special education court cases 2020

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The Coronavirus Crisis

Families of children with special needs are suing in several states. here's why..

Anya Kamenetz

Vanessa Ince's daughter, Alexis, has a rare chromosomal abnormality and autism. Alexis has thrived at her public school in Wailuku, Hawaii, and loves spending time with her classmates.

Ince says when the COVID-19 pandemic closed her school in Wailuku, the effect on her daughter's well-being was "devastating."

"Alexis regressed so severely. She was previously, I would say, 95% potty trained and she started wetting herself." She also regressed in other areas, her mother says: She went back to crawling and stopped trying to use her communication device.

Ince says her daughter, who is 10, especially seemed to miss being around other children, as well as her regular routines, structure and stimulation. She went from a "happy, bubbly, loving-life child," to wandering the house aimlessly. "She just looked flat and empty and not really there."

Coronavirus Live Updates

Education dept. says disability laws shouldn't get in the way of online learning.

Ince and her husband have filed a lawsuit seeking to get Hawaii's Department of Education to pay for the services Alexis needs in a facility where she can see other children.

They are part of a growing number of parents around the country who are suing schools and state education departments over this issue. The Ince's attorney, Keith Peck, has also filed a suit seeking class action status for all families in the state who argue their students' Individualized Education Plans have been breached during the pandemic. (Hawaii's Department of Education did not respond to NPR's requests for comment.)

There is also a suit seeking national class action status, filed in New York City, that claims would-be plaintiffs in 20 states and growing.

Peck says that because Hawaii is a single, statewide school district, it makes it easier to try to join students' complaints together into one claim. "We want a systemic approach to address people's need for compensation," Peck says.

But advocates and experts say the very nature of special education means it's hard to come up with a single solution that works for everyone — or a remedy under existing rules and laws to even start to address the problem.

Advocates and attorneys who specialize in special education tell NPR that across the country, remote learning did not work very well for many students with disabilities.

Survey Shows Big Remote Learning Gaps For Low-Income And Special Needs Children

First of all, students who are from low-income families are overrepresented in special education, and may not have had devices or Internet access. That can add up to "automatic denial of their free, appropriate public education," says Bill Koski. He directs Stanford Law School's Youth and Education Law Project, which represents low-income students with disabilities in legal cases.

Secondly, students with attention deficit or communication difficulties may not be able to focus on computer screens for significant amounts of time.

And then, occupational, physical and speech therapists, for example, often touch students to guide them, and there aren't good substitutes for that over video chat.

A touchier question is whether districts have been trying hard enough to meet special education students' needs and fulfill their obligations under federal law during the pandemic.

U.S. Education Secretary Betsy DeVos issued guidance in March urging flexibility under the law during school shutdowns. She announced that special education law shouldn't stand in the way of the shift to online learning, and that students who missed out on therapies, for example, should be re-evaluated in the fall and receive "compensatory services," if necessary.

Koski, the advocate at Stanford, says there is a widespread understanding of the difficulty districts have been in. "There was almost a grace period during the shutdowns in the spring. Everybody was like, OK, this is uncharted territory." But now, he says, complaints, as well as simple requests for reevaluations, are likely to mount, which leads to its own problem: a backlog of paperwork that can lead to delays in resolving each case.

Alexander Campbell is a 14-year-old with autism who advocates for his fellow special education students in the state of Virginia with the Alliance Against Seclusion and Restraint. He said the pandemic has made existing inequalities worse.

"Students aren't receiving equitable services during regular normal schooling," he says. "And now that it's in the pandemic, it's been even worse, to the point where the school systems are trying to convince students and parents not even to receive services at all."

When Campbell's high school closed down, they sent his parents a letter dated April 16th asking to amend his Individualized Education Plan to suspend certain services. Campbell's family refused to sign. (His school did not respond to NPR's request for comment.)

Like Koski, Campbell says that, "we should be reasonable with schools saying, you know, that they can't provide every accommodation." For example, usually Campbell is allowed to chew gum in order to help him focus in class, and, "I don't expect them to get in the car and bring me a pack of gum to my house." But for fellow students whose families may be poor or may not speak English well, he's concerned about schools trying to push them to give up services they're entitled to.

Educators Get Creative To Serve Students With Disabilities

Campbell's concern is echoed by Wanda Blanchett, the dean of the education school at Rutgers University in New Jersey. She says that special education has historically been a "struggle" with its roots in the civil rights movement. To this day, Black and brown students tend to be overrepresented in certain kinds of special education, meaning this struggle intersects with issues of race, class and English-speaking status.

"Even though we have the legal protections, we know there are, every day, children that are guaranteed these services and they're not provided services when there is no pandemic," Blanchett says. "So it is certainly conceivable and real that these services have been disrupted [during the pandemic]."

But Julie Mead, who researches legal issues related to special education at the University of Wisconsin-Madison, says there's a potential problem with these lawsuits.

"Students with disabilities require programming that is special. That's the whole point — 'special' education," she says. In other words, for the very reason that each of these students is different, and needs different services, it may be harder to get courts to recognize them as a class, Mead says. She notes that, ever since a 2011 Supreme Court decision, Wal-Mart Stores, Inc. v. Dukes, certifying a class for a class action suit has gotten more complicated.

"What often becomes difficult is that judges look at this and say, 'Wait a minute. Kids with disabilities are so different, I'm reluctant to certify this as a class action because I'm not confident that we could come up with a remedy that satisfies everybody's needs.' "

And yet, Blanchett says, "what we did last March as a stopgap measure is not sufficient for this fall." All these suits and complaints express a very real feeling among many families that they need schools to step up and do a better job taking care of students with disabilities.

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Crofts v. Issaquah School District, No. 19-35473 (9th Cir. 2022)

Crofts requested that the School District evaluate her daughter, A.S., for special-education services after she received an outside evaluation indicating that A.S. might have dyslexia. The District evaluated A.S. under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1401(30). enumerated “specific learning disability” category, which encompasses conditions like dyslexia. It determined that she was eligible for services in reading and writing and created an individualized education plan (IEP) targeting A.S.’s deficiencies in those areas. Crofts argued that the District should have evaluated A.S. specifically for dyslexia and used her preferred teaching method for dyslexia, and that it improperly denied her request for an independent educational evaluation. A Washington State ALJ found that the District did not violate the IDEA. The district court and Ninth Circuit affirmed. The ALJ properly discounted expert witness testimony. The District satisfied the IDEA by evaluating A.S. under the “specific learning disability” category and did not violate its obligation to evaluate the student in “all areas of suspected disability” when it did not formally evaluate her for dyslexia. The District’s IEPs were reasonably calculated to help the student progress; the District did not deny a FAPE by failing to use the parents’ preferred teaching method.

Court Description: Individuals with Disabilities Education Act Affirming the district court’s summary judgment in favor of a school district in an action under the Individuals with Disabilities Education Act, the panel held that the school district properly denied a student’s parent’s request for an independent educational evaluation, properly evaluated the student for an individualized education plan, and did not deny the student a free appropriate public education. Affording deference to a state administrative law judge, the panel held that the ALJ properly discounted expert witness testimony. The panel held that the school district satisfied the IDEA by evaluating the student for a “specific learning disability,” and the school district did not violate its obligation to evaluate the student in “all areas of suspected disability” when it did not formally evaluate her for dyslexia. The panel * The Honorable Jennifer A. Dorsey, United States District Judge for the District of Nevada, sitting by designation. CROFTS V. ISSAQUAH SCHOOL DISTRICT NO. 411 3 further held that the school district’s IEPs were reasonably calculated to help the student progress, and the school district did not deny her a FAPE by failing to use her parents’ preferred teaching method.

Ninth Circuit rejects an Individuals with Disabilities Education Act claim based on a school district's refusal to evaluate a student specifically for dyslexia and use the parent's preferred teaching method.

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P.B., et al. v. Brumley

New orleans special education.

Students with disabilities were denied access to New Orleans public schools and often pushed into schools that failed to provide them with a free and appropriate education as required by federal mandate.

The Southern Poverty Law Center and a coalition of advocacy groups first filed an administrative complaint against the Louisiana Department of Education (LDOE) to bring schools into compliance with federal law and end practices that harm students with disabilities.

When that effort to craft a solution with the state stalled, the SPLC and its partners filed a federal civil rights lawsuit on behalf of 10 families.

The lawsuit, P.B. v. Brumley (originally P.B. v. Pastorek ), describes how the Orleans Parish School Board (OPSB) denied students with disabilities admission to schools because of their disabilities – a violation of the federal Individuals with Disabilities Education Act. What’s more, students were punished in school for behavior stem¬ming from their disabilities, according to the lawsuit. It also outlines how the school board failed to establish policies and practices to identify and evaluate students with disabilities for services in a timely fashion. 

The LDOE and OPSB agreed to settle, entering into a consent judgment on March 25, 2015. The parties agreed to hire independent monitors to observe schools in the categories of discipline, enrollment, identifying students with disabilities and providing special education services. Every 180 days, the monitors issue reports detailing whether the schools are complying with the consent judgment. If noncompliance is found, the monitors determine whether it is a systemic issue or an isolated case. The monitors continue observing schools until compliance is found.

In October 2020, the OPSB and the LDOE notified the court that they felt it was time for the monitoring to end. The plaintiffs argued that termination would be premature, and that the monitoring had been successful – in fact, more proactive measures are needed before the consent judgment is terminated. The judge ordered the SPLC to develop a proposal that could be adopted if monitoring under consent judgment ends.

The plaintiffs’ comprehensive proposal, submitted to the court in July 2021, ensures continued robust monitoring of special education in New Orleans. The proposal includes the following: 

•    Create an Office of Ombudsman in the New Orleans Public School system to help families and schools to resolve conflicts and issue reports on its activities each year •    Increase transparency in special education, including in school choice, complaint procedures, and how students with disabilities are doing in New Orleans schools   •    Incorporate the consent judgment monitoring into New Orleans’ monitoring and compliance frameworks, and  •    Continue to hold the LDOE and OPSB accountable for the special education of students in Orleans Parish.

The Supreme Court and Education: What Happened in the 2020-21 Term

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The U.S. Supreme Court issued important decisions on student speech, college athletics, and other issues of interest to educators during the just-concluded 2020-21 term.

It was the first full term conducted remotely because of COVID-19 (after the last few months of the previous term had gone remote in 2020.) The term was also marked by the addition of Justice Amy Coney Barrett, who joined the court in November 2020 after the death in September of Justice Ruth Bader Ginsburg.

During this term, the court notably declined to take up a case on transgender student rights, letting stand a lower court victory by transgender student Gavin Grimm over the right to use the school restroom of his choice. And it put off a decision on taking up a major case about affirmative action in higher education by asking President Joe Biden’s administration to weigh in on Harvard University’s consideration of race in undergraduate admissions.

Here are five education-related cases the court did decide on the merits:

Student speech

In Mahanoy Area School District v. B.L. , the court ruled 8-1 that a Pennsylvania school district violated the First Amendment when it punished a student for posting —while off-campus—a vulgar message on Snapchat expressing frustration about school and her cheerleading team. The majority said students have a right to self-expression and that schools are “nurseries of democracy” that play an important role in facilitating student speech. The school district and some education groups took comfort in the fact that the court said schools would sometimes have sufficient grounds to discipline off-campus speech, such as with severe bullying, threats aimed at teachers or students, and in virtual school.

Amateurism in college sports

In a case being watched in K-12 schools as well as in higher education, the court in National Collegiate Athletic Association v. Alston unanimously upheld a lower-court injunction that authorizes increased education-related compensation of student-athletes, such as for graduate school scholarships, paid post-eligibility internships, and study abroad. The court rejected a lighter form of antitrust scrutiny for the NCAA, and a concurrence suggested that other rules of the main college sports governing are subject to challenge under antitrust law. Some observers in K-12 decision worry about the effects of such changes on the recruitment of high school athletes and on youth sports.

