Guy’s Log 2017

December *

December 27, 2017.   Not all cautionary tales about school psychologists in trouble are found in court papers

1.  An arbiter rules in favor of the school system when it fires a tenured doctoral level school psychologist making over 90,000 a year.  There were a multitude of alleged offenses brought by the school system, most of which the school psychologist denied.  FERPA as we all know is a relatively toothless law, but that doesn’t mean a school administration cannot discipline or fire an employee for violating it.  In this case, just one of the charges brought against the SP was that he had discussed confidential information with his wife and a former student in district emails.  (While in my experience district administrators do not routinely review an employee’s emails, they have the right and the authority to do so at any time.  Also, work emails may be subject to state sunshine law, available to the press, and could be published in your local newspaper.)  Also worth noting is that NASP Ethics prohibit school psychologists from getting paid in private practice for services that could be obtained free in their workplace.  Some board policies do the same.  Another charge was that the SP used his position in violation of that rule–although in this case, apparently, he was being accused both of serving current students privately and  of reviewing district exit rolls in order to recruit clients who were NOT currently enrolled.  Still another charge was that he had threatened an administrator, telling him he’d better sleep with one eye open at night.    Of course it’s never really over until the fat lady sings, and it looks like this case may be going to court.   See third link below.  It’s not this writer’s purpose to prejudge the outcome, but, rather to make the point that if it is at all possible it’s far, far better to avoid these situations in the first place than to have to spend a year or more in litigation (usually more) defending one’s position.

In his defense, Holeman said he was never provided an adequate opportunity to respond to the allegations or speak with his colleagues or administrators regarding the raised issues.

He said the investigation failed to find additional witnesses or corroborate statements. 

Holeman said Jewell, the principal, relied on ‘uncorroborated, non-supported, hearsay by unproduced witnesses.’ 

Although one article suggested that the SP had contended that the firing was in retaliation for protected speech, generally that defense can prove to be a rough row to hoe if there is no evidence of a contemporaneous link between the speech and the disciplinary action taken.  (In this instance, the speech alluded to occurred in May, 2016, but the firing did not take place until summer 2017.)  Additionally, courts may elect not to hear arguments not advanced at the administrative hearing . . . and in this case, retaliation for protected speech did not appear to be a defense advanced in arbitration.  Scalawag and Vagabond, June 6, 2017

The Aribiter’s Decision (36 pages)

Also see:

Freeman hold school psychologist fired

New Jersey School Psychologist Fired   This case even attracted interest from the UK’s Daily Mail (US Edition)

Ex-Freehold Regional Psychologist’s Lawsuit

2.  In the second incident last month, a tenured Pennsylvania school psychologist was apparently under impressed with a local newscaster’s pictures of himself in Halloween lederhosen garb  and  advised him on Twitter to “kill yourself.”  A misguided attempt at humor to be sure.  His second tweet wasn’t violent but decidedly gross.  He had dedicated his life to working with children over the past 17 years but for one, well, two really, really bad attempts at humor in social media, he got himself suspended.  The Internet is a really, really dangerous place.  For that reason, when I was employed, I always maintained a personal email at home for my personal emails, and I never engaged in social media . . . too many reports of teachers being fired for posting Facebook comments that they thought were private.  In this instance, it appears that the school board decided to retain Mr. Rhem despite his online faux pas (third link below), but as Mr. Rhem himself told another television station,

“Social media sometimes has a way of bringing out the worst in all of us. Today, I learned that I am no exception. In a completely misguided attempt at humor and the lederhosen costume in Mr. Dunlap’s photo, I made an inexcusable comment. I apologize sincerely to both him and his family and hope they will forgive this error in judgment. I also want to apologize to the entire community, including students and parents. This incident serves as a reminder of how important it is to think before we comment. Words matter, and kindness is more important than trying to get a quick laugh.”

Be careful out there.

WFTV  School Psychologist Apologies After “Kill Yourself” comment

CBS News School Psychologist On Leave

Beaver Area Retains School Psychologist

3.  It isn’t always necessary for a school psychologist to actually do something to find himself in trouble.  In this instance, a student in May, 2017 reported to a school psychologist in Rhode Island that she had been sexually abused by a science teacher.  In Rhode Island, as in most states, service providers are under obligation to report those kinds of offenses.  In this case, the school psychologist did not and, as a result, found himself placed on administrative leave.  He was subsequently arrested and charged with failing to report under RI’s state law. As of December, 2017, the case had not yet gone to trial.

Providence Journal   Arrested and charged  School Psychologist Arraigned

December 14, 2017

Wellman Jr. v. Butler Area School District, Third Circuit 12/12/2017
Key Words;  Exhaustion of Administrative Remedies
Published:  Yes
Decided for:  The school system

The Supreme Court in Frye v. Napolean on February 22, 2017 established a comprehensive standard to be applied by the courts in determining whether or not parents needed to exhaust administrative remedies in issues involving FAPE before going to federal court.   That’s the current legal standard courts apply in determining whether or not to dismiss a claim or to hear the claim when parents have not exhausted administrative remedies.

This was an argument over a child who had suffered a head injury while playing flag football in a P.E. class.    The parents were alleging that the school had failed to provide him with appropriate accommodations and that the special education department had not appropriately addressed his needs.  The district court had dismissed their claim without prejudice.   The Third Circuit remanded the case back to the district court, instructing the judge to dismiss the case with prejudice.

I hesitate in paraphrasing the Supreme Court, lest in simplifying I inadvertently mislead, but the basic ground rules remain the same.  If a parent could conceivably get what he or she was demanding from a hearing officer or administrative law judge, he or she may not skip the requirement for an impartial hearing before going to federal court.    Disguising the case as also being about money generally won’t work.   Now, there are a number of little but not unimportant exceptions, such the child’s situation constituting a life and death emergency, but generally applying the   preceding rule of thumb will suffice.  But in a real adversarial situation, the text to be quoted would be from the SC decision above . . . certainly not mine.

The parents’ argument, apparently, was that by signing a settlement agreement with the school, cancelling their request for a due process hearing, that they had exhausted administrative remedies.  But their attorney overlooked the fact that one purpose of a hearing was to establish a factual record that could be considered by the district court judge.   The settlement agreement contained no such factual record.   Nice try, but no cigar.

