DID THE STUDENT STATE A VALID § 504 CLAIM stemming from PEER HARASSMENT?
Case citation: Stewart v. Waco ISD, __ F.3d __, 2013 WL 1091654 (5th Cir. 2013).
Summary: Andricka Stewart, a student in the Waco Independent School District, sued the school district claiming that she had mental retardation, a speech impairment, and a hearing impairment. She attended high school in the district and received special education services. After an incident involving sexual contact between Stewart and another student in November of 2005, the district modified Stewart’s individualized education program (IEP) to provide that she be separated from male students and remain under close supervision while at school.
The suit alleged, however, that Stewart was involved in three other instances of sexual conduct, which she characterized as “sexual abuse” over the next two years. In February of 2006, a male student sexually abused her in a restroom. Finding that Stewart was “at least somewhat complicit” in the activities, the district suspended Stewart for three days. A similar incident occurred in August of 2006, when school personnel allowed her to go to the restroom unattended. Then, in October of 2007, a male student “exposed himself” to her. The district allegedly suspended Stewart again as a result of this incident. According to the suit, the district did not take any steps to further modify her IEP or to prevent further abuse.
Stewart sued the school district alleging claims under Title IX of the Education Amendments of 1972, the Americans with Disabilities Act (ADA), and § 504 of the Rehabilitation Act of 1973. The trial court dismissed the case in its entirety because it was an attempt to hold the district liable for the actions of a private actor. Stewart appealed to the Fifth Circuit Court of Appeals, but only with respect to the dismissal of the § 504 claim.
Ruling: The Fifth Circuit held that Stewart had stated a valid claim under § 504. Under § 504, “no otherwise qualified individual with a disability in the United States, . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance . . .” To establish a claim for disability discrimination, a student must allege that the school district has “refused to provide reasonable accommodation for the handicapped plaintiff to receive the full benefits of the school program.” This standard can be met by facts creating an inference of “professional bad faith or gross misjudgment,” which the appeals court defined as a gross departure from accepted standards among educational professionals.
The appeals court differentiated this § 504 standard of liability from Title IX’s deliberate indifference standard, which is a more stringent standard. Under Title IX, a discrimination claim based on peer harassment requires a showing that the district’s response was clearly unreasonable in light of the known circumstances, such that the district’s actions subjected the student to further discrimination. In addition, the harassment must be so severe, pervasive, and objectively offensive that it effectively bars a student from access to an educational opportunity or benefit. Here, Stewart’s factual allegations failed to state that the district’s responses to the incidents were so unreasonable as to rise to the level of deliberate indifference under a Title IX theory of liability.
According to the appeals court, however, Stewart could state a viable § 504 claim based on the district’s alleged refusal to make reasonable accommodations for her disabilities. The Fifth Circuit clarified that “bad faith or gross misjudgment are just alternative ways to plead the refusal to provide reasonable accommodations.” To establish a claim, a plaintiff need not show that the district explicitly refused to make reasonable accommodations. Instead, professionally unjustifiable conduct would suffice. Further, according to the appeals court, a school district can be held liable under § 504 when it “fails to exercise professional judgment in response to changing circumstances or new information, even if the district has already provided an accommodation based on an initial exercise of such judgment.”
In this case, even if the district provided Stewart with reasonable accommodations initially when it changed her IEP, the three subsequent incidents of alleged sexual abuse could support a finding that the modifications were ineffective. The lawsuit adequately stated a claim that the district “committed gross misjudgment in failing to implement an alternative approach once her IEP modifications’ shortcomings became apparent.”
The dissenting opinion by Judge Patrick E. Higginbotham argued that Stewart could not maintain her § 504 claim because she did not exhaust administrative remedies under the Individuals with Disabilities Education Act (IDEA). The appeals court agreed that plaintiffs must administratively exhaust certain non-IDEA claims, so long as they seek relief that is also available under the IDEA. However, the district had not raised this issue on appeal. Further, non-IDEA claims that do not seek relief available under the IDEA are not subject to the exhaustion requirement. At this early stage of the litigation, it appeared that Stewart’s gross-misjudgment theory of liability did not seek damages as a substitute for relief under the IDEA. Thus, she was not required to exhaust administrative remedies on that claim. The appeals court reversed the dismissal of Stewart’s § 504 claim and returned the case to the trial court for further proceedings.
