January 28, 2021,
Perry Zirkel’s January Update. This month’s update identifies recent court decisions of general significance, specifically addressing (a) FAPE via another case in the direct line after Endrew F., and (b) employee rights emanating from the special education context, here via the case of a terminated teacher during the ongoing COVID-19 crisis. For related information about both broad issues, see perryzirkel.com.
In an unpublished decision Elizabeth B. v. El Paso County School District 11 (2020), the Tenth Circuit Court of Appeals
addressed the tuition reimbursement claim of the parents of a child with autism and epilepsy. The first substantive step
for reimbursement cases is to determine whether the district’s proposed IEP provided FAPE. The Colorado hearing
officer and the federal district court ruled that the IEP was appropriate, thus not having to decide the other steps of the
applicable analysis, such as the appropriateness of the private placement at an autism center. The parents appealed to the
Tenth Circuit. Their primary challenges to the district’s proposed IEP were that it did not include (a) a functional
behavior assessment (FBA) and resulting behavior intervention plan (BIP); (b) one-on-one applied behavior analysis
(ABA) therapy from an ABA-certified instructor; and (c) extended school year (ESY).
In an unpublished decision in Mullen v. Tiverton School District (2020), a federal district court in Rhode Island
addressed the First Amendment freedom of expression claim of a terminated special education teacher. As the
president of the local teachers’ union, she insisted in participating in the meeting that the superintendent convened for
developing the district’s plan for distance learning during the pandemic. Her insistence was based on the state’s law
that provides teacher unions with the right to collectively bargain all terms and conditions of employment. The reason
for firing her that the district provided in the termination letter was insubordination for (a) refusing to leave the
meeting, and also (b) subsequently participating in an education discussion on Facebook contrary to a gag order the
superintendent issued to her upon being placed on administrative leave prior to the termination. In a series of cases, the
U.S. Supreme Court has established a flowchart-like multi-step analysis for First Amendment expression claims of
public employees. The steps include these successive questions: (1) Is the expression as a private citizen rather than
pursuant to the individual’s employee status?; (2) If so, does the expression address matters of public concern rather
than those of concern solely within the district?; (3) If so, upon balancing these interests with those of the district, did
the expression have a disruptive effect on the efficiency and effectiveness of it services?; and, (4) If not, was the
expression a substantial or motivating factor in the district’s adverse employment action? The district defendants filed
a motion to dismiss the claim for alleged failure to meet these threshold requisites, thus not putting at issue a final,
causation-related step of the applicable analysis.
July 9, 2022
J.B. v. Summit City July 1 2022. Third Circuit
Decided for: the school system at the administrative, district court, and circuit court levels
Published
A case wherein a child was referred, evaluated, and found ineligible for services until 14 months when he was diagnosed with autism. The parents raised a number of issues regarding the school’s obligations to evaluate and identify students with disabilities but ultimately failed because the court found that the parents had not exhausted all of their administrative remedies. An interesting read, particularly for New Jersey school psychologists, because New Jersey allowed but does not require consideration of a severe discrepancy in determining LD eligibility. There actually was a severe discrepancy between IQ and achievement, but the eligibility group found him ineligible anyway. Since it wasn’t required by NJ law, the courts found there was no foul. Also a discussion of the differences in the definition of a disability under the ADA/504 and the IDEA, but that information can be found elsewhere on this website.