December 1, 2017.

Penley v. McDowell Board of Education, Fourth Circuit, November 28, 2017(31 pages)
Key Phrase:  Freedom of Speech, Section 1983, conspiracy
Published:  Yes
Decided for:   The school system

This North Carolina case was of particular interest to me as it originated out of a neighboring county’s school system.  It’s not a special education case.  It wasn’t even about a teacher trying to get his job back.  The teacher in this case had been charged, had appealed, and had won his appeal.  He was just upset that he’d been charged in the first place, alleging that he’d been put through hell (paraphrasing) in retaliation for his political speech.  (He was a Democrat working for a candidate opposing a sitting Republican lawmaker who, it appeared, wanted him fired.   The problem, or perhaps I should say “a” problem, was that while it was true that the politician in question had made his desire to see the teacher stripped of his teaching position  known to the school administration,  the school had taken no action,much less adverse action, regarding the teacher’s employment until a full nine months later.

In our recent revision of our damages page, we listed five (5) possible defenses a school system could provide justifying the firing of a tenured employee.

(1) That the teacher’s speech was not about a matter of public interest but about the conditions of his or her employment;

(2) that the school system would have fired or disciplined him or her for reasons unrelated to the speech;

(3) that the speech resulted in the employee being unable to fulfill his or her responsibilities

(4)  that the speech impeded the school system from meeting its responsibilities

or (5) that the speech was made pursuant to the employee’s responsibilities and therefore exempt from First Amendment responsibilities

Since the speech in question had nothing to do with the school system or his employment, McDowell public schools fell back on the second argument above in its defense.  That it would have tried to fire him even if he had been a silent Republican.

Of course they really had tried their darnedest to get rid of him,  citing every possible reason under North Carolina law for getting rid of a tenured teacher which include

“(i) immorality; (ii) insubordination; (iii) neglect of duty; (iv) failure to fulfill the duties and responsibilities imposed upon teachers by the general statutes of North Carolina; (v) failure to comply with such reasonable requirements as the board may prescribe; and (vi) any cause which constitutes grounds for the revocation of the career teacher’s teaching license.”

It’s a bit of a challenge trying to summarize what this guy actually did . . . basically, he made some comments in class about boys thinking about sex every six seconds, except when they were with their girlfriend, when they thought about it every four seconds.  And, noticing a girl and her boyfriend sitting next to each other,  he expanded on his comments in direct reference to them.  It didn’t end there . . . he encountered the girl later crying, tried to console her, and tried to discourage her from reporting him to the principal.  An investigation showed that he’d discussed some other things in his classroom (notably the Bobbit incident) that, strictly speaking, were not a part of the state curriculum.   The teacher didn’t deny any of those acts and had even apologized for them.

A number of disciplinary actions ranging from a written reprimand to termination were considered, and one of the school administrators decided to go for the gold ring  (an archaic expression from my childhood, when nobody worried about people possibly falling off the merry go round while trying for the gold, or brass, metal ring.).  Talk about your Quixotic quest.

Now in NC, speaking from experience, it’s hard as hell getting rid of a career (tenured) teacher.  And as noted above, this case was no exception.  A hearing officer found that the evidence presented did not warrant termination and McDowell County reinstated him in a different school.  The teacher, however, couldn’t let it go.  So the Fourth Circuit let it go for him.

For a comparatively brief summary by Justia, click here.

November *

November 18, 2017

Mrs. M. v. Falmouth School Department, First Circuit November 13, 2017
Key Words:  Amended complaint; attorney fees
Decided for:  The school system
Published:  Yes

This seven page decision discusses a rule of law, not the particular facts surrounding this case.  In brief, the parents had alleged that their school district had failed to develop an appropriate IEP and had failed to provide their child with a SPIRE reading program.  The hearing officer ruled in favor of the school system.   The parents appealed to district court, their complaint being that the school district did not use SPIRE.   The district court found in favor of the parents but the district appealed to the circuit court which determined that since SPIRE was not required by the IEP, the district court had erred, and overturned the award of damages.   That was all in the past.   What brought us up to the present, however, was that the parents, upon hearing the circuit court’s reasoning, went back to the district court and asked to amend its complaint because (as I understand it) the hadn’t argued that the IEP itself was fatally flawed because the SPIRE reading program had not been a part of it.   The district court declined to review their amended complaint, even though it had originally been raised at the due process hearing, and the parents then appealed THAT decision back to the First Circuit.  The seven page decision (link above) upheld the district court’s refusal to rehear the case.  In a nutshell, what the First Circuit said was that their rules would not allow plaintiffs to plead a case, get a decision, and then amend their case in order to take into account the reasons for the court’s decision.  In the court’s own words, these excerpts seem generally applicable:

“It is well settled in this area  of law that “[c]laims not articulated to the district court cannot be raised on appeal, even if they had been pressed before the hearing officer.” Hampton Sch. Dist. v. Dobrowolski, 976 F.2d 48, 53-54 (1st Cir. 1992). The logic behind this rule “is at least two-fold: an appellant cannot evade the scrutiny of the district court nor can he surprise the court on appeal with a new claim in order to create essentially a new trial.”

In other words, if you’re involved in advising your school system or a parent in how to argue their case, the best advice would always be to throw in every argument conceivable in the hope that if the first nine don’t stick, the tenth might.  (in this case, the parents had at least two good arguments, but apparently only used one.)  At every level of appeal.  Because there are apparently no do overs.

This case also provided an example of a school district using a tool made available to them in 2004 which makes it possible for a school system to counter sue a parent for attorney fees if they allege that the parents’ claims were frivolous.  or s to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.  (Section 300.517.)  `In this instance, it is debatable as to whether the school system actually thought it had grounds for its request for reimbursement, or whether it had originally put its request on the table in an effort to intimidate.  As the circuit court itself pointed out, the district court judge had himself suggested that the parents appeal his decision because he wasn’t completely sure he was interpreting the law correctly.

