Table of Contents
December
December 2, 2021
Perry Zirkel’s December Update. Two cases are discussed. In the first case, the court determined that state laws prohibiting schools from requiring masks were pre empted by federal law (the IDEA) guaranteeing students with disabilities the right to FAPE and, in turn, prohibited the state from filing suit against schools that were in fact complying with federal law.
“Concluding that the governor’s executive order both “violates and is preempted by federal law,” the court permanently enjoined the attorney general from “enforcing or giving any effect to the provisions of [the order] prohibiting school districts from requiring masks.” Federal courts in other jurisdictions, including Iowa, South Carolina, and Tennessee have reached similar conclusions based on Section 504 and the ADA in motions for preliminary injunctions, and federal appellate courts will likely address this issue next”.
In the second case, the rulings were more of a procedural matter in which the parents alleged that the district had erred by providing them with an alleged IEE conducted by a private psychologist who was in fact employed by the district as a litigation expert. The psychologist failed to inform the parents of her conflict of interest. .
NOVEMBER
November 4. Perry Zirkel’s Legal Update for November. This month’s update identifies a pair of recent court decisions that seem to differ from the traditional district-deferential approach in methodology disputes. For various related articles, special supplements, and earlier monthly updates, see perryzirkel.com.
August
August 7, 2021
Rabel v. New Glarus School System (Wisconsin) District Court, July 22, 2021
Decided for: The school system
Key Words: autism, down syndrome, virtual learning
Although this decision “only” runs 14 pages, readers should know that there is also available on the Internet previous decisions on the issues raised by the parents. The facts of the case, however, aren’t as iimportant as the standards applied by the court to a student of litigation. That standard was succinctly summarozed bu tje kidge as fp;;pws’
“As the ALJ explained, N.R.[the student] had not interacted with non-disabled students for more
than two years, and petitioners failed to cite any evidence in the record showing that N.R.
was ready to interact with her non-disabled peers in a virtual or in-person setting or that
placement in a regular education setting was appropriate to meet N.R.’s needs.
Although petitioners disagree with the ALJ’s conclusion, it is not the court’s role to
independently assess N.R.’s case. Id. (“We can only decide whether the hearing officer and
the district court came to a rational conclusion, and we find that they did.”)”
August 6, 2021.
Duncan v. Eugene School District (Oregon) District Court, July 27, 2021
Decided for: the school system in part, the parents in part
Key Words: Timelines, ADA, 504, discrimination
Another fairly straight forward case that has been dragging on for several years, now, with no clear resolution in sight. A French teacher refused to implement an LD student’s IEP. Instead of firing her, they transferred. So far everyone’s happy. But other kids in the child’s class got wind of the reason for the transfer of their beloved French teacher, and they began bullying the child with a disability. The parents initially filed a claim under the IDEA but were time barred (they waited to long to make a claim under the IDEA under state laws and regulations. But they also filed a claim alleging that the school permitted the student to be instructed in a hostile environment Again, the merits of his case have not been decided so this reviewer believes that the imost important take away is the standard the district court judge cited while allowing the parents lawsuit to proceed.
Most succinctly, the department of education provided this non binding guidance
Section 504 and [the ADA] prohibit discrimination on the basis of
disability. School districts may violate these civil rights statutes and
the Department’s implementing regulations when peer harassment
based on race, color, national origin, sex, or disability is sufficiently
serious that it creates a hostile environment and such harassment is
encouraged, tolerated, not adequately addressed, or ignored by
school employees.
The judge also cited this standard from a Supreme Court decision: on determining whether harassment was severe or pervasive:
In hostile environment claims under Title VII, the Supreme Court’s
decision in Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) explains how the Court may
determine whether the harassment Plaintiff experienced meets the threshold for severe or
pervasive:
When the workplace permeated with “discriminatory intimidation,
ridicule, and insult,” 477 U.S., at 65, 106, that is ‘sufficiently severe
or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment,’ . . . Title VII is violated.
This standard, which we reaffirm today, takes a middle path between
making actionable any conduct that is merely offensive and
requiring the conduct to cause a tangible psychological injury. As
we pointed out in Meritor, “mere utterance of an … epithet which
engenders offensive feelings in a[n] employee,” ibid. (internal
quotation marks omitted) does not sufficiently affect the conditions
of employment to implicate Title VII.
But Title VII comes into play before the harassing conduct leads to
a nervous breakdown. A discriminatorily abusive work environment
. . . can and often will detract from employees’ job performance,
discourage employees from remaining on the job, or keep them from
advancing in their careers. Moreover, even without regard to these
tangible effects, the very fact that the discriminatory conduct was so
severe or pervasive . . . offends Title VII’s broad rule of workplace
equality. The appalling conduct alleged in Meritor . . . merely
present some especially egregious examples of harassment. They do
not mark the boundary of what is actionable.
