Guy’s Log 2016

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december

December *

December 18, 2016

Plainscapital Bank v. Keller Independent School District, US District Court of Northern Texas, November 29, 2016
Key Words: Liability, Section 504, ADA, deliberate indifference
Published:  yes
Decided for:  The School System in part

Back around 2010, a special education teacher treated a special education student badly resulting in increased episodes of dystonia and physical injury according to the findings of  a jury.   Plainscapital Bank was a trustee of the child’s estate and had initiated the lawsuit.   The jury gave the bank one million dollars in damages along with some compensatory damages.    On January 7, 2015, the Court entered judgment dismissing the Rideaus’ (parents) claims for lack of jurisdiction and denied Plainscapital’s motion to ratify the Rideaus’ actions in prosecuting these claims on behalf of T.R. In its April 5, 2016 opinion, the United States Court of Appeals for the Fifth Circuit affirmed the Court’s dismissal of the Rideaus’ individual mental-anguish claims, vacated the Court’s judgment in favor of Keller on all other claims, reversed its denial of Plainscapital’s motion to ratify, and remanded the case for further proceedings.

That brings us to 2016, when Keller went to the district court asking (1) for judgment as a matter of law and alternatively (2) a new trial.

This decision includes an excellent review of caselaw regarding liability with particular emphasis on the deliberate indifference standard.  A high standard, basically in order for a school system to be liable, its administrators must be found to have acted with deliberate indifference to a parent’s complaints.  In this instance, the administrator thought that the situation had been resolved after addressing it with the teacher in question.   When he found out it had not, several months later, he took actions leading to the teacher’s resignation.

Not, the judge reasoned, what would have been expected from someone who was indifferent to the child’s plight.  Perhaps the most interesting legal conclusion from this writer’s perspective is that ineptitude alone does not amount to deliberate indifference.  Putting it another way, in this writer’s words, good intentions do count.

With respect to the first claim,  “the Court concludes that, under the binding caselaw of this circuit, which is deferential to school Page 19 of 20 districts, the jury did not have a legally sufficient evidentiary basis to conclude that Keller’s response was clearly unreasonable or that Keller, by its own actions, intentionally discriminated against T.R. Keller’s motion for judgment as a matter of law on liability and damages is therefore GRANTED.”

With respect to the second claim presented, ” the Court concludes that the trial of this case with respect to damages was ultimately unfair. For these reasons, the Court CONDITIONALLY GRANTS Keller’s motion for new trial.”

This lawsuit has already been going on for six years  . . . hundreds of thousands of dollars in legal fees . . .  and the fat lady still hasn’t sung.

november

November *

November 16, 2016

N.E. v. Seattle School District, November 17, 2016, Ninth Circuit   
Key Words:   Stay Put
Published:  Yes
Decided for:   The school system

This is a 33 page decision settling what appeared to be a relatively simple question:  What was the stay put placement for a child transferring in from another school system?

The student’s IEP had been written in two stages.   The first stage had been complete and the second stage was to be implemented in his previous school system.   But the student transferred.  Parents contended stage 1 was the stay put placement.  The school contended stage 2 was the stay put placement.

What this reviewer finds of particular interest was that stage 1 in the previous IEP was for an individual class . . . the kid had a teacher, a para-educator, but no other students.   Just him.  Then the next fall he was supposed to transition to a self contained class.   The parents did not appeal the IEP.   They just moved at the end of the year, demanding the new school system (Seattle) continue the “individual class” placement.  Seattle demurred.  The parents then demanded that the child be put in a general education class as the stay put placement until the matter could be ajudicated, and they went to court seeking a restraining order prohibiting the school from placing the child in a self contained class.   The district court declined, hence the appeal to the Ninth Circuit.

The court’s decision in part was “First, and more importantly, the IEP was implemented, and stage two was always the intended setting in which N.E. would begin the 2015–16 school year, effective September 1 (before N.E.’s parents requested a due process hearing). Second, we commonly think of education as forward-looking; we refer to a child who has completed fourth grade and is about to enter fifth grade as a “rising fifth grader.” The status quo at the time of the hearing request was  the anticipated entry into the self-contained program. Stage two of the May 2015 IEP, therefore, was N.E.’s stay-put placement.”

The Ninth Circuit holds generally that the stay put placement is the placement in the last IEP.   Had the parents appealed the previous IEP,  stay put would have been the last placement agreed upon at the time of the appeal . . . but the parents had NOT appealed the IEP.   Additionally, if the parents’ goal had simply been to get the child out of special education altogether, they could have invoked their rights under the 2008 Amendment to the IDEA to unilaterally reject all special educational services.   Although this case has precedential value within the Ninth Circuit, it is by no means guaranteed that judges in another circuit would find their reasoning persuasive.  (An “emphatic” dissent was filed by one of the judges on the panel.)

For another perspective on this case, see Justia’s Summary which follows:

Plaintiffs, parents of a child with a disability, sought a temporary restraining order and a preliminary injunction requiring the Seattle School District (the district) to place their child in a general education class pending the outcome of the due process challenge. In May 2015, the Bellevue School District produced an Individualized Education Program (IEP) for the child that encompassed two stages: The first stage would begin immediately and the second would begin at the start of the 2015–16 school year. Plaintiffs allowed the child to finish the school year in accordance with the first stage of the IEP but did not agree to the second stage. Over the summer, the family moved to Seattle. Just before the start of the 2015–16 school year, the district proposed a class setting for the child that was similar to the second stage of the May 2015 IEP. Plaintiffs objected and sought a “stay-put” placement. The district court denied plaintiffs’ motion on the ground that they had not established a likelihood of success on the merits. The court agreed with the district that a partially implemented, multi-stage IEP, as a whole, is a student’s then-current educational placement. In this case, stage two of the May 2015 IEP was the child’s stay-put placement. Accordingly, the court affirmed the judgment.

september

September *

September 23, 2016

BC v. Mount Vernon School District,  Second Circuit, September 16, 2016   22 pages
Key Words:  504, ADA, Section 1983xxxxxxxxxxxxx
Published:  Yes
Decided for:  The School System

Justia provided a lengthy summary of this case which I’ve appended below.    Here’s the long and the short of it.   The plaintiffs were suing under Section 504 alleging discrimination based upon disparate impact data showing children served under the IDEA were placed in a non degree program more often than children who were not identified as disabled under the IDEA.

The case before this court revolved around a relatively narrow issue:   Do IDEA identified children automatically qualify for protections under 504 and the ADA?  Note that we’ve always (consistent with other authors)  pictured IDEA children as being in a small circle within the much larger 504 circle.   However, completely disregarding our circles, the Second Circuit here determined that IDEA eligible children are NOT automatically eligible for protection under 504/ADA.   While I weep privately, I’ll leave it to you, gentle reader, to review the Justia summary below, and then, if you still do not comprehend the judges’ decision, the decision itself found at the link above.  I don’t think that would help, however, because what the court said (summarizing again) was that just because a child with a disability needed special education under the IDEA,  that didn’t necessarily mean he or she had a substantial limitation under 504.    And on that note, I think I’ll close with Thumper’s father’s advice  about when you can’t anything nice . . .

Here’s what Justia got from it:

Plaintiffs, individually and on behalf of their respective daughters J.C. and T.H., filed suit against District Defendants and NYSED Defendants. Plaintiffs claim that the district court erred in concluding that plaintiffs did not make a prima facie showing of discrimination against District Defendants pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., and Section 504 of the Rehabilitation Act (Section 504), 29 U.S.C. 794 et seq. In this case, plaintiffs’ disparate impact claim relies exclusively on data concerning students with disabilities under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq. The court concluded that, aside from their receipt of special education services, the record is devoid of any evidence as to whether the students included in the data qualify as disabled under the ADA or Section 504. Because, as a matter of law, an IDEA disability does not necessarily constitute a disability under the ADA or Section 504, the court concluded that plaintiffs’ data does not establish “a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant’s facially neutral acts or practices.” Therefore, the court concluded that plaintiffs failed to make their prima facie showing that District Defendants’ academic intervention services (AIS) policy adversely impacted individuals protected by the ADA and Section 504. The court concluded that the district court properly entered summary judgment in favor of District Defendants as to the ADA and Section 504 claims. Likewise, the district court properly entered summary judgment on their derivative Section 1983 claim against the District Defendants. The court affirmed the judgment.

September 5, 2016

L. J. v. Pittsburg USD, September 1, 2016.  Ninth Circuit
Key words:  emotionally disabled; attention deficit hyperactive disorder; procedural violations;  need for special education
Published:  Yes
Decided for:   The parents and remanded to district court

In this instance, the summary from the court itself is more instructive than any commentary I could provide.  But I would like to draw attention especially to the fact that just because a child is getting satisfactory grades in general education, that doesn’t automatically mean he or she doesn’t require specially designed instruction (sped).  However, what seems odd about this case is that while the district was providing multiple  modifications and accommodations to this student, nowhere does the record show that they tried to address the boy’s issues via a 504 Plan.  There seems to have been a dichotomy drawn here (a false one, in this reviewer’s opinion) between services provided children through the IDEA and services routinely provided to general education students.   I’m certainly not disagreeing with the judge’s final decision (that would be futile).  But why 504 apparently never came up as a middle ground from the school’s side is a puzzlement.

The judges wrote:

The panel reversed the district court’s summary judgment in favor of the defendant school district in an action brought by a student and his mother under the Individuals with Disabilities Education Act. The panel held that the student was eligible for special education services. The panel agreed with the district court that the student had three disabling conditions. The panel disagreed, however, with the district court’s and the state administrative law judge’s ruling that the student did not need special education services because of his satisfactory performance in general education. Rather, the student exhibited a need for services because his improved performance was due to his receipt of special services, including mental health counseling and assistance from a one on-one paraeducator, which were not services offered to general education students. In addition, the district court did not adequately take into account the student’s continued troubling behavior and academic issues. The panel held that the student’s psychiatric hospitalizations and suicide attempts were relevant to his eligibility for specialized instruction even though they occurred outside the school environment. The panel held that the school district also committed procedural violations of the IDEA by failing to disclose school records and failing to conduct a health assessment.

The panel reversed the district court’s decision and remanded for it to order that the school district provide the remedy of an individualized educational plan.

Justia provided a separate summary which also offers no insights into why 504 was never raised.  It has long been known that multiple accommodations and modifications can in and of themselves rise to the level of specially designed instruction . . . so offering a 504 Plan might not have settled this issue.  But (again, based on the record here) it doesn’t look as if anyone tried.

