Drobnicki is one of those rare cases where the parents prevailed on a strictly procedural violation.  Parents often come to me with a long list of procedural violations; all of which are quite valid concerns but too often they brushed aside as not resulting in a loss of educational opportunity. I have had more than a few schools, who with notice that the parents are not available to come to an IEP or domains meeting, brazenly go ahead without the parents input. The Drobnicki case (below) may at least cause the school to pause and think about this violation of IDEIA.

The Federal Appeals Court in California in Drobnicki ex rel. Drobnicki v. Poway Unified School Dist., Slip Copy, 2009 WL 4912163, C.A.9 (Cal.),2009. The school district scheduled a case study/domains meeting. Parents did not agree to date. The school made no further efforts to reschedule the meeting. Rather, the district conducted the case study/domains meeting, despite parent request to reschedule. The 9th Circuit held that this was a denial of FAPE. The Court did so without an analysis of whether the IEP substantively complied with the IDEA finding that the “failure to include the persons most knowledgeable about [the student’s] educational levels and needs-namely, … [the student’s] parents-at the [October 10] IEP meeting … resulted in lost education opportunity.”

Petrina is another case involving the "wonderful" Chicago Public Schools ("CPS").  Time is never the friend of parents and CPS uses that fact to its maximum advantage with delays in every aspect of special education from evaluations to holding meetings in a timely way.  One of the really potent remedies for parents is compensatory education. Petrina clarifies when compensatory education is available and may act as a partial deterrent to its delaying tactics that harm students.

Petrina W. v. City of Chicago Public School Dist. 299, Slip Copy, 2009 WL 5066651, N.D.Ill.,2009: IHO held that compensatory education claim was not ripe until the student turned 22. The district court held otherwise finding that “compensatory education can be appropriately sought and granted prospectively-that is, before the student has reached the age of 21.” The court further held that the proper question in a compensatory education case is “how much compensatory education-if any-is necessary to restore [the student] to the position she would have occupied, had the School District provided her with a FAPE during the periods in which she was deprived of one.“

In law school I had a professor who always drew a strong distinction between having a right to sue and having the ability to win. The Supreme Court in a very favorable decision in Forest Grove recognized that the parents had a right to sue in due process for reimbursement for a unilateral placement in a residential school because the school for years had ignored his special needs. This right existed even thought the student had not already been found eligible for services and no case study was done. The case was remanded to the district court that had ruled against the parents in the first round of litigation.

The district court on remand ruled against the parents again taking the position that his need for residential was not educationally based rather to address his drug problems which fall outside of the ambit of special education. Even from the facts of the case recited in the Supreme Court's decision it is plain the district court is distorting the facts of the case to fit its desired outcome. Have a right of action is entirely different than having a right to a fair shake or a clear path to victory; turns out my old law professor was right after all.