1. 2019 Special Education Law: Learning from the Mistakes of Others
Kathleen S. Mehfoud
LaRana J. Owens
Riverfront Plaza, West Tower
901 East Byrd Street, Suite 1900
Richmond, VA 23219
(804)
@reedsmithedlaw

2. Child Find/Eligibility

3. Culley ex rel. J. C. v. Cumberland Valley Sch. Dist
Culley ex rel. J.C. v. Cumberland Valley Sch. Dist., 73 IDELR 170 (3rd Cir. 2018).
J.C. was six years old in 2004 when he was diagnosed with Crohn’s disease. This disease can cause “abdominal pain, diarrhea, fatigue, weight loss, and malnutrition. It can even be life threatening.” The school district was informed of the diagnosis in 2007 but did not take any action. J.C. began to have academic difficulties and disciplinary problems from seventh through tenth grades. He was ultimately expelled for trying to leave school grounds without permission.

4. Culley, 73 IDELR 170 (3rd Cir. 2018).
His grades were barely passing and he was absent about 30% of the time. Parents submitted a private report recommending a number of accommodations which were incorporated into a Section 504 plan. School district decided to conduct an evaluation under the IDEA. J.C. was found ineligible under the IDEA because the team did not believe his school difficulties were attributable to his Crohn’s disease.

5. Culley, 73 IDELR 170 (3rd Cir. 2018).
After reviewing the case, the Court concluded, contrary to the school district’s position, that J.C. was eligible under the IDEA and that the school district erred in treating “the disease as something discrete and isolated rather than the defining condition of J.C.’s life.” The court further found that the school district should have investigated J.C. for a disability much earlier, developed a Section 504 plan earlier and conducted its child find obligations under the IDEA.

6. Barney v. Akron Bd. of Educ., 73 IDELR 251 (6th Cir. 2019).
Student with a cognitive disability and a peanut allergy was appropriately accommodated by use of a health care plan. The peanut allergy did not cause the student to need special education services and therefore this medical issue did not need to be addressed in an IEP.

7. Krawietz ex rel. Amanda Parker v. Galveston Indep. Sch. Dist. , 900 F
Krawietz ex rel. Amanda Parker v. Galveston Indep. Sch. Dist., 900 F.3d 673 (5th Cir. 2018).
Ashley had behavioral and learning problems and was served under an IEP. Her parents decided to homeschool her and did so for five years. Upon her reenrollment in the school district in 2013 as a ninth grade student, the parents reminded the school that Ashley had been identified previously under the IDEA. No paperwork could be found and the school district assumed that she had been dismissed from services under the IDEA.

8. No IEP or Section 504 plan was implemented for her
No IEP or Section 504 plan was implemented for her. Two months after the reenrollment, Ashley engaged in sexual activity at school with two other students. She was then referred for consideration under Section 504 and found eligible. Her academic behavioral difficulties continued the next school year despite being on the plan. She performed poorly on the PSAT and only earned half of her credits.

9. Krawietz, 900 F. 3d 673 (5th Cir. 2018).
She stole $1,500 from her mother. She was also hospitalized. The family requested an IDEA evaluation in February and the team concluded, on April 21, 2015 that Ashley was eligible under the IDEA. Her parents filed for a due process hearing and alleged a failure to conduct child find by HISD and requested a residential placement as relief.

10. Krawietz, 900 F. 3d 673 (5th Cir. 2018).
The court agreed with the parents regarding the failure to conduct child find and determined the school district was on notice as early as the fall of 2014 regarding the need to evaluate because of the declining grades, the hospitalization and the incidents of theft. Although the parents did not prevail in their request for a residential placement, the court found that the parents were prevailing parties on other claims such as child find and entitled to attorneys’ fees.

11. IEPs, FAPE, and Placement

12. A Quick Review of the Endrew F. FAPE Standard
An IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., 69 IDELR 174 (2017).

