Special Education Case Law Update – Week of December 9, 2012
R.P v. New York City Dep’t of Education, 2012 U.S. Dist LEXIS 175329 (S.D.N.Y. Dec. 11, 2012)
R.P was diagnosed with autism, sensory integration dysfunction, moderate mental retardation, and attention deficit hyperactivity disorder. As a result of these conditions, R.P has difficulty processing information that he receives through his senses and he must receive sensory input through the day.
In May 2007, R.P. began attending the Rebecca School in Manhattan, which he attended through the end of the 2008-09 school year. For the 2009-10 school year, the Department of Education (DOE) recommended placing R.P. in a special education class at P.S. 79. R.P.’s mother objected to the recommendation and requested a hearing to seek payment for continuing R.P.’s education at the Rebecca School. At that hearing, the impartial hearing officer (IHO) determined that the DOE had denied R.P a free appropriate public education (FAPE) and ordered the DOE to reimburse R.P.’s parents for the placement at the Rebecca School. The DOE did not appeal this decision.
In May 2010, the DOE’s Committee on Special Education (CSE) met to prepare R.P’s Individualized Education Plan (IEP) for the 2010-11 school year. The result was an IEP for R.P. that recommended placing R.P. in a specialized public classroom for a twelve month school year with a 6:1:1 (students: teacher: paraprofessional) ratio. Additionally, the IEP described a variety of therapeutic and a transitional services, and 1:1 paraprofessional for a three month period during R.P.’s transition. The recommended placement, for the 2009-10 year, was P.S. 79. After visiting P.S. 79, R.P.’s mother again concluded that P.S. 79 could not meet R.P.’s sensory needs and that the teaching methodology employed, “TEACCH” (Treatment and Education of Autistic and related Communication Handicapped Children), would be inappropriate for him. R.P. was ultimately re-enrolled at the Rebecca School by his mother for the 2010-11 school year. In March 2011, R.P.’s mother filed a due process complaint alleging that the DOE had denied R.P. a FAPE and sought reimbursement for the Rebecca School.
On this second due process complaint, the IHO again agreed that the DOE had failed to provide R.P. a FAPE and awarded reimbursement. However, on appeal, a State Review Officer (SRO) reversed the decision of the IHO. This federal case was then filed by R.P.’s mother.
The burden of persuasion to show that R.P. was offered a FAPE was on the DOE at the impartial hearing. However, because the SRO later concluded that the IEP was proper, the federal Court was required to defer to that decision. R.P.’s mother, therefore, had the burden of demonstrating to the Court that the SRO’s decision was erroneous. The substantive adequacy of an IEP, as challenged here, is entitled to heightened judicial deference. Reviewing R.P.’s argument that the public classroom teacher and paraprofessional ratio was inappropriate, the Court noted that the SRO’s reliance on testimony from a DOE psychologist that R.P. would have received services beyond those listed in the IEP was improper; testimony may not be used to correct an otherwise deficient IEP by attempting to establish that R.P. would have received services beyond those listed in the IEP. Nevertheless, in spite of this improper reliance, the Court found that the SRO’s decision regarding ratio persuasive. The psychologist had testified that the 6:1:1 placement would offer lots of support when complemented by the additional weekly therapeutic sessions. Additionally, the Court found the SRO reasonably concluded that the three month 1:1 transition period was adequate, in part because R.P. did not receive this level of support at the Rebecca School.
Regarding the adequacy of P.S. 79 as a placement, the Court found that the SRO reasonably concluded, based on the testimony of the special education teacher assigned to R.P., that the sensory equipment in the P.S. 79 classroom was adequate. Notably, there was no dispute that the sensory equipment at the Rebecca School was, in fact, superior to that available in the public setting. The Court noted, however, that the DOE was not required by the IDEA to provide the “optimal level of services” but only a program that confers some level of benefits. The Court likewise deferred to the SRO’s findings that the TEACCH method was appropriate for R.P. and that the methodology would be tailored by the special education teacher, pursuant to her testimony, to the individual needs of R.P. The federal Court found all of the above conclusions by the SRO to be reasonable and supported by sufficient evidence, and based on that finding, the Court held that the DOE did offer R.P. a FAPE for the 2010-11 school year. The parent was not entitled to reimbursement for that year at the Rebecca School and the Court did not therefore reach the appropriateness of the Rebecca School as a placement.
