Special Education Law

New Jersey Anti-Bullying Law May Expire

2012-02-01T05:32:00.000-08:00

New Jersey's Anti-Bullying Bill of Rights is landmark legislation requiring public schools to take an active role in preventing and reducing bullying and student-on-student harassment. New Jersey's constitution requires that legislation mandating expenditures be funded. A Council on Unfunded Mandates has the responsibility for review of such challenges to legislation. The requirements for implementation of the anti-bullying law has met with a press campaign and lobbying by school administrators on several grounds, including a challenge to training and staff requirements as unfunded mandates. On Friday, January 27, 2012, the Council announced that the anti-bullying law is an unfunded mandate. The rationale released focused upon the specific language of the law, which did not pass muster. For example, the law directs establishment of a fund, for which no funding method was provided. The law will expire when the Council's decision is formally issued - usually within sixty days. In the interim, the fate of the legislation depends entirely upon the political intentions of the governor and legislators of New Jersey. The bill could be redrafted to meet the objections of the Council. It could be funded. It also could be couched in the language of students' constitutional rights because state unfunded mandate law cannot be employed to undermine legislation necessary for protection of for federal rights.

Eastern District Pa: Student Allowed to Pursue 13 Year FAPE Claim

2011-12-14T20:48:00.000-08:00

In a case handled by Ilene Young Law Offices, Centennial School District v S.D. et al, the student won the right to pursue a denial of FAPE claim extending 13 years - from kindergarten through 12th grade. The ruling came in a menorandum opinion and order on Parents' preliminary motion for judgment on the record/summary judgment on the issue of the applicable time limit on the student's claim. S.D. and his Parents argued that the Parents were unaware of S.D.'s special education rights as a result of the District's failure to comply with IDEA's mandates. Agreeing that Parents could not be charged with constructive knowledge where the government entity charged with providing that knowledge had failed to do so, the Court ruled that the "know or should have known" date occurred no earlier than the date when evidence of actual knowledge was available. The decision, found here, is part of an ongoing case, resulting from the district's appeal of a hearing officer's due process decision for the student which had limited the period of the claim to two years, and awarded full compensatory education for those two years, as well as an independent evaluation. In an earlier decision on the District's motion to dismiss the student's counterclaim, the Court granted the student the right to proceed on damages claims under 504, the ada and the fourteenth amendment to the U.S. Constitution. That decision is reported earlier in our blog.

Parents Denied Fees Despite Significant Legal Victory Due to Ineligibliity

2011-11-22T05:08:00.000-08:00

In Lyons v Lower Merion School District, the parents and their counsel achieved a significant legal victory, by establishing that: 1) Parents have the right to bring a due process request on the sole issue of a request for an independent educational evaluation (IEE); 2) A resolution of an IEE request does not bar future IEE requests; and, suggesting 3) Hearing Officers may have authority to interpret agreements between Districts and Parents. The federal appeal followed a Hearing Officer dismissal of the Parents complaint. As a result of the federal decision, Parents were given their 'day in court.' At the hearing, it was found that the child was not eligible for special education.

Following the due process hearing, Parents petitioned the court for reimbursement of attorneys fees as prevailing parties because of the legal victory in achieving the right to a hearing. The court denied the fee request. In an opinion which acknowledges the "chilling" effect of the denial, the court explains that it is constrained by the language of the IDEA, which permits attorneys' fees to be awarded only to the parent of a child with a disability. Because the child was ultimately determined to not be disabled, the statute did not permit the award of fees.

Bullying and Disabilities Harassment Seminar

2011-10-01T14:07:00.000-07:00

The Pennsylvania Bar Association's "Legal Services for Exceptional Children" committee is moving its annual conference from Harrisburg to Lancaster, Pennsylvania, this year, making it more accessible to the Philadelphia suburbs. I will be presenting an update to my 2007 seminar on the legal options available to victims of bullying and disabilities harassment. We are joined, this year, by Dave Zellis, Esquire, Bucks County's high-powered former first district attorney, now in private practice, who shares our passion about curing the epidemic of school bullying. He will discuss the role of the police and district attorney's office in addressing and preventing incidents of school based harassment. The conference will be held on October 17th. If you attend, stop by and say hello. For information about the conference, which is being held by the Pennsylvania Bar Institute, click here.

