Special Education Case Law

Michigan and 6th Circuit Cases

Children with special needs who qualify for special education services at schools are protected by a variety of federal and state laws, including Michigan Administrative Rules for Special Education (MARSE), Rules 340.1701 et seq., which mostly mirrors the federal Individuals with Disabilities Education Act (IDEA) 20 U.S.C. §1400 et. seq. (2004), 34 C.F.R. 300, and several other laws, including The Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101 et seq., and the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. §701 et seq. 

Students in Michigan have special education rights through age 26, which is four years longer than most other states.

Click here to view Michigan DOE Special Education Cases

Perez v. Sturgis Public Schools, Docket 21-887, 598 U.S. 142 (2023), the nation’s highest Court unanimously held that a federal law containing an exhaustion requirement does not apply to federal claims where the only remedy sought is money damages, even if the claim can be categorized as one for a denial of the child’s right to a Free Appropriate Public Education (FAPE). This decision means, among other things, that parents can pursue damages claims under the ADA without having to go through a special education administrative due process hearing first. To view a copy of the decision, go to https://www.supremecourt.gov/opinions/22pdf/21-887_k53m.pdf.

R.K. v. Lee, 122 LRP 15508 (6th Cir. 2022) – Circuit Court denied motion to stay a district court order preventing them from enforcing masking and quarantine. Tennessee districts can still consider whether a medically vulnerable student needs a mask mandate as an accommodation to attend school safely.

Simpson-Vlach v. Michigan Department of Education, Case No. 5:21-cv-11532-JEL-APP (E.D. Mich. 06/30/21), 2022 U.S. Dist. LEXIS 31347 -- Suing pursuant to the IDEA, 504, ADA, 14th Amendment, state law and RICO, 18 USC Sec. 1961, et seq) (coming out of the NY Brain Injury case)

Gary B. v. Whitmer, 2020 U.S. App. LEXIS 18312 (Dismissed after settlement); 2020 U.S. App. LEXIS 13110 (6th Cir. 2020) (Court found Michigan constitution included a fundamental right to basic education; but on rehearing the case was reversed.)

McCadden v. City of Flint, 119 LRP 14563 (E.D. Michigan 2019) – Seven-year-old with ADHD was placed in handcuffs for almost an hour. Parents sued under the ADA, 42 USC 1983, a Monell claim, 504 and Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA). On a Motion to dismiss, the District court denied dismissal of the failure to train, and the Title II ADA and PWDRCA claims remained.

Barney v. Akron Board of Education, 763 Fed. Appx. 528 (6th Cir. 2019) – Parent lost on concern that she was deprived of a “meaningful opportunity” to develop student’s IEP, the IEP was not sufficiently ambitious or specific and impermissibly delayed a reevaluation, and failed to consider Extended School Year.

Somberg v. Utica Community Schools, 908 F.3d 162, 73 IDELR 88 (6th Cir. 2018) – District required to provide 1,200 hours of tutoring and one year of postsecondary transition services to a high schooler with autism as school district failed to develop and implement appropriate IEPs. The district court held a bench trial to determine the amount of compensatory education due and ordered 1,200 hours of tutoring and one year of compensatory education and appointed a special master to oversee the compensatory education. District Court also awarded the family $210,654.66 in attorneys’ fees and costs.

L.H. v. Hamilton Cty. Dep’t of Educ., 900 F.3d 779, 789 (6th Cir. 2018) (substantive violations are whether the school has provided an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Substantive violations do not require a showing of educational loss (only have to prove that for procedural violations) citing to: Knable ex rel. Knable v. Bexley City. Sch. Dist., 238 F.3d 755, 769 (6th Cir. 2001).

D.R. v. Mich. Dep’t of Ed., 2017 U.S. Dist. LEXIS 22030 (E.D. Mich. 2017) (Flint Michigan lead in drinking water and systemic violations of the IDEA, 504 and the ADA-Title II).

Gibson v. Forest Hills Local School District, 655 F.Appx 423 (6th Cir. 2016) (Failure to gather any meaningful data on transition needs denied FAPE to a high school with multiple severe disabilities. Ordered 425 hours of transition-related services and $327,641 in attorneys’ fees. Court found school’s failure to invite student to IEP meeting a harmless procedural violation.)

Troy Sch. Dist. v. K.M., 2015 U.S. Dist. LEXIS 40970 (E.D. MI 2015). Parents of child with Asperger’s syndrome, ADHD and ODD and identified as ED filed for a hearing contending the program not appropriate. Child had significant behavioral issues. Parents did not agree with an IEP, and child placed on homebound. Then return to school but no 1:1 assistance, child hit father with log at school, and placed at center-based Edison Max program. School filed for hearing, the parties settled, child moved to autism center and then Oakland Schools psychiatric hospital. At issue – 45-day placement. ALJ ruled for parent writing a 100-page decision finding numerous procedural and substantive violations, including removing KM from the general education environment. (Applying Roncker v. Walter, 700 F.2d 1058, 1063, 6th Cir. 1983) (three criteria:1) benefit from inclusion; 2) benefits outweighed by benefits not provided in inclusive setting and 3) whether child disrupts the general ed setting). Court found IEP not appropriate and placement at more restrictive setting not implemented. Denying school’s requested motion for preliminary injunction arguing same would result in injury to child or others.

Oakstone Cmty. Sch. v. Williams, 2013 U.S. Dist. LEXIS 197022 (S.D. Ohio 2013) (granting motion for sanctions, in part, against school district counsel (Plaintiffs represented by Disability Rights Ohio) and finding that Deal is the controlling standard in the Sixth Circuit (not Rowley).

Bd. of Educ. of Fayette Cty. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) (adopting standard of compensatory education described in Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). This means putting the student in the same position he would have occupied but for the school’s failure. See, also Model Compensatory Education Plan forms.

Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840, 849-850 (6th Cir. 2004) Predetermination about ABA amounted to a denial of a free appropriate public education. After-the-fact evidence has been found to be admissible in IDEA cases as long as it is helpful in determining the validity of the original IEP. Meaningful IEP required, and school officials must come with open minds and more than “mere form.” One-size-fits-all approach not allowed but school district can consider costs. Must gauge appropriateness in relation to the student’s potential. “We agree that the IDEA requires an IEP to confer a “meaningful educational benefit” gauged in relation to the potential of the child at issue.” Deal, at 862.

Hall v. Knott Cty. Bd. of Educ., 941 F.2d 402, 407 (6th Cir. 1991) (court can award judgment for what it would now cost a student to obtain the educational services she should have received earlier and this is not damages (which the IDEA doesn’t allow).

Seals v. Loftis, 614 F.Supp.302 (E.D. Tenn. 1985) (Child cannot be required to use their medical insurance benefits for educational needs where use of insurance would reduce benefits available under the policy).

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5th Circuit Cases

A.D. v. Kirby, 975 F.2d 193 (5th Cir. 1992)
A fundamental change in, or elimination of a basic element of, an educational program which adversely affects a child’s learning in a significant way, constitutes a “change in placement” for purposes of IDEA.

Alamo Heights Indep. School Dist. V. State Bd. of Educ., 790 F2d 1153 (5th Cir 1986)
When reviewing whether parents shall be reimbursed for private placement when the school has failed to offer a child FAPE, the conduct of both parties must be reviewed to determine whether relief is appropriate. While the parents’ placement does not have to be an exact and proper placement under IDEA, the placement must have met the child’s needs and provided educational benefit.

Alvin ISD v. A.D., 503 F. 3d 378 (5th Cir. 2007).
Court said that school district can consider academic, behavioral and social progress in determining whether an educational need for special education and related services exists. “First, [the student’s] passing grades and success on the [statewide assessment] demonstrate academic progress,” Judge Benavides wrote. Second, [the student’s] teachers testified that, despite his behavioral issues, he did not need special education and was achieving social success in school.” Like the District Court, the 5th Circuit found the testimony of the student’s teachers to be more credible than the testimony of the student’s physicians, who based their opinions on secondhand information rather than firsthand observations.”

Andress v. Cleveland Independent School Dist., 64 F.3d 176 (5th Cir. 1995)
A parent who desires for her child to receive special education services from the school must allow the school to reevaluate the child, and that there is no exception to this rule.

Angela L. v. Pasadena Independent School Dist., 918 F.2d 1188 (5th Cir. 1990)
The term “proceeding” refers to due process hearings and therefore, plaintiffs can recover attorneys’ fees if they prevail at this level, even if no subsequent action is ever filed in state or federal court. Plaintiffs’ claims for lost wages constitute a claim for damages rather than for compensatory education, and are not recoverable under IDEA.

The legal standard for determining “prevailing party” status for attorneys’ fees is the same as that governing the award of attorney fees in civil rights litigation pursuant to 42 U.S.C. § 1988. The amount of attorneys’ fees to be recovered by a prevailing party may be adjusted by the court based on the experience, reputation and ability of the attorneys.

7th Circuit Cases

Indiana is in the Seventh Circuit, which means that decisions made by the U.S.

Court of Appeals for the Seventh Circuit are binding in Indiana, plus a few surrounding states.

McCormick v. Waukegan School District # 60, 375 F.3d 564 (7th Cir. 2004)

• The IEP for Eron, a student with McArdle’s Disease, a form of muscular dystrophy, had an IEP that limited his participation in physical education class.
• Although the physical education teacher assured that parents she understood the IEP, she refused to follow it and threatened Eron with failure if he did not perform laps and push ups, As a result, Eron was taken to the emergency room and experienced permanent physical injuries that reduce the quality of life and may shorten it.
• Enron’s parents filed an action in district court, and the district court dismissed the complaint for failure to exhaust administrative remedies.
• The Court of Appeals reversed.
• The Court of Appeals held that it would be futile to exhaust since IDEA does not provide a remedy for Eron’s injuries, which were non educational. Note In this and the following case, the Court should have excused exhaustion since the student challenged the failure to implement his IEP, not the appropriateness of the IEP itself.

Prevailing party: Level I & II: n/a District court: District. Court of Appeals: Parents

Adashunas v. Negley, 626 F.2d 600 (7th Cir. 1980). A child denied placement in special education brought suit to be identified and enrolled in special education classes by his school. The child was found to have a learning disability and was immediately placed in special education. Shortly thereafter, the district court entered its order, finding the defendants were entitled to summary judgment under both the EAHCA and the Rehabilitation Act because the child had been placed in special education, causing his claim to become moot. As such the district court allowed the child to pursue his claim for compensation, but denied his claims for injunctive and declaratory relief. On appeal the Seventh Circuit denied the child's claim for relief because he was no longer part of the class that was entitled to relief under the Rehabilitation Act. The child was now identified as learning disabled and in a special education program and therefore outside the class which was entitled to compensation.

Baxter v. Vigo County School Corporation, 26 F.3d 728 (7th Cir. 1994). The Baxters, parents of a child with disabilities, appealed the dismissal of a civil rights claim under Section 1983. The Baxters alleged they attempted to protest grades, racism, and other unspecified school policies by dressing their daughter in T-shirts expressing their feelings. The parents claimed the principal and the school corporation denied their daughter's civil rights when they prevented her from wearing the shirts. The Seventh Circuit held that the parents failed to identify any unconstitutional policy or custom on the part of the school and failed to state any facts that would support the existence of a policy or custom on which to base their claims. The claims that the school district and the principal denied the child her rights were dismissed because both were entitled to qualified governmental immunity.

