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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