February 1997, Vol. 10, No. 6 Return to the Article INDEX

An "Ounce of Prevention..." News

Information and Ideas from IPPSE for Practical Problem Solving in Special Education

FILING JUVENILE COURT

PETITION CONSIDERED

CHANGE IN PLACEMENT

The United States Court of Appeals for the Sixth Circuit in Morgan v Chris L ruled that a school district violated IDEA by filing a juvenile court petition against a student with Attention Deficit Hyperactivity Disorder (ADHD) and failing to follow IDEA procedural protections to initiate this "change of placement."

Chris L. attended middle school during the 1991-92 and 1992-93 school years. In 1992, a physician diagnosed Chris as suffering from ADHD and prescribed Ritalin to control his behavior. Chris' father subsequently informed the school district of Chris' condition and medication.

Chris' academic and behavioral problems continued during the 1992-93 school year. In February 1993, the school district sent Chris' parents an IDEA consent form in order to begin

(See JUVENILE COURT, p. 2)

ANNOUNCEMENT

We are pleased to announce that as of March 1, 1997, Michele Eaddy will be joining our firm. The reason was quite simple. While our firm's focus remains assisting you with special education and Section 504 matters, the problems in these areas just continue to increase and even become more complicated.

You will recall starting last fall we made arrangements with Michele to give us, and you, assistance on particular matters. Lyn and Sharon had practiced with Michele for years when they were a part of the White, Beekman, Przybylowicz, Schneider & Baird law firm. Michele left that firm in 1992 to assume the position of Director of Human Resources/Legal Counsel with Grand Rapids Public Schools. In that capacity she became involved in a variety of matters on behalf of the district, including several relating to special education. Thereafter, in October of 1993 she joined the Lansing Public Schools as its Assistant Director of Personnel Services, Employee Relations, and Legal Services. Once again her responsibilities, although varied, included issues in the special education/Section 504 arena. Before joining us, Michele's private practice involved the representation of various districts, some of which involved special education matters.

Hopefully, you will get a chance to meet or work with Michele soon. She's a bit competitive (being an excellent tennis player) as well as a very organized, sharp, hard-working person who is willing to accept responsibility and new challenges (particularly given she and her husband, Lou Nigg, recently had their first child, a daughter named Vanessa)!

Sharon and Michael

JUVENILE COURT (contd. from p. 1)

the process to determine Chris' eligibility for special education services. Chris' father returned the consent form, but the school district took no further action toward determining Chris' eligibility.

On May 11, 1993, Chris and another student entered a bathroom on school property which was off limits to students. The two students allegedly vandalized a water pipe in the bathroom resulting in $1,000 of damage. Chris was suspended for three days. Unbeknownst to his parents, the school district filed a juvenile court petition on May 12, 1993. On May 17, 1993, a disciplinary hearing was held. During the course of that hearing, the meeting was changed to a multidisciplinary team meeting because Chris was taking Ritalin for his ADHD. While Chris' parents were notified of the disciplinary meeting, they received no notice of the possibility that a MET meeting would be convened. During the meeting, Chris was deemed disabled for the purposes of IDEA, and an IEP was developed for Chris. Chris' parents agreed with the MET's assessment and their recommendations. The team then discussed the vandalism incident. While the MET determined that the vandalism might have been attributed to Chris' ADHD, his unauthorized presence in the bathroom could not and therefore Chris could be subjected to discipline. The principal advised the parents that the decision to file a juvenile court petition would be made at a later date. The parents subsequently were notified that the petition had already been filed.

The parents requested a due process hearing, claiming that the district violated IDEA by filing the petition. The administrative law judge agreed and ordered the district to seek dismissal of the juvenile court petition because the vandalism incident was a manifestation of Chris' disability. The ALJ further determined that the filing of the petition could constitute "a change in placement" under IDEA.

The school district refused to seek dismissal of the juvenile petition and appealed the ALJ's ruling to federal district court. The court concluded that the school district had violated IDEA's procedural requirements when it filed the juvenile court petition. The school district appealed.

