February 1994, Vol. 7, No. 6
An "Ounce of Prevention..." News
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COURT ENJOINS PARENT FROM UTILIZING MET
AND IEPC PROCESSES
Michigan Federal District Judge John Fiekens on January 14 and February 2, 1994, enjoined both the parents and the Farmington School District from pursuing an evaluation of a student, and accordingly any subsequent IEP meeting. Leon, et al v State Bd of Ed, et al, Case No. 92-CV-75006-DT. In the June 1993 issue of OP News, we reported that the court in this long standing dispute had upheld the rulings of both local and state hearing officers that Jeffrey Leon was no longer eligible to receive special education. The procedures relating to the local hearing, held under both IDEA and Section 504, were initially challenged by the parents in federal court. Thereafter, the parents sought review of the hearing officer decisions themselves. Together the administrative proceedings and court review took approximately three years and were quite stormy. Ultimately, Judge Fiekens on June 8, 1993, ruled that all of the procedural errors alleged by the parents were either nonmeritorious or so insignificant as to not warrant reversal. Further, he found that the decision to decertify Jeffrey was correct noting that at some point the parents "questions must cease and the litigation must end." (These proceedings were not the first brought by these parents concerning this child for hearings had been requested and pursued in both 1987 and 1989 as well.)
In November of 1993, only five months after the court's ruling, the
parents directed another letter to the district requesting that Jeffrey be
reevaluated and thereafter another IEPC be held. The district requested
advice as to any newly discovered evidence of any handicapping conditions,
but the parents never responded. After checking with his own staff
concerning the student's progress (which was found satisfactory) and any
other evidence of a significant change in circumstances (and it found
none), Kingsley Cotton, counsel for the district, filed a motion for "clarification"
of the court's prior order requesting injunctive relief. In short, the
district asked that the court enter an order enjoining both the parents
and the district from having to pursue reevaluating the student and
holding another IEPC absent a good faith showing by the parents, based
upon palpable and demonstrable evidence, that Jeffrey's condition had
changed significantly enough to warrant a reasonable person to suspect
that he was now handicapped under either IDEA or Section 504. The court
granted the stay or injunction pending a hearing on the district's motion.
IMPLICATIONS:
The district in this case conceded to the court that the relief it was
requesting was extraordinary, but it also pointed out so were the
circumstances. Contending that the parents were in effect trying to merely
start another round of repetitive litigation because they could not accept
the prior result, it called upon the court to determine that injunctive
relief was an appropriate equitable remedy allowed under IDEA and condoned
by the U.S. Supreme Court in other special education situations, most
notably reimbursement for private placements in the landmark Burlington
and Carter decisions.
The circumstances here were very favorable to request this type of
relief for several reasons. First, the parents had never won anywhere on
their claim that their child was disabled. Moreover, they had taken the
issue all the way to federal court and lost so a judge, who
may be
the only one who can grant injunctive relief, was already very familiar
with the situation. Finally, these parents waited only a couple of months
after the judge had ruled their son ineligible before they asked that he
be reevaluated!
In most situations where parents abuse the MET and IEP processes, which
overall are rare but very problematic, none of these favorable facts are
present. Thus, commencing expensive litigation in court to gain injunctive
relief and getting a judge sufficiently interested and incensed about a
situation to grant relief is usually neither practical nor realistic. But,
this ruling, if the court extends it by issuing a preliminary injunction
after the hearing, does provide to our knowledge the first authority
anywhere supporting injunctive relief to stop parental abuse of special
education processes. Accordingly, it could serve as a stepping stone for
other courts to grant similar relief in other abusive situations in the
future.
OP News will monitor this case as it proceeds. Copies of the
orders and pleadings are available upon request
QUESTIONS AND ANSWERS:
This month's questions and answers come from recent OCR rulings taken
from Letter to Veir, 20 IDELR 864.
Q: Is a district required to provide services to a student parentally
enrolled in a private school who could qualify only for Section 504
services?
A: No. If a district has made a Section 504 FAPE available to a student with a disability, and the parent's choice is to enroll the student in a private school, the district is not required to provide services under Section 504. Note, however, that a district would need to provide services, if at all, to the extent required under the Auxiliary Services Act.
Q: If a child qualifies for services under Section 504 but not under
IDEA and is being home-schooled, is the district where the child resides
responsible for providing services in the home?
A: No. A district is not responsible for providing services under
Section 504 where the district has offered a free appropriate public
education to the child but the parent's choice is to educate the child at
home. However, the district wherein the child is home-schooled, may have
obligations under the Auxiliary Services Act.
Q: Does Section 504 require that a district conduct a child-find in
private schools?