Legal challenges to school policies

In a significant decision regarding litigation involving school and college policies , the justices ruled 8-1 in Uzuegbunam v. Preczewski that a request for nominal damages of as little as $1 can keep a lawsuit challenging a government policy alive even when the agency drops the policy. The case before the court involved a challenge to a community college’s policy of limiting First Amendment activity to a small “free-speech zone.” The college dropped its policy under the challenge and sought to end the suit on that basis. But the Supreme Court revived the suit, holding that even a plea for $1 in nominal damages is enough to maintain a plaintiff’s legal standing.

Juvenile justice

In an important juvenile-justice decision , the court held 6-3 in Jones v. Mississippi that in cases involving defendants who committed murder when they were under 18, a court does not need to make a finding that the offender was “permanently incorrigible” before imposing a sentence of life without parole. The high court stressed that a judge or other sentencing authority must still take the youth of a juvenile offender into account in such cases, a process that often involves examining the offender’s childhood and school record.

Affordable Care Act

In California v. Texas , the court ruled 7-2 that a group of Republican-led states lacked legal standing to challenge the Affordable Care Act after Congress in 2017 eliminated the penalty for not complying with the law’s individual mandate to carry insurance. Both the American Federation of Teachers and the National Education Association had joined a friend-of-the-court brief in support of the signature achievement of President Barack Obama’s administration. The brief emphasized the expanded number of children and young adults covered by health insurance because of provisions in the ACA.

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Special Education

How California plans to deter costly special education disputes

Fund is meant to help parents and schools settle differences before heading to court.

Carolyn Jones

July 22, 2021, 11 comments.

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The threatened deluge of post-pandemic special education litigation may be averted — or at least minimized— by a new initiative in California encouraging parents and schools to resolve disputes before heading to court.

The state budget, signed Friday by Gov. Gavin Newsom, sets aside $100 million for resolving special education conflicts between parents and school districts, which escalated during remote learning.

The money will go toward outreach, such as brochures, meetings and presentations, to help parents and school staff understand the rights outlined in the Individuals with Disabilities Education Act, the federal law that requires districts to educate students of all abilities. The goal is to improve communication and build trust between parents and schools, so conflicts can be resolved quickly and more easily.

None of the money can go to attorney fees.

“I had tears of joy when the governor signed it. We worked so hard to make this happen,” said Veronica Coates, director of Tehama County’s Special Education Local Plan Area, who helped craft the legislation. “We won’t escape all disputes, but this means we can devote more resources to helping kids, not paying lawyers.”

In addition, the state set aside $450 million for extra tutoring, therapy and other services that students with special needs missed during remote learning. It also funded the first steps of a system similar to what other states use to help parents get support from neutral facilitators during special ed meetings. The aim is for parents to better understand the special education process and needs of their children.

Many students in special education fell behind during distance learning because so many services for disabled students — such as speech or physical therapy — were nearly impossible to deliver virtually. Under federal law, parents can sue a school district if they feel their children aren’t receiving services they’re entitled to in their individualized education program, or IEP.

Special education lawsuits can be expensive for school districts. The cost of providing special services might be relatively minimal — say, a few thousand dollars — but if the district loses the case, it often owes parents for their attorney fees, which can top $100,000. The district also has to pay its own attorneys, although those costs are typically lower. In some cases, a judge orders districts to pay for costly services such as boarding school for students with severe challenges.

Schools in California have so far paid more than $5.4 million in attorney fees for Covid-related special education disputes, Coates said, adding that the number is probably far higher because only a quarter of districts responded to a survey on the topic. Less than half that total — $2.3 million — went to providing services to students in those disputes, she said.

Disputes usually center on the number of hours of extra services a student might need. A district might say a student is entitled to two hours a week of speech therapy, for example, but a parent might want eight. If the parties can’t compromise, either side has the option of requesting a hearing with the state Office of Administrative Hearings. The department assigns a mediator to help the parties resolve the matter, and if that fails an administrative law judge will hear the case.

California sees far more special education disputes, on average, than most other states. In 2018-19, parents’ requests for mediation in California represented nearly half of the requests nationwide, according to the Consortium for Appropriate Dispute Resolution in Special Education . California’s rate of mediation requests was four times higher than the national averag e. The number of cases in California jumped 84% from 2006-07 to 2016-17, according to the Legislative Analyst’s Office,  costing schools millions.

Last year, the number of cases filed with the Office of Administrative Hearings actually fell 16%, according to the department, although that number may increase this fall as schools get caught up with student assessments and evaluations. In 2020-21, when most schools were closed due to Covid-19, the Office of Administrative Hearings received 3,908 cases, 87 of which couldn’t be resolved through mediation and ended up in court. The previous year, the office received 4,650 cases and held 91 hearings.

Many of the cases post-pandemic are centered on “compensatory education” — extra services to help students catch up to the benchmarks in their IEPs. Compensatory education can mean one-on-one tutoring, summer or after-school programs, extra therapy or other specialized assistance.

Matthew Tamel, a Berkeley attorney who represents school districts, said so far his volume of special education cases hasn’t increased since the pandemic, but “the cases are more intense, harder to settle.” They often center on what services a student needs to catch up following campus closures. A parent might want 400 hours of speech therapy for their child, for example, while the district believes the actual estimate of lost time is closer to 100 hours.

State funding to help resolve these disputes before they head to court is a welcome development that will hopefully lead to smoother negotiations and outcomes that are reasonable for both sides and beneficial for students, Tamel said.

“When schools first closed, it was a very difficult time. Everyone thought it would just be a few weeks, and it turned into a year and a half in some districts. Not everything was perfect when schools first closed,” he said. “Most families understand that. … This fund will hopefully help students get the services they need to make up what was missed in 2020 without having to go to court.”

But some say the state’s promotion of out-of-court dispute resolution favors districts, not parents. Without hiring lawyers or professional advocates, parents might be at a disadvantage when negotiating with districts over the services they believe their children need. Lower-income parents are especially vulnerable because the only way they can get reimbursed for attorney fees, which can cost upwards of $400 an hour, is by going to court, said Jim Peters, a Newport Beach advocate who helps parents in special education disputes.

“I support the idea in general of alternative dispute resolution, but in this case it’s disingenuous,” said Peters, who helped organize a class-action special education lawsuit against the state last year. “The money won’t be given out based on a child’s needs, it’ll be given out based on which parents can afford to hire attorneys.”

Angelica Ruiz, a parent in San Bernardino County whose 12-year-old son, Arthur, has moderate-to-severe autism, said she never would have won extra services for her son if she didn’t have a professional like Peters advocating on her son’s behalf.

Courtesy Angelica Ruiz

Angelica Ruiz and her son, Arthur.

During remote learning, Arthur suffered anxiety and behavior meltdowns as the pandemic wore on. He’d often refuse to participate in online classes. He began hitting himself, his personal hygiene declined and he suffered from severe insomnia, Ruiz said.

Peters helped her son get extra therapy and other services, she said. It didn’t solve everything, but it made a big difference for Arthur, she said.

“Sitting in a room with all these people from the school, it can be intimidating,” she said, describing her meetings with her son’s teachers, therapists and school administrators. “Most parents aren’t trained to do this, we don’t always know what we’re entitled to or what we should be asking. … Parents should not have to file (a suit) just to get the services their kids need. We shouldn’t have to fight over it.”

But solving conflicts like Ruiz’s is exactly what the new state fund will do, said Coates, the special education director from Tehama County, and Anjanette Pelletier, special education director for San Mateo County. By minimizing the role of attorneys and advocates, parents of all incomes should have access to fair, free dispute resolution. And disputes will be settled quicker, allowing students to receive services sooner, they said.

Pelletier and Coates began working on the legislation a year ago, when they noticed a sharp uptick in litigation in their counties related to special education during campus closures. The lawsuits not only delayed districts from providing services to students, but they also generated mistrust and antagonism between families and school staff, they said.

“Schools were in a bind,” Coates said. “This was born out of a need to help our students get services faster, and improve relationships with families.”

Another issue is the ongoing shortage of special education teachers, worsened by the pandemic, Coates and Pelletier said. Special ed teachers are already facing high levels of stress trying to help students during Covid; they don’t need the additional stress of litigation, they said.

Working with Assemblyman Jim Frazier, D-Fairfield, and others, the pair helped create the legislation and shepherded it through the budget process. Ideally, the $100 million for outreach will benefit not just families but school administrators as well, they said.

“That’s the dream, that administrators learn to improve communication with all families,” Pelletier said. “We’re not going to get rid of all disputes, but hopefully this will allow us to do what’s best for kids and spread the resources more equitably.”

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Alan 8 months ago 8 months ago

School districts in California defund special education by not hiring teachers and para-educators. They drag their feet and don’t start the process until parents complain. Superintendents often transfer money from special education to their general fund. Keeping special education in a broken state with low salaries and poor district management allows superintendents to fund their pet projects on the backs of the most needy.

Kay 1 year ago 1 year ago

My daughter has suffered deliberate willingness to ignore her need for special education support. It’s amazing how Fresno Unified is only willing to assist 2 years while they have neglected a special needs child for 4 years with knowledge of the needs.

Qtips 2 years ago 2 years ago

The Special Education system needs reform. There seems to be this notion that schools are out to deny services to students with special needs. I've worked in many different classrooms over the years and can tell you that most every teacher, specialist and administrator has their heart in the right place and wants what's best for their students. However, oftentimes the requests of these families are unwarranted and frankly disrespectful of the opinions of the … Read More

The Special Education system needs reform.

There seems to be this notion that schools are out to deny services to students with special needs. I’ve worked in many different classrooms over the years and can tell you that most every teacher, specialist and administrator has their heart in the right place and wants what’s best for their students. However, oftentimes the requests of these families are unwarranted and frankly disrespectful of the opinions of the specialists.

Let’s say that a student receives an hour of speech therapy in kindergarten. Now let’s say that by third grade, the speech language pathologist (SLP) suggests that the student’s speech is functional and that they no longer require the service. In theory, parents can continue to sign on for this service against the SLP’s recommendations until the child is 22 and the school can take no recourse.

Last week we received an assessment request for a student in all areas of disability – psychological, academic, speech, fine motor and gross motor. However, the only reported area of need by the IEP team was reading. Parents insisted on testing in all areas (a process that takes 8-10 hours per specialist) just to “rule out” despite the fact the professionals insisted that the student should only be tested in areas of suspected disability.

At my district, we receive referrals every day regarding everything from the student having anxiety to the student not liking showering at home to observations made by private doctors who do not see the child regularly and base their findings on a one-time assessment.

I think we tend to think that children with disabilities and their families are always underdogs but the truth is that the system is abused both ways. No, schools do not always demonstrate competence and efficiency (this is mainly a result of high stress-related turnover and a crushing amount of paperwork, particularly in Special Ed). That being said, there are definitely parents who use the system as a means of obtaining free ongoing support for their children without understanding the IEP process or respecting the professional opinions of the staff that is providing education to their child.

Dawn 3 years ago 3 years ago

I have a grandson who is is in this very predicament. I am so happy to read that something is being done about it!

Pat 3 years ago 3 years ago

I don't know how practical this would be from a financial aspect, but I would like to see an advocate assigned to a family going through this process w/o charge. If they are knowledgeable about what their child needs, then they can decline the advice. This would encourage a family not to go to court, and sounds cheaper in the long run for the school district. It would attain the needed services faster, and … Read More

I don’t know how practical this would be from a financial aspect, but I would like to see an advocate assigned to a family going through this process w/o charge. If they are knowledgeable about what their child needs, then they can decline the advice. This would encourage a family not to go to court, and sounds cheaper in the long run for the school district. It would attain the needed services faster, and give the family something that they currently have to go to court in order to be reimbursed.

Heather Zakson 3 years ago 3 years ago

I'm curious to know if you independently checked Ms. Coates' sources. $5.4 million in attorneys fees and $2.3 million in services for kids? It would be helpful to know where those figures came from. A quick search through the Office of Administrative Hearings reveals that Tehama County has not been in court over a special education dispute since 2010 - and in that case, Tehama sued the disabled child's parents, not the other … Read More

I’m curious to know if you independently checked Ms. Coates’ sources. $5.4 million in attorneys fees and $2.3 million in services for kids? It would be helpful to know where those figures came from. A quick search through the Office of Administrative Hearings reveals that Tehama County has not been in court over a special education dispute since 2010 – and in that case, Tehama sued the disabled child’s parents, not the other way around.