Benner v. Negley, 725 F.2d 446 (7th Cir. 1984). A child with multiple handicaps was removed from her special education program and unilaterally enrolled in a residential placement by parents. The school district filed suit claiming they were entitled to attorney's fees because the child's parents had acted in bad faith by removing their daughter after the administrative procedures to determine an appropriate placement had begun. The district court held that the parents had acted in bad faith but nevertheless denied attorney's fees to the defendants. The appellate court reversed, holding that while the district court had authority to award attorney's fees to prevailing parties upon finding that the suit was brought in bad faith, the district court's finding that plaintiffs had acted in bad faith was erroneous. Thus, defendants were not entitled to attorney fees.

Board of Education of Community High School District No. 218 v. Illinois State Board of Education, 103 F.3d 545 (7th Cir. 1996). An emotionally disturbed, sexually aggressive minor was placed by parents in a residential program and paid for by the school district. When the student reached high school, the school district wanted to reevaluate the current placement because of the cost, and the parents sought an administrative hearing to invoke the "stay put" provision. The parents prevailed at both the Level I and Level II hearings. During this time the student was transferred to a new program. A few months later the student was asked to leave the program because he was a threat to the other students. Although the program allowed him to remain until a new placement could be found, the district court ordered the school district to find a suitable placement for the student. The district court then ordered the student returned back to his original placement because the school district was unable to secure an appropriate placement. The appellate court held that the school district's failure to produce any placement alternatives left the district court with no other schools to evaluate or weigh against the current placement and therefore no hearing was necessary. Until the cost shifting is decided at trial or through a settlement, the school district is financially responsible for the student's education. The injunction issued by the district court for "stay put" was affirmed.

Board of Education of Community Consolidated School District No. 21 v. Illinois State Board of Education, 938 F.2d 712 (7th Cir. 1991). The parents of a fifteen-year old student with behavior disabilities refused to consent to the school's recommended placement of a more restrictive setting at Jack London School, a private day school. The school district filed a request for a due process hearing. The Level I hearing officer ordered the student placed at Jack London until Arden Shores, a private residential school could accommodate the student at the public's expense. The Level II hearing officer agreed that the student needed a more restrictive program, but disagreed that he required a private day school. Therefore, the hearing officer ordered the school district to find a new placement within 30 days. The district court then entered summary judgment affirming the Level II hearing officer's order. Again the school district appealed. The appellate court held that the district court correctly found that the parent's negative attitudes were severe enough to prohibit any attempt to educate the student at Jack London and that the IEP ordered by the Level II hearing officer is the least restrictive placement of educational benefit to the student. The judgment of the district court was affirmed.

Board of Education of Downers Grove Grade School District No. 58 v. Christine L., 89 F.3d 464 (7th Cir. 1996). The parents of a child placed in special education in third grade were unhappy when the child's special education time was reduced in fifth grade. The parents requested a due process hearing and both the Level I and Level II hearing officers found for the parents and invoked "stay put" until a future IEP could be developed. The district court reversed the hearing officer's opinions, agreeing with the school district that a modified educational plan met the child's needs, however this decision was not made until the child was about to enter eighth grade. The parents appealed the district court ruling. The appellate court held that the child and his parents were without "an actual injury traceable to the defendant that could be redressed by a favorable judicial decision." The court held they had no remedy available because judgment either way would not affect the child's fifth grade IEP, and the case was moot.

Board of Educ. of LaGrange School Dist. No. 105 v. Illinois State Bd. of Educ. 184 F.3d 912 (7^th Cir. 1999). A child with Down syndrome was evaluated and determined to be eligible for special education programs in his home school district when he turned three. The District did not have a program for non-disabled students and prepared an IEP recommending placement in a program limited to disabled students. The parents rejected the placement and requested a program in the School District that would include nondisabled students or access to similar programs in neighboring districts. The IEP team then recommended a state-funded "At-Risk" program, which the parents also rejected. The parents unilaterally placed the child in a private preschool and filed for due process. At the Level I Due Process Hearing, the School District was ordered to pay the costs for the private pre-school. The Level II hearing officer ruled that neither the first placement nor the At-Risk program provided the student with a FAPE because neither placement was the "least restrictive environment." The Level II officer ordered the School District to pay for the private schooling. The School District appealed. The district court ruled in the parent's favor and held that the School District had failed to provide a FAPE in the LRE and affirmed the award of private pre-school costs. The Appellant court affirmed the opinion of the District court also concluding that neither program offered by the School District provided the student with a free appropriate public education and ordered reimbursement for the cost of his private pre-school.

Board of Education of Murphysboro Unit School District No. 186 v. Illinois State Board of Education, 41 F.3d 1162 (7th Cir. 1994). The parents of a child with multiple disabilities disagreed with the school district's proposed placement and sought a private residential facility placement. The parents filed a due process request in order to determine the appropriate placement. The Level I hearing officer found the IEP did not meet IDEA requirements and ordered the school district to hold an MDC within 10 days to change the IEP and revisit the placement issue. He also ordered the school district to pay one fourth of a 1991 evaluation the parents had obtained. The Level II hearing officer ordered the child placed at the private residential facility requested by the parents and the school district was ordered to reimburse the parents for the full cost of the 1991 evaluation they obtained. Next, the district court held against the school district, finding both IEPs failed to provide an appropriate education and awarded the private placement. On appeal the circuit court affirmed the district court's decision holding the IEPs to be invalid and awarding the private school placement. However, the appellate court also held that parents are entitled to reimbursement for only one publicly funded evaluation for each school district evaluation with which the parents disagree, therefore remanding the decision to the district court to determine whether reimbursement for a 1992 evaluation obtained by the parents should be awarded. Finally, the appellate court also held that the parents were prevailing parties and entitled to attorney's fees and costs.

Board of Education of Oak Park & River Forest High School District 200 v. Illinois State Board of Education, 79 F.3d 654 (7th Cir. 1996). The parents of a 20- year-old non-verbal student with severe autism and mental retardation filed suit three weeks before the student's twenty-first birthday, claiming his current "life skills" program was inadequate. The court granted the student a year of compensatory education in a new program at the school district's expense. Two years past his twenty-first birthday, the student was still receiving compensatory education. The appellate court held that the "stay put" provision ceases to operate when a child reaches the age of twenty-one. However, while compensatory education is a benefit that may extend beyond the age of 21, allowing the stay put provision to operate beyond the age of 21 would enable parents to obtain unentitled benefits for their children simply by filing a claim for compensatory education on the eve of the child's 21st birthday. Therefore, the appellate court agreed with the school district that the stay-put provision does not operate in favor of an individual who has reached his or her twenty-first birthday. The order directing the school district to "stay put" was reversed.

Brookhart v. Illinois Board of Education, 697 F.2d 179 (7th Cir. 1983). Fourteen handicapped students brought suit challenging the Peoria, Illinois, School Districts' requirement that they pass a Minimal Competency Test in order to receive their diploma. After an administrative hearing, the State Superintendent of Education issued an order awarding the students their diplomas, and changing the test requirements for them. Specifically, the school was ordered to make reasonable modifications to the competency test and provide adequate notice and preparation for students regarding the test. The school district appealed to the district court which held there was no due process violation and reversed the order to issue the diplomas. On appeal, the appellate court held that the year to a year and a half notice that was given in light of the students' overwhelming lack of exposure to the goals and objectives of the test is constitutionally inadequate notice. In this case it was unlikely the students could return to school without undue hardship and therefore the school district could not require those students to pass the test as a prerequisite for a diploma.

Brown v. Griggsville Community Unit School District No. 4, 12 F.3d 681 (7th Cir. 1993). The parents of a disabled child filed a request for a due process hearing when they were told their child would be transferred to a new school the following year. Before the hearing could take place the school board held a review and agreed to let the child remain in his current school, and the parents withdrew their due process request. The parents then filed a request for attorney's fees. The district court granted summary judgment for the school district on the grounds that while the parents obtained what they wanted, they were not the prevailing party within the meaning of the statute. While other courts have agreed that section 1415(e)(4) of IDEA should encompass legal services rendered at the first or second stage of due process hearings, even if there is no third judicial stage, the Seventh Circuit affirmed the district court and held that the review would have taken place whether or not there had been a request for a hearing and the results would have been the same. Based on the child's improvement, the board had decided to change its position, not because it faced a lawsuit.

Butler v. Evans, 225 F.3d 887 (7^th Cir. 2000). A child diagnosed with severe schizophrenia had difficulty in a regular school. The local school authorities held an IEP meeting and agreed that the student's condition required a residential placement for educational purposes. An IEP, designed to target basic academic skills and social behavior, included special classes in a private or public residential education facility. The IEP assumed the student would not be hospitalized and was ready for an educational placement. Before the local school and the Indiana Department of Education could process this placement, the student's condition forced her to be committed to a psychiatric hospital for several months. After the student was released from the hospital, she was placed in a residential educational facility. Her parents sought reimbursement from the state for the costs of the student's hospitalization. The Seventh Circuit affirmed the district court's denial of the parent's reimbursement claim since the hospitalization did not result from delays by the State of Indiana in processing the placement, nor did the hospital care constitute "related services" reimbursable under IDEA.

Charlie F. v. Board of Education of Skokie School District 68, 98 F.3d 989 (7th Cir. 1996). The parents of a disabled child filed a suit claiming damages for the way their child was treated by his teacher and classmates. The district court dismissed the federal claims for lack of subject-matter jurisdiction. The appellate court answered the question, is the relief Charlie is seeking available under the IDEA? The appellate court held that damages are not "relief available under" IDEA. The relief available is defined as "relief for the events, conditions, or consequences of which the person complains, not necessarily relief of the kind the person prefers." Although IDEA requires a school district to provide not only education but also "related services", Charlie's parents believed his educational program was appropriate and did not want any additional related services, they only wanted damages for the way he was treated. The appellate court remanded the case to the district court with instructions to dismiss for failure to use the IDEA's administrative remedies.

Dale M. ex rel. Alice M. v. Board of Educ. of Bradley-Bourbonnais High School Dist. No. 307 237 F.3d 813 (7^th Cir. 2001). A student who had multiple disciplinary problems including disrupting classes, truancy and drug use was examined by a psychologist diagnosed the student with a "conduct disorder." Although, the district recommended a therapeutic day school, the student's parents unilaterally placed him in a residential school. The parents demanded that the school district pay for the school but the school district refused. The due process hearing officer ordered reimbursement, but the reviewing officer reversed. The District Court reversed, ordered reimbursement and also awarded attorney fees. The Seventh Circuit held that the district's payment of the previous judgment did not moot the claim. The Seventh Circuit found that the residential school was a jail substitute. Since the placement was "custodial in nature" the district had no obligation to reimburse for the student's residential school.

Das v. McHenry School District # 15, 1994 U.S. App. LEXIS 31435 (7th Cir. 1994). The parents of an eleven year-old developmentally disabled child was awarded attorneys fees by the district court and the school district appealed. Although the district court held for the school on three of five issues presented, the court found the parents to be the prevailing party because of the increase in services obtained and awarded them attorney's fees. On appeal to the Seventh Circuit supported the school district claims that they had prevailed on most of the issues and should have been the prevailing party. However, the appellate court found that the increase of services ordered by the hearing officer were exactly what the parents wanted and therefore they were the prevailing party and the award of attorneys fees was just.

