A collection of reports on legal activities locally and, where relevant, across the country. Please let us know if we've missed something.
legal news
child-find settlement in milwaukee (update)
UPDATE July 10, 2009: The Milwaukee Public Schools (MPS) filed an appeal this week from an order of the District Court, among other things, requiring it to find and provide compensatory education to all the children it had missed from 2000 to 2005 according to an article in the Milwaukee Journal-Sentinal. MPS is complaining that such a search would be too burdensome financially for the district. Jeffrey Spitzer-Resnick, managing attorney for Disability Rights Wisconsin which has been lead plaintiff in this case which has dragged on for eight years, points out that MPS is complaining before it understands what it will have to do to satisfy the judge's order.
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UPDATE June 23, 2008: Federal Magistrate Judge Aaron Goodstein on Friday signed an order which fully implemented the remarkable settlement entered between the plaintiffs and the Wisconsin Department of Public Instruction. An article in the Milwaukee Journal Sentinal Online indicates that the judge appointed W. Alan Coulter of the Louisiana State University to oversee the implementation of the order. The Milwaukee Public Schools Board had no comment until the members had read the decision and had an opportunity to discus it.
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(April 8, 2008)
Wisconsin may provide a new approach to screening children for special education services under a settlement worked out between a plaintiffs' group and the Wisconsin Department of Public Instruction.
Under IDEA, the local educational agency (LEA) is required to identify those students in need of special education services. Milwaukee Public Schools (MPS) was failing this duty because advocate group, Disability Rights Wisconsin (DRW), filed suit against both MPS and Wisconsin's Department of Public Instruction (DPI). According to the Milwaukee Journal Sentinel Online, last September, the federal magistrate ruled that "MPS had systematically failed to provide special education services to many students and the state Department of Public Instruction had failed to provide required oversight."
When MPS refused to negotiate in good faith, according to the paper, plaintiffs and the DPI reached a separate settlement. MPS would be required to refer possibly up to 95% of students who have been retained in a grade or have been suspended for more than a certain number of days for early intervention services, including referral for special education. In addition, DPI will create and fund a parent trainer position to support parents of children who fall within the definitions set by the settlement agreement. Finally, the performance of MPS under the settlement agreement would be monitored by an authority paid by DPI.
The settlement has been rejected by MPS, alleging huge costs, although later assessments by the district appear to downplay that argument somewhat. A joint motion to impose the settlement on the case has been filed by DRW and DPI, with opposition by MPS.
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ninth circuit declines to require prior special education services for reimbursement (updated 6/22/09)
UPDATE June 22, 2009: The U.S. Supreme Court today struck a blow for the rights of parents (and EdReps) in special education.
The student struggled over several years, throughout elementary school and into high school. During this time, the district considered the student's needs and found that he qualified for services under neither the IDEA or Section 504 of the Rehabilitation Act of 1973. Finally, as a junior in high school, the parents had their son assessed privately. The psychologist recommended placement in a special residential school, which the parents did.
When the parents requested reimbursement, the district refused, citing an amendment to the IDEA which could be interpreted to require that the child have received services from the district before it would be required to reimburse. Since the student had never received any special education services from the district, it argued, it was not obligated to reimburse the parents. The hearing officer found for the parents and ordered reimbursement. However, the district appealed to the U.S. District Court which reversed, citing the 1997 amendment to the IDEA. After the U.S. Court of Appeals for the Ninth Circuit reversed the District Court, the U.S. Supreme Court granted a petition for Writ of Certiorari to the Ninth Circuit. Today, it affirmed the Ninth Circuit decision in favor of the parents.
The opinion by Justice Stevens, writing for the six justice majority held ". . . IDEA authorizes [tuition] reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school." (slip opinion p. 1, ____ S.Ct. ____, 2009 WL 1738644, 77 USLW 4550)
The decision is not an unfettered win for the parents. The hearing officer or the District Court must consider the parents' behavior as well as the district's actions when arriving at a decision concerning reimbursement under the equitable reimbursement section of the IDEA, 20 USC §1415(i)(2)(C). The Court held that the District Court was incorrect to have interpreted 20 USC §1412(a)(10)(C) as prohibiting reimbursement of tuition to parents of private school kids to whom the District never offered special education services, despite the Court's holding in School Comm. of Burlington v. Department of Ed. of Mass., 471 U. S. 359, 370. The Supreme Court remanded the case to the District Court with instructions to reconsider the parents' petition for reimbursement, bearing in mind the factors set forth in Burlington.
This decision is particularly interesting because the Court recently in Board of Ed. of City School Dist. of New York v. Tom F. under a similar fact situation, the justices split 4-4 with Justice Kennedy recusing. One might have expected the Court to have issued its opinion with a closer 5-4 decision here in Forest Grove, rather than the 6-3 determination.
Further information about the case may be found at the SCOTUSBlog WIKI site and at Wrightslaw.com.
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UPDATE January 16, 2009: The Forest Grove School District has filed a Petition for Writ of Certiorari with the U.S. Supreme Court (Docket 08-305) seeking clarification and a resolution of the conflict among the circuits. The Petition was originally distributed for consideration at the October 17th conference. However, time was extended to respond to the Petition until at least December 3d. The Supreme Court has granted the Petition for Certiorari. The briefing schedule will probably carry the case to the end of Term, leaving oral argument and the Court's opinion for next Term.
