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Special Education Circuit Court Rulings Roundup – Summer 2021

September 08, 2021


By: Lily Crespo Esq.

A busy summer: Federal Circuit Courts decided 15 cases involving students with disabilities between June 1 and Aug. 31, 2021. This is the first summer since 2015 in which Circuit Courts issued more precedential decisions than “unpublished” decisions, which only apply to the parties involved in the case. (Amy E. Slater, Esq, LRP Special Ed Connection). Relevant decisions are listed below by topic. While some of them may not be binding law in Montana, they certainly provide guidance on trends in SpEd law across the country.

Attorney’s fees

  • Oskowis v. Sedona-Oak Creek Unified Sch. Dist. #9, 79 IDELR 91 (9th Cir. 2021, unpublished). An Arizona district that successfully defended a parent’s appeal of three due process complaints that administrative law judges had dismissed as frivolous could recover a substantial portion of the legal expenses it incurred. The 9th Circuit affirmed a District Court ruling at 75 IDELR 93 that ordered the parent to pay the district $41,244 in attorney’s fees and $557 in court costs.


  • Judge Rotenberg Educ. Ctr. Inc. v. U.S. Food and Drug Admin., 79 IDELR 35 (D.C. Cir. 2021). Although the D.C. Circuit did not address whether a Massachusetts school for students with disabilities should be using an electric shock device as an aversive behavioral intervention, it held that the FDA lacked the authority to ban such devices when used to address aggressive or self-injurious behaviors. The court vacated an FDA rule issued in March 2020 that prevented the school from using a “graduated electronic decelerator” on its students.

Child find

  • D.C. v. Klein Indep. Sch. Dist., 79 IDELR 4 (5th Cir. 2021, unpublished). The parents of a child who spent much of elementary school struggling to understand what he read established that a Texas district violated child find by waiting months to evaluate the student under the IDEA after it should have suspected he had a disability. The 5th Circuit affirmed a District Court’s decision at 76 IDELR 208 that the district’s delay was unreasonable and denied the student FAPE.

Constitutional claims

  • T.O. v. Fort Bend Indep. Sch. Dist., 79 IDELR 2 (5th Cir. 2021). Because a fourth-grade math teacher acted with an educational purpose when she used physical force on a Texas first-grader with ADHD and oppositional defiant disorder who was misbehaving in a school hallway, the parents could not sue her for violating their son’s 14th Amendment rights. The 5th Circuit affirmed the District Court’s dismissal of the parents’ constitutional claims at 76 IDELR 93.
  • J.W. v. Paley, 79 IDELR 3 (5th Cir. 2021, unpublished). Noting that it not yet determined whether students have a Fourth Amendment right to be free from excessive disciplinary force by school officials, the 5th Circuit held that a school resource officer was immune from claims that he violated the constitutional rights of a 17-year-old boy with disabilities when he tased the teen to prevent him from leaving the school. The 5th Circuit reversed a District Court ruling at 74 IDELR 157 that rejected the Texas SRO’s qualified immunity defense.

COVID-19 litigation

  • Brach v. Newsom, 79 IDELR 61 (9th Cir. 2021). Although California officials did not violate the constitutional rights of public school students when they banned in-person instruction in counties with higher numbers of COVID-19 cases, they violated the 14th Amendment rights of parents whose children attended private schools. The 9th Circuit reversed and remanded a District Court ruling at 77 IDELR 285 to the extent it held that the state’s restrictions on private school operations were constitutional.


  • A.R. v. Connecticut State Bd. of Educ., 79 IDELR 34 (2d Cir. 2021). Because the state of Connecticut made free public education programs available to nondisabled students between the ages of 21 and 22, it had to provide FAPE to students with disabilities in the same age range. The 2d Circuit affirmed a District Court ruling at 76 IDELR 241 that enjoined the state from terminating students’ eligibility for special education services before their 22nd birthdays.

