Posted on June 17, 2011
J.D.B. v. North Carolina, Case No. 09-11121 (June 16, 2011)
FACTS
This case presents the question whether the age of a child subjected to police questioning is relevant to thecustody analysis of Miranda v. Arizona, 384 U. S. 436 (1966). Petitioner J. D. B. was a 13-year-old, seventh-grade student attending class at Smith Middle School in Chapel Hill, North Carolina when he was removed from his class-room by a uniformed police officer, escorted to a closed-door conference room, and questioned by police for at leasthalf an hour.
This was the second time that police questioned J. D. B.in the span of a week. Five days earlier, two home break-ins occurred, and various items were stolen. Police stopped and questioned J. D. B. after he was seen behind a residence in the neighborhood where the crimes occurred. That same day, police also spoke to J. D. B.’s grand-mother—his legal guardian—as well as his aunt.
Police later learned that a digital camera matching thedescription of one of the stolen items had been found at J. D. B.’s middle school and seen in J. D. B.’s possession. Investigator DiCostanzo, the juvenile investigator with the local police force who had been assigned to the case, went to the school to question J. D. B. Upon arrival,DiCostanzo informed the uniformed police officer on detailto the school (a so-called school resource officer), the assis-tant principal, and an administrative intern that he wasthere to question J. D. B. about the break-ins. AlthoughDiCostanzo asked the school administrators to verify J. D. B.’s date of birth, address, and parent contact in-formation from school records, neither the police offi-cers nor the school administrators contacted J. D. B.’s grandmother.
The uniformed officer interrupted J. D. B.’s afternoonsocial studies class, removed J. D. B. from the classroom, and escorted him to a school conference room. There, J. D. B. was met by DiCostanzo, the assistant principal, and the administrative intern. The door to the conference room was closed. With the two police officers and the two administrators present, J. D. B. was questioned for the next 30 to 45 minutes. Prior to the commencement of questioning, J. D. B. was given neither Miranda warnings nor the opportunity to speak to his grandmother. Nor was he informed that he was free to leave the room.
Questioning began with small talk—discussion of sports and J. D. B.’s family life. DiCostanzo asked, and J. D. B. agreed, to discuss the events of the prior weekend. Deny-ing any wrongdoing, J. D. B. explained that he had been inthe neighborhood where the crimes occurred because hewas seeking work mowing lawns. DiCostanzo pressed J. D. B. for additional detail about his efforts to obtain work; asked J. D. B. to explain a prior incident, when one of the victims returned home to find J. D. B. behind her house; and confronted J. D. B. with the stolen camera. The assistant principal urged J. D. B. to “do the right thing,” warning J. D. B. that “the truth always comes outin the end.”
Eventually, J. D. B. asked whether he would “still be in trouble” if he returned the “stuff.” In response,DiCostanzo explained that return of the stolen items would be helpful, but “this thing is going to court” regardless. (“[W]hat’s done is done[;] now you need to help yourself by making it right”). DiCostanzo then warned that he may need to seek asecure custody order if he believed that J. D. B. would continue to break into other homes. When J. D. B. asked what a secure custody order was, DiCostanzo explained that “it’s where you get sent to juvenile detention beforecourt.”
After learning of the prospect of juvenile detention, J. D. B. confessed that he and a friend were responsible for the break-ins. DiCostanzo only then informed J. D. B. that he could refuse to answer the investigator’s questions and that he was free to leave. Asked whether he understood, J. D. B. nodded and provided further detail, including information about the location of the stolen items. Eventually J. D. B. wrote a statement, at DiCostanzo’s request. When the bell rang indicating the end of the schoolday, J. D. B. was allowed to leave to catch the bus home.
HOLDING
A child’s age properly informs Miranda’s custody analysis.
ANALYSIS
Custodial police interrogation entails “inherently compelling pressures,” Miranda v. Arizona, 384 U. S. 436, 467, that “can induce a frighteningly high percentage of people to confess to crimes theynever committed,” Corley v. United States, 556 U. S. ___. Recent studies suggest that risk is all the more acute when the subject ofcustodial interrogation is a juvenile. Whether a suspect is “in cus-tody” for Miranda purposes is an objective determination involving two discrete inquires: “first, what were the circumstances surround-ing the interrogation; and second, given those circumstances, would areasonable person have felt he or she was at liberty to terminate theinterrogation and leave.” Thompson v. Keohane, 516 U. S. 99, 112 (footnote omitted). The police and courts must “examine all of thecircumstances surrounding the interrogation,” Stansbury v. California, 511 U. S. 318, 322, including those that “would have affectedhow a reasonable person” in the suspect’s position “would perceive his or her freedom to leave,” id., at 325. However, the test involves no consideration of the particular suspect’s “actual mindset.” Yarborough v. Alvarado, 541 U. S. 652, 667. By limiting analysis to ob-jective circumstances, the test avoids burdening police with the taskof anticipating each suspect’s idiosyncrasies and divining how those particular traits affect that suspect’s subjective state of mind. Berkemer v. McCarty, 468 U. S. 420, 430–431.
In some circumstances, a child’s age “would have affected how areasonable person” in the suspect’s position “would perceive his or her freedom to leave.” Stansbury, 511 U. S., at 325. Courts can ac-count for that reality without doing any damage to the objective na-ture of the custody analysis. A child’s age is far “more than a chrono-logical fact.” Eddings v. Oklahoma, 455 U. S. 104, 115. It is a fact that “generates commonsense conclusions about behavior and percep-tion,” Alvarado, 541 U. S., at 674, that apply broadly to children as a class. Children “generally are less mature and responsible than adults,” Eddings, 455 U. S., at 115; they “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” Bellotti v. Baird, 443 U. S. 622, 635; and they “are more vulnerable or susceptible to . . . outside pressures” than adults, Roper v. Simmons, 543 U. S. 551, 569. In the specificcontext of police interrogation, events that “would leave a man coldand unimpressed can overawe and overwhelm a” teen. Haley v. Ohio, 332 U. S. 596, 599. The law has historically reflected the same as-sumption that children characteristically lack the capacity to exercisemature judgment and possess only an incomplete ability to under-stand the world around them. Legal disqualifications on children as a class—e.g., limitations on their ability to marry without parentalconsent—exhibit the settled understanding that the differentiatingcharacteristics of youth are universal.
Given a history “replete with laws and judicial recognition” that children cannot be viewed simply as miniature adults, Eddings, 455 U. S., at 115–116, there is no justification for taking a differentcourse here. So long as the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to a reasonable officer, including age as part of the custody analysis re-quires officers neither to consider circumstances “unknowable” to them, Berkemer, 468 U. S., at 430, nor to“ ‘“anticipat[e] the frailtiesor idiosyncrasies” of the particular suspect being questioned.” ’ ” Alvarado, 541 U. S., at 662. Precisely because childhood yields objec-tive conclusions, considering age in the custody analysis does not in-volve a determination of how youth affects a particular child’s subjective state of mind. In fact, were the court precluded from tak-ing J. D. B.’s youth into account, it would be forced to evaluate the circumstances here through the eyes of a reasonable adult, when some objective circumstances surrounding an interrogation at school are specific to children. These conclusions are not undermined by the Court’s observation in Alvarado that accounting for a juvenile’s age in the Miranda custody analysis “could be viewed as creating a sub-jective inquiry,” 541 U. S., at 668. The Court said nothing aboutwhether such a view would be correct under the law or whether it simply merited deference under the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214. So long as the child’s age was known to the officer, or would have been objectively apparent toa reasonable officer, including age in the custody analysis is consis-tent with the Miranda test’s objective nature. This does not mean that a child’s age will be a determinative, or even a significant, factor in every case, but it is a reality that courts cannot ignore.
