereby it may with the court’s permission remove a student with a disability from a public school setting if the judge agrees the student’s presence would present a danger to himself or others. In the 1988 Honig decision, the Supreme Court wrote:
In short, then, we believe that school officials are entitled to seek injunctive relief under § 1415(e)(2) in appropriate cases. In any such action, § 1415(e)(3) effectively creates a presumption in favor of the child’s current educational placement which school officials can overcome only by showing that maintaining the child in his or her current placement is substantially likely to result in injury either to himself or herself, or to others.
Which brings us to the following two decisions.
Olu-Cole v. E.L. Haynes Public Charter School, District Court for the District of Columbia, February 28, 2017
Key Words: Stay Put
Note: the 11 page Memorandum Opinion above only granted the school’s request for a preliminary injunction banning the student from campus.
Decided for: The school
What this reviewer found unusual in this case was that the school had exhausted its 45 days and then moved unilaterally to prevent the student from going back to school. It was the parent who sought a preliminary injunction . . . invoking stay put. (The school had some explanations for that, but they were based on a mis-reading of the law. Enough said.)
Now, let it be understood that the schools concerns were not frivolous. This 17 year old student, classified as ED, had taken a juice box from another student. The other student had tried to get it back. M.K. pushed the boy down and repeatedly punched him in the head causing him to suffer a concussion. Additionally, he suffered a seizure, significant bruising, and memory loss.
Anyway, despite the school’s initial failure to apply to the court for an injunction, the judge still applied the “traditional” four part test:
The traditional four-part test examines whether the Plaintiff has a substantial likelihood of success on the merits,F.
Cutting to the chase, the judge found that the school system met its burden of proof and denied the parent the preliminary injunction she sought. In the words of the judge,
Whatever detriment M.K. faces by remaining outside of a general educational setting for an additional ten school days is more than outweighed by the very real potential for physical danger that his presence at Haynes would pose to his fellow students and Haynes staff. For the foregoing reasons, the Plaintiff’s motion for a preliminary injunction will be denied. (“Ten days” because the case was also before a hearing officer and a decision was expected from that hearing within a short period of time.)
“Stay put” has been a basic feature of the IDEA since Public Law 94-142. The following case illustrates how a fundamentally different set of facts can result in an adverse decision for the school system.
Anchorage School District v. M.G., District Court, February 23, 2018
Key Words: Stay Put
Decided for: The parent
This case began a couple of years ago. The parents and school system were agreed as to the need for this blind child to be placed i a residential school. They disagreed as to where, however, a hearing officer determined that the Perkins School would best meet the child’s needs. The hearing officer’s decision only covered one year, however. At the end of that time, he hoped that the parents and school would come to an agreement as to the best placement. At the end of the year, the school concluded that the child was not receiving FAPE at Perkins and recommended the student return to the regular school system. The parents appealed that decision, invoking stay put. The decision above was unusually brief, running about two pages. A portion of that decision is reprinted below:
In the Court’s view, the determination of this motion is controlled by the Ninth Circuit’s decision in Clovis Unified School District v. California Office of Administrative Hearings, 903 F.2d 635, 639 (9th Cir. 1990). In that case, an administrative hearing officer ruled in favor of the student, and ordered “the District to pay for her hospitalization from August 16, 1985, through the 1985-86 school year.” The case was then appealed to the district court. A principal issue on appeal was described as “whether the `stay put’ provisions required [the school district] to maintain the child [at the hospital] throughout the course of the court review proceedings which followed the agency decision that [the hospital] was the appropriate placement.”12 In short, the issue was whether the school district was required to pay for the placement after the end of the 1986 school year, the ending date specified in the hearing officer’s order. The Ninth Circuit held that under IDEA’s stay put provision, the school district was responsible for the costs of the child’s placement after that date “regardless of which party prevails” in the appeal.13
The Court finds that under this controlling precedent, Appellees’ motion for a stay put order at Docket 127 is GRANTED. During the pendency of the review of the Hearing Officer’s decision, M.G.’s placement, absent agreement to the contrary, is Perkins School for the Blind.
This decision did not address the more substantive issue as to whether or not Perkins did or did not provide the child with FAPE in the LRE. Depending on who prevailed after arguing those issues, a court could determine that the school was right all along . . . but the school would still be responsible for paying for all the fees incurred while the student was in the stay put placement.
March
March 1. The fat lady sings.
Endrew v. Douglas County, District Court, 2/12/2018 (20 page)
Key Words: FAPE standard
March 1. Some people never give up . . .
