Posts Tagged ‘Education Law’

Take the Sotomayor Quiz!

May 28th, 2009
By Brian Jason Ford, Esq., Legal Editor
This post origionally appeard as the May, 2009 issue of the DBYD Education Law Newsletter.
Obama Nominates Sotomayor to U.S. Supreme Court
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WARNING – This edition of the newsletter a bit heavy with acronyms and legalese but, every now and then, those of you down in the weeds deserve a little “inside baseball.”
This week, President Obama nominated Federal appeals court judge Sonia Sotomayor to the United States Supreme Court. Writing for Education Week’s School Law Blog, Erik W. Robelen noted that Judge Sotomayor sat on appellate panels in Second Circuit education law decisions including Garcia v. Yonkers School District (awarding legal fees to students in a student protest case) and Somoza v. New York City Department of Education (regarding the interplay between the IDEA’s two-year statute of limitations and New York state law). You can read Mr. Robelen’s post at this link.
A cursory glance will reveal almost 60 education and disability law cases that Judge Sotomayor has either participated in or decided throughout her career. I will not attempt to use these cases to pigeonhole Judge Sotomayor. But, if prior decisions forecast future holdings, consider these additional highlights as we play…
Better Know A SCOTUS Nominee!
Olson v. State of New York
U.S. Court of Appeals, Second Circuit
Written by Sotomayor
A New York State Police investigator who was also a union official was hospitalized for depression. After getting out of the hospital, he returned to work but started fighting with and cursing at his supervisors and stopped following orders. Later when the investigator was fired, he brought an ADA action against the state police but lost in front of a jury. The investigator appealed to Judge Sotomayor, who affirmed because…
A) The trial judge properly placed the burden of proof on the investigator; OR
B) The trial judge properly placed the burden of proof on the state; OR
C) The trial judge’s jury instructions, although far from ideal in that they did not properly explain “mixed-motive” burden shifting, were harmless.
ANSWER: C – This is Judge Sotomayor saying, “no harm no foul.”
Cortese v. New Fairfield Board of Education
U.S. Court of Appeals, Second Circuit
Acting without a lawyer, Mother brought an IDEA action (denial of FAPE) against her school district. She brought the lawsuit on her own behalf and on behalf Son, a student with disabilities. Son was 17 years old when Mother filed the lawsuit, but turned 18 – the age of majority – eight days later. The trial judge dismissed Mother’s clams, reasoning that students have rights under the IDEA, not their parents. At this point, Mother asked the trial judge to let the case go forward under Son’s name (i.e. treat Son as a separate plaintiff pursuing his own case). The trial judge refused, dismissing the case in its entirety, because Son was an unrepresented minor when the claim was filed. Mom and Son appealed to a panel of judges including Judge Sotomayor. The panel concluded…
A) The trial judge got it wrong. Parents have rights under the IDEA so Mother’s claims should not have been dismissed. Also, no matter how old the student was when the case was filed, he is now 18 and can speak for himself in court; OR
B) The trial judge got it wrong. Parents are entitled to FAPE so Mother’s claims should have continued no matter what Son’s status was; OR
C) The trial judge got it right. Students, not parents, are entitled to FAPE and minors are not allowed to represent themselves.
ANSWER: A – This is Judge Sotomayor showing deference to a pro se litigant.
Bonus fact! After this case was decided, the Supreme Court ruled that lawyer-less parents can represent their minor children in court! See Winkelman ex rel. Winkelman v. Parma City School Dist., 550 U.S. 516 (2007).
Mr. and Mrs. B. ex rel. M.B. v. East Granby Board of Education
U.S. Court of Appeals, Second Circuit
Mr. B. sued his school district alleging a denial of FAPE and seeking tuition reimbursement. Mr. B. lost both at the Due Process Hearing and Federal District Court level. He could not obtain reimbursement because, according to both the Hearing Officer and the trial judge, M.B.’s evaluations and IEPs were appropriate. Nevertheless, the trial judge upheld the Hearing Officer’s award of 10% of Mr. B.’s attorney’s fees. When the case reached Judge Sotomayor’s panel, on the issue of fees…
A) Parents were awarded 100% of their attorney’s fees. Parents are entitled to “fee shifting” if they prevail in even the slightest part of their case; OR
B) Judge Sotomayor’s panel ordered the trial judge to reconsider his opinion because (1) the Hearing Officer did not actually award attorney’s fees, (2) the Hearing Officer would not be allowed to order attorney’s fees even if she did and (3) the trial judge has to determine how successful – or not – the parents are before he can determine if they are entitled to anything; OR
C) Lets keep this simple. In the words of Willie Wonka, the panel said to Mr. B., “You lose! You get nothing!”
ANSWER: B – it’s messy, but legally correct.
State of Connecticut Office for Protection and Advocacy for Persons with Disabilities v. Hartford Board of Education
U.S. Court of Appeals, Second Circuit
Written by Sotomayor
The Connecticut Office for Protection and Advocacy (OPA) is a state-created agency authorized to investigate suspected abuse or neglect of individuals with disabilities or mental illness in Connecticut and to advocate on their behalf. OPA wanted to (1) observe and interview students a district-operated therapeutic school for students who are seriously emotionally disturbed, in order to investigate complaints of abuse and neglect at the school, and (2) obtain a directory of students with contact information for their parents or guardians. The Hartford Board of Education refused. Judge Sotomayor ruled…
A) OPA gets in because the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (“DD Act”), and the Protection and Advocacy of Individual Rights Act (“PAIR”) say they can; OR
B) Despite all of those laws, OPA stays out because students have privacy rights under both FERPA and the IDEA; OR
C) OPA gets in under all the laws listed in (A) and because neither FERPA nor the IDEA keeps them out.
ANSWER: C – Hartford was all by itself on this one.
Bonus fact! The U.S. Departments of Education and Health and Human Services filed amicus briefs in this case to say that the access that OPA sought was okay under both FERPA and the IDEA.
As the confirmation process moves forward (or drags on – depending on your point of view), we will let you know if Judge Sotomayor faces any education law question on her way to the bench.
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Oral Argument Recap – Forrest Grove v. T.A.

