| Special Education Case Law: Recent Decisions | ||||||||||||||||||||||
| August 7, 2007 | ||||||||||||||||||||||
| By Dean B. Eggert & Alison M. Minutelli | ||||||||||||||||||||||
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A Word of Caution No two cases are exactly alike. This material is designed to provide educators with a broad understanding of case law pertaining to certain aspects of the IDEIA. This material does not include every aspect of the law, nor does it discuss every case involving the IDEIA. You are strongly encouraged to seek a legal opinion from your school district's legal counsel regarding any specific case.
The purpose of this material is to review recent decisions, which have been rendered in the field of special education law. The goal of this material is to provide the special education administrator with the tools necessary to interpret the statutory and regulatory law pertaining to the IDEIA. II. Eligibility for Special Education and Related Services A. The "Adverse Impact" Requirement In Mr. I. v. Maine School Administrative District 55, the district team members determined that a student diagnosed with Asperger's Syndrome and a depressive disorder, who performed well academically but exhibited "emotional issues, including anxiety and sadness, as well as difficulties with peer relationships" was not eligible for special education and related services under the IDEA. 416 F.Supp. 2d 147 (D. Me. 2006). In making this decision, the district focused on the fact that the girl's disability did not adversely impact her academic skills. The parents filed a request for due process, seeking to challenge this decision. The hearing officer found for the district, and the parents appealed to the United States District Court. The district court ruled that the school district and hearing officer erred by focusing on whether the girl's disability adversely affected "academic" skills. The court looked to the definition of "education" found in the Maine Department of Education's special education regulations and held that under Maine's broad definition, "education" includes social skills and social communication. Thus, because there was an adverse impact on those areas, she was eligible for special education and related services. This decision was affirmed by the First Circuit Court of Appeals. Mr. I v. Maine School Administrative District No. 55, 2007 U.S. App. LEXIS 5128 (1st Cir. Mar. 5, 2007). The court agreed that "whether a student qualifies as a 'child with a disability' under [the IDEIA] poses a mixed legal and factual inquiry." The IDEIA establishes a basic floor of education but "does not displace the states from their traditional role in setting their own educational policy." Thus, the states are free to give substance to the term "adversely affect a child's educational performance." Relying on "Maine's broad definition of 'educational performance,' the court first noted that the hearing officer wrongly concluded that "a child without 'academic needs' is per se ineligible for IDEA benefits, especially when the state has conditioned eligibility on a standard that explicitly takes 'non-academic areas' into account." Instead, the relevant inquiry was whether the child's "condition adversely affected her performance in any of the educational areas Maine has identified." Id. Practice Pointer: The State definition of "education" will play a role in the eligibility determination. When determining whether a child is eligible for services under the IDEIA, the team may have to consider factors such as social skills and peer interactions, instead of focusing on whether the child's condition adversely impacts her academic performance. Education Rule 306 sets forth the minimum standards for public school approval in New Hampshire. In order to be approved, public schools must meet the criteria set forth in Ed 306. These standards include, but are not limited to, courses in: arts education, English/language arts and reading, health education, physical education, mathematics, science, social studies, information and communication technologies. Ed 306.26(b); 306.27. High schools are required to offer co-curricular programs that provide opportunities for all students to participate in activities designed to meet their needs and interests, including but not limited to:
Ed. 306.27(b)(5). In addition, school boards are required to adopt specific policies, including a policy pertaining to character and citizenship, which shall "include those elements of character and citizenship to be incorporated in courses of study or instilled, by example, in a caring educational environment, including but not limited to: a) Self-discipline, self-respect, and self-control; b) . . . humanity, benevolence, and truth and honesty with self and others; c) Fairness, integrity, and justice; d) Respect, courtesy, and human worth; e) Responsibility to oneself and others; f) Community service; and g) . . . the rights and responsibility of citizenship. Ed. 306.04. Schools are also required to adopt "a written philosophy and statement of goals and objectives consistent with the rules of the state board of education." Ed. 306.05. House Bill 927, which sets forth the substantive educational content of an adequate education, was passed and approved in June 2007. This bill amends RSA 193-E, by inserting a new subsection that sets forth "the specific criteria and substantive educational program that deliver the opportunity for an adequate education." RSA 193-E:2-a. The statute identifies the following areas that deliver the opportunity for an adequate education: English/language arts and reading, Mathematics, Science, Social studies, Arts education, World languages, Health education, Physical education, and Technology education, and information and communication technologies. The statute states that "the standards shall cover kindergarten through twelfth grade and shall clearly set forth the opportunities to acquire the communication, analytical and research skills and competencies, as well as the substantive knowledge expected to be possessed by students at the various grade levels, including the credit requirement necessary to earn a high school diploma." An adequate education is one that "provide[s] all students with the opportunity to acquire" skills and knowledge in the above listed fields, as well as "[s]ound wellness and environmental practices to enable [students] to enhance their own well-being, as well as that of others," and "[s]kills for lifelong learning, including interpersonal and technological skills, to enable them to learn, work, and participate effectively in a changing society." B. Serious Emotional Disturbance In Brendan K. v. Easton Area School District, the United States District Court for the Eastern District of Pennsylvania granted the district's motion for summary judgment, finding that the district did not deny FAPE because the student was not eligible for services under the IDEA. 2007 U.S. Dist. LEXIS 27846 (E.D. Pa. April 16, 2007). The student had been evaluated three times; each evaluation indicated that "his abilities were found to be sufficient to maintain him in a mainstream classroom setting," with an "IQ . . . reading, math, science and social studies skills . . . at or near his grade and age levels." Although the student "at times clearly exhibited inappropriate behavior . . . [t]here [was] no indication that he suffered from an inability to learn that could not be explained by intellectual, sensory, or health factors, that he was unable to build or maintain satisfactory interpersonal relationships with peers and teachers, or that he tended to develop physical symptoms or fears associated with personal or school problems." The fact that he had a conduct disorder or was socially maladjusted did not rise to the level of a serious emotional disturbance. (1) C. Specific Learning Disability In Hood v. Encinitas Union School District, the Ninth Circuit Court of Appeals affirmed a decision that a student was not eligible for special education and related services because of a specific learning disability or other health impairment. 486 F.3d 1099 (9th Cir. 2007). The student, Anna Hood, performed at grade-level appropriate/average or above average levels in the public school classroom. Although she had difficulties completing tasks, turning homework in on time, and keeping her belongings organized, her test scores "placed her above the fiftieth percentile with near uniformity." In addition, her performance on various intelligence tests indicated high intellectual ability, with scores in the average or better. In January and April 2001, Anna's parents provided the district with a report from her doctor. The report indicated that she had an EEG that had significant abnormalities consistent with epilepsy, and that she had difficulty staying on task. He recommended that she be evaluated for ADHD; eventually she began taking medication for the attention problem. Upon receipt of the January report, the district convened meeting and created a Section 504 plan, which included preferential seating, use of a graphic organizer, and AlphaSmart keyboard, one-step directions, visual support for instruction and concepts, frequent prompts and checks for understanding, and daily teacher checks for homework assignments. In May 2001, parents requested a special education evaluation. In October 2001, the district determined that Anna did qualify for special education services, finding that she does not have a learning disability. In December 2001, the District reevaluated the Section 504 plan and updated it with an accommodation to address parents concerns regarding self-esteem. In February 2002, parents withdrew Anna from the public school and enrolled her in a private school. Parents filed a request for due process, alleging that the district violated the IDEA by refusing to provide their daughter with special education and related services. They requested reimbursement for a unilateral private school placement. The district court affirmed the decision of the hearing