Harris, 510 U.S. 17, 21–22 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 (1986))
August 3, 2021
Perry Zirkel Legal Updates for August
“In its July 14, 2021 decision in Brach v. Newsom, the Ninth Circuit Court of Appeals addressed the constitutional challenges of
two groups of parents—those of public school students and those of private school students—to the school closure policies for
distance learning in the immediate wake of the pandemic. Because only a few of all the students had disabilities, the primary
claims were general to the Constitution. Both groups argued that the initial requirement of distance learning and the
subsequent restrictive phased-in plan for re-opening schools for in-person learning violated substantive due process and equal
protection under the Fourteenth Amendment. The federal district court granted summary judgement to the state defendants
on these claims and required exhaustion of the IDEA and Section 504 claims (via individual IDEA due process hearings). The
two groups of plaintiff-parents appealed the Fourteenth Amendment rulings to the Ninth Circuit.”
“In Charles H. v. District of Columbia (2021), a federal court in D.C. addressed the issue of IEP implementation for
incarcerated adult students (ages 18–22) with disabilities during the pandemic. More specifically, the 40 students in this
category in the D.C. prison system had, at least for a year, received only sporadic instructional work packets without any
feedback, related services, or—unlike younger incarcerated students with IEPs—virtual instruction. Their claim was denial
of FAPE under the IDEA based on a “material” failure to implement their IEPs. Subject to final court proceedings, they
sought a preliminary injunction. Such immediate court action generally requires a showing of (1) likelihood of success on the
merits, (2) irreparable harm; and (3) a supporting balance of the equities, including the public interest.”
July
July 31, 2021
Hood River County School District v. Student, District Court (Oregon) July 1, 2021
Decided for: Mostly for the parent, partly for the school system
Key Words: FAPE
This decision was unusual both in its timeliness (not all that long after the events preciptating the lawsuit) and its substance. (Something actually got decide on the merits, not just on procedures.) The short of it was that the judge affirmed the ALJ’s decision to award the parents 900 hours of compensatory education but overturned his ruling that the child get a new FBA. The “lon g” is a bit more difficult to summarize. The hearing itself lasted 17 days, the H.O. decision ran 163 pages, there was a state decision following that, and then this. Basically what seems to have happened was that the school system in trying to educate this child short cut the procedural rules but that was only a small part of the reason the hearing officer ordered a whole year of ccompensatory education because the child’s kindergarten year had not provided him with FAPE. Hence the order for 900 hours of compensatory education. The child, diagnosed with autism, was a handful but it was later claimed that the IEP had not been followed with respect to calming and transitional activities that might have smoothed the way for this child. Instead, the school system shorened his schol day to two hours. Slowly they began lengthening the school day, with most of the time being spent in a sensory isolation room. Time spent in general education was with a teacher who had not received any training on implementing the kid’s behavioral plan. Some days the student was only in school twenty minutes before the parents were called to come pick him up. The school alleged that the ALJ’s decision should not be given deference and gave nine (9) reasons. The judge addressed each and found the ALJ’s decision was due deference except with respect to his order for a new FBA. A Pyrric victory for the school system. If you are interested or if you live in Oregon, the link to the court decision is found above.
The original ALJ decision on July 20, 2020 is also available online. Final Order
July 29. 2021.
A.G. v. Statesville City Schools, District Court (June 23, 2023)
Decided for the school system but not for the teacher or teacher assistant
Key Words: Physical injury
As a resident of NC, I found this particular decision mind boggling. It originated out of an action that occurred in 2918. A student with autism was upset because of some occurrences within his classroom. The teacher and assistant took the child to a quiet room. The kid spit on the floor. A school resource officer came, handcuffed the boy, and knelt on his back for approximately 28 minutes. The mother sued everyone except, apparently, the SRO who had actually abused her son. The judge declared the school immune under NC state law from being sued and dismissed the other charges against the school system.
It was another story when it came to the teacher and teacher assistant. The parent sued them because they didn’t do anything to intervene! According to the record, they did inform the SRO the child had a disability and then chatted with him The parent wasn’t claiming they should have physically intervened. What they were alleging is that they should have asked the SRO to stop. They didn’t.
From a legal perspective, it would appear that the problem facing the teacher and assistant who were being sued individually for negligence was that they were asking the court to dismiss the charges. The judge found that they had not met their burden under the law for getting a case dismissed. The judge made it clear that if they had submitted a whole lot more information (detailed in the decision) they could have asked for a summary judgment and, possibly, gotten a more favorable ruling on that request. Maybe, maybe not.
