What’s New From the Courts: Around the Country and Within the 11th Circuit

By Christopher P. Borreca Thompson & Horton LLP (713) 554-6740 [email protected]

Alabama CASE Annual Conference, October 10, 2011 Orange Beach, Alabama

I. Evaluation Issues

1. COMPTON UNIFIED SCHOOL DISTRICT, v. ADDISON 54 IDELR 71 598 F.3d 1181 U.S. Court of Appeals, Ninth Circuit March 22, 2010

Case Summary

A district could not avoid a child find claim simply by pointing out that it did not take any affirmative action in response to high schooler's academic and emotional difficulties. Concluding that the district's decision to ignore the student's disability amounted to a child find violation, the 9th Circuit affirmed a decision in the parent's favor. The district argued that the IDEA's written notice requirement applies to proposals or refusals to initiate a change in a student's identification, evaluation or placement. Because it chose to do nothing, the district argued, its conduct did not qualify as an affirmative refusal to act. The 9th Circuit disagreed, noting that it would not interpret a statute in a manner that produced absurd results. The court pointed out that the IDEA provision addressing the right to file a complaint is separate from the written notice

1 requirement. "Section 1415(b)(6)(A) states that a party may present a complaint 'with respect to any matter relating to the identification, evaluation, or educational placement of the child,'" U.S. Circuit Judge Harry Pregerson wrote. The court observed that the IDEA's written notice requirement did not limit the scope of the complaint provision. By alleging that the district failed to take any action with regard to the student's disabilities, the parent pleaded a viable IDEA claim. U.S. Circuit Judge N. Randy Smith dissented from the majority's opinion. Determining that a "refusal" to identify or evaluate requires purposeful action by the district, the judge concluded that the parent did not have the right to bring a child find claim.

2. A.P. v. WOODSTOCK BOARD OF EDUCATION 370 F. App'x 202 55 IDELR 61 U.S. Court of Appeals, Second Circuit March 23, 2010

Case Summary

Despite a Connecticut district's failure to fully implement the IEP of a 14-year old student with a nonverbal learning disability, it was not obligated to reimburse his parents for his private school tuition. The parents alleged that the district denied the student FAPE by failing to assign a teacher's aide to his classroom. The district notified the parent on the first day of school of the oversight and offered to transfer the student to another class. The parent asked that he remain in his original classroom for the time being. After several failed attempts by the district to resolve the situation, the parent argued in due process proceedings that the district should have assigned an aide to the student's classroom because it would have been too disruptive to move him. "At the point that the mistake was discovered, only half a day of school had passed. It is disingenuous for the parents to argue that moving [the student] after only a half a day to another classroom would have been disruptive," the U.S. District Court, District of Connecticut wrote. In an unpublished decision, the 2d Circuit adopted the reasoning of the District Court in rejecting the parents' reimbursement claim. The district followed the parent's instructions in good faith and then attempted to resolve the situation to the parent's satisfaction. When the parent informed the teacher that the absence of an aide resulted in a few forgotten homework assignments, the teacher agreed to help the student remember his homework materials. Noting that the student made progress, both academically and socially, despite the lack of a teacher's aide in his classroom, the 2d Circuit held that the district's error did not amount to a material implementation failure.

2

3. 56 IDELR 50 Memorandum to: State Directors of Special Education Office of Special Education Programs OSEP 11-07 January 21, 2011

Case Summary

The use of RTI does not diminish a district's obligation under the IDEA to obtain parental consent and evaluate a student in a timely manner, OSEP informed state education directors. When there is reason to suspect the student may have a disability and need special education and related services as a result, the IDEA's initial evaluation provisions kick in, regardless of whether the district plans to or is currently utilizing RTI strategies with the student. OSEP noted that the IDEA implementing regulation at 34 CFR 300.301(b) allows a parent to request an initial evaluation at any time. Thus, districts cannot point to their use of RTI strategies as a basis for delaying or denying the evaluation. If the district agrees with the parent that the student may be eligible, it must obtain parental consent within a reasonable period of time and evaluate the student within 60 days or in accordance with the state deadline. OSEP noted that a district is free to deny an evaluation in response to a referral if it does not suspect a disability. However, it must notify the parent of the basis for its decision, and that basis cannot be that the district is waiting to see how the child responds to general education interventions. "It would be inconsistent with the evaluation provisions at 34 CFR 300.301 through 34 CFR 300.111 for an LEA to reject a referral and delay provision of an initial evaluation on the basis that a child has not participated in an RTI framework," OSEP Director Melody Musgrove wrote.

4. D.A. v. HOUSTON INDEPENDENT SCHOOL DISTRICT Defendants-Appellees 629 F.3d 450 55 IDELR 243 U.S. Court of Appeals, Fifth Circuit December 28, 2010

Case Summary

Noting that a showing of bad faith or gross misjudgment is necessary to establish a claim of intentional discrimination under Section 504, a three-judge panel of the 5th U.S. Circuit Court of Appeals dismissed a mother's claims against her child's former district. The court reasoned that school officials' conduct in delaying the first-grader's referral amounted to negligence at worst. The student exhibited difficulty behaving and following directions. Instead of evaluating the student, as his parent requested, the district removed him from class so that he could complete his work, and then had the parent sit with him during class. A hearing officer determined that the district violated child find. The District Court agreed at 54 IDELR 168. However, it denied monetary damages on the basis that the parent failed to state a viable Section 504 or ADA claim. The parent appealed. The 5th Circuit explained that to state a viable intentional discrimination claim under Section 504 when the claim is predicated on disagreement over compliance with the

3

IDEA, a plaintiff must show officials acted in bad faith or departed grossly from accepted professional standards. In this case, the alleged conduct did not rise to that level. "[E]ven though the hearing officer's findings may suggest an untimely diagnosis of [the student's] psychoeducational problems, the error reflects no more than negligence," U.S. Circuit Judge Edith H. Jones wrote. The court also noted the hearing officer's finding that the district had good intentions, including when it tried to address the student's difficulties prior to referral. The district delayed the evaluation because it believed its behavioral interventions would succeed and the student's teacher did not provide proper documentation of his behavior. "That [the district] authorized an evaluation ... within two months after its initial denial further demonstrates at most misjudgment, not bad faith," Judge Jones wrote. Because there was no evidence of bad faith or gross misjudgment, the 5th Circuit held that the District Court correctly dismissed the case.

5. K.S. v. FREMONT UNIFIED SCHOOL DISTRICT 56 IDELR 190 U.S. Court of Appeals, Ninth Circuit April 11, 2011

Case Summary

Although a California district was unable to assess a student's cognitive abilities using an IQ test, the 9th Circuit affirmed a District Court's determination that the student had an intellectual disability as well as autism. In an unpublished decision, the 9th Circuit held that the student's IEPs accurately reflected her abilities. The court rejected the parents' argument that an IQ score was a "legal prerequisite" for determining that a student has an intellectual disability. Although the student's distractibility and limited ability to maintain social interaction prevented the district from using an IQ test to assess her cognitive abilities, other evidence showed that the student had an intellectual disability. "The ALJ's determination that [the student] had a cognitive disability was based on expert testimony, [the student's] results on alternative cognitive tests, [the student's] IEPs, and [the student's] progress reports from school," the 9th Circuit wrote in an unpublished decision. Given the nature and extent of the student's disabilities, the 9th Circuit could not fault the District Court's finding that the student's progress was meaningful and significant. The 9th Circuit also noted that the district had no obligation to use an ABA-based teaching methodology when the student could benefit from an eclectic approach. The court affirmed a decision reported at 53 IDELR 287 that the district offered the student FAPE.

4

6. 56 IDELR 140 Letter to Zirkel Office of Special Education Programs January 6, 2011

Case Summary

Districts that include RTI as a component of their SLD identification procedures may have to change their approach when it comes to determining the eligibility of parentally placed private school children. OSEP explained that if a private school within the district's jurisdiction does not utilize RTI, the district is neither required to implement it with the private school student nor entitled to deny a referral or delay the evaluation because the private school did not use it. Moreover, regardless of whether the private school has used RTI, unless the district believes there is no reason to suspect the child is eligible, it must respond to a referral from the school or parent by conducting an evaluation within 60 days or according to the state-imposed time frame. Alternatively, the district can secure an extension of that deadline by mutual written agreement of the parents and the district's eligibility team. In any case, it will likely have to rely on other data. "If an RTI process is not used in a private school, the group making the eligibility determination for a private school child may need to rely on other information, such as any assessment data collected by the private school that would permit a determination of how well a child responds to appropriate instruction, or identify what additional data are needed to determine whether the child has a disability," OSEP Director Melody Musgrove wrote.

II. Eligibility Issues

1. 54 IDELR 307 MARSHALL JOINT SCHOOL DISTRICT NO. 2 v. C.D. 616 F.3d 632 U.S. Court of Appeals, Seventh Circuit August 2, 2010

Case Summary

A physician's belief that a grade schooler with a rare genetic condition could not participate safely in regular PE proved to be no match for an IEP team's eligibility determination. Concluding that the student did not need specialized instruction to receive an educational benefit, the 7th Circuit reversed a decision at 51 IDELR 242 that he was eligible for IDEA services. Because the ALJ's decision focused solely on the student's need for adapted PE, the 7th Circuit limited its review to whether the adapted PE services the student was receiving under a stay-put IEP were necessary. The court criticized the ALJ's finding that the student's educational performance could be affected if he experienced pain or fatigue at school. "This is an incorrect formulation of the [eligibility] test," U.S. Circuit Judge Daniel A. Manion wrote. "It is not whether something, when considered in the abstract, can adversely affect a student's educational

5 performance, but whether in reality it does." The court further held that the ALJ incorrectly relied on testimony from the student's physician that the student needed adapted PE. The evidence showed that the physician based her opinion almost entirely on information obtained from the student's mother. She evaluated the student for only 15 minutes, and did not conduct any testing or observation of the student's educational performance. In contrast, the student's adapted PE teacher testified that the student successfully participated in a regular PE class with modifications. The 7th Circuit explained that the ALJ erred in crediting the physician's opinion over that of the IEP team, which included the adapted PE teacher. "A physician cannot simply prescribe special education; rather, the [IDEA] dictates a full review by an IEP team," Judge Manion wrote. While the team was required to consider the physician's opinion, it did not have to defer to her view about the student's special education needs. The 7th Circuit further noted that the student's need for physical and occupational therapy did not make him eligible for IDEA services, as they did not amount to specialized instruction.

2. 56 IDELR 2 HANSEN v. REPUBLIC R-III SCHOOL DISTRICT 632 F.3d 1024 U.S. Court of Appeals, Eighth Circuit January 21, 2011

Case Summary

A Missouri district's decision not to submit evidence of a ninth-grader's performance and interpersonal relationships to a due process hearing panel came back to haunt it on appeal. Concluding that the student had an emotional disturbance and an OHI, the 8th Circuit affirmed a District Court's determination that the student was eligible for IDEA services. The 8th Circuit pointed out that the district chose not to present any evidence of its own after the parent presented his case to the hearing panel. Instead, the district asked the panel to grant a judgment in its favor based on the parent's allegedly inadequate evidence -- a request the panel granted. Because the panel did not make any factual findings, the 8th Circuit was free to look at the administrative record and draw its own conclusions. The 8th Circuit held that the student, who had bipolar disorder, was a child with an ED. Not only did the student have multiple disciplinary referrals over the previous four years for threatening students and teachers, fighting with other students, and disrespecting teachers and peers, he struggled to pass his classes and failed a standardized test required to advance to seventh grade. In addition, the 8th Circuit observed that the student exhibited hyperactive, impulsive, and inattentive behavior as a result of his ADHD, and that those behaviors interfered with learning. "Although [the district] correctly states that a diagnosis of ADHD alone does not entitle [the student] to special education services, it fails to cite any evidence in the record supporting the conclusion that ADHD does not adversely affect [the student's] educational performance," the court wrote. The 8th Circuit thus affirmed the District Court's decision that the student was eligible for IDEA services under the categories of ED and OHI. In a concurring opinion, U.S. Circuit Judge Raymond W. Gruender stated that conflicting evidence in the administrative record required the 8th Circuit to defer to the hearing panel's conclusion about the student's eligibility. However, Judge Gruender believed the record

6 supported the 8th Circuit's conclusion that the student was eligible for services as a child with an OHI.

3. 55 IDELR 50 Letter to Weinberg Office of Special Education Programs December 8, 2009

Case Summary

While noting that there is no set timeframe for making an eligibility determination, OSEP informed a special education attorney that it must occur within "a reasonable period of time" after the initial evaluation. The question arose from a situation in which an IEP team purportedly waited a year after an evaluation request to consider a student's eligibility. OSEP explained that under the IDEA implementing regulation at 34 CFR 300.300(c)(1), an initial evaluation must be conducted within 60 days of receiving parental consent for the evaluation, or, if the state establishes a timeframe, within the period set by the state. However, the IDEA does not require that a district make an eligibility determination within a specific number of days after a parent requests an evaluation, after the district receives consent for the evaluation, or after the evaluation is completed. Nevertheless, "Consistent with its child find responsibilities ... a public agency must make eligibility determinations within a reasonable period of time after the evaluation has been conducted to ensure that an eligible child with a disability receives a [FAPE] without undue delay," Acting Director Alexa Posny wrote. OSEP also pointed out that if a parent believes a district is unreasonably delaying an eligibility decision, the parent may address the matter through the IDEA's dispute resolution procedures, including mediation.