April 28th, 2009

by Brian Jason Ford, Esq.

I am digesting the argument transcript from today’s oral argument before the Supreme Court in Forrest Grove v. T.A., a special education case about private school tuition reimbursement. I will provide a thorough overview of the Court’s decision when it is released, but the argument itself is noteworthy (and not because it is good for a laugh). I encourage anybody who has even the slightest interest in special education law to read the argument, which you can download here. In this post, I will examine the argument and give background that may help you better understand the decision when it comes out.

I am going to assume that readers of this blog have a general understanding of how special education law works and that you know acronyms like IDEA, IEP and FAPE. If I’m wrong, that’s what comments are for. Also, I am simplifying the facts of the case to focus on substantive issues, not procedural details.

In this case, Forrest Grove evaluated one of its students, T.A., and found him ineligible for special education. When this happened, T.A.’s parents decided unilaterally (i.e. without consulting Forrest Grove) to place him in a private school – to the tune of $5,200 per month. The parents also initiated a special education due process hearing. The hearing officer considered Forrest Grove’s evaluation and other evaluations obtained by the parents, and determined that Forrest Grove got it wrong. T.A. had been eligible for special education all along. Forrest Grove appealed that decision, but developed and offered an IEP while the appeal was pending. In other words, Forrest Grove honored the hearing officer’s order even while fighting in court to have it overturned. The parents rejected the Forrest Grove’s IEP and, instead, pursued claims for tuition reimbursement

On the topic of tuition reimbursement, the IDEA says, in part, “If the parents of a child with a disability, who previously received special education and related services… enroll the child in a private elementary school or secondary school without the consent of… the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if… the agency had not [offered FAPE to the student]… in a timely manner prior to that enrollment.” To get the full text, click here and scroll down to (10)(C).

Forrest Grove keyed in on the language, “who previously received special education and related services.” They argued that language means students are entitled to private school tuition reimbursement if their school district fails to offer FAPE and they had previously received special education. In this case, T.A. had not previously received special education because, at first, Forrest Grove said he did not qualify and later, because his parents rejected services. Thus, Forrest Grove argued that T.A. was not entitled to tuition reimbursement as a matter of law.

T.A. (in conjunction with the Obama administration) argued that the Court must not allow school districts to circumvent their obligations to students with disabilities simply by refusing to find such students eligible for special education. In essence, T.A. focused on the consequences of the rule proposed by Forrest Grove: that school districts could avoid all potential liability for tuition reimbursement by simply refusing to find students eligible for special education. This, according to T.A., would set up a perverse incentive for school districts to deny services. Moreover, according to T.A., when the IDEA is read as a whole, Congress wanted school districts to pay tuition reimbursement if they deny FAPE and parents have to find services on their own. In T.A.’s point of view, Forrest Grove is arguing for a loophole that would thwart the intent of Congress.

