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School Law Updates
January 1, 2008 to March 4, 2008
New North
Carolina laws may increase incentive for bus drivers to take drug or alcohol
tests.
The North
Carolina General Assembly recently amended two laws which, together, will make
it more difficult for school bus drivers and other holders of commercial
drivers licenses (CDL) to continue working after refusing to take a drug or
alcohol test. First, G.S
20-37.19(c) requires employers, including schools, to report employees or
applicants who refuse to participate in a drug or alcohol test (pursuant to
federal regulation, 49 C.F.R. Part 382) to the DMV within five days. Second, G.S. 20-17.4(1) requires the
DMV to disqualify any CDL holder who refuses to take a drug or alcohol
test. The disqualification will
last until the CDL holder completes a substance abuse program.
Source: North Carolina School Boards
Association
IDEA –
IEPs: Parent, not school, was
responsible for the school's failure to implement a student's IEP at the
beginning of the year.
Lessard v.
Wilton Lyndeborough Cooperative Sch. Dist. (1st Cir., Feb. 27, 2008)
The Court of
Appeals for the First Circuit held that, under the Individuals with
Disabilities in Education Act (IDEA), a school was not responsible for failing
to complete and implement a disabled student's individual education plan (IEP)
at the beginning of the year where the student parent's delay was the cause for
the failure. The school completed
the student's IEP before the start of the school year in August. School officials made numerous attempts
to meet with the parent and address any issues; they scheduled two meetings and
sent several letters with forms asking the parent to note her concerns, if any,
with the IEP. The parent, however,
was unresponsive, leading the court to conclude that the school had fulfilled
its duties.
Special
Education: Parent could not be
reimbursed for non-tuition expenses when filing action after child's education
was completed.
School Union No.
37 v. Ms. C., (1st Cir., Mar. 4,
2008)
A parent filed
suit seeking reimbursement for past expenses incurred for room, board and
transportation expenses for a special needs child. The court ruled that the delay was unreasonable, in
part, because the parents had previously paid the student's
non-tuition
expenses.
Source: Westlaw: Newslink Topical Highlights
Age
Discrimination: High Court
clarifies charge requirement for EEOC age discrimination complaints.
Federal Express
v. Holowecki, No. 06-1322 (U.S. Feb. 27, 2008)
The United
States Supreme Court held that to bring an age discrimination claim under the
Age Discrimination in Employment Act (ADEA), workers must at least make a bare
allegation of discrimination and set forth the name of the employer. The Court reasoned that to justify the
expenditure of the Equal Employment Opportunity Commission's time and resources
on age discrimination claims, a worker must bring forward a charge that is
worth looking into.
Source: Supreme Court of the United States Blog
Read the
opinion: http://www.law.cornell.edu/supct/pdf/06-1322P.ZO
Free
Speech: Court applies recent
Supreme Court precedent to deny free speech protection to some employee
internal auditing complaints while allowing other complaints to be addressed to
determine if they were made outside her regular duties and were matters of
public concern.
Davis v.
McKinney (5th Cir., Feb. 21, 2008)
This past year,
in Garcetti v. Ceballos, the U.S. Supreme Court modified employee free speech
analysis by holding that complaints by a government employee about office
decisions and procedures were not a matter of "public concern" and,
therefore, not protected speech because such communications were made as part
of the employee's regular duties.
The present case involved a more complex situation where a University of
Texas employee raised concerns about an internal audit she supervised involving
findings of improper employee uses of computers to access pornography. The plaintiff raised concerns within
her supervisory chain of command and beyond by contacting university executives
as well as external law enforcement officials including the FBI. Believing her supervisors ignored her
concerns and even retaliated against her, she filed suit. Based on the Garcetti
case, the University sought to dismiss the case claiming all of the
communications were not protected speech because they related to performance of
the plaintiff's job duties. On
appeal the Fifth Circuit made distinctions in the type of communications, and
therefore upheld dismissing Free Speech claims related to those made within the
chain of command, but requiring further findings by the lower court as to
whether the other communications made outside the chain of command were outside
the employee's job duties and, if so, whether they constituted matters of
"public concern."