4. 55 IDELR 172 Letter to Anonymous Office of Special Education Programs January 13, 2010

Case Summary

The mere fact that a student is "gifted" does not disqualify him from eligibility for special education and related services under the IDEA. OSEP explained to an interested individual that students with high cognition may also have disabilities, such as ADHD, Asperger syndrome, or a specific learning disability, that require IDEA services. OSEP observed that the IDEA does not address the topic of gifted students. However, "It remains the Department's position that students who have high cognition, have disabilities, and require special education and related services are protected under the IDEA and its implementing regulations," OSEP Acting Director Alexa Posny wrote. OSEP pointed out that a student with high cognition and ADHD could be considered to have an other health impairment, and could need special education and related services to address lack of organization skills and difficulty completing homework. Likewise, a gifted

7 student with Asperger syndrome could be eligible under the autism classification and require services to address behavioral or social challenges.

5. 55 IDELR 18 M.B. v. SOUTH ORANGE/MAPLEWOOD BOARD OF EDUCATION U.S. District Court, New Jersey August 3, 2010

Case Summary

A district's seemingly exclusive reliance on a numerical formula to exit a child with an SLD from special education may end up requiring it to fund the child's private schooling. Pointing to language in the district's "statement of eligibility," a District Court determined that an ALJ erred by finding that the district based its eligibility decision on a variety of information. The district used a software program, Estimator-NJ 3.0, which applied a numerical formula to identify severe discrepancy. The program established that the 13-year-old no longer had one. The district issued a "statement of eligibility" reading in part: "based on [the student's] most recent evaluation, her scores were run through the estimator and she no longer meets the criteria." The parents placed her in private school and challenged the district's determination. An ALJ ruled for the district, and the parents appealed. The court pointed out that the IDEA prohibits districts from relying on any one test, formula or procedure for establishing eligibility. 34 CFR 300.304(b)(2). It noted that the district's eligibility statement referred only to the Estimator-NJ results as the reason for its decision. While the district asserted that it also considered evaluations and performance, that data indicated that the student was still struggling in reading and math, even with the special education supports she was receiving, such as in-class assistance and resource room time. Thus, even if it relied on other assessments, the data militated in favor of eligibility, the court ruled. "While the Court does not conclude ... that the computer program is not a tool at the disposal of a school district, the law is clear that determining whether a child is disabled under the IDEA must be based on more than a formula-driven numerical assessment," U.S. District Judge Stanley R. Chesler wrote in an unpublished decision.

III. IEP/FAPE Issues

1. 54 IDELR 121 B.H. v. JOLIET SCHOOL DISTRICT No. 86 U.S. District Court, Northern District of Illinois March 19, 2010

Case Summary

Although it might have been more convenient for the parent of a teenager with ADD to attend an evening IEP meeting, a district's refusal to convene after school hours was no basis for a discrimination claim. There was no allegation that the student was excluded from any program

8 because of her disability, nor was there evidence that the district acted in bad faith or with gross misjudgment. After some team members stated they could not attend during evening hours, the district proposed alternative dates during regular school hours. The student's mother filed a Section 504 lawsuit. In dismissing the parent's claim, the court noted that the parent failed to establish a valid 504 discrimination claim because she did not allege the student was wrongfully excluded from any educational programs. The district conceded that it refused to schedule an after-hours IEP meeting. "[H]owever, this refusal simply does not fall within the bounds of acts prohibited by Section 504, even if it may have been unfair or inconvenient to Plaintiffs in some sense," U.S. District Judge Charles R. Norgle wrote. In addition, the court noted that to establish her 504 claim, the parent had to demonstrate that the district acted with bad faith or gross misjudgment. Tammy S. v. Reedsburg Sch. Dist., 41 IDELR 133 (W.D. Wis. 2003). The court pointed out that the district offered to conduct a meeting on one of many other dates using teleconferencing equipment. Thus, even if its insistence on holding the meeting during the day amounted to excluding the student from a program, there was no evidence that its decision was made with bad faith or gross misjudgment.

2. 51 IDELR 224 Letter to Thomas Office of Special Education Programs June 3, 2008

Case Summary

The fact that a district has a collective bargaining agreement or other agreement that precludes it from holding meetings after hours does not relieve the district of its obligation to facilitate parental participation in IEP meetings. OSEP advised a special education attorney that after- hours meetings are appropriate if necessary to ensure a parent's participation. It is not unreasonable for districts to schedule IEP team meetings only during regular business hours, OSEP observed, as those are the times most suitable for staff members. Moreover, the IDEA's parent participation provision does not restrict LEAs from entering into contractual arrangements requiring meetings to occur during the daytime. However, when parents cannot attend during school hours due to their work schedules or other circumstances, districts "should be flexible in scheduling IEP team meetings to accommodate reasonable requests from parents," OSEP observed. If the district and the parents cannot arrange a suitable meeting time, the district must take other steps to ensure parent participation. Finally, OSEP determined that districts are not obligated to schedule an evening IEP meeting to accommodate a parent's expert. In such a situation, the parent and district could find an alternative means to ensure that the expert's input is communicated to the IEP team.

9

3. 56 IDELR 282 FORT OSAGE R-1 SCHOOL DISTRICT v. Brandon SIMS 641 F.3d 996 U.S. Court of Appeals, Eighth Circuit June 17, 2011

Case Summary

A Missouri district's alleged failure to identify a 10-year-old girl as a child with autism did not invalidate the student's IEP. Noting that the IEPs addressed all of the student's unique needs and would have allowed her to make educational progress, the 8th Circuit held that the IEP was procedurally and substantively appropriate. The court explained that the IDEA takes an individualized, needs-oriented approach to special education and related services. An IEP should not be based on a student's disability classification, but rather on the student's unique disability- related needs. As such, a parent seeking relief on the grounds of misclassification must demonstrate that the district's failure to properly identify the student's disability resulted in a loss of educational opportunity. The 8th Circuit held that the parents failed to meet that standard. Even if the student did have autism -- an issue that the court declined to address -- there was no evidence that the IEP's alleged failure to mention autism resulted in a denial of FAPE. "As the [hearing panel] and the District Court found, the thirty-one page IEP and accompanying two- page behavioral plan detailed, at length, [the student's] current educational status, set meaningful goals, and provided a tremendous amount of resources to assist [the student]," U.S. Circuit Judge Michael J. Melloy wrote. Furthermore, the court observed that a change in the student's classification would not have resulted in a material change to the IEPs' contents. Concluding that the IEP was appropriate regardless of the student's classification, the 8th Circuit affirmed a decision at 55 IDELR 127 that the district offered the student FAPE.

4. 55 IDELR 215 110 LRP 73218 A.M. v. MONROVIA UNIFIED SCHOOL DISTRICT 627 F.3d 773 U.S. Court of Appeals, Ninth Circuit December 15, 2010

Case Summary

The fact that a transfer student with multiple, severe disabilities had a newly developed IEP calling for a general education placement did not require his new district to place him in a mainstream setting. Concluding that the district only had to provide services comparable to those in the last-implemented IEP, the 9th Circuit upheld the student's interim placement on home study. California's education code requires the new district to provide "services comparable to those described in the previously approved IEP" until it adopts that IEP or develops and implements one of its own. The parents noted that the IEP it recently developed with the student's previous district, an online charter school, identified the student's placement as a third-

10 grade general education classroom. As such, they argued that California law obliged the new district to provide a similar placement. The 9th Circuit disagreed. It noted that the state education code was modeled on the IDEA, which refers to the IEP "in effect" at the time of the student's transfer. The court agreed with the ALJ's analysis, reported at 47 IDELR 28, that the IDEA and the California code refer to the last-implemented IEP. "[The ALJ's] reasoning is persuasive: providing services in accordance with the previously implemented IEP effectuates the statute's purpose of minimizing disruption to the student while the parents and the receiving school resolve disagreements about proper placement," U.S. Circuit Judge Alfred T. Goodwin wrote. Because the charter school never implemented the IEP, the 9th Circuit held that the district did not err in continuing the student's in-home instruction until it could evaluate his needs. The court reversed an award of $49,245 in attorney's fees to the district, however, concluding that the student's death while the parents' appeal was pending did not moot their claims for reimbursement or damages. The 9th Circuit remanded the case to the District Court for a determination of whether the district was entitled to attorney's fees.

5. 54 IDELR 60 Letter to Cox Office of Special Education Programs August 21, 2009

Case Summary

OSEP explained what LEAs must do when parents who both have legal authority to make educational decisions on behalf of a child clash on revoking consent, but the guidance won't make LEAs' job much easier. One thing is clear -- the fact that only one parent wants to stop special education and related services does not give the agency any discretion. Once a parent authorized to do so revokes consent, the LEA must provide prior written notice in accordance with 34 CFR 300.503, cease providing the services, and treat a subsequent evaluation request by either parent as a request for an initial evaluation. Acting Director Patricia J. Guard observed that the implementing regulation at 34 CFR 300.30(b)(1) provides that the biological or adoptive parent is the parent for purposes of revoking consent, unless he or she lacks legal authority to make educational decisions. Therefore, as long as the parent has such authority, the LEA must accept that parent's revocation. Further, a later evaluation request by either parent must be treated as a request for an initial evaluation under 34 CFR 300.301, not a reevaluation. "OSEP acknowledges that disputes between parents who share the right to make educational decisions for their child, and who disagree about the provision of special education and related services for their child, may place an LEA in a difficult situation," Guard wrote. Still, under 34 CFR 300.300(b)(4)(ii), the LEA may not use the IDEA's due process procedures to overcome one parent's revocation. Nor may a parent use due process to stop the other's revocation. Such disputes must be settled privately or through whatever state law processes exist, Guard explained.

11

6. 56 IDELR 237 Letter to Ward Office of Special Education Programs August 31, 2010

Case Summary

While acknowledging that challenges may arise when parents disagree, OSEP declined to amend its earlier guidance reported at 54 IDELR 60 that it only takes one parent to withdraw consent to the continued provision of special education and related services -- even if it was the other parent who gave the original go-ahead. OSEP was responding to a request by a state special education attorney, who argued that OSEP should not interpret Part B to allow the non-consenting parent to undo the other parent's consent. OSEP observed that under Part B, any person who meets the definition of "parent" in 34 CFR 300.30(a) with legal authority to make educational decisions on the child's behalf has the right to revoke consent to the child's continued receipt of special education and related services. Part B does not require a district to obtain consent from both parents with legal authority to make education decisions. "Further, Part B does not condition a [district's] ability to accept ... a revocation of consent ... on the agreement of the child's other parent, who provided consent for the initial provision of special education and related services," OSEP Director Melody Musgrove wrote. Rather, the regulation at 34 CFR 300.300(b)(4)(i) requires a district that receives a written revocation from either authorized parent to provide prior written notice to both parents and cease the provision of services.

7. 54 IDELR 112 K.L.A. v. WINDHAM SOUTHEAST SUPERVISORY UNION, DUMMERSTON SCHOOL DISTRICT 371 F. App'x 151 U.S. Court of Appeals, Second Circuit March 30, 2010

Case Summary

The fact that a teenager's parents opposed her placement in a public high school's life education program did not mean that the district's decision to place the student in that program was procedurally deficient. Noting that the parents participated in the IEP process, the 2d Circuit held that the specific location of the student's services was a matter for the district to decide. The court first rejected the parents' claim that a general education teacher's absence from certain IEP meetings amounted to a denial of FAPE. Not only did the teacher participate in IEP meetings to the extent appropriate, but there was no evidence that his increased presence would have resulted in a different placement offer. As for the parents' claim that they were excluded from discussions about their daughter's placement, the court explained that the term "educational placement" only encompasses the student's placement on the LRE continuum. Under the regulations in effect in Vermont at the time, the district had the exclusive right to decide the specific location of the student's services. "Though the parents are afforded input as to the determination of the general

12 characteristics of an appropriate educational placement, they cannot summarily determine a specific placement," the 2d Circuit wrote in an unpublished decision. The court pointed out that the parents participated substantially in all discussions about the student's IEP. Finding no evidence of a procedural violation, the 2d Circuit affirmed a judgment in the district's favor.

8. 55 IDELR 107 Letter to Richards Office of Special Education Programs January 7, 2010

Case Summary

In response to a question regarding whether an IEP team's chairperson may override a consensus reached by the rest of the team, OSEP observed that it is the district that is ultimately responsible for ensuring that a student is offered an appropriate program. Thus, if all team members do not agree, it is up to the district to determine appropriate services. Under the IDEA implementing regulation at 34 CFR 300.320, a child's IEP team, including the child's parents, is responsible for developing, reviewing and, if appropriate, revising the child's IEP in accordance with the IDEA implementing regulations at 34 CFR 300.320 through 34 CFR 300.324. However, it is the district that is finally accountable for the contents of the program. "It is not appropriate to make IEP decisions based on a majority 'vote,'" OSEP Acting Director Alexa Posny wrote. If the team cannot reach a consensus, the district must determine appropriate services and provide parents with prior written notice of the offer and of the parents' right to seek resolution of any disagreements by initiating an impartial due process hearing.

