Special Education Law Blog

ACLU files suit in Michigan

The Michigan ACLU has taken the unprecedented step of filing a class action lawsuit in July against the Highland Park School District, the state of Michigan, and other governmental entities for failing to teach the students in the Highland Park School District how to read.  Kary Moss, executive director of the Michigan ACLU, said “This is not a pro or anti-charter case. . . This is not a pro or anti-teacher case.  This is not a pro or anti-emergency manager case. This case, simply put, is about the right of children to read, a right guaranteed under the constitution and laws of this state.” 

 The ACLU has carefully jockeyed to buttress its argument that the right to read is a civil right for the students in Michigan. Although the ACLU acknowledges that state courts have not recognized education as a fundamental right granted by the Constitution, the ACLU points out that the Supreme Court has referred to education as “not merely some governmental benefit which is indistinguishable from other forms of social welfare legislation.”   Additionally, the Michigan Supreme Court has declared that “education is perhaps the most important function of state and local governments,” and the Michigan Constitution “imposes an obligation” on the state to offer a free public elementary and high school education. 

School District Predetermines Placement Denies Student FAPE

Predetermination at IEPs is a frequent charge against school district but often very hard to prove. In the recent case out of Arizona, Deer Valley Unified School District, 111 LRP 71612 (November 1, 2011) case the school district informed the parents in writing what the placement would be, but the team was prepared to hear the parents' position as to why the placement was wrong, and in that way the parents were allowed to "participate" and in the school's view they had not predetermined the placement.  The ALJ wryly rejected this argument stating:

"One wonders what Respondent School District would think if, at the beginning of a hearing, the Administrative Law Judge announced that he has reviewed the exhibits and made a decision for the parent, but will keep an open mind and reconsider his decision upon presentation of further evidence at the hearing."

While most school district's are not so brazen as to publish their predetermination, it does happen on occasion, and parents should be on the look out for such statements that are clearly indicative of predetermination.  In most cases more inferential arguments on the issue of predetermination are not likely to succeed.

Case Rules No Fee Shifting to Schools from Parents

Since IDEA 2004 became the law one topic that has been troubling parents is the prospect of the school district shifting fees to parents when they file due process.  In an Arizona case, the 9th Circuit Court of Appeals, ruled that since the parents' claim could have resulted in remedies in their favor their claim was sound and there could be no fee shifting. The parents lost the due process but were not held responsible for their school district's fees in excess of $140,000 (that number alone is truly astounding for a due process case even with an appeal).

In R.P. ex.rel. C.P. v. Prescott Unified School District, 56 IDELR, (9th Cir. 2011) ruled that the parents' failure to obtain relief and win their case did not mean that the case was baseless or frivolous.  This case is consistent with a decision out of Missouri where the court similarly turned down the district's efforts to shift fees to parents for losing a due process. Under the current law, parents should bring cases that are well founded in the law and facts without fear of being tagged for the school district's fees in the event that they do not win the case.  Winning or losing the case is not the standard for school's to shift fees claims to parents. It is highly advisable to consult an experienced attorney in the area of special education law to make sure that any due process claim is in fact well-founded in IDEIA and that the facts are sound to go forward with a due process filing.

Forest Grove Case an Argument for Mediation

The Forest Grove, a case that went up to the U.S. Supreme Court and was decided for the parents, and remanded back to the lower courts for more adjudication, has finally resulted in a ruling for the school district. The 9th Circuit ruled that the student was placed in a residential placement for drug use which is a "non-educational need."   Download 0461_0001. 

