e-Bulletin: California Special Education Case Law Update

June 1, 2007

Federal Court Rulings

U.S. Supreme Court

WINKELMAN V. PARMA CITY SCHOOL DISTRICT, No. 05-983 (5/21/07)

Parents/Procedure. Parents can act as their own attorneys in prosecuting federal court claims under the IDEA. A law that mandates "extensive parental involvement" in developing an appropriate IEP for a child with a disability does not later bar them from the courthouse. The word "rights" in the IDEA "refers to the rights of parents as well as the rights of the child." This issue arose based on the common law rule that nonlawyers cannot represent the rights of minor children in federal court. Because of its holding, the Court did not reach the issue of whether the IDEA entitles parents to litigate their child's claims pro se.

SOLE V. WYNER, No. 06-531 (6/04/07)

Attorneys' fees. A party who wins a preliminary injunction, but then later loses at summary judgment, cannot be a "prevailing party" and awarded attorney's fees under 42 U.S.C. section 1988. That section provides that in private actions under 42 U.S.C. section 1983 (often used to remedy a deprivation of rights created by other statutes, including the IDEA), federal District courts may allow the prevailing party . . . a reasonable attorneys' fee as part of the costs. The High Court noted that, "Wyner is not a prevailing party, for her initial [preliminary injunction] victory was ephemeral."

U.S. District Court

SARAH Z. v. MENLO PARK CITY SCHOOL DISTRICT, No. C 06-4098 PJH (107 LRP 30545) (N.D. Cal. 5/30/07)

IEP/FAPE. District provided Student a FAPE. It gave Student's parents all progress reports required under the IDEA. A brief gap between termination of behavioral support services and initiation of services by a successor provider did not deny a FAPE. In addition, the absence of a speech therapist at a November 2004 IEP meeting, while a procedural violation of the IDEA, did not deny Student a FAPE, given that the goals and objectives of the IEP were not related to speech services.

E.M., v. PAJARO VALLEY UNIFIED SCHOOL DISTRICT, OFFICE OF ADMINISTRATIVE HEARINGS, and CALIFORNIA DEPARTMENT OF EDUCATION, No. C 06-4694 JF (107 LRP 30718) (N.D. Cal. 5/18/07)

Procedure. Student lost his renewed claim alleging he, "experienced harm every day that his decision was delayed," and that, "[e]ach day that the OAH thoughtlessly avoided producing a decision [within the 45-day statutory period] was a day that Plaintiff's disability was unremediated." The Court previously granted Defendants' motions to dismiss the claim, concluding the ALJ's failure to comply with the 45-day period did not constitute a per se injury. Nor had Student alleged sufficient facts demonstrating actual injury arising from the delay. Student's claim that he "experienced harm every day that his decision was delayed," ignored that OAH determined he was already receiving a FAPE. OAH pointed out Student would not have obtained any additional educational benefits had the ALJ's decision been rendered within the 45-day period.

R.P. v. SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT, No. C-06-3470 (107 LRP 25936) (N.D. Cal. 4/25/07)

Procedure. Because the administrative record for a FAPE dispute involving a 10-year-old boy with autism omitted substantial witness testimony, the Court could interview witnesses and recreate that testimony. Noting the IDEA permits courts to admit supplemental evidence when there are gaps in the administrative transcript, the court observed that, "While the exhibits, correspondence and pleadings are intact, approximately four out of the six days of testimony are missing." The incomplete transcript, by itself, validated District's request for additional discovery. It therefore granted District's motion to supplement the record and conduct additional discovery.

State Court Rulings

AUSTIN B. v. ESCONDIDO UNION SCHOOL DISTRICT, 149 Cal. App. 4th 860 (107 LRP 23990) (Cal. Ct. App. 4/13/07)

Physical restraint. A special education teacher did not use excessive physical force to control two preschoolers with autism. The Court let stand a jury verdict in the teacher's favor. The teacher's attempts to calm and redirect the preschoolers, using a "deep pressure" touching technique, were not unreasonable. Under California law, teachers are permitted to use the same degree of physical force to maintain control, protect property, and protect the health and safety of students that a parent is legally privileged to use. The Court noted that, "This is particularly true where students are autistic and admittedly need, and in some instances desire, touching to calm, control and guide them."

OAH Due Process Rulings

GLENDORA UNIFIED SCHOOL DISTRICT, No. N2006110090 (107 LRP 30256) (5/23/07)

Assistive technology. District failed to offer Communication Access Real-time Translation ("CART" (real-time captioning.)) District unsuccessfully argued CART violated Education Code section 51512, a misdemeanor, which prohibits use of any electronic recording device in a classroom without prior consent of the teacher and the school principal. Student's teachers and the principal were opposed to CART. However, the ALJ was convinced "that Student as an oral learner requires CART, an assistive technology device ... to make educational progress." District's offer of a sign language interpreter or alternative of a note taker did not meet Student's unique needs in communication and academics. Student presented expert witness testimony as to how CART addressed Student's unique needs and allowed her to benefit from her education. Nor is CART prohibited by the Education Code. In addition, it does not have a chilling effect on students or constitute an invasion of their privacy. All witnesses agreed that once CART is no longer a novelty, students will not even notice the presence of the captionist.

ELK GROVE UNIFIED SCHOOL DISTRICT, No. N2006100568 (107 LRP 27854) (5/15/07)

Eligibility. District denied the 7-year-old a FAPE from June 29, 2006 forward by not finding him eligible for special education with an SLD. Student was entitled to a Lindamood-Bell program as compensatory education for 160 hours. District contended Student was not eligible and it acted appropriately and timely in response to Parents' requests for assessments. Though Parents requested an evaluation in September 2004, and District did not provide a plan or assess him, Student was too young to evaluate him for SLD. District therefore did not deny him a FAPE from October 2004 to June 2006. Student's later assessment was not sufficient, however, since District's Woodcock-Johnson-III was not valid. Though Parents provided no prior notice of an independent evaluation, his continued poor academic performance, the inability of District to remediate his deficits in general education, and credible evaluation by the independent evaluator, supported reimbursement.