13. A Quick Review of the Endrew F. FAPE Standard
“Reasonably” = The IEP must be reasonable, not ideal or perfect
“Calculated” = The IEP is crafted using the prospective judgment of school officials and input from the parent
“Progress” = The IEP should enable a student to make progress (i.e., academic and functional advancement)
“Appropriate in Light of the Child’s Circumstances” = IEPs should be individualized and designed to address the child’s unique needs; the IEP is not a form document

14. R. F. ex rel E. F. and H. F. v. Cecil Cnty. Pub. Schs
R.F. ex rel E.F. and H.F. v. Cecil Cnty. Pub. Schs., 119 LRP (4th Cir. 2019).
Elementary school student with autism. IEP Placement: intensive communication support classroom (“ICSC”) in the public school setting. In addition, Student was provided with multiple daily opportunities to interact with nondisabled peers (e.g., specials and walks around the building to greet students). FBA completed and BIP in place to address biting.

15. R.F., 119 LRP (4th Cir. 2019).
SPED teacher unilaterally increased the amount of time the student spent in the ICSC because of difficulties in the gen ed classroom. SPED teacher destroyed the raw data he used for progress reports. Parents claimed these actions significantly impeded their participation rights. Parents sued and sought to have the student placed at a private school at the school district’s expense.

16. R.F., 119 LRP 11105 (4th Cir. 2019). Court (re: change in placement):
SPED teacher erred in unilaterally changing the student’s placement.
However, this procedural error did not significantly impede the parents’ participation in the IEP process because:
The parents had repeatedly requested a full-time special education placement.
The parents participated in a subsequent IEP meeting where the change in placement was discussed.

17. R.F., 119 LRP (4th Cir. 2019).
Court (re: destruction of raw data): “The IDEA does not specify how often a school system should collect data or how long it should be maintained. Instead, it only requires that the IEP describe how the child’s progress toward her goals will be measured.” While the SPED teacher violated the LEA’s records retention policy, he did not violate the IDEA when he destroyed the raw data. Even if it had been a procedural violation, the parents’ rights were not significantly impeded because they could still view summaries of the data in the quarterly progress reports.

18. R.F., 119 LRP (4th Cir. 2019).
Court (re: appropriateness of the IEP): “An IEP is not required to contain every goal from which a student might benefit.” IEP did not aim for grade-level advancement through the gen ed curriculum or for standard letter grades because these were not a reasonable prospect for this student. IEP contained reasonably ambitious goals and was revised after a few months to account for progress. Thus, the district provided the student with FAPE despite its procedural violations of the IDEA.

19. R.F., 119 LRP 11105 (4th Cir. 2019). Take away points:
Ensure teachers understand the importance of implementing a student’s IEP as written. If different or additional services are needed, those decisions should be made by the IEP team.
Train IEP teams to develop IEPs in accordance with the Supreme Court’s recent decision in Endrew F., which clarified the FAPE standard:
“A school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

20. T. B. , Jr. ex rel. T. B. , Sr. , F. B v. Pr. George’s Cnty. Bd
T.B., Jr. ex rel. T.B., Sr., F.B v. Pr. George’s Cnty. Bd. of Educ., 72 IDELR 171, 897 F.3d 566 (4th Cir. 2018).
High school student with anxiety refused to attend school. Parents requested evaluation; did not qualify as SLD, district refused further evaluation for nearly 2 years. Parents transferred the student to a different school where he was evaluated and found eligible on the basis of an ED (anxiety) and provided an IEP; student continued not to attend or participate in academics at new school. Parents filed for child find violation.

21. T.B., Jr., 72 IDELR 171, 897 F.3d 566 (4th Cir. 2018). Court:
District violated child find.
In light of student’s continued refusal to attend school even after being provided IDEA services, district’s failure was harmless.
The opinion closed by noting that:
“[p]oor motivation and poor performance do not always and invariably lie at the feet of teachers and schools. Students themselves also have to try.”

22. T.B., Jr., 72 IDELR 171, 897 F.3d 566 (4th Cir. 2018).
Take away point:
Don’t delay in identifying and evaluating a student who is suspected of having a disability. While the child find violation in this case was deemed harmless, such a violation can be actionable if it affects the student’s substantive rights.

