The FAPE Page

Summer Conflict

2010-06-15T16:51:00.002-04:00

The Third Circuit has held that an IEP enacted before summer vaction, but not implemented does not establish the "stay put" placement when a placement dispute arises over the summer. The decision in LY v. Bayonne Board of Education can be found here.

Negative Multiplier

2009-12-28T11:50:00.002-05:00

A parent and student prevailed, in part, in an action against a school district in which they claimed that the student had been denied FAPE. The District Court awarded the plaintiffs $104,349.45 in attorneys' fees. The School District appealed the award of attorneys' fees, asserting that the amount sought, $113,267.16, should be reduced by 75% because the plaintiffs had only prevailed on one of four claims. The Third Circuit rejected the School District's position, stating that while an attorneys' fee award can be reduced when the plaintiffs have only acheived partial success, there is no precise rule for making such a determination. In this case, the District Court had found that the plaintiffs had acheived substantial success in the litigation. The Third Circuit affirmed the fee award of the District Court.

The decision in Damien J. v. School District of Philidelphia can be found here.

2009-11-18T17:07:00.002-05:00

Statute of limitations. The Third Circuit has held that the two-year statute of limitations for an IDEA claim also applies to a claim brought under section 504 of the Rehabilitation Act rather than applying an analogous state statute of limiations. The Court's decision was based on its conclusion that IDEA and section 504 do similar statutory work. The Court noted that this was an issue of first impression.

The decision in P.P. v. West Chester Area School District can be found here.

Location, Location, Location

2009-10-12T15:32:00.003-04:00

The Second Circuit, in T.Y. v. New York City Department of Education, has held that the failure of an IEP to name a specific school as the placement for a child does not render the IEP procedurally deficient. While the statute, 29 U.S.C. 1414(d)(1)(A) requires that an IEP provide a location, the Court noted that the United States Department of Education had concluded that "[t]he location of services in the context of an IEP generally refers t the type of environment that is the appropriate place for provision of the service. For example, is the related service to be provided in the child's regular classroom or resource room?" It held that this conclusion comported with the Senant's commentary, which stats that "[t]he location where special education and related services will be provided to a child influences decisions about the nature and amount of these services and when they should be provided to a child. For example, the appropriate place for the related service may be the regular classroom, os tha thte child does not have to choose between a needed service and the regular educational program. For this reason, in the bill the committee has added location to the porivision in the IEP that includes 'the prjected date for the beginning of services and modifications, and the anticipated frequency, location and duration of those services.

The Court also noted that improper omissions from the IEP, which are corrected in the administrative process does not render an IEP, as a whole, substantively deficient.

The decision can be found here.

Milwaukee Appeals!

2009-07-10T15:48:00.002-04:00

Milwaukee is appealing from an order requiring it to come up with a plan for compensating students who had been denied FAPE during the years 2000-2003. The City claims that the order is overly broad.

For more information, read the article located here.

What's the deal?

2009-06-29T17:14:00.001-04:00

What is the deal with the Charlotte-Mecklenberg school?

Reimbursement

2009-06-22T10:22:00.002-04:00

IDEA authorizes reimbursement for private special-education services when a public school fails to provide FAPE and the private school placement is appropriate. regardless of whether the child previously received services through the public school.

It's true. The Supreme Court said so. Right here.

2009-06-17T10:24:00.002-04:00

Non-custodial parent. A non-custodial parent had challenged certain decisions made as to the special educational services being provided to his child. The District Court dismissed the action, holding that the plaintiff, as the non-custodial parent, lacked standing. The Second Circuit certified a question to the New York State Court of Appeals as to whether a non-custodial parent had the right to participate in the educational decisions relalating to his child. In the case at issue, the custodial parent had exclusive custody and the divorce decree was silent on this issue. The Court of Appeals, modified the question slightly (changing the right to participate in educational decisions to decision-making authority) and answered the question in the negative. Based on this answer, the Second Circuit affirmed the District Court's order, dismissing the complaint for lack of standing.

The decision of the Court of Appeals in Fuentes v. Board of Education of the City of New York can be found here.

The decision of the Second Circuit affirming the District Court's dismissal of the case, can be found here.

Certified question.

2008-08-28T09:08:00.000-04:00

In an action brought under the Individuals with Disabilities Education Act, a father brought an action seeking relief on behalf of him and his disabled son. Because he was the non-custodial parent, the distirict court held that he did not have standing to bring the action. The Second Circuit held that standing turned on an unsettled issue of New York state law and certified the question for decision by the New York State Court of Appeals.

The certified question is:

Whether, under New York law, the biological and non-custodial parent of a child retains the right to participate in decision pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions?

The Second Circuit noted that two departments of the Appellate Division, New York's intermediate appellate court, have held that non-custodial parent does not retain such a right, but it "was reluctant to take that final step [considering the Appellate Division decisions as determinative] in the absence of a Court of Appeals pronouncement because the ruling has broad implications affecting the custodial relationships in New York -- a matter of paramount concern."

