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Disability Discrimination

 

WHEN WILL A DISTRICT VIOLATE THE ADA AND § 504 STEMMING FROM ALLEGED PEER HARASSMENT?

Case citation:  C.L.v. Leander ISD, Dkt. No. A-12-CV-589-LY (Doc. 81), 2013 WL 6837741 (W.D. Tex. 2014) (unpublished).

Summary: C.L. attended school in the Leander Independent School District and was legally blind and autistic.  After withdrawing C.L. from the district, C.L.’s parents sued, claiming that over a four-year period beginning in kindergarten, C.L. was subjected to bullying by his peers. The parents sued under the Rehabilitation Act and the Americans with Disabilities Act (ADA). The lawsuit alleged that despite being informed by the parents of bullying, the district took insufficient steps to stop the harassment.

According to the lawsuit, C.L. reported that students had accosted him in the bathroom, yanked him out of the stall with his pants down, and touched him inappropriately.  Following this report, fifteen students were interviewed by the district and police.  No charges were initiated following the investigation.  The parents eventually withdrew the student from school and sued.  In response, the school district filed a motion requesting judgment in its favor prior to trial, arguing that the parents could not produce sufficient evidence to establish district liability under the ADA or the Rehabilitation Act.

Ruling:  The trial court granted judgment in favor of the school district on each of the parents’ claims.   To establish claims under the ADA and Rehabilitation Act, a plaintiff must demonstrate intentional discrimination on the part of the district.  Further, “facts creating an inference of bad faith or gross misjudgment are necessary to substantiate a cause of action for intentional discrimination under § 504 or ADA against a school district.” Allegations that educational authorities exercised professional judgment, even mistakenly, do not suffice unless they “depart grossly from accepted standards among educational professionals.”  According to the court, the ADA and § 504 do not create general tort liability for educational malpractice.

C.L. failed to present evidence creating a fact issue about whether the district was aware that C.L. was continuously bullied in the classroom or the bathroom and failed to take prompt remedial measures. The summary judgment evidence demonstrated that prior to the last bathroom incident, one incident occurred in the bathroom, and that was when C.L. was in kindergarten, over four years earlier. In addition, there was no evidence that any teacher or employee sent C.L. into a bathroom with a “known bully.” Further, the parents offered no evidence of any bullying reported in the fourth grade, until the bathroom incident reported was on December 15, 2010.

In addition, according to the court, school officials addressed each reported incident “quickly, appropriately, and professionally.” The record was replete with examples of the remedial measures that the district took at every turn in this case. Principals and teachers reprimanded offending students, called parents, met with C.L.’s parents, met with the class and discussed the issue, and generally tried to stop any bullying of C.L.  The court stated:  “These are not the acts of school officials exhibiting bad faith or gross misjudgment. Other than separating C.L. from other students at all times, the Court cannot imagine actions LISD could have taken to insulate C.L. from the sort of normal day-to-day interactions that occur between children.” None of the prior instances were sufficient to have alerted the district that C.L. would be physically, let alone sexually, assaulted in a school restroom. In addition, C.L.’s parents removed C.L. from the district after the December 2010 bathroom incident. Thus, the district never had an opportunity to put preventative measures in place to address that incident.   Because the evidence presented did not rise to the level of “bad faith or gross misjudgment” or “deliberate indifference” by the district, the trial court granted judgment in favor of C.L.

Comments:  As in the 5th Circuit case reported above, the focus in this case of alleged bullying is on the district’s response to what it knew about.  The school responded “quickly, appropriately and professionally.”  The lesson for school administrators is clear: investigate, and document your investigation; take corrective action, and document your action; monitor the situation, and document your monitoring. And don’t be responsive only. Focus on proactive solutions to the issue of bullying.  Prevent it as much as you can. When prevention fails, respond “quickly, appropriately and professionally.”

 

FAPE

 

DID THE SCHOOL DISTRICT PROVIDE THE STUDENT WITH AN APPROPRIATE PROGRAM?

Case citation:  Studentv. Conroe ISD, Dkt. No. 025-SE-0913 (Hearing Officer Lucius D. Bunton, December 20, 2013).