Things to Remember: This is a very important ruling from the circuit court that establishes precedent for all courts in Texas. Claims under Section 504 are already on the rise, and will be even more so after this ruling. While the court does not use the term “educational malpractice” that’s essentially what this case is about. Courts have historically declined to recognize a cause of action for “educational malpractice,” but when couched in terms of a 504 violation, the theory is gaining ground.
WAS THE STUDENT ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES?
Case citation: Student v. Arlington ISD, Dkt. No. 331-SE-0812 (Hearing Officer Lynn E. Rubinett, December 21, 2012).
Summary: The student resided with a legal guardian within the boundaries of the Arlington Independent School District, when a request was made that the district evaluate the child for special education eligibility based on autism and a speech impairment. As a result, the district conducted a full and individual evaluation (FIE) in June of 2010. However, the district concluded that the student was not eligible for special education and related services. The student did not attend school in the district during the 2010-11 school year.
In January of 2011, the student received a private assessment that resulted in diagnoses for Attention Deficit Hyperactivity Disorder (ADHD), speech and language developmental disorder, sleep disturbance, and a language disorder, among other things. However, the assessment did not rely on formal assessment instruments or include observation of the student at school.
The student returned to the Arlington Independent School District in August of 2011, and the student’s guardian requested another special education evaluation. The district completed a second FIE in October of 2011, to consider the student’s eligibility under the categories of autism, speech or language impairment, and/or “other health impairment” (OHI). Testing showed that the student exhibited impulsivity, hyperactivity, and attention issues, along with mild deficits in emotional regulation. The data, however, did not indicate a student with a pervasive developmental disorder. The FIE concluded that the student had ADHD, but that the student did not exhibit an educational need for special education and related services. The parent disagreed and requested an independent educational evaluation (IEE). An IEE was conducted and concluded that the student’s ARD Committee should consider eligibility based on autism and a speech and language impairment. The ARD Committee rejected that recommendation, again concluding that the student did not have an educational need for services. The guardian requested a due process hearing challenging the district’s eligibility determinations.
Ruling: The hearing officer agreed with the district that, although the student had a qualifying disability based on ADHD, the student did not exhibit an educational need for special education and related services. The due process request argued that the student met eligibility criteria as a student with autism, a speech and language impairment, and OHI, due to ADHD.
The record did not support a diagnosis of autism. According to the hearing officer, the results of the district’s second FIE were more balanced and credible than the results of the IEE. The conclusions of the IEE were not based on a full consideration of all of the data. The IEE gave greater weight to the data obtained from the guardian and failed to fully explain why the student did not display characteristics of autism in the school setting. The hearing officer observed that a “[s]tudent is not eligible for services under IDEA as autistic when the characteristics of autism are seen only in the home environment; rather, they must be present across settings.” The record in this case did not show that the behaviors indicating autism manifested themselves at school. Thus, the hearing officer concluded that the student did not meet the eligibility definition of a student with autism.
The student also did not meet eligibility criteria as a student with a speech or language impairment. The record showed that the student’s speech and language skills were average and typical of the student’s peers. Both the second FIE and the IEE concluded that the student did not display communication deficits at school.
The hearing officer concluded, however, that the student had ADHD and that it adversely affected the student’s educational performance. As a result, the student met the definition of a student with an “other health impairment” based on ADHD. The student nevertheless did not exhibit an educational need for special education and related services. The student was successful and made educational progress with support and intervention properly administered in the general education setting. Because the student did not need special education services due to ADHD, the hearing officer upheld the district’s decision that the student did not qualify for special education.
Things to Remember: This decision follows 5th Circuit precedent, Alvin ISD v. A.D., 503 F.3d 378 (5th Cir. 2007) in concluding that “adverse impact” due to a disability is not enough to render a student eligible under the IDEA. The adverse impact must be such that the student requires the provision of specially designed instruction. This is what “educational need” means in the 5th Circuit.
