OSEP comments on CSE composition

The composition of the CSE is oftentimes questionable. Some school districts – e.g. New York City – will oftentimes convene meetings without including those individuals that have the best knowledge of the child. OSEP recently issued a policy letter in which they stated that “if a child with a disability has an identified need for related services, it would be appropriate for the related services personnel to attend the meeting.” Furthermore, “[i]f the child’s disability is a speech impairment and the only service the child receives is speech-language pathology, and speech-language pathology is also considered special education rather than a related service under State standards, then the special education provider on the IEP Team for the child should be the speech-language pathologist …OSEP believes that it is critically important to the provision of FAPE that the public agency require individuals to attend IEP Team meetings who are in the best position to address the educational program for, and the unique needs of, each child with a disability … OSEP expects that each public agency will ensure that each child’s IEP Team is composed of persons knowledgeable about the child and the child’s full range of educational needs, including the amount and type of special education and related services that the child needs in order to receive FAPE.”

Supreme Court denies cert in 8th Circuit IDEA discipline case

Doe v. Todd: The Supreme Court denied cert in a case in which a South Dakota high school student with learning disabilities was placed in an alternative school for 38 days without a formal hearing. Parent chose to seek recourse through the school board rather than through IDEA due process.

Saranac Lake School District sued for failure to appropriately address bullying

Parents have filed a $6 million dollar lawsuit against the Saranac Lake Central School District to address allegations that their young daughter was bullied, harassed and assaulted in school because of her race. See article.

Guidance on physical education for students with disabilities

The federal government recently issued guidance on physical education for students with disabilities. The report can be found here.

4th Circuit Court of Appeals issues important internet bullying decision

Kowalski v. BERKLEY COUNTY SCHOOLS (4th Cir. 2011): Student K.K. set up a My Space page targeting a fellow student at her high school. She did so on her home computer. The Court determined that the student used the internet “ to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District's recognized authority to discipline speech which "materially and substantially interfere[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others.”” The Court, thus, upheld the suspension of K.K.

Private evaluator can observe student in the classroom

SRO 11-074: Parents have the right to have the evaluator of their choice, for whose services they have not sought reimbursement from the district, observe the student in his district classroom.

Attorney fees

The issue of attorney fees has been in the forefront of late. Today’s case of note is not a special education case, but is one that is of interest in the special ed lawyer’s world, as it addresses a court’s decision to award negligible fees in light of the small monetary award achieved by the plaintiff. The case, MILLEA v. METRO NORTH RAILROAD COMPANY, decided by the 2nd Circuit on August 8, 2011, was brought pursuant to the Family Medical Leave Act (FMLA), which has an attorney fee provision similar to the IDEA fee provision. There are a few things of note in the decision. The district court reduced the fee award reasoning that the claim upon which the plaintiff prevailed “had no public policy significance.” The 2nd Cir. held that that was error reasoning that “[b]y enacting a fee-shifting provision for FMLA claims, Congress has already made the policy determination that FMLA claims serve an important public purpose disproportionate to their cash value. We cannot second-guess this legislative policy decision.”

        The Second Circuit found that “the district court impermissibly reduced its initial fee award based on an incorrect conclusion that Millea's victory was “de minimis.” Millea, 2010 WL 126186, at *6. The $612.50 award was not de minimis; to the contrary, the award was more than 100% of the damages Millea sought on that claim. It was not a derisory or contemptuous rejection by the jury. The district court conflated a small damages award with a de minimis victory.”

        The Second Circuit found that “calculating attorneys' fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. The whole purpose of fee-shifting statutes is to generate attorneys' fees that are disproportionate to the plaintiff's recovery. Thus, the district court abused its discretion when it ignored the lodestar and calculated the attorneys' fees as a proportion of the damages awarded.”

