Case Law History

Cynthia QuetschLegal CounselDivision of Special Education

The Federal Statutes

•Elementary & Secondary Education Act of 1965

•Education for All Handicapped Children Act 1975

•Individuals with Disabilities Education Act▫2000▫2004

State Statutes

•Section 162.670 – 162.999▫All children with disabilities under the age

of 21 are entitled to a free and appropriate public education

▫Establishes Missouri School for the Blind, Missouri School for the Deaf and State Schools for the Severely Handicapped soon to be Missouri Schools for the Severely Disabled

State Regulations

•5 CSR 700 series sets forth the regulations for special education

•The State Plan provides detailed instruction on the IDEA as applied in Missouri http://www.dese.mo.gov/divspeced/Compliance/specedlawsregs.html

The Court’s Interpretations

•Board of Education v. Rowley, 102 S. Ct 3034 (1982)▫Deaf child in regular ed kindergarten▫1st grade IEP

Regular classroom Hearing Aid Tutor for the deaf 1 hour per week Speech therapist 3 hours per week

▫Parent’s request sign language interpreter in all classes and school declines

•Due process hearing▫No interpreter needed because Amy is

achieving educationally, academically and socially without assistance.

•Commissioner of Education affirms•District Court

▫Free and appropriate public education (FAPE) was not provided because there was a gap between her achievement and her potential due to her handicap- school must provide interpreter

•2nd Circuit Court of Appeals affirms

•U.S. Supreme Court▫FAPE was provided because there was

personalized instruction with support services that permitted the child to benefit educationally

▫The law does not guarantee a particular outcome- just an educational benefit Passing marks and advancement is an educational

benefit▫Law only requires an open door for disabled

students to be educated with nondisabled peers

The Rowley Standard

•An appropriate education does not mean maximal service- but must convey some educational benefit

•The amount of benefit varies depending on the child and the disability

•This standard had been cited by the courts regularly since 1982

Irving Independent School District v. Tatro, 104 S. Ct. 3371 (1984)•School health services are related

services▫Services provided by a qualified school nurse or person other than a physician

•Health services are supportive services to assist the disabled child to remain in school to benefit from special education

•School provides clean intermittent catheterization every 3 to 4 hours

Cedar Rapids Community School District v. Garrett F., 119 S.Ct. 992 (1999)•Child was ventilator dependent and needed

nursing services during school hours•School district not required to provide medical

services but must provide related services ▫Medical services require a physician▫Related services enable a child to remain in

school •A district a cannot consider costs in making the

decision on whether to provide the service.

School Committee of Burlington v. Department of Education of Massachusetts, 105 S.Ct. 1996 (1985)•Tuition reimbursement case•Parent's can be reimbursed for a

unilateral private placement if▫ the district’s IEP fails to offer FAPE▫AND the parents choice was appropriate

•Court warned – parents who place children in private schools do so at their own financial risk

Florence County School District Four v. Carter, 114 S.Ct. 361 (1993)•Tuition reimbursement can be obtained

even if the placement was to an unapproved private agency (does not comply with IDEA standards)

•Total reimbursement may not be available if the cost was not reasonable

Board of Education of the City School of the City of New York v. Tom F., 128 S. Ct. 1 (2007)

•Student attended private school since kindergarten

•IEP team recommends placement at public school

•Parent’s reject the IEP and stay in private school and file for a due process hearing requesting tuition reimbursement

•Hearing officer awards reimbursement

•State review officer affirms

•District court reverses holding that where a child had not previously received special education from a public agency there is no authority to reimburse tuition expenses for a unilateral placement

•2nd Circuit parents can be reimbursed if they give the district reasonable notice that they reject the IEP and plan to enroll the child in private school

•Supreme Court- by a 4 to 4 decision upholds the 2nd Circuit (parents get reimbursed)

•Because it is a tie decision it is not binding on Missouri schools or courts

•Anticipate either statutory change or future cases to resolve the issue

Zobrest v. Catalina Foothills School District, 113 S. Ct. 2462 (1993)•The provision of a sign language

interpreter by a local school district in a private school does not violate the US Constitution

•The district provided the interpreter to the student (a neutral action) and the parents decided where that would be used (private school)

•The role of an interpreter is different than an instructor or guidance counselor

Missouri law on services in private /parochial schools•Foley v. Special School District of St.

