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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