The Court remanded the case to the trial court to determine whether J.D.B. was in custody, while he was at school, when the police interrogated him. The Court directed the trial court to take J.D.B.’s age in to consideration in determing whether or not he was in custody.
Posted on June 10, 2011
Aileen Y. v. Dep’t of Educ., 2011 U.S. Dist. LEXIS 60576, 1-3 (D. Haw. June 6, 2011)
Student turned twenty in the middle of the 2007—08 school year. He has Prader-Willi Syndrome, and received special education services from the School District under the Individuals with Disabilities Education Act (IDEA) until the endof the extended 2007—08 school year. At an IEP team meeting on April 8, 2008, Student’s mother, requested that the School District provide Student with special education services under the IDEA until his twenty-second birthday; that is, until he was no longer “between the ages of 3 and 21, inclusive.” 20 U.S.C. § 1412(a)(1)(A). The School District refused to provide continued services on the basis that Student had aged out of eligibility for special education. On July 31, 2009, Plaintiff requested another IEP team meeting in light of the decision in B.T. v. Dep’t of Educ., 637 F. Supp. 2d 856 (D. Haw. 2009), which construed the IDEA’s age-out requirement to extend through the student’s 21st year. The School District denied that request in a letter dated August 4, 2009.
On April 8, 2010, at 4:48 p.m., via fax, Student and his Parents filed a request for a due process hearing concerning both the denial of continued services at the April 2008 IEP team meeting and the denial of an additional IEP team meeting in 2009. This case arises out of the administrative hearings officer’s dismissal of that request and the officer’s alternative grant of summary judgment in favor of the School District. The dismissal was based on a finding that the request for a due process hearing was untimely because it had been filed after the close of business on the last day of the statute of limitations (the due process complaint was faxed at 4:48 p.m. and the agency closed at 4:30 p.m. — 18 minutes late). The grant of summary judgment was based on a finding that the School District had not applied an age-out rule, standing alone, to deny continued special education services to Student.
The Court reversed the grant of dismissal holding that there was nothing in the IDEA or the State’s statute/regulations that required the due process complaint to be filed before the close of business on the statutory deadline. The statute of limitations for IDEA disputes merely states that the complaint must be filed within 2 years after the dispute was known or should have been known. The Court also held that the Student should not have been aged out of special education before his 22nd birthday, if that was the sole basis for terminating special education services. The Court, however, remanded the issue concerning the termination of special education services because there was a factual issue that had not been developed at the hearing about whether the Student had plateaued and could no longer benefit from special education.
Drake P. v. Council Rock Sch. Dist., 2011 U.S. Dist. LEXIS 59967, 1-5 (E.D. Pa. June 2, 2011)
In this case, an 11-year-old child with autism, Drake P. (“Drake”), alleges that he was denied a Free Appropriate Public Education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and suffered discrimination because of his disability under Section 504 of the Rehabilitation Act of 1973 (“Section 504″), 29 U.S.C. § 794. Drake and his mother, Maria P. (“Maria”), seek tuition reimbursement from Council Rock School District (“Council Rock” or “the district”) for a six-month period during which, they allege, Drake would have been unable to transition back to public school because his family’s house had recently burned down, and a few days later his father passed away.
Drake was diagnosed with autism in March 2003. In 2007, when he was 7 years old, Drake’s family moved from New Jersey into a home in the Council Rock School District in Pennsylvania. The primary motivation for the move was to give Drake access to the programming offered by Council Rock, which his parents felt would better serve his needs. Drake was initially enrolled at Richboro Elementary School (“Richboro”) for a summer program, then moved to Goodnoe Elementary School (“Goodnoe”) for the beginning of the 2007-08 school year.
As the school year progressed, Maria came to believe that the program at Goodnoe was not meeting Drake’s needs. She requested he be transferred back to Richboro; the district complied. By the end of the year, however, Maria remained dissatisfied with the district’s program for Drake. As a result, Drake’s parents removed him from public school in July 2008 and enrolled him at the Comprehensive Learning Center (“CLC”) in Southampton, PA, a private school that serves children with autism.
According to Maria, Drake began to flourish at CLC. Then, in one three-day period in December 2008, Drake suffered two tragedies. First, on December 13, 2008, the family’s house “completely burned down” while Drake stood outside in his pajamas and bare feet. Then, just two days later, as the family began to look for new permanent housing, Drake’s father passed away. Maria moved her family to a nearby townhouse while their house was rebuilt, and she made sure Drake did not miss any school. There is no evidence in the record that she contacted the district about re-enrolling Drake in public schools at that time. To the contrary, Maria believed the program at CLC was working well for Drake, and was of the opinion that Drake’s “need for consistency” would have made transferring back to Council Rock difficult for him.
On April 1, 2009, plaintiffs, through counsel, notified the district of their intent to seek a due process hearing under the IDEA and Section 504, both of which protect the rights of special education students to obtain a FAPE from their public schools. Plaintiffs alleged that the district had failed to offer Drake a FAPE for the 2008-09 school year and sought, inter alia, reimbursement for the cost of tuition at CLC for the entire academic year. A hearing officer conducted the due process hearing over the course of six days between September 2009 and May 2010. On June 9, 2010, the hearing officer issued a 20-page opinion in which he ruled that the district had offered Drake a FAPE for the 2008-09 school year and therefore did not have to pay the cost of Drake’s tuition at CLC.
Plaintiffs appealed the hearing officer’s decision by filing their Complaint in this action on September 7, 2010. In this case, plaintiffs seek only reimbursement for Drake’s CLC tuition for the period from early January 2009 — immediately following the twin tragedies — to the end of the school year. Plaintiffs allege that even if the district offered Drake a FAPE in July 2008, that offer no longer constituted a FAPE for the second half of the school year because Drake could not have transitioned back into the public school system after the tragic events of December 2008.
The district argues that, because the final IEP offered before Drake’s parents withdrew him from public school constituted a FAPE, it cannot be held liable for tuition reimbursement. More specifically, the district contends that, absent some indication from Maria that she wished to re-enroll Drake in the public schools, the district was under no obligation to craft a new IEP for Drake mid-year to take into account his changed circumstances and his resulting inability to transition back to public school. The district is correct.
The Court recognized that the IDEA provides that where parents withdraw their child from public school without the consent of or a referral from the school district, the parents can only be reimbursed for their tuition if the district “had not made a free appropriate public education available to the child in a timely manner prior to . . . enrollment [in the private school].” 20 U.S.C. § 1412(a)(10)(C)(ii); see also 34 C.F.R. § 300.148(c). Accordingly, the Court found that in evaluating whether the district’s offer constituted a FAPE, the Court must examine the adequacy of the IEP “as of the time it is offered to the student, and not at some later date. . . . Neither the statute nor reason countenance ‘Monday Morning Quarterbacking’ in evaluating the appropriateness of a child’s placement.” Fuhrmann ex rel. Fuhrmann v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir. 1993). The Court found that because the plaintiffs did not contest the hearing officer’s decision that, as of July 2008, the district offered Drake a FAPE for the 2008-09 school year, there is no basis under the IDEA or Section 504 for plaintiffs to collect reimbursement for Drake’s tuition at CLC.
