Court Cases - Special Education - Dr. William Allan Kritsonis

PRAIRIE VIEW A&M UNIVERSITY PUBLICE SCHOOL LAW ADMN 5023 William Alan Kritsonis, PhD Professor FAPE Submitted By: Lola Higgins, Reginald Green, and Danyelle Reece July 13, 2009

Higgins, Green, Reece FAPE INTRODUCTION The Individuals with Disabilities Education Act (IDEA) is the law that provides your child with the right to a free, appropriate public education (FAPE). The purpose of the IDEA is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living..." 20 U.S.C. 1400(d) (Wrightslaw: Special Education Law, 2nd Edition, page 20). The Board of Education v. Rowley case is significant because it established the principle that school districts are not required to maximize the potential of a child but provide some educational benefit to the child and how courts would examine future disputes under IDEA (Walsh, Kemerer, and Maniotis, 2005). Case One United States Supreme Court BOARD OF EDUCATION OF THE HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, WESTCHESTER COUNTY, v. AMY ROWLEY, by her parents, ROWLEY et al. No. 80 – 1002 LITIGANTS Plaintiffs – Petitioners: Board of Education of the Hendrick Hudson Central School District, Westchester County, et al. Defendant – Respondent: Amy Rowley, by her parents, Rowley, et., al. BACKGROUND The Education for All Handicapped Children Act of 1975 (IDEA), provides federal money to assist state and local agencies in educating handicapped children, and federally fund States in compliance with extensive goals and procedures. The Act represents an ambitious federal effort to promote the education of handicapped children, and was passed in response to Congress' perception that a majority of handicapped in the United States "were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to 'drop out.'" The Acts evolution and major provisions shed light on the question of statutory interpretation which is at the heart of this case. 2

Higgins, Green, Reece Congress first addressed the problem of education the handicapped in 1966 when it amended the Elementary and Secondary Education Act of 1965 to establish a grant program "for the purpose of assisting the States in the initiation, expansion, and improvement of programs and projects for the education of handicapped children. That program was repealed in 1970 by the Education for the Handicapped Act, Pub. L. No. 91-230, 84 Star, 175, Part B of which established a grant program similar in purpose to the repealed legislation. Neither the 1966 nor 1970 legislation contained specific guidelines for state use of the grant money; both were aimed primarily at stimulating the States to develop educational resources and to train personnel for educating the handicapped. Dissatisfied with the progress being made under these earlier enactments, and spurred by two district court decisions holding that handicapped children should be given access to a public education, Congress in 1974 greatly increased federal funding for education of the handicapped and for the first time required recipient States to adopt "a goal of providing full educational opportunities to all handicapped children." Pub. L. 93-380, 88 Stat. 579, 583 (1974) (the 1974 statue). The 1974 statute was recognized as an interim measure only, adopted "in order to give the Congress an additional year in which to study what if any additional Federal assistance [was] required to enable the States to meet the needs of handicapped children." H.R. Rep. No. 94-332, supra, p.4. The ensuing year of study produced the Education for All Handicapped Children Act of 1975. In order to qualify for federal financial assistance under the Act, a State must demonstrate that it "has in effect a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. 1412(1). The "free appropriate public education" required by the Act is tailored to the unique needs of the handicapped child by means of an 'individualized educational program" (IEP). In addition to the state plan and the IEP already described, the Act imposes extensive procedural requirements upon State receiving federal funds under its provisions. Parents or guardians of handicapped children must be notified of any proposed change in "the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child," and must be permitted to being a complaint about "any matter relating to" such evaluation and education. 1415(b)(1)(D) and (E).6 Complaints brought by parents or guardians must be resolved at "an impartial due process hearing," and appeal to the State educational agency must be provided if the initial hearing is held at the local or regional level. Thus, although the Act leaves to the States the primary responsibility for developing and executing educational programs for handicapped children, it imposes significant requirements to be followed in the discharge of that responsibility. Compliance is assured by provisions permitting the withholding of federal funds upon determination that a participating state or local agency has failed to satisfy the requirements of the Act, 1414(b)(A), 1416, and by the provision for judicial review. At present, all States except New Mexico receive federal funds under the portions of the Act at issue today. FACTS 3