So. it would appear in NC if you are a teacher and you think a police officer is abusing a child with a disability under your care you should probably say something along the lines of”He’s disabled, he can’t help it, you should let us try to handle him.” But not actually interfere which could get you hit with an obstruction charge. Anyway, nothing really got decided, but the lawyer here did find a way to go after a teacher’s personal cows and chickens that would not be allowed under federal disability laws. I don’t mean to go on and on about this, but I’m just fascinated by the idea that a teacher can be sued for just watching even if he or she didn’t actually do anything.
July 28, 2021.
Doe v Huntsville City Schools Board of Education, District Court (Alabama) July 21 2021
Decided for: The parents (on procedural grounds only)
Key Words: Bullying
Another eighteen page decision that really decided nothing but did give the parent the right to sue based on her federal claim. A child was bullied at school. The parent alleged that the school should be accountable. The judge permitted her to sue on her federal allegations but dismissed her state claims based on state immunity. The issue before the court this time around was whether or not the parent had stated a claim for which relief could be given. School said she hadn’t. Parent said she had. The facts alleged were that this student, diagnosed with Aspergers, was being bullied by other students (e.g., on one occasion, two kids held him on the ground while a third punched him in the genitals.) School teachers and administrators were told but, the complaint alleges, did nothing to stop the bullying. In the interim the boy had suffered not only emotional damage but also documented long term/permanent physical damage.
It gets worse. Instead of taking action to separate the boys, the administration called the boys in, had them shake hands, and told them to be friends. Afterwards, the primary bully told Doe that it was okay for him to hit him now and that he should’t tell the teachers because “friends don’t tell on friends.”
Anyway that isn’t what this was all about. It was whether the parents had a viable claim. The judge said,
“On this record, John Doe has adequately pleaded that the defendants violated
his substantive due process rights by refusing to intervene to stop classmates from
bullying and injuring him. The defendants may present their legal arguments again
on an evidentiary record, but John Doe’s factual allegations in his complaint permit
his substantive due process claim to survive the defendants’ motion to dismiss.”
July27, 2021
July 25, 2021. Y.B. v. Howell Township, Third Circuit, July 19, 2021
Decided for the school system
Key words: Stay Put
Precedential
This decision runs 19 pages, but the relevant facts are these. The parents moved from New York to New Jersey. The new school district determined that it could not provide the student with FAPE. It then drew up an IEP for services to be provided in a private school. The parents then transferred to another school within the state (still New Jersey.) The new school said that if could provide the same services in the child’s IEP in their school system. The parents invoked “stay put.” But the Third Circuit, affirming earlier decisions, ruled that the regulations regarding intra state transfers applied, not the sta put provisions.
“Given the tailored nature of the intrastate transfer
provision, we hold that the “stay-put” provision does not apply
when a student voluntarily transfers school districts within a
state and the new school district will satisfy the IDEA by
complying with the intrastate transfer provision.”
July 20, 2021
Zirkel Overview — Post Pandemic Compensatory Services
There is a difference between compensatory services provided because services were not provided during the pandemic and compensatory education, provided because a school provided a child with an IEP for which they provided an IEP that didn’t even have a reasonable expectation of providing hiim/her with a free appropriate public education (FAPE).
Perry explores the legal differences in an eleven page analysis. His conclusion:
“The bottom-line is that special education leaders need to rely on their professional skills to avoid the
confusing semantics of this unprecedented situation and to focus instead on the substantive solution.
Although federal and state guidance continues to evolve, the solution ultimately is a local
determination. It is a critical time for addressing the overriding question on a district by district basis—
how to best use limited resources to maximize the outcomes of students with disabilities.”
July 17, 2021
E.E. v. Norris School District, July 14, 2021, Ninth Circuit
Decided for the parents
Key words: Stay put
Published: Yes
Another decision that had nothing to do with the substantive disagreements the parents had with the school system but important nonetheless. It all came down to what the kid’s stay put placement should be during litigation. The student had been partially mainstreamed in regular classes. The parents went to due process, the placement was found not to provide FAPE. The school had in the meantime offered a placement for the student in a separate day school. The ALJ declared the proposed placement the stay put placement, which really ticked off the parents who were, one would infer, already pissed. The ALJ said that the stay put placement should be the day school as an exception to the general rule, and the parents appealed all the way to the Ninth Circuit. The school was arguing that since the Norris placement had already been deemed inappropriate (not providing FAPE) for the student, it could not be the stay put placement. Very imaginative. The Ninth Circuit in deciding this case wrote a 13 page decision, relatively short as these things go. I summarize it, but the court did a pretty good job itself so there is no point in re-inventing the wheel. “You gotta be kidding,” the court said. Or (if you prefer the actual legal language)
“The ALJ acted without legal authority in determining
that E.E.’s potential future placement in the 2020 IEP
constituted his current placement for purposes of E.E.’s stay
put placement. Because the ALJ acted ultra vires, her stay
put determination was void. As a result, Parents’ stay put
motion did not seek to modify an existing stay put order, so
the district court correctly entered an automatic preliminary
injunction pursuant to Joshua A., 559 F.3d at 1037. And
Norris’s proposed exception to the stay put provision is not
supported by either the text of IDEA or any other legal
authority, and we decline to adopt it.”
