NSBA Legal Clips
Latest Entries

Florida district hit with disability discrimination suit

The parents of four autistic students are pressing their claim in federal court that Broward County School District (BCSD) is violating federal disability law because district officials refuse to consider providing the “gold standard” of therapy for the students, says the Sun Sentinel. They also allege BCSD has a “policy of segregation” that automatically places autistic children in specialized schools.

The parties recently presented their arguments to U.S. District Court Judge Kenneth Marra. The litigation comes two weeks after activists and parents accused district administrators of failing special needs children.

In 2014, a BCSD-commissioned report found multiple deficiencies in the Exceptional Student Services program, which serves about 30,000 children with physical, emotional and learning disabilities. The report by Evergreen Solutions found problems including insufficiently trained staff, long bus rides and high special ed student to teacher ratios.

In the federal court case, parents said they requested their children receive Applied Behavior Analysis as part of their schooling. The data-based therapy, which the children had started at age 2, uses positive reinforcement to teach social, language and other skills.

Michael Kelley, executive director of the Scott Center for Autism Treatment, testified that the therapy can have a major impact on children with autism. He said studies have shown that in 50% of cases, those who receive it are indistinguishable from other children by first grade. “It’s the gold standard,” Kelley said. “It’s the thing that’s been shown to work.”

Parents contend they were deprived of the ability to meaningfully participate in creating their children’s Individualized Education Programs, plans that spell out a special needs child’s learning needs and how they will be met. The suit also alleges administrators recommended placing the children in private schools solely for autistic students rather than in mainstream programs.

BCSD’s attorneys counter that administrators created specially designed programs for the students and that an administrative law judge sided with the district when the father of three of the children challenged the decision. They assert the therapy the parents requested is included in the district’s instructional methods. The attorneys argue Applied Behavior Analysis should not be written into the students’ education plans because then teachers would be held to it even if they found a more effective methodology.

Source: Sun Sentinel, 2/2/16, By Brittany Shammas

[Editor’s Note: In February 2013, Legal Clips summarized a decision by A Bergen County Superior Court in J.T. v. Dumont Pub. Sch. holding that a school district had not failed to provide disabled students receiving special education services with reasonable accommodations in violation of the New Jersey Law Against Discrimination (NJLAD) when the district assigned those students to one school, rather than assigning each to their neighborhood school. Relying on the same analytical framework used to examine reasonable accommodation claims under the federal Americans with Disabilities Act (ADA), the Superior Court found that the plaintiffs were unable to show that they were “denied a cognizable benefit or program.” It concluded that the students were receiving all the programs, activities, and benefits to which they are entitled as a result of their disabilities.] 

 

 

Texas Supreme Court reinstates cheerleaders’ free speech suit over display of religious banners at high school football game

The Dallas Morning News reports that the Texas Supreme Court has ruled that a group of cheerleaders can proceed with their suit against Kountze Independent School District (KISD) alleging the school district’s ban on the cheerleaders displaying banners with religious messages at high school football games violated their First Amendment free speech rights. The suit was dismissed in 2014 after KISD lifted the prohibition on the banners. The cheerleaders appealed to the state supreme court.

The cheerleaders’ attorney argued to the Texas Supreme Court that the claim was still valid because KISD could reinstate the ban at anytime. Texas Attorney General Ken Paxton applauded the decision, saying:

Religious liberty, deemed by our nation’s founders as the ‘First Freedom,’ is the foundation upon which our society has been built. I’m pleased the Texas Supreme Court has ensured that the Kountze cheerleaders will be able to continue defending their right to express their faith – the most fundamental of American freedoms.

Source: The Dallas Morning News, /29/16, By Bobby Blanchard

[Editor’s Note: The Texas Supreme Court’s opinion in Matthews v. KISD held that KISD’s voluntary abandonment of its ban on the display of the religiously themed banners did not moot the free speech claim because the District’s voluntary abandonment here provides no assurance that “the District will not prohibit the cheerleaders from displaying banners with religious signs or messages at school-sponsored events in the future.”