WAS THE STUDENT’S DISCIPLINARY PLACEMENT PROPER?
Case citation: Student v. Brazos ISD, Dkt. No. 011-SE-0912 (Hearing Officer Stephen P. Webb, November 20, 2012).
Summary: The student received special education under the eligibility classifications of “Other Health Impairment” (OHI) due to Attention Deficit Hyperactivity Disorder (ADHD) and due to an emotional disturbance (ED). In November of 2010, the district conducted a psychological re-evaluation and confirmed those eligibility classifications. The student demonstrated difficulties with oppositional defiance, disruptive, and verbally or physically aggressive behaviors. These issues were consistent with a diagnosis of Conduct Disorder. The student also demonstrated symptoms of an anxiety disorder. The student’s Admission, Review, and Dismissal (ARD) Committee placed the student in mainstream, general education classes with accommodations, including some resource classroom time, and counseling services. Previously, the student had been in a highly-structured, self-contained classroom. The ARD Committee also developed a Behavioral Intervention Plan (BIP) for the student.
The student engaged in at least three disciplinary incidents between September of 2011 and May of 2012. An incident in September of 2011, resulted in the student’s suspension and placement in a disciplinary alternative education program (DAEP). The parents did not agree with the disciplinary placement. Following the student’s return to campus, another incident occurred in April of 2012. Although the student’s actions were deemed inappropriate, no disciplinary action was taken. Another incident in May of 2012, involving other students resulted in a three-day suspension for the students involved.
Another disciplinary event occurred in September of 2012, leading the principal to recommend the student’s return to the DAEP. The student was suspended for three days, then placed in In-School Suspension (ISS). The student’s ARD Committee conducted a manifestation determination review and determined that the student’s conduct was not a manifestation of the student’s disabilities. The ARD Committee, therefore, concluded that the DAEP placement was appropriate. The parents disagreed, arguing that the student’s IEP had not been followed and requested a full and individual evaluation (FIE) and an independent educational evaluation (IEE). The district declined to provide the requested evaluations and provided the parents with prior written notice of its decision. The parents requested a due process hearing, challenging the disciplinary placement and denial of an FIE and IEE.
Ruling: The hearing officer upheld the district’s disciplinary placement decisions. The record demonstrated that the student’s ARD Committee properly developed and implemented the student’s IEP and BIP. The parents argued that the student’s misbehavior showed a pattern that required the district to consider whether the misbehavior was a manifestation of the student’s disability. The hearing officer concluded, however, that prior to the September 2012 incident, no one anticipated that the student would commit the specific misbehavior alleged. Although a similar incident occurred in September of 2011, there was no indication at the time that the student engaged in a pattern of similar conduct that would warrant further investigation or evaluation.
The hearing officer concluded that the district properly conducted an MDR over the September 2012 incident. The determination of the MDR was appropriately based on the student’s most-current IEP and BIP. Further, the ARD Committee properly determined that the behavior was not a manifestation of the student’s disability or the result of a failure to implement the student’s IEP. The hearing officer also concluded that the student’s IEP in place at the time of the MDR was appropriately developed and administered to the student. The student received a free appropriate public education (FAPE) under the program by receiving more than minimal educational benefit in the student’s least restrictive environment. Thus, the hearing officer upheld the student’s disciplinary placement.
DID THE STUDENT RECEIVE FAPE?
Case citation: Student v. Krum ISD and Denton County Special Education Cooperative, Dkt. No. 219-SE-0312 (Hearing Officer Deborah Heaton McElvaney, November 9, 2012).
Editor’s Note: The opinion in this case was heavily redacted, making it difficult to determine the entities responsible for each assessment provided to the student. Ultimately, the hearing officer upheld the eligibility determinations made for the student.
Summary: The student was diagnosed with dyslexia in November of 2008. In March of 2010, the parents requested further evaluation based on their concerns over the student’s difficulty with reading and spelling, problems staying focused, and for getting frustrated easily. The student underwent a number of assessments that confirmed the student’s diagnosis of dyslexia. A psycho-educational evaluation indicated that the student struggled with anxiety, depression, and low self-esteem. Teachers expressed concerns that the student did not get along with peers, had a hard time controlling emotions, and demonstrated aggression toward others. Nevertheless, the student maintained excellent grades during the 2009-10 school year.