There’s nothing wrong with alternative dispute resolution – the vast majority of special education disputes are resolved through some kind of mediation and negotiation process and never reach trial. Special education attorneys know that’s a great way to get children the support they need.

Unfortunately, Ms. Coates might have another agenda.

Frank 3 years ago 3 years ago

We have a global pandemic, and we're blaming schools for not providing extra services? No kidding, schools aren't offering the same services to students. They're restricted by the worldwide disaster we're in. Anyone who yells and screams will probably get what they want. But, that doesn't mean they should. They definitely shouldn't during the hell that everyone's been through. Read More

We have a global pandemic, and we’re blaming schools for not providing extra services? No kidding, schools aren’t offering the same services to students. They’re restricted by the worldwide disaster we’re in. Anyone who yells and screams will probably get what they want. But, that doesn’t mean they should. They definitely shouldn’t during the hell that everyone’s been through.

Christopher A Rosa 3 years ago 3 years ago

And what about all the parents and students who were ignored and not addressed by the decision makers in the district? That’s the real reason behind the lawsuits. The districts failed many families. It’s the same story with any patent you speak to. They never called me or emailed me back? I didn’t know what else to do. So I brought or joined a lawsuit.

It's hard for me to imagine employees of a district who are purposely trying to block a student from their services. They might be incompetent, they might not have enough time or other resources, but they don't likely benefit from acting to the detriment of a student. Parents face the same deficiencies, but how many districts use aggressive legal strategies to control the parent? Like everything, relationships matter. If an IEP team has a weak … Read More

It’s hard for me to imagine employees of a district who are purposely trying to block a student from their services. They might be incompetent, they might not have enough time or other resources, but they don’t likely benefit from acting to the detriment of a student. Parents face the same deficiencies, but how many districts use aggressive legal strategies to control the parent? Like everything, relationships matter. If an IEP team has a weak relationship where they don’t communicate, then there is a need for the members to come up with a solution, and I’m not sure lawsuits are the best way in many cases.

For me, it would take a ton to join a lawsuit. There’s too much money involved, and it can destroy the morale of an IEP team.

That being said, if I had your experiences with the particular districts in your life, I might agree with you, and if you’ve decided on pursuing a lawsuit, I hope you win.

Robert D. Skeels, JD, Esq 3 years ago 3 years ago

To the extent that this provides families of students with disabilities another avenue to secure their rights, I applaud this. In the rare case that schools are actually operating in good faith, this will speed up access to services for students that need them most. However, for all the charter school corporations and public schools that will use this to deprive students of their educational rights, there's this: Gov. Code § 56845.9(a) "This article shall not be … Read More

To the extent that this provides families of students with disabilities another avenue to secure their rights, I applaud this. In the rare case that schools are actually operating in good faith, this will speed up access to services for students that need them most.

However, for all the charter school corporations and public schools that will use this to deprive students of their educational rights, there’s this:

Gov. Code § 56845.9(a) “This article shall not be construed to… [a]bridge any right granted to a parent under state or federal law, including, but not limited to, the procedural safeguards established pursuant to Section 1415 of Title 20 of the Unites States Code.”

As for Veronica Coates seemingly seething resentment towards attorneys working hard to help children with disabilities obtain their rights, she should consider the fact that if schools would merely follow the law, there’d be no need to file for Due Process.

Robert Bartlett 3 years ago 3 years ago

The best response to the increase in litigation would be to get students back to in-person learning. Last year (2020-2021), many parents were shocked by their student's behavior at home during remote learning. They couldn't believe how defiant they were. In addition, many students with learning handicaps struggled to comprehend the delivery methods of online instruction. It was overly visual, with almost no interaction with the teacher. To compensate, students would try to enlist their … Read More

The best response to the increase in litigation would be to get students back to in-person learning. Last year (2020-2021), many parents were shocked by their student’s behavior at home during remote learning. They couldn’t believe how defiant they were. In addition, many students with learning handicaps struggled to comprehend the delivery methods of online instruction. It was overly visual, with almost no interaction with the teacher. To compensate, students would try to enlist their parents as a substitute for the role of teacher.

Parents are trying to shield themselves from their child’s demands. Extra services means extra time with a teacher supervising the child in a one-on-one situation as opposed to the parent providing the one-on-one supervision. Not all the litigation is in good faith. Some of it is parents avoiding the demands of the pandemic. They’re grabbing for resources more than trying to help their child “catch up.” There is very little evidence to support the idea of catching up in tutoring sessions. For instance, what standards and methods will these tutoring sessions follow? “Catching up” is a hackneyed catch phrase for parents who want to stop being a free tutor. Some parents just can’t see the civic duty in it. Bring all special-ed students back to full-time in-person learning immediately, without regard for other precautions.

Spend all the money on hiring whatever staff it takes, especially paraeducators. If that commitment is made, the litigation will cease. Relieve parents of the burden of tutoring their students, at least full-time tutoring. That will minimize regression, which is a better promise than “catching up.” The goal now is it stop regression and to stop it quickly, and the only way to do that is with full-time in-person learning.

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Special Education Caselaw U.S. Supreme Court l Courts of Appeals l District Courts Noteworthy Cases l Special Education Year in Review Books & Video Training

The Special Education Caselaw section of the Wrightslaw Special Education Law Library is organized as follows.

Decisions from the U. S. Supreme Court are listed first, beginning with Board of Ed. v. Amy Rowley (1982). Decisions from U. S. Courts of Appeals are next, followed by noteworthy decisions from U. S. Districts Courts and administrative decisions.

The Caselaw Library includes a sample of decisions on special education legal issues and does not include every important decision since the law was enacted. If you are looking for Complaints filed in federal court, please check the Federal Court Complaints page. If you are looking for articles about legal issues, please check the Articles and Analyses page .

For additional information about cases and legal research, please check the Directory of Legal and Advocacy Resources . For articles about special education law and advocacy topics, frequently asked questions, and newsletter archives, please go to the Advocacy Library.

New in 2021

Rogich v. Clark County School District, (Nevada, 2021). Methodology and procedural safeguards case. School district failed to provide an IEP that identified an Orton-Gillingham based methodology or structured literacy format that teachers would have to use to meet the needs of a child with dyslexia; school district refused to accept the parents' offer to pay to train teachers in an effective structured literacy method; IEP teams failed to adequately review evaluations provided by parents and failed to "meaningfully consider parents' concerns for enhancing their child's education." Judge held that telling parents "Trust us to provide what she needs" is "not sufficient."

S.S. v. Cobb Co. Sch. Dist. (N.D. GA 2021) - When "a due process complaint is dismissed without an evidentiary hearing and the reviewing court lacks findings and conclusions on the merits of the plaintiff's claims . . . remand is the most appropriate remedy." Case remanded for due process hearing.

S.C. v. Lincoln Co. Sch. Dist. (9th Cir. 2021) - Administrative law judge held that school district failed to provide child with Prader-Willi Syndrome with a FAPE because child required "total food security" in a schoolwide environment to obtain a meaningful educational benefit; ordered placement at an educational center where these needs could be met. District Court denied parent's request for "stay put". Ninth Circuit reversed denial, remanded for entry of stay-put order at the educational center at school district's expense.

*** M.C. v. Antelope Valley Union School District . First decision from a Court of Appeals after the Supreme Court issued their decision in Endrew F. M.C. v. Antelope Valley will be a Wrightslaw 2017 Case of the Year.

In Phyllene W. v. Huntsville City (AL) Bd. of Ed. (11th Cir. 2015) the U.S. Court of Appeals for the Eleventh Circuit reversed the decision of a Hearing Officer and of a U. S. District Court and ruled in favor of the parent and child. The Court explained that: "[T]he Board violated . . . IDEA by failing to evaluate M.W. when faced with evidence that she suffered from a suspected hearing impairment. As a result of its failure to obtain necessary medical information regarding M.W.'s hearing, the Board further failed to provide her with a FAPE. The lack of medical information rendered the accomplishment of the IDEA's goals impossible because no meaningful IEP was developed, and the IEPs put into place lacked necessary elements with respect to the services that M.W. should have been provided. In short, the Board's failure to evaluate M.W. with respect to her hearing loss deprived M.W. of the opportunity to benefit educationally from an appropriate IEP." Doug C. v. Hawaii (9th Cir. 2013) - Important decision about parental participation at IEP meetings. "All special education staff who conduct IEP meetings should be familiar with this landmark ruling about IEP meetings and parental participation" (Pete Wright) Read Pete's analysis of case. Pete's YouTube discussion is here. The original decision is here.

F. H. v. Memphis City Schools (6th Cir. 2014) - Parent filed suit against school after child was verbally, physically, and sexually abused by his aides at school. School entered into Settlement Agreement with the parent, then refused to honor the Agreement. Court found that Sec. 1983 claims do not require exhaustion under IDEA and that settlement agreement is enforceable in courts.

A.C. v. Shelby County (6th Cir. 2013) - Pro-child 504 retaliation decision in which a principal filed false child abuse allegations against child's parents. For a case of this nature to proceed, there must be a finding that the school district retaliated against the parents for asserting their rights under Section 504. The Sixth Circuit's 29 page opinion does an exceptional job of explaining the basis and criteria needed for a successful Section 504 suit to proceed against a school district. Original decision as issued by the Court is located here. The Wrightslaw reformatted version with highlights is located here.

Special Education Legal Developments and Cases ("Year in Review") Books

The Year in Review books include all special education decisions in IDEA and Section 504 cases issued by the U.S. Courts of Appeal for that year, and include cases about discrimination in daycare centers, private schools, medical licensing board exams, and higher education; damages; higher standards for IEPs and Least Restrictive Environment. The Table of Decisions includes the date, court, synopsis of legal issues, outcome, and prevailing party in the cases. The entry for each case includes the factual background, legal issue(s), and holding of the case.

All Year in Review books are available as immediate PDF downloads from the Wrightslaw Store and as Print books from Amazon.

Decisions from U.S. Supreme Court (issued prior to our "Year in Review" series which began in 2015)

Brown v. Bd of Education , 347 U. S. 483 (1954) . In this landmark decision, the Supreme Court found that segregated public schools are inherently unequal; decision is relevant to children in segregated special education placements.

Davis v. Monroe Bd. of Education (1999) . U. S. Supreme Court decision in sexual harrassment case.

Zelman v. Simmons-Harris, et.al (2002) . The Supreme Court ruled that the Cleveland voucher program for students who attend failing schools is constitutional and does not violate the Establishment Clause. Schaffer v. Weast , 546 U. S. _(2005) Supreme Court held that the burden of proof in a due process hearing that challenges an IEP is placed upon the party seeking relief. Read How Will the Decision in Schaffer v. Weast Affect You? by Peter Wright, Esq.

Bd of Ed of City of New York v. Tom F (2007) . The question before the Court was whether parents of a child who has never received special education from the public school district can obtain reimbursement for a unilateral private placement. The U. S. Supreme Court issued a split decision (4-4) in the case . Justice Kennedy recused himself. The favorable decision stands for families who live in the Second Circuit - Connecticut, New York, and Vermont. Read about the key events in A Short History of New York Bd of Education v. Tom F., on Behalf of Gilbert F . Fitzgerald v. Barnstable , 555 U.S. 246 (2009). In a unanimous decision, the Court reinstated the lawsuit filed by the parents under Title IX, which bars gender discrimination at schools that receive federal funds, and under Section 1983, a broader civil rights law. Forest Grove School District v. T.A . (2009) In a 6-3 decision, the Court held that IDEA allows reimbursement for private special education services, even when the child did not previously receive special education services from the public school. Read decision. / Read analysis. Safford v. Redding , 557 U.S.__ (2009). Court held that school officials violated a thirteen year old girl's Fourth Amendment right to be free from unreasonable search and seizure when they strip searched her after receiving a "tip"that the girl possessed ibuprofen. Virginia Office of Protection & Advocacy v. Stewart (2011) Supreme Court held that the Virginia Office for Protection & Advocacy (VOPA) can sue the state and pursue other legal remedies necessary to fulfill their duty to advocate for people with disabilities. J. D. B. v. North Carolina (2011) - Where police interrogated a 13 year old middle school student at school but did not give a Miranda warning, Supreme Court holds that a child's age is relevant to the Miranda custody analysis. Reversed and remanded. To Top

Decisions from U. S. Courts of Appeals (issued prior to our "Year in Review" series which began in 2015)

A.K., a minor by his Parents and Next Friends J.K. and E.S., v. Alexandria City School Bd . (4th Cir. 2007) - Decision affirmed policies served by the requirement of a formal written offer that creates "a clear record of the educational placement and other services offered to the parents." The school district's "offer of an unspecified 'private day school' was essentially no offer at all.