Higgins, Green, Reece Amy Rowley is a deaf student in New York. Amy has minimal residual hearing and is an excellent lipreader. During the year before she started attending Furnace Woods School, Amy’s parents and school administrators met and decided to place her in a regular kindergarten classroom to determine what supplemental services would be necessary to her education. Several members of the administration took a course in sign-language interpretation, and a teletype machine was installed in the principal’s office to facilitate communication with her parents who are also deaf. After Amy was placed temporarily in the regular classroom, it was determined that she should stay in that class, but be provided with an FM hearing aid to amplify words. Amy successfully finished her kindergarten year. Before Amy entered first grade, an Individualized Education Plan (IEP) was prepared, which provided that Amy should continue to receive her education in the regular classroom and use the FM hearing aid, she should also receive instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week. The Rowleys agreed with parts of this plan, but insisted that Amy also be provided a qualified sign-language interpreter in all of her academic classes instead of the assistance proposed in other parts of the IEP. An interpreter had been placed in Amy’s kindergarten class for a 2-week experimental period, but the interpreter had reported that Amy did not need his services at that time. The same conclusion was reached by the school for Amy’s first grade year. An independent examiner also agreed with the administrators’ determination that an interpreter was not necessary because Amy was achieving educationally, academically, and socially without such assistance. Amy performs better than the average child in her class and is advancing easily from grade to grade. However, she understands less of what goes on in the class than she could if she were not deaf and so she is not learning as much, or performing as well academically, as she would without her handicap. DECISION The Court stated that a “free appropriate public education” is one which consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child “to benefit” from the instruction. If personalized instruction is being provided with sufficient supportive services to allow the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a “free public education.” Absent in the statute is any substantive standard prescribing the level of education to be accorded handicapped children. “By passing the Act, Congress sought primarily to make public education available to handicapped children. But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard 4

than would be necessary to make such access meaningful.” Board of Education v. Rowley, 458 U.S. 176 at 192. The Court says the intent of the act was more to open the Higgins, Green, Reece door of pubic education than to guarantee the level of education once inside. The Court further states that whatever Congress meant by an “appropriate” education, it did not mean a potential-maximizing education. It did not mean the State had to provide specialized services to maximize each child’s potential “commensurate with the opportunity provided other children.” The basic floor of opportunity provided by the Act is access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. DICTA Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for Congress to spend millions of dollars in providing access to public education only to have the handicapped child receive no benefit from that education. The statutory definition of "free appropriate public education," in addition to requiring that States provide each child with "specially designed instruction," expressly requires the provision of "such . . . supportive services . . . as may be required to assist a handicapped child to benefit from special education." 1401(17) (emphasis added). We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. IMPLICATIONS The determination of when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the Act presents a more difficult problem. The Act requires participating States to educate a wide spectrum of handicapped children, from the marginally hearing-impaired to the profoundly retarded palsied. It is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically form those obtainable by children at the other end, with infinite variations in between. One child may have little difficulty competing successfully in an academic setting with nonhandicapped children while another child may encounter great difficulty in acquiring even the most basic of self-maintenance skills. We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to the situation. 5

PRAIRIE VIEW A&M UNIVERSITY PUBLICE SCHOOL LAW ADMN 5023 William Alan Kritsonis, PhD Professor LEAST RESTRICTIVE ENVIRONMENT Submitted By: Lola Higgins, Reginald Green, and Danyelle Reece July 13, 2009 6

Higgins, Green, Reece LEAST RESTRICTIVE ENVIRONMENT INTRODUCTION An important provision of Public Law 94-142 (IDEA) is that all handicapped students be educated in the least restrictive environment (LRE) (Heron & Skinner, 1981). Federal law expresses a strong preference for placing the child with disabilities in the setting in which that child would be served if there were no disability (Walsh, Kemerer, and Maniotis, 2005). However, these requirements continue to generate complex and interesting questions from the field. In particular, this report focuses on questions that have been raised about the relationship of IDEA's LRE requirements to "inclusion." If the goal of IDEA is to mainstream students with disabilities, despite efforts made from administrators, specialists, and staff, how can this be achievable if the child has not made academic progress in the regular classroom? Case One United States Court of Appeals, Fourth Circuit. 950 F.2d. 156 18 IDELR 350 Shannon CARTER, a minor, by and through her father, and next friend, Emory D. Carter, et al., Plaintiffs-Appellee, v. FLORENCE COUNTY SCHOOL DISTRICT FOUR: Ernest K. NICHOLSON, Superintendent, in his official capacity; SCHOOL BOARD MEMBERS; Bennie ANDERSON, Chairman; Monroe FRIDAY, Jack ODOM; Elrita BACOTE; T.R. GREEN; James W. HICKS, in their official capacity No. 91 – 1047 LITIGANTS Plaintiffs – Appellees:Mark Hartmann, et al. Defendant – Appellant: Florence County School District Four, et., al. BACKGROUND Mark Hartmann is an eleven year old child with autism. Autism is a developmental disorder characterized by significant deficiencies in communication skills, social interaction, and motor control. Mark is not able to speak and has severed problems with 7