In August 2014, Legal Clips summarized an Associated Press article from dallasnews.com reporting that a group of high school cheerleaders from southeast Texas asked the state Supreme Court to rule on whether banners emblazoned with Bible verses that they display at football games is protected free speech. The cheerleaders had filed a lawsuit against the KISD after it had initially said the Christian-themed banners could not be displayed following a complaint by the Freedom From Religion Foundation in 2012 that sought to have them banned. KISD later allowed the banners, but said it retained the right to restrict their content as it viewed them not as private speech but as government speech.]

 

South Dakota legislature considering bill restricting transgender students’ access restroom facilities

The South Dakota House State Affairs committee has approved House Bill 1008 (HB 1008), reports SDPB Radio, which will restrict transgender students from using facilities designated for people with the opposite physical sex. State Rep. Fred Deutsch, who is the prime sponsor of the legislation, says HB 1008 protects the privacy of all students.

“If a transgender student needs to go to the bathroom, for example, and they’re a biologic female, they could go to any bathroom they wanted to that was with biologic females or they could go to a bathroom that the school district said you can use through their accommodation process,” Deutsch says. “For example, maybe they’re allowed to use a faculty restroom or maybe the school has a transgender restroom.” Deutsch says control rests with local schools to determine what bathroom and locker room accommodations are “reasonable” for transgender students.

Libby Skarin with the ACLU opposes the bill. She says transgender students want the same rights as everyone else. “Generally I do think that it is really important to recognize that restrooms and locker rooms can be a place of discomfort for a lot of students and not just those who are transgender, right? And schools do have an obligation to ensure that their facilities protect privacy, but they can do this in a way that doesn’t harm these already marginalized students,” Skalin says. “So, for example, they could ensure that they have lockable private bathroom stalls, lockable private changing and shower stalls in locker rooms, or privacy curtains that any student could use if they felt they didn’t want to dress in front of others or shower in front of others.”

Members of the House State Affairs committee say schools are asking for guidance on managing restrooms and locker rooms for transgender students.

Source: SDPB, 1/25/16, By Kealey Bultena

[Editor’s Note: In August 2015, Legal Clips summarized an article in the Argus Leader reporting that the South Dakota legislature’s High School Activities Association Interim Committee voted 6-5 to draft a bill that would require transgender high school athletes to apply for activities based on the sex listed on their birth certificate. If enacted this would change the South Dakota High School Activities Association (SDHSAA) policy that currently allows transgender athletes to enroll in sports based on the gender with which they identify.]

 

Parents of student removed from school because he has genetic marker for cystic fibrosis are appealing dismissal by federal court of their disability discrimination suit

According to Wired, Colman Chadam, a middle school student in Palo Alto, California, was asked to leave school in 2012 after teachers, who learned that he carries some genetic markers associated with cystic fibrosis, informed the parents of two students who suffer from cystic fibrosis. Those parents allegedly demanded the Chadams remove their son from school on the ground that children with the inherited lung disease can’t be near him because being near him will increase their vulnerability to contagious infections.

Colman was forced to leave school, but the school district allowed him to return after a few weeks. In 2013, his parents filed suit against the district in federal district court alleging the school district violated the Americans With Disabilities Act (ADA) and Colman’s First Amendment right to privacy. The district court dismissed the case.

The Chadams appealed the dismissal to the the U.S. Court of Appeals for the Ninth Circuit court in January 2016. The U.S. Departments of Justice (DOJ) and Education (ED) have filed a “friend of the court” (amicus) brief in support of the parents’ suit.

Wired, 2/1/16, By Sarah Zhang

[Editor’s Note: The parents Ninth Circuit brief argues that Colman was perceived as disabled by the school district and, therefore, fell within a class of persons protected by the ADA and federal Rehabilitation Act. The DOJ/ED amicus brief contends the parents’ legal complaint sufficiently alleged violations of Title II of the ADA and section 5o4 of the Rehabilitation Act.]

Christian school threatens to file suit against Florida High School Athletics Association (FHSAA) after FHSAA denies school’s request to broadcast pre-game prayer over stadium PA system

Cambridge Christian School (CCS), making its first appearance in the state 2A football championship, asked FHSAA, the governing authority interscholastic sports in Florida, for permission to conduct a public prayer, using the stadium’s PA system, before the start of the game, says The Tampa Tribune. CCS’s opponent, University Christian School (UCS), joined in the request. FHSAA denied the request.

