THE STUDENT WAS NOT ENTITLED TO A RESIDENTIAL PLACEMENT AT DISTRICT EXPENSE
Case citation: Fort Bend ISD v. Douglas A, __Fed. Appx. __, 2015 WL 469018 (5th Cir. 2015).
Summary: Z.A. was an eighth-grade student during the 2011- 12 school year. In mid-December 2011, he attempted suicide by swallowing pills; he came to school after the attempt and went to the nurse’s office. District staff became aware that he was smoking marihuana with his parents’ knowledge. Nevertheless, Z.A. had been performing with reasonable success at school. In January 2012, after the suicide attempt, school officials met with Z.A.’s parents to discuss his Section 504 plan. Z.A.’s mother informed them that he was taking medication for ADHD and depression and was seeing a psychologist twice a month.
In March 2012, school officials reconvened to discuss Z.A.’s progress. Z.A.’s parents requested a special education assessment at that meeting, although they did not receive the consent form necessary for the testing until June. Z.A. subsequently failed three courses and was required to attend summer school. Once testing was conducted, it was determined that Z.A. experienced significant emotional deficits, involving anxiety and depression, that manifested themselves in school as withdrawal behavior. The evaluators concluded, nonetheless, that he could pass his classes with preferential seating, frequent breaks, positive reinforcement, behavior-management plans, and extended time for tests and projects.
In August 2012, an Admission, Review, and Dismissal (ARD) Committee meeting was held with school officials and Z.A.’s parents to fashion an individualized education plan (IEP) for Z.A. The ARD recommended in-class support from special education staff and meetings with the school psychologist once every nine weeks. On October 25, before the end of the first nine-week grading period, Z.A.’s parents withdrew him from classes unilaterally and placed him at RedCliff Ascent, a wilderness camp in Utah. Z.A.’s psychologist recommended the change to improve Z.A.’s mental-health and substance-abuse issues, classifying the change as a response to an emergency. In November 2012, Z.A.’s parents requested a meeting with the ARD committee, seeking reimbursement of the cost of placing Z.A. at RedCliff. The ARD Committee denied reimbursement.
After being released from RedCliff in January 2013, Z.A. entered Change Academy Lake of the Ozarks (CALO), a mental- health facility in Missouri. Z.A. also was diagnosed with reactive attachment disorder (RAD), a condition that CALO specializes in treating. Z.A.’s parents filed an administrative complaint against the district seeking reimbursement for the RedCliff and CALO placements. Finding that FBISD had failed to provide Z.A. with a free appropriate public education (FAPE) as required by the IDEA, the hearing officer ordered FBISD to reimburse the parents for part of their expenses at CALO. The district sued to reverse the administrative decision; the parents counterclaimed, asking the court to affirm the reimbursement order and award attorney’s fees. The court granted judgment for the parents, ordering $7,000 per month in reimbursement for the cost of CALO, $677.60 in transportation costs, and $90,000 in attorney’s fees. The court first determined that the district had not made a FAPE available to Z.A., which meant that the parents were eligible for reimbursement of a private placement. Next, the court found that the placement in CALO was appropriate, which is necessary for that placement to be reimbursed. The district appealed to the Fifth Circuit Court of Appeals.
Ruling: The Fifth Circuit concluded that Z.A.’s parents did not meet their burden of showing that the placement was appropriate. The Fifth Circuit observed that for a residential placement to be appropriate under the IDEA, it must be “1) essential in order for the disabled child to receive a meaningful educational benefit, and 2) primarily oriented toward enabling the child to obtain an education.” Two factors are considered: (1) whether the child was placed at the facility for educational reasons, and (2) whether the child’s progress at the facility is primarily judged by educational achievement.
For the RedCliff placement, the evidence uniformly supported the conclusion that the parents placed Z.A. for noneducational purposes; indeed, the court found that he was placed at RedCliff because his parents were concerned that he would make another attempt at suicide and because he had a drug problem. There was no evidence showing that they then enrolled Z.A. at CALO for educational reasons.
Under the second factor, measuring progress by educational achievement instead of disability treatment is strong evidence of the placement’s purpose and goals, ensuring that the school district is being made to reimburse a program designed to remedy the district’s failure to provide a FAPE. According to the appeals court, the evidence plainly supported the finding that Z.A.’s progress was not judged primarily by educational achievement. CALO›s founder expressly disclaimed that education was the primary focus and explained that discharge from CALO depends on progress in treating RAD, not progress in educational achievement. It is possible that Z.A. would have been unable to get an educational benefit without a certain level of success in treating RAD, but this factor looks at whether progress is judged primarily by educational achievement.
Even if the court was correct in finding that CALO’s program included many related services, the court erred in its analysis and findings. The record as a whole provided little support for the CALO placement’s being primarily oriented toward an education. In light of the evidence of the noneducational focus of CALO and the parents’ burden to demonstrate the appropriateness of the placement, the district court erred in concluding that the placement was appropriate. The court of appeals rendered judgment in favor of the district.
Comments: The appeals court makes it clear that, to justify the reimbursement for private placement, the program must be designed mainly to address educational needs and achievement. Because the private placement did not primarily focus on the student’s educational needs, the district was not required to reimburse the parent the cost of the placement.
DID THE STUDENT’S PLACEMENT IN A DAEP VIOLATE HIS RIGHTS?
Case citation: C.C. v. Hurst-Euless-Bedford ISD, 2015 WL 136379 (N.D. Tex. 2015) (unpublished).