Exhaustion of remedies

  • Perez v. Sturgis Pub. Schs., 79 IDELR 1 (6th Cir. 2021). A Michigan district’s settlement of an IDEA due process complaint arising out of its prolonged failure to provide a deaf student with a qualified interpreter paid off when the student later sought emotional distress damages under the ADA. The 6th Circuit held that the student’s failure to exhaust his administrative remedies entitled the district to a dismissal of the ADA lawsuit.
  • T.R. v. School Dist. of Philadelphia, 79 IDELR 33 (3d Cir. 2021). Parents who alleged that a Pennsylvania district systemically failed to provide the interpreting services and document translations they needed to participate effectively in IEP meetings could not sue the district under the IDEA, Section 504, or the ADA. The 3d Circuit upheld a District Court ruling at 76 IDELR 189 that the parents failed to plead the “systemic violation” exception to the IDEA’s exhaustion requirement.
  • Student A v. San Francisco Unified Sch. Dist., 79 IDELR 122 (9th Cir. 2021). The parents of five unrelated students with disabilities could not circumvent the IDEA’s exhaustion requirement simply by alleging that a California district delayed evaluations and developed “cookie-cutter” programs as a matter of policy. The 9th Circuit upheld a District Court’s ruling at 76 IDELR 4 that the parents could not sue the district for alleged IDEA, Section 504, and ADA violations without first seeking relief in an administrative hearing or through a state complaint.

Independent Educational Evaluations

  • L.C. v. Alta Loma Sch. Dist., 78 IDELR 271 (9th Cir. 2021, unpublished). Noting that a California district communicated with an 11-year-old boy’s parent for more than three months in an attempt to work out a dispute over the cost of a visual processing IEE, the 9th Circuit held that the district did not violate the IDEA by waiting 84 days to request a due process hearing. The 9th Circuit reversed the District Court’s holding at 74 IDELR 261 that the district unnecessarily delayed the IEE process.


  • Alvarez v. Swanton Local Sch. Dist., 78 IDELR 272 (6th Cir. 2021, unpublished). An Ohio district did not violate the IDEA when it placed a high schooler with multiple disabilities on home instruction as a temporary measure while it attempted to address her parents’ concerns about her interactions with a male schoolmate. The 6th Circuit held that the delay in returning the teen to a school-based program stemmed from the parents’ actions, and not any conduct by the district.


  • E.E. v. Norris Sch. Dist., 79 IDELR 32 (9th Cir. 2021). The parents of a 7-year-old boy with autism did not forfeit their son’s stay-put rights when they filed an IDEA due process complaint that alleged defects in his last-implemented IEP. The 9th Circuit denied a California district’s request to create an exception to the IDEA’s pendency provision that would keep parents from invoking stay-put protections if they allege the current placement failed to offer FAPE.
  • Y.B. v. Howell Twp. Bd. of Educ., 79 IDELR 31 (3d Cir. 2021). A New Jersey district did not violate the IDEA by offering to serve an intrastate transfer student with Down syndrome in one of its own elementary schools instead of continuing the publicly funded private placement arranged by his former LEA. Holding that the IDEA’s stay-put provision did not apply, the 3d Circuit upheld a District Court ruling in the district’s favor at 76 IDELR 102.
  • Hatikvah Int’l Acad. Charter Sch. v. East Brunswick Twp. Bd. of Educ., 79 IDELR 121 (3d Cir. 2021). Although a New Jersey district played no role in a charter school’s decision to place a 9-year-old boy with multiple disabilities in a private school, it had to pay for the student’s tuition and transportation expenses just the same. The 3d Circuit ruled that state law made the district responsible for the student’s pendency placement.

What these decisions mean for educators in Montana: As mentioned above, some of these cases are not binding in the 9th Circuit. However, noting the trends will allow educators to learn what issues are hitting other districts and how the courts are responding.

  • Special education litigation trends: The issues addressed in special education cases may offer some hints as to the types of disputes that are becoming more common. Exhaustion of remedies and stay-put placements are popular issues at both the Circuit Court and the U.S. District Court level. Other common issues include child find, FAPE, bullying and harassment, abuse and neglect, and negligence. One notable trend is the increase in Title IX cases involving students with disabilities. Three of the seven Title IX rulings from 2021 were issued during the summer months. Because those claims tend to focus on the district’s response to alleged sexual harassment, districts may want to brush up on Title IX considerations for students with disabilities.
  • What about COVID-19 cases? As was the case last year, court rulings about the provision of FAPE during the coronavirus pandemic are few and far between. That’s because the IDEA’s exhaustion provision requires parents to seek relief in an administrative proceeding before suing their child’s district for a denial of FAPE. Federal courts have addressed several disputes about payment for private school services provided during the extended school closures. Still, educators and attorneys may have a while to wait before the substantive FAPE claims make their way to the courts.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.

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