fine motor coordination. Mark’s ability to write is limited. He types on a keyboard but can only consistently type a few words such as “is” and “at”. Mark has had episodes of Higgins, Green, Reece loud screeching and other disruptive conduct; including, hitting, pinching, kicking, biting, and removing his clothing. The school district proposed removing Mark from the regular classroom and place him in a class structured for children with autism. However, he would be integrated for art, music, physical education, library, and recess. Mark would be allowed to rejoin the regular education setting as he demonstrated an improved ability to handle it. The Hartmanns refused to approve the IEP, claiming that it failed to comply with the mainstreaming provision of the IDEA, which states that "to the maximum extent appropriate," disabled children should be educated with children who are not handicapped. 20 U.S.C. § 1412(5)(B). The county initiated due process proceedings, 20 U.S.C. § 1415(b), and on December 14, 1994, the local hearing officer upheld the May 1994 IEP. She found that Mark’s behavior was disruptive and that despite the "enthusiastic" efforts of the county, he had obtained no academic benefit from the regular education classroom. On May 3, 1995, the state review officer affirmed the decision, adopting both the hearing officer’s findings and her legal analysis. The Hartmanns then challenged the hearing officer’s decision in federal court. While the administrative process continued, Mark entered third grade in the regular education classroom at Ashburn. In December of that year, the Hartmanns withdrew Mark from Ashburn. Mark and his mother moved to Montgomery County, Virginia, to permit the Hartmanns to enroll Mark in public school there. Mark was placed in the regular third-grade classroom for the remainder of that year as well as the next. The district court reversed the hearing officer’s decision. The court rejected the administrative findings and concluded that Mark could receive significant educational benefit in a regular classroom and that "the Board simply did not take enough appropriate steps to try to include Mark in a regular class." The court made little of the testimony of Mark’s Loudoun County instructors, and instead relied heavily on its reading of Mark’s experience in Illinois and Montgomery County. While the hearing officer had addressed Mark’s conduct in detail, the court stated that "given the strong presumption for inclusion under the IDEA, disruptive behavior should not be a significant factor in determining the appropriate educational placement for a disabled child." FACTS Mark spent his pre-school years in various programs for disabled children. In kindergarten, he spent half his time in a self-contained program for autistic children and half in a regular education classroom at Butterfield Elementary in Lombard, Illinois. Upon entering first grade, Mark received speech and occupational therapy one-on-one, but was otherwise included in the regular classroom at Butterfield full-time with an aide to assist him. After Mark’s first-grade year, the Hartmanns moved to Loudoun County, Virginia, where they enrolled Mark at Ashburn Elementary for the 1993-1994 school year. Based on Mark’s individualized education program (IEP) from Illinois, the school placed Mark in a regular education classroom. To facilitate Mark’s inclusion, Loudoun officials carefully 8

