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Meeting the needs of people with disabilities, their families, educators & service providers

Archive for August, 2011

School district may not cure deficient evaluation to avoid paying for an IEE.

Monday, August 29th, 2011

M.Z. v. Bethlehem Area School District, 57 IDELR 5 (E.D. Pa. 2011):  A U.S. District Court determined that a state hearing officer erred when she ordered a school district to simply update an inappropriate evaluation rather than ordering a new and complete evaluation.

The parents of a student with a central auditory processing disorder, and pervasive developmental disorder, not otherwise specified (on the autism spectrum) requested an independent educational evaluation (IEE) as a result of the district’s failure to conduct an appropriate evaluation of the student.  The district, instead of paying for the IEE, filed a due process complaint claiming that its evaluation was appropriate.  The hearing officer found the district’s evaluation was inappropriate, but nevertheless decided not to require a full IEE because the parent “did not really take issue with the accuracy of the test results” of the district.  Instead, the hearing officer ordered the district to cure its inappropriate evaluation by including a classroom observation and input from the student’s teachers and parents.

The Court, agreeing that the evaluation was inappropriate, overturned the hearing officer’s order, noting that the federal regulations do not require specific arguments or disagreements with an evaluation for a parent to become entitled to a publicly funded IEE.  The regulations simply require that the district’s evaluation be inappropriate.  Since the district’s evaluation for this student was inappropriate, the parents were entitled to an IEE at public expense.

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Special education teacher’s injury, resulting from a student’s known violent behavior, does not raise a constitutional claim.

Thursday, August 25th, 2011

Jackson v. Indian Prairie School District 204, No. 1:08-CV-04312 (7th Cir. 2011):  A federal appeals court determined that the conduct of a school district’s special education administrators did not “shock the conscience” of the Court.  Therefore, the constitutional (substantive due process) claim by the teacher who was sent into the student’s room was dismissed.

The teacher was injured after being instructed by the school principal to check in on an autistic student with a history of aggressive behaviors toward staff.  The student, who had been de-escalating after an aggressive incident, became agitated once again by the time the teacher entered his room.  The student tried to throw a chair, but the teacher intervened and was injured as a result.  She sued the school district, claiming that her constitutional rights were violated because the principal sent her to the student’s room even though the student was known to be violent, and that the student should have been previously transferred to an alternative school.

The appeals court affirmed the district court’s decision that the circumstances leading up to the teacher’s injury did not “shock the conscience” as is required in order to establish a constitutional claim.  Notwithstanding that the district’s actions were “flawed and short-sighted” (and that it was a “close question”), sending the teacher to attend to the student, despite his violent history, was not significant enough to incur constitutional liability.  While the school district’s attempts to maintain the student in a general education environment (despite recommendations to the contrary by several faculty and staff members) may have been inappropriate, it did not rise to the level of a constitutional violation.

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School district violated Child Find obligations by not evaluating student it assigned to alternative school due to behavioral issues.

Thursday, August 4th, 2011

D.G. v. Flour Bluff Independent School District, 56 IDELR 255 (S.D. Tex. 2011):  A U.S. District Court held a school district violated its Child Find obligations when it failed to evaluate a student under the IDEA after the district assigned the student to an alternative school due to his significant behavioral issues.

The student, who was privately diagnosed with ADHD and Tourette’s Syndrome, began to exhibit significant behavioral issues beginning in the Fall of his ninth grade school year.  As a result, the district assigned him to an alternative school and required that he have 31 “successful” days (i.e. – days without a behavioral incident) at such alternative school before returning to his regular placement.  The student was so assigned multiple times throughout the school year, but despite the repeated behavioral concerns and the fact that he received private diagnoses of ADHD and Tourette’s Syndrome, the district did not evaluate the student pursuant to the IDEA until October of his tenth grade school year.

The Court determined that the student’s behavioral issues, as well as his private diagnoses, gave the school district reason to suspect he had a disability, thereby obligating the district to evaluate the student under IDEA.  By waiting approximately a year from the manifestation of the behavioral problems before conducting an evaluation, the district’s evaluation was untimely.  Accordingly, the Court awarded the student a year of compensatory education.

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