Special Education Year in Review 2014
Cases
Third Circuit Holds IDEA Stay-Put Provision Applies Through the Appeal to
Federal Circuit Court
Parents placed their child with a disability in a unilateral placement and requested a due
process hearing. The state level hearing officer ruled that the school district did not
provide a FAPE to the student and ordered the district to reimburse the parents for the
tuition and transportation costs. The school district appealed and the district court
reversed the hearing officer and held that the school district had offered a FAPE to the
student. The Third Circuit affirmed that decision in Ridley Sch. Dist. v. M.R., 680 F.3d
260 (3d Cir. 2012) (Ridley I).
The parents did not formally request that the school district pay for the student’s tuition
until after the district court decision, but before the Third Circuit’s decision in Ridley I.
When the school district refused to pay, the parents initiated a second suit, claiming the
IDEA’s stay-put provision required the school district to fund the unilateral placement
until all appeals were concluded. The district court ruled in the parents’ favor and the
Third Circuit affirmed. M.R. v. Ridley Sch. Dist., 744 F.3d 112 (3d Cir. 2014) (Ridley II),
cert. denied, Ridley School Dist. v. M. R., 2015 WL 2340858 (U.S., May 18, 2015).
The court began by discussing the operation of the IDEA’s stay-put rule. The IDEA
states that when there is a due process hearing challenge to a student’s program,
“[D]uring the pendency of any proceedings conducted pursuant to this section, unless
the State or local educational agency and the parents otherwise agree, the child shall
remain in the then-current educational placement of the child….” 20 U.S.C. § 1415(j). Id.
at *117. The court noted that this provision looks at the IEP in place “when the ‘stay put’
is invoked.” Ridley II. Id. at *118 (citation and internal quotation omitted). The court also
noted that the regulations indicate that a favorable state-level administrative hearing
decision “must be treated as an agreement between the State and the parents.” Id. at
*119, quoting 34 C.F.R. § 300.518(d). Accordingly, the hearing decision in the parents
favor became the student’s stay-put placement “for the duration of the dispute resolution
proceedings.” Id.
Against this backdrop, the Third Circuit affirmed the district court’s decision to reject
several arguments raised by the school district in support of its claim that its obligation
to reimburse the parents dissolves if the parents’ do not request reimbursement “until
after an administrative decision in their favor has been reversed by a court ….” Id. The
court noted that the district’s obligation to reimburse the parents is not determined by
the date that the parents request reimbursement. Id. at *120.
The court then turned to the issue of “whether the stay-put provision also applies
through the pendency of an IDEA dispute in the Court of Appeals.” Id. at *125. The court
noted that since the parents had not sought Supreme Court review in Ridley I, they did
not need to address whether stay-put encompassed such review. Ridley II, fn. 14. Id. at
*128. The court noted there was a split between the only two circuits to address this
question. Id. at *125. The Ninth Circuit held that stay-put applied through the appeals
decision. Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036 (9th Cir. 2009).
However, the DC Circuit held that the stay-put did not extend to appellate review.
Andersen v. Dist. of Columbia, 877 F.2d 1018 (D.C. Cir. 1989). The Third Circuit agreed
with the reasoning of the Ninth Circuit. Id.
The court noted that the stay put provision applied “during the pendency of any
proceedings.” Ridley II page 12 (emphasis in original) (citation omitted). Id. To exclude
the appellate process struck the court “as an unnatural reading of such expansive
language.” Id. Since the proceeding covered in the stay-put provision covered civil
actions in federal district court, the court below “reasonably construed this reference to
include all phases of the federal proceedings,” including appellate review. Id. Moreover,
such an interpretation is consistent with Congressional purposes of the statute, as the
court stated:
If we concluded that the stay put protection terminates while an appeal is
pending, the parents of a child with disabilities would be faced with the
untenable choice of removing their child from a setting the appeals court
might find appropriate or risking the burden of private school costs they
cannot afford for the period of the appeal. Id. (citation omitted).
Second Circuit Upholds Decision of State Review Officer Finding School District
Offered FAPE
In F.L ex rel. F.L. v. New York City Dept. of Educ., 553 Fed.Appx. 2, 2014 WL 53264
(2d Cir. Jan. 8, 2014), the parents challenged the procedural and substantive
appropriateness of the school district’s proposed program and sought tuition
reimbursement for a unilateral placement. The State Review Officer (SRO) ruled for the
school district and both the district court and the Second Circuit agreed. Id. at *1.
In R.E. v New York City Dept. of Educ., 694 F.3d. 167 (2d Cir. 2012), the court faulted
the SRO for relying upon retrospective testimony about the services the school district
would have provided to the student even though those services were not listed in the
IEP. In F.L, the school district offered testimony to rebut the parents’ argument that the
school would not have been able to provide the services listed in the IEP. The district
offered testimony that if necessary, the school would have arranged for outside
providers to secure any services it was not able to provide itself.
The Second Circuit distinguished this from R.E., holding that in this case the testimony
concerned how services listed in the IEP would be provided, not testimony about
additional services that were not listed in the IEP. F.L. at *2.
The Second Circuit also found the IEP to be procedurally appropriate. Even though the
district failed to conduct a functional behavioral assessment (FBA) prior to developing a
behavioral intervention plan (BIP), this failure did not result in a failure to provide FAPE.
The school district had the information needed to develop a BIP that was “reasonably
calculated to address” the student’s behavioral issues. Id. at *3.
The court also held that the failure to list parent counseling in the IEP did not result in a
FAPE violation because New York law required parent counseling and training whether
or not it was listed in the IEP. Id. at *4.
Finally, the court found that the IEP was substantively adequate. The primary issue was
whether the student’s need for a 1:1 teaching ratio could be met by an individual
behavioral management paraprofessional as opposed to a certified teacher. The court
upheld the SRO’s determination that his needs could be met by the 1:1
paraprofessional in a classroom with a 6:1:1 teaching ratio. Although his teachers
agreed that the student could only learn in a 1:1 setting, they did not say it could not be
managed by a supervised behavioral management paraprofessional. The private
school itself did not provide full-time certified teaching instruction. Id. at *5.
Seventh Circuit Holds School District Reasonably Accommodated Diabetes
Needs
Parents disputed the school district’s ability to meet their son’s needs arising as a result
of his Type I diabetes. Parents sued the school district for damages and both the district
court and the Seventh Circuit held that not only did the evidence fail to show intentional
discrimination, it also failed to show that the school district failed to reasonably
accommodate the student. CTL ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524
(7th Cir. 2014).
The school district developed a Section 504 plan and hired a licensed nurse to manage
the student’s diabetes care. Although the plan called for three people to be trained, the
evidence supported a finding that the nurse was the only person properly trained.
Additionally, a new supervisor was hired who believed Wisconsin law required strict
adherence to a doctor’s orders, so she would not allow the nurse to follow the parents’
instructions to modify the insulin dosage. The Wisconsin Department of Public
Instruction agreed with the supervisor’s interpretation.
In a series of occurrences, the licensed nurse resigned after being reprimanded for her
interactions with coworkers. Id. at 526-7, an issue that had nothing to do with the
nurse’s care of the student. Id. at 531. Then the parents obtained a doctor’s order to
allow the student to self-treat, but the order was not received by the school until after
school had dismissed, so the supervisor did not allow the student to self-treat. Id. at
527. In response the parents pulled the student out of school and enrolled him in a
private school with no nurses, trained staff and no formal plan for diabetes care. Id.
On these facts, the Seventh Circuit held that the district had not failed to accommodate
the student. The court noted, “for 504 plan violations to constitute disability
discrimination they must be significant enough to effectively deny a disabled child the
benefit of a public education…and reasonable accommodations may have to be made.”
Id. at *529-30 (emphasis in original; citation omitted). Here, the student regularly
attended school, performed well and had no adverse health consequences. Id. at 530.
Although parents “do not need to wait until their child has been harmed to prove that the
environment was unsafe,” the district’s actions “do not come anywhere near this line.”
Id. Although the school district did not fully implement the student’s plan, by having only
one trained staff person instead of three, it also required that a trained staff person be
with him at all times and this requirement was not met only once. Therefore, the court
found that this “was at most a minor violation of the 504 plan and in no way made
Charlie unsafe or denied him the benefit of a public education.” Id.
Additionally, the school’s refusal to allow for case-by-case adjustments to his inulin
doses was essentially a dispute over doctor’s orders, which were confusing. Id. The
parents could have resolved this issue “by obtaining more flexible doctor’s orders.” Id. at
*531. With respect to the supervisor’s refusal to allow the student to self-treat, the
school did not receive the revised doctor’s orders till after the day in question was over.
Id.
The parents also argued that the school district intentionally discriminated against them
by purposefully frustrating them in an effort to drive them out of the district so they
would no longer have to deal with their son’s disability. However, the court found sparse
evidence of such a scheme. There was not enough “for a jury to conclude that the
school intentionally discriminated against Charlie.” Id.
Second Circuit Reverses State Review Officer and Orders Tuition Reimbursement
for Unilateral Placement
The parents of a student with significant maladaptive and self-stimulatory behaviors
disagreed with the proposed program for their son. They unilaterally placed him in a
private school and sought tuition reimbursement. The impartial hearing officer (IHO)
found in the parents’ favor, but the State Review Officer (SRO) reversed. The district
court affirmed the SRO and the Second Circuit reversed. C.F. ex rel. R.F. v. New York
City Dept. of Educ., 746 F.3d 68 (2d Cir. 2014).
As an initial matter, the Second Circuit held that none of the parents’ claims were
foreclosed merely because they were not pled in their due process complaint. The IDEA
states that parties are not allowed to raise any issue not raised in the complaint unless
the other party agrees. 20 U.S.C. § 1415(f)(3)(B). The Second Circuit held, however,
that this “waiver rule is not to be mechanically applied. … [t]he statute does not require
that alleged deficiencies be detailed in any formulaic manner.” The key is that there
must be fair notice and the parents are not allowed to sandbag the district “by raising
claims after the expiration of the resolution period.” C.F. at 78 (citations omitted).
Here, the parents had provided fair notice of the issues at the hearing. Particularly with
respect to the student’s need for a 1:1 staffing ratio, as opposed to the 6:1:1 ratio
proposed by the district, “both the IHO and the SRO reached the issue on the merits,
giving [the court] a record for review. Additionally, the staffing ratio directly relates to
C.F.’s maladaptive behaviors, which are at the heart of this dispute.” The parents
alleged the school district had not appropriately planned for the student’s behavior and
their proposed resolution was that he continue at his private school, “where he would
remain in a 1:1 placement.” The district was aware of this. For the Second Circuit, this
was enough. Id.
Turning to the merits of the case, the parents raised three procedural violations: the
district failed to include them in the school site selection; failed to develop a functional
behavioral assessment (FBA) or adequate behavioral intervention plan (BIP); and failed
to expressly provide for parent counseling and training. First, the Second Circuit noted
that the term “educational placement” does not refer to the specific school location of
the child’s program, but the type of placement. Here the parents were involved in
determining the type of placement, a 6:1:1 placement at a school within the district. The
court noted, however, that although the failure to recommend a school site would not
constitute a per se procedural violation, “it may render an IEP substantively
inadequate.” Id. at 79.
Next, the court held that the failure to include parent counseling and training in the IEP
was a procedural violation under New York law. Moreover, the district could not cure
this violation by offering testimony at the hearing that parent counseling and training
would have been offered. Id. at 79-80.
Turning to the failure to develop an FBA and appropriate BIP, the court noted that the
failure to develop an FBA is not an automatic procedural violation as “long as the IEP
adequately identifies a student’s behavioral impediments and implements strategies to
address that behavior.” Id. at 80 (citation and internal quotations omitted). Here the
district failed to adequately develop and implement an appropriate BIP. Its plan “failed to
match strategies with specific behaviors, instead simply listing behaviors and
strategies.” Even one of the district’s own witnesses conceded it “was vague compared
to standards in the field.” Id. So, the procedural violation was the failure to develop an
appropriate BIP and the lack of an FBA was relevant “only to the extent that it led to this
failure.” Id. Once again, the district could not retrospectively cure this procedural
violation by attempting to offer evidence at the hearing about what it would have done
once the student was in the classroom.
Although the Second Circuit concluded that the district had committed procedural
violations, it declined to address them in isolation, but decided to address whether the
IEP was substantively adequate. The court determined that the student required a 1:1
placement, not to receive an optimal educational program, but due to the overwhelming
evidence that the student required 1:1 instruction. The court held that the district’s offer
of a 6:1:1 placement, especially when combined with its “failure to produce an
adequate, individualized functional behavioral assessment or behavioral intervention
plan and the lack of any provision for parent counseling and training, thus denied,” the
student a FAPE. Id. at 81.
Finally, the court held that the program selected by the parents was appropriate and
that equities favored reimbursement. Particularly, the father tried to find a 1:1 program
within the district, tried to contact the school site selected by the district, and did not
make plans to enroll the student in the unilateral private school until after the IEP
meeting. Id. at 82.
Second Circuit Holds Restrictiveness of Parents’ Unilateral Placement is Not
Automatic Bar to Reimbursement
In C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir. 2014), the court held
that the restrictiveness of the private school in which the parents unilaterally enrolled
their child is not an automatic bar to tuition reimbursement under the IDEA. The parents
believed that the school district denied their son a FAPE and placed him in a specialized
private school. They sought tuition reimbursement from the school district and an
impartial hearing officer (IHO) awarded them tuition reimbursement. The State Review
Officer (SRO) reversed, holding the private school was not appropriate, at least in part
because it was more restrictive than the public school. The district court affirmed the
decision of the SRO and the Second Circuit reversed. Id. 830.
The Second Circuit deferred to the IHO’s decision, holding “that the SRO’s decision was
insufficiently reasoned to merit deference.” Id. The court noted the IHO detailed the
programs the student received at the private school and the progress he made there.
The IHO also took into account the restrictiveness of the private school as one factor in
the decision. In contrast, the SRO did not examine the services the student received,
“effectively ruling that the school was inappropriate only because it was more
restrictive.” Id. The court held that when a district denies a student a FAPE, “a private
placement is not inappropriate merely because the environment is more restrictive than
the public school alternative. When a child is denied a FAPE, his parents may turn to an
appropriate specialized private school designed to meet special needs, even if the
school is more restrictive.” Id.
The court began its analysis by noting that parents are not barred from obtaining tuition
reimbursement when the private school they chose does not meet the IDEA definition of
FAPE. Id. at 836-7 (citations and internal quotations omitted). Second, the court noted
parents may not be subject to the same LRE requirements as a school district. Id. at
837. Third, when a student is denied a FAPE, parents
often are forced to turn to specialized schools that educate only disabled
children. Such private schools are necessarily more restrictive as they do not
educate disabled and nondisabled children together, and may be more restrictive
than the public school from which the child was removed. Inflexibly requiring that
the parents secure a private school that is nonrestrictive, or at least as
nonrestrictive as the FAPE-denying public school, would undermine the right of
unilateral withdrawal the Supreme Court recognized in Burlington.
Id. (citations omitted).
Turning to the facts of the case, both the IHO and SRO found that the school district
denied the student a FAPE and the school district did not challenge those findings. Id. at
838. Looking at the appropriateness of the program selected by the parents, the SRO
determined that because the student was making progress at the public school, the
private school was not the LRE placement for him, in effect ruling the private school was
inappropriate merely because it was more restrictive than the public school. Id. at 83940. The Second Circuit considered that this was error. Even though there was
substantial evidence in the record to support the SRO’s conclusion that the student had
made some progress in his public school program, he still had significant academic and
learning difficulties. Moreover, his success was most likely due to the increasing level of
specialized assistance he received, including assigning him an aide for much of the day
and providing substantial 1:1 assistance from his teacher. Id. fn. 4.
“In contrast to the SRO, the IHO considered the restrictiveness of the [the private
school] without giving it dispositive weight.” Id. at 840. The court deferred to the IHO’s
decision to consider the program and services he was receiving at the private school as
well as the IHO’s conclusion that the student’s “need for a small class, special education
program with specific programs and strategies to address C.L.’s significant needs far
outweighs [the] benefits from interaction with nondisabled peers.” Id. (internal quotations
omitted).
Fifth Circuit Holds School District Not Deliberately Indifferent in its Response to
Bullying Leading to Student’s Suicide
In Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982 (5th Cir. 2014), the
parents alleged that the school district violated their son’s constitutional rights under
Section 1983 and discriminated against him under Section 504 based on its response to
peer harassment that led to his suicide in the school’s bathroom. The district court
granted summary judgment to the school district and the Fifth Circuit affirmed. Id. at
987.
Under Section 504, the court first held that the school district had provided a FAPE to
the student. Although the parents do not need to show that the school district violated
the IDEA to demonstrate that it denied a FAPE under Section 504, providing a FAPE
under the IDEA is one of the means to satisfy FAPE requirements under Section 504.
Id. at 992. In this case, the school district provided a FAPE to the student under the
IDEA, therefore, the district satisfied its FAPE obligations under Section 504. Id. at 995.
The court noted that failing to provide a FAPE is not the sole basis for bringing a claim
under Section 504. Id. at 993. Here, the parents’ second Section 504 claim was that the
district discriminated against their son “because it was deliberately indifferent to the
disability-based harassment he suffered at the hands of his classmates.” Id. The court
applied the Supreme Court’s analysis of student-on-student sexual harassment under
Title IX in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), to disability
based harassment under Section 504. Lance at 996.
