Special Education Case Law Update — Week of February 21, 2011

Posted on February 25, 2011

Lake Wash. Sch. Dist. No. 414 v. Office of Superintendent of Pub. Instruction, 2011 U.S. App. LEXIS 3464 (9th Cir. Wash. Feb. 22, 2011)

In this case, the school district sought to enjoin the Washington Department of Education from granting continuances greater than 45 days in any administrative proceedings conducted pursuant to the Individuals with Disabilities Education Act (IDEA).  The court was called on to determine whether the IDEA allowed a school district the right to sue a state agency for its alleged noncompliance with IDEA procedures. The court found that 20 U.S.C.S. § 1415 established a private right of action for disabled children and their parents. However, the court found that it created no private right of action for school boards or other local educational agencies apart from contesting issues raised in the complaint filed by the parents on behalf of their child. The court held that a school district had no express or implied private right of civil action under the IDEA to litigate any question aside from the issues raised in the complaint filed by the parents on behalf of their child. The Court concluded that the district lacked statutory standing to challenge the State’s compliance with the IDEA’s procedural protections because the district sought to enforce for its own ends the procedural protections intended to safeguard the rights of disabled children and their parents. 

D. A. v. Houston Indep. Sch. Dist., 629 F.3d 450 (5th Cir. Tex. 2010)

A parent of a child with disabilities withdrew the child from the school district before the school district had tested the child.  A hearing officer in a due process hearing under the IDEA concluded that the school district violated the IDEA but that the claim was moot because the child was no longer in the district. On review, the court affirmed. The Court found that the Parent failed to furnish proof of intentional discrimination as required under the Sect. 504 and the ADA, and § 1983 offered no additional cause of action. The error found by the hearing officer suggesting an untimely diagnosis reflected no more than negligence, and the court found no fact issue as to whether the officials departed grossly from accepted standards among educational professionals. The mere disagreement with the correctness of the educational services rendered to the child did not state a claim for disability discrimination under the ADA or Sect. 504.

N.M. v. Sch. Dist. of Phila., 394 Fed. Appx. 920 (3d Cir. Pa. 2010)

In this case, the student suffered from a pervasive development disorder that caused him to be challenged in his language skills and auditory processing. The parents rejected a proposed individualized education program (IEP) which called for him to split his instructional time between a special education learning support classroom and a regular education classroom. In seeking tuition reimbursement, the parents argued that the proposed IEP did not provide the minor with a free appropriate public education (FAPE), as it did not provide full-day, small group multisensory structured language based instruction from sufficiently trained teachers. The Third Circuit held that the district court did not err in concluding that the proposed IEP was reasonably calculated to provide meaningful educational benefits. The Court reasoned that the proposed IPE addressed the student’s needs, provided for social interaction with non-disabled peers, and was not procedurally flawed because it lacked annual goals and short-term objectives. The Court concluded that because the IEP provided a FAPE and because the parents did not demonstrate any impediment to their participation or deprivation of educational benefits, the court rejected this contention.

A.H. ex rel. J.H. v. Dep’t of Educ., 394 Fed. Appx. 718 (2d Cir. N.Y. 2010)

In this case, the district court found that the student’s IEP was procedurally deficient because no special education teacher participated in the meeting that formed the IEP.  The district court also found that the IEP was substantively deficient because it failed to address one of the student’s disabilities. The Second Circuit reversed finding that this conclusion failed to accord sufficient deference to the decisions of the Impartial Hearing Officer and State Review Officer (SRO), both of whom concluded that the IEP offered the son a free appropriate education. The Court reasoned that even if the student’ss special education teacher did not participate in formulating the challenged IEP, a certified special education teacher who taught and served as an IEP coordinator at the student’s school did so. The Court found that there was no indication this teacher in lacked knowledge regarding the special education program options for the student.  The Court also found that any procedural failing did not deny the student an appropriate education under the IDEA. 

T.B. v. Waynesboro Area Sch. Dist., 2011 U.S. Dist. LEXIS 17026 (M.D. Pa. Feb. 22, 2011)

This case is an appeal of an adverse decision by a Pennsylvania Special Education Hearing Officer with regards  to A.B., a 17-year old student residing in the District who has been previously diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”), speech language impairment and an autism disorder, Asperger’s syndrome, since early childhood. Plaintiffs T.B. and M.B. are the parents and natural guardians of A.B (“Plaintiffs” or the “Parents”).

