Is Rowley Still Relevant After Endrew F.?

Posted on April 4, 2017

In Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S. ___ (Mar. 22, 2017), the United States Supreme Court was asked to resolve an issue that is at the heart of the Individuals With Disabilities Education Act (IDEA): What is the level of educational benefit that school districts must confer on children with disabilities to provide them with a free appropriate public education (FAPE) guaranteed by the IDEA?

Since 1982, the primary source for the answer to that question was Board of Ed. of Hendrick Hudson Central School Dist., Winchester Cty. v. Rowley, 458 U.S. 176 (1982), the Supreme Court’s first decision to construe the IDEA. See Wenkart, R. D., The Rowley standard: A circuit by circuit review of how Rowley has been interpreted, 247 West’s Educ. L. Rep. 1 (2009)(collecting and analyzing cases). Since 1982, Circuit Courts and legal scholars have recognized that there was a split of authority in the interpretation of the “Rowley standard” with some Circuits applying a “some educational benefit” standard, other Circuits applying a “meaningful educational benefit” standard and at least one Circuit applying a mixture of both standards. See Aron, L., Too Much or Not Enough: How Have the Circuit Courts Defined a Free Appropriate Public Education After Rowley?, 39 Suffolk U. L. Rev. 1, 6 (2005).

To add to the confusion, the level of educational benefit Circuit Courts afforded to the terms “some” and “meaningful” were widely divergent. For example, in Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 182 (3rd Cir. 1988), cert. denied, 488 U.S. 1030 (1989), the 3rd Circuit interpreted Rowley to require a “meaningful educational benefit,” described as educational benefit that was “substantial” and “must be more than de minimis.”

On the opposite side of the spectrum, the Tenth Circuit has construed Rowley much more restrictively, rejecting the notion of “meaningful” benefit, and holding that the “Rowley Standard” was only one of “some educational benefit” which translates to an educational benefit that is “merely more than de minimis.” See, e.g., Thompson R2J Sch. Dist. v. Luke P., 540 F.3d 1143, 1149 (10th Cir. 2008)(“[W]e have concluded that the educational benefit mandated by IDEA must merely be ‘more than de minimis.’”).

Almost 3000 cases have cited to Rowley since 1982 with the majority of those decisions applying their version of the so-called “Rowley Standard.” The Supreme Court in Endrew F. upended all of those cases holding for the first time that Rowley never established a substantive standard for a FAPE and never meant to delineate the level of educational benefit that is owed under the IDEA.

Writing for a unanimous Court, Chief Justice Roberts forcefully wrote in the opening paragraph to this landmark decision that the Court in Rowley held only that the IDEA establishes a “substantive right” to a free appropriate public education for children with disabilities and did not establish a “substantive standard” for determining when that right was satisfied. Slip Op. at 1. Rather, the Court stated that this “more difficult problem” is being decided for the first time in the Endrew F. decision. Id.

The significance of this pronouncement cannot be overstated – it eradicates the relevance and precedential effect of all prior and existing substantive FAPE standards that relied on Rowley.

Chief Justice Roberts goes to great lengths to describe and define the very narrow holding of Rowley. Following its discussion of the statutory framework for the IDEA, the Court, in section I.B. of the decision, sets forth a lengthy and in depth analysis of Rowley, including the unique facts at issue in that case, the competing arguments made by the parties to the district court and to the court of appeals, what was decided by the lower courts, the parties’ arguments to the Supreme Court, and the Court’s rejection of both sides’ arguments. Id. at 3-6.

The Court opened its discussion of Rowley by declaring that “This Court first addressed the FAPE requirement in Rowley.” Id. at 3. The Court noted that in Rowley the “parties advanced starkly different understandings of the FAPE requirement,” and that Rowley rejected both parties’ views. In particular, Rowley rejected the lower courts’ holding in favor of the parents that the IDEA allows courts to impose their own judgment about the FAPE requirement. Id. 4-5. On the other hand, Rowley “rejected the school district’s argument that the FAPE requirement was actually no requirement at all.” Id. at 5.

The Court made clear that Rowley did not establish a substantive FAPE standard. Rather, Rowley “went no further” than to decide that the IDEA established a substantive right to a FAPE and to conclude that Amy Rowley’s IEP satisfied the FAPE requirement because it provided a “substantial suite of specialized instruction and services” and she made “excellent progress” under the IEP. Id. at 5.

Throughout the decision, the Court re-emphasized its position that Rowley did not establish a substantive FAPE standard:

  • “Observing [in Rowley] that the Act requires States to ‘educate a wide spectrum’ of children with disabilities and that ‘the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end,’ we declined ‘to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.’ Id. at 6.
  •  “The Court in Rowley declined ‘to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.’” 458 U. S., at 202.” Id. at 9.
  • “[T]the district urges that [Rowley] conclusively adopted a ‘some educational benefit’ standard when it wrote that ‘the intent of the Act was more to open the door of public education to handicapped children . . . than to guarantee any particular level of education.’ [Rowley], at 192; see Brief for Respondent 14.” Id. However, “the district makes too much of” these statements. Id.
  •  “Similarly, we find little significance in the Court’s language concerning the requirement that States provide instruction calculated to ‘confer some educational benefit.’ [Rowley], at 200. The Court had no need to say anything more particular, since the case before it involved a child whose progress plainly demonstrated that her IEP was designed to deliver more than adequate educational benefits. See [Rowley], at 202, 209–210.” Id. at 10.
  • “The Court was not concerned with precisely articulating a governing standard for closer cases. See [Rowley], at 202.” Id.
  •  “And then we expressly declined ‘to establish any one test for determining the adequacy of educational benefits’ under the Act. [Rowley], at 202 (emphasis added).” Id.
  • “It would not have been ‘difficult’ for us to say when educational benefits are sufficient if we had just said that any educational benefit was enough. And it would have been strange to refuse to set out a test for the adequacy of educational benefits if we had just done exactly that. We cannot accept the school district’s reading of Rowley. Id. at 10-11.
  • “While Rowley declined to articulate an overarching standard to evaluate the adequacy of the education provided under the Act, [We are establishing one in this case]: To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Id. at 11.

Because school districts and their associated organizations, for the last 35 years, have steadfastly clung to the low hanging fruit of the “Rowley Standard” as requiring no educational benefit at all, there is little doubt that they will not readily acknowledge the eradication of the so-called “Rowley Standard” and the establishment of a “markedly more demanding” standard articulated for the first time in Endrew F.

A stark example of the school district’s intransigence was included in a statement to the media by Kathleen Sullivan, chief counsel for the Colorado Association of School Boards (CASB). In her statement, Ms. Sullivan argues that the standard established in the Endrew F case was “not a radical alteration” of the standard set forth in Rowley and would not “disrupt the significant body of case law that had developed” from Rowley. Of course, Ms. Sullivan’s statement completely ignores (or fails to understand) the overarching holding of Rowley – that it did not establish a FAPE standard and that the case law that developed subsequently which held to the contrary was wrong.

Never mind that Ms. Sullivan, on behalf of CASB, filed an Amicus Brief with the 10th Circuit in the Luke P. case arguing that Rowley and its progeny established that the IDEA only provided for an educational benefit that was “just above trivial; just “more than de minimis;” “trivial educational advancement;” “a Chevrolet not a Cadillac.” CASB pressed the 10th Circuit to adopt a standard that afforded a child with a disability nothing more than “trivial educational advancement” which Judge Gorsch, writing on behalf of the 10th Circuit, adopted in Luke P in the form of the “merely more than de minimis” standard.

The School District and its Amici warned the Supreme Court in Endrew F that any deviation from the 10th Circuit’s “merely more than de minimis” standard would radically alter the standard for a FAPE and would result in a significant burden to school districts and increased litigation.

Ms. Sullivan’s reading of Endrew F. included in her statement on behalf of CASB dangerously ignores the importance of Endrew F.:

“But whatever else can be said about it, this standard is markedly more demanding than the “merely more than de minimis” test applied by the Tenth Circuit.”

“When all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to sitting idly awaiting the time when they were old enough to drop out. The IDEA demands more.”

Endrew F., Slip Op., p. 14 (emphasis added).