officer, which found for the district, and the parents appealed. Parents argued that their daughter had a specific learning disability because she exhibits a severe discrepancy between her achievement and intellectual ability in one or more of the academic areas set forth in the California Education Code, and that the discrepancy cannot be corrected through other regular or categorical services offered within the regular instructional program. They also argued that their daughter was other health impaired, and that as a result of her SLP or OHI, she required special education and related services. The Ninth Circuit Court of Appeals affirmed the district court's holding that Anna was not legally entitled to special education because of a SLD. The court assumed that a severe discrepancy between Anna's achievement and her intellectual ability existed, but stated that "the law does not entitle Anna Hood to special education if we find that her discrepancy can be corrected in the regular classroom." The evidence indicated that "Anna has been progressing in the general curriculum along with her peers, . . . [and that] Anna was a highly proficient student." In addition, "[t]he accommodations that the school district offered Anna via her Section 504 plan, particularly the provision for daily teacher checks for homework assignments, one-step directions, and use of a graphic organizer, would assist with Anna's difficulties and allow her to excel in the regular classroom." Accordingly, the district court did not err in concluding that Anna was not eligible for special education and related services because of a SLD. The court also affirmed the holding that Anna was not eligible for special education because of an OHI (seizure disorder or ADHD). Anna did not meet the eligibility requirements because "the evidence that Anna had a seizure disorder and attention deficit disorder [was] inconclusive, and . . . Anna did not require special education to meet her educational needs, which could be met with appropriate accommodations in the regular education environment." The court held that even if Anna had the impairments, "it was reasonable for the hearing officer to conclude that any impairment can be accommodated in the general classroom" with Anna's Section 504 plan. In Board of Education of the East Islip Union Free School District, 47 IDELR 210 (NY SEA Feb. 2, 2007), the student, a five-year old kindergartener with cognitive skills in the low average to high average range, was diagnosed with Asperger's Disorder, Dysfunction of Sensory Integration (DSI), and ADHD. The child was referred, and the team concluded that the child was not eligible for special education and related services because he did not display evidence of a handicapping condition. Parents filed a request for due process, and the hearing officer upheld the team's decision, finding that the parents had failed to establish that their son had a disability that adversely impacted his educational performance. The SEA affirmed the decision, holding that during the 2005-06 school year, the child's educational performance was not adversely affected by Asperger's Disorder, DSI, or ADHD. Although the child had difficulty interacting with the other children in the classroom, and sometimes had behavioral problems, the student performed well in class, had great work habits, and was eager to participate. Practice Pointer: Eligibility requires more than a diagnosis from a physician. In order to be eligible for services under the IDEA, the child's disorder must adversely impact his/her educational performance. Part C services must be provided in a "natural environment." In Andrew M. v. Delaware County Office of Mental Health & Mental Retardation, the parents of twin sons with significant speech and communication delays, filed two requests for due process, seeking reimbursement for attendance at a summer program and compensatory education because services were not provided in the twins' "natural environment." 2007 U.S. App. LEXIS 14027 (3d Cir. June 15, 2007). With respect to the "natural environment" claim, the court held that "when an agency provides [early intervention] services but fails to provide them in the natural environment without appropriate justification, that agency violates Part C of the IDEA... Natural environments are settings that are natural or normal for the child's age peers who have no disabilities." Thus, the appropriate inquiry is whether the location where the early intervention services were provided as a "normal setting for a child the twins' age without disabilities." The court held that the children received services in a natural environment because the environment provided "a structured environment that provide[d] a balance of adult direction and child[-]centered activities and modifications to maximize communication and interaction with peers and adults." Because "[p]arents looking to encourage their non-disabled child's interaction with peers and adults and engage their child in child-centered activities would likely enroll their child in a day care or preschool," the services were provided in a natural environment. In D.P. v. School Board of Broward County, the court held "that the IDEA does not entitle students to continue receiving services pursuant to their IFSPs until such time as valid IEPs are put in place for them." 483 F.3d 725 (11th Cir. 2007). The parents of autistic triplets filed a due process proceeding, alleging that the district failed to have IEPs in place for the students on their third birthday; parents sought an order that the temporary IEPs designed after the children had turned 3 were invalid, and an order requiring the district to provide the students with services pursuant to their last IFSPs until valid IEPs were in place. The court relied on the stay put provision of the IDEA, and held that since the students had never been admitted to a public school program, in the absence of an agreement between the parents and the district, the only placement available was the public school program; thus, the district was not required to provide services pursuant to the IFSPs. A. Failure to Document the Reason for Removals from School May Result in Procedural Violations In Baltimore City Public Schools, 47 IDELR 316 (Md. DOE, Jan. 19, 2007), the parent filed a complaint, alleging that his son's school violated the IDEA by failing to hold a manifestation determination after the student had been removed from school in excess of ten days during the 2006-07 school year. The student's disciplinary record indicated that from the start of the 2006-07 school year until November 21, 2006, the date the complaint was filed, the student was disciplinarily removed from the classroom on two occasions for a total of 7 days. The parent alleged that the school staff contacted him on numerous occasions and asked that he remove the student from school prior to the end of the day. The school "sign-in" log indicated that the parent removed the student from school on three occasions, but does not state the reason for the removal. The Maryland Department of Education found that, since there was no documentation of the reasons for the three early releases and no other documentation to counter parents' assertion that the removals were disciplinary removals, that those incidents should have been documented and kept with the student's record. Practice Pointer: This case illustrates the importance of documenting reasons for removal. Failure to document the reason for the removal may result in a finding that the student has been removed from the classroom for disciplinary reasons. In the above case, the District was not faulted for failing to hold a manifestation determination because the student's removals did not exceed ten days. Parents who repeatedly reject IEP proposals, without offering hints as to what additional services they believe are necessary, or what proposed services are inappropriate may find that their allegations that the district delayed in presenting an IEP are rejected. Lessard v. Wilton-Lyndeborough Cooperative School District, 2007 DNH 057 (D.N.H. April 23, 2007). During the period of April through December 2004, the student's IEP Team convened at least seven times, with each meeting lasting between two and three hours, to draft an appropriate IEP for the 2004-05 school year. The district proposed an IEP on August 16, 2004; it "contain[ed] nearly 60 pages describing educational planning, academic goals, and transition training (as well as a proposed behavioral management plan . . .). It is, by far, the most detailed and comprehensive IEP the court has seen." During the period of August through December 2004, the parties were not able to reach agreement on the IEP. Although the district had asked "parents to specifically identify the portions of the proposed IEP with which they disagreed and to outline any proposed additions, deletions, or modifications they wanted," parents refused to do so and rejected the proposed IEP. The district then offered to pay for plaintiffs' legal representation in mediation, contingent upon the plaintiffs identifying the portions of the IEP with which they disagreed; plaintiffs failed to do so, and the district sought a due process hearing. The hearing officer concluded that the district's IEP was reasonable and appropriate to enable the student to make reasonable and appropriate educational progress during the 2004-05 school year. Parents appealed. Parents argued that the 2004-05 IEP was deficient in the areas of literacy, transition services, and behavior management, and alleged that the district violated the IDEA by failing to have the 2004-05 IEP in place at the start of the school year. The court affirmed the hearing officer's decision, stating that it "cannot escape the conclusion that it was Mrs. Lessard who was responsible for the delay in getting S.L.'s IEP for 2004-05 into place. As of the meeting in August of 2004, the School District offered to plaintiffs a comprehensive IEP that met the requirements of the IDEA. . . . Although there was some delay