Justia’s Summary:  Click Here

October *

H.E. v. Walter D. Palmer Leadership Partners, Third Circuit, October 2017
Key Issues:  compensatory education, attorney fees, procedural issues
Published:  Yes
Prevailing Party:  The parents

The facts of this case are unique and unlikely to be replicated . . . and even if replicated would mostly be irrelevant to practitioners in public schools.  However, there is one legal principle underlying the decision here that should be of interest to administrators and their attorneys in litigating a due process suit.

Charter schools have the same obligations as other publicly funded schools to provide children with disabilities a free appropriate public education in the LRE.  This school failed in its obligations but agreed in a settlement to provide the services requested and to refund some of the parents’ attorney fees.   Then (without meeting its obligations) it went out of business.  The parents turned to the state education agency and disagreeing in part with their settlement offer asked for a due process hearing.   The hearing officer dismissed their claim, saying they were bound by their contract with the charter school to resolve the dispute through the charter school’s settlement of claims process.    The district court remanded the case back to the hearing officer saying he had erred in several points of law.   However, the judge also denied the parents reimbursement for attorney fees, as they had not prevailed on any of the substantive issues, just on a procedural issue.

The Third Circuit reversed and remanded on that third point.  The principle of law that the third applied, paraphrased, was that prevailing on a procedural issue was substantive and that as the prevailing party they were entitled to their legal fees in scoring that victory.  (The state had also claimed that the case had not been thoroughly adjudicated and that the circuit court therefore lacked jurisdiction; but in fact the district court judge had addressed all three of the specific questions put to him and, therefore, the circuit asserted that it now had jurisdiction.) In the court’s words,

That is, if a parent vindicates a procedural right guaranteed by the IDEA, and if the relief she obtains is not “temporary forward-looking injunctive relief,” id. at 230, then she is a “prevailing party” under the IDEA attorneys’ fee provision and is eligible for an award of attorneys’ fees, 20 U.S.C. § 1415(i)(3)(B)(i). Particularly given “the importance Congress attached” to the IDEA’s procedural safeguards, Rowley, 458 U.S. at 205, we readily conclude that even a purely procedural victory under the IDEA can confer prevailing party status.

For a different perspective, see Justia’s Summary of this decision.

September *

September 18, 2017

Perry Zirkel’s Special Education Legal Alert.  A review of M.L. v. Smith (4th  Circuit), the court dismissed claims that the IDEA imposed a burden on schools to teach a child with a disability religious and cultural instruction.  In F,L. v. Board of Great Neck, the issue was whether or not the district provided FAPE for a child with ADHD and learning disabilities.  The decisions in that case were for the parents, against the parents, and are currently under appeal to federal district court.  Interesting reading, but of virtually no precedential value.  Justia’s Link to M.L. v. Smith (Click here.)

September 11, 2017

Rachel H. v. Department of Education, State of Hawaii, Ninth Circuit August 29, 2017
Key Issues:  Denial of FAPE, specification of school where student to receive sevices
Published:  Yes
Decided for:  The Department of Education

The parents had alleged that their child had been denied FAPE because the school had not specified in what school she was to receive services.

The school system hadn’t specified a specific school because the student was moving to another district.   The Ninth Circuit agreed with the school, saying that not only did the fact that the student was moving excuse them, but also that the IDEA does not require the school system to specify the specific school the child is going to attend in all cicumstances.  “Rather, the requirement that an individualized education program identify the ‘location’ in which special education services will be provided means that the IEP must identify the general setting or type of environment..”  It may seem like a silly case, but the family was seeking to use the school’s lack of specificity with respect to the particular  school where the student would be enrolled as a pretext for getting the department to pay the  girl’s  tuition for a private school.

For Justia’s Summary, click here.

M.R. v. Ridley, Third Circuit,  August 22, 2017
Key Issues:  Stay Put, Attorney fees
Prevailing Party:  The Parents
Published (Precedential):  Yes

The decision here seemed straight forward — parents under some circumstances are entitled to reimbursement for a stay put placement and, if they win reimbursement for that, they are also entitled to attorney fees as the prevailing party if the stay put placement was won through an administrative hearing or court order.

It was, however, a rather tortuous path that led to that victory, and this reviewer once again points to the fact that this all began back in 2009 with an administrative hearing as  illustrating why if a school can settle a dispute by spending a little extra time developing a facilitated IEP or on services to help a child rather than engaging in protracted litigation . . . it might be prudent to do so.

What happened was that the administrative hearing officer in 2009 ruled in favor of the parents’ private school placement.   The district court disagreed and overturned the Hearing Officer’s decision, but the parents appealed that decision.  Since the appeal triggered stay put, the parents were entitled to continued private school funding by the school system.  Ridley refused, the parents appealed again, this time the District Court agreed, not about the IEP, but about stay put triggering the parents’ right to reimbursement for the private school.  The parents then applied for attorney fees as prevailing parties, but the District Court judge held that since the placement was only an interim placement they were not prevailing parties and therefore not entitled to attorney fees, which (as is obvious by this decision in 2017)  they appealed.

What for this reviewer is just mind boggling is that despite the victory in August of this year, eight years after this series of actions begin, the case still is not over.  The case was remanded back to the district court, where the parties will again find themselves arguing, not this time whether the parents are entitled but over how much they are entitled.   And if you’ve read the provisions of the IDEA Part B Final Regulations, you will know those provisions on attorney fees under Part B  provided ample grounds, even at this point, for parent and school attorneys to continue arguing the finer points of the law until long after the cows have come home, had children and grandchildren, and died an unmourned death.

Justia Summary:  Click here.

July *

I.Z.M. v. Rosemont-Apple Valley Eagan Public Schools, Eighth Circuit, July 14, 2027
Decided for:  The School System
Key Words:  IEP, FAPE, State Education Law

On the face of it, this may appear to be a decision based on state law and, therefore, of limited precedential value.  And on the face of it, that is exactly what it was . . . the Eighth Circuit in an 11 page decision determined that the plain language of   Minnesota state law did not require that a blind student would reach a specific level of proficiency in braille instruction.

