Special Education Case Law Update – Week of January 31, 2011

Posted on February 4, 2011

A ex rel. D.A. v. New York City Dep’t of Educ., 2011 U.S. Dist. LEXIS 9475 (S.D.N.Y. Feb. 1, 2011)

This case presents the following question of first impression:

1. When a child with disabilities has been denied a free and appropriate public education; and

2. the child’s parents have enrolled the child in an appropriate private school;  and

3. the equities favor an award of the costs of private school tuition; but

4. the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so;does this Court’s authority under Section 1415(i)(2)(C)(iii) of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1415 (i)(2)(C)(iii), “to grant such relief as the court determines is appropriate,” include the power to order a school district to make a retroactive tuition payment directly to the private school? The New York City Department of Education and its Chancellor, defendants herein, contend that IDEA grants courts no such authority, arguing that the private school tuition remedy is available only to parents with the financial means to pay — in the first instance — private school tuition out-of-pocket.

This Court concludes that imposing such a limitation on this remedy is inconsistent with the statutory language and with Supreme Court jurisprudence interpreting IDEA, and would be entirely antithetical to Congress’s clearly expressed legislative intent and purpose in enacting IDEA.

CG v. Pa. Dep’t of Educ., 2011 U.S. Dist. LEXIS 8339, 1-2 (M.D. Pa. Jan. 28, 2011)

Plaintiffs, two classes represented by parents of students in Lancaster and Reading School Districts, bring this action on behalf of their minor children to challenge the Commonwealth of Pennsylvania’s method for distributing special education funds. They contend that 24 P.S. § 25-2509.5, the Pennsylvania statute which apportions special education funding, violates federal law, specifically: the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; the Due Process Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, § 1; the Equal Educational Opportunities Act of 1974 (“EEOA”), 20 U.S.C. § 1701 et seq.; and Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. Defendants are the Pennsylvania Department of Education and Gerald Zahorchak, the Secretary of the Department. Now before the Court are the parties’ cross motions for summary judgment.  The Court denys Plaintiffs’ motion and grants Defendants’ motion in part and denys Defendants’ motion in part.

Brown v. Tenn. Dep’t of Educ., 2011 U.S. Dist. LEXIS 8854, 5-7 (M.D. Tenn. Jan. 28, 2011)

Plaintiffs’ “Statement of Claim” essentially avers that Plaintiff Brown was a learning disabled student with ADHD who attended Pearl Cohn High School off and on from 1998-2002.  During some periods of that time, she received no special education services because she had been placed in the wrong curriculum. At some point, she was suspended from Pearl Cohn High School and sent   back to “zone school.”  She was readmitted to Pearl Cohn High School in 2001, but was again suspended in February 2002.  She reports being told in an IEP meeting that she was “being made a senior and would graduate May 2002.”  She also reports being told that she could not participate in graduation, but that she should “come at end of school term and pick up diploma.”  In Fall 2003, Plaintiff went to pick up her diploma, but was told by the assistant principal that her records had been sent to the school board.  Plaintiff decided leave her diploma “there, until she was ready to use it.”  In August 2009, she started a dental assistant program at Kaplan University, but was forced to drop out in October 2009 because of her “inability to show four years of High School or proof of a diploma.” Plaintiffs learned that “no diploma has ever been issued.”  Plaintiffs aver that Plaintiff Brown has “truly been a victim of not being afforded a free appropriate education and has been left behind.”  Plaintiffs further aver that the school system has continually ignored her request for an accurate transcript that reflects all her credits.

Plaintiffs seek the following  relief:

(1) Cite the State Board of Education and the Metropolitan Nashville Public School System to finance any future educational advancement in or out of the State of Tennessee.

(2) Not sure if this is legal, order the State Board of Education to issue her High School Diploma.

(3) Cite State Board of Education and Metropolitan Nashville Public Schools for violations of Student Civil Rights and Parent Civil Rights.

(4) Order that specific (specialized Guidance counselor) be assigned specifically to provide adequate curriculum for students with disabilities or Resource classes in High School.

(5) Order revamping measures of the Special Education Department, especially in High Schools. (a) More attainable goals for each individual student, and attainable devices to measure (success of academic goals.)

(b) Early intervention (Freshmen year for Vocational Skill setting for those students whose academic skills and vocational skills may be extremely limited, so as to promote progress, through high school years.

(c) More skillful monitors with psychiatric background to help provide more behavioral therapy for those students, who’s behaviorals may interfere with academic achievement in the classrooom,  and non-working alternative schools.

(6) Eventhough, my oldest son does not fit into this statute, and is not a plaintiff, his issue of academic performance vs disability impairments was also damaged. I requesting that the State Board of Education and Metropolitan Nashville Public School System be cited to provide free or financial and adequate educational assistance to help him with future educational placement and vocational placement, to help with career skills.

