Special Education Case Law Update – Week of December 16, 2012
Thomas W. v. State of Hawaii, Dep’t of Education, 2012 U.S. Dist. LEXIS 179959 (D. Haw. Dec. 19, 2012)
Thomas (T.W.) is twelve year old boy with autism spectrum disorder. He attended Hawaii Department of Education (DOE) schools until Fall 2010, at which point he was unilaterally placed by his parents in private school. Beginning in April 2011, T.W. was privately placed at Autism Management Services (AMS).
While T.W. was in his first private school placement, his parents contacted the DOE to see what the DOE could offer T.W. and were incorrectly told that T.W. needed to be enrolled in a public DOE school before an individualized education plan (IEP) meeting could take place. This incorrect information ultimately led to an Administrative Hearing Officer (AHO) determination that no IEP was in place for T.W. for several months during 2010-11. The AHO ordered that T.W.’s parents be reimbursed for expenses to attend AMS.
While the parties proceeded through this first administrative process above, another IEP meeting was held for T.W. which became the subject of a second due process request and this federal court case. T.W.’s parents asserted that this IEP was insufficient because (1) the meeting was not convened prior to the start of the 2011-12 school year, and (2) that the term “close adult supervision” as used in the IEP was not appropriate because T.W. required one-on-one supervision. As a result of these allegations, T.W.’s parents sought further reimbursement for T.W.’s tuition at AMS, arguing that AMS was T.W.’s “stay put” placement pursuant to the Individuals With Disabilities Education Act (IDEA). The AHO ruled in this second administrative process request that while the DOE had denied T.W. a free appropriate public education (FAPE), AMS was not an appropriate placement.
The IDEA provides that during the pendency of proceedings under the IDEA, a child shall remain in his or his then-existing educational placement. Under this provision, school districts are responsible for the costs of that placement, regardless of which party ultimately prevails on the underlying proceeding.
Here, the AHO’s decision in the first administrative challenge was ambiguous with regard to whether the AHO determined that AMS was T.W. current educational placement for purposes of the “stay put” provisions of the IDEA. For this reason, the federal Court remanded the case back to that AHO to clarify what she intended with regard to the AMS placement. If the AHO indicated she intended AMS was an appropriate educational placement for T.W. then T.W. parent’s would be entitled to have the DOE reimburse them for the costs of attendance at T.W. while the other second IEP challenges were litigated.
Ronnie Thomas v. District of Columbia, 2012 U.S. Dist. LEXIS 177997 (D.D.C. Dec. 17, 2012)
This opinion concerns a parent’s request for attorneys’ fees after successfully asserting an Individuals with Disabilities Education Act (IDEA) claim against the District of Columbia (District). The parent brought the IDEA claim due to the District’s failure to review a vocational evaluation of her daughter, the District’s subsequent failure to review and revise the daughter’s Individualized Education Plan, and the District’s failure to provide a free appropriate public education. After the federal Court granted the parent judgment, the parent sought, pursuant to the IDEA’s attorneys’ fee shifting provision, an award of $43,589 in attorneys’ fees and costs against the District.
The District opposed the fee request, arguing that the fee award should be reduced to $8,437. After considering the parent’s request and the District’s arguments, a federal magistrate issued a report and recommendation that the parent’s award be reduced to $19,546. The parent objected to the report and recommendation.
The federal judge hearing the objection noted that the Court must first determine whether the party seeking attorneys’ fees was the prevailing party, and second must determine whether the fees sought are reasonable. Here, there was no dispute that the parent prevailed and the Court proceeded to determine the reasonableness of the requested fee. The reasonableness of an attorney’s hourly rate, in the context of IDEA fee awards, is determined by (1) the attorney’s billing practices; (2) the attorney’s skill experience and reputation; (3) the prevailing market rates in the relevant community; and (4) the complexity of the case. Any award of reasonable attorney’s fees under the IDEA is subject to judicial discretion.
The Court determined that the hourly rate of $445 was reasonable (for the Washington, D.C. area). The evidence presented by the Plaintiff showed that her attorney had litigated extensively in the field of special education law since 2003 and evidenced considerable expertise in the field. The Court additionally noted that the case was sufficiently complex – involving an expert witness, extensive motions practice, and a question of first impression under the IDEA – to warrant the hourly rate.