selected his teacher, hired a full-time aide to assist him, and put him in a smaller class with more independent children. Mark’s teacher, Diane Johnson, read extensively about Higgins, Green, Reece autism, and both Johnson and Mark’s aide, Suz Leitner, received training in facilitated communication, a special communication technique used with autistic children. Mark received five hours per week of speech and language therapy with a qualified specialist, Carolyn Clement. Halfway through the year, Virginia McCullough, a special education teacher, was assigned to provide Mark with three hours of instruction a week and to advise Mark’s teacher and aide. Mary Kearney, the Loudoun County Director of Special Education, personally worked with Mark’s IEP team, which consisted of Johnson, Leitner, Clement, and Laurie McDonald, the principal of Ashburn. Kearney provided in-service training for the Ashburn staff on autism and inclusion of disabled children in the regular classroom. Johnson, Leitner, Clement, and McDonald also attended a seminar on inclusion held by the Virginia Council for Administrators of Special Education. Mark’s IEP team also received assistance from educational consultants Jamie Ruppmann and Gail Mayfield, and Johnson conferred with additional specialists whose names were provided to her by the Hartmanns and the school. Mark’s curriculum was continually modified to ensure that it was properly adapted to his needs and abilities. Frank Johnson, supervisor of the county’s program for autistic children, formally joined the IEP team in January, but provided assistance throughout the year in managing Mark’s behavior. Mark engaged in daily episodes of loud screeching and other disruptive conduct such as hitting, pinching, kicking, biting, and removing his clothing. These outbursts not only required Diane Johnson and Leitner to calm Mark and redirect him, but also consumed the additional time necessary to get the rest of the children back on task after the distraction. Despite these efforts, by the end of the year Mark’s IEP team concluded that he was making no academic progress in the regular classroom. In Mark’s May 1994 IEP, the team therefore proposed to place Mark in a class specifically structured for autistic children at Leesburg Elementary. Leesburg is a regular elementary school which houses the autism class in order to facilitate interaction between the autistic children and students who are not handicapped. The Leesburg class would have included five autistic students working with a special education teacher and at least one full-time aide. Under the May IEP, Mark would have received only academic instruction and speech in the self- contained classroom, while joining a regular class for art, music, physical education, library, and recess. The Leesburg program also would have permitted Mark to increase the portion of his instruction received in a regular education setting as he demonstrated an improved ability to handle it. DECISION To demand more than this from regular education personnel would essentially require them to become special education teachers trained in the full panoply of disabilities that their students might have. Virginia law does not require this, nor does the IDEA. First, such a requirement would fall afoul of Rowley’s admonition that the IDEA does not 9

guarantee the ideal educational opportunity for every disabled child. Furthermore, when the IDEA was passed, Congress’ intention was not that the Act displace the primacy of Higgins, Green, Reece States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped." Rowley, 458 U.S. at 208. The IDEA "expressly incorporates State educational standards." Schimmel v. Spillane, 819 F.2d 477, 484 (4th Cir. 1987). We can think of few steps that would do more to usurp state educational standards and policy than to have federal courts re-write state teaching certification requirements in the guise of applying the IDEA. In sum, we conclude that Loudoun County’s efforts on behalf of Mark were sufficient to satisfy the IDEA’s mainstreaming directive. DICTA The IDEA embodies important principles governing the relationship between local school authorities and a reviewing district court. Although section 1415(e)(2) provides district courts with authority to grant "appropriate" relief based on a preponderance of the evidence, 20 U.S.C. § 1415(e)(2), that section "is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Board of Education of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). These principles reflect the IDEA’s recognition that federal courts cannot run local schools. Local educators deserve latitude in determining the individualized education program most appropriate for a disabled child. The IDEA does not deprive these educators of the right to apply their professional judgment. Rather it establishes a "basic floor of opportunity" for every handicapped child. Rowley, 458 U.S. at 201. States must provide specialized instruction and related services "sufficient to confer some educational benefit upon the handicapped child," id. at 200, but the Act does not require "the furnishing of every special service necessary to maximize each handicapped child’s potential," id. at 199. IMPLICATIONS The IDEA encourages mainstreaming, but only to the extent that it does not prevent a child from receiving educational benefit. The evidence in this case demonstrates that Mark Hartmann was not making academic progress in a regular education classroom despite the provision of adequate supplementary aids and services. Loudoun County properly proposed to place Mark in a partially mainstreamed program which would have addressed the academic deficiencies of his full inclusion program while permitting him to interact with nonhandicapped students to the greatest extent possible. This professional judgment by local educators was deserving of respect. The approval of this educational approach by the local and state administrative officers likewise deserved a deference from the district court which it failed to receive. In rejecting reasonable pedagogical choices and disregarding well-supported administrative findings, the district court assumed an educational mantle which the IDEA did not confer. Accordingly, the judgment must be reversed, and the case remanded with directions to dismiss it. 10