Supreme Court Updates *Opinion Released*

Posted on January 18, 2017

Endrew F. v. Douglas County School District RE-1, a case Partner Jack Robinson has been working on since 2012, was heard by the Supreme Court of the United States on January 11th and the opinion was released on March 22nd. You can read the opinion, parties’ briefs, amicus (“friend of the court”) briefs, news articles, and law review articles here

Special Education Case Law Update – January 6, 2017

Posted on January 6, 2017

Sch. Dist. of Phila. v. Kirsch, No. 14-4910, 2016 U.S. Dist. LEXIS 168105 (E.D. Pa. Dec. 6, 2016)(private placement, even if it is not the placement in a Student’s most recent IEP is the student’s “then-current educational placement” once an administrative ruling validates it.)

Plaintiffs, A.K. and N.K., were first-grade students enrolled at a private school for students with autism in Philadelphia. The Hearing Officer who presided over the Due Process hearing issued judgment in favor of plaintiffs on some counts and the school district on others.

The main issue addressed by the Court was whether an administrative ruling validating the parents’ decision to move their child from an IEP-specified public school to a private school would make the private school the child’s “then-current educational placement” for purposes of the stay-put rule. The Court ruled that once the move to the private school has been endorsed by the state (in the form of the administrative ruling), it is no longer a unilateral action by the parents, and the child is entitled to “stay put” at the private school–at least through the duration of the resolution process, including further appeals. This is the case even if the Parents’ decision to move the child to private placement would be considered unilateral.


Forest Grove Sch. Dist. v. Student, No. 14-35552, 2016 U.S. App. LEXIS 21635 (9th Cir. Dec. 5, 2016)(Student failed to prove that the School District failed to meet the procedural and substantive requirements of the IDEA. No denial of FAPE.)

Student challenged the district court’s reversal of the ALJ’s decision, claiming the district court did not give appropriate deference to the ALJ’s decision. The circuit court, however, agreed with the district court due to the fact that the ALJ’s decision relied heavily on certain evidence and law, but failed to consider the record as a whole or provide thorough analysis. The circuit court, therefore, considered the case de novo–or “from the beginning”–rather than deferring to the lower courts.

The Court found that the Student failed to meet the two-part test the 9th Circuit uses to determine the student was harmed by the School Districts action or inaction–a substantive and procedural test. In the most basic terms, the question is: what did the School District do or fail to do (substantive), and how did they do it (procedural)?

Substantively, the Student must prove that their IEP was not “reasonably calculated to enable [the Student] receive educational benefits.” To do so, a School District need not provide the “absolute best” education to the Student, but merely “a basic floor of opportunity…individually designed to provide an educational benefit.”

Procedurally, the Student must prove that the School District did not comply with the IDEA and that their failure to do so resulted in a “loss of educational opportunity or seriously infringe[d] upon the Parents’ opportunity to participate in formulating the Student’s IEP.”

The Court held that the Student failed on both counts and found that the Student’s IEP appropriately addressed her needs by providing concrete measurements of progress, a transition plan, and her goals and skills–both social and academic–and that there was no denial of a FAPE.

J.M. v. Dep’t of Educ., 2016 U.S. Dist. LEXIS 166231(D. Haw. Dec. 1, 2016)(Stay-put at private school granted.)

J.M. is a 13-year-old on the autism spectrum. J.M. has a number of sensory issues as well as social concerns–including excessive bullying. Under the IDEA, J.M. is entitled to accommodations and specially designed instruction in social skills. J.M. was provided a one-on-one aide, however, due to persistent bullying, parents removed J.M. from his home school and placed in a private autism-focused school. The court found that J.M. was allowed to stay in the private school because his IEP denied him a FAPE and his learning opportunities were substantially restricted in that environment. Parents were also reimbursed for the cost of the private placement.


Special Education Case Law Update – October 21, 2013

Posted on November 1, 2013

S.P. v. Scottsdale Unified School District No. 48., 2013 U.S. Dist. LEXIS 150293 (D. Ariz. Oct. 17, 2013) (no pre-determination of placement where District discussed availability of placement options only).

At the time her due process complaint was filed with the District, S.P. was an 8-year-old eligible for special education services based upon a learning disability and speech and language impairment.  During the 2008-09 school year, S.P. received special education in the district.  In the summer of 2009, S.P.’s  parents enrolled him in a private summer program at New Way Learning Academy.  Also during the summer, the parents provided that District with speech and psychoeducational evaluations from independent experts.  On August 10, 2009, the first day of the 2009-10 academic year, S.P. was enrolled in the District at Redfield Elementary.  That same day, S.P.’s IEP team meet to discuss the evaluations of the independent experts and discussed possible programs within the District that might meet S.P.’s needs.  Arrangements were made for the parents to tour two possible District placements.  At some point, between the August 10 meeting and the parents’ visits, the District Placement Review Committee (“DPRC”) met and discussed S.P.’s placement options.  Additionally, around Aug. 14, the parents informed the District that they were concerned that S.P. had not been receiving the necessary speech and language therapy since the start of the school year at Redfield.

On Aug 20. the IEP team met, and according to the hearing officer’s findings of fact from a later due process hearing, discussed the expert reports, various special education environments available in the District, and the New Way Academy.  At the end of the meeting, the District’s special education coordinator indicated that the District’s offer of placement would be Laguna Elementary (one of the schools the parents toured).  The District declined to place S.P. at New Way as the parents’ wished and S.P. was withdrawn by her parents from the District on Sept. 4 and placed at New Way.  The parents filed a due process complaint.

The due process hearing proceeding on the parents claims that the District improperly pre-determined S.P.’s placement, mainly through the DPRC meeting which did not involve the parents, and on whether S.P. was denied a free appropriate public education (FAPE) because she was denied speech/language therapy.  On the therapy issue, the hearing officer did not rule on the issue, and when the parents raised it in this federal court, the court determined that the parents had failed to exhaust the issue – as required by the IDEA – at the administrative level.  Though the parents’ due process complaint provided background regarding the therapy in the context that S.P.’s 2009 IEP was incomplete (a claim dismissed prior to the hearing as barred by the IDEA’s two-year statute of limitations), the lack of therapy was not sufficiently framed as an independent substantive violation.  The parents had thus failed to exhaust the therapy claim by having failed to properly present it to the hearing officer and the federal court refused to consider the claim.

On the pre-detemination claim, the court examined Ninth Circuit precedent and found  a placement may be predetermined when an educational agency made the placement determination prior to the IEP meeting and was unwilling to consider other alternatives.  The inquiry focuses on the District’s motivation and intent.  The federal court found that the hearing officer’s findings supported the conclusion that the parents meaningfully participated in S.P.’s IEP, including the placement decision.  Though parents argued that an email exchange between District personnel evidenced pre-determination, the Court found that the email and other evidence merely showed that the DPRC permissibly discussed availability of placement options for S.P.  Because the District had not determined a “take it or leave it” option for S.P. prior to the Aug. 20th meeting, S.P.’s claims were dismissed.
J.S. v. New York City Department of Education, 2013 U.S. Dist. LEXIS 151598 (S.D.N.Y. Sept. 24, 2013) (preservation of issues for judicial review; District “opened the door” to appropriateness of TEACCH methodology)

J.S. was a 7-year-old student diagnosed with pervasive development disorder not specified and severe expressive, receptive and pragmatic language disorder.  During the 2009-10 school year, J.S. was placed at the Kennedy Center in an 8:1:2 classroom (students: teacher: paraprofessionals) but regressed in that setting.  In January 2010, J.S.’s parents removed her from Kennedy and provided her with full-time at home services by Incidental Behavioral for the rest of the school year.  In April 2010, a Committee on Special Education (CSE) met and developed an IEP identifying a 12-month 6:1:1 program for J.S. at a specialized in-District school, in addition to various group and individual therapy sessions.  The District placed J.S. at P.S. 94, a District school where teachers employed the Treatment and Education of Autistic and Related Communication Handicapped Children (“TEACCH”) methodology.  Prior to the placement recommendation, J.S.’s parents had signed an enrollment contract with the private Aaron School and paid a non-refundable deposit.  Prior to the District’s placement decision, the parents paid an additional installment.  In July, the parents notified the District that they were rejecting the IEP and placing J.S. at the Aaron School and intended to seek reimbursement.  At the Aaron School, J.S. was placed in 12:1:2 ratio class.  The parents additionally paid for a 1:1 shadow from  Incidental Behavioral to accompany J.S.