Notably, the Court pointed to the District’s pervasive avoidance of paying attorney’s fees to prevailing parties at all costs. Such efforts included the District’s failure to make payment, or make partial payment only, in spite of Court orders to the contrary. Recognizing that this practice of avoiding payment placed IDEA litigators in the D.C. area in financial difficulties, the Court held that fees higher that those recommended by the magistrate were further justified due to the District’s dismissal track record on paying fees.
The Court additionally declined to discount the hours devoted to certain tasks, notably the drafting of Plaintiff’s motion for summary judgment and later, the drafting of the petition for attorney’s fees, as recommended by the magistrate. The goal in shifting fees under the IDEA, “is to do rough justice, not to achieve auditing perfection.” Though it may have been possible for Plaintiff’s attorney to complete these tasks in a shorter amount of time, the time spent was not excessive. The Court awarded Plaintiff $31,945 in fees and costs.
J.Y. v. Bayonne Board of Education, 2012 U.S. Dist. LEXIS 180361 (D.N.J. Dec. 20, 2012)
J.Y. is a student born in Romania and adopted by American parents. From September 2002, J.Y. attended Elysian, a charter school selected by his parents and at the time of his enrollment at Elysian J.Y. was identified as having learning disabilities requiring special instruction. Then, in April 2009 during his sixth grade year, Elysian’s Individualized Education Plan (IEP) team advised J.Y.’s parents that they could not meet J.Y.’s needs due to J.Y.’s academic and social functioning having fallen well below that of his peers. Elysian developed an IEP for J.Y. that called for his placement at the Community School, a private day school for the educationally disabled located outside of the Bayonne School District.
Bayonne, J.Y.’s resident school district, was not involved in the creation of the 2009 IEP. However, as required by New Jersey law, Elysian notified Bayonne of its intent to place J.Y. at Community School. Bayonne then exercised its statutory right to contest the placement and initiated a due process hearing claiming that an in-district placement for J.Y. would provide him with a free appropriate public education (FAPE) in the least restrictive environment. During the pendency of this claim, J.Y.’s parents filed an emergency application and cross-petition to invoke the “stay put” provisions of the Individuals with Disabilities Education Act (IDEA) and place J.Y at the Community School while Bayonne’s due process claim proceeded. An administrative law judge, a federal court, and ultimately the Third Circuit Court of Appeals all denied the parents’ request.
Meanwhile, with regard to Bayonne’s challenge of the placement at Community School, the Administrative Law Judge (ALJ) reviewing the case directed Bayonne to propose a new IEP for J.Y. After Bayonne prepared the IEP, and after hearing testimony, the ALJ granted Bayonne’s petition finding that Bayonne could offer J.Y. a FAPE. The ALJ’s decision was based in significant factual findings and on the credibility of witness testimony. J.Y.’s parents then brought this case before in federal court.
J.Y.’s parent’s first claimed that the New Jersey statute under which Bayonne challenged the placement at the Community School conflicted with the IDEA, and therefore violated the Supremacy Clause of the U.S. Constitution. These claims were dismissed.
With regard to the IDEA-specific claims, the Court upheld the ALJ’s decision that Bayonne could appropriately met J.Y.’s needs in a less restrictive environment than that proposed by the Elysian IEP team. In reaching this decision, the Court noted the IDEA’s “mainstreaming” requirement that prohibits placing a child with disabilities outside of a regular classroom if the child can be educated in a regular classroom with the help of supplementary aids and support services. The ALJ had received testimony that J.Y. would attend self-contained academic classes, but then join mainstream students for lunch, physical education, art, music, and computer instruction. Bayonne witnesses, whom the ALJ found credible, testified that being integrated into the school community would benefit J.Y. socially. The federal Court additionally found the ALJ’s findings regarding the sufficiency of Bayonne’s academic programs supported by the evidence, and that the parents had not provided any evidence that J.Y. would not be successfully integrated into Bayonne public schools. For these reasons, the Court granted Bayonne’s motion for summary judgment seeking a determination that Bayonne offered J.Y. a FAPE.