The IDEA has never required perfection and, even after the recent Supreme Court decision, does not require maximum benefit for any student.  Massachusetts, required as a matter of state law that special education be designed to help each child reach his or her maximum potential.   In North Carolina, the Fourth Circuit held that its state law required more than a basic level of benefit, but that reaching one’s maximum potential was a goal, not a mandate.  In Massachusetts, the language requiring schools to provide programs designed to help each child reach his or her maximum potential was changed in 2002 to “child receives a free appropriate public education,” putting it on the same footing as every other state in the union.   I believe only three states currently have enacted legislation imposing a higher standard than Rowley — New Jersey, Michigan, and Tennessee.   However, given the higher standard articulated in Endrew v. Douglas County (Sup. Court, March, 2017,  whether even those statutes will require a higher level of proof than in the other 47 states remains unclear.

In the Endrew decision, the language most often seized upon by advocates was/is “When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly . . . awaiting the time when they were old enough to ‘drop out.’ . . . The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

The state statutory language relied upon by the parents said, ” “Instruction in Braille reading and writing must be sufficient to enable each blind student to communicate effectively and efficiently with the same level of proficiency expected of the student’s peers of comparable ability and grade level.” The circuit court, citing Endrew, said, paraphrasing, that there was still no guarantee of any particular level of achievement.   Which this reviewer suspects would mean even in New Jersey, Michigan, and Tennessee  regarding FAPE, the focus in any sped litigation will still be on whether a program was reasonably calculated to provide the child with benefit consistent with his or her strengths and weaknesses (my paraphrase) than on whether the desired benefits specified were actually achieved.  For Justia’s summary of this case, click here.

June *

June 3o, 2017

Over the past couple of months, the number of special education cases being reported basically dried up.  The case below is an unusual special education case in that it represents a class action lawsuit under the IDEA.   In fact, it is the only class action suit this reviewer has had the opportunity to share with this Listserv.  Although this decision is new, the case is not.   Some of you may remember that the District of Columbia was faced with a class action over ten years or so ago regarding  its services  — or more specifically, it’s failure to provide services — to children with disabilities.  Well . . . this is the same lawsuit, just twelve years later, on appeal.  (The district arguing the case was now moot because the original children were now over five years or age and, besides, class action lawsuits shouldn’t be permitted under the IDEA.)

D. L.  vs. District of Columbia, June 23, 2017, US Court of Appeals for the District of Columbia  (30 pages)
Key Terms:  Child Find, class action
Decided for:  The parents

The district argued the “proper role” of IDEA’s judicial enforcement provision “is individualized rather than systemic relief.” Id. 55. In other words, the District believes that IDEA precludes comprehensive injunctions. This is the last iteration of an argument the District has pressed throughout this litigation: IDEA claims ought to be handled one-by-one, not as class actions cured through structural remedies.

Neither the district court nor the court of appeals was sympathetic to that argument, the court of appeals writing,

Yet the District, which has enthusiastically accepted millions of dollars in IDEA funding, now proposes to shift that burden back to the parents. In the District’s view, it would be up to each and every parent, many of whom are poor, homeless, and perhaps disabled themselves, to somehow determine whether their children are eligible for special education services and then to retain counsel to sue the District to obtain the services to which they are entitled. Given the purpose of IDEA, we cannot imagine a more preposterous argument.

The complaint in 2005 was that the district was failing to comply with the IDEA requirements under Child Find and that as a result hundreds of children with disabilities were denied their rights.  The district court’s decision, reviewed in detail by the court of appeals, relied upon national statistical data to establish benchmarks and set specific goals for the school system.  The analysis as to when a case can be heard as a class action lawsuit (and why in this instance the criteria were met) is too detailed to be repeated here.

The conclusion to be drawn from the preceding twelve years of litigation, however, is that when a district’s failure to deliver on its obligations to provide FAPE to a child with a disability represents a systemic breakdown in the school district’s delivery system, it need not always be necessary for every aggrieved parent to file an individual lawsuit on behalf on their child.

For Justia’s Opinion Summary of this case, click here.

June 30, 2017

The importance of this case for most of us  rests on its illustrative nature only, showing that it is not only necessary in reviewing a legal point to consider it within the context of the IDEA but also within the context of any relevant state laws.   The decision in this case actually would only have precedential value for courts in Minnesota.

Special School District #1  v. R.M.M. June 29, 2017, 15 pages
Key Words:   Right to FAPE, due process
Decided for:  The parents

The IDEA does not give children in non public schools the right to FAPE or the right to due process.   Minnesota state law does.   The child in this case in this case was evaluated and served in public school.  The Catholic school told the parents that they could not meet the child’s needs so they returned her to public school.   They then sued the public school for not providing services while the child was in the Catholic School.   This court ruled that Minnesota state law required the school district to provide FAPE to non public school students, even those parentally placed private school students, and found additionally that Minnesota state law gave them the right to due process.   NEITHER of those rights exist under federal law.

For Justia’s Opinion Summary, click here.

M.C. vs. Antelope Valley Unified School District, Ninth Circuit, March 17, 2017
Key Words:  FAPE, burden of proof, substantial procedural violation, FAPE standard
Prevailing Party:  Parent (almost entirely)

The parent had lost at the ALJ (hearing) level and at the District Court level, the judge there giving the ALJ due deference as required by the Supreme Court.

First of all, the Ninth Circuit found that the ALJ wasn’t due “due deference” because he didn’t consider all the issues and all the evidence in his 21 page opinion.

Second, the Ninth found that the parent had not been afforded an opportunity to fully participate in the development of te IEP  because the district unilaterally modified it without telling the parent.

Third, the school never actually responded to the parents’ complaint, a no-no, because it left the parents guessing as to the school district’s defense.   Since the district never provided the parents with a response, and since they learned about the changes to the IEP in the due process hearing, the Ninth said that meant the burden of proof shifted from the parent to the school district, even though the parents were the challenging party.

Fourth, the district court in determining whether or not FAPE had been provided applied the pre Endrew standard.  The Ninth remanded, telling the district to reconsider based on the new Supreme Court decision.  While this normally would not in and of itself mean that the parent was the prevailing party, the Ninth did decide in this case.  that the parents had already prevailed enough to be named prevailing party and entitled to attorney fees.