In September, the parents filed a due process complaint contending that the District had failed to develop an appropriate IEP, that the parents had been denied meaningful participation in the IEP process, that the goals and objectives of the IEP were vague, not measurable and inappropriate, and that the CSE had failed to conduct a functional behavioral assessment and develop a behavioral intervention plan.  After proceeding through a hearing (in which the parents were largely successful) and the District’s appeal through a State Review Officer (SRO) (in which the District was largely successful), the parents filed this suit in federal court.

The Court initially addressed arguments the parents had not raised in their due process complaint or their cross-appeal to the SRO and determined that the parents had waived judicial review of a “least restrictive environment” claim.  The District additionally argued that the parents had waived their right to question the appropriateness of the TEACCH methodology.  However, the Court agreed with the parents that the District “opened the door” issues regarding TEACCH when the District attempted to use testimony  on TEACCH methodology to bolster the IEP.  Therefore, even though the parents did not raise any TEACCH issues at the due process hearing, because the District raised the issue before the hearing officer, the federal court found the parents had reserved their rights to challenge the appropriateness of TEACCH.  However, because the SRO did not review the hearing officer’s determinations regarding TEACCH, the federal court remanded to the SRO for additional findings. Likewise, the District challenged the parents’ right to assert in federal court that the goals of the IEP were vague and inappropriate.  The District argued that J.S. had not preserved the issue for judicial review because the issue was not cross-appealed to the SRO.  The court found, however, that the parents were not “aggrieved” by the hearing officer’s decision because the hearing officer found for the parents – even though he did not reach the IEP goals issue.  As with the TEACCH methodology, because neither the hearing officer or SRO considered the adequacy of the goals, the federal court remanded to the SRO or further determinations.

The parents additionally contended that the IEP did not comply with the IDEA’s procedural requirements because the District failed to perform a functional behavioral assessment (FBA) or behavior intervention plan.  The District is required to perform an FBA when a student’s behavior may impede the learning of the student, or others, and failure to conduct an FBA can be a serious procedural violation if it impedes an IEP team from learning necessary information about the student’s behaviors.  The SRO determined that the failure to perform an FBA did not deprive J.S. of a free appropriate public education (FAPE) because the IEP both identified the challenging behaviors and these behaviors were addressed in the IEP’s goals.  However, the court held that the SRO could not rely on the IEP’s goals as a basis to excuse the District’s failure to conduct an FBA because, as noted above, the SRO never considered the adequacy of the goals themselves.  The court remanded this issue to the SRO to reconsider his findings.

The parents substantively challenged the 6:1:1 placement at P.S. 94 as inappropriate because J.S. would not have been “functionally grouped” with other students in his classroom.  The SRO relied on testimony that the parents’ suggested alternative placements were inappropriate because J.S. could not follow a general education curriculum.  Ultimately, the court declined to choose between the conflicting opinions of education experts and deferred to the SRO’s decision that the placement at P.S. 94 did not deny J.S. a FAPE.  The case was remanded to the SRO on the issues identified for further consideration above.

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Special Education Case Law Update – October 14, 2013

Posted on October 24, 2013

E.R.K. v. State of Hawaii Department of Education, 728 F.3d 982 (9th Cir. Sept. 19, 2013) (corrected opinion) (state GED “Community Schools” operated for 20-21 year old non-disabled students violated IDEA when no equivalent option available to special needs students of same ages).

In this appellate opinion, the Ninth Circuit concluded that Hawaii state law offering secondary education opportunities for able-bodied students, while denying those opportunities to special education students. violated the IDEA. The dispute involved Hawaii’s “Act 163,” which barred students from attending public school after the last day of the school year in which the student turned 20 and applied to both general and special education students.  However, in addition to conventional public high schools, the state operated a network of Community Schools for Adults that offered tuition-free opportunities to earn a high school diploma.  The Community Schools were exempted from Act 163 – they allowed 20 and 21 year old students to attend.  The Community Schools did not offer IDEA services to disabled students.  A class of students entitled to IDEA services sued the state pursuant to the IDEA, the Americans with Disabilities Act (ADA), and the Rehabilitation Act.

The IDEA, in most circumstances,  requires states to provide a free appropriate public education to all children with disabilities residing in the state between the ages of 3 to 21 inclusive.  The IDEA does, however, provide an exception to the age requirements: a state has no duty to provide special education to children with disabilities to ages 3-5 or 18-21 to the extent providing that service would be inconsistent with other state law or practice.  The Ninth Circuit had previously construed this to mean that states are free not to provide special education to any student between 18 and 21, but only if the state elects not to provide “free public education” to non-disabled students of the same ages.

In this case, the Ninth Circuit reasoned that whether the Community Schools violated the IDEA depended on whether the Community Schools constituted “free public education.”  The Court found that the Community School programs were provided at public expense and were free to students; additionally the schools operated under supervision and direction of the Department of Education.  The Court further found that the Community Schools were programs of “secondary school education” as that term is defined in the IDEA.  For these reasons, the Court found that the Community Schools offer a free public education to non-disabled students aged 20 to 21.  Because the state did not offer any equivalent education for special needs students of the same ages, the state was in violation of the IDEA.  On plaintiffs’ ADA and Rehabilitation Act claims, the Court held that the plaintiffs did not identify any reasonable changes to the structure or curriculum of the Community Schools to make them accessible to disabled students.  The Court rejected a proposal that the state maintain disabled student placements until their 22nd birthdays as an ineffective remedy to help students access the Community School’s programs.  For these reasons, the Court dismissed the ADA and Rehabilitation Act claims, but remanded to the district court to find for plaintiffs on the IDEA violation.

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Special Education Case Law Update – October 7, 2013

Posted on October 18, 2013

D.K. v. District of Columbia, 2013 U.S. Dist. 142177 (D.D.C. Oct. 2, 2013) (private placement unable to implement IEP not appropriate placement).
D.K. was a 15-year old diagnosed with Mixed-Receptive-Expressive Disorder and ADHD, among others.  At the start of D.K.’s third-grade year (2006-07), his parents unilaterally moved him from his neighborhood school and placed him at McLean.  McLean offered “full-time individual instruction in a full time mainstream setting.”  The parents then instituted a due process hearing seeking to require the District to pay for D.K.’s McLean tuition.  Despite the fact that D.K.’s IEP designated a placement “out of general education” and McLean was not a special education school, the hearing officer ordered the District to fund D.K.’s tuition.  The District maintained D.K.’s placement at McLean through the end of the 2011-12 school year.

In the Spring of 2010, the District informed D.K.’s parents that his IEP had expired and that updated evaluations were needed for a new IEP.  The parents hired their own expert and submitted a proposed IEP.  At an IEP meeting in March, 2012, the District informed D.K. that it was not able to continue D.K.’s placement at McLean because McLean lacked a Certificate of Approval from the State Superintendent.  The District referred the parents to Kingsbury and Harbour, both of which provided full-time self-contained special education services.  The parents concluded that neither program was desirable because they served only disabled students and their curricula were not sufficiently rigorous.  The IEP team issued a formal notice proposing to transfer D.K. to Kingsbury and the parents filed a due process complaint arguing their objections above and seeking to maintain D.K. at McLean.  The hearing office ruled in favor of the District and the parents sought judicial review in this action.

The parents initially sought a preliminary injunction to keep the District from ceasing tuition payments for D.K., but this was denied by the Court.  The Court then considered whether the proposal to offer D.K. services at Kingsbury constituted a change in “educational placement.”  The Court held that while the physical location of services was  changed, “educational placement” is a term of art and the parents had not pointed to a fundamental change in a basic element of the educational program. The Court additionally focused on the fact that McLean could not or would not implement IEPs,  and found that placement at McLean conflicted with a requirement of the IDEA that the District provide services in compliance with an IEP.  The parents additionally argued that McLean was the least restrictive environment for D.K., but the Court held that D.K.’s IEP called for full-time education outside of the general education setting.  Because McLean only offered a general education setting, it was not appropriate for D.K. pursuant to his IEP.  D.K.’s claims were dismissed.
East Ramapo Central School District v. State Education Department of the University of the State of New York, et al.,  2013 U.S. Dist. LEXIS 143898 (S.D.N.Y. Oct. 3, 2013) (no cognizable IDEA claims stated by local educational agency against state educational agency).