PRAIRE VIEW A&M UNIVERSITY PUBLIC SCHOOL LAW ADMN 5023 William Allan Kritsonis, PhD SPECIAL EDUCATION Submitted By Reginald P. Green July 13, 2009 11

Green, Higgins, Reece SPECIAL EDUCATION INTRODUCTION “Appropriate” education is one that goes beyond the normal school year. If a child will experience severe or substantial regression during the summer months in the absence of a summer program, the handicapped child may be entitled to year round services. The Education for All Handicapped Children Act (EAHCA) passed in 1975, this act provided support to state special education programs to provide free appropriate public education to disabled children. National precedent establishing the tests for determining the need for an extended school year for special needs children. For the purpose of this case we will determine if there is sufficient enough evidence of regression to justify requiring the district to provide summer services to the student. Case One United States Court of Appeals, Fifth Circuit Alamo Heights Independent School District-Plaintiff-Appellants v. State Board Of Education, et al., Defendants-Apelles 790 F .d 1153 LITIGANTS Plaintiff –Appellant: Alamo Heights Independent School District Defendants – Apelles: State Board of Education Background 12

In the summer 1979, when Steven was seven, his mother moved into the Alamo Heights Independent School District. That school year Steven attended a special education program at Cambridge Elementary School. In the late spring of 1980, Mrs. G. Green, Higgins, Reece requested that the Alamo Heights Independent School District provide summer services for Steven. For seven years prior to 1980 the Alamo Heights School District had offered a summer program to all special education students who were moderately or severely handicapped. The decision to offer the program was made on the administrative level, as a matter of district policy, and any moderate to severely handicapped child was eligible to attend. In the summer of 1980, when Steven would have been eligible for this program, however, the School District changed its policy and offered only a half-day one-month program, without providing transportation. The decision to curtail the summer program was based on its cost and the apparent lack of interest on the part of teachers and eligible students in previous years. No students from Steven's multiply handicapped class took advantage of the 1980 summer program, nor did Steven. It is not clear, however, whether Mrs. G. was not told of the program or whether the lack of transportation and the hours made it impossible for Steven to attend. During that summer, Steven stayed with a baby-sitter who had no training in special education. There was testimony that Steven's behavior deteriorated that summer and that he suffered regression in his ability to stand, point, and feed himself. The next year Mrs. G.'s request for summer services and transportation was refused by school officials, without consultation with Steven's Admission, Review and Dismissal (ARD) Committee or with his teacher. The only caretaker Mrs. G. could find for Steven lived a mile outside of the district boundary, and even during the school year, the School District would not provide out-of-district transportation. Mrs. G. then employed legal counsel and appealed the denial of services to the Texas Education Agency. The administrative hearing officer issued an interim order requesting a meeting of Steven's ARD Committee to consider the issue of summer 13

services. The ARD Committee met and agreed only to provide some adaptive equipment for Steven and to request consultative services from the state during the summer of 1981. On August 21, 1981, the hearing officer issued a "proposal for decision" in which he found that the School District was required to provide summer services and related Green, Higgins, Reece transportation services during 1981, and also required the School District to make a decision regarding summer services for 1982 by March of 1982. Facts Without some kind of continuous, structured educational program during the evidence to conclude that Steven G. would definitely suffer severe regression after a summer without such a program, neither can it conclude that he would not and there is evidence that shows that Steven G. has suffered more than the loss of skills in isolated instances, and that he has required recoupment time of more than several weeks after summers without continuous, structured programming. A summer without continuous, structured programming would result in substantial regression of knowledge gained and skills learned, and, given the severity of Steven G.'s handicaps, this regression would be significant. Decision Mrs. G.'s efforts to obtain the appropriate provision of free educational services for her son were pursued within the administrative framework set up by the State of Texas pursuant to EAHCA guidelines. The success she achieved in requiring the School District to provide Steven with an appropriate individualized educational placement, including summer services, was obtained through and within the "elaborate, precisely defined administrative and judicial enforcement system. Because we find that, whether or denominated due process, the claims upon which Mrs. G. has prevailed are rights granted by the EAHCA, and because the EAHCA contains no provision for attorney's fees, we agree with the district court that no attorney's fees are to be awarded under Sec. 1988. We also find that Mrs. G. is not entitled to attorney's fees under the Rehabilitation Act. In Smith, the Court stated, "Of course, if a State provided services beyond those required by the [EAHCA], but discriminatorily denied those services to a handicapped 14