Lex-IS Notes:
It will take
some time for courts to clarify the boundaries of the Garcetti case. The present case illustrates the
nuances that can arise.
Practitioners should be careful to avoid simplistic analyses involving
premature conclusions that employee complaints directly or indirectly related
to job duties unequivocally qualify as unprotected speech.
Read the case:
http://lawprofessors.typepad.com/laborprof_blog/files/davis_v_mckinney_0720184_5th_cir_2_21_08.pdf
Free
Speech: School Mailbox Policy does
not violate teacher's First Amendment rights.
Policastro v.
Kontogiannis (3d Cir., Jan 24,
2008)
The Court of
Appeals for the Third Circuit, in an unpublished opinion, upheld a school
district's mailbox policy in the face of a First Amendment challenge. At issue in the case was a school
policy that restricted the use of the school mailboxes to school-related
business. The principal at the
school used the policy to justify the removal of a memorandum that had been
placed in the mailboxes of all of the teachers in the school, and which
expressed one employee's concerns about a labor dispute. The teacher who had distributed the memoranda
sued the school board and the principal, claiming that the school's mailbox
policy had a potential chilling effect on speech and was thus overbroad. The court rejected this charge. Even after the incident, teachers at
the school continued to use the mailboxes to communicate personal messages,
thus proving to the court that there was no actual chilling effect.
Source: National School Board Association
Read the case:
http://vls.law.villanova.edu/locator/3d/Jan2008/061471np.pdf
NCLB: State of Virginia considering NCLB
pullout.
Frustrated with
what they consider inflexible requirements of the No Child Left Behind Act
(NCLB), the Virginia General Assembly is considering abandoning the law and the
millions of dollars in federal funds that come along with it. The State has asked the United States
Department of Education for waivers from certain NCLB benchmark
requirements. If those exemptions
are denied, the General Assembly will consider passing a law that would set
Summer 2009 as the firm date for a pullout. Virginia would be the first state to take such action.
Source: Hampton Roads Pilot
(http://hamptonroads.com/2008/02/virginia-considers-leaving-federal-education-act-behind)
School-funding: North Carolina Court of Appeals issues
important ruling on charter school funding.
Sugar Creek
Charter School v. Charlotte-Mecklenburg Board of Education, No. 05 CVS 9548
(N.C. App. Feb. 5, 2008)
The North
Carolina Court of Appeals recently handed down a decision that should influence
how public schools manage their finances and fund charter schools. The case arose after a number of
charter schools (Charter Schools) filed a lawsuit claiming that the Charlotte
Mecklenburg Board of Education (CMS) had under-funded the Charter Schools for
the 2001-02 - 2004-05 school years in two respects. First, the Charter Schools claimed that CMS had used
different formulas to calculate per pupil expenditures for the charter schools
and the public schools, in violation of North Carolina law. To this end, while the charter schools
were required to submit monthly enrollment reports, which CMS used to adjust
the total monthly appropriation, the public schools received a monthly
allocation based on the beginning-of-the-year enrollment figures. Because enrollment figures in both
types of schools dropped over the year, the public schools on average received
more money per student.
Second, the
Charter Schools alleged that, in making the funding allocations, CMS did not
divide all of the money that the district had available in its general
operating budget. In this respect, the Mecklenburg Board of County
Commissioners (Board) had allocated to CMS money for two "special
programs:" Bright Beginnings (a program for at-risk 4-year-olds) and the
High School Challenge (a program for underachieving high schools). CMS failed, however, to deposit these
monies into "special program funds," instead placing them in the
local expense fund used for general operating expenditures. As a result, the Charter Schools
claimed that the special programs money should be allocated between all the
schools in the district, including schools that did not run these special
programs, on a per-pupil basis. In
contrast, CMS maintained that the Board had earmarked the funds for the special
programs and that therefore the money was allocated for those programs alone,
regardless of the fund in which the money was placed.