In this case, Plaintiff East Ramapo Central School District (District), a local educational agency (LEA) responsible for providing IDEA-mandated special education services, sought a declaratory judgment regarding the Districts right’s and obligations under the IDEA against the State Education Department of the University of the State of New York (NYSED).  Before the suit, NYSED had directed the District to cease its practice of allowing one District representative to unilaterally determine placement of students with disabilities by overriding the District’s Committee on Special Education’s (CSE) placement recommendation.  Analysis of the District’s placement practices revealed a very high rate of placements into private institutions during the IDEA-mandated resolution/mediation process (a motion to intervene in the case suggested the high rate of private placements evidenced that the District was using the IDEA settlement process to provide a religious education in private schools with public funding).  NYSED had previously challenged the District’s handling of the resolution meetings did not have a basis in federal or state law.  The District requested a judgment, by this lawsuit, that the IDEA provided the District with broad discretion to fashion settlements mutually agreeable to the parents and the District at the IDEA’s resolution meetings.

The Court dismiss the claims against NYSED pursuant to the 11th Amendment to the U.S. Constitution, which deprives federal courts jurisdiction over suits against state entities (unless waived).  With regard to the remaining  defendants, the court held that the IDEA did not create a right, enforceable under 42 U.S.C. sec. 1983, for a school district or LEA to sue a state educational agency.  The Court additionally rejected the District’s argument that the state was ordering the District to act contrary to the IDEA and that the state’s directive had therefore been preempted by Congress.  The state had ordered the District to “use the dispute resolution processes established in federal and State law and regulation,” rather than to “routinely allow [] one District representative to unilaterally determine the placement for students with disabilities and override CSE [least restrictive environment] recommendations.”  The Court agreed with the state that compliance with the state’s directive did not prevent the District  from complying with the IDEA.  The Court denied the District leave to amend its complaint and the case was dismissed in favor of NYSED and the individual state defendants.
B.B. v. Catahoula Parish School District, 2013 U.S. Dist. LEXIS 144164 (W.D. La. Oct. 3, 2013) (least restricting transportation environment; FAPE denied by absence of regular education teacher in IEP meetings)

At the time of this case, B.B. was a ten-year old child diagnosed with downs syndrome eligible for IDEA services.  The basis for his parents’ complaint first arose when B.B. was in the 2nd grade after the parents properly requested an IEP meeting to discuss transportation arrangements so that B.B. could ride the regular education school bus, rather than the special education school bus.  The IEP team determined that having B.B. on the regular bus would not be appropriate and the parents then filed a Due Process complaint on this issue and others.  A hearing officer found that the District had failed to provide the least restrictive transportation environment, but that B.B. had failed to prove he was denied a free appropriate public education (FAPE).  The parents then filed this complaint in federal court.

Regarding the transportation dispute, the parents requested that B.B. ride with a bus buddy (another student identified by the parents).  Members of the IEP team expressed concern over B.B.’s behavioral issues – issues that had not previously been communicated to the parents.  The parents requested that an independent functional behavioral assessment (FBA).  The District funded the FBA by a Dr. Powell.  The end result of the FBA, and testimony by Dr. Powell, was that B.B. was capable of riding the regular bus.  The Court adopted the hearing officer’s findings that the District failed to offer the least restrictive transportation environment to B.B.

The next issues before the Court  IDEA procedural violations  and a substantive failure to offer a FAPE.  On the procedural claim, the Court found that the District’s failure to have a regular education teacher participate in the IEP meetings was a procedural violation of the IDEA that resulted in the loss of educational opportunity for B.B.  The Court reasoned that the assessment most meaningful to whether B.B. could be included in certain general education classes could best be addressed by a regular education teacher; the absence of such a person in the IEP meetings, and the subsequent result that B.B. was denied access to some general education classes, resulted in the deprivation of educational benefits.  As the substantive denial of a FAPE was likewise on the grounds that B.B. was capable of attendance in some  general education classes, which he was improperly denied, there was a substantive denial of a FAPE.  However, the Court declined to fashion any remedy or compensatory education for the violations, and instead referred the case back to the IEP team and its judgment on how to best redress the issues.  Because the parents had obtained judicial relief from the suit, they were considered the prevailing parties pursuant to an award of their attorney’s fees.

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Special Education Caselaw Update – August 19, 2013

Posted on September 3, 2013

Cobb County School District v. A.V., 2013 U.S. Dist. LEXIS 118429 (N.D. Ga. Aug. 20, 2013) (FAPE denied at change in diploma track and failure to provide vision therapy; 50% reduction in award for failure of parents to cooperate with District).

Student A.V. was diagnosed with apraxia and other significant deficits that impaired his language and reading skills.  Prior to May 2010, A.V. had participated in regular education classes at Strawberry High School and had received additional aides and services pursuant to the IDEA.  However, in a May 2010 meeting to develop A.V.’s IEP for his fourth year of high school, the District, over A.V.’s mother’s objections, changed A.V.’s diploma track from college preparatory to employment preparatory.  The employment preparatory track was considered a special education diploma.  At the May meeting, the District additionally placed A.V. in four special education classes rather than his usual regular education classes.  After rejecting the proposed IEP, A.V’s mother requested that A.V. be placed at The Cottage School (TCS).  A.V.’s mother refused to participate in a subsequent IEP meeting in June and A.V. was removed by his parents from the District and enrolled at TCS for his final year of high school at a cost to the parents of $36,428.  A.V. received his college preparatory diploma from TCS.

The parents then filed a due process complaint seeking reimbursement of the costs of sending A.V. to TCS arguing: (1) the District’s decision to place A.V. on the employment preparatory diploma track and into “access” classes denied A.V. a free appropriate public education (FAPE); (2) the District failed to evaluate A.V.’s vision; and (3) that the District knew A.V. had sensory-integration disfunction and refused to provide necessary therapy.  An administrative law judge found for A.V. on the first and second issues, but equitably reduced the award for TCS and vision therapy by half.  The District and parents then cross-appealed to federal court.

The IDEA requires that a student should be educated in the least restrictive environment (LRE).  The Court noted that the first issue turned on whether A.V.’s education in the regular classroom, with supplemental aids and services, could have been achieved satisfactorily.  The Court reviewed the ALJ’s determination on the issue and found the ALJ opinion to be well reasoned and entitled to deference.  The Court gave particular note to the fact that A.V. had previously succeeded in the regular classroom with aids and services, a core course that A.V. had failed several times lacked the required aids and services, and that A.V. was making progress in the regular classroom during his first three years of high school.  The Court held that the District failed to explain the drastic change in A.V.’s placement or why special education (“access”) classes were now the LRE for A.V.  The Court drew the conclusion that the IEP team just wanted A.V. to graduated in the upcoming school year and determined that access classes would be the best way to accomplish this.

Regarding reimbursement for the placement at TCS, that Court held that TCS was an appropriate placement.  The school was accredited and had received instruction in the Georgia performance standards.  Further noting that the District had misrepresented the make up of the student body at TCS, the Court found that 1/3 of the student body at TCS was nondisabled, which was a consideration in holding that TCS was a less restrictive environment than the placement proposed by the District. The Court found that reimbursement was appropriate but agreed with the ALJ that a 50% reduction in the award was appropriate due to equitable factors, predominately based on the mother’s refusal to attend the June IEP meeting.

The Court additionally sided with the parents and the ALJ on the vision therpy issue, finding there was adequate evidence to show that A.V.’s vision issues negatively impacted his ability to benefit from special education, and that vision therapy (for visual tracking) was a related service necessary for receive a FAPE.  As with the tuition reimbursement, the Court agreed with the ALJ and reduced the award by 50% due to the mother’s lack of cooperation with the District when she refused to execute a second release so the District could obtain A.V.’s vision records.

Finally, the Court upheld the ALJ’s denial of reimbursement for sensory integration therapy, finding that the parents failed to show that the therapy was a necessary related service for a FAPE.
E.B. v. New York City Dep’t of Education, 2013 U.S. Dist. LEXIS 117745 (S.D.N.Y. Aug. 19, 2013).   (FAPE offered by 6:1:1 + 1:1 program).

E.B. was classified under the IDEA as a student with autism and was enrolled in Celebrate The Children (CTC), a private special education school.  In May 2010, a committee on special education (CSE) was convened to develop E.B.’s IEP for the 2010-11 school year.  The CSE members utilized “teacher estimates,” information from then-current service providers and teacher to formulate the IEP, and various reports.  No new testing was conducted.  The final IEP recommended a student: teacher: paraprofessional ration of 6:1:1 plus a full time crisis paraprofessional (a 6:1:1 + 1:1 program) and placed E.B. at “P94,” a special education school where E.B.’s program would be implemented.  After visiting P94, E.B.’s mother rejected the placement and communicated to the school system that E.B. would continue at CTC while also receiving approximately 22 hours of programming from the Communication Clinic of Connecticut (CCC).  The parents contended that the CCC programming helped E.B. feel competent and motivated.

