Posted on December 21, 2020
By: Lily Crespo Esq.
While overshadowed in some ways by the Covid-19 pandemic, the realm of special education saw some notable federal court decisions in 2020. During the last 12 months we saw cases of first impression about the IDEA’s exhaustion requirement, independent educational evaluations, and stay-put. Federal courts also addressed child find, IDEA eligibility, attorney’s fees, and the provision of FAPE during the extended school closures.
- Fry limited by 9th Circuit to claims for denial of FAPE as defined by IDEA
Case name: McIntyre v. Eugene Sch. Dist. 4J, 77 IDELR 121 (9th Cir. 2020).
Ruling: Because a high school graduate with attention deficit disorder and Addison’s disease was not alleging a denial of FAPE as defined by the IDEA, she did not have to seek relief in an administrative proceeding before suing an Oregon district for its alleged failure to accommodate her disabilities. The 9th U.S. Circuit Court of Appeals reversed a District Court ruling at 73 IDELR 204 that dismissed the student’s Section 504 and ADA on exhaustion grounds.
What it means for educators: Most Circuit Courts have interpreted Fry v. Napoleon Community Schools, 69 IDELR 116 (U.S. 2017), as requiring students to exhaust any non-IDEA claims alleging a denial of FAPE. This decision is the first to suggest that the Fry rule only applies when a student seeks relief for a denial of FAPE as defined by the IDEA. Here, the student claimed the district failed to implement the testing accommodations and health protocol in her Section 504 plan. Because those accommodations did not qualify as “special education” or “related services” under the IDEA, she did not have to exhaust her administrative remedies.
- 2d Circuit: FBAs aren’t ‘evaluations’ for purposes of IEE requests
Case name: D.S. v. Trumbull Bd. of Educ., 77 IDELR 122 (2d Cir. 2020).
Ruling: Parents who disagreed with a Connecticut district’s functional behavioral assessment of an eighth-grader with multiple disabilities were not entitled to an IEE at public expense. The 2d U.S. Circuit Court of Appeals ruled in a case of first impression that an FBA is not an “evaluation” that triggers a parent’s right to a publicly funded IEE. The 2d Circuit reversed a District Court ruling at 73 IDELR 228 and remanded the case for further proceedings.
What it means for educators: This ruling is a significant departure from the U.S. Education Department’s long-standing view that a parent who disagrees with an FBA has a right to seek an IEE at public expense. See Questions and Answers on Discipline Procedures, 52 IDELR 231 (OSERS 2009). However, it only discusses FBAs as “evaluations” in the context of publicly funded IEEs; it does not address parental consent requirements or a parent’s ability to challenge an FBA as an assessment tool. Districts in Connecticut, New York, and Vermont should keep these omissions in mind when responding to requests for publicly funded IEEs that reference allegedly inappropriate FBAs.
- 5th-grader’s noncompliance, aggression show urgent need for IDEA evaluation
Case name: Spring Branch Indep. Sch. Dist. v. O.W., 76 IDELR 234 (5th Cir. 2020).
Ruling: A Texas district violated the IDEA by waiting 99 days to refer an academically gifted fifth-grader with oppositional defiant disorder and other disabilities for a special education evaluation. For the second time in nine months, the 5th U.S. Circuit Court of Appeals affirmed a District Court ruling at that the district violated its child find obligation.
What it means for educators: The frequency and severity of a student’s behaviors can be important factors when determining whether a delay in the IDEA referral process was reasonable. While a district may attempt to manage age-typical behaviors with classroom-level interventions, it may need to act more quickly when a student is aggressive or violent. This district attempted to address the student’s behaviors, which included yelling profanities and throwing objects at the teacher, by implementing a reward system for good behavior. The ineffectiveness of those interventions, as evidenced by the district’s use of restraint on eight occasions, should have prompted the district to evaluate sooner.
- ED violates IDEA by enforcing state’s age limit for special education
Case name: A.R. v. Connecticut State Bd. of Educ., 76 IDELR 241 (D. Conn. 2020).
Ruling: Because the Connecticut State Board of Education allowed nondisabled students over age 21 to participate in public education programs, it violated the IDEA by enforcing a state law that terminated students’ eligibility for special education and related services at the end of the school year in which they turned 21. The U.S. District Court, District of Connecticut granted judgment for the students on their IDEA class action and instructed the state ED to consider each affected student’s need for compensatory education.
What it means for educators: Any state that oversees a publicly funded adult education program designed to help participants earn high school diplomas should take a close look at its age limit for IDEA eligibility. A state that makes public education available to nondisabled students ages 21 and older will almost surely find itself defending an IDEA claim if it terminates students’ eligibility for special education services before their 22nd birthdays. Here, the state ED’s focus on the nontraditional aspects of its adult education programs did not change the fact that it only made public education available to nondisabled individuals in that same age group.
- Parents can’t use stay-put to compel district to fund preferred TBI program
Case name: Ventura de Paulino v. New York City Dep’t of Educ., 76 IDELR 173 (2d Cir. 2020), petition for cert. filed (11/19/20) (No. 20-713).
Ruling: Parents who transferred two unrelated students with traumatic brain injuries from one private TBI school to another based on their dissatisfaction with recent changes in the first school’s management could not recover the cost of the second TBI school from a New York district. The 2d U.S. Circuit Court of Appeals held in a case of first impression that the alleged similarities between the programs did not allow the parents to alter the students’ stay-put placements. The 2d Circuit affirmed a judgment at 119 LRP 22170 and vacated a remanded decision at 74 IDELR 202.