The North
Carolina Court of Appeals agreed with the Charter Schools on both claims. On the funding formula claim, the court
noted that school districts must fund public and charter schools in the same
manner. CMS' policy requiring that
the Charter Schools, but not the public schools, submit monthly enrollment
reports therefore violated North Carolina law, and CMS was required to allocate
to the Charter Schools the under-funded amounts. The court did not, however,
require CMS to adopt any particular funding formula. Rather, it held that consistency is key: "CMS may either
calculate the amounts due for both itself and the Charter Schools based on
beginning of the year projections of the student population, on enrollments, or
some other method, so long as that method is consistent for both CMS and the
Charter Schools."
On the second
claim, the Court of Appeals agreed with the Charter Schools that CMS was
required to allocate the special programs money as part of the general
operating budget. In support, the
court first made clear that, in managing money, the LEAs have the responsibility
under North Carolina law to set up separate "funds," which are
"independent fiscal and accounting [entities] . . . for the purpose of
carrying on specific activities or attaining certain objectives." North Carolina law contemplates three
types of funds: a local expense
fund for current operating expenses, a capital outlay fund, and a special
program fund. The court explained
that when the LEA receives money from the State Board earmarked for a certain
purpose, it should place the money in the proper account (e.g. money for
capital projects in the capital expense fund). Careful allocation of funds is especially important because,
the court concluded, money placed in a particular fund must be used for the
purpose that each fund serves.
Here, CMS erred because it placed money received for Bright Beginnings
and the High School Challenge in the local expense fund, which the court held
must be allocated between each school on a per pupil basis. If CMS had placed the monies for these
programs in "special program funds," the monies could have been
allocated for the programs alone.
Read the case.
School
Searches: Video cameras in locker
rooms violate students' Fourth Amendment privacy rights.
Brannum v.
Overton County Sch. Bd. (6th Cir., Feb. 20, 2008)
The Federal
Court of Appeals for the Sixth Circuit found that a principal and assistant
principal could be held liable for placing video cameras in student locker
rooms. The case arose in a
Tennessee school district after students discovered that video surveillance
equipment had been placed in the locker rooms. The students sued the school board, the superintendent, the
principal, and the vice principal, claiming violations of their Fourth
Amendment right to be free from unreasonable searches and seizures. The school board and all of the school
officials responded with claims of qualified immunity.
The court held
that the students' rights had been violated, granted qualified immunity to the
school board and the superintendent, but denied immunity for the principal and
vice principal. On the Fourth
Amendment issue, the court noted that the school had a valid purpose (school
safety) for installing the video cameras, but concluded that the scope of the
intrusion on the students' rights was too broad. To this end, the court held that while students relinquish
some privacy rights when stepping on school grounds, students nevertheless have
a reasonable expectation not to be taped at various stages of undressing. On the immunity issue, the court
exempted the school board and superintendent from liability because neither of
the parties had authorized or even known about the taping. The principal and vice principal could
be held liable, however, because they had installed the cameras and because
they should have known that students have a clearly established right not to be
taped while undressing.
Free
Speech: High Court declines review
of a California free speech decision.
Novato Unified
Sch. Dist. v. Smith (U.S. Feb. 22, 2008)
The United
States Supreme Court has decided not to review a California Court of Appeals
decision holding that a school district had violated a student's constitutional
and state law free speech rights.
The case involved a letter distributed by the school district to parents
stating that a student editorial should not have been published in the school
newspaper and ordering the remaining copies of the newspaper to be
retracted. The school had also
held an open-meeting for protesting students and parents to express their
discontent with the editorial. The California court held that the letter
violated the student's speech rights, because the letter improperly
communicated to the student that his editorial was not within his free
expression rights. However, the
meeting did not violate the student's rights because it simply provided a
peaceful avenue for self-expression.
Copyright: Teacher cannot exclude other teachers
from using portions of disciplinary program by claiming copyright protection.
The Federal
Circuit Court of Appeals concluded that a disciplinary program created by a
teacher was not protected under the copyright laws. The teacher had tried to exclude other teachers at the
school district from implementing elements of the program in their
classrooms. However, the program
was excluded from copyright protection because it was a business idea created
as part of the teacher's work for the system.
Appeals -
Judicial Deference: Fourth Circuit
ruling makes it more difficult to challenge hearing officer's factual and legal conclusions.
J.P. ex rel.