9. 55 IDELR 61 A.P. v. WOODSTOCK BOARD OF EDUCATION 370 F. App'x 202 U.S. Court of Appeals, Second Circuit March 23, 2010

Case Summary

Despite a Connecticut district's failure to fully implement the IEP of a 14-year old student with a nonverbal learning disability, it was not obligated to reimburse his parents for his private school tuition. The parents alleged that the district denied the student FAPE by failing to assign a teacher's aide to his classroom. The district notified the parent on the first day of school of the oversight and offered to transfer the student to another class. The parent asked that he remain in his original classroom for the time being. After several failed attempts by the district to resolve the situation, the parent argued in due process proceedings that the district should have assigned an aide to the student's classroom because it would have been too disruptive to move him. "At the point that the mistake was discovered, only half a day of school had passed. It is disingenuous for the parents to argue that moving [the student] after only a half a day to another classroom would have been disruptive," the U.S. District Court, District of Connecticut wrote. In

13 an unpublished decision, the 2d Circuit adopted the reasoning of the District Court in rejecting the parents' reimbursement claim. The district followed the parent's instructions in good faith and then attempted to resolve the situation to the parent's satisfaction. When the parent informed the teacher that the absence of an aide resulted in a few forgotten homework assignments, the teacher agreed to help the student remember his homework materials. Noting that the student made progress, both academically and socially, despite the lack of a teacher's aide in his classroom, the 2d Circuit held that the district's error did not amount to a material implementation failure.

10. 56 IDELR 51 Letter to Johnson Office of Special Education Programs June 3, 2010

Case Summary

The provision in the IDEA requiring consent prior to an initial evaluation, reevaluation, or the initial provision of special education and related services does not require a parent to have an in- depth understanding of all of the services a child's IEP might provide, or every aspect of a proposed evaluation, OSEP explained to a concerned parent's attorney. Rather, for consent to be "informed," the parent must merely have a general understanding of the activity for which he or she is providing consent. The attorney, concerned that some parents don't receive services because they won't sign, suggested that they merely be required to agree to the carrying out of the activity, and not be required to signify their comprehension of it. OSEP noted that districts must, pursuant to the IDEA implementing regulation at 34 CFR 300.9(a), fully inform the parent of all information relevant to the activity for which consent is sought, so that the parent can indicate in writing that he or she understands what the district is asking them to consent to. If, for example, the district seeks consent for the initial provision of special education and related services, informed consent requires that the parent consent to their provision generally. "The public agency is not asking the parent to signify that he or she understands the precise nature of all of the services or activities that would be included in an [IEP] if the public agency were to develop an IEP for their child," OSEP Acting Director Alexa Posny wrote.

11. 56 IDELR 108 Letter to Brousaides Office of Special Education Programs June 9, 2010

Case Summary

Educational agencies must maintain documentation that they are complying with Part B, including providing FAPE to children with disabilities, OSEP told a school attorney. However, what form that documentation must take is up to individual states. The attorney asked whether a district's failure to keep contemporaneous written documentation that a child's IEP's services,

14 accommodations, and modifications are delivered would violate the IDEA. OSEP remarked that Part B does not specifically require public agencies to document that a child is receiving FAPE. However, the Education Department General Administrative Regulations obligate a state or subgrantee to keep records showing its compliance with federal law, including Part B. Thus, educational agencies must maintain documentation sufficient to show they are providing FAPE in accordance with the child's IEP. The type of documentation that an agency must produce, however, is another matter. "[W]hether a school district is required to maintain 'contemporaneous written documentation' to demonstrate that a child with a disability received the services in the child's IEP would be determined by the State," OSEP Acting Director Alexa Posny wrote.

12. 56 IDELR 217 MAHONEY v. CARLSBAD UNIFIED SCHOOL DISTRICT U.S. Court of Appeals, Ninth Circuit April 28, 2011

Case Summary

The parents of a 12-year-old with an SLD could not establish an IDEA violation by arguing that their son's IEP team did not include the director of his current private reading program. The 9th Circuit held that the team's composition complied with the IDEA because it included an individual who provided the student with related services in the past. The IEP team convened in 2008 included a therapist who had provided speech and language services to the student in 2005. The parents contended that failing to include a current instructor denied him FAPE. Under the IDEA, an IEP team must include "Not less than one special education teacher of the child, or where appropriate, not less than one special education provider of the child." 34 CFR 300.321(a)(3). Citing R.B. v. Napa Valley Unified School District, 48 IDELR 60 (9th Cir. 2007), the 9th Circuit noted that the requirement is satisfied if the team includes a special education teacher or provider who actually taught the student at some point. There is no requirement that the team include the current teacher or provider. Here, the therapist provided related services in the past, and also evaluated the student in 2007. "[The therapist's] presence at both IEP team meetings thus satisfied the 'actually taught' requirement," the 9th Circuit wrote in an unpublished decision. The court also rejected the argument that the provider must have provided services in the area of the child's current disability, observing that the IDEA contains no such requirement. Moreover, even if the parents had shown a procedural violation, there was no evidence of any impact on the child's receipt of FAPE or on the parents' participation rights. The court therefore affirmed the District Court's dismissal of the lawsuit.

15

13. 53 IDELR 279 LESSAR, v. WILTON-LYNDEBOROUGH COOPERATIVE SCHOOL DISTRICT 592 F.3d 267 U.S. Court of Appeals, First Circuit January 20, 2010

Case Summary

The parents of a 19-year-old student with multiple, severe disabilities could not convince the 1st Circuit that their daughter's proposed 2005-06 IEP was inappropriate. Not only did the program address the student's literacy needs, the court observed, but the proposed SDC placement was the student's LRE. The court first addressed the parents' claim that the IEP did not address the student's reading difficulties. Although the district agreed to use the parents' requested methodology, the parents claimed that the student's instructor lacked the hands-on experience needed to use that method. The 1st Circuit disagreed. Noting that the student's progress in reading was commensurate with her intellectual ability, the court held that the district's methodology was appropriate. As for the student's placement, the court rejected the parents' argument that the SDC was a more restrictive placement than home-based instruction. New Hampshire regulations define SDC placements as being less restrictive than home instruction. The court recognized that the facility in which the SDC was located also housed individuals with severe disabilities. However, it rejected the notion that the facility was more akin to a hospital or institution -- the most restrictive setting identified in the state regulations. "The [facility] ... also runs an approved, licensed, special day school, and [the student] attended that day school and returned home each evening to spend time with her family and in her community," the 1st Circuit wrote. The court further noted that the regulations define home-instruction as receiving all or part of a special education program in the home. Thus, while the parents' proposed home program included community-based interaction, it was a more restrictive placement under state law. The 1st Circuit affirmed the District Court's decision at 50 IDELR 278 that the district offered FAPE in the LRE.

14. 55 IDELR 157 C.G. v. NEW YORK CITY DEPARTMENT OF EDUCATION 752 F. Supp. 2d 355 U.S. District Court, Southern District of New York October 25, 2010

Case Summary

Neither a child's behavioral or toileting needs nor the protestations of his parent established that a New York district had to continue providing afterschool ABA services to a child with autism. The District Court affirmed a state review officer's decision that the child's IEP was calculated to confer meaningful benefit even without the services. The student attended a day school for several years where he was assigned a paraprofessional for behavioral issues. The district also provided parent training and 15 hours of afterschool one-to-one ABA services per week. The

16 parents argued that the afterschool services were essential for the child to receive FAPE. The SRO disagreed, and the parent challenged the decision in federal court. The District Court noted that FAPE requires an IEP that is likely to provide progress and not regression. The question was whether the progress the student achieved in school was only possible when coupled with his afterschool services. According to his day school teacher, the person most familiar with his educational development, continuing the services would be a "benefit" rather than a necessity for progress. In fact, the teacher conceded that the student could meet all of his short-term academic goals in about a year without that benefit. Furthermore, although the day school director indicated the family "required additional support," the district was addressing those needs. "While some areas, such as toilet training, may be difficult to address in school, such limitations are not sufficient to demonstrate that the IEP is calculated to yield regression rather than progress ... especially in light of the parent training conducted by [the day school] to help deal with such issues," U.S. District Judge Barbara S. Jones wrote.

15. 54 IDELR 141 D.S. v. BAYONNE BOARD OF EDUCATION 602 F.3d 553 U.S. Court of Appeals, Third Circuit April 22, 2010

Case Summary

Evidence that a ninth-grader with cognitive difficulties performed well below grade level on achievement tests and struggled to understand teachers in his special education classes helped convince the 3d Circuit that his IEP was inadequate. The 3d Circuit reversed a decision reported at 51 IDELR 189 that the student's good grades established a receipt of FAPE. The decision turned in part on the U.S. Supreme Court's decision in Board of Education of the Hendrick Hudson Central School District v. Rowley, 553 IDELR 656 (U.S. 1982). In Rowley, the Supreme Court held that a student's ability to earn passing marks and advance from grade to grade is a strong indicator that he received a meaningful educational benefit. However, the 3d Circuit pointed out that Rowley addressed a student's performance in the general education classroom. "Our reading of Rowley leads us to believe that when ... high grades are achieved in classes with only special education students set apart from the regular classes of a public school system, the grades are of less significance than grades obtained in regular classrooms," U.S. Circuit Judge Morton Ira Greenberg wrote. The 3d Circuit noted that despite his good grades, the student performed well below grade level in reading, writing and math. Achievement tests indicated that he had borderline to low-average cognitive functioning. A neuropsychologist who observed the student in class testified that the student had difficulty processing information that his teachers presented orally. Furthermore, although several evaluators recommended that the student's IEP incorporate specific remedial techniques, the IEPs only required teachers to "use a multisensory approach." Because the evidence supported an ALJ's finding that the IEPs were inadequate, the 3d Circuit held that the District Court erred in reversing the ALJ's decision.

16.

17

A.B. v. CLARKE COUNTY SCHOOL DISTRICT 372 F. App'x 61 U.S. Court of Appeals, Eleventh Circuit April 5, 2010

Case Summary

Despite claiming that the presence of another student would impede their son's educational progress, the parents of a teenager with multiple, severe disabilities could not establish a need to access the other student's educational records. The 11th Circuit found no evidence that the other student's mere presence in the same middle school would prevent the teenager from receiving an educational benefit. In a decision reported at 52 IDELR 99, the District Court acknowledged that the other student had sexually assaulted the teenager when they attended the same elementary school. However, the court rejected the parents' claim that the other student's enrollment in their son's middle school would cause their son to regress. U.S. District Judge Clay D. Land noted it was "sheer speculation" to suggest that a review of the classmate's records would prove that his presence was harmful. "[The parents] did not submit ... any expert evidence tending to show that [their son's] education would be irretrievably disrupted if [he] saw [the classmate] for more than X minutes during a given timeframe," Judge Land wrote. As such, the District Court found no reason to grant the parents access to the classmate's records. The court also held that the classmate's enrollment did not change the teenager's educational placement, as there was no evidence that the teenager's program was disrupted. The 11th Circuit affirmed the District Court's decision in an unpublished opinion.

17. 55 IDELR 140 INDEPENDENT SCHOOL DISTRICT NO. 12, CENTENNIAL v. MINNESOTA DEPARTMENT OF EDUCATION 788 N.W.2d 907 Minnesota Supreme Court October 7, 2010

Case Summary

The parents of a fifth-grader with autism and Tourette syndrome successfully challenged a Minnesota district's refusal to consider their request to include supplementary aids and services in the student's IEP that would facilitate her participation in volleyball and afterschool clubs. In a decision reported at 52 IDELR 265, the Court of Appeals ruled that the IDEA requires an IEP team to consider whether an extracurricular and nonacademic activity is appropriate for a student with a disability and, if so, to provide supplementary aids and services necessary for participation. On appeal, the Supreme Court upheld the ruling, in part. The parents challenged the Court of Appeals' ruling that the IDEA regulations limit the inclusion of extracurricular and nonacademic activities in an IEP to those required for educational purposes. Noting that the IDEA does not define extracurricular and other nonacademic activities, the Supreme Court reviewed the pertinent regulations at 34 CFR 300.320, 34 CFR 300.107, and 34 CFR 300.117. The Supreme Court ruled that none of the regulations restricted an IEP's contents to

18 extracurricular and nonacademic activities required to educate a student. In fact, the regulations call for the district to ensure that each child with a disability participates with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child, and to provide students with an equal opportunity to participate in extracurricular and other nonacademic activities. "To limit extracurricular and other nonacademic activities to those required only to educate the [student with disabilities] would require adding or reading words into the above IDEA regulations," the Supreme Court wrote. The Court of Appeals' ruling effectively requires a student with a disability to prove that she will receive an educational benefit from participating in an extracurricular or other nonacademic activity in order to receive supplementary aids and services necessary to participate, the Supreme Court remarked. Finding that the IDEA did not require students to make this showing, the Supreme Court reversed that portion of the Court of Appeals' decision.

