The U.S. Supreme Court has accepted the appeal of the case Arlington Central v. Murphy. This case has been pending appeal for several months. The issue in this case is whether parents who prevail in a due process case can recover their expert’s fees and costs from the school district. In the underlying case, from New York’s 2d Circuit Court of Appeals, the ruling went in favor of the parents and the school district appealed. (download Murphy_v. Arlington Central.pdf)
Judge Alito’s Record on Special Education and Disability Issues is Mixed
Judge Alito was nominated to the Supreme Court for his very conservative stance on issues such as abortion, business interests, and civil liberties. My focus is narrower in this post to look at the handful of cases that he has participated in regarding special education law and the ADA. His record on special education cases is surprisingly positive for parents but not very favorable in most of his ADA cases.
Parents Should File Well Grounded Due Process Cases Without Fear of District Fee Shifting
IDEA 2004 has brought many changes to special education law. School districts have used the new provision which allows attorneys’ fees shifting to parents in the event the due process is frivolous, abusive or brought for an improper purpose, to intimidate and chill due process filings. While this provision is new to IDEA, it tracks existing law from the Federal Code of Civil Procedure and other statutes. This body of law demonstrates that courts are reluctant to shift fees as a sanction and then only after the petitioning party (e.g. school district) has overcome significant hurdles.
Legal Points for FBAs and BIPs
While Illinois courts have refused to adopt specific legal requirements for FBAs and BIPs, there is guidance available from other states (as discussed below). Courts and hearing officers will definitely look at the sufficiency of the behavioral planning in determining whether a FAPE has been provided. The cases discussed below are illustrative cases from Illinois.
- Illinois does not endorse a specific legal scheme for BIPS, but there are worthwhile legal guidance from other jurisdictions. In the case Mason City Community School District, 38 IDELR 50 at 199-201 (2001), the review panel set out a four-part test to determine the sufficiency of a BIP under IDEA. First, the BIP must be based upon assessment data; second, the BIP must be individualized to meet the child’s unique needs; third, the BIP must include positive behavioral change strategies; and fourth, the BIP must be consistently implemented and monitored.
- Behavioral intervention is defined as an “[I]ntervention based upon the methods and empirical findings of behavioral science and designed to influence a child’s actions or behaviors positively.” 23 Ill.Adm. Code 226.75 (emphasis added). Both Federal and State regulations implementing IDEA reflect this emphasis on the need for positive behavioral interventions as part of the child’s IEP. See Appendix A interpreting the regulations in 34 C.F.R. part 300 question 26, which states that a person knowledgeable about positive behavioral interventions should be part of the IEP when a child’s behaviors impede his or her education. Question 38 states emphatically that failure to appropriately address behaviors that impede a child’s education is a denial of FAPE. 34 C.F.R. part 300 question 38. See also 23 Ill. Adm Code 226.220(e), 226.230(b), 226. 750(b); and Bristol Township School District, 36 IDELR 145 at 626 (2002).
- FAPE was denied to a child on the autism spectrum in Grayslake CCSD #46, 37 IDELR 239 (2002), because the FBA and BIP were insufficient and untimely, and the staff lacked the expertise to undertake the task and failed to contract for staff with more expertise in behavioral intervention. Residential placement and significant compensatory education were ordered.
- FBAs and BIPs are often critical in making a legally sufficient determination on placement. Oak Park and River Forest H.S. District #200, 34 IDELR 161 (2001). A valid FBA/BIP was a needed prelude to moving a child to a more restrictive placement. In Sandwich Community Unit School District No. 430, 35 IDELR 173 (2001), a BIP was needed to address a child’s truancy, rather than changing to a more restrictive placement. In District No. 211 v. Michael R., 44 IDELR 36 (N.D. Ill. 2005), a valid FBA and BIP that had been revised and reconsidered over time were important elements in supporting the district’s determination to move the child to a more restrictive placement.
First Amendment Case Pending Before U.S. Supreme Court May Affect Teachers’ Ability to Advocate for Students
It happens with some degree of frequency that a teacher or therapist reveals “inside” information to parents or their attorney that is damaging to the school district’s interests. In fact, I had a case where the speech therapist working at the school, from the school cooperative, testified extensively as to how the school was not properly implementing services for the child. She was subsequently called in and reprimanded, but she held her ground and the case settled without further repercussions for her. The question is, in the event she had been fired or demoted in some way, would she have a 1st amendment claim for speaking out at a hearing and to the parents?
U.S. Supreme Court Considers An IDEA Case for Appeal on Expert’s Fees and Rejects Two Other IDEA Cases
The U.S. Supreme Court has requested that the Solicitor General’s Office for the United States submit briefs regarding the merits of a case that is pending appeal. The case is Arlington Central School District Board of Education v. Murphy (No.05-18). The Murphy case presents the question as to whether expert’s fees are recoverable under IDEA. This question has been answered in the negative in the T.D. v. La Grange Sch. Dist. case in the 7th Circuit and in Illinois. If Murphy were to be accepted for appeal and decided favorably for the parents’ side, it would effectively reverse the decision in T.D.
Schaffer v. Weast: The Sky is Not Falling
In the Chicken Little story that is currently playing in theaters, Chicken Little, the main character, tells all the other animals that the sky is falling. Without any real consideration for the truth of the matter, the animals believe her. The only one who benefited from this situation was the cool-headed Foxy Loxey who takes full advantage of the situation. Well, after one week of commentators and other attorneys proclaiming that the sky is falling after Schaffer v. Weast, I am here to tell you that is just false. If I am destined to play the part of Foxy Loxey in the post-Schaffer legal drama, so be it. Otherwise, strategic school people may prey on parents’ fears and misconceptions.
Using Garret F. to Advocate for Assistive Technology.
On March 3, 1999, the United States Supreme Court issued its decision in Garret F. v. Cedar Rapids Community School District, 526 U.S. 66 (1999). The case was decided by the Court in a 7-2 decision in favor of the child’s right to receive one-on-one nursing as a related service. Although this case does bear directly on the provision of AAC or technology, this decision may be useful in advocating for assistive technology.
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