The parents brought a due process complaint alleging that the District failed to provide a free appropriate public education (FAPE) and sought to obtain tuition reimbursement for the cost of tuition at CTC and supplemental services.  The parents later placed E.B. at CCC full-time, and the complaint was amended to seek reimbursement for that placement.

After a hearing before an impartial hearing officer (IHO) the IHO found that th CSE relied on outdated and insufficient information in developing the IEP and additionally failed to establish the suitability of the proposed 6:1:1 + 1:1 program.  The District appealed to a state review officer (SRO) who overturned the IHO on all issues.  The parents appealed to federal court.

As an initial matter, the court determined that parents retained the right to litigate issues in federal court regarding the District’s failure to conduct a functional behavioral assessment (FBA) and argue the substantive adequacy of a behavior intervention plan (BIP) not included in the IEP.  Though the District argued that the parents waived any right to these issues because the parents did not cross-appeal the issues to the SRO, the court held that these issues were preserved for its review.  The IHO did not make any findings on these issues, and because the parents received the relief from the IHO which they sought at the due process hearing, the parents were not “aggrieved” on these issues.  The parents were not required to cross-appeal the issue to the SRO in order to preserve their review in federal court.

On the broader issue of whether the District complied with the procedural requirements of the IDEA, the court sided with the District.  The IDEA requires the District comply with the procedures set forth in the IDEA, although an IEP is not considered legally inadequate  unless the procedural violation additionally constitutes the denial of a FAPE.  Here, the parents alleged that the District relied on inadequate information to draft the FAPE specifically in failing to conduct an evaluation within the past three years and in relying on “teacher estimates.”  However, the court agreed with the SRO that the CSE had sufficient information before it to develop the IEP, including mental health reports, formal progress reports from CTC, and formal evaluations of E.B. conducted in 2007.  This evaluative data was “more than sufficient” for the CSE to develop the IEP.  The failure to conduct the statutorily-mandated psychological re-evaluation, last done in 2007, did not deny E.B. a FAPE because the other information consulted at the CSE meeting fulfilled that purpose.

Regard the BIP, the parents allege that the student IEP was procedurally inaccurate because it did not include a BIP.  While the parents claimed they did not receive a copy of the BIP proposed for the IEP until the date of the due process hearing, the court held that whether or not the parents received the BIP, they fully participated in the CSE decision-making process to find strategies that would address E.B.’s problem behaviors.  There was no evidence that the timing of the parent’s receipt of the BIP in any way altered the parent’s involvement with the CSE and the court therefore rejected this claim.

The parents additionally claimed substantive inadequacies of the IEP, notably regarding the substantive adequacy of the 6:1:1 + 1:1 program, and argued that E.B. required more individualized instruction in order to achieve educational gains.  Parents directed the court to the hearing testimony of the school psychologist, which testimony they claimed the SRO improperly assigned weigh while discounting the credibility of the parent’s witness.  After reviewing the record, the court found that the psychologist had sufficient credibility to assist in recommending the 6:1:1 + 1:1 program for E.B.’s IEP, despite the psychologist not being familiar with the specific program at P94.  The court found it proper that a recommendation regarding programs broadly without knowledge of the specific school was sufficient for the SRO to accord credibility to the testimony.  The court additionally noted that no CSE member, including the parents, disagreed with the recommendation for a 6:1:1 + 1:1 program at the time of the CSE meeting.

The parents additionally argued that the District’s proposed placement, P94, did not offer classroom instruction that matched E.B.’s functioning.  The court found however, that a certified special education teacher at P94 would have been appropriate for E.B. and that out of a class of 5 autistic students, “at least one” of those students operated at a level “sufficiently comparable” to that which the IEP described as E.B.’s abilities. In sum, the parents were not entitled to reimbursement.

Having found that the District offered a FAPE, the court was not required to reach the appropriateness of parents’ unilateral placement of E.B. at CCC.  Nonetheless, the court opined that CCC was not an appropriate placement for E.B. because CCC was overly restrictive in that it allowed E.B. to interact with his peers for 3 of 35 weekly hours of CCC services.  Where CCC provided services at home, there was no opportunity for socialization.  Because the IEP reflected the need for socialization, the CCC placement was inappropriate.

F.F. v. New York City Dep’t of Education, 2013 U.S. Dist LEXIS 117143 (Aug. 19, 2013) (cumulative procedural errors not denial of FAPE; alleged substantive deficiencies in IEP were speculative)

This case addressed an IEP developed for six-year old student F.F. for the 2009-2010 school year.  F.F. was diagnosed with Autism Spectrum Disorder, cerebral palsy-hypotonic, strabismus, and perventicular lukomalcia.  F.F. additionally has mobility limitations and was attending the Rebecca School, a private special education school, prior to the IEP meeting that is the subject of this case.

The IEP recommended that F.F be placed into a specialized school with a ratio of six students to one teacher with one paraprofessional, a 6:1:1 arrangement.  Additional goals and objectives were discussed at the IEP meeting and were adopted based on reports from the Rebecca School about F.F.  The District offered F.F. a first placement, but F.F.’s parents rejected the placement in part because the facilities were located on the fourth and fifth floor of a building without an elevator.  The District then offered a second placement which was again rejected by the parents due to its staffing ratio, the inability of the placement to guarantee orientation and mobility support, the lack of parent training, the lack of OT services, and because F.F. would be confined to a “small trailer.”  The parents re-enrolled F.F. at the Rebecca School and informed the District that they intended to seek reimbursement.  The parents were successful at a due process hearing before an impartial hearing officer (IHO).  On appeal by the District to a state review officer (SRO), the SRO found that the IHO had acted improperly by granting an excessive number of extension to the parents, and additionally reversed the IHO on the merits of the parents’ complaint and denied reimbursement.

The parents argued there were six procedural deficiencies in the development of the IEP: (1) the CSE was improperly convened; (2) the CSE failed to consider a continuum of programing for F.F.; (3) the goals and objectives were not appropriate; (4) the District failed to consider assistive technology; (5) there was no parent counseling and training provided for in the IEP; and (6) the IEP failed to address F.F.’s behavioral needs.

On the first issue, the parents specifically argued that there was no individual to interpret the instructions implications of F.F.’s evaluation results and that there was no parent member in the IEP meeting.  On evaluation results, the Court found that the school psychologist and special education teacher, both of whom participated in the meeting, were qualified to interpret the results.  On the additional parent member (one who had been through the process with another student to act as a guide and advocate), the Court held that New York law required that person’s participation.  Though Court agreed that lack of the additional parent was a procedural violation, it rejected the parents argument that F.F. was denied a free appropriate public education (FAPE), noting the parents actively participated in the meeting.  Regarding the continuum of programming, the Court held that once the District determined that the 6:1:1 program was the least restrictive environment in which F.F. could be educated, the District was not obligated to consider a more restricted environment such as the Rebecca School.

While the Court agreed with the parents that the goals for F.F. incorporated into the IEP were vague, it held that the goals were adequately clarified by more specific objectives in the IEP that could be implemented.  Further, given that the goals were directed at developing F.F.’s pre-academic skills, it was appropriate that the IEP’s methods for assessment were teacher-made materials, observation, and class participation.  On the assistive technology argument, the Court noted that the parents reported to the District that F.F. was still being evaluated for assistive technology and the District was never informed of any need for the technology.

Regarding parent training and counseling, the Court agreed that none were in the IEP and held that the SRO improperly ruled that there was no procedural violation because in any event, training and counseling was offered at the second placement.  An IEP is judged based on what is in the document, not on speculation concerning what would or would not have been offered at a placement.  Nonetheless, because state law provided for parental training and counseling, the Court held that, in this particular instance, that the exclusion of the same from the IEP did not result in the denial of a FAPE.  Finally, the parents alleged that the District’s failure to conduct a Functional Behavior Assessment (FBA) or development a Behavior Intervention Plan (BIP) denied F.F. a FAPE.  Howver, the Court held that there was sufficient evidence in the record to conclude that F.F.’s behavior did not seriously interfere with instruction and could be adequately addressed by the special education teacher and through support provided by PTs and speech therapists.  In addition to finding that none of the procedural errors denied F.F. a FAPE individually, the Court held they did not render the IEP inadequate when considered cumulatively.