A.A. v. Houston Indep. Sch. Dist., 2011 U.S. Dist. LEXIS 59907 (S.D. Tex. May 12, 2011)
This decision involves the Parents request to the court for a court-appointed attorney to pursue their special education dsipute with the School District. The main plaintiff in this case is A.A., a minor child, who is represented by his parents, Plaintiffs R.A. and P.A., as next friends, and who also bring the claims on behalf of themselves. Plaintiffs filed this lawsuit against Houston Independent School District (“Defendant HISD” or “HISD”) and Suzy Walker (“Defendant Walker”), principal of Travis Elementary School, on August 26, 2010.
On October 4, 2010, A.A.’s parents withdrew him from HISD and placed in him a private school without notice to HISD because they were concerned for his safety. Plaintiffs list eight reasons leading to this decision to suddenly withdraw A.A.: (1) HISD failed to properly evaluate A.A. and provide him with necessary services; (2) HISD had A.A. privately evaluated but failed to undertake its own full evaluation of A.A.; (3) HISD failed to provide A.A. with appropriate speech therapy services leading to satisfactory progress; (4) HISD failed to adequately supervise A.A., who was hurt by other students and who received additional unexplained injuries; (5) other students and staff bullied A.A.; (6) A.A.’s speech therapist and other staff inappropriately and unnecessarily used restraints on A.A.; (7) Defendant Walker harassed R.A. and P.A. when they sought to observe their son, interfered with the R.A. and P.A.’s communication with A.A.’s teachers and related service personnel; and prohibited A.A.’s attendance at school and field trips on multiple occasions; and (8) HISD interfered with ARD meetings held on behalf of A.A., in that an HISD attorney intimidated A.A.’s parents and took over the ARD process, and in that A.A.’s parents were not permitted to have their opinions accurately stated or allowed to make corrections to the false information and factual inaccuracies that permeated the ARD deliberations.
Plaintiffs make eight requests of in their complaint: (1) an order directing HISD to provide compensatory services for the eighteen months that A.A. went without a FIE with respect to all services he had been or was subsequently found eligible for, including eighteen months of one-on-one occupational therapy services; (2) an order directing HISD to provide compensatory services for the “inappropriate and ineffective” speech services it gave A.A.; (3) an order directing HISD to provide private educational placement for the rest of this academic year; (4) an order directing HISD to reimburse A.A.’s parents for A.A.’s private placement and related special education services from the date of his withdrawal through the date of the court’s order for the continuation of such services; (5) an order directing HISD to provide A.A. with speech andother related services found to be necessary for A.A. on an ongoing basis, including an appropriate assistive technology device; (6) an order directing HISD to reimburse A.A.’s parents for all outside third-party evaluations undertaken on behalf of A.A. and that were provided to HISD; (7) a finding that A.A. has been denied Free Appropriate Public Education (“FAPE”); and (8) an order that A.A. be awarded his attorney’s fees.
First, with respect to exceptional circumstances, Plaintiffs allege that HISD is operating without accreditation for general education and that the Texas Education Agency (“TEA”) has placed a special monitor on HISD for special education. Plaintiffs aver that they contacted nearly one hundred other parents who did not previously know this information. Plaintiffs attempted to advertise in the Travis Elementary School newspaper about the formation of a support group for parents with children in special education, but, they allege, the principal pulled the advertisement without Plaintiffs’ prior knowledge. Plaintiffs contacted the TEA, which notified them that they did not have the power to ask HISD to notify parents about the group. Plaintiffs aver that HISD had an obligation to notify the parents of children in general education so they could seek help for their children, if needed. Plaintiffs also allege that HISD has one of the highest student drop-out rates of any school district in the nation. Plaintiffs ask the court to appoint counsel to protect the education and safety of the children of HISD and “to expose the injustice [and] cover up of well[-]paid educational bandits who leave our children naked without the benefit of good education.”
Second, the student’s father asserts that: (1) he visited or spoke to five local attorneys, who each required between $12,000 and $30,000, plus costs, to take his case; (2) he contacted all known agencies that may have been of help, but each claimed they were short of funds and could not help; (3) he worked as an apartment manager with an annual salary of $42,000, without commission, his wife was a housewife, and he had two children; (4) he anticipated that his apartment complex would soon be defaulting on a loan, putting him out of a job; (5) he placed both children in private school, utilizing emergency funds, because of safety concerns at school; and (6) he could not transfer his children to another school district because their home was zoned to HISD.
The Court found that Plaintiffs had not followed any of the requirements ordered by the court to qualify for court-appointed counsel. The Court reasoned that the materials that Plaintiffs submitted in support of their motion were ”sorely lacking in the requisite detail” needed to show that they meet the financial threshold for in forma pauperis status. Furthermore, the Court decided that the facts alleged by Plaintiffs did not show that there were ”exceptional circumstances” that would warrant appointment of counsel, which, according to the Court is a highly unusual step in an civil matter and reserved for truly exceptional cases.
By Jack D. Robinson
Posted on June 7, 2011
With the passage of Senate Bill 11-061, Colorado will join the majority of other states who have dispensed with a two-tier special education administrative review procedure in favor of a one-tier system. Because the bill takes effect on July 1, 2011, all due process complaints filed after that date will be administered according to the new one-tier procedure.
Since the enactment of the Exceptional Children’s Education Act (ECEA), Colorado has provided for a two-tier administrative review procedure for resolving special education disputes brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the ECEA. The first-tier, or Level I review is initiated by sending a due process complaint to the Colorado Department of Education (CDE). CDE assigns an impartial hearing officer (IHO) from its registry of IHOs on a rotating basis, depending on availability. The IHOs on CDE’s registry are generally private attorneys who register to become hearing officers and are provided training in the IDEA’s dispute resolution procedures by CDE. The IHO sets pre-hearing deadlines, conducts the due process hearing, receives the parties’ evidence on the record, and issues a decision that is final and binding on the parties unless the aggrieved party files an appeal.
The current ECEA provides a Level II administrative review (appeal) of the IHOs decision. CDE contracts with the Colorado Office of Administrative Courts to perform this Level II review. The Level II review is initiated by filing a notice of appeal within 30 days after receipt of the IHO’s decision. An Administrative Law Judge (ALJ) is assigned to hear the appeal. The ALJ’s review of the IHO’s decision is based on a review of the administrative record, which includes a full transcript of the due process hearing, the pleadings and papers filed in the Level I review, briefing by the parties and, frequently, oral argument to the ALJ by the parties or their counsel. In its review, the ALJ is required to examine the transcript and certified record received from the IHO and make an “independent” decision thereupon. Similar to the IHO’s decision, the ALJ’s decision is final and binding on the parties unless the aggrieved party files a civil action with the state or federal court.
Effective July 1st, IHOs will no longer hear and decide due process complaints. According to the regulations drafted by CDE, the due process hearing will be conducted by an ALJ at the Colorado Office of Administrative Courts (OAC). According to the regulations, within two business days following CDE’s receipt of a due process complaint, CDE will notify the OAC in order to have an ALJ assigned to hear and decide the complaint. The timelines set forth in the IDEA for the Resolution Period and the Due Process Hearing remain unchanged. However, the regulations provide that “The ALJ shall not have the authority to extend the 30-day resolution period.” The rules also provide that the ALJ does not have the authority to extend the 45-day due process decision timeline until after the Resolution Period has occurred.
The party aggrieved by the ALJ’s decision has the right to bring a civil action in state or federal court. The civil action must be filed within 90-days from the date of the ALJ’s decision.
