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Archive for the Courts Category

District Agrees to Pay Private School Tuition

Posted by on April 16, 2012

After a protracted court battle, a New Jersey school district has agreed to reimburse parents for legal fees and the cost of tuition at a state-approved private school.

The case involves a boy with autism, now 15, placed at a private school by his parents. Initially, the board of education refused to provide an IEP because the boy was not enrolled in the public school.

The settlement was reached through mediation ordered by the U.S. Court of Appeals for the Third Circuit. It lets stand a federal district court decision that found the school district had erred in failing to provide the boy—who lives within the district—an Individualized Education Plan (IEP) on the grounds that he was not enrolled in the local public school. The district argued that, given the boy’s enrollment status, he qualified for a lower level of evaluation and service plan, but not an IEP.

An earlier state court decision found that the boy should have been provided an IEP, but the district appealed that decision, as well.

The district court judge ruled that the boy was entitled to a full IEP from the district in past years, even though his parents had taken him out of the district’s public school and enrolled him in a private school. The decision may have an impact on students with disabilities beyond New Jersey.

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Compensatory Education for Students with Disabilities to Be Reviewed

Posted by on April 16, 2012

“A New Jersey District Court ruled that a child’s claim to compensatory education was moot because the child subsequently moved from New Jersey to another state.”

The U.S. Court of Appeals for the Third Circuit in Philadelphia will review a case that has potential to undermine special education rights for students with disabilities. The case, D.F. v. Collingswood Public Schools, involves access to compensatory education.

Guaranteed by federal law, compensatory education is an award of special education programs or services, such as tutoring, speech or physical therapy, in order to make up for a school district’s failure to provide a “free and appropriate public education,” or FAPE. It is often the only remedy available to students to address past violations.

Last year, a New Jersey district court ruled that a child’s claim to compensatory education was moot because the child subsequently moved from New Jersey to another state.

The New Jersey-based Education Law Center (ELC) filed an amicus brief in the case, urging the Third Circuit to reverse the lower court’s decision, and was joined on the brief by nearly a dozen national and statewide advocacy organizations. The document urges the court to uphold compensatory education awards to children who leave school districts that previously denied them special education programs and services.

The decision has implications for all students with disabilities, but particularly indigent students and others, who may move out of the district, including across state lines.

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Judge Orders Improvements to Special Education for Preschoolers and Toddlers

Posted by on April 14, 2012

A federal judge has ruled that Washington, D.C. public schools must dramatically change the ways in which they identify and serve preschoolers with disabilities.

A class action lawsuit was filed in 2005 by parents of seven young children with disabilities, claiming the school district delayed or blocked services for their children. The ruling now requires the district to ensure that 8.5% of children between the ages of three and five are enrolled in special education and related services, as required by federal law. It also requires that at least 95% of all preschool children referred for services receive timely evaluations.

Recently, the district had been serving as little as 2.7% of these children. For infants through age three, the school district must ensure that at least 95% percent of children in this age group and older that are found eligible for services receive a smooth and effective transition by their third birthdays.

Although there are no deadlines in the judge’s orders, the ruling will remain in effect until its requirements are met.

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U.S. Supreme Court Declines Appeal on Special Education Matter

Posted by on April 11, 2012

The U.S. Supreme Court has declined to hear the appeal of a California school district ordered to provide compensatory tutoring to a teen with learning disabilities.

The case, Compton Unified School District v. Addison, involves a tenth-grade student who had failed every class and whose work, according to court records, was “gibberish and incomprehensible.” A mental health professional urged the district to evaluate the teen for special education, but the district ignored the recommendation, instead promoting her to the next grade. Later, the teen’s mother requested an evaluation, which revealed that the girl’s learning disabilities made her eligible for special education under IDEA.

The mother brought an administrative claim under IDEA, arguing that the district violated IDEA’s “child-find” requirement because it failed to identify her daughter’s disabilities in a timely manner. An administrative law judge ruled in favor of the family’s position, ordering the district to provide compensatory tutoring to make up for the girl’s lost educational opportunities. The district appealed lower court rulings.