Amanda C. v. Clark Co Sch. Dist. & Nevada Dept. of Ed , (9th Cir. 2001) This strongly written decision cites research about ABA/Lovaas treatment; describes purposes of the IDEA; IEPs and proceduralsafeguards. District's failure to provide parents with evaluations adversely affected parents' ability to make decisions and damaged child; district failed to provide FAPE; standard of review in two-tier system; credibility of witnesses.

Cedar Rapids v. Garret   (8th Cir. 1998) This case on behalf of a child who needed related services to attend school was later heard by the U. S. Supreme Court; download decision by the Supreme Court . 

Collingsru v. Palmyra Bd. of Education   (3rd Cir. 1998) Can a non-attorney parent represent his or her child in court? Why? Why not?

Connecticut Office of Protection and Advocacy for Persons with Disabilities v. Hartford Bd of Educ, Hartford Public Schools and Robert Henry, Sup. of Schools (2nd Cir 2006)  The Court held that the P & A has a statutory responsibility to investigate suspected cases of abuse and neglect of individuals with disabilities or mental illness and found probable cause that "multiple individuals have been subjected to abuse or neglect" at Hartford Transitional Academy.  Covington v. Knox Co (TN) (6th Cir. 2000) Decision in "time-out Room" abuse case; creates exceptions to exhaustion requirement in damages cases. In html

Disability Rights Wisconsin, Inc., v. v. Wisconsin Dept. of Public Instruction & Elizabeth Burmaster, Superintendent of Public Instruction (7th Cir. 2006) The decision includes a detailed description of the responsibilities of P & As to protect individuals with disabilities, limitations on confidentiality under the Family Educational Rights to Privacy Act, and other issues.

Zachary Deal v. Hamilton County TN Board of Ed (6th Cir. 2004) Wide-ranging decision about standard of review, additional evidence, judicial notice, procedural & substantive IDEA violations, FAPE, educational benefit, predetermination of placement, failure to include regular ed teacher, reimbursement.

Fales v. Garst  (8th Cir. 2001) Three special ed teachers filed suit against principal who tried to block them from advocating for students; free speech v. employers rights.  In pdf     In Word   Complaint in Fales v. Garst Lisa Ryan Fitzgerald, etc., et. al. v. Barnstable School Committtee, et. al. , 504 F. 3d 165. Court of Appeals for the First Circuit held that plaintiffs were precluded from using section 1983 to redress deprivations of Title IX, a federal statutory right, and a federal constitutional right under the Equal Protection Clause under applicable Supreme Court doctrine. In January 2009, the Supreme Court reversed. Florence County School Dist. IV v. Shannon Carter   (4th Cir. 1991) After Florence County lost in District Court , they appealed to the Fourth Circuit. While arguing that four months a year of progress in reading was appropriate, the district also argued that because Trident Academy was not on the State's "approved" list, Shannon's parents should not be reimbursed for the placement. Court discussed"least restrictive environment" and a contrary Second Circuit case. This ruling for Shannon created a "split" among circuits that opened the door to an appeal to the U. S. Supreme Court in Florence County School District Four v. Shannon Carter . Forest Grove Sch. Dist v. T.A . (9th Cir. 2008) - In a 2-1 decision, the Court of Appeals ruled that parents who unilaterally enroll their disabled child to a private school may be entitled to tuition reimbursement from the school district although the child never received special education from the district. On 1/16/09, The Supreme Court agreed to hear the case. (see 2011 District Court decision in Forest Grove v. T.A. )

Forest Grove v. T.A .-II . On remand from the Supreme Court, the U.S. District Court holds that boy had drug and behavior problems; that parental placement in a private school was for non-disability reasons so parents not entitled to reimbursement for his tuition. In a split decision, the 9th Circuit upheld the District Court's ruling. Read new decision in Forest Grove v. T.A.-2 (4/27/11)

G. v. Fort Bragg Dependent Schools (4th Cir. 2003). ABA/Lovaas case; rights of children who attend Dept of Defense schools; FAPE & educational benefit; methodology; reimbursement for home-based Lovaas program; procedural safeguards and notice by parents; compensatory education for failure to provide FAPE; prevailing party status & attorneys fees.

G. v. Cumberland Valle y (3rd Cir. 1999) Tuition reimbursement for 2 children with dyslexia, LRE and "vigorous advocacy" by parents. C.B. v. Garden Grove Unified Sch. Dist . (9th Cir 2011) - California school failed to provide FAPE. Child's guardian withdrew child from public school and placed child in Reading & Language Center, a non-public program. ALJ found that child received "significant educational benefits," but only ordered reimbursement for half of tuition because private program did not meet all child's needs. District Court reversed ALJ, awarded full reimbursement. School appealed. 9th Cir. upheld Dist. Ct decision. HH v. Moffett & Chesterfield School Bd (4th 2009) - Special ed teacher and a assistant restrained child in her wheelchair for hours during the school day while they ignored her, verbally abused her, and schemed to deprive her of educational services. In an unpublished decision, the Court held that their conduct "violated H.H.’s clearly established right to freedom from undue restraint under the Fourteenth Amendment, and Appellants are therefore not entitled to qualified immunity as a matter of law." Hartmann v. Loudoun County (4th Cir. 1997) inclusion and LRE for child with autism.  Joseph James v. Upper Arlington Sch. District (6th Cir. 2000) Decision about tuition reimbursement for child with dyslexia, statute of limitations, procedural safeguards. pdf   html

KM v. Tustin Unified School District (9th Cir. 2013) - Court of Appeals issued decision about the relationship between IDEA, Section 504 and ADA AA. The Court relied on a brief filed by the U.S. Department of Justice, located here.

Knable v. Bexley City Sch. District (6th Cir. 2001) Case about child with behavior disorder; includes discussion of IEPs, draft IEPs, IEP requirements, tuition reimbursement, placement, burden of proof, more.

L.B. and J.B. ex rel. K.B. v. Nebo UT School District (10th Cir. 2004) Parents of child with autism reimbursed for ABA therapy and private preschool which was LRE; impartiality of hearing officer.

ISD No. 284 Wayzata Schools v. A.C . (8th Cir. 2001) Decision about need to pay costs of residential program for child with emotional and behavioral problems; overturns ruling in federal district court that residential placement was not "educationally necessary." Mackey v. Arlington Central School District, State Education Dept (2nd Cir. 2004) In "stay-put" / pendency case, Court finds that parents are entitled to reimbursement for private school tuition because earlier denial was a result of delays and an untimely decision by the state review officer. Maroni v. Pemi-Baker Regional School District (1st Cir. 2003) Decision breaks new ground, Court rules that parents can pursue IDEA claims in federal court without an attorney. M.L. v. Federal Way School District (WA) (9th Cir. 2004) Court found that the failure to include a regular education teacher on the IEP team was a serious procedural error that led to a loss of educational opportunity and a denial of FAPE.

Polera v. Bd Ed. Newburgh City Sch. Dist . (2nd Cir. 2002) In damages case under Section 504 and ADA, court rules that disabled child must first exhaust administrative remedies under IDEA. Decision includes extensive discussion of relief under statutes, compensatory and punitive damages, exhaustion requirement, and futility exception. Porter v. Bd of Trustees of Manhattan Beach USD (9th Cir. 2002)- Parents of child for whom special education program was ordered by hearing officer were not required to seek new hearing nor comply with state’s complaint procedure before suing for failure to fully implement the program; that Eleventh Amendment immunity does not bar a federal court from granting prospective injunctive relief.

R.E., M.E., et al v. NYC Dept of Education (2nd Cir. 2012) - 2nd Circuit adopts the “snap-shot” rule to judge the adequacy of an IEP written in Burlington/Carter reimbursement cases; held that retrospective testimony about additional services that the also district "would have provided," but which were not offered in the IEP, cannot be used to rehabilitate an IEP or prove its adequacy. School Bd of Henrico County VA v. Z.P (4th Cir. 2005) Parents of child with autism rejected traditional public school preschool program and requested tuition reimbursement for private program that utilized one-on-one ABA therapy. Other issues included deference to hearing officer as fact finder and deference to professional educators.

Sellers v. Manassas , (4th Cir. 1998) Court finds that damages are not available under IDEA and Section 504. Settlegoode v. Portland Public Schools , (9th Cir 2004) Court upheld jury verdict, reinstated 1 million dollar award to special ed teacher who was retaliated against and fired for advocating for her students; decision clarifies freedom of speech for teachers. Decision in pdf T. R. v. Kingwood Township (NJ) (3rd Cir. 2000) Court clarifies FAPE and "meaningful benefit," requirement about continuum of placements; requirement to provide a free appropriate education (FAPE) in the least restrictive environment.  W.B. v. Matula (3rd Cir. 1995) Court found that damages available under Section 504, IDEA, and Section 1983 when district refused to evaluate, classify and provide appropriate services to disabled child; decision also addressed exhaustion, qualified immunity, due process; decision superceded by a later decision that damages not available under IDEA.

Walczak v. Florida Union Free School District (2nd Cir. 1998) Case about tuition reimbursement, maximizing v. appropriate; parents are not entitled to what is "best" for their children. Weast v. Schaffer (4th Cir. 2004) Decision focuses on parental knowledge and burden of proof; appealed to the U. S. Supreme Court. U. S. Supreme Court granted cert on 2/22/05 .

Charter School in Contempt, Must Pay $176,722 - On November 4, 2013, pursuant to the "stay-put / pendency" statute (20 USC 1415(f)), the U.S. District Court of Arizona held the "tuition-free, public charter" Flagstaff Arts and Leadership Academy in contempt of Court and ordered them to pay $176,722.00 for the child's private placement by November 15, 2013 or face further sanctions. (Click here for ruling of Contempt and Order to pay.) While the child was enrolled in the charter school, the parents contested the IEP, removed the child to a private placement, and requested a due process hearing. The Administrative Law Judge ruled in their favor, (click here for decision). The school appealed and the parent's attorney, Hope Kirsch filed a Counterclaim. (Click here for Counterclaim) . The Charter School asserted that they could not afford to pay. The Court noted that their problem is "an allocation of resources problem, not an absence of resources."

PV v. Philadelphia - The US District Court Judge approved the case as a class action suit;held that changing placements of children with autism without convening IEP meetings, excluding parents participation, providing minimal notice about new placements, and educational placement decisions made by division directors were violations of the IDEA. Burriola v. Greater Toledo YMCA (W.D. OH 2001) In ADA case, federal Judge issued injunction, orders day care center to readmit child with autism; staff must be trained; discussion of reasonable accommodations, exhaustion, training. In pdf    In html Analysis of Burriola case by Tom Zraik, attorney for child. Shannon Carter v. Florence County Sch. Dist. IV . (SC 1990) - Tuition reimbursement case that was appealed to the U. S. Supreme Court; decision focuses on an appropriate program and IEP for Shannon, a child with dyslexia.