The decision in Fuentes v. New York City Department of Education can be found here.

No Attorneys Fees

2008-05-14T08:59:00.002-04:00

The Third Circuit has held that a parent-attorney is not entitled to attorneys' fees in a federal action brought under IDEA for the benefit of his child. The Court believed that the purpose of awarding attorneys' fees is to create an incentive to hire independent counsel.

The decision in Pardini v. Allegheny Intermediate Unit can be found here.

New Judge

2008-04-30T10:22:00.001-04:00

The attorney who represented the student in the Tom F. case before the Supreme Court has been nominated to serve as a District Judge in the Southern District of New York. See this article from the New York Sun.

Bad News in NYC

2007-12-12T16:42:00.000-05:00

According to the New York Times: "New York City, at the suggestion of private consultants, is significantly ramping up its effort to challenge cases in which it pays for private school tuition of children with disabilities whose parents say they are ill-served by the public schools." The article can be found here.

Split Vote

2007-10-10T11:57:00.000-04:00

In New York City Department of Education v. Tom F., the Supreme Court has upheld the Second Circuit's decision by a 4-4 vote. The case involved the issue of whether a child has to have gone to a public school before the the school district has to recompense him for the cost of a private placement. The decision (it's not much) can be found here.

Tom F.

2007-10-02T09:05:00.000-04:00

Oral argument was held in Board of Education of the City School District of the City of New York v. Tom F. and the transcript is available on the Supreme Court website. The case involves the issue of whether parents were entitled to reimbursement for special education services provided at a private school where the student had never received an educational services at a public school.

Exhaustion

2007-10-02T08:48:00.000-04:00

The Second Circuit held that a student had to exhaust his administrative remedies before going to Federal Court even though he was scheduled to graduate before his remedies could be exhausted. The plaintiff in Coleman v. Newburgh Enlarged City School District had the award of attorneys' fees revered because the District Court should have dismissed the action for failure to exhaust.

The Court left open the question as to whether the exhaustion requirement is jurisdictional (and non-waiveable) or merely mandatory (but waiveable). In this case, the School District has not waived the defense.

The decision can be found here.

Leave the Hearing Officer Alone!

2007-06-04T11:36:00.000-04:00

The Second Circuit has held that a district court should not overturn the decision of a hearing officer if the decision is reasoned and supported by the record. The decision in Gagliardo v. Arlington Central School District can be found here.

Section 1983 and IDEA

2007-06-04T11:25:00.000-04:00

The Third Circuit has ruled (en banc) in A.W. v. Jersey City Public Schools that a litigant may not bring a section 1983 to redress rights under IDEA. This case overrules W.B. v. Matula, which held to the contrary.

The decision can be found here.

A little late

2007-06-04T11:06:00.000-04:00

Sorry for being late on reporting the Supreme Court's ruling in Winkelman v. Parma City School District. The Court held that parents could represent their children in federal actions brought under the Individuals with Disabilities Education Act, or rather, they could appear pro se to vindicate their own rights which are coextensive with those of their children. Justices Scalia and Thomas concurred in part and dissented in part. I had read the transcript of the oral argument and had believed that the view expressed by Justice Scalia would prevail (allowing parents only to appear without a lawyer to enforce claims for reimbursement of expenses owed them under IDEA or to enforce procedural rights, but not to litigate issues as to whether FAPE is being provided). But I was wrong. Chief Justice Roberts and Justice Alito went with the majority. The decision was written by Justice Kennedy.

The decision can be found here.

14th Annual Education Law Conference.

2007-05-31T17:05:00.000-04:00

Just received the following info from Linda Morin-Pasco and thought I'd pass it on to my readers:

14th Annual Educational Law Conference July 24 – July 27, 2007 Portland, ME

July 27, 2007 offers 7.0 CLE credits, including 1.0 Ethics Credit.Please click here for additional details for July 27, 2007 or to connect to the link register for this conference.

For the complete program schedule from July 24 through July 27, 2007, please click here.

Conference includes 50 small up-to the-minute workshops by nationally known law, policy, and research experts including sessions on autism, special education, closing achievement gaps, student aspirations, civil rights, harassment and discrimination, school reform, liability and risk avoidance, and more ...
Great networking opportunities, always rave reviews from participants about the chance to meet a diverse group of attendees and make contacts that last ...
CLE and continuing education credits available, also Conference available for credit (1-3 credits) and School Law (1 week intense course, 3 credits) through USM. Email for more information.

