Board presses for more special education funding

School officials in New Jersey hope a new proposal before Congress will increase funding for children with special needs. (That would be good.) To see more, click here.

Hearing to settle fate of student

The Manatee County School Board and a mother are set to square off in court over a child's right to a special education plan. The purpose of the September 23, 2004 hearing is to decide how the child's education should be handled while the family and school district wait for the case to go to trial. For more information, click here.

What's going on in Kansas?

Groups representing 65,000 Kansas students with disabilities filed legal briefs supporting a court order that declared the current school finance system discriminatory and unconstitutional. For more information, click here.

Deal Reached in Disabled Students Case

Students with disabilities would receive special accommodations when they take their high school exit exams and the option to take a modified test if they fail, under a settlement agreement that's just the second of its kind in the United States. For more information, click here. And, yes, I'm aware that this news is about a month old. Nobody's perfect, you know.

On the other hand . . .

An Oakland judge has refused to grant more time on the national medical school entrance exam to two learning-disabled students who say their inability to read fast enough to finish the test doesn't reflect their potential skills as doctors. For more information, click here.

New York Times article

"School Acheivement Reports Oftern Exclude the Disabled." From today's New York Times -- see here.

Limitations and Administrative Remedies

Ashlee R was diagnosed with a learning disability while attending elementary school in the Oakland Unified School District. An Individual Education Program (IEP) was developed for her and she was educated pursuant to the IEP. Before Ashlee started high school, she was diagnosed with Attention Deficit Disorder (ADD).

When Ashlee started attending the high school, problems began. The teachers at the high school were not trained to review or follow her original IEP. The school district did not respond to modify her IEP in a timely manner after learning she had ADD. In fact, Ashlee's teachers were not informed of her disability, which caused friction and problems between her and her teachers. Ashlee's mother had to remove her from school and home school her for the remainder of the school year.

At the end of the school year, Ashlee received an IEP that addressed her ADD.

Ashlee and her mother brought an action for damages, alleging violations of the Rehabilitation Act, the Individuals with Disabilities Education Act (IDEA), the Civil Rights Act and the Americans with Disabilities Act, as well as provisions of state law. The school district moved to dismiss the action on the statute of limitations grounds and for failure to exhaust administrative remedies.

The Court denied the motion.

The Court held that the Rehabilitation Act and the Civil Rights Act claims borrowed the one-year statute of limitations for personal injury actions. While the action was brought outside the one-year limitations period, the period was tolled because Ashlee was under 18.

IDEA does not include a statute of limitations, but California implements IDEA through its special education programs laws. Under California law, there is a three-year statute of limitations for requesting a due process hearing, steming from the time that the party making the request knew or had reason to know the facts underlying the basis of the request. While the complaint was not clear as to whether Ashlee had requested and been denied a due process hearing. The Complaint, however, stated that the plaintiffs had attempted to contact the administration in order to modify Ashlee's IEP and that the IEP was not modified in a timely manner. In oppostion to the motion, the plaintiffs asserted that they had never been notified of their procedural rights and administrative remedies. Based on this, the Court declined to dismiss plaintiffs' IDEA claims. However, the Court held that further discovery was needed to ascertain whether plaintiffs had exhausted their administrative remedies, suggesting that a motion for summary judgment might be appropriate.

Ahlee R. v. Oakland Unified School District Financing Corp. does not appear to be available on the Internet. Its Westlaw cite is 2004 WL 1878214 (N.D. Cal. Aug. 23, 2004).

Case of First Impression

Citing the broad discretion courts have in fashioning appropriate relief for violations of the Individuals with Disabilities Education Act, the Third Circuit held that reimbursement to a parent for the time she personally spent working with her disable child after the county refused to provide early intervention services constituted appropriate relief under IDEA. The decision in Bucks County Dep't of Mental Health/Mental Retardation v. Commonwealth of Pennsylvania can be found here.