The question presented to the Supreme Court was whether the due process hearing procedures under IDEA allow a parent to bring a claim of negligence against a school district for failing to identify a child’s disability, as required by the law’s “child-find” provision. That provision requires that all children with disabilities in need of special education services be identified, located and evaluated.

The high court’s refusal to hear the case lets stand the decision of the lower court.

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Parents Sue over “Automatic Transfer” Policy

Posted by on September 30, 2011

Plaintiffs contend that the district’s “Automatic Autism Transfer Policy” violates state and federal law.

A Pennsylvania judge will soon hear a class action case alleging that a school district is illegally moving children from one school to another based solely on their disability.

The case, brought by the parents of four elementary students with autism, would affect more than 3,000 students in Philadelphia. The plaintiffs contend that the district’s “Automatic Autism Transfer Policy,” which mandates that students with autism move to another school at the end of third and fifth grades, violates state and federal law. They are seeking to have the transfer policy overturned so their children can attend support classes in their current school. No other students, with or without disabilities, have to move.

Autism-support classes are located in various schools throughout the city, requiring most students to be transferred every three years. Most schools that have an autism-support class have a K-2, 3-5, or 6-8 class, but not all three. Two of the parents have already prevailed in due-process hearings, in which judges found that the district violated the Individuals With Disabilities Education Act by forcing students with autism out of neighborhood schools and by allowing classrooms to become overcrowded. The hearing officer, who encouraged the district “to alter its procedures on a broader scope, if only to avoid a plethora of identical claims from similarly situated students,” did not have authority to address the automatic-transfer policy.

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Student’s One-To-One Aid and Other Supports Scaled Back

Posted by on September 30, 2011

The ALJ noted that the teen must “begin the process of becoming independent,” and that a 1:1 aide would make him “reliant upon someone else to take his notes, record his homework assignments, and check to make sure he has all of his books and materials.”

A New Jersey Administrative Law Judge has ruled that a district can scale back supports and services for a college-bound, high-school senior with disabilities.

The case involved an 18-year old with cystic fibrosis classified under the category “other health impaired.” He took general education classes with academic modifications and accommodations. The teen’s parents alleged that the district failed to provide FAPE by not providing the teen with a 1:1 aide, assistive technology, and other services and accommodations to which he had been accustomed.

The district acknowledged that numerous accommodations in the prior IEP had been removed for the 2010–2011 school year, arguing that a 1:1 aide and other supports were not necessary or appropriate for a college-bound student, and would have been “emotionally detrimental” and “academically harmful.” Although he failed the High School Proficiency Assessment (HSPA) in reading, and still showed weakness in language arts, the district argued that he did not have a reading comprehension problem. In ruling for the district, the judge found that the IEP appropriately addressed the teen’s educational and medical needs through breathing therapy during the school day, accommodations and modifications to address frequent absences, extended time for testing and site alterations, among others. He noted that the teen must “begin the process of becoming independent,” and that a 1:1 aide would make him “reliant upon someone else to take his notes, record his homework assignments, and check to make sure he has all of his books and materials.”

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Student with Asperger’s Syndrome to be Placed in Private School at District Expense

Posted by on September 12, 2011

A New Jersey Administrative Law Judge has ruled that a local school district must reimburse parents for the cost of a private, out-of-district program.

“The judge noted that the student’s grades took into consideration effort, and were the result of a lot of prompting, cuing, and modifications.”

The case involved a middle school girl with Asperger’s Syndrome, Central Auditory Processing Disorder, and Attention Deficit Hyperactivity Disorder (ADHD) being treated with medication for depression and anxiety. She had been placed in a local school district’s language and learning classroom and attended select general education classes with the support of an aide. District staff testified that the girl’s odd social behaviors were “disruptive to her learning and the learning of other students.”

Concerned for their daughter’s poor social skills, poor self-esteem, and anxiety, the girl’s parents removed her from the public school, and unilaterally enrolled her in a private school, seeking reimbursement for all costs associated with her enrollment.