CCS, with assistance from the Liberty Institute (LI), a nonprofit law firm that specializes in religious liberty rights, has sent a letter to FHSAA demanding an apology for unlawfully censoring the school’s private speech, as well as formal recognition from the FHSAA that students in Florida schools have a right to pray in public. The letter warns that if the FHSAA doesn’t respond in 30 days, CCS will file suit in federal court.

Both schools’ headmasters requested the prayer verbally and then wrote an email to FHSAA Executive Director Roger Dearing asking that CCS Headmaster Tim Euler be allowed to start the game with a broadcast invocation. “It is obvious that the occasion to pray and thank the Lord for his blessings over our school and student-athletes is one of utmost importance to us,” UCS’s  Headmaster, Heath Nivens, wrote in his letter to the FHSAA. “Our administrative team at UCS is in full support of having Mr. Euler pray before our competition over the loud speaker. Furthermore, I, too, agree that the fans from both schools and those in attendance would be in full understanding given the core values of both institutions.”

Dearing responded that federal law prevented the agency from granting the request because the teams were playing in a public center, paid for largely with public tax dollars and owned by the city of Orlando. Florida law deems the FHSAA a “state actor” prohibited from sanctioning prayer, Dearing said. The students were still allowed to recite a prayer on the football field. “After consulting the association attorney, and his review of 18 pages of case summaries, I’m afraid I am not able to comply with your wish,” Dearing wrote. “I totally understand the desire, and why your request is made. However, for me to grant the wish could subject this Association to tremendous legal entanglements.”

CCS says more legal entanglements will stem from the FHSAA’s refusal. Jeremy Dys, senior counsel for Liberty Institute, said the FHSAA’s actions were blatantly illegal and set a dangerous precedent for government censorship of free speech. “Religious liberty is not something the government just gives to us, its something God has given to us, and the government is duty bound by the First Amendment to respect it,” Dys said.

LI’s letter on behalf of CCS  to Dearing cites 17 court cases on similar issues of free speech, as well as other instances where the Supreme Court called the censoring of religious speech “an egregious form of content discrimination.” Because the prayer would have been an act of private speech from Euler, and not sponsored by the government, prohibiting it in any way violated the Constitution, Dys said.

Source: The Tampa Tribune, 1/26/16, By Anastasia Dawson

[Editor’s Note: LI’s demand letter to FHSAA states:

By rejecting our client’s request for pre-game prayer over the loudspeaker because of its religious viewpoint, the FHSAA unlawfully prohibited CCS’s private religious speech. The mere fact that the prayer would have taken place within a “public facility” is irrelevant; the prayer was the constitutionally protected private speech of CCS and thus could not be censored or banned because of its religious viewpoint. 

In August 2011, Legal Clips summarized an article in the DeSoto Times Tribune reporting that shortly after the Freedom From Religion Foundation (FFRF) sent a letter to DeSoto School District (DSD) asking it to discontinue the practice of broadcasting pre-game prayer at football games over the PA system, DSD Superintendent Milton Kuykendall criticized FFRF, saying publicly, “…this organization out of Wisconsin doesn’t really care if we have prayer in our schools. They see an opportunity to try and accuse us of breaking the law and therefore give them a chance to sue our district and win a lawsuit and take millions of our funds.” FFRF then asked Kuykendall to retract his comments.]

 

 

 

Parents of student expelled for “immature conduct” stemming from an off-campus, non-school sponsored activity file suit against Nebraska district

The McCook Gazette reports that parents of a Cambridge Public Schools (CPS) student have filed suit in Furnas County District Court against CPS claiming the school district violated the student’s due process when it expelled him for alleged conduct that occurred off-campus during a “non-school-sponsored wrestling camp” at Hastings College. According to the parents’ suit, the student was expelled for the first semester last year and is not allowed to participate in extracurricular activities, school events and graduation ceremonies this semester.

The student disciplined in response to what the lawsuit describes as “immature conduct” that the child engaged in within his dorm room at Hastings College during a wrestling camp. School officials informed the parents that their child violated the “School Code of Ethics.”

Two hearings were held for the parents’ appeal of the discipline, one before a hearing officer and another before the board of education, and the administration’s decision was upheld at both.