While I am generally in favor of the move to the one-tier system, I have some mixed feelings. First, I fear that having the due process hearings conducted by ALJs at the OAC will increase the already litigious nature of due process proceedings and have a chilling effect on the filing of due process complaints by parents. Having the hearing conducted by a judge in a formal courtroom will undoubtedly intimidate even the most ardent of parents. Trying to advocate for your child with a recalcitrant school district is difficult enough. Add to that the inherent anxiety of appearing in a courtroom to plead your case, may be too overwhelming for many. While some IHOs have more formal procedures than even federal court, the Level I review process is typically a less daunting exercise than a court proceeding. On the other hand, I think that the one-tier system will likely be more inexpensive for parents in the long run. In my experience, the Level II review has not been that decisive and is typically a necessary evil to get to filing a civil action in federal court. Indeed, the statistics show that about the IHO’s Level I decision is affirmed by the ALJ about 75% of the time. While statistically there are not many Level II appeals filed each year, and even less civil actions filed, I believe that given the heightened formality (perceived or real) of the ALJ administered due process hearing, I believe that there will be even fewer civil actions filed. There are also a number of unknowns regarding the switch to the one-tier administrative review system (maybe CDE has the answers, but they are unknown to me). Will the due process hearing be required to take place at the offices of the OAC in downtown Denver, or will the ALJ travel to the school district at issue? Will the school district no longer pay for the hearing officer? Who will pay the ALJs for their services? Will the due process hearing be conducted pursuant to the Colorado Administrative Procedures Act (C.R.S. § 24-4-105), or will some other, less formal, procedure apply? Will the hearing procedures be uniform among the ALJs, or will they have individual, eclectic approaches as do the IHOs of today? If you like the existing two-tier system, file your due process complaint as soon as possible. If not, wait until after July 1st and see how the ALJs conduct these hearings.
By Jack Robinson
Posted on May 19, 2011
Research shows that positive school climates where all students feel safe and engaged lead to better outcomes for schools, for students, and for educators. Yet, recent tragic school violence and youth suicides highlight the need to enhance our efforts to reduce bullying and to create schools that are safe and foster a positive learning environment for all students.
Colorado has included bullying prevention as a component of many state and local policies, systems, and programs and we have many assets and much infrastructure to draw upon in our efforts. However, there is still much work to be done at state and local levels to fully integrate and sustain effective bullying prevention policies, systems, and practices.
In response to this challenge education leaders from across the state came together for a Statewide Bullying Prevention Summit on April 15, 2011 to craft recommendations for enhancing bullying prevention efforts statewide. Participants included the Colorado Department of Education, the Colorado Attorney General’s Office, the Colorado School Safety Resource Center, the Colorado Association of School Executives, the Colorado Association of School Boards, the Colorado Education Association, state legislators, local school board members, district and school leaders, community partners, and youth. These leaders engaged in critical dialogue focused on analyzing the needs for enhancing school climate and bullying prevention efforts, identifying opportunities for innovation and creative collaboration, and prioritizing key strategies that could be pursued to enhance school climate and bullying prevention systems and supports across the state.
The result of this Summit is the Colorado Blueprint for Bullying Prevention which identifies current statewide needs and gaps, lessons learned and best practices from districts across the state, and provides recommendations for statewide objectives and actionable strategies to enhance bullying prevention efforts.
Click Here for Additional Information
Posted on April 20, 2011
El Paso Indep. Sch. Dist. v. Berry, 400 Fed. Appx. 947 (5th Cir. Tex. 2010)
In this case brought pursuant to the Individuals with Disabilities Education Act (IDEA), the school district filed a third-party complaint requesting attorneys’ fees from the parents’ attorney, under 20 U.S.C.S. § 1415(i)(3). The trial court granted the request and awarded $ 10,000 in fees to the district. On appeal to the 5th Circuit Court of Appeals, the Court found that the attorney waived any argument on the threshold question of whether the district was a prevailing party for purposes of an attorneys’ fee award under the IDEA because the attorney did not refute the district’s assertion that it qualified as a prevailing party in his response to the district’s motion for summary judgment on its third-party complaint. The Court upheld the district court’s finding that the parents’ attorney continued to litigate claims after they clearly became frivolous, unreasonable, and without foundation such that an award of attorneys’ fees to the school district was permissible because the attorney refused to accept all offered relief, the continued litigation of a claim for compensatory services was arguably unnecessary as early as October 2007, and there were stonewalling tactics.
Bucher v. District of Columbia, 2011 U.S. Dist. LEXIS 38815, 5-6 (D.D.C. Apr. 11, 2011)
After a due process hearing for private tuition reimbursement, the Impartial Hearing Officer ordered the School District to reimburse the Parents for the costs of the student’s tuition for the 2008-2009 school year and the tutoring and evaluations undertaken at the Prents’ expense. The IHO also ordered the School District to pay for Student to continue to attend his private school for the 2009-2010 and 2010-2011 school years. After the issuance of the decision, Parents submitted a petition for attorneys’ fees and costs to the School District seeking $50,155.00. The School District voluntarily reimbursed Parents in the amount of $26,436.00, resulting in a difference of $23,719.00 between what Parents believed they were owed for the total of attorneys’ fees and costs and what they were paid by the School District. The School District’s main argument was that the Parents’ attorney’s hourly rate in the amount of $350.00 per hour was unreasonable. The Court found that according to the Laffey Matrix (which provides a fee schedule for attorneys based on experience) an hourly rate of $465 for work performed in 2008-2009 by attorneys with more than twenty years of experience was standard in the community. Accordingly, the Court found that the attorney’s rate of $350 was reasonable.
Brad K. v. Bd. of Educ., 2011 U.S. Dist. LEXIS 38819, 1-3 (N.D. Ill. Apr. 7, 2011)
In this unilateral placement/private school tuition reimbursement case, the Student, who was born in June 2003, is a developmentally delayed girl with speech, language, and motor skill limitations. An Individual Education Program (“IEP”) was developed in February 2008 for the Student and it was determined by the IEP team that the placement for implementing the IEP would be the Student’s neighborhood public school. The Parents objected to this placement and instead chose to place her at Keshet School in the Chicago suburb of Northbrook, which is where she continues to attend. Contending the IEP was procedurally and substantively deficient, the parents sought reimbursement for the costs of sending the Student to Keshet. Following a hearing, the Independent Hearing Officer (“IHO”) denied reimbursement, denied a prospective placement at Keshet, and ordered that, should the Student be re-enrolled in the School District, the February 2008 IEP would be implemented with the additional provisions of (a) having a one-to-one aide from the time she gets off the bus until she gets back on the bus and (b) having 30 minutes a week of a specialist/consultant advising Student’s teachers regarding facilitating mainstreaming. The Parents appealed. The District Court upheld the IHO’s finding that that the placement at the neighborhood school was sufficient to provide Student with a FAPE. The Court also found that any possible procedural error did not deny the Student a FAPE. The Court also found that the evidence supported the IHO’s finding that aides would have been provided to ensure that Student could get into and out of the classroom and that the classroom was located near an exit to expedite emergency departures.
By Jack Robinson
Posted on March 7, 2011
Ruben A. v. El Paso Indep. Sch. Dist., 2011 U.S. App. LEXIS 3906 (5th Cir. Tex. Mar. 1, 2011)
In this case, the school district filed a counterclaim to the Parents’ action more than 90 days after the date of the hearing officer’s final decision. The district court ruled that the counterclaim was time-barred and dismissed the school district’s claim. The issue on appeal was whether the IDEA’s statute of limitations barred the counterclaim. The 5th Circuit found that the district court erroneously relied on a case that the U.S. Court of Appeals for the Third Circuit had reversed. The Third Circuit found that because the IDEA’s statute of limitations under 20 U.S.C.S. § 1415(i)(2)(A), (B), only limited a party’s right to “bring an action” to within 90 days after the final administrative decision, the plain language of the statutory text did not limit a party’s right to pursue a counterclaim because the assertion of a counterclaim was not “bringing an action.” The Court held that the district court erred in dismissing defendant’s counterclaim as time-barred.