Dell v. Board of Education, Township High School District 113, 32 F.3d 1053 (7th Cir. 1994). The parents of a student with a disability sought reimbursement for an independent case study evaluation ("ICSE") they obtained. The school district requested a Level I due process hearing and the hearing officer awarded only partial reimbursement for the ICSE. The Level II hearing officer affirmed the Level I decision. The parents then brought suit in state court, appealing the hearing decisions, and seeking attorney's fees. The school district removed the case to federal court, where the court dismissed the case as untimely. On appeal, the Seventh Circuit held that 120 days was the appropriate statute of limitations for the judicial review of reimbursement disputes and dismissed the request for reimbursement. The circuit court held that the 120 days to claim attorney's fees does not run until the judicial decision upholding the Level II decision becomes final and remanded the attorney's fees issue to the district court for redetermination.

Doe v. Board of Education of Oak Park & River Forest High School District 200, 115 F.3d 1273 (7th Cir. 1997). A thirteen year-old freshman was accused of being in possession of a pipe and a small amount of marijuana at a freshman dance. The student was identified as a special education student due to his learning disability. The student was suspended for 10 days and then expelled from school. The Level I hearing officer upheld the school board's decision and the Level II hearing officer reversed the decision concluding the failure to provide services violated the student's due process and IDEA rights. The district court held that the school was not required to provide services because the student was expelled for reasons unrelated to his disability, thus forfeiting the student's right to the "free appropriate public education" required by IDEA. The appellate court affirmed the district court decision concluding that the IDEA does not manifest an intent, either expressly or impliedly, to shield special education students from the normal consequences of their misconduct if that misconduct has nothing to do with their disabilities. The student's decision to bring marijuana to the dance was calculated rather than impulsive. (NOTE: The 1997 reauthorization of IDEA now mandates that expelled students must continue to receive their IEP services during the length of their expulsion.)

Doe v. Koger, 710 F.2d 1209 (7th Cir. 1983). The mother of a special education student expelled from school brought suit to recover attorney's fees. The district court and then the appellate court both held that a claim for attorney's fees under section 1983 is not a valid claim because the EAHCA does not provide for attorney's fees and cannot be utilized for attorney's fees under section 1988. Judgment affirmed.

Edie F. ex rel. Casey F. v. River Falls School Dist.243 F.3d 329 (7^th Cir. 2001).
The parents of learning disabled high school student and the school district repeatedly revised the student's individual educational plans in hopes of encouraging him to do better. Despite their best efforts, the plans were unsuccessful. The parents brought suit to recover attorney fees against the school district following a settlement agreement. The parents claimed they were entitled to attorneys fees as prevailing parties because they had received what they had wanted, an independent educational evaluation ("IEE"), through the settlement agreement. In addition, the new IEE prompted the school district to make certain modifications in a new IEP. The Seventh Circuit held that while the IEE was used to "confirm" the IEP, there were no modifications to the plan that could not have been achieved voluntarily. Moreover, the parent's demands were not causally linked to the result achieved therefore they could not form basis for awarding parents attorney fees as prevailing parties under IDEA.

Family & Children's Center, Inc. v. School City of Mishawaka, 13 F.3d 1052 (7th Cir. 1994). The Family and Children's Center ("FCC") brought suit under the IDEA for third-party standing to advocate the rights of children with disabilities who had been placed in their care by court order or by state welfare agencies. The district court held that the FCC did not have standing to bring a claim under IDEA because they were not the "parents, guardians, or surrogate parents" of the children as required by IDEA to have standing. The appellate court reversed, holding that FCC met the Article III requirements for standing by demonstrating there was an immediate threat of injury fairly traceable to the school corporation's conduct, that a favorable federal court decision would likely redress or remedy. The record showed that FCC had exhausted its state remedies before filing this suit and thus Section 1415 grants a right of action to FCC on behalf of the children with disabilities.

Gary A. v. New Trier High School, 796 F.2d 940 (7th Cir. 1986). The parents of a child placed in a residential facility sought reimbursement for money the district refused to pay before a rule not allowing therapeutic services to be a covered expense was redrafted allowing funds for counseling and therapeutic services. The parents brought suit against the state, State Board of Education, the school district, as well as other employees. The district court granted summary judgment and awarded attorney's fees to the parents. On appeal, the appellate court held that the parents had not shown that the state statute supported their claim, nor that the state consented to suits for damages and waived its constitutional immunity. The court held that the local defendants (the school district) had no constitutional immunity and reversed the judgment as to the state defendants and affirmed as to the local defendants.

Heather S. v. State of Wisconsin, 125 F.3d 1045 (7th Cir. 1997). The parents of a child with special needs filed a request for due process when they disagreed with the school district's proposed placement. After a new evaluation was conducted the school district still found the proposed placement to be appropriate. The parents withdrew their daughter from school three days before the final briefing in the due process matter was due and enrolled her in a private school. The parents did not notify the school district that she was enrolled in a private school until they requested the school district provide transportation to this school. The parents then filed another request for due process regarding the district's refusal to provide transportation. The school district refused to appoint a new hearing officer because they felt that the previous officer had jurisdiction over the case. The Department of Education concurred with the school district and consolidated the issues. The hearing officer issued his findings among which he determined that the districts recommended placement in self-contained placement was appropriate. On appeal the reviewing officer held that the Level I hearing officer erred, and ordered the student placed in a difference school district placement. Ultimately the Seventh Circuit held that the child's parents would have withdrawn her from the school regardless of the outcome of the due process hearings, thus the court could not conclude that the child had been denied a FAPE.

Hunger v. Leininger, 15 F.3d 664 (7th Cir. 1994). The father of a child with a neurological disorder filed a request for a due process hearing. The hearing officer ordered the school to provide counseling services as well as occupational and physical therapy in the home to help prepare for the child's return to school. The Level II hearing officer affirmed the order. The district judge refused to issue an injunction to prevent the school from terminating the homebound services. The judge also granted summary judgment in favor of the school even though they had not requested it. The judge did award attorney's fees to the father. The father then brought this action in the appellate court for additional attorney's fees. Although the appellate court determined that the Individual Educational Plan ("IEP") was valid, it reversed the award of attorney's fees because the child was not the prevailing party on most of the issues.

Jodlowski v. Valley View Community Unit School District #365-U, 109 F.3d 1250 (7th Cir. 1997). After the parents of a fourteen year-old child with special needs refused to give consent for a reevaluation, the school district filed for a due process hearing. The hearing officer ordered a complete reevaluation be conducted by independent personnel mutually chosen by the parents and the school with the school covering the cost. The parents then filed a petition to recover attorney's fees and costs. The district court granted the parents motion for summary judgment and awarded them a reduced amount of fees. The school district appealed the decision. The Seventh Circuit held that the parents were not the prevailing party because the school district obtained what they had initially requested, a complete case study evaluation and because the parents did not prevail on the issue of who would perform the evaluation. Thus the parents did not qualify as "prevailing parties" within the meaning of the IDEA and are ineligible to receive attorney's fees.

Johnson v. Duneland School Corp., 92 F.3d 554 (7th Cir. 1996). The parents of a disabled child filed a request for a due process hearing because they did not agree with the school district that their son required a three-year reevaluation and because they did not agree on the amount of time he should spend in school. The hearing officer ordered a reevaluation be conducted within seven days. The evaluation was not conducted and the parents appealed the order. The Indiana Board of Special Education Appeals upheld the order. The district court held that the school district's right to conduct a three year reevaluation was not limited by parental consent and the school's right to conduct the evaluation was absolute.

K.R. v. Anderson Community School Corporation, 81 F.3d 673 (7th Cir. 1996). The parents of K.R., a multiply handicapped student requiring a full-time assistant, unilaterally enrolled her in a private school even though they were told the school district would not provide an educational assistant if she attended the private school. The district court held that the public school was obligated to provide the service and issued a permanent injunction and declaratory judgment in favor of K.R. The appellate court reversed, holding that children attending private schools are governed by different regulations than those in public schools. As such, schools are responsible for the provisions of special education related services, but only to the extent consistent with the number of disabled private school children in the State. Where the public schools provide the necessary service at a public institution and give the disabled student a genuine opportunity to participate, the public school has discharged its obligation. Therefore, the court concluded that the IDEA and its regulations do not require a public school to make comparable provisions for a disabled student voluntarily attending private school.

Lachman v. Illinois Board of Education, 852 F.2d 290 (7th Cir. 1988). The parents of a profoundly deaf child requested a due process hearing when they did not agree with the proposed IEP for their son's kindergarten year. The Level I and Level II hearing officers upheld the school district's recommended placement for the child. The parents then filed suit on their son's behalf claiming the proposed IEP denied their child a free appropriate public education. The district court held that the school district had provided a FAPE to the child and that they were not required to provide a separate educational opportunity for the child. The district court dismissed parent's complaint. On appeal, the Seventh Circuit held the proposed IEP was based upon an accepted, proven methodology for teaching primary children who are profoundly deaf. The court also held that the IEP did provide a FAPE to the maximum extent appropriate.

Linda W. v. Indiana Dept. of Educ. 200 F.3d 504 (7^th Cir. 1999).
The parent's of a dyslexic student disagreed with the IEP plan developed by the child's public school. A hearing officer concluded that the district must provide the student with help from specialists and summer compensatory education for his delayed start but that the student was not entitled to summer education as a norm. After receiving this decision the parents unilaterally placed the child in a private school and initiated litigation seeking to compel the district to pay for his new school. The court held that the inadequacy of an educational plan does not necessarily entitle the student's parents to reimbursement for their placement, because the parents were also required to "persuade a district court to exercise its discretion to provide reimbursement." In this case the court held that the parents had not met this burden and the district court did not abuse its discretion in denying reimbursement, based on its' belief that the modifications to the IEP would provide FAPE in the LRE. Furthermore the court held that the Parents were not prevailing parties because they obtained only a small portion of relief they were seeking, despite their procedural victory. The Appellant court affirmed the district court's holding that the parents were neither entitled to reimbursement for placement of student in private school nor entitled to attorney fees.

Marie O., Gabriel C., and Kyle G. v. Jim Edgar, 131 F.3d 610 (7th Cir. 1997). Three children with disabilities filed a class action against the State of Illinois claiming a waiting list requirement was out of compliance with Part H of the IDEA. The children requested a declaration that Illinois' failure to provide all eligible infants with early intervention services was a violation of their rights. The district court granted the children's requested relief and granted detailed injunctive relief designed to bring Illinois into "meaningful compliance" with the Act. On appeal, the State claimed the children's action was barred by the Eleventh amendment, but the Seventh Circuit held that it was not. Furthermore, the court held that the language of Part H is mandatory and clear, and thus creates rights enforceable by individuals.

Max M. v. New Trier High School, 859 F.2d 1297 (7th Cir. 1988). Max M. sought attorney's fees based on the passing of the Handicapped Children's Protection Act ("HCPA"). His case was pending on July 4, 1984 and was not resolved until March of 1986. The Act was passed in August 1986 as an amendment to the Education for All Handicapped Children Act. The district court awarded Max attorney's fees and the school district appealed on the grounds that the HCPA amendment was unconstitutional and inapplicable. The school district argued that Max had not filed his request within 90 days of the judgment, in compliance with Local Rule 46. Max argued that it was impossible to have met the 90 day rule as the HCPA amendment had not yet been passed. The district court held that although the time frame should be shortened to facilitate intelligent decisions about appeals, the 90 day rule governed. The district court reduced the amount of fees Max had been awarded to reflect the lack of success on other issues. The decision was affirmed by the Seventh Circuit.