The suit states that the described event occurred off school grounds and was neither in a school vehicle nor during a school event. It also alleges that the code of conduct afforded the child a limited and inadequate due process.

The parents are asking that the expulsion be declared void and removed from their child’s permanent record; that further restrictions be declared void because they exceed the school district’s grant of power under state law; and that the board of education and administration be prohibited from imposing any further sanctions against the child.

Source: McCook Gazette, 1/22/16, By Staff

[Editor’s Note: In September 2010, Legal Clips summarized a decision by the acting New Jersey Commissioner of Education in G.D.M. v. Bd. of Educ. of Ramapo Indian Hills Reg. High Sch. Dist. ruling that a school district’s regulation that allows its board to bar a student from participating in extracurricular activities based on the student’s off-campus conduct exceeds the authority given to school districts under the state administrative code. She concluded that the policy was unlawful and ordered the district to revise the policy so that it is in compliance with the state administrative code. The regulation in question was adopted by the Ramapo Indian Hills Regional High School District (RIHRHSD) in an effort to curtail student drug and alcohol use, but did not limit its reach to drug or alcohol-related conduct. Regulation 6145 (Reg 6145) allows the school board to deny participation in extracurricular activities based on student conduct away from school grounds.]

Teachers union’s suit demands removal of Detroit district’s emergency manager

CNN reports that the Detroit Federation of Teachers (DFT) has filed suit against Detroit Public Schools (DPS) demanding removal of DPS’ emergency manager and accusing officials of allowing the conditions at schools “to deteriorate to the point of crisis.” DFT is asking the court to order immediate repairs for conditions that are relegating “children to spend their young lives in deplorable surroundings” and requests the creation of a capital plan to bring schools up to standard.

DPS emergency manager Darnell Earley said the state legislature is considering a “badly needed, districtwide long-term capital improvement plan,” and vowed to perform repairs at buildings identified in inspections ordered this month by Detroit Mayor Mike Duggan. “We are committed to ensuring that our students and staff have a safe working and learning environment, and that is a part of the discussion regarding the critical financial investment into the new Detroit Public School System that is before the Michigan Legislature,” Early said.

Ivy Bailey, interim president of the Detroit Federation of Teachers, said “educators and parents have been raising the red flag for years about dangerous school conditions, only to be snubbed, ignored and disrespected by DPS and Earley.” She added, “The state has brought the school district to its knees and now it’s time to give up the reins.”

According to DFT’s legal complaint, DPS’ schools have been under the control of four state-appointed emergency managers over the last six years. The complaint also claims the school system is $515 million in debt and projected to be unable to fund its payroll by April.

Source: CNN, 1/28/16, By Ray Sanchez

[Editor’s Note: In January 2016, Legal Clips summarized an article in Courthouse News Service reporting that Judge Cynthia Stephens of the Michigan Court of Claims denied DPS’ motion for a temporary restraining order to block widespread teacher “sick-outs” in the school system. The “sick-outs” have led to the closure of dozens of schools this past month.]

Parent banned from school grounds after objecting to alleged Islamic indoctrination in daughter’s world history class files suit against Maryland district

Southern Maryland Online reports that John and Melissa Wood, who “refuse to allow their teenage daughter to be subjected to Islamic indoctrination and propaganda in her high school World History class,” have filed suit against the Charles County Public Schools, the Board of Education, Principal Evelyn Arnold, and Vice-Principal Shannon Morris, of La Plata High School. The Thomas More Law Center (TMLC) filed the suit on behalf of the Woods alleging their daughter was forced to profess and to write out the Shahada, the Islamic creed, in worksheets and quizzes.

After the Woods learned of the Islamic subject matter being taught, John Wood immediately contacted the school to voice his objections and to obtain an alternative assignment for his daughter. He maintains that the school ultimately refused to allow his daughter to opt-out of the assignments and subsequently had a no trespass order issued against him.

According to TMLC, the Woods, who are devout Christians, believe that it is a sin to profess commitment in word or writing to any god other than the Christian God. “Thus, they object to their daughter being forced to deny the Christian God and to her high school promoting Islam over other religions.”