July 16, 2021
T.R. vs. School District of Pennsylvania, July 9, Third Circuit
Precedential: Yes
Key Words: Exhaustion of administrative remedies
Decided for: the school system
In short, cutting to the case in this 36 page decision, administrative remedies can be short cut if the case being brought before the court is a class action case that could not be resolved through administrative hearings. The court found that the plaintiffs (two) could have sought relief through the administrative process and that just claiming a case is a class action suit does not make it so.
The court wrote, “The takeaway from this jurisprudence [caselaw from other circuits] is that the systemic exception applies when plaintiffs challenge policies that threaten basic IDEA goals—not mere components of special education programs—including policies that undermine the framework of the administrative hearing process. With that in mind, we consider whether Plaintiffs’ claims satisfy the systemic exception.”
The parents were alleging that the translation and interpretation services for the parents of an LEP student were inadequate. The problem they had in making this a class action suit was that in each case the determination of what translation and interpretation services would be appropriate could only be made on an individual basis.
Since the parents failed to exhaust their claims through the administrative process, the district court judge said he had no jurisdiction and the circuit court affirmed.
July15, 2021
D.D. EX REL. NAILIAN H. v. GARVEY SCHOOL DISTRICT, CA District Court, June 17, 2021
Decided for the parents but only in part.
Key Words: IEE, ABA deference
I don’t know why the time lines for these cases continue to amaze me, but the administrative hearing upon which this case is based was held “only” two years ago, in 2019. IEEs were a dominant theme in this case, and the court found that the parents were entitled to reimbursement for three IEEs, not just one. Intuitively, that seems contrary to the language of the IDEA, but the court found the district’s failure to respond to previous requests entitled them to reimbursement for them. The parents failed in their request that the court award them 40 hours per week of intensive ABA therapy, the judge finding that this would not have been the least restrictive environment for this student. The judge also found that the ALJ was due substantial deference although he reversed the ALJ’s decisions on a few relatively minor points. This decision is lengthy, thorough, and has a good explanation of when an ALJ is due deference but all in all pretty technical and not fun reading.
July 14, 2021.
Perry Zirkel’s July 13 COVID 19 Summer Update.
This reviewer almost never publishes hearing officer or state review officer decisions because (1) they have no precedential value and (2) the complete text of the decision is seldom available online. Dr. Zirkel, however, regularly addresses those decisions because they indicate current trends and issues that may not reach federal courts until several years have passed. The issues addressed in the recent release above include links to federal and OCR guidance on COVID, a number of hearing officer decisions, as well as a few district court decisions.
July 9, 2021. A.R. v. Connecticut State Board of Education, Second Circuit, July 8, 2021
Decided for: the Parents
Key Words: Terminating Services on the Basis of Age
Although unusual (virtually all sped cases being against school systems), the effect of the decision here is limited to Connecticut. Apparently Connecticut’s regulations provided services to non disabled chidren from age 21 to 22 but not to children with disabilities. The district court had found this rather obvious disrimination and ordered Connecticut to provide compensatory education for those kids. The Second Circuit affirmed the district court’s decision while adding that the court all of the school’s arguments without merit. Not a case you need to read in detail unless you live in Connecticut.
Link to Justia Summary.