To establish a Section 504 violation for disability based harassment, the individual must
establish:
(1) he was an individual with a disability, (2) he was harassed based on his
disability, (3) the harassment was sufficiently severe or pervasive that it
altered the condition of his education and created an abusive educational
environment, (4) [defendant] knew about the harassment, and (5) [defendant]
was deliberately indifferent to the harassment.
Id. (citations omitted). To avoid liability under this standard, a school district is not
required to “eradicate each instance of bullying from their hallways.” Id.
The district court granted summary judgment to the school district even though it
characterized the district’s response to “fairly wide-spread bullying … to bury their
collective heads in the sand. When faced with a fork in the road the District’s choice
seems to consistently be the path of inaction.” Id. at 997. The Fifth Circuit, despite “this
broad negative characterization,” found that the evidence “demonstrates that the School
District responded in a manner that precludes a jury finding of deliberate indifference.”
Id.
The court noted that the district investigated the incidents and punished all students
involved. It sought to promote the son’s relationship with the students involved. The
teacher told the students not to bully him. Finally, the parents’ expert acknowledged that
the district’s anti-bullying policies were “appropriate and up to national standards.” Id. at
997-99. The court held that the school district’s “response was not clearly
unreasonable.” Id. at 999. The court cautioned that if a district “consciously avoids
confronting harassment or responds to harassment in another clearly unreasonable
manner” it may be found to have discriminated against the student. Id. at 1000.
The court further found that the record did not support a finding of a constitutional
violation under a “special-relationship” theory, determining that no such relationship
existed in this case. Id. at 1001. It also found no violation under a “state-created danger”
theory, assuming such a theory is viable. Id. at 1002.
Ninth Circuit Holds IDEA Does Not Require Quantifiable Baselines under “Present
Levels of Performance”
In a brief, unreported decision, the Ninth Circuit affirmed a district court decision
granting summary judgment to the school district in an Individuals with Disabilities
Education Act (IDEA) case where the parents alleged that the district did not provide
their child with a free appropriate public education (FAPE). A.G. v. Paso Robles Joint
Unif. Sch. Dist., 561Fed.Appx. 642, 2014 WL 949115 (9th Cir. 2014) (unpublished). The
parents raised three issues.
First, the parents argued the IEP was not appropriate because there was no regular
education teacher at the IEP meeting. The Ninth Circuit agreed that at least one regular
education teacher is required to attend the IEP meeting, but the error was harmless, as
there was no deprivation of educational benefit to the student and it did not seriously
infringe on “the parents’ opportunity to participate in the IEP formulation process.” Id. at
*1 (internal quotation and citation omitted).
Next, the parents argued that the IEP was deficient since the district failed to conduct a
Functional Behavioral Analysis and Behavior Intervention Plan as required by California
law for students with “severe behavior problems.” The court held that there was no
violation because the student did not meet the California definition of severe behavior
problem, even though he had attempted suicide. Id.
Third, and of most relevance for future cases, the parents also challenged the IEP
because “did not identify a measurable baseline of [the student’s] abilities.” Id. *2. The
court noted that the IDEA does require measurable annual goals, however, it held that
the IDEA does not require a statement of “quantifiable baselines.” All it requires is a
statement of “present levels of academic achievement and functional performance.” Id.
The court then held that because the parents had not demonstrated that the IEP
statements were inaccurate, they did not meet their burden of proof that the district
denied the student a FAPE. Id.
Montana State Supreme Court Holds Foster Parents Meet the Definition of Parent
under the IDEA
In a case brought by the P&A, the Montana State Supreme Court held that a foster
parent met the IDEA’s definition of parent and should be appointed as the surrogate
parent for an adult student who was unable to make educational decisions on his own
behalf. In Re C.S., 374 Mont. 289, 320 P.3d 981 (S .Ct. Mont. 2014).
The facts tell an interesting story. The Montana Department of Public Health and
Human Services appointed a foster parent for the student after he ran away from his
mother’s home shortly after turning 18. The foster parent filed a complaint against the
school district with the state department of education, which found the district had
committed numerous IDEA violations. It also ordered the district to appoint a surrogate
parent for the student under a state law process that only applies to minors, as the state
did not have a process for student that reached the age of majority. Id. at 290-291.
The district filed a petition in state district court for the appointment of a surrogate
parent, without providing notice to either the foster parent or student. The court granted
the school district’s request to appoint its choice for surrogate and then the courtappointed surrogate promptly approved the school district’s IEP, which had long been
disputed by the foster parent and his attorney. Id. at 291. The district court denied the
foster parent’s motion to vacate its appointment of the surrogate and appoint him. The
Montana Supreme Court reversed. Id. at 290.
The Supreme Court first determined that the student’s claims were not moot. Although
the student had aged out of school, he had filed an impartial hearing request before he
had aged out seeking compensatory education services from the district. Id. at 291. The
court noted that the IDEA allows for claims for compensatory education and that such
claims survive a student aging out of school. Id. at 292. Furthermore, because the
current surrogate’s authority “impacts C.S.’s future education possibilities,” the case had
not “lost all practical purposes,” and was not moot. Id.
The court declined to consider the student’s constitutional claims based on the district’s
failure to provide notice to him of the petition for appointing a surrogate. The issue was
not raised below, and because the Supreme Court addressed their request to remove
the surrogate on the merits, there was no showing that the lack of notice affected his
rights. Id. at 293.
Addressing the student’s motion to vacate the appointment of the surrogate and
substitute his foster parent as surrogate, the court began its analysis by noting that the
IDEA requires that an available parent be appointed surrogate before turning to another
individual. If a child has reached the age of majority and not been determined to be
incompetent, but has been determined not to have the ability to consent to educational
decisions, “the State shall establish procedures for appointing the parent of the child, or
if the parent is not available, another appropriate individual,” to represent the interests of
the child. 20 U.S.C. § 1415(m)(2).
Although Montana does not have an explicit provision for appointing a surrogate for an
adult student, the court noted that it has adopted the general IDEA provisions for
appointing a surrogate when the parents are not available. C.S. at 294. Additionally, the
IDEA definition of parent includes a foster parent of a child, so long as State law does
not prohibit a foster parent from acting as a parent. Under Montana regulations, a foster
parent may be appointed if the natural parent’s rights have been extinguished and the
foster parent is willing to act and does not have any interest which would conflict with
the student’s interests. Id. The court then found that the district court erred by not taking
these provisions into account, which “permit a foster parent to act as a parent under the
surrogate parent statutes.” Id.
Next, the court noted that the relevant facts were not in dispute: (1) the appointment of a
surrogate was necessary because the student was unable to consent to services; (2)
the biological parent’s rights were extinguished when the student turned 18; (3) the
foster parent was willing to make the necessary educational decisions; and (4) the
foster parent had no interest that would conflict with the interests of the student. Id. at
295. Therefore, the foster parent qualifies as a parent under state and federal law. The
court held, “because IDEA requires an available parent to be appointed as the surrogate
parent for an adult student, and there is no dispute that” the foster parent qualifies as a
parent, the district court erred when it refused to remove the original surrogate and to
appoint the foster parent as the surrogate. Id.
Ninth Circuit Holds Parochial School Provided Educational Benefit to Student,
Entitling Parent to Reimbursement
In S.L. ex rel. Loof v. Upland Unified Sch. Dist., 747 F.3d 1155 (9th Cir. 2014), the Ninth
Circuit held the parochial school where the mother unilaterally placed her daughter
provided sufficient educational benefit to entitle the parent to tuition reimbursement. The
hearing officer and district court found that the school district did not offer a FAPE to the
student, but also found that the parochial school was not an appropriated placement. Id.
at 1158-9. The Ninth Circuit reversed. Id. at 1157. Both the ALJ and the district also
found that two one-on-one instructional aides hired by the parent were appropriate and
the parent was entitled to reimbursement for their costs. The appropriateness of the
aides was not an issue on appeal. Id. at 1159.
The court noted that to receive reimbursement for a unilateral private placement, it need
not provide every service needed to maximize a student’s potential. It must provide
specially designed instruction to meet the needs of the student and supportive services
that will permit her to benefit from instruction. Id. at 1158.
In this case the school provided instructional materials and curriculum, structure,
support and socialization. It also gave the student a 504 plan allowing her extra time
and testing accommodations, a one-on-one aide in class, and the ability to arrive at
school late and leave early because of health issues. Id. at 1160. The court noted that
to allow the private aides in class was significant because the public school would not
have accepted privately-funded aids in school. Id. at fn. 3.
The court concluded that although the private aides played a major role in the student’s
education, “they did so in the broader context of a supportive school environment” using
the parochial schools instructional materials. Id. at 1160. Therefore, although the
placement was less than perfect, the mother should be awarded the cost of tuition. Id.
Second Circuit Holds that IDEA Least Restrictive Environment (LRE) Obligation
Applies to Extended School Year (ESY) Services
In T.M. ex rel. A.M. v. Cornwall Cent. School Dist., 752 F.3d 145, 151 (2d Cir. April 2,
2014), the Second Circuit held that the IDEA’s LRE requirement applies to ESY (or
summer) services, “just as it does to school-year placements.” It also held that the
IDEA’s stay put provision does not require a school district to continue to fund private
service providers. It can offer to provide the exact same services by its own staff. Id. at
170.
Under the IDEA, students with disabilities are to be educated with their nondisabled
peers to the maximum extent appropriate. They are only to be removed from the regular
education environment if they cannot be successfully educated in that environment with
supplementary aids and services. 20 U.S.C. § 1412(a)(5)(A). Additionally, the
regulations require school districts to make sure a continuum of alternative placements
is available to meet the needs of students with disabilities, including instruction in
regular classes, as well as special classes and separate schools. 34 C.F.R. §
300.115(a), (b)(1).
In T.M., the court found that that T.M. could be successfully educated in a regular
educational setting with appropriate supports. Therefore, according to its usual LRE
analysis, the district violated the LRE requirement by recommending a more restrictive
setting for his ESY program. T.M. at 162. The school district argued, however, that the
LRE requirement only applied to an ESY program if the district had a less restrictive
placement available. The Second Circuit rejected this position.
The court stated that it would apply the same LRE requirement to the entire proposed
education program. Under the IDEA, the LRE for a student refers to the least restrictive
setting for that student, not the least restrictive setting the district chooses to make
available. The LRE obligation “does not permit a school district to escape that broad
duty in the ESY context by choosing to offer only restrictive environments.” Id. at 163.
The court held:
[T]he IDEA's LRE requirement is not strictly limited by the range of ESY
programs that the school district chooses to offer. Instead, the LRE requirement
applies in the same way to ESY placements as it does to school-year
placements. To meet that requirement, a school district first must consider an
appropriate continuum of alternative placements; it then must offer the disabled
student the least restrictive placement from that continuum that is appropriate for
his or her needs.
Id. at 165.
The court went on to observe that a school district is not required to itself operate every
option on the LRE continuum. It is not required to create a new summer program from
scratch just to meet the needs of one child. The district has the option to place the
student in another public school program or in a private school if it does not have an
integrated summer school of its own. Id. at 166. Finally, a district need not offer “every
conceivable ESY environment that might be a particular student’s LRE.” A district that
offers an appropriate continuum of ESY placements and places a student in an
appropriate LRE within that continuum “will not be liable just because another
imaginable environment might be less restrictive for that student.” Id. at 167.
Turning to the issue of the student’s stay put placement, the IDEA requires that during
the pendency of any due process proceedings, unless otherwise agreed, the student
shall remain in his or her “then-current educational placement.” 20 U.S.C § 1415(j). In
T.M., the court noted that this does not mean the student is guaranteed the right to
remain in the exact same school or to receive services from the exact same provider. It
only guarantees “the same general level and type of services” that the student had been
receiving. T.M. at 171-2.
In this case, however, the facts were a little unique. The school district initially refused to
provide any stay put services, forcing the parent to contract with the student’s previous
private providers at their own expense. But, after the impartial hearing officer ruled that
the school was responsible for the student’s stay put program, the district offered to
provide the exact same level of services with its own staff. Id. at 156-7. The district court
found that because the district had originally flatly refused to provide the stay put, or
pendency, services “the school district must reimburse the parents for the costs of the
pendency services privately secured by the parents until the underlying dispute is
resolved.” Id. at 159 (citation and internal quotation omitted). The Second Circuit
disagreed. Id. at 170.
The court reiterated that the IDEA does not obligate a school district to fund the stay put
services with the same service providers. “It is up to the school district to decide how to
provide [the stay put] program, at least as long as the decision is made in good faith.”
Id. at 171.
The court determined that this rule remains true even where the school district initially
refuses to provide the stay put services, as here. The IDEA does not bar the district
“from subsequently correcting its mistake and offering to provide the required pendency
services directly.” Id.
However, the Second Circuit noted that on remand the district court had the discretion
to order the district to reimburse the parents for the costs of the private providers, up to
the amount it would have cost the district to provide the services itself. Id. at 172.
Fifth Circuit Grants Aide Qualified Immunity in Attack on Child
In Marquez v. Garnett, 567 Fed.Appx. 214, 2014 WL 1779210 (5th Cir. 2014), the Fifth
Circuit dismissed a § 1983 claim against a teacher’s aide, holding that she was entitled
to qualified immunity. A student with a disability was in a self-contained classroom and
he began sliding across the table a CD owned by one of the aides in the room. In
response, the aide cursed and yelled at the student, grabbed, shoved, and repeatedly
kicked him. The aide was charged with criminal assault, placed on administrative leave,
and forced to surrender her teaching certificate.
The family then filed a complaint against the aide under § 1983 alleging she deprived
the student of his constitutional liberty interest to be free from abuse. Id. at *1. The Fifth
Circuit held that the aide was entitled to qualified immunity. Id. *2.
In Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303 (5th Cir. 1987), this court found
that a substantive due process claim would be allowed “where the teacher’s conduct
lacked any pedagogical justification. Marquez at *3. However, in Fee v. Herndon, 900
F.2d 804 (5th Cir. 1990), the court stated that “injuries sustained incidentally to corporal
punishment, irrespective of the severity of these injuries…do not implicate the due
process clause if the forum state affords adequate” remedies. Marquez at *3 quoting
Fee at 808 (emphasis in original).
Applying these principles to the present case, the Fifth Circuit found that the pleadings
indicate a case of corporal punishment rather than an attack, and the Texas school
district’s remedies were adequate. Therefore, the student’s substantive due process
rights were not violated and the aide was entitled to qualified immunity. Marquez at *4.
Third Circuit Holds Promissory Estoppel Precludes Parent from Pursuing IDEA
and Discrimination Claims
The parent filed a due process hearing request. The school district and parents came to
a basic agreement on a settlement of the case, but the settlement agreement was never
signed. The parent then filed another due process hearing request arguing that the
school failed to provide FAPE. The school district raised a defense that the issue giving
rise to the second hearing request had already been settled, under the doctrine of
“promissory estoppel.” The Third Circuit agreed and affirmed the dismissal of the
parent’s case. I.K. ex rel. B.K. v. Haverford Sch. Dist., 567 Fed.Appx. 135, 2014 WL
2109917 (3d Cir. 2014).
The doctrine of promissory estoppel only applies when one party seeks to enforce a
promise by another party, but there is no enforceable agreement between them. To
establish a claim of promissory estoppel under Pennsylvania law, the party invoking it
must establish (1) that one party made a promise that was reasonably expected to
induce action or forbearance by the other party; (2) that party acted or refrained from
acting in reliance on the promise; and (3) “injustice can be avoided only by enforcing the
promise.” Id. at *1 (internal quotation and citation omitted).
The Third Circuit found that the school district demonstrated that each of these
elements was met. The basic terms of a settlement agreement were reached by the
parties, including a provision that the school district would provide funds for the parent
to home-school her child and that the parent would release the district from all claims.
Though the settlement agreement was not signed, the district relied on the agreement
to its potential detriment by not reporting the mother for the student’s truancy after she
withdrew the student from school, in reliance on her representations. Finally, injustice
could be avoided only by enforcing the promise. The student would benefit under the
agreement because the student would obtain funds to support the home-schooling
program and there would be no injustice to the parent, since the parent’s interests are
secondary to her child’s. Also, it would avoid a substantial injustice to the school
district—to hold otherwise would thwart the school district’s good faith efforts to
compromise with the parent to resolve her case. Id. at *2.
Second Circuit Denies Tuition Reimbursement in Unilateral Placement Case
In Ward ex rel. A.W. v. Bd. of Educ. of Enlarged City Sch. Dist. of Middletown, N.Y., 568
Fed. Appx. 18, 2014 WL 2219164 (2d Cir. 2014), the Second Circuit denied tuition
reimbursement for a unilateral private placement. To prevail in a unilateral placement
case, a parent must establish: (1) the program recommended by the school district is
not appropriate; (2) the program selected by the parent is appropriate; and (3) equitable
factors favor reimbursement. Id. at *1.
In Ward, although the Second Circuit held that the program recommended by the school
district was appropriate it nevertheless went on to examine the appropriateness of the
program the parent placed her daughter in.
The court noted that a “unilateral private placement is only appropriate if it provides
education instruction specifically designed to meet the unique needs” of the student with
a disability. Id. *3 (citation and internal quotations omitted; emphasis in original). Here,
the program selected by the parents was not designed to meet her needs. Rather than
provide the student with specialized math instruction, the school selected by the parent
moved her into a lower level math program, where she performed worse than in a more
challenging math class in her previous placement. Additionally, although the student’s
behavior issues had a negative effect on her academic performance, the private school
did not set any behavioral goals. In fact, one of the teachers testified that they don’t do
behavior plans at the private school. Id.