23. Z.B. v. Dist. of Columbia, 72 IDELR 27, 888 F.3d 515 (D.C. Cir. 2018).
From kindergarten through third grade, parents expressed concern about student’s impulsivity, disorganization, and academic performance. Parents eventually obtained a private evaluation. Two weeks after receipt of the private evaluation, district found student eligible and implemented IEP based solely on private evaluator’s recommendations. No additional evaluations or data collection by the district.

24. Z.B., 72 IDELR 27, 888 F.3d 515 (D.C. Cir. 2018).
Family privately placed and sued for reimbursement. Court: District violated Endrew F. by relying exclusively on the private evaluation. “The school may not simply rubber stamp whatever evaluations parents manage to procure, or accept as valid and sufficient whatever information is already at hand.”

25. Z.B., 72 IDELR 27, 888 F.3d 515 (D.C. Cir. 2018).
Take away points: Conduct a full and individual initial evaluation of a student before developing an IEP. The evaluation requirement serves a critical purpose: It allows the IEP team to have a complete picture of the student’s academic, functional, and developmental needs, which in turn allows the team to design an IEP that is tailored to the needs of the individual student.

26. D.F. ex rel. M.F. and S.F. v. Smith, 74 IDELR 75 (D. Md. 2019).
Elementary school student with autism. Student received instruction in a classroom featuring 3 adults (1 teacher and 2 paras) and 9 students in the public school setting. While student only achieved one IEP goal in two school years, he met the smaller objectives under his goals in all other areas. Parents unilaterally placed student in a private day school, which provided for 1:1 support during the school day.

27. D.F., 74 IDELR 75 (D. Md. 2019).
Court: That the student only achieved one IEP goal in two school years is not necessarily evidence that the IEPs did not provide FAPE, but it is more likely evidence of the difficulties of educating students with autism. Students with autism may not progress linearly or consistently; any academic and social progress may occur intermittently and be accompanied by periods where the student does not necessarily regress but may fail to generalize a skill.

28. D.F., 74 IDELR 75 (D. Md. 2019).
Court: Because the evidence indicated that the student made progress toward his annual goals that was “appropriate in light of his circumstances,” the IEPs providing for a placement in the public school classroom were appropriate. As a result, parents were not entitled to reimbursement for the private school placement.

29. D.F., 74 IDELR 75 (D. Md. 2019).
Take away point: Devote care and attention to developing the PLOP. Be certain that the PLOP accurately describes the student’s “unique circumstances,” including how the disability affects the student’s involvement and progress in the general curriculum.

30. F. L. ex rel. R. C. L. v. The Bd. of Educ
F.L. ex rel. R.C.L. v. The Bd. of Educ. of the Great Neck Union Free Sch. Dist., 17 IDELR 232, 735 Fed. Appx. 38 (2nd Cir. 2018).

31. K. D. ex rel. Theresa and Jonathan Dunn v. Downingtown Area Sch. Dist
K.D. ex rel. Theresa and Jonathan Dunn v. Downingtown Area Sch. Dist., 904 F.3d 248 (3rd Cir. 2018).
K.D. had ADHD, vision problems, dyslexia, math disorder, and poor motor skills.
The parents were dissatisfied with her progress.
Court held, given her impairments and circumstances, the student’s “fragmented progress could reasonably be expected.’”

32. K.D., 904 F.3d 248 (3rd Cir. 2018).
OSERS opinion, that students who have difficulty in language and math can still perform on grade level, is guidance and “aspirational.”
The guidance does not, “…require grade-level goals for children who are not and cannot be fully integrated into regular classrooms.”

33. Take away points from K.D. and F.L.
Applications of Endrew F. standard.
Importance of goals.
Do not repeat goals;
Measurable goals that address student deficits;
Focus of skill development, not grade-level.
Document consideration of parent input.
Parent concerns;
Parent requests for IEP changes;
Recommendations IEEs and private providers.