Dep’t of Educ. v. T.G., 2011 U.S. Dist. LEXIS 20716, 6-7 (D. Haw. Feb. 28, 2011)
In this case, it was undisputed that notwithstanding the school district’s receipt of the parents’ Request for Impartial Hearing on a date certain, the school district failed to ensure that a timely resolution session and due process hearing occurred and a timely decision issued. The Hearings Officer ruled that the school district’s failure to provide a timely due process hearing was not an unimportant or technical violation of the procedural safeguards provided for in the IDEA, but rather a “denial of a fundamental component of the due process protections afforded by the statute. As a result, the Hearings Officer ruled in favor of the parents, concluding that “the failure to convene a timely resolution session, hold a timely due process hearing, and ensure that a timely decision was issued to the parties resulted in a denial of FAPE.” The Hearings Officer awarded the parents reimbursement for the costs of placement at a private school for the 2009-2010 school year as well as for related expenses. The Hearings Officer also awarded the parents reimbursement for the costs of providing T.G. with a FAPE until such time as the school district made a FAPE available. The district court reveresed finding that while the school district’s failure to hold a timely resolution session and due process hearing were procedural violations, the procedural violations did not result in a substantive violation of the IDEA or a substantive denial of a FAPE.
James M. v. State, 2011 U.S. Dist. LEXIS 18946 (D. Haw. Feb. 25, 2011)
James M. is a nineteen-year-old student who has been diagnosed with dysarthia and hypotonia. He has been eligible for special education and related services under the category of Autism since 1999. The Hearings Officer held a four-day due process hearing where he received testimony from over fifteen witnesses, including private and public teachers, administrators, and educational consultants. Following the hearing, the parties submitted closing briefs. The Hearings Officer concluded that the school district offered James M. a FAPE and that the parents were not entitled to reimbursement for their private school expenditures. On appeal, the parents argued that the school district violated both their procedural and substantive rights under the IDEA. With respect to procedure, the parents contended that the school district failed to provide the parents with a meaningful opportunity to participate in the formulation of their child’s IEP. With respect to substance, the parents argued that the IEPs of April 24, 2009 and September 17, 2009 failed to sufficiently address James M.’s academic, developmental, and functional needs. Specifically, the parents claimed the following deficiencies: (1) insufficient speech language therapy; (2) inadequate provision of one-on-one paraprofessional services; (3) absence of direct occupational therapy services; (4) absence of a transition plan; and (5) absence of mental health therapy. The district court affirnmed the hearing officer’s decision finding that the IEPs provided the student a FAPE.
By Jack Robinson
Posted on February 25, 2011
Lake Wash. Sch. Dist. No. 414 v. Office of Superintendent of Pub. Instruction, 2011 U.S. App. LEXIS 3464 (9th Cir. Wash. Feb. 22, 2011)
In this case, the school district sought to enjoin the Washington Department of Education from granting continuances greater than 45 days in any administrative proceedings conducted pursuant to the Individuals with Disabilities Education Act (IDEA). The court was called on to determine whether the IDEA allowed a school district the right to sue a state agency for its alleged noncompliance with IDEA procedures. The court found that 20 U.S.C.S. § 1415 established a private right of action for disabled children and their parents. However, the court found that it created no private right of action for school boards or other local educational agencies apart from contesting issues raised in the complaint filed by the parents on behalf of their child. The court held that a school district had no express or implied private right of civil action under the IDEA to litigate any question aside from the issues raised in the complaint filed by the parents on behalf of their child. The Court concluded that the district lacked statutory standing to challenge the State’s compliance with the IDEA’s procedural protections because the district sought to enforce for its own ends the procedural protections intended to safeguard the rights of disabled children and their parents.
D. A. v. Houston Indep. Sch. Dist., 629 F.3d 450 (5th Cir. Tex. 2010)
A parent of a child with disabilities withdrew the child from the school district before the school district had tested the child. A hearing officer in a due process hearing under the IDEA concluded that the school district violated the IDEA but that the claim was moot because the child was no longer in the district. On review, the court affirmed. The Court found that the Parent failed to furnish proof of intentional discrimination as required under the Sect. 504 and the ADA, and § 1983 offered no additional cause of action. The error found by the hearing officer suggesting an untimely diagnosis reflected no more than negligence, and the court found no fact issue as to whether the officials departed grossly from accepted standards among educational professionals. The mere disagreement with the correctness of the educational services rendered to the child did not state a claim for disability discrimination under the ADA or Sect. 504.
N.M. v. Sch. Dist. of Phila., 394 Fed. Appx. 920 (3d Cir. Pa. 2010)
In this case, the student suffered from a pervasive development disorder that caused him to be challenged in his language skills and auditory processing. The parents rejected a proposed individualized education program (IEP) which called for him to split his instructional time between a special education learning support classroom and a regular education classroom. In seeking tuition reimbursement, the parents argued that the proposed IEP did not provide the minor with a free appropriate public education (FAPE), as it did not provide full-day, small group multisensory structured language based instruction from sufficiently trained teachers. The Third Circuit held that the district court did not err in concluding that the proposed IEP was reasonably calculated to provide meaningful educational benefits. The Court reasoned that the proposed IPE addressed the student’s needs, provided for social interaction with non-disabled peers, and was not procedurally flawed because it lacked annual goals and short-term objectives. The Court concluded that because the IEP provided a FAPE and because the parents did not demonstrate any impediment to their participation or deprivation of educational benefits, the court rejected this contention.
A.H. ex rel. J.H. v. Dep’t of Educ., 394 Fed. Appx. 718 (2d Cir. N.Y. 2010)
In this case, the district court found that the student’s IEP was procedurally deficient because no special education teacher participated in the meeting that formed the IEP. The district court also found that the IEP was substantively deficient because it failed to address one of the student’s disabilities. The Second Circuit reversed finding that this conclusion failed to accord sufficient deference to the decisions of the Impartial Hearing Officer and State Review Officer (SRO), both of whom concluded that the IEP offered the son a free appropriate education. The Court reasoned that even if the student’ss special education teacher did not participate in formulating the challenged IEP, a certified special education teacher who taught and served as an IEP coordinator at the student’s school did so. The Court found that there was no indication this teacher in lacked knowledge regarding the special education program options for the student. The Court also found that any procedural failing did not deny the student an appropriate education under the IDEA.
T.B. v. Waynesboro Area Sch. Dist., 2011 U.S. Dist. LEXIS 17026 (M.D. Pa. Feb. 22, 2011)
This case is an appeal of an adverse decision by a Pennsylvania Special Education Hearing Officer with regards to A.B., a 17-year old student residing in the District who has been previously diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”), speech language impairment and an autism disorder, Asperger’s syndrome, since early childhood. Plaintiffs T.B. and M.B. are the parents and natural guardians of A.B (“Plaintiffs” or the “Parents”).
The events that gave rise to the case occurred during the 2007/2008 and 2008/2009 school years. A.B. struggles to appropriately interact with peers in unstructured, casual circumstances, and as a result has been both a victim and perpetrator of bullying while a student in the District. Following the last documented bullying incident at the District, A.B. exhibited suicidal behavior and was admitted to a psychiatric hospital. Upon release, A.B. received homebound instruction rather than return to school for the remainder of the school year. The Parents rejected the District’s Individualized Education Program (“IEP”) for the following school year, asserting that it did not address the problems which had lead to A.B.’s previous suicidal ideation. Instead, A.B. was enrolled at St. Maria Goretti School, a small private school, and the Parents sought reimbursement for that education from the District.