Regarding various substantive deficiencies raised by the parents (based on their visit to the second placement) , the Court held that these deficiencies were speculative in that the arguments of the parents’ were refuted by testimony from District representatives that F.F. would have received the services specified in the IEP.

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Special Education Case Law Update – May 13, 2013

Posted on May 29, 2013

J.B. v. San Jose Unified School District, 2013 U.S. Dist. LEXIS 65083 (N.D. Cal. May 6, 2013) (student prevailing party for purposes of fee award after District voluntarily withdraws due process complaint seeking to affirm denial of IEE).

Beginning in May 2005, J.B. was identified as a student with disabilities covered under the Individuals with Disabilities Education Act (IDEA) and considered eligible for special education services. In May 2011, the District conducted a series of assessments and determined that special education services should cease based on the reports from those assessments.  J.B. requested another Individualized Education Program (IEP) in September 2011, but the District denied the request relying on the May assessments. In November, the mother requested an independent educational evaluation (IEE) at public expense which the District likewise denied. The District then filed a due process complaint seeking determinations of: (1) whether J.B. remained eligible for special education services under the IDEA, and (2) whether the District should be required to fund an IEE.

 J.B.’s mother then arranged for an IEE at her expense and retained legal counsel.  The IEE found that J.B. had severe ADHD and depression. In June 2012, an IEP committee reviewed the IEE report and determined that J.B. was eligible for special education and the District withdrew the issue of eligibility for special education services from its due process complaint. The District, however, continued to assert that it had rightfully denied the request for public funding of the IEE. Then, four days before the due process hearing, the District agreed to reimburse J.B. for the costs of the IEE and an administrative law judge dismissed the due process complaint citing the “District’s withdrawal.”  J.B. then brought this action seeking attorney’s fees incurred in the defense of the District’s due process action and the District moved to dismiss the complaint arguing that the student is not the “prevailing party” and therefore not entitled to fees.

Under the IDEA, the Court may, in its discretion, award reasonable attorney’s fees to a prevailing party who is the parent of a child with a disability. A prevailing party is one who succeeds on a significant issue in the litigation that results in a material alteration of the legal relationship between the parties. The District argues against the imposition of fees here, asserting that there has been no judicially sanctioned change in the parties’ legal relationship because the District withdrew its due process complaint without prejudice – in other words, the due process complaint could be filed again.  Because the dismissal was based on the withdrawal, the District argues that the dismissal was not based on the merits of the case and that the legal relationship between the parties is not altered.

The Court, however, noted the unique procedural posture of this case  in that the District was the plaintiff on the due process complaint. Once the District initiated the action, J.B.’s parents understandably retained counsel. Though J.B. received the relief he desired, it was only after a year and a half of litigation.  The Court noted that during that time frame the District had control over both the complaint (as the plaintiff) and the remedy.

Further, the Court found that the legal relationship between the parties had been altered because though the due process complaint was withdrawn without prejudice, the District could not have refiled its complaint. Under the IDEA, a school district must file a due process complaint to affirm its denial of an IEE “without unnecessary delay.” Here, the District filed the complaint within two weeks of receiving J.B.’s IEE request. However, by the time that the District withdrew the complaint, 7 months had passed.  J.B.’s parent argued, and the Court accepted, that the District would now be precluded from re-filing the complaint because of the passage of time since the initial IEE request. Under this circumstances, the voluntary withdrawal of the complaint had changed the legal relationship between the parties as the dismissal essentially eliminated the right of the District to further contest the IEE. This made J.B. and his parent the prevailing party for the purposes of determining an award of attorney’s fees. The Court denied the District’s motion to dismiss the complaint.

N.S. v. New York State Department of Education, 2013 U.S. Dist. LEXIS 64190 (W.D.N.Y. April 15, 2013) (student’s graduation made challenge to IEP moot; no exception to finding of mootness because injury incapable of repetition).

During the 2002-03 school year, N.S. was determined by the District’s Committee on Special Education (CSE) to be autistic and thus qualified for special education services pursuant to the IDEA.  An IEP was developed and implemented for the 2002-03 school year, and that IEP was modified each subsequent school year.

For the 2005-06 school year, N.S.’s parent disagreed with the IEP. Without an IEP in place, N.S. was educated pursuant to a “pendency plan” defined as the most recently agreed to IEP. In April 2006, with no 2005-06 IEP yet in place, N.S. filed a due process complaint against the District asserting that N.S. had been denied a free appropriate public education (FAPE) . Throughout the hearing it was undisputed that N.S. never received any instruction under the 2005-06 IEP, but was rather educated pursuant to a 2003-04 IEP. Though an Impartial Hearing Officer (IHO) found that the District had failed to offer N.S. a FAPE for the 2005-06 school year, that decision was reversed by a State Review Officer (SRO). N.S. appeals the decision of the SRO to this federal court.

In this opinion, the Court considered the District’s motion for summary judgment arguing that (1) N.S.’s claims are moot because the 2005-06 school year has passed without the 2005-06 IEP ever having been implemented; (2) the SRO’s decision was reasonable and appropriate; and (3) the District provided N.S. with a FAPE for the 2005-06 school year. N.S. did not file any opposition to the District’s motion.

On the mootness issue, the District argued that the 2005-06 IEP, which was never implemented and had expired some 6 years before this action, had been superceded by subsequent IEPs. In the meantime, N.S. had graduated rendering challenges to the IEP moot. While the Court noted that any dispute before it must at all times be “real and live,” it noted an exception to this rule in cases where the injury is capable of repetition, yet evades review. Relying on the fact that N.S. had graduated, the Court determined that the injury was not capable of repetition, and therefore moot.

Regarding the SRO’s decision, the Court noted that SRO prepared a 19-page single spaced decision that was both thorough and careful and that contained an exhaustive description of N.S.’s educational history while thoroughly reviewing the testimony before the IHO. Moreover, N.S. failed to point to any specific error in the SRO decision.

The federal Court additionally found that the District offered N.S. a FAPE for the 2005-06 school year. Noting that the IDEA requires access to education in a “meaningful way” with an IEP designed to “produce progress, not regression,” the Court found that N.S.’s passing all his classes and graduating from high school was evidence that the pendancy placement allowed N.S. to make “satisfactory progress.” On these findings, the Court granted the District’s motion for summary judgment and dismissed the case.

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Special Education Case Law Update – May 6, 2013

Posted on May 16, 2013

South Carolina Department of Education v. United States Department of Education, 2013 U.S. App. LEXIS 8515 (4th Cir. Apr. 26, 2013) (S.C. request for waiver of IDEA’s ‘maintenance of conditions’ provision)

The Individuals with Disabilities Education Act (IDEA) provides for grants of federal funds to States for the education of disabled children. To meet eligibility requirements for the full amount of the funds, among other things,  the state must not reduce the amount of its own financial support for special education below the amount of support that it provided for the preceding fiscal year. If the state fails to meet this “maintenance of effort” then the Secretary of the U.S. Department of Education (DOE) must reduce the level of federal funding given to the state by the amount of the shortfall. Alternatively, the Secretary may grant the state a waiver for the shortfall.

For the fiscal year ended 2010, South Carolina applied for a waiver with the Secretary for a shortfall of $67.4 million. The basis of the waiver was a condition in the IDEA allowing waivers that “would be equitable due to exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforseen decline in the financial resources of the state. ” South Carolina claimed a “severe and precipitous” reduction in state tax revenues and requested a waiver of the maintenance of effort condition. With regard to the shortfall, the DOE found that South Carolina did not treat special education and related services in an equitable manner when compared to other state agencies. While the average reduction across all agencies was 7.55%, South Carolina reduced its support for special education by 12.02%. For this reason, the DOE denied the request for a full waiver, and after recalculating the reductions in an “equitable” manner, granted the waiver only to the extent of $31.2 million and denied it to the extent of $36.2 million. The DOE denied South Carolina a hearing on the matter and the state instituted this appeal directly to the Fourth Circuit Court of Appeals arguing that it was entitled to notice and opportunity for a hearing before the DOE made its final determination.