34. Renee J. ex rel. C. J. v. Houston Indep. Sch. Dist. , 913 F
Renee J. ex rel. C.J. v. Houston Indep. Sch. Dist., 913 F.3d 523 (5th Cir. 2019).
C.J. 17 year old identified with ID, ADHD, and autism.
He read at a first grade level, has trouble with “regulating his emotions” and is alleged to have been bullied at school by two IAs.
The student also had significant attendance issues and a suspect homebound authorization.
Parent’s filed suit seeking ABA services and challenging the homebound instruction and the school’s proposed transition plan.
The parents’ claim “[c]hildren with autism do not grow up to be police officers.”

35. Renee J., 913 F.3d 523 (5th Cir. 2019).
In rejecting the parent’s claims, the Court held:
Homebound: The parents 5 week delay in providing the requested information to support the request and the school district’s repeated outreach and offers of accommodation.
ABA: The parents had never asked for ABA services and the Court will not ‘”…dictate which pedagogical methods a school district must consider and to what degree they must be incorporated on an individualized, case-by-case basis…”

36. Renee J., 913 F.3d 523 (5th Cir. 2019).
In rejecting the parent’s claims, the Court held:
Transition plan: Law enforcement was C.J.’s primary area of interest and the plan was later modified to add the development of basic life skills.
“This court is mindful of its obligation not to stray into the field of education policymaking…”

37. L. H. ex rel. G. H. and D. H. v. Hamilton Cnty. Dept. of Ed. , 900 F
L.H. ex rel. G.H. and D.H. v. Hamilton Cnty. Dept. of Ed., 900 F.3d 779 (6th Cir. 2018).

38. M. S. ex rel. R. H. v. Los Angeles Unified Sch. Dist. , 913 F
M.S. ex rel. R.H. v. Los Angeles Unified Sch. Dist., 913 F.3d 1119 (9th Cir. 2019).
Take Away Points:
Even when a student is residentially placed for non- educational reasons (such as mental health), or placed by another state agency…
The IEP team still must consider whether the student requires a residential placement for FAPE.
The school district cannot rely solely on the fact that another agency placed the student in a residential placement.

39. Procedural Issues

40. Lucas v. Henrico Cnty. Pub. Sch. Bd. , Civil Action No
Lucas v. Henrico Cnty. Pub. Sch. Bd., Civil Action No. 3:18cv402, HEH (ECF No. 48) (E.D. Va. 2018) rev’d. in part on other grounds USCA Case Nos , and (4th Cir. 2019).
Two parent advocates and a parent were arrested for trespassing after refusing to leave school premises.
The individuals were tried in general district court and convicted on the trespass charge.
They appealed to the circuit court and were again convicted.

41. Lucas v. Henrico County Pub. Sch. Bd.
The advocates then sued in federal court alleging violations of the U.S. and Virginia Constitutions and federal statutes.
The U.S. District Court dismissed the claims raised under the IDEA, Section 504 and the ADA because:
The advocates and the mother did not have the right to pursue these claims individually.
The parent could not pursue the claims in her own right because she was not an attorney and not authorized to represent her child in court.

42. Lucas v. Henrico County Pub. Sch. Bd.
The decision was appealed to the Fourth Circuit Court of Appeals.
Court upheld the dismissal, but allowed the case to proceed on the remaining constitutional claims and associated state claims against several of the defendants.

43. B. D. v. Fairfax Cty. Sch. Bd,, Civil Action No
B.D. v. Fairfax Cty. Sch. Bd,, Civil Action No. 1:18-cv CMH-IDD, 73 IDELR 261 (E.D. Va. Feb. 19, 2019).
B.D., an 18 years old with Down syndrome and an intellectual disability.
B.D.’s parents expressed to school staff their desire for him to earn a standard diploma.
B.D.’s high school IEP included ambitious goals and provided for him to earn a standard diploma.
Parents alleged that some of B.D.’s teachers worked on less rigorous goals, different from those in his IEP.
Teachers also allegedly allowed B.D. to avoid academic work and to watch YouTube videos.