Pa Hearing Officer: Generic Life Skills Program Violates Both Section 504 and the IDEA

2011-09-09T05:21:00.000-07:00

In the recent case concerning the Central Bucks School District, Pennsylvania Hearing Officer Anne Carroll found that a student's placement in the school's life skills program, without consideration of the specific needs of the individual student, violated both the IDEA and Section 504 of the Rehabilitation Act. Parents were awarded full compensatory education for the period the faulty IEP was in effect. This due process case, which was brought by Ilene Young Law Offices on behalf of the parents, concerned a student with multiple disabilities, who, due to medical complications in his past, was developmentally younger than his chronological age. He had benefited greatly from inclusion opportunities with typical peers at elementary level but was abruptly shifted to inclusion with much older peers, by the District, when the District's intermediate level program was discontinued. Arguing that the District did not impose 'grade skipping' on nondisabled students, and that the student had simply been placed in a classroom the District had available without consideration of his individual needs, Parents claimed that the District violated not only the IDEA but discriminated against the Student based on disability. Finding for the Parent on all claims, the Hearing Officer stated: "The inference is inescapable that the District believed it was on no consequence to student to be with a group (of) children at the developmental level of a fifth grader or a seventh grader, and the same considerations that would preclude advancing a typical student two grade levels with no real preparation does not apply to a child with severe and pervasive disabilities."

Districts Not Entitled to Second Bite at the Evaluation Apple when Denying IEE Requests

2011-07-15T07:13:00.000-07:00

The Eastern District, in Z. v Bethlehem Area School District, addresses an issue that frequently arises from Parents' IDEA right to request an independent evaluation if they disagree with the District's evaluation.

In the M.Z. case, Parents requested an Independent Educational Evaluation (IEE) after the District's reevaluation determined that the student was no longer eligible for special education. The District's denial of the parents' request resulted in a due process hearing. The Hearing Officer found that the District's evaluation was out of date and inadequate for ongoing programming. Nevertheless, she concluded that the parents were not entitled to an IEE, but ordered, instead, that the District update its own evaluation. (ODR # 01125-09/10)

The Eastern District's Judge Sanchez reversed the hearing officer, finding, as a matter of law, that a factual determination that a district evaluation is inadequate requires an award to parents' of an independent educational evaluation at district expense, not an order for the district to expand its own evaluation.

Student's Compensatory Damages Claims Move Forward in Eastern District

2011-07-15T06:07:00.000-07:00

The right to compensatory damages beyond the remedies available to a student under IDEA is a hot topic in special education law. In the event of denial of FAPE, IDEA provides that a student is entitled to compensatory education to recoup only the loss of educational benefit. Expansion of damages beyond this definition are not available under IDEA. Although a denial of education or discriminatory exclusion can result is severe losses to an individual, compensatory damages resulting from a student with a disability's experience with a school district have been held to be unavailable under other laws if the facts of the claim fall under IDEA. Claims for damages beyond compensatory education must therefore be based on intentional discrimination unrelated to special education, or fall distinctly within other laws. The limited number of cases where claims for consequential, or compensatory damages, have survived motions to dismiss are therefore rare. They are also highly instructive to parent representatives.

The recent decision by Magistrate Judge Rice in Centennial School District v S.D. is one of those cases. In this case, handled by my office, the District initiated the Federal Court action, appealing a due process decision which was favorable to the student. In response to this appeal, student counterclaimed for damages. The District filed a motion to dismiss all of the damages claims. The Court denied the motion in part, and allowed the student's claims for damages under Section 504, and the ADA - based upon specific discriminatory acts -and substantive due process - based on District policies and failure to train/supervise- to proceed to trial.