L.J.’s mother filed suit in federal district court to require the school district to provide L.J. with an Individualized Education Plan (IEP) to provide specialized services to assist with what she contends are serious disabilities. The district court reviewed the record and found that L.J. was disabled under three categories defined by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq. Nevertheless, the district court concluded that an IEP for specialized services was not necessary because of L.J.’s satisfactory performance in general education classes. The court concluded that L.J. clearly exhibited behavioral and academic difficulty during the snapshot period where he threatened and attempted to kill himself on three occasions in 2012; in the fall, he frequently acted out at school, and continued to have needs associated with his medication regimen; and the district court should not have discounted these facts. The court concluded that they demonstrate that L.J. required special education services. Because L.J. is eligible for special education, the school district must formulate an IEP. The court also concluded that the school district clearly violated important procedural safeguards set forth in the IDEA. In this case, the school district failed to disclose assessments, treatment plans, and progress notes, which deprived L.J.’s mother of her right to informed consent. The school district also failed to conduct a health assessment, which rendered the school district and IEP team unable to evaluate and address L.J.’s medication and treatment related needs. Accordingly, the court reversed and remanded

August

August *

August 30, 2016.

The question was, “With passage of the ESSA, are special education teachers only supposed to be teaching grade level curriculum in high school, and shouldn’t the IEP for almost every child be the same?”  This oldie but goodie from 1997 provided an early answer to that question.

Although both NCLB and the ESSA have stressed the need for holding children with disabilities to higher standards,   all of  the underlying principles regarding children’s rights under the IDEA have changed very little or not at all.  Although dated, this state hearing review officer (SHRO) decision from 1997 is relevant because it was about a high school student, James Brody, who was diagnosed with dyslexia.   The SHRO  reported that the school in Dare Cty, North Carolina,  had told the parents that they did not do remediation past the 8th grade.   An allegation that seemed supported by the fact that the special education teacher, when interviewed by the parent’s LD expert, apparently knew nothing about teaching reading.

At the May, 1996, IEP meeting Ms. Folb (the LD teacher) was asked by Dr. Felton what she would use to teach word analysis skills. Ms. Folb told Dr. Felton that she did not have any particular programs or methods in mind. Ms. Folb could not name any methods or programs to use for providing remediation for James. Dr. Felton was asking Ms. Folb what kinds of things do you use to teach word analysis skills when you see a student has difficulties in this area. Ms. Folb simply was unable to give any information about what she would do to provide James with remediation in these areas.

When your LD teacher is unable to provide any information about teaching reading, you know it is not going to be a good day.

Peter Wright has posted the SHRO decision he won back in 1997 for James Brody and his family.  I don’t usually cite due process decisions even at SHRO level because they have limited precedential value, but this has been publicly posted for almost twenty years, and lots of parents and parent attorneys have read it.  So its influence should not be underestimated.

Despite its being a state level decision, it  contains a list of “do nots” that Dare did causing them to lose.  Among the things to be avoided (in addition to hiring an LD teacher who doesn’t have any idea about how to remediate reading problems)  listed in the SHRO’s conclusion  of law:

1.  The school system failed to develop an IEP appropriate to James needs.   (That was the biggy)

2.   The school failed over a nine year period  to provide the parents with prior notice regarding their rights.  (See below)

3.   Over the same  nine year period, the parents had on numerous occasions expressed their concerns, and the school never informed them of their right to a due process hearing.   (There are two potential problems here.  First, the statute of limitations doesn’t kick in if parents weren’t given their rights, so the school system left itself open to liability not just for lapses two years  prior to the formal complaint  but for the ten years preceding.   Second if a procedural lapse results in or could have caused substantial harm, that in and of itself could be fatal to the case.)

4.   The parents obtained an IEE at their own expense.  The hearing officer found that the school system didn’t consider it in developing an IEP for James.  (IDEA is clear; schools MUST consider IEEs, unless they don’t meet the agency standards.)

5.   IEPs are supposed to be designed to close the gap between present levels of achievement (now PLAAFP) and ability (now grade level standards).  The IEP was not designed to close the gap.  (If you set high goals for a child consistent with the state curriculum, but offer no plan on how the student is to reach those goals, the chances a hearing officer will find it fatally flawed are substantially increased.)

6.  Instead of teaching him how to read, write, spell and cypher (paraphrasing), the school recommended the student receive an attendance certificate (which the judge said contradicted the philosophy of the IDEA in 1997 and is completely inconsistent with the standards imposed by the newly passed ESSA.)

One other thing about this case made it special — it was the first time I’ve seen Matthew Effect raised in support of a parent’s argument that a school failed to provide FAPE.

Peter Wright also provided  a Letter to a Stranger as a possible guide for other parents seeking to do battle with a school system.   Peter’s wife Pam also posted a Letter from James Brody of North Carolina —  About My Case.   From a legal standpoint, it probably does not have much significance, but it is the kind of letter that twenty years later can still bring a tear to your eyes — and I would think highly motivational for parents trying to get a recalcitrant school system to do what it’s supposed to be doing for their child.

August 30, 2016

The following is a decision from January, 2016, that was not reported by Justia or LRP.   It runs 12 pages.

Section 300.102 provides an exception to the general rule that students with disabilities from 3 through 21 are entitled to FAPE . . . that being, if a student has graduated from high school with a regular high school diploma, he or she is not entitled to FAPE.

The following decision illustrates that not everything is quite what it seems in spedlaw.   Raquel, the student filing this lawsuit, had graduated with a regular high school diploma.   She graduated 60th in a class of 130.   She sued for compensatory education.   The hearing officer said given that she’d graduated (60th in her class no less) she was not entitled.  She appealed to the district court.  The district court judge reversed.   For an explanation of WHY, see the decision and my summary below.

Raquel Holman v. District of Columbia, District Court, January 28, 2016  
Key Words:   Availability of compensatory education for the denial of FAPE after graduation
Published:  Yes
Decided for:  The parents, on procedural grounds

Raquel graduated from high school with a regular diploma.

However, her reading skills were at the fourth grade level.

The school had developed her IEP without either her or her parents present.

Then substantially failed to implement the requirements of the IEPs.

The hearing officer dismissed the case because she had graduated with an actual diploma. 60th in a class or 130 students, so he did not believe any harm had resulted from the district’s failures.

The district court overturned.

The standard it applied:

It is well-established that “the materiality standard does not require that the child suffer demonstrable educational harm in order to prevail.” Wilson, 770 F. Supp. 2d at 275 (emphasis in original) (quoting Van Duyn, 502 F.3d at 822). Since proof of harm is not required under these circumstances, it follows that a material deviation from the prescribed IEP is per se harmful under IDEA

Even if the court had not adopted that standard, however, it still would have found for the student because the record clearly showed her reading and math scores actually declined (not just plateaued) during the years during which her IEP was not effectively implemented.    The district court concluded that that in and of itself was proof of “real harm.”

Summarizing the court’s decision (see link above), it found that the student remained eligible for compensatory education until age 22 and remanded

Guy, SP, Retired.

August 19, 2016

S.D. v. Haddon Heights Board of Education, August 18 2016, Third Circuit
Key Words:  Exhaustion of Administrative Remedies
Published (Precedential):  Yes
Decided for:  The school system (on procedural grounds)

Once again, a parent attorney assumed through the cleverness of her arguments that she could safely avoid administrative procedures by going directly to federal court.   The Third Circuit popped her bubble.   The parents’ argument in brief was that their child was not eligible for IDEA services but then went on to argue that he had suffered educational harm because of school policies that discriminated against him based on his disability.   The Third was definite in its conclusions that at least some of the alleged harms could have been addressed through the IDEA’s administrative process.   The judges did, however, also say that that claims resulting from alleged retaliation could be addressed by the courts but only after exhaustion of administrative remedies.  (This should not have been s surprise; in New Jersey, this has been a longstanding principle of law.)   Another argument made by the parents’ attorney was that in order to conclude that administrative remedies were available the court would also have to conclude that the school had violated its Child Find responsibilities.  The Third Circuit declined to equate its finding that administrative remedies were available with a finding that the school system had violated its Child Find responsibilities.    In the Third Circuit, at least, if a parent is alleging claims not available under the IDEA, but is making some claims that could be resolved through administrative remedies, it must exhaust those remedies first.

In any event,  Justia’s summary, including a summary of the child’s problems and the school’s recommended services follow:

S.D. suffers from “multiple medical problems including chronic sinusitis with frequent acute exacerbations, allergic rhinitis, and intermittent asthma” that allegedly “substantially limit him in . . . the life activity of learning.”. S.D.’s doctor concluded that these medical problems “make it likely that he will have frequent school absence[s] due to acute [and] underlying chronic illness,” and suggested that S.D. “should qualify for [Section] 504 plan modifications for school” under the Rehabilitation Act, 29 U.S.C. 794(a). Dissatisfied with the school’s plan, which involved Saturday sessions and a summer course, his parents sued, citing the Rehabilitation Act, the Americans with Disabilities Act, 42 U.S.C. 12101–12213, the First and Fourteenth Amendments (42 U.S.C. 1983), and New Jersey’s Law Against Discrimination. The district court dismissed for failure to exhaust the administrative process provided for by the Individuals with Disabilities Education Act, 20 U.S.C. 1400–1482. The Third Circuit affirmed. While the claims alleged discrimination and retaliation for enforcement of the child’s rights under a non-IDEA statute, the alleged injuries are educational in nature and implicate services within the purview of the IDEA, so administrative remedies must be exhausted.”

August 12, 2016

Mr. and Mrs. Doe v. Cape Elizabeth School System, August 5, 2016  First Circuit
Key Words:  SLD, eligibility criteria, degree of deference due
Published: Yes
Prevailing Party:  The parents, on procedural grounds

Another 51 page decision that basically sent everyone back to a lower court to find out who really won.

The question here was an interesting one . . . whether a student with a strong academic record could still be determined to be eligible as having a specific learning disability.  Hint:  The federal regulations have always said that it is not necessary for a student to fail in order to be considered eligible under the IDEA.   Also although not discussed herein, even if a student with a disability no longer needed specially designed instruction, that would not necessarily mean he or she had no need for accommodations/modifications under a Section 504 Plan.

This girl had struggled with reading ever since preschool and had been identified as having a specific learning disability.  She compensated for her problems and was doing quite well in school.   So the school decided in 2013 she no longer need to be in special education.  That’s when the proverbial bovine droppings hit the wind machine, and the parents went to due process.   The hearing officer sided with the school system, the parents appealed twice again, and the district court judge sided with the hearing officer.   The Does contended that the evidence clearly showed their daughter still had a fluency problem in reading and needed sped to address it.     This is the decision from the appeals court.

The problem the district ran into was that while they showed overall academic success, they did NOT show that the child’s performance in the “real world” supported their view that fluency was not in and of itself a problem for her.   In short, if a student qualifies with a deficit in reading fluency, and the evidence is consistent in showing that a student is having difficulties with reading (or for that matter math) fluency, s/he meets the first two prongs of the eligibility criteria.   The Circuit court concluded that the District Court judge gave excessive deference to the hearing officer, failing to adequately consider other available evidence available to him just because the hearing officer had not considered that evidence.  (The issue of deference is also complex but may be reviewed in more detail here.)