“Defendants forced Wood’s daughter to disparage her Christian faith by reciting the Shahada, and acknowledging Mohammed as her spiritual leader,” said Richard Thompson, President and Chief Counsel of TMLC. “Her World History class spent one day on Christianity and two weeks immersed in Islam. Such discriminatory treatment of Christianity is an unconstitutional promotion of one religion over another.”

TMLC said the Woods’ lawsuit seeks a court declaration that defendants violated their constitutional and statutory rights, a temporary and permanent injunction barring Defendants from endorsing Islam or favoring Islam over Christianity and other religions, and from enforcing the no trespassing order issued against John Wood.

Source: Southern Maryland Online, 1/28/16, By Staff

[Editor’s Note: TMLC’s legal complaint contains six counts: (1) Establishment Clause – First Amendment Violation; (2) Freedom of Speech- First Amendment Violation; (3) Freedom of Speech—First Amendment Retaliation; (4) Violation of Civil Rights—Title IX of the Education Amendments of 1972 and Title VI of the Civil Rights Act of 1964; (5) Due Process—Violation of the First Amendment and the Fourteenth Amendment; and (6) Freedom of Religious Exercise—Violation of Article 36 of the Declaration of Rights of the Constitution of Maryland.]

 

Fifth Circuit panel rules that parents are entitled to reimbursement for IEE if they show “substantial compliance” with state and local district criteria

Seth B. v. Orleans Parish Sch. Bd., No. 15-30164 (5th Cir. Jan. 19, 2016)

Abstract: In a 2-1 split, a U.S. Court of Appeals for the Fifth Circuit panel has ruled that parents are entitled to reimbursement for an independent educational evaluation (IEE) under the Individuals with Disabilities Education Act (IDEA), subject to a state monetary cap on the amount, if they demonstrate that the IEE is in substantial compliance with state and local school district criteria applicable to school-conducted evaluations. The majority opinion rejected the parents’ argument that the school board had waived its right to refuse reimbursement because it failed to initiate a hearing to contest the student’s IEE and because it unnecessarily delayed complying with its duties under IDEA’s implementing regulations.

In concluding that the parents’ IEE was subject to a “substantial compliance” standard, the majority rejected the parents’ argument that school boards “may only apply criteria ‘employed at the initiation of an evaluation,’ and not ‘content-based’ criteria.” It also rejected the parents’ contention that state/district “criteria, including those that require a multidisciplinary team, are generally inapplicable to an IEE because that document is oriented toward schools and does not address IEEs in detail.” In addition, the majority found unpersuasive the parents’ claim that only the portions of the IEE relating to their areas of disagreement with the board had to comply with the criteria.

The majority also rejected the parents’ claim that Seth’s IEE was a reevaluation, not an initial evaluation, and that initial evaluation criteria are therefore inapplicable. Finally, it found untenable the parents underlying contention that Bulletin 1508 is so onerous as to cumulatively and inherently violate parents’ right to an IEE.

The dissent characterized the majority’s creation of a substantial compliance standard as “a usurpation of regulatory authority and an invitation for courts to engage in arbitrary decisionmaking.” It found that because federal regulations require school conducted evaluations to meet federal criteria, IEEs not meeting that same standard would be of scant assistance to schools. The dissent said, “Requiring a school to pay for an evaluation that it need not consider drains scarce resources from other programs.”

Facts/Issues: The parents of a student, identified as Seth B., with autism and suspected learning disabilities requested an IEE, a right provided under the federal Individuals with Disabilities Education Act (IDEA) to parents who disagree with the school district’s evaluation of their child’s special education needs. The Orleans Parish School District (OPSD) informed the parents that the IEE must meet the standards for special education evaluations established by the Louisiana Board of Elementary and Secondary Education (BESE), along with cost limitations for the proposed evaluation. Because the completed evaluation failed to meet BESE criteria (Bulletin 1508), the school district denied reimbursement for the IEE.

The parents requested an administrative due process hearing. An Administrative Law Judge (ALJ) ruled against the parents, finding that their counsel had stipulated to the IEE’s noncompliance with Bulletin 1508 and that he therefore lacked jurisdiction to award reimbursement. Seth and his parents sought review in federal district court pursuant to the IDEA.

The district court granted summary judgment for Orleans Parish School Board (OPSB). The court found that OPSB had not waived its right to challenge Seth’s IEE, that the IEE did not comply with Bulletin 1508, and that reimbursement was therefore disallowed.