For a more sophisticated interpretation, see Zirkel MC v Antelope Valley (Click here)

April *

April 4, 2917

Avila v. Spokane School District 81, Ninth Circuit  March 30, 2017
Key Words:  Statute of Limitations
Decided for:  The parents, sort of . . .

Cutting to the chase, the parents had two substantive claims (what they were isn’t important here) that were denied because the district court said the statute of limitations had run out and their claims were time barred.   The Ninth Circuit, on appeal, decided that the statute of limitations didn’t begin until the parents knew or should have known that whatever it was they were complaining about had occurred.   So the Ninth, in its wisdom, remanded the case back to the District Court to determine when the parents knew or should have known whatever it was they were suing about in order to decide whether they could make their case or whether their claims were still time barred.   All the parents won in this decision was the right to ask the District Court judge (again) to grant them the right to sue the school system since he had incorrectly interpreted the federal statute of limitations previously.  (Not that his error rose to the level of malfeasance; the federal language was far from being crystal clear.)

The relevant legal language from the decision:

We first conclude that Congress did not intend the IDEA’s statute of limitations to be governed by a strict occurrence rule. Both § 1415(b)(6)(B) and § 1415(f)(3)(C) include language pegging the limitations period to the date on which the parent or agency “knew or should have known about the alleged action that forms the basis of the complaint,” not the date on which the action occurred. See § 1415(b)(6)(B), (f)(3)(C). If Congress intended a strict occurrence rule, there would have been no need to include the “knew or should have known” language in § 1415(b)(6)(B) and § 1415(f)(3)(C).

Because the district court barred the Avilas’ pre-April 2008 claims based on when the District’s actions occurred, AVILA V. SPOKANE SCH. DIST. 81 19 we remand to the district court to make findings and address the statute of limitations under the standard we adopt here, namely when the Avilas “knew or should have known about the alleged action[s] that form[] the basis of the complaint.” See § 1415(f)(3)(C).

March, 2017 *

March 22, 2017.

Endrew F. v. Douglas County School District, Supreme Court, March 22, 2017.  A landmark case adopting a definition of FAPE requiring more than de minibus benefit for our children with disabilities.   A link to the decision itself is provided above.   A copy of a letter sent to North Carolina school psychologists follows providing an initial summary of the decision.  Several additional links are already on-line explaining the implications of this new decision, and many more are sure to follow.   This case will amost certainly be cited in every FAPE case under the IDEA for the next thirty or forty years.

NoED “The Supreme Court Rules in Favor of a Special Education Student

Public Schools of North Carolina

SUPREME COURT RULING: Court rejects ‘merely more than de minimis’ standard of FAPE — In a unanimous decision, the U.S. Supreme Court rejects the “merely more than de minimis” standard of FAPE first advanced by U.S. Supreme Court nominee Neil Gorsuch and adopted by the 10th U.S. Circuit Court of Appeals. Endrew F. v. Douglas County Sch. Dist. RE-1, No. 15-827 (U.S. 03/22/17).


The U.S. Supreme Court on Wednesday bolstered the rights of learning-disabled students by requiring public school districts to ensure their special education programs offer these children more than the bare minimum of instruction.

The case, Endrew F. v. Douglas County School District, was an appeal from two Colorado parents who want their school district to reimburse them for the cost of their autistic son’s private school.

The justice’s unanimous decision resolves a split among federal appeals courts over the standards schools must meet under the federal Individuals with Disabilities Education Act.

The parents, identified as “Joseph F.” and “Jennifer F.” in court documents, enrolled their son, Endrew, in private school for fifth grade after he had a difficult year in public school in the fourth grade.

They said the Douglas County School District failed meet the needs of their son, who frequently exhibited behavioral issues, and as a result, he made little progress in class.

Joseph and Jennifer said the private school was better able to meet their son’s needs, but the district balked at shouldering the costs.

The parents filed a complaint with the Office of Administrative Courts. “The IDEA seeks to provide children with genuine access to public education,” they argued. “School districts that provide only a just-above-trivial benefit cannot achieve this objective.”

The Office of Administrative Courts did not agree, and in September 20154, U.S. District Judge Lewis Babcock affirmed its decision.

The case then moved to the 10th Circuit, which said the school district need only provide “some educational benefit.”

In their petition for a writ of certiorari, Endrew’s parents said that standard simply doesn’t meet the Disabilities Education Act’s goals.

The Obama administration later joined the parents in urging the High Court to adopt the standard the parents are seeking.

The school district argued against Supreme Court review, said the decision to impose the higher standard the parents are seeking should be made by the state legislature, not the courts.

Prior to Wednesday’s ruling, the Supreme Court had last offered its interpretation of what was meant by the phrase “free appropriate public education” 34 years ago in Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, but lower courts disagreed on how the 1982 ruling should be interpreted.

In his ruling, Chief Justice John Roberts noted that in deciding Rowley, the justices declined to endorse any one standard for determining “when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the Act.”

That, he said, opened the door to revisiting the issue and to Wednesday’s unanimous conclusion.

“When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all,” Roberts wrote. “For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly … awaiting the time when they were old enough to ‘drop out.’ The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

Roberts said at this juncture the court would “not attempt to elaborate on what ‘appropriate’ progress will look like from case to case.”

“It is in the nature of the Act and the standard we adopt to resist such an effort: The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,” Roberts said, adding, “This absence of a bright-line rule, however, should not be mistaken for ‘an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.’”


March 21, 2017.

J.M. v Francis Howell School District, March 7, 2017 Eastern District Court, Missouri
Key Words: Exhaustion of administrative remedies
Decided for: the school system

Last month, I reported on Fry v. Napoleon Cmty. School, a Supreme Court case that provided lower courts with a new test to determine whether or not a case was about FAPE (requiring exhaustion under the IDEA) or not about FAPE.   J.M. is one of the first cases to apply that test in arriving at a decision.  The parents were seeking relief not available under the IDEA, but this court cited precedent wherein the court found that exhausting remedies would have allowed “the agency to develop the record for judicial review and apply its expertise” to the plaintiff’s “claims to the extent those claims are related to implementation” of the IEP.