The decision itself read in part, “In summary, we vacate and remand this case with the following instructions. On remand, the district court should first decide whether Jane has a reading fluency deficit. In making this determination, the court may consider Jane’s overall academic performance, insofar as her generalized academic record is shown to be a fair indicator of her reading fluency deficit, as well as the results of specific reading fluency assessments. The court should also exercise independent judgment, with the appropriate level of deference to the hearing officer as set forth herein, in resolving issues concerning Jane’s alleged reading fluency deficit. If the district court finds that Jane has a reading fluency deficit, it should then determine how the need inquiry should be interpreted and whether Jane meets the need standard under the IDEA. See 20 U.S.C. § 1401(3)(A)(ii). Regardless of the approach it adopts, consideration of Jane’s academic record is not categorically barred under the need assessment any more than – 37 – it is categorically barred under the first prong inquiry, so long as it was determined to be relevant in discerning her reading fluency deficit. Additionally, if the court decides that Jane meets the federal eligibility standards but not the state standards, the court may have to address the validity of MUSER’s processing disorder requirement and “need” provision. Finally, if the district court determines that it would benefit from having the hearing officer make additional findings on issues on remand, the court can stay the proceedings and remand to the hearing officer to make relevant determinations.

The case has been dragging on for three years, is set for remand back to the district court, and may yet be remanded yet again back to a hearing officer.   Draw your own inferences from that.

Justia’s summary (much briefer than mine) follows:

When Jane Doe was in second grade, she began receiving special education under the Individuals with Disabilities Education Act based on her deficiency in reading fluency. More than six years later, an administrative hearing officer determined that Jane was no longer eligible to receive special education. The district court affirmed. The First Circuit vacated and remanded the case, holding (1) the district court erred in relying on evidence of Jane’s overall academic performance without regard to how it reflected her reading fluency skills; and (2) the district court did not make an independent judgment as to the additional evidence submitted by Jane’s parents and afforded excessive deference to the hearing officer’s determinations in weighing the relevant reading fluency measures.

July

July *

July 29, 2016.   Smith v. Leake County

Smith v. Leake County School District, Mississippi Supreme Court, July 28, 2016
Key Words:   Tort (Injury) law
Published:  Yes
Decided for:  The parents (on procedural grounds only)

I don’t usually report state decisions because they have little or no real precedential value outside their states.

However, this case does illustrate several important points, the first obviously being that it is not only important to know what the federal law requires but also what additional responsibilities your state might have imposed.

The second point, certainly not isolated to this case, is that not all lawsuits regarding children with special needs involve matters of FAPE  which would requite the exhaustion of administrative remedies under the IDEA before going to court.   The parents in this case were not suing over a decision regarding their child; they were suing because of a decision made by school officials with respect to the discipline (or lack thereof) of another student.

The gist of the decision is found in the introductory paragraph:

After a year of bullying and intimidation by a small group of students, Yahenacy Smith was beaten and severely injured while riding the school bus home. Smith sued the Leake County, Mississippi, School District, alleging negligence and negligence per se. The [state] circuit court found that the school district was entitled to discretionary-function immunity and granted the school district’s motion for summary judgment. Smith appealed. Finding that the broad governmental function of the school district here is ministerial, we reverse the circuit court’s grant of summary judgment and remand the case to the circuit court for Smith to proceed with her claims.

This wasn’t a minor incident.   The girls involved had been bullying this child for a year, the administration knew about it, but after giving one of the students, Helen by name,  a five day bus suspension, on the same day they imposed the suspension,  they still put the main instigator back on the same bus with the child who was assaulted.   She and her “friends” attacked the child, literally beating her senseless, breaking her wrist, and puncturing her scalp with a metal belt buckle with which they beat her.   Yahenacy was hospitalized, and Helen was expelled.

Whether or not the school administration had exercised due diligence will be up to a jury to decide.  What this decision emphasizes, however, is that school officials are responsible for protecting the weakest and most frail children in their charge, and if they fail in that responsibility, the school district may be held accountable.

July 27, 2016.

  1. L. v Lower Merion School District.  District Court, E.D. PA.  June 20, 2016
    Key Words:  Tuition reimbursement
    Published: Yes
    Decided for:  The school system

Interesting only because the parent was claiming that because the revised IEP had more specially designed instructions (SDIs) than the old IEP, the child was not making progress.

One of Plaintiffs’ principal contentions is that the IEPs were ineffective because T.L. did not progress, as evidenced by the addition of numerous SDIs in the June 2012 IEP as compared to the February 2012 IEP. Plaintiffs, however, misunderstand the function of an IEP. An IEP is not automatically defective because it includes more SDIs or more services than that of the preceding IEP. An IEP is required to be reasonably calculated to enable T.L. to receive meaningful educational benefits in light of T.L.’s intellectual potential and individual abilities. Ridley Sch. Distr., 680 F.3d at 269. Each time the IEP Team constructs an IEP, it must revise the IEP to address the following: “(I) any lack of expected progress toward the annual goals and in the general education curriculum, where appropriate; (II) the results of any reevaluation conducted under this section; (III) information about the child provided to, or by, the parents, as described in subsection (c)(1)(B); (IV) the child’s anticipated needs; or (V) other matters.” 20 U.S.C. § 1414(d)(4)(A)(ii). Thus, with each revision, “as any team, you continue to try to meet the needs. . . . you assess and make a determination as to whether that IEP is meeting the needs that were identified.” Admin. Record, Exh. 5 at 42.

The important point, in this reviewer’s judgment, is to remember that facts are a double edge sword . . . while they might appear to support your position, a good reviewer will always evaluate the data from his/her opponent’s perspective as well.   The court, after extensively reviewing the data provided by both the school and parents concluded that the child had in fact received more than non trivial benefit and the IEP had provided T.L. with a Free Appropriate Public Education.  The parents’ petition was denied.

LRP’s summary of the above case:

Array of supports shows child’s IEPs addressed his anxiety, behavior

The U.S. District Court, Eastern District of Pennsylvania denied private tuition reimbursement to the parents of a student with an SLD, ADHD, and anxiety. The court held that the student’s IEPs appropriately addressed his behavior and offered him FAPE. T.L. by K.L. and K.L. v. Lower Merion Sch. Dist., 116 LRP 27140 (E.D. Pa. 06/20/16).

July 18, 2016.

Maple Heights City School board of Education v. A.C., Northern District Court (Ohio), June 27, 2016
Key Words:  Manifestation; social maladjustment; emotional disability, stay put
Published:  Yes
Decided for:  The parents in part; the district in part

Is the possession of marijuana and the theft of an Ipod ever a manifestation of a child’s disability?  The Hearing Officer in this case found for this child it was a manifestation, and the district court (to the district’s dismay) agreed.

The facts in this case were relatively clear cut.  The girl had been classified as having an emotional disability.  She had marijuana with her in school.  She allegedly stole an Ipod.  The girl had been in a private school setting but transitioned back into a regular school, where numerous behavioral incidents were reported and recorded in the record.   Then the school decided to review the child’s disciplinary record and eligibility for services.   It concluded after a three hour meeting that the behaviors were reflective of social maladjustment and exited the student from sped.  The parents filed for due process and the student continued to receive special educational services.  Her behaviors continued to escalate, and her teacher changed her mind about her having an emotional disability.  It was during this period that the student was discovered to have marijuana, and the MDT found that the possession of marijuana was NOT a manifestation.  Both the hearing officer and state hearing review officer said that the school was wrong.   A settlement was reached, the child  continued to receive services, but then was caught stealing an Ipod.  The school found it was not a manifestation, the hearing officer reversed, and the state hearing review officer concurred.

Here’s where it begins to get  interesting.   The district employed a non-psychologist “expert” to review the data.  Their “expert” failed to notice the many mathematical errors in the teacher’s records, and her failure to accuracy report the trends in that data led to her testimony being discredited by the hearing officer.  On the other hand, testimony from a psychologist who actually completed a rather comprehensive evaluation and who also just presented as being honest and sincere, was critical in establishing the parents’ case.

In this case, the district sorely underestimated the deference due to administrative officers’ decisions by the courts — while courts aren’t obliged to give blind deference, they have to have a reason for overruling a hearing officer — and in this case, the judge did not ifnd one.   In short (and and paraphrasing) if a hearing officer finds that the district’s key witness is a dufus, he or she is not required to give their testimony much weight.   And in assessing witness credibility, even the courts must give deference to the hearing officer’s findings.  Credentials count.  And if one professional bases his or her opinions upon an evaluation, and other bases his or her opinions on a records review, the testimony of the professional who actually evaluated the child will be given more weight.

Another interesting point . . . the parents’ expert argued that applying the definition of “knowingly” in Black’s dictionary, and based on her conclusion that the child lived in a fantasy world, that she had not “knowingly” brought the marijuana on campus.   The hearing officer agreed.  The state review officer, however, said that within the context of the IDEA, the word “knowingly” only meant that a student was aware that s/he had the drugs.   The district court judge agreed with the review officer.   It didn’t really matter, though, since the district had failed to raise the issue at the MDT meeting and were, therefore, barred from raising it later on.

The IEP was not completed in a timely manner, there was no agreement to extend the IEP while additional assessments were being completed, and when an IEP was drawn two months later, the school simply modified the old IEP with “illegible handwritten notes.”   Nevertheless, Settlement Agreements signed by the parent barred further litigation on issues occurring before the date the documents were signed; and the parents lost their bid for private school tuition because they did not show that the district was incapable of providing their child with fAPE “going forward.”  (Everyone but the parents thought the district COULD provide the child with FAPE, even if they had sometimes failed to do so in the past.)

LRP had this to say about the case on July 14, 2016:

Expert’s education, thorough review support IHO’s credibility

An SRO did not err in concluding that a 14-year-old student’s possession of marijuana and theft of an iPod were a manifestation of her disability, in the eyes of the U.S. District Court, Northern District of Ohio. In affirming the SRO’s ruling, the court rejected the district’s argument that the SRO wrongly found no error in the IHO’s determination that the MDR analysis supported the parents’ contentions that the student with ED should not be removed from her placement. Maple Heights City Sch. Bd. of Educ. v. A.C. ex rel. A.W., 116 LRP 27742 (N.D. Ohio 06/27/16).

July 8, 2016.  “Spedlaw is never quite what it seems.”

“Spedlaw is never quite what it seems” is just another way of saying there is an exception to every rule.

The “rule” in this case is that parents of children with disabilities must exhaust administrative remedies (i.e., must request a due process hearing) before taking their special education complaints to court.

The exception to this rule is that parents do NOT have to exhaust administrative remedies under the IDEA if the relief they are seeking would not be available under the IDEA.

And that was the situation in Moore v. Kansas City Public Schools, Eighth Circuit, July 7, 2016
Key Words:  Exhaustion of administrative remedies, state court, rape
Published:  Yes
Decided for:  The parents  (on a substantive procedural question)

D.S. was a student with an intellectual disability who was repeatedly bullied and sexually harassed by her classmates.  She was raped by another student in an unsupervised area during the school day.  The parents sought damages in state court.   The school had the case removed to federal court, alleging that the relief sought was covered by the IDEA.   The District Court judge refused the parents’ request to remand back to state court and then dismissed their claims because they had failed to exhaust administrative remedies.