Depressing, but Ultimately Uplifting

P.S. was an unlucky kid. For whatever reason, all the kids harassed him relentlessly. It got to a point where he was diagnosed as suffering from depression. The psychiatrist prescribed medication, but there was no appreciable improvement. When his grades slipped badly, the school district classified him as eligible for special education and related services based on perceptual impairment. The school district's Child Study Team (CST) developed an Individualized Education Program (IEP) that place P.S. in the resource room for math and gave him extra teacher attention to help with his organizational skills. The CST manager believed that his poor academic work was due to the bullying rather than any cognitive deficiencies. Over the next few years, P.S.'s IEP was tweaked and his classification remained the same

When P.S. reached eighth grade, the harassment became so bad that he attempted suicide. At the request of his psychiatrist, he was home schooled for six weeks. His classification was then changed in that the school district found him eligible for special education on the basis of emotional disturbance.

When the time came for P.S. to go to high school, his parents requested that he be assigned to a school in a neighboring district, where his current classmates could not go and which had a drama program in which P.S. had an interest. The CST from his junior high school concurred that that placement would be good for P.S., but the new high school rejected the request. P.S.'s parents unilaterally placed him in the out-of-district school. They sought mediation (which was unsuccessful) and requested a due process hearing.

The hearing officer held that the high school could not provide P.S. with a free appropriate public education as required by IDEA and ordered the school district to reimburse for the out-of-district tuition and related costs, including attorneys' fees.

The school district commenced an action in District Court against P.S.'s father, and the father cross-claimed for atttorneys' fees. Relying on the administrative record, the Court found that the least restrictive environment was the high school in P.S.'s school district.

The Third Circuit reversed, holding that the District Court did not give due weight to the findings of the ALJ.

The decision in Shore Regional High School Board of Education v. P.S. can be found here.

When an impairment is not a disability

While not a case under the Individuals with Disablities Education Act, the case of Wong v. Regents of the University of California should be of interest to readers of this blog. Wong had a learning impairment that limited his ability to process and communicate information. He was in medical school and had requested additional time to read and prepare for his clerkships. When such accommodation was made, Wong was able to obtain passing grades and to receive generally positive evaluations. But a time came when the school was not willing to continue to make such accommodations. When Wong received a failing grade in his pediatrics rotation, he was dismissed from the medical school. He brought an action against the University under the Americans With Disabilities Act and the Rehabilitation Act.

The District Court dismissed the action and the Ninth Circuit affirmed, holding that Wong's learning impairment did not substantially limit him in a major life activity. While it might have been true that his impairment made it difficult to complete the medical school curiculum, that was not the issue before the Court. The issue was whether his impairment substantially limited his ability to learn as a whole, for purposes of daily living, as compared to most people. The Court noted Wong's past record of academic success and fond that he was not substantially limited in his ability to learn as a whole.

The decision can be found here.

Israel and Special Education

The Israeli Supreme Court has issued a decision obligating the Finance Ministry to allocate funds to realize the right of special-needs children to be mainstreamed. An article on the decison from Haaretz, an Israeli newspaper can be found here.

Exhaustion of Administrative Remedies

In Oliver v. Dallas Independent School District, 2004 WL 1800878 (N.D. Tex. Aug. 11, 2004), a child with a mathematical learning disability called discalculia sought relief for violation of IDEA, alleging that the school district's failure to identify and address her disability had denied her the education to which she was entitled and hampered her ability to complete her colleged degree in a timely manner. Her case was dismissed because of her failure to exhaust administrative remedies.

The plaintiff argued that she had never been notified of her rights by the school district. The Court, however, held that the school had not been aware of her disability. Although her mother had expressed concern about her difficulties in mathematics, the Court held that that was not the equivalent of requesting an evaluation. Nor did the student's single failing grade in a math class (which she was able to pass over the summer) and difficulty in passing the math section of a standardized test (which she passed, having been given certain non-IDEA acommodations) trigger a notice requirement on the part of the school. Hence, the school district had no reason to provide the student with notice of her rights under IDEA. Also, the Court found that the student's mother was a 30-year veteran of special education teaching and was fully aware of her child's rights under IDEA.