Decision:  McCauley contends the administrative process cannot provide adequate relief, compensatory and punitive damages. As discussed, this argument is without merit. See J.B., 721 F.3d at 595 (“[T]he IDEA’s exhaustion requirement remainsthe general rule, regardless of whether the administrative process offers the particular type of relief that is being sought.”). The district court properly dismissed the complaint for failure to exhaust administrative remedies.

Reyes v. Manor Independent School District, Fifth Circuit, March 7, 2017  
Key Words:  Exhaustion of administratve remedies, time lines
Decided for:  the school system

Again, an early application of the Supreme Court test for exhaustion of benefits, and, again, a loss for the parents.

Decision:  We ask two questions. First, could the plaintiff have brought the same claim if the alleged conduct had occurred at a public facility that was not a school? Second, could a non-student at the school have brought the same claim? Id. at *12. If the answers to both questions are no, the Rehabilitation Act claims overlap with the IDEA claims and must be administratively exhausted. That is the case here, as all of E.M.’s claims are directly related to the education he received while attending the District’s school.

Otsby v. Manhatten School District, Seventh Circuit, March 16, 2017
Key Words:  Prevailing Party, Moot
Decided for:  The school system, mostly

An odd case.  The courts, both district and circuit, dismissed the parents case as “moot” because they had resolved the matter.  The parents wanted attorneys’ fees.  But attorney fees are only available if the parents get what they wanted as a result of a hearing officer’s or judge’s decision.   In this case, the relief they sought was obtained through informal relief.   They did get $3126.10 for a private independent educational evaluation.  But they’d already gotten that from the district court judge.   I’ve included a link to the case, but reading through it would probably be as much a waste of time as pursuing this case through the federal court system turned  out to be.  Of course, reviewing the decision wouldn’t cost you anything.  Getting a panel of federal court judges to review the facts of this case was far from free.   Sometimes it seems like some people have way too much time and money on their hands.

February, 2017 *

February 25, 2017

Fry v. Napolean Community Schools, United States Supreme Court, February 22, 2017

Key Words:  Exhaustion of administrative remedies, ADA, service animals
Decided for:  The parents — sort of

The child in this case suffered from cerebral palsy.  His doctor prescribed a service dog (named Wonder) to help him with various tasks.  The school said he couldn’t have his dog in kindergarten because an assistant could everything that the dog could do.  The parents put the child in a different school (which welcomed the dog) and sued.   The school was arguing that the case should have been dismissed because the parents had failed to exhaust all of the administrative remedies available under the IDEA  (usually a winner.)  However, the Supreme Court ruled that the relief sought only required exhaustion of administrative remedies under the IDEA if the plaintiffs were alleging a denial of FAPE.  In this case, however, the parents were alleging discrimination based upon disability.  Deciding whether or not the school’s argument held water, the Court said, could be resolved with the following test:

One clue to the gravamen of a complaint can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school? Second, could an adult at the school have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject. But when the answer is no, then the complaint probably does concern a FAPE. A further sign of the gravamen of a suit can emerge from the history of the proceedings. Prior pursuit of the IDEA’s administrative remedies may provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.”

The Supreme remanded the case back to the Court of Appeals but did not specifically conclude that the parents’ complaint met that test.  The court said that the record was “murky” as to whether or not the parents had ever actually started down the due process “road” provided under the IDEA.  If they had, the Court said, paraphrasing, it might very well be a FAPE case — which would require exhaustion of administrative remedies.  Regardless, the kid got to have his dog.  And we got a new “test.”  For Justia’s Summary of this case, click here.

M. v. Falmouth School Department 16, January 27, 2017, First Circuit
Key Words: FAPE, IEP
Published:  Yes
Decided for:  The school system

This 20 page decision was over a relatively simple point of law.  The parent said that the school had promised to provide her daughter with the SPIRE reading program.  It apparently was discussed.  But it didn’t end up in the child’s IEP.  Since it was not in the IEP, the district could not have violated the IEP.  Since there were no other issues, the Circuit Court reversed the district court decision and ruled in favor of the school district.   Two points.   First, nothing in the iDEA prevents an IEP team from addressing methodology in the IEP.   Second, if it’s not in writing, it didn’t happen.  Or in the words of the First Circuit, “Since we hold that O.M.’s IEP did not specify that she was to receive SPIRE instruction during her third-grade year, and because Ms. M. does not contend that Falmouth violated her daughter’s IEP in any other way, it necessarily follows that Falmouth did not breach the IEP’s terms and thus did not violate O.M.’s right to a FAPE. Accordingly, we REVERSE the district court’s determination that Falmouth violated O.M.’s IEP and VACATE the accompanying damages award. Each party shall bear its own costs.”

Issa v. Lancaster School District, January 30, 2017, Third Circuit
Key Words:  ESL
Published:  Yes
Decided for:  The students

Not a special education case.   Still illustrative of a basic principle when addressing the needs of ESL students.  OCR guidelines are relatively flexible,  requiring (paraphrasing) that the school use an approach that is informed by an educational theory recognized as sound by some experts in the field.  (Also see Castaneda v. Pickard.)  The students in question were school aged refugees facing language barriers.  They fled war, violence, and persecution in their native countries to come to the United States.  Lancaster had two high schools, one for advanced students.  Which is where they put these students.  The students did not believe it was a good match.  The circuit court, summarizing the district court’s opinion, said “School-age refugees facing language barriers asked the District Court for a preliminary injunction compelling the School District of Lancaster to allow them to transfer from Phoenix Academy, an accelerated credit-recovery high school, to McCaskey High School’s International School, a program designed principally to teach language skills to English language learners, or ELLs. The District Court granted that request, finding likely violations of Pennsylvania law and a provision of a federal statute we’ve never addressed—the Equal Educational Opportunities Act of 1974 (EEOA), 20 U.S.C. § 1703(f).”  In their 46 page decision, the circuit court affirmed the district court’s decision.  In short, both courts believed that school’s proposal was not informed by an educational theory recognized as sound by some experts in the field.