Ruling/Rationale: The Fifth Circuit panel, in a 2-1 decision, vacated the district court’s decision and remanded the case to the district court for further proceedings. The first half of the majority’s opinion was devoted to determining whether OPSB had waived its right to refuse reimbursement because it failed to initiate a hearing to contest the student’s IEE and because it unnecessarily delayed complying with its duties under IDEA’s implementing regulations.

The majority, rejecting the parents’ arguments, held that OPSB had preserved its right to deny reimbursement for the IEE. It turned to the issue of whether the parents’ “IEE failed to ‘meet agency criteria,’ precluding reimbursement.”

First, the majority rejected the parents’ argument that a school board “may only apply criteria ‘employed at the initiation of an evaluation,’ and not ‘content-based’ criteria.” Second, it rejected the parents’ contention that state/district “criteria, including those that require a multidisciplinary team, are generally inapplicable to an IEE because that document is oriented toward schools and does not address IEEs in detail.” Third, the majority found unpersuasive the parents’ claim that only the portions of the IEE relating to their areas of disagreement with the board had to comply with the criteria.

The majority also rejected the parents’ claim that Seth’s IEE was a reevaluation, not an initial evaluation, and that initial evaluation criteria are therefore inapplicable. Finally, it found untenable the parents underlying contention that Bulletin 1508 is so onerous as to cumulatively and inherently violate parents’ right to an IEE.

Turning to the question of compliance with the criteria, the majority pointed out that the district court had addressed the parents’ argument that the IEE was substantially compliant. It also noted: “The degree of compliance necessary for an IEE to ‘meet agency criteria’  under 34 C.F.R. § 300.502 is not explicitly defined in IDEA, its implementing  regulations, or the case law, nor is there any directly relevant agency guidance.”

The majority stated:

We are persuaded that substantial compliance also suffices in the IEE context. 34 C.F.R. § 300.502 nowhere demands perfect adherence to agency criteria. Indeed, such a requirement is in tension with core purposes of the right to an IEE and of the IDEA generally.

It found that a substantial compliance standard served the Congress’s purpose in providing the right to an IEE because “Congress sought to ‘giv[e] parents and guardians a large measure of participation at every stage of the administrative process,’ and to ensure that the process produced substantively sound results.”

The majority stressed that the substantial compliance standard “safeguards parents’ ability to participate in the IDEA process through IEEs by preserving a realistic possibility of reimbursement.” It concluded that “by ensuring reimbursement for generally sound IEEs that may happen to be deficient in isolated or trivial ways, a substantial compliance standard will encourage parents who might not otherwise have obtained and submitted IEEs to do so, leading to better-informed IDEA outcomes.”

Mindful of the “slippery slope” argument, the majority acknowledged it is a legitimate concern “when the law accepts less than-perfect compliance.” Nonetheless, it found “the risk acceptable here, given the strong statutory interests favoring a substantial compliance standard and the use of such standards elsewhere in the IDEA case law.”

According to the majority: “Substantial compliance, allowing reimbursement in this context, means that insignificant or trivial deviations from the letter of agency criteria may be acceptable as long as there is substantive compliance with all material provisions of the agency criteria and the IEE provides detailed, rigorously produced and accessibly presented data.”

Because the district court did not address the specific question of whether the parents’ IEE was substantially compliant, the majority remanded the case for analysis under a substantial compliance standard. It said, “If the court below (or, upon further remand, the administrative hearing officer) finds the IEE substantially compliant, it should award reimbursement.” It also noted that any reimbursement would be subject to state’s $3,000 cap on IEEs.

The dissent characterized the majority’s creation of a substantial compliance standard as “a usurpation of regulatory authority and an invitation for courts to engage in arbitrary decisionmaking.” It found that because federal regulations require school conducted evaluations to meet federal criteria, IEEs not meeting that same standard would be of scant assistance to schools. The dissent said, “Requiring a school to pay for an evaluation that it need not consider drains scarce resources from other programs.”

The dissent asked: “Yet, if parents can ignore some of the criteria, to what extent do they need to comply with Bulletin 1508 at all?” It also criticized the majority’s failure to provide guidance to the district courts on what “substantial compliance” looks like in the context of IEE reimbursement.