The DOE moved to dismiss for lack of jurisdiction, but finding that the action taken by the DOE was one “with respect to eligibility,” the Court concluded it had jurisdiction pursuant to the IDEA. Though the DOE argued that the reduction of its grant to South Carolina was neither a denial of eligibility or a withholding under the IDEA, the Court disagreed. Holding that the reduction was an eligibility determination pursuant to the IDEA, the Court found that South Carolina was likewise entitled to notice and opportunity for hearing before a final determination by the DOE. The Court further concluded that the state remained eligible for full funding prior to a final determination. In light of the holding that South Carolina was entitled to a hearing, the Court found that it was premature to address the state’s challenge to the DOE’s decision to deny a full waiver.

L.P. v. Deer Valley Unified School District, 2013 U.S. Dist. LEXIS 61748 (D. Ariz. Mar. 21, 2013) (no FAPE when peers at proposed placement communicated at significantly lower level than autistic plaintiff; educational placement requiring parental input does not include administrative choice of ‘bricks and mortar’)

At the time of the events in this case, L.P. was a first grader diagnosed with Autism Spectrum Disorder. Though L.P. had deficits in communication and socialization, he was able to communicate his needs and wants with sentence length utterances.

In early May 2011, the District held an IEP meeting for L.P. The team determined that a “special level of service” was needed, though a physical location for L.P.’s placement was not decided at the meeting. Then, four days later, the District emailed the parents a Prior Written Notice stating that L.P. would be placed in the autism program at Terramar Elementary School. Terramar was not discussed at the IEP team meeting, and no Terramar representative attended that meeting. The parents expressed concern and gave notice to the District of their intent to place L.P. in a different school and sought reimbursement before an administrative law judge (ALJ). The ALJ determined that Terramar did not provide L.P. a free appropriate public education (FAPE) and that the District procedurally violated the Individuals with Disabilities Education Act (IDEA) by excluding the parents from the Terramar placement decision.

 At the time of the District’s decision to place L.P. at Terramar, Terramar had four students ranging from second to fifth grade in its autism program. Only two of the four students had any verbal ability. Of these two students, one functioned at an “I want” or “I need” level of communication, and the other had a two-year old’s level of communication skills. On the day L.P.’s parents visited Terramar, none of the four students verbalized.

The federal court agreed that Terramar denied L.P. a FAPE, concluding that the District failed to provide a basic floor of opportunity for L.P. under the IDEA by isolating L.P. from students with similar communication skill levels. This contradicted L.P.s IEP.  However, the Court disagreed with the ALJ regarding the placement’s procedural violation. The Court held that while regulations mandated parental participation in the educational placement of their child, educational placement in this sense refers to the “general type of educational program in which the child is placed,” and not the “bricks and mortar” of a specific school. The mere fact that the ultimate location of the placement is determined by an administrator in a central office does not violate the procedural mandates of the IDEA. Nevertheless, the Court found that L.P. was denied a FAPE due to the communication skill discrepancies noted above.

Additionally finding that the parents’ placement provided L.P. with same or similar functioning peers, among other reasons, the ordered the District to reimburse L.P.’s tuition.

A.T. and on behalf of all others similarly situated v. Dumont Public Schools et al., 2013 U.S. App. LEXIS 8504 (3rd Cir. Apr. 26, 2013) (no standing for lack of injury; failure to exhaust)

The Dumont school district covers less than two square miles in New Jersey and contains four public elementary schools. Since 2008-09, Dumont has offered one kindergarten “inclusion class” composed of both students who need special education services and those who do not. In the inclusion classes, all students are taught the general education curriculum and students who need special education participate in an in-class resource program with individual instruction and support from an in-class special education teacher. The location of the inclusion class rotates periodically between the four schools.

In May 2009, an IEP team convened to prepare an IEP for A.T.’s kindergarten year and determined that placing A.T. in the inclusion class would best meet his needs. For the 2009-10 school year, the inclusion class was located at Grant School, and not A.T.’s neighborhood Selzer School. In June, A.T.’s mother filed a due process petition objecting to the placement at Grant School because it was not a general education class and because it was not located at A.T.’s nearest school. The petition was later withdrawn and A.T. was placed in the inclusion class at Grant for the school year.

Then in September, the parent filed this class action complaint under the IDEA and Section 504 of the Rehabilitation Act on behalf of all kindergartners requiring special education residing in the town of Dumont.  The suit sought to require the District to “consider placing every kindergartner who requires special education services in regular classrooms in the school they would otherwise attend if not requiring special education services.” Meanwhile, A.T. made significant progress at Grant.

At the trial court level, Dumont moved for summary judgment arguing that A.T. did not state a legally cognizable injury and had failed to exhaust his IDEA remedies. The trial court grated Dumont’s motion, finding A.T.’s allegations of a purely procedural violations of the IDEA failed to provide standing under either the IDEA or Section 504, and that A.T. failed to exhaust administrative remedies.  A.T. appealed.

To satisfy the U.S. Constitution’s Article III standing requirement, a plaintiff in federal court must show an ‘injury in fact.” Here, the plaintiffs alleged a procedural violation of the IDEA in that Dumont failed to individually consider placements for kindergartners in need of special education by instituting a ‘blanket rule’ to place kindergarten students in an inclusion class without consideration to educating them in their “neighborhood” school. Under the IDEA, a procedural violation results in the denial of a free appropriate public education (FAPE) only when it impeded the child’s right to a FAPE, significantly impeded the child’s parents the opportunity to participate in the decision making process regarding the provision of a FAPE, or caused a deprivation of educational benefits. The parent conceded both that the substantive adequacy of Dumont’s kindergarten placement decisions was not at issue and A.T. had suffered no  denial of an educational benefit. The Court of Appeals agreed with the lower court that A.T. had therefore alleged no injury, and  lacked standing to pursue the claim.

Assuming arguendo that A.T. had standing, the Court of Appeals again agreed with the trial court that the IEP team properly determined that A.T. needed the support of an in-class special education teacher and that Dumont provided one in the inclusion class. The Court of Appeals agreed with the lower court that A.T. was not denied educational benefits (as conceded by the parent) and that the parent had adequate opportunity to discuss her placement concerns with Dumont. The Court additionally held that the IDEA does not create a right for a child to attend a neighborhood school, although geographic proximity of a placement must be taken into account. On these facts, the Court found no IDEA violations.

The Court of Appeals additionally affirmed dismissal of the Section 504 claim. The A.T. maintained that he and the plaintiff class suffered injury by being bused out of the neighborhood to attend the inclusion class in the basement of the school, while other kindergarten classes were located on the main level of the school.  A.T. alleged this treatment “involuntarily marked” him as disabled in the eyes of his peers. Because A.T. did not raise this particular argument with the trial court, the Court of Appeals found that it was waived. Nevertheless, the Court rejected the argument because the inclusion class included both special needs and general education students.

Though the parents conceded that they had failed to exhaust their administrative remedies prior to bring suit, they requested the Court excuse that requirement because administrative claims routinely took an average of 190 days to come to resolution; resolution therefore would not provide any relief to A.T. for his kindergarten year.  A.T. further argued that the administrative process would not provide the class-wide discovery and injunctive relief they sought. The court was unconvinced, however, noting that the parent never sought the benefit of the IDEA’s “stay-put” relief which would have kept A.T. at his neighborhood school. Additionally, the court found that plaintiffs’ claims involved a factually intensive inquiry into the circumstances of each child, and the allegations here from across the plaintiff class were not the type of violations that render the exhaustion requirement futile. Plaintiffs’ claims were dismissed.


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Special Education Case Law Update – April 29, 2013

Posted on May 9, 2013

Muskrat v. Deer Creek Public Schools, et al., 2013 U.S. App. LEXIS 8266 (10th Cir. April 23, 2013) (IDEA exhaustion; ‘shock the conscience of the court’ standard)

The Muskrats bring this civil rights action alleging that school employees unconstitutionally subjected their child, J.M., to timeouts and physical abuse. Below, the District Court ruled against the defendants on their argument that the Muskrats had failed to exhaust their administrative remedies and the case proceeded to discovery. The defendants then argued that no constitutional violations had occurred, and the district court agreed. The Muskrats appeal that decision to the Tenth Circuit Court of Appeals here.