EDNY affirms reimbursement award and addresses mootness and justiciability

NYC v. V.S. (E.D.N.Y. 7-29-2011): Parents disagreed with the NYC DOE recommendations, placed their autistic child at the Rebecca School and sought reimbursement. The IHO ruled in favor of the parents; the SRO dismissed the DOE appeal on mootness grounds as the DOE had paid the full year of tuition as pendency. The DOE appealed to federal court. The EDNY held that the case was not moot, given that the child’s continued pendency placement would turn on the court’s ruling. Next, the DOE sought remand to the SRO; the Court declined to remand reasoning that while remand is permissible under some circumstances, the drawbacks outweigh the benefits, particularly since the IHO had issued a well reasoned decision. The court than deferred to the judgment of the IHO finding that her conclusions were well supported by the record. In particular, the court affirmed the IHO’s conclusions regarding methodology (while the Rebecca School administrator testified “in some detail as to why TEACCH would be unable to teach V.S. the basic skills he needs to learn, the DOE has cited no evidence that TEACCH would be an effective method for educating V.S.”) and the size and mixed-use nature of the school building (“the general education school in which the self-contained 6:1:1 class would be housed would create a sensory overload for [V.S.] which would interfere with not only his learning but the learning of his classmates as well”).

SRO holds that regents diploma does not moot compensatory education claim

see SRO 11-044

D.C. Circuit reverses award of attorney fees to district

DISTRICT OF COLUMBIA v. IJEABUONWU, 09-7092 (D.C. Cir. 6-28-2011): Parent filed a hearing request alleging failure to timely evaluate. District fairly quickly offered a comprehensive independent evaluation. IHO dismissed the hearing request as moot. The District then sued for attorney fees. The District Court awarded fees to the school district. The Circuit Court reversed, finding that

If the District were considered a prevailing party under these circumstances, then DCPS could ignore its legal obligations until parents sue, voluntarily comply quickly, file for and receive a dismissal with prejudice for mootness, and then recover [attorneys'] fees from the parents' lawyers. Straus, 590 F.3d at 902. To allow this practice would deter lawyers from taking IDEA cases and thereby deprive parents of their most effective means of enforcing the statute.

SRO reverses IHO and awards partial reimbursement to parent

SRO 11-041: The IHO found against the parent on a private school reimbursement case. In what is an extraordinarily rare occurrence, the SRO reversed in favor of the parent holding that the CSE had inadequate evaluative information from which to develop the IEP, that the private placement was appropriate, and that the equities weighed in favor of a partial reimbursement award. The equities section is the most interesting. The SRO held that the parent had not provided adequate prior notice of the intent to seek reimbursement for the private placement, the SRO only docked the parent 25% for said failure. The SRO then found that the parents had not adequately established that they lacked the resources to front the student’s tuition costs. Thus, it appears that the SRO denied the parents request for an order that the DOE pay the private school directly; rather the SRO ordered that the DOE reimburse the parent 75% upon proof of payment of the tuition.

3rd Circuit upholds reimbursement for supplemental home based services

NEW MILFORD BOARD OF EDUCATION v. CR (3rd Cir. 2011): Parents supplemented the school program for their autistic child with two hours of nightly in-home education at their own expense. The parents alleged that the district failed to provide a FAPE asserting that an appropriate IEP required substantial in-home instruction to curb their child’s aggression and self-stimulation. The parents sought reimbursement for two hours of nightly in-home education secured at their own expense. The ALJ, district court and 3rd Cir. all ruled for the parent. The 3rd Circuit reasoned:

T.R.'s IEP was inadequate because the "complementary nature of the home program was required for [him] to receive the meaningful educational benefit mandated by the IDEA." New Milford Bd. of Educ. v. C.R., 2010 WL 2571343, at *6 (D.N.J. June 22, 2010). If a mentally disabled child continuously presents an adverse behavior that genuinely interferes with his ability to garner any real benefit from the education provided and the IEP does not adequately remedy this behavior, it stands to reason that the school district has failed to provide even a "basic floor of opportunity," much less the meaningful benefit required by our Court. D.S., 602 F.3d at 557. Here, the record included substantial evidence that T.R.'s behaviors were not only detrimental to his home life, but also interfered with his learning. For example, T.R.'s aggressive behavior resulted in his avoidance of educational tasks during his IEP program. For this reason, we agree that T.R. did not receive the meaningful educational benefit required by the IDEA.