Community Consolidated Sch. Dist. #93 v. John F. (IL) (N.D. IL 2000) Important discipline case; procedural violations, prior written notice requirements, manifestation determination review, suspensions for more than 10 days, expedited hearings, special education and related services under IDEA, "passing grades" and FAPE, homebound instruction violates LRE, more. In Word     In pdf Jarron Draper v. Atlanta Public School District [Draper II] (N.D. GA 2008) Court denies motion by Atlanta Public Schools (“APS”) to dismiss Jarron’s civil rights claims that APS discriminated against him, harassed him, and retaliated against him and his family; requesting damages under Section 504. (PDF) Jarron Draper v. Atlanta Independent School System [Draper I] (N.D. GA 2007) - School district misdiagnosed a dyslexic boy as mentally retarded, placed him in self-contained program for years where he did not learn to read. School district failed to complete three-year reevaluation, as required by law. The Court ordered the school system to provide J.D. with compensatory education at private special education school for four years or until he graduates with a regular high school diploma.

Evans v. Rhinebeck Central Sch Dist , (S.D. NY 1996) Excellent case about tuition reimbursement, procedural and substantive issues, FAPE, dyslexia, objective measurement of progress.

Gerstmyer v. Howard Co. Schools   (MD 1994) Tuition reimbursement for private non-special ed school; inappropropriate IEP goals and objectives for child with dyslexia. Parent's counsel, Wayne Steedman charted new territory with this case. Goleta Union Elementary Sch. Dist v. Andrew Ordway (C.D. Cal. 2002). Judge rules that school administrator was personally liable for damages under the Civil Rights Act for violating a mother's right to get a "free appropriate public education" for her special-needs son, as required by the Individuals with Disabilities Education Act (Dec 2002). (in pdf) Henrico County School Board v. R. T. (E.D. VA 2006). Tuition reimbursement case for young child with autism; comparison of TEACCH and ABA; FAPE and least restrictive environment; deference to decision of hearing officer; witness credibility; impact of low expectations and "an insufficient focus on applying replicable research on proven methods of teaching and learning"

Jacob Winkelman v. Parma City School District (N.D. OH 2005) . Challenging the decision of the State Board of Education that the District's proposed program was the LRE and provided FAPE under IDEA, the Winkelmans requested, as pro se litigants, that the district court reverse the administrative decisions and reimburse them for the cost of all education related services and placements. The court denied the Winkelmans' motion and granted the District's motion. JP v. School Board of Hanover County VA (E.D. VA 2008). Tuition reimbursement case for child with autism. In JP-1 (2006), the District Court judge found the hearing officer's decision regarding witness testimony inadequate, charted out child's test scores and determined that school district did not provide FAPE. In February 2008, the Court of Appeals for the Fourth Circuit reversed and remanded the case back to the District Court to determine if the 2005 IEP provided FAPE.) UPDATE : In December 2008, the Court issued a new decision in JP v. School Board of Hanover County VA (E.D. VA 2008) and found that the "State Hearing Officer's decision was not consistent with the record, that HCPS did not provide JP with a FAPE during the 2005-2006 school year because it did not proffer an IEP that was reasonably calculated to provide educational benefit. The Court held that private placement at Dominion School was appropriate and JP's parents are entitled to tuition reimbursement. J.L. and M.L., and their minor daughter, K.L. v. Mercer Island (WA) School District - In finding that the standards for a free appropriate public education described by the Supreme Court decision in Board of Ed. of Hendrick Hudson Central School District v. Rowley are no longer relevant, the Court cited changes in recent IDEA reauthorizations that are so significant "that any citation to pre-1997 case law on special education is suspect." Update: On 01/13/10, this decision was reversed by the U.S. Court of Appeals for the Ninth Circuit. Judith Scruggs, Administratix of Estate of Daniel Scruggs v. Meriden Bd of Ed., E. Ruocco, M. B. Iacobelli, and Donna Mule (U. S. District Court, Connecticut, 2005). Suit for actual and punitive damages against school board, superintendent, vice principal and guidance counselor under IDEA, ADA, 504, 42 USC 1983, 1985 and 1986. Child bullied, harrassed in school for years while school personnel looked on, did nothing. Child committed suicide. Includes a discussion of why parent did not have to exhaust admininistrative remedies under IDEA. Stefan Jaynes v. Newport News Public Schools (E.D. VA 2000) Parents reimbursed for ABA Lovaas program for child with autism, procedural safeguards, notice, statute of limitations. Appealed to Fourth Circuit (2000).   In pdf    In Word

Tereance D. and Wanda D. v. Sch. Dist. Philadelphia (E.D. PA 2008) - District failed to provide FAPE for many years; performed inadequate evaluations; misdiagnosed child as mentally retarded and emotionally disturbed; misled the parent about her son's rights to autism services and ESY services, more.

Bd. of Ed of Kanawha WV v. Michael M . (W VA 2000), IEPs, "appropriate", burden of proof, autism, reimbursement for ABA program. Excellent discussion of an "appropriate" program; recommended reading for attorneys who represent children with disabilities and their witnesses.  Order re: home-based Lovaas /ABA program .

Daniel Lawyer v. Chesterfield Sch. Bd (E.D. VA 1993) This decision includes good discussion about factors to consider in extended school year (ESY), including regression and recoupment, autism and neurological windows of opportunity.

Mr. X v. NY (S.D. NY 1997) Excellent case includes comprehensive discussion of autism, Lovaas, ABA therapy and TEACCH.

Reusch v. Fountain (MD) One of the earliest and leading cases about extended school year (ESY). Linda Sturm v. Rocky Hill Bd of Ed (CT 2005) Special ed teacher can sue school district for retaliation because Section 504 includes anti-retaliation provisions and courts have extended protection against retaliation for those who advocate for the disabled.

T. H. v. Palatine , (N.D. IL 1999) Comprehensive decision in ABA-Lovaas case. Includes thorough discussion of the IEP process, the need to individualize the IEP, methodology and placement issues. (This decision is in pdf format) To Top

Other Noteworthy Decisions + Documents

Offfice of Civil Rights, Restraint/Seclusion - Prince William County, VA

On July 23, 2014, OCR found that the school district violated Section 504 of the Rehabilitation Act by "failing to re-evaluate students to determine if they needed additional or different related aids and services given the frequent use of restraint, seclusion, and . . . removing students from their classrooms to an isolated area." Click here to read the letter.

U.S. Dept of Justice v. Day Care Center

On November 27, 2013, the USDOJ and Camelot Day Care Center in Edmond, OK entered into a Settlement Agreement. The child, with Down Syndrome and toileting issues, was denied participation in field trips. In addition to paying $3,000 to the parents, the child will have a full year, tuition free, at Camelot. Click here to read the Settlement Agreement.

The parents' " Letter to the Stranger " and James Brody's description of the due process hearing are among dozens of articles in The Advocacy Libraries . 

Zachary Deal v. Hamilton Dept of Educ (TN Due Process Decision 2001) The administrative law judge issues 45 page decision after a 27-day due process hearing ; finds procedural safeguards and LRE violations; substantive violations; discusses credibility problems with school witnesses re: closed minds, evasiveness.

U.S. Supreme Court cases are supreme. Cases from U. S. Courts of Appeals are the next highest level of judicial decisions. Rulings from a U. S. Circuit Court of Appeals have binding authority over the Courts in the states of that Circuit. 

It is important to stay on top of the rulings of  the U. S. Courts of Appeals. States may not be bound by a ruling from a different circuit but may rely upon a decision as "persuasive authority ." When the Circuits have " split" rulings on the same issue, i.e., different legal outcomes from similar issues of fact and or law, these cases have a higher probability of being accepted for review by the U. S. Supreme Court. This is what happened in Shannon Carter's case.

Parents, as you read these cases, do not focus on your child's disability and how the facts in the case are different from your child. Substitute your child's disability with the one discussed in the case. While the facts may change, so often the legal principles are the same, without regard to the particular disability. Do not have tunnel vision as you read. Consciously think about how the ruling in this case relates to your child. To Top Last Revised: 10/18/2021

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Ruling roundup: Special education during the pandemic

Courts have been busy hearing COVID-related lawsuits in recent weeks. Here’s a look at 14 special education rulings.

From the courts:

Receipt of services during pandemic KOs students’ bid for payment order Case name: Abrams v. Carranza, 77 IDELR 47 (S.D.N.Y. 2020) Ruling: Because students attending a private school for children with traumatic brain injuries continued receiving IDEA services during the COVID-19 pandemic, they could not compel their district to pay the school for those services while their FAPE complaints against the district were pending. The U.S. District Court, Southern District of New York denied the students’ motion for a preliminary injunction.

LEA must provide in-person services during pandemic, safety permitting Case name: L.V. v. New York City Dep’t of Educ., 77 IDELR 13 (S.D.N.Y. 2020) Ruling: The U.S. District Court, Southern District of New York ordered a district to provide in-person services to a 5-year-old with autism to the extent it can safely do so during the COVID-19 pandemic. The court reasoned that the district failed to explain how delivering the child’s applied behavior analysis therapy and other services via a tablet would provide him FAPE. The court also ordered the district to conduct an independent assistive technology evaluation to assess the child’s individual needs and the software required to deliver his required services remotely.

COVID-related closures may not trigger stay-put rights to in-person IEP services Case name: J.C. v. Fernandez , 77 IDELR 15 (D. Guam 2020) Ruling: The U.S. District Court, District of Guam ruled that five students with disabilities were not entitled to a preliminary injunction requiring the Guam Department of Education to implement their IEP services during state-mandated school closures due to the COVID-19 pandemic. The students with disabilities failed to establish that they would suffer irreparable harm without an injunctive order, the court held.

Teachers union can’t stop Ill. district from enforcing IEP revision deadline Case name: Chicago Teachers Union v. DeVos, 76 IDELR 237 (N.D. Ill. 2020) Ruling: In a case arising out of the coronavirus-related school closures, a teachers union could not prevent an Illinois district from requiring school staff to develop remote learning plans for all students with IEPs and Section 504 plans by the end of the SY 2019-20. The U.S. District Court, Northern District of Illinois denied the union’s motion for a court order that would allow additional time for IDEA and Section 504 compliance.

Grandparents can’t compel district to evaluate before schools reopen Case name: Jacksonville N. Pulaski Sch. Dist. v. DM , 76 IDELR 238 (E.D. Ark. 2020) Ruling: The grandparents of a kindergartner with autism were not entitled to a preliminary injunction compelling an Arkansas district to evaluate the child over summer break. In denying the grandparents’ request, the U.S. District Court, Eastern District of Arkansas ruled that the grandparents failed to establish the child would suffer irreparable harm without the injunction. The court suggested that the district consider performing the evaluation before school reopens if safe to do so given the COVID-19 pandemic.

From the Office of Special Education Programs:

Part C evals may occur after 45 days if necessary due to COVID-19 Case name : Questions and Answers on Part C Evaluation Timelines During COVID-19 , 76 IDELR 300 (OSEP 2020) Ruling: Noting that social distancing measures and other restrictions may make in-person evaluations impracticable during the pandemic, OSEP stated in a Q&A document that lead agencies and early intervention service providers may be able to extend the deadline in some cases. Providers may, in some cases, delay an evaluation, assessment, screening, or individualized family services program meeting beyond the 45-day deadline when necessary due to limitations arising from the COVID-19 pandemic.

Electronic consent OK during COVID with proper safeguards in place Case name: Questions and Answers on Implementing IDEA Part B Procedural Safeguards During COVID-19, 76 IDELR 301 (OSEP 2020) Ruling: Districts may accept an electronic or digital signature for parental consent, OSEP stated in a Q&A addressing the provision of procedural safeguards during the COVID-19 pandemic. Districts may consider factors related to the pandemic, such as the closure of school buildings and social distancing orders when determining timing of prior written notice to parents. While districts may not be able to obtain parental consent in person, when seeking to evaluate or initiate special education services for a child with a disability during the COVID-19 pandemic, that typically shouldn’t stop them from proceeding with a proposed activity.

IDEA may grant SEAs, LEAs flexibility in MOE during COVID-19 pandemic Case name: Questions and Answers on Flexibility of IDEA Part B Fiscal Requirements During COVID-19 , 76 IDELR 256 (OSEP 2020) Ruling: Acknowledging that many state educational agencies and local educational agencies are anticipating budget cuts to special education programs due to the COVID-19 pandemic, OSEP stated in a Q&A that SEAs and LEAs experiencing economic hardship due to the coronavirus pandemic may receive some flexibility in meeting IDEA Part B fiscal requirements and with respect to their maintenance of effort obligations.