DATE: July 24-27,2007

TIME: Various times, 8:30-4 plus evening events

LOCATION: University of Southern Maine & University of Maine Law School, Portland, ME

MORE INFO: Sarah Redfield, sredfield@pacific.edu

Keynote speakers: USDOE Undersecretary Morgan Brown on Strategic Support for Innovation, Alliance for Excellent Education President Governor Wise on Making Education Work, Ed-Trust’s Paul Ruiz on No Time to Waste, Russ Quaglia on Achievement and Aspiration; & Federal Judge Morrison England on Education Equity.
Special events include the stellar Blackboard Bench & Bar reception at the Portland Museum of Art, lobster bake on Peaks Island, and a bayside reception for Critical Exposure and Constitutional Literacy.

Register Now by phone or online, USM Conferences 207-780-5960, www.edlaw.org

Federal Jurisdiction

2007-05-14T11:45:00.000-04:00

An interesting question of federal jurisdiction arose in a recent Second Circuit case. A student's IEP provided that the student was entitled to a 1:1 paraprofessional, but only at the public school. The student attended a parochial school, and the parents asked for a due process hearing, seeking to have the services of the paraprofessional be provided to him at his private school. The hearing officer ruled in favor of the parents. The school district appealed to the New York Education Department's State Review Officer, who agreed with the hearing officer, except held that there was no obligation to provide the paraprofessional under IDEA. He did, however, find such an obligation under the New York State Education Law. The school district filed an action in the federal court, challenging the determination of the State Review Officer. The District Court upheld the decision of State Review Officer.

On appeal, the Second Circuit held that because there was no right to the relief under federal law, the Court lacked jurisdiction. Even if IDEA incorporates certain state standards relevant to this case (an issue not decided), this does not provide an independent federal question that would sustain a federal court's jurisdiction. Nor does the provision of IDEA that allows an aggrieved party from an administrative decision in a special education action to bring an action in federal court, allow such a party to bring an action where there was no federal question. To hold that the court had jurisdiction in such a circumstance would allow jurisdiction insonsistent with Article III. The Court decided that the case should be brought in state court and dismissed the action.

The decision in Bay Shore Union Free School District v. Kain can be found here.

What is a "child with a disability"?

2007-03-15T08:03:00.000-04:00

In Mr. I v. Maine School Administrative District No. 55, the district challenged the child's entitlement to any special education services. claiming that a child is entitled to such services "only if the sutdent's condition imposes a significant negative impact on the child's educational performance . . . limited to those areas of performance actually being measured and assessed by the local unit, in accordance with law." The First Circuit declined to accept this standard.

The decision can be found here.

2007-02-28T08:35:00.000-05:00

The Supreme Court has granted certiorari in a Second Circuit case, Board of Education v. Tom F., raising the issue of whether a child who was never provided with special education services by a public agency is entitled to reimbursement for a private placement. The Second Circuit said yes, but the First Circuit, in another case, has said no.

The language of the statute seems to indicate that the First Circuit is right, and I am not hopeful for the respondent (the child's father) in this case, but time will tell.

For more information on the case, click here.

Winkelman

2007-02-28T08:24:00.001-05:00

The Supreme Court heard argument yesterday in Winkelman v. Parma City School District. That case raised the issue of whether parents can represent their children in federal court cases under IDEA even if they are not lawyers.

The transcript of the argument can be found here.

What is an Action?

2007-02-01T10:34:00.000-05:00

The District of Columbia Appropriations Act of 2005 limites the amount of attorneys' fees that the District may pay to private parties in IDEA cases to $4,000 per action. The question arose as to whether an appeal in the district court is part of the same action as the administrative proceeding for purposes of the fee-shifting provision of IDEA.

The District Court held for the parents, but on appeal, the DC Circuit held that the administrative hearing and the judicial review comprise a unitary action for purposes of the fee-shifting provision. This means that while the district court can award an amount in excess of the cap, the District can only make payment of $4,000, at most.

This ruling undercuts the fee shifting provision of IDEA with respect to cases commenced in the District of Columbia. It is likely to have an effect on the kind of representation that a parent can obtain in such cases.

The decision in Jester v. Government of the District of Columbia can be found here.

Electronic Filing Boo Boo

2007-01-05T10:06:00.000-05:00

A case was electronically filed on the last permissible date under the wrong index number and was bounced. The plaintiff tried to refile it the next day, but by then it was untimely and the case was dismissed. The Seventh Circuit held that the case had been timely filed and reinstated the case. Despite the happy ending, this is a "lawyers beware" case.

Oh, this is a special education case, but the decision is procedural and the substance of the case is not discused.

The decision in Farzana K. v Indiana Department of Education can be found here.

Procedural Issue

2006-12-14T16:06:00.000-05:00

The Ninth Circuit, in S.J. v. Issaquah District No. 411, has held that the fact that a statute of limitations in an IDEA case does not mean that the state's time period for service of process applies where there is a federal rule covering that issue.

The decision in that case can be found here.