4th Circuit upholds reimbursement for home schooling placement

Sumter v. Heffernan (4th Cir. 2011): Parents pulled their autistic child from the public school system and set up a program for him at home. They then sought reimbursement for the costs of an ABA therapist. In what appeared to be a close decision, one that prompted a dissent in part, the Court ruled in favor of reimbursement. Of particular interest is the 4th Circuit’s rejection of a strict application of the LRE requirement as applied to a parental placement. The 4th Circuit joins the 8th Circuit as Courts recently adopting a looser standard for LRE as a factor in determining the appropriateness of the parental placement.

5th Circuit: Failure to attend meeting subsequent to resolution session does not defeat parents attorney fee claim

ECTOR CTY. INDEPENDENT SCHOOL DIST. v. VB (5th Cir. 2011): Parent requested an impartial hearing. At the resolution session, the school district offered to schedule another CSE meeting to address the parent’s concerns. The district did in fact schedule such a meeting and, on the advice of counsel, the parent refused to attend. The matter went to hearing and the parent prevailed. The school district appealed. The district court held in favor of the parent, rejecting the school district’s argument that the parent had “unreasonably and needlessly protracted the litigation by refusing to attend the [CSE] meeting that would have implemented an alleged agreement made at the meetings.” The district court also awarded attorney fees to the parent. The 5th Circuit affirmed. The Court reasoned that alleged protraction of litigation is irrelevant with respect to the analysis as to whether a party has prevailed. It may, however, be relevant to whether a fee award should be reduced. Here, however, the Court rejected the district’s argument that a fee reduction was warranted. The Court refused to read into the law a requirement that the parent participate in a meeting subsequent to the resolution session.

EDNY addresses whether bullying could result in the denial of FAPE

T.K. v. NYC (EDNY 2011): This case presents the interesting and timely issue of whether bullying can result in a denial of FAPE. Parent placed child privately and sought reimbursement. The IHO and the SRO ruled against the parent. Judge Weinstein of the EDNY examined the issues from a variety of different angles, ultimately denying the District’s motion for summary judgement and adopting a test as follows: “under IDEA the question to be asked is whether school personnel were deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in her educational opportunities.” Judge Weinstein determined that “the issue requires a court evidentiary hearing, and, a possible remand to the state authorities for a rehearing.”

Conduct need not be outrageous to fit within the category of harassment that rises to a level of deprivation of rights of a disabled student. The conduct must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment. Id. Where a student is verbally abused repeatedly and suffers other indignities such as having his property taken or is struck by his fellow students, and a school does nothing to discipline the offending students despite its knowledge that the actions have occurred, the student has been deprived of substantial educational opportunities. Id. The rule to be applied is as follows: When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if the harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination. Compare, DOE Bullying and Harassment Letter, supra, to Werth v. Bd. of Dirs. of Pub. Schs., 472 F. Supp.2d 1113, 1127 (E.D. Wisc. 2007); K.M. v. Hyde Park Cen. Sch. Dist., 381 F. Supp. 2d 343, 358-60 (S.D.N.Y. 2005) (citing Davis, 526 U.S. at 640-53). It is not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education. The bullying need not be a reaction to or related to a particular disability.

To be denied educational benefit a student need not regress, but need only have her educational benefit adversely affected. Academic growth is not an all-or-nothing proposition. There are levels of progress. A child may achieve substantial educational gains despite harassment, and yet she still may have been seriously hindered. Growth may be stunted providing an education below the level contemplated by IDEA. In New York, IEP's are required to give children more than an opportunity for just "trivial advancement." Mamaroneck Union Free Sch. Dist., 554 F.3d at 254. The law recognizes that a student can grow academically, but still be denied the educational benefit that is guaranteed by IDEA. Where bullying reaches a level where a student is substantially restricted in learning opportunities she has been deprived a FAPE. Whether bullying rose to this level is a question for the fact finder.