Summary:   The student attended school in the Conroe Independent School District and received a full individual evaluation (FIE) from the district in the 2011-2012 school year. The district concluded that the student was eligible for special education and related services based on eligibility criteria of autism, other health impairment (OHI), and speech impairment. An evaluation for occupational therapy services was completed in the fall of 2012 and reviewed at Admission, Review, and Dismissal (“ARD”) committee meetings beginning in December of 2012, as well as subsequent ARDs. The committee considered the evaluation and determined that the student did not have an educational need for occupational therapy (OT) as a related service.

The parents remained concerned about the student’s occupational therapy needs and later contracted privately for another OT evaluation which was completed on November 16, 2012, and considered at subsequent ARD meetings. The evaluation in November 2012 recommended OT services and accommodations.   The student’s ARD, however, declined to provide OT services. The parents then obtained an independent evaluation by a psychologist. ARD committees for the student considered all data produced by the district and outside evaluations provided by the parents. Over the course of the next school year, the parents disagreed with the district’s handling of the student’s program.  They were concerned that the student’s behavioral intervention plan (BIP) was not appropriate.  They also thought that the student’s ARD Committee predetermined the outcome of ARD meetings during Coordination of Services (COS) meetings held prior to ARD meetings.

The parents ultimately requested a due process hearing. The parents alleged that the district failed to provide an appropriate education for the student, failed to utilize current evaluative data about special education eligibility for the student for OT services, failed to reimburse the student’s parents for private evaluations, and failed to provide appropriate training including a board certified behavior analyst (BCBA) to district staff and to develop appropriate policies dealing with the student’s BIP.  The parent also claimed the district failed to provide compensatory educational services for time lost in the student’s instruction because of the inadequacy of the Individual Education Plan (IEP), the failure to implement certain provisions in the IEP, and failure to work collaboratively with the student’s parents.

Ruling: The hearing officer ruled in favor of the school district with respect to each of the parents’ claims.  According to the hearing officer, a school district must provide a student a “basic floor of opportunity” with an educational program – including necessary related services – that will allow the student to make reasonable educational progress. Courts have held that hearing officers should look to the overall educational experience of the child. According to the hearing officer, if the experience is decidedly positive, the district is doing what the law requires.

Here, the district showed that the student’s IEP was reasonably calculated to provide the student with a free appropriate public education (FAPE) because the IEP was individualized on the basis of the student’s assessment and performance; the program was administered in the least restrictive environment; the student’s program was provided in a collaborative and coordinated manner; and the student had shown positive academic and non-academic benefit.

The hearing officer observed that “IDEA creates a presumption favoring an education plan proposed by a school district and places the burden of proof on the Petitioner challenging the plan.” The parents did show procedural violations by the district, namely in updating the student’s class schedule and providing information on the student’s present levels of academic performance. The hearing officer concluded, however, that the student’s educational placement was reasonably calculated to confer an educational benefit. The district’s failure to meet all procedural requirements in IDEA – in updating the student’s schedule and providing correct information on present levels of academic performance – did not violate IDEA.  According to the hearing officer, those errors or omissions do not constitute a denial of FAPE because they did not impede the student’s right to FAPE, did not impede the parents’ opportunity to participate in developing the student’s program, and did not cause a denial of educational benefits. The hearing officer denied all relief requested by the parents.

Comments:  The hearing officer makes the observation that “Petitioner’s burden to prevail in these cases is high.” Indeed, it is. For those who wonder why parents don’t prevail more often in special education cases, there is part of the answer.    Hearing officers are required to begin with the presumption that the district’s proposed program is appropriate. The school is not required to provide the best possible services, but only a “basic floor of opportunity.”

 

THE DISTRICT DID NOT DENY THE STUDENT FAPE

Case citation:  Student v. Klein ISD, Dkt. No. 102-SE-0113 (Hearing Officer Brenda Rudd, July 18, 2013).

Summary:  The student attended school in the Klein Independent School District, and qualified for special education and related services as other health impaired (OHI), orthopedically impaired (OI), vision impaired (VI), and speech impaired (SI).  Originally, the student was placed in a special education resource setting for Math, English/Language Arts, and Reading.  The student received a modified curriculum with goals and objectives in all core academic areas in addition to goals and objectives in behavior and social skills, counseling, and compensatory/study skills.  The student also received vision services, adaptive P.E., and personal care services along with numerous classroom accommodations related to the student’s vision and other needs.