in getting S.L.'s comprehensive IEP finalized, nothing in the record suggests that it caused her education to suffer." The court acknowledged that the "Lessards find themselves [in the enormously difficulty situation of] struggling to educate and provide for a daughter who suffers from severe disabilities," but went on to state that "it is decidedly unhelpful to the process when they repeatedly reject serial IEP proposals made by the School District, without offering some hint as to precisely what educational services they feel were improperly tailored to provide S.L. with some educational benefit." The court held that the district "fully met its legal obligations to S.L. and provided her with an IEP that was custom-tailored to her many divergent special needs, and one that afforded her a [FAPE]. Plaintiffs' procedural challenges to the due process hearing (and surrounding meetings) are insufficiently substantial to call into question the validity of either the IEP itself or the factual findings of the hearing officer." B. Failure to Specifically Identify a Placement Denied FAPE During the 2003-04 school year, the parents enrolled the student at the Riverview School, a residential school in Massachusetts, pursuant to an agreement between the parents and the District. A.K. v. Alexandria City Sch. Bd. 06-1130, 107 LRP 2282 (4th Circuit Court of Appeals 2007). The District had proposed a private day placement, but agreed to fund the portion of the Riverview tuition that was equivalent to the private day school tuition. Prior to the start of the 2004-05 school year, AK's IEP Team met on three occasions, for a total of 8-10 hours. Up until the last half hour of the final meeting, the team spent its time defining AK's level of performance and setting goals and objectives. The team spent a few minutes of time discussing placement, with the District proposing placement at an unspecified private day school. The parents, who were not aware of a private day school that could meet AK's needs, asked for clarification regarding the school. The meeting ended without any significant discussion about the appropriateness of the private day placement. AK's IEP contained a detailed discussion of his current level of performance and set forth goals and objectives, along with a transition plan. However, the IEP did not identify any particular placement other than a "private day school." Parents objected to the placement and refused to sign the IEP. In July 2004 the school sent out applications on AKs behalf to five area private day schools. He was accepted at two of the schools; after a tour of the schools, however, parents determined that neither would be able to meet AK's needs. Parents requested a due process hearing, arguing that the IEP was deficient because it failed to identify a particular school that could meet AK's needs, and seeking reimbursement for the Riverview tuition. The Hearing Officer denied the parents' claim, finding that the District offered a FAPE by offering placement at a private day school. On appeal, the District Court affirmed, but the Fourth Circuit Court of Appeals reversed, holding that the District failed to offer a FAPE because the IEP did not identify a particular school at which it anticipated AK would be educated. The court noted that it was not holding that "a school district could never offer a FAPE without identifying a particular location at which the special education services are expected to be provided. . . . But, certainly in a case in which the parents express doubt concerning the existence of a particular school that can satisfactorily provide the level of services that the IEP describes, the IEP must identify such a school to offer a FAPE." The court did not order reimbursement because the district court had not made findings regarding the appropriateness of the Riverview placement; thus, the court remanded the matter to the district court for a determination as to the appropriateness of AK's placement at Riverview. A. Attendance at Team Meetings Districts must obtain written consent from parents prior to excusing a required member of the IEP Team from a Team meeting. Baltimore County Public Schools, 47 IDELR (Md. DOE, May 18, 2006). On January 23, 2006, the District scheduled a Team meeting for February 6, 2006; prior to the meeting, the district and the parents provided each other with proposed goals and objectives, and suggested revisions to the same. At the meeting, the team agreed to amend the IEP to incorporate the draft goals and objectives, with the parent's revisions; the team also discussed ESY and determined that the student was not eligible for services. The student's SLP was on medical leave from January 31, 2006 through April 18, 2006; prior to her leave, she prepared a progress report and proposed goals and objectives, which she provided to the special education coordinator. The January 23, 2006 meeting notice listed all invitees; the SLP was not on the notice. The parent filed a complaint with the Maryland DOE, alleging, in part, that the district violated the IDEA by having an improperly composed IEP Team. Despite the fact that the SLP was not listed on the meeting notice, the DOE found that the District did not properly convene the IEP Team. The DOE stated that "since the area of speech-language services was to be discussed at the meeting, the law requires that a formal excusal was required." Although the SLP had submitted written input, the District failed to obtain written agreement from the parent, excusing the SLP from the meeting. The DOE ordered that the District convene a meeting within 30 days to determine whether the procedural violation had an educational impact on the child, and if so, what compensatory services or other remedy is necessary to redress the violation. VII. Adversarial Proceedings: Administrative Due Process Hearings and Appeals to Court Facts: The Parma City School District proposed an IEP for Jacob Winkelman for the 2003-2004 school year, with placement at a public elementary school. Jacob's parents did not believe the proposed IEP was appropriate, and they filed a request for due process, alleging that the District failed to provide a FAPE. The Hearing Officer held in favor of the District, and the parents appealed to the state-level review officer. The decision was affirmed and the parents filed suit in the United States District Court for the Northern District of Ohio, on their own behalf and on behalf of Jacob, seeking reversal of the administrative decision and reimbursement for the costs associated with their private school placement. The district court granted the District's motion for judgment on the pleadings, finding that it had provided Jacob with a FAPE. Parents filed a pro se appeal with the Sixth Circuit Court of Appeals. The court entered an order dismissing the appeal, unless the parents retained an attorney to represent Jacob. Parents appealed that decision to the United States Supreme Court. Holding: The IDEA grants parents independent, enforceable rights, and "[t]he status of parents as parties is not limited to matters that relate to procedure and cost recovery," but encompasses the entitlement to a FAPE for the parents' child. Reasoning: "The goals of IDEA include 'ensuring that all children with disabilities have available to them a free appropriate public education' and 'ensuring that the rights of children with disabilities and parents of such children are protected. . . . To this end, the Act includes provisions governing four areas of particular relevance to the Winkelman's claim: procedures to be followed when developing a child's IEP; criteria governing the sufficiency of an education provided to a child; mechanisms for review that must be made available when there are objections to the IEP or to other aspects of IDEA proceedings; and the requirements in certain circumstances that States reimburse parents for various expenses." The Court did not decide whether IDEA entitles parents to litigate their child's claims pro se. B. Sufficiency of the Complaint Requests for due process must include the following elements:
20 U.S.C. § 1415(b)(7)(ii). Failure to include the required information may result in dismissal of the complaint. See M.S.-G. v. Lenape Regional High School District Board of Education, 47 IDELR 72 (D.N.J. 2007). In that case, a tenth-grade student with a disability (emotional disturbance and drug problem) who had been suspended ten times during one school year, filed a due process complaint against his school district. The complaint alleged the following facts:
The hearing officer dismissed the student's complaint because it failed to meet the minimum pleading standards. In particular, the complaint failed to state why the school suspended the student, failed to state the nature of the student's problems and how those problems relate to the suspension, and failed to state a proposed resolution to the problem, beyond "requesting remedial education; returning [the student] to school; and psychiatric evaluation and treatment." However, the letter does not state how the requested resolution will solve the problem. Yes. Ross v. Board of Education of Township High School District 211, 486 F.3d 279 (7th Cir. 2007). In November 2002, the district and the student's parents reached a settlement agreement with respect to the provision of a FAPE to their daughter. As part of the agreement, the parents agreed to:
Id. at 281-82. In exchange, the District agreed to work with an expert panel to create a plan to help the student transition back to the local school. However, her return was unsuccessful, and in November 2003, the District filed an emergency motion to block stay put relief. Thereafter, the student filed suit against the district, alleging violations of the ADA, Section 504, and the Civil Rights Act. The suit was dismissed based on theories of res judicata and claim preclusion; the student appealed, arguing that she was not a party to the prior suit, which her parents and the district settled by agreement. The court rejected this argument, concluding that her parents had "faithfully and firmly" represented her interests. The case of Homer Central School District, re-affirms that attorney's fees are not available at Resolution Sessions, and suggests that it is improper for an attorney to proceed to a due process hearing to obtain a fee award. 47 IDELR 145 (NY SEA Oct. 27, 2006). In November 2005, the parent referred her 4th grader to the district's "Committee on Special Education" (CSE). The CSE conducted evaluations and, at a meeting, concluded that the child did not meet the criteria for classification as a student with an educational disability. In May 2006, the parent requested due process, alleging that the district failed to comply with child find and failed to provide a FAPE, that the failure to provide a FAPE resulted in the need for corrective services, failure to conduct appropriate evaluations during the referral process, failure to properly conduct the identification meeting, and failure to provide a functional behavioral assessment and behavioral intervention plan. The parent requested attorney's fees and expenses. The parties held a resolution session, at which the district agreed to convene a meeting and to resolve three of the five issues raised by the parents, but refused to pay attorney's fees. The parties did not sign a written agreement. Shortly thereafter, the team convened; after the meeting, the parties believed that all of the parent's concerns had been addressed and agreed to begin drafting an IEP immediately. The following day, the parent's attorney acknowledged that all substantive issues had been resolved, but that he intended to continue to proceed with the hearing because the district refused to pay his attorney's fees. During the drafting of the IEP, additional issues arose regarding the proposed goals and objectives; accordingly, a hearing was held. Thereafter, the hearing officer held that the issues raised in the request for due process had been settled at the resolution session and with the IEP drafted by the parties. The parent appealed, arguing that the hearing officer erred on several grounds, in accepting evidence of the settlement discussions, and in failing to find that the district had violated the IDEA, including the child find provision. The SEA affirmed, holding that the hearing officer was not required to address matters that had been settled to the satisfaction of both parties. "Where an alleged violation of the IDEA has been remedied prior to or during an impartial hearing, there exists no remaining controversy between the parties. Neither an impartial hearing officer nor a State Review Officer is required to issue a decision regarding an issue that will have no effect on the parties." The court went on to suggest that it was improper for the parent's attorney to proceed to a hearing after the resolution session, during which the parent's substantive concerns had been resolved. The court noted "that the IDEA expressly precludes attorneys' fees to be awarded for an attorney's time during the resolution process or at a [Team] meeting, unless convened as a result of an administrative proceeding." Similarly, in D.D. v. District of Columbia, the court reaffirmed the notion that "attorneys' fees for time actually spent at a resolution session generally are not compensable under the IDEIA." 470 F.Supp. 2d 1 (D.D.C. 2007). "Nevertheless, if a settlement offer is rejected at the resolution session and the matter goes forward, a parent is still entitled to attorneys' fees under the statute for time spent on behalf of the client before and after the resolution session if the parent ultimately is the prevailing party." The court did note that the parties may discuss attorney's fees at a resolution session, but if the matter proceeds to hearing, attorneys' fees may not be awarded against the defendants for time spent attending the hearing. Participation in the resolution session is mandatory, and the failure to do so may result in dismissal of the due process request. Marinette School District, 47 IDELR 143 (Wis. SEA Feb. 14, 2007). In that case, the parent filed requests for due process on December 13, and 28, 2006. The two requests were consolidated, and prehearing conferences were held on January 10, 29, and 31, 2007. A resolution session was held on January 11, 2007; at that meeting, the parent proposed the remedies set forth in her due process requests. The District did not have the opportunity to present its proposed resolution, and another session was scheduled for January 26, 2007. On January 23, 2007, parent provided the District with her proposed remedy, including additional items that had not been presented at the July 11 session. At the start of the January 26 session, the parent informed the District that she would not proceed with the session unless the district signed a confidentiality agreement; the district refused and the meeting was canceled. On January 30, 2007, the parent reiterated that she would not attend a resolution session unless the District signed a confidentiality agreement. On January 31, 2007, the District filed a motion to dismiss, alleging that parent had failed to participate in the resolution session in violation of 34 CFR § 300.510(b)(4). (2) The parent requested that she have until February 9, 2007 to respond to the motion; the request was granted but she did not object until February 13, 2007. In her objection, she alleged that the District had inappropriately disclosed information related to the resolution session to the hearing officer and requested that a new hearing officer be appointed. The Hearing Officer ruled that the District had not inappropriately disclosed information and granted the motion to dismiss, stating:
1. Reimbursement and Compensatory Education The case of Jackson v. Ocean City Board of Education involved a request for reimbursement and a request for compensatory education. 2007 U.S. Dist. LEXIS 21064 (United States District Court for the District of New Jersey, Mar. 26, 2007). During the 1999-2000 school year, the student attended his local public high school; he remained there for three years. On July 17, 2002, the student's parents informed the district that they were unilaterally placing him at a residential facility in Connecticut. He attended that school for 2 years (repeating 11th grade and graduating in 2004). On August 1, 2002, parents filed a due process request, seeking reimbursement and compensatory education. The Hearing Officer held that the District had provided a FAPE during from the start of the 1999-2000 school year through the end of the 2000-2001 school year, but that it did not provide a FAPE during the 2001-02 school year. Accordingly, he ordered that the District reimburse the parents for the costs associated with one year of placement at the residential facility; in his order, he referred to this remedy as both "reimbursement" and as "compensatory education." On appeal, the court noted that "reimbursement" and "compensatory education" are different remedies, with different standards. Courts may award reimbursement when the student's IEP is inappropriate and the private placement is proper. In contrast, compensatory education "make[s] up for the earlier deprivation of a [FAPE]"; the "remedy is appropriate when the school knows or should know that the student was receiving an inappropriate education." Based on the hearing officer's finding that the District had denied FAPE during the 2001-02 school year, the court affirmed the award of one year of tuition as an award of compensatory education. The court remanded the matter to the hearing officer for a determination of the appropriateness of the IEP offered by the District during the 2002-03 school year, and whether the parents were entitled to reimbursement for the costs associated with the private placement. Practice Pointer: This case illustrates the difference between two of the IDEA's remedies, reimbursement and compensatory education. In Mr. G. v. Timberlane Sch. District, the parents appealed several administrative orders, alleging that the hearing officer erred in: rejecting their claims that the district failed to implement the child's IEP, failed to teach the child the general curriculum, failed to employ properly or adequately trained teachers, held a team meeting without them, failed to provide them with their child's educational records, improperly denied their request for a private placement, and improperly denied their request for compensatory education. 2007 DNH 2 (2007). The court rejected all of parents arguments, noting that parents "rel[ied] solely on their own opinions and observations," and that "[a]side from Ms. K's subjective opinion that EG performed well during home-schooling, that her work declined upon attending Timberlane, and that EG was unhappy at school," there was no evidence to bolster their case. In addition, "there [was] no evidence that Ms. K. possess (sic) the educational qualifications or credentials to credibly assess EG's schoolwork or progress." In contrast, the District had "credible testimony from numerous sources, all of which support the hearing officer's ruling that the District properly implemented the IEP and the modified curriculum." The court also found that the district provided parents with a reasonable opportunity to participate in meetings. In 2003, parents attended a team meeting and signed off on their child's IEP. Thereafter, they failed to attend meetings, and when they did attend, they made "sweeping and unqualified declarations of what [they] felt EG needed and refused to engage in a dialogue with the District regarding EG's education." In addition, the evidence showed that the district made EG's educational records available upon request. Thus, the district did not preclude the parents from participating in the IEP process. The parents also argued that the hearing officer erred in dismissing their request for compensatory education on the basis that they sought an improper remedy for the alleged violation (testing without parental consent). The court affirmed, noting that there was "no violation by the District where the IEP required no prior consent to test EG, nor [did the court] believe compensatory education would be the proper remedy for the alleged violation." Practice Pointer: Compensatory education is an equitable remedy, available in limited circumstances, and not for every alleged procedural violation of the IDEIA. In Mr. I. v. Maine School Administrative District 55, discussed above, the parents filed a cross-appeal, arguing that the District Court erred in denying their request for reimbursement and in failing to explicitly order the district to provide compensatory education as a remedy for the denial of IDEA services. The First Circuit held that a private placement cannot be "described as 'reasonably calculated to enable the child to receive educational benefit' if the private school does not offer at least 'some element of special education services in which the public school placement was deficient.'" 