Special Education Legal Alert–Perry Zirkel (July 2021)
“This month’s update identifies recent court decisions illustrating (1) evolving COVID-19 issues and answers under various legal bases, and (2) continuing child find and FAPE interpretations and applications under the IDEA. For related information about these issues, see the various sections of perryzirkel.com”
July 6, 2021
Vinluan v. Ardmore Union Free School District, District Court, April 16, 2021
Decided for: the parent on one claim, the school on the rest
Key words; FAPE, Section 1983, Section 1985, damages
What makes this case more interesting than most was the central part played by the school psychologist. The student had emotional problems and had been diagnosed with Aspergers and has a long history. The events that precipitated all of this litigation, were two actions by the school psychologist. First, when the student refused to raise his head from his desk, the SP had the chair and desk removed so the student had to stand. Which he did with his eyes closed for the remainder of the class. He later On the second occasion, the student refused to go to math class. The school psychologist put his hand on the student’s back and the other on his shoulder and rather forcibly propelled him from the first floor to the third floor math class. Just before getting to the class, the boy had a meltdown. Cutting to the chase, he refused thereafter to go back to school because he felt so humiliated. Mom sued. The SP was vindicated of any criminal wrong doing in court, but the court left intact the mother’s argument that FAPE was denied, thereby endorsing the findings of a state hearing review officer. This litigation now in its third year may still be a work in progress. But the lesson for the readers of this blog is that you can always be sued, even if you haven’t done anything really wrong. (And while some might disagree, I do not think the SP in this case did anything wrong.)
July 6.
Perkiaman Valley School District, District Court, April 13, 2021
Decided for: the parents
Key words: stay put, transition, tuition reimbursement, intellectual disability, FAPE
This case is about an older student with multiple disabilities. The school proposed a transition program which the parents declined, choosing instead to place the student in a residential school. They then sought tuition reimbursement from the school system. The hearing officer found that the school’s proposed IEP would not have provided the student with FAPE and that the parents’ chosen program did provide the student with FAPE. The court here agreed. Perry Zirkel has addressed this case in much greater depth in his June update below which does not however include a link to the actual decision (see above.).
July 5, 2021.
L.K.M. v Bethel School District, District Court, 4/19/2021
Decided for (in part) the parents and (in part) the school system
Key words: Section 1983, sexual assault
The main issue in this case appears to have been a district policy requiring a victim to have objected to a sexual encounter as the first step in determining whether a sexual assault had occurred. The victim here was a child identified under the IDEA with a severe cognitive disability that precluded the possibility of her voicing an objection. The defendants defended their position quite well . . . until it came to that school policy which was clearly discriminatory, allowing children with severe cognitive disabilities to be sexually abused without recourse — simply because they lacked the ability to speak up for themselves. On that basis, the judge gave the parents the right to file for a jury trial. However, the remainder of their claims were deemed to be time barred because of the statute of limitations in their state, which was three years. The alleged abuse occurred in 2013. The parents did not instigate legal action until 2016. (Which also says something about the snails pace of our judicial system. They filed in 2016 and only now have won the right to a jury trial on limited issues sometime in the future.
Crawford v. School Board for Richmond City, District Court, May 12, 2021
Decided for: The school system
Key words: FBA, sanctions, retaliation
An unusual case. Crawford did an FBA as part of an IEE and then billed the school system for $26,500. The school system thought that was a bit excessive and refused to pay that much, so Crawford sued. She asked for sanctions against the school system and then the school system asked for sanctions against her and she went to federal court alleging retaliation prohibited under one or more federal educational/civil rights laws. The issue here wasn’t whether she was trying to screw the school system out of its tax money but whether the school system has retaliated against her just because she had asked for the court to provide sanctions against them. The district court judge found that she had failed to meet the basic criteria for filing such a complaint, the first being she could show no harm because the state court had not ruled on the school system’s sanctions request. And even if it had, the judge said, a decision by a state court on a sanctions request was not a violation of any federal law and could not rise to a complaint under the laws she was citing. The standard cited by the court was “”in order to claim entitlement to the protections of the due process clause—either substantive or procedural—a plaintiff must first show that she has a [(1)] constitutionally protected liberty or property interest and [(2)] that she has been deprived of that protected interest [(3)] by some form of state action.” Which she had not. met Click here. if you want to know what sanctions mean in law.
1July 4, 2021
Jacquet v. Green Bay Catholic Education Inc, Seventh Circuit, May 7, 2021.
Decided for the school system
Key Words: Title IX, sexual harassment
Title IX is not, of course, a special education law, and the rights it upholds apply to all students. Children who are the most vulnerable academically are also the most vulnerable to this kind of harassment. In this instance, the girl who was the subject of this lawsuit had not been identified as disabled but was, nevertheless, experiencing difficulty with her schoolwork. The harassment from another student in this instance was primarily verbal or in writing. At the risk of becoming boring, the standard for successful litigation under IX is for the plaintiff to convince a judge that the school administration was deliberately indifferent to the student’s complaint. The legally defensible response a school administrator should make is, put succinctly, to do something about it. In this case, the school had done something (suspended the aggressor, got him to apologize, offered to change the girl’s seat), and as a result the parent’s case failed on the merits.