Disabled Student Advocate

2006-11-22T15:26:00.000-05:00

Dorothy Houlihan, a school psychologist at the Sussex Technical School District, would, in the course of her job, confront individulals in the District who were not complying with IDEA. The District changed her job description so that she could only make such complaints to the high school principal and the vice principal and supervisor of special education. When her complaints were ignored, she went to a school board member to discuss her concerns. After this meeting, she was given several reprimands and negative evaluations. Her prior evaluations had been positive. Finally, the District informed her that it would not be renewing her contract. Ms. Houlihan contends that she was terminated in retaliation for her efforts to bring the District in compliance with the IDEA and sued under the Rehabilitation Act, the First Amendment and Delaware Law. The defendants moved to dismiss.

The District Court of the District of Delaware held that Ms. Houlihan had alleged a claim under the Rehabilitation Act and under Delaware law. However, because her complaints were not made as a private citizen, but rather, as an employee of the District, it found that her First Amendment claim must be dismissed.

The decision in Houlihan v. Sussex Technical School District can be found on Westalaw at 2006 WL 3349534. The case was decided on November 16, 2006 I tried to get a link from the Court's website, but the link would not work. Sorry. Maybe it will be fixed soon.

Cert granted

2006-10-27T15:38:00.000-04:00

The Supreme Court granted certiorari in Winkelman v. Parma City School District. That case raises the question of whether a parent can appear on behalf of a child in a special education case in federal court.

New blog

2006-10-26T12:29:00.000-04:00

Again, I'm not sure how old this blog is, but it's new to me. Check out I Speak of Dreams, which should be of interest to people who read this blog. It is run by Liz Ditz and you can find out more about the philosophy of her blog here.

Substantial Compliance

2006-10-16T11:46:00.000-04:00

The Second Circuit has held that substantial compliance with IDEA is not sufficient to prevent a preliminary injunction being issued against a school district. While the Secretary of Education is permitted to withhold funds from a school district that has not substantially complied with IDEA, that requirement does not provide a district to avoid injunctive relief if it substantially complies with the statute. It is required to provide a free, appropriate public education.

The Second Circuit, in DD v. New York City Department of Education, however, held that the plaintiffs were not entitled to relief immediately, but "as soon as possible."

The case was remanded to the District Court for a decision under the correct standards. The Court suggested that the preliminary injunction motion be combined with the merits and that the entire controversy be adjuciated.

The decision can be found here.

What does "including" mean?

2006-09-27T08:59:00.000-04:00

That issue of statutory interpretation was raised in Arizona State Board for Charter Schools v. United States Department of Education.

Under the Individuals with Disabilities Education Act (and the Elementary and Secondary Education Act o 1965) , federal education funds, which have been given to the states, can be distributed to "local eduationsal agencies," which are defined as "a public board of education or otherwise public authority legally constituted within a State for either administrative control or direction, or to perform a service function for, public elementary schools or secondary schools."

Under IDEA and ESEA, an "elementary school" is defined as "a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary education as determined under State law." A "secondary school" is defined as "a nonprofit institutional day or residential school, including a public secondary charter school, that provides secondary education, as determined under State law."

The Department of Education's Office of Inspector General concluded that the Arizona Department of Education ahd imporperly awarded federal IDEA and ESEA funds to for-profit entities that operated charter schools in Arizona. The Department determined that because the charter schools were for profit, they were not eligible for federal funds. Arizona sought resolution of this issue before the District Court. The District Court upheld the ruling of the Department of Education, and Arizona appealed.

Arizona took the position that "including" should be understood in the context of the statutes to mean "and" or "in addition to." The interpretation, it contended, would allow for-profit charter schools to be eligible to receive federal funds.

The Ninth Circuit disagreed. While it noted that on occasion some courts have interpreted "including" in the manner suggested by Arizona, such an interpretation was utilized to avoid an irrational or absurd result. Such an interpretation was not required here. Instead, the term should be understood as meaning "such as."

The Court also held that its reading of the statute was consistent with the legislative history.

Finally, the Court held that deference should be given to the Department of Education's construction of the statutory scheme that it administers.

The decision can be found here.

Regressed.

2006-09-20T10:39:00.000-04:00

A Pennsylvania couple with a child with Asperger's Syndrome is suing the school district. They allege that the bullying that their son had to endure at school as a result of his disability, which the school did not curtail or prevent, caused him to regress. An article on the case can be found here.

Degree of Success

2006-08-30T10:06:00.000-04:00

The Ninth Circuit, in Aguirre v. Los Angeles Unified School District, held that reasonable attorneys' fees are determined using the rationale of Hensley v. Echkerhart, a case decided under 42 U.S.C. 1988. Hensley held thta a partially prevailing plaintiff generally may not recover fees for unsuccessful claims.

Judge Pregerson, concurring in the decision, noted that arriving at a figure for reasonable attorneys' fees, where not all claims are successful, is partially a matter of discretion and not an arithmetic calculation. Where successful claims are related to unsuccessful claims, the plaintiff should be entitled to reimbursement for both. And even if the unsuccessful claims are unrelated to the successful ones, payment may be appropriate if the work performed on the unrelated claims is inseparable from that performed in furtherance of the successful claims.