From state due process:

1-day gap in ESY during COVID-19 leads to comp ed award for SD teen Case name: Brookings Sch. Dist., 77 IDELR 55 (SEA SD 2020) Ruling: A South Dakota district denied FAPE to a student with a speech impairment by failing to provide his special education services through distance learning during the first day of extended school year services and by failing to provide the student transportation as a related service prior to school closures resulting from the COVID-19 pandemic. The state ED ordered the district to provide compensatory education and to compensate the parents for transporting the student. The state ED also found that the district did not unilaterally change the student’s placement by implementing distance learning during state-mandated school closures.

Pandemic-related changes to IEP don’t excuse failure to modify assignments Case name: In re: Student with a Disability , 77 IDELR 25 (SEA KS 2020) Ruling: A Kansas district violated the IDEA not only by failing to ensure a seventh-grader with an intellectual disability received modified assignments when her school closed due to the COVID-19 pandemic, but also by failing to include the parent in the development of the student’s Individualized Continuous Learning Plan. However, the state ED found that the district provided all specialized instruction and related services required by the student’s plan and did so in a timely manner.

Without remote services from aide, COVID closures block child’s progress Case name: Beach Grove City Schs., 120 LRP 24255 (SEA IN 07/16/20) Ruling: The Indiana Department of Education determined that a district violated the IDEA when it failed to properly implement the IEP of a student with an undisclosed disability during the SY 2019-20. It instructed the district to remedy the FAPE violation by providing the student compensatory services. Although the district provided the student virtual instruction through the end of the school year and frequently checked in on her progress, the state ED found that the student did not consistently receive the academic support services required by her IEP. Because “there were multiple weeks where 120 minutes of academic support in the general education setting was not demonstrated,” the state ED determined that the district failed to properly implement the IEP.

COVID-19 circumstances, efforts to send records nix corrective action Case name: Perry Twp. Schs., 120 LRP 24253 (SEA IN 07/16/20) Ruling: While a district provided some educational records to the mother of a student with a medical condition in an untimely manner, the IDOE declined to order corrective action to address the violation. The state ED considered the impact of the COVID-19 pandemic and the fact that the district was “continuing to work on providing” records when it declined to order corrective steps for a district’s failure to provide all of a student’s education records in a timely manner. While some records were released beyond the 45-day time limit, corrective action was unnecessary, the state ED concluded.

Due to COVID-19, private evaluator can’t observe classroom behaviors Case name : Westminster Sch. Dist., 120 LRP 22869 (SEA CA 07/14/20) Ruling: An administrative law judge found that a California district’s triennial assessment of a kindergartner with a speech and language impairment was appropriate. Her mother was not entitled to independent educational evaluations at public expense. The ALJ noted that the parent’s ABA specialist focused on behavior, not academics, did not observe the child at school, and performed his assessment after the child had been distance learning for two-and-a-half months due to COVID-19 school closures.

Cal. district can’t replicate pupil’s current placement for stay-put due to school closures Case name: Menifee Union Sch. Dist., 120 LRP 14923 (SEA CA 04/21/20) Ruling: In an expedited decision, an ALJ noted that a student was entitled to a stay-put order requiring the district to maintain his current educational placement. However, due to COVID-19 school closures, it was not possible to exactly replicate the student’s existing placement. “Therefore, Student shall be afforded the same instructional services as are being provided to other students at [his middle school] during the school closure,” the ALJ wrote.

Documents mentioned above are available to subscribers of Special Ed Connection , a DA sister publication. Subscribers have access to frequent updates on litigation. 

Editor’s note: This Legal Research Center feature helps the busy practitioner by focusing on recent key judicial and administrative rulings in specific topic areas.

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Families with students receiving special education file lawsuit asking court to overturn emergency pandemic rules

Three families in King, Pierce and Thurston counties have asked the Thurston County Superior Court to overturn emergency education rules they say have harmed special-education students and shifted the burden of delivering education to parents.

The complaint centers on rules adopted by the state Board of Education and Office of Superintendent of Public Instruction (OSPI) which relaxed the number of “instructional hours” that schools must provide to students.

The rules call for at least 1,000 instructional hours and 180 school days each year. But OSPI waived the rules for the 2019-20 school year, and for the 2020-21 year, the state Board of Education is allowing flexibility in how an “instructional hour” is delivered. The changes were made because of the disruptions caused by the novel coronavirus pandemic.

The rules have resulted in inequities that are compounded for students with disabilities, who need more school support, not less, the lawsuit alleges.

Kathy George, an attorney representing the families, said that though the suit was filed on behalf of families whose children receive special-education services, “it is designed to help everyone.” She said the state eased the rules about what constituted a basic education with “no public process, no comments.” The state’s definition of how long and how much education is required — 180 days of school and 1,000 hours of instruction — was first established by the state’s Basic Education Act of 1977, and has been amended in recent years to require 1,080 hours for students in grades 9-12.

George said she believes it is the only such suit that has been filed against the state, but that dozens of parents with children who receive special education have filed citizen complaints with OSPI.

OSPI declined to comment. Spokesperson Katy Payne said the office received the petition late yesterday and is still reviewing it.

When children diagnosed as needing special-education services lose those services, they are at risk of regressing, or even deteriorating, said Christine Beckwith, one of the parents involved in the lawsuit.

Beckwith said her 10-year-old son, who was diagnosed with attention deficit hyperactivity disorder and several other behavioral disorders, was enrolled in a seven-student class in the Highline School District with a teacher, two paraeducators and a part-time social worker before COVID-19 forced the class to close as schools went online. After the class ended, Beckwith had to teach him at home using worksheets and a few Zoom meetings a week.

After his special-education class shut, her son had three episodes of such extreme emotional behavior that she considered taking him to the hospital.

Beckwith said she strongly pressed the district for better care for her son, and got him into a social-emotional behavioral camp for the summer. But Beckwith, who is an attorney, said she had the knowledge and expertise to push back and demand resources, something most parents don’t have.

Several other parents who are part of the lawsuit also described how the loss of special-education services affected them. Carolina Landa, one of the parents petitioning the court, said in a statement that she faces a major economic crisis if she is forced to quit her job so she can deliver educational services and therapies for her child.

Adrienne Stuart, another one of the parents petitioning the court, said in a statement that she believes “the state has a duty to spend whatever it takes to maintain a basic education for all students during the pandemic, and cannot hide behind an administrative rulemaking process with no public involvement to diminish basic education rights.”

The families filed the petition for judicial review in Thurston County on Tuesday.

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Landmark Cases in Special Education Law

Landmark cases in special education law.

In the United States legal system, judicial decisions play an important role in determining what a particular law means. This type of law is known as “Case Law.” Case Law is developed when courts are asked to resolve disputes that are occurring between two or more parties, and the court must interpret what the law means in a given situation. Through this process, the meaning of phrases such as “Least Restrictive Environment” and “Meaningful Educational Benefit” evolve as various courts decide cases and set precedents. A precedent is a rule established in a previous court case that is either binding or persuasive depending on which court issued the decision. Below are some of the cases that are important to special education law and the precedents they have created.

U.S. Supreme Court Decisions

Cases decided by the United States Supreme Court are binding on courts all across the country. As a result, when the Supreme Court interprets a statute or makes a determination in a particular case, all lower courts must use that determination when deciding cases. In some instances, however, the Supreme Court leaves room in a decision that allows individual states to make their own determination – for example, in 2005 the Supreme Court decided that the party requesting a due process hearing under the IDEA has the burden of persuasion to establish his or her claims, but the Court expressly declined to determine whether states may legislate the burden of proof. In 2008, New Jersey enacted a law placing the burden of proof and production in all requests for a due process hearing, whether filed by the parent or the school district, on the school district.

• Brown v. Board of Education, 347 U. S. 483 (1954) – In this landmark civil rights decision, the U.S. Supreme Court determined that a separate education for African-American children was not an equal education, concluding that “in the field of public education the doctrine of ‘separate but equal’ has no place and that ‘separate educational facilities are inherently unequal.'” This decision provided parents of children with disabilities and disability rights activists the constitutional foundation to press for equal educational opportunities for all children, including those with developmental and other disabilities.
• Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982) – This was the first special education case decided by the Supreme Court. In this case, the Court held that an IEP must be reasonably calculated for a child to receive educational benefit, but the school district is not required to provide every service necessary to maximize a child’s potential.
• Irving Independent Sch. Dist. v. Amber Tatro, 468 U.S. 883 (1984) – The Court held that provision of clean intermittent catheterization was a “related service” under the IDEA and not a “medical service,” because the service was necessary for the student to attend school. The services requested did not fall within the medical exclusion because they need not be performed by a physician. The Court noted that “Congress sought primarily to make public education available to handicapped children and to make such access meaningful.”
• Burlington Sch. Committee v. Mass. Bd. of Ed., 471 U. S. 359 (1985) – The Court established, for the first time, the right of parents to be reimbursed for their expenditures for private special education. This decision (together with the Court’s decision in Florence v. Carter) generally stands for the proposition that a school district may be required to reimburse parents for tuition and other expenses related to a private school placement when (1) the IEP and placement offered by the school district were inadequate or inappropriate (in other words, where the school district failed to offer FAPE) (2) the parents’ private placement was appropriate for their child’s needs, and (3) the balance of the equities favors reimbursement. The Court also explained that in an IDEA dispute, a court has broad authority to fashion appropriate relief considering equitable factors, which will effectuate the purposes underlying the Act, and that the IDEA provides “procedural safeguards to ensure the full participation of the parents and proper resolution of substantive disagreements.”
• Honig v. Doe, 484 U.S. 305 (1988) – The Court addressed the IDEA’s “stay put” provision, explaining that in enacting “stay put”, Congress intended “to strip schools of the unilateral authority they had traditionally employed to exclude disabled students … from school.” The Court also noted that the IEP is the “centerpiece of the [IDEA’s] education delivery system” and explained that “Congress repeatedly emphasized throughout the Act the importance and indeed the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness.”
• Florence County School District Four v. Shannon Carter, 510 U.S. 7 (1993) – The Court discussed the standards pursuant to which a parent may obtain reimbursement for a private educational placement. Importantly, the Court determined that reimbursement does not necessarily require that the private school meet the IDEA’s definition of free appropriate public education; the private school does not necessarily have to meet the state education standards.
• Buckhannon v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835 (2001) –  The Court ruled that in order to obtain attorney fees as a “prevailing party,” the party must secure either a judgment on the merits or a court-ordered consent decree.
• Schaffer v. Weast, 546 U.S. 49 (2005) –  The Court held that, absent a state statute to the contrary, the party seeking relief bears the burden of proof in an administrative due process proceeding.
• Arlington v. Murphy, 548 U.S. 291 (2006) –  The Court held that a provision of the IDEA authorizing “reasonable attorneys’ fees for prevailing parents does not authorize the recovery of fees for expert’s services.
• Jacob Winkelman v. Parma City School District, 550 U.S. 516 (2007) – Here, the Court determined that parents may pursue claims under the Individuals with Disabilities Education Act (IDEA) on their own behalf, as the rights conferred to parents under the Act exist independently from the rights of their child.

U.S. Court of Appeals Decisions

There are 13 appellate courts that sit below the U.S. Supreme Court, and they are the U.S. Courts of Appeals. A court of appeals hears challenges to District Court decisions from courts located within its circuit. The U.S. District Court of New Jersey sits within the Third Judicial Circuit. Decisions made in the Third Circuit are binding in all New Jersey courts. Decisions made in other Circuit Courts are influential when the same issue has not previously been addressed by the Third Circuit. Below are some of the important special education decisions that have been issued by the Third Circuit Court of Appeals.

• Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990) –  The Third Circuit held that compensatory education is available to respond to situations where a school district flagrantly fails to comply with the requirements of IDEA.
• Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993) – Children with disabilities are entitled to be educated in the Least Restrictive Environment (LRE) that is appropriate to meet their needs. In this case, the Court adopted a two part test to determine whether a child has been placed in the least restrictive environment. It must first be determined whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily. In making this determination, courts should consider several factors, including: (i) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (ii) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (iii) the possible negative effects of the inclusion of the child on the education of the other students in the class. If placement outside the regular classroom is necessary, then it must be determined whether the child is mainstreamed to the maximum extent appropriate, i.e., whether efforts have been made to include the child in school programs with non-disabled children whenever possible. Thus, disabled children should be mainstreamed to the maximum extent appropriate and their removal from the regular education environment should occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
• Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171 (3rd Cir. 1998) –  The Third Circuit has held that the educational benefit to which each student is entitled must be more than “trivial,” it must be “meaningful.” The Third Circuit inferred that Congress must have envisioned that “significant learning” would occur. The Court recognized the difficulty of measuring this benefit and concluded that the question of whether the benefit is de minimis must be answered in relation to the child’s potential. Thus the standard was set, a FAPE requires “significant learning” and “meaningful benefit.”
• Ridgewood Board of Educ. v. N.E., 172 F.3d 238 (3rd Cir. 1999) – In this case, the Third Circuit held that “the provision of merely “more than a trivial educational benefit” does not meet the [Polk] standard . . . . Rowley and Polk reject a bright-line rule on the amount of benefit required of an appropriate IEP in favor of an approach requiring a student-by-student analysis that carefully considers the student’s individual abilities.
• T.R. v. Kingwood Township, 205 F.3d 572 (3rd Cir. 2000) – In this case, the Court clarified that the Least Restrictive Environment (LRE) is the one that, to the greatest extent possible, satisfactorily educates the disabled child with non-disabled children, in the same school the child would attend if the child were not disabled. T.R. involved a preschool aged child who was offered placement in an in-district classroom where half the children were disabled and half were typically developing, which the Court held was a “hybrid” program and therefore not the LRE.
• G.L. v. Ligonier Valley School District Authority, No. 14-1397 (3rd Cir. 2015) – This case clarified how to interpret IDEA’s two-year statute of limitations. The Court held that the IDEA’s statute of limitations creates a “discovery rule” approach, in which the statute begins to run on the date the parents knew or should have known of the FAPE violation, rather than an “occurrence rule” approach, wherein the statute of limitations period would begin to run on the actual date of the violation. Based on this clarification, parents would be required to file a request for due process within two years of the date they knew, or should have known, their child was denied a FAPE. If the parents of a student reasonably do not discover the denial of a FAPE to their child for many years, so long as the parents file within two years of discovering it, the parents have no limit on the number of years for which they can seek relief.

Contact New Jersey Special Education Attorney Lori E. Arons, Esq. Today to Discuss Your Case

The laws related to special education and educational rights in the United States are extremely complicated and lawyers who have been practicing for years may have little or no experience with this area of law. For this reason, it is critical for parents of children with special needs to retain a lawyer who understands the unique issues that arise in this area of law and are familiar with the various state and federal laws, regulations, and court decisions that can have an impact on the way a case will be resolved.

Lori E. Arons, Esq. is a skilled NJ special education lawyer who has been through the IEP process with her own children, and is personally invested in ensuring that kids with special needs get the education to which they are legally entitled. To schedule a consultation with Lori, call our office today or send us an email through our online contact form.

FOR AN EXPERIENCED ATTORNEY, CONTACT LORI ARONS TODAY

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Significant Special Education Cases

M.a. v. newark public schools.

In 2001, ELC with co-counsel Gibbons Del Deo, filed a class action lawsuit against Newark Public Schools and the New Jersey Department of Education, alleging that Newark and the State failed to identify, locate, refer and evaluate students with disabilities for special education services, failed to provide these students with appropriate special education services, and failed to provide “compensatory education” for the deprived services. The  complaint  also charged the State with failure to monitor school districts and failure to provide appropriate relief in response to special education complaint investigation requests. [Docket No. 01-cv-3389 (US District Court for the District of NJ) Docket No. 02-1799 (US Court of Appeals for the Third Circuit)] 

Status:  Plaintiffs obtained a  preliminary injunction  on behalf of two of the named plaintiffs, and withstood extensive  motions to dismiss  from both sets of defendants. In a  decision  from the Third Circuit, the Court affirmed both the preliminary injunction and the denial of the motions to dismiss. After a prolonged and unsuccessful attempt to settle the matter, the district court  certified the class in 2009  in response to the motion brought by ELC, Gibbons and newly-added co-counsel, Seton Hall Law School Center for Social Justice. The parties then conducted additional discovery and again commenced settlement discussions. The parties entered into a Settlement Agreement, which was endorsed by the Court in 2012. The  Settlement Agreement  calls for the provision of special education services on a timely basis, “compensatory education” for students who did not receive timely services, implementation of a comprehensive special education database, mandatory staff training, extensive reporting of compliance activities, guidelines for corrective action if warranted and independent monitoring of special education services. Newark has issued two Compliance Reports ( July 2012  and  February 2013 ), and the State has instituted one  Corrective Action Plan . ELC is monitoring NPS and State compliance with the Settlement Agreement and, together with Seton Hall, prepared parent training materials in  English ,  Spanish ,  Portuguese  and  Creole , and is training parents across the district.

A.R. v. Freehold Regional High School Board of Education

ELC, with the support of several  pro bono  attorneys, filed a motion on behalf of a group of disability advocacy organizations to appear as  amici curiae  in this case regarding who should bear the burden of proof in a due process hearing when a school district seeks to change a child’s special education Individualized Education Program (IEP). The  amicus  brief  argued that, pursuant to the U.S. Supreme Court case of  Schaffer v. Weast , the burden is on the district when it seeks to change the IEP, even where the parent files the hearing request to challenge the school district’s action. The brief additionally explained why placing the burden of proof on parents in such cases would be unfair, violate public policy and undermine the goals of the Individuals with Disabilities Education Act. (United States District Court for the District of NJ Docket No. 06-cv-03849)

Status:  Shortly after ELC filed the  amicus  brief, the school district settled the case with the student and the matter was dismissed. Subsequently, ELC successfully spearheaded an advocacy effort, with other New Jersey special education practitioners, that resulted in the passage of legislation imposing the burden of proof at special education hearings on school districts in all cases.

A.W. v. Jersey City Public Schools

ELC filed a federal lawsuit to challenge the failure of a school district, the state education department, and individual employees to identify and remediate A.W.’s dyslexia. The case reached the Third Circuit twice, with the Court holding in the  first decision  (2003), that the state defendants had waived sovereign immunity by accepting federal financial assistance and could therefore be sued under IDEA and Section 504 and, in the  second decision  (2007), that individual state defendants could not be held liable under Section 1983. A.W.’s claims against his school district and NJDOE were successfully resolved through settlement. [341 F.3d 234 (3d Cir. 2003), 486 F. 3d 791 (3d Cir. 2007)]

Baer v. Klagholz

In 2001, the New Jersey Superior Court, Appellate Division, ruled in favor of the plaintiffs on eight challenges to the State’s special education regulations brought by the Education Law Center and co-counsel. The Appellate Division ruling included the mandate that school districts provide parents with evaluation reports prior to eligibility determination meetings, that all students with disabilities receive assessments to determine appropriate post-secondary outcomes, that the pool of community rehabilitation programs for older students include those programs that serve students with the most severe disabilities, and that the scope of IDEA’s disciplinary rights and protections be broadened to comply with federal law. [Docket No. A-7451-97T3 (Superior Court of NJ, Appellate Division)] 

Status:  Plaintiffs were subsequently successful in a contested motion for prevailing party attorney’s fees.

Disability Rights New Jersey v. New Jersey Department of Education

In 2007, ELC, together with  pro bono  co-counsel, filed a complaint in the United States District Court for the District of New Jersey challenging the New Jersey Department of Education’s failure to educate children with disabilities in the least restrictive environment as mandated by the Individuals with Disabilities Education Act. [Docket No. 07-cv-02978 (US District Court for the District of NJ) Docket No. 08-8059 (United States Court of Appeals for the Third Circuit)] 

Status:  In February 2014, the parties entered into a historic  Settlement Agreement  designed to improve New Jersey’s implementation of IDEA’s mandate that students with disabilities receive an appropriate education in the least restrictive environment. The Agreement’s requirements include: a needs assessment to be completed in the 75+ school districts with the worst track record in inclusion, heightened oversight of districts that segregate a disproportional number of students of color with disabilities, extensive training and technical assistance, specially designated state and local inclusion facilitators, parental input regarding district failures, and oversight by a stakeholder committee comprised of disability advocates.

P.N. v. Clementon Board of Education

ELC filed an  amicus  brief  in this case in the Circuit Court of Appeals for the Third Circuit on its behalf and on behalf of numerous disability and education advocacy organizations. The Third Circuit ruled in favor of the plaintiffs, recognizing that “prevailing party” attorney’s fees are available to students with disabilities who resolve their educational disputes with districts via a stipulated settlement agreement entered into by an administrative law judge. Citing to ELC’s  amicus  brief, which detailed the important role the attorney’s fee provision plays for poor parents, the Third Circuit noted that it was “particularly troubl[ed]” by the District Court’s holding that reimbursement of a $425 psychologist fee was “de minimis” and did not support a prevailing party finding. ELC then represented the plaintiff in the United States Supreme Court, where it successfully urged the Court to deny the Defendant’s petition for a writ of certiorari [Docket No. 04-4705 (United States Court of Appeals for the Third Circuit) Docket No. 06-7 (US Supreme Court) Docket No. 02-1351 (District Court for the District of NJ)]. 

Status:  Plaintiffs were subsequently successful in a contested motion for prevailing party attorney’s fees before the District Court.

SPAN v. Hendricks

ELC represented SPAN in challenging the State’s failure to complete an  independent study  of the census-based funding methodology for special education by June 2010, as required by the School Funding Reform Act. While the litigation was pending, the State released its independent study of the special education census funding method in the State school aid formula. (Superior Court of New Jersey, Appellate Division, Docket No. A-000852-10)

Special education clash: Supreme Court sides unanimously for student with disability

WASHINGTON – The Supreme Court sided unanimously Tuesday with a student who is deaf and  who sought to sue his school for damages over profound lapses in his education, a case that experts say could give parents of students with disabilities more leverage as they negotiate for the education of their children.

Central to the case was the story of Miguel Perez, who enrolled in the Sturgis Public School District in Michigan at age 9 and brought home As and Bs on report cards for more than a decade . Months before graduation, Perez's parents learned that he would not receive a diploma and that aides the school assigned to him did not know sign language. 

Though the legal question raised by the case is technical, its outcome "holds consequences not just for Mr. Perez but for a great many children with disabilities and their parents," Justice Neil Gorsuch wrote for the unanimous court .

What to know about the Supreme Court's special education decision 

• The case, Perez v. Sturgis Public Schools, involved the interplay between two federal laws, the Individuals with Disabilities Education Act, or IDEA, and the Americans with Disabilities Act. At issue was whether students may sue a school for damages under the ADA when they haven’t exhausted the administrative process required by the IDEA.
• In the unanimous decision Tuesday, the high court  ruled that Perez didn't need to exhaust the requirements of the IDEA process before filing a lawsuit for damages under the ADA. 
• The decision may help parents and schools clarify one piece of a byzantine puzzle of laws that govern the nation's 7.2 million special education  students. Experts have predicted it may give parents more leverage in their negotiation with schools. 

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What happened with Miguel Perez?  

Perez's journey through the 3,000-student school district in Sturgis highlights the challenges faced by many  students who have disabilities .

His family says school officials misrepresented the qualifications of his aide. They say that aide, in later years, was assigned to other duties, leaving Perez  unable to communicate with anyone  for hours every day. And Perez was promoted through each grade level despite not having a grasp of the curriculum, his attorneys say.

Perez filed a complaint with Michigan officials in 2017 accusing his school of violating state and federal laws, including the IDEA. Before that complaint was resolved, the district offered to settle, agreeing to pay for Perez to attend the Michigan School for the Deaf.

Explainer: How one student's Supreme Court case could make schools more accountable

Perez's family took the settlement.