44. B. D. , Civil Action No. 1:18-cv-01425-CMH-IDD, 73 IDELR 261 (E. D. Va
B.D., Civil Action No. 1:18-cv CMH-IDD, 73 IDELR 261 (E.D. Va. Feb. 19, 2019).
B.D.’s parents filed for a due process hearing.
School Board prevailed in the administrative hearing.
Parents filed a court case, appealing the administrative decision and further alleging discrimination and retaliation under Section 504 and under the ADA.
Ruling on the motion to dismiss, the court found that claims had been stated by the parents under the laws which could show gross misjudgment or bad faith and that the case could proceed to trial.

45. Burnett ex rel. SB v. San Mateo Foster City Sch. Dist
Burnett ex rel. SB v. San Mateo Foster City Sch. Dist., 72 IDELR 147, 739 Fed. Appx. 870 (9th Cir. 2018).
School district admittedly committed procedural violations of the IDEA; however… Court held that the procedural violations did not result in a denial of FAPE because S.B. was never found eligible for services under the IDEA and, therefore, there was no loss of educational opportunity.

46. Burnett, 72 IDELR 147, 739 Fed. Appx. 870 (9th Cir. 2018).
Court rejected parent’s argument that the school district committed a procedural violation in its production of s pertaining to the student.
School district provided copies of only those s that had been printed concerning S.B. and added to S.B.’s physical file.
Court ruled that the school division was not obligated to provide copies of s that were not “maintained” by the school district in a folder or permanent secure electronic data base.

47. J. R. ex rel. J. R. and S. F. R. v. The New York City Dept. of Educ
J.R. ex rel. J.R. and S.F.R. v. The New York City Dept. of Educ., 73 IDELR 1, 748 Fed. Appx. 382 (2nd Cir. (2018).
J.R. - a student with impairments in all areas of functioning including cognition and language.
J.R. was placed in a private school by the school district for 3 years, but required a different placement after he aged out of the school’s service population.
School division proposed a public school program with a staffing ratio supported with individual and group speech and counseling services.

48. J.R., 73 IDELR 1, 748 Fed. Appx. 382 (2nd Cir. (2018).
The parents rejected the IEP and decided to unilaterally place J.R. in a private day school setting.
The parents filed a due process hearing to obtain tuition reimbursement from the school district.
The parents wanted all support to be provided by a teacher, but did not have professional opinions that supported that staffing as a requirement, only that it would “likely benefit” the student.

49. J.R., 73 IDELR 1, 748 Fed. Appx. 382 (2nd Cir. (2018).
Court ruled in favor of the school division, finding that the IEP was reasonably calculated to provide the student FAPE.
Court denied the parents’ request for tuition reimbursement.

50. Colonial Sch. Dist. v. G. K. ex rel. A. K. and S. K. , No
Colonial Sch. Dist. v. G.K. ex rel. A.K. and S.K., No , 73 IDELR 224, 2019 WL (3rd Cir. 2019).
Question: What actions must the LEA take to ensure that parents “understand” the discussions that occur during an IEP team meeting?

51. Colonial Sch. Dist., 73 IDELR 224, 2019 WL 588781 (3rd Cir. 2019).
34 CFR (c): Parent Participation
LEAs must “take whatever action is necessary to ensure that the parent understands the proceedings of the IEP team meeting including arranging for an interpreter for parents with deafness or whose native language is other than English.”

52. Colonial Sch. Dist., 73 IDELR 224, 2019 WL 588781 (3rd Cir. 2019).
Parents alleged that the LEA denied them an opportunity to meaningfully participate in their child’s IEP team meetings because the LEA did not ensure the parents understood “every nuance of the subjects discussed” during the IEP team meetings.
Parents spoke English and neither parent had a disability requiring interpreter services

53. Colonial Sch. Dist., 73 IDELR 224, 2019 WL 588781 (3rd Cir. 2019).
Court rejected the parents’ argument:
34 CFR “entitles parents to meaningfully participate in the IEP meetings, not to dictate the outcome…”
“We decline to deem ‘meaningful participation’ to require perfect comprehension by parents of all aspects of a student’s IEP.”
“Courts require ‘serious deprivation’ of parents’ participation rights...in order to find a violation of IDEA’s procedural safeguards.”

