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VASSP 2007
Special Education Law Update
Kathleen S. Mehfoud, Esquire
Riverfront Plaza, West Tower
901 East Byrd Street, Suite 1700
Richmond, Virginia 23219
Telephone: (804) 344-3400
MAJOR SPECIAL EDUCATION MISTAKES
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 Ignoring referrals and failing to
handle them through the child
study process.
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 Failing to conduct evaluations
and relying on private
evaluations.
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 Missing timelines for eligibility
determinations and IEP
development.
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 Holding unreasonably lengthy
meetings or multiple meetings.
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 Giving in to parents’
unreasonable demands.
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 Writing services or
accommodations in the IEP
which exceed IDEA
requirements.
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 Writing services into the IEP
with the expectation that the
services will be provided on a
temporary basis only.
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 Failing to implement the IEP as
it is written.
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 Writing IEPs that are so
lengthy that they cannot be
implemented in a year’s time.
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 Ignoring discipline procedures
for children with disabilities.
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CASE UPDATE
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Autism ~ Private Placement Cases
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County School Board of Henrico County, Virginia,
v. R.T., 433 F. Supp.2d 657 (E.D. Va. 2006) and 433
F. Supp. 692 (2006).
 R.T. age 9 and student with autism.
 Placed in half day program based on TEACCH
model for about two months.
 Parents and expert observed student in the
program.
 Parents placed R.T. at Faison School.
 SB lost due process hearing and was ordered to
pay.
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 In appeal to federal district court, the court held:
 Window of opportunity closes between ages 6 and 8 years.
 Did not hold that TEACCH was inappropriate in general.
 Found that ABA was widely researched.
 Rejected that student was making progress consistent with
ability.
 School division had to pay retroactively and prospectively
for the private school placement.
 Case was settled and student was returned to the Henrico
Public Schools.
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J.P. v. County School Board of Hanover County,
Virginia, 447 F. Supp.2d 553 (E.D. Va. 2006).
 Twelve year old student with autism.
 Parents placed him in a private ABA autism program
at Spiritos and school division shared cost of
placement by agreement.
 Parents placed back in public school in 2004-2005.
 Public program provided extensive program that
included1-1 assistant, some ABA, and selfcontained placement.
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 Parents then pulled student out of school and
placed at Dominion School in the Fall of 2005.
 The school was new with only three students.
 HO found for Hanover.
 Parents appealed to federal court.
 District court found for parents and ordered
reimbursement.
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 Court’s decision was based on:
 No deference to hearing officer decision because of
inadequacy of opinion.
 all witnesses credible
 no findings of fact
 incorrect assignment of burden of proof.
 Charts of progress
 Inability of public school staff to implement and chart
progress and collect data
 Medical reports from evaluators who had not testified at
hearing or in court.
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 Court ordered $182,971 in attorneys’ fees
 and $33,187.90 in reimbursement.
 On appeal to Fourth Circuit.
 One good aspect of decision—no obligation to
permit parents or experts into schools for
observations.
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TIPS FOR AUTISM CASES:
 INSTILL CONFIDENCE IN OUR PERSONNEL
THROUGH CERTIFICATION AND TRAINING.
 COLLECT DATA TO SHOW THAT PROGRESS
WAS MADE.
 OFFER COMPREHENSIVE PROGRAMS.
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A.K. v. Alexandria City School Board, __
F.3d __, 107 LRP 22828 (4th Cir. 2007).
 A.K. has Aspergers Syndrome and OCD.
 He was placed in a private residential program in
Massachusetts by his parents.
 The 2004-2005 year IEP was developed over 8-10
hours.
 Only a few minutes concerned the placement
decision.
 The IEP offered a private day school.
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 Five private day schools were mentioned and only
two accepted him for admission.
 Parents said a private day school might work but not
any of the ones proposed or in the geographic area.
 The school division experts said that either of the
two private placements was appropriate.
 The parents said through their experts that the
schools were inappropriate.
 HO found for Alexandria.
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 The district court affirmed but the 4th Circuit
reversed.
 The school selected to implement the IEP must be
named in the IEP when the parents were
challenging the appropriateness of the schools in
the area.
 School selection can be an important part of the IEP
process and is a substantive part of the process.
 The IEP team must evaluate the proposed private
school for its ability to implement the IEP.
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Supreme Court Update
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Arlington Central School District Board of
Education v. Murphy, 126 S.Ct. 2455 (2006).
 Due process hearing regarding a private
placement.
 Parents prevailed and sought $29,350 in
fees for the services of an educational
consultant.
 District court reduced the fee recovery to
$8,650 and the 2nd Circuit affirmed.
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Arlington Central School District Board of
Education v. Murphy, 126 S.Ct. 2455 (2006).
 Supreme Court determined that the IDEA
does not allow for the parents to recover the
costs of expert witnesses.
 Consultants and advocates?
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Winkelman v. Parma City School District,
U.S. Supreme Court 2007
 Parents filed appeal to 6th Cir. without an
attorney.
 School Board filed a motion to dismiss the
appeal.