His family then sued the district under the Americans with Disability Act for discrimination, seeking unspecified monetary damages. A federal district court dismissed the lawsuit, ruling that Perez had not exhausted the required IDEA process because he accepted the settlement. A divided panel of the U.S. Court of Appeals for the 6th Circuit agreed. Perez appealed to the Supreme Court in late 2021.

What do school districts say about the impact of the Perez case? 

Art Ebert, the district's superintendent, declined to address the claims raised in the suit – he wasn't leading the district when Perez attended Sturgis – but he said in an email this month that because of the experience, the district would "gain knowledge, insight, and understanding that will help us maximize every student's true potential."

Schools say they are concerned that allowing parents to sue for damages more easily will inject a legal battle over money into the IDEA process, which is intended to quickly address students' needs. School districts might be forced to approach that process differently if their actions could be used against them in a suit for damages. 

What are they saying? 

• Roman Martinez, a veteran Supreme Court lawyer who argued the case on behalf of Perez, said the court's ruling "vindicates the rights of students with disabilities to obtain full relief when they suffer discrimination." Perez and his family, he said, "look forward to pursuing their legal claims under the Americans with Disabilities Act."
• Attorneys for the school district did not immediately respond to a request for comment. Sasha Pudelski, advocacy director of the School Superintendents Association, said the group has "deep concerns with injecting a legal battle over money into the IDEA process and how this ruling may undermine parents' willingness to collaborate with districts in crafting an appropriate special education program for a child. The only thing that's clear from this decision is that it will lead to more litigation for school districts."

Contributing: Alia Wong 

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Important Special Education Cases

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We’ve organized important special education cases to help parents learn about their rights.  The below cases each arose under the Individuals with Disabilities Education Act (IDEA).

Burden of Proof

Schaffer v. Weast, 546 U.S. 49 (2005)

In Schaffer , the Supreme Court considered whether parents or school districts have the burden of proof in special education due process hearings.  The Court determined that whichever party files a due process complaint has the burden of proof.  So, if a parent files a complaint alleging a denial of FAPE, the parent must prove the denial.

Free and Appropriate Public Education (FAPE)

Hendrick Hudson School District v. Rowley (1982)

Rowley  is widely viewed as the landmark case in special education. In the decision, the Supreme Court identified the standard for FAPE.  The court held that FAPE requires that a child’s Individualized Education Program (IEP) be designed to allow her to receive educational benefit.  Since the case was decided, courts across the country have elaborated on this standard. For example, in Pennsylvania and New Jersey, courts have held that a child must be provided the opportunity to make meaningful educational benefit.

Polk v. Susquehanna Intermediate Unit (1988)

Polk  put forward the standard for FAPE in the Third Circuit Court of Appeals, which encompasses Pennsylvania and New Jersey.  In  Polk,  the court stated that the primary goals of the IDEA are to foster self-sufficiency and provide students with disabilities full educational opportunity.  Given these goals, the court held that FAPE requires students to be provided an opportunity to make meaningful progress in all major areas of need.

Ridgewood Board of Education v. N.E. (1999)

In  Ridgewood , the Third Circuit Court of Appeals offered further guidance regarding the standard for FAPE. The court found that a student’s IEP did not provide him FAPE because it failed to enable him to receive “significant learning” and “meaningful benefit.”  The court rejected the Ridgewood Board of Education’s argument that the student received FAPE because his IEP provided him with “more than trivial educational benefit.”  In addition, the court held that the Board failed to give adequate consideration to the student’s high intellectual potential when it crafted his IEP.

Endrew F. v. Douglas County School District (2017)

In Endrew F. , the Supreme Court revisited the standard for FAPE.  The question presented to the Court was: What is the level of educational benefit that school districts must confer on children with disabilities to provide them FAPE, as guaranteed by the Individuals with Disabilities Education Act (IDEA)?  And the Court concluded that school districts must offer children an IEP that is reasonably calculated to enable each child to make progress appropriate for that child’s circumstances.

Least Restrictive Environment (LRE)

Oberti v. Board of Education of the Borough of Clementon (1993)

In  Oberti , the Third Circuit Court of Appeals adopted a two-part test for assessing compliance with the IDEA’s LRE requirement. First, a court must consider “whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily.” Factors the court should consider in applying this prong are: (1) the steps the school district has taken to accommodate the child in a regular classroom; (2) the child’s ability to receive an educational benefit from regular education; and (3) the effect the disabled child’s presence has on the regular classroom. Second, if the court finds that placement outside of a regular classroom is necessary for the child’s educational benefit, it must evaluate “whether the school has mainstreamed the child to the maximum extent appropriate, i.e., whether the school has made efforts to include the child in school programs with nondisabled children whenever possible.”

T.R. v. Kingwood Board of Education (2000)

In  T.R. , the Third Circuit analyzed the LRE issue in the context of preschools. The court held that a school district that does not operated a regular preschool program is not required to create one in order to create an LRE for students with disabilities. However, the district must take into account a continuum of possible alternative placement options when formulating an IEP, including placing students with disabilities in private school programs for non-disabled preschool children.

Stay Put Protection

Honig v. Doe, 484 U.S. 305 (1988).

The Supreme Court in Honig held that the “stay-put” provision of the IDEA prohibits state or local school authorities from excluding a child with a disability from the classroom for dangerous or disruptive conduct that relates to the child’s disability.  (The stay-put provision requires that a child remain in his then-current placement while statutory “proceedings” to resolve a dispute about the placement are pending.)

M.R. v. Ridley School District, 744 F.3d 112 (3d Cir. 2014).

In M.R. , the Third Circuit Court of Appeals held that, when a hearing officer determines that a child’s educational placement is appropriate, the child is entitled to stay put in that placement throughout all federal disputes about the placement.

Tuition Reimbursement

Florence County School District v. Carter (1993)  &  Burlington School Committee v. Mass. Department of Educ. (1985)

Although  Carter  was decided 8 years after  Burlington , these cases are often cited together; their holdings are commonly referred to as the “Carter-Burlington Test.” Courts use the Carter-Burlington Test to determine whether a parent should receive reimbursement for private school tuition under the IDEA. The Test has 3 parts:

1. Did the school district provide the student with an appropriate education?

2. If not, was the placement chosen by the parent appropriate?

3. Do the equities favor reimbursement?

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Court Allows Case Challenging Segregation in N.Y.C. Schools to Advance

The lawsuit calls out “pernicious racial inequality” in the nation’s largest school district. If successful, it could lead to changes to gifted and selective programs, or even their elimination.

By Troy Closson

A major lawsuit challenging racial segregation in New York City’s public schools was allowed to move forward on Thursday, raising the potential that it will bring landmark changes to admissions at selective schools in the nation’s largest school system.

Starting as early as kindergarten, city students are sorted into two different academic tracks in which they take either general elementary school classes or specialized gifted and talented classes. Children in the latter track are often funneled into selective middle and high schools.

The suit argues that many Black and Latino students face “systematic exclusion” from the gifted and selective pipelines, which blocks them from “prime educational opportunities” and denies their right to a sound education under the State Constitution.

The case, if successful, could ultimately force fundamental changes to admissions policies at hundreds of selective schools, one of the most divisive education issues in New York and around the country.

A lower court judge had previously dismissed the suit, ruling that it asked the court system “to make educational policy,” which is beyond its purview. But on Thursday, a New York appellate court found that the decision was an “error” and allowed the case to proceed.

In its ruling, the court found that arguments between lawyers for the state and the city blaming each other “lead to the nonsensical result that no government entity is responsible for a sound basic education.”

Mark Rosenbaum, one of the lawyers who filed the suit, said on Thursday: “This is a historic decision. It means it’s the beginning of the end of the two-tiered education system in New York City.”

The court’s decision could reignite an emotional debate about racial and economic segregation in one of the nation’s most diverse cities. After previous leaders vowed to reshape the education system but ultimately changed little , Mayor Eric Adams and his schools chancellor opted not to prioritize integration. Now, the ruling may force the administration into the conversation.

The suit could now become the highest-profile education case in New York in more than a decade, and it is likely to resurrect heated arguments among parents and policymakers about the merits of selective admissions policies.

An increasingly powerful faction of families has argued that selective programs provide rigor and opportunities to students who work hard for them. But supporters of desegregation, including local educators, have called attention to longstanding gaps between Black and Latino children and their peers in reading proficiency and graduation rates. They point to how selective admissions can divide privileged parents from vulnerable families.

During the arguments over the appeal, several judges signaled that they believed the case could have merit.

“We cannot just keep on saying, ‘This problem is too big — there’s nothing we can do about it,’” Justice Sallie Manzanet-Daniels, of the Appellate Division of the State Supreme Court in Manhattan, told a lawyer for the city at the time.

“Meanwhile, thousands and thousands and thousands of children keep on being graduated from a system that’s not teaching them,” she said.

The lawsuit is distinct in the landscape of K-12 education. Unlike conservative efforts to roll back admissions policies aimed at racial diversity — including a suit at an elite Virginia public high school that may reach the Supreme Court — the New York case argues that students are entitled to an “anti-racist education.”

On Thursday, city education officials said they were still reviewing the court’s decision. The administration shares the lawyers’ goal of making schools fairer and more accessible, officials said, adding that the suit was “not the answer.”

At a news briefing, Daniel Weisberg, the first deputy chancellor, pointed to plans to open nine new schools in the fall — including some in underserved areas — in an effort to give “everybody the best opportunity to get a great education.”

JP O’Hare, a spokesman for the State Education Department, noted that the court had acknowledged that the complaint “is not a model of clarity or concision” and said that officials were confident that the claims would be dismissed. The department “remains committed to ensuring that all students” have access to a high-quality education, he said.

Mr. Rosenbaum said he and the other civil rights lawyers who filed the suit would move forward with the case at “warp speed.” But, he added, he would like to see it resolved before a potential trial.

“My hope is that the city and state will say enough is enough,” said Mr. Rosenbaum, who was joined on the case with Sidley Austin, one of the nation’s largest law firms. The practices used to “screen out Black and Latino students” from elite high schools are “going to go down,” he added.

The suit focuses largely on selective pathways in New York’s schools. The city has historically screened students for admission into public schools — considering metrics like grades and interviews — more than any other American district .

The lawyers argue that those policies have given rise to a two-tiered system in which factors like affluence, test preparation and “insider knowledge” shape where many students end up.

In the city’s gifted and talented program, the sorting begins before a child’s fifth birthday. A small percentage of the total number of students are enrolled in gifted classes. Still, Black and Latino children comprise roughly two-thirds of the population of all schools, but in the fall of 2022, they made up only about a third of kindergartners offered such spots.

Mr. Adams added 1,000 seats to a separate gifted track starting in third grade. Black and Latino children fared better there, making up about 47 percent of third-grade classes, according to data obtained by The New York Times through a Freedom of Information Law request. Researchers often suggest waiting until later to identify gifted students, and the kindergarten disparities could become a focus of the case.

Gifted classes in elementary school often serve as a pipeline for the city’s most elite public middle schools. As a result, the suit argues, by the time many Black and Latino students reach their teenage years, “entire swaths of high schools and programs are functionally off limits” to them.

At Stuyvesant High School and the city’s other specialized schools, where admissions are based on an entrance exam, only about one in 10 offers last spring went to Black and Latino pupils.

The case has already attracted attention from a conservative nonprofit organization that has filed motions in several suits nationally over race-conscious policies, including affirmative action at Harvard University.

The group, Parents Defending Education, argued in a court filing that many families could lose “priceless educational opportunities” if selective programs were changed or eliminated. In its filling, the group included an unidentified parent who said the city should focus on fixing its lower-performing schools, rather than harming its higher-performing ones.

The lawyers behind the suit have argued that if the city’s goal was to create an education system to “replicate and in fact exacerbate pernicious racial inequality,” it “would be challenging to design a more effective system than that which currently exists.”

The two competing visions for the school system are now poised to come to a head.

When a city lawyer argued for dismissing the case in November, Justice Manzanet-Daniels told him, “You want to throw out the baby with the bath water — and it seems to me that based on the allegations in this complaint, you’ve got a really dirty baby.”

Troy Closson reports on K-12 schools in New York City for The Times. More about Troy Closson