The events that gave rise to the case occurred during the 2007/2008 and 2008/2009 school years.  A.B. struggles to appropriately interact with peers in unstructured, casual circumstances, and as a result has been both a victim and perpetrator of bullying while a student in the District. Following the last documented bullying incident at the District, A.B. exhibited suicidal behavior and was admitted to a psychiatric hospital. Upon release, A.B. received homebound instruction rather than return to school for the remainder of the school year. The Parents rejected the District’s Individualized Education Program (“IEP”) for the following school year, asserting that  it did not address the problems which had lead to A.B.’s previous suicidal ideation. Instead, A.B. was enrolled at St. Maria Goretti School, a small private school, and the Parents sought reimbursement for that education from the District.

Plaintiffs’ primary argument is not necessarily that the IEP itself was deficient, but that the means for implementing the IEP were deficient. To support this argument, Plaintiffs argue that no formal “data collection” was ever conducted in conjunction with A.B.’s IEP, and  thus submit that the IEP’s implementation must have been deficient in the absence of such data. The Court found that while this assertion has some facial allure, upon closer inspection it is evident that its premise is faulty. At the administrative hearings and as noted, numerous individuals testified as to A.B.’s positive progress under the IEP. We are presented with no reason to doubt the credibility and accuracy of that testimony, and shall decline Plaintiff’s invitation to do so. Further, having concluded that the IEP for the 2007/2008 school year was appropriate and that A.B. was accordingly provided with a FAPE for that school year, it necessarily follows that the Plaintiffs are not entitled to compensatory education or tuition reimbursement for that time period.

S.H. v. N.Y. City Dep’t of Educ., 2011 U.S. Dist. LEXIS 16336 (S.D.N.Y. Feb. 18, 2011)

A parent brought this case against the New York City Department of Education and the City of New York (“DOE”) under the Individuals With Disabilities Education Act (“IDEA”).  The Parent appeals from a New York State Review Officer’s decision denying tuition reimbursement for Plaintiff’s unilateral placement of J.G. in a private school for the 2008-09 school year. Both parties moved for summary judgment. The DOE conceded at the due process hearing that it failed to provide a FAPE to J.G.  Therefore, the case turned on the second prong of the Burlington test: whether the Landmark School was an appropriate placement for J.G.

A private placement is appropriate where parents “‘demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.'”  However, IDEA also requires that “special education and related services must be provided in the least restrictive setting consistent with a child’s needs.”

The Court found that the administrative record did not demonstrate that J.G. required a residential program, a six-to-one teacher-student ratio, or a setting limited solely to learning disabled students in order to obtain educational benefits. While Dr. Forman’s report from July 2006 indicates that she believed J.G. required a residential program at that time, there is ample evidence that J.G. had progressed significantly between July 2006 and the 2008-09 school year. J.G. was performing at or above his grade level, was taking the most challenging math and science courses, was performing satisfactorily and in some cases exceptionally well in his classes, and indeed was functioning independently in a number of his classes. J.G.’s scores on standardized tests also placed him in the average range or higher for his age group.  The Court also found that even accepting Plaintiff’s evidence that J.G. benefitted from the Landmark program, she has not met her burden to demonstrate that J.G. needed such a program in order to “receive educational benefits.”

E. Orange Bd. of Educ. v. E.M., 2011 U.S. Dist. LEXIS 16502, 1-2 (D.N.J. Feb. 17, 2011)

E.M. is the parent of J.B., a minor child who is classified as a student eligible for special education and related services under the category of Specific Learning Disability. In May 2007, the Greater  Newark Charter School (“GNCS”) determined that it could not provide an appropriate education for J.B., then a resident of Newark, as required under his Individualized Education Program (“IEP”). GNCS developed an IEP for out of district placement and the Newark School District accepted financial responsibility. J.B. attended North Hudson Academy, a private school for students with learning disabilities located in North Bergen, New Jersey. At no point did the Newark School District contest the placement of J.B. In August 2007, E.M. and J.B. moved from the City of Newark to the City of East Orange. The East Orange Board of Education offered E.M. various in-district programs, which E.M. refused, instead requesting transportation from East Orange to North Hudson Academy.