At the beginning of the 2010-11 school year, the student’s teachers reported problems with the student’s behaviors and referred the student to the Student Support Team (SST), which was the district’s Response to Intervention (RTI) process. The student’s behavior continued to escalate, resulting in the SST’s recommendation that the student be separated from other students and receive counseling. The SST recommended that the student receive an FIE in February of 2011, based on continuing social and emotional concerns. The student’s ARD Committee met following the FIE and determined that the student qualified for special education and related services under the classifications of emotional disturbance and speech impairment. The student also had been diagnosed with ADHD. The ARD Committee developed accommodations to be implemented in the general education setting, with content mastery, speech therapy, and direct psychological services. The ARD also developed a BIP targeting the student’s crying, screaming, and tantrums.
In January of 2012, when the district conducted the student’s annual review, the parent expressed disagreement with the ED classification. The district offered to conduct a dyslexia assessment, but the parent declined. A follow-up ARD was also scheduled, but the parent did not attend. The ARD Committee continued to classify the student under the ED and SI classifications. The ARD discussed positive behavioral interventions and supports, and consulted a specialist to assist in developing additional behavioral supports and interventions. Another ARD Committee meeting was held to discuss these decisions, but the parent refused to attend. Meanwhile, the parent requested a due process hearing, complaining that the district did not properly assess and identify the student, failed to provide appropriate services to the student, and committed other procedural errors.
Ruling: The hearing officer denied all relief requested by the parent. First, the hearing officer held that the one-year statute of limitations barred any claims that arose prior to March 26, 2011. The parent did not prove that the district withheld information or intentionally misrepresented information that would justify tolling the statute of limitations.
The hearing officer next concluded that the district properly evaluated the student in all areas of suspected disabilities. The parent complained that the district did not recognize the student’s diagnosis of dyslexia. When the student first moved to the Krum Independent School District, the student was placed in the district’s dyslexia program and the student progressed. However, the district’s screening of the student led to the conclusion that the student did not present the characteristics of dyslexia. At the time, the student was reading at grade level. In addition, an April 2011 FIE showed that the student performed in the average to superior range in all areas, including reading and writing.
The hearing officer also concluded that the student did not meet eligibility criteria as a student with Asperger’s Disorder. The district’s assessment did not identify the characteristics of Asperger’s Disorder. According to the hearing officer, the district’s determinations were based on exhaustive formal and informal assessments, interviews of the student and parents, teacher data, and student observations in every educational area. The hearing officer found that the district’s assessments and decisions related to Asperger’s Disorder were appropriate. The parents also failed to show that the district’s BIP and FBA were inappropriate, that the district violated the parent’s procedural rights, or that the student was entitled to an independent educational evaluation. Thus, the hearing officer denied the claims raised by the parent.
DID THE DISTRICT PROVIDE AN APPROPRIATE PROGRAM TO THE STUDENT?
Case citation: Student v. Eagle Mountain-Saginaw ISD, Dkt. No. 351-SE-0812 (Hearing Officer Mary Carolyn Carmichael, December 27, 2012).
Summary: The student qualified for special education and related services due to autism, a speech impairment, and a mental impairment. The student transferred to the Eagle Mountain-Saginaw Independent School District in the summer of 2012. Prior to the transfer, the parent had filed a request for a due process hearing against the student’s previous district, complaining that that district improperly changed the student’s placement to a self-contained life skills classroom. A hearing officer upheld the district’s program in that case. However, by that time, the student had already transferred to Eagle Mountain-Saginaw ISD.
The Eagle Mountain-Saginaw ISD communicated to the parent its intention to implement the program that the hearing officer had determined to be appropriate in the previous due process hearing. However, the life skills classroom for the student was not located at the student’s home campus. The classroom served students who needed specialized academic support. It was a structured setting with a low staff-to-student ratio and it emphasized increasing independence for communication, self-help, social and living skills. The district made no material change to the program previously approved in the prior due process proceeding. Nevertheless, the parent disagreed with the proposed program and again requested a due process hearing. In response, the district sought dismissal of the case without a hearing.