The school D.S. attended  was designed for 2500 students but served only 600.  Unused portions of the school were vacated and were supposed to be under lock and key.  They were not.   The facts of the case are disheartening in the extreme . . . a sample of the findings is provided below:

On April 1, 2014, around 10:44 a.m., a para-professional assigned to D.S.’s classroom watched D.S. leave the lunchroom and enter a hallway before the end of the period. Sometime between then and 2 p.m. that day, two students led D.S. through a set of unsecured doors, where a male student raped her while another female student acted as a “look-out.” The para-professional reported to a special education coordinator that D.S. was missing. D.S. never returned to class that day, and the Southwest security staff never made a record she was missing.

There are a number of precedents where, when plaintiffs have attempted to conceal an IDEA claim by presenting their case under another law (e.g., Section 1983 of the Civil Rights Act), the judges in those cases were not deceived and dismissed the claims due to a failure to exhaust the IDEA administrative remedies first.

However, that is not always the case, as the Eight Circuit found in this instance.  While the parents’ complaint mentioned the IEP, they were seeking damages under a state law for the injuries suffered by their child.   Not any changes in the IEP per se.   The Eight Circuit judges concluded “Notwithstanding defendants’ suggestions to the contrary, this is not a case where Moore has “merely . . . tack[ed] on a request for money damages” to evade the requirements of bringing a claim under the IDEA,”

The court concluded that the district court did not have jurisdiction and remanded back to the state court for adjudication.   What is sad from this reader’s perspective is that the principle of law regarding attorney fees in this civil case was whether or not the defendants had an “objectively reasonable basis for removal.” Not who was the prevailing party.   The circuit court concluded the school was not without a reasonable basis for requesting removal and denied the parents’ request for attorney fees.

The Eighth Circuit concurred in its opinion with the Ninth Circuit with respect to its finding that “[n]on–IDEA claims that do not seek relief available under the IDEA are not subject to the exhaustion requirement, even if they allege injuries that could conceivably have been redressed by the IDEA.”  Readers interested in pursuing that case and discussion more thoroughly should see Payne v. Peninsula School District, Ninth Circuit, July 29, 2011.

Readers might also be interested in seeing Justia’s free summaries of this case.

July 2, 2016.   Review of A.W. v. Fulton County School District, April, 2016.  (No link to decision)

My informal (personal) policy has been never to publicize a court decision when the judge’s decision itself was not available for review.  However, while I have not been able to locate the 120 plus page decision from April 2016, this case has been widely reported in the press (and earlier decisions have been made available).

This case should serve as reminder that the most dangerous lawsuits from a personal perspective are not the ones that are grounded in the IDEA or Section 504.  There are cases where the failures of staff and administrators are so egregious, so outrageous, that Section 1983 might be successfully invoked in a lawsuit seeking damages from both individuals and from the public school system.

The list of defendants in this case reads like a Who’s Who of the Fulton County District’s administrators, both past and present.

Abusing a child, even a child with a disability, is not protected by federal law.   There have been several examples in the past, but this case makes making a disabled child eat his regurgitated oatmeal seem like a childish prank.  (See Baird v. Rose 1999 and also Witte v. Clark County 1999)

The facts of this case are particularly outrageous — a special education teacher physically and emotionally abused her students for years,  yet her supervisors shielded her from the consequences of her actions although they knew what she was doing.

The underlying facts of the case were recorded in a due process case administrative hearing from February, 2012.  The child in question suffered from hydrocephalus in utero, cerbral palsy, seizures, and a reported IQ of 40.

The undisputed facts reported in 2012 were that the teacher, Pickens, ” would scream at all the children, including Alex, every day. She would burp in their faces, shake and press her breasts in their faces, and press her buttocks into their faces and pass gas. When she took the children out into the community on outings, she would curse at them. Alex was sometimes the direct recipient of these demeaning acts and sometimes a bystander. . In terms of physical abuse, Pickens would slam Alex into the lockers almost every morning. Alex, who was walking independently and carrying a backpack at this time, was very slow getting from the bus to Pickens’ classroom because of his gaited walk. His slow pace appeared to frustrate Pickens, and she would shove him face first into the lockers, hard enough to make a loud noise, in an apparent attempt to get him to hurry. On one occasion, when Alex was moving too slowly from the bus to the school, Pickens pushed him down on the concrete, where he fell and scraped his hand. At the end of the school day, when Alex was often tired and would be slow to pack up his things, Pickens would get frustrated and “throw his bookbag off his desk and tell him to go get it and get on the bus.” Pickens also insisted that Alex carry his backpack to and from the bus without assistance, which would cause him to be unsteady and fall.”

And that wasn’t all the abuse the poor child suffered; but bad people do bad things, and we seem to have grown accustomed to that.  The fact that most of the children she abused were unable to speak isn’t the worst thing, either.   What is simply incredible, and what makes this case remarkable (in the most negative sense possible) is that the principal ignored multiple complaints that were filed from other staff members and reportedly even apologized to Pickens on one occasion, saying “they’re picking on you again.”

Even more outrageous, a federal judge shielded Pickens again, granting her immunity, because (the judge allegedly said) she was just disciplining her students.  (Pressing your buttocks into a kid’s face and farting is “discipline?”)

“Pickens was arrested and charged with child abuse, but Fulton County Superior Court Judge Henry Newkirk granted her immunity from prosecution in 2014 after her attorney argued she was merely disciplining students in her capacity as a teacher.”.

Here is what LRP has said about the case:

Extreme, malicious nature of alleged abuse bolsters student’s 1983 claim

The U.S. District Court, Northern District of Georgia declined to dismiss a substantive due process claim filed by the parents of a student with hydrocephalus, cerebral palsy, and an intellectual disability against the student’s former district. The court held that the parents articulated a viable complaint that a teacher’s alleged abuse of their son amounted to “conscience-shocking” behavior. Williams by Williams v. Fulton County Sch. Dist., 67 IDELR 262 (N.D. Ga. 2016).

 A related lawsuit was filed in 2012 regarding another student.    That student was medically fragile and died in 2011 . . .  not, apparently, as a consequence of his treatment at the hands of this teacher.   Nevertheless the lawsuit sought ten million in damages.

I try to avoid personal editorializing when writing these summaries . . . mostly these special education cases involve generally nice people who either want more than they are actually due for their child; or who fail in one way or another to meet the substantial burdens imposed upon them by federal and state laws/regulations.   This was not and is not one of those cases.

The district’s response to the 2012 due process decision, by the way, was this:
“This situation never should have happened and our hearts go out to the family for what their child has experienced.

It is in no way an indication of the character or culture of Fulton County Schools. We are pursuing criminal charges against the former teacher in this case. 

We hope that this brings some sense of closure to this unfortunate circumstance.”

Right.   That must be why the school system dragged the parents through weeks of litigation fighting a battle that never should have been fought.

Even some of the lawyers approached by the school system could not stomach the immorality they were being asked to defend.

June-Image

June *

June 25, 2016

There were two (2) special education cases reported this week.

Baquerizo v. Garden Grove ISD June 22, 2016.  Ninth Circuit Court of Appeals
Key Words:  Comprehensive evaluation, FAPE, LRE, private school tuition reimbursement
Published:  Yes
Decided for:  The school system

The guardians alleged fatal procedural failures in this case, but the argument failed because the courts agreed with the school system that the fault for those violations lay at the parent’s feet, not theirs.

It is I think important to know that this litigation had been on – going for the past ten years.   After the first round, the school system admitted that it had failed to provide FAPE, and the parents were reimbursed for their private school placement.  The ALJ had only awarded partial reimbursement, citing the fact that the private school had not met all the child’s needs, but he was reversed with the total cost being awarded to the parents because (the higher courts ruled) the fact that all of his needs weren’t being met didn’t mean his placement wasn’t appropriate.   (In short, the ALJ had applied a standard that could not have been applied to the public school system, which only would havehad to provide non trivial benefit to the student.)

Although the school district intensified its efforts for the next year, the the guardians rejected the placement and sued again, also successfully, convincing the courts that transition to public school would have been difficult given that he’d been in an individualized placement for the past three years.

Jumping ahead to now, the parents sued again for private school tuition reimbursement, but things did not go as well for them this time.  They were alleging that the school district had not properly evaluated their child before the previous IEP team meeting, but the courts held that that was their fault, not the school’s.   The court found that the school had made “great efforts” to reevaluate the child, but that they had been thwarted by the parents.   Additionally, six weeks after having signed a settlement agreement on what assessments should be conducted, they asked for an IEE.   The district did not provide the parents with an IEE, which the court conceded might have been a technical violation, but since there was no evidence to show that that violation resulted in a denial of FAPE, the guardians’ argument was unpersuasive.

School psychologists might find this section of the decision of particular interest, because the parents had also alleged that the evaluation conducted by the school system failed procedurally because it failed to address the student’s anxiety.   The circuit court’s response to this argument was The IDEA does not require the school district to conduct all assessments possible; it requires school districts to decide what data is needed to determine “the educational needs of the child,” among other things. 20 U.S.C. § 1414(c)(1)(B). By Guardian’s own admission at the IEP meeting, an assessment of Carlos’s anxiety would not have significantly changed the educational plan in the IEP, because Carlos’s anxiety was being effectively managed by medication and breathing exercises.”  In short, a comprehensive evaluation must address every area of suspected need, but if the team doesn’t suspect a need . . . there’s obviously no need to assess for it.

Additionally, this time everybody (except the guardians) that the proposed IEP proposed by Garden City would have provided FAPE.   Which is why the circuit court concluded, “Because we hold that the June 2011 IEP does not violate the IDEA, Guardian is not entitled to reimbursement for Carlos’s private educational expenses during that school year.”
Court Description (courtesy of Justia): Individuals with Disabilities Education Act. The panel affirmed the district court’s judgment in favor of the defendant school district in an action filed by a student and his guardian under the Individuals with Disabilities Education Act. The panel held that the school district did not violate the procedural requirements of the IDEA in two Individualized Education Programs, or IEPs. As to the first IEP, the panel agreed with the district court that any procedural failure on the part of the school district was caused by the student’s guardian, and that, in any event, the student’s placement was a free appropriate public education, or FAPE. As to the second IEP, the school district did not commit a procedural violation by failing to assess the student for anxiety or by failing to determine baselines for speech and language goals. In addition, the student’s placement was a FAPE in the least restrictive environment. Accordingly, the guardian was properly denied reimbursement for private school placement. BAQUERIZO V. GARDEN GROVE USD 3

W,S. v. City of New  York School District, District Court, District Court, 2016
Key Words:  Tuition reimbursement, educational regression, autism
Published:  Yes
Decided for:  The parents

Unlike Baquerizo (above), the parents in this case cooperated fully with the school system which obviously did not hurt their case!

In this case, Elsie Grandoit, a school psychologist, who had never evaluated the child, chaired the IEP team AND created the IEP.  The court listed several factual findings that in a subsequent analysis it regarded as weaknesses.