McCartney C. v. Herrin Community Unit School District No. 4, 21 F.3d 173 (7th Cir. 1994). The parents of a child with special needs filed a request for attorney's fees following a favorable decision by a Level II hearing officer. The school district had the right to bring suit as the party aggrieved by the decision to set aside the verdict. No time frame for this action was established. The parents filed their request for fees 184 days after the receiving the Level II decision, and the district court awarded attorney's fees. The school district appealed, claiming the request was time barred. Although both sides agreed that 120 days was the correct time limit in which to file suit, the appellate court determined that the 120 days does not run until the 120 days the school district has to challenge the Level II decision has elapsed without suit being filed, or until 120 days from when the Level II decision becomes final.

Metropolitan School District of Wayne Township v. Davila, 969 F.2d 485 (7th Cir. 1992). On appeal the United States Department of Education, challenged the district court's grant of summary judgment against it, in favor of the School District. The district court held that a letter purporting to interpret part B of the IDEA was a legislative ruling subject to the notice and comment procedures of the Administrative Procedure Act. The appellate court reversed, holding that the letter articulated the Office of Special Education and Rehabilitative Services ("OSERS") construction of IDEA, and is only an interpretive rule that does not trigger the APA's notice and comment requirements. The School District only challenged OSERS' authority to issue its interpretation, not the interpretation itself. The court did not believe that the provision of the IDEA that delegates rule making authority to the Department of Education requires OSERS to promulgate its interpretation of the Act through notice and comment.

Monticello School District No. 25 v. Brock L., 102 F.3d 895 (7th Cir. 1996). The parents of a child with Attention Deficit Hyperactivity Disorder unilaterally enrolled him in a private residential placement and filed a request for a Level I due process hearing because they were unhappy with his proposed IEP. While the Level I hearing officer determined that the IEP did not provide a FAPE, she also found that the private school was not the LRE for the child. The hearing officer ordered the school district to revise the IEP, maintain the private school placement through the first semester of the upcoming school year, and reimburse the parents for the cost of the first semester. The school district filed an appeal requesting the Level II officer reverse the order. The Level II officer found that the school district was required to reimburse the parents for the semester of school. On appeal, the district court affirmed the Level I and Level II hearing officer's decision, but denied the parent's counterclaim that the school district violated Section 504 and Sections 1983 and 1988. The court reasoned that the parents failed to state a claim that the school district had acted in "bad faith" because it was reasonable to expect the new IEP to be in place by January so as to only reimburse the parents for the first semester of school. Although the parents were the prevailing party they were unable to show that the district court abused its discretion in denying them attorney's fees.

Morton Community Unit School Dist. No. 709 v. J.M. ,152 F.3d 583 (7^th Cir. 1998). A 14-year-old student required a tracheotomy tube (enabling him to breathe through an opening cut into his windpipe, rather than through his nose or mouth) with the intermittent aid of a portable ventilator system that required continuous monitoring and adjustments. He could not close his eyes and required an application of ointment to his eyes every hour to prevent corneal abrasions. He had limited mobility but had learning disabilities and difficulty in speaking because of the tracheotomy tube. To function and survive at school required either one of his parents or a nurse to devote their full undivided attention to the student. The Court of Appeals affirmed the District court's decision requiring services for the technology dependent student were "related services" which school district had to provide at its own expense under IDEA.

Parks v. Pavkovic, 753 F.2d 1397 (7th Cir. 1985). The parents of a nineteen year with disabilities brought suit to recover reimbursement for their son's living expenses at a residential facility. The parents won their appeal and the state was required to pay the son's bills. While the suit was pending the son was moved to another facility and the parents were again required to pay part of his expenses. A hearing officer ordered the state to pay the entire bill in the future and reimburse the parents for money already paid. The district court granted a preliminary injunction to keep the child at the facility pending the suit and issued a permanent injunction barring the state from deducting any amount from the child's living expenses until he turns 21. A few months later the district court ordered the state to reimburse the parents for living expenses for the last four years. The appellate court affirmed the preliminary injunction and instructed the state to pay the future bills for living expenses. However, the appellate court reversed the decision granting reimbursement of the parents' overpayments beyond what was necessary to keep the child from being expelled from the institution.

Patricia P. v. Board of Educ. of Oak Park,203 F.3d 462 (7^th Cir. 2001). The parents of a student with a history of emotional and behavior problems filed suit for reimbursement of private schooling costs. The district court granted summary judgment for the school district. On appeal, the Seventh Circuit affirmed the district court's opinion and held that the parent did not make the child available for evaluation by school district and was therefore not entitled to reimbursement despite the appropriateness of the private placement. The court stated that the parents must allow the school district it's own opportunity to evaluate the student and they cannot force the school to rely solely on an independent evaluation.

Patrick G. v. City of Chicago School District Number 299, 1994 U.S. Dist. LEXIS 18156 (7th Cir. 1994). The father of a child with cerebral palsy requested a due process hearing because he believed his daughter's IEP was not providing an appropriate education. The Level I hearing officer agreed that the IEP was not providing an appropriate education and ordered the school district to revise it. The father then filed in federal district court to collect attorney's fees and costs. The school district did not contest that the father was the prevailing party, but did question the amount he requested. The court agreed with the school district that the request for fees was excessive and reduced the request for document review by 10 hours. The court also reduced the requested fees for the time period before the filing of the hearing request by 25 hours and deducted 12 hours from the time spent receiving and examining documents. After reviewing the billing invoice the court deducted another 48 hours from the request. The amount of time billed by the law clerk was also reduced by 9 hours. The father was awarded $19,739.76, a reduction of $17,300.00.

Powers v. Indiana Department of Education, 61 F.3d 552 (7th Cir. 1995). The father of a disabled child brought a claim to recover attorney's fees incurred while challenging the educational placement proposed for his daughter. The Indiana Department of Education denied the father's request for attorney's fees, prompting him to file suit in Federal court. The request for attorney's fees was filed in June 1993 and both parties sought summary judgment. The court granted summary judgment to the Department because the attorney had waited seven and a half months to file the request. Indiana law mandated that an appeal be filed within 30 days of the decision and even if the state followed the 120 day rule established by the Seventh Circuit, the request was still time barred. This court held that the time allowed began to run when the Department denied the request for fees.

Reed v. Mokena School District No. 59, 41 F.3d 1153 (7th Cir. 1994). The mother of a disabled child filed an administrative action under IDEA challenging the proposed method of educating her daughter. After the school district offered to implement the educational program she desired, the mother dropped her suit. The mother then filed an IDEA suit in federal district court for attorney's fees and costs. The district court held that her request was time barred and she appealed. The Seventh Circuit court held that the correct amount of time to file is within 120 days. The mother waited 149 days, therefore the district court was correct in determining the action was time barred.

Rheinstrom v. Lincolnwood Board of Education, 1995 U.S. App. LEXIS 10781 (7th Cir. 1995). A child with special behavioral needs was recommended to be removed from a self-contained classroom for children with emotional disorders and placed in a therapeutic day school. The student's father requested a due process hearing. The Level I hearing officer held that the therapeutic setting was appropriate because the child's behavior was regressing and the public school was not an appropriate placement for him. The Level II hearing officer concluded that the therapeutic day school was the appropriate placement. The district court upheld the Level I and Level II hearing officer's decisions and granted summary judgment to the Board of Education. After a review of the record the appellate court affirmed the lower court's decision.

Rodiriecus L. v. Waukegan School District No. 60, 90 F.3d 249 (7th Cir. 1996). Rodiriecus, a student not enrolled in special education, was suspended and then expelled from school for stealing the master key of the school and robbing the classrooms. His case worker requested a case study evaluation and filed a request for a due process hearing. The district court ordered a preliminary injunction against the school to bar them from expelling the student during the testing because the "stay put" provision should apply to all children who request a disability evaluation. At the due process hearings, the Level I and Level II hearing officers held that the student was not disabled and therefore did not qualify for special education services. On appeal from the district court order, the appellate court held that if the "stay put" provision is automatically applied to every student who files an application for special education, then the avenue will be open for disruptive, non-disabled students to forestall any attempts at routine discipline by simply requesting a disability evaluation. Before a court can grant a preliminary injunction petitioners must reasonably demonstrate that school officials knew, or should have known of, a student's genuine disability. Only when Rodiriecus was to be expelled did the guardian seek an evaluation. Therefore, the appellate court reversed the injunction and remanded the decision to the district court.

Rosemary B. v. Board of Education of Community High School District No. 155, 52 F.3d 156 (7th Cir. 1995). After several requests for hearings and a successful settlement with the school board regarding her disabled son's IEP, his mother filed a complaint for attorney's fees in federal court. The School Board moved for summary judgment on the grounds that the request was not timely. The district court granted the Board summary judgment. The Seventh Circuit held that any claim the plaintiff might have to attorney's fees depends on her asserting that time did not begin to run against her action until November 25, 1993, 120 days before the plaintiff filed her attorney's fees complaint. Where in the instant case, no hearing occurred, the clock began to run once the party had a factual basis to believe she had achieved the relief she requested through some kind of settlement. Because all three dates fell over 200 days before she filed her attorney's fees claim, the mother's claim collapsed no matter what event triggered the running of the statute of limitations.

State of Illinois v. Bowen, 808 F.2d 571 (7th Cir. 1986). The Secretary of the United States Department of Health and Human Services filed suit against the State of Illinois claiming the Department was denied reimbursement for monies expended in the special education programs for the state under Title XX of the Social Security Act. The district court granted summary judgment for the Secretary. After carefully considering all of the states' claims, the district court held that the arguments were without merit. The appellate court affirmed that the district court was correct in finding Illinois ineligible for reimbursement because the three schools in question were generally available to the residents of Illinois. Illinois' basic argument was that every new academic year is a new placement, however, the court disagreed and held that monies are available for a second placement only if the first one has ended by the individual being discharged because further services were unnecessary. Illinois argued that summer vacations separate placements but the appellate court disagreed determining that something other than summer break is necessary before a new placement is eligible for reimbursement. The appellate court held that the State of Illinois had failed to present any evidence that persuaded the court to hold that the commencement of each school year must be considered a new placement. The judgment of the district court granting summary judgment was affirmed.

Timms v. Metropolitan School District of Wabash County, Indiana, 722 F.2d 1310 (7th Cir. 1983). The mother of a severely disabled child requested a due process hearing to obtain an appropriate program for her daughter because she was not attending school for a full day. The hearing officer determined that the child's IEP failed to state why her instruction should be less than a full-day and ordered her placed in a full-day program. The school board sought review of the order. The Commission on General Education of the Indiana State Board of Education agreed with the hearing officer and remanded the case for an evaluation and to develop a new IEP. The hearing officer was also to make a report on the progress by May 1, 1980. Before the report was made, the parents filed suit to recover equitable and monetary relief. The district court issued a partial judgment denying all monetary relief on the ground that there was adequate justification for the shortened program. On appeal the Seventh Circuit court held that the parents failed to exhaust their administrative remedies before filing for judicial review, therefore their case was moot. The decision of the district court was affirmed.