Plaintiffs’ primary argument is not necessarily that the IEP itself was deficient, but that the means for implementing the IEP were deficient. To support this argument, Plaintiffs argue that no formal “data collection” was ever conducted in conjunction with A.B.’s IEP, and thus submit that the IEP’s implementation must have been deficient in the absence of such data. The Court found that while this assertion has some facial allure, upon closer inspection it is evident that its premise is faulty. At the administrative hearings and as noted, numerous individuals testified as to A.B.’s positive progress under the IEP. We are presented with no reason to doubt the credibility and accuracy of that testimony, and shall decline Plaintiff’s invitation to do so. Further, having concluded that the IEP for the 2007/2008 school year was appropriate and that A.B. was accordingly provided with a FAPE for that school year, it necessarily follows that the Plaintiffs are not entitled to compensatory education or tuition reimbursement for that time period.
S.H. v. N.Y. City Dep’t of Educ., 2011 U.S. Dist. LEXIS 16336 (S.D.N.Y. Feb. 18, 2011)
A parent brought this case against the New York City Department of Education and the City of New York (“DOE”) under the Individuals With Disabilities Education Act (“IDEA”). The Parent appeals from a New York State Review Officer’s decision denying tuition reimbursement for Plaintiff’s unilateral placement of J.G. in a private school for the 2008-09 school year. Both parties moved for summary judgment. The DOE conceded at the due process hearing that it failed to provide a FAPE to J.G. Therefore, the case turned on the second prong of the Burlington test: whether the Landmark School was an appropriate placement for J.G.
A private placement is appropriate where parents “‘demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.’” However, IDEA also requires that “special education and related services must be provided in the least restrictive setting consistent with a child’s needs.”
The Court found that the administrative record did not demonstrate that J.G. required a residential program, a six-to-one teacher-student ratio, or a setting limited solely to learning disabled students in order to obtain educational benefits. While Dr. Forman’s report from July 2006 indicates that she believed J.G. required a residential program at that time, there is ample evidence that J.G. had progressed significantly between July 2006 and the 2008-09 school year. J.G. was performing at or above his grade level, was taking the most challenging math and science courses, was performing satisfactorily and in some cases exceptionally well in his classes, and indeed was functioning independently in a number of his classes. J.G.’s scores on standardized tests also placed him in the average range or higher for his age group. The Court also found that even accepting Plaintiff’s evidence that J.G. benefitted from the Landmark program, she has not met her burden to demonstrate that J.G. needed such a program in order to “receive educational benefits.”
E. Orange Bd. of Educ. v. E.M., 2011 U.S. Dist. LEXIS 16502, 1-2 (D.N.J. Feb. 17, 2011)
E.M. is the parent of J.B., a minor child who is classified as a student eligible for special education and related services under the category of Specific Learning Disability. In May 2007, the Greater Newark Charter School (“GNCS”) determined that it could not provide an appropriate education for J.B., then a resident of Newark, as required under his Individualized Education Program (“IEP”). GNCS developed an IEP for out of district placement and the Newark School District accepted financial responsibility. J.B. attended North Hudson Academy, a private school for students with learning disabilities located in North Bergen, New Jersey. At no point did the Newark School District contest the placement of J.B. In August 2007, E.M. and J.B. moved from the City of Newark to the City of East Orange. The East Orange Board of Education offered E.M. various in-district programs, which E.M. refused, instead requesting transportation from East Orange to North Hudson Academy.
Plaintiff asserts that E.M. is not entitled to transportation costs because: 1) by virtue of attendance at North Hudson Academy, J.B. could not have been attending the Greater Newark Charter School and 2) his Individualized Education Plan did not require (or even mention) transportation. First, the fact that Judge Celentano analyzed the underlying decision under the Charter School Act, does not bar this Court from ordering appropriate remedies under the IDEA. The Court is not satisfied that J.B. must attend a charter school to be entitled to transportation costs. 2 Here, J.B. appears to have been “enrolled” in the GNCS, but “attended” North Hudson Academy. This distinction does not bar J.B. from obtaining transportation costs. J.B. is entitled to reasonable transportation costs under the IDEA, which contains a broad, equitable remedial scheme. The IDEA authorizes the Court to grant the prevailing party “such relief as the court determines is appropriate” to remedy the deprivation of a FAPE. 20 U.S.C. § 1415(i)(2)(C)(iii); Ferren C., 612 F.3d at 717. Furthermore, the Court does not agree that an IEP must explicitly reference transportation costs. J.B.’s IEP includes a reference to “related services,” which, as defined under the IDEA includes “transportation, and other such developmental, corrective, and other supportive services . . .” 20 U.S.C. § 1401(26)(A). Thus, the Court ordered that it would entertain a further submission by Defendant, properly supported by affidavit(s) and any pertinent documentation, detailing the nature of the transportation expenses for which reimbursement is sought.
M.H. v. New York City Dep’t of Educ., 2011 U.S. Dist. LEXIS 17306 (S.D.N.Y. Feb. 16, 2011)
Plaintiffs commenced this action on February 9, 2010, appealing from a determination from a State Review Officer (“SRO”) that defendant New York City Department of Education (“DOE”) had offered a free and appropriate public education (“FAPE”) and that therefore plaintiffs were not entitled to reimbursement of tuition for the private school in which H.H. was enrolled.
H.H. is a 17-year-old high-school student who was enrolled at the Robert Louis Stevenson School (“RLS”) at the time this action was filed. Her parents, M.H. and S.R. (the “Parents”), filed this action seeking reimbursement of H.H.’s tuition at RLS, in which H.H. enrolled after anxiety and emotional issues prompted her withdrawal from her previous school, Columbia Grammar and Prep (“Columbia”).
First, plaintiffs argue that the IEP had no counseling mandate because the “Related Services section of the IEP is blank” and was therefore inappropriate.
The DOE reiterates that counseling is discussed in other areas of the IEP, and further points out that the both the IHO and plaintiffs implicitly acknowledged that “there was no dispute as to the level of counseling services recommended by the CSE” by their conduct. Thus, the DOE contends that the omission of the duration and frequency of counseling was “harmless error” and did not constitute a denial of FAPE. The Court agrees with the DOE. Second, plaintiffs argue that the amount of counseling recommended is insufficient. Plaintiffs cite no authority on this point, but instead compare the amount of counseling recommended to that which H.H. receives at RLS. The Court therefore finds that “the appropriateness of a public school placement shall not be determined by comparison with a private school placement preferred by the parent.” Next, plaintiffs argue that H.H. was improperly classified as “Other Health Impaired” instead of “Emotional Disturbance.” (Pl.’s Mem. at 16.) But the law is clear that school districts are not required to classify a student in a particular category. Rather, as the DOE correctly points out, “the only relevant question is whether the Student was offered FAPE.” Finally, plaintiffs argue that the SRO erred in finding the class size at Baldwin to be appropriate. The connection between that history and what class size is appropriate for a student with that history, however, is exactly the sort of policy judgment on which the Second Circuit has instructed that this Court should defer to the SRO, especially where, as here, the SRO’s “review has been thorough and careful.”