child, Section 504 [of the Rehabilitation Act] would remain available as an avenue of relief." Mrs. G. asserts that the fact that the School District provided a summer remedial reading program, free of charge, to nonhandicapped children without providing an Green, Higgins, Reece analogous free summer program to handicapped children is a clear instance of discrimination on the basis of handicap in violation of Sec. 504. We do not agree. Under the EAHCA, the School District is required to provide handicapped children with a free, appropriate education geared towards their individual needs. If a handicapped child's IEP requires summer services under the EAHCA, he is entitled to summer services. The fact that the School District affords some nonhandicapped children remedial help during the summer does not mean that it is required to offer similar remedial summer guidance to handicapped children, irrespective of whether their individual IEP's provide for structured summer services. The school district's action in Steven's case has not been shown to constitute discrimination on the basis of his handicap distinct from the protection afforded under the EAHCA. Hence, Mrs. G. is not entitled to attorney's fees under 29 U.S.C. Sec. 794a(b), the attorney's fees provision of the Rehabilitation Act. Finally, the School District argues that it was denied due process by the procedures employed by the State Board of Education during the administrative stage of this action. It contends that under Helms v. McDaniel, the hearing officer's initial proposed decision of August 24, 1981 should have been considered the final decision of the case and that the hearing officer's later adoption of the Commissioner of Education's decision was a direct violation of Helms. It contends that the failure of the hearing officer to adopt his initial proposed decision as the final decision of the case denied them due process. The School District does not favor us with any authority for the proposition that an adjudicative officer is prohibited by the due process clause from changing his opinion in the course of an orderly procedure. We find the district court did not err in dismissing the School District's due process claims against the state defendants. 15

Dicta The district court carefully phrased its conclusion and, while it did not explicitly state that the educational program offered by the School District did not meet the "some Green, Higgins, Reece educational benefit" standard of Rowley, the district court showed that it was aware of that decision and its judgment is therefore tantamount to such a conclusion. Hence, we hold that the district court applied the appropriate standard to the factual determinations supported by the record. The general injunctive relief granted by the court was appropriate to ensure that Steven receives the summer programming to which he is entitled under the Act. With respect to out-of-district transportation for Steven G., the district court found that transportation is included in the definition of "related service" under 20 U.S.C. Sec. 1401(a)(17) and that such transportation does not cease to be a related service simply because a parent requests transportation to a site a short distance beyond the district boundaries. Implications The evidence indicates that Todd was receiving benefit from the TISD special education program, and hence, the TISD special education program was an appropriate placement under IDEA. Equally important, the TISD special education program provided Todd with an opportunity to interact with nondisabled peers, and was a less restrictive environment than The Oaks. Thus, regardless of whether Todd extracted any academic benefit from the educational program at The Oaks, Todd's parents' unilateral decision to place him there remains their financial responsibility. For these reasons, the decision of the district court is AFFIRMED. 16

PRAIRE VIEW A&M UNIVERSITY PUBLIC SCHOOL LAW ADMN 5023 William Allan Kritsonis, PhD SPECIAL EDUCATION Submitted By Reginald P. Green 17

July 13, 2009 Green, Higgins, Reece SPECIAL EDUCATION INTRODUCTION In order to assure that all children are given a meaningful opportunity to benefit from public education, the education of children with disabilities is required to be tailored to the unique needs of the handicapped child by means of an individualized education plan (IEP). As a condition of federal funding, IDEA requires states to provide all children with a "free appropriate public education," with the statutory term "appropriate" designating education from which the schoolchild obtains some degree of benefit. This report focuses on parents rights to place their son in a unilateral placement despite the public school program and IEP. The parents by law have the right to request reimbursement for private placement. Case One United States Courts of Appeals, Fifth Circuit TODD L., Mr. and Mrs. L., Defendant-Appellants, v. TEAGUE INDEPENDENT SCHOOL DISTRICT, et al., Plaintiff-Appellee, Docket No. No. 92-8427. LITIGANTS Plaintiffs-Appellant: Todd L., Mr. and Mrs. L., et.al 18