One topic that kept creeping into the arguments is truly fascinating: If students must receive special education from their school districts before they are entitled to reimbursement, how much time must they spend in public school before switching to private education? Can a student spend one day in public school and then seek reimbursement? Forrest Grove told the Court that ten days in public school would suffice, and that timeline is supported by the IDEA. T.A. argued that the IDEA does not say how much time students must spend in public school because spending time in public school is not a prerequisite to a tuition reimbursement claim. I hope the Court will discuss this distinction in detail, as it may have an unexpected impact on school personnel decisions (e.g. how can schools make staffing decisions when some students will be in school for only 10 days as a means of securing a tuition reimbursement claim).

Forrest Grove is asking the Court to literally apply what the law actually says. T.A. is asking the Court to give deference to what, in their point of view, the law was intended to do. Of course, the arguments on both sides are much more complex than what I’ve laid out here. If you are interested in special education law, you should read the transcript.

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Strip Search Argument Highlights

April 24th, 2009

I’ve pulled out some gems from the oral argument in Stafford Unified School District v. Redding, the student strip search case now pending in the Supreme Court. Even non-attorneys may enjoy this. Read on for a discussion about what kids do with permanent markers, the “ick factor” of “crotching” drugs and, maybe, an over-share from Justice Breyer. Get the full transcript here (pdf).

…

JUSTICE SCALIA: Any contraband, like the black marker pencil that — that astounded me. That was contraband in that school, wasn’t it, a black marker pencil?
MR. WRIGHT: Well, for sniffing.
JUSTICE SCALIA: Oh, is that what they do?
MR. WRIGHT: It’s a permanent marker.
JUSTICE SCALIA: They sniff them?
MR. WRIGHT: Well, that’s the — I mean, I’m a school lawyer. That’s what kids do, Your Honor, unfortunately, Your Honor. But –
JUSTICE SCALIA: Really?

…

JUSTICE SCALIA: Could I come back to your distinguishing a strip search from a cavity search. What would you require before you would allow a cavity search?
MR. WRIGHT: Nothing at all. A bright line rule. I would not allow it.
JUSTICE SCALIA: No cavity search in school, no matter what?
MR. WRIGHT: We’re not even clinically trained to do that, Your Honor. I would submit that if a child has something stuffed up one of their cavities — and I assume we mean private parts, the very private parts — that the first thing to do would be to send them to the hospital. I mean, we just don’t have that clinical training.

…

JUSTICE SCALIA: Now, if — if you have a reasonable suspicion that the student has drugs and you search every other place, you search in the student’s pack, you search the student’s outer garments, and you have a reasonable suspicion that the student has drugs, don’t you have, after conducting all these other searches, a reasonable suspicion that she has drugs in her underpants?
MR. O’NEIL: No, Justice Scalia, we believe that you don’t –
JUSTICE SCALIA: All right.
MR. O’NEIL: — without — without –
JUSTICE SCALIA: Your logic fails me.
MR. O’NEIL: Well, Justice –
JUSTICE SCALIA: You — you reasonably suspect the student has drugs. You’ve searched everywhere else. By God, the drugs must be in her underpants.

…

MR. O’NEIL: No, because we believe that where you have reasonable suspicion that there is contraband in the underwear, then you could go directly to that location, and you wouldn’t have to work from the outside in. But, Justice Scalia, it takes –
CHIEF JUSTICE ROBERTS: Oh, surely not. You are saying if you have reasonable suspicion that it’s in the underwear, you shouldn’t even bother searching the pack or the pockets. You should go straight to the underwear. That can’t be right.

…

JUSTICE SOUTER: But you are — you are saying basically there is — there is no general understanding that people carry ibuprofen in — in their undergarments.
MR. O’NEIL: That is — that is true.

…

MR. WOLF: Well, I mean, to start, that’s not what T.L.O. said. T.L.O. said that there needs to be a reasonable –
JUSTICE SOUTER: I’m — I’m saying it.
(Laughter.)
JUSTICE SOUTER: We — We’ve got a new case.
(Laughter.)

…

JUSTICE GINSBURG: Do you agree with Mr. O’Neil when he said if the drug had been cocaine, and it’s well known that cocaine is carried in underwear, that then this would not run afoul of the Fourth Amendment? He gave an example of a drug where there was a custom of carrying it in a certain way.
MR. WOLF: Right. I think if it were readily known that this student had previously been suspected of — to use the term that’s used in the court of appeal cases — “crotching” that drug, well, then, perhaps that would have been appropriate.

…

MR. WOLF: Well if there’s probable cause and they want to call the police officers in, then they can do that. But that’s not what happened here. What this school official did was act on nothing more than a hunch, if that, that Savana was currently concealing Ibuprofen pills underneath her underpants for other’s oral consumption. I mean there’s a certain ick factor to this.