Ninth Circuit Holds Student May Seek to Qualify for Special Education under
More than One Disability Category
To be eligible for services under the IDEA a student must meet the criteria of one of a
number of disability categories and, by reason thereof, require special education and
related services. 20 U.S.C. § 1401(3). In E.M. ex rel. E.M. v. Pajaro Valley Unif. Sch.
Dist. Office of Admin. Hearings, 758 F.3d 1162, 2014 WL 3409071 (9th Cir. July 16,
2014), the court held that a student may seek to qualify as a student with a disability
under more than one of the enumerated disability categories. Id. at *11.
E.M. had an auditory processing disorder and sought to qualify as a student with a
disability under either the learning disability or auditory processing disorders. Id. at *1.
The U.S. Department of Education filed an amicus brief taking the position that a
particular disability “may qualify for benefits under more than one of the IDEA
categories.” Id. at *8. The Department argued that to consider “only one possible
category of disability, when more than one might apply, elevates a myopic concern with
the child’s specific classification over determining the child’s actual educational needs.”
Id. (citation omitted).
The court noted that deference to the opinion of the agency charged with enforcing a
statute is not limited to when it is exercising its rulemaking authority, but may also apply
to a position in an amicus brief. Id. at *9. Here, the court found that the Department’s
interpretation was entitled to deference under the U.S. Supreme Court decision in
Skidmore v. Swift, 323 U.S. 134 (1994) (“agency’s interpretation may merit some
deference…given the ‘specialized experience and broader investigations and
information’ available to the agency…and given the value of uniformity in its
administrative and judicial understandings of what a national law requires.”). E.M. at *9
(citation and internal quotation omitted).
The court first determined that Congress was ambiguous about whether or not the
definition for other health impairments (OHI) was limited to disabilities that did not fit
within “any of the other listed categories or included disabilities that might also fit within
another category.” Id. at *9. Because Congress was unclear, it went on to consider the
Department’s position and accepted it, noting that to only allow a student with a
disability to attempt to qualify under one disability category “would create the possibility
that a child with a disability could be denied special education benefits not because he
did not qualify for benefits, but because the child, his parents, or the school district’s
initial selection of one category barred the consideration of a more appropriate
category.” Id. at *10.
However, the Ninth Circuit held that as of the year in question, 2005, the student did not
meet his burden to show that he met the criteria to be eligible under specific learning
disability. Id. at *7. Ironically, the school district did ultimately conclude that the student
qualified as a student with a learning disability in 2008. Id. at *3. The primary issue in
2005 was which of three possible IQ tests should be used to measure the student’s
intellectual ability in order to determine whether or not there was a severe discrepancy
between his ability and his achievement. Id. at *2. In another irony, the school district
chose to use the IQ score obtained by the parents’ expert and the parents sought to use
one of the IQ scores obtained by the school district’s psychologist.
The administrative law judge (ALJ) deferred to the testimony of the school district’s
psychologist rather than the parents’ expert that the score obtained by their expert was
the appropriate measure of the student’s intellectual ability. Id. at *4. The ALJ noted that
the parents’ expert never observed the student in the classroom, never reviewed his
school records or spoke to any of the teachers. Id. at fn. 6. The district court agreed. Id.
at *4. The Ninth Circuit similarly found the parents had not met their burden to show it
was unreasonable for the school district to rely on the IQ score they selected. Id. at *6.
Finally, the Ninth Circuit held that the parents did not meet their burden to show that the
student met the definition of OHI. Id. at *13. The court reviewed the definition of OHI
and determined that there was no evidence to support a finding that the student had
limited strength, vitality or alertness. Nor was there evidence to show that he had
chronic or acute health problems. Id. at *12.
Second Circuit Reverses District Court Decision Based on Retrospective
Testimony in Tuition Reimbursement Case
In Reyes v. New York City Dep’t of Educ., 760 F.3d 211, 2014 WL 3685943, (2d Cir.
July 25, 2014), the Second Circuit overturned decisions of the district court and of a
State Review Officer (SRO), finding that the SRO's reliance on testimony asserting that
student's individualized education program (IEP) could have been modified to include
additional services was improper.
As such, the IEP specifying class ratio of six students to one professional and one
paraprofessional, with an additional 1:1 paraprofessional for a period of only three
months constituted a denial of free appropriate public education (FAPE). Reyes at *1.
Student R.P. was sixteen years old during the 2010–2011 school year, and had been
attending Rebecca School in Manhattan, a therapeutic private school, since May 2007.
R.P. required various kinds of sensory input at regular intervals throughout the day (a
“sensory diet”), without which he was unable to maintain control over his behavior. Id. at
* 2.
The IEP produced by the district for the 2010-11 school year recommended that R.P. be
moved from the private school and placed in a public special “6:1:1” class (six students,
one special education teacher, and one classroom paraprofessional) with various
related services, including occupational therapy, speech and language therapy, physical
therapy, and counseling. The IEP also recommended that R.P. be assigned a one-onone (1:1) paraprofessional for three months “to ease the transition” from private to
public school. Id. at *2.
R.P.’s parent visited the school program and found that neither classroom teacher was
familiar with the term “sensory diet.” She was told that the school did not have a
“sensory gym” which R.P. required, and that the school was “currently understaffed for
occupational therapists…that not all of the children’s mandates were being met.” Id. at
*3.
R.P. parent rejected the proposed placement and enrolled R.P. in a ten-month program
at Rebecca School for the 2010–2011 school year, later suing for tuition reimbursement.
The hearing officer concluded that the state Department of Education (DOE) had denied
R.P. a free appropriate public education (FAPE). She found that the 6:1:1 class was
inappropriate to meet R.P.'s needs and that it was “insufficient” to augment that ratio by
providing 1:1 paraprofessional support for three months only. Noting that DOE's
argument that the paraprofessional's services could have been extended beyond three
months was merely “speculative,” she declined to determine whether a 6:1:1 class with
1:1 paraprofessional support for the entire school year would have been sufficient. The
hearing officer concluded that R.P.'s placement at Rebecca School was appropriate and
ordered the school district to pay R.P.'s Rebecca School tuition. Id. at *4.
The school district appealed the hearing decision to the SRO, who found that the record
did not support the hearing officer’s determination that the 6:1:1 class was inadequate
to address R.P.'s needs, and further determined that, even if the record established that
R.P. required 1:1 paraprofessional services, the IEP could have been modified to
provide those services. In support of this conclusion, the SRO cited the testimony of the
DOE psychologist that the IEP team recommended three months of support with the
“understanding” that R.P.'s need for the service would be reassessed and extended as
needed. Id. at *5.
In its review of the SRO decision on appeal, the district court found for the school
district, concluding that although the SRO's reliance on testimony that the IEP could be
modified was impermissible, the remainder of the evidence supported his determination
that the IEP was substantively adequate. Id. at *6.
Upon de novo review, the Second Circuit concluded that the SRO's reliance on
testimony that the IEP could be modified to extend the paraprofessional's services was
improper under R.E. v. New York City Dept. of Educ., 694 F.3d 167, 174 (2d Cir. 2012).
The purpose of discouraging reliance on retrospective testimony is to ensure that
parents can make placement decisions based solely on the information made available
to them at the time. Id. at *6. The school district argued that the testimony was not
retrospective because the IEP reflected the “understanding” that R.P.'s needs would be
reevaluated at the end of three months. However, the court refused to consider the
possibility of mid-year amendments in determining whether an IEP as originally
formulated was substantively adequate. The court reasoned that if it were to accept
DOE's arguments, it would effectively require every parent to consider the likelihood of
mid-year amendments, creating significant uncertainty. Id. at *7.
The SRO did not find support in the record for the argument that R.P. required 1:1
paraprofessional services to extend beyond three months. But the Court of Appeals
found the fact that R.P. did not need a dedicated paraprofessional in a 2:1 environment,
does not necessarily indicate he would not need one in DOE's less staff-intensive 3:1
environment. Id. at *8.
In light of this evidence, the court deferred to the determination that R.P. required the
services of a 1:1 paraprofessional for longer than the transitional three-month period
afforded him by his IEP. The class ratio specified in R.P.'s IEP, therefore, constituted a
denial of FAPE. In addition, the court noted that to the extent that the SRO relied on
retrospective testimony to dismiss parent's concerns about a particular form of
methodology, such reliance was inappropriate as well. The court concluded that the
school district failed to offer R.P. a free appropriate public education (FAPE), the court
reversed the judgment of the district court, and remanded the case to the district court
to consider the appropriateness of Reyes's private placement. Id. at *9.
Ninth Circuit Holds School District’s Decision for an Interim Small Group
Placement was Appropriate
In C.B. ex rel. Baquerizo v. Garden Grove Unif. Sch. Dist., 575 Fed.Appx. 796, 2014 WL
2199324 (9th Cir. May 28, 2014) (unpublished), the school district recommended
placing a student with a disability in an interim small group placement. The impartial
hearing officer and the district court determined that the school district’s
recommendation offered the student a FAPE and the Ninth Circuit affirmed. Id. at *1.
As an initial matter, the Ninth Circuit held that the district court did not abuse its
discretion by refusing to supplement the administrative record with transcripts.
Recordings of the relevant meetings were included in the record and the district court
properly considered whether the transcripts would be “relevant, non-cumulative, and
otherwise admissible.” It was not an abuse of discretion for the district court to conclude
that the transcripts would be cumulative. Id. (citation and internal quotations omitted).
Next, the Ninth Circuit found that none of the alleged procedural violations resulted in
the denial of a FAPE. Notably, the school district’s failure to include a specific goal for
reading comprehension did not, by itself, render the IEP inadequate as the IEP Team
discussed the student’s reading comprehension and made clear that they would provide
him with appropriate services. Next, the lack of a section in the IEP for accommodations
did not result in a loss of educational benefit because the IEP Team discussed them
and “the IEP included (at least in the meeting notes)” appropriate accommodations. Id.
Finally, “any inadequacies in the transition portion of the IEP did not result in a denial of
FAPE” because the student had several more years to work on transition goals.
Turning to the substantive adequacy of the IEP, the Ninth Circuit held the school
district’s recommendation to place the student in a small group setting was the least
restrictive environment appropriate for the student. The student had spent the last three
years receiving one-to-one instruction. Additionally, the placement was intended to be
an interim one to allow the district to gather more information about the student, as the
student had not been in the district for three years and the district only had one
opportunity to observe the student prior to the IEP meeting. Id. *2.
Ninth Circuit Holds that ADA Title II Program Access Applies to Access to Watch
School Football Games, But Not Access to Pre-ADA Bleachers
Timothy Daubert uses a wheelchair and periodically attended football games at Lindsay
High School. He sued the school district because the high school’s football field
bleachers were not accessible. In Daubert v. Lindsay Unif. Sch. Dist., 760 F.3d 982,
2014 WL 3686098 (9th Cir. July 25, 2014), the Ninth Circuit affirmed the district court
which had granted summary judgment for the school district.
The Lindsay High School football field was constructed in 1971 and has never been
reconstructed or altered. The bleachers were not accessible to wheelchair users. Id. at
*1. The school district designated three specific locations from which wheelchair users
were able to watch football games -- on the north and south sides of the field, on the
paved area, and at any point along the fence. Id.
Daubert contended that he “could not fully enjoy” the games because he “had an inferior
view of the field and had to deal with looking through a gate, or folks periodically walking
in front of [him], or players and coaches standing on the sidelines obscuring [his] view of
the play.” Id.
Daubert further contended the wheelchair accessible area was “not satisfactory”
because “[they do not] compare in quality and convenience [to] the elevated stadiumstyle seating and he would like to sit with other fans.” Id. at *2.
The Ninth Circuit in affirming the lower court held that because the bleachers were
constructed in 1971, they were an existing facility under the ADA and their lack of
accessibility did not amount to exclusion under Title II of the ADA. Id. at *4. The Court
rejected Daubert’s argument that the “social experience” of sitting in the bleachers with
other Lindsay High School fans constituted a distinct public program to which he had a
right to access. Id. The Court held that the school district offers football games as a
public program and the bleachers are one part of the facility in which the program takes
place. Id.
The Court also rejected Daubert’s argument that the accessible seating did not comply
with the ADA integration requirements. The Court stated, “the current seating is
appropriately integrated under the circumstances. See id. § 35.150(b)(1) [28 C.F.R.,
Existing Facilities Regulations]. Spectators who use wheelchairs may sit with
companions and are able to sit directly in front of the bleachers, to each side of the
bleachers, and in other areas where spectators congregate.” Id. at *5.
Eleventh Circuit Holds IDEA Allows Reimbursement for One-to-One Instructional
Services Outside School Setting
In R.L. v. Miami-Dade County Sch. Bd., 757 F.3d 1173 (11th Cir. July 2, 2014), the
parents sought reimbursement for a home based one-to-one instructional program from
the school district. The district court ruled in their favor and the Eleventh Circuit
affirmed.
The Eleventh Circuit began by finding that the parents were entitled to reimbursement,
agreeing with the lower court that the school district had not offered the student a FAPE
and that the program the parents’ selected was appropriate. The court noted that
parental placements should be judged by the FAPE standard enunciated by the
Supreme Court in Bd. of Educ. of Hendrick Hudson Cent’r. Sch. Dist., Westchester
Cnty. v. Rowley, 458 U.S. 176 (1982), “even though parents are not required to fully
comply with all the technical requirements of IDEA.” R.L. at fn. 4 (citation omitted).
Although the court agreed here that the program selected by the parents had its
"shortcomings,” it was reasonably calculated to enable the student to benefit. Id. at
1183. The court next turned to whether the parents were entitled to full reimbursement
for the services they provided for their child. The court first held that the school district
was responsible for reimbursing Medicaid for the occupational and speech therapy
services provided to the student so that his lifetime Medicaid eligibility would be
restored. There was no dispute that his IEP had called for these services, they were
related to his educational need, and, thereby, reimbursable under IDEA. Even though
the services were characterized as “medical” on the Medicaid form, one must look to the
character of the services being provided rather than “narrowly focusing on the label for
billing purposes.” Id. at 1184.
The Eleventh Circuit then held that reimbursement for unilateral one-on-one home
instructional programs may be appropriate. The IDEA definition of special education
includes instruction in the home. The court rejected the proposition that “the IDEA may
sometimes require the state to place a student in one-on-one homebound instruction,
but prohibit a District Court from ever authorizing reimbursement for such a program.”
Id. at 1185.
Next, the court looked at whether equitable factors favored reimbursement. In this
context the court held that the school district had predetermined the student’s
placement prior to the IEP meeting. Id. at 1188. “Predetermination occurs when the
state makes educational decisions too early in the planning process, in a way that
deprives parents of a meaningful opportunity to fully participate as equal members of
the IEP team.” Id. (citation omitted) (emphasis added).
In this case the court found that it was clear that the school district entered the IEP
meeting with a closed mind about where the student “would attend school and was
unwilling to consider any other options.” Id. at 1189. Even though some school district
members of the IEP team seemed willing to discuss a smaller setting for the student,
the school representative running the meeting cut the conversation short, saying the
placement would be at the high school and if the parents disagreed they could pursue
mediation. Id. at 1189-90.
Finally, the Eleventh Circuit agreed with the district court that there would not be any
way that the school district’s senior high school could be appropriate for the student.
The student’s sensory management problems were so severe that he could not
“reasonably be expected to benefit from any education in a setting as large and overstimulatory as Palmetto Senior High School, no matter what support structures are in
place.” Id. at 1190. Therefore, the Eleventh Circuit affirmed the District Court’s decision
to fully reimburse the parents for the unilateral program they provided their son. Id. at
1192.
Second Circuit Holds Parent’s Contractual Obligation to Pay Private School
Tuition Sufficient to Support Constitutional Standing
In E.M. v. New York City Dept. of Educ., 758 F.3d 442, 2014 WL 3377162 (2d Cir. July
11, 2014), the parent disagreed with the placement recommended for her child,
unilaterally placed her in a private school and sought tuition payment from the school
district.
However, rather than paying the tuition she entered into a contract with the private
school for the cost of the tuition. She did not have the money to repay the tuition and
had agreed to seek reimbursement from the school district for the tuition under the
IDEA. On these facts, the Second Circuit held that she met the Constitutional
requirements for standing to be able to maintain her action. Id. at *1.
The court began by noting that in Sch. Comm. of Town of Burlington, Mass. v. Dep’t of
Educ. of Mass., 471 U.S. 359 (1985), the Supreme Court authorized a tuition
reimbursement remedy for parents who unilaterally place their child in a private school
while they pursue their challenge to the appropriateness of the school district’s
recommended program. The court noted that the question in this case—whether the
parents without the means to pay tuition to the private school may seek an order
directing the school district to pay the private school directly—was not the focus of
Burlington. The court went on to find “that the broad spectrum of equitable relief
contemplated under the IDEA encompasses, in appropriate circumstances, a ‘directpayment’ remedy.” E.M. at *8 (citation omitted).