The IEP contained entirely pre-academic goals for A.S.; no goals were listed in academic content areas. (IHO Ex. 1, at 7.) The IEP did not state particular levels of achievement for A.S., nor did it contain baselines. (IHO Dec. at 21- 22.) Grandoit testified that she did not know why there were no levels of achievement listed, but said that there were no baselines because the CSE viewed A.S. as “learning” to perform the goals listed.

However, the real “killer” for the school system was that the proposed program (1) did not include the ABA or people skilled in discrete training that it had provided in previous IEPs; and (2) the child had received once services similar to those proposed in the new IEP  and had actually regressed.

The school psychologist’s reason for not  even considering the the parents’ proposed placement because it was “not on the approved list” apparently was also a non starter for the court.

In the 20 page decision, the court concluded (among other things) that “The parents have provided significant evidence that BAC was an appropriate placement for A.S. The uncontroverted record evidence from those who have actually interacted with and evaluated A.S., over many years, was that she required 1:1 ABA instruction. The DOE proffers no evidence to the contrary, aside from generalized arguments based on the testimony of individuals like Grandoit who have never met A.S., let alone evaluated her in an instructional or therapeutic setting.

Judgement for the parent.

Court Description  (courtesy of Justia): MEMORANDUM OPINION AND ORDER re: 7 MOTION for Summary Judgment. filed by W.S., 13 CROSS MOTION for Summary Judgment, filed by City School District of the City of New York. For the foregoing reasons, Plaintiff’s mot ion for summary judgment is granted and Defendant’s cross-motion for summary judgment is denied. This Memorandum Opinion and Order resolves docket entry nos. 7 and 13. The Clerk of Court is respectfully requested to enter judgment in favor of Plaintiff and to close this case. (As further set forth in this Order.) (Signed by Judge Laura Taylor Swain on 5/23/2016) (spo)

June 21, 2016.

In the eighties and nineties, whenever OSEP published a letter, many school administrators were inclined to dismiss them, saying, “Oh, that’s just OSEP.”

The fact that parent spedlaw attorneys could cite them in court in support of their interpretations of spedlaw, however, tended to elevate their stature, as did the fact that the Education Department held the power of the purse over their federal funds.

However, this April 2016 OSEP  letter on dyslexia  reminds us that the “Oh, that’s just OSEP” disclaimer is not always undeserved.   The disclaimer required by Congress in every OSEP letter also reminds us that we need not accept OSEP’s pontifications uncritically:

Based on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented

The actual question being addressed in this April, 2016 OSEP  letter on dyslexia was whether dyslexia would only come up if a parent provided an IEE from a private practitioner.

The letter writer is of course correct in saying that the IDEA does not require a child to receive a label or a diagnosis in order to receive services under the IDEA.  She is also technically correct in saying that if an IEP team determines a medical evaluation for dyslexia is necessary, it must conduct the assessment.   The fact that under the IDEA a diagnosis or label would never be required not withstanding.

Here is where I part company from OSEP:  “We also note that an evaluation for dyslexia could be an evaluation by a licensed physician to determine a child’s medically related disability that results in the child’s need for special education and related services. 34 CFR §300.34(c)(5).”

The regulatory citation  just refers to “medically related” disabilities; but dyslexia is generally defined as  a “word level reading disability” that is “characterized by difficulties with accurate and/or fluent word recognition and by poor spelling and decoding abilities.”  (NC Topic Brief.)

Generally physicians do not have access to the reliable and valid assessments needed to make a diagnosis of dyslexia or specific learning disorder.   (There are exceptions, of course, where physicians are employed by clinics that do provide their patients with access to multidisciplinary teams).   More typically, children suspected of having a reading disability would be referred to a medical doctor to rule out other conditions that could be causing the problem.  Even those who do not believe school psychologists are sufficiently qualified to both diagnose and prescribe appropriate interventions would be recommending a neuropsychological evaluation, not a medical or neurological, e.g., this recommendation (from a neuropsychologist) on Wrightslaw:

If this is your child’s first evaluation, a neuropsychological evaluation is likely to provide more useful information. In my opinion, you should get an initial neuropsychological evaluation, then if needed a psycho-educational evaluation as a follow-up a year or more later to track your child’s rate of progress over time. –

But never just a medical.  And usually not a medical at all.

There is a second problem with this letter.  While OSEP is only responsible for enforcing the regulations under the IDEA, the diagnosis of dyslexia or specific learning disorder in reading carries with it implications for eligibility under Section 504 as well as the IDEA.   The IDEA does say a child does not have to be classified in order to receive services, which is a bit misleading in and of itself because virtually all states require children served under the IDEA to be classified — even Iowa, which allows its schools to classify a child as an “Eligible Individual.”  And neither the IDEA nor the states have ever required students to have a DSM (or any other) diagnosis to be served.   However,  a diagnosis of a disability is required under 504.  Ns. Ryder could have addressed that issue either by (1) taking the elevator upstairs to formulate a joint letter with OCR or (2) by including a statement such as “This letter only applies to rights afforded children under the IDEA.   Students may have additional rights under Section 504”   Which, while not informative, at least would have pointed the reader in the right direction.

The ADAAA of 2008 specifically referenced reading as a major life function covered by the Act (and, by reference, Section 504).  OCR has been very clear that if a school suspects a child has a disability, it must provide an evaluation at no cost to the parents.    Neither the ADA nor Section 504  require that every child served under the Act receive a medical evaluation.

I was sufficiently piqued by this letter to review the author’s qualifications.  Ruth Ryder, the letter writer, was the Deputy Director for OSEP and has been with ED since 1988.  She appears to  have been Acting Director since January.  She lists in her biography experience  as a consulting special education teacher, a general education teacher, and a degree in special education administration.   Obviously an accomplished and highly qualified public servant, so that wasn’t the issue.

Regardless, I recommend reading the October, 2015 OSEP letter on dyslexia for more informative guidance.

Guy

June 11, 2016

DL v. District of Columbia, District Court, May 18, 2016. 129 pages

Key Words:  Class action lawsuit; timeline violations, provision of services in a timely manner
Published:  Yes
Decided for:  The plaintiffs

The District of Columbia has had more spedlaw lawsuits per capita than anywhere else in the country.  This particular lawsuit has been dragging through the courts since 2005.

The judge also wrote a shorter Memorandum (29 pages)

The case is still not over; if the school system does not live up to its promises, and plaintiffs file another complaint, the judge has promised to take more direct and more intrusive action.   As might be expected from a case of this magnitude, there has already been some postings about it on the Internet.

For a summary of the history behind this lawsuit, see:  Travis, Pravlik, and Millian, LLP’s, report.

‘On May 18, 2016, the district court found the District of Columbia liable for violating the children’s rights and issued a sweeping injunction.  The district court enjoined the District of Columbia from further violations of the IDEA and District law, and ordered specific corrective actions, including that the District ensure that (1) at least 8.5 percent of children between the ages of three and five who reside in the District or are wards of the District receive necessary special education and related services, (2) at least 95 percent of all children between the ages of three and five referred for special education services receive a timely eligibility determination, and (3) at least 95 percent of all children receiving Part C services that are found eligible for Part B services receive a smooth and effective transition to those Part B services by their third birthdays.

“The injunction also includes specific provisions related to the measurement and monitoring of compliance.  Specifically, the District of Columbia was ordered to correct several metrics that it uses to measure compliance with these benchmarks, which had made it appear that it was performing much better than it actually was.”

Education Week

“A ruling on a long-running, class-action lawsuit against the District of Columbia will require the city to increase the number of young children that it evaluates and identifies for special education services—a process known as “child find”—and also to improve those students’ transition into grade school. 

The ruling in D.L. v District of Columbia, from U.S. District Judge Royce Lamberth, says that the District of Columbia must ensure that at least 95 percent of all preschool children referred for special education services receive a timely eligibility determination, and that 95 percent of infants and toddlers that are receiving early intervention services receive a “smooth and effective” transition to special education services by their third birthday. 

The May 18 ruling goes further, stating that the city must enroll at least 8.5 percent of its preschool age population in special education. That figure came from expert testimony based on risk factors in the District of Columbia compared to other jurisdictions, and to incidences of developmental delays nationwide.”

May

May *

May 30, 2016

L.O. v. New York City Board of Education, May 20, 2016, Second Circuit  49 pages
Key Words:  IEP, Procedural Violations, Denial of FAPE
Published:  Yes
Decided for:  The parents

Cutting to the chase, “The District Court denied L.O. relief on the basis that the deficiencies identified in the IEPs were “more formal than substantive.” L.O. 94 F. Supp. 3d at 571 (internal quotation marks omitted). We have explained, however, that “[t]he initial procedural inquiry in an IDEA case ‘is no mere formality,’ as ‘adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.’” A.C., 553 F.3d at 172 (quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998)). Accordingly, we reverse the judgment of the District Court and remand the case for further proceedings.”

The judge went on to write, “Accordingly, on remand, the District Court is directed to consider, in the first instance, what, if any, relief L.O. is entitled to as an award for K.T.’s FAPE deprivations for the 2009–2010, 2010–2011, and 2011–2012 school years. In doing so, ‘[w]e leave the mechanics of structuring the compensatory education award to the [D]istrict [C]ourt’s sound equitable discretion, although the court may wish to consult remedies that we have endorsed in the past.;”

Smith v. Los Angeles Unified School District, May 20, 2016, Ninth Circuit   41 pages
Key Words:  class action lawsuit; LRE; intervention
Published:  Yes
Decided for:  the plaintiffs (a procedural victory)

A complicated case.  Some parents had sued LAUSD in a class action lawsuit.  They won the right for their severely handicapped children to attend the same schools as regular education children.   These parents sought to intervene.  The district court said, “No,  your request for intervention isn’t timely.”   The Ninth Circuit cpnsidered these parents claims in considerable detail, concluding the district court had abused its discretion.

Timothy O. v. Paso Robles USD, May 23, 2016, Ninth Circuit  43 pages
Key Words:  Autism, comprehensive evaluation, initial evaluation
Published:  Yes
Decided for:  The parents

THIS DECISION IS RECOMMENDED READING IN ITS ENTIRETY BY SCHOOL PSYCHOLOGISTS

This is a website for school psychologists.   This case arose out of a school psychologist’s decision to base his diagnosis of a child later diagnosed with autism on an observation; it’s unknown why the school system chose to argue that that “observation” was harmless in light of the subsequent diagnosis.

It is not the purpose of this writer or this website to evaluate another school psychologist’s work, but the facts presented in court were these.   They are presented here, in the court’s words, because they were the basis for the court’s finding for the parents.  It should be noted, however, that the child had already been evaluated previously, that the previous agency suspected autism, and the school knew that there was a suspicion of autism.  And how did the school psychologist respond?  He observed the child.