Defendant-Appellee: TEAGUE INDEPENDENT SCHOOL DISTRICT Green, Higgins, Reece BACKGROUND As a condition of federal funding, IDEA requires states to provide all children with a "free appropriate public education," with the statutory term "appropriate" designating education from which the schoolchild obtains some degree of benefit. IDEA requires that children with disabilities be educated to the maximum extent possible with nondisabled children in the least restrictive environment consistent with their needs, a concept referred to as "mainstreaming." In order to assure that all children are given a meaningful opportunity to benefit from public education, the education of children with disabilities is required to be tailored to the unique needs of the handicapped child by means of an individualized education plan (IEP). Complying with IDEA, Todd's local public school district (the Teague Independent School District, "TISD"), in collaboration with Todd and his parents, developed an IEP for Todd. Consistent with IDEA's requirement that special education services be tailored to the unique needs of the child, the IEP emphasized one-on-one instruction in specially equipped classrooms, and reduced the length of Todd's school day from seven hours to two hours. Todd's school day was reduced not for the convenience of school staff, but in response to Todd's inability to tolerate a longer school day without becoming unduly frustrated and discouraged, leading to regression rather than academic progress. The school psychologist specifically found that a shortened school day would be necessary, at least temporarily, to assure that Todd's inability to tolerate frustration did not lead to his giving up on academics altogether and dropping out of school. Though Todd was educated separately from his nondisabled peers for part of the school day, the school arranged for Todd to have contact with nondisabled peers. The goal of Todd's 19

four-year IEP was to provide him with a nonthreatening environment in which he could continue to make academic progress while gradually learning to tolerate a lengthened school day and increased stress. The record indicates that the authors of Todd's IEP fully expected that ultimately Todd would be reintegrated into "the mainstream" of regular classes at the TISD school, and would graduate. Green, Higgins, Reece Facts When Todd's parents sought reimbursement for the costs of Todd's institutionalization, the TISD refused on the grounds that Todd had been able to benefit from the TISD program and that The Oaks placement was more restrictive than necessary to provide Todd with educational benefit. Todd's parents appealed to a special education hearing officer, who found that Todd's parents should be reimbursed. The special education hearing officer found that Todd's parents had established that Todd's local public school was an inappropriate placement while The Oaks was an appropriate placement. According to the hearing officer, there was no evidence that Todd had obtained any benefit from special education at the TISD School. Contending that this factual conclusion was clearly erroneous, and that the hearing officer did not take into account the relative restrictiveness of The Oaks and the TISD School’s special education program, the school district appealed the hearing officer's decision to federal district court. Although the district court indicated that it gave "due weight" to the decision of the hearing officer, the district court concluded, after reviewing all the evidence from the administrative proceeding and hearing additional evidence, that the TISD public school placement was appropriate, and that The Oaks placement was inappropriate. Therefore, the district court reversed the hearing officer's decision to grant Todd's parents reimbursement for the cost of Todd's institutionalization at The Oaks. Todd's parents appeal the district court's decision. We affirm. Decision Having decided that the district court did not err in subjecting the hearing officer's decision to a searching review, it remains only to decide whether the conclusions 20