How the Court will apply the Aguirre case and the Pregerson concurrence remains to be seen.

The decision can be found here.

Ruling to Benefit Disabled Kids

2006-08-28T14:43:00.000-04:00

This article from The Jewish Week might be of interest to regular readers of this blog.

Class Action Lawsuit

2006-08-24T11:32:00.000-04:00

A new class action lawsuit has been commenced against the City of New York by the parents of special education students. It is alleged that when there is a dispute about services, the City stops providing the services immediately until the dispute is resolved in favor of the student (if it is). In the past, the City had continued to provide the services until the dispute had been resolved at a due process hearing. A news story on the action can be found here.

2006-08-24T09:34:00.000-04:00

New blog. Well, it's not really new, but it's new to me. I just discovered the Children's With Disabilities Blog. And you should discover it, too. (And I'm not just saying this because its moderator, Elizabeth's Mom, said nice things about my blog.)

Final Regs

2006-08-22T10:47:00.000-04:00

Well, the new regs are out and you can find them here.

Imprimatur

2006-08-22T09:43:00.000-04:00

The Ninth Circuit, in P.N. v. Seattle School District, No. 1, held that a parent, who resolved her differences with the school district through a settlement agreement, which did not receive any judicial imprimatur, was not a prevailing party entitled to recover attorneys' fees under IDEA. This is not a new development in the law, but it underscores the necessity of getting any settlement agreement "so-ordered" by the Court. Otherwise, even if you gain benefits from the school district, you are going to have to pay your own attorney. This has been the law since Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of Heath & Human Resources, and yet some people still screw it up.

The decision in P.N. can be found here.

2006-07-11T09:15:00.000-04:00

The First Circuit decided the issue of whether the Eleventh Amendment prevents a disabled student from suing a state university for damages under Title II of the Americans with Disabilities Act of 1990. As the Court noted, Congress can abrogate the sovereign immunity of the states so long as it makes its intention to abrogate this immunity unmistakeably clear in the language of the statute and acts pursuant to a valid exercise of its power under section 5 of the Fourteenth Amendment. The second prong of this test encompasses action that actually violates the Constitution or conduct that does not facially violate the Constitution but is prohibited in order to prevent and deter unconstitutional conduct.

The Court held that the statute's prophalactic purpose of protecting the constitutional rights to handicapped students met these requirements and properly abdicated state soverign immunity.

The decision in Toledo v. Sanchez can be found here.

No Parental Consent

2006-07-05T14:35:00.000-04:00

The Fifth Circuit held that a school district may compel a medical examination of a student, necessary for IDEA-mandated reevaluation purposes, even when the parent refuses to give consent. The decision in Shelby S v. Conroe Independent School District can be found here.

No Expert Fees!

2006-06-27T07:43:00.000-04:00

Well, it's not unexpected (at least not to me), but the Supreme Court issued a decision in Arlington Central School District Board of Education v. Murphy and held that the fee shifting provision of IDEA did not include expert fees. This is particularly bad news to us in the Second Circuit where the law was that when you prevail in an action, expert fees are paid by the school district. The decision was written by Justice Alito. Justice Breyer wrote the dissent. Justice Ginsburg concurred in part and concurred in the judgment. To read the decision, click here.

The Regs

2006-06-05T16:59:00.000-04:00

The Office of Management and Budget has confirmed that it is reviewing the final IDEA regs and that the process is on track for the release of the regulations by August.

Autistic Child Prevails

2006-05-30T08:44:00.000-04:00

Judge Robert E. Payne of the Eastern District of Virginia ruled that the Henrico County school system knowingly and repeatedly failed to provide a system of instruction suitable to a severely autistic child. For more information, click here.

Coming soon!

2006-05-22T16:25:00.000-04:00

Charles Fox of Special Education Law Blog says that, according to rumor, the new IDEA regs are coming out this summer. Time will tell.

2006-05-15T10:04:00.000-04:00

Simulations. I just received an e-mail from Professor Ruth Colker of the Michael E. Moritz School of Law of Ohio State University, where she is the Heck Faust Memorial Chair in Constitutional Law and teaches an interdisciplinary course on the law of special education.

She has developed a series of simulations that were developed (with the help of a grant) to be used in her class: (1) a client counseling simulation between an attorney and a parent, (2) a mock Individual Education Program meeting, and (3) a mock behavior manifestation meeting. These simulations are free to the public and I suggest you take a look at them. They can be found here.

I thank Professor Colker for bringing this important resourse to my attention.

No Fees!