18. 55 IDELR 66 DRACUT SCHOOL COMMITTEE v. BUREAU OF SPECIAL EDUCATION APPEALS OF THE MASSACHUSETTS DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION 737 F. Supp. 2d 35 U.S. District Court, Massachusetts September 3, 2010

Case Summary

By ordering a Massachusetts district to award a high school diploma to a student with Asperger syndrome, an IHO ended the student's right to continued IDEA services. The District Court reversed the IHO's decision at 52 IDELR 85 to the extent that it extended the student's IDEA eligibility by two years. The court agreed with the IHO's conclusion that the district provided the student with inadequate transition services. Although the student had significant deficits with pragmatic language and social skills, his transition services did not address those areas of need. "The overwhelming evidence in the record indicates that [the student's] pragmatic language deficits are a central component of his disability, affect his ability to transition from high school to other settings in a critical way, and were well known to [the district] as early as 2005, well before the IEPs in question," U.S. District Judge Patti B. Saris wrote. Concluding that the procedural and substantive deficiencies in the transition plans amounted to a denial of FAPE, the court held that the student was entitled to some relief. However, that relief could not include extended IDEA eligibility. "Now that [the district] has issued the diploma, the proper remedy is compensatory services," Judge Saris wrote. The court noted that it could not discern from the record whether the IHO's award of compensatory education was excessive. As such, it remanded the case to the IHO with orders to determine an appropriate amount of compensatory transition services.

19

19. 54 IDELR 181 BOUGADES v. PINE PLAINS CENTRAL SCHOOL DISTRICT U.S. Court of Appeals, Second Circuit May 10, 2010

Case Summary

A New York district was not required to reimburse the parents of a sixth-grader with a learning disability after they unilaterally placed him in a private school during the 2003-04 school year. The parents requested tuition reimbursement from the district, arguing that it denied the student FAPE. The parents alleged that the IEP was inappropriate for the student because it was similar to the program he previously had and under which evaluations indicated he regressed. Examining whether the proposed IEP was reasonably calculated to enable the student to receive educational benefits, the 2d Circuit observed that the IHO and the SRO concluded that the district's proposed IEP provided the student with educational benefits because it addressed and corrected deficiencies that existed in the previous year's program. On appeal, the District Court determined that the IHO's and SRO's decisions were not entitled to deference because their conclusion that the IEP adequately addressed the student's difficulties in reading and writing was not supported by the evidence. The district appealed, arguing that the administrative decisions were entitled to due deference. In an unpublished decision, the 2d Circuit agreed with the district, cautioning that "independent review of the evidence is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities [that] they review." Reasoning that the SRO's decision denying the parents' reimbursement was supported by the evidence, the 2d Circuit ruled that the administrative decision was entitled to deference.

IV. Related Services

1. 54 IDELR 213 CARLSON v. SAN DIEGO UNIFIED SCHOOL DISTRICT U.S. Court of Appeals, Ninth Circuit May 21, 2010

Case Summary

The parents of a student with OT needs failed to establish that a California district denied their daughter FAPE by refusing to offer a specific methodology. The district offered the student an appropriate program, the 9th Circuit reasoned, and was not obligated to utilize the parents' preferred instructional method. The parents also alleged that the district violated the IDEA procedurally by failing to include appropriate OT goals in the student's IEP. The District Court held that the act's exhaustion requirements barred the alleged procedural violations and that the IEP offered the student FAPE. The parents appealed. Citing Board of Education of the Hendrick Hudson Central School District v. Rowley, 553 IDELR 656 (U.S. 1982), the 9th Circuit noted that once a court determines that the requirements of the IDEA have been met,

20 the methodology a school should use is an issue of state law. "We agree with the district court that Plaintiffs' case 'boils down to ... a disagreement over proper methodology,'" the 9th Circuit wrote. Thus, the parents failed to show that the student's 2007 IEP substantively denied the student FAPE. As to the alleged procedural violations, the court affirmed the District Court's determination that the parents could not proceed because they did not exhaust their administrative remedies. Although the issue of inadequate OT goals was addressed in an administrative hearing, the parents asserted a different statutory basis for the claim in District Court. Thus, that claim remained unexhausted.

2. 55 IDELR 142 Letter to Matthews Office of Special Education Programs January 7, 2010

Case Summary

Responding to an inquiry from a school attorney, OSEP stated that IEPs need not spell out the precise duration of each service session. The IDEA implementing regulations do not specifically require that an IEP include the exact number of minutes a district must devote to each session, as long as the document outlines the overall amount of time to be devoted to that service. In this case, the proposed IEP stated: "The student will receive 600 minutes per semester of counseling in 16 weekly sessions. Session times may vary per session according to the Student's responsiveness, session activity, and individual needs." The attorney asked if this complies with the requirement in 34 CFR 300.320(a) that an IEP include the anticipated duration of services. OSEP noted that an IEP must include sufficient information about the amount of services that will be provided so that the level of the agency's commitment of resources will be clear. 71 Fed. Reg. 46,540 (2006). Most IEPs would need to state minutes per session in order to meet that requirement. However, "there may be special circumstances where the amount of time for each session of related services may vary in order to meet the needs of an individual student and there is nothing in the IDEA that would bar such an arrangement in an IEP," Acting Director Alexa Posny wrote. In this case, the IEP contained sufficient information so that all involved understood the number of minutes to be provided over the course of the semester.

21

V. Least Restrictive Environment

1. 48 IDELR 31 H.B. v. LAS VIRGENES UNIFIED SCHOOL DISTRICT U.S. Court of Appeals, Ninth Circuit July 3, 2007

Case Summary

Allegations that a California district did not consult with a student's parents before deciding to place a student in a public school classroom for children with autism were not enough to prove that the district violated the IDEA. Concluding that there was insufficient evidence of predetermination, the 9th Circuit vacated a decision in the parents' favor and remanded the case for further proceedings. The flaw with the District Court's decision, the 9th Circuit observed, was that court made no findings of fact as to the district's state of mind at the IEP meeting. To establish predetermination, the 9th Circuit explained, the parents needed to show that the district was unwilling to consider other placements. This burden was complicated by the parents' failure to suggest any alternative placement at their son's IEP meeting. "The District Court noted that the school district was well aware of the parents' preference that their son stay at his private school, and concluded that it would have been futile for them to voice this preference," the 9th Circuit wrote in an unpublished opinion. However, because the District Court made no specific findings of fact as to the district's intent, the 9th Circuit concluded that the district's desire for a public school placement did not in itself establish predetermination.

2. 54 IDELR 73 H. BERRY v. LAS VIRGENES UNIFIED SCHOOL DISTRICT 370 F. App'x 843 U.S. Court of Appeals, Ninth Circuit March 11, 2010

Case Summary

Despite claiming that it considered a number of factors before deciding on a placement for a student with autism, a California district failed to show that it complied with the IDEA's procedural safeguards. The 9th Circuit affirmed the District Court's decision at 52 IDELR 163 that the district predetermined the student's placement in a special day class. The decision turned on the assistant superintendent's statement at the start of the IEP meeting that the team would discuss the student's transition back to public school. Based on that statement and the evidentiary record as a whole, the District Court found that the district determined the student's placement before the meeting. "It specifically found [the district representatives'] testimony about being open to considering alternative placements incredible, and found credible the mother's testimony that her minimal participation [in the meeting] was due to futility," the 9th Circuit wrote in an unpublished decision. The 9th Circuit observed that the District Court's

22 findings were not clearly erroneous. Concluding that the district violated the IDEA's procedural requirements by predetermining the student's placement, the 9th Circuit upheld the District Court's ruling in the parent's favor.

3. 55 IDELR 153 J.W. v. FRESNO UNIFIED SCHOOL DISTRICT 626 F.3d 431 U.S. Court of Appeals, Ninth Circuit October 19, 2010

Case Summary

The 9th Circuit took little time to dispose of a claim that a California district violated the IDEA by placing a grade schooler with a cochlear implant in a general education program. Adopting the District Court's decision at 52 IDELR 194, the 9th Circuit held that the district offered the student FAPE in the LRE. In an April 2009 decision, the District Court rejected the argument that the parents' insistence on a general education placement at a school for the arts prevented them from challenging the team's decision to place mainstream the student in a public school setting. While the district had an obligation to consider the parents' input, the court explained, it also had to ensure that it offered the student FAPE. Still, the District Court observed, the parents' wish for a general education placement supported the ALJ's finding that the placement was appropriate. The court noted that the placement allowed the student, an oral language learner, to communicate with typically developing peers. "The general education class also provided [the student] with significant challenges, such as the fast pace of the academic instruction," U.S. District Judge Lawrence J. O'Neill wrote at 52 IDELR 194. Moreover, the court pointed out that the student received significant nonacademic benefits from the placement, and that he had a positive effect on his teacher and classmates. Determining that the general education class was the student's LRE, the District Court held that the placement was appropriate. The 9th Circuit affirmed the District Court's decision in full without further analysis.

4. 54 IDELR 211 R.H. v. PLANO INDEPENDENT SCHOOL DISTRICT 607 F.3d 1003 U.S. Court of Appeals, Fifth Circuit May 27, 2010

Case Summary

The fact that a district's preschool program included children with disabilities as well as typically developing children did not make it an inappropriate placement for a 4-year-old boy with autism and a speech and language impairment. Concluding that the proposed placement was the child's LRE, the 5th Circuit affirmed a ruling in the district's favor. The court first rejected the parents' claim that the IEP team did not consider any placements other than the

23 inclusion program, which they characterized as a special education placement. According to the evidence provided at the due process hearing, the IEP team decided against the private general education preschool program requested by the parents because it didn't believe the school could implement the child's IEP without the district's direct supervision. As for the parents' claim that Daniel R.R. required the district to place the child in a general education setting, even if that required a private placement, the 5th Circuit noted that the IDEA addresses the right to a free appropriate public education. "Daniel R.R. does not consider or speak to the circumstances at issue here, where the public preschool curriculum does not include a purely mainstream class," U.S. Circuit Judge Jerry E. Smith wrote. Thus, while Daniel R.R. precludes a child's removal from the general education setting unless he cannot be educated satisfactorily with the use of supplemental aids and services, it does not require a private placement when the district offers only an inclusion program. The 5th Circuit affirmed a decision reported at 50 IDELR 41 that the proposed placement was appropriate. The court also held that the parents were not entitled to reimbursement for private services the child received during the summer of 2005. Not only did the parents fail to provide proper notice of the placement, the court explained, but the program failed to include any special education services.

VI. Private Placements

1. 56 IDELR 185 FOREST GROVE SCHOOL DISTRICT v. T.A. 638 F.3d 1234 U.S. Court of Appeals, Ninth Circuit April 27, 2011

Case Summary

A single statement on a high schooler's application for enrollment in a private, therapeutic boarding school helped an Oregon district avoid financial responsibility for the student's private placement. Concluding that the placement was unrelated to the student's depression and ADHD, the 9th Circuit affirmed a decision at 53 IDELR 213 that the parents were not entitled to reimbursement. The court noted that the parents decided to enroll the student in the residential school after the student's behavioral and drug problems escalated. In response to a question on the enrollment application asking which "specific events precipitated" the student's enrollment, the father wrote "inappropriate behavior, depression, opposition, drug use, runaway." Although the father indicated on other sections of the application that he hoped the student would achieve certain educational objectives, the court observed that those statements alone did not show that the student's enrollment was academic in nature. "This is particularly true in light of the fact that [the student] was enrolled at [the boarding school] after several months of escalating drug abuse and behavioral problems -- and directly after he attempted to run away from home -- and not during the two-year period when ADHD and poor scholastic performance alone, ... were the problem," U.S. Circuit Judge Carlos T. Bea wrote. The court explained it was not holding that reimbursement is unavailable if a private placement addresses a student's nonacademic needs as well as his educational needs. Rather, the 9th Circuit held that the particular circumstances of the student's case weighed against reimbursement. U.S. Circuit Judge Susan P. Graber dissented,

24 contending the evidence showed that the parents enrolled the student in the boarding school for academic reasons as well as behavior and drug problems.