Peterson v. County Sch. Bd. of Hanover County, VA (4th Cir., Feb. 14,
2008). [This case is binding on
North Carolina school districts]
The Federal
Court of Appeals for the Fourth Circuit ruled that district court judges
considering appeals from due process hearings under the Individuals with
Disabilities Education Act (IDEA) must give deference to the hearing officer's
factual and legal conclusions, even when those findings are made in a terse or
conclusory fashion. This holding follows the general rule that a hearing
officer's decision carries a strong presumption of correctness even when there
is limited written explanation.
In the case, the
parents of an autistic child filed for a due process hearing to determine
whether the child's 2004-05 and 2005-06 individualized education plans (IEP)
were appropriate and to recover private tuition costs for the 2005-06 school
year. A hearing officer considered
testimony from the child's parents, expert witnesses from both sides, and statements
of school officials. The officer
ultimately concluded that the IEP provided the child with more than the
minimally-adequate education required under the IDEA. A federal district court judge in Virginia reversed that
determination finding that the IEP was not adequate and awarding costs and fees
to the parents, determining that there was very little analysis presented by
the hearing officer of the factual and legal issues.
The Fourth
Circuit ordered the district court judge to hear the appeal again with full
consideration of the hearing officer's decision because there was no evidence
that the hearing officer's decision was clearly in error or without any
justification whatsoever.
FAPE -
Reimbursement: Court finds that
parents of a dyslexic student are not entitled to reimbursement for private
school tuition costs.
Fairfax County
Sch. Bd. v. Knight (4th Cir., Feb.
12, 2008). [Unpublished opinion]
The Federal
Court of Appeals for the Fourth Circuit held that a dyslexic student was not
denied a free appropriate public education (FAPE) simply because his reading
scores improved when he was placed in a private school. The student's parents pulled him out of
the public school, placed him in a private school where his reading test scores
improved remarkably, and then tried to gain reimbursement for tuition
costs. The court denied the claim,
holding that evidence of educational improvement at a private school did not
necessarily prove that the county school district had failed to provide the
student with non-trivial educational benefits. The school district is obligated to provide the student with
a FAPE, the court concluded, not the best education that private tuition costs
can provide.
[The remaining
cases have been decided in other jurisdictions and therefore are not binding on
North Carolina schools but presented for general information.]
Federal court of
appeals dismisses lawsuit based on claim that NCLB and IDEA are fundamentally
incompatible.
Board of Educ.
of Ottawa Twp. High Sch. Dist. 140 v. U.S. Dept. of Educ., No 07-2008 (7th
Cir., Feb. 11, 2008).
Two Illinois
school boards and several special education students and their parents sought
to strike down portions of NCLB that require school-wide remedial programs when
a school does not meet specified benchmarks. The plaintiffs argued that the systematic remediation
programs are fundamentally at odds with the IDEA's requirement that schools must
treat students with disabilities as specially entitled individuals, because the
school-wide programs require modification of students' individualized education
programs (IEPs). While the court
acknowledged that the plaintiffs had identified a tension between NCLB and
IDEA, it still rejected the lawsuit because Congress passed NCLB after it
passed IDEA. In the court's view,
it could not invalidate a law that was passed in 2001 because it conflicted
with a law that was in place for several years previously.
Source: National School Boards Association.
Reimbursement: School district does not have to pay
parents' expert witness fees.
Fisher ex rel.
Fisher v. District of Columbia, (D.C. Cir., Feb. 12, 2008).
The Federal
Court of Appeals for the District of Columbia Circuit (D.C. Circuit) concluded
that the District of Columbia Public Schools (DCPS) did not have to reimburse a
learning disabled student's parents for the costs of an expert witness in a
lawsuit filed under the Individuals with Disabilities Education Act
(IDEA). Normally, when parents are
the "prevailing party" in an IDEA action, the school district must
pay litigation costs. In a recent
decision, the United States Supreme Court held that "costs" do not
include fees paid for an expert witness.
Prior to the Supreme Court's decision on costs, DCPS had guidelines in
place instructing the school district to pay expert witness costs and had
actually paid the parents part of the expert witness costs in this case. The D.C. Circuit held that DCPS was
nevertheless exempted from paying the rest of the expert witness fees in light
of the Supreme Court's decision.