July 4, 2021
B.B. by K.B. vs Department of Education, State of Hawaii District Court, May 11, 2021
Decision for the school system
Key words: FAPE
The mother of this autistic child declined the services offered by the school system either at the child’s home school or, in the alternative, a private school. Instead she opted to establish a program in her own home and then asked the school system to pay for it. The administrative hearing officer found that the reason the child did not receive a free appropriate public education was because Mom declined the school’s offers. In summary, this 34 page decision was the district court judge’s way of saying the administrative hearing officer got it right.
July 4, 2021.
F v. MSAD#35, District Court, May 21, 2021
Decided for: The school system
Key words: Tuition reimbursement, Child Find
Basically the issue here was that the parents were claiming the parents denied their child FAPE because they failed to properly identify him through Child Find in a timely manner. In a rather lengthy decision including a discussion of the obligations imposed under the Child Find requirements, the judge found that the delays between November, when it learned of the child’s diagnosis of ASD in November and writing an IEP in May were mostly on the parents’ shoulders so the delay was reasonable.
July 3, 2021. The following case had a different outcome than that of Jane Doe v. Fairfax (below). A teacher had sexually abused a student, but just because a teacher knew he had abused a student, that doesn’t mean the school knew about it. A seemingly obvious but important distinction.
K..D. v. Douglas County Schools, Eighth Circuit, June 1 2021
Key words: Deliberate indifference, Title IX, sexual harassment
Decided for: the school system
A teacher sexually abused a thirteen year old female student. The crime was detected, the teacher went to jail, and a fine was levied against him for more than a million dollars. But then the parents went after the school system seeking more in the way of damages. The school had noticed some overly familiar behavior between the two in violation of school policies, had addressed those issues, but was unaware of the sexual involvement until the teacher was arrested, at which point his contract was cancelled. The school was aware of inappropriate behavior toward the student, but that in and of itself would not mean the school or its administrators would or should deduce a sexual relationship. In any event, the Eighth Circuit affirmed the district court’s decision to grant the district summary judgment and to deny the parents a jury trial.
July 3, 2021. School administrators are entitled to qualified immunity when sued for violations of a student’s educational rights, but that same exemption does not apply when accused of violating a student’s Constitutional rights. A finding of deliberate indifference under Title IX would constitute such a violation.
Jane Doe v. Fairfax School System Fourth Circuit, June 16, 2021
1Key words: Title IX, deliberate indifference
Decided for: the student
As is often the case, this decision did not constitute a ruling on the substantive issue of school and administrative liability but, instead, turned on a single point. In district court, the defendants argued that they had not been properly informed of the alleged sexual harassment and so could not be found guilty of being indifferent to it. A jury agreed and the district judge denied the parent request for a do-over (new trial.) Bullshit, said the Fourth Circuit. It was undisputed that the boy had put his hand down her pants and had fondled her breasts, but the administrators concluded that this did not constitute a sexual assault. Of course the Fourth didn’t actually say “Bullshit.” What they wrote was “If the facts don’t show that the school board actual notice, we don’t know what would.” A new trial was ordered. The decision was published. I just find it fascinating that a school system would conclude that a student fondling an unwilling girl’s vagina was not sexual assault.
July 3, 2021.
L.C. v. Alta Loma School District, Ninth Circuit, June 8, 2021
Key Words: Unnecessary Delay
Decided for: The school system
The district court had concluded that the school system had caused unnecessary delay in scheduling a due process hearing. In an unpublished decision, the Ninth Circuit concluded otherwise, reversed, and reversed the district court’s judge decision to award the parents attorney fees. The parents were contending that the district had caused unnecessary delay by withholding information about their caps on IEEs. These cases are fact specific. A district is not required to file for a due process hearing until such time as they and the parents reach a final impasse.
July 2, 2021
Richardson v. Omaha School District, 8th Circuit. April 27, 2021
Decided for: The school system
Key Words: Statutory limitations
The facts of this case are not particularly relevant here, since the issue was whether or not the parents could recover legal fees. The district court said that the claims were barred because of a state imposed limit of 90 days and the 8th circuit agreed. Tardiness on the part of the parents attorneys barred recovery under state law. What makes this case of particular interest, however, is that it was appealed to the U.S. Supreme Court. SCOTUS declined to hear the case, essentially preserving the rule by the 8th circuit and reinforcing the principle that state timelines pertaining to IDEA appeals also pertained to requests for attorney’s reimbursement. Lesson for parents? Don’t hire a procrastinating attorney, I suppose.