Plaintiff asserts  that E.M. is not entitled to transportation costs because: 1) by virtue of attendance at North Hudson Academy, J.B. could not have been attending the Greater Newark Charter School and 2) his Individualized Education Plan did not require (or even mention) transportation. First, the fact that Judge Celentano analyzed the underlying decision under the Charter School Act, does not bar this Court from ordering appropriate remedies under the IDEA. The Court is not satisfied that J.B. must attend a charter school to be entitled to transportation costs. 2 Here, J.B. appears to have been “enrolled” in the GNCS, but “attended” North Hudson Academy. This distinction does not bar J.B. from obtaining transportation costs. J.B. is entitled to reasonable transportation costs under the IDEA, which contains a broad, equitable remedial scheme. The IDEA authorizes the Court to grant the prevailing party “such relief as the court determines is appropriate” to remedy the deprivation of a FAPE. 20 U.S.C. § 1415(i)(2)(C)(iii); Ferren C., 612 F.3d at 717. Furthermore, the Court does not agree that an IEP must explicitly reference transportation costs. J.B.’s IEP includes a reference to “related services,”  which, as defined under the IDEA includes “transportation, and other such developmental, corrective, and other supportive services . . .” 20 U.S.C. § 1401(26)(A). Thus, the Court ordered that it would entertain a further submission by Defendant, properly supported by affidavit(s) and any pertinent documentation, detailing the nature of the transportation expenses for which reimbursement is sought.

M.H. v. New York City Dep’t of Educ., 2011 U.S. Dist. LEXIS 17306 (S.D.N.Y. Feb. 16, 2011)

Plaintiffs commenced this action on February 9, 2010, appealing from a determination from a State Review Officer (“SRO”) that defendant New York City Department of Education (“DOE”) had offered a free and appropriate public education (“FAPE”) and that therefore plaintiffs were not entitled to reimbursement of tuition for the private school in which H.H. was enrolled.

H.H. is a 17-year-old high-school student who was enrolled at  the Robert Louis Stevenson School (“RLS”) at the time this action was filed. Her parents, M.H. and S.R. (the “Parents”), filed this action seeking reimbursement of H.H.’s tuition at RLS, in which H.H. enrolled after anxiety and emotional issues prompted her withdrawal from her previous school, Columbia Grammar and Prep (“Columbia”).
First, plaintiffs argue that the IEP had no counseling mandate because the “Related Services section of the IEP is blank” and was therefore inappropriate.

The DOE reiterates that counseling is discussed in other areas of the IEP, and further points out that the both the IHO and plaintiffs implicitly acknowledged that “there was no dispute as to the level of counseling services recommended by the CSE” by their conduct.  Thus, the DOE contends that the omission of the duration and frequency of counseling was “harmless error” and did not constitute a denial of FAPE. The Court agrees with the DOE. Second, plaintiffs argue that the amount of counseling recommended is insufficient. Plaintiffs cite no authority on this point, but instead compare the amount of counseling recommended to that which H.H. receives at RLS. The Court therefore finds that “the appropriateness of a public school placement shall not be determined by comparison with a private school placement preferred by the parent.”  Next, plaintiffs argue that H.H. was improperly classified as “Other Health Impaired” instead of “Emotional Disturbance.” (Pl.’s Mem. at 16.) But the law is clear that school districts are not required to classify  a student in a particular category. Rather, as the DOE correctly points out, “the only relevant question is whether the Student was offered FAPE.” Finally, plaintiffs argue that the SRO erred in finding the class size at Baldwin to be appropriate. The connection between that history and what class size is appropriate for a student with that history, however, is exactly the sort of policy judgment on which the Second Circuit has instructed that this Court should defer to the SRO, especially where, as here, the SRO’s “review has been thorough and careful.”

S.H. v. N. Y. City Dep’t of Educ., 2011 U.S. Dist. LEXIS 15864 (S.D.N.Y. Feb. 15, 2011)

Plaintiffs S.H. and B.P. are the parents of plaintiff S.H., who has been diagnosed with autism. In the 2008-09 school year, they placed the then-five-year-old S.H. in the Rebecca School, a private, for-profit educational institution, and sought reimbursement of educational expenses from the New York City Department of Education (the “DOE”). They claimed that their son has been denied a free and appropriate public education (“FAPE”) and pursued state administrative remedies under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. On behalf of themselves and S.H., the parents have brought this action pursuant to IDEA, seeking review of a decision by the State Review Officer (the “SRO”) that denied them all relief.

Here, the IHO presided at a four-day hearing and issued a decision and order in favor of the parents directing that $10,000 of educational expenses be reimbursed to the parents and an additional $64,667 be paid to the Rebecca School. In a written opinion, the SRO “annulled” the decision of the IHO and found in favor of the DOE. Thereafter, the parents commenced this action.

On appeal, the Court found that the SRO’s review, reflected in an 18-page single-space decision, was thorough and careful, and is entitled to deference. The DOE has sustained its burden of demonstrating that it offered S.H. a FAPE, pursuant  to a procedurally and substantively appropriate IEP. Having considered all other arguments advanced by the parents and find them to be without substance, this Court grants summary judgment in favor of defendants, and the complaint is dismissed.

One Response to “Special Education Case Law Update — Week of February 21, 2011”

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