Monday, October 25, 2004

Special ed student can't play

A Hudson County (New Jersey) Superior Court judge denied a request Tuesday to allow a Hoboken High School football player to return to action for the school's 5-0 team while a question concerning his eligibility is decided among other agencies. The lawsuit stems from the fact that Terrance Vargas, classified as a special education student since grade school, was denied the right to participate in athletics because he failed two classes last year - even though there are New Jersey State Department of Education guidelines that state that special education students cannot be graded on the same scale as mainstream students. Superior Court Judge Maurice Gallipoli turned down Jennings' request for an immediate action that would have let Vargas temporarily return to the undefeated Red Wings in time for this weekend's game against Emerson High School of Union City. Gallipoli said that his court wasn't the appropriate place to decide such a matter, and that the New Jersey State Interscholastic Athletic Association normally hears such cases. For more information, click here.

This is the second special education/football case about which I've posted in the last few months. I've posted on the Ingram case here and here.

Tuesday, October 19, 2004

Joint Post III

Yet another special eduction case has come down from the Second Circuit. In AA v. Fred Philips, the Court held that the plaintiff bore the burden of proving that the defendants -- the New York State Education Department, the Commissioner of Education and the Governor -- that they had failed in their obligation to bring the Central Islip Union Free School District into compliance with the Individuals with Disabilities Education Act on issues specifically identified as deficient in a report issued by the Education Department and failed to comply with their monitoring and enforcement obligations with respect to district IDEA violations that were not noted in the report.The Second Circuit held that the plaintiffs had not met their burden and affirmed the dismissal of the District Court.

The decision can be found here. This post can also be found on The FAPE Page's sister blog, Second Opinions.

Friday, October 15, 2004

Parents of Autistic Child Appealing Sharp County (Arkansas) Case

The parents of an autistic child who sued the state and the Williford School District are appealing a federal judge's decision in favor of the district. Thomas and Dianna Bradley had claimed their son didn't get the free special education required by law.

The Bradleys had filed the lawsuit on behalf of their son David and other students in similar circumstances. They claimed the school district did not provide the legally required educational program to their son. The suit also claimed that the district didn't ensure that David's teachers had the knowledge and skill necessary to provide the youngster with an appropriate education.

For more information, click here.

Thursday, October 14, 2004


Three autistic children who were part of a special education program in Stanislaus County, California, sued the county and the school district, alleging that the policy of providing a shorter school day to autistic students constitutes discrimination under the Americans with Disabilities Act, section 504 of the Rehabilitation Act and California law. The District Court dismissed the action for failure to exhaust administrative remedies under the Individuals with Disabilities Education Act.

The Ninth Circuit reversed. It held that "the pursuit of the IDEA due process remedies under the facts of this case will not 'further the general purposes of exhaustion and the congressional intent behind the administrative scheme." This is because the school district's policy of shorter school days for autistic children had nothing to do with the content of the children's individual education programs. The policy was an across-the-board administrative decision. The policy had been challenged by a complaint resolution procedure, which procedure was pursued by the students to completion. The Court held that this procedure constituted adequate administrative exhaustion.

Judge Clifton dissented. He stated that the requirement of exhaustion of administrative remedies may only be excused when only a legal question are involved in determining the validity of a policy. He claimed that there was a factual element to the situation in this case: the school district claimed that lunch and recess periods counted as instructional time for the autistic children. (The majority had rejected that claim because the decision to institute the policy did not come out of the IEP development process.)

Judge Clifton also stated that the majority's decision "could cripple the ability of school districts to create generally applicable policies." If the policy is consistent with most, but not all, autistic students IEPs, the stuents for whom the policy is improper have the normal administrative avenues to resolve their issues.

Finally, Judge Clifton stated that the majority decision interfered with the discretion that was given to District Judges in such cases and set out a bright line rule that completion of a complaint resolution procedure is sufficient to constitute exhaustion.

The decision and dissent in Christopher S. v. Stanislau County Office of Education can be found here.

Wednesday, October 13, 2004

Joint Post II

Another Second Circuit special education case about which I am posting here and on Second Opinions, The FAPE Page's sister blog. (I am the father of both.) In J.S. v. Attica Central Schools, six students who attend school in the Attica Central School District brought an action against the school district, claiming that they had been denied a free appropriate public education and stating claims under the Individuals with Disabilities Education Act, section 504 of the Rehabilitation Act, section 1983 and New York State education law. The school district moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. The District Court denied the motion but certified the issue of subject matter jurisdiction for interlocutory appeal. The Second Circuit agreed to hear this appeal.