However, the court also noted that the availability of such a remedy under IDEA,
especially where the parents have not entered into a legal obligation to pay tuition
raises the question of the Constitution’s standing requirements. Id. at *9. The court
began its analysis of this issue by stating that it did not need to address the issue of
whether or not the denial of a publically funded FAPE, standing alone, would be
sufficient to meet the standing requirements. In this case the parent “has incurred a
financial obligation to [the private school] under the terms of [an] enrollment contract …
that is ‘redressable’ by the direct tuition payment she seeks,” thereby satisfying
Constitutional standing requirements. Id. at *11.
The court found that the parent and private school had entered into a binding, legallyenforceable enrollment contract. This was so even though there were blank spaces in
the “standard-form” contract. Id. at *12. The fact that she had an apparent agreement
with the school to seek tuition reimbursement from the school district did not alter the
enforceability of her contract with the private school. Id. at 13-14.
After finding the parent had standing the court turned to the merits of her claim that the
school district had not recommended a FAPE for her child. The Second Circuit vacated
the decision by the District Court against her because that court had relied on
“retrospective testimony” about what the program would have provided that was not part
of the IEP. Id. at *16. This ran afoul of the Second Circuit’s decision in R.E. v. New York
City Dep’t. of Educ., 694 F.3d 167 (2d Cir. 2012), which was decided after the District
Court’s decision in this case. E.M. at *17. However, rather than decide the merits the
court remanded to the District Court to either determine the issue or remand for further
administrative proceedings. Id. at *18.
Ninth Circuit Upholds IDEA/ADA Attorney Fee Award Filed after Expiration of
Court’s Jurisdictional Period
In K.C. v. Torlakson, 762 F.3d 963, 2014 WL 3893794 (9th Cir. Aug. 11, 2014), the
Ninth Circuit reversed the district court’s denial of an Individuals with Disabilities
Education Act (IDEA)/Americans with Disabilities Act (ADA) prevailing party attorney fee
award and remanded the case to the district court to decide whether to exercise
ancillary jurisdiction over the motion for attorneys' fees.
Following the settlement of a putative class action brought by juveniles and the
American Diabetes Association against Superintendent of Public Instruction for the
State of California, the district court denied plaintiffs' motion for attorney fees based on
lack of jurisdiction, and the plaintiffs appealed.
Citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379, 114 S.Ct. 1673,
128 L.Ed.2d 391 (1994), the Ninth Circuit found that the common-law doctrine of
ancillary jurisdiction over related claims is generally well understood but the more
obscure doctrine of ancillary jurisdiction over collateral proceedings remains a matter of
case law. K.C. at *1. This case involves ancillary jurisdiction over proceedings related
to, but technically separate from, a federal lawsuit.
The Ninth Circuit held that a federal court may exercise ancillary jurisdiction over
collateral proceedings in two distinct contexts: (1) to enforce a settlement agreement
and (2) to resolve an attorney's fees dispute. Id. at *1.
After the K.C. case settled, the district court retained limited jurisdiction to enforce the
settlement agreement. Almost two years after the district court's jurisdiction to enforce
the Settlement Agreement had expired, Plaintiffs filed a motion for an additional
$288,627.41 in attorneys' fees, pursuant to the ADA and the IDEA, “for their work
monitoring implementation of the settlement with the California Department of Education
in this matter.” The district court denied the motion for lack of jurisdiction on the ground
that its jurisdiction to enforce the settlement agreement had expired. Id. at *1.
On appeal, Plaintiffs argued that their motion for attorneys' fees did not seek to enforce
the settlement agreement, therefore the conclusion that the district court lacks ancillary
jurisdiction to enforce the settlement agreement is irrelevant. Second, they argued that
the district court independently has ancillary jurisdiction over a post judgment attorneys'
fees dispute, even if the court's jurisdiction to enforce the settlement agreement has
expired. Id. at *1.
The Ninth Circuit agreed with this reasoning. Ancillary jurisdiction over collateral
proceedings “rests on the premise that a federal court acquires jurisdiction of a case or
controversy in its entirety. Incident to the disposition of the principal issues before it, a
court may decide collateral matters necessary to render complete justice.” Jenkins v.
Weinshienk, 670 F.2d 915, 918 (10th Cir. 1982). There is a distinction between a court's
ancillary jurisdiction to enforce a settlement agreement and its ancillary jurisdiction over
collateral matters such as an attorney's fees dispute. Id. at *3.
The district court correctly concluded that it has no ancillary jurisdiction to enforce the
parties' Settlement Agreement, but, the dispositive question is whether the court has
ancillary jurisdiction over Plaintiffs' motion for attorneys' fees, even though it no longer
has jurisdiction to enforce the Settlement Agreement. Id. at *4. Citing Sprague v. Ticonic
Nat'l Bank, 307 U.S. 161, 170 (1939), “. . . motions for costs or attorney's fees are
‘independent proceeding[s] supplemental to the original proceeding and not a request
for a modification of the original decree . . . .” Id. at *5.
Plaintiffs argued that they are the “prevailing party” under the relevant federal statutes
(the ADA, Section 504, and the IDEA) and sought to collect attorneys' fees on this
basis. They did not seek to implement any aspect of the Settlement Agreement, nor did
they contend that the agreement obligated Defendants to pay attorneys' fees for the
monitoring of post-settlement compliance. As such, the fact that the district court lacks
ancillary jurisdiction to enforce the Settlement Agreement under Kokkonen is irrelevant.
Id. at *5.
The court found it significant that Plaintiffs were seeking fees pursuant to federal law,
since this dispute could not be resolved in state court as a breach of contract claim.
Plaintiffs would need to file a separate federal court action, which would be judicially
inefficient. Id. at *6. After finding that the district court has ancillary jurisdiction over
Plaintiff’s motion for attorney fees, as the exercise of ancillary jurisdiction is
discretionary, the Ninth Circuit remanded to the district court to determine if it chooses
to exercise that jurisdiction and to determine the propriety of the award. Id. at *7.
Second Circuit Affirms Class Certification in Systemic Individuals with
Disabilities Education Act (IDEA) Case
In R.A.G. ex rel R.B. v. Buffalo City Sch. Dist. Bd. of Educ., 569 Fed. Appx. 41, 2014
WL 2722745 (2d Cir. June 17, 2014), the Second Circuit affirmed the district court’s
motion granting class certification in a systemic IDEA case. The school district
challenged the class certification on two grounds. First, the district argued that Plaintiffs
had not exhausted their class-wide claims at an administrative hearing. The Second
Circuit noted, however, that there is an exception to the exhaustion requirement where
systemic violations are alleged.
Here, Plaintiffs alleged that there were systemic failures to implement supplemental
services at the beginning of the school year as a matter of school district policy.
Therefore, the Second Circuit held that “the district court was correct to conclude that
this objection was no barrier to class certification.” Id. at *1.
Second, the school district argued that the class did not meet the commonality
requirement as set out in Wal-Mart Stores, Inc. v. Dukes, 121 S.Ct. 2541 (2011). The
Second Circuit again affirmed the district court because in this case, unlike Wal-Mart,
“Plaintiffs’ entire case is predicated on a policy that is applied uniformly to all students
that qualify for supplemental services.” R.A.G. at *1.
Second Circuit Holds Teacher Certification Question Is Subject to IDEA
Exhaustion Requirement
In B.M. v. New York City Dep’t. of Educ., 569 Fed. Appx. 57, 2014 WL 2748756 (2d Cir.
June 18, 2014), the Second Circuit affirmed a District Court’s award of summary
judgment to the school district. The parents appealed an administrative decision and, on
appeal, primarily argued that the teacher’s lack of special education certification denied
their child a FAPE. The District Court held that it lacked jurisdiction over this claim
because the parents failed to include it in their due process complaint.
On appeal, the parents argued that, in light of Supreme Court cases such as Gonzalez
v. Thayer, 132 S.Ct. 641 (2012), the Second Circuit must abandon its precedent that the
failure to exhaust IDEA administrative remedies deprives the courts of subject matter
jurisdiction.
However, the Second Circuit determined it need not reach this question. The school
district had timely raised exhaustion as an affirmative defense thereby mooting the
issue of whether exhaustion was jurisdictional or operated as an affirmative defense.
B.M. at *1. Accordingly, the Second Circuit affirmed. Id. at *2.
DOJ Files Statement of Interest in Springfield, Massachusetts Schools ADA Case
On August 27, 2014, the Department of Justice (DOJ) filed a Statement of Interest (SOI)
in S.S. v. City of Springfield MA (3:14-cv-30116-MGM). In this case, plaintiffs,
represented by Center for Public Representation and the Bazelon Center for Mental
Health Law, filed a class action against the City of Springfield, Massachusetts, alleging
claims under the ADA that the city discriminates against students with mental health
disabilities by providing them with inferior education in a segregated school where they
are disproportionately subjected to discipline, suspension, and arrest.
The City of Springfield moved to dismiss, claiming both that that Plaintiffs were required
to bring a claim under the IDEA, in lieu of, or alongside their ADA claim in the federal
complaint in order to satisfy administrative exhaustion requirements, and that the Title II
implementing regulations that support plaintiffs’ ADA count are not enforceable via a
private right of action. Notably, plaintiffs did exhaust their IDEA administrative remedies
prior to filing suit, but did not include an IDEA claim in their federal complaint.
Plaintiffs filed a brief in opposition to the motion, and DOJ filed a SOI opposing
dismissal, making several important statements. First, that a school district can provide
FAPE under IDEA and still violate the ADA, recognizing that the two statutes utilize
different legal standards; second, that “Title II of the ADA includes no administrative
prerequisites for filing suit in federal court . . . [P]laintiff may choose to pursue a
complaint only under the ADA, which may require different or additional measures to
avoid discrimination against children with disabilities than the measures that are
required to comply with IDEA”; and third, “Title II regulations . . . directly execute the
ADA’s nondiscrimination mandate. These regulations have been construed and given
deference by federal courts for over two decades as appropriately implementing Title II,
and clearly give rise to a private right of action.” The SOI is available at:
http://www.ada.gov/briefs/springfield_ma_soi.pdf
Third Circuit Rejects Claim of Racial Disproportionality in Special Education
In Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 2014 WL 4474002 (3d Cir. Sept. 12,
2014), the Third Circuit affirmed the district court's grant of summary judgment for the
defendants in a case filed under the Individuals with Disabilities Education Act (IDEA),
the ADA, Section 504 of the Rehabilitation Act, Title VI of the Civil Rights Act, and
Section 1983.
Plaintiffs sought injunctive relief and compensatory damages on behalf of a class of
students whom they allege were inappropriately and disproportionately assigned to
special education classes. The Third Circuit found that plaintiffs did not present
sufficient evidence of intentional discrimination by the school district (Local Education
Agency or “LEA”) based upon race or disability. In addition to the majority opinion, one
judge wrote a concurring opinion and another judge wrote an opinion concurring in part
and dissenting in part.
The Circuit Court ruled that the plaintiffs, a group of current and former students who
are African-American, failed to produce sufficient evidence to support their claims that
the school district intentionally discriminated against them or was deliberately indifferent
to intentional discrimination exercised by employees or third parties.
The panel’s combined 178 page opinion decided issues involving res judicata (Blunt at
*22), organizational standing (id. at *29), the statute of limitations for IDEA violations (id.
at *31) and the admissibility of evidence, (id. at *31 through *34), however, this
LegalEase summary is limited to the Title VI and §1983 claims.
Plaintiffs were African-American current and former students attending school in Lower
Merion School District (LMSD) filed suit against LMSD (PA) and other defendants in
federal district court. Id. at *2. Although the students had brought claims under
the IDEA, those claims were dismissed along with a number of others. The only claims
that remained were the Title VI claim and the claim, under § 1983, which
alleged violations of the Equal Protection Clause. Id. at *3. LMSD filed a motion for
summary judgment. In response the plaintiff students argued that they did not have
learning disabilities and were wrongly placed in special education programs based on
their race. Id. at *6.
The students argued that as a result of their alleged wrongful and racially discriminatory
identification, they were denied opportunities to take the more challenging courses in
preparation for college. They relied heavily on statistical evidence of the
disproportionate number of African-American students receiving special education
services. The district court granted summary judgment to LMSD, concluding that the
students had failed to present evidence that the irregularities they cited were related to
their race. “To infer these … students were discriminated against merely because they
suffered adverse action and are members of a protected class would render the prima
facie requirement of intent meaningless.” Id. at *6.
The Third Circuit panel’s majority affirmed the lower court’s decision, determining that
LMSD was entitled to summary judgment because there is no evidence to suggest
either that LMSD itself acted with a discriminatory intent, or that it knew of -- but failed to
correct -- a third party’s intentional discrimination. Id. at *32. It further found that while
the statistical evidence offered by the plaintiffs provided some evidence that AfricanAmerican students were overrepresented in special education classes, the evidence
was insufficient to demonstrate that school officials responsible for placing students
intended to discriminate against them because of their race. Id. at *38.
The majority also pointed out that in order to show that LMSD acted with deliberate
indifference, the plaintiffs were obliged to show that the school district had knowledge
that officials had engaged in racial discrimination. However, it found there was “no
evidence in the record to suggest that it did or that any third party under [LMSD’s]
control engaged in intentional discrimination.” Id. at *32.
The majority acknowledged the existence of statistical evidence of racial
overrepresentation in special education classes and some other evidence of possible
racial bias. However, it stressed “the record also reflects that each individual student’s
educational needs were assessed and satisfied through a thorough and individualized
IEP process, and contains no evidence that the educators and administrators
responsible for placing students intended to discriminate against them because of their
race.” As a result, the majority concluded that “there is no genuine issue of material fact
that LMSD itself—or a third party under its control—engaged in intentional
discrimination.” Id. at *38.
Ninth Circuit Questions District Court’s Decision to Solicit Attorneys’ Fee
Request from School District
In 2004 Congress amended the IDEA to allow prevailing school districts to seek
attorneys’ fees from parents or their attorney if the claim was “frivolous, unreasonable,
or without foundation,” or “presented for an improper purpose.” 20 U.S.C. §
1415(i)(3)(B)(i)(II), (III). In G.M. ex rel G.M. v. Saddleback Valley Unif. Sch. Dist., No.
12-56627, 583 Fed.Appx. 702, 2014 WL 3538463 (9th Cir. July 18, 2014) (unpublished),
the district court held that the school district did not violate the IDEA’s child find
requirement and that the student was offered a free appropriate public education
(FAPE). The court went on to solicit a request from the school district for an award of
attorneys’ fees, “based on its conclusion that plaintiffs’ claims were frivolous or
presented for an improper purpose.” Id. at *1.
On appeal, the Ninth Circuit affirmed the district court’s decisions on the child find and
FAPE claims. However, it thought the child find issue was a “close and novel question,”
since the school district was aware of the student’s mental health diagnosis for some
time and the Ninth Circuit had never established a standard for child find violations.
Additionally, although the IEP was appropriate, the FAPE claim “was, at a minimum,
legally cognizable.” Id. Therefore, the Ninth Circuit remanded to the district court to
reconsider whether it should have solicited the fee request from the school district. The
Ninth Circuit noted that “lawyers would be improperly discouraged from taking on
potentially meritorious IDEA cases if they risked being saddled with a six-figure
judgment for bringing a suit where they have a plausible, though ultimately
unsuccessful, argument.” Id. (citation and internal quotations omitted).
Ninth Circuit Determines ALJ Should Have Considered Reimbursement for
Housing Expenses While Student Attended Residential Program Pursuant to
Stay-Put
In Marcus I. ex rel. Karen I. v. Dep’t. of Educ., No. 13-16434, 583 Fed.Appx. 753, 2014
WL 3610722 (9th Cir. July 23, 2014) (unpublished), the Ninth Circuit affirmed a decision
that the school district had offered the student a FAPE. However, it held that the hearing
officer erred by not considering the student’s claim that he was entitled to
reimbursement for housing expenses as a related service while he attended a
residential program pursuant to the IDEA’s stay-put provision.
The court affirmed the hearing officer’s determination that the school district’s alleged
failure to comply with IDEA procedures had not violated the student’s right to a FAPE.
Even if the school district’s prior written notice lacked sufficient specificity, that error did
not significantly restrict the parent’s right to participate in developing the student’s IEP.
There was sufficient discussion of the proposed placement at the IEP meeting to enable
the parent to participate in the meeting. Id. at *1. Additionally, the IEP was substantively
appropriate to meet the student’s identified needs. Id.
The court noted, however, that the hearing officer did err by failing to consider the
student’s request for reimbursement of housing expenses as a necessary related
service under stay-put. The hearing officer denied reimbursement based solely on a
finding that the school district had offered FAPE to the student, therefore, the Ninth
Circuit reversed the decision denying reimbursement for the student’s “housing
expenses as a necessary related service … pursuant to the IDEA’s stay-put provision,”
Id. at *2, noting “there are factual issues related to DOE's argument that Marcus is not
entitled to the residential related expenses—such as what related expenses Marcus
was entitled to at the start of the stay-put time period or whether there were material
changes in circumstances that affected such entitlements during the time period—that
were not litigated because DOE did not address this claim or made only procedural
arguments.” Id. The court remanded for a determination by the hearing officer of the
proper amount of reimbursement. Id. at *3.
Sixth Circuit Holds Inclusion of Private Preschool on IEP Obligates School
District to Pay Tuition
In Blount County Bd. of Educ. v. Bowens, 762 F.3d 1242 (11th Cir. Aug. 5, 2014), a
child was transitioning from the Early Intervention Program under Part C of IDEA to a
preschool program under Part B. The parents and school officials met to prepare a
program for the student. At two planning meetings the school district offered potential
placements that were inappropriate for the student.