What it means for educators: Although a district may move a student with a disability from one location to another without violating the IDEA’s stay-put provision, parents do not share that right. Parents who enroll an IDEA-eligible student in a private school while a FAPE complaint is pending do so at their own financial risk. In this case, both students’ parents obtained due process decisions that identified the first TBI school as their children’s stay-put placement. Even if the two schools offered “substantially similar” programs as the parents claimed, the district’s stay-put obligation ended when the parents unilaterally enrolled the students in the second school.
- Anxiety-related absences establish gifted teen’s need for IDEA services
Case name: Independent Sch. Dist. No. 283 v. E.M.D.H., 76 IDELR 203 (8th Cir. 2020).
Ruling: Because a high schooler’s anxiety and depression prevented her from accessing the general education curriculum, a Minnesota district erred in finding the student ineligible for IDEA services based on her above-average academic performance. The 8th U.S. Circuit Court of Appeals affirmed a decision at 74 IDELR 19 that the district denied the student FAPE. It also reinstated an administrative order at 118 LRP 28734 that required the district to pay for private tutoring.
What it means for educators: While an eligibility team may (and should) consider a student’s academic ability when determining her need for specialized instruction, it can’t rely solely on that factor. The team also needs to consider factors such as frequent absences and the student’s ability to access the general education curriculum. Not only was this district aware that the student’s absences stemmed from her mental health issues, but it knew she had earned very few course credits. That information undercut the district’s argument that the student’s standardized test scores and exceptional performance on the days she attended school made her ineligible for special education.
- Bureau of Indian Education must comply with Section 504, but not ED regs
Case name: Stephen C. v. Bureau of Indian Educ., 76 IDELR 182 (D. Ariz. 2020).
Ruling: Noting that it misunderstood the Bureau of Indian Education’s previous legal arguments regarding its alleged failure to identify children with trauma-related disabilities, the U.S. District Court, District of Arizona vacated its prior holding that Section 504 does not apply to the BIE. The court held that students belonging to the Havasupai tribe were entitled to judgment on the first of their two Section 504 claims against the BIE.
What it means for educators: Although the BIE isn’t subject to the Section 504 regulations adopted by ED, it must comply with the more general Section 504 provisions on disability discrimination. This includes the Section 504 regulations adopted by the U.S. Department of the Interior, which prohibit the BIE from discriminating against qualified individuals on the basis of disability. Here, the BIE did not argue that it complied with Section 504; instead, it told the court it was taking steps to come into compliance. The court indicated it would consider those steps when determining an appropriate remedy for the affected students.
- Timeline for IDEA appeals also applies to claims for legal fees, 8th Cir. Says
Case name: Richardson v. Omaha Sch. Dist., 76 IDELR 145 (8th Cir. 2020), petition for cert. filed (U.S. 09/23/20) (No. 20-402).
Ruling: An Arkansas district did not have to defend an IDEA claim for attorney’s fees that the parents of a sixth-grader with autism filed 234 days after an independent hearing officer issued a decision in their favor. The 8th Circuit affirmed a District Court ruling at 74 IDELR 138 that dismissed the parents’ fee claim as untimely. It also upheld a judgment for the district on the parents’ Section 504 and ADA claims.
What it means for educators: The 8th Circuit has joined the 6th and 7th U.S. Circuit Courts of Appeal in holding that the limitations period for IDEA appeals applies to fee claims. In the 8th Circuit, however, the clock doesn’t start on a parent’s fee claim until after the timeline for appealing the IHO’s decision has expired. Districts within the 8th Circuit will need to keep this rule in mind when evaluating the timeliness of a parent’s fee claim. Here, the parents’ failure to file within 180 days, or 90 days after the district’s 90-day appeal window had expired, made their fee claim untimely.
- Teachers union can’t stop Ill. district from enforcing IEP revision deadline
Case name: Chicago Teachers Union v. DeVos, 76 IDELR 237 (N.D. Ill. 2020).
Ruling: In a case arising out of the coronavirus-related school closures, a teachers union could not prevent an Illinois district from requiring school staff to develop remote learning plans for all students with IEPs and Section 504 plans by the end of the SY 2019-20. The U.S. District Court, Northern District of Illinois denied the union’s motion for a court order that would allow additional time for IDEA and Section 504 compliance.
What it means for educators: It’s highly unlikely that a court will prohibit a district from enforcing IDEA and Section 504 requirements during the COVID-19 pandemic. Because the U.S. Education secretary declined to recommend that Congress waive any statutory or regulatory provisions, those requirements will remain in effect unless Congress acts on its own. Still, districts should not disregard how the stress of complying with the IDEA and Section 504 during extended school closures is affecting teachers and other school-level personnel. This district might have avoided litigation by working more closely with educators to develop a plan for updating students’ IEPs in a timely manner.
- LEA must provide in-person services during pandemic, safety permitting
Case name: L.V. v. New York City Dep’t of Educ., 77 IDELR 13 (S.D.N.Y. 2020).
Ruling: Adopting a federal magistrate judge’s report and recommendation at 120 LRP 20667 , the U.S. District Court, Southern District of New York ordered a district to provide in-person services to a 5-year-old with autism to the extent it can safely do so during the COVID-19 pandemic. The District Court reasoned that the district failed to explain how delivering the child’s applied behavior analysis therapy and other services via a tablet would provide him FAPE. However, the District Court denied the parent’s request for an order requiring the district to establish a fund the parent could access to purchase services.
What it means for educators: In deciding whether to provide a child’s special education services remotely during the pandemic, a district should address whether the method of delivering instruction will enable the child to receive FAPE. This may require conducting an assistive technology evaluation and considering whether the child’s disability-related characteristics will make the proposed method of providing remote instruction unfeasible. This district allegedly provided the child a tablet to receive his one-to-one services. Before doing so, the district should have addressed the effectiveness of this delivery method, given the child’s autism and difficulty sitting still in front of a screen.
As you consider this summary of cases and other issues, we recommend you keep in touch with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.