1994-95 Vol. 8, No. 11

An "Ounce of Prevention..." News

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

SUPERINTENDENT AND DIRECTOR OF SPECIAL

EDUCATION FOUND PERSONALLY LIABLE

FOR PUNITIVE DAMAGES

The parents of a nine-year-old student with visual impairments brought an action against the school district, its superintendent, and director of special education alleging a deprivation of civil rights under 42 USC §1983 and conspiracy to deprive civil rights under 42 USC §1985. Although the District Court found the parents were not able to make out a Section 1983 claim against the district and its officials, they did find sufficient evidence to conclude that the superintendent and director of special education plotted to deprive the student of her civil rights. In doing so, the superintendent and director of special education were held personally liable for punitive damages of $100,000 and $10,000 to the student and her parents, respectively. Larson v Miller, 22 IDELR 957 (8th Cir, 1995).

This case arose from allegations by the parents that the school district failed to act on allegations of sexual misconduct of a bus (van) driver. In the spring of 1988, the student told her teacher that the van driver had made sexually implicit comments to her. The teacher informed the special education director, who in turn informed the director of transportation, who gave the driver a warning. In January of the following year, the student told her mother that the driver had "fondled" her genital area. The parent immediately notified the principal who in turn contacted the special education director. The special education director then contacted the parents. During his conversation with them, he warned the parents of the risk of slander if the charges turned out to be untrue, and emphasized his opinion that it would be the student's word against the bus driver's. After speaking to the parents, the special education director telephoned the police department and requested that a background check be run on the van driver.

The following day, the special education director notified the superintendent of the complaint. The superintendent immediately reassigned the van driver to warehouse duty pending the results of the background check. He instructed the special education director to inform the parents of the student of this reassignment. When he contacted the parents, he informed them of the reassignment and reiterated his warning relative to the likelihood of a slander suit.

The background check revealed that the van driver had been previously arrested for sexual abuse of his stepdaughter, but the charges had been dismissed. Upon receiving this information, the superintendent, the special education director, and transportation director decided to terminate the employment of the van driver. The superintendent informed the special education director to contact the parents and inform them of the van driver's termination, but not to release any of the details of the background check. Later that day, the special education director did contact the parents and informed them of the van driver's termination. He also informed the parents that the school district would not be pursuing any charges, and that nothing pertinent to the case had been revealed by the background check. Lastly, he repeated his warning relative to the risk of a slander suit and his opinion that it would be the student's word against the driver's. The parents contacted the police and filed charges against the van driver. The driver was subsequently convicted of two counts of sexual assault of a minor. The parents then brought suit against the school district, including the superintendent and special education director in their individual capacities, claiming that they had deprived the student of her civil rights under 42 USC §1983, and had conspired to deny the student her civil rights under 42 USC §1985. The jury returned a verdict of $80,001 in compensatory damages and $395,001 in punitive damages. The school district requested that the court set aside the judgment, which was granted. The parents appealed to the Eighth Circuit Court of Appeals.

The Circuit Court of Appeals agreed with the District Court that the parents had failed to state a claim or present evidence which would support a judgment against the school district under Section 1983. However, the court disagreed with the lower court that the parents had failed to present "any evidence from which the jury could infer that [the superintendent and special education director] agreed to deprive the parents and the student of their rights" which would amount to a conspiracy under Section 1985. The court found that there was sufficient evidence to allow a jury to determine that two or more persons had acted in concert to commit an unlawful act and that the defendants had reached an agreement to violate the rights of the student. The court held that the parents need not show that each participant knew "the exact limits of the illegal plan." The court pointed to the fact that the superintendent and special education director were in constant communication regarding the student's allegations, that the special education director reiterated what could be interpreted as veiled threats regarding slander and the student's credibility and what effect going public may have. From this, as well as the superintendent directing the special education director to relay certain information but not other, the court concluded that a jury could find that the defendants had agreed to violate the rights of the student. The court further held that the protections of Section 1985 extended to handicapped students, thus joining courts from the Second Circuit, New York District Court, and Ohio District Court, while disagreeing with the Seventh and Tenth Circuits. The court did not accept the argument from the superintendent and special education director that they could not be held personally liable since they were acting in their official capacities, and found that a cause of action had been shown against them in their individual capacities. Therefore, the court reinstated the jury awards against the superintendent and special education director individually in favor of the student and parents in the amount of $100,000 and $10,000, respectively.

IMPLICATIONS:

Historically, parents brought claims under §1983, 1985, and §504 in an attempt to recover attorneys' fees prior to the amendment of the IDEA. More recently, claims have been brought under §1983 and 1984 seeking more traditional damages and/or compensatory education. In addition to these federal statutes, claims are frequently brought under state civil right statutes and state tort actions. To avoid the school district defense of governmental immunity, the actions have been framed to allege a pattern of discrimination,"deliberate indifference" to the rights of the students, or gross negligence. (See, e.g., City of Canton v Harris, 489 US 378 (1989), as it relates to "deliberate indifference," and Thelma D v Bd of Ed, 934 F2d 929 (8th Cir, 1991), where a failure to train employees was found to evidence a deliberate indifference.)