The parents placed the student at a private preschool program that they believed would
meet his needs. At a meeting shortly before the student turned three, the school district
developed an IEP that listed the student’s placement at the private preschool. The
parents did not request reimbursement at that time. At a meeting at the end of the
school year to discuss the student’s placement for the upcoming school year the
parents asked for reimbursement for the prior school year. The school district refused
and the parents requested an impartial hearing. Id. at 1245-46.
At the hearing the school district representative testified that she did not offer any
alternatives to the private preschool program selected by the parents because they had
already placed him there. The parents testified that although they placed the student
and intended it to be for the full school year it was with the school district’s full
knowledge, though they also testified that they did not know that they should have
requested tuition. The hearing officer found that the school district had not offered a
FAPE to the student and that the parents had not unilaterally placed their student at the
private preschool because the school district had “acquiesced and approved” the
placement. Id. at 1246. The hearing officer ordered tuition reimbursement and the
district court agreed. Id.
On further appeal, the Eleventh Circuit affirmed. Id. at 1244. First, the court held that the
IDEA prior notice provisions for when a parent is seeking reimbursement for a unilateral
placement did not apply because the family had not unilaterally placed their child. The
school representative, and by extension the school, had agreed to the placement. Id. at
1247.
Second, even if the family had unilaterally placed their son, the IDEA limitation on
reimbursement is not a bar to a claim for reimbursement. Id. at 1248. The school district
argued that the parents’ failure to request reimbursement deprived it of an opportunity to
address their concerns. However, this argument ignores the fact that the school district
agreed to the placement, so the family was under no obligation to inform them that they
would be seeking reimbursement. Moreover, the school district had the duty to offer a
FAPE in the first instance, instead of waiting to see if a parent would seek
reimbursement. The school district harmed itself by offering inadequate options and
then seeking to wash its hands of its obligations. “The Board cannot now complain that
it was not offered the opportunity for a do-over.” Id.
Sixth Circuit Holds Settlement Agreement Fails to Establish Private School as
Stay-Put Placement
The parents of a child with autism and the school district agreed to place the child in a
private special education program. After a few years, the parents became dissatisfied
with that program and unilaterally placed their child in a different private special
education program.
The district and parents entered mediation and reached a settlement agreement where
the district would pay the tuition and transportation expenses for the private school for
three months and then pay a portion of the costs for the remainder of the school year.
However, the agreement specifically stated that neither party made “an admission as to
educational placement, negligence, or violation of IDEA or Kentucky law.” When the
parties could not agree on a placement for the following school year the parents filed for
due process and requested funding of the placement as stay-put. N.W. ex rel. J.W. v.
Boone County Bd. of Educ., 763 F.3d 611, 613-4 (6th Cir. Aug. 18, 2014).
The hearing officer found that the school district had offered FAPE to the student but
ordered the school district to reimburse the family for the cost of tuition for the
placement pursuant to stay-put. The Appeal Board agreed that the school district had
offered FAPE but reversed the hearing officer on stay-put. The district court affirmed the
decision that the school district had offered FAPE, but found that the Appeal Board had
“incorrectly overturned the finding of the hearing officer that” the student’s stay-put
placement was the private school. Id. at 614. The Sixth Circuit reversed. Id. at 613.
The circuit court began by noting that the district court does not have the authority to
award tuition reimbursement under the IDEA for a unilateral private placement unless
the school district failed to offer a FAPE to the student. Id. at 615. The court then turned
to the question of whether the private school selected by the parents was the student’s
stay-put placement entitling the parents to tuition reimbursement. The court began by
noting that the IDEA regulations state that the child’s placement is “based on the child’s
IEP, and that placement decisions are to be “made by a group of people, including the
parents.” Id. at 617, quoting 34 C.F.R. § 300.116(a) and (b).
The court concluded that “the school district must, in some fashion, approve the
placement decision and that the parents cannot unilaterally decide upon which school
will serve as the child’s “placement.” Id. Here, the school district never agreed to the
student attending the private school at an IEP meeting, even though it was listed on his
IEP. Id. The settlement agreement also explicitly stated that “neither party makes an
admission as to educational placement.” Id. at 618. Therefore, the last agreed upon
placement for stay-put purposes was the original private school placement that the
student was placed in prior to the parents’ unilateral placement. Id.
Sixth Circuit Holds Parent Not Required to Exhaust IDEA Administrative
Remedies in Section 1983 Damages Action Based on Abuse of Student
In F.H. ex rel. Hall v. Memphis City Schools, 764 F.3d 638 (6th Cir. 2014), the parent
brought an action under § 1983 for damages for the alleged abuse of her son, as well
as an IDEA claim for breach of a settlement reached at a resolution session. The district
court dismissed all claims and the Sixth Circuit reversed. Id. at 640. The Tennessee
P&A filed an amicus brief in the case. Id. at 642.
F.H. is a person with multiple disabilities who required the assistance of aides while he
was a student, particularly when using the bathroom. The Sixth Circuit summarized
some of the key allegations of physical, verbal and sexual abuse of the student by his
aides: (1) being frequently left unattended in the bathroom and unable to clean himself,
and in one case having a seizure; (2) being physically and verbally abused on multiple
occasions and on one occasion allowing him to return from the bathroom with bloody
underwear; (3) being ridiculed about his disability by the aides until he screamed and
banged his head against the wall in frustration; (4) regularly not helping him to clean
himself so that he returned to class with dirty underwear and on at least one occasion
an aide announced to the class that he smelled like “shit;” (5) being sexually abused by
an aide on more than one occasion in a private bathroom. Id. at 641.
The district court dismissed the § 1983 claims, finding that a settlement agreement
between the parties included a release of these claims and that the IDEA required
exhaustion of these claims prior to litigation. Id. at 643. The Sixth Circuit disagreed with
the district court on both grounds.
First, the court noted that the settlement agreement released any claims “arising under
the IDEA.” However, these “allegations clearly point to physical, non-disciplinary, and
non-educational injuries, which cannot be redressed by any remedy available under the
IDEA.” Id.
In a scathing concurrence, Judge Kethledge noted that “not every injury inflicted within a
school setting is ‘educational’.” To characterize the student’s injuries as educational “is
to belittle them. … The gravamen of his claim, rather, is that this conduct was an attack
upon F.H.’s dignity as a human being.” Id. at 645.
Second, the court noted that the student’s alleged injuries, that he was verbally,
physically and sexually abused by his aides, do not relate to the denial of a FAPE. They
“are non-educational in nature and cannot be remedied through the administrative
process.” The court also noted that to require exhaustion here “would create an
additional administrative burden not present for non-disabled children.” Accordingly, he
was not required to exhaust the § 1983 claims. Id. at 644.
Finally, the Sixth Circuit held that the student was not required to exhaust his breach of
contract claim as found by the district court. Pursuant to the IDEA, if an agreement is
reached at a resolution session the parties must execute a legally binding agreement
that is enforceable in state or federal court. 20 U.S.C. § 1415(f)(1)(B)(iii). In this case,
the parties reached an agreement at the resolution session, but did not finalize it until 97
days later. The court found that this was not dispositive, as there is no timeline in the
IDEA for when an agreement must be finalized. F.H. at 644-5. Additionally, the parties
included a provision that was based on facts not known at the time of the resolution
session. However, the court noted that this was not dispositive either because
“agreements reached at a meeting are often refined and finalized long after the meeting
concludes.” In fact, to require “that a settlement agreement be written, finalized, and
signed during a settlement conference would be counter to the usual practice.” Id. at
645. Finally, the terms of the settlement agreement itself stated that the agreement was
reached at a Resolution Session and was enforceable pursuant to the IDEA. Therefore,
the breach of contract claim is not subject to exhaustion. Id.
Third Circuit Requires Exhaustion of IDEA Administrative Remedies in Retaliation
Case
In Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266 (3d Cir. 2014), the parent filed
suit against the school district under the IDEA, Section 504 and the ADA. The district
court dismissed the case for failure to exhaust the IDEA’s administrative remedies and
the Third Circuit affirmed. Id. at 268-9.
The court began by summarizing the facts as pled in the complaint which were taken as
true. Id. at 269. The school district and the parent had entered a settlement agreement
where the district agreed to fund one hundred sixty hours of tutoring as compensatory
education. The district failed to fully reimburse the parent and she had to file a breach of
contract action.
The district continued to fail to fully reimburse the parent and the parent alleges that it
took retaliatory acts against her and her son, Ryan. Specifically, the parent alleges that
the district changed his math tutor from one who worked well with him to one “who was
sarcastic, impatient and mean.” It also assigned him a teacher whom they knew the
student regarded as a bully. Because of the district’s failure to implement the settlement
agreement and the student’s IEP, “as well as the continuing acts of bullying and
retaliation” the student withdrew from the school for his senior year and enrolled in a
cyber charter school. The school district refused to allow him to participate in extracurricular activities even though he remained a resident of the school district. Appellants
allege that the school district’s retaliatory actions “were severely detrimental to Ryan’s
educational achievement and health.” Id. at 270.
The parent filed suit in district court, making three federal claims: (1) “retaliation/failure
to provide a [FAPE] in violation of the IDEA;” (2) retaliation in violation of Section 504;
and (3) retaliation in violation of the ADA. They sought compensatory damages,
attorney’s fees, and “such other further relief as this court deems just and appropriate.”
Id. at 270-1. As noted above, the district court dismissed for failure to exhaust the
IDEA’s administrative remedies.
On appeal the parent argued that the claims were not subject to the IDEA’s exhaustion
requirement and, alternatively, that they fit within one of the exceptions to exhaustion.
Id. at 271.
The Third Circuit addressed each of these arguments. First, the court concluded that
the IDEA claim was subject to the IDEA exhaustion requirement. The court noted that
“Appellants claim that the IDEA has been violated, they allege educational harms, and
the IDEA’s statutory scheme is able to provide an appropriate remedy.” Id. at 273.
Turning to whether the Section 504 and ADA retaliation claims were also subject to the
IDEA’s exhaustion requirement, the court noted this was a matter of first impression.
The court concluded that the retaliation claims were “related to the provision of
FAPE…and, as such, must be exhausted.” Id. at 273-4. The court noted that the IDEA
allows a parent to present a complaint regarding “any matter relating to the
identification, evaluation, or educational placement of the child, or the provision of a free
appropriate public education to such child.” Id. at 274 (quoting 20 U.S.C. §
1415(b)(6)(A), emphasis added by court). Here the court found that the “retaliation
claims palpably ‘relate’ to the District’s provision of FAPE to Ryan.” Id. The court also
noted that requiring exhaustion served important policy reasons, such as “developing
the record for review on appeal … encouraging parents and the local school district to
work together to formulate an IEP for a child’s education, … and allowing the education
agencies to apply their expertise and correct their own errors.” Id. at 275 (citations
omitted). Accordingly, the Third Circuit joined the First and Eleventh Circuits in holding
that “retaliation claims related to the enforcement of rights under the IDEA must be
exhausted before a court may assert subject matter jurisdiction.” Id.
The Third Circuit then determined that none of the proffered exceptions to the IDEA
exhaustion requirement applied in this case. First, while an exception to exhaustion
where monetary damages are sought exists generally, such an exception is not
applicable in this case. Appellants did not exclusively seek compensatory and punitive
damages, as their complaint requests attorney’s fees and such other relief as the court
deems just and appropriate. Id. at 276. Even if they were not seeking such relief, a
district court is not constrained by the relief requested in the complaint. It is the nature of
the claims and the governing law that determines the relief. The IDEA itself authorizes
district courts to grant such relief as it determines appropriate. The Third Circuit agreed
with the reasoning of the Seventh and Second Circuits that “parents cannot ignore
remedies available under the IDEA and insist on those of their own devising.” Id.
(internal quotation omitted).
Finally, even though monetary awards such as for compensatory and punitive damages
are not available during an IDEA administrative hearing, “such an award may
nevertheless be granted as reimbursement for certain expenses incurred.” Id. at 277.
The administrative process could have resulted in reimbursement for the tutoring
services sought, and the claims that Ryan suffered educational harm could also have
been addressed by the hearing officer in spite of being unable to award compensatory
damages. Id. at 277-8.
The court concluded by observing:
In response to a school district’s alleged bad behavior, the educational harms
suffered by children with disabilities will be addressed first and foremost during
the IDEA’s administrative process. Once these educational deficiencies have
been addressed, victims may seek further remedy in court pursuant to statutory
schemes allowing for compensatory and punitive damages such as Section 504
and the ADA.
Id.
Next, the Third Circuit acknowledged that some circuits had also found an exception to
the exhaustion requirement when the sole issue was whether or not the student’s IEP
was being implemented. Without necessarily agreeing with this precedent, the court
held that this exception would not be applicable here because implementation of the
IEP was not the sole issue in dispute. Id. at 280. Finally, the court also refused to apply
a more general futility exception. The court acknowledged that although such an
exception does have traction in case law, the facts in this case do “not present any of
the circumstances warranting the application of the futility exception:”
Appellants have not previously utilized the IDEA administrative process, the
factual record is not developed and evidentiary issues are not resolved, the only
remaining issue is not a measure of damages, and the IDEA administrative
process is in fact able to provide a suitable remedy for the harms alleged.
Id. at 281. Therefore, the court declined to apply the futility exception in this case.
Ninth Circuit Holds District Court May Exercise Ancillary Jurisdiction to Hear
Attorney’s Fee Application after Expiration of Settlement Agreement
In K.C. ex rel. Erica C. v. Torlakson, 762 F.3d 963 (9th Cir. 2014), the plaintiffs filed a
class action pursuant to the ADA, Section 504 and the IDEA against the California
Department of Public Instruction for failing to provide necessary services to students
with diabetes. The parties settled and the district court incorporated the settlement
agreement into an order of dismissal. The settlement agreement included attorney’s
fees for the plaintiffs and the district court retained jurisdiction for two and one-half years
solely on compliance issues. . Id. at 965.
Almost two years after the district court’s jurisdiction to enforce the settlement
agreement had expired, the plaintiffs filed a motion for additional attorney’s fees for their
work monitoring implementation of the agreement as prevailing parties under the ADA,
Section 504 and the IDEA. The district court dismissed for lack of jurisdiction but the
Ninth Circuit reversed. Id. at 966.
The Ninth Circuit began by noting the difference between ancillary jurisdiction over
claims which may be based on facts which are interdependent and based on
proceedings which enable a court to function successfully, “vindicate its authority and
effectuate its decrees.” Id. (emphasis in original). Ancillary jurisdiction over factually
interdependent claims was codified as part of 28 U.S.C. § 1367. However, ancillary
jurisdiction over collateral proceedings, such as at issue here, remain a common law
doctrine. Id. (citation and internal quotations omitted). As the court noted, this case turns
on the distinction between a court’s ancillary jurisdiction to enforce a settlement
agreement and its ancillary jurisdiction over collateral matters such as an attorney’s fees
dispute.” Id. at 367.
The district court correctly noted that because plaintiff’s motion for attorney’s fees was
filed well after the effective ending date of the settlement agreement and was not filed
pursuant to any of the terms of the agreement, it had no ancillary jurisdiction to enforce
the agreement itself. Id. at 968. However, according to the Ninth Circuit, that was not
the end of the matter. It stated that district courts may “properly exercise ancillary
jurisdiction “over attorney fee disputes collateral to the underlying litigation.” Id. (citation
and internal quotations omitted). Additionally, such jurisdiction exists after the
underlying litigation has ended. In fact, “a district court’s ancillary jurisdiction over an
attorney’s fees dispute is inherent and broader than its ancillary jurisdiction to enforce a
settlement agreement. Id.
Here, the plaintiffs are not seeking to implement any aspect of the settlement
agreement, nor are they arguing that the settlement agreement obligates the defendant
to pay attorney’s fees for their monitoring of the agreement. The plaintiffs are seeking
attorney’s fees as prevailing parties under the ADA, Section 504 and the IDEA.
Therefore, “the fact that the district court lacks ancillary jurisdiction to enforce the
settlement agreement” is irrelevant. Id. at 969. The district court’s ancillary jurisdiction
over an attorney’s fees dispute was not affected by the end of the court’s ancillary
jurisdiction to enforce the settlement agreement and the district court did not need to
explicitly retain jurisdiction over a motion for attorney’s fees. Id. at 969-70. Finally, the
plaintiffs were not required to file a separate federal lawsuit for attorney’s fees. Id.
Therefore, the Ninth Circuit held “that the district court has ancillary jurisdiction over
Plaintiffs’ motion for attorney’s fees.” Id. However, the court went on to observe that “the
exercise of ancillary jurisdiction over an attorney’s fee dispute is discretionary” and on
remand “the district court in its discretion will decide whether to exercise its ancillary
jurisdiction over Plaintiffs’ motion for attorney’s fees.” Id. at 971.
Second Circuit Holds Methodology Selected by District Would Provide FAPE to
Student
In A.S. ex rel. S. v. New York City Dept. of Educ., 573 Fed. Appx. 63 (2d Cir. 2014)
(unpublished), the parents sought tuition reimbursement for the unilateral placement of
their child in a private school for students with autism. They argued that the school
district’s recommended methodology, Treatment and Education of Autistic and
Communication Related Handicapped Children (TEACCH), was not appropriate for their
child and that he needed the Applied Behavior Analysis (ABA) program. Id. at 66.