J.J.E. v. Independent Schl. Dist. 279, January 17, 2017 Minnesota Court of Appeals
Key Words;  IEP, FAPE, home instruction
Published:  No
Decided for:  The school system

The child in this case had been getting in home instruction from his previous school system for five hours a week.  The new school provided an IEP that would provide him with instruction five days a week in public school.   After mediation, the school offered shortened school days, and the parent agreed.   Subsequent to that, she went to due process, alleging tht her rights had been violated, and that the school’s IEP would fail to provide FAPE.   The ALJ found that since the mother had agreed in writing to the mediation agreement her rights had NOT been violated and found further that the school’s proposed IEP was reasonably calculated to provide him with more than trivial benefit (FAPE).   This court affirmed that decision.

Board of Education Albuquerque Public Schools v. Rolanda Maez and Richard Mondragon, January 18, 2017, District Court of Appeals, New Mexico
Key Words:  Stay and set aside order, compensatory education
Published:  Yes
Decided for:  The school system

This was a case involving a relative minor issue.  The hearing officer in this case had awarded the parents 40 hours of therapy which they assumed would be provided by a private therapist outside the school system.  The school asked the court to stay that order.   The court agreed that the school system, which was offering to provide those services in school, would suffer irreparable harm if they won on appeal because they could never get reimbursed for the private therapy.  And since they were going to provide the services at public expense in school anyway, the child would suffer no harm from the injunction.  The judge concluded, “In sum, the Court finds and concludes that Plaintiff has satisfied the requirements for injunctive relief. The Court also finds and concludes that it is appropriate to issue a stay on the DPHO’s Final Decision which modifies the DPHO’s ruling regarding the provision of an additional 40 hours of SLT; namely that during the pendency of this lawsuit, the additional 40 hours shall be provided by APS therapists. See 20 U.S.C. §1415(i)(2)(B)(iii) (district court empowered to “grant such relief as the court determines is appropriate”). “

January 2017 *

January 18, 2017

A.M. v. New York Department of Education, Second Circuit, January 10, 2017 (38 pp.)
Key Words:  IEP, FAPE, Procedural Error, ABA, Tuition Reimbursement
Decided for:  The parent in part, the school in part
Published: Yes

The parents of an autistic son had sued NYC for tuition reimbursement, alleging that the school system had failed to provide their son with an IEP reasonably calculated to provide him with non trivial benefit and accusing them of fatal procedural violations.  The district court judge had ruled against the parents on both counts.

The subject of this lawsuit was a six year old diagnosed with autism.  Long story short, the school system offered an IEP that would have provided the child with a 6:1:1 student/teacher/paraprofessonal ratio.  The parent wanted ABA written into the IEP.  The IEP team, however, declined, and the IEP team did not address methodology in the IEP.   Whereas the district court judge didn’t find that terribly upsetting, the circuit court found that flaw to be fatal.  (Note:  In cases where the dispute is over the amount of service, where schools have offered SOME ABA, courts have been more sympathetic.  It also helps to keep data documenting the effectiveness of the methodology.)  It wasn’t the only deficiency alleged  by the parent.  The IEP included a BIP but the school had not conducted its FBA, it did not include support or training for the parents, and it did not provide for any transitional support services.   The court found the FBA/BIP prepared by the school system using existing data to be flawed but not fatally flawed . . . that is, procedurally, the district was not in compliance, but the lack of an appropriate FBA/BIP does not in and of itself mean that the IEP isn’t reasonably calculated to provide benefit.  The court also agreed that the school’s failure to provide counseling/training to the parents was a serious violation but again ruled that that in and of itself didn’t mean that the IEP itself was fatally flawed.  (I’m paraphrasing).  What saved the district (this is New York, remember) was that they offered parental counseling and the parents were aware of it.   Failure to include it in the IEP was therefore deemed to be “an immaterial procedural violation.”  (Procedural violations that don’t deny a child FAPE, e.g., a minor time line violation, will not be fatal to a school’s case.)  Transitional services for children with autism moving from one setting to another are required by NY state law, which illustrates why it’s important to bear in mind that states can and do impose additional burdens on their school systems that may be considered by the courts.   Here, however, once again, the parents failed to make a clear violation of law “stick” because they failed to show that this violation resulted in their child not receiving FAPE.   Having ruled that all these procedural violations, even taken cumulatively, had not denied the student FAPE,  the circuit court reviewed the previous services the child had received vs. the services being offered, The court concluded in part, “While a private school’s preferred methodology does not bind the CSE in formulating a student’s IEP, where, as here, the consensus of the evaluative materials and ‘all witnesses familiar with [the child],’ C.F., 746 F.3d at 81, specifically recommend the continued need for 1:1 ABA therapy and support for the child to progress, and the DOE does not point to any evidence sufficient to counter these opinions and recommendations, the CSE was bound, at a minimum, to require some level of ABA support in a 1:1 classroom setting in order to establish the adequacy of the IEP. See id. (‘The IEP’s substantive inadequacy, therefore, is rooted in the testimony and reports indicating that [the child’s] behavioral needs required a 1:1 placement.’); see also R.E., 694 F.3d at 194.”   For a variety of reasons I will not enumerate here, the court remanded the case back to the district court “for further proceedings consistent with this opinion.”

For the “short form” summary, see Justia’s Summary below:

Plaintiff, on behalf of herself and her autistic son, filed suit under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq., against the DOE, seeking tuition reimbursement and claiming procedural and substantive violations of the IDEA. The district court affirmed the denial of relief. The court concluded that there were no procedural violations of the IDEA. However, the court concluded that plaintiff’s son was denied a free and appropriate education (FAPE) because there were significant deficiencies rendering the individualized education program (IEP) inadequate. Accordingly, the court vacated and remanded for further proceedings.

Guy, SP, Retired

January 17, 2017

Smith v. Meeks, District Court of Illinois, December 5, 2016
Key Words:  Definition of Parent, Non custodial parents’ rights
Decided for:  The defendants

A non custodial parent brought suit against both the Illinois State Board of Education as well as several board members of the Crete-Monee School System.

This case was never actually tried on its merits, and it has limited precedential value because it was ultimately decided based on Illinois state law regarding the rights of non custodial parents to make educational decisions for their child.  (If you work in Illinois, of course, this case DOES carry precedential value.)  Basically what the court decided was that in Illinois, getting visitation rights gives you the right to access your child’s educational records, but it does NOT give you the right to make educational decisions for your child.  Under Illinois law, the custodial parent has the right to make educational decisions, unless the court order dictates otherwise.