A: Section 504 requires that a district take steps each year to identify children with disabilities who are not receiving a public education. It also requires notice of rights and duties to children with disabilities and their parents. The implementing regulation, 34 CFR §104.32, does not specify procedures to locate the children and give notice. Some suggestions are to give notice to state and local agencies, private schools or to place a notice in the newspaper. See with regard to all three Veir,
20 IDELR 846.
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EXPULSION FOR ALCOHOL OFFENSE HELD NOT
DISCRIMINATORY BY OCR
The OCR ruled that a Florida district did not violate Section 504 or
ADA by expelling a student because he committed a second alcohol offense.
Pinellas County (FL) Sch Dist, 20 IDELR 561.
Parents claimed that a district discriminated against their son under
Section 504 and the ADA when it expelled him from school for a semester
for a second offense of having and consuming alcohol on school property
because he has a disability described as an "adjustment reaction"
which manifests by episodes of alcohol use. The district stated that
its penalty for a second illegal alcohol offense is mandatory expulsion,
which is applied to all students.
The OCR stated that alcohol
addiction
which substantially limits a major life activity is a disability under
Section 504 and Title II of the ADA. If the student, however, is currently
using alcohol and is caught using or in possession of alcohol by his/her
school, that student can be disciplined in the same manner as any other
student, regardless of whether the student is disabled by alcoholism or
any other disability.
IMPLICATIONS:
When the ADA was passed, it amended §504
to specifically allow school districts to take disciplinary action
pertaining to the use or possession of illegal drugs or alcohol against
any handicapped student who is currently engaging in the illegal use of
drugs or in the use of alcohol, provided such disciplinary action was
meted out in a nondiscriminatory fashion vis a vis discipline of a
nonhandicapped students. This exception applies regardless of the
underlying §504 handicap, i.e. whether the §504 handicap is
alcoholism/drug addiction or some other handicap. (Remember,
though, that this exception applies only under Section 504/ADA. If the
student is also handicapped under IDEA, IDEA regulations and caselaw will
govern disciplinary actions, specifically as these relate to
suspension/expulsion.)
The focus of an OCR alcohol/drug addiction investigation will be a
comparison of how handicapped students are treated vis a vis
nonhandicapped students. In Pinellas, OCR requested data over a
three year period for all students sanctioned for second offense illegal
drug/alcohol violations, analyzing the data by regular education/special
education, variations in punishment, and consistency of rationale to
explain such variations. Adhering to a general "formula" for
infractions helped the district maintain uniformity in discipline.
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DISCIPLINE FOR WEAPONS NO DIFFERENT
A recent OSEP ruling clarified whether or not a student with
disabilities who violated the weapons policy of the district by bringing
weapons such as guns and knives onto secondary school campuses must
automatically be returned to school after the maximum 10 day suspension.
Letter to Boggus, 20 IDELR 625.
A high school teacher expressed concern in this letter to OSEP about
her district's failure to remove special education students from their
current placement who have violated school policy by bringing guns or
knives to school. In her district, a handicapped student who is
disciplined for this misconduct receives a ten-day suspension and then is
returned to school with apparently no further action taken. This is to be
distinguished from a regular education student in her district who may
face a long term suspension or even expulsion for similar misconduct.
Citing an "absolute lack of common sense" in the procedure in
her district, she writes for further clarification of OSEP's position.
In response, OSEP reviewed the general law on disciplining a student
with disabilities. It noted the U.S. Supreme Court in Honig v Doe,
108 S Ct 592 (1988), prohibited school authorities from excluding students
with disabilities from school for disruptive or dangerous behavior that
arises from their disability. Under Part B of IDEA, a district may suspend
a student with disabilities for up to ten days. If it exceeds ten days, it
will be considered a "change in placement." Then, an IEPC must
be convened to determine whether or not the student's behavior was a
manifestation of his/ her disability. If the misconduct is related to the
disability, the suspension may not exceed 10 days. If it does, it will be
considered a change in placement. The IEPC must also review the student's
program and placement and determine whether it meets the student's needs.
IDEA's "stay put" provision requires the student to remain in
the current placement until administrative and judicial reviews are
exhausted, unless the district can persuade the parents to agree to a
temporary placement or an IEP. If, however, neither is possible and school
officials believe that there is a substantial likelihood that the student
is a danger to herself or others, they may ask the court to remove the
student.
If the IEPC decides that the student's misconduct is not a
manifestation of the disability, then the district may impose discipline
according to its policy. But, if the disciplinary suspension exceeds 10
days, the district must in any event deliver educational services to
students with disabilities regardless of the manifestation determination
made at the IEPC.