Affirming the lower court's decision, the Sixth Circuit held that the school district failed to afford Chris L. the procedural protections mandated by IDEA. By filing the petition, the school district sought a "fundamental alteration" in Chris' educational program. Moreover, the court found that the filing of the petition was "at odds with [the school district's] obligation to provide Chris with a free and appropriate education under the IDEA." The court found the record revealed that Chris began the 1992-93 school year without the special education services IDEA entitled him and that school officials continued to treat Chris as a disciplinary problem even though they knew he suffered from ADHD. Thus, the filing of the juvenile petition "must be viewed as a breach of the school system's obligation under the IDEA to identify, evaluate and appropriately educate Chris."

Moreover, by filing the petition, the school district was "at a minimum, proposing that the juvenile court develop its own program of rehabilitative services for Chris" in violation of IDEA's procedural safeguards which required that the school district to develop its own plan and initiate a MET team meeting before filing a juvenile court petition for this purpose. Accordingly, the court affirmed the lower court's decision and order for the school district to seek the dismissal of a juvenile court petition filed against Chris.

IMPLICATIONS:

On the national level, this decision has been deemed "horrendous" by more than a few school district special education attorneys. In fact, that reaction is probably generated more by the position taken by the juvenile courts of the State of Tennessee to the earlier decisions in the case than the decision of the Sixth Circuit itself. Based upon the earlier decisions, Tennessee juvenile judges had often taken the position that any child with disabilities was the initial responsibility of the schools under IDEA and not the juvenile court system! A petition for certiorari is being filed with the United States Supreme Court in Chris L but it is not likely to be granted. Further, various school district organizations are proposing, as part of the talks on reauthorization of IDEA, that language be specifically placed in IDEA to allow districts to file petitions in juvenile courts in certain circumstances.

There is an old adage in legal jurisprudence that "bad facts make bad law." Well, clearly here the facts were bad for the district. Despite a long history of worsening academic and behavioral problems (as well as knowing the student was on medication for ADHD), the district failed to evaluate the student (after getting the parent's consent to do so), failed to provide parents of notice and their rights under IDEA regarding the IEP process and attempted no behavioral interventions. Lastly, it at best misled and at worst lied to the parents regarding the filing of a juvenile court petition.

Was the result "bad law"? Interestingly, we in Michigan have been living under a decision amazingly similar to that in Chris L since 1979. In Flint Bd of Ed v Williams, 88 Mich App 8 (1979), our own Court of Appeals held that a school district may petition a probate court to take jurisdiction over a student and remove him or her from the school system only after special education proceedings have terminated and a final decision has been made that no program within the school district can adequately address the child's special needs. We believe the key difference in our state is the approach of our probate court judges. Rather than taking the position that students with disabilities are initially the total responsibility of school districts, they have held school districts to compliance with IDEA procedures while concurrently exercising jurisdiction and taking responsibility for other aspects of the student's (or parents') needs and the ramifications of the student's conduct outside the school setting.

The lessons of the Chris L decision are basically the same for us as the Williams decision rendered almost 20 years ago. First, as in any other context, a district, when shown signs that there is reasonable cause to suspect the student is disabled, must take steps to promptly evaluate the student and, if found eligible, develop an IEP which will appropriately address that student's needs. When the triggering signs arise in the context of potential discipline for behavioral problems, the need for district staff to be particularly alert and responsive is very important given not only the ramifications for the subject student, but other students and staff as well as the heightened risk of liability.

Second, under both the Chris L and Williams decisions, it is not altogether clear when, and what, a district might seek from a juvenile court regarding a student with disabilities while it proceeds with the evaluation and IEP processes under IDEA. Of course, often such petitions are not filed by the district, or at the initiation of the district by others, but rather by district staff on their own, student victims or their parents. But, in this state, it is our understanding that many school districts have and continue to seek the assistance of juvenile court judges regarding students with disabilities and their parents. In doing so, districts do not request the court to remove the student from the school system or to provide rehabilitative or other services which districts are obligated to provide the student under IDEA (as was wrongly done by the districts in both the Chris L and Williams cases). Rather, the districts advise the court at the outset that they recognize their responsibilities to the student with disabilities under IDEA and have, and will, fulfill them. But they note to the court that IDEA does not provide the district with any "levers" to encourage or prompt the cooperation or compliance of the student with disabilities or his or her parents with IDEA's evaluation/IEP processes or the programs, services or behavioral interventions which might result. In short, we do not believe the rulings in Chris L and Williams prohibit a district, which is doing its job under IDEA, from seeking the assistance of the probate court regarding significant related matters as noted above which IDEA does not address.