Summary: C.C., a high school student in the Hurst-Euless-Bedford Independent School District, had a diagnosis of Attention Deficit Hyperactive Disorder (ADHD). In February of 2013, C.C. followed a fellow student into the restroom and took pictures of the student seated on the toilet. The student’s father filed felony charges against C.C. The school principal appointed a Manifestation Determination Review (MDR) committee to determine if C.C.’s behaviors had been caused by or had a direct and substantial relationship to his behavioral issues and disability. The committee, chaired by the vice principal, determined that the behavior was not caused by C.C.’s disability, and the committee recommended his removal from the school. C.C. was placed in Disciplinary Alternative Education Placement (DAEP) for sixty days. C.C. and his parents filed a complaint with the Office of Civil Rights (OCR) against the district. The OCR ultimately found that the district had nondiscriminatory reasons for the punishment, and the parents’ complaint was denied as unfounded.
C.C. and his parents brought a lawsuit against the school district, alleging the principal, vice principal and the district violated his Fourteenth Amendment rights under 42 U.S.C. § 1983. The complaint also asserted a claim of civil conspiracy under 42 U.S.C. § 1985, and a claim under Section 504 of the Rehabilitation Act against the district. The complaint alleged that the two administrators and the district conspired together to discriminate against C.C., contacted parents of other students to encourage them to file felony charges against him, and retaliated against him because of his parents’ advocacy on his behalf. The district defendants filed a motion to dismiss.
Ruling: The court granted the motion to dismiss, finding that C.C. and his parents failed to state a claim upon which relief may be granted. Although C.C. did have a property interest in a public education that was protected by the Due Process Clause of the Fourteenth Amendment, the court held that a student’s transfer to an alternate education program does not deny access to public education and therefore does not violate a Fourteenth Amendment interest. Because C.C. did not plausibly allege a violation of a constitutionally protected property or liberty interest, he was not able to maintain a due process claim.
The court ruled that C.C. could not sustain a cause of action under Section 504 of the Rehabilitation Act. In order to state a cause of action under the Rehabilitation Act there must be intentional discrimination against a student on the basis of his disability. C.C.’s complaint alleged no facts which, taken as true, would support a finding that the district intentionally discriminated against him based on his disability. While the complaint listed a series of behavioral infractions that led to his removal, it does not provide anything more than mere conclusory statements that his actions or the removal was due to his disability.
C.C. also argued that he was punished more harshly than other students and that there was no rational basis for the difference in punishment. The court found that C.C. alleged no facts in the complaint that would establish that there was no rational basis for the differences in treatment, and dismissed the claim of a violation of the Equal Protection Clause.
The court also held that because the defendants were a school district and its employees, C.C. and his parents could not plead facts sufficient to demonstrate a conspiracy, because a school and its officials constitute a single entity which cannot conspire with itself. The court dismissed the case against the district defendants.
Comments: To show a violation of a student’s constitutional right to an education, the student must have been denied access to an education entirely without due process of law. Placement in a DAEP does not constitute a complete denial of an education. Though this student and his parents tried several theories to challenge the disciplinary placement none of them stuck.
WHEN IS ADDITIONAL EVIDENCE ALLOWED ON APPEAL OF A DUE PROCESS HEARING?
Case citation: T.C. v. Lewisville ISD, 2015 WL 178979 (E.D. Tex. 2015) (unpublished).
Summary: A special education due process hearing was conducted under the Individuals with Disabilities Education Act (IDEA) regarding an autistic child. At the hearing, the parents offered testimony from their autism expert, Dr. Ruth Aspy. After the school district offered its evidence, the parents stated that they had nothing in rebuttal. At the conclusion of the hearing, the hearing officer ruled in favor of the school district.
The parents appealed the decision of the hearing officer, and sought to offer additional live testimony of Dr. Aspy. They argued that Dr. Aspy was not available to return to the due process hearing to testify in rebuttal regarding the testimony of teachers and the school psychologist offered by the district. The school district argued that the additional testimony should not be allowed, because during the hearing, the parents stated that they had nothing in rebuttal and failed to bring up the necessity of a rebuttal by Dr. Aspy or even mention that Dr. Aspy was unavailable at the time. Additionally, there was little explanation given for Dr. Aspy’s unavailability.
Ruling: The trial court granted the parents’ request for additional evidence, in part. The court allowed as evidence a sworn affidavit from Dr. Aspy containing her rebuttal opinions—as well as counter- affidavits from the defense—but did not allow the live testimony that the parents sought. In reaching this decision, the court analyzed the statutory framework of the IDEA. This framework states that the court “shall hear additional evidence at the request of a party.” The issue in this case was how “additional evidence” is defined, and whether allowing a testifying witness the opportunity to give further testimony would be considered permissible additional evidence.
The court noted that the Fifth Circuit had not directly addressed how “additional evidence” is defined under the IDEA. Looking to a First Circuit opinion, Town of Burlington v. Dep’t of Educ. for Com. of Mass., the trial court held that the “additional evidence” provision of the IDEA is limited, and the decision of whether to allow additional evidence is within the discretion of the district court. The Burlington court recognized that witnesses at trial should not be allowed to later “repeat or embellish” their testimony, but declined to adopt a rigid rule precluding the testimony of all who did, or could have, testified at the administrative hearing. The court held that permissible reasons for supplementing the record with additional evidence could include, among other things, the unavailability of a witness.
The court chose to follow the Burlington standard and decided that, even though Dr. Aspy’s unavailability was not preserved on the record, one of the Burlington factors was present. The court held that it would consider as additional evidence a sworn affidavit of Dr. Aspy containing her rebuttal opinions, and that the district could include any requisite counter-affidavits.
Comments: The rule prohibiting additional evidence serves to protect the record and prevent parties from re-litigating issues that should have been addressed during the hearing. Trial courts typically are reluctant to open the door for additional evidence unless there is a valid reason for doing so.