2. 53 IDELR 313 SHAW v. WEAST 364 F. App'x 47 U.S. Court of Appeals, Fourth Circuit January 26, 2010

Case Summary

Despite a student's severe emotional impairments and history of suicide attempts, she did not require a residential placement to receive FAPE, the 4th U.S. Circuit Court of Appeals held. The student's safety, mental health and medical issues were distinct from her educational needs, and thus did not obligate the district to fund a residential placement. The student, a 20-year-old with an emotional disturbance and post-traumatic stress disorder, was hospitalized multiple times for suicidal ideation. Concerned about her safety and medication compliance, her parents placed her in a residential facility and sought reimbursement. An ALJ denied the request, and the parents appealed. Affirming the decision, the 4th Circuit noted that a residential placement is required only if residential care is essential for the child to make any educational progress. Burke County Bd. of Educ. v. Denton, 16 IDELR 432 (4th Cir. 1991). Where the residential placement is necessitated by medical, social or emotional problems that are segregable from the learning process, the district need not fund it. The court explained that this was not a situation in which the student required around-the-clock assistance with basic self-help and social skills. While the student's progress in the district's special day school placement slowed during psychiatric episodes, she made educational progress when those issues stabilized. Furthermore, the school continued to offer the services necessary to implement her IEP. "That [the student's] emotional and mental needs required a certain level of care beyond that provided at [the day school] does not necessitate a finding that the state should fund that extra care when it can adequately address her educational needs separately," the court wrote in an unpublished decision.

3. 55 IDELR 293 Letter to Miller Office of Special Education Programs May 5, 2010

Case Summary

A parent who seeks tuition reimbursement need not notify a district each year she plans to continue a student's private school enrollment after the student's initial removal from public school. OSEP informed an interested individual that notification, for purposes of reimbursement, is required prior to removal, not prior to each year private enrollment continues. In the case cited by the individual, the parent informed the district at a spring 2008 IEP meeting that she was rejecting the IEP and would place the student in private school and seek reimbursement. She

25 enrolled the student in private school for the 2008-09 school year, and also kept the student there the following year. The IDEA regulation at 34 CFR 300.148(d) states that reimbursement may be reduced or denied if at the last IEP meeting before removal of the child from public school, the parents did not inform the IEP team that they were rejecting the proposed placement, including stating their concerns and their intent to enroll their child in a private school at public expense; or did not notify the district of that information in writing at least 10 business days prior to removal. The required notice, OSEP observed, is triggered by the student's removal from public school. For example, the provision at 34 CFR 300.148(d)(1)(i) refers to the most recent team meeting "prior to removal." "Thus, removal and not enrollment, establishes the regulatory benchmark when determining compliance with the parental notice provision," Acting Director Alexa Posny wrote. The IDEA also permits a court or hearing officer to consider other equitable factors in determining parental reimbursement, OSEP noted, such as the parent's unreasonable conduct.

4. 56 IDELR 121 C.B. v. GARDEN GROVE UNIFIED SCHOOL DISTRICT 635 F.3d 1155 U.S. Court of Appeals, Ninth Circuit March 28, 2011

Case Summary

Recognizing that a student with autism and ADD did not receive instruction in math while attending a private reading and language program, the 9th Circuit nonetheless found that the program met the student's educational needs. The 9th Circuit affirmed a decision at 53 IDELR 260 that required a California district to reimburse the student's guardian for the full cost of the program. The district maintained that the lack of mathematics instruction made the private program inappropriate. The 9th Circuit disagreed. Relying on the 2d Circuit's decision in Frank G. v. Board of Education of Hyde Park, 46 IDELR 33 (2d Cir. 2006), the 9th Circuit observed that a private placement is appropriate as long as it provides educational instruction specially designed to meet the unique needs of a student with a disability. "We agree with and adopt that standard in interpreting what constitutes a 'proper' placement within the meaning of the IDEA," U.S. Circuit Judge Susan P. Graber wrote. Although the private program did not satisfy all of the student's needs, the court pointed out that the student showed "significant growth" in several learning areas. The student also made improvements with regard to his social development. Concluding that the placement was appropriate, the 9th Circuit ruled that the guardian could recover the full cost of the student's program plus transportation expenses.

26

5. 56 IDELR 8 INDIANAPOLIS PUBLIC SCHOOLS v. M.B. 771 F. Supp. 2d 928 U.S. District Court, Southern District of Indiana January 25, 2011

Case Summary

The grandparent of a sixth-grader with an emotional disturbance was not entitled to reimbursement for placing her grandson in parochial school. Because there was no evidence that the school was providing any special education services the child needed, the District Court could not find that the program was appropriate. The boy's grandmother enrolled him in parochial school after she became dissatisfied with his public school program. An IHO granted her tuition reimbursement, and a special education appeals board followed suit. The district appealed. The court observed that after finding the district denied the child FAPE, the IHO glossed over the question of the parochial school's fitness. Instead, the IHO relied on the grandparent's testimony that the student's grades improved and the principal offered tutoring. The court explained that a unilateral private placement is not appropriate if it does not provide at least some special education services that the public placement failed to provide. In this case, there was no evidence the school provided any of the services the district allegedly denied him. In fact, there was no indication it provided any special education services. Nor was there evidence that would academic tutoring have addressed the student's ED or behavioral problems. Although the student appeared to be doing well in his new school, the court pointed out that academic success is not sufficient to show a unilateral placement is appropriate. "Rather, the IDEA requires an identification of the special education services that were lacking in the ... public school and a demonstration that at least some of those services are being provided by the private school," U.S. District Judge William T. Lawrence wrote. Because the grandparent offered no such evidence, the court set aside the IHO's reimbursement award.

6. 56 IDELR 68 S.H. v. NEW YORK CITY DEPARTMENT OF EDUCATION U.S. District Court, Southern District of New York February 18, 2011

Case Summary

A residential program for students with learning disabilities may have been a teenager's parents' idea of the perfect placement for their son, but that didn't mean the child's New York district had to pay for it. Although the parent contended that the program benefited the student, there was no evidence that his current academic or behavioral needs necessitated such a restrictive setting. The student had been enrolled in the program since 2006. The district proposed a general education placement for the 2008-09 school year. The parents retained the student in the residential program and sought reimbursement. An SRO denied their request, and the parents appealed. The court pointed out that the IDEA's requirement that an

27 appropriate education be in the mainstream to the extent possible may be considered in determining whether a parent's unilateral placement was appropriate. M.S. v. Board of Educ. of the City Sch. Dist. of the City of Yonkers, 33 IDELR 183 (2d Cir. 2000). The court agreed with the SRO's finding that the residential placement was unnecessary and overly restrictive. "The administrative record does not demonstrate that [the student] 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," U.S. District Judge Paul G. Gardephe wrote. The parents failed to show that the student needed a placement so far afield of the mainstream in order to learn. Although the parents produced a 2006 doctor's report recommending a residential program based on the student's behavioral issues, there was substantial evidence that the student had progressed by leaps and bounds since that time. By 2008, the student was performing average and better in all classes, and his behavior no longer impeded his learning.

7. 56 IDELR 42 MR. and MRS. A v. NEW YORK CITY DEPARTMENT OF EDUCATION, 769 F. Supp. 2d 403 U.S. District Court, Southern District of New York February 1, 2011

Case Summary

A federal District Court held that the parents of a student with autism were entitled to tuition payment relief for private school tuition they incurred but could not afford. In a case of first impression, the court held that where parents cannot front the costs of private tuition, and where the private school nevertheless enrolls the child on the parents' agreement to pay, parents who satisfy the reimbursement test may obtain an award of retroactive direct payment to the private school. The parents here placed their child in private school after the district failed to make a placement offer. Because the tuition exceeded their combined income, the parents agreed to pay the entire $84,900 yearly tuition if the district did not. A state review officer, while finding the student was deprived of FAPE, denied tuition relief. On appeal, the District Court noted that courts have broad discretion under the IDEA to "grant such relief as ... is appropriate." 20 USC 1415(i)(2)(C)(iii). Nor is that discretion limited by the IDEA's tuition reimbursement provision. Forest Grove Sch. Dist. v. T.A., 52 IDELR 151 (U.S. 2009). Moreover, courts have ordered prospective direct tuition payment in the context of stay-put orders and compensatory education awards. "It is entirely counter-intuitive to argue ... that a court may ... require a [district] to pay a private school directly and prospectively for special education, may require the district to retroactively reimburse parents for private school tuition previously paid, but may not order a [district] to pay the private school directly and retroactively for expenses already incurred," U.S. District Judge Paul G. Gardephe wrote. Such an approach would limit the right of unilateral withdrawal to those able to pay out of pocket, thus undermining the IDEA's universal guarantee of FAPE to all children with disabilities, regardless of means.

28

8. 56 IDELR 97 DEPARTMENT OF EDUCATION, STATE OF HAWAII v. T.G. U.S. District Court, Hawaii February 28, 2011

Case Summary

The parents of a 7-year-old with autism did not have to show that they or their son suffered harm from a district's procedural violations in order to seek tuition reimbursement. The Hawaii ED's failure to convene an impartial hearing amounted to a per se denial of their substantive IDEA rights, the District Court ruled. After receiving the parents' hearing request, the ED did not convene a resolution session within 15 days or an impartial hearing by the March 3 deadline. Instead, it sat on the request until April 6. An impartial hearing officer concluded that the delays denied the student FAPE and awarded reimbursement. The ED appealed. The court relied on Blackman v. District of Columbia, 39 IDELR 241 (D.D.C. 2003), in which the District Court ruled that the failure to hold a due process hearing in response to a parent's request amounts to per se substantive harm. While here there was no evidence of a systemic problem, as in Blackman, such a showing is not required, the District Court stated. Rather, the key inquiry is whether the procedural violation affected substantive rights. In light of the primacy that due process hearings have in ensuring parents' and students' substantive IDEA rights, "[s]uch a dereliction is not a harmless error; it violates the parents' basic rights and results in a per se harm to the student," U.S. District Judge Leslie E. Kobayashi wrote. The court also rejected the ED's argument that the parents should have sought a hearing officer's intervention when the resolution process did not commence. Parents may, but are not required, to do so, the District Court stated. The court remanded the case to the IHO to make specific findings as to the appropriateness of the private program.

9. 56 IDELR 187 C.B. v. Special School District No. 1 636 F.3d 981 U.S. Court of Appeals, Eighth Circuit April 21, 2011

Case Summary

A Minnesota district could not avoid paying for a student's private placement in a school for children with SLDs simply by pointing out that the school did not serve any general education students. In a case of first impression, the 8th Circuit held that a private school does not have to be a student's LRE to qualify as an appropriate placement for reimbursement purposes. The court observed that the purpose of the IDEA is to open the door of public education to students with disabilities. "Once the school district failed to fashion an IEP that made available a free appropriate public education, it did not frustrate the purposes of the Act for [the parents] to enroll [the student] in [the private school], where he could receive the educational benefit that was lacking in the public schools," U.S. Circuit Judge Steven M. Colloton wrote. This was not a case

29 of a student being shut out of public schools, the court explained, but rather a case in which the parents opted for private placement after the public school services proved inadequate. The 8th Circuit noted that the private school offered the programs and methodologies the student needed to develop reading and writing skills. Moreover, the student made significant progress when attending the school. Concluding that the placement was appropriate despite being more restrictive than a public school program, the 8th Circuit reversed the District Court's decision at 52 IDELR 283 and remanded the case for further proceedings.

10. 56 IDELR 186 SUMTER COUNTY SCHOOL DISTRICT 17 v. HEFFERNAN 642 F.3d 478 U.S. Court of Appeals, Fourth Circuit April 27, 2011

Case Summary

An IHO's finding that a middle schooler with autism received more than a minimal educational benefit during the 2005-06 school year did not allow a South Carolina district to avoid liability for its failure to provide the full amount of ABA therapy required by the student's IEP. The 4th Circuit held that the district's material implementation failure resulted in a denial of FAPE. The 4th Circuit rejected the notion that it was bound by the IHO's conclusion that the student received an educational benefit. While the court was required to give due weight to the IHO's factual findings, it was free to draw its own conclusions from those findings. The 4th Circuit pointed out that the student was "very aversive" to teaching in the beginning of the school year, and engaged in behaviors such as biting himself and wiping his face until it bled. The board-certified ABA therapist who worked with the student in his autism classroom testified that the teacher and classroom aides did not understand or properly implement ABA techniques. Only by working with the student for several months was the therapist able to correct the problems resulting from staff members' improper implementation of ABA techniques. The 4th Circuit observed that the evidence as a whole supported the District Court's conclusion that the implementation failure resulted in a denial of FAPE. "While there is evidence showing that [the student] made some gains in certain skill areas tested in the spring of 2006, these gains were not so significant as to require a conclusion that [the student] received some non-trivial educational benefit from the 2005-06 IEP as implemented by the district," Chief U.S. Circuit Judge William B. Traxler Jr. wrote. The court thus affirmed the District Court's ruling that the district denied the student FAPE.

