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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