Tonya K. v. Board of Education of The City of Chicago, 847 F.2d 1243 (7th Cir. 1988). A class action suit was settled and both parties agreed to wait to determine the appropriate relief for the children until the Supreme Court made a decision regarding attorney's fees. After the court handed down its decision the request for attorney's fees was dropped. Two years later the Handicapped Children's Protection Act was passed, and the parents asked the district court to reinstate the request for attorney's fees. The court granted the request even though two years had passed. The children were awarded attorney's fees to be split between the Board of Education and the State of Illinois. Both appealed. The Seventh Circuit held that because the parties had agreed to wait for the Supreme Court outcome and a short-term outcome would be favorable for the defendants and a long-term outcome was favorable for the plaintiffs. Either the children were going to lose the fees because the motion was resolved too late to invoke the Supreme Court decision but too soon for the 1986 Amendments, or the defendants were going to lose the benefit of their window of opportunity.

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Case Law

The Leading Court Decisions

T.H. v. Board of Education of Palatine Community Consol. Sch. District, No. 98 C.4633, 98 C 4632 (N.D. Illinois, 1999). On the District's motion for summary judgment and the child's cross motion for summary judgment, the United States District Court for the Northern District of Illinois held that the district had failed to invididualize its early childhood program, which the court termed "absurd" to meet the needs of T.H. The District Court further termed the district's IEP process "dysfunctional" and held that the district was liable to reimburse T.H.'s parents for the costs of their home-based ABA program, as well as all their attorneys' fees incurred through the Level I and II proceedings, as well as at the District Court level (the level which I participated as counsel). At the outset, T.H.'s parents offered to settle the dispute for approximately $17,000. The district dug in its heels, forcing T.H.'s parents to endure proceedings at three different levels. The district, which lost at every level, ultimately had to pay out several hundred thousand dollars, including substantial attorneys'fees. Cedar Rapids Community School District v. Garret F.; 1999 WL 104410 (U.S. Iowa, Decided March 3, 1999). United States Supreme Court (Justice Stevens writing for the majority): IDEA requires the provision of "continuous 1:1 nursing services" which qualify as "related services," and which are not excludable as "medical services" under Tatro decision [468 U.S. 883 (1984], reasoning that student would not be able to benefit educationally without the provision of such nursing services continuously during the school day. NOTE: Although the majority noted that the district "may have legitimate financial concerns," it nevertheless held that it would not adopt any "undue financial burden" test and that in order to fulfill the purposes of IDEA, "....the district must fund such "related services"[without regard to the cost]..." Justices Stevens, Rehnquist, O'Connor, Scalia, Souter, Ginsburg and Breyer joined in the majority opinion. Justices Thomas and Kennedy (dissenting), argued that "...this approach blindsides unwary States with fiscal obligations that they could not have anticipated." Board of Education [Hendrick Hudson Central School District] v. Rowley, 458 U.S. 176 (1982). The Rowley case is often cited by school districts for the general proposition that the school district or municipality need not provide "optimum" services, and need only provide services which are "appropriate." The Rowley case also is cited by parents since the United States Supreme Court explained that an "appropriate" educational plan is one which is "individualized," "tailored," "personalized," and "specially designed" to meet the "unique needs" of the individual child who is the subject of the educational plan. The Rowley decision is important since it confirms that parents are given an important role in the IEP process. As the Supreme Court explained: "The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child."Burlington School Comm. v. Mass. Dep't of Education, 471 U.S. 359 (1985). In Burlington, the United States Supreme Court held that reviewing courts have the authority to order reimbursement of parents for expenditures made to provide their children with appropriate private special education if the state provided services are determined to be inappropriate and the private education services obtained by the parents are appropriate.

Important Tax Deductibility Ruling

[CCH Dec.52,596(M)]Steven A. Lenn and Ksenia Lenn v. Commissioner [of the Internal Revenue Service].[Docket No. 3981-96. Filed February 26, 1998]The petitioners, who have a son with a disability under IDEA, unsuccessfully sued their school district in order to obtain tuition reimbursement for a residential outplacement. The petitioners were allowed by the IRS to deduct the private tuition costs as "medical expenses," to the extent allowable under Section 213 of the Internal Revenue Code ("IRC"). The Commissioner, however, disallowed the petitioner's efforts to deduct, as Section 213 "medical expenses", the legal expenses incurred in the lawsuit, on the grounds that the (unsuccessful) lawsuit was "not necessary" for the child to attend the school.Note: If the taxpayers had successfully sued their school district, the lawsuit arguably would have been "necessary" for the placement and the cost of the lawsuit might have been held deductible as incidental to "medical expenses" under Gerstacker v. Commissioner, 414 F.2d 448 (6th Cir. 1969). On the other hand, a successful due process hearing by a parent, unless appealed over multiple tax years, could render the tax deductibility issue moot, to the extent that a successful due process hearing normally results in an award of attorneys' fees to the prevailing parent.

High Court Says No To Punitive Damages Under ADA, 504

The U.S. Supreme Court struck down an appellate court ruling that allowed punitive damages in private suits brought under the ADA and Section 504. Barnes v. Gorman, 102 LRP 11717 (U.S. 2002). The High Court applied a contract law analogy to determine the scope of available remedies under the statutes, noting punitive damages generally are not available for breach of contract.

U.S. Supreme Court Rules Students Can't Sue Over Privacy

Students can't sue schools and colleges that improperly release their grades or other personal information, the U.S. Supreme Court ruled in Gonzaga University v. John Doe. The 7-2 ruling said the Family Educational Rights and Privacy Act, or FERPA, gives "no specific, individually enforceable rights," leaving it to the Education Department to punish a school by stripping its federal funding.

School vouchers, wider use of school drug tests affirmed

The U.S. Supreme Court issued a 5-4 decision recently in which it approved random drug tests for any public high school students who join competitive after-school activities or teams. The court ruled that a school's interest in getting rid of drugs outweighs a student's privacy rights. The random tests had previously been allowed only for student-athletes. In a separate decision, the Supreme Court ruled 5-4 that Cleveland's tax-funded school vouchers are Constitutional because they do not violate the required separation of church and state. The ruling paves the way for more school-voucher programs.

Seventh Circuit cases of interest:

District's IEP Satisfies 7TH Circuit; Parent Loses Reimbursement Claim

The 7th U.S. Circuit Court of Appeals backed the IEP created for a high-schooler with LD, ruling the district properly considered the student's need for ESY services and proposed new techniques to improve on its already successful efforts. Todd ex rel. R.T. v. Duneland Sch. Corp., 102 LRP 18680 (7th Cir.2002).

The parent, who sought private placement reimbursement, could not support her contention that her son did not deserve promotion from grade to grade.

Homebound Placement Reasonable After Student's Past Failures

Struck by a 13-year-old's "disastrous history" of attending classes in any school environment other than that of the mental institution where he was confined for seven months, the court concluded the district met its FAPE obligation by proposing a homebound program. School Dist. of Wisconsin Dells v.Z.S. by Littlegeorge, 102 LRP 13020 (7th Cir. 2002).

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Complaints

Experienced parent advocate Pat Howey of West Point, Indiana, writes on the subject of the efficacy of filing complaints in special education matters in Indiana.

She writes: I rarely file complaints and even more rarely advise parents to file complaints. Why? Because in Indiana, there is no legitimate remedy, even when the school is found to be in violation.

I have had countless parents and advocates call me to excitedly tell me that they had "won" a complaint. My usual response is, what did you "get"? After a few seconds of silence, they say that the school has been ordered to change what they are doing and provide documentation to the state that they have completed the change.

If the complaint involved a violation that involved a service, such as failure to provide an extended school year or failure to provide a related service that is already in the child's IEP, the state very, very, rarely orders that it be provided. The state orders the school to convene an IEP team meeting to determine whether its violation caused the child a denial of FAPE. If so, then the IEP team is ordered to provide an appropriate amount of compensatory education.

So, what the parents have achieved is this:

1. The school cleans up its act -- on paper -- at the order of the state. In reality, nothing ever changes, because the school now knows what the state requires in the way of documentation. Therefore, it is rare that any other parent will ever "win" this issue again, because the parent who filed the complaint has taught the school what it needs to do in order to cover up what it is doing in practice. The state looks at the school's documentation, not its actual practices. (Remember, if it wasn't written down, it didn't happen. However, if it was written down, it did happen, even if it didn't.)
2. The parent "wins" another IEP team meeting. Because the parent is already entitled to convene an IEP meeting at almost any time, they have really not "won" anything. The state has given them what they are already entitled to have.
3. It is likely that the parent has already been to numerous IEP team meetings unsuccessfully attempting to resolve the issue that caused the complaint to be filed to begin with. So, in this case, what the parent has "won" is another case conference that the school will invite even more staff members to, and the school now knows how to document the meeting. If the complaint was about failure to provide a related service, you can be assured that the service provider will be invited to the meeting and that he or she will be instructed to find a reason why the child no longer needs that services. In that case, the child has not been deprived of FAPE and the team will find no need to provide compensatory educational services.
4. Last and most important of all, if you file a complaint, you will more than likely either lose the ability to ever bring that same issue before a hearing officer in a hearing and if you "lose" the complaint, the hearing officer will most likely defer to the findings of the complaint investigator.

The moral of this story is, before you file a complaint, be very, very certain that you will not EVER want to file for a hearing on the same issue. But even more importantly, examine closely what you could possibly "win" if you win the complaint. If your state offers no real remedy, then you may wish to consult an attorney before taking any action. Likewise, advocates should be very, very careful before filing a complaint on behalf of a parent, as you may be jeopardizing their future rights and remedies.

I use the state complaint system rarely and I tend to choose carefully those occasions when I utilize it.

First, the issue must be a direct violation of sped law. Second, I have to have direct knowledge and/or evidence of the violation (no “He said, she said” issues). Third, the violation has to be a “gimmee”. In other words, the evidence I send with the complaint proves on its face that there is a clear violation.

For example, I filed a complaint in 1998, alleging that a superintendent and assistant superintendent released personally identifiable information to the media about a special education student. Along with the text of the complaint, I submitted newspaper articles and a copy of the television station’s website showing the information the identified the special education student.

The complaint investigator ruled on violations for each issue I had submitted. (Incidentally, this complaint was filed after the child had graduated from high school, and it identified an issue from the child’s 10th grade year. However, since the child’s parent had become aware of the violation only after the child had graduated, I asked that timelines be tolled and the investigator granted this.

I prepare a complaint with the same care I take in filing a due process hearing request. I submit facts, violations of law, proposed conclusions, as well as a proposed resolution. In other words, I try to do as much work for the complaint investigator as possible, understanding that bureaucrats like easy solutions. I also submit supplementary information, IEPs, evaluation reports, tapes of IEP meetings, etc., because then I know that the investigator has all pertinent information and the paperwork has not been altered or manufactured in any way.

I also file complaints when there is an issue that I think can be or needs to be resolved immediately if a complaint is filed. I have always suspected – in Indiana, anyway -- that when a complaint is filed and it appears on its face to be clearly a violation or violations – that the first phone call the investigator makes is to the district, telling them to clean up its act or it risks being found in violation.

I suspect this because so often, when a clear violation complaint is filed, the school immediately cleans up its act. I filed a complaint on one occasion, where a student was not going to be allowed to participate in graduation ceremonies with his classmates for the sole reason that he had a disability. Graduation was in two weeks and an IEP meeting or hearing was out of the question.

By the time either had been held, the issue would have been moot, because the ceremony would have been over and done with. We filed a complaint. I submitted a couple of OCR investigations, and lo and behold, within a few days after filing the complaint, mom called and said the school had “changed its mind” and would “graciously allow” her son to go through the ceremony with his classmates. We withdrew the complaint.