The allegations in this suit arose in the time period when J.M. was between 5 and 10 years old, though he had the mental age of a 2-3 year old. In addition, J.M. had impaired fine and gross motor skills. Given his disabilities, J.M. received special education services under an individualized education program (IEP) pursuant to the Individuals with Disabilities Education Act (IDEA). At Deer Creek Elementary, J.M. was frequently placed into timeout in a special timeout room attached to J.M.’s classroom, which the Court described as follows: “The timeout room was small, although big enough for a student and teacher to fit inside. It had a light fixture and a door without a lock. The door had a small window that was too high for children to see out of.” The duration of the timeouts imposed on J.M. was not entirely clear, though the court based its decision on a longest duration shown in the record of four minutes. School logs show that J.M. was placed in the timeout room at least 30 times over the course of two school years. After J.M. began to show signs of increasing stress and declining cognitive and physical functions, his IEP was amended to state that school staff would neither subject J.M. to the timeout room nor place him in a classroom with an attached timeout room. Nevertheless, a couple of months into the school year after the amended IEP, Deer Creek placed J.M. in a classroom with a decommissioned timeout room simiarl to that described above. The Muskrats allege that simple proximity to this timeout room caused J.M. anxiety.

Additionally, the Muskrats alleged three instance of physical abuse by the school staff. The first instance was a slap (described by the Court as a “pop”) by special education teacher observed by a school cafeteria worker. The second incident was a slap to J.M.’s arm, hard enough to leave a red mark, by J.M.’s full-time aide at the school. The third instance involved the two staff members above restraining J.M. in his seat with each person holding J.M.’s shoulders so that he could not stand up. The Muskrats removed J.M. from Deer Creek after these incidents and later brought this suit focused on recovering damages for emotional trauma and related medical expenses.

Before proceeding to the merits, the Court first considered its own jurisdiction over the case in the context of the IDEA’s exhaustion requirement. The IDEA requires that plaintiffs first proceed though the administrate remedies offered by their state (here Oklahoma) to redress inadequate IEP’s or implementation of IEP’s. Once these educational issues are addressed at the state level (i.e. exhausted), and a dispute remains, plaintiffs may seek federal judicial review. The Tenth Circuit, and the weight of other federal circuits have previously characterized the exhaustion issue as jurisdictional one – that is to say that when the IDEA remedies have not been exhausted at the state level, the court lacks jurisdiction to hear the case.  Beyond having a case dismissed due to failure to exhaust, a significant danger exists for plaintiffs in having their case dismissed well into an action, even years into an action. This can be the case even if the defendant school district does not raise the issue, as the Court may dismiss a case because of lack of jurisdiction at any time on its own initiative. If the exhaustion requirement is non-jurisdictional, then it is incumbent upon the defendant district to plead and prove exhaustion was both required and not accomplished, and defendant may waive the requirement altogether. Ultimately, the Court here did not decide whether the IDEA’s exhaustion requirement was jurisdictional, but because Deer Creek raised the issue, the court turned to the merits of its exhaustion argument.

The Court first looked whether the three alleged abuse incidents required exhaustion at the state level and determined that they did not. There is no indication in the IDEA that Congress intended common law torts, though ocurring in the educational setting, to require IDEA exhaustion. The Court found there would be little sense in requiring parents to avial themselves first to state educational professionals to remedy alleged events involving violence. Accordingly, there was no exhaustion requirement for these allegation of abuse. However, with regard to the allegations on the use of timeouts, which were part of J.M.’s IEP for a time, the Court would typically require exhaustion due to the educational component involved. Nevertheless, the Court noted that though the Muskrats did not file a formal due process hearing under the IDEA, they had worked through administrative channels to obtain the relief they sought – mainly by by making oral and written demands to school officials and participating in the modification of the IEP. The Court held that given the steps that the Muskrats took, it would have been futile to force them to file a formal complaint, and therefore, exhaustion was not required in these circumstances.

Turning to the merits of the claims, the Court first held that the Muskrats’ allegations did not meet the standard of “shocking the conscience of the court” to find a violation of the 14th amendment. Regarding the allegations of physical abuse, the court found no evidence that the actions were a “brutual and inhumane abuse of power” but that the incidents were at most “a merely careless or unwise excess of zeal.” Therefore, because the abuse allegations did not “shock the conscience of the court,” their dismissal was upheld. The Court came to an identical conclusion with regard to the timeouts, seeming to rely heavily on the fact that the Muskrats had not made school staff aware of the medical consequences that such timeouts would have on J.M. In sum, the Court of Appeals affirmed the dismissal of all of the Muskrat’s claims.

Stepp v. The Mid-west School District, 2013 U.S. Dist. LEXIS 56078 (M.D. Penn. April 11, 2013) (consolidation)

This report and recommendation regards a procedural matter. The Stepps, on behalf of their child, filed a Complaint in federal court pursuant to the IDEA appealing an August 20, 2012 decision of a Special Education Hearing Officer that their child was not eligible for an Individual Educational Evaluation paid for by the Defendant District. Five days later, the Stepps filed a second Complaint appealing the August 25, 2012 decision of a Special Education Hearing Officer that their child was only eligible for four hours of compensatory education. The Stepps now move the court to consolidate the two federal actions and the District concurrs. The Magistrate Judge found that the two actions involved common questions of fact and law and recommended that the actions be consolidated.

M.M. v. San Ramon Valley Unified School District, 2013 U.S. Dist. LEXIS 57395 (N.D. Cal. April 22, 2013) (teacher credentialing, augmentative and alternative communication device use, student:teacher ration, and mainstreaming challenged)

At the time this case was filed, student M.M. was a seventh grader at the Arbor Bay School, a Non-Public School certified by the State of California to educate special education students. M.M. was eligible for special education as a child with a speech and language impairment, though M.M additionally suffered from impairment of motor skills and spatial awareness issues.

In February 2011, M.M.’s parents participated in an IEP meeting to review M.M.’s IEP and for the District to make an IEP offer for the 2011-12 school year. For that school year, the District’s offer changed  M.M.’s placement to a “moderate” Special Day Class (SDC). The IEP additionally cut M.M.’s access to an Augmentative and Alternative Communication (AAC) device to two hours a month, after brief transition period, and determined that M.M. would be mainstreamed for 20% of her school day. M.M. parents declined the offer though indicated they would consent to the IEP if M.M remained at Arbor Bay and if the District offered M.M. speech and language therapy at least 5 times a week for 30 minutes. The parents rejected the provision of 2 hours a month of AAC, and asserted their ‘stay-put rights’ to continue to receive two hours per week of such services. The District rejected the parents modification requests, and after a petition and hearing before the California Office of Administrate Hearings, the District was authorized to implement the IEP without parental consent. Then, after losing an administrative hearing before an Administrative Law Judge (ALJ) at the state level challenging the whether the IEP provided M.M. a free appropriate public education (FAPE), the parents bring this case seeking judicial review in federal court.

The parents contend the ALJ’s finding was in error because (1) M.M. was entitled to be taught by a teacher credentialed to teach a student with a primary disability of speech and language impairment; (2) M.M was entitled to a classroom with a student:teacher ratio of no more than 6:1; (3) that M.M. required at least 1 hour per week of AAC services; and (4) the mainstreaming required by the IEP was not appropriate.

The federal court agreed with the findings of the ALJ with regard to the teacher credentials and student teacher ratio. On the credentials, the court held that while there are no specific credentialing standards in the IDEA, the IDEA requires that special education and related services meet the standards of the applicable state agency. Though the teacher proposed for M.M. was not specifically credentialed for speech and language impaired students, the Court found that M.M. had “multiple disabilities”as that term was defined under California law and that the proposed teacher was credentialed for “multiple disabilities” students. On the ratio issue, the court found that there was no appreciable difference in student:teacher ratios between Arbor Bay and the District’s proposed placement.

The Court, however, differed with the ALJ on the other issues. On the AAC issue, the Court found that there was good basis in the record to show that the language therapy M.M. received involving the use of AAC device at Arbor Bay was necessary to provide her with a FAPE as such services were integral to helping M.M build language and receptive vocabulary. The Court likewise disagreed with the ALJ with regards to the conclusions to be drawn from the record on the mainstreaming issue. The Court credited testimony of M.M.’s mother and Arbor Bay representatives regarding M.M.’s ability to respond to social situations, while noting that the testminoy relied on by the ALJ only spoke to what social support M.M. might receive at the SDC, not what support M.M. would actually receive. In light of the evidence supporting a conclusion that mainstreaming would not convey a social benefit to M.M., the Court determined that the IEP denied M.M. a FAPE and found for M.M. and her parents.

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