“According to the notice provided to Luke’s parents, Luke was to be assessed by Christie Youngdale, a resource specialist for Paso Robles, and Lisa Stinson, a speech and language therapist, for academic/pre-academic achievement, sensorymotor development, communication development, and health issues. He was not, the notice reflected, to be given any assessments underthe categoryof “social/adaptive behavior,” the category covering disorders on the autism spectrum. Youngdale and Stinson observed Luke and tried to engage him in play, but their attempts to utilize standard assessment tools were unsuccessful because of his “compliance” issues. During the assessment, William Peck, a Paso Robles psychologist, stopped by and observed Luke for approximately thirty to forty minutes. Although the notice to Luke’s parents mentioned nothing about Peck’s involvement, Peck later testified that he came to observe in order to “consult with the staff in terms of possible handicapping conditions which may be – may have or may not have been present.” Specifically, he later admitted, “there was a possibility of looking at autism as a handicapping condition.” Rather than schedule a formal assessment for that condition, however, Peck merely observed Luke in order to advise Paso Robles’ staff whether it needed to conduct a full and formal test for autism. This was, apparently, his standard practice. Peck at no point explained the purpose of his visit to Luke’s parents. Indeed, during the observation, he did not communicate at all with either Luke or his parents, who were present while the tests were administered.”

From his cursory observation, during which he did not utilize any standard assessment tools, Peck concluded that there was no need for Paso Robles to formally assess Luke for any disorder on the autism spectrum because he saw Luke 16 TIMOTHY O. V. PASO ROBLES USD use a “variety of facial expressions,” display emotions, and demonstrate his “skill at turn-taking.” In Peck’s opinion, this was uncharacteristic of a child with a disorder on the autism spectrum. Relying on this informal advice, Paso Robles concluded that Luke had only an expressive language impairment—not autism—and without taking any steps to assess Luke for autism or autistic-like behaviors, or to ensure that he would be so assessed, it scheduled an initial IEP meeting for early December 2009.14 At no point, however, did Paso Robles explain to Luke’s parents that it had thought about assessing Luke for autism, and indeed, had called Peck in to observe for that reason. Nor did it explain that it had decided not to formally assess Luke for autism based on Peck’s recommendation”

The court’s analysis of this “assessment” from a legal perspective carries with it the force of precedential caselaw in the ninth circuit and may be persuasive in other jurisdictions as well:

Peck, of course, did not conduct an assessment for autism, let alone one that complied with the IDEA. Not only was his involvement in Luke’s initial evaluation not included within the original notice provided to Luke’s parents, but he did not use a variety of standard or reliable methods. 20 U.S.C. § 1414(b)(3)(A). Rather, he used only one, generally unreliable method—informal observation—or to use a phrase later employed by him, observation “off the top of my head.” While the record reflects that a complex form of structured observation may be used as a tool to identify autistic-like behavior, Peck was not certified at that time to perform that kind of testing, and in fact did not do so or even purport to have attempted to do so. To hold that Peck’s informal observation could overcome Paso Robles’ statutory obligation to formally assess Luke for a suspected disability would allow school districts to disregard expressed and informed concerns about a child’s disabilities on the basis of prejudicial stereotypes about what certain disabilities look like, rather than on the objective evidence and the thorough and reliable standardized testing that the IDEA requires. This result would be particularly devastating for children with autism because, as Dr. Freeman explained at the administrative hearing, the condition “can be very subtle” and manifest itself in many different ways. It would likely be missed by an informal observation, resulting in many children remaining undiagnosed, untreated, and unable to reach their full educational potential. The effect, moreover, would be felt most heavily by children from disadvantaged families without the sophistication or resources to obtain outside professional opinions.

The court, in reversing and remanding, went on to say

Well before creating an individual education plan for Luke, Paso Robles had notice that he might have a disorder on the autism spectrum. Under the IDEA, the school district had an affirmative obligation to formally assess Luke for autism using reliable, standardized, and statutorily proscribed methods. Paso Robles, however, ignored the clear evidence requiring it to do so, and instead determined that Luke was not autistic based on the view of a staff member who opined, after a casual observation, that Luke did not display signs of autism. This failure to formally assess Luke’s disability rendered the provision of a free appropriate education impossible and left his autism untreated for years while Paso Robles’s staff, because of a lack of adequate information, took actions that may have been counter-productive and reinforced Luke’s refusal to speak. We hold, therefore, that Paso Robles violated the IDEA and denied Luke a free appropriate public education during the 2009–2010 and 2010–2011 school years. We reverse the decision of the district court and remand for a determination of the appropriate remedy.

May 13, 2016

M.S. v. Utah School for the Deaf and Blind, Tenth Circuit, May 10, 2016
Key Words:  blind and hearing impaired, LRE, auditory stem test (ABR), standards for reimbursing attorney fees
Published:  Yes
Decided for:  The parents

The parents in this case appealed a district court judge’s decision to delegate authority for determining the most appropriate placement for a blind/hearing impaired child back to the IEP team and, additionally, challenged the judge’s decision to significantly reduce their claim for attorney fees.

The circuit court determined that the judge’s decision to refer the case back to the IEP team was improper, remanded the case back to  that judge to make the determination, and cited several flaws in the district court’s formula for determining reimbursement.

There were several aspects to this case of interest even if not particularly relevant to the legal outcome.   One was that the student had also been diagnosed with autism . . . but the diagnosis was challenged because it was made before anyone knew of the student’s hearing loss.  (Audiological testing had not been possible due to the student’s aversion to having anything near his ears.  The hearing loss was only discovered after a sedated auditory brainstem test (ABR) was performed.)  For a school psychologist, that kind of mistake (“Gee, I thought the kid could hear because his teacher told me he could hear”) can be professionally embarrassing.

The district court determined that the child’s school system had failed to provide FAPE, in no small part because  an FM system, required by the child’s IEP, had not been implemented for an entire school year.  Recognizing that the determination of an appropriate placement was an issue, the judge then refused to make that decision himself, referring the issue back to the same IEP team and same school system that had failed the student in the first place.  (p. 10 of this 22 page decision.)   Courts can and have ordered IEP teams to implement their remedies, but in each case the IEP team had no leeway or discretion to modify the remedies ordered by the court.  The district court judge, however,  did not order any specific remedies.

So with respect to the first issue, the 10th Circuit wrote, “Thus, we must remand this case to the district court to vacate its order and to resolve in the first instance whether M.S. should be placed at Perkins to compensate for USDB’s failure to provide her with a FAPE.7 In so ordering, this court recognizes that the passage of time and additional developments might bear significantly on the issue of M.S.’s placement. IDEA, however, allows for the presentation of additional evidence at the request of a party and empowers the district court to “grant such relief as [it] determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(ii)”

With respect to the second issue, attorney fees, the circuit court found that the amount of relief was dependent on the relief finally obtained, not a mathematical formula.  It went on to note that the district court’s formula (basing the relief on the percentage of claims upheld) was in error because the judge mistakenly based his assessment on the assumption (for want of a better word) that those claims not sustained were unrelated to the relief actually obtained.   They were not.  “If J.S. lost “on claims that were unrelated to the claims on which [s]he succeeded,” then “no fee may be awarded for [counsel’s] services on the  unsuccessful claim[s].”10 Id. at 434, 435. If, on the other hand, the district court concludes all claims raised in J.S.’s suit are related, it must consider the significance of the overall relief obtained by J.S. in relation to the hours reasonably expended on the litigation. A purely mechanical, mathematical accounting of the discrete issues upon which J.S. prevailed is not an appropriate analysis of the overall-significance approach set out in Hensley. Id. at 436 (noting that although district courts have discretion to make equitable judgments in resolving fee requests, such discretion “must be exercised in light of the considerations” set out therein).

april

April *

April 27, 2016

Somberg v. Utica Community Schools, District Court, ED Michigan, March 30, 2016   16 pages
Key Words:  autism, compensatory education, deference
Published? Yes
Decided for:  The parents

Another one of those cases that goes back years, in this instance to 2012, when this autistic student was already 18 years old..   Also interesting because the school system had tried to scare off the parents, apparently, by seeking attorney fees from the court.   The court disagreed that the lawsuit had been filed for an improper purpose.   It appeared that H.O. had found that the situation giving rise to the initial lawsuit had been resolved because the school system had simply agreed to stop violating the child’s IEP.  However, ceasing an action does not remediate the harm done initially, and the H.O. had found that because the school was no longer doing wrong, there was no need to consider any further remedies.

The judge in this court disagreed, saying “This common sense proposition applies here. If Dylan missed out on significant and valuable instruction like transition programming, for example, then starting such programming late in the game leaves Dylan at a disadvantage. Accordingly, the court finds that Dylan is entitled to some measure of compensatory education.”

While in the previous case reported this week the judge gave considerable deference to the H.O. decision, in this case the judge concluded “The ALJ’s decision to completely deny Dylan compensatory education relief cannot be determined to be “based on educational expertise” because of the lack of any explanation or justification. The decision therefore is due considerably less deference.”

The basic principle here was and is that simply correcting a wrong does not remediate the harm previously incurred as a result of that wrong.  The judge’s conclusions were

“IT IS ORDERED that Plaintiffs’ Motion for Judgment (Dkt. # 22) is GRANTED as follows: (1) UCS shall pay for compensatory education for Plaintiff Dylan Somberg in a manner and amount to be determined by further proceedings before this court. (2) Counsel shall appear before the court on April 27, 2016 at 2:00 p.m. for an in-person conference to establish a schedule for such further proceedings.”

April 27, 2016

Jason O. and Jill O., individually and as next friends of Jacob O., a minor, Plaintiffs, Case No. 14 C 7778 v.  Manhattan School District No. 114 and Illinois State Board of Education,   US Dist. Court, ND Illinois, March 29, 2016 60 pages
Key Words:  ADHD, ED, FAPE, IEE reimbursement, Tuition Reimbursement
Published:  Yes
Decided for:  Mostly for the school system

The child was diagnosed with ADHD and ED.   The parents alleged that the school’s self contained program did not provide the student with FAPE and sued.  The judge in this instance decided based on the facts that he owed the hearing officer a considerable amount of deference, and he basically adopted all of the hearing officer’s decision except one.   It’s probably worth noting that the school’s actions toward the child were not always what one might have wished in the best of all possible worlds, but ultimately they proposed a pretty comprehensive IEP including ED classification, SLI services, and a behavioral intervention plan.

After a due process hearing, the H.O. found for the school system on all counts, except for $773.90 that the parents had paid out of pocket (co-pay) for the evaluations that they had conducted.  The district court judge, applying Illinois tort law, awarded another $3100 to cover the pre-insurance costs of the evaluation.  The distinction here from cases in which parents allow the school system to use part of their insurance was that in those cases no wrongs (torts) have occurred for which the aggrieved party is entitled to compensation and, secondly, parents are not even when insurance is available obliged to let schools apply it to the cost of their children’s evaluations.  (If they say “No,” the school would still be 100% responsible.)   Tort laws do differ from state to state, so this decision should not be relied upon as setting a precedent without consulting with an attorney in your state.