The impartial hearing officer ruled in the parents’ favor, that the school district’s
recommended program was not appropriate. However, the state review officer (SRO)
reversed. On appeal the district court affirmed the SRO. Id. at 65. The Second Circuit
affirmed. Id. at 66.
The court found that the record did not support the parents’ assertion that the
“overwhelming testimony” demonstrated that the district’s recommended methodology
was not appropriate. Moreover, the school district witnesses testified that TEACCH was
appropriate, and the court is “required to give particular deference to state educational
authorities on the issue of methodology.” Id. (citation omitted). Finally, the court held
that “on this record it cannot be said that A.S. could only progress in an ABA program.”
Id.
Third Circuit Holds Claim May be Filed to Enforce Favorable Administrative
Decision Under IDEA
An impartial hearing officer (IHO) held that a school district failed to meet its FAPE
obligation to D.E., a student with a disability, for all eight years he had been a student in
the school district and failed to provide extended school year services for four years.
The IHO ordered hour for hour compensatory education services for the student and
that the parents be reimbursed for the compensatory services they obtained. The IHO
also stated that should “the parties agree, [the district] may set up a fund with a set
dollar amount that the parent may draw upon for educational services and equipment.”
D.E. v. Central Dauphin Sch. Dist., 765 F.3d 260, 266-7 (3d Cir. 2014). Neither party
appealed.
The parents subsequently filed a suit “seeking to recover a monetary equivalent of the
nearly 10,000 hours of compensatory education awarded to D.E.” by the IHO. Id. at 267.
They also sought compensatory damages under the IDEA, the ADA and Section 504.
The district court dismissed the IDEA compensatory claim for failure to exhaust and also
dismissed the claims under the ADA and Section 504, holding that the school district
had not intentionally discriminated against the student. Id. The Third Circuit affirmed the
district court’s decision on the ADA and Section 504, but reversed on the IDEA
exhaustion decision. Id. at 278.
The court first addressed the claims for damages under the ADA and Section 504,
noting that a plaintiff must establish that the defendant’s conduct was intentional in
order to be entitled to compensatory damages and that a “showing of deliberate
indifference satisfies that standard.” To meet the deliberate indifference standard the
evidence must establish that a defendant knew that a federally protected right was
substantially likely to be violated and failed to act despite that knowledge. Negligence or
bureaucratic inaction is not sufficient to meet this standard. Id. at 269.
Here, the school district’s failure to meet the student’s needs under the IDEA did not
establish that it knew it was violating the student’s rights sufficient to meet the deliberate
indifference standard. Id. at 271.
Turning to the question of whether the family was required to exhaust their IDEA
administrative remedies, the Third Circuit first determined that they did not seek to
rewrite, but rather enforce, the administrative decision. The IHO decision contemplated
reimbursement for services paid for by the family, but it also contemplated setting up a
fund should the parties “agree.” The court interpreted this clause to mean that the IHO
intended the parties to work together rather than give the school district the option to not
agree to set up a fund. Id. at 272.
The family alleged that the school district was denying them the remedy ordered by the
IHO by refusing to cooperate with them to create the fund and they could not afford to
front the costs for the services. The court noted that “the availability of IDEA remedies
should not depend upon whether a student or his parents have the financial means to
front the cost of those remedies.” Id. at 273. In this circumstance, the Third Circuit
stated it could not uphold an interpretation of the IHO’s order that “would create an
enormous loophole in a school district’s obligations under the IDEA, while substantially
weakening the IDEA’s protections for student’s in D.E.’s position.” Id. at 273. (internal
quotations and citation omitted).
The Third Circuit next sought to resolve a question of first impression—“whether a party
seeking to enforce a favorable administrative due process hearing must exhaust
administrative remedies before filing suit in a court of law.” Id. at 274.
The court began by noting that the IDEA clearly envisions that plaintiffs exhaust
administrative remedies before initiating a court action. The court agreed with D.E. that,
where a student wins his due process hearing in all regards, “there is nothing left to
appeal administratively.” Id. at 275. Additionally, the IDEA states that a due process
decision is final unless a party appeals the decision. Where, as here, neither party
appeals, the decision becomes final and there is “nothing left to be exhausted
administratively.” Id. Therefore, “administrative exhaustion of a favorable decision is
futile and barred by the express language of the statute in that only ‘aggrieved parties’
may appeal.” Id. at 276. The court thus held “that a party seeking to enforce a favorable
decision from an administrative due process hearing need not exhaust administrative
remedies before filing suit in a court of law.” Id.
Finally, the Third Circuit addressed the question of “whether an individual who seeks to
enforce a favorable decision in court is an ‘aggrieved party’ for purposes of” the IDEA.
Id. at 277. The court noted with favor an observation from the First Circuit that
“Congress could not have intended to leave plaintiffs without an IDEA statutory remedy
when they succeed before an impartial hearing officer and the school system does not
appeal the administrative decision but simply fails to fulfill a continuing obligation to
provide services.” Id. (quoting Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 116 (1st
Cir. 2003), internal quotation omitted).
The Third Circuit also cited favorably to comments from a case from the Eastern District
of Pennsylvania:
It would be anomalous to read the IDEA as omitting a judicial remedy where a
party is successful before a hearing officer but the School District refuses to carry
out the decision. That party is as much aggrieved as in the circumstance where
the administrative ruling is adverse. In both cases, the relief sought has not been
realized.
id. at 278 (quoting Dudley v. Lower Merion School District, 768 F.Supp.2d 779, 783
(E.D. Pa. 2011)). The court, therefore, held “that individuals seeking to enforce a
favorable decision obtained at the administrative level are ‘aggrieved’ for purposes of
the IDEA and may properly pursue such claims in court.” Id. at 278.
Eleventh Circuit Holds School District’s Lack of Individualized Goals Denied
FAPE to Student
In Jefferson County Bd. of Educ. v. Lolita S., 581 Fed.Appx. 760, slip op 4 (3d Cir.
2014) (unpublished), the school district developed an IEP that listed goals based on the
state standard for ninth-grade students even though the student, M.S., was reading at
the first-grade level. The impartial hearing officer determined that the school district had
offered the student a Free Appropriate Public Education (FAPE), but the district court
reversed. The Third Circuit affirmed the district court’s decision. Id. slip op, p. 3.
The Third Circuit noted that there was no evidence that the student had progressed
from a first to ninth-grade reading level and the district provided no program to address
this gap in his reading program to justify a reading goal at the ninth-grade level.
Moreover, the court noted that his IEP for one year had one student’s name typed in,
which was crossed out and replaced with M.S.’s name. The next IEP had the M.S.’s
name “but the goals were largely the same.” Id. slip op 4. The court observed that the
student’s “IEP did not provide him with any educational benefits beyond those he would
have received if he never had the IEPs.” Id.
Turning to the student’s transition goals, the Third Circuit again held that the school
district denied the student a FAPE. The IDEA requires that transition goals are to be
developed “based upon age appropriate transition assessments.” 20 U.S.C. §
1414(d)(1)(A)(i)(VIII). Here, however, although a box was checked on the IEP that
assessments were completed, the evidence shows that this was not the case. This
procedural violation had a negative impact on the student. First, he received the same
vocational program as the rest of his peers, “without any insight or determination as to
whether that would be appropriate for M.S.” Lolita S., slip op p. 5. Additionally, as
another example of using stock language in the IEP that did not meet the student’s
needs, his IEP’s post-secondary goal did not match his diploma track. Id.
Finally, the Third Circuit held that the mother was entitled to reimbursement for an
independent educational evaluation (IEE) she obtained. The school district never filed
for due process upon the parents’ request for an IEE, but argued that her request was
not proper because it did not identify a specific disagreement with its evaluation. The
court rejected this contention, noting that the IDEA regulations explicitly state that a
school district may not require that the parents provide such a statement. Therefore,
since the school district did not file a due process request, “it cannot now defend its
evaluation or challenge the IEE.” Id. slip op 6.
Third Circuit Holds Parent Expert May be Denied Opportunity to Observe Student
in Class to Prepare for Hearing
In R.K. v. Clifton Bd. of Educ., 587 Fed.Appx. 17, 2014 WL 5011403 (3d Cir. 2014)
(unpublished), the parents filed for a due process hearing claiming that the school
district had denied their son, R.K., a FAPE. The hearing officer and the district court
both held that the district offered a FAPE to the student and the Third Circuit affirmed.
Id. at *1. The hearing lasted 16 days and “several witnesses testified that R.K. had
made at least reasonable progress in the program.” Id.
On appeal to the Third Circuit, the parents focused on procedural issues. First, they
argued that the school district’s refusal to provide them with a copy of an expert
consultant’s report about the program their child attended was a procedural violation
that denied them their right to participate in the development of their son’s IEP. The
IDEA requires that parents have the right to examine all records relating to their child.
20 U.S.C. § 1415(b)(1). Here, however, the court held that the report did not relate to
R.K., as the consultant did not meet him or examine any records pertaining to him.
Accordingly, their right to examine all records relating to R.K. was not violated. R.K. at
*4.
Next, the parents argued that the school district’s refusal to allow their expert the
opportunity to observe R.K.’s class violated their right to an impartial due process
hearing. The Third Circuit again did not agree. Id. The court noted that the hearing
officer “held an extensive hearing, during which the plaintiffs presented testimony from a
number of witnesses, both lay and expert.” Id. The court noted that the parents
appeared to argue that “the inability to present an additional expert witness deprived
them of their right to an impartial hearing,” an argument the court did not find
persuasive. Id. In a footnote, the court also noted that the refusal to allow the expert to
observe the program, when R.K. was no longer enrolled in it, did not violate the parents’
right to an independent educational evaluation “of the child.” Id. at fn. 5 (emphasis in
original).
Third Circuit Addresses “Deliberate Indifference” Standard in School Abuse Case
The Third Circuit in Robinson v. Peirce, 586 Fed.Appx. 831, 2014 WL 4801272 (3d Cir.
Sept. 29, 2014) (unreported), held that a school district did not violate student's
substantive due process right to be free of abusive government action.
Appellants Elizabeth and William Robinson, individually and on behalf of I.R., their
minor son, brought this action under 42 U.S.C. § 1983 against a school bus driver, the
transportation company where the driver worked and the school district for an injury
suffered by I.R. in a school-bus evacuation drill. The Robinsons sought relief by way of
the “state-created danger” doctrine, which arises as a matter of substantive due process
under the Fourteenth Amendment. The Third Circuit upheld the District Court finding
that the Robinsons failed to raise a genuine dispute of material fact on the issue of
deliberate indifference” and granted summary judgment in favor of the District.
Robinson v. Peirce at *1.
I.R., a twelve-year-old child suffering from osteopetrosis, a bone marrow disease, was
enrolled as a seventh grader within the North Pocono School District (PA). I.R.'s
disabilities left him with significant physical limitations, id. at *1, and legal blindness. On
the day of his injury he traveled on a school bus operated by Pocono Transportation,
Inc., and driven by its employee, Forrest Peirce. No adults were present at the time of
the drill other than Peirce, who was not I.R.'s usual bus driver and had not been told
about I.R.'s disabilities. In violation of the district’s policy, Peirce, an experienced driver,
made no effort to determine whether any students should be excused from participating
in the drill. He remained seated at the front of the bus during the drill instead of
supervising the students' exit from the rear emergency exit door. I.R., without direct
supervision, attempted to jump down to the ground. Instead of landing safely, he
dropped awkwardly to the pavement and suffered a broken femur, which required him to
be airlifted to a nearby hospital for medical treatment. Id. at *2.
The sole question presented was whether the district court erred by granting summary
judgment on the Robinsons' state-created-danger claim against the District. Injury
caused by a state actor's affirmative intervention in a plaintiff's affairs may, under limited
circumstances, rise to the level of a substantive due process violation. The essential
elements of such a claim include: (1) the harm ultimately caused was foreseeable and
fairly direct; (2) a state actor acted with a degree of culpability that shocks the
conscience; Id. at *2; (3) a relationship between the state and the plaintiff existed such
that the plaintiff was a foreseeable victim of the defendant's acts, or a member of a
discrete class of persons subjected to the potential harm brought about by the state's
actions, as opposed to a member of the public in general; and (4) a state actor
affirmatively used his or her authority in a way that created a danger to the citizen or
that rendered the citizen more vulnerable to danger than had the state not acted at all.
Id. at *3.
The court analyzed whether the record supported a finding of “shocks the
conscience.” When officials have the time to make ‘unhurried judgments,’ deliberate
indifference is sufficient to meet the “shocks the conscience” standard. Importing
aspects of Eighth Amendment jurisprudence, the Third Circuit has defined “deliberate
indifference” as requiring “conscious disregard of a substantial risk of serious harm.’ Id.
at *3.
The Robinsons were required to prove that the District exhibited deliberate indifference
to a substantial risk of serious harm to I.R. On this point, Plaintiffs’ emphasized that
school district staff members were well aware of I .R.'s disabilities and had reason to
expect that I.R. would be a participant in the drill. The Robinsons argued that based on
these facts, a jury could find that the District's failure to provide its own supervisory
personnel or, at a minimum, to notify Peirce of I.R.'s special needs, constituted
deliberate indifference. Id. at *3.
The Third Circuit rejected this analysis finding the facts insufficient to establish
deliberate indifference. The school district was reasonably entitled to expect that Peirce,
an experienced bus driver, would comply with his obligations by seeking out and
excusing students from participation in the drill, and by personally supervising the
evacuation from an appropriate vantage point. There is no evidence that district staff
intentionally decided not to provide Peirce with a list of students with special needs.
Instead, the record suggests that this omission was the product of a bureaucratic
oversight, akin to mere negligence — which is insufficient to establish deliberate
indifference. Id. at *4.
As such, the Robinsons failed to raise a genuine dispute of material fact as to whether
the District's conduct would shock the conscience and the District Court did not err in
granting summary judgment in favor of the District and against the Robinsons on their
state-created-danger claim. Id.
Prompt Response Defeats School District Liability in Third Circuit School Abuse
Case
In Shadie v. Hazleton Area Sch. Dist., 580 Fed. Appx. 67 (3d Cir. 2014), the Third
Circuit again addressed the measure of district culpability in a school based abuse
case, this time under the Rehabilitation Act of 1973.
Alex Shadie, a student with autism and intellectual disabilities, was enrolled in special
education classes within the Hazleton Area School District (PA). He routinely had
episodes in which he entered what the parties called “shut down mode,” a behavior
during which he became largely nonresponsive to efforts at instruction or
communication. At the crux of this case are three incidents in which Gloria Forte, a
teacher's aide employed by the District, tried to rouse him from “shut down mode” with
inappropriate verbal commands and physical contact. Specifically, during these
incidents she knocked his feet off of a chair, yelled at him, struck his forehead with the
palm of her hand, and shook him. Id. at 68.
Shortly after the last incident, the aide was transferred to another classroom and had no
further contact with the student. The first of the three incidents was not reported to
administrators. Id. at 69.
Other claims pleaded in the case were resolved prior to this appeal. The sole question
remaining was whether the District Court erred by granting summary judgment on one
count, in which Shadie stated a claim under § 504 of the Rehabilitation Act for
compensatory damages Id. at 70. As the Third Circuit recognized in S.H. ex rel. Durrell
v. Lower Merion Sch. Dist., 729 F.3d 248, 261–62 (3d Cir. 2013), a plaintiff seeking
compensatory damages on a § 504 claim must also prove that the discrimination at
issue was intentional, which requires proof that the school district exhibited “deliberate
indifference” to the underlying act of discrimination. To show deliberate indifference, the
plaintiff must establish “(1) knowledge that a federally protected right is substantially
likely to be violated ... and (2) failure to act despite that knowledge.”
The substance of Shadie's § 504 claim is that the District's deliberate indifference to the
aide’s “physical and mental abuse,” which occurred in response to his autism-related
“shut down” episodes, denied him the benefit of a “safe and appropriate educational
atmosphere” and that a genuine dispute of material fact existed as to whether the
District exhibited deliberate indifference to the abuse.
The Third Circuit rejected this argument. Viewing the evidence in the light most
favorable to Shadie, the record reflects that he was subjected to three episodes of
inappropriate verbal and physical contact due to a classroom aide's inability to properly
accommodate his disability. The record would not permit a jury to find that the school
district intentionally discriminated against Shadie under these circumstances. Id. at
70. No evidence exists that the district ignored or otherwise minimized the acts of the
aide. Moreover, the district responded promptly and appropriately to the third incident by
removing the aide from the classroom and thus preventing further contact between her
and Shadie. That she had not been removed from the classroom prior to this third
incident, under these circumstances, rises at most to the level of “negligence or
bureaucratic inaction,” which is insufficient to establish deliberate indifference. Id. at 71.
As such, Shadie failed to raise a genuine dispute of material fact as to intentional
discrimination by the school district.
Ninth Circuit Holds Failure to Provide Parents with Response-to-Intervention Data
Violated Right to Be Full Participants in IEP Meetings
In M.M v. Lafayette Sch. Dist., 767 F.3d 842, 847 (9th Cir. 2014), the Ninth Circuit held
that the school district’s failure to provide response-to-intervention (RTI) testing data to
the parents violated the procedural requirements of the IDEA and prevented them from
meaningfully participating in the IEP meeting for their son, thereby denying him a FAPE.
C.M. is a student with a learning disability. When he entered kindergarten he was
flagged as a student needing extra support in reading through the district’s RTI process.