FAPE - Appeals:
Parent cannot rely on the mailbox rule to extend 90-day appeal period for
Hearing Officer Decision.
J.S. v. District
of Columbia (D.C. Cir., Feb. 12,
2008)
In a case
especially of interest to litigators, the Federal Appeals Court for the
District of Columbia Circuit (D.C. Circuit) held that parents wishing to appeal
a hearing officer decision (HOD) must do so within the 90-day period prescribed
in the Individuals with Disabilities Education Act (IDEA), and may not rely on
the "mailbox rule" to extend that time period. The "mailbox rule," which generally
applies in federal cases, says that a court document is considered as filed
with the court on the day that it is put in the mail. The court concluded that the IDEA did not include the
mailbox rule for the purposes of the 90-day HOD appeal.
School Funding:
N.C. Court of Appeals upholds local school system funding award against local
county commissioners.
Beaufort County
Bd. of Educ. v. Beaufort County Bd. of Comm'rs, No. 06 CVS 956 (N.C. App., Feb.
5, 2008).
In a case with
significant implications regarding local funding for public schools under state
law and the Leandro cases, the N.C. Court of Appeals upheld a lower court
verdict that the Beaufort County Board of Commissioners ("County")
had insufficiently funded the Beaufort County Board of Education (BCBE). At issue, initially, was "[w]hat
amount of money [was] needed from sources under the control of the [County] to
maintain "a system of free public schools in the Beaufort County School
System" as required by state
law.
In response to
state-mandated budget increases, BCBE submitted a revised budget to the County
in the summer of 2006 for just over $12 million. The County approved funding
that was about $2.5 million less than requested. Following General Statute 115C-431, which provides a
procedure for fiscal disputes between counties and boards of education, BCBE
initiated a mediation proceeding.
When the two parties could not resolve their differences, BCBE sued for
the additional funds it alleged were necessary to operate the school district
sufficiently to provide the state mandate to provide a "system of free
public schools." The
County filed several motions to dismiss or delay resolution of the case, but the
superior court tried the case immediately because the school year was set to
start in August. The jury awarded
BCBE $10,200,000, approximately $700,000 more than the County approved.
On appeal, the
N.C. Court of Appeals upheld the jury verdict, issuing several important
rulings. Among them, the
court rejected the County's arguments that BCBE's claims must be made against
the State or that the State must be included as a defendant in light of state
constitutional requirements and prior Leandro rulings declaring the State
ultimately responsible for offering a "Sound Basic Education."
The court
reasoned that the legislature has lawfully established a statutory procedure
for resolving disputes between boards and counties and conferred funding
authority upon local governments, The dispute, therefore, was rightfully
between the County and BCBE, not between BCBE and the State.
Curriculum: Contentious changes to school
district's sexual education program upheld by Maryland court.
A state-court
judge in Maryland has upheld the Maryland State Board of Education's decision
to approve changes to Montgomery County Public Schools (MCPS) sex education
program. The changes included (1)
the addition of an optional lesson plan, which instructs students that homosexuality
is humanly innate and (2) the addition of language about oral and anal sex into
the school district's condom lesson plan.
Community members challenged the changes, claiming that the proposition
that homosexuality is innate is not a fact and thus may not be taught under
state law. They also challenged
the addition of oral and anal sex into the curriculum because the lessons
portrayed erotic techniques in violation of state law. The judge disagreed with community
members on both grounds, holding that state law was designed to give significant
discretion to school districts in defining their curriculum and that MCPS had
acted within this discretion.
Read the
Washington Post article.
Students Free
Speech: School district can prohibit the sale of candy canes containing
religious messages.
Curry v.
Hensiner (6th Cir., Jan 16, 2008)
In the face of a
First Amendment challenge, a federal appeals court in Ohio upheld a principal's
decision to prohibit the sale of candy canes at his school containing religious
messages. The case involved a student
who created the candy canes as a part of a class project. After the student was prohibited from
selling the candy canes due to the religious messages, he sued the school
district, claiming a violation of his right to free expression under the First
Amendment. Because the candy canes
were made for a class project, the court applied the rule from Hazelwood Sch.
