Special Education Case Law Update – May 6, 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.