Pennsylvania House Proposes Individuals with Disabilities Bill of Rights

2011-06-08T07:56:00.000-07:00

Newly proposed state legislation, titled The Individuals with Intellectual and Developmental Disabilities Bill of Rights Act, was referred to the Human Services Committee of the State House of Representatives on May 23, 2011. Introduced by Representative Murt (R), the bill establishes the rights of individuals with disabilities to full integration in Pennsylvania communities, including the choice of place of residence, and provides for the Department of Welfare to develop a comprehensive plan to effectuate this integration. The expansive findings include the statement that it is the policy of the Commonwealth that all 'programs, projects and activities operating in the Commonwealth' be operated in a manner consistent with the goals of the bill, which include individualized planning for full participation in society.

Important Bullying Issue Scheduled for Argument in the 2nd

2011-05-12T10:35:00.000-07:00

Currently scheduled for oral argument in the 2nd Circuit Court of Appeals (New York) is Zeno v Pine Plains School District, a Title VI based bullying case. Anthony Zeno was a young black student attending a uniformly white suburban high school where he was subjected to ongoing racial bullying and harassment. He obtained a jury award in excess of one million dollars for enduring years of pernicious bullying.

To prove a claim under Title VI, a Plaintiff must establish the District's 'deliberate indifference' to the ongoing violation of his rights. Deliberate indifference is generally proven through evidence of inaction in the face of knowledge of the violation. In Zeno's case, the District had taken some action in response to each alleged incident by disciplining individual students. It contended that, when it disciplined individual students, the harassment by those particular students ceased. (Although this was not clearly supported in evidence.) However, the harassment by Zeno by other students did not abate as a result of these individual efforts.

Despite the District's disciplinary actions, the jury found in favor of Zeno, because the District should have known that the actions were ineffective.

The issue on appeal is therefore: Does a school district’s disciplinary actions against individual students preclude a finding of deliberate indifference, where those disciplinary measures did not prevent continued acts of harassment by other students? The Department of Justice has weighed in with an amicus brief in support of Zeno.

The Eastern District of New York Stands Up to Schoolyard Bullies

2011-05-03T06:45:00.000-07:00

Senior Judge Jack Weinstein, of the E. D. of New York, upheld the rights of parents of a bullying victim to pursue federal redress in T K v New York City Dept of Education. The decision, issued April 25, 2011, provides a thoughtful investigation of the phenomenon of bullying, surveying social sciences research as to causes and effects, as well as caselaw across federal circuits. In response to the District's assertion that providing T.K.'s parents with the right to federal redress for bullying would 'open the floodgates' to lawsuits by similar victims, the Court responded that its opinion was merely requiring schools to do what the (U.S.) Department of Education has told them to do for years. (at page 49) The case was brought by well known parent attorney Gary S. Myerson, Esquire.

Eastern District Opinion Provides Section 1983 Walkthrough

2011-04-15T06:06:00.000-07:00

For those who are unfamiliar with video and computer games, the term 'walkthrough' refers to a written roadmap which guides the player, step by step, through a complicated process of a game, solving puzzles and avoiding pitfalls encountered along the way. Bringing damages claims against school districts for violations of the rights of students and parents is just such a complicated process. A newly issued opinion in a civil rights claim against a local municipality, Gorman v Warwick, provides a helpful walkthrough to pleading mixed federal and state claims. The opinion, issued by Judge Joyner in response to a 12(b)(6) motion to dismiss in an arrest case, carefully maps the pleading requirements for Section 1983 and underlying Fourteenth and Monell (policy and practice) claims, with a bonus mini-game walkthrough the pleading of exceptions to sovereign immunity.

Supreme Court Addresses Government Liability for "Failure to Train"

2011-04-05T06:18:00.000-07:00

Government agencies and their employees are protected against state civil suit by sovereign immunity. Although liability may exist under federal law, the avenues by which a federal claim may be brought are very narrow. The Supreme Court of the United States (SCOTUS), in Connick v Thompson, further narrowed these avenues.