Ruling: The hearing officer dismissed the parent’s due process case. The parent complained that the district’s proposed placement was not at the student’s home campus. The hearing officer observed, however, that a student does not have an “absolute right to assignment at the closest neighborhood school if the nature or severity of the student’s disability is such that the neighborhood school assignment is inappropriate because the student’s education cannot be achieved satisfactorily.” Here, the student’s neighborhood school did not offer an appropriate setting that met the student’s needs. Thus, the classroom setting at the other campus was appropriate. The parent did not disagree with the proposed program. Instead, she disagreed with the location of the services provided. According to the hearing officer, the parent did not raise a claim related to the identification, evaluation, placement, or provision of FAPE of the student. As a result, the hearing officer did not have jurisdiction over those claims.
The hearing officer granted the district’s Motion for Summary Judgment with regard to the parent’s claims arising from the transfer of the student to the district over the summer. District staff reviewed the IEP from the previous district and assured the parent that they could implement that IEP. Again, the hearing officer noted that the parent did not object to the IEP, but only the location. The hearing officer noted that “There is no requirement for the receiving school district to hold an ARDC meeting to ‘adopt’ the former IEP if the receiving school district and the parents agree to its use.”
Things to Remember: This decision draws a clear distinction between “placement” and “location.” The parent can challenge a placement, but not the location of the campus where services will be delivered. The case is also noteworthy for its treatment of the transfer issue.
WAS THE STUDENT ENTITLED TO A PRIVATE PLACEMENT AT DISTRICT EXPENSE?
Case citation: Student v. Tyler ISD, Dkt. No. 347-SE-0812 (Hearing Officer Stephen P. Webb, November 8, 2012).
Summary: The student attended school in the Tyler Independent School District and received special education services as a student with autism and a speech impairment. The student was nonverbal, and was sensitive to sound, strangers, and activity by classmates. The school district placed the student in a self-contained classroom for autistic students. The parents, however, became concerned that the student had not received a FAPE in that setting, in part, because of frequent loud noises in the classroom that interfered with the student’s learning.
In 2011, the parents unilaterally enrolled the student in a private placement and requested a due process hearing. The district had agreed to provide a one-on-one Applied Behavioral Analysis (ABA) therapy program to the student. However, the student’s paraprofessional had not completed appropriate training to implement the program for the student.
The private placement that the student attended provided a functional behavioral assessment done by a Board Certified Behavior Analyst. It was a behavioral clinic designed to help children socially. It provided ABA therapy and a highly individualized program for each child. After the district held an annual review of the student’s program and proposed the student’s placement in the district for the 2012-13 school year, the parents requested a due process hearing seeking reimbursement for the costs of the private placement.
Ruling: The hearing officer held that the student was entitled to the private placement at district expense. The student required intensive one-on-one ABA therapy intervention to address the effects of the student’s disability, to allow the student to achieve an educational benefit in any setting, and to prepare the student for social interactions. In the self-contained classroom under the district’s program, the student received minimal educational benefit. According to the district, it was an “eclectic” type of educational program. However, the district failed to provide sufficiently trained and supervised staff to implement the type of educational program the student required.
The hearing officer also held that the student’s proposed program for the 2012-13 school year, also was not appropriate and that the district did not “respond candidly or timely to the Student’s parents’ request to inspect [what] the District would offer as the educational setting for the 2012-13 school year.” According to the hearing officer, although the district took steps to use ABA interventions, the program proposed for the student was not adequate. The student’s teacher was not sufficiently trained, experienced, or supervised. Further, the classroom setting provided by the district was not an appropriate educational environment for the student.
The private placement was an appropriate placement for the student. The student had made progress there on maladaptive behaviors associated with noise sensitivity and fear of people. The record showed that the one-on-one program was the right individualized program for the student. As a result, the district was ordered to fund the student’s private placement for one year and through the following summer. At that time, the parties would be allowed to re-evaluate the district’s program to determine whether the student’s transition back to the district would be appropriate.