2007 U.S. App. LEXIS 5128, 65 (1st Cir. Mar. 5, 2007) (citations omitted). The court went on to state that "[t]o hold otherwise would, in essence, embrace the argument we [previously] explicitly rejected . . . that the IDEA entitles a parent, at public expense, to 'seek any alternative school she wishes if the public education is inadequate.'" Id. In this case, the parents placed the child at a private school; however, the school chosen by the parents did not offer the special education services recommended by the child's mental health providers. Thus, the parents were not entitled to reimbursement. The appellate court also affirmed the district court's denial of the parents' request for compensatory education. At the administrative level, the Hearing Officer had ordered the child's team to convene a meeting to develop an IEP for the child. The court noted that the child's IEP "necessarily [would] take into account the effect of the School District's failure to identify and offer special education services earlier," and declined to order compensatory education, because the team could "better assess 'what special education [the child] needs at this point.'" Id. at 69-70. On the facts of this particular case, the court declined to provide the team with "guidelines" to govern the resolution of the parents' compensatory education claim. Parents cannot obtain monetary damages for alleged violations of the IDEIA. Burke v. Brookline School District, No. 06-cv-317, 2007 DNH 12 (2007). In this case, the parents filed a complaint with the United States District Court for the District of New Hampshire, on their own behalf. Parents sought $250,000.00 in damages, alleging a claim under Section 1983 for alleged violations of the ADA, Section 504, the IDEA and FERPA. The District moved to dismiss the complaint, asserting that the plaintiffs failed to state a claim on which relief may be granted. The district argued that the parents' complaint alleged violations of the ADA, Section 504, FERPA and Section 1983 that were based on rights guaranteed by the IDEIA; since monetary damages are not a remedy for an alleged violation of the IDEIA, parents had failed to state a claim for relief. Parents objected, asserting that the District retaliated against them in violation of the ADA and Section 504. They argued "that because of their advocacy on behalf of their children, the District engaged in retaliation, coercion, intimidation and interference; activities which are prohibited by the ADA . . . and that the District as a matter of policy and practice failed to carry out the requirements of Section 504 that pertain to parents' rights." Parents asserted that the District retaliated against them in violation of the ADA by coercing them into signing a settlement agreement to resolve a dispute about an independent evaluation, that the District interfered with their access to grievance procedures to address the dispute about the evaluation, that District personnel retaliated against them because of the plaintiffs' complaints and disputes about the educational services provided to their children, and that District staff members fueled negative attitudes toward them among staff at a private placement, demanded access to medical and mental health records to be used in litigation of parents' complaints, changed the evaluation policy to exclude the parents' chosen independent evaluator, conditioned an IEP on the parents' consent to a psychiatric evaluation, and provided inferior services and treatment that did not comply with the IDEA. The court held that these claims are "closely related to the identification, evaluation, and educational placement of their children for purposes of achieving" a FAPE, and that the parents failed to "allege an independent claim under the ADA." Instead, parents alleged "an IDEA-based claim in the guise of the ADA"; therefore, the ADA claim was dismissed. The court dismissed the Section 504 claims for similar reasons, noting that the Section 504 regulations parents cited to "in support of their claim provide the same requirements and procedures for ensuring a free and appropriate public education that are required under the IDEA." Thus, the Section 504 claim was dismissed. This decision has been appealed to the First Circuit. In Marple Newtown School District v. Rafael N., the court held that an administrative ruling that required the district to find a more appropriate placement for a student with a disability altered the student's stay-put placement. No. 07-0558, 2007 U.S. Dist. LEXIS 17449, 47 IDELR 190 (E.D. Pa. Mar. 8, 2007). The parents filed a motion for a preliminary injunction, seeking an order compelling the district to implement a December 20, 2006 Opinion and Order of the Special Education Appeals Panel. In November 2001, the student began attending a residential facility (as a district placement), where he received life skills instruction and two hours of ESL per week. In 2002, he was transferred to another unit (within the same school), and the ESL services ceased. Parents believed that this placement was not appropriate because the ESL services were not provided, his epileptic condition was not accommodated and there was no transition planning. In June 2006, the parents filed a due process complaint regarding placement. After a hearing, the hearing officer held that the district had not denied the student a FAPE. This decision was reversed on appeal; by order dated December 20, 2006, the appeals panel held that the district had denied the student a FAPE and ordered it to create and implement an appropriate IEP. The district appealed the decision, and the student filed a motion for a preliminary injunction, seeking to compel the implementation of the December 20, 2006 order. The court granted the motion, holding that the district's failure to comply with the December 20, 2006 order was a violation of the student's right to FAPE. 1. Enforcing Administrative Decisions In L.J. v. Audubon Bd. of Educ., the United States District Court for the District of New Jersey held that it had jurisdiction, under § 1983, over a suit that sought to enforce an administrative decision. The Hearing Officer ordered the district to provide special education services to a student with a disability; the student filed a § 1983 suit, alleging that the district had failed to comply with the order. The court held that §1983 gave it jurisdiction over the suit, and denied the district's motion to dismiss. When a party aggrieved files a civil action, appealing a due process decision, the State court or district court of the United States "shall receive the records of the administrative proceeding." 20 U.S.C. § 1415(i)(2)(C)(i). In addition, the courts "shall hear additional evidence at the request of a party." Id. at § 1415(i)(2)(C)(ii). The First Circuit Court of Appeals has held that a party seeking to introduce additional evidence in an appeal brought under the IDEA must "provide some solid justification for doing so." Roland M. v. Concord Sch. Comm., 910 F.2d 983, 996 (1st Cir. 1990). When deciding whether to admit additional evidence, the court "should weigh heavily the important concerns of not allowing a party to undercut the statutory role of administrative expertise, the unfairness involved in one party's reserving its best evidence for trial, the reason the witness did not testify at the administrative hearing, and the conservation of judicial resources." Burlington v. Dep't of Educ., 736 F.2d 773, 791 (1st Cir. 1984). Recently, the United States District Court for the District of New Hampshire denied a parents' motion to admit additional evidence, holding that "[n]o 'solid justification' has been shown warranting additional evidence in this forum on appeal." K.R. v. Brookline School District, (D.N.H. Dec. 26, 2006). In reaching this decision, the court noted that "[a]dministrative due process hearings in this context are not meant to be marathons limited only by counsel's desire to continue to jog; the hearing officer can and should require parties and counsel to focus on the relevant issues, and to get to the point, presenting witnesses and evidence effectively and in a focused manner, and counsel and parties ought to be able to do so." In contrast, in R.F. v. Warwick Sch. Dist., the United States District Court for the Eastern District of Pennsylvania allowed parents to supplement the administrative record with additional material that post-dated the administrative hearing and the time the disputed IEP was prepared. No. 06-257, 47 IDELR 9 (E.D. Pa. Dec. 21, 2006). In September 2003, the District offered an IEP, which parents accepted on an interim basis. In the meantime, the parents had filed a request for due process, challenging the appropriateness of the IEP and seeking to obtain compensatory services for the period of December 2001 through September 2003. The Hearing Officer held that the district had offered a FAPE, but had failed to offer appropriate services during the period of December 2001 through October 2002 and during the summer of 2003. Accordingly, he ordered the district to provide compensatory education. Both parties