54. Colonial Sch. Dist., 73 IDELR 224, 2019 WL 588781 (3rd Cir. 2019).
In Colonial, the school took many steps to facilitate parents’ participation and to address their concerns :
Offered a facilitated IEP team meeting
Provided data on student’s performance
Provided the parents with an IEE
Held an IEP meeting within a week after parents requested a meeting to review concerns re the Student’s IEP goals

55. Durbrow v. Cobb Cnty. Sch. Dist., 887 F.3d 1182 (11th Cir. 2018).
Question: In the context of IDEA eligibility, what factors suggest that a student “needs special education and related services” by reason of a disability?

56. Durbrow, 887 F.3d 1182 (11th Cir. 2018).
8 VAC (H)(2): “For all children suspected of having a disability, local educational agencies shall: Have documented evidence that, by reason of the disability, the child needs special education and related services.”

57. Durbrow, 887 F.3d 1182 (11th Cir. 2018).
According to the 11th Circuit, eligibility teams should consider the following factors when determining if a student requires specially designed instruction:
(1) Is the student meeting academic standards?
(2) Are the student’s teachers recommending special education?
(3) Does the student exhibit unusual or alarming conduct warranting special education?
(4) Does the student demonstrate the capacity to comprehend course material?

58. Miscellaneous

59. E. I. H. , R. H. ex rel. L. H. v. Fair Lawn Bd. of Educ
E.I.H., R.H. ex rel. L.H. v. Fair Lawn Bd. of Educ., 72 IDELR 263, 747 Fed. Appx. 68 (3rd Cir. 2018).
Question: Does inclusion of nursing services within a student’s individual health plan (“IHP”) obviate the need to incorporate those services within a student’s IEP?

60. E.I.H., 747 Fed. Appx. 68 (3rd Cir. 2018). Background:
Student had a seizure disorder and a prescription for Diastate, a medication that must be administered rectally for seizures lasting more than 2 minutes
Student’s IHP called for a nurse to be assigned to the student’s bus to administer the medication
LEA declined to amend the student’s IEP to add this service as a related service - said this was a “medical” need, not an “educational” need

61. E.I.H., 747 Fed. Appx. 68 (3rd Cir. 2018).
The Court held that the LEA erred when it failed to incorporate the student’s nurse in the IEP.
“[A]ccepting that LH’s bus transportation is already included in her IEP as a related service, and understanding… that LH needs the nurse on the bus in order to safely get to school in the event of a seizure, it stands to reason that she would not be able to access her FAPE without the nurse. And if that is the case, then the ALJ was correct to include the nurse within LH’s IEP as opposed to IHP.”

62. Nelson ex rel. C. N. v. Charles City Comm. Sch. Dist. , 900 F
Nelson ex rel. C.N. v. Charles City Comm. Sch. Dist., 900 F.3d 587 (8th Cir. 2018).
Question: When must a parent exhaust their administrative remedies under the IDEA?

63. Nelson, 900 F.3d 587 (8th Cir. 2018).
As articulated in Fry v. Napolean Sch. Dist., a parent must exhaust their administrative remedies when seeking relief that is also available under the IDEA - i.e. relief for a denial of FAPE.
In Nelson, the parents filed a claim under Section 504 alleging their child’s school improperly rejected the child’s application to attend an online school
The court held that the parents should have exhausted their administrative remedies before filing the 504 claim– the gravamen of the claim was that the school denied the student FAPE by not admitting her to the online school

64. E. D. ex rel. A. Dougherty and K. Dougherty v. Palmyra R-I Sch. Dist
E.D. ex rel. A. Dougherty and K. Dougherty v. Palmyra R-I Sch. Dist., 911 F.3d 938 (8th Cir. 2019).