(7) I wish to have my supposedly case of child abuse removed from my file and other appropriate expungeable things as deemed. I also wished that other character assassination attempts be removed.

As has been noted, Plaintiffs have filed suit pursuant to the “No Child Left Behind Act of 2001,” 20 U.S.C. §§ 6301-7941. Plaintiffs seek the injunctive relief discussed above.  Plainiffs’ case was dismissed as being frivolous and groundless.
Struble v. Fallbrook Union High Sch. Dist., 2011 U.S. Dist. LEXIS 7866, 2-3 (S.D. Cal. Jan. 27, 2011)

This case consists of a complaint filed by Plaintiff Mary Struble, the conservator and mother of a young man (“C.S.”), who alleges that the Defendant failed to provide a FAPE and seeking that C.S. be placed at the Fusion Learning Center, a nonpublic school which has not been certified by the state as an appropriate school for children with disabilities. The complaint seeks to modify the remedy prescribed by the administrative law judge (ALJ) who conducted an administrative due process hearing and agreed with Struble that the defendant failed to provide C.S. a FAPE. After she filed the complaint, Struble placed her son with Fusion, but does not seek reimbursement of those costs in this complaint. The complaint doesn’t say what whether C.S. continued at Fusion, or what his status is now, but the Court assumes the parents continue to seek compensatory education for him. In addition, the Defendant, Fallbrook Union High School District, filed a counterclaim seeking to reverse the decision by the ALJ.

The District’s counterclaim is DISMISSED WITH PREJUDICE in its entirety. The plaintiff’s complaint is STAYED and REMANDED to the OAH for a final determination by a hearing officer as to the following two issues: (A) whether the February 7, 2008 IEP placement was appropriate under the IDEA and, if not, (B) whether the private parental placement at Fusion appropriate under the Act. The Court finds the Plaintiff was the prevailing party in the ALJ hearing. The Court also finds the Plaintiff has waived  her right to appeal the ALJ’s decision that the Defendant prevailed on twelve specific issues which the Plaintiff did not appeal.
Mangum v. Renton Sch. Dist., 2011 U.S. Dist. LEXIS 8887, 7-8 (W.D. Wash. Jan. 27, 2011)
Given the limited nature of the District’s argument, the court’s task in resolving the motion before it is simplified. The only relevant facts are undisputed. The District has removed I.M. from the H.O.M.E. program. The court makes no finding as to its motivations for doing so. The court assumes, solely for purposes of this motion, that the District has accurately described the  Mangums’ failure satisfy their obligations to the H.O.M.E. program, and that those failures would justify I.M.’s exclusion from the program but for the stay-put provision.

The disputed question before the court is therefore a legal one: is the H.O.M.E. program I.M.’s “current educational placement” for purposes of invoking the stay-put provision? The District insists that it is not, and contends that only a placement made pursuant to an IEP brings a student within the ambit of the stay-put provision. In support of that contention, the District cites only two cases. In the first, Johnson v. Special Educ. Hearing Office, the court remarked that “[f]or the purpose of § 1415(j)’s ‘stay put’ provision, the current educational placement is typically the placement described in the child’s most recently implemented IEP.” 287 F.3d 1176, 1180 (9th Cir. 2002). The court’s survey of case law confirms the Johnson court’s observation — most plaintiffs invoking the stay-put provision do so on behalf of a student who is subject to an IEP. For many reasons, however, there is no reason to interpret Johnson to require an IEP before invoking the stay-put provision.
K.G. v. Sheehan, 2010 U.S. Dist. LEXIS 140589, 15-17 (D.R.I. Dec. 30, 2010)
On the same date as the scheduled meeting, Plaintiff sent a letter to Mr. Vigeant, which he received on August 20, 2007, indicating that she did not accept the recommended placement at the Civic Center program, that she was withdrawing C.G. from the District, and that she intended to place C.G. in a private school program at the expense of the District.  Plaintiff’s reasons for taking this action were that C.G. felt uncomfortable attending WWHS because of the sexual abuse situation and that C.G.’s school problems had increased due to the placement in the after school alternative program, which Plaintiff felt was inappropriate. C.G. began attending the Tides School on September 4, 2007.

Mr. Vigeant sent Plaintiff a letter on September 14, 2007, in which he indicated that the District would not accept financial responsibility for Plaintiff’s unilateral placement of C.G. at the Tides School.  He further indicated that the District’s offer to place C.G. in the Civic Center program would address all of her needs and provide her with FAPE and that, therefore, the District had no obligation to fund the placement at the Tides School.  The 9/14/07 Letter concluded by stating that a copy of Plaintiff’s due process  rights was enclosed and that Plaintiff should contact Mr. Vigeant if she wished to set up an IEP meeting.  

Court held that School District offered student a FAPE and denied request for tuition reimbursement and private school placement.

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