I have trouble with this decision because many students who have not had their educational needs met or even evaluated, resort to drugs and that frequently is not the cause of the their educational issues. Even  more troubling is the magnitude of the fees expended on both sides so that there really is no winner in this case.  I imagine if the district had been willing to bend a little in mediation, reasonable parents and their attorney could have reached a compromise without spending over $750,000 in fees collectively for both sides

Bullying In Class, On Playgrounds and Online: Schools Still Out of Touch

The Office for Civil Rights recently provided guidance on when bullying can rise to the level of a federal civil rights violation. Discrimination based on disability status was a topic covered in the OCR letter. Section 504 of the Rehabilitation Act and the Americans with Disability Act (ADA) prohibit disability-based discrimination. The recent OCR letter outlines several examples of harassment and discrimination, here is just one example and the letter's response: 

Several classmates repeatedly called a student with a learning disability "stupid," "idiot," and "retard" while in school and on the school bus. On one occasion, these students tackled him, hit him with a school binder, and threw his personal items into the garbage. The student complained to his teachers and guidance counselor that he was continually being taunted and teased. School officials offered him counseling services and a psychiatric evaluation, but did not discipline the offending students. As a result, the harassment continued. The student, who had been performing well academically, became angry, frustrated, and depressed, and often refused to go to school to avoid the harassment.

In this example, the school failed to recognize the misconduct as disability harassment under Section 504 and Title II. The harassing conduct included behavior based on the student's disability, and limited the student's ability to benefit fully from the school's education program (e.g., absenteeism). In failing to investigate and remedy the misconduct, the school did not comply with its obligations under Section 504 and Title II. 

This is just one example of the type of discrimination that is occurring in schools across the country. Bullying is an issue that we hear about from parents far too often. It is important that parent's and student's understand their rights and that schools are held accountable for turning a blind eye. A critical element of establishing responsiblity is for the parent to write to adminstrative staff who have the power and control to make meaningful changes and after being informed failed to take reasonable actions.  It is also important for parents to review and know the bullying and harassment policies for the school/district.

Fortunately President Obama has brought the power of the presidency to this issue. Many schools that I see, however, are in a profound state of denial when it comes to bullying. I have even had a few schools who meet parents' cliams of bullying with bullying conduct of their own to squelch advocacy on this topic. We should mark the just passed "Columbine" anniversary with more action especially since bullying is still so prevalent in our schools.

 

U.S. Supreme Court Seeks Opinion from Justice Department on Child Find Issue

The Supreme Court asked the Obama administration early this week for its views on whether a parent may bring a negligence claim against a school district that allegedly failed to identify a student's disabilities. In the case out of California, the 9th circuit recently ruled that there was a broad jurisdictional mandate under IDEA, the federal special education law, and that in the case there was "willful inaction" on the district's part in the face of numerous "red flags" about the student's disabilities. 

The case involves a student out of Compton, when the student was in 10th grade, her teachers expressed concerns that her work was "gibberish and incomprehensible" and that she was not passing her classes. The school district referred the girl to an outside counselor and she was referred for an evaluation for possible learning disabilities. In this case, the district did not follow the recommendation, and it promoted the girl to the 11th grade. The mother then formally requested an IEP and that the student be found eligible under LD. 

The mother brought a claim under the IDEA. She argued that the school district failed to meet IDEA's "child find" requirement. An administrative law judge largely sided with the family, ordering as much as 150 hours of compensatory tutoring for the girl's lost educational opportunities and failure to make progress. 

NY Court Rules Parents Entitled to Retroactive Payment of Tuition

School district's have a nearly infinite ability to argue for the most strained construction of the law. The make these arguments because given the conservative nature of the judiciary they may just meet with a positive reception to their strained arguments. Moreover, the the old legal adage applies that "if the law is your side your pound the law, if the facts are on your side you pound the facts, and if neither are on your side you pound the table." In the case A. ex.rel.D.A. v. N.Y. Department of Education, 2011 U.S. District. Lexis 9475 (S.D.N.Y.2/1/11), the parents won their claim for a private  unilateral placement for their child. The child was enrolled for some period of time, the parents had not paid the past tuition but it was due and owing to the private school.  The school district argued that the court could not order reimbursement for past tuition because that remedy only applied when the parents had the ability to pay tuition and in fact had paid.