The dissent pointed out that the majority’s concern that school districts will employ arcane, exacting standards in order to avoid having to pay IEEs is meritless because 34 C.F.R. § 300.502(e)(1) “requires an IEE to follow the same criteria that the school uses to conduct its evaluations ‘to the extent those criteria are consistent with the parent’s right to an [IEE].’”

The dissent in conclusion stated:

The majority’s decision to impose a judge-made standard on IEE reimbursements is deeply flawed. The majority cites not one single word in the IDEA or its accompanying regulations that points to the existence of a substantial-compliance standard for IEE reimbursement. Instead, the majority looks broadly to the purported purposes of the IDEA to discover a heretofore hidden substantial-compliance standard. Such purposivism is but another name for license to refashion a statute or regulation to suit the judge’s personal whims.

Seth B. v. Orleans Parish Sch. Bd., No. 15-30164 (5th Cir. Jan. 19, 2016)

[Editor’s Note: In June 2015, Legal Clips published a Sua Sponte item announcing that The National School Boards Association (NSBA), along with the Louisiana School Boards Association (LSBA), the Mississippi School Boards Association (MSBA), the Texas Association of School Boards (TASB) Legal Assistance Fund, and the National Association of State Directors of Special Education (NASDSE), had filed an amicus curiae (friend of the court) brief with the U.S. Court of Appeals for the Fifth Circuit in Seth B. v. Orleans Parish School BoardThe brief urged the Fifth Circuit to affirm the federal district court in Louisiana’s holding requiring publicly-funded independent educational evaluations (“IEEs”) to meet state and local school district evaluation criteria.]

 

 

 

 

Second Circuit panel rules that district’s failure to address bullying of student in developing IEP constituted a violation of IDEA’s FAPE requirement

T.K. v. New York City Dep’t of Educ., No. 14-3078 (2d Cir. Jan. 20, 2015)

Abstract:  A U.S. Court of Appeals for the Second Circuit three-judge panel has ruled that a school district failed to provide a special education student with a free appropriate public education (FAPE) as required by the Individual with Disabilities Education Act (IDEA) because the school failed to discuss the issue of bullying while developing the student’s individualized education plan (IEP). As a result, the parents were entitled to tuition reimbursement for unilaterally placing the student in private school because the placement was appropriate and the equities favored the parents.

Facts:  L.K., a disabled elementary student who was receiving special education services from a school run by the New York City Department of Education (NYCDE), was bullied on a near daily basis by classmates. Her parents unsuccessfully attempted on several occasions to raise the issue of bullying with L.K.’s school. After being repeatedly rebuffed, they requested copies of any incident reports involving harassment of L.K. They wrote to teachers and administrators about L.K.’s bullying, but received no response. The school’s stonewalling continued even during the process of developing L.K.’s IEP.

The school principal, without explanation, flatly refused to discuss the issue with them. At the IEP team meeting on June 4, 2008, L.K.’s parents tried to revisit the bullying issue, but school officials again refused to discuss bullying, contending that it was an inappropriate topic to consider when developing L.K.’s IEP.

The parents finally placed L.K. in private school to prevent any further bullying. On June 6, 2008, two days after the development of L.K.’s IEP, the parents notified the school that they were rejecting L.K.’s IEP in favor of a private placement.

In June 2008, the parents began the process of seeking reimbursement for the private school tuition from NYCDE. Their administrative complaint alleged that NYCDE violated the IDEA by refusing to discuss their concerns about L.K.’s bullying. They lost at both levels of administrative review: first before the Initial Hearing Officer (IHO) and then before the State Review Officer (SRO).

The parents filed an appeal in federal district court. The district court determined that “significant, unremedied bullying could constitute the denial of a FAPE.” It laid out a four-part test to determine whether bullying resulted in the denial of a FAPE:

(1) whether the student was a victim of bullying; (2) whether the school had notice of substantial bullying of the student; (3) whether the school was “deliberately indifferent” to the bullying, or whether it failed to take reasonable steps to prevent the bullying; and (4) whether the bullying “substantially restricted” the student’s “educational opportunities.”

The district court remanded the case to the IHO to consider the parents’ claims under that test. The parents again lost before the IHO and the SRO and again appealed to the district court, which granted summary judgment in their favor.