In January and February of 2012, ARD Committee meetings were held, in which the ARD Committee recommended placement in a special education Reaching for Success (RFS) class for all core academic areas, as well as social skills.  The parent did not agree with the recommendation and requested additional assessments.  The district provided a functional vision evaluation, occupational and physical therapy evaluations, a functional behavioral assessment, as well as evaluations for assistive technology, speech and language, and adaptive P.E. The district also paid for another independent educational evaluation.

In ARD meetings held in July 2012, December 2012, and January 2013, the district continued to recommend the student’s placement in the special education RFS classroom. The parent disagreed and ultimately requested a due process hearing.  The parent sought a placement in general education with resource classes.  The parent disagreed with the RFS placement, claiming that (1) it was for autistic students only, and the child was not classified as autistic, (2) there were safety concerns, and (3) the student learned inappropriate behaviors.  The parent claimed that the proposed placement denied the student FAPE.

Ruling:  The hearing officer ruled in favor of the district on each of the parent’s claims.  The record showed that the student had numerous needs that required many accommodations and modifications in the general education setting.  Even with the many modifications to the general education program, the student continued to have difficulty, including the inability to stay on task without constant redirection.

The parent failed to prove that the proposed placement by the district in the RFS class with mainstreaming in science lab and lunch, was inappropriate for the student.  There was no evidence that the student was in any danger or that the student learned inappropriate behaviors in the RFS class. According to the hearing officer, the proposed program offered the student a special education program in the least restrictive environment.  The student’s program was individualized based on numerous assessments, including an independent educational evaluation (IEE) at district expense.  The evidence also did not support a finding that the district failed to provide appropriate supplementary aids and services, assistive technology assistance, or modifications and accommodations for the student’s visual needs.   The hearing officer, therefore, concluded that the district provided the student FAPE and denied all of the parents’ requested relief.

 

PROCEDURAL VIOLATIONS RESULTED IN DENIAL OF FAPE

Case citation:  Student v. Beaumont ISD, Dkt. No. 253-SE-0613 (Hearing Officer Sharon M. Ramage, October 16, 2013).

Summary:  The child resided within the boundaries of the Beaumont Independent School District, but was not enrolled in school yet, when the parent approached the district and informed district personnel of her concerns about the child’s difficulty in speech intelligibility.   The district screened the student in January of 2013, and determined that the student needed a referral for special education.   However, the referral was put on hold pending the student’s enrollment in the district.   The parent requested a referral packet in March of 2013, but it was not provided until April of 2013.  The parent completed the referral packet and consented to a full and individual evaluation (FIE).  The FIE, however, only consisted of a speech evaluation, did not assess the student in all areas, and did not include an audiological evaluation or an assistive technology evaluation. The parent later obtained a private audiological evaluation and requested reimbursement for the assessment.

In May of 2013, the school district provided the parent with a notice of an ARD Committee meeting, but referred to the meeting as a Service Plan Meeting, intended for a private school student.   The district convened the meeting on May 28, 2013.  This was the only meeting that occurred between the parents and the district to determine the student’s eligibility for special education and related services.  Nevertheless, there were several versions of the meeting documents and minutes from the meeting.  In addition, the district generated several conflicting documents purporting to be the student’s IEP.  The parent ultimately placed the student in a private school and requested a due process hearing, seeking an appropriate program, reimbursement for the private placement, and compensatory services.

Ruling:  The hearing officer found that the school district had denied the student FAPE, but the parent was not entitled to reimbursement for the private placement.  According to the hearing officer, procedural errors resulted in the denial of FAPE, impeded the student’s access to a FAPE, and impeded parental participation in the development of the student’s educational program.

The hearing officer first determined that the district unreasonably delayed the evaluation from the date the parent requested the evaluation on January 27, 2013, to May 8, 2013, when it obtained the parent’s consent.  This procedural error resulted in the denial of FAPE, according to the hearing officer.

The district also failed to provide copies of the ARD documentation to the parent, and then provided multiple, inconsistent versions of documentation of the FIE and IEP.  The inconsistencies resulted in the parent not being able to determine which FIE the program was based upon and which IEP was operational.  The hearing officer stated that this “significantly impeded the parent’s ability to meaningfully participate in the development of the child’s educational program.”