2006-04-26T12:44:00.000-04:00

The Ninth Circuit, in a split decision, affirmed the decision of the United States District Court for the Central District of California, which declined to award attorneys' fees to the parents of a child afflicted with the cri du chat genetic defect. The District Court had found that the school district had prevailed on the primary issues in the case and that the parents had only prevailed on minor issues. The parents, however, had prevailed in finding that their child had been denied FAPE for a period of time and the child had been awarded compensatory educational services. They had lost on a number of procedural challenges that they had made. Dissenting, Judge Wardlaw argued that the parents' success had been significant and warranted an award of attorneys' fees.

The decision in Park v. Anaheim Union High School District can be found here.

Not Exhausted

2006-04-26T09:01:00.000-04:00

The V's claims that they were the victims of retaliation by the DeKalb County School District for asserting their child's rights under IDEA. They brought an action against the school district, asserting claims based on section 1983, the Americans with Disabilities Act, section 504, IDEA and the First Amendment. The District Court dismissed the action for failure to exhaust administrative remedies. The Elev enth Circuit affirmed, holding that the administrative procedures would give them the opportunity to present complaints with respect to any matter relating to the identification, evaluation or educational placement of their child, which would include the retaliation claims. The V's did not show that resorting to the administrative procedures would be futile or inadequate. Hence, the retaliation claims were dismissed.

The decision in W.T.V. v. DeKalb County School District can be found here.

Not Appealing

2006-04-26T08:45:00.000-04:00

Pledging a new spirit of cooperation, the Baltimore school system has agreed to drop its challenge of a federal judge's order for state managers to oversee all departments affecting special education. For more information on this encouraging development, click here.

Sister Blog

2006-04-24T14:18:00.000-04:00

In order to be conversant with what's on the blogosphere, you have to keep on top of it. For instance, back in September 2005, Charles Fox of Chicago, Illinois started the Special Education Law Blog, and I knew nothing about it until now. Of course, he may not have known about the FAPE Page until today (shame on him). At any rate, I plan on checking Charles's blog regularly, and you should as well.

Attorneys' Fees

2006-04-17T11:18:00.000-04:00

The Third Circuit, in P.N. v. Clementon Board of Education held that a consent order could confer prevailing party status on parents in an IDEA case, allowing a Court to award them attorneys' fees. It also held that even de minimus relief could confer prevailing party basis. The decision can be found here.

Whittier

2006-03-27T13:42:00.000-05:00

Whittier, California is in the midst of a battle with the family of one of its special education students. The California Department of Education has ordered the district to remedy certain violations of state law, which the plaintiffs claim it has not done. Meanwhile , the district is moving to dismiss the case on the grounds that the child no longer goes to school in the school district. For more info, click here.

Virgin Islands

2006-02-21T10:12:00.000-05:00

Well, there is a class action against the Virgin Islands Department of Education to force it to provide special education services to those children who need it. Now the government wants to talk. Click here for more information.

One More Year!

2006-02-02T16:54:00.000-05:00

California has put off for one year the requirement that all students pass an exit exam to graduate. The delay is only applicable for students with learning disabilities. For more information, click here.

2006-01-18T16:24:00.000-05:00

Richmond settles. Well, the Richmond, Virginia school district is settling the lawsuit brought against it for its failure to make its aging school accessible. For more information, click here.

What's happening in Milwaukee?

2006-01-05T08:29:00.000-05:00

Is that city systematically violating the rights of disabled students or not? See this article for more details.

2005-11-28T09:40:00.000-05:00

Another cross-posting. The Second Circuit is on the verge of deciding whether, in considering a challenge to the substantive validity of an individualized education program (IEP) in special education cases, a court may consider retrospective evidence. That issue had not been considered in the administrative proceedings or by the district court, so the Second Circuit remanded the case to the district court to decide that issue. The decision in D.F. v. Ramapo Central School District can be found here. This post is also posted on my other blog, Second Opinions, which deals with the Court of Appeals for the Second Circuit.

Depression

2005-11-18T08:42:00.000-05:00

Well, we're all depressed over the Supreme Court's decision in Schaffer v. Weast (well, except the school attorneys). So is the New York Times.

Alito and Special Education

2005-11-07T14:45:00.000-05:00

Well, I haven't done any research on Judge Alito's record on Special Education, but I came across this artcle which gives me hope. You should read it, too.

Unnamed case

2005-08-31T13:16:00.000-04:00

Because of a case that cost the school district $125,000, the Hyde Park Board of Education has promised better special education assessments. For more on this story, click here.

Stay Put!

2005-08-30T16:11:00.000-04:00

The Third Circuit has held that the stay-put provision of IDEA required the school district to continue to provide certain educational benefits while the dispute as to the appropriateness of such benefits was resolved. The child in this case was a three-year old, transitioning from an Individualized Family Service Plan to an Individualized Education Program. Under the Family Service Plan, the child was getting conductive education, an educational approach for children with central nervous system disabilities. The decision in Pardini v. Allegheny Intermediate Unit can be found here.

Thanks to C.E. Petit of Scrivener's Error for advising me of this decision (which came down yesterday).

The Derry case lives!