Perez v. Sturgis Public Schools, Sixth Circuit, June 25, 2021
Decided for: The school system
Key Words: Settlement, IDEA, ADA, 504, ESL, exhaustion of administrative remedies
The facts of this particular case are not particularly relevant. A deaf kid came from Mexico, was not provided the services to which he was entitled, was put on the honor roll, and then told he couldn’t get a regular diploma but only a certificate of attendance. Parents threatened a lawsuit, agreed to a settlement under the IDEA before completing the administrative process. Then they went back to the courts and sued under the ADA..
The district court dismissed the lawsuit, the Sixth Circuit agreed. In part, as I read the decision, because the parents had not exhausted administrative remedies, but also because once they settled under the IDEA, they were also barred from coming back and suing for the same reasons under another law. Lesson? Settle or sue, but don’t do both.
July 1, 2021 (Perry Zirkel’s Updates)
Zirkel Legal Alert February 2021 (wordpress.com)
“This month’s update identifies recent court decisions of general significance, specifically addressing (a) FAPE and the remedy of compensatory education, and (b) FAPE and the remedy of tuition reimbursement, along with an added flourish under Section 504 and the Americans with Disabilities Act (ADA).”
Zirkel Legal Alert March 2021 (wordpress.com)
“This month’s update identifies recent court decisions addressing issues of “twice-exceptional” students under the IDEA and, alternatively or additionally, Section 504.”
InCASE newsletter Special Edition 2021 Emerging Answers (wordpress.com)
“This article provides, in a user-friendly form, a current snapshot of the IDEA’s leading issues and emerging answers arising under the pandemic. It is being shared here with the permission of the Council of Administrators of Special Education (CASE).
Zirkel Legal Alert April 2021 (wordpress.com
“This month’s update identifies recent court decisions respectively illustrating (a) the interaction of IDEA with Section 504/ADA and
(b) the ongoing evolution of FAPE analysis and remedies. For related information about these various issues, see perryzirkel.com
Zirkel Legal Alert May 2021 (wordpress.com)
“This month’s update identifies recent court decisions respectively illustrating (a) the statute of limitations and substantive FAPE standard under the IDEA, and (b) the alternative of Fourteenth Amendment and Section 504/ADA claims for students with disabilities.”
Zirkel Legal Alert June 2021 (wordpress.com)
“This month’s update identifies recent court decisions illustrating the multi-step analysis and equitable nature of tuition reimbursement.
These two cases include the issue of transition respectively as an implicit student-specific placement provision and as an explicit agespecific IDEA requirement. For related information about these issues, see the Publications section of perryzirkel.com”
March
March 12, 2021. A CASE article by Perry Zirkel on litigation to date arising out of school district’s response to COVID. This web page rarely re-publishes an SEA decision because they have little precedential value in a court of law. But it takes years (no exaggeration) for special education cases to navigate our judicial system where judgments are appealed, decisions rendered, and cases remanded back again to be re-scheduled and re-heard by a lower court. Still, this review gives us a better understanding where these kinds of disagreements are heading.
March 5, 2021.
“This month’s update identifies recent court decisions addressing issues of “twice-exceptional” students under the IDEA and,
alternatively or additionally, Section 504. For related information about these various issues, see perryzirkel.com”
March 5, 2021
Dervishi v. Stamford Board of Education, February 10, 2021 Second Circuit
Key words: autism, ABA stay put
Prevailing Party: School system mostly
Published: No
The court was reviewing a settlement agreement and concluded that the school system was only required to pay for qualified ABA service providers. However, the parents were awarded reimbursement for services provided at home because of the stay put provision of the IDEA.
February
February 19, 2021. Christine C. v Hope Township Board of Education, February 2, 2020 District Court New Jersey
Key Words: Unilateral placement
Published: No
Prevailing Party: No one; returned by court for administrative review.
This case which originated from actions taken in 2016 and was first heard in 2019 by the district court. As is often the case when parents choose litigation over mediation seems destined to go on forever.
The boy transferred into the school system in 2016 He had an IEP with no behavioral goals but soon began having serious difficulties in the classroom Bit by bit more and more information was shared, including among other things that the student had had a BIP in his previous school system not transmitted to Hope with the IEP. Things went from bad to worse, with the boy having what I’d call a breakdown during which he ran away and hid, resulting in a school lockdown.
Now here comes the school’s BIG MISTAKE. It UNILATERALLY changed the child’s placement without an IEP team meeting or an expedited hearing. The decision is long and tedious read so I’ll cut to the conclusion.