The judge found the district failed to demonstrate that the girl had made meaningful progress in her areas of deficiency, noting that “special education and mainstream teachers testified that her grades were modified grades, took into consideration effort, and were the result of a lot of prompting, cueing, and modifications.” He concluded that the girl’s parents were entitled to reimbursement for two years of tuition, as well as associated transportation costs.

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Judge Orders Student to Remain in Private School Through Due Process

Posted by on June 1, 2011

A New Jersey Administrative Law Judge has ordered that a student with disabilities remain in his private school through the course of a placement dispute.

The case involves a 10-year-old student with Aspergers syndrome who had been placed by his district in an approved private school in 2007. When the family moved, the new district convened an IEP meeting and offered placement in its own self-contained “language and learning class,” which the district said was comparable to the program provided at the private school. The judge reviewed the class descriptions—including class size, student-teacher ratio, teacher training and credentials, frequency of instruction and intensity of related services—and found that the program offered by the district was not comparable. The district program was more academically oriented, whereas the private program was oriented to social skills and small group instruction.

Because the program at the private school was the last agreed upon placement, and the district did not offer a comparable program, the private school is the stay-put placement pending the outcome of the due process hearing.

The stay-put provision of the Individuals with Disabilities Education Act (IDEA) requires that a child remain in his or her current educational placement pending the outcome of a due process hearing. By preserving the status quo, the child’s program remains stable and consistent until proceedings under IDEA are finalized.

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Student Denied Opportunity to Return to Local District

Posted by on June 1, 2011

A New Jersey Administrative Law judge has ruled that a teen with multiple disabilities may not return to his home district to complete high school.

The case involves a 16 year-old student with attention deficit/hyperactivity disorder and other conditions who had been placed in a private school. The teen’s mother petitioned her local district to allow her son to return to district to complete his senior year. The district maintained that the private school was appropriate because it offers support, structure, supervision and therapeutic intervention not available in the public school.

The student, who has superior verbal and intellectual skills, was referred to an out-of-district placement in 5th grade due to academic, social and behavioral difficulties. In 9th grade, he returned to the local district, attending a combination of in-class resource, pullout resource and regular education classes. After a brief period of satisfactory behavior, he began failing classes and experiencing the same type of academic and behavior problems he had shown initially. In 10th grade, he was placed on home instruction, and in 11th grade, he was placed in another private school.

The district argued that the teen’s behavior: missed detention, unexcused absences, inappropriate language, inappropriate gestures to staff, bullying and sexual harassment, in combination with his academic needs, required a placement that offered small classes, structure, behavior modification and academic support. They further argued that if the student were placed in the public school, he would not graduate on time, whereas if he completes his current program at the private school, he could receive a diploma in June 2011. He plans to attend college in the fall.

Based on the evidence, the judge concluded that the teen’s placement at the private school did not deprive him of a free, appropriate public education, and denied the petition to return to the home district.

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District Violated IDEA By Determining Placement Outside of IEP Process

Posted by on June 1, 2011

A federal District Court has concluded that a New Jersey school district violated IDEA when it determined a student’s placement before the IEP meeting, and without parental input.

The case involves a 10 year-old girl with an autism spectrum disorder who had been placed full time in a local school’s self-contained autism program for three consecutive years. The girl’s parents sought more time in the general education program and more access to typical peers. They contended that, beginning with the 2007-2008 IEP, the district predetermined her placement outside of the IEP process, failed to consider the full range of options, and failed to allow them to participate in the decision-making process. The parents sought an order requiring the district to develop a new IEP, as well as monetary damages.

The court noted that a student’s placement “must be based on the IEP and not the other way around,” and therefore, it is essential that the IEP be created prior to any placement decision.

Testimony of the parents and district staff confirmed that the district had determined placement before the IEP team meeting. The district’s staff testified that there was no need to discuss other placements because the district had already determined that any greater inclusion time was inappropriate.

Because the district denied the girl’s parents meaningfully participation, it deprived her of a “free, appropriate public education” (FAPE). The court ordered the district to develop a new IEP. It denied the parents’ request for monetary damages, but confirmed that they may seek reimbursement of attorney’s fees.

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