The jurisdictional issue was whether exhaustion of administrative remedies was required before a Federal District Court could hear the case. The District Court had held that the school district's alleged systemic violations of IDEA could not be remedied through administrative proceedings and that exhaustion would be futile.

The Second Circuit affirmed, holding that systemic violations of IDEA, as opposed to "textbook" cases presenting issues involving individual children, could not be remedied by administrative action and that the exhaustion requirement would be futile.

The systemic problems at issue included: (1) the school district's total failure to prepare and implement Individualized Education Programs, (2) the school district's failure to notify parents of meetings as required by law, (3) the school district's failure to provide parents with legally required progress reports, (4) the school district's failure to provide appropriate training to school staff, (5) the school district's failure to perform timely evaluations and reevaluations of disabled chilren, (6) the school district's failure to provide parents with required procedural safeguards regarding identification, evaluation and accommodation of otherwise disabled children and (7) the school district's failure to perform legally required responsibilities in a timely manner, including providing and implementing transition plans, transitional support services and declassification services for children with disabilities.

The decision can be found here.

Tuesday, October 12, 2004

Judge rules for Manatee schools

A federal judge sided with the local school district on October 8, 2004, denying a 10-year-old student with attention deficit hyperactivity disorder access to a special education plan while the child's lawsuit works its way through the courts. The child's mother, Joanie Derry, is suing the Manatee County School Board, claiming her son needs the special education plan to maximize his academic potential. The school district claimed the child does not warrant a potentially costly special education plan because he already makes good grades and scores well on standardized tests.

The ruling, by Judge James Whittemore of the United States District Court in Tampa, specifically addressed a preliminary injunction filed by Derry's attorney, Timothy Weber of St. Petersburg. The preliminary injunction asked the court to force the district to give the child an individual education plan because an administrative law judge ruled in the child's favor after a four-day hearing in March. The administrative law judge, Daniel Manry, ruled the child was disabled and entitled to an individual education plan.

Attorneys for the school district argued, during a Sept. 23 hearing in front of Judge Whittemore, that they were appealing the administrative law judge's ruling and therefore the child should remain in a regular education program until the entire case was settled.

Whittemore agreed with attorneys for the school district.

For more information, click here.

Monday, October 11, 2004

Joint Post

This is my first joint post with The FAPE Page's sister blog, Second Opinions. That blog covers opinions of the Second Circuit, so this post is about a special education case that came down from the Second Circuit.

The question presented in Mackey v. Board of Education for the Arlington Central School District was whether the parents of a learning disabled child are entitled to equitable relief under the Individuals with Disabilities Education Act, reimbursing them for private school tuition, when the denial of reimbursement results solely from the untimely issuance of a state administrative decision. The parents, disagreeing with the IEP developed by the school district, placed their child in a private school for the 2000-01 school year, while a decision was pending with respect to reimbursement at the same private school for the prior school year. Ultimately the state review officer held that the private school had become the student's pendency placement for the 2000-01 school year based on the finding that the parents were entitled to reimbursement for that school for the prior year.

The District Court, however, held that because the decision which found that the parents were entitled to reimbursement for the 1999-2000 school year was rendered after the 2000-01 school year, the parents could not be reimbursed for the tuition for that year.

The Second Circuit disagreed, holding that penalizing the parents because the state review officer was derelict was unfair. It remanded the case to the District Court for a finding as to when the student's pendency placement at the private school took place.

The decision can be found here.

Wednesday, October 06, 2004

More on Manatee

A lawsuit to decide if a child with attention deficit hyperactivity disorder deserves a special education plan has cost the Manatee County School District almost $40,000 so far.
The district has spent $37,763.36 on legal fees in the case, including $22,496.81 to Edwards and Scharff, a law firm in Palo Alto, Calif.; and $4,211.77 to the Tampa firm of Thompson, Sizemore & Gonzalez. Attorneys for the school district fear losing the case could prove more expensive than potential legal fees because it could open the door for costly special education programs to as many as 2,000 additional ADHD students in the school system.

Hey, nobody said it was cheap to violate a kid's rights under IDEA. For more information, click here.

Tuesday, October 05, 2004

Special-needs busing ends

The Erlanger-Elsmere school district in Ohio no longer has to bus children after school to Redwood School and Rehabilitation Center, a hearing officer has ruled. The district has been providing the service for about eight years for special-needs children. For more information, click here.

Washington School Districts Sue over Special Education Funding

Eleven Washington school districts have filed a lawsuit aimed at forcing the state to pay more for special education. The school districts collectively represent more than 20,000 special-education students. The districts are asking the Thurston County Superior Court to compel the state to pay special-education expenses as outlined by court decisions made more than 20 years ago. For more information, click here.

Good luck to them.