April 8, 2016

S.C. and J.C., individually, and on behalf of T.C., a minor, Plaintiffs, v. THE KATONAH-LEWISBORO CENTRAL SCHOOL DISTRICT, Southern Dist. Court, NY, 3/30/3016
Key Words:  FAPE, IEP, Private School, Tuition Reimbursement
Published:  Yes
Decided for:  The Parents

This 55 page decision awarded compensatory education and attorney fees to parents in a dispute that had its origins as far back as 2010.  The district was contending that the parents were not entitled to either of the above because they had predetermined the private school placement from the gitgo, an argument that as we have seen prevailed in some other court cases.  However, in this instance, the district was relying on actions by the parents that had taken place a full  18 months before their decision to remove their multiply handicapped child, an argument that the judge said “strained credulity.”  It wasn’t just that the student was intellectually disabled; he also had been diagnosed with “Attention Deficit/Hyperactivity Disorder–Combined Type, Mixed Receptive-Expressive Language Disorder, Speech Motor Disorder, Motor Based Coordination Disorder, Language Based Learning Disorder, Hypotonia, and Oral-Motor and Global Motor Apraxia. (See Ex. F (“Stern 2010 Report”) at 2, 12; Ex. AA (“Dorta Report”) at 7.)2 T.C. has “wide ranging neurocognitive deficits with the most severe aspect being his very poor spatial-nonverbal skills, limited language processing ability, and very vulnerable ‘executive functions.’”   Clearly not the typical diagnoses one would find in a school psychologist’s report.

The school system, in brief, provided this student with intensive services, and offered a fairly intensive program after the parents unilaterally placed him in private school, later suing for tuition reimbursement.   So what went wrong?  Well, first the parents won the hearing.   Then they lost when the State Review Officer (SRO) reviewed the decision.   Hence their appeal to federal district court.

The standard used by this court and others was “In deciding whether tuition reimbursement for such a private placement is warranted, a court must first consider (1) whether “the state has complied with the procedures set forth in the IDEA,” and (2) whether the IEP developed “through the [IDEA]’s procedures is reasonably calculated to enable the child to receive educational benefits.” Cerra, 427 F.3d at 192 (alteration and internal quotation marks omitted). If the answer to these questions is yes, no reimbursement is permissible. See id. (“If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.” (internal quotation marks omitted)). If no, the court then considers (3) whether “the private schooling obtained by the parents is appropriate to the child’s needs.”

Courts are required to give administrative decisions “due deference.”   But not blind deference.  And this is a case where the court did NOT defer to the SRO.

“[I]n particular, while the SRO does cite to some record evidence in his analysis of the issue, as detailed below, the marshaled evidence does not actually lend much, if any, support to the SRO’s conclusion. Accordingly, the Court will not afford deference to the SRO’s conclusion that a 12:1:2 class was appropriate for T.C. ”

What it finally came down to was that there was agreement that the student needed continuous prompting which would have required a 1:1 paraprofessional assigned to the student, and the school was proposing a 12:1:2 classroom that some experts said would be “overwhelming” for the student.  It wasn’t that he would act out — but that he would “fade into the woodwork” while waiting for an adult to assist him.

Interesting case — but with no real villains.

April 8, 2016.

Jane Doe v. Torrington School Board, District Court Conn., March 30, 2016    
Published:  Yes
Key Words:  Harassment, Section 504, ADA, Title IX
Decided for: The school

The student in this case was harassed, bullied, insulted and even physically abused by members of the football team.   That appears to have been beyond dispute.  The main problem for the parent in this 27 page decision is that she failed to link all of this horrible behavior to her son’s disability.   For that reason, the district court judge dismissed all of her civil rights claims.   The original claim included allegations that the student had been denied FAPE as a result, but those claims were also dismissed because the parent had failed to exhaust administrative remedies (that is, she had not requested a due process hearing) first.   The Title IX claims based on sexual harassment were dismissed because the court found that the parent failed to meet her burden to show that the school system had acted with deliberate indifference to those assaults.

This case may not be over, because the parent retained the right to sue the school system under state laws in state courts.   The judge dismissed those claims, but without prejudice.  “The Court GRANTS Defendants’ motions to dismiss. The federal claims—Counts One through Seven—are dismissed with prejudice because they fail to allege facts that make it plausible that the Defendants violated the federal laws listed above. The state law claims—Counts Eight through Fourteen—are dismissed without prejudice to refiling them in state court.”

march1

March *

March 26, 2016 Litigation Update

B.D. v. District of Columbia, March 22, 2016, D.C. Circuit Court  (21 pages)
Key Words:  Enforcement of Hearing Officer Decision, Therapeutic Residential Placement,
Published:  Yes
Decision for:  the parents in part, the district in part

The parents had won a favorable decision from the hearing officer, but they had appealed to district court asking that those portions of the decision favorable to them be enforced but that court find the hearing officer’s offered of limited compensatory education be found inadequate and that the district be ordered to provide the child with a therapeutic residential placement.   The district court found for the school district and the parents appealed.

It is an interesting case for lawyers, because of its discussion on how parents who win a hearing can still obtain relief in the federal courts.  The parents prevailed on their first count but lost on the other two counts considered by the court — not, however, because there was no effective argument that they could have made but that their lawyer did not advance those arguments in his brief — thus effectively barring his clients from offering them at a later date.  In effect, the court seemed to be saying that while they could have argued this case in such a way as for the plaintiff  to prevail on at least one other count, unfortunately the parents’ attorney did not.  So  sad, too bad.

In any event, the parents won in their seeking of more compensatory education than the hearing officer offered, but they lost in their effort to force the district to reimburse them as the hearing officer had directed for services they had provided and they lost in their effort to have the federal court direct the district to find a residential placement for the child.   The district court had found in favor of the parents’ claim to partial reimbursement of their legal fees.

March 16, 2016

Beauchamp v. Anaheim School District, March 16, 2016.  Ninth Circuit
Key Words:  Settlement agreement, attorney fees
Published:  Yes
Decided for:  Mostly for the school system

In this case, which had its beginning back in 2012, the parents won, but what they won at the more recent impartial hearing was not substantially more than the school system had offered as part of a Settlement Agreement..   Neither side appealed the final ALJ’s decision, but the parents went to district court to recover all of their attorney fees.  The district court awarded the parents $7740 in legal fees, which were substantially less than the $66,420 that they had requested.  The $7740 was for attorney fees in helping reach the Settlement agreement.  There was no question that the parents had prevailed, BUT if what the parents got as a result of additional litigation was no more than what the school had offered in the first place, attorney fees are not available.  Also, the parents had also requested payment for their paralegal fees, but the district court had already established that the person in question was an educational consultant, not a paralegal.  The IDEA does not provide for non attorneys  to be reimbursed even if a parent is the prevailing party.    The Ninth Circuit in a relatively brief (17 page) decision, affirmed the district court’s rulings.

IDEA Reference:  Section 300.517

Excerpt

Attorneys’ fees may not be awarded and related costs may not be reimbursed in any action or proceeding under section 615 of the Act for services performed subsequent to the time of a written offer of settlement to a parent if–

(A) The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins;

(B) The offer is not accepted within 10 days; and

(C) The court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.

March 11, 2016

M.C. v. Rockwell Independent School District., March 10, 2016, Fifth Circuit
Key Words:  Tuition reimbursement, IEP, reasonable behavior
Published:  Yes
Decided for:  The school system

This is a more interesting case than it seems at first glance.  The standard for tuition reimbursement is that the parents show that the IEP proposed was not reasonably calculated to provide the child with benefit and that their unilateral private school placement did provide the child with benefit.    Here, however, another factor was introduced by the school system.   Whether the parents acted “unreasonably.”  Unreasonable conduct in and of itself can doom a parent’s case.

What did the court find “unreasonable”?  By way of background, the girl had been diagnosed with ADHD and depression.   The school qualified her as ED.  She was provided with an IEP but her performance at school worsened.   On the night before the first day of school, she left home without permission, drove with a friend, and was in an accident.  She was placed by the school in a 45 day alternative placement.  Following this, the student developed an anxiety disorder and refused to stay in school for a full day.   A private psychiatrist recommended a private placement.   The school agreed to pay for a year and a half of private school instruction. As part of the agreement, the parents said they’d provide the school with at least 30 days notice before any additional private school placements.   The parents notified the school in November 2011 that they were going to enroll the student in a private school and an IEP (ARD) meeting was held.   The meeting apparently went well until the father presented an alternative proposal whereby the student would continue in the private school placement for the next semester.   No agreement was reached.

The school system proposed another meeting to discuss the parents “unique” proposal to keep the child in a private school placement with the school attorney present.  Here is where the parents apparently erred, because they declined the meeting, saying that their attorney had told them it was unnecessary for them to attend another meeting and that all was necessary was for the school to respond to their proposal.    After a due process hearing, the hearing officer found for the parents, the school appealing.  The district court found for the school system, arguing that the district had complied procedurally and had provided an IEP that was reasonably calculated to provide the child with FAPE.   The parents appealed to the circuit court, where the school argued that a more direct approach could resolve the issue, i.e., a finding that the parents had acted unreasonably in their all or none approach to a case resolution.    The circuit court agreed that the record showed that the parents had no intention of approving any IEP offered unless it complied with the parent’s preconceived plan for the student to remain in her private school.  District court decision for the school system:  Affirmed.

March 3, 2016.

A.G. v. Paradise Valley Unified School District, Ninth Circuit, March 3, 2016
Key Words:  ADA, 504, damages, emotional distress, false imprisonment, assault
Published?  Yes.
Decided for:  Parents in part, school in part

The only decision here really was a decision to let the parents sue.  The district court had dismissed most of the parents’ charges.  The Ninth Circuit reversed, saying that there were material issues of fact over which the parties disagreed, calling for a trial on the parents’ allegations of assault and unlawful restraint.   Essentially, the parents’ argument was that contrary to the district’s assertion that she posed a danger to herself and/or others, she did not, and the school personnel  unlawfully restrained her despite having prior knowledge of her tactile sensitivity.  The Ninth Circuit affirmed the district court’s dismissal of the parents’ claims that the school intentionally inflicted the child with emotional distress.  The decision (link above) ran 30 pages, with a review of the applicable standards  it used in reaching their conclusions.

Trimble v. Perry County Board of Education, Supreme Court of Alabama, October 2015-2016
Key Words:  Damages, confidentiality, 504
Published:  Yes
Decided for:  The school system

Normally, I wouldn’t report state court decisions because their precedential value is limited to the state in which they were issued . . . and additionally this particular decision was split, one judge dissenting.   However, it may be instructive, nonetheless.  The child was on a 504 Plan.   The district realized it had an obligation to let the student’s teachers know what updated accommodations were required by the plan.   It put the updated information in sealed envelopes to be distributed to her teachers.  It assigned a student assistant to deliver the information.   The student opened at least one of the envelopes before delivering it.  In addition to information about the accommodations the child required, there was also information about her disability.   The student spread the information among other students.   As a consequence, the child at the heart of his dispute was allegedly harassed and bullied.   Her parent sued just about everyone alleging “negligence, wantonness, nuisance, breach of contract, and invasion of privacy against each defendant and claims of negligent hiring, training, and supervision against all the defendants except the student office aide and Longmire.”  The Supreme Court dismissed the claims based on state agent immunity.     The real moral of this case: Don’t give confidential information protected by FERPA to students to deliver.   Even in a sealed envelope.  In case in YOUR state the decision is two to one in favor of the parent.