…

JUSTICE BREYER: It’s not like you have any studies on this. But I mean, I hate to tell you, but it seems to me like a logical thing when an adolescent child has some pills or something, they know people are looking for them, they will stick them in their underwear. I’m not saying everyone would, but I mean, somebody who thinks that that’s a fairly normal idea for some adolescent with some illegal drugs to think of, I don’t think he’s totally out to lunch, is he?

…

JUSTICE BREYER: So what am I supposed to do? In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometimes stick things in my underwear –
(Laughter.)
JUSTICE BREYER: Or not my underwear. Whatever. Whatever. I was the one who did it? I don’t know. I mean, I don’t think it’s beyond human experience, not beyond human experience.

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Education Law Newsletter for April 2009

April 17th, 2009

(by Brian Jason Ford) Each month, my law firm publishes an education law newsletter that offers insight and the latest news in school law. This month we address a Pennsylvania Due Process Hearing discussing a school district’s duty to transport students with disabilities. As such, it is a bit too Pennsylvania-specific to publish here. You are welcome to get a copy of the newsletter here: http://bit.ly/hsZ9r

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New Case About Special Education Appeals Timelines

April 14th, 2009

On April 14, the United States Court of Appeals for the Third Circuit decided Jonathan H. v. Souderton Area School District. This case sets the standard for special education appeals procedures in Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands. I’ll dissect what happened and what it means. For purposes of this blog, I’m going to ignore the fact that Pennsylvania used a “two tier” hearing system at the time of this case. PA’s shift to a “one tier” system makes no difference.

What Happened?

Feeling that his needs were not being met, Jonathan’s parents placed him in a private school. Jonathan then sued his school district, Souderton, alleging that Souderton failed to offer him an appropriate special education as required by the IDEA (the primary, federal special education law). Jonathan demanded both compensatory education (i.e. hours of services to remedy educational failures) and tuition reimbursement.

Although there is significant variation from state to state, the first step of a special education lawsuit is called a Due Process Hearing. In Pennsylvania, where this case arose, Due Process Hearings are conducted by Hearing Officers. In this case, the Hearing Officer gave Jonathan half of what he demanded. Jonathan won compensatory education but lost tuition reimbursement.

Under the IDEA, if you go through a state’s entire administrative system and lose, you have 90 days to bring your case to state or federal court. Although the court case looks like an appeal of the Hearing Officer’s decision, technically, the court case is a brand new lawsuit. This case hinges on that distinction.

On the 90th day, right at the deadline, Jonathan started a lawsuit in federal court against Souderton in an attempt to get the tuition reimbursement that the Hearing Officer would not give him. Jonathan officially initiated this lawsuit by filing a document called a Complaint. 70 days after Jonathan filed his Complaint – 160 days after the Hearing Officer’s decision – Souderton responded by way of a document called (uncreatively) an Answer. Souderton’s Answer stated its defenses, but it also included something called a Counterclaim. Without dicussing the finer points of the federal rules of civil procedure, Souderton’s Counterclaim attacked the Hearing Officer’s prior compensatory education award.

Jonathan had no problem with the District’s Answer, but took issue with its Counterclaim. Jonathan argued that the Counterclaim was – in reality – an appeal of the Hearing Officer’s award. As such, Souderton was over the 90 day deadline. The counterclaim, according to Jonathan, was made on the 160th day and must be dismissed. In short, Jonathan argued that Souderton should not be allowed to challenge the compensatory education award because it waited longer than 90 days to do so.

After some initial success, the Third Circuit ultimately disagreed with Jonathan. Technically, Jonathan’s attempt to get tuition reimbursement through the federal courts was a new case. Therefore, Souderton’s timeline to respond and to file counterclaims runs from the day that Jonathan moved the lawsuit into federal court.

What It Means.

This case does not establish a national precedent. I would not be surprised, however, if other courts look to this decision when deciding similar cases.

Under the standard set by this case, school districts and parents must proceed with caution when bringing special education matters before federal judges. Here, Jonathan thought he had compensatory education all locked up. He had the Hearing Officer’s award, which was affirmed by the appeals panel. Moreover, 90 days had gone by and Souderton had not challenged the compensatory education award. Jonathan must have been shocked when the court decided that Souderton was allowed to challenge that award on the 160th day.

The shoe could easily be on the other foot. The precedent set by this case may prove to be just as harmful to schools as it is to students and parents. Unfortunately, I fear that this case will be used as a vehicle for both sides to punish each other for moving cases into the courts after the conclusion of administrative proceedings. So much for finality.

The Bottom Line

Parents who win only part of a special education due process hearing jeopardize all that they achieved when they go to court to get the rest.

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