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(May 24, 2008)
The issue is whether a local educational agency (LEA) or school district is required to pay for or reimburse parents for private school tuition for a student who never received special education and related services from a school district. This issue has recently been before the U.S. Supreme Court in New York City Board of Education vs. Tom F. on certiorari from the Second Circuit. In Tom F., the Supreme Court divided equally, 4 to 4, with Justice Kennedy recusing himself, having the effect of affirming the Second Circuit's opinion favoring the parents without setting a precedent.
Now, on appeal from a decision of the U.S. District Court in Oregon, in Forest Grove School District vs. T.A. [--- F.3d ----, 2008 WL 1849174, 08 Cal. Daily Op. Serv. 4931, C.A.9 (Or.), April 28, 2008 (NO. 05-35641)], The Ninth Circuit finds that it is not necessary for a disabled child from Oregon to have received special education services from the school district in order to be eligible for tuition reimbursement. In doing so, the Ninth Circuit joins the Second and Eleventh Circuits. The Forest Grove opinion can be downloaded here.
The parties and the court agreed that T.A. never received special education and related services from a public agency and therefore was not eligible for reimbursement under [20 U.S.C.] §1412(a)(10)(C)(ii). The court set its task as determining whether students, such as T.A., nonetheless "remain eligible for private school reimbursement, as they were before 1997, under principles of equity pursuant to § 1415(i)(2)(C)."
The court found that the provisions of the section are not exclusive. Rather, it found that the conditional language requiring the student to have "previously received special education and related services" were a condition precedent to recovery under that section. Further, it cited with approval the Second Circuit's reasoning that the section is ambiguous because the text does not clearly bar recovery and any such bar would be in "tension with the broader context of the statute."
"In amending the IDEA in 1997, Congress chose to specify in §1412(a)(10)(C) the requirements and factors to be considered by district courts and hearing officers when deciding whether to award reimbursement to students who previously received special education and related services. For students who never received special education and related services, however, the new provisions of §1412(a)(10)(C) simply do not apply. For those students, reimbursement may be sought only under principles of equity pursuant to §1415(i)(2)(C)."
After an analysis of the equities, the Ninth Circuit remanded the case to the District Court to determine the equitable amount of reimbursement due the student consistent with its opinion.
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vaccine court reaches decision
The special vaccine court created by Congress to determine, among other things, whether there is a link between childhood vaccinations and autism spectrum diseases has ruled against the connection. An article today in the Washington Post relays the information that the Court ruled, although a finding of only a "preponderance of the evidence" would have been sufficient, the plaintiffs' presentation in all three cases was insufficient to meet that standard.
placement before IEP as IDEA procedural violation (update)
UPDATE June 23, 2008: The U.S. Supreme Court published orders from its private conference held June 19th – the last of the year. The petition for writ of certiorari in Joel Hjortness v. Neenah Joint School District (07-1178) was denied, leaving the the Court of Appeals' affirmance of the District Court's summary dismissal of the parents' action intact.
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(June 5, 2008)
A petition to the U.S. Supreme Court for certiori to the Seventh Circuit asks whether a school district has violated the parents' procedural safeguards when it predetermines a child’s placement before an IEP meeting with the parents and before an IEP has been formulated.
The parents' petition, Joel Hjortness v. Neenah Joint School District (07-1178), will be considered by the Court at its June 19, 2008 private conference – the final conference before the end of the term. The Court of Appeals affirmed the District Court's reversal of the administrative law judge's finding and granting summary dismissal on the petition of the school district.
Although the issues considered by the ALJ and the Court of Appeals are more complex, the single issue raised by the parents deals with the school's decision to place the child in a local school prior to holding an IEP team meeting or formulating an IEP. The District's Brief in Opposition is here and the petitioner's Reply Brief is here. Amicus briefs supporting the parents have been filed by Autism Speaks and the Tourette Syndrome Association, Inc. (Thanks to SCOTUSBlog for the links.)
The petitioning parents are represented by Sidley Austin in Washington assisted by the Supreme Court Practicum at the Northwestern University Law School. If certiorari is granted, a more complete analysis of the case will be undertaken.
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supreme ct. declines cert on IDEA/504/ADA damages case
The U.S. Supreme Court today declined to grant certiorari in a case which sought to contrast the position of the First Circuit with every other federal circuit on the issue of damages claims under both the ADA and §504 of the Rehabilitation Act of 1973 when a child is disabled under the IDEA. (Burke v. Brookline School District, 07-1175).
Petitioners sought compensatory damages against the School District which, they claimed, "coerced, intimidated, interfered with, and retaliated against Parents while Parents were engaged in educational advocacy on behalf of their child." The district court dismissed their complaint for failure to state a claim and the Court of Appeals summarily affirmed. (Thanks to SCOTUSblog for the update)
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fallbrook family challenges the OAH (update)
UPDATE June 10, 2008: District Court Judge Thomas J. Whelan denied Attorney Dowd's motion for a temporary restraining order to block the CDE from renewing a contract with the OAH on April 30th and, on request for reconsideration, again on June 10th. Judge Whelan said that the plaintiffs are unlikely to succeed on the merits.
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A Fallbrook, California family has filed a class action suit in U.S. District Court in San Diego which asserts that judges from the California Office of Administrative Hearings (OAH) are unqualified, inadequately trained and make decisions concerning special education issues in favor of the school districts significantly more often than parents. The case, C.S. v. California Department of Education (3:08-cv-00226-W-AJB), was filed February 5, 2008. The plaintiff class is represented by Ellen J. Dowd of San Diego.
The litigation challenges the renewal of OAH's contract with the state to provide mediation and administrative hearing services. The current contract expires on June 30th. Prior to 2005, these services were provided by the Special Education Hearing Office (SEHO) at McGeorge School of Law in Sacramento. (2/19/2008)
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