Further, due to the inconsistencies in the various versions of the IEP, it was difficult to conclude if goals and objectives were created at all.  If they were, it was difficult to determine whether they applied to the 2013-14 school year, the 2012-13 school year, and/or for extended school year services. According to the hearing officer, the goals for the 2013-14 school year were not based on the student’s individualized levels of functioning and performance in the area of articulation.

The hearing officer also determined that the district erred in providing the student a Service Plan rather than offering the student a FAPE.  During the 2012-13 school year, the student was not enrolled in a private school.  Therefore, the district should have offered the student a FAPE.  While the hearing officer ruled in favor of the district on each of the parent’s claims, the parent was not entitled to reimbursement for the costs of the private placement in which the parent later enrolled the student.  According to the hearing officer, the parent enrolled the student for independent reasons unrelated to the program offered by the school district.  The hearing officer ordered the district to conduct an FIE, provide compensatory services, and provide the student with an appropriate IEP.

 

Private Placement

 

WAS THE STUDENT ENTITLED TO A PRIVATE PLACEMENT?

Case citation:  Student v. Killeen ISD, Dkt. No. 067-SE-1112 (Hearing Officer Lucius D. Bunton, December 30, 2013).

Summary:  The student attended school in the Killeen Independent School District.  In 2009, different private evaluations diagnosed the student with pervasive developmental disorder-not otherwise specified (PDD-NOS), attention deficit hyperactivity disorder (ADHD), and issues related to anxiety.  Another private evaluation in 2010, diagnosed him with an adjustment disorder and possible PDD-NOS.  At the parent’s request, the district conducted a full and individual evaluation, but in January of 2011, the student’s Admission, Review, and Dismissal (ARD) Committee determined that the student did not meet eligibility criteria for special education and related services.

An independent educational evaluation (IEE) in August of 2011 concluded that the student’s symptoms were indicative of ADHD and learning disabilities, but that the student was not on the autism spectrum.  As a result, in October of 2011, the student’s ARD Committee determined that the student qualified for special education and related services as “other health impaired” (OHI) based on ADHD. The student’s parent agreed at that time.  Another IEE in September 2012 determined that the student’s educational performance was effected by cognitive deficits, although no formal diagnosis was issued at that time.

During the 2011-12 school year, the student’s ARD Committee noted that the student missed a lot of school due to appointments for speech therapy, occupational therapy, and applied behavioral analysis (ABA), scheduled by the parent. The student’s ARD met several times to try to address the student’s academic performance, offered the student occupational therapy, and a number of accommodations.  The ARD recommended retaining the student for the year but provided an opportunity for summer school. The parent declined and instead request extended school year services (ESYS).

The parent later unilaterally withdrew the student from the district and requested reimbursement for a private placement.   The private school had a low student-teacher ratio and served students with disabilities, such as autism, Down syndrome, and other disabilities.   It was not accredited by the Texas Education Agency and had only one teacher certified through the Texas Education Agency.  When the district provided a notice of refusal to provide the private placement, the parent requested a due process hearing. The parent alleged that the district failed to (1) identify the student in a timely manner as eligible for special education and related services, (2) evaluate the student in all areas of suspected disability, (3) identify properly the eligibility criteria for the student, (4) provide necessary related services, and (5) provide the student with FAPE.  The parent sought reimbursement for the cost of a private placement and compensatory services.

Ruling:  The hearing officer ruled in favor of the district, denying the parent’s request for relief.  The hearing officer observed that the Individuals with Disabilities Education Act creates a presumption favoring an education plan proposed by a school district and places the burden of proof on the parent. According to the hearing officer, the district’s responsibilities under the IDEA were met because the student’s placement was individualized on the basis of the student’s assessment and performance.  The program was administered in the least restrictive environment.  The services were provided to the student in a coordinated and collaborative manner by key stakeholders.  Further, the student received positive academic and non-academic benefit.

The record showed that the student’s academic performance was negatively impacted by his absences from school when the student’s parent pursued services and therapies for the student. Although the parent was not satisfied with the student’s academic performance, in light of the student’s cognitive ability and issues with school attendance, the student demonstrated reasonable progress in academic and non-academic goals. Further, the parent did not prove that the private placement was appropriate for the student or that the district was unable to provide the student an appropriate program.  The hearing officer, therefore, ruled in favor of the district and denied all relief requested by the parent.