2005-08-29T17:05:00.000-04:00

I had been quite about the Derry case from Manatee County in Florida. But the case, in which the parent claims her son needs a special education plan to maximize his learning potential and the school district claiming that the student is doing well enough without a special education plan, is still winding its way through the district court. Final arguments have been made, and a decision is now being awaited (and will be reported here when it comes down). For more info on the current status of the case, click here.

Expert Fees

2005-08-01T18:49:00.000-04:00

The DC Circuit has decided that a prevailing party in an IDEA litigation cannot recover expert fees. This is in accord with decisions from the Seventh and Eighth Circuits, but in conflict with decisions of the Second and Third Circuits. The decision in Goldring v. District of Columbia can be found here.

Bad Grades

2005-07-25T16:55:00.000-04:00

The Los Angeles Unified School District earned poor marks Friday in its ongoing effort to reform special education programs, with an independent court monitor reporting that he doubted the district would make all mandated improvements by next summer's deadline.Among other criticisms, monitor Carl Cohn reported that the district was lagging in its efforts to integrate special education students into the general school population and that the district had completed only a tiny percentage of renovation projects intended to provide "handicapped access" for children with disabilities.

Oy!

For more, click here.

Settlement put off

2005-07-11T17:20:00.000-04:00

A judge in Philidelphia, Pennsylvania has put off the approval of a settlement of a special education law suit for about 60 days while he gets final summations from both sides. For more info, click here.

Controvery in Courts

2005-07-11T17:13:00.000-04:00

According to this article, courts in Oregon are deciding the issue of whether school districts have to reimburse parents for the price of private schooling when the parents claim that their children are not getting FAPE by public schools. I'm going to see if I can find the decisions on line and will post them as soon as I can (if I can find them).

Proposed regs

2005-06-24T08:38:00.000-04:00

If you'd like to see the new proposed regulations for IDEA 2004, click here.

No fees for lay advocates

2005-04-29T10:17:00.000-04:00

The Third Circuit has held that a parent may not recover fees for the services of a lay advocate under IDEA. The Court also made clear that a parent must sign the papers submitted in federal court or face sanctions under Rule 11. The decision in L.L. v. Vineland Board of Education can be found here.

Connecticut and Illinois are suing!

2005-04-13T13:49:00.000-04:00

Connecticut and Illinois are suing the Federal Government over No Child Left Behind. See here and here. But at least one Illinois school district is not joining in. See here.

To the Supremes Again?

2005-04-06T11:11:00.000-04:00

Hamilton County (Tennessee) School officials said they are weighing whether to appeal an autism case they have been fighting since 1999 to the Supreme Court. For more information, click here.

That Washington Lawsuit

2005-04-04T14:02:00.000-04:00

As the Washington Olympian says: "As 12 Washington school districts prepare to take the state to court over claims that lawmakers haven't adequately funded special education, some parents say the districts' lawsuit misrepresents the issue." Click here to find out more.

Cross-post

2005-03-31T08:21:00.000-05:00

It's been a while since I've done a cross-post with this blog's sister blog, Second Opinions, but another Second Circuit case in the area of special education law just came down. The Court, in Murphy v. Arlington Central School District Board of Education, has held that expert fees are compensable as costs under the Individuals with Disabilities Act, but that such fees will not generally be approved unless the application is accompanied by time records contemporaneously maintaned by the person performing the services. The decision can be found

Wow!

2005-03-22T17:50:00.000-05:00

Here's an Atlanta law firm making some money in the field of special education. Click here.

New Supreme Court Case

2005-02-23T18:04:00.000-05:00

Yes, the Supreme Court is hearing an IDEA case. The question presented in Schaffer v. Weast can be found here.

Read this

2005-02-16T10:13:00.000-05:00

You might want to read this artcle in the National Law Journal about a California judge requiring a law firm to take ethics training as a result of the firm's actions in a special education case.

Don't take your time

2005-01-19T17:44:00.000-05:00

One school district attorney in California got into a lot of trouble with a judge for delaying a special education case. For more information, click here.

Don't Take Your Time

2005-01-19T15:18:00.000-05:00

A law firm just got berated by a California judge for taking a lot of time on a special education case, representing the school district. For more information, click here.

Class Action

2005-01-06T13:48:00.000-05:00

Thanks to the settlement of a class action suit, more students with disabilities in Pennsylvania will soon be learning in a regular classroom settling. Click here for more info.

Nothing new: Disabled kids get the shaft

2004-12-09T09:10:00.000-05:00

This opinion piece on the situation in Los Angeles (see my prior post) might be of interest.

Court monitor flunks L.A. special education

2004-12-06T19:48:00.000-05:00

The Los Angeles public school system has made virtually no progress in improving instruction for its 85,000 special-education students, and its first 12 months under a federal consent decree amount to a "lost year," an independent monitor said Thursday. For more info, click here.