C.W. et al. v. Capistrano Unified School District, 2012 U.S. Dist. LEXIS (C.D. Cal. Dec. 5, 2012)
This case is a cautionary tale in which the Capistrano Unified School District (District) was awarded its attorneys’ fees and litigation costs in defending against a due process hearing and subsequent federal civil lawsuit brought by C.W.’s mother (Mother) on C.W.’s behalf. While this Order does not discuss the particular facts of C.W.’s educational challenges, the issue at the due process hearing was reviewed pursuant to the Individuals with Disabilities Education Act (IDEA). Later, in the federal Court action, the Mother added claims under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and 42 U.S.C. § 1983.
Under the IDEA, a District that is a “prevailing party” may seek attorneys’ fees and costs incurred in defending against an IDEA claim if the claim is frivolous, unreasonable, without foundation, or was brought for any improper purpose, such as to harass the District. The Court found that Mother’s claims were frivolous because the Mother sought remedy for a harm actually caused by the Mother, the remedy sought was well beyond any measure of relief C.W. could have obtained, and the legal theories adopted were contrary to the plain language of controlling statute, Ninth Circuit authority, and the record. The Court additionally found that the Mother appealed the decision from the due process hearing for an improper purpose, mainly to “ransom her child’s IDEA appeal in exchange for money to which her non-attorney advocate was not entitled.” The Court found that this event evidenced the purpose of the appeal was not to vindicate C.W.’s rights, but rather to harass and needlessly increase the litigation costs incurred by the District.
After determining the reasonableness of the hours spent by the District’s attorneys on this case, the reasonableness of the hourly rate charge by those attorneys, and the reasonableness of the District’s litigation costs (copies, filing fees, etc.) the Court awarded the District $94,602.34 in attorneys’ fees and $2,058.21 in costs. This fee and cost award was inclusive of time spent for the due process hearing, the federal lawsuit, and the fees and costs incurred by the District to seek fees and costs.
N.B. v. Demopolis City Board of Education, 2012 U.S. Dist. LEXIS 173793 (S.D . Ala. Dec. 7, 2012)
While a student enrolled in the Demopolis City School District (DCSD), N.B. physically assaulted one of his teachers and the school principal. Pursuant to DCSD policy he was suspended. Two days after the assault, N.B.’s legal guardian brought a due process complaint alleging that the Board of Education had violated N.B.’s rights under the Individuals with Disabilities Education Act (IDEA). The presiding hearing officer ruled in favor of the Board and this federal lawsuit followed.
N.B qualified for special education services due to diagnoses with Oppositional Defiance Disorder, Mood Disorder, Attention Deficit Hyperactivity Disorder, and Post Traumatic Stress Disorder. N.B. had previously attended school in Jefferson County, Alabama, and was enrolled in Demopolis County, Alabama, in August 2010 after a move. Prior to the move, Jefferson County had conducted a full IDEA evaluation of N.B. and had prepared an Individualized Education Program (IEP). At the time of the move, Demopolis was provided a copy of the Jefferson County IEP. Demopolis decided to accept and implement the Jefferson IEP without change.
N.B. alleged procedural and substantive challenges to the IEP. Procedurally, N.B. argued that it was improper for Demopolis to accept the Jefferson IEP, rather than develop a new IEP. However, because the Jefferson IEP was still current and there is no requirement that an IEP be redesigned when a student changes school districts, there was no procedural violation in the DSCD’s decision to continue with the Jefferson County IEP. Further on procedural issues, N.B. argued that DSCD made no effort to obtain N.B.’s records and failed to send adequate notice of an IEP meeting convened to extend the use of the Jefferson IEP. However the federal Court found the defects harmless. The Court noted that not every defect results in violation of the IDEA. Rather, in evaluating procedural defects, the Court must consider the impact of the defect and not the existence of the defect per se. Because N.B. presented insufficient evidence that the procedural defects negatively impacted him, the Court ruled in favor of DCSD on the issue.
N.B. additionally argued that the IEP was substantively deficient because the annual behavioral goal it set forth for N.B. was neither measurable or sufficiently individualized. The Court found, however, that N.B. presented no evidence significant enough for the Court to disregard the testimony of DSCD education professional that the goal – measured by referrals to the office for behavioral issues – was not appropriate. The Court dismissed all of N.B.’s procedural and substantive claims on these findings.