This case is instructive on both pleading and evidentiary bases. Previous caselaw held that the government may be liable for a violation of individual constitutional rights by displaying deliberate indifference to those rights through failure to train employees who, by the nature of their governmental position, were likely, without training, to violate individual rights. It was on this theory that Thompson had brought suit. He had been unjustly convicted of murder because prosecutors had knowingly subverted their obligations to share exculpatory evidence with the defense (the "Brady" reguirements). The core facts of the case were not in dispute by the time it reached the SCOTUS: prosecutors had hidden exculpatory blood evidence from defense counsel and proceeded to wrongfully convict Thompson of murder. He served many years in prison until the blood was discovered by appellate defense. Shortly thereafter, a fellow attorney in the prosecutor's office, diagnosed with terminal cancer, admitted that another man had confessed to the crime at the time of the prosecution. Thompson established his failure to train claim in the lower courts and received a substantial award of damages. The case was appealed to SCOTUS by the prosecution.

The majority opinion, penned by Justice Thomas and subject to vigorous dissent, held that, under these facts, the prosecutor's office was not liable for failure to train for the one violation of Brady. The opinion is specifically grounded in "Brady" situations and the training and licensing of attorneys. Nevertheless, it gives clear guidance to those making 'failure to train' claims for violations of students rights within the public schools.

E.D. PA: Hearing Officers Must Assume Jurisdiction to Determine Settlement Status

2011-03-29T05:22:00.000-07:00

In a recent decision, the Eastern District has overturned a Hearing Officer's decision that barred a Parent's due process complaint because the District alleged the existence of a prior settlement agreement. The opinion in I K v School District of Haverford Township holds that hearing officers must assume jurisdiction to determine the actual status of a settlement alleged as a bar to a complaint.

In the IK case, Parents brought an earlier due process complaint and were assigned a hearing date. While the date was pending, they engaged in settlement discussions with the District and approached a final settlement. As is common practice, the parties informed the hearing officer of a provisional settlement, not yet finalized, and canceled the hearing dates. The hearing officer notified the parties that he would hold jurisdiction for thirty days and then dismiss the complaint, which he did. Thereafter, when the parties were unable to finalize an agreement, the parents filed a second complaint. It was assigned to a second hearing officer. The District moved to dismiss the complaint, claiming it was barred by the earlier dismissal. The Hearing Officer determined that whether the complaint could go forward depended upon whether there existed a valid settlement agreement, then went on to determine that a Hearing Officer did not have jurisdiction to determine the existence of a settlement agreement and dismissed the complaint. Parents appealed to the Eastern District Pennsylvania Federal Court.

The Court held that: 1. For purposes of determining a statute of limitations for filing with the federal courts, the 'dismissal' by the first hearing officer did not have the status of the 'decision on substantive grounds' to which Parents are entitled under IDEA; and 2. A hearing officer must assume the jurisdiction to determine the existence of a settlement agreement when it is alleged as a bar to a complaint. Notably, Judge Dalzell quoted favorably Judge Davis's very apt recent statement in Dudley, where, addressing the issue of the Federal Court's authority to enforce special education settlement agreements, the court observed "state educational agencies seem to consistently enforce settlement agreements in school districts' favor to preclude parents from bringing particular due process complaints,without undertaking analysis of their own jurisdiction." Dudley, 09 cv 5576 (ED PA 2011) at 7, quoted by IK v Haveford, 10-4397, slip opinion unnumbered (ED PA 2011)

The case can be found here: IK v Haveford.