Last, I am prepared to withdraw the complaint if and when the district comes into compliance before the complaint investigation report is delivered OR if a complaint investigator is assigned who is known to be “school friendly”. In my opinion, there is no reason to take a chance on a complaint investigator finding a reason to rule against a student in a complaint investigation if we have achieved what we desired.

So, I always withdraw the complaint once I have received in writing the school’s promise to comply with the alleged violation we have charged. If the school fails to comply, we can always file another complaint or a hearing. If I do not withdraw the complaint investigation and no violation is found, I have harmed the parent’s right – in Indiana, at any rate – of bringing up that same issue in a due process hearing.

Pat Howey
http://www.pathowey.com

When you are wrestling with a gorilla, you don't stop when you are tired; you stop when the gorilla is tired.

– Robert Strauss

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Indiana State Laws

Indiana State Laws Governing Special Education Law

Indiana laws governing special education law -- Title 511, Article 7
To download a copy of the Article 7 that went into affect Aug. 13, 2008.
The new Notice of Procedural Safeguards is located at
http://ideanet.doe.state.in.us/exceptional/speced/laws.html

There were several significant changes made to Indiana's Article 7, most of which were not seen by most parent/child rights organizations as positive changes for Hoosier children.

Some of the most significant changes are as follows:

Change of Placement Despite Parental Disagreement

Under the old Article 7, a school could not change the placement of a student without either getting parental consent OR filing for a due process hearing against the family. Under the new Article 7, specifically Section 7-42-8, the school can propose and actually implement a change in placement for a student EVEN IF THE PARENT DISAGREES unless the parent takes one of the following actions within ten instructional days:
1. Requests a due process hearing,
2. Initiates mediation, or
3. Requests and participates in a meeting facilitated by an authorized official of the school corporation.

If a parent acts within the ten days, the school must continue to implement the previously agreed upon IEP as the child’s "stay put" placement.

The school must provide written notice of its proposal or refusal to change the disability label, placement or services of a student, describe the school's proposed or refused action, explain the school's rationale and a description of all evaluations, reports, procedures considered as a basis for the school's action or refusal to act. The student's IEP may be part of the written notice. The school may provide the written notice at the case conference meeting or may mail the notice to the parent. The notice must be received by the parent no later than ten business days after the date of the case conference meeting. Upon receipt of this notice, the parent has ten instructional days to request a hearing, mediation, or a meeting with the relevant school official.

***IMPORTANT*****

Because the ten days runs from the date of written notice,it will be important for parents to keep postmarked envelopes and record dates of receipt of written notice if not provided at the case conference. Since the student's IEP may be part of the written notice, parents should verify that the school's documentation is intended to be the complete written notice. Parents need to be aware that the timelines include a mix of "business days" and "instructional days" (a day or part of a day students are expected to be in attendance). Parents should confirm which school administrator(s) are considered the appropriate one(s) to facilitate a meeting regarding disputed changes to a student's IEP. Presumably, the challenged IEP’s implementation remains stayed if a meeting or mediation is unsuccessful and the parent must ultimately request a hearing. There is no case law on this point yet because the revised Article 7 is so new.

Transitional IEP now required

Although the law has always required transition planning, and thus this is not a new requirement under the law, the need for a transitional IEP is specified with more particularity in the revised Article 7.

IEPs must include both academic and functional goals. 511 IAC 7-42-6(f). A "transitional IEP," that specifically addresses transition to adult life, must now be written when the student becomes fourteen years of age or enters the ninth grade, whichever occurs first. 511 IAC 7-43-4(h). The definition of "transition services" is expanded to require community experiences, development of employment, independent living skills, and other adult living objectives in addition to instruction and related services. 511 IAC 7-32-100. Before a student receives a diploma or certificate of completion or ages out of special education at age 22, the school must provide the parent or student a summary of performance that describes the student's academic achievement and functional performance and includes recommendations to assist the student in meeting post secondary goals. 511 IAC 7-43-7.

Required Participants Can be Waived

A parent and school may agree in writing to excuse a member's attendance at the case conference for all or part of the meeting. See 20 U.S. C. 414(d); 511 IAC 7-42-3(h). Any member may write and submit a written opinion as an addendum to the IEP that will be included as part of the student's record. Changes to an IEP may be made without a case conference if the parent and school so agree. The IEP must include services based on peer-reviewed research to the extent practicable. See 20 U.S.C. 1414(d); 511 IAC 7-42-3(h).

Note: Sometimes parents can be strong-armed into waving the participation of someone who they think is vital by the school springing the information on them just before or during the meeting, by saying that the parents can elect to either waive the person’s participation or reschedule the meeting to another day.

Given that most parents would have to take a day off work for the IEP meeting, taking yet another day off so that the individual could attend is sometimes an unattractive or impossible choice.

Parents have always had a right to write their own version of the discussion notes or add a document of their own to the case conference minutes.

This is important in situations where parents find that the minutes in their case conferences do not accurately reflect the discussion, leave out the parent’s opinions or have a self-serving tone.

Evaluation Timelines Changes:

Although this was already required under federal law, evaluations must examine what a student can do academically, functionally, and developmentally. 511 IAC 7-32-6, 7-32-30.

New timelines have been established under 511 IAC 7-40-8(e). If a parent requests an evaluation, the school must agree or refuse to evaluate within ten instructional days. An initial evaluation must be conducted within fifty instructional days from the date of written parental consent. Under Revised Article 7, a school must consider re-evaluating the student every three years, but need not re-evaluate if both the school and parent believe it is unnecessary. When proposing or refusing a re-evaluation, the school must provide the parent detailed written notice, including their right to request a due process hearing to challenge the school's decision. 511 IAC 7-40-8. A parent is entitled to only one independent evaluation at public expense each time the school conducts an evaluation.

NOTE: Schools will sometimes pressure parents to waive evaluations because they are overbooked on work to be done and this will cut the strain on staff resources. Generally speaking reevaluations are important tools to objectively measure how your child is doing. Having this information is important to determining whether your child is making progress or regressing. Do not waive your right to a re-evaluation lightly.

Transfer of Rights at Age 18

When a student turns age 18, he or she makes educational decisions unless the parent or other person has become the student's court appointed guardian. Under new Article 7, the adult student can appoint his or her parent as educational representative to make decisions. 511 IAC 7-43-6.

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Legislative Terms

Legislative terms you should know

The schools all have powerful lobbying organizations, but parents often do not and often lack the basic knowledge on how the legislative system works. In order to fight for your child’s rights, you need to know how the system works and how you can use it to help protect your family’s rights.

Amendment – Any alteration to an original introduced bill proposed by either a committee or a legislator.

BDDS – Bureau of Developmental Disability Services

Chamber – Another word for House of Representatives or Senate. Also refers to the actual room where legislative action takes place.

Citizen Legislature – Indiana’s General Assembly is classified as a citizen legislature. Lawmaking is not a full-time profession for the state’s legislators. The most common occupations of Indiana legislators are attorneys, teachers, business owners and farmers.

Concurrence – Essentially, an agreement. The Senate and House must approve identical versions of a bill before it can become law. When a version of the bill has passed on house, it is sent to the other house for approval. The second house either concurs with the bill or makes its own amendments. If the Senate and House do not agree on an identical version, the bill is sent to a conference committee.

Conference Committee – For a bill to become law, it must be passed by both the House and Senate in the same form. If amendments are added to a bill in the second house and passed, a conference committee consisting of members of both houses in appointed to resolve the differences. If the conferees reach a compromise, the chambers vote on whether to accept the conference committee’s decision. Generally, conference committees are comprised of two legislators from each chamber appointed by the president pro tempore of the Senate and the speaker of the House. If the committee is unable to reach a compromise, the bill dies.

DDRS – Division of Disability and Rehabilitation Services

Enacted – A Bill is enacted when it is signed into law by the governor.

Engrossed Bill – After a bill has passed second reading it is “ordered to engrossment,” or authenticated as the correct genuine bill to be considered on third reading.

Enrolled Act – After a bill has passed both houses in the same form, it is considered an enrolled act and ready for consideration by the governor.

First Reading – When a bill is introduced, it is ready for the first time and then referred to a standing committee to be considered.

First Regular Session or Long Session – The first session of every new General Assembly can last up to 61 working (session) days. Beginning in early January, this session cannot extend beyond April 30. Occurring in odd-numbered years, the first regular session is often called the “long session” because of the legislative approval process of Indiana’s biennial budget.

FSSA – Family and Social Services Administration

General Assembly – This refers to the joint meeting of the Senate and the House of Representatives during two consecutive years. General Assembly is also used as a synonym for the combined house of the Indiana legislature.

Germane – committee action and amendments to a bill must be germane (relevant) to the subject matter of the original bill in which they are inserted. Amendments or committee actions ruled not germane are disregarded and do not receive consideration by the House or Senate.

Gerrymander – To draw district boundary lines in a way that favors a particular candidate or political party or reduces the voting power of a minority group.

House Bill (HB) – A bill that is introduced by a State Representative and originates in the House.

House Enrolled Act (HEA) – A house bill that has passed both the House and Senate.

Interim Study Committees – Meeting during the months between sessions (interim), these committees study relevant issues and recommend legislation, if the committee members deem it necessary. The subjects often are suggested by legislators in the form of resolutions, but the committees are created by the Legislative Council.

Legislative Services Agency (LSA) – A non-partisan state agency whose duties include bill drafting, research, code revision, and fiscal, budgetary and management analysis. Employees of the LSA assist interim and standing committees, as well.

OMPP – Office of Medicaid Policy and Planning

Originating Chamber – The chamber, either the Senate or House of Representatives, in when a bill is first introduced.

Resolution – Generally used for congratulatory or honorary purposes, resolutions are introduced and voted upon by the Senate or House of Representative. Although they do not have the force of law when passed, resolutions also can suggest possible subjects for study in interim study committees or recommend future legislation. Most resolutions are considered symbolic and, when passed, denote the approval of the subject matter by the legislative body. Joint resolutions also can be introduced and considered by both the Senate and House of Representatives.

Roll Call – This refers to the voting procedure. Before electronic voting machines were installed in the House and Senate chambers, a clerk would read the roll call and the legislators would register their decisions by voice votes. Today, an electronic board lists the names of the legislators. Individual votes are registered when legislators select “aye” or “nay” votes via buttons on their desk.

Second Reading – After the bill has been printed, adding any amendments proposed by the standing committee, it is eligible for second reading. All legislators are allowed to offer amendments to the bill at this time.

Second Regular Session or Short Session – Occurring in even-numbered years, the second regular session (“short session”) can extend for up to 30 working (session) days, but not beyond March 15.

Senate Bill (SB) – A bill that is introduced by a State Senator and originates in the Senate.

Senate Enrolled Act (SEA) – A senate bill that has passed both the Senate and House.

Session Day – A session day constitutes a working say for the Indiana Senate and House of Representatives. Not necessarily consecutive calendar days, legislators may recess for varying periods of time between working days. It should also be noted that, under certain circumstances, a session day may span more than one calendar day.

Special Session – A special session may be called by the governor if he or she feels “the public welfare shall require” such a meeting of the legislature. A special session is limited to 30 session days during a period of 40 calendar days.

Standing Committees – These committees consider bills after they have been introduced. The Committees, which exists in both houses of the legislature, cover specific fields of interest such as agriculture, education, labor, public health and the judiciary. Committee meetings are open to the public so interested citizens and affected organizations can offer arguments for or against proposed legislation.