Dist. v. Kuhlmeier, which allows schools to regulate school-sponsored speech as
long as the regulation is reasonably related to a legitimate pedagogical
concern. The court held that the
universe of legitimate pedagogical concerns is broad and includes, as here, the
principal's interest in ensuring that other students are not subjected to
unsolicited religious messages that may be contrary to the views taught in
their home.
NCLB: Federal appeals court upholds school
systems' refusal to pay for NCLB underfunded mandates.
Sch. Dist. of
City of Pontiac v. Secretary of U.S. Dept. of Educ. (6th Cir., Jan. 14, 2008)
A three-panel
federal appeals court in Ohio held that several school districts claiming they
were not liable for the additional costs of funding certain mandates of No
Child Left Behind (NCLB) stated a legitimate legal claim against the U.S.
Secretary of Education. The issue
in the case was whether the states or the federal government should have to
bear the costs over and above current federal funding in order to implement
NCLB. The court held that the
states could only be liable for the additional costs if they knowingly and
voluntarily agreed to accept the responsibility. At the time states agreed to implement NCLB, ruled the
court, the federal government had not provided clear notice that the states
bore the extra costs, thus negating the states' obligations to fund those
mandates.
The United
States has now asked the entire court of appeals to review the panel's decision
(i.e., to review the decision en banc).
.
Source:
Washington Examiner, 2/1/08, by Associated Press.
First
Amendment: Superintendent could be
held liable for retaliation against parent.
Jenkins v. Rock
Hill Local Sch. Dist. (6th Cir., Jan. 17, 2008)
A federal
appeals court in Ohio held that a superintendent could be subject to liability
for First Amendment retaliation.
In response to a mother who had complained about the treatment of her
child to the superintendent, the local newspaper, and government officials, the
superintendent dismissed the student from school, made a false report to
government child protective services, and refused to provide the child with
home-school services. The court
concluded that such actions could chill the speech of a person of ordinary
resolve, and thus the mother had stated a valid claim for retaliation.
.
IEPs: Supreme Court lets stand 4th Circuit
ruling that private school placement denied FAPE.
Alexandria City
Sch. Bd. v. A.K., 484 F.3d 672 (4th Cir., 2007), cert. denied.
[NOTE: This case
is binding on N.C. Schools because it was decided by the 4th Circuit.]
The United
States Supreme Court has decided not to hear an IDEA case out of the Fourth
Circuit Court of Appeals (the federal appellate court with jurisdiction over
North Carolina). The Fourth
Circuit had held that a Virginia school district that had placed a student in a
local area private school had denied the student a free appropriate education
(FAPE). Crucial to the court's
decision was that the student's IEP had failed to specify a particular private
school at which he should be educated, instead stating generally that a private
day school was appropriate. After
the school district failed to consult with the parents before making a
placement in a local private school, the parents contested the placement as
inappropriate. The court held that
an out-of-state private school, not the local private school, was appropriate
under the IEP.
Lex-IS Practice
Point:
* The Supreme Court has the
discretion to review every appealable case, and a decision to not review a case
only means that not enough of the justices wanted to hear the case at this
time. The Court's denial of review
means that the Fourth Circuit decision is good law.
* School districts should
be careful in drafting IEP's in general terms; moderate specificity helps avoid
a ruling like this one which determines that the services provided do not
comport with the general requirements of the IEP.
Mainstreaming:
School districts should provide special education services to qualifying
students in accelerated classrooms.
The U.S. Department
of Education, Office of Civil Rights (OCR) has recently published a letter
expressing its opinion that, under the IDEA and Section 504 of the
Rehabilitation Act, students with disabilities who wish to enroll in
accelerated classrooms or programs may not be forced to give up special
education services. The letter
reasoned that accelerated classrooms or programs are generally considered part
of the regular educational curriculum.
Because the IDEA and Section 504 require school districts to provide special
education services to students in the regular classrooms, the same holds for
students in accelerated classrooms.
As an example, the letter explained that an IEP that provides for
Braille materials in order for the student to participate in the regular
classroom would have to be implemented if the student enrolled in an
accelerated classroom.
