Special Education Case Law Update – April 29, 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.