OSEP merely advised to apply these legal
guidelines to a weapons situation.
IMPLICATIONS:
This ruling merely reconfirmed what the Honig decision said
all along. IDEA means, with respect to the suspension or expulsion of
students with disabilities, that the ground rules are the same regardless
of the severity of the student's behavior. In other words, whether a
student points a gun or a pencil at a teacher in a threatening manner
(putting aside the potential criminal implications of the conduct) with
respect to the student's participation in the the school program, the
process which must be followed and the district's options are the same
depending, of course, upon the determinations made in the process. While
the ruling as noted above describes the process, an even better and more
detailed description is set forth in the State Board of Education's "Position
Statement on the Discipline of Handicapped Students."
The problem of the gun-toting student has prompted state legislatures, including Michigan's, to consider specific provisions requiring that any such student be expelled from school. The legality of such provisions in the face of IDEA's requirements, as interpreted in Honig, as well as the requirements of Section 504, is very doubtful.
The real problem remains in OSEP's long standing interpretation to the
effect that even if an IEPC determines that the behavior of a student with
disabilities is not a manifestation of the student's disabilities,
the district must still continue to provide that student with a FAPE, i.e.
through what has been termed "alternative educational services."
Challenged by a district in Indiana, but upheld by the federal courts,
this interpretive ruling makes little common sense to most, which is
exactly what the 9th Circuit Court of Appeals said in the Honig
case several years ago. Possibly a situation involving a gun-toting
student with disabilities will cause another court to take another look at
OSEP's position!
OCR FINDS THAT DISTRICT REFUSAL TO PROVIDE SERVICES WAS
NONDISCRIMINATORY
The OCR in Illinois held that a district's procedures did not
discriminate against a student under Section 504 and Title II of the ADA
when it discontinued special education services and refused to provide
related aids and services within his general education program. Peoria
(AZ) Unified Sch Dist, 20 IDELR 1009.
A student who was diagnosed with dyslexia and took medication for ADHD
received special education services for a specific learning disability
from fourth through sixth grades. He was then found to be no longer
eligible for special education. His parents requested an evaluation for a
possible speech and language disorder, which resulted in a determination
that speech and language services were not needed, nor was a
recommendation for a referral for additional educational assessments made.
This was consistent with district procedures which called for an
additional educational evaluation if a language disorder is discovered
during a speech and language evaluation.
The district then
conducted an evaluation of the student under Section 504 and found that
the student did not have a disability requiring related aids and services
within his general education program. In response to parental concerns,
the district did, however, prepare an "accommodation plan" which
was designed to help the student be successful. The parents challenged the
procedures used to evaluate and determine placement of the student,
alleging that they were discriminatory under Section 504 and the ADA.
OCR investigated the district's evaluation and placement process and
found that it met the regulatory requirements of Section 504 when it
determined that the student did not have a disability which substantially
limits a major life activity, i.e. learning. To make this determination,
the district convened a meeting of individuals who were knowledgeable
about the student, including parents, school administrators, his former
special education teacher, his current teachers, and the speech and
language pathologist. The group used data from his special education
evaluations, grades, current classroom performance, and input from
parents. OCR found that the formal assessments used by the district were
properly validated and administered by trained personnel in conformance
with instructions. The OCR also found that the district's procedure of
conducting further educational assessments if a language disorder is found
in a speech and language evaluation was consistent with Section 504 and
Title II of the ADA.
IMPLICATIONS:
The §504 regulations are rather general in providing guidance as
to the parameters of an appropriate evaluation under §504. This is
especially true when you compare the language of the §504 regulations
to the rather specific criteria set forth in the Michigan Revised
Administrative Rules for Special Education. Thus, it's helpful to get a
case that sheds light on what OCR looks for as indicia of an appropriate
evaluation process. Here we obtain some illumination to the question, "If
we do a special education evaluation and the child is found ineligible for
special education, do we have to conduct another, separate evaluation to
determine §504 eligibility?" This case suggests that it is
appropriate to use information obtained from the special education
process. The key is to have access to necessary, appropriate, and valid
information, not that it comes from any specific wing of the educational
family. The case also emphasizes that the evaluation data should be
multi-sourced. Too often districts rely on intelligence and achievement
testing alone. Here the evaluation data included grades, current classroom
performance, and parent input, as well as special education evaluation
results. Finally, while the required "group of persons knowledgeable
(GPK)" about the child, evaluation data, and placement options will
obviously vary from child to child, we can get a picture of how a district
would appropriately assembly such a group. In practicality, if a district
holds a §504 eligibility/planning meeting immediately following an
IEPC meeting, it is likely that the assembled persons will fulfill §504
GPK requirements.