30

VII. Discipline 1. 55 IDELR 185 DOE v. TODD COUNTY SCHOOL DISTRICT, 625 F.3d 459 U.S. Court of Appeals, Eighth Circuit November 12, 2010

Case Summary

A South Dakota district did not violate a student's constitutional rights when it denied him the opportunity to challenge his placement in an alternative setting before the local school board. Noting that the board had no authority to modify the IEP team's placement decision, the 8th Circuit reversed a decision in the student's favor. The court acknowledged that suspended students generally have the right to notice of the charges against them, as well as a hearing to dispute those charges. Goss v. Lopez, 103 LRP 22470, 419 U.S. 565 (U.S. 1975). Under the South Dakota ED's administrative rules, those rights included formal notice and a hearing before the school board. However, the 8th Circuit pointed out that the student's IEP team convened just four days into his suspension for fighting and bringing a pocketknife to school, and decided to place him in an alternative high school. "Once the IEP team changed [the student's] placement with [the parent's] consent, the IEP team, not the school board, became the decision-maker authorized to change his placement again," U.S. Circuit Judge James B. Loken wrote. Because the board did not have the power to change the student's placement, the court explained, it had no obligation to conduct a meaningless hearing on the matter. The 8th Circuit recognized that the student's services decreased significantly in the alternative placement, from six hours a day to just two hours a day. Still, the court observed, the parent could have requested an expedited due process hearing under the IDEA to challenge the reduction in services. Noting that the parent was informed of this right, the 8th Circuit found no fault with the district's refusal to hold a school board hearing.

2. 54 IDELR 276 LATHROP R-II SCHOOL DISTRICT v. GRAY 611 F.3d 419 U.S. Court of Appeals, Eighth Circuit July 2, 2010

Case Summary

The 8th Circuit affirmed a decision by the U.S. District Court, Western District of Missouri at 53 IDELR 77 that a district went above and beyond what the IDEA requires when it comes to addressing a student's behaviors. The student with autism exhibited problem behaviors throughout sixth and seventh grade -- finger biting, hand flapping, loud outbursts, and sexual behaviors. His parent filed for due process, asserting that the district denied the student FAPE by failing to address his behavior issues. The parent took his claim to the 8th Circuit, where

31 the court noted that the IDEA does not require an IEP to create specific goals for behavior. However, if behavior impedes a child's learning, the IEP team should consider positive behavioral interventions and supports to address it. The student's "2002 and 2003 IEPs both described his disruptive behaviors and included a host of strategies to address them," U.S. Circuit Judge Diana E. Murphy wrote. The district conducted a functional behavioral assessment and developed a behavioral management plan to address those behaviors. The IEPs contained a sensory diet with strategies for keeping the student on task and preventing disruptions. The district assigned a one-to-one aide. It also provided staff training on autism, hired related service providers with experience in autism, and arranged for an autism specialist to consult with the IEP team. The fact that the student made progress indicated that the district made a good-faith effort to address the student's behaviors and provide FAPE. The 8th Circuit also held that while the student's IEP contained baseline data for many of the goals, the IDEA does not specifically mandate such specific data. The IDEA requires a statement of the student's present levels of educational performance and a statement of measurable annual goals, including benchmarks for short-term objectives. The student's IEPs in this case contained both.

3. 53 IDELR 178 RODRIGUEZ v. SAN MATEO UNION HIGH SCHOOL DISTRICT 357 F. App'x 752 U.S. Court of Appeals, Ninth Circuit November 13, 2009

Case Summary

A California district was not required to develop a BIP for a student merely because he was arrested for stealing and had a problem with truancy. The 9th U.S. Circuit Court of Appeals agreed with the District Court and an ALJ that the student's behavior was not severe enough to warrant a BIP. The student was arrested for taking beer from a supermarket. Pursuant to an agreement with a juvenile court, the student's parent placed him in a private residential program. Claiming that the district's failure to develop a BIP after the student's arrest amounted to a denial of FAPE, the parent sought reimbursement for the residential placement. An ALJ found for the district, and the District Court affirmed. The parent appealed. Affirming the District Court's ruling, the 9th Circuit reasoned in an unpublished decision that the student's behavioral problems did not cause harm or a serious threat of harm to persons or property, as outlined in California regulations. As such, the student was not entitled to a BIP under state law. Nor did the parent provide evidence of other circumstances warranting a BIP under the IDEA. While the student's truancy interfered with his learning, the district adequately addressed that issue in the student's IEP. The plaintiffs also raised a new argument on appeal -- that the student's IEP required consultation with mental health services. However, the court pointed out that such consultation was required only if the student's condition worsened. Furthermore, the court could not consider issues that the parent failed to raise at the due process hearing.

32

4. 55 IDELR 71 JACKSON v. NORTHWEST LOCAL SCHOOL DISTRICT U.S. District Court, Southern District of Ohio August 3, 2010

Case Summary

The parent of a third-grader with ADHD successfully appealed an Ohio district's decision to discipline her child without first conducting an MD review. The district provided the student with interventions starting in first grade. It provided one-on-one instruction, small group instruction, and classroom modifications. In third grade, her teachers became increasingly concerned about the impact of the student's escalating behavior on her academic performance. The intervention assistance team reconvened and recommended that the student undergo a mental health evaluation, but it did not initiate a special education evaluation at that time. The following month, the district suspended and expelled the student for threatening behavior. When the parent filed for due process, the district argued that an MD review was not required because the student had not yet been found eligible under the IDEA. The magistrate judge pointed out that the IDEA protects students who have not been determined to be eligible under the act when the circumstances indicate that a district should have suspected that the student had a disability. When the district expelled the student, it had provided her with intervention services for approximately two years yet she had made few gains. Additionally, the behavioral concerns expressed by her teacher and others warranted a referral to an outside mental health agency. These circumstances provided "sufficient reason for [the district] to suspect that [the student] might be a child with a disability and, therefore, entitled to an evaluation under the IDEA," the magistrate judge wrote. But for the district's delay in evaluating the student once it suspected that she was a child with a disability, the magistrate judge ruled, she would have been entitled to an MD review.

VIII. Damages

1. 55 IDELR 199 P.R. v. METROPOLITAN SCHOOL DISTRICT OF WASHINGTON TOWNSHIP U.S. District Court, Southern District of Indiana November 1, 2010

Case Summary

Promptly responding to reports of disability harassment made by a middle schooler who had HIV helped an Indiana district avoid Section 504 and Title II violations. After the student confided her HIV status to a friend, she was subjected to teasing and name-calling at school and online. The incidents occurred intermittently from sixth grade until eighth grade when the student withdrew from school. The student's parent sued the district for failing to adequately respond to the alleged peer harassment on the basis of the student's disability. The District Court noted the similarities between the language in Title IX and in Title II and Section 504 when deciding to

33 apply a five-part test modeled after the standard established in Davis v. Monroe County Board of Education, 2002 LRP 860, 526 U.S. 629 (1999). To hold the district liable for disability-based peer harassment, the student was required to show that: 1) she was an individual with a disability; 2) she was harassed based on her disability; 3) the harassment was so severe or pervasive that it altered the condition of her education; 4) the district knew about the harassment; and 5) the district was deliberately indifferent to it. Although the district disputed whether the student was an individual with a disability, the court ruled that she was, based on the voluminous case law deeming HIV infection a physical impairment that substantially limits the major life activity of reproduction. Although much of the harassment occurred over a period of years, making it seem less severe or pervasive, the court ruled that the stress-related physical symptoms she suffered could be attributable to the harassment. Next, the court noted that the district was aware of at least three distinct incidents of harassment, one during each year of middle school. According to the district, school personnel reacted to each reported incident, met with the alleged harassers, admonished them for their behavior, and informed all interested parents. Although the student argued that a jury should be allowed to determine whether the district's response was reasonable, the court disagreed. While the student and her parent may have believed that her harassers should have received harsher punishment, "school administrators enjoy a great deal of flexibility when making disciplinary decisions and responding to allegations of harassment," the court wrote. Holding that the student failed to show that the district's response was clearly unreasonable, the court dismissed the student's claims.

2. 53 IDELR 251 C.N. v. WILLMAR PUBLIC SCHOOLS 591 F.3d 624 U.S. Court of Appeals, Eighth Circuit January 7, 2010

Case Summary

A special education teacher did not violate a third-grader's constitutional rights when she used seclusion and restraint to manage the child's behaviors. Noting that the child's BIP allowed the teacher to use such techniques, the 8th Circuit affirmed a decision reported at 50 IDELR 274 that dismissed the parent's Section 1983 claim. The court noted that the child's BIP expressly permitted the use of seclusion and restraint to manage problem behaviors. Although the parent allegedly objected to the use of aversives, the court pointed out that she did not challenge the child's IEP until after the child left the district. The court explained that the BIP set the standard for the teacher's use of seclusion and restraint. "Because [the IEP] authorized such methods, [the teacher's] use of those and similar methods ..., even if overzealous at times and not recommended by [the independent evaluator], was not a substantial departure from accepted judgment, practice or standards, and was not unreasonable in the constitutional sense," U.S. Circuit Judge C. Arlen Beam wrote. Thus, the court observed, the teacher's use of seclusion and restraint did not amount to a Fourth Amendment violation. As for the parent's claim that the teacher violated the child's Fourteenth Amendment rights, the court pointed out that the parent made only vague allegations of physical and emotional abuse. Without more information, the court explained, it could not determine whether the teacher's alleged actions

34 were so shocking to the conscience that they amounted to a violation of fundamental constitutional rights. The 8th Circuit also ruled that the parent's failure to request a due process hearing before she withdrew the child from the district ended any subsequent bid for relief. In a concurring opinion, U.S. Circuit Judge Steven M. Colloton indicated that an exception to that rule might exist when the child's continued enrollment would result in physical harm. Because the parent failed to demonstrate a likelihood of harm, however, the 8th Circuit did not have to decide whether such an exception existed.

3. 54 IDELR 257 JOHNSON v. CANTIE New York Supreme Court, Appellate Division June 11, 2010

Case Summary

A grade schooler's violent outburst toward a licensed occupational therapist prompted a negligence suit against her parents and the district. However, neither party was liable for the therapist's injuries. The therapist was allegedly injured when she attempted to avoid being hit and kicked by a student with autism. She claimed that the district and the student's parents were negligent in failing to warn her of the student's violent behavior. The district and the parents requested dismissal, arguing that the therapist failed to establish that such a duty existed. To establish liability for negligence, an injured party must show that a duty existed, the defendant breached that duty, the breach was the direct cause of her injuries, and the party suffered damages. In dismissing the therapist's suit, the court wrote, "it is well established that there is no duty to warn an individual about a condition of which ... she is actually aware or that may be readily observed by a reasonable use of ... her senses." The district and the parents used the therapist's own statements to establish that she was aware that the student tended to use physical contact to express herself because she had observed this type of behavior on previous occasions. Absent a duty to warn the therapist about the student's potentially violent behavior, dismissal was appropriate, the court ruled. The therapist's negligent supervision claim against the parents also failed, the court said, because they were not present and, therefore, did not have an opportunity or the ability to control their daughter's behavior in the classroom.

35

IX. Miscellaneous Issues

1. 55 IDELR 162 COMB v. BENJI'S SPECIAL EDUCATIONAL ACADEMY, INC. 745 F. Supp. 2d 755 U.S. District Court, Southern District of Texas October 15, 2010

Case Summary

The parents of 14 students attending a charter academy for students with disabilities could not stop the commissioner of the Texas ED from closing the school pending the outcome of their IDEA lawsuit. While claiming that the commissioner and other defendants appointed to take over operation of the financially strapped school made little effort to ensure that students' IEPs would be implemented in new schools, the parents failed to show what elements of the IEPs would change. The school's new superintendent, appointed by a board installed by the ED, notified parents of the closure the morning after the decision was made and provided a list of area schools. The parents sued the commissioner, board, and superintendent, alleging that the closure amounted to a change in placement under the IDEA requiring prior written notice. They requested an emergency order to keep the school open. Responding to the request, the court noted that in determining whether a change in location is a change in placement, the 5th U.S. Circuit Court of Appeals focuses on whether the new location would fundamentally change the IEP's composition. "Here, the record lacks evidence of any efforts made by Defendants to maintain the IEP students' continuity of education other than a list of schools ... sent home to parents ... on the very same day the Academy's operations were suspended," U.S. District Judge Keith P. Ellison wrote. The list did not contain information about services each school offered, and the superintendent initially made no other attempts to assist parents in finding a school that would implement students' IEPs. Despite the defendants' laxity, however, the court declined to order the defendants to keep the school open, noting the absence of information regarding what elements of the IEPs would change as a result of the closure.

2. 55 IDELR 1 TRAVERSE BAY AREA INTERMEDIATE SCHOOL DISTRICT v. MICHIGAN DEPARTMENT OF EDUCATION 615 F.3d 622 U.S. Court of Appeals, Sixth Circuit August 4, 2010

Case Summary

Districts in Michigan, Kentucky, Ohio and Tennessee will not be able to sue their state educational agencies for failing to comply with the IDEA's procedural safeguards. In a case of first impression, the 6th Circuit held that districts can pursue such claims in court only when

36 the underlying claim directly involves a student's IEP. The court rejected a Michigan district's claim that the IDEA gives districts an express right to sue SEAs. Although the IDEA allows an "aggrieved party" to seek relief from the courts, the 6th Circuit noted that the provision only applies to matters involving a student's identification, evaluation, placement or services. Here, the district was challenging an SRO's authority to hear an appeal of a decision denying the parent's request to incorporate a FAPE settlement into an order of dismissal. As such, the district did not qualify as an aggrieved party with an express right to sue. Nor did the district have an implied right to sue the state ED. The 6th Circuit pointed out that the IDEA provisions addressing procedural safeguards are intended to ensure that students with disabilities and their parents are afforded the procedural protections of the IDEA. "Simply put, the procedural safeguards articulated in [Section] 1415 were enacted so that parents [of children with disabilities] could enforce their child's right to FAPE," U.S. Circuit Judge Richard Allen Griffin wrote. The court further noted that the IDEA specifically delegates regulatory and enforcement authority to the Secretary of Education. In light of that express grant of authority, the 6th Circuit could not hold that districts have the right to sue SEAs over their noncompliance with the IDEA. The 6th Circuit thus affirmed the District Court's dismissal of the district's suit against the state ED, reported at 48 IDELR 123.