S.H. v. N. Y. City Dep’t of Educ., 2011 U.S. Dist. LEXIS 15864 (S.D.N.Y. Feb. 15, 2011)
Plaintiffs S.H. and B.P. are the parents of plaintiff S.H., who has been diagnosed with autism. In the 2008-09 school year, they placed the then-five-year-old S.H. in the Rebecca School, a private, for-profit educational institution, and sought reimbursement of educational expenses from the New York City Department of Education (the “DOE”). They claimed that their son has been denied a free and appropriate public education (“FAPE”) and pursued state administrative remedies under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. On behalf of themselves and S.H., the parents have brought this action pursuant to IDEA, seeking review of a decision by the State Review Officer (the “SRO”) that denied them all relief.
Here, the IHO presided at a four-day hearing and issued a decision and order in favor of the parents directing that $10,000 of educational expenses be reimbursed to the parents and an additional $64,667 be paid to the Rebecca School. In a written opinion, the SRO “annulled” the decision of the IHO and found in favor of the DOE. Thereafter, the parents commenced this action.
On appeal, the Court found that the SRO’s review, reflected in an 18-page single-space decision, was thorough and careful, and is entitled to deference. The DOE has sustained its burden of demonstrating that it offered S.H. a FAPE, pursuant to a procedurally and substantively appropriate IEP. Having considered all other arguments advanced by the parents and find them to be without substance, this Court grants summary judgment in favor of defendants, and the complaint is dismissed.
Posted on February 24, 2011
Lake Wash. Sch. Dist. No. 414 v. Office of Superintendent of Pub. Instruction, 2011 U.S. App. LEXIS 3464 (9th Cir. Wash. Feb. 22, 2011)
The school district filed an action seeking to enjoin the Washington Department of Education from granting continuances greater than 45 days in any administrative proceedings conducted pursuant to the Individuals with Disabilities Education Act (IDEA). The U.S. District Court for the Western District of Washington held that the district lacked standing and dismissed the complaint with prejudice. The school district appealed and the Ninth Circuit affirmed.
The dispute began when the parents of S.G. (“Parents”) filed a due process complaint against the School District, alleging that their child’s educational program violated the IDEA. The School District, in response, filed its own request for a due process hearing, seeking a determination that its evaluation of the child was appropriate. The Office of Administrative Hearings assigned both matters to an ALJ, who consolidated the complaints and set a prehearing conference for December 31, 2008 and a hearing for January 14, 2009.
During the prehearing conference, counsel for Parents requested a continuance of the hearing. According to the School District, counsel’s reasons for the request were her vacation in January and her unavailability in February, March, and April due to other special education hearings. The School District objected, on the grounds that the IDEA requires a decision be issued within 45 days of the expiration of the 30-day resolution period. The ALJ granted the continuance “[w]ithout justification,” the School District alleges.
In response to the continuance, the School District immediately filed an action in federal district court for a writ of prohibition and a temporary restraining order requiring the state agency to proceed with the initial 45-day timeline. The district court denied the motion and issued a minute order notifying the School District that its case would be dismissed if the School District did not advise the court that it was seeking other relief. The School District amended its complaint, seeking (1) a declaratory judgment that the agency’s practice of granting extensions without a showing of good cause violates the IDEA and federal and state regulations and (2) a permanent injunction against the State granting extensions beyond 45 days in future IDEA hearings. The State, joined by the Parents, moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing and 12(b)(6) for failure to state a claim.
The task of the Court was to determine whether the IDEA conferred upon a school district the right to sue a state agency for its alleged noncompliance with IDEA procedures. The court found that 20 U.S.C.S. § 1415 established a private right of action for disabled children and their parents. It created no private right of action for school boards or other local educational agencies apart from contesting issues raised in the complaint filed by the parents on behalf of their child. According to the Court, a school district had no express or implied private right of civil action under the IDEA to litigate any question aside from the issues raised in the complaint filed by the parents on behalf of their child. The district lacked statutory standing to challenge the State’s compliance with the IDEA’s procedural protections because the district sought to enforce for its own ends the procedural protections intended to safeguard the rights of disabled children and their parents.
Posted on February 16, 2011
The Colorado Department of Education has announced its proposed emergency Amendments to the Rules for the Administration of the Exceptional Children’s Educational Act regarding Colorado’s due process system. If adopted by the Colorado Department of Education, the proposed amendments will eliminate the two-tier due process system that has been in existence in Colorado since the Act’s enactment. The proposed amendments will also eliminate the use of Impartial Hearing Officers (IHO) to decide special education disputes. Rather, CDE will contract with the Colorado Office of Administrative Courts to have Administrative Law Judges (ALJs) hear and decide the due process complaint. The proposed Amendments are available online at http://www.cde.state.co.us/cdesped/index.asp CDE has already scheduled regional hearings to discuss the proposed amendments and receive public comments.
Regional hearings on the above documents will be held from 7:00 p.m. – 9:00 p.m. at the following locations and dates:
April 5, 2011, Cherry Creek High School, Schilling Law Center, 9300 East Union Avenue, Greenwood Village, CO 80111
April 5, 2011, Greeley Public Schools, Northridge High School Lecture Hall, 100 North 71st Avenue, Greeley, CO 80634
April 6, 2011, Pueblo 60 School District Administration Building, Arapahoe Room, 315 West 11th Street, Pueblo, CO 81003
April 6, 2011, Grand Junction Public Schools, Basil Knight Center, Room A, 2523 F Road, Grand Junction, CO 81505
April 6, 2011, Durango 9-R School District, Board Room, 201 E. 12th Street, Durango, CO 81301
Written comments will be accepted until 5:00 pm on April 15, 2011. Send written comments to Kim Hubbard, Colorado Department of Education, Exceptional Student Leadership Unit, 1560 Broadway, Suite 1175, Denver, CO 80202-5149, by fax to (303) 866-6767, or by email to hubbard_k@cde.state.co.us
Posted on February 4, 2011
A ex rel. D.A. v. New York City Dep’t of Educ., 2011 U.S. Dist. LEXIS 9475 (S.D.N.Y. Feb. 1, 2011)
This case presents the following question of first impression:
1. When a child with disabilities has been denied a free and appropriate public education; and
2. the child’s parents have enrolled the child in an appropriate private school; and
3. the equities favor an award of the costs of private school tuition; but
4. the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so;does this Court’s authority under Section 1415(i)(2)(C)(iii) of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1415 (i)(2)(C)(iii), “to grant such relief as the court determines is appropriate,” include the power to order a school district to make a retroactive tuition payment directly to the private school? The New York City Department of Education and its Chancellor, defendants herein, contend that IDEA grants courts no such authority, arguing that the private school tuition remedy is available only to parents with the financial means to pay — in the first instance — private school tuition out-of-pocket.
This Court concludes that imposing such a limitation on this remedy is inconsistent with the statutory language and with Supreme Court jurisprudence interpreting IDEA, and would be entirely antithetical to Congress’s clearly expressed legislative intent and purpose in enacting IDEA.
CG v. Pa. Dep’t of Educ., 2011 U.S. Dist. LEXIS 8339, 1-2 (M.D. Pa. Jan. 28, 2011)
Plaintiffs, two classes represented by parents of students in Lancaster and Reading School Districts, bring this action on behalf of their minor children to challenge the Commonwealth of Pennsylvania’s method for distributing special education funds. They contend that 24 P.S. § 25-2509.5, the Pennsylvania statute which apportions special education funding, violates federal law, specifically: the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; the Due Process Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, § 1; the Equal Educational Opportunities Act of 1974 (“EEOA”), 20 U.S.C. § 1701 et seq.; and Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. Defendants are the Pennsylvania Department of Education and Gerald Zahorchak, the Secretary of the Department. Now before the Court are the parties’ cross motions for summary judgment. The Court denys Plaintiffs’ motion and grants Defendants’ motion in part and denys Defendants’ motion in part.