65. E.D., 911 F.3d 938 (8th Cir. 2019).
The lawsuit was filed pursuant to Section 504 and the ADA, not the IDEA, even though the central allegation was that the school division’s refusal to provide the 504 plan was a denial of E.D.’s right to FAPE. The parents viewed their refusal to accept services under IDEA as a total “opt-out” of the IDEA’s requirements. The Court, citing Fry, held that the parents were required to file a due process hearing prior to coming to court because they were “seeking relief that is also available under the IDEA.”

66. Section 504, Americans with Disabilities Act (ADA), Office for Civil Rights (OCR)

67. Ricks ex rel. M. R. v. State of Hawaii Dept. of Educ
Ricks ex rel. M.R. v. State of Hawaii Dept. of Educ., 73 IDELR 225 (9th Cir. 2019).
A mother of a student with preschool and autism sued the school, alleging that the use of a Rifton body support chair was an unlawful restraint of her child. The Court found that although the use of a Rifton chair was not in the student’s IEP or BIP was not sufficient to render the school or the Hawaii DOE liable for violating Section 504. The Court stated that “it does not follow that the use of a Rifton chair, above and beyond the aids and services listed in the IEP, necessarily violated Section [504].

68. K. N. and J. N. ex rel. J. N. v. Gloucester City Bd. of Educ
K.N. and J.N. ex rel. J.N. v. Gloucester City Bd. of Educ., 74 IDELR 73 (D. N.J. 2019).
J.N. is an elementary student with autism who exhibits aggressive behaviors, including biting and pinching. The District ran an afterschool program (“ASP”), which J.N. attended during the and school years, first with an aide and later with an aide and a special education teacher. The court found that because the district knew the student required a one-to-one aide plus the supervision of a special education teacher, the district’s failure to provide two aides discriminated against the student.

69. Miscellaneous – Part 2

70. Z. G. , ex rel. C. G. v. Pamlico Cnty. Pub. Schs. Bd. of Educ
Z.G., ex rel. C.G. v. Pamlico Cnty. Pub. Schs. Bd. of Educ., 72 IDELR 142, 744 Fed. Appx. 769 (4th Cir. 2018).
Z.G. – kindergarten student with autism and ADHD
Parents reported disciplinary and educational problems
Private evaluations diagnosed Asperger’s and recommended a separate room for outbursts
Despite assurances and despite many disciplinary issues, the school did not develop a Section 504 plan
Z.G. eloped, was captured, forced into a sherrif’s car, involuntarily communicated for two days

71. Z.G., 72 IDELR 142, 744 Fed. Appx. 769 (4th Cir. 2018).
The Parents argued that exhausting administrative remedies would be futile because they were seeking injunctive relief to prevent their child from being physically harmed by school officials
The court disagreed. The court also held that the Parents’ retaliation claims for failure to provide FAPE were also subject to exhaustion.
The Parents also argued that their Section 1983 claims regarding detention by the sheriff and involuntary hospitalization were not subject to exhaustion.
The Court agreed.

72. Takeaways from Z.G. Make timely referrals for special education
The Fourth Circuit is strictly applying Fry regarding the exhaustion of administrative remedies
Retaliation claims may need to be tried before a hearing officer if they are directly tied to FAPE

73. P.F. ex rel. A.F. v. Taylor, et al., 914 F.3d 467 (7th Cir. 2019).
Wisconsin’s open enrollment program allowed nonresident districts to turn away special education applicants if the district did not have the capacity to implement the applicant’s IEP
Parents of students with IEPs who were rejected from nonresident districts claimed disability-based discrimination
The court found that because “decisions are based on a student’s special needs, the program hinges on the ‘actual attributes of the handicap’ rather than mere ‘stereotypes.”

74. Letter to Zirkel, 119 LRP 18141 (OSEP May 2, 2019).
Parents are entitled to an IEE if they disagree with the initial evaluation of their child, even if their child was found ineligible under the IDEA based on that initial evaluation.
School divisions must consider the results of IEEs obtained by parents at their expense as long as the IEEs meet the agency evaluation criteria.

75. THE END