Stripping a Bill – Occasionally, the original contents of a bill are taken out and replaced with new language. This can be done in committee or by amendments. This procedure is only allowed, however if the new contents are relevant to the original subject matter of the bill.

Third House Meeting – A public meeting that takes place in a Legislator’s District. General on Saturday or Monday mornings during the months the Indiana General Assembly is in session.

Third Reading – This refers to the point at which a bill undergoes final passage or rejection by a roll call vote of the members of the House or Senate. A floor debate to discuss the merits of the legislation generally precedes the final vote.

Veto – After a bill has been passed by both houses in the same form, it is eligible to the governor to be signed into law. If the Governor rejects the bill, he issues a veto. A veto bill can be overridden by a constitutional majority (two-thirds) in both houses.

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Important Education Cases

Texas Case Law

Adam J.ex rel. Robert J. v. Keller ISD, 328 F.3d 804, 806 (5th Cir. 2003); Cypress Fairbanks ISD v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997). The party initiating the litigation or proposing the major change in the student’s programming carries the burden of proof in regard to the hearing officer’s determination that the student has been denied a Free Appropriate Public Education.

Angela L. v. Pasadena Independent School District, 16 EHLR 74, (S.D. Tex. 1989) aff’d 918 F.2d 1188 (5th Cir. 1990). The Court ruled that in order to be considered the “prevailing party” under the Handicapped Children’s Protection Act (HCPA), now the IDEA, the Plaintiff must only prevail on at least a minimal issue.

In the matter of C.F., 105 LRP 42505 (Tx.App.—Austin 2005): This case demonstrates the intersection between special education and the juvenile justice system. Although the student argued that the teacher had not complied with his BIP because she had not allowed him a “cooling off” period before confronting him, the appeals court allowed the student to be committed to TYC.

C.F. was a 15-year old student at a DAEP in Pflugerville. He was diagnosed with writing-specific learning disability, other health impairment due to ADHD, and emotional disturbance. On one particular day, C.F. wandered out of his classroom without permission and shoved the teacher tracking him three separate times, causing her to feel pain. The state charged C.F. with engaging in delinquent conduct by assaulting a public servant.

At the adjudication hearing, a psychologist testified on behalf of C.F. She stated that, because C.F. was not given a “cooling off” period, the DAEP had failed to properly implement the BIP. She further testified that the BIP was insufficient for C.F. The juvenile court referee, Judge William D. King, nonetheless found that C.F. had engaged in delinquent conduct. At the subsequent disposition hearing, C.F.’s parole officer testified that C.F. had already been through an unsuccessful stay in a residential treatment center and should instead go to TYC. C.F.’s expert, the same psychologist who had testified on his behalf at the adjudication hearing, testified that C.F. would benefit from therapy at a residential treatment center. The judge ultimately agreed with the parole officer, determining that TYC would be more helpful to C.F.’s mental health needs than another stay in a Travis County residential treatment center.

C.F. appealed to the Third Court of Appeals. The court reviewed the record and determined that placement in TYC was not an abuse of discretion. It seemed to be in the best interest of the child, because of the mental health treatment C.F. would receive in TYC and the prior unsuccessful placement in a residential treatment center.

Corpus Christi ISD v. Christopher N., C-04-318 (S.D. Tex. 2006). Court found in favor of school district, saying that a school district’s proposed changes were appropriate because they provided maximum exposure and interaction with nondisabled students, as is required by IDEA and parents must avail themselves of the continuum of services offered by a school district, if appropriate.

Dallas Indep. Sch. Dist., 39 IDELR 276 (SEA Tx. 2003): This case serves as an example that a school must be able to demonstrate that a student’s behavior problems are not a manifestation of the student’s disability before subjecting them to disciplinary action, such as removal to an AEP. In this case, the Hearing Officer found that the school had not met its burden to show that the student’s behavioral problems were not a manifestation of his disability. The Hearing Officer found that the student’s placement in the “Behavior Problems Unit” was inappropriate, as his emotional and behavioral problems became so severe that he could not receive FAPE. The Hearing Officer ordered that all disciplinary action taken against the student be voided and the student be removed from the Behavior Problems Unit.

Andrew S. was a 15 year-old 9th grade student who qualified for special education services under IDEA as a student with a learning disability and an emotional disturbance (diagnoses include: Major Depressive Disorder, recurrent with psychotic features; Bipolar Disorder; Dysthymic Disorder; Conduct Disorder with emerging anti-social traits, and a possible schizophrenic spectrum disorder). On Dec. 17, 2002, Andrew was involved in a disciplinary incident within his BP classroom. He lifted a chair and threatened to use it to strike the teaching assistant, but then put it down when asked. A few hours later, Andrew tried to exit the classroom, but the TA blocked the door. Andrew continued to escalate making verbal threats to the TA. Andrew again picked up a chair with both hands, held the chair above his shoulders, and brought it down toward the TA. As the TA grabbed the chair and sat it down, Andrew rushed toward the TA, stating that he wanted to get out of the room and ordered him to get out of the way. Andrew pushed the TA into the door, causing him to strike his head on the door jam. Andrew then came toward the assistant and began to choke him around his neck with both hands. Andrew was charged with assaulting his teacher with a weapon.

In Jan. 2003, an ARD committee conducted a manifestation review of Andrew’s assault on his TA and determined that the conduct was not a manifestation of Andrew’s disabilities. They determined that Andrew exhibited control and chose to engage in the assaultive behavior. The Hearing Officer found that Andrew’s placement in the Behavioral unit was inappropriate because he was not receiving any educational benefit. Andrew was failing all of his classes and displayed verbally and physically aggressive behaviors toward both peers and teachers. The Hearing Officer determined that as of Dec. 17, 2002, Andrew’s emotional and behavioral problems were so pronounced that he could not receive FAPE without the school simultaneously addressing his behavioral issues, which the BP unit did not do. The Hearing Officer found that the school failed to demonstrate that Andrew’s emotional disturbance did not impair his ability to control the behavior subject to disciplinary action and determined that Andrew’s behavior was a manifestation of his disabilities, and therefore not subject to discipline.

El Paso Independent School District , 142-SE-02-07 Nov. 10, 2007 (hearing level decision). Court held that the school violated the parents’ right to meaningfully participate in the development of their child’s IEP because they failed to provide speech services pursuant to the child’s IEP and failed to inform the parents that the speech services were not being given. School also failed to include current present levels of performance and measurable goals and objectives. “Without such vital information, the parents were deprived of important information regarding services and students progress. The parents meaningful participation was seriously impacted by this lack of information,” the court wrote.

El Paso Indep. Sch. Dist., 39 IDELR 16 (SEA Tx. 2003): This case is significant because it upholds the procedural safeguards that protect a student from removal to an AEP for behavioral problems without properly conducting an FBA. The Hearing Officer determined that, although the school had a BIP in place for the student, it had not conducted an FBA before removing the student to an AEP for more than 10 days for inciting a gang fight and had therefore violated IDEA.

Gregg was a 17 year-old student enrolled in the special education program. Gregg had a BIP developed in August, 2001 to address: (1) a pattern of behavior problems that interfered with his learning; (2) a pattern of behavior problems that interfered with others’ learning; (3) repeated removals from class due to misbehavior; and (4) a pattern of significant difficulty understanding or following school rules.

On Dec. 16, 2002, Gregg was involved in an incident which gave rise to a decision to remove him to an AEP (he was dancing and throwing up gang signs in front of two groups of students in order to incite a gang fight). Following the incident, an ARD committee found no connection between Gregg’s actions and his disability despite descriptions of his inability to follow school rules in his BIP. No FBA had been conducted at the time of Gregg’s removal.

The Hearing Officer found that the school was obligated to convene an ARD committee meeting no later than 10 days after removing Gregg to the AEP in order to develop an assessment plan, perform an FBA, and develop a BIP based on the assessment. The school argued that the behavioral assessments completed by Gregg’s teachers were sufficient in creating the BIP developed during Gregg’s IEP. The Hearing Officer disagreed and found that the school’s failure to conduct an FBA in the face of parental disagreement regarding the removal constituted a procedural violation of IDEA. Removals of students from their educational placements for extended time periods imposes additional burdens on school districts to protect the rights of students with disabilities to be educated in the least restrictive environment, to be educated to the greatest extent possible with their peers, and to have their behaviors, which interfere with their education, addressed appropriately.

Evolution Academy Charter School, 41 IDELR 229 (SEA Tx. 2004): IDEA requires that a student not be suspended for more than 10 days without first determining whether the student’s problematic behavior is a consequence of his or her disability and completing a Functional Behavioral Assessment (FBA). In this case, the hearing officer found that because a manifestation determination and FBA had not been conducted, and the child did not have an appropriate Behavior Intervention Plan (BIP) in place prior to the suspensions, she was denied educational services and was therefore entitled to compensation.

Veronica P. was a 16 year-old student in the 10th grade with learning disabilities, ADHD, and emotional disturbance. Veronica was suspended from school by Evolution Academy on Nov. 19, 2003 for possession of marijuana at school. Veronica’s mother was informed that Veronica could not return to school until an ARD committee meeting could be held. Veronica returned to Evolution on Dec. 15th and was placed in in-school suspension. Veronica had not been provided with any educational services by Evolution from Nov. 20, 2003 – Dec. 15, 2003 (14 days), and was, thus, denied educational services for 4 school days. Evolution had not conducted an FBA or implemented a BIP for Veronica prior to her suspension so her removal from school for more than 10 consecutive days constituted a change in placement.

The ARD committee completed the manifestation determination on Jan. 7, 2004, in which they determined that Veronica should remain in in-school suspension for the remainder of the year as an AEP and disciplinary consequence for possessing marijuana on school grounds. The committee based its determination on IEPs created at an Oct. 7, 2003 ARD meeting. However, the Hearing Officer determined that because Evolution failed to provide copies of these IEPs to Veronica’s parents and obtain ARD committee approval, the manifestation determination based on these IEPs was inappropriate and Veronica’s behavior must be considered a manifestation of her disabilities. Although Evolution might normally be allowed to use in-school suspension as its AEP, because Veronica’s behavior was a manifestation of her disabilities, the school was prevented from placing Veronica into an AEP for the remainder of the school year and required to convene an ARD committee meeting to address the deficiencies in Veronica’s IEP. Hearing Officer awarded 4 school days of compensatory educational services.

Fort Bend Indep. Sch. Dist., 45 IDELR 175 (SEA Tx. 2005): This case provides an example of a school denying a child participation in regular education classes due to behavioral problems, even though he was making academic progress in the regular education setting. Instead of providing him with 1:1 services to address the problematic behavior, the Hearing Officer supported continued placement in an alternative learning center.

The student was in 6th grade and had been diagnosed with ADHD, Oppositional-Defiant Disorder, and emotional disturbance. His behavioral problems included: initiating physical aggression towards other students without cause, class disruptions, using foul language in class, throwing tantrums including kicking and screaming, and excessive office referrals. In Nov. 2004, the ARD committee agreed to place the child in the Comprehensive Achievement Class (CAC) where the student’s behavior continued as before and may have actually deteriorated. In Feb. 2005, the ARD committee agreed to place the student in an alternative learning center. The student was allowed to return to one regular class in March, 2005 in an effort to gauge his ability to return to regular classes with the assistance of a Dedicated Aide. Although the child did well in the one class with the Dedicated Aide, he continued to exhibit poor behavior in his other classes. On April 6, 2005, the ARD committee agreed that the best placement for the student was in an alternative placement. The Hearing Officer determined that the child only behaved in his math class because he liked math and that the presence of the Dedicated Aide did not affect his behavior. Placement in an alternative program was deemed the most appropriate setting for the child and did not violate the least restrictive environment provisions of IDEA.