 

February

February *

February 27, 2016.

J.V. v. Albuquerque Public Schools, Tenth Circuit, 2016
Key Words: autism, Title II (ADA), discrimination
Published:  Yes
Decided for: The school system

A child with autism became extremely disruptive in school.  The school officer was called in,  and she tried to calm the child unsuccessfully.  The school called the mother who gave permission to restrain him.  The officer, in order to protect the child from doing himself or others from harm, handcuffed him to a desk after having herself  been repeatedly assaulted.  The mother, who had by that time arrived at school, entered the room, demanded that the child be released, and took pictures with her cell phone.  The child’s wrists were bruised from the cuffs.  She withdrew him from school.  He was re-enrolled in another school, but reportedly could not even drive by the school where he was handcuffed without throwing up.   The mother sued.  “The district court granted summary judgment to APS. On the denial of benefit claim, the court granted summary judgment because C.V.’s mother—not APS—withdrew C.V. from the school, and C.V. attended a different school in the same school district. On the discrimination claim, the court said the Appellants provided no evidence of intentional discrimination, disparate impact, or a request or an obvious need for a reasonable accommodation.”  The Tenth Circuit, finding no reversible error, affirmed.

Tina M. v. Tammany Parish School Board,Fifth Circuit,  February 23, 2016
.

Key Words;  Stay put, prevailing party, attorney fees
Published; Yes
Decided for;  The school system

Cutting to the chase, the ALJ had ordered that the student be accorded his stay put rights under the IDEA, and on those grounds the parents sought reimbursement for attorney fees as the prevailing party.   The district court agreed, saying the parents were the prevailing party, and the school system appealed to the Fifth Circuit.  The Fifth Circuit reversed the decision of the district court.

Although the decision (link above) explores the issues in even further detail, this portion of the discussion would appear to have settled the matter;

Contrary to the district court’s conclusion, the ALJ’s stay-put order was not a ruling on the merits. The IDEA’s stay-put provision provides in relevant part that “during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child.” 20 U.S.C. § 1415(j). “The injunction is automatic . . . .” Wagner v. Bd. of Educ. of Montgomery Cty., 335 F.3d 297, 301 (4th Cir. 2003). “It guarantees an injunction that prohibits a school board from removing the child from his or her current placement during the pendency of the proceedings.” Id. “Thus, when presented with an application for section 1415(j) relief, a district court should simply determine the child’s then-current educational placement and enter an order maintaining the child in that placement.” Id. Indeed, the ALJ’s order here, which repeatedly noted that “the question of stay-put is procedural and not a determination on the merits of the case,” clearly reflects that there is no merits component to this analysis.

February 18, 2016,  This  decision was about a procedural matter, albeit an important one, regarding the right of parents to sue the school system and its employees for damages.  In this case, it is the affirmation of a parent’s right, not the outcome itself (which has yet to be decided) that is important.

Miller v. Monroe School District, District Court, February 3, 2016

Key Words:  Assault and battery; Section 1983; ADA/504 (Title II) discrimination claims; retaliation; outrage; negligence, autism
Published:  Yes
Decided for:  The parents in part, the school in part

The IEP and BIP clearly laid out the parameters for the administration of aversives in controlling this child’s behavior and the qualifications of the individual administering behavioral restraints.   Although followed for the most part, the teacher hired for the classroom had not received the required training and, the parents alleged, the progression from least aversive to most aversive was not followed.

The court found for the district jn part, granting summary judgment, with respect to the Section 1983 claims based on a standard of review explained in the decision above.

With respect to the ADA/504 (Title II) discrimination claims, the court denied the district’s request for summary judgment.  In order for a judge to grant summary judgment for either the plaintiff or the defendant, there must be no significant disagreement as to the facts.  In this case, the school vigorously denied the parent’s version, but the judge is required to view the plaintiff’s allegations in the most favorable light.  With respect to Washington state law, the judge felt that a jury could (not that it would) also find for the parent.

Summary judgment regarding allegations of retaliation was granted with respect to charges against individual board members.  However, the assault and battery charges were NOT summarily dismissed, again, because there was a material disputation of fact.   Similarly, summary judgment was DENIED with respect to the allegations of outrage and negligence based on state law, the judge ruling that these issues would have to be settled by a jury.

This case appears to be about a teacher who was thrown in over her head, who tried to implement a seriously impaired child’s IEP and BIP with fidelity, and who, because things didn’t turn out as the parent expected, is now being sued, along with just about everybody else in her school system.   Which is why this reviewer would never be asked to serve on the jury.

 

january

January  *

January 21, 2016.

T.K. and S.K. on behalf of L.K v New York City Department of Education, Second Circuit, 1/20/2016
Published:  Yes
Key Words:  bullying, IEP meeting, parent paricipation, FAPE, tuition reimbursement
Decided for: The parents
In this 21 page decision, the court was pondering whether the school district’s refusal to discuss bullying at an IEP team meeting was such a sufficiently severe procedural violation that it resulted in a denial of FAPE.   Important, because the district court had ruled that the school had denied the child FAPE because it had refused to discuss the bullying and that the parent’s private placement did provide the child with an appropriate education.   Which meant that the parents were awarded both tuition reimbursement and attorney fees.  Of course the district appealed.
The bullying had been severe.  Classmates had tripped the girl, made fun of her, insulted her . . . the teacher’s response when she was tripped was to tell her to stop making a scene.  It wasn’t just at IEP team meetings that the parents were rebuffed;despite multiple expressions of concern and requests for help,  they were met with a seemingly stone wall of silence across the board.
The key statement of both principle and conclusion was “We have recognized in other contexts the procedural importance of the 11 parents’ ability meaningfully to evaluate the sufficiency of the IEP before it is finalized. For example, we have explained that school districts defending the adequacy of an IEP must do so with evidence that was available to parents at  the time of the IEP’s creation. See R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167,  186 (2d Cir. 2012) (“A school district cannot rehabilitate a deficient IEP after 16 the fact.”). Here, Plaintiffs were reasonably concerned that bullying severely  restricted L.K.’s educational opportunities, and that concern powerfully  informed their decisions about her education. By refusing to discuss that   bullying during the development of the IEP, the Department significantly impeded Plaintiffs’ ability to assess the adequacy of the IEP and denied L.K. a FAPE.”
District court decision:  Affirmed
January 15, 2016.
Seth B v. New Orleans School Board, Fifth Circuit, January 2016  (35 pages)
Key Words:  IEE, autism, reimbursement
Decided for:  The school in part
Published: Yes
Louisiana Bulletin 1508 (LA’s Regulations for the Implementation of the IDEA) specifies the criteria that must be met by an IEE in order for it to be reimbursed by the school system.  Seth, diagnosed with autism, had  been evaluated by the school system in 2011, and the parents disagreed with the results, asking for an IEE.   The school board agreed to their request, specifying a cap of $3000.   The parents spent $8000 and submitted their evaluation to the school.   The school said the evaluation did not meet their criteria but did not support that assertion.   A year later, the parents submitted their receipts for the evaluation.  The school, surprised, said, “No, no to everything.”  Three or four months later, the school documented their objections to the IEE based on its failure to meet their criteria.   The parents had been arguing that since the school system had not initiated due process, but that they had had to do it, they were automatically entitled to reimbursement.  The Fifth cited another court’s ruling, quoting
As long as the object of the regulations is accomplished, there is no reason to exalt form over substance. Their purpose is not served by holding that there must be reimbursement at public expense when it is the parents rather than the public agency that initiates the due p"Share" if you find this Funny "Like" if you think it's True #GTB #Lawyerhumor: rocess hearing where the appropriateness of the School District’s Evaluation is challenged and confirmed
The Fifth Circuit determined that if the IEE substantially met the criteria in Bulletin 1508, then the parents would be entitled to some reimbursement, but not more than the three thousand dollar cap in the board’s original letter of agreement for reasons cited below — and because that issue had not been addressed by a lower court, the Fifth remanded the case back to the District Court to make that determination.   (That hearing at this point has yet to be held; hence the “in part” designation after “Decided for” above.)
The Department of Education has explained that IDEA allows schools to enforce reasonable cost criteria for IEEs as long as parents in unique circumstances have the opportunity to request exemption.81 Here, OPSB offered appellants an opportunity to demonstrate unique 78 Id. at 132-33. 79 Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982); see, e.g., R.H. v. Plano Indep. Sch. Dist., 607 F.3d 1003, 1011 (5th Cir. 2010). 80 Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 348-49 (5th Cir. 2000). 81 Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 71 Fed. Reg. 46689-90. Case: 15-30164 Document: 00513341662 Page: 25 Date Filed: 01/13/2016 No. 15-30164 26 circumstances in its correspondence with them over the cost cap, but appellants did not respond. Therefore, the $3,000 cap binds them.
January 8, 2016
Domingo v. Kowalski, Sixth Circuit, January 7, 2016
Published: Yes
Key Words: Abuse, Fourteenth Amendment, Civil Rights
Decided for:   The school system

The parents of three special education students brought a lawsuit against a teacher (Kowalski) and her supervisors alleging that she had abused the children and her supervisors were deliberately indifferent to that abuse.   Specifically, they accused the teacher of “gagging one student with a bandana to stop him from spitting, strapping another to a toilet to keep her from falling from the toilet, and forcing yet another to sit with her pants down on a training toilet in full view of her classmates to assist her with toilet-training. Appellants also allege that Kowalski’s supervisors were deliberately indifferent to this alleged abuse, and that North Point created an environment primed for abuse by its adoption of allegedly unconstitutional policies and practices.” The judge in the twenty page decision reviewed in detail the facts regarding the alleged abusive practices and the response of administrators to the complaints brought to them. The district court judge had found that the teachers’ actions were abusive but did not rise to the level of a Constitutional violation; and found (for the district) that their policies were not Constitutionally inadequate.   The Sixth Circuit, after an extensive review of the relevant standards to determine a Constitutional violation, affirmed the district court’s decision.

January 7, 2016  B.P. v. New York City Department of Education, Second Circuit, December 30, 2015
Key Words:  appropriateness of the placement school; risk of financial liability for a unilateral placement, proper notice, credibility of witnesses
Published:  No
Decided for:  The school system

The parents had contended that the fact that a school social worker had given them inaccurage information (that the school system did not have enough resources to provide the services promised in the IEP) should have precluded the school system from providing evidence that their placement would have provided their child with a free appropriate public education.  The social worker denied their allegation, and the hearing officer found her testimony credible.  The school system also had sufficient resources to provide the services in the IEP.  The parents asked reversal of the district court’s decision not to address several other issues because the judge said they  had not been addressed at the administrative hearings.  The judgment of the district court in favor of the school system was affirmed.