appealed to the state level review officer, which upheld the decision that the IEP was appropriate and eliminated most of the compensatory education award. Parents appealed that decision to the federal court, alleging that the appeals panel failed to apply the appropriate standard for determining compensatory education and that it failed to apply the appropriate standard for determining the appropriateness of the IEP. Parents sought to supplement the administrative record with several documents (3) that were generated during a four-month period subsequent to the development of the IEP, arguing that the documents were "essential to prove that the IEP had no chance of being successful." The court granted this request, "believ[ing] it would be beneficial in resolving this appeal to have before it the additional information Plaintiff proposes to submit." Compare Id. with Schroll v. Board of Education Champaign Community Unit School District #4, 2007 U.S. Dist. LEXIS 14776, 47 IDELR 160 (C.D. Ill. 2007) (denying parents request to admit new evidence "which reportedly contradicts a premise of the defense which the Impartial Hearing Officer may have accepted tends to convert the instant proceedings into a trial de novo" and receipt of the evidence would be prejudicial to the district). In R.P. v. San Ramon Valley Unified School District, 2007 U.S. Dist. LEXIS 33868, 47 IDELR 296 (N.D. Cal. April 25, 2007), the United States District Court for the Northern District of California allowed the district conduct discovery to recreate testimony that was presented to the hearing officer. After the administrative proceeding was appealed, the parties learned that large portions (four of six days of testimony) of the record were missing, possibly because of a recording failure. Accordingly, the court granted the district's motion for discovery and to supplement the administrative record. Fee agreements do not preclude parents from recovering their reasonable attorney's fees under the IDEA. Santy v. Charter Oak Unified School District, 220 Fed. Appx. 712 (9th Cir. 2007). In this case, the parents had signed a fee agreement with an attorney, who had agreed to represent them in a FAPE dispute for $1,500.00. The parents prevailed in the administrative proceeding, and sought fees. The district court awarded $1500.00, the fee negotiated in the agreement, without calculating the reasonable number of hours expended by the attorney at a reasonable hourly rate. The Ninth Circuit Court of Appeals held that this was an error, and that the court should have computed the reasonable value of the services provided by the attorney throughout the course of the litigation. 2. Parents Must Prevail on a Significant Issue In J.K. v. Fayette County Board of Education, 2006 U.S. Dist. LEXIS 56792 (E.D. Ky. Aug. 1, 2006), the court denied parents request for attorney's fees, finding that the hearing officer's order "did not bring about a material alteration of the parties' legal relationship." The fact that the court ordered the district to convene a team meeting to develop a proper IEP, did not bring about a material change because the LEA was not required "to take any affirmative action that it had not already taken or planned to take in the future." In addition, the court held that the parent was not a prevailing party because he did not "succeed on a significant issue. A party does not succeed on a significant issue in litigation simply because a district court rules in its favor." The plaintiff's request for reimbursement was denied; accordingly, the finding that the district had failed to provide a FAPE, "while favorable to the plaintiffs, does not constitute success on a significant issue in this litigation." 3. District May Proceed with Claim for Fees The IDEA permits courts to award fees to prevailing districts against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or . . . against the attorney of a parent, or against the parent, if the parent's complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. 20 U.S.C. § 1415(i)(3)(a)(i)(II)-(III). One district has filed a counter-claim against parents, arguing that their request for due process and their appeal "was and continues to be made for an improper purpose." Taylor P. v. Missouri Dep't of Elementary & Secondary Education, 2007 U.S. Dist. LEXIS 19771 (W.D. Mo., Mar. 20, 2007). The district alleged that the parents failed to notify it of the student's hearing loss diagnosis, failed to request a reevaluation of the IEP in light of that diagnosis, unilaterally enrolled the student at a private school without notifying the district and without requesting reimbursement in accord with the provisions of the IDEA, delayed the due process proceeding, and ignored warnings from the district's lawyers that the district viewed the complaint as frivolous because the parents had failed to comply with the IDEA's requirements for reimbursement. The court held that, at the early stage of litigation, it could not say that the district could not prove any set of facts demonstrating an improper purpose on the part of the parents, and denied the parents' motion to dismiss. A. Report Cards and Transcripts OCR has opined that Section 504 and the ADA do not prohibit districts from indicating, on report cards, that a student is receiving special education or related services, as long as the information is presented in a manner that provides parents with information about the students' progress or level of achievement in specific classes, course content, or curriculum. California (CA) Department of Education, 47 IDELR 45 (OCR 2006). However, reports cannot indicate that a student has an IEP or is receiving a related service, without a meaningful explanation for the student's progress, such as a grade or other evaluative standard established by an LEA. Section 504 and the ADA require LEA's to provide students with disabilities report cards that are as meaningful as the report cards provided to students without disabilities. "Without more meaningful information, a report card that indicates only special education status provides the student with a disability with a benefit or service that is different from and not as effective as the benefit or service that is provided through the report card to students without disabilities." In contrast, Section 504 and the ADA prohibit districts from stating, on a transcript, that a student received special education or related services. Id. This is because the "transcript is generally intended to inform postsecondary institutions or prospective employers of a student's academic credentials and achievements," and "[i]nformation that a student has received special education or related services or has a disability does not constitute information about the student's academic achievements." The transcript may, however, indicate that a student took a specific class with a modified or alternative curriculum. "This is consistent with the transcript's purpose of informing postsecondary institutions and prospective employers of a student's academic achievements." B. Extra-Curricular Activities Section 504 and the ADA require districts to make reasonable accommodations, but does not require them to provide accommodations that fundamentally alter the nature of a sporting event. Badgett v. Alabama High Sch. Athletic Ass'n, 2007 U.S. Dist. LEXIS 36014 (N.D. Ala. May 3, 2007). In this case, the parents of a student who uses a wheelchair for mobility filed suit, seeking a preliminary injunction (4) ordering the district to permit the student "to participate alongside able-bodied athletes, and [to add] her individual points to [the school's] team total in the able-bodied track and field division." Id. The student, an active member of the school's track and field team with nine Junior National Records for girls with cerebral palsy, had been competing at high school track events "in a wheelchair division separate from the able-bodied division." Her times were recorded at each meet, and the wheelchair athletes with the eight fastest times in each event would advance to the state championship without having to compete in a qualifying meet. Once in the state meet, the wheelchair athletes would compete for the state championship in the wheelchair division. During the 2007 track and field season, the student was the only competitor in the wheelchair division in the entire state. Prior to the state championship, the Alabama High School Athletic Association agreed to allow the student to compete (in the wheelchair division) in four track and field events of her choice; if she finished first in any of those events, she would be awarded a medal identical to other student-athletes who win the individual state championship. "In addition, [her high school] will win a state championship trophy for the wheelchair division identical to the championship trophy awarded to other member schools that win the able-bodied division." The court denied the motion for preliminary injunction, holding that, to the extent the defendants were required to, (5) they met the obligation to modify the track and field program by establishing a separate wheelchair division for track and field. At the outset, the court noted that neither the ADA nor the Rehabilitation Act require a public entity to adopt the best modification or the modification requested by a person with a disability; rather, they require only a reasonable accommodation. Id. (emphasis in original). The court held that the modifications requested by the student were not reasonable. "In deciding what is reasonable in the context of a high school athletic programs, considering both competitive and safety concerns is appropriate." The court also held that the defendants were not required to include the student's points as part of her team total, because doing so would alter the fundamental nature of the track and field event program. Practice Pointer: When making reasonable accommodations to sporting events, districts may take into consideration safety concerns. In addition, districts are not required to make