Jacqueline Hupp et al. v. Switzerland of Ohio Local School District, 2012 U.S. Dist. LEXIS 175742 (S.D. Ohio Dec. 11, 2012)
Student-Plaintiff T.P. was diagnosed with Attention Deficit Hyperactivity Disorder and Asperger’s Syndrome. This case began when T.P.’s parents filed a due process complaint pursuant to the Individuals with Disabilities Education Act (IDEA) against T.P.’s school district, Defendant Switzerland of Ohio Local School District (District). An independent hearing officer (IHO) determined that the facts did not support the parents’ claim that the District failed to offer T.P. a free appropriate public education (FAPE) nor that the District violated the IDEA. The parents appealed the decision to a state level review officer (SLRO) who upheld the decision of the IHO. Parents then filed this federal case and added claims under the Rehabilitation Act of 1973, the Americans with Disabilities Act, and 42 U.S.C. § 1983. The federal Court found in favor of the District on all issues.
For the 2003-04 school year, T.P. attended the District in a first grade classroom. For the 2004-05 year, T.P. was retained in first grade and remained with the same teacher. In the summer of 2005, T.P. underwent a number of assessments and was formally diagnosed with Asperger’s. The private physician making the diagnosis recommended a 1:1 classroom aide to assist T.P. in behavior control and academic achievement. In late summer, T.P.’s Individualized Education Program (IEP) team met to prepare T.P.’s IEP for the upcoming year. The team decided to assign a one-on-one aide to T.P. during unstructured times, but decided T.P. did not require a one-on-one aide for the entire school day. After some behavioral incidents at school involving T.P., his mother withdrew him from school in September 2005 to homeschool him. In conjunction with the withdrawal, T.P.’s mother signed an IEP form revoking consent for special education services. In May 2006, T.P. was re-enrolled in the District, however his mother again withheld her consent for a newly proposed IEP due to the lack of a full-time one-on-one aide.
T.P.’s federal complaint alleged procedural and substantive deficiencies in T.P.’s IEP pursuant to the IDEA. Procedurally, his parents argued that, among other issues, (1) the District violated the IDEA’s ‘child find’ provisions by not evaluating T.P. when a disability was first suspected; (2) that the parents were not advised of their rights under the IDEA by the District; and (3) that the mother’s decision to withdraw T.P. and revoke his special education services was coerced by the District. With regard to the ‘child find’ provisions – which requires the District to identify, locate, and evaluate children with disabilities who need special education services – the Court found the District did not violate its responsibilities. As the law existed in Ohio in 2005, the District was required to provide interventions to resolve concerns for student before a full individual evaluation was required. As the evidence showed T.P.’s teacher had successfully used interventions with T.P. during the 2004-05 school year, the Court held there were no ‘child find’ violations because the District provided T.P. with additional services and the District did not unnecessarily delay an evaluation of T.P. On the issue of T.P.’s parents having been advised of their IDEA rights, the Court concluded the factual finding made by the IHO, that T.P.’s mother received a handbook describing her rights, was supported by the administrative record. Regarding the final procedural issue of a coerced withdrawal, the Court found no evidence on the record to support this claim.
T.P. additionally alleged substantive violations of the IDEA, centering primarily on the District’s failure to offer a full-time one-on-one aid to T.P. In arguing this issue, T.P. pointed to witness with expertise on the subject of Asperger’s Syndrome who testified that T.P. would benefit from a one-on-one aide. However, the Court held that it must assess whether a one-on-one aide was necessary to provide T.P. a FAPE, not whether the full time aide would mean the absolute best or potential-maximizing education for T.P. The Court found that the preponderance of the evidence supported the determinations of the IHO and SLRO that T.P. was offered a FAPE without the assignment of a full-time one-on-one aide.
Turning to T.P.’s allegations under the Rehabilitation Act of 1973, the Americans with Disabilities Act, and 42 U.S.C. § 1983, the Court noted the claims rested in large part on an alleged animus by employees of the District against T.P. and his parents. This animus allegedly manifest itself in a child neglect report to the Monroe County Department of Job and Family Services. Though the report was ultimately dismissed, T.P.’s parents alleged that employees of the District caused the complaint to be filed in retaliation for the parents’ attempt to enforce their rights under the IDEA. The Court found this connection speculative and unsupported by any evidence.
As for other alleged facts in violation of these statutes, the parents failed to show sufficient facts to support their claims. The Americans with Disabilities Act, which states, “no qualified individual with a disability shall, by reason of the disability, be excluded from participation in or be denied benefits” of public services , offered no relief to parents because T.P. was offered a FAPE by the District. As for 42 U.S.C. § 1983, the Court noted that this statute creates no substantive rights by itself, but merely provides a mechanism for remedies of rights established elsewhere. Because the Court concluded that there were no violations by the District on the other claims at issue, T.P.’s claims under 42 U.S.C. § 1983 likewise failed. T.P.’s complaint was dismissed in its entirety.