New blog

2004-12-01T09:21:00.000-05:00

A new blog, Law in Hyperspeed, has just appeared. It may be of interest to readers of this blog because it is written by an attorney with ADD. It certainly makes for interesting reading. Welcome to the blogosphere, "Addicus Finch"!

FAPE for gifted children

2004-11-30T07:50:00.000-05:00

A 14-year old boy genius is suing his California school district for his college tuition, claiming that the public schools have not provided him a free, appropriate public education. For more information, click here.

Parts of Special-Ed Bill Would Shift More Power to States and School Districts

2004-11-23T16:59:00.000-05:00

See this article in yesterday's New York Times.

Light period

2004-11-18T08:10:00.000-05:00

Sorry for the lack of posts. I check Westlaw every few days, but no new IDEA cases have popped up. I also check Google News frequently for news on cases relating to special education law, but have come up with nothing of interest to report in the past week. I'm sure things will pick up soon.

It's expensive to flout the law!

2004-11-11T09:18:00.000-05:00

An Oregon school district took a case against it brought by a whistleblower teacher, who sued claiming her discharge was the result of her complaints about poor services for special education students, and lost. The $1 million jury award and $404,150 in legal fees will be paid out of its general fund. Ouch! For more info, click here.

Oh, one last thing: I love the teacher's name -- Pamela Settlegood. If only the district had opted to take that route.

Invalid IEP

2004-11-09T07:47:00.000-05:00

The Ninth Circuit, in M.L. v. Federal Way School District, has held that the failure to have a regular education teacher on the IEP team rendered the individualized education program (IEP) invalid. The decision can be found here. (Thanks to Maureen Graves from the COPAA Law list serv for the pointer.)

Supplementing the Record

2004-11-01T10:04:00.000-05:00

Magistrate Judge Cohen, in Mr. and Mrs. I v. Maine School Administrative District No. 55, has allowed the parents to supplement the administrative record. The parents wanted to introduce testimony that would provide post-hearing information that would shed light on the reasonableness on the administrative decision not to provide special education services to their son. The Court, in reviewing the precedents, held that "courts have erred on the side of admitting evidence reflecting a child's post-hearing status on the theory that the proffered information might shed light on the reasonableness of (and thus be relevant to) the earlier decision."

The Court also allowed the parents to present testimony relating to the propriety of a neuropsychologist using a technician to administer portions of the testing given to the child. Because briefing was simultaneous, the parents did not have an opportunity to address that issue.

The decision can be found here.

Special ed student can't play

2004-10-25T17:10:00.000-04:00

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.

Joint Post III

2004-10-19T17:42:00.000-04:00

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.

Parents of Autistic Child Appealing Sharp County (Arkansas) Case

2004-10-15T15:29:00.000-04:00

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.

Exhausted

2004-10-14T09:13:00.000-04:00

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.

Joint Post II

2004-10-13T08:53:00.000-04:00

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.

Judge rules for Manatee schools

2004-10-12T10:03:00.000-04:00

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.

Joint Post

2004-10-11T16:10:00.000-04:00

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.

More on Manatee

2004-10-06T13:33:00.000-04:00

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.

Special-needs busing ends

2004-10-05T10:11:00.000-04:00

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

2004-10-05T08:20:00.000-04:00

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.

Appeals Court Upholds Ruling On Teacher Who Was Assaulted Twice

2004-09-28T14:01:00.000-04:00

This doesn't seem fair.

2004-09-28T11:55:00.000-04:00

I blogged on the Ingram case here. It's amazing the lengths to which football players will go to maintain their eligibility. It appears that David Ingram still could get a chance to play football this season, an administrative hearing officer with the Ohio Department of Education ruled yesterday. Ingram, a defensive tackle, sued the school district after he learned in August that he didn't pass an English class last spring. Ingram, who has a learning disability, saw his grade-point average drop under 1.0, which is the minimum required to participate in extracurricular activities. In the lawsuit, Ingram claimed that school officials failed to provide a tutor that the district makes available for special-needs students. In a separate attempt to restore his eligibility, Ingram filed an administrative complaint with the Ohio Department of Education requesting the school district provide Ingram "with services so that he can meet eligibility requirements to play this season." Yesterday, the administrator ruled that Ingram should be provided with a tutor. Of course, the school district could appeal, so the battle is not over. For more information on this case, click here.

All systems go

2004-09-27T14:23:00.000-04:00

I have checked all of the links on this blog. They are all functioning, even those in the archives. Again, thanks to Stacy Weiss of Special Education News and Links for alerting me to the problem.

Banned From the Playground

2004-09-27T09:12:00.000-04:00

What started as a playground spat between school officials and the parents of a child with autistic-like behavior could end up having repercussions for the way school districts treat children with neurological disorders. The parents of 9-year-old Jan Rankowski are suing Falmouth, Maine school officials for banning their home-schooled son, who has Asperger's syndrome, from the town's public playground. For more info, click here, here and here.