Eastern District Decision Further Defines "State Created Danger" in School

2011-03-23T05:22:00.000-07:00

The School District of Philadelphia's South Philadelphia High School was in the news in early 2009 when ongoing bullying and harassment against students of Asian descent escalated to open attacks. In a suit filed shortly thereafter, one plaintiff victim, the mother of a student who was attacked while picking up her child, brought claims against the District and its directors under Section 1983, claiming a violation of her constitutional rights to due process and equal protection. In an opinion issued in December of 2010, the Court dismissed the plaintiff's complaint for failure to state a claim. In doing so, the opinion helps further define the pleading requirements for plaintiffs who seek redress for systemic school bullying through a 'state created danger' claim. The case is particularly instructive because the facts were compelling, and the plaintiff's allegations that the District knowingly fostered a discriminatory culture within its school were based on facts already extensively aired in the press. The general popular consensus was that the District should have acted to intervene before matters reached the boiling point that triggered the attacks. Nevertheless, noting that Third Circuit precedent requires that a plaintiff allege 'affirmative acts' by the government, rather than a failure to act, the court went on to find that the plaintiff's allegations of "fostering a culture" and "creating an atmosphere" detrimental to Asian-Americans were "a vain attempt to make (the District's) actions sound affirmative." The Court held that: "Recharacterizing inaction as action, however, does not state a viable claim under Section 1983," and explained that failure to discipline or remove known perpetrators amounts to 'inaction' rather than 'action'. The Plaintiff's equal protection claim was also dismissed for failure to allege facts in support of racial animus as a motivating factor for the District's actions.

The opinion can be found here: Tieu v School District of Philadelphia.

Interactive Presidential Conference on Bullying: March 10, 2011

2011-03-09T05:04:00.000-08:00

A presidential summit to discuss bullying prevention will be held, live, on March 10, 2011, via web broadcast. This summit is part of the Obama administration's ongoing bullying prevention initiatives. The government agency responsible for the anti-bullying program is the Department of Health and Human Services. Its "stopbullying.gov" website provides links to studies, legal guidance, and other information of use to parents and advocates.

The agenda for the conference, which is described as being interactive, can be found here.

Technological Access to Classroom from Home

2011-03-02T05:15:00.000-08:00

When students with disabilities find it difficult to physically adhere to their public school schedule, homebound instruction is often the only option districts offer their parents. In Pennsylvania, homebound instruction is a regular education program, which provides for a teacher to visit the home for an average of five hours per week, to deliver instruction in the core curriculum for the student's grade level. The Pa. Department of Education requires districts to report and track students receiving homebound instruction to guard against homebound substituting for an individualized special education program. Nevertheless, due to lack of alternatives, homebound instruction frequently becomes a student's sole educational program by default. Innovative parents and advocates have argued for remote access technologies like skype or webcam to be employed as a method of allowing the student, homebound for disability reasons, to participate in public school classes. While some districts have been accepting of these technologies, others have resisted. In disputes, the districts argue that remote access from home does not meet the least restrictive environment requirements of IDEA, proffering, instead, in-school alternatives which may not have the same flexibility to meet the student's needs. Parents argue that webcam or skype access is less restrictive because it allows the student ongoing participation in the daily classroom curriculum and instruction with his peers.

In a recent decision from a Pennsylvania Special Education Hearing Officer, Hearing Officer Jake McElligott sided with the pro-technology side of this argument, ordering a district to provide webcam access to the classroom for a student from his home. The student suffered from HIDs, a syndrome which causes debilitating recurrent symptoms for an extended period of time at least once a month, during which the student was unable to receive instruction or leave home. The school district agreed to provide a webcam of the classroom, but would only allow it to feed to a private "webcam room" on site in the school, located next to the nurse's office. The student was unable to comfortably access this room during the acute phase of his cyclical illness. The Parents' research uncovered a technology which would provide the feed to the student's home and requested that the District provide it. The dispute arose from the District's refusal. The Hearing Officer found that the student had been denied a free appropriate education in the least restrictive environment due to the District's refusal to incorporate necessary technology in development and implementation of his program.

This decision is important because it applies the least restrictive environment analysis to technological access to the classroom. It is also important, within Pennsylvania, in a small but slowly growing body of decisions holding that homebound instruction is not a substitute for an individually developed program and may constitute a denial of FAPE. This is contrary to nonprecedential earlier decisions by the now defunct Pa. Special Education Appeals Panel which trended to the contrary, interpreting parent's acceptance of homebound instruction as a waiver of rights to FAPE.