Without question, the reception and relief which a district receives from any juvenile court will be dependent upon the particular court's staff and other resources, philosophy and understanding of the interface between probate and special education laws. But, sometimes juvenile court assistance can be obtained without the filing of any formal petition by sharing information with court staff (in accordance with court directives, FERPA and IDEA processes) or participating in court proceedings initiated by others. Although it may be difficult to find the time, without question it would be best if the "ground work" for such cooperation could be laid long before crisis situations arise through informal discussions between court and district staff or each attending appropriate portions of more formal inservices for the other's staff.

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FIFTH CIRCUIT DEVELOPS THREE-PRONG

TEST SERVICES ON SITE

AT PRIVATE SCHOOLS

The United States Court of Appeals for the Fifth Circuit added its perspective on the issue of providing special education services to parentally-placed private school students on parochial school property in Cefalu v East Baton Rouge Parish Sch Bd, 25 IDELR 142 (5th Cir, 1996). Regrettably, it comes up with a different approach than other courts which is more complicated.

In Cefalu, the parents of a hearing impaired student requested that a full-time sign language interpreter be provided at their son's private school. Cefalu, who had attended public schools until the 1993-94 school year, enrolled in a private parochial high school in the fall of 1993. Throughout his public schooling, Cefalu's IEP included the services of a sign language interpreter. While the district was willing to provide the services of an interpreter at the public school, the district refused to provide the services at Cefalu's parochial school. The parents sought a due process hearing on the issue. The hearing officer agreed with the school board and held that the district was not required to provide an interpreter at the private school. After exhausting their administrative remedies, the parents successfully appealed to U.S. District Court. The school board then appealed to the Fifth Circuit.

In reviewing IDEA and its regulations, the Fifth Circuit concluded that IDEA intended for students voluntarily placed in private schools to be "active participants and beneficiaries of" services and programs under IDEA and that such students are entitled to "a genuine opportunity for equitable participation" in these programs and services. In addition, the court said that "it was implicit in the statute and the regulations that educational agencies must be afforded the broadest discretion to design special programs in light of the finite funds that are available." Accordingly, the court developed a three-prong test for determining whether on-site services must be provided to parentally-placed private school students. First, the private school student must make a showing of a genuine need for on-site services based upon more than mere convenience. Second, if the student meets that standard, the district must provide the on-site services unless it presents a justifiable reason, either economic or non-economic, for its denial of on-site services. Finally, if the district demonstrates a justifiable reason for its refusal to provide services on-site, the student will be entitled to receive the services upon demonstrating that the school district's position is inconsistent with IDEA, irrational or arbitrary.

Noting that there was no evidence in the record indicating the basis for the school district's decision not to provide the services, the court vacated the judgment of the district court and remanded the case to the lower court for further consideration in light of its opinion.

IMPLICATIONS:

In the July 1996 issue of OP News (Volume 9, No. 11), we discussed the Second Circuit Court of Appeals ruling in Russman v Sobel that a school district was required to provide related services on site at a parochial school. This holding was directly contrary to that by the Seventh Circuit Court of Appeals in K.R. v Anderson which held, in accordance with the Office of Special Education Program's (OSEP) ruling that a district had discretion in terms of which students parentally placed in private schools received services and, if so, what services, since such students had no "individual right of entitlement" to such services under IDEA. Now comes the Fifth Circuit in Cefalu with a somewhat different approach from either Russman or Anderson!

Petitions for certiorari to have the United States Supreme Court review both the Anderson and Russman decisions have been filed and most observers believe they will be granted. This decision in the Cefalu case only adds to the confusion thereby bolstering the likelihood that the United States Supreme Court will review one or more of these cases.

In the meantime, the implications for us given the Cefalu decision or, for that matter, the prior decisions in Anderson or Russman are really none given our Sixth Circuit Court of Appeals has not as yet ruled on the issue. Accordingly, districts may continue to do what most have been doing (i.e., follow OSEP's interpretation), although some are voluntarily providing services to parentally placed private school students beyond what the OSEP interpretation would require.
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