3. 54 IDELR 111 N.D. v. STATE OF HAWAII DEPARTMENT OF EDUCATION 600 F.3d 1104 U.S. Court of Appeals, Ninth Circuit April 5, 2010

Case Summary

The parents of several students with disabilities failed to convince the 9th U.S. Circuit Court of Appeals to put Hawaii's "Furlough Fridays" program on hold while they pursued due process complaints. Because the furlough program did not constitute a change in educational placement, the parents were unlikely to succeed on their claim that the stay-put provision required the continuation of a 180-day school year. Facing a fiscal crisis, Hawaii reduced the year for all public school students by 17 days. The parents argued in a due process complaint that the reduction amounted to a change in placement triggering stay-put. Hawaii disagreed, and went forward with the plan. The parents then sought a temporary injunction. The District Court denied the motion, and the parents appealed. On appeal, the 9th Circuit agreed that the parents were unlikely to succeed on the merits of their due process complaint -- a prerequisite to a temporary injunction. The court's decision turned on its interpretation of "current educational placement." The court explained that "educational placement" means the general education program of the student. Thus, a change in placement occurs when a student is moved to a different type of program or when there is a significant alteration of the student's program even though he stays in the same setting. Here, the students would remain in the same classification, same district, and same education program. Furthermore, this was not a situation where the government was singling out students with disabilities or isolating them from nondisabled peers -- two of the IDEA's underlying concerns, the court observed. To the contrary, Furlough Fridays applied to everyone. It was also not a case involving a complete

37 cut-off of funding for a particular type of educational setting. "To allow the stay-put provisions to apply in this instance would be essentially to give the parents of disabled children veto power over a state's decisions regarding the management of its schools," U.S. Circuit Judge Jerome Farris wrote. Judge Farris remarked that the students' claims were better characterized as a material failure to implement. The parents could still pursue such arguments. However, they would not trigger the IDEA's stay-put provisions.

4. 55 IDELR 78 K.D. v. VILLA GROVE COMMUNITY UNIT SCHOOL DISTRICT NO. 302 BOARD OF EDUCATION 403 Ill. App. 3d 1062 936 N.E.2d 690 IL Appellate Court, 4th District August 24, 2010

Case Summary

A single provision in the Illinois School Code undermined a district's efforts to keep a 6-year-old boy with autism from bringing his dog to school. Determining that the dog qualified as a "service animal" despite its alleged failure to respond to commands or provide the child with necessary assistance, the Illinois Appellate Court held that the child could bring the dog to all school functions. The decision turned on the plain language of Section 14-6.02 of the school code. That provision states that a district must permit service animals such as guide dogs, signal dogs, or any other animal trained to perform tasks for the benefit of a student with a disability to accompany the student at all school functions, whether inside or outside of the classroom. "Despite the inevitable impact a service animal's presence at school will have on a student's individualized education plan, the School Code requires school districts to admit the service animal with the student so long as the animal meets the definition set forth in Section 14-6.02," Justice James A. Knecht wrote. The court observed that the dog performed specific tasks to benefit the child. In addition to applying deep pressure to calm the child, the dog prevented the child from eloping when the two were tethered. The court rejected the district's argument that the dog's failure to obey all commands raised questions about its status as a service animal. "Section 14-6.02 does not specify service animals must behave perfectly at all times," Justice Knecht wrote. Nor did the dog lose its status as a service animal because it was commanded by a one-to- one aide rather than the child. Because the dog met the definition of a service animal under state law, the court held that the district could not exclude the dog from the child's classroom. The court affirmed a decision reported at 53 IDELR 300 that allowed the child to bring the dog to school.

38

5. 56 IDELR 52 Colorado Springs (CO) School District #11 Office for Civil Rights, Western Division, Denver (Colorado) November 15, 2010

Case Summary

A Colorado high school may have to reopen its doors to a dog that it banned from campus because a teacher was allergic to the animal. The dog was the companion of a freshman with cerebral palsy and quadriplegia. Noting that the student's IEP team never formally considered his parent's request to add the dog to the IEP, OCR found that the district violated Section 504's procedural requirements. The dog had accompanied the student to school since second grade. When the principal banned the animal from school in 2009, the parent requested an IEP meeting to consider adding the dog to the IEP. No IEP meeting was held. Instead, the district's special education facilitator told the parent that the presence of the dog was not an academic matter. The parent filed a complaint with OCR. The Section 504 implementing regulation at 34 CFR 104.35(c) requires districts, in making placement decisions, to draw upon information from a variety of sources, to carefully consider and document that information, and to ensure that the decision-makers include persons knowledgeable about the child, evaluation data, and placement options. The district violated the regulation because it neglected to consider the student's individualized educational needs. Instead, it unilaterally decided not to incorporate the dog into the IEP, based on its mistaken view that service dogs are outside the scope of the IEP development process. Although the district asserted that it was meeting the student's needs without the dog, the IEP team never convened to make that determination. Furthermore, although the district and parent had opposing views as to whether the dog was in fact a service animal, and whether the dog performed any tasks for the student, that was information the team should have reviewed in making its determination.

6. 56 IDELR 143 Trinity Area (PA) School District Office for Civil Rights, Eastern Division, Philadelphia (Pennsylvania) September 17, 2010

Case Summary

A Pennsylvania district ran afoul of Section 504 by failing to give appropriate consideration to a request to include a service dog as a related aid or service in a grade schooler's IEP. Rather than relying on the parents to submit information about the child's needs, OCR observed, the IEP team should have discussed the dog's impact on the student's safety, adaptive behavior, and ability to meet social and behavioral goals. OCR noted that the district appropriately deferred its decision about the dog's presence on school grounds until the child's IEP team could discuss the matter. However, OCR found that the team's consideration of the request was inadequate. OCR pointed out that the parents were the only members of the IEP team who were knowledgeable about the uses of service dogs. Furthermore, the team did not discuss how

39 the dog's presence might affect the student's agitation, violent behaviors, or tendency to elope. "Instead, the IEP team denied [the parents'] request to use the dog based solely on [their] failure to provide sufficient information about the dog to support the student's need for the dog," OCR wrote. OCR also expressed concerns about the district's rationale for its decision. Although the team did not err in considering students and staff members with allergies, including one student who would go into anaphylactic shock if exposed to dog dander, OCR explained that the team should have considered the child's needs as well. OCR found that the district could resolve the compliance concern by taking the steps set forth in a resolution agreement.

7. 56 IDELR 295 C.C. v. CYPRESS SCHOOL DISTRICT U.S. District Court, Central District of California June 13, 2011

Case Summary

Recognizing that a California district might need to take a few additional steps to accommodate a 6-year-old boy's service dog, a District Court nonetheless found that the dog's presence would not fundamentally alter the child's autism program. The court ordered the district to allow the dog in school at least until it decided the parents' Section 504 and ADA claims. U.S. District Judge Andrew J. Guilford observed that the dog, which was specially trained to prevent the child from shrieking, throwing tantrums, and eloping, clearly qualified as a service animal under the ADA. The fact that the dog also calmed the student when he became anxious did not make it an emotional support animal that fell outside of the statute's protections. Thus, the court observed, the dog's presence would be a reasonable accommodation for the child unless it fundamentally altered the nature of the district's program. The district failed to demonstrate such an impact. While the district might have to provide staff training and address other students' reactions to the dog, the alleged harm was relatively minor. Moreover, the parents established that the child was likely to suffer irreparable harm if he could not bring the dog to school. "[The parents have] sufficiently shown that keeping [the child] and [the dog] apart during school hours will disrupt the service dog relationship," Judge Guilford wrote. Given the parents' likelihood of success on the merits of their discrimination claims and the potential for irreparable harm to the child, the court held that a preliminary injunction requiring the district to allow the dog in school was an appropriate temporary remedy.

40

8. 54 IDELR 155 L.R. v. STEELTON-HIGHSPIRE SCHOOL DISTRICT U.S. District Court, Middle District of Pennsylvania April 7, 2010

Case Summary

Noting that a 13-year-old boy went without special education services for seven months after his grandmother's house burned down, a District Court ordered a Pennsylvania district to reenroll the student immediately. The court held that the student's status as a "homeless youth" under the McKinney-Vento Act required the district to continue his schooling. The court rejected the district's argument that the student was no longer homeless, as evidenced by the fact that he was living with relatives in another district. Under the McKinney-Vento Act, the court explained, children who share the housing of others due to a loss of their own housing qualify as homeless - - regardless of the duration of their stay. Moreover, the McKinney-Vento Act requires districts to continue homeless students' education in their school of origin unless the parent or guardian objects. If the district disputes the student's status as a homeless youth, it must enroll the student in the school in which he seeks enrollment until the dispute is resolved. The court pointed out that the student missed five months of school as a result of the district's actions. "Although this would trouble the court under ordinary circumstances, it is even more troubling because [the student] is a student with a disability whose needs were met in the district over a period of years," U.S. District Judge Sylvia H. Rambo wrote. Furthermore, the court observed, the LEA in which the student's relatives resided had not yet held an IEP meeting to determine how to implement the student's special education services. Determining that the student was likely to succeed on his claim against the district and would suffer irreparable harm if not reenrolled immediately, the court ordered the district to readmit the student to his former school.

9. 110 LRP 54658 SONYA RENEE v. ARNE DUNCAN 623 F.3d 787 U.S. Court of Appeals, Ninth Circuit September 27, 2010

Case Summary

A group of California students and their parents, joined by two community organizations successfully argued that a federal regulation implementing NCLB should not be followed because it was contrary to congressional intent. NCLB requires that, in schools receiving Title I funds, all teachers hired to teach core academic subjects be "highly qualified." The act defines a highly qualified teacher as one who has obtained full state certification. The challenged regulation provides that a teacher can be highly qualified under NCLB if the teacher is participating in an alternative route to certification program and is making progress toward full state certification. The group alleged that in the years since the ED issued the

41 regulation, California districts hired thousands of alternative route participants and allowed them to become concentrated in low-income and minority areas, thereby undermining a congressional intent to ensure that schools in these areas have fully credentialed instructors. Neither NCLB nor the ED's regulations define "alternate routes to certification," the 9th Circuit noted. But the group's challenge of the regulation turned not on whether a teacher has reached certification through an alternative route but on whether a teacher has achieved full state certification. The term "full state certification" was also ambiguous in the regulations, the court said, because it substantially depended on how it was defined by state law. "It is undisputed that NCLB gives the state[s] great flexibility in deciding which teachers are fully certified under state law, and that the secretary cannot compel a state to adopt any specific credentialing system," the 9th Circuit wrote. Nonetheless, identifying teachers as highly qualified who are not fully certified under state standards -- but who are making progress toward certification through an alternative route -- does not comport with NCLB, the court ruled. Reasoning that the ED's regulation was inconsistent with congressional intent that districts hire highly qualified teachers to teach core subjects in schools receiving Title I funds, the court held that it was not enforceable.

X. 11th Circuit Cases

1. 54 IDELR 183 MAHONE v. BEN HILL COUNTY SCHOOL SYSTEM 377 F. App'x 913 U.S. Court of Appeals, Eleventh Circuit May 5, 2010

Case Summary

A PE teacher was not liable for alleged constitutional violations related to an incident involving a middle schooler with asthma and ADHD. The teacher allegedly shoved the student head-first into a trash can in front of his brother and another classmate during PE class. He then allegedly pulled the student out of the trash can by his legs. The superintendent instructed the principal to investigate the incident. The investigation indicated that the student and the teacher frequently engaged in horseplay in a joking manner. Concluding that the teacher was not being malicious or mean-spirited, the principal counseled the teacher not to engage in horseplay with his students. The student's parent sued the teacher under Section 1983, alleging that his actions violated the student's substantive due process rights under the 14th Amendment. Specifically, the parent argued that the incident deprived the student of his liberty interest to be free from physical and mental abuse at school. The 11th Circuit held that the District Court was correct in finding that the teacher's actions could not be characterized as corporal punishment because there was no evidence that he acted to punish the student. Moreover, the evidence did not suggest that the teacher's conduct was arbitrary or conscience shocking. Although the student allegedly experienced post-traumatic stress disorder and other psychological injuries as a result of the incident, the court noted, he did not sustain any physical injuries. A teacher whose conduct is neither corporal punishment nor conscience- shocking does not trigger a substantive due process violation, the court explained. While the

42 teacher had no legitimate purpose for his actions, the court reasoned, his conduct did not shock the conscience in a constitutional sense. Absent a constitutional violation, the teacher was entitled to qualified immunity.