The plaintiff also had not shown that resort to the administrative process would have been futile. The student had graduated from high school and was seeking monetary damages. As to monetary damages, the Court held that the unavailability of such relief does not relieve the student from the exhausting the administrative process. Nor did her graduation excuse her failure to go through the administrative process. The record suggested that the mother was aware of the learning disability as early as the student's sophomore year. The Court held that a student cannot sit on her rights, and then seek damages after graduation. The student could have obtained complete relief through IDEA in the form of changes to her individualized evaluation program, additional educational services and remedial education.

Unfortunately, this case is not on-line except through pay services, at least to the best of my knowledge.

Least Restrictive Environment Violation

The Tenth Circuit, in L.B. v. Nebo School District, has adopted the two-part test for ascertaining whether the least restrictive environment mandate in IDEA has been violated stated in Daniel R.R. v. Board of Education. Daniel R.R. holds that a court, in making such a conclusion, must (1) determine whether education in a regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily, and (2) if not, determine if the school district has mainstreamed the child to the maximum extent appropriate. Factors used in making such determinations include (1) steps the school district has taken to accommodate the child in the regular classroom, including the consideration of a continuum of placement and support services, (2) comparison of the academic benefits the child will receive in the regular classroom with those she will receive in the special education classroom, (3) the child's overall educational experience in regular education, including non-academic benefits and (4) the effect on the regular classroom of the disabled child's presence in that classroom. Some courts have also considered the cost of supplementary aides and services, but, in that the school district claimed that cost was not a factor in this case, the Tenth Circuit did not consider that factor.

The parents in L.B. wanted their daughter, who had autism spectrum disorder, to be able to continue in a private school with a supplementary aide (who was being phased out) and 40 hours per week of Applied Behavior Analysis (ABA). She had been making substantial progress in that setting. The school district wanted to put the child in a school populated mainly by disabled students, but includes 30-50% typically developing children who interact with the disabled students. The school district was willing to provide the child with a few hours per week of speech and occupational therapy and eight to fifteen hours per week of ABA.

At a due process proceeding, the hearing officer found the the school district's plan constituted a free appropriate public education. The District Court agreed.

On appeal, the Tenth Circuit found that, under the Daniel R.R. test, the school district had not provided the least restrictive environment for the child. The Court found that the evidence showed that the academic and non-academic benefits in the mainstream school far outweighed those offered by the school that the school district had chosen for her. The Court further held that the parents were entitled to reimbursement for the reasonable cost of the services provided to the child in her mainstream preschool education and for their reasonable attorneys' fees and litigation costs.

The decision can be found here. Congratulation to Gary S. Mayerson, who represented the parents in this action.

Big Day in the DC District Court V

Whatley v. District of Columbia involves attorneys' fees. (This is getting monotonous.) The plaintiff prevailed in two due process hearings. The school district paid attorneys' fees up to the statutory cap then in place in the District of Columbia. The plaintiff moved for the fees incurred during the administrative process, but were not paid because of the fee cap. As mentioned in an earlier post, Congress had dropped the fee cap in 2002, but had placed a provision in the 2002 appropriation bill that would prevent a plaintiff from seeking payment of fees incurred during the period that the fee cap was in effect. The plaintiffs argued that since such a provision was not in subsequent appropriation bills, they could seek retroactive payment of fees. The Court rejected this argument, holding that the 2002 appropriation bill clearly prevented plaintiffs from seeking fees for the period when the fee caps were in place.

The plaintiffs then argued that the section of the 2002 appropriation bill (section 140) was unconstitutional on the ground that it violates the separation of powers doctrine. The argument was that the permanent cap unlawfully usurps the Court's authority by effectively removing from the courts all discretion to award fees under a statute that affirmatively gives them such power. The Court rejected this argument as well, noting that the D.C.Circuit in Calloway v. District of Columbia, had held that the fee cap did not impinge on the Court's power to award fees; it only prevented the school district from paying the fees. [This does not seem to me to be a satisfactory answer. If the Court orders fees to be paid, but the school district is not allowed to pay, how can the Court enforce its order? It really does impinge on the Court's power.]