“Defendant denied D.C. a FAPE by failing to request a pre-removal hearing in accordance with N.J.C.A. § 6A:14-2.7(n), to the extent that such a decision deprived D.C. of the benefits of his then-current placement. Defendant also may have denied D.C. a FAPE by not providing any services between October 7, 2016, and November 1, 2016, but because Defendant needed until at least October 21, 2016, to determine how to appropriately accommodate D.C., and the ALJ did not hear evidence after that date, I remand as to how many days constitute a reasonable delay beyond October 21, 2016, if any. The parties’ Cross-Motions for Summary Judgment are DENIED, and this matter is REMANDED to the ALJ for further proceedings consistent with this Opinion.”
Note the word “REMANDED.” This case just goes on and on and on. But the main legal issue precept to be reinforced by this decision is that unilateral placements by a school system are a no-no even when a child’s safety is at stake.
February 2, 2021. Price v. Mueller, 2/2/2021. Western District Court of Wisconsin
Decision for: Parents (on right to sue, not the substance of her complaint)
Key words: Assault, exhaustion of administrative remedies, Fry v. Napolean standard
A teen aged girl began displaying oppositional behavior in her classroom. She had a history of behavioral problems and had an IEP. A behavioral specialist was called in because she refused to leave the classroom. It all started out peacefully enough, but soon escalated with the teen later alleging that the defendant had punched her, thrown her into some lockers in the hallway, before throwing her to the ground and falling on top of her. The parents sued alleging her IEP had not been followed and seeking punitive damages. The court applied the Fry standard, determined that in her opinion the issues weren’t really about FAPE, that exhaustion of administrative remedies was NOT required, that there were differences of opinion as to the facts involved, and that neither the girl’s federal nor her state claims should be barred. Interesting case in some respects. Did the girl spray air spray into the classroom, causing the teacher to have difficulty breathing? Or did she merely spray a whole lot of perfume on herself: We may never know. If you have some spare time, this case is worth a read, if only as a refresher on when exhaustion of remedies is — and when it is not — required before going to court.
February 4, 2021
Perry Zirkel’s February Update with two links to the cases Perry cited.
P.P. v Northwest Idependent School District, December 14, 2020
“In an unpublished decision in P.P. v. Northwest Independent School District (2020), the Fifth Circuit Court of Appeals addressed the issues of FAPE and compensatory education in a case of a middle-school child in Texas with various specific learning disabilities including reading (per a dyslexia diagnosis) and math. The parents sought Lindamood Bell programming first in the IEP and ultimately in the form of compensatory education relief. The hearing officer ruled that the district’s initial IEP for the last few months of grade 5 and the IEP for grade 6 provided FAPE but the district violated its child find duty for approximately six months starting near the end of grade 4. However, she denied the requested relief of compensatory education. Upon both parties’ appeal, the federal district court agreed with thehearing officer’s rulings except for the grade 5 IEP. Both sides again appealed, this time to the Fifth Circuit, which encompasses Louisiana, Mississippi, and Texas.”
Montgomery County Intermediate Unit v. A.F. December 9 2020 District Court PA
“In an officially published decision in Montgomery County Intermediate Unit No. 23 v. A.F. (2020), a federal district court in Pennsylvania addressed the tuition reimbursement claim of the parents of a preschool child with autism. When the child reached the age of 3, MCIU, which was the agency responsible for providing early intervention services under the IDEA, evaluated him, confirming the earlier diagnosis of autism. The initially proposed IEP included 90 minutes per week of behavior support in addition to various other services, such as speech/language therapy (SLT) and occupational therapy (OT). The parents disapproved this proposal, insisting that he needed intensive applied behavioral analysis (ABA) and higher levels of OT and SLT. MCIU revised the IEP to include increased OT and SLT but no longer any behavior support. Upon visiting the proposed classroom, the parent asked about ABA, and the MCIU representative mistakenly replied that the only personnel with ABA training were the classroom aides. At two subsequent IEP meetings, the Agency representatives were very general in response to the parents’ specific concerns about intensive ABA services, and the IEP remained unchanged. The parent unilaterally placed the child in a private ABA placement and sought tuition reimbursement. The hearing officer ruled that MCIU’s proposed IEP was substantively appropriate but the cursory information that MCIU provided to the parent was a fatal procedural violation warranting the requested reimbursement. Both sides appealed to federal court.”
January
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.
Additional case references from the Editor:
E.B. v. El Paso County School District, Tenth Circuit, December 16, 2020
From Perry Zirkl’s update:
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 uperintendent 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 theexpression a substantial or motivating factor in the district’s adverse employment action? The district defendants fileda 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.
Editor’s Note: As the rest of Dr. Zirkel’s analysis makes clear, the outcome of this decision was that the teacher’s lawsuit was allowed to proceed, but against the town, not just the school system. GMM