The decision may be found at:
In Re: A Student in Southern York School District

Cash for Kids Judge Convicted, Free Pending Sentencing

2011-03-01T04:57:00.000-08:00

The Luzerne County Cash for Kids scandal has been reported on earlier in this blog. Key player Luzerne County Common Pleas Court Judge Mark Ciavarella, and others, were subject to a scathing report following an investigation triggered by the Juvenile Law Center, which succeeded in having scores of unjust adjudications of juveniles overturned. The following video report from Democracy Now. Org tells the awful story:

On February 18, 2011, a Jury found Judge Ciavarella guilty on 12 of 39 counts against him. The charges of which he was convicted included racketeering, racketeering conspiracy, mail fraud, money laundering conspiracy, conspiracy to defraud the U.S. and filing false tax returns. He was found guilty of taking just under a million dollars in kickbacks from the builder of the juvenile facility to which he sentenced children unfortunate enough to come before him. He was allowed to remain free pending sentencing. The defense declared victory, attorney Al Flora claiming that the jury "rejected 95 percent of the government’s case.” Click HERE for the Associated Press story.

Sentencing is still to come.

New House Bill Aims to Address Special Education Transition

2011-03-01T04:23:00.000-08:00

February 10, 2011: U.S. Representative Gregg Harper, from Mississippi, has introduced a three bill legislative package in the House, aimed at refocusing federal program coordination for children with disabilities on outcomes beyond school. The package, collectively named Transition toward Excellence, Achievement and Mobility, (the "TEAM" Act) is intended to promote coordinated interagency transition planning. There are three component bills, the TEAM-education act, which puts transition coordinators into service within the school districts, the TEAM-empowerment act, which puts adult transitional services into place for adults and their families, and the TEAM-employment act, which establishes services to promote social engagement, community living and the ultimate goal of employment at a living wage.

Congressman Harper is the parent of a child with Fragile X syndrome.

The bills can be read at this link: TEAM-ACT

LRE Analysis Found Irrelevant Where Student Placed in Special Ed Kindergarten 1/2 Day

2011-02-17T05:37:00.000-08:00

In a recent opinion in the Eastern District Federal Court, Judge Anita Brody held that a least restrictive environment argument was irrelevant where a student was placed in an autistic support kindergarten placement for 1/2 day and a regular education kindergarten class for 1/2 day. Despite the fact that the 1/2 day special education placement was composed solely of students with disabilities, the Court held that, because the 1/2 day regular kindergarten was the same kindergarten placement as that provided to regular education peers, no LRE analysis was required to be undertaken. The dispute involved the District placing the student, over parents' objection, in a 1/2 day special education kindergarten classroom in addition to the agreed 1/2 day regular education kindergarten class his peers attended. The Parents argued that the student was not in need of so restrictive a setting to obtain educational benefit. Basing its rationale upon the Congressional intent to prevent 'removal' from regular education, the court found the 1/2 day autistic support to be supplemental and went on to hold that supplemental services are not subject to LRE analysis.

J.L. v North Penn School District NOTE: The original decision provides the full name of the minor, which will not be given here because subject to possible redaction order. This is a temporary link to the "recent decisions" of the Eastern District.

Federal Court decides in favor of District in "pull-back" case

2011-02-17T05:08:00.000-08:00

On February 4, 2011, Judge Robreno of the Eastern District Pennsylvania Federal Court decided in favor of a district, and against the Parents, in a case where the District sought to "pull-back" a student previously District-placed in a private school. In J.E. v Boyertown Area School District , a student with an aspergers diagnosis and learning disabilities had been placed at an approved private school favored by parents. The district then developed its own in-house autistic support program, sought a reevaluation of the student, and proffered an IEP for the new program, which was to be housed in the public high school. Parents disapproved the IEP, contending, among other things, that the high school environment was not conducive to their child's obtaining educational benefit. The hearing officer, and later the court, decided against the parents, in an opinion which offers some guidance regarding two issues which are becoming prominent in IDEA cases:

Social skills deficits and bullying: The parents argued that the District's proposed program and placement did not do enough to protect the student from the future bullying which would be anticipated due to his social skills deficits. The court addressed this claim directly, holding that evidence of the parents concern was merely prospective, and that Districts are not required to 'prove that a student will not face future bullying at a placement, which is impossible.' at page 30 of 36

Expert testimony: For the second time this month, the Eastern District held that a parent's expert's testimony was of limited utility due, in part, to the fact that the expert was not familiar with the proposed placement and program. This would suggest that parents' experts need to visit and observe proposed programs and placements even when the student is not yet participating in the program, in order to offer a well-rounded opinion in support of parent's claims. It is frequently the practice of Districts to deny experts access for this purpose.