PAJARO VALLEY UNIFIED SCHOOL DISTRICT, No. N2006110472 (107 LRP 27680) (5/11/07)

Peer-reviewed research. Student lost his claim contending District's eclectic autism preschool program's use of various models of instruction, which included ABA, TEACCH, RDI, and Floor Time, was shown in recent journal articles to be ineffective in educating preschoolers with autism. Student asserted only an ABA program was supported by peer-reviewed research as an effective program. The ALJ found District developed its program based on appropriate methodology. It also obtained correct information about Student's abilities through the assessment process, which included direct observation by District personnel, interviews with school staff and Parents, and review of records. Based on Student's past progress, he was capable of making significant progress in District's program. District acknowledged Student required a 1:1 teacher/aide, but did not make a clear, written offer to Parents, which prevented them from meaningfully participating in the IEP. District corrected the mistake when it promised by separate letter shortly thereafter to provide 1:1 instruction.

LOS ANGELES UNIFIED SCHOOL DISTRICT, No. N2006120552 (107 LRP 27682) (5/07/07)

FAPE. District's offer for the 2006-07 school year did not constitute a FAPE for an 8-year-old with autism, because the omission of speech-language therapy in the IEP failed to meet Student's unique needs. District also committed a procedural violation that impeded Student's right to a FAPE and Parents' participation in the IEP process, when the IEP team failed to consider an IEE including diagnosis, recommendations and test results. Instead, it relied solely on an invalid "informal assessment" by the school SLP. However, District did not commit a procedural violation by failing to provide parents information on where they could obtain an IEE, on grounds the IEE was not to be conducted at public expense.

PARAMOUNT UNIFIED SCHOOL DISTRICT, No. N2007030664 (107 LRP 27692) (5/03/07)

Reassessment. District established that conditions warranted a reassessment of Student, despite Parents' refusal to consent to a reassessment plan. Though Parents requested that Student be exited from special education, District could not do so until a reassessment was conducted that provided support for an IEP team determination that Student was no longer eligible for special education services. Moreover, Student was performing poorly under the existing IEP, and a reassessment was warranted on that basis, as well.

LOS ANGELES UNIFIED SCHOOL DISTRICT, No. N200703065 (107 LRP 27688) (5/01/07)

Assessment. District could assess Student pursuant to its proposed assessment plans of December 2006 and February 2007. Parent failed or refused to consent to its February 2007 assessment plan, which included proposed assessments in academic performance, general ability, language function, motor abilities, and social-emotional status. District took reasonable measures to obtain Parent's consent for the assessments after proper notice and advisement of rights.

ORANGE UNIFIED SCHOOL DISTRICT, No. N2006110320 (107 LRP 27856) (4/30/07)

IEP. District developed appropriate IEP goals to meet the unique needs of Student with an SLD, as reflected in the present levels of performance. It also properly considered a continuum of placement options in the IEP process and offered an appropriate mix of 50 percent time in a special education setting and 50 percent in general education, which met Student's unique needs in the least restrictive environment. District obtained accurate information regarding Student's strengths and weaknesses in reading, writing, math and social-emotional skills. An extensive IEE corroborated the District's information in its assessments regarding Student's needs in the areas of reading, writing, math and social-emotional skills.

LOS ANGELES UNIFIED SCHOOL DISTRICT, No. N2005070427 (107 LRP 27848) (4/25/07)

FAPE. District denied a FAPE to a 12-year-old with severe to profound sensorineural hearing loss, by failing to fully and timely implement Deaf/Hard of Hearing in-home itinerant teacher services to provide sign language instruction and pre-teaching services in Student's home for two hours per day, two days per week. District admitted it was not able to find personnel capable of performing the task. Student was, therefore, denied a FAPE, to the extent that the 30 hours of DHH services were not provided. However, the evidence did not support that 240 hours of compensatory education from the Lindamood-Bell program was appropriate.

LYNWOOD UNIFIED SCHOOL DISTRICT, No. N2006120574 (107 LRP 27686) (4/23/07)

Assessment. A 7-year-old with Down syndrome failed to meet her burden to prove she was not assessed in all areas of suspected disability. There was no reason to suspect she required assessments in occupational therapy and adaptive physical education, given the numerous examples that she possessed appropriate fine and gross motor skills. Similarly, an assistive technology assessment was not required because Student's cognitive functioning was not yet at a level where substitutes for verbal communication could be mastered. Nor was there evidence demonstrating Student was a danger to herself or others in the school setting. Accordingly, no behavior assessments were required, as her behavior did not impede her learning or that of others.

LOS ANGELES UNIFIED SCHOOL DISTRICT, No. N2006060539 (107 LRP 27850) (4/20/07)

Emotional disturbance. Student lost his claim for residential reimbursement, on grounds he was not eligible as a person with an Emotional Disturbance. He did not exhibit a general pervasive mood of unhappiness or depression. Moreover, Student's history, since the ninth grade through August 2006 when he was discharged from Provo Canyon (a locked residential placement in Utah), was quite consistent. It established that Student maintained a diagnosis of a conduct disorder, polysubstance abuse, and family problems. Student did not, over time, demonstrate behaviors typical of ED. Therefore, District did not inappropriately assess Student with respect to his social/emotional needs, for purposes of determining if he was eligible for special education and related services under the ED category.

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