This case was last reported as S.D. v. Haddon Heights, Third Circuit, 2016. The parents were seeking damages but in their complaint they also sought supplemental services. The courts dismissed their claims because they hadn’t exhausted administrative remedies.
Yet here it is again, S.D. v. Haddon Heights, Third Circuit, 2018
Key Words: Exhaustion of administrative remedies, Section 504
Published: No. Unprecedential. (The 2016 decision was published.)
Decided for: the school system
Choose your title: Some people never give up . . . or Some people never learn.
After the 2016 decision, the Supreme Court subsequently decided Fry v. Napoleon Community Schools, which we reported on in February, 2017, clarified that the IDEA exhaustion requirement applies in instances where, although violations of non-IDEA statutes are pled, the essence of the plaintiff’s prayer f”or relief is the denial of a free appropriate public education (“FAPE”). The parents’ attorney apparently relied upon Fry v. Napolean to justify skipping administrative remedies again. Unfortunately (for the parents), the Third Circuit, also relying on Fry, disagreed. Again.
This case may not be over, because the Third Circuit dismissed the case without prejudice . . . if the parents initiate due process, and appeal that decision, then the case may well end up being litigated in district court and the circuit court again. Time will tell, but I might be dead before this case ends its long and tortuous journey through our court system
Published: Yes
Decided for: The parents
As a brief reminder, the parents in this case had placed their child with autism in a private school and then sued the school system for tuition reimbursement. So far, nothing unusual. When the case got to the circuit court, that court ruled in favor of the school system, saying what it had offered would have provided FAPE, because the federal standard only required something more than de minimis benefit. (Just something more than nothing.) That ruling enraged the parents, sending their attorney to the Supreme Court where, last year, as we all hopefully remember, the court ruled unanimously that the circuit court’s standard fell far short of what the Supreme Court meant back in 1982 when they had decided in favor of a school system in the Rowley case. In that case, the girl in question had been passing all her subjects with C’s and above and they were shooting down the parent’s “maximum benefit” argument.
That brings us to the present. Just because a parent wins in the Supreme Court does not necessarily mean when a lower court judge applies the Supreme Court standard that the outcome will be any different. We saw that in Forest Grove v. T.A., where the parents prevailed on a legal argument before the Supreme Court but still lost when their case was reheard by the district court and, again, by the circuit court when it was considered applying the “new” legal principle.
Which brings us to February 12, 2018. Long story short, the district court judge reversed the earlier decision, ruling this time in favor of the parents. These are the words mostly likely to be burning in the minds of Douglas County School officials
[T]he law is clear that parents are entitled to reimbursement under the IDEA if: (1) the school district violated the IDEA; and (2) the education provided by the private school provides the child with a FAPE in that it is reasonably calculated to enable the child to receive educational benefits. Thompson R2-J Sch. Dist. v. Luke P., supra, 540 F.3d at 1148; L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 978 (10th Cir. 2004). Thus, Petitioner and his parents are entitled to reimbursement for the reasonable costs of his education at Firefly. They are also eligible for reasonable attorneys’ fees and litigation costs.
Why the change of heart when applying the Endrew standard? Some of the judge’s reasoning was:
The District’s inability to develop a formal plan or properly address Plaintiff’s behaviors that had clearly disrupted his access to educational progress starting in his second grade year does, under the new standard articulated by the Supreme Court in this case, impact the assessment of whether the educational program it offered to Petitioner was or was not reasonably calculated to enable him to make progress appropriate in light of his circumstances. The District’s inability to properly address Petitioner’s behaviors that, in turn, negatively impacted his ability to make progress on his educational and functional goals, also cuts against the reasonableness of the April 2010 IEP. See Paris Sch. Dist. v. A.H. by & through Harter, 2017 WL 1234151 (W.D. Ark. Apr. 3, 2017) (unpublished)(agreeing with the Hearing Officer’s conclusion that the student’s behavior plans were inadequate, especially in light of the higher standard articulated by the Supreme Court).
The exact amount of compensation to be awarded at the time of this writing had yet to be determined by the court, but it is probably going to be well in excess of seven figures.
A number of on-line summaries are available to readers interested in other views on this decision. Just two are provided below.
February
February 2, 2018. OSERS e-mail letter:
Set Your Bookmarks to the New IDEA site
The Office of Special Education and Rehabilitative Services will automatically redirect users from the Building the Legacy: IDEA 2004 site to the new Individuals with Disabilities Education Act (IDEA) website starting April 30, 2018.
OSERS launched the new IDEA website in June 2017 in order to provide updated department information regarding the IDEA to the public including students, parents/families, educators, service providers, grantees, researchers and advocates.