The plaintiffs asserted that section 140 also violates the separation of powers doctrine by improperly nullifying Calloway. They claim that Calloway held that if the fee cap were ever lifted, the plaintiffs would be entitled to the remainder of any previous fee petitions that were limited by the cap. By enacting section 140, Congress impermissibly sought to change the dispostion of Calloway. Judge Friedman, however, disagreed. He stated: "Whiel the decision in Calloway does not prohibit parties from seeking future payments of past fees, it by no means requires payment if the cap is lifted. The issue of whether plaintiffs have a right to obtain past fee amounts from subsequent years' appropriations simply was expressly left open in Calloway, and Section 140 (2002) therefore cannot deprive the judgment in Calloway of its 'conclusive effect.'"

Finally, the plaintiffs claimed that section 140 effected a taking in violation of the Fifth Amendment. The claim was that counsel had agreed to represent the plaintiffs on a contingency basis and continued to represent them because she had an interest in and a reasonable expectation that she could some day collect the remainder of her fees when the cap expired. The Court rejected this claim, asserting that the Calloway decision, even coupled with the temporary nature of the fee caps, was not sufficient to create a property interest in the excess fees. Hence, there was no takiing.

Bad news for the attorneys. But some very original arguments.

Big Day in the DC District Court IV

Case number 4 (of 5) is Watkins v. Vance. Yet another decision relating to attorneys' fees. The Court held that because the fee action was brought under section 1983, rather than under the Individuals with Disabilities Education Act, the restrictions on attorneys' fees under IDEA do not apply. The Court, however, held that the fee cap discussed in prior posts precluded recovery of fees above the cap for the years when the cap was in place. The decision can be found here.

Big Day in the DC District Court III

Case number three of five is Armstrong v. Vance. This case is about what seems to be the most important principle of the Individuals with Disabilities Education Act -- attorneys' fees.(Wait! That's not right.) The plaintiffs filed an action for attorneys' fees incurred at the administrative stage in enforcing their due process rights under IDEA. The plaintiffs moved for summary judgment and the defendants cross-moved to dismiss.

The defendants claimed that the claim was barred by the statute of limitations. The defendants asserted that the 30-day time period for appealing the decision of an administrative law judge in due process hearing under IDEA should apply for fee applications as well. The Court disagreed, holding that the 3-year statute of limitations under D.C. Code 12-301(8) for actions for which a limitation is not otherwise specifically prescribed was applicable. The Court stated that "a longer limitations period will promote greater attorney representation of parents and their children in IDEA proceedings and also will provide more time for settlement discussions with respect to attorneys' fee petitions, thereby making civil litigation over attorneys' fees less likely and conserving judicial resources."

The next issue addressed was that of whether the plaintiffs were prevailing parties under Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of Health and Human Resources. The Court held that Buckhannon precludes a party from obtaining attorneys' fees if its settles during the administrative proceeding and does not obtain a subsequent court order enforcing the settlement agreement. The Court stated, in a footnote, that it "also joins the concern expressed by other members of the Court that Buckhannon's preclusion of fees in these circumstances 'will have potentially deleterious effect on the ability of parents to challenge the District's IEP determinations and may lead parties to forego settlement at the administrative level.'" (quoting Heintz v. District of Columbia, Civil Action No. 01-1124(CKK), Memorandum Opinion at 8). The Court's holding on this issue mandated the dismissal of many, although not all, of the claims.

The final issue determined by the Court related to the fee cap contained in the DC appropriation acts. The 2002 Act did not contain such a cap, however, it made clear that plaintiffs seeking fees in 2002 or later could not seek retroactive reimbursement for fees incurred in the years where the cap existed. To the extent that the application sought such retroactive reimbursement that exceeded the caps, the claims were dismissed.

All in all, a pretty sad day for the attorneys in this case. The decision can be found here.

Big Day in the DC District Court II

Judge Friedman's second decision of August 5, 2004 also involved the case of Blackman v. District of Columbia. This decision gave more of the background of the case. The case is a consolidation of two class action cases. The first class consisted of persons whose requests for due process hearings were overdue. The second class consisted of children who were entitled to a free appropriate public education (FAPE) and had been denied it because the school district either failed to fully and timely implement agreements concerning a child's identification, evaluation, educational placement or provision or provision of FAPE that the school district had negotiated with the child's parent or educational advocate or had failed to fully and timely implement the determination of hearing officers.

