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California Special Education Case Law Update

Legal Alerts

AUGUST 1, 2007

Federal Court Rulings

PROCEDURE – EXHAUSTION OF ADMINISTRATIVE REMEDIES

KUTASI ex rel. KUTASI v. LAS VIRGENES UNIFIED SCHOOL DISTRICT, No. 05-56006 (107 LRP 40508) (9th Cir. 7/19/07)

Parents were required to exhaust their administrative remedies before filing suit in federal District Court.  The 9th Circuit, therefore, upheld a lower court’s dismissal of a Section 504 and Section 1983 lawsuit, which contended the Las Virgenes Unified School District excluded an 11-year-old student from school, scheduled IEP meetings at inconvenient times, and failed to reimburse the student's parents for in-home therapy services.  The 9th Circuit noted that while Parents may prefer to receive money damages for an alleged denial of a FAPE, they cannot use their preference to show they fall into the futility exception to the exhaustion of remedies rule. In this case, Parents based their money damages claim on District’s alleged failure to provide special education services, a claim that IDEA is designed to remedy.

MYRON WOOLEY and JULIANA WOOLEY v. VALLEY CENTER-PAUMA UNIFIED SCHOOL DISTRICT, No. 07cv0675 BTM(RBB) (107 LRP 39343) (S.D. Cal. 7/11/07)

Parents lost their denial of FAPE case because they failed to exhaust their administrative remedies under IDEA.  This spring, District filed a motion to limit the issues to be heard, based on the parties' settlement agreement and the stipulated dismissal with prejudice in a prior court action.  District requested dismissal of certain issues pertaining to the 2005-06 school year.  OAH granted the District's motion to limit the issues.  Subsequently, Plaintiffs voluntarily withdrew their request for a Due Process hearing and commenced this District Court action.  The Court found that Parents did not exhaust their administrative remedies on grounds they withdrew their Due Process request.  If OAH had dismissed Parents' entire claim that Student was deprived of a FAPE during the 2005-06 school year, they would have had a stronger argument that the exhaustion requirement has been satisfied.  Here, however, OAH’s dismissal did not dispose of Parents’ claim the District deprived Student of a FAPE during the 2005-06 school year.  Those claims included failure to provide appropriate school transportation, failure to conduct a functional analysis assessment, and fabrication of work-product and teacher progress reports that were presented at an IEP. The District Court noted that if OAH determined Student was deprived of a FAPE during the 2005-06 school year on one or more of those other grounds, the dismissed issues could be rendered moot.

IEPs - ELIGIBILITY

R.B. by F.B. v. NAPA VALLEY UNIFIED SCHOOL DISTRICT, No. 05-16404 (107 LRP 39430) (9th Cir. 7/16/07)

The ‘no harm, no foul’ rule is alive and well in the 9th Circuit.  The Napa Valley Unified School District committed a procedural violation of the IDEA when it failed to invite a teacher or therapist from a child's private school to attend an IEP meeting.  However, the 9th Circuit held that, “After reviewing the record and giving proper deference to the [Special Education Hearing Office’s] thorough and careful findings, we hold that [Student] did not qualify as a ‘child with a disability’ because she did not meet any of the criteria for a ‘severe emotional disturbance.’ Because [Student] is substantively ineligible for IDEA relief, we hold that the procedural error in the composition of her IEP team was harmless.”  The 9th Circuit noted that IDEA 2004 does not require districts to include a child's current teachers in IEP meetings.  The law only requires Districts to include at least one of the child's general education teachers, and at least one of the child's special education teachers or providers.  At a minimum, however, Districts must ensure that the teacher or provider invited to the meeting actually worked with the child.

FAILURE TO STATE A CLAIM - RECONSIDERATION

LINDSEY STEWART v. POWAY UNIFIED SCHOOL DISTRICT BOARD OF TRUSTEES, et al., No. 05-56480 (9th Cir. 6/29/07) (107 LRP 41557) (Memorandum Opinion – Unpublished)

In consolidated pro se appeals by Lindsey Stewart, the Parent of a child with a disability, the 9th Circuit (1) upheld the dismissal of her lawsuit for failure to state a viable claim; and (2) affirmed the District Court’s denial of her motion for reconsideration of its dismissal with prejudice of her action against certain defendants, for failure to properly serve the summons and complaint.  After four attempts, Stewart’s Third Amended Complaint still failed to include specific facts to give notice to any of the defendants as to the nature of the allegations against them. Stewart’s Complaint did not specify against which defendants she made each individual claim, or out of what specific actions the claims arose.  Nor did the lower court abuse its discretion in denying Stewart’s motion for reconsideration of its dismissal of her action against 16 new defendants.  Stewart did not base her motion on newly discovered evidence or identify clear error in the initial decision.  Nor was her motion grounded on an intervening change in controlling law. The District Court further observed that, “Moreover, faxing the 16 summonses and a copy of the [Third Amended Complaint] to the PUSD Superintendent’s office does not meet the requirements for service found in Fed. R. Civ. P. 4.”

Office of Special Education Programs (OSEP)

ELIGIBILITY

Letter to Clarke, 48 IDELR 77 (3/08/07)

OSEP emphasized that academic performance is not the only indicator of a speech-language impairment.  The agency emphasized that whether a speech-language impairment “adversely affects” a child's educational performance must be determined on a case-by-case basis, depending on the unique needs of a particular child.  That determination cannot be based only on discrepancies in age or grade performance in academic subject areas. IDEA 2004, at 20 U.S.C. section 1414(b)(2)(A) and the final regulations at 34 C.F.R. section 300.304(b), require a public agency to use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information. The determination about whether a child is a child with a disability, therefore, is not limited to information about the child's academic performance.  As to clarification regarding the continuum of service delivery options an LEA must consider for a student, OSEP advised that the child's IEP Team is responsible for determining the services that are needed for the child to receive FAPE.  That includes determining the type of related service, “as well as the amount and location of services.”  71 Fed. Reg. 46575 (Aug. 14, 2006).  For example, small-group instruction or direct services are matters for consideration by the IEP Team, based on a child's individual and unique needs.  An LEA cannot make those decisions, OSEP said, as a matter of general policy by administrators, teachers or others, outside the IEP Team process.

For more details on these case rulings or their implications for your agency, contact an attorney with the School Law practice group.

Disclaimer: BB&K eBulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué. © 2007 Best Best & Krieger LLP

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