drawn by the district court were proper. We review de novo, as a mixed question of law and fact, the district court's decision that the local school's IEP was appropriate and that the alternative placement was inappropriate under IDEA. Christopher M. v. Corpus Christi Independent Sch. Dist., 933 F.2d 1285, 1289 (5th Cir.1991). We review the district court's findings of "underlying fact" for clear error. Id. See also Sherri A.D., 975 F.2d at 207. Findings of "underlying fact" include findings that the schoolchild obtained Green, Higgins, Reece any benefit from special education services or would be threatened by a longer school day. Christopher M., 933 F.2d at 1289. If a parent or guardian unilaterally removes a child from the local public school system, the parent or guardian may obtain reimbursement for an alternative placement only if able to demonstrate that the regular school placement was inappropriate, and that the alternative placement was appropriate. School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 373-74, 105 S.Ct. 1996, 2004, 85 L.Ed.2d 385 (1985). If Todd's IEP in the local public school district was appropriate, then there is no need to inquire further as to the appropriateness of The Oaks' program. Under IDEA, an "appropriate" placement is that which enables a child to obtain "some benefit" from the public education he is receiving; not necessarily maximization of his potential. See Rowley, 458 U.S. at 198-200, 102 S.Ct. at 3047. In addition to requiring that the child's placement be appropriate in the sense of providing some benefit, IDEA mandates that to the fullest extent possible, disabled children be educated with non-disabled children in the least restrictive environment. See 20 U.S.C. § 1412(5); Rowley, 458 U.S. at 202, 102 S.Ct. at 3048; Sherri A.D., 975 F.2d at 206 ("Even in cases in which mainstreaming is not a feasible alternative, there is a statutory preference for serving disabled individuals in the setting which is least restrictive of their liberty and which is near the community in which their families live"). A presumption exists in favor of the local public school district's plan for educating the child, provided it comports with IDEA. See Tatro v. State of Texas, 703 F.2d 823, 830 (5th Cir.1983). See generally Rowley, 458 U.S. at 207-08, 102 S.Ct. at 3051. 21

There is ample evidence that Todd received significant benefit from his public school placement. Todd's teacher and school psychologist both testified that Todd made significant progress academically and behaviorally while in the TISD special education program. Not only did Todd advance in terms of grade level, he also became steadily more able to focus on particular tasks for longer periods without experiencing debilitating frustration. At the same time, the TISD special education program provided Todd with Green, Higgins, Reece some opportunity to interact with nondisabled peers, and the opportunity to participate in the affairs of the community in which he lived. Todd's one-on-one instruction at TISD was no more restrictive than necessary to assure that he would receive some academic benefit from special education at TISD. The school psychologist testified that while she would have recommended some sort of residential placement had the district not been able to provide Todd with one-on-one instruction, she would never consider placing a child like Todd at a residential facility as restrictive as The Oaks without first exhausting the full range of less restrictive alternatives. She testified that even though Todd had serious behavior problems, she did not consider him so unruly as to require twenty-four hour supervision in a locked unit. In the school psychologist's opinion, The Oaks was a placement of last resort. By contrast to the unambiguous evidence that Todd benefitted from special education at the TISD school, the evidence that Todd benefitted from educational services at The Oaks is equivocal. The evidence Todd's parents produced to support their claim that Todd benefitted academically from educational programming at The Oaks compares Todd's performance before he received special education services at the TISD school with Todd's performance after he was institutionalized. Hence, it is difficult, if not impossible, to ascertain whether the source of the benefit Todd obtained was provided primarily by the TISD school, or by The Oaks. It is uncontroverted that The Oaks' focus 22

was on behavior management, and that The Oaks devoted only the same or a little more time to Todd's educational programming than did the TISD school. Finally, Todd's placement at The Oaks involved more restrictions on Todd's liberty than any other potential placement, removed Todd from his home community, and completely precluded him from having any contact with nondisabled peers. There is exceedingly little evidence, other than the hospital's willingness to admit Todd, that he required such a restrictive environment. Although we can assume, based on Todd's admission to The Oaks, that a physician Green, Higgins, Reece ratified Todd's parents' decision to hospitalize their son, the great weight of the evidence indicated that he could not only cope, but thrive, in a less restrictive setting. Dicta The evidence indicates that Todd was receiving benefit from the TISD special education program, and hence, the TISD special education program was an appropriate placement under IDEA. Equally important, the TISD special education program provided Todd with an opportunity to interact with nondisabled peers, and was a less restrictive environment than The Oaks. Thus, regardless of whether Todd extracted any academic benefit from the educational program at The Oaks, Todd's parents' unilateral decision to place him there remains their financial responsibility. For these reasons, the decision of the district court is AFFIRMED. Implications The district court carefully phrased its conclusion and, while it did not explicitly state that the educational program offered by the School District did not meet the "some educational benefit" standard of Rowley, the district court showed that it was aware of that decision and its judgment is therefore tantamount to such a conclusion. Hence, we hold that the district court applied the appropriate standard to the factual determinations supported by the record. The general injunctive relief granted by the court was appropriate to ensure that Steven receives the summer programming to which he is entitled under the Act. 23

Court Cases - Special Education - Dr. William Allan Kritsonis

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