(“Except as otherwise agreed by the parties in writing at the time of the custody judgment or as otherwise ordered by the court, the custodian may determine the child’s upbringing , including but not limited to, his education , health care and religious training.”).

This case would have gone to trial if the parent did in fact have joint custody of the child.  But despite alleging that she did have joint custody,  the mother could provide no evidence supporting her claim.

If a divorced parent with whom a child is not living brings suit against your school system under the IDEA or Section 504, obviously this case does suggest it would be prudent (1) to request a copy of the court order giving her/him joint custody and (2) having your board attorney check state law on the rights of non custodial parents if the court decree only gives him/her visitation rights.  In the meantime, it never hurts to be courteous, and the non custodial parent should always  be allowed to at least see the child’s records.

Guy, SP, Retired

LRP’s Summary:

Visitation order doesn’t allow mom to participate in educational decisions

The biological mother of a student with ADHD could not pursue an IDEA claim against an Illinois district that allegedly failed to recognize her son’s need for an IEP as opposed to a Section 504 plan. Holding that the mother did not have the right to make decisions about the student’s educational services, the U.S. District Court, Northern District of Illinois granted the district’s motion to dismiss. Smith v. Meeks, 69 IDELR 29 (N.D. Ill. 2016).

Genn v. New Haven Board of Education, November 30, 2016, D. Connecticut
Key Words:  Other Health Impaired, IEE
Decided for:  The parent in part, the school in part

This case represented the last in a series of hearings brought by the parent against the school system over a period of years.  The student in question was at the time of this last hearing over the age of 21.

She had suffered from multiple health problems, causing her to miss a great deal of her school.   The situation between parent and school authorities had turned adversarial from almost the very beginning.   Both sides variously took positions that clearly angered the other side.   Parents will oft times advocate vigorously for their children, bringing them into conflict with school authorities with limited resources who are charged with meeting the needs of all their children.   New Haven may have met most of its obligations under the IDEA with respect to providing the child with FAPE, clearly it was nowhere near as successful in developing a collaborative relationship with the mother of a very fragile and very needy chld.

The parent was asking this judge to overrule a hearing officer, who had found for the school system.   The judge in this decision found no reason to overturn the hearing officer’s decision with respect to compensatory education.   However, the parent prevailed on a relatively minor issue.   She had requested an IEE in reading because the reading tests administered by the school did not address phonetic issues.   The school refused.   It did provide an IEP addressing reading, and the school’s records reportedly showed that the girl had made progress in reading skill development.

What this judge found, however, was that the school system had erred in declining the parent request for an IEE without convening a due process hearing as required by the federal regulations.   So it awarded the parent the cost of the IEE she had had completed.   The judged concluded the hearing officer erred when concluding that the parent had not disagreed with the school’s evaluation (a prerequisite for obtaining an IEE at school system.)   The real problem for the school system, not resolved in this decision, was that as prevailing party the parent was entitled to at least partial compensation for her attorney fees.   The burden on the parent was to provide the court with documentation of the time her attorney spent in preparing for and trying that issue.  Assuming her attorney met that burden, the cost to the school would have been considerably higher if she also had prevailed on all the issues; but still a lot more expensive than it would have been had the school paid for the reading assessment from the gitgo.   Sometimes seemingly minor procedural flaws do not turn out to be so minor.

Guy M. McBride, SP, Retired

The judge’s conclusion

For the foregoing reasons, the Plaintiff’s Motion for Summary Judgment [Doc. 36] is GRANTED in part and DENIED in part.

Defendants’ Motion for Summary Judgment [Doc. 37] is GRANTED in part and DENIED in part.

As a result of the foregoing, the IHO’s decision is REVERSED in part, and Defendants are ordered to reimburse Plaintiff for the costs of the independent educational evaluation performed by Dr. Cherkes-Julkowski.

Plaintiff’s present submission does not include an itemized statement of costs and attorneys’ fees for which Plaintiff claims reimbursement and this Ruling awards in part. Accordingly, a judgment cannot be entered and this case closed at this time. If the Plaintiff desires to press claims for costs and fees, she must file supporting papers not later than they must do so no later than December 21, 2016. Plaintiff is reminded that the claim for attorneys’ fees must comply with the Second Circuit’s decision in New York Ass’n of Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983), which requires that the documentation include “for each attorney, the date, the hours expended, and the nature of the work done.” Plaintiff should also note that the Court is required to conduct a “‘lodestar’ analysis, which calculates reasonable attorneys’ fees by multiplying the reasonable hours expended on the action by a reasonable hourly rate.” Kroshnyi v. U.S. Pack Courier Servs., Inc., 771 F.3d 93, 108 (2d Cir. 2014).

Defendants are entitled to oppose the claims for costs and fees, in whole or in part. Any opposition must be filed within fourteen (14) calendar days of the service of Plaintiff’s claim upon them.

Cobb County School District v. D.B. , 11th Circuit, November 14 2016
Key Words:  Attorney fees
Published:  No
Decided for: The parents

This is a three page decision, reversing a district court’s decision to substantially reduce attorney fees for a parent who had prevailed in sped controversy.

Section 300.517 of the 2006 FR provides that attorneys’ fees may be reduced if the court finds that the parent or a parent attorney “unreasonably protracted the resolution of this controversy.”

The district court judge reduced the parents’ claim for attorney fees by about $196 thousand dollars based on the principle above.  However, the district court  judge ALSO found that the school system had been guilty of the same thing.   The judge approved an award of only $75,000.

The 11th Circuit said that nothing in the law allows for the reduction of fees when the school system unreasonably protracts the resolution of a controversy.   The 11th also concluded that the district court judge had no adequately documented the reasons for such a substantial cut.    The court therefore concluded,

Therefore, we vacate the district court’s award of attorneys’ fees and costs, and we remand for the court to recalculate the award of “reasonable attorneys’ fees.” See 20 U.S.C. § 1415(i)(3); Hensley v. Eckerhart, 461 U.S. 424, 433–37, 103 S. Ct. 1933, 1939–41 (1983).2.”

Guy, SP, Retired