Lake Travis ISD v. M.L. bnf D.L. and M.L. A-06-CA-046-SS, A-07-CA-626-SS (W.D. Tex. 2007). Court held that a child with autism could be disciplined under the student code of conduct in that case, applying the Michael F. four-factor test to the student’s BIP.

Northside Indep. Sch. Dist., 41 IDELR 250 (SEA Tx. 2004): This case is an example of a school district not properly implementing the “child find” requirement of IDEA. The district denied the student FAPE by placing her in an AEP for more than 45 days after failing to timely identify her as a child in need of special education.

Casandra L. was a 15 year-old 9th grade student who was diagnosed with depression/bipolar disorder, ADHD, and asthma. The school was notified of Casandra’s first suicide attempt in Sept. 2003. In Nov. 2003, Casandra was expelled when her mother’s prescription drugs ended up in the hands of two other students. Casandra had brought the drugs with her to school in an effort to commit suicide a second time. Rather than place her in the JJAEP for her expulsion, the district placed her in a regular AEP, which she began attending in early Dec. 2003 after a 5 day stay in a psychiatric facility.

The Hearing Officer found that there was sufficient evidence to conclude that Casandra should have been found eligible for special education prior to the disciplinary incident in Nov. 2003. She was entitled to a manifestation determination, FBA, and BIP in connection with the disciplinary infraction which led to her placement in AEP. Although it was clear that Casandra’s suicide attempt was a manifestation of her disabilities, there is an exception to the stay-put of IDEA that allows the school to place a child in an AEP for up to 45 days for a drug infraction. Because Casandra had been in AEP for more than 45 days she was ordered returned to her regular high school immediately and entitled to compensatory individual counseling and educational services if necessary to help her catch up academically and regain lost credit.

Katherine Plumbly, et al. v. Northeast Indep. Sch. Dist., (W.D. Tex. 2006): In this case, the court held that a parent’s voluntary withdrawal of their child from special education classes revokes IDEA protections, including the stay-put provision, if their child is later expelled.

Maxwell was a high school student receiving special education services under IDEA due to a diagnosis of ADHD. In August of 2005, the school and Maxwell’s parents agreed that he would stop receiving special education services because his behavioral and academic performance had significantly improved since he began receiving special education services. Maxwell was recommended for expulsion on May 15, 2006 due to his disruptive activity while enrolled in the regular education program from August 2005 – May 2006.

The court found that after Maxwell’s parents agreed at the August 2005 Due Process Hearing that Maxwell would no longer receive special education services under IDEA, Maxwell lost the procedural protections afforded to children with disabilities under IDEA. The fact that Maxwell filed a request after his recommended expulsion for a Due Process Hearing with the TEA regarding whether he qualified as a child with a disability under IDEA supported the position that Maxwell lost his IDEA procedural protections after his parents and the school reached their settlement at the August 2005 Due Process Hearing. The school’s expulsion was allowed to stand.

Richardson Independent School District v. Michael Z. 2007 WL 2381250 (N.D. Tex.) the district court in the Northern District of Texas addressed the issue of whether residential placement was the LRE for a child with multiple disorders and severe behavioral issues including sexually inappropriate behavior and physical aggression. Slip Op. In considering whether the residential placement was appropriate under the IDEA, the court noted: "Despite the statutory preference for mainstream placements, the IDEA recognizes that some disabled students need full-time care in order to receive educational benefit." Indep. Sch. Dist. No. 284 v. A.C., 258 F.3d 769, 774 (8th Cir. 2001). In such cases, "[a]nalysis must focus ... on whether full-time placement may be considered necessary for educational purposes, or whether the residential placement is a response to medical, social or emotional problems that are segregable from the learning process." Kruelle v. New Castle County Sch. Dist., 642 F.2d 687, 693 (3d Cir. 1981). Slip at 12. On this issue, the Court concluded that the student “could achieve no academic progress short of residential placement” and that while, unlike the student in the present case, her placement had a medical purpose, the purpose “was inextricably intertwined with the behavior and educational problems Leah had." Id.

Robinson Indep. Sch. Dist., 45 IDELR 128 (OCR, So. Div., Dallas, Tx - 2005): This case provides an example of the specificity needed when developing a student’s BIP. The Office of Civil Rights found that the district did not violate Section 504, or Title II of the ADA when it suspended a special education student for profanity, smoking, and dress code violations because his BIP did not say that the child could not be placed in out-of-school suspension for Code of Conduct violations.

The student was a 10th grade male observed as having aggressive behaviors, anxious/agitated behaviors, and noncompliance/oppositional behaviors. The student received a total of 9 days out-of-school suspension between Sept. 21, 2004 – Mar. 29, 2005 for offenses such as verbal profanity, threatening a teacher, inappropriate / rude behavior, lack of cooperation, and initiating a fight. The principal, assistant principal, and the student’s teachers attempted to implement behavior interventions from his BIP prior to suspending him from school. The student’s BIP did not specifically address whether the student could be placed in in-school suspension or out-of-school suspension. The Office of Civil Rights, therefore, found that the school did not fail to comply with the student’s BIP when assigning him to in-school and out-of-school suspension and that the disciplinary sanctions were consistent with the student’s IEP. The school did not treat the student differently than other students, on the basis of his disability, regarding the severity and immediacy of disciplinary sanctions received.

Ron J, as next friend of R.J., a minor child v. McKinney Indep. Sch. Dist., et al., 46 IDELR 222 (E.D. Tex. 2006): This case, and the one that follows, are significant because they demonstrate the procedural process parents must abide by in order to receive the services they desire for their children. In this case, although the school had not performed a manifestation determination prior to expelling their son, the parent’s withdrawal of their son from school, and refusal to consent to the evaluation needed to conduct a manifestation determination, resulted in a finding that the district had not violated Section 504 or IDEA.

R.J. was a 6th grade student with ADHD who attempted to set a fire in the school’s bathroom. R.J.’s primary compliant was that he was expelled without a Section 504 hearing. The Court found that although a district’s failure to adhere to IDEA’s procedural requirements may be adequate grounds by themselves for holding the district liable, procedural errors in and of themselves do not automatically constitute a denial of FAPE. Rather, only those procedural inadequacies that result in the loss of educational opportunity or seriously infringe the parents’ opportunity to participate in the IEP formulation process warrant relief. The Court found that R.J.’s parents’ voluntary withdrawal of R.J. from school prior to any hearing operated as a waiver of their right to proceed under IDEA.

San Antonio Indep School Dist., 17 EHLR 1168 (SEA TX 1991). A district was required to incur a minimal, nonrecurring expense necessary to make a local school closest to the home of a student who used a wheelchair accessible. The district’s decision to place the student at a middle school that was accessible to wheelchair uses was impermissibly based upon physical accessibility only, rather than the student’s needs. Moreover the expenditure would benefit not only the student but the larger constituency of all wheelchair users as well.

Tomball Indep. Sch. Dist., 4 ECLPR 705 (SEA Tx. 2005): This case is an example of parents being reimbursed by a school district after having removed the student to a private placement. The parents tried to cooperate with the school and made the student available for evaluation even after the school suspended her for problem behaviors. Because the parents had followed all of the proper procedures and the district still denied the student a least restrictive learning environment, the Hearing Officer found that the district denied the student FAPE and ordered them to reimburse the parents for private placement.

M.R. was a seven year-old with Down syndrome attending regular kindergarten classes. She exhibited behavioral problems including: hitting, kicking, and choking other students, hugging other students too hard, and not staying seated in the teaching centers. M.R.’s parents requested a behavior plan be implemented, but were denied because M.R. was not a special education student. M.R. was given in-school suspension on Aug. 31, 2004 after she hit a student on the side of her face and made her cry and then later pushed another student in the chest and when told to stop, turned and grabbed the student by the neck, shook him, and hit him in the eye. M.R. was given out-of-school suspension on Sept. 3, 2004 for kicking another student. M.R.’s mother requested an ARD committee be convened and an IEP and BIP be developed, but was denied by the school who claimed that this could not be done until M.R.’s evaluation had been completed. The principal proposed that M.R. be placed in the developmental special education class, indicating that M.R. could not stay in her regular education class. M.R.’s mother determined that the developmental class was not appropriate for M.R. and kept M.R. home.

On Sept. 15, 2004, the district conditioned M.R.’s return to school on her parents consenting to the interim program suggested by the school principal: a temporary placement in its special education developmental class with some inclusion. Because M.R.’s parents had not been notified of the length of her suspension, they had enrolled her in a private school on Sept. 8, 2004. M.R.’s parents continued to cooperate with the district and made M.R. available for purposes of completing her evaluation even after placing her in a private setting. They also attended an ARD meeting on Sept. 27, 2004 where the school determined that M.R. had not been successful in the general education classroom and proposed that she attend special education classes 12.5 hours a week, developmental classes for functional living skills 3.75 hours per week, and general education classes for 12.5 hours per week.

The Hearing Officer found that equitable grounds for awarding tuition reimbursement existed in this case because M.R.’s parents requested special education and related services while she was in the public school, fully cooperated with the school district concerning M.R.’s evaluation, attended and participated in the Sept. 27, 2004 ARD committee meeting, and considered the school district’s proposed educational program and placement. The ARD committee did not properly consider less restrictive options for M.R.’s educational placement, including the provision of an aide for M.R. in the general education setting and/or co-teaching by a special education teacher in the general education setting.

Transitional Learning Community v. Metropolitan Life Ins. Co., 913 F. Supp. 504 (S.D. Tex. 1996). Pursuant to 28 U.S.C. § 1961, an award of post-judgment interest to the prevailing plaintiff is mandatory.

Wilmer-Hutchins Indep. Sch. Dist., 43 IDELR 166 (OCR, So. Div., Dallas, Tx – 2004): This case demonstrates that the school is not necessarily required to provide a student with 100% of his assignments during placement in an AEP. As long as the school provides a student with most of his or her assignments and the student is also provided with work from the AEP teacher, the school will not be found to have violated FAPE.

The student was placed in an AEP for 30 days for fighting with another student. The ARD committee convened within 10 days of the decision to remove the student and determined that the behavior was not a manifestation his disability (mental retardation). The time period for placement in the AEP was extended due to additional disciplinary infractions and the student ended up spending a total of 33 days in the AEP.

The student’s primary complaint was that the school failed to provide educational services after placing him in an AEP. The student stated that he received his assignments about half of the time and was given written assignments from the AEP teacher the other half of the time. OCR determined that this did not violate the student’s right to FAPE.

The student also claimed that his time at the AEP was extended because his BIP was not implemented properly, which constituted a violation of Section 504. The student claimed that he was placed in a small supply closet across the hall from the classroom when he was very disruptive or distracted. However, because the student did not identify which items in his BIP were not implemented and the school asserted that placing the student in the closet was consistent with the student’s BIP positive behavior strategies of removing distractors, permitting the student to remain in a quiet, non-threatening, non-stimulating place in order to regain self-control, OCR found that there was insufficient evidence to support an allegation of a violation of 504.

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