The court rejected the school district's argument finding no support for in IDEIA for this position. It applied the well established statutory principle, that permits the court to fashion a necessary remedy to provide the student with a FAPE. It further concluded that there was nothing in the law that limited the court's ability to order retroactive reimbursement where the parents had proven their case and the fairness of the evidence weighed in favor of ordering the reimbursement. The fact that the law in no way created a limitation on the right of the court to fashion a remedy, in no way deterred the school district from making such a baseless argument.

As a practical matter, a contrary ruling would have meant that only parents with greater resources are entitled to receive a full measure of FAPE. In addition, if the retroactive payment was denied, the child could have been kicked out of the private school making the victory totally hollow. Moreover, if the parents had to pay back the retroactive tuition their entitlement to a FREE appropriate public education would hardly be free at all.  Here is one case to celebrate that the court actually applied the law to the facts with a healthy measure of common sense and reached the correct conclusion. Congratulations to the family for winning and sustaining the fight especially in the face of such arguments!

 

Death of Child in School Leads to Possible Liability

Imposing money damages on schools for violations of IDEA rights and other violations is far from easy. Parents are often dismayed to learn that very blatant and egregious violations of their rights will not support an action for damages.  Failing to provide services, prompt evaluation or implementation of the IEP are all bad, and can result in a hearing officer ordering compensatory education and reimbursement to the parents for relevant out of pocket expenses, but not damages. To reach the level where a court will allow a case for monetary damages to go forward the facts must be  "shocking to the conscience."

A tragic recent case from Detroit Michigan unfortunately helps illustrate what facts are shocking to the conscience. (See Shinn v. Detroit Public Schools, 09-13799, February 2, 2011 Download 4924_0001) A paraprofessional working with a student with CP and a seizure disorder berated the child, caused her to fall and have a seizure.  A witness stated that as the paraprofessional pushed the child she yelled "you know I don't like you." The child died a few days later following the incident.

Usually there are no witnesses who are willing to step up and testify, and the facts of these cases are not so lopsided. Too often there is an element of "he/she had it coming" when a student is injured at the hands of a staff member.  Cases where the court allows the case to go ahead are infrequent, albeit the number of students being injured in school unfortunately is not.

Special Education Litigation on the Rise?

A recently published article reveals that the number of reported special cases has increased over time. That does not square with the numbers and my experience in Illinois. The empirical data shows an overall decrease in cases going to hearing. It may be that more cases are being brought by schools to block IEEs. Also given the increasing evidence of zero tolerance for behaviors, more students are backed into a corner and need to sue to protect their rights since there is no partner to find common and reasonable ground to negotiate. Child find is another area that is ripe for litigation in the wake of so many misconceptions regarding RtI (more on this later). All of these are likely areas for dispute but not as much in Illinois even though, in the city I am filing many due process cases ostensibly over abuse of the RtI process.

Student with LD Prevails in 9th Circuit Case

A  California school district (Compton) lost its appeal in the 9th Circuit Court of Appeals for failing to identify the student as needing an IEP. The San Francisco Chronicle reported:

"Parents of a child with learning disabilities can sue a school district for ignoring the problems and failing to arrange tutoring or other educational help, a federal appeals court ruled Monday."

The student's work was described as being "gibberish" but the school failed to discharge its child find responsibilities to identify the disability. The fact that after Forest Grove that this case was not settled makes it newsworthy.

What is noteworthy about this case is that the decision was 2-1. One Judge on the panel reportedly stated:

"Dissenting Judge N. Randy Smith said the law authorizes parental complaints only to protest a school's wrongful actions, not its inactions or negligence."

Huh, really omissions to act are in this instance the flip side of the same coin. The U.S. Supreme Court in Forest Grove noted that failure to act was actionable. In fact the Supreme Court stated that:

"Indeed, by immunizing a school district's refusal to find a child eligible for special education services no matter how compelling the child's need, the School District's interpretation [of the statute] would produce a rule bordering on the irrational."

Apparently that "irrational" analysis has not trickled down to this Federal Court Judge in California. It always amazes me how some  courts and hearing officers can distort even clear and basic principles of law to reach the conclusion that lets the school district off the hook, which fortunately in this instance did not happen.