The link to the case, above, is from the "recent opinions" posting from the Eastern District clerk's office, and therefore temporary. If you find a broken link, please post or email and it will be corrected. Ilene

WWC Study Finds Saxon High School Math Ineffective

2011-02-15T05:06:00.000-08:00

As part of the education reform initiatives which also ushered in NCLB, the federal government created the Institute of Education Sciences and What Works Clearinghouse, which evaluates and coordinates studies on the effectiveness of special and regular education interventions in language arts and math. Information about the effectiveness of a program is then provided to the public through a "WWC Intervention Report". These reports are one of the few sources of unbiased information concerning the effectiveness of the programming private companies sell to School Districts for use with special education students. Unlike publisher-provided information, which is promotional and developed for use by the sales staff, these reports are peer reviewed and independent. They therefore are very useful and enlightening for Parents, their counsel and advocates, as well as Districts. One very popular intervention in use in Southeastern Pennsylvania Districts for High School Math remediation, Saxon Math, was recently found to be ineffective as a math intervention. The February 2011 report, SAXON HIGH SCHOOL MATH WWC, found the program to have no discernible effect on student achievement.

Eastern District Federal Court Assumes Jurisdiction to Enforce Special Education Hearing Officer's Order

2011-02-13T08:37:00.000-08:00

In a case decided February 2, 2011, Judge Harvey Bartle, III, CJ, held that the Federal Court had the power to enforce a hearing officer's order. While this may seem to be an obvious and necessary result, in fact this opinion addresses what has been an ongoing question in special education law. The confusion has arisen from the language of the IDEA which mandates that SEA's provide for implementation of orders resulting from due process. Districts have argued that this is jurisdictional and that only SEA's may address the implementation of orders. In rejecting the District's argument that jurisdiction over enforcement of hearing officer's orders is exclusively reserved to agencies designated by the state for that purpose, the Judge found this interpretation to conflict with IDEA's intention to provide an efficient judicial remedial scheme for violations of IDEA. Judge Bartle concluded that parents claiming district failure to comply with a hearing officer's order were "parties aggrieved" under IDEA, who therefore had the right to seek judicial intervention to enforce the order: "Adopting the School District's position would result in the existence [*12] of a giant loophole in the IDEA. Such a loophole would allow unfortunate delays in the resolution of important and immediate issues concerning a child's remedial education and generally open the door to significant mischief by a School District, neither of which, in our view, Congress intended." CHRISTINE DUDLEY, PARENT AND EDUCATIONAL DECISION MAKER FOR W.J.W., et al. v. LOWER MERION SCHOOL DISTRICT, 2011 U.S. Dist. LEXIS 10590 (E.D. PA)

Ninth Circuit reverses award of attorney's fees to school district

2011-02-08T17:49:00.000-08:00

One of the more controversial aspects of the IDEIA of 2004 was the 'reverse fee' provision, which permits school districts to recover fees against parents when the parents engage in litigation which is, or has become,“frivolous, unreasonable, or without foundation” 20 U.S.C. § 1415(i)(3)(B)(i)(II). Districts can also recover fees from the parents, or from their attorney, if the suit was presented for “any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” Id. § 1415(i)(3)(B)(i)(III). Noting that these circumstances are 'rare', the Ninth Circuit Court of Appeals recently reversed an award of fees the lower court had granted to a district,cautioning that the award of fees against parents and attorneys would have a chilling effect on the enforcement of educational rights under IDEA. The original fee award had been based upon both the frivolousness standard and the improper purpose standard. The appellate court overturned the lower court on both counts. In evaluating the reasonableness of an IDEA claim, the 9th Circuit cautioned the lower courts against making post-judgment evaluations of claims, and held that the reverse fee award is to be limited to cases where no viable claim in law existed at the time of filing. Regarding improper purpose, the court held that the list of improper purposes was to be strictly construed, noting, in dicta, that a parent's 'anger' was not an improper purpose under the act justifying a reverse fee award.
R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT - February 4, 2011 9th Circuit