The district court held that NYCDE’s refusal to allow the parents to discuss bullying in the development of L.K.’s IEP violated the IDEA. Ruling that the parents’ private school placement was an appropriate placement and that the  equities favored reimbursement, the court entered judgment in favor of the parents.

Ruling/Rationale: The Second Circuit panel affirmed the district court’s decision. Before addressing the merits of the case, the panel indicated that under New York law NYCDE carries the burden of establishing the validity of the IEP, while the parents bear the burden of establishing the appropriateness of the private placement.  It also noted that the issue of “whether the bullying of a student with a disability is an appropriate consideration in the development of an IEP and can result in the denial of a FAPE under the IDEA” was one of first impression in the Second Circuit.

However, because NYCDE conceded that it can be an appropriate consideration, the panel assumed without deciding the issue that it is an appropriate consideration. It also found that the position was in accordance “with the position of the United States as amicus curiae in this appeal and with guidance from the United States Department of Education that bullying can interfere with a disabled student’s ability to receive a FAPE.”

Turning to the merits of the claim, the panel concluded that NYCDE had “denied L.K. a FAPE by violating her parents’ procedural right to participate in the development of her IEP.” It found that the evidence supported the parents’ belief that bullying would interfere with L.K.’s ability to receive meaningful educational benefits and could result in her public education producing regression instead of progress. The panel found that NYCDE’s “persistent refusal to discuss L.K.’s bullying at important junctures in [the] development of her IEP ‘significantly impede[d]’ [the parents’] right to participate in the development of L.K.’s IEP.”

The panel rejected NYCDE’s argument that the IEP did address bullying because it included goals for improving her behavior in a manner that might reduce future bullying. It was also unpersuaded that some anti-bullying strategies are better addressed through channels outside the IEP.

The panel stressed that courts have recognized the procedural importance of the parents’ ability to meaningfully evaluate the sufficiency of the IEP in other contexts. It concluded that “[b]y refusing to discuss that bullying during the development of the IEP, [NYCDE] significantly impeded [the parents’] ability to assess the adequacy of the IEP and denied L.K. a FAPE.”

The panel next turned to the issue of whether the parents’ private school placement was appropriate and whether the equities favored reimbursement under the IDEA. It noted that the fact that the private school does meet IDEA’s definition of a FAPE does not automatically disqualify the parents from obtaining reimbursement. It found: “As verified by the totality of the record evidence and the findings of the IHO and SHO themselves, L.K.’s progress at [the private school] was ‘reasonably calculated to enable[L.K.] to receive educational benefits.’”

The panel agreed with the district court that the equities favored reimbursement, stating that the parents’ placement of L.K. in the private school reflected “a good-faith effort to find an appropriate placement for [her], not just a mere preference for a private school environment.”

T.K. v. New York City Dep’t of Educ., No. 14-3078 (2d Cir. Jan. 20, 2015)

[Editor’s Note: In October 2014, Legal Clips published a Sua Sponte item indicating that the U.S. Department of Education’s Office for Civil Rights (OCR) had issued guidance to public schools nationwide in the form of a “Dear Colleague letter” (DCL) regarding the bullying of disabled students. The press release announcing the guidance stated that the guidance details school officials’ responsibilities under Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (ADA) regarding the bullying of students with disabilities. It adds, “If a student with a disability is being bullied, federal law requires schools to take immediate and appropriate action to investigate the issue and, as necessary, take steps to stop the bullying and prevent it from recurring.”

The guidance  states: “The bullying on any basis of a student with a disability who is receiving IDEA FAPE services or Section 504 FAPE services can result in the denial of FAPE that must be remedied under Section 504.” In addition, it stresses that schools have a continuing obligation under Section 504 to ensure that a qualified student with a disability receiving an IDEA FAPE or Section 504 FAPE continues to receive that FAPE regardless of why the student is being bullied.]

 

 

Page 34 of 301« First...1020...3233343536...405060...Last »

 



NSBA

Copyright © National School Boards Association. All rights reserved.
1680 Duke Street, Alexandria, VA 22314
Phone: (703) 838-6722 Fax: (703) 683-7590 E-mail: info@nsba.org

RSS Feed.