2. 57 IDELR 93 K.I. v. MONTGOMERY PUBLIC SCHOOLS U.S. District Court, Middle District of Alabama August 24, 2011

Case Summary

Noting that an Alabama district had no information on the cognitive abilities of a student with extremely limited muscle movement, the U.S. District Court, Middle District of Alabama reversed an IHO's finding that the district offered FAPE. The court explained that the lack of evaluative data prevented it from holding that the student's IEP was appropriate. Because the district failed to evaluate the student's cognitive functioning or ability to use assistive technology, the court noted that the IEP team had no information about the student's general intelligence, communicative status, or academic abilities. "The record reflects that no one -- neither [the district] nor [the student's] parents -- actually knows what level of cognitive function [the student] possesses," U.S. District Judge Mark E. Fuller wrote. Without that information, the IEP team could not develop goals that accurately reflected the student's potential and academic achievement. The court observed that the goals the district developed for the student might in fact be appropriate. Until the district conducted an appropriate evaluation, however, the court could not uphold the IHO's finding that the IEP offered an educational benefit. The court did affirm the IHO's conclusion that a self-contained school for children with specialized medical needs was the student's LRE. Even if the student could receive an academic benefit from a general education classroom, the court explained, the distractions posed by gastronomy tube feedings and airway suctioning, coupled with the risk of infection, made a mainstream placement inappropriate. Still, the court instructed the district to reconsider the student's placement after it finished her evaluations.

3. 55 IDELR 16 MAY v. MOBILE COUNTY PUBLIC SCHOOL SYSTEM U.S. District Court, Southern District of Alabama July 13, 2010

Case Summary

An Alabama district's knowledge of a middle school student's violent propensities was not enough to allow a teacher to hold it constitutionally liable for injuries she sustained while implementing his IEP. The student, who had mental disabilities, allegedly injured the teacher when she attempted to stop him from attacking the principal. The teacher claimed that despite seven documented incidents of violent behavior, the district failed to remove him from school or take other steps to ensure her safety, such as preparing her to handle his violent outbursts.

43

The teacher sued the district under Section 1983, alleging that it violated her substantive due process rights by being deliberately indifferent to her safety. An employee must allege that her employer engaged in arbitrary or conscience-shocking behavior to establish a substantive due process violation. Because the district's alleged deliberate indifference to the teacher's safety did not rise to the level of conscience-shocking behavior, the magistrate judge recommended that the court deny the teacher's attempt to hold it liable for constitutional violations. In DeShaney v. Winnebago County Department of Social Services, 103 LRP 32360, 489 U.S. 189 (1989), the U.S. Supreme Court recognized that the state has a limited duty to protect citizens from harm that arises when the state has the person in its custody. The teacher argued that to comply with the IDEA, she had no choice but to follow the student's IEP, even if it placed her in danger. Therefore, she claimed, her employment relationship with the district was similar to someone in state custody. The magistrate judge rejected the notion that by submitting herself to unsafe job conditions, at the risk of losing her job, the teacher converted a voluntary employment relationship into an involuntary custodial relationship worthy of government protection from workplace hazards. Editor's note: The District Court adopted the magistrate judge's report and recommendation at 55 IDELR 45.

4. 54 IDELR 243 T.W. v. SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA 610 F.3d 588 U.S. Court of Appeals, Eleventh Circuit June 29, 2010

Case Summary

Despite claiming that the teacher of an autism class provoked the behaviors that prompted her to physically restrain a middle schooler with PDD-NOS, a parent could not show that the teacher or the district violated the student's constitutional rights. The 11th Circuit affirmed a decision reported at 52 IDELR 155 that the teacher's actions were not unreasonable in light of the student's in-class behaviors. The court explained that excessive corporal punishment is actionable only when the conduct is arbitrary, egregious and conscience-shocking. Although the parent alleged that the teacher's actions were rooted in malice and sadism, the court observed that her use of restraint could be viewed as an attempt to restore order, maintain discipline, and prevent the student from harming himself. For example, the court observed that the teacher pinned the student's hands behind his back on one occasion when he refused to follow her instructions and swung his hands at her. In another incident, the teacher put the student face down on the floor and sat on him after he refused to go to a "cool down room." Recognizing that the teacher may have resorted to force too soon, the 11th Circuit nonetheless observed that her use of restraint was not wholly unjustified. "We disapprove of [the teacher's] actions in no uncertain terms, and we are sympathetic to the harm that [the student] and his classmates suffered as a result of [her] misconduct," U.S. Circuit Judge William H. Pryor Jr. wrote. Given the connection to the student's behavior, however, the court could not find that the teacher's conduct was conscience-shocking. U.S. Circuit Judge Rosemary Barkett dissented from the majority's opinion, determining that the teacher's use of restraint and excessive force violated the student's constitutional rights.

44

5. 54 IDELR 157 D.D. v. CHILTON COUNTY BOARD OF EDUCATION 701 F. Supp. 2d 1236 U.S. District Court, Middle District of Alabama April 6, 2010

Case Summary

Strapping a 4-year old boy with pervasive developmental disorder to a therapeutic chair in a hallway for several minutes did not violate the 14th Amendment, according to the U.S. District Court, Middle District of Alabama. Under the circumstances, including the child's aggression and the brevity of the restraint, the measure did not "shock the conscience," at least in a constitutional sense. The teacher who placed the child in the chair explained that she wanted to stop him from kicking people. She claimed that she presented the child with the option of sitting in his chair or using the therapeutic chair, and that the child chose the latter. The teacher applied the chair's Velcro® waist strap and sat the child in the hallway facing the wall until his mother arrived. The mother sued the district for depriving the child of his right to liberty and bodily integrity. The court pointed out that to violate substantive due process, the conduct must be conscience shocking. Peterson v. Baker, 5 GASLD 53, 504 F.3d 1331 (11th Cir. 2007). The court held that the teacher's actions fell well short of that standard. It noted that the situation might have been different if the student had been restrained for an entire school day. Here, however, the child was restrained for less than 10 minutes in a chair he chose to sit in. Moreover, the child sustained no physical injury from the measure. The court also held that the restraint was not a sufficient deprivation of liberty that required advance notice and a hearing. Finally, declining to exercise jurisdiction over the parent's negligence claims, the court noted that its ruling did not reflect on whether the teacher's actions were lawful under state tort law.

6. 56 IDELR 300 JEFFERSON COUNTY BOARD OF EDUCATION, v. S.B. U.S. District Court, Northern District of Alabama May 26, 2011

Case Summary

A district policy requiring at least a one-year expulsion for all students who brought handguns to school helped support the district's claim that a 12th-grader with an SLD should not be permitted to participate in commencement exercises. Noting that participation in graduation was not part of the student's IEP, the District Court held that the district could exclude the student from graduation. The court noted that it could identify only two cases that addressed whether participation in commencement is part of the FAPE guaranteed to students with disabilities under the IDEA. Both of those cases stated that graduation is not a component of FAPE. Furthermore, the court observed that the student was not excluded on the basis of his disability. The district conducted an MD review and determined that his conduct was unrelated to his SLD. The court

45 also pointed out that the Gun-Free Schools Act of 1994 required the district to expel all students who carried guns to school for at least one year. District policy further required those students to spend at least one semester after their expulsions in an IAES. "All of the uncontroverted evidence indicates ... that a nondisabled student in [the student's] same situation would not be permitted to return to [the public high school], and would not be permitted to participate in the graduation ceremony," U.S. District Judge C. Lynwood Smith Jr. wrote. Absent evidence that commencement was part of the student's IEP, the court explained, the student could not demonstrate a right to participate in the high school's graduation ceremony. The court thus enjoined the enforcement of an administrative order that required the district to allow the student's participation in commencement exercises.

7. 56 IDELR 225 PHILLIP and ANGIE C. v. JEFFERSON COUNTY BOARD OF EDUCATIONU.S. District Court, Northern District of Alabama April 26, 2011

Case Summary

The IDEA's failure to mention public funding in connection with IEEs could relieve an Alabama district of liability for a 5-year-old boy's private assessment. Determining that the U.S. Department of Education exceeded its authority when it provided for publicly funded IEEs in the IDEA Part B regulations, a federal magistrate judge recommended that the District Court reverse a decision in the parents' favor. The magistrate judge observed that two provisions of the IDEA address IEEs. One provision, found at 20 USC 1415(b)(1), says that a state's system of procedural safeguards must include the parent's right to obtain an independent evaluation of the child. The second provision, found at 20 USC 1415(d)(2)(A), states that a district's notice of procedural safeguards must reference the parent's right to an IEE. "Nowhere does the statute authorize the evaluations to be provided 'at public expense,'" U.S. Magistrate Judge Robert R. Armstrong Jr. wrote. Although the Part B regulation at 34 CFR 300.502 sets forth requirements for publicly funded IEEs, the magistrate judge pointed out that the IDEA precludes the ED from implementing regulations that violate or contradict statutory provisions. The magistrate judge also observed that the regulation imposes a financial obligation on school districts that Congress did not include in the text of the IDEA. Concluding that the regulation was void, the magistrate judge advised that the court reverse an order at 48 IDELR 117 requiring the district to reimburse the parent for the child's IEE. However, the magistrate judge noted that the parents would be entitled to reimbursement if the District Court upheld the regulation. Editor's note: The District Court rejected the magistrate judge's report and recommendation at 57 IDELR 97 to the extent that the magistrate judge found that the IDEA does not permit publicly funded IEEs.

46

8. 56 IDELR 268 MS. H. v. MONTGOMERY COUNTY BOARD OF EDUCATIONU.S. District Court, Middle District of Alabama May 12, 2011

Case Summary

The decision to continue a high schooler's current level of Section 504 accommodations despite her frequent tardies, failure to complete work, and refusal to participate in class could prove costly for one Alabama district. Observing that the student's academic struggles might be the result of an inadequate Section 504 plan, the U.S. District Court, Middle District of Alabama denied the district's motion for judgment on the parent's Section 504 claim. The court acknowledged that the student exhibited a negative attitude toward school and that she put little effort into her classes. However, the court noted that the district had not conducted any new tests or assessments of the student between 2001 and 2009. In addition, the parent alleged that the Section 504 plans developed for the student's freshman, sophomore, and junior years were nearly identical. "For example, [the student's] plans were barely altered from the beginning of ninth grade through the end of eleventh grade, despite the fact that [the student] had failed classes and graduation examinations during that period," U.S. District Judge W. Harold Albritton wrote. The court recognized the possibility that the student's lack of success might have resulted from her own actions rather than the district's purported failure to provide appropriate accommodations. Still, because the parent presented facts suggesting deliberate indifference on the part of the district, the court could not dismiss the parent's claim. The court thus denied both parties' motions for judgment.

9. 111 LRP 47376 Opelika City (AL) School District March 18, 2011

Case Summary

Noting that it was irrelevant that the student had an IHP, OCR found the 19-month delay unreasonable. Opelika City (AL) Sch. Dist., 111 LRP 47376 (OCR 2011).

OCR interprets Section 504 as requiring a district to evaluate a student within a reasonable time after it learns that he may have a qualifying disability. 34 CFR 104.35(d).

As of Aug. 2007, the district had reason to believe the student had a disability, and should have scheduled an evaluation. "The existence of an IHP and transmission of a message directing the [parent] to follow up if there were problems did not relieve the District of its legal obligation," OCR wrote. Moreover, the failure continued after a second request, and for a period of time that was clearly unreasonable.

47

10. 57 IDELR 21 Choctaw County (AL) School District Office for Civil Rights, Southern Division, Atlanta (Alabama) February 4, 2011

Case Summary

Evidence that a seventh-grader's math and science teachers routinely asked the student if he had his homework, redirected the student in class, and sent contact sheets to the parent helped an Alabama district to fend off claims of Section 504 violations. OCR found insufficient evidence that the district failed to implement the student's Section 504 plan. Although the parent alleged numerous implementation failures, OCR found that the teachers followed the plan as a matter of routine. Both teachers used verbal reminders to redirect the student when he got off task, and both sent communications to the parent each Wednesday in accordance with a parent-teacher contact protocol established by the district. OCR also observed that the teachers checked with the student each day at the start of class to ensure he had his textbook and homework. "The Mathematics teacher stated that ... she took the entire class, including the student, to their lockers on the way to class after lunch to have all students get books and materials," OCR wrote. The science teacher similarly told OCR that she sent the student to his locker at the start of class if he did not have his class materials on hand. In addition, the teachers informed OCR that they provided assigned seating as the student's plan required. Finding insufficient evidence of an implementation failure, OCR declined to find a Section 504 violation as alleged in the parent's complaint. OCR did find that the district violated Section 504 by failing to provide the teachers with a revised copy of the student's Section 504 plan, but noted that the district voluntarily agreed to resolve the compliance concern.

Christopher P. Borreca Thompson & Horton LLP (713) 554-6740 [email protected]

497305

48