"Cash for Kids" Luzerne County Judge's Jury Trial to Begin February 7, 2011

2011-02-03T04:41:00.001-08:00

Former Judge Mark Ciavarella, Jr is scheduled for jury trial on corruption charges for February 7, 2011 in Scranton, PA. Ciavarella is one of the key figures involved in the Luzerne County 'cash for kids' scandal. The scandal involved a scheme which placed profits resulting from the sentencing of children to for-profit juvenile facilities in the pockets of the judge. Many of these victims were initially referred to the juvenile system by their local school districts.

The United States Attorneys Office for the Middle District of Pennsylvania maintains a website to keep the public up to date on the unfolding events in the scandal.

The part the local school districts played in this scheme, through referral of discipline and special education behavioral programming responsibilities to the juvenile system, has yet to be fully explored. Student who have been harmed by the actions of their school district in referring them to the local juvenile system, resulting in incarceration or other unjust injury, are encouraged to speak with an education law attorney concerning their rights.

Zero Tolerance and School Referrals to Juvenile Court

2011-02-02T14:06:00.001-08:00

Zero tolerance and disciplinary policies in public school classrooms often lead to injustice, particularly for students entitled to special education. Districts too frequently avoid their responsibilities to appropriately program for these students, or protect them from bullying and, instead, call the police when students speak or act in response to provocation or frustration. Many of these cases result in pleas and probation, and the parents are left without recourse against the districts. A combined legal approach addressing the violation of the student's special education rights while defending the juvenile charges is often effective. Recently, Manali Arora, Esquire, of our office, who handles our juvenile practice, took one such case to trial, resulting in a not guilty verdict and harsh words, from the judge, to the district and prosecutors.

Judicial awareness of bullying and special education issues can be increased if, case by case, lawyers with an education law background endeavor to educate the court while vindicating the rights of their clients. The Juvenile Law Center of Philadelphia has studied the issue of school referrals to law enforcement and produced a monograph which can be found here: Federal Policy, ESEA Reauthorization, and the School-to-Prison Pipeline

Anyone whose child is facing such a situation is encouraged to email our office , or call 215-348-5448

Districts may not use RTI to delay or deny initial evaluations

2011-02-02T13:45:00.001-08:00

The federal Office of Special Education and Rehabilitation Services (OSERS) Office of Special Education Programs (OSEP) has issued a guidance letter outlining district's responsibilities in response to a parent's request for initial evaluation under IDEA. When parents request an initial evaluation for a suspected disability, the district must either agree with the parents and initiate a timely evaluation, or disagree and provide the reasons for the disagreement in writing. The districts may not take a wait and see approach while the student is offered regular education interventions under the RTI method in place in many districts. RTI (response to intervention) is a method of delivering, to all students including students at risk, research based instruction which is tiered based upon the level of intervention needed. It is not special education. The memorandum was issued in response to the fact that many districts were telling parents that their request for an evaluation would have to wait until after regular education RTI proved ineffective in remediating delays in achievement.

The memorandum can be found at the following link: rti memorandum

Special Education & Charter Schools

2011-02-02T10:54:00.001-08:00

A federal judge in the Eastern District of Pennsylvania awarded a student a stay-put injunction maintaining her in her charter school full inclusion program pending the outcome of due process proceedings. Following a dispute with a student's parent, the charter school had unilaterally disenrolled the student, arguing that the local school district would, by default, pick up the responsibility for the student's education. In a well-reasoned opinion, the court held the responsibility of a public charter school to be equivalent to that of a public school, including the requirements of prior written notice, and IDEA-mandated administrative procedures to resolve disputes. As charter schools responsibility toward students with disabilities has come increasingly under scrutiny, this case is one of the first to clearly address charter school special education responsibilities under state and federal law.

The opinion can be found at: R.B. v Mastery Charter School