 Argued that parents could not represent their
children in court under IDEA claims and could
only represent themselves.
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Winkelman v. Parma City School District,
150 Fed. Appx. 406 (6th Cir. 2005).
 Supreme Court held that parents may bring
IDEA actions in federal court without an
attorney.
 More appeals to federal court?
 Statue of limitations not tolled due to infancy of
student.
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MORSE V. FREDERICK, 551 U.S. ___ (2007)
 BONG HITS 4 JESUS CASE
 “WE HOLD THAT SCHOOLS MAY TAKE STEPS TO
SAFEGUARD THOSE ENTRUSTED TO THEIR
CARE FROM SPEECH THAT CAN REASONABLE
BE REGARDED AS ENCOURAGING ILLEGAL
DRUG USE.”
 “…WE AGREE WITH THE SUPERINTENDENT
THAT FREDERICK CANNOT ‘STAND IN THE
MIDST OF HIS FELLOW STUDENTS, DURING
SCHOOL HOURS, AT A SCHOOL-SANCTIONED
ACTIVITY AND CLAIM HE IS NOT AT SCHOOL.’”
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 A PRINCIPAL MAY RESTRICT STUDENT SPEECH
AT A SCHOOL EVENT WHEN THAT SPEECH IS
REASONABLY VIEWED AS PROMOTING ILLEGAL
DRUG USE.
 SOME SPEECH THAT MAY BE PERMITTED
OUTSIDE OF SCHOOL MAY BE REGULATED IN
SCHOOL.
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 “SCHOOL PRINCIPALS HAVE A DIFFICULT JOB, AND A
VITALLY IMPORTANT ONE. WHEN FREDERICK
SUDDENLY AND UNEXPECTEDLY UNFURLED HIS
BANNER, MORSE HAD TO DECIDE TO ACT—OR NOT
ACT—ON THE SPOT. IT WAS REASONABLE FOR HER TO
CONCLUDE THAT THE BANNER PROMOTED ILLEGAL
DRUG USE—IN VIOLATION OF ESTABLISHED SCHOOL
POLICY—AND THAT FAILING TO ACT WOULD SEND A
POWERFUL MESSAGE TO THE STUDENTS IN HER
CHARGE, INCLUDING FREDERICK, ABOUT HOW SERIOUS
THE SCHOOL WAS ABOUT THE DANGERS OF ILLEGAL
DRUG USE.”
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Board of Education of the City School District of
the City of New York v. Tom F., 193 Fed. Appx. 26
(2d Cir. 2006).
 The parents prevailed at the due process
hearing regarding reimbursement.
 The district court reversed:
 “where a child has not previously received special
education from a public agency, there is no
authority to reimburse the tuition expenses arising
from a parent’s unilateral placement of the child in
private school.”
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Board of Education of the City School District of
the City of New York v. Tom F., 193 Fed. Appx. 26
(2d Cir. 2006).
 2nd Circuit reversed and said parents can get
reimbursement if they give reasonable notice:
 They reject the proposed IEP; and
 They plan to enroll their child in a private school
at public expense.
 Can parents be reimbursed even if the student
never obtained special education services from
a public school division?
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Bacon v. City of Richmond
 A group of school children and their families sued
the City and the School Board alleging that the
school’s buildings were inaccessible.
 The district court held that the City and the School
Board were both proper and necessary parties to
the action: the City is responsible for appropriating
funds and the Board is responsible for implementing
the remedial project.
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The Bacon case cont’d
 The City and plaintiffs appealed.
 The Fourth Circuit reversed the district court’s ruling.
 The Fourth Circuit pointed out that Virginia law vests
each school board with exclusive control over its
schools.
 Thus, the court held that the School Board was
solely responsible for ensuring that its schools are
ADA compliant.
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Board of Education of Montgomery County, MD
v. S.G.
 This case involved a dispute over eligibility.
 The student was found not eligible for special education as a
student with an emotional disturbance because the eligibility
committee determined that there was no adverse educational
impact.
 The court disagreed and determined that the evidence
demonstrated that the student’s emotional disturbance did
adversely affect the student’s educational performance.
 Absences could be considered as an adverse affect.
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Cave v. East Meadow Union Free School
District, et al.
 Hearing impaired student wanted to bring a service
dog to school with him.
 The dog was apparently trained to alert the student
to sounds and alarms.
 The school declined to allow the dog into school.
 The parents sued for $150 million, alleging
violations of the ADA, Section 504, and several New
York state statutes. The parents contended that the
IDEA was inapplicable.
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The Cave case cont’d
 The court held that the state statutes raised were
inapplicable.
 The court held that the IDEA was applicable
because the parents were essentially challenging
the adequacy of the student’s IEP. However, the
parents failed to exhaust their administrative
remedies.
 The court held that the school had reasonably
accommodated the student and thus satisfied the
requirements of the ADA and Section 504.
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The Cave case cont’d
 Accommodations provided by the school:
 sign language interpreter;
 FM system;
 student note taker;
 extended time for tests; and
 a one-on-one specialist teacher.
 The court ruled in favor of the school district.
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 THE END
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