Louis County, 153 F3d 863 (8th Cir. 1998)▫IDEA permits (but does not require) the

provision of services at a private school but the Missouri Constitution does not

▫Private school student has no individual right to special education services Are only eligible for the proportionate share

provisions from the district

Schaffer v. Weast, 126 S.Ct. 528 (2005)

•The burden of proof to show a violation of the IDEA is on the party bringing the action.

Winkleman v. Parma School District, 127 S.Ct. 1994 (2007)

•Parents have rights under the IDEA and can prosecute claims on their own behalf without the assistance of an attorney

•Court did not address whether non-attorney parents can represent their child in a due process hearing.

Fitzgerald v. Camdenton R-III School District, 437 F.3d 773 (8th Cir. 2006)

•A school district cannot require the special education evaluation of a private school student when the parents refuse to consent to an evaluation, privately educate the child and expressly waive all benefits under the IDEA

School Board of Independent School District No. 11, Anoka-Hennepion v. Rennollett, 440 F.3d 1007 (8th Cir. 2006)• A district’s failure to develop a Behavior

Intervention Plan was a procedural error but it did not result in a denial of FAPE because appropriate behavior intervention were implemented

•Procedural error must cause a denial of FAPE to prevail in an IDEA hearing

M.M. v. Special School District No. 1, 512 F.3d 455 (8th Cir. 2008) • “When a child’s primary disability is a

behavioral disorder, the school district does not violate IDEA simply because the child failed to achieve the IEP’s behavioral goals.”

• “When a parent and the school district’s educational professionals agree that a child with a behavior disability needs a change of placement but a cannot agree on an appropriate alternative, the school district must maintain the current, admittedly inappropriate placement under the stay-put IEP until the due process proceedings have concluded, unless the parties agree to an interim alternative placement.”

•“the school district should not be liable if the parent … has rejected both the offer of an appropriate change of placement setting and the offer of interim home schooling services during suspension authorized by the school’s disciplinary policies and consistent with the stay-put IEP.”

Van Duyn v. Baker School District 5J, 502 F.3d 811 (8th Cir. 2007)•A minor failure in implementing an IEP is

not an automatic violation of IDEA

•A material failure is a violation▫Material failure = more than a minor

discrepancy between services provided and IEP requirements

▫No need to show educational harm resulted from the failure

John M. v. Bd. Of Education of Evanston Township High School, 502 F.3d 708 (7th Cir. 2007) •Under stay put the district must

implement the IEP as written

•Methodologies used do not have to be maintained if not set forth in the IEP

•But the “educational experience” must be maintained

How did the parents and district get to court?•The Complaint Process

▫Child Complaints Anyone can file alleging the district has failed

to follow the law Investigated by DESE staff to determine if

the IDEA has been followed Remedy- district is told to comply- no court

action involved

Due Process Complaints

▫Parent or public agency can file concerningDenial of FAPE orAn action to initiate or refuse to initiate or change the identification, evaluation or educational placement of a child

Evidentiary hearing before a 3 person panel

Written order issued on legal questions

Unhappy party can appeal to the courts

Ways to avoid going to court

•Follow the advice of your attorney

•Follow the law

•Make use of the mediation process

•Reach an agreement during the resolution process

OSEP letters•Child find

▫District must include students who are parentally placed in a for profit school in the child find information but they are not entitled to proportionate share

▫The LEA where a private school is located must conduct the initial evaluation of all parentally placed private students (even those whose parents live in a different state)

▫The LEA of the parent's residence must provide FAPE unless the parents make it clear they intend to keep the child in a private placement

•Compensatory Services

▫Personnel providing compensatory services must meet the standards for providing services to regular education students

▫If a child or provider is absent the need for compensatory services is determined by the IEP team on a case by case basis if FAPE has been denied

•Stay put▫Need to conduct IEP meetings every year

including during a pending due process hearing even though the placement cannot be changed

Transition from Part B to Part C

Public agencies may, but are not required to , continue the early intervention services provided in Part C pending the resolutions of a due process hearing filed under Part B

Legislative changes in 2008

•New name for schools▫Missouri Schools for the Severely

Disabled

Alternative Teacher CertificationDoes not apply to Special Education

•Any questions?

•Cynthia QuetschLegal CounselDivision of Special Education