Id. at 847. In first grade he was identified as a student with a disability, an IEP was
developed for him, and he was placed in the school’s instructional support program
(ISP). Id. at 848. C.M. continued in the program into third grade, but the parents were
concerned with his lack of progress and the school district’s reluctance to modify his
program. During this time, the school district did not provide the parents with any of the
test scores from C.M.’s RTI assessments.
Ultimately the parents removed him from the ISP and placed him in private tutoring at
their own expense. Id. at 850. In the interim, the parents also had requested an
independent educational evaluation (IEE) at district expense for C.M., but the district did
not respond to their request. The parents filed a state complaint with the California
Department of Education on this issue, and in response the school district initiated a
due process hearing, as required by IDEA. As a result, the Department of Education
closed its investigation. Id.
The parents also filed a due process hearing request seeking reimbursement for the
private tutoring they were providing for C.M. Both the hearing officer and the district
court ruled that the school district provided a FAPE to C.M. and, therefore, denied
reimbursement. Id. The Ninth Circuit reversed the district court’s decision that the
school district had offered C.M. a FAPE.
The court began its analysis by noting that “a core principle throughout the IDEA is
meaningful participation by parents and informed consent, making the parents an
integral part of the” IEP Team. Id. at 851. The Ninth Circuit agreed with the parents that
failing to provide them with the RTI data violated the IDEA’s procedural requirements.
Id. at 852.
In reaching this conclusion the Ninth Circuit relied upon several IDEA provisions. First,
34 C.F.R. § 300.306(c)(1) requires that when determining eligibility and the educational
needs of the student the IEP Team is to draw upon a variety of sources, “and ensure
that information obtained from all of these sources is documented and carefully
considered.” M.M. at 853 (quoting 34 C.F.R. § 300.306(c)(1); emphasis in original). The
court found that the school district did not “ensure that the RTI data was documented
and carefully considered by the entire IEP team,” since the parents were not provided
with this information. Id. Additionally, 34 C.F.R. § 300.311(a)(7) requires that if a student
has been assessed with a “response to scientific, researched-based intervention,” a
statement of the “instructional strategies used and the student-centered data collected”
must be provided. M.M. at 854 (quoting 34 C.F.R. § 300.311(a)(7)).
Next, the court determined that 34 C.F.R. § 300.309(b)(2) requires that to ensure the
lack of student performance is not due to a lack of adequate instruction, the IEP team
must consider “data-based documentation of repeated assessments of achievement at
reasonable intervals … which was provided to the child’s parents.” M.M. at 855 (quoting
34 C.F.R. § 300.309(b)(2)). The court reasoned that this information would have been
particularly helpful here since the school district “met three times per year to discuss
C.M.’s progress based on that data.” M.M. at 855. Therefore, the court concluded that
the school district violated the IDEA’s procedural requirements “by failing to provide the
entire IEP team with C.M.’s RTI data for the purpose of making his eligibility
determination.” Id. The court also found that by not providing the RTI data to the parents
the school district violated the IDEA’s procedural requirements “by not providing the
parents with an opportunity to examine all records relating to C.M.” Id.
Having concluded that the school district violated the IDEA’s procedural requirements,
the court next held that this violation denied C.M. a FAPE because it seriously infringed
upon the parents’ opportunity to participate in the process of developing the IEP. Id. at
856. Although other members of the IEP Team had this data, it was not available to the
parents. The parents did not have “the picture the data painted of C.M.’s deficits and his
progress during his kindergarten through third grade years.” Id. In particular, at his first
annual review the RTI data showed that he had declined in language arts after receiving
special education services for a year, yet the school district did not make any
modifications to his IEP. Without this data, “the parents were struggling to decipher his
unique deficits, unaware of the extent to which he was not meaningfully benefiting from
the ISP, and thus unable to properly advocate for changes to his IEP.” Id. The Ninth
Circuit, thus, remanded to the district court to determine, in the first instance, whether
the parents should be reimbursed for the private tutoring they obtained for C.M. Id.
The Ninth Circuit also addressed the district court’s decision to dismiss the claim
against the Department of Education for closing its investigation of the IEE once the
school district filed a due process hearing request against the parents, concluding that
“the district court correctly dismissed this claim because the Department of Education
abided by the [IDEA] regulatory mandate to stay the investigation while the due process
hearing was pending.” Id. 860 (citing 34 C.F.R. § 300.152(c)(1)). With minimal analysis,
the Ninth Circuit also affirmed the district court’s decision that “§§ 1412(a) and 1415(a)”
do not provide a private right of action. M.M. 860.
Third Circuit Holds School District Provided FAPE to Student Even Though IEP
Only Contained One Reading Goal and One Incomplete Math Goal
In Coleman v. Pottstown Sch. Dist., 581 Fed.Appx. 141 (3d Cir. Sept. 12, 2014)
(unpublished), the guardians of a student with a disability, R.J., sought tuition
reimbursement for a private school specializing in the Lindamood-Bell reading method.
Both the hearing officer and the district court ruled that the school district offered a
FAPE to the student, and the Third Circuit affirmed, stating, “Because of the standard of
review, we are constrained to affirm.” Id. at 143.
The court began its analysis by noting that the issue of whether or not a school district
offered a student a FAPE was a question of fact governed by the “clearly erroneous”
standard. Id. at 147. Under this standard, the reviewing court must be “left with a
definite and firm conviction that a mistake has been committed.” Id. at 146 (citations and
internal quotations omitted). The court stressed that under this standard, “even if we
may have reached a different outcome, we must defer to the District Court’s finding if
there is evidence to support it.” Id.
Turning to the specifics of the case before it, the Third Circuit first considered whether
the school district’s failure to include in his IEP a number of special education services
that he received at his former school district denied him a FAPE. While attending the
current school district, R.J.’s reading skills improved from the 1.5-2.0 levels to the 1.83.5 levels over two school years. When he moved to the private school his reading
levels improved to 6.0-7.5 grade level in one year. The district court found that the IEP
nevertheless was “reasonably calculated to provide R.J. with meaningful educational
benefit,” the Third Circuit’s FAPE standard. Id.at 147. Under this standard, R.J.’s
progress at the private school showed that the IEPs failed to provide him with
“maximum educational benefit,” but did not deprive him of a FAPE. Id.
Next, the Third Circuit addressed the annual goals listed in the IEP. R.J.’s IEP only
listed one reading goal and an incomplete math goal. The Third Circuit viewed the
district court’s conclusion, that the IEP is not required to have “distinct measurable goals
for each recognized need of a disabled student to provide a FAPE,” as a finding of fact.
Id. (quoting the district court). In affirming the district court, the Third Circuit noted that
although the parent’s expert stated the IEP should have included additional goals, “she
does not explain how the presence of such goals were necessary to ensure R.J.
received a FAPE.” Id. at 148.
The parents also argued that the district court focused on R.J.’s progress in reading
fluency without considering his lack of progress in other areas such as writing and math.
The Third Circuit noted that the record did not have any evidence about his progress in
reading and math and R.J. was receiving passing grades in his special education
classes. The Third Circuit concluded that a court may consider a student’s grades in his
special education classes, provided it also considers the adequacy of the instruction
provided. Here the district court did consider its adequacy, “or more specifically, the
absence of evidence that it was inadequate.” Id. at 148.
The district court’s decision that the school district did not need to conduct a functional
behavioral assessment or increase his counseling when R.J.’s behaviors worsened,
was also affirmed, with the Third Circuit noting that the district court was presented with
facts to support its view that these services were not needed to provide R.J. with a
FAPE. His behaviors stemmed from his desire to return to his old school district and “did
not result in any loss of instructional time.” Id.
Finally, the Circuit Court held that the district court properly considered R.J.’s individual
potential when determining the school district offered him a FAPE. Acknowledging that
R.J.’s performance improved markedly when he moved to the private school and that
evidence of a student’s later progress may be considered in determining whether the
student received a FAPE, the court nonetheless reasoned that the private school
focused only on his reading and the “measure and adequacy of an IEP can only be
determined as of the time it is offered to the student, and not at some later date.” Id. at
149 (internal quotations and citation omitted.)
Third Circuit Holds School District Did Not Discriminate Against Gifted Student
with Disabilities
K.K. is a gifted student with gastroparesis which occasionally requires hospitalization,
and an anxiety disorder. She had been attending her school district’s advanced program
for gifted students. She graduated from the program with a class rank of 21 out of 336
students, but K.K. alleged that the school did not properly prepare her for college level
work and sued for compensatory damages as well as injunctive, declaratory and
injunctive relief under Section 504. The district court granted the school district’s motion
for summary judgment and the Third Circuit affirmed. K.K ex rel. L.K. v. Pittsburgh Pub.
Sch., 590 Fed. Appx. 148, 2014 WL 4670038 (3d Cir. Sept. 22, 2014) (unpublished).
During K.K.’s junior year her gastroparesis flared up in February and she was
hospitalized and then received home instruction for the remainder of the school year
with two-and-a-half hours per week of one-on-one instruction. The parents
supplemented this instruction with private tutoring and she completed all her course
work except for Chemistry and Japanese, which she completed the next year. Id. at *1.
During her senior year K.K. again suffered a relapse and went back on home instruction
in the Fall and the school district developed a Section 504 Plan. The parents
complained that the home instructor was not able “to personally provide direct
substantive guidance in all of K.K.’s courses … which included advanced-placement
work in English, Japanese, Chinese, calculus, physics, European history and biology.”
Id. at *2. K.K., therefore, dropped two of the courses, attempted to self-teach others, or
completed them with the help of a private tutor.
The school district offered to have K.K. evaluated under the IDEA, but the family did not
give consent. The district also offered to provide mental health services and to
coordinate with K.K.’s treating psychologist, which was also declined. Id. When her
condition improved and she returned to school the district modified her Section 504 Plan
to provide additional supports and accommodations, however, K.K. began skipping
classes and going to the library. The school district did not realize that her in-class
attendance had plummeted for several months. When they discovered the problem,
they met to attempt to provide further supports for K.K. She ended up suffering another
prolonged relapse and completed her senior year at home with private tutoring. Id. at *3.
The parents filed a due process complaint and the hearing officer ruled for the school
district. The district court granted the school district’s motion for summary judgment and
the Third Circuit affirmed. Id. at *3, 4, 5.
Beginning its analysis, the court noted that to receive compensatory damages, the
plaintiffs must establish proof of intentional discrimination, which can be met by a finding
of “deliberate indifference.” “Deliberate indifference requires a deliberate choice rather
than negligence or bureaucratic inaction.” Id. at *4 (internal quotation and citation
omitted). Here, the district offered “increasingly significant modifications” to fit K.K.’s
needs and the family rejected several further measures it offered to them. Therefore,
the Third Circuit affirmed the district court’s grant of summary judgment on the damages
claim. Id. at *5.
The Third Circuit next noted that the plaintiffs do not need “to prove deliberate
indifference to obtain declaratory, injunctive or equitable relief under” Section 504, and
that the school district is liable if it failed “to ensure meaningful participation in
educational activities and meaningful access to educational benefits.” Id. (internal
quotation and citation omitted).
The court went on to find that the school district’s homebound instruction policy was not
meant “to be a full substitute for in-class learning nor was it required to be.” Id. Here, the
policy resulted in the district working with the family “to provide a modest approximation
of the high-caliber instruction that K.K. had received while actively attending classes.”
Id. Additionally, while there were some lapses in the school district’s responses to some
of the challenges presented by K.K, such as her retreat to the library, they did not rise to
a violation of Section 504. The district took steps to provide K.K. with “a meaningful
opportunity to obtain passing marks in several of the school’s most advanced courses
and to maintain a scholastic record that led to enrollment in a prestigious university.” Id.
Third Circuit Holds Claim for Private School Tuition Reimbursement Under
Section 504 Requires a Showing of Intentional Discrimination
The parents of a student with a severe tree nut allergy were dissatisfied with the school
district’s proffered Section 504 Plan so they placed him in a private school and sought
tuition reimbursement. An impartial hearing officer ruled that the school district had
offered a FAPE to the student, T.F. The district court granted the school district’s motion
for summary judgment and the Third Circuit affirmed. T.F. v. Fox Chapel Area Sch.
Dist., 589 Fed.Appx. 594, 2014 WL 4674635 (3d Cir. Sept. 22, 2014) (unpublished).
The parents and the school district met several times to attempt to come up with a
Section 504 Plan to accommodate the student’s allergies, but the parents were not
satisfied. The school district rejected the nineteen page Plan proposed by the parents
as being too long to be practical to implement. The school district also argued that the
standard allergy procedures adopted by the district as well as the training the staff
received, combined with their proposed Section 504 Plan would be appropriate for T.F.
They further argued that it was not necessary to incorporate all of the provisions of their
general policy into T.F.’s individual Plan. A copy of the district’s proposed Plan was
faxed to T.F.’s physician and it was approved by him. Id. at *2.
On appeal, the parents argued that tuition reimbursement is an equitable remedy which
does not require a showing of intentional discrimination. The Third Circuit rejected this
position observing that it would be “hard to imagine what would constitute compensatory
damages in these circumstances, if not tuition reimbursement. Id. at *4. Nevertheless,
the court found that the parents could not prove a denial of FAPE even if they did not
have to prove intentional discrimination. Id.
The parents argued that the school district failed to provide an individualized Section
504 Plan and impermissibly relied on a generic district policy that was insufficiently
detailed to meet T.F.’s needs. In response, the court noted that the school district
revised its proposed Plan several times and got T.F.’s physician to sign off on the Plan.
Their decision not to incorporate the substance of their general policy into T.F.’s Plan
was intended to make sure it was accessible and understandable in emergencies.
Moreover, the teachers and staff were trained. Against this backdrop, the Third Circuit
held the failure to include every accommodation requested by the parents did not result
in a denial of FAPE. Id.
Second Circuit Affirms Significant Attorney’s Fee Reduction in IDEA Case
In K.L. v. Warwick Valley Cent. Sch. Dist., 12 Civ. 6313 (DLC), 61 IDELR 276 (S.D.N.Y.
2013) the parents sought $27,614 in attorneys’ fees for a successful settlement
agreement but the district court awarded the parents only $3,394. Citing the “substantial
discretion” given to district courts in determining fee awards the Second Circuit affirmed.
K.L. v. Warwick Valley Cent. Sch. Dist., 584 F. Appx. 17 (2d Cir. Nov. 25, 2014)
(unpublished).
The Second Circuit began its analysis by rejecting the school district’s argument that the
parent was not a prevailing party. The court noted that prevailing party status is not
dependent on the “magnitude of the relief obtained.” Id. at 17-8 (quoting Farrar v.
Hobby, 506 U.S. 103, 114 (1992)).
The relevant analysis is whether the relief obtained “materially alters the legal
relationship between the parties by modifying the defendant’s behavior in a way that
directly benefits the plaintiff.” K.L. at 18 (quoting Farrar at 111-2). Here, the school
district provided Extended School Year (ESY) summer services to the student beyond
what it previously was willing to provide, and thereby was a sufficient basis for prevailing
party status. K.L. at 18.
The court also rejected the school district’s contention that the parent was not entitled to
any fees because the relief obtained was de minimis. The fact that a plaintiff obtains
relief that is small in nature does not mean it was de minimis. In this case, although the
relief was comparatively small, the student did achieve the primary goal in bringing the
case—full ESY services. Id.
Nonetheless, the Second Circuit also affirmed the district court’s decision concerning
the amount of fees to award the plaintiff. First, the court affirmed the decision to reduce
the hourly rate for the attorneys in the case to $250 per hour, even though the prevailing
rate in the jurisdiction for experienced attorneys was $300 to $400 per hour. The court
noted that in the Southern District, attorneys typically get lower rates in “straightforward
civil cases.” Here, the straightforward nature of the case and the prompt settlement of
the case prior to any administrative proceedings formed the basis for the district court to
lower the hourly rate. The Second Circuit could not conclude that the district court
abused its discretion. Id. at 19.
Second, the Circuit Court affirmed the district court’s reduction in the number of
compensable hours upon which to base an award. The primary factor in determining a
reasonable fee “is the degree of success obtained.” Id. (internal quotation and citation
omitted). Here, the settlement agreement only afforded the student a portion of the relief
sought. The Second Circuit also affirmed the district court’s decision that even if the
unsuccessful and successful claims were interrelated, the fees requested were still
excessive in light of the degree of success and the time required to obtain the relief. Id.
at 20.
Finally, the Second Circuit found no abuse of discretion in the district court’s decision
not to award fees for the time spent litigating the fee petition. The Second Circuit noted
that although the basic notion is that fees for preparing the fee request would ordinarily
be granted when the underlying request is allowed, the district courts are given “broad
authority to depart from this basic assumption.” Id. Particularly where “the fee claims are
exorbitant or the time devoted to presenting them is unnecessarily high, the judge may
refuse further compensation or grant it sparingly.” Id. (internal quotations and citation
omitted; emphasis in original). Here, the Second Circuit could find no error in the district
court’s decision to refuse further compensation in light of its conclusions that the time
spent litigating a straightforward fee petition was excessive (30 hours) and the
underlying fee request was exorbitant. Id.
Ironically, in light of the school district’s “intractable conduct throughout these
proceedings,” the Second Circuit went on to award the student his costs associated with
the appeal, but denied the district an award of appellate costs. Id.