accommodations that would fundamentally alter the nature of the service, program, or activity, including sporting events. Districts do not violate Section 504 or the ADA by limiting participation in a team sport due to skill level. Festus (MO) R-VI School District, 47 IDELR 17 (OCR July 19, 2006). A student with a learning disability filed a complaint with the Office of Civil Rights ("OCR"), alleging that the District's varsity volleyball coach failed to afford her the same opportunity to participate in volleyball activities as non-disabled players, particularly with regard to the amount of playing time and coaching. The student alleged that she was one of the top six players on the team, was the only player with an IEP, and was treated differently by frequently being excluded from games. OCR dismissed the complaint, finding that, while the student was a "very capable athlete, she was not considered one of the top six volleyball players by at least three coaches who were familiar with her level of play" and that the amount of playing time the student received was based on the coach's assessment of her skill level. Thus, the district did not discriminate against the student in violation of Section 504 or the ADA. Similarly, in McFadden v. Grasmick, the plaintiff filed suit under Section 504, the ADA, and § 1983, seeking declaratory and injunctive relief regarding the manner in which the defendants operated the statewide system of track and field competition. McFadden, a student-athlete who uses a wheelchair, alleged that the defendants unlawfully discriminated against her because their rules and protocols for assigning team points in state track and field competition precluded her from earning points for her team. the United States District Court for the District of Maryland denied McFadden's motion for a preliminary injunction, holding that it was unlikely that she would establish that the defendants discriminated against her by maintaining a difference in the opportunity of wheelchair racers, in contrast to non-wheelchair racers, to earn points for teams. Nor did the Indian River County School District discriminate against a deaf teenager when it failed to provide a sign language interpreter to assist a student on the basketball team. Indian River County (FL) School District, 47 IDELR 232 (OCR May 4, 2006). The student alleged that the District failed to provide her with a FAPE by denying an interpreter for sports. OCR disagreed, finding that the student's Team had agreed that the student required an interpreter for academic purposes, but did not discuss whether the student would have interpretive services during sporting practices and games. Alternate methods of communication were established, and student's playing time was not reduced because of the lack of interpreter, nor did the lack of the interpreter deny the student an equal opportunity to participate in games and practices. Thus, the District did not violate Section 504. In Lewis Palmer (CO) School District, #38, a student with a Section 504 plan was prevented from attending an overnight drama conference because the drama teacher was concerned about taking the child on an overnight trip. 47 IDELR 111 (OCR June 13, 2006). The Plan did not limit his participation in extracurricular activities nor did it require special transportation. The teacher's concerns stemmed from information she had read about in the 504 Plan, or that she had observed, and which she believed were caused by his disability. The school principal agreed and un-registered the student from the trip. After the student complained, he was re-registered under the principal's name, separate from the school drama group. His parents drove him to the conference; he attended classes and the closing ceremony, but was not able to participate in his school's event or in his individual event. In addition, he did not lodge with the student groups. The parent filed a complaint with OCR, alleging that the district discriminated against the student. OCR agreed, finding that the 504 Plan did not contain any modifications with regard to participation in extracurricular activities, and that there were not safety concerns regarding participation in those activities. In addition, the district's actions did not comply with its special education Manual, which requires each student with a disability to participate with non-disabled children in extra curricular activities to the maximum extent appropriate to the needs of the student. OCR recently dismissed a complaint alleging that a district violated Section 504 by disciplining a student for ADHD-related behavior during the 2004-05 school year. Greater Amsterdam (NY) School District, 47 IDELR 270 (OCR May 23, 2006). The parents alleged that they had informed the District that the student had been diagnosed with ADHD and that the District disciplined the student for behaviors relating to that diagnosis without determining whether the behavior was related to the student's disability. OCR found that the Child Study Team met in the fall of 2004, but did not refer the student for an evaluation because they did not believe that the behavioral issues were related to the student's ADHD or other disability. Parents did not request an evaluation until February 2005, and the Student did not have a plan addressing discipline. The District was not required to modify its discipline procedures, and the student was disciplined in accord with the District's discipline procedures. Accordingly, the District did not inappropriately discipline the student prior to the implementation of his 504 Plan. D. Exhaustion of Administrative Remedies The United States Court of Appeals for the Ninth Circuit recently affirmed the principle that plaintiffs must exhaust administrative remedies before filing a civil lawsuit if they seek relief for injuries that could be redressed to any degree by the IDEA's administrative procedures. Kutasi v. Las Virgenes Unified School District, 2007 U.S. App. LEXIS 17147 (9th Cir. July 19, 2007). The student, an autistic 11-year old child, attended public school in the morning and received home schooling in the afternoon. Three days before the start of the 2004-05 school year, the district proposed placement at a special day class; the parents rejected this offer and the parties "continued to differ over the kind of educational and related services to be provided" to the student. The student attended general education classes for the first three days of the 2004-05 school year; on the fourth day, the principal prevented him from attending, stating that he was not properly enrolled. Thereafter, the student was home schooled pursuant to a stay put order. The parents filed a complaint in March 2005 in the federal district court for the Central District of California, alleging that the defendants violated Section 504 and § 1983 and identifying 18 alleged "retaliatory and discriminatory" actions. The District moved to dismiss, arguing that the parents had failed to exhaust their administrative remedies. In the meantime, the District filed a request for due process, seeking an order that the August 2004 IEP proposed by the District was appropriate. While the due process proceeding was pending, the federal court granted the motion to dismiss, holding that the parents failed to exhaust administrative remedies prior to filing suit in federal court. After the federal suit was dismissed, the hearing officer issued an order, finding that the IEP did not provide a FAPE. Parents appealed the dismissal of their federal suit, arguing that the court erred when it held that they were required to exhaust their administrative remedies. On appeal, the parents raised two arguments; first, they argued that the IDEA does not provide parents with any administrative remedies to exhaust. The court rejected this argument, noting that "[t]he IDEA defines one of its purposes as seeking 'to ensure that the rights of children with disabilities and parents of such children are protected. [Parents] interpret this language to mean that the IDEA and its administrative procedures protect only the rights of disabled children. But the Supreme Court recently rejected this interpretation, concluding that the word rights in the quoted language refers to the rights of parents as well as the rights of the child." (internal quotations and citations omitted). The court also rejected the parents' argument that exhaustion would be futile, holding that the parents alleged injuries that could be redressed to some degree by the administrative procedures and remedies. Fraser v. Tamaplais Union High School District, 2006 U.S. Dist. LEXIS 32826 (N.D. Cal. May 17, 2006). In that case, the plaintiffs alleged that the district failed to notify them that their son was eligible for services under Section 504, failed to provide him with necessary accommodations, and violated Section 504 by denying him the right to participate in athletic programs maintained by the district. Plaintiffs sought compensatory damages and requested that the court order that the district inform students and parents of the rights and benefits of Section 504, and that the district comply with the provisions of Section 504. The district moved to dismiss, arguing that the parents failed to exhaust their administrative remedies, as required by the IDEA. The plaintiffs alleged that the District's failure to provide their son with a Section 504 program caused his grades to decline, which resulted in his exclusion from the football team. In granting the district's motion, the court noted that, when determining whether a plaintiff is seeking relief available under the IDEA, "the dispositive question generally is whether the plaintiff has alleged injuries that could be addressed to any degree by the IDEA's administrative procedures and remedies. If so, exhaustion of those remedies is required. . . . Where the IDEA's ability to remedy a particular injury is unclear, exhaustion should be required to give educational agencies an initial opportunity to ascertain and alleviate the alleged problem." Id. (citation omitted). The court found that all of the student's "asserted injuries ar[o]se from the manner in which the District provided him with, or did not provide him with, a free public education. Such injuries are of the type that could be redressed, at least to some meaningful degree, by the administrative procedures and remedies available under the IDEA." Id. The court rejected the plaintiff's assertions that exhaustion would be futile, holding that the "[p]laintiffs have not shown that an administrative complaint challenging the asserted failure of the District to prepare an individualized education plan for [the student] would be futile. Indeed, the exhaustion requirement is designed to give 'agencies the first opportunity to correct shortcomings in their educational programs for disabled students." Id. (internal quotations and citation omitted). The court also rejected plaintiff's argument that exhaustion was not required because they were seeking damages for "mental and emotional injuries that are non-educational." Id. (citation omitted). The court stated:
Id. (internal quotations and citations omitted). Under the Rehabilitation Act, a parent who is not disabled may assert a retaliation claim on behalf of his child. Vives v. Fajardo, 2007 U.S. App. LEXIS 187 (1st Cir. Ct. of Appeals, Jan. 5, 2007). In Vives, the parents brought suit against the Secretary of Education and three employees of the Puerto Rico Department of Education, alleging that the defendants retaliated against the parents, who had filed a discrimination complaint with the Office of Civil Rights, by informing the Puerto Rico Department of Family (DOF) that the parents were negligent. The defendants moved for summary judgment, asserting that there was no evidence from which a jury could conclude that their decision to notify DOF was motivated by retaliatory animus. The district court granted the motion and the First Circuit affirmed. The courts found that the defendants had contacted the parents because the child had suffered convulsions and showed signs of other illnesses at school and that the parents had informed them that they were "too busy" during the day and that the school should call 911 if there was an emergency. In addition, the child had come to school with bruises on his arms. On these facts, the court found that the defendants had a sufficient basis to believe that the child was being abused or neglected and that they made the report to DOF in accord with their legal duty to report situations of abuse or neglect against a minor. Similarly, in Gwinnet County (GA) School District, OCR dismissed a complaint from a parent who alleged that the district changed her son's placement because she made complaints about bullying. 47 IDELR 75 (OCR 2006). OCR found that the district had a legitimate, nondiscriminatory reason for the placement decision û the new school had a self-contained classroom for students with emotional and behavioral disorders, and "[t]he placement decision was based on the difficulties the student experienced throughout the previous school year in the larger classroom setting, and the IEP [Team] felt that the student required more individual attention than was being provided pursuant to the current IEP." Id. Thus, OCR concluded that the parent could not establish retaliation. Hearing Officers cannot award monetary damages for intentional violations of Section 504. Albert & Boston Public Schools, BSEA #06-6508 (Mass. Bureau of Special Education Appeals Mar. 9, 2007). In June 2006, the Boston Public Schools determined that the Student was eligible under Section 504 of the Rehabilitation Act, but not eligible for special education services. The school proposed a Section 504 plan; the student filed a request for due process, seeking, among other things, compensatory damages. The school moved to dismiss, arguing that administrative hearing officers do not have the authority to award monetary damages under Section 504. The student objected, arguing that the First Circuit has held that compensatory damages may be awarded for intentional violations of Section 504. The Hearing Officer held that it did not have the authority to award monetary damages, but that it did have the authority to order other forms of relief under Section 504. Accordingly, it dismissed the claim for monetary damages but permitted the student to proceed with the Section 504 claim for non-monetary damages (services or accommodations necessary to put Student in the same position he would have occupied but for the Section 504 violation). A. The IDEA Cannot be Enforced through a § 1983 Lawsuit A.W. v. The Jersey City Public Schools, No. 05-2553, 2007 U.S. App. LEXIS 12167 (3d. Cir. May 24, 2007). Facts: AW filed suit in the United States District Court for the District of New Jersey, alleging that New Jersey officials failed to comply with federal law and, as a result, deprived him of a FAPE. AW also brought claims against the Director of the Office of Special Education Programs for the New Jersey Department of Education (NJDOE), and the Coordinator of Compliance at the NJDOE. AW alleged that the two officials conducted an inadequate investigation and provided no relief to AW, despite ample evidence of his disability. He sought to hold them personally liable under §1983 for violations of his rights under the IDEA and Section 504 of the Rehabilitation Act. The district moved for summary judgment, arguing, in part, that § 1983 could not be used to remedy alleged violations of the IDEA and Section 504. The District Court denied the motion, holding that the IDEA could be enforced through an action under § 1983 based on the court's decision in W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995). Held: Neither the IDEA nor Section 504 can be enforced through an action under § 1983. Reasoning: The provisions of the IDEA permitting parties to file administrative decisions and to bring a civil action with respect to the issues presented in the administrative complaint "create an express, private means of redress." Thus, § 1983 is not available to remedy violations of IDEA-created rights, absent some 'textual indication, express or implicit, that the statutory remedy is to complement, rather than supplant, § 1983." Id. at 31-32 (citing Rancho PalosVerdes v. Abrams, 544 U.S. 113 (2005)). The court rejected the argument that 20 U.S.C. § 1415(l) indicated that Congress intended the remedies in the IDEA to complement, rather than supplant, § 1983. Instead, the court reasoned that "this provision merely evidences Congresses' intent that the claims available under § 1983 prior to the enactment of the [IDEA] continue to be available after its enactment." Id. The IDEA includes a judicial remedy for violations of any right 'relating to the identification, evaluation, or educational placement of a child, or the provision of a [FAPE] to the child. Thus, Congress did not intend §1983 to be available to remedy violations of the IDEA. With respect to Section 504, the court reasoned that "[e]ven though there is no express, private right of action within Section 504, Congress clearly incorporated, through adoption of Title VI's remedial scheme, a private, judicial remedy for violations of the statute." Thus, "[f]ollowing,Rancho Palos Verdes, we will ordinarily infer that when a private, judicial remedy is available for alleged statutory violations, this remedy is intended to be exclusive. There is nothing in Section 504 that undercuts this inference or causes us to conclude that Congress intended to allow § 1983 to be available to remedy Section 504 violations such as those alleged by A.W." The majority of the Appellate Courts, including the First Circuit Court of Appeals, have held that § 1983 cannot be used to enforce the IDEA. Notes (I) The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance 2. This provision states that, if the LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made (and documented in accord with 34 CFR §300.322(d)), the LEA may, at the conclusion of the 30-day period, requested that the hearing officer dismiss the complaint. 3. The documents were: 1) a letter from the Department of Education, summarizing "the District's complaint that its request in October 2003 for interagency involvement in assisting with [student's] programming had not been honored, that [student's] staff had resigned , and that [student's] behavior was too aggressive to be managed under the existing IEP and placement"; 2) letters from the District's counsel "describe[ing] the danger in which [student] and all staff and peers in the classroom find themselves, . . . and the District's agreement to utilize the services of an internationally known autism and behavior specialist . . . to reconfigure the IEP"; and, 3) written prior notice recommending a change in placement from the school program to home instruction. Parents also sought to introduce testimony of the student's father, describing escalating behaviors and the inability of the staff to educate him under those circumstances. 4. Before ordering a preliminary injunction, the courts must evaluate the following four factors: 1) the likelihood of irreparable harm to the plaintiff if the injunction is denied; 2) the likelihood of harm to the defendant if the request is granted; 3) the likelihood that plaintiff will succeed on the merits, and 4) the public interest. 5. The parties disputed whether the student was a "qualified individual with a disability" under the ADA and the Rehabilitation Act. The Defendants argued that "the essential eligibility requirements of able-bodied track and field include specific physical qualifications, such as the ability to run and jump, which [the student] does not possess and that cannot be achieved with a reasonable modification." The court noted that "legitimate physical qualifications may in fact be essential to participation in particular programs," but declined to address the dispute, instead deciding to resolve the case based on the reasonableness of the requested modifications. |
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