Brown v. Tenn. Dep’t of Educ., 2011 U.S. Dist. LEXIS 8854, 5-7 (M.D. Tenn. Jan. 28, 2011)
Plaintiffs’ “Statement of Claim” essentially avers that Plaintiff Brown was a learning disabled student with ADHD who attended Pearl Cohn High School off and on from 1998-2002. During some periods of that time, she received no special education services because she had been placed in the wrong curriculum. At some point, she was suspended from Pearl Cohn High School and sent back to “zone school.” She was readmitted to Pearl Cohn High School in 2001, but was again suspended in February 2002. She reports being told in an IEP meeting that she was “being made a senior and would graduate May 2002.” She also reports being told that she could not participate in graduation, but that she should “come at end of school term and pick up diploma.” In Fall 2003, Plaintiff went to pick up her diploma, but was told by the assistant principal that her records had been sent to the school board. Plaintiff decided leave her diploma “there, until she was ready to use it.” In August 2009, she started a dental assistant program at Kaplan University, but was forced to drop out in October 2009 because of her “inability to show four years of High School or proof of a diploma.” Plaintiffs learned that “no diploma has ever been issued.” Plaintiffs aver that Plaintiff Brown has “truly been a victim of not being afforded a free appropriate education and has been left behind.” Plaintiffs further aver that the school system has continually ignored her request for an accurate transcript that reflects all her credits.
Plaintiffs seek the following relief:
(1) Cite the State Board of Education and the Metropolitan Nashville Public School System to finance any future educational advancement in or out of the State of Tennessee.
(2) Not sure if this is legal, order the State Board of Education to issue her High School Diploma.
(3) Cite State Board of Education and Metropolitan Nashville Public Schools for violations of Student Civil Rights and Parent Civil Rights.
(4) Order that specific (specialized Guidance counselor) be assigned specifically to provide adequate curriculum for students with disabilities or Resource classes in High School.
(5) Order revamping measures of the Special Education Department, especially in High Schools. (a) More attainable goals for each individual student, and attainable devices to measure (success of academic goals.)
(b) Early intervention (Freshmen year for Vocational Skill setting for those students whose academic skills and vocational skills may be extremely limited, so as to promote progress, through high school years.
(c) More skillful monitors with psychiatric background to help provide more behavioral therapy for those students, who’s behaviorals may interfere with academic achievement in the classrooom, and non-working alternative schools.
(6) Eventhough, my oldest son does not fit into this statute, and is not a plaintiff, his issue of academic performance vs disability impairments was also damaged. I requesting that the State Board of Education and Metropolitan Nashville Public School System be cited to provide free or financial and adequate educational assistance to help him with future educational placement and vocational placement, to help with career skills.
(7) I wish to have my supposedly case of child abuse removed from my file and other appropriate expungeable things as deemed. I also wished that other character assassination attempts be removed.
As has been noted, Plaintiffs have filed suit pursuant to the “No Child Left Behind Act of 2001,” 20 U.S.C. §§ 6301-7941. Plaintiffs seek the injunctive relief discussed above. Plainiffs’ case was dismissed as being frivolous and groundless.
Struble v. Fallbrook Union High Sch. Dist., 2011 U.S. Dist. LEXIS 7866, 2-3 (S.D. Cal. Jan. 27, 2011)
This case consists of a complaint filed by Plaintiff Mary Struble, the conservator and mother of a young man (“C.S.”), who alleges that the Defendant failed to provide a FAPE and seeking that C.S. be placed at the Fusion Learning Center, a nonpublic school which has not been certified by the state as an appropriate school for children with disabilities. The complaint seeks to modify the remedy prescribed by the administrative law judge (ALJ) who conducted an administrative due process hearing and agreed with Struble that the defendant failed to provide C.S. a FAPE. After she filed the complaint, Struble placed her son with Fusion, but does not seek reimbursement of those costs in this complaint. The complaint doesn’t say what whether C.S. continued at Fusion, or what his status is now, but the Court assumes the parents continue to seek compensatory education for him. In addition, the Defendant, Fallbrook Union High School District, filed a counterclaim seeking to reverse the decision by the ALJ.
The District’s counterclaim is DISMISSED WITH PREJUDICE in its entirety. The plaintiff’s complaint is STAYED and REMANDED to the OAH for a final determination by a hearing officer as to the following two issues: (A) whether the February 7, 2008 IEP placement was appropriate under the IDEA and, if not, (B) whether the private parental placement at Fusion appropriate under the Act. The Court finds the Plaintiff was the prevailing party in the ALJ hearing. The Court also finds the Plaintiff has waived her right to appeal the ALJ’s decision that the Defendant prevailed on twelve specific issues which the Plaintiff did not appeal.
Mangum v. Renton Sch. Dist., 2011 U.S. Dist. LEXIS 8887, 7-8 (W.D. Wash. Jan. 27, 2011)
Given the limited nature of the District’s argument, the court’s task in resolving the motion before it is simplified. The only relevant facts are undisputed. The District has removed I.M. from the H.O.M.E. program. The court makes no finding as to its motivations for doing so. The court assumes, solely for purposes of this motion, that the District has accurately described the Mangums’ failure satisfy their obligations to the H.O.M.E. program, and that those failures would justify I.M.’s exclusion from the program but for the stay-put provision.
The disputed question before the court is therefore a legal one: is the H.O.M.E. program I.M.’s “current educational placement” for purposes of invoking the stay-put provision? The District insists that it is not, and contends that only a placement made pursuant to an IEP brings a student within the ambit of the stay-put provision. In support of that contention, the District cites only two cases. In the first, Johnson v. Special Educ. Hearing Office, the court remarked that “[f]or the purpose of § 1415(j)’s ‘stay put’ provision, the current educational placement is typically the placement described in the child’s most recently implemented IEP.” 287 F.3d 1176, 1180 (9th Cir. 2002). The court’s survey of case law confirms the Johnson court’s observation — most plaintiffs invoking the stay-put provision do so on behalf of a student who is subject to an IEP. For many reasons, however, there is no reason to interpret Johnson to require an IEP before invoking the stay-put provision.
K.G. v. Sheehan, 2010 U.S. Dist. LEXIS 140589, 15-17 (D.R.I. Dec. 30, 2010)
On the same date as the scheduled meeting, Plaintiff sent a letter to Mr. Vigeant, which he received on August 20, 2007, indicating that she did not accept the recommended placement at the Civic Center program, that she was withdrawing C.G. from the District, and that she intended to place C.G. in a private school program at the expense of the District. Plaintiff’s reasons for taking this action were that C.G. felt uncomfortable attending WWHS because of the sexual abuse situation and that C.G.’s school problems had increased due to the placement in the after school alternative program, which Plaintiff felt was inappropriate. C.G. began attending the Tides School on September 4, 2007.
Mr. Vigeant sent Plaintiff a letter on September 14, 2007, in which he indicated that the District would not accept financial responsibility for Plaintiff’s unilateral placement of C.G. at the Tides School. He further indicated that the District’s offer to place C.G. in the Civic Center program would address all of her needs and provide her with FAPE and that, therefore, the District had no obligation to fund the placement at the Tides School. The 9/14/07 Letter concluded by stating that a copy of Plaintiff’s due process rights was enclosed and that Plaintiff should contact Mr. Vigeant if she wished to set up an IEP meeting.
Court held that School District offered student a FAPE and denied request for tuition reimbursement and private school placement.