Ninth Circuit Holds That Delay in Tuition Payment to Private School Does Not
Violate Stay-Put
In F.K. ex rel. A.K. v. Hawaii Dept. of Educ., 585 F. Appx. 710 (9th Cir. Nov. 26, 2014)
(unpublished), the parent challenged a decision to move her child from a private special
school to a public school program. The State of Hawaii Department of Education did not
maintain funding for the private school placement while the case was proceeding, and
the parent argued that this failure violated the stay-put provision of the IDEA. The Ninth
Circuit held that there was no violation here because the student was never affected by
this failure and the State resumed payment when the district issued an injunction
ordering it to do so. Id. at 712.
On the merits, the Ninth Circuit affirmed the decision by the district court to affirm the
administrative hearing decision that the State’s recommended program was appropriate
for the student. Id. at 711. It was not error for the district court to defer to the hearing
officer’s determinations that the program would offer a FAPE to the student and that the
proposed placement would be able to implement the IEP. Id. Although there was
evidence to the contrary on both points, the district court’s decision to adopt the hearing
officer’s findings was not clearly erroneous. Id. Courts are directed to give “due weight”
to the administrative findings and conclusions, particularly where they “are thorough and
careful.” Id. (citations and internal quotations omitted).
Second Circuit Affirms District’s Failure to Include Specific Methodology on
Student’s IEP
The parents objected to a proposed placement for their child, D.B., a student with
autism, and sought tuition reimbursement for a private school. An Impartial Hearing
Officer (IHO) ruled for the parents and awarded tuition reimbursement. The State
Review Officer (SRO) reversed the IHO and denied tuition reimbursement to the
parents finding that the school district’s recommended program offered a FAPE to the
student. The district court affirmed the decision of the SRO and the Second Circuit
affirmed the decision of the district court. R.B. v. New York City Dept. of Educ., 589 F.
Appx. 572, 2014 WL 5463084 (2d Cir. Oct. 29, 2014) (unpublished).
The parents contended that the IEP should have included a specific methodology to be
used with D.B., Developmental, Individual-Difference, Relationship-Based Model
(DIR/Floortime), claiming it was “the only pedagogical methodology suitable for” him. Id.
at *3. The court began by noting that as long as the methodologies included in the IEP
are appropriate, “the omission of a particular methodology is not a procedural violation.”
Id. (citations omitted).
In this case, the evidence did not establish that D.B. could benefit only from the
DIR/Floortime methodology. The Applied Behavioral Analysis (ABA) method had also
been recommended for D.B. and the record indicated that he progressed using that
approach. The Second Circuit, therefore, deferred to the SRO’s conclusion that the
omission of the DIR/Floortime program from the IEP was not a procedural violation. Id.
at *4.
The Second Circuit also deferred to the SRO’s conclusion that the IEP was
substantively appropriate for D.B. The record supported the SRO’s findings that the
recommended 6:1:1 program would be appropriate and that D.B. had similar academic,
social, and behavioral needs as the other student’s in the class. The concern of the
parent’s expert about the emotional and behavioral needs of the other student’s in the
class was not based on actual knowledge of the other students in the class, as he had
observed the class the year before and conceded that there were no students in the
class when he observed the program during the summer. Id.
Third Circuit Affirms Move from Private Special School to School District-based
Program
In M.A. v. Jersey City Bd. of Educ., 592 F. Appx. 124, 2014 WL 6656328 (3d Cir. Nov.
24, 2014) (unpublished), the parents challenged the school district’s proposal to move
their son, M.A., a student with autism, from a private special education school,
Somerset Hills Learning Institute (SHLI), to a special education classroom in the district.
The school district had placed M.A. at SHLI and at the annual review the director of the
program stated that M.A. had made good progress at SHLI and no longer needed the
intensive services provided at the school. The director also stated that M.A. could
benefit from a less restrictive setting where he could learn with his peers. Accordingly,
the school district recommended a special education program in the district for students
with autism. Id. at *1.
The parents requested an impartial hearing. The director of SHLI testified that SHLI was
no longer appropriate for M.A. and that he needed a full-day classroom with “small
group instruction and systematic integration with typical peers that SHLI could not
provide.” Id. at *2.
The parents’ expert testified that the recommended change in program was not
appropriate, but conceded that the methodology recommended by the district could be
appropriate if properly implemented. The ALJ found that the district program would not
deny M.A. a FAPE, giving greater weight to the district’s witnesses because they had
worked with him for several years, but also noting that the parents’ expert also admitted
that the program could be appropriate for M.A. Id. The district court affirmed the ALJ’s
decision. Id. *3.
On appeal, the Third Circuit affirmed these determinations that the recommended
program was appropriate. The court noted that there was ample evidence in the record
to conclude that the IEP was appropriate. In particular, the court noted that “because
this finding was based on the ALJ’s credibility determinations, we are bound to accept
them as no nontestimonial, extrinsic evidence to the contrary was proffered.” Id. at *5.
The Third Circuit also affirmed the determination that the district did not violate the
parents’ procedural rights. Although the school district’s prior written notice did not
identify the specific classroom M.A. would be placed in, the law only requires “a
description of general type of educational program in which the child is placed … rather
that the ‘bricks and mortar’ of the specific school.” Id. at *4 (internal quotations and
citation omitted).
Second Circuit Holds Exhaustion Requirement Does Not Apply When Parents Are
Challenging the Failure to Implement the IEP
Pursuant to the IDEA, before bringing a claim in court, even if the claim is not itself
based on the IDEA, a plaintiff must exhaust the IDEA administrative remedies to the
extent the claim is seeking relief that is also available under the IDEA. 20 U.S.C. §
1415(l). In Stropkay v. Garden City Union Free Sch. Dist., 593 F.Appx. 37, 2014 WL
6778397, at *2 (2d Cir. Dec. 3, 2014) (unreported), the Second Circuit held that parents
do not need to exhaust the IDEA’s administrative remedies before filing a claim under
the ADA or Section 504 based on a school district’s failure to provide services which are
“clearly-stated requirements of the IEPs.”
Here, the parents alleged that the school district did not provide agreed upon speech
and occupational therapy for a six month period. The court noted that this claim fell
within the futility exception to exhaustion based on Second Circuit precedent. Id. at *3.
However, the Second Circuit did not excuse the parents’ failure to exhaust on their
retaliation claim. The parents alleged that the school district took adverse steps in
retaliation for their advocacy activities. In particular, the district limited communication
with the school to one point of contact, prevented the use of an upgraded power
wheelchair, imposed certain toileting requirements for a student it incorrectly claimed
was incontinent, and placed a call to Child Protective Services.
The court found that these claims constituted “grievances related to the education of
disabled children,” and were therefore subject to the IDEA’s exhaustion requirement. Id.
at *2 (citation and internal quotations omitted). The court noted that under the IDEA,
education constitutes more than academics and that “the wheelchair, toileting and other
issues raised here” fit within IDEA’s framework. Id.
First Circuit Holds that Faulty Pleadings and Briefing Dooms Parents’ Suit for
Damages Against the Puerto Rico State Education Department
Parents began discussions with the Puerto Rico Department of Education (DOE) about
special education placement options for their child with a disability. When they were
unable to reach agreement on the services their daughter needed, parents unilaterally
placed her at a private school recommended by the DOE.
When the private school insisted that the parents give their child a special diet in a
separate room, as opposed to the regular cafeteria, the parents attempted to file a
complaint with the state DOE, but the DOE said it could not take the compliant because
the child’s school was private. The parents then filed a suit for damages in district court
under the ADA, Section 504, Section 1983, the IDEA, and a number of Puerto Rico
laws. The district court dismissed their claims and the First Circuit affirmed. Lebron v.
Commonwealth of Puerto Rico, 770 F.3d 25, 27-28 (1st Cir. 2014).
The First Circuit began by noting that as a general rule plaintiffs “cannot get around the
IDEA’s limited remedies” by suing under other statutes such as the ADA, Section 504 or
Section 1983. Nevertheless, denying a child a FAPE could “be a valid basis for a claim
under either [Section 504] or the ADA, even if the factual basis for those claims might
overlap with that of an IDEA claim.” Id. at 29-30. The court did not need to reach this
issue in this case, however, as it found that the parents did not sufficiently plead their
claims. Therefore, dismissal was proper. Id. at 30.
The court wrestled with determining the theory behind the parents discrimination claim.
For example, the parents did not set out any basis for their claim that the DOE should
have supervised the private school “simply because [it] received federal funds.”
Therefore, it considered this argument waived. Id. at 31. Additionally, the parents did not
provide “any factual allegations that would support any inference” that the defendants
intentionally discriminated against the child. Simply alleging in conclusory fashion that
the defendants engaged in intentional discrimination “is not enough to satisfy the
pleading standard.” Id. (citation omitted).
Finally, the First Circuit affirmed the district court’s dismissal of the parents’ state law
claims for damages against the Commonwealth of Puerto Rico because those claims
were barred by the Eleventh Amendment. The Commonwealth waived its Eleventh
Amendment immunity under the IDEA and Section 504 because it accepted funds
under those statutes. Id. at 32. However, this waiver does not extend to the
Commonwealth’s statutes. Moreover, the fact that it has consented to suits for damages
in state trial courts does not mean it has consented to suits in federal courts. Id. at 3233.
Fourth Circuit Upholds North Carolina’s Two-Tiered Review System Under the
IDEA
Under the IDEA, states may choose to conduct impartial due process hearings through
the state educational agency (SEA) or through the local educational agency (LEA)
“responsible for the education of the child.” 20 U.S.C. § 1415(f)(1)(A). If the initial
hearing is conducted by the LEA, the IDEA provides for a review by the SEA. 20 U.S.C.
§ 1415(g). In E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773 F.3d 312
(4th Cir. 2014), the parents claimed that North Carolina’s two-tier administrative review
process violated the IDEA.
In a case of first impression, the Fourth Circuit upheld the structure of North Carolina’s
impartial hearing system. The parents argued that since the LEA did not conduct the
impartial hearing the IDEA did not authorize an appeal to the SEA. The Fourth Circuit
agreed with the parents that the first tier of North Carolina’s impartial hearing system
was not a “local” hearing as defined by the IDEA. Id. at fn. 2. Nevertheless, the court
disagreed with the parents’ argument that the scheme violated the IDEA. It focused on
the purpose of the IDEA’s exhaustion requirement—to allow, “states to use their special
expertise to resolve educational disputes.” Id. at 514.
The court also noted that the IDEA’s hearing and review provisions contemplate that the
SEA “conduct the administrative review immediately preceding any civil action.” Id. at
515 (internal quotation and citation omitted). The court stated that it was “conceivable
that a state statute requiring numerous and onerous levels of administrative review
could offend the IDEA, North Carolina’s … additional level of review only enhances
procedural protections for disabled students.” Id.
The court observed that upholding North Carolina’s scheme simply recognized “the
state’s primary role in setting educational policy and resolving disputes under the
statute.” Id. The
parents had filed for an impartial hearing because they believed the school district had
not provided a FAPE to their daughter. First, they claimed that she needed “direct,
intensive, one-on-one instruction that used applied behavior analysis (ABA). Second,
they claimed the district had not provided her with the speech therapy called for in her
IEP.
The ALJ concluded that the district had not provided her with speech therapy, but found
that the district had provided a FAPE in all other respects. The district appealed to the
state review officer (SRO), but the parents did not. The SRO reversed the ALJ and
found the district had provided the student with the therapy as called for in her IEP.
The parents then filed in district court where the court dismissed their claim that the
district had not offered her the needed ABA, finding that they had failed to exhaust their
administrative remedies on that claim. The court then upheld the SRO’s finding that the
district had provided the recommended speech therapy. Id. at 513.
On appeal, the Fourth Circuit affirmed the dismissal for failure to exhaust administrative
remedies. As noted above, the court found that North Carolina’s two-tier review system
comported with the IDEA. Since the parents never appealed the ALJ’s decision on their
ABA claim to the SRO, the court agreed that they had not exhausted their administrative
remedies on this claim. Moreover, they did not meet any of the exceptions to
exhaustion. Id. at 516. The Fourth Circuit also agreed with the SRO and the district
court that the school district had in fact provided the speech therapy as required by the
IEP. The IEP did not call for one-to-one speech therapy. It called for speech therapy to
be provided in the “total school environment.” The evidence supported the conclusion
that the school district provide the speech therapy program spelled out in the student’s
IEP. Id. at 518.
Second Circuit Holds Reviewing Courts Must Defer to Administrative Hearing
Officer’s Determination Concerning the Adequacy of the Evidence in the Record
In Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372 (2d Cir. 2014),
the parents sought reimbursement for the unilateral placement of their daughter,
“A.N.H.,” in a therapeutic residential program, Family Foundation. An impartial hearing
officer (IHO) ruled in the parents’ favor and ordered the school district to reimburse the
parents. Id. at 384. The state review officer (SRO) reversed, and denied
reimbursement, finding that there was insufficient evidence in the record for the parents
to meet their burden to prove that the Family Foundation was appropriate. Id. at 385.
The district court reversed the decision of the SRO and determined that reimbursement
was appropriate. Id. The Second Circuit reversed the district court, and directed that the
New York SRO decision be affirmed. Id. at 388-9.
The Court began by stating that the parents bear the burden of proving the
appropriateness of a unilateral placement. Id. at 377. The Court then observed that
other than a few notes in the file based on a visit to Family Foundation by some school
district staff, the only person to testify about its appropriateness was Jeffery Brain, who
conducted one of the therapy groups attended by A.N.H. Id. at 383. The Court also
noted that a unilateral placement “is only appropriate if it provides education instruction
specifically designed to meet the unique needs of a” student with a disability. Id. at 386
(emphasis in original; citations and internal quotations omitted). Finally, the Court
reiterated the standard of review of administrative determinations in IDEA cases, that
especially where the district court is relying on the same evidence as was before the
SRO, it “should afford more deference” to the SRO decision. Id.
Against this backdrop, the Second Circuit held that even though it appears that the
Family Foundation placement may have helped A.N.H. “with some of her psychological
issues…the SRO’s determination in this case is sufficiently reasoned and supported by
the record to merit deference.” Id. The SRO’s decision addressed the evidence in the
record in detail, “spending four single-spaced pages reviewing the evidence of the
services generally available at Family Foundation and repeatedly noting where the
record lacked necessary detail as to the services provided or how they related to
A.N.H.’s educational progress.” Id. at 387. The SRO then concluded that he needed
more specific information to make an appropriate determination.
The Court concluded that “the determination made by the SRO, here, that more
particular information was required to reach a particular decision, is a function of the
specialized knowledge and expertise possessed in greater degree by state educational
policy-makers than by the courts.” Id. Here,
the SRO’s conclusion that he lacked sufficient evidence to determine the
appropriateness of A.N.H.’s placement … was supported by the lack of evidence
on the record connecting the counseling services available to A.N.H. to a
particular plan for her academic progress or to objective evidence showing those
services had resulted in academic progress.
Id. at 388.
Accordingly, the SRO’s determination that the record was insufficient is “reasoned and
supported by the record, and it is entitled to deference.” Id.
First Circuit Holds Settlement Agreement Bars District Funded Evaluation Absent
a Change in Circumstances
In S. Kingstown Sch. Comm. v. Joanna S., 773 F.3d 344 (1st Cir. 2014), the parent filed
for due process seeking a private school placement for her son, “P.J.”, and eight
evaluations from the school district. The parties settled with the school district agreeing
to place P.J. in the private school and to perform four evaluations before he was placed
there. Id. at 347. Pursuant to the settlement agreement, the parent waived “any and all
causes of action” of which she knew “or should have known.” Id. at 354 (internal
quotations omitted). The school district performed the evaluations and P.J. was placed
at the private school.
Soon after P.J. was placed, and within about six months of the settlement agreement,
the parent requested ten additional evaluations, including independent evaluations of
the four conducted by the district. Rather than agree to pay for the evaluations, the
district initiated an impartial hearing to show that its evaluations were appropriate and
that no further evaluations were needed.
The hearing officer found that the OT and educational evaluations conducted by the
district were not appropriate. The hearing officer also ordered a psychoeducational
assessment. Id. at 348-9, 356. The school district appealed the decision on the OT and
psychoeducational assessments, but not the educational assessment. Id. at 349, 356.
The District Court reversed the hearing officer’s decision on the OT evaluation and
found that the settlement agreement released any claim to the psychoeducational
evaluation. Id. at 349. The First Circuit affirmed, but remanded to the District Court for a
determination of whether the parent was entitled to attorney’s fees as the prevailing
party on the independent educational evaluation. Id. at 356-7.
Regarding the OT evaluation, the First Circuit found that the District Court did not err in
rejecting three factual findings by the hearing officer which formed the basis of the
hearing officer’s decision that the school district’s evaluation was not appropriate. Id. at
350. Regarding the psychoeducational evaluation, the First Circuit held that the
settlement agreement relieved the school district “from having to perform or pay for any
such evaluation.” Id. at 352.
In reaching this decision, the court determined that the settlement agreement was “best
read to release any right to additional evaluations that [the parent] may have had,
except when her request arises from a change in the conditions that prevailed at the
time she signed the Agreement.” Id. at 354. The court noted that, “Because
unforeseeable events may give rise to unforeseeable grounds of complaint, the
Agreement may comfortably be read to preserve requests premised on new
circumstances that may arise.” Id.
Here, the parent alleged no such change in circumstances. The court declined to
specify the extent to which circumstances must change “before a release no longer bars
a requested evaluation” but noted the absence of “any facts in the administrative record
showing a material change in conditions.” Id. at 355 (emphasis added).