On June 3, 1998, the Court granted plaintiffs' motion for summary judgment on liability. It did not issue a classwide injunction, assuming that the school district would act appropriately. Wrong! By 1999, it was clear that the school district was not meeting its responsibilities to the classes. The Court appointed a special master for the limited purpose of assisting the Court in resolving the requests for immediate injunctive relief.

Three plaintiffs moved for preliminary injunctive relief, seeking to enforce settlement agreements. The Special Master, in each case, recommended that the relief be denied, because, subsequent to the making of each motion, the school district complied with the terms of the settlement, and the Court followed the recommendations. Each of the plaintiffs moved for attorneys' fees.

The question faced by the Court was whether the plaintiffs were prevailing parties under Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of Health and Human Resources. The school district argued that the plaintiffs were not prevailing parties under Buckhannon because the relief that they obtained was pursuant to private settlements. The plaintiffs argued that they were entitled to attorneys' fees because they were class members and were prevailing parties because of the Court's order granting summary judgment. This decision altered the legal relationship between the parties and had the imprimitur of the Court. The plaintiffs argued that unless fees are awarded in situations such as this, plaintiffs will be unable to utilize the one method available to them to ensure compliance with the settlement agreement reached with the school district.

The Court, however, noted that the mere fact that they were part of a successful class did not, by itself, give the plaintiffs "prevailing party" status for the purpose of an award of attorneys' fees. Work done after summary judgment was granted is only compensable if the later work is inextricably intertwined with the summary judgment. The plaintiffs must have acheived substantial success in the litigation as a whole. And the plaintiffs cannot obtain fees if the work done was redundant, inefficient, or simply unnecessary.

Under this standard, the Court awarded attorneys' fees to each of the plaintiffs. The decision can be found here.

Big Day in the DC District Court I

August 5, 2004 was a big day for Judge Paul L. Friedman of the United States District Court for the District of Coumbia. On that date, he issued five decisions dealing with special education law. The first, Blackman v. District of Columbia, involved a motion for attorneys fees and costs filed by plaintiff Michelle Bridgeford, mother and next friend of Rochelle Bridgeford. The underlying case involved an application for a preliminary injunctions seeking to enforce a settlement agreement entered into by the parties in lieu of a due process hearing. The Court granted the injunction and a motion for attorneys' fees was made. The total amount sought was $7,048.73 in attorneys' fees and costs.

The school district opposed the motion. First, it claimed that a statutory cap on fees exists which limits the amount of fees that a plaintiff can obtain in an action brought under the Individuals with Disabilities Education Act. The Court, however, stated that the cap was inapplicable, as this action was brought under 42 U.S.C. 1983.

Second, the school district claimed that, under Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of Health and Human Services, the plaintiff was not entitled to attorneys' fees. In order to obtain fees under Buckhannon, the plaintiff must show that there is an alteration in the legal relationship of the parties that has been given some judicial imprimatur. The Court held that the order, granting injunctive relief, altered the legal relationship between the parties and provided the required judicial imprimatur.

The Blackman case can be found here.

School Districts Suing

According to yesterday's Seattle Times, the Issaquah and Lake Washington school districts signed on for a lawsuit to challenge state funding of education by demanding more money for special education. Six other school districts may follow suit. For more details, click here.

We're Here!

I am Sandy Hausler, your friendly neighborhood special education law blogger. To the best of my knowledge, the FAPE Page is the only blog dedicated to special education law (at least so far). I will try to keep my readers up to date on what is going on in this field . Obviously, you can be of great help to me by alerting me to new cases that come down. So feel free to e-mail me at shausler@gmail.com.

I am a New York lawyer and associated with the law firm of Cox Padmore Skolnik & Shakarchy LLP. I have a general civil and appellate litigation practice and am a new practitioner in the field of special education law. If I can be of any help to any one, feel free to give a holler.

I have another blog called Second Opinions, which deals with the decisions of the United States Court of Appeals for the Second Circuit. Feel free to visit.