Read the letter.
FAPE: School districts can be liable under
both the IDEA and Section 504.
Mark H. v.
Lemahieu, No. 05-16236 (9th Cir., Jan. 17, 2008)
A federal
appeals court in California concluded that school districts that violate the
IDEA's free appropriate education (FAPE) requirement may also be found liable
for damages under Section 504 of the Rehabilitation Act of 1973. Both Acts
require school districts to provide a FAPE to all qualifying students. In this case, the school district had
argued that a previous determination under the IDEA that a student had not
received a FAPE precluded the parents from recovering money damages under
Section 504 for a similar violation of FAPE. The court reasoned that, while similar, the FAPE
requirements under the two laws were different enough to justify a dual
recovery. Furthermore, the court
concluded that Congress manifested the intent for concurrent remedies under
both laws.
.
Reimbursement: School district does not have to pay
for the costs of an independent educational evaluation.
P.R. et al. v.
Woodmore Local Sch. Dist. (N.D. Ohio, Jan. 23, 2008)
Parents were not
entitled to reimbursement for an independent educational evaluation that they
had obtained without notifying the school district. Instead of consulting with school officials, the parents
obtained the evaluation on their own and then tried to get a hearing officer to
determine that the school district's evaluation was inappropriate. The court denied the parents request
for reimbursement because the school district's initial evaluation was adequate. The court note, however, that to state
a reimbursement claim, the parents did not necessarily have to notify the
school district of their intention to obtain an independent evaluation
first. In this instance, because
the initial investigation was thorough enough to warrant the preclusion of services,
the additional evaluation was not compensable.
.
Exhaustion of
Remedies: Parents must exhaust
IDEA's statutory remedies, even if they bring claims under other federal
statutes.
Cave v. East
Meadow Union Free Sch. Dist. (2d Cir., Jan. 23, 2008)
Parents must
exhaust (i.e., take full advantage
of) available administrative remedies before litigating when making a claim
that would change the substance of an IEP, a court concluded, regardless of
whether the claims are brought under the IDEA or other federal statutes. After being denied entry into school
while accompanied by a service dog, a disabled student sued the school
district, claiming violations of the Americans with Disabilities Act, the
Rehabilitation Act, the U.S. Constitution, and state law. The school district countered that
these claims could not go forward until the student exhausted his
administrative remedies under the IDEA.
The court agreed. The
student's previous IEP did not include an allowance for a service dog, the
court explained, and thus in substance the dispute was over a change to his
IEP. Therefore, the dispute should
have been challenged under the IDEA's administrative procedures first. The parents' choice to bring the claims
under different federal laws did not exempt them from the administrative
exhaustion requirement.
FAPE: School district did not deny FAPE by
placing a behavioral disabled female student in a mixed-gender school.
M.M. ex rel.
L.R. v. Special Sch. Dist. No. 1 (8th Cir., Jan. 24, 2008)
A school
district did not deny a free appropriate education (FAPE) to a student with
behavioral problems when it placed her in a school with a high ratio of boys to
girls. Although she had in the
past engaged in inappropriate sexual behavior with boys, the school district's
determination was reasonable, the court concluded, because most of her behavior
issues in the past involved altercations with other girls.
Reimbursement: School district not required to
reimburse parents who do not cooperate in the IEP process.
C.G. ex rel.
A.S. v. Five Town Community Sch. Dist. (1st Cir., Jan. 18, 2008)
A school
district did not have to reimburse parents for private school tuition costs
because a court found that the parents obstructed the completion of the
individualized education plan (IEP).
Key to the court's decision was the fact that the parents refused to
consider any placement other than the private placement, which undermined the
collaborate IEP process.
Sexual
Harassment: Learning disabled
student's statements to school counselor are not enough to make the school
liable for sexual harassment.
Rost ex. rel. K.C. v. Steamboat Springs RE-2 Sch. Dist. (10th Cir., Jan.
10, 2008)
A learning
disabled student's statements to a school counselor that boys in the school
were bothering her were insufficient to give the school "actual
knowledge" of sexual harassment.
As such, the school district could not be held liable under Title IX of
the Civil Rights Act.
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