IDEA website users are encouraged to bookmark the new IDEA website: https://sites.ed.gov/idea.
While the Legacy site will redirect users to the new IDEA site on April 30, content from the Legacy site is available for reference on the new IDEA website on the Building the Legacy: IDEA 2004 historical reference page.
The Legacy site was developed in 2006 as a result of the 2004 reauthorization of the IDEA. The site was updated mostly between 2006 and 2011. It had not received updates since 2013.
OSERS determined it would leave the Legacy site live after the new site launched to provide stakeholders ample time to compare the two sites, adapt to the new site and provide feedback to OSERS.
OSERS has made updates to the site based on the feedback it received from stakeholders since the initial launch of the new IDEA website.
OSERS will continue to gather feedback about the new website in order to enhance and add content to the new IDEA website to ensure the new site remains current.
Stay tuned for video tutorials highlighting features of the new site in the coming months. In the meantime, visit the OSERS Blog if you have feedback regarding the new IDEA website and leave a comment.
Links:
Submit comments at the OSERS Blog
View the Department of Education’s June press release about the IDEA website
February 2, 2018.
Barnwell v. Watson, Eighth Circuit, January 26, 2018.
Key Words: Deliberate indifference, bullying, Section 504
Decided for: The school system
Published: Yes
Incredibly sad case..
This case centered on Chandler, aged 16, a child with a disability who killed himself.
The parents were contending that the school system had violated their child’s rights and had discriminated against him by failing to address the bullying before his death and by failing to investigate the allegations of bullying after his death.
In the first paragraph, the court wrote,
After their son tragically committed suicide, the plaintiffs, Michael and Anna Barnwell, sued the superintendent of their son’s school district, alleging that the school had discriminated against their son on the basis of disability by failing to adequately protect him from being bullied by other students. But the district court 2 found no evidence to support the Barnwells’ claim, and granted the superintendent’s motion for summary judgment. We affirm the district court’s judgment.
With respect to the bullying before he killed himself, the court applied the following standard:
[A)n educational institution is liable only where it is (1) deliberately indifferent (2) to known acts of discrimination (3) which occur under its control. K.T. v. Culver-Stockton Coll., Additionally, the discrimination must be so severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school.
Cutting to the chase, the school knew he was unhappy, but they did not know about the bullying. A school can’t be held liable for not doing something about something it didn’t know about.
With respect to the second claim, the court ruled
The Barnwells cite no authority for the proposition that a school district can discriminate against a disabled student in violation of § 504 after his death by failing to investigate harassment that might have occurred before he died. Nor is there authority for the proposition that a school district can discriminate against a disabled student in violation of § 504 by failing to respond to the student’s death with an appropriate degree of sensitivity. Whether or not a claim might arise out of such allegations, it is not a claim that can be asserted under § 504, and that conclusion is dispositive of this appeal.
If you would like another perspective on this case, click on Justia’s Summary.
January
January 28, 2018. DMS Letter to the Honorable Mike Morath. A five page letter detailing what went wrong when the Texas SEA established a goal for its LEAs to reduce the percentage of identified children under the IDEA to 8.5 percent. Texas claimed that it was just a goal, not a mandate, but unfortunately the LEAs did not interpret it that way. Texas had had a placement rate of over eleven percent which was actually not inconsistent with the national average at the time. But whereas there had been a mild reduction in identification rates since 2004 (ostensibly because schools were beginning to implement RTI) Texas numbers had dropped to 8.6 percent. Apparently, based upon the findings of an OSEP visitation, various and sundry LEAs, when RTI alone failed to provide the desired results, applied their creativity and came up with other mechanisms for delaying or denying services to otherwise eligible students. OSEP’s summary of its findings follows:
OSEP’s specific findings of noncompliance include the following:
1. TEA failed to ensure that all children with disabilities residing in the State who are in
need of special education and related services were identified, located, and evaluated,
regardless of the severity of their disability, as required by IDEA section 612(a)(3) and its
implementing regulation at 34 CFR §300.111.
2. TEA failed to ensure that FAPE was made available to all children with disabilities
residing in the State in Texas’s mandated age ranges (ages 3 through 21), as required by
IDEA section 612(a)(1) and its implementing regulation at 34 CFR §300.101.
3. TEA failed to fulfill its general supervisory and monitoring responsibilities as required by
IDEA sections 612(a)(11) and 616(a)(1)(C), and their implementing regulations at 34
CFR §§300.149 and 300.600, along with 20 U.S.C. 1232d(b)(3)(A), to ensure that ISDs
throughout the State properly implemented the IDEA child find and FAPE requirements.