Courts have been reluctant to allow damage claims against school districts under §1983 and 1985. Some courts have found that handicapped persons were not a class protected under §1985. More and more, however, the courts are allowing claims under §1985, finding that handicapped persons can be the target of "invidious discriminatory animus." Further, claims have been pled in a manner which separates the alleged actions from the school district employee's official duties. In this way, the school district employee can be held personally liable for damages to the student and/or their family.

While the courts have been unwilling to extend a constitutional duty to protect a student from violence of other students or third parties, this practice is diminishing. Where the allegation may include violence of a school district employee against a student, the courts have had no trouble finding a duty for the district to protect the student from its own employees. As a practical matter, any time there is an allegation of violence or abuse by a district employee, the school district should take proactive steps. Immediate investigation, with notification of appropriate officials, such as DSS or the police should be undertaken. Open communication and cooperation with the parent are essential. However, prevention is always the best way to avoid damage lawsuits.

The most important aspect of prevention relates to training and staff inservicing. Routine criminal history and background checks should be made on all employees who will be having contact with students. Those employees having contact with behaviorally challenged students should all have documented training in behavioral and physical management. Remember, it is always cheaper to train all district employees than to defend one injury claim. Documentation showing appropriate training goes a long way in undermining any claim of "deliberate indifference."Return to the TOP

THIS MONTH'S Q&A

Q: Can the results of a Complaint Investigation Report or a Hearing Officer Decision be shared with the district's board or other members of the public at a board meeting?

A: NO, they cannot be shared with the general public as such documents may have personally identifiable information, and therefore protected under FERPA. YES, they can be shared with the school board. A word of caution should be inserted here. The following language could be included in correspondence sent to a superintendent with regard to a complaint investigation report/hearing officer decision:

Dear Superintendent _________________:

Enclosed is the [Intermediate School District's Investigation Report/Hearing Officer Decision] regarding the above [complaint/hearing]. [Here the correspondent would insert standard language with regard to complainant's right to appeal, district's right to respond, etc.]

We would caution you that given the personally identifiable information in this report and the attachments to it, it is a confidential document covered under the provisions of the Family Educational Rights and Privacy Act (FERPA) and its regulations. Moreover, given the nature of this document and the fact that much of the information contained in it is not directly relevant to the student's ongoing educational needs, it should not be made a part of the student's educational records which are generally accessible to all staff, e.g., CA-60, special education file, etc. Rather, it should be kept in a separate file in the office of the superintendent [or coordinator of special education]. [An exception exists when the hearing officer's decision modifies the IEP and becomes the student's IEP pursuant to the rules. In such a situation, since the hearing officer decision acts as the student's IEP, it would be included in the student's CA-60, special education file.]

Further, in the event it is desired that this document and the attachments be made available to members of the Board of Education, the provisions of FERPA and its regulations do not prohibit such disclosure. However, care must be taken to assure that Board members understand that this document is covered under FERPA because it contains confidential information. Copies of this document (and its attachments) cannot be made available to the public. Moreover, the document and its contents should not be discussed in an open meeting. If the Board chooses to discuss the document and its contents, it should do so pursuant to the following type of motion:

Move, that the Board of Education adjourn into closed session to consider [Investigation Report /Hearing Officer Decision] dated ________________, for the reason that it contains certain personally identifiable information regarding a student which is confidential under the provisions of the Family Educational Rights and Privacy Act and its regulations.

If after considering the report the Board decides to take any action in an open session, it should not in any way refer to the name of the parent or the student, but merely identify any action taken in terms of the "ISD Investigation Report dated _______ concerning Complaint # _____________" or "Hearing Officer Decision dated ______ concerning Case #______."

Should you have any questions concerning either the report or the confidentiality requirements discussed above, please do not hesitate to contact us.

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OSEP GIVES GUIDANCE AS TO

IMPLEMENTATION AND TRANSITION UNDER PART H

In two different policy letters, OSEP has recently given guidance as to the implementation of Part H and transition to Part B services. In Letter to Gill, 22 IDELR 983 (OSEP, 1995), the inquirer sought direction from OSEP regarding Part H requirements a district must follow in the provision of services to children with disabilities from birth to age three. Specifically, the inquirer sought information as to whether those states which currently follow Part B regulations for infants and toddlers in providing FAPE are now required to substitute the Part H regulations. According to OSEP, all eligible children, ages birth to three, are entitled to early intervention services pursuant to Part H requirements, except where two-year old children are receiving FAPE in accordance with Part B Preschool Grant Programs (Section 619). In these latter instances, only Part B requirements apply. Typically, these will be two-year old children who are in transition from Part H services to Part B services, and will reach their third birthday during the school year. Part H continues to apply to all other children with disabilities under three, including those receiving FAPE with other sources of funds, such as Part B funds under Section 611 of IDEA.

In response to an inquiry relative to transition from Part H to Part B services, Letter to Anonymous, 22 IDELR 980 (OSEP, 1995), OSEP gave guidance on the provision of extended school year programs to children ages three through five. Unfortunately the real issue here, i.e., whether dually eligible children require compliance with one or two sets of regulations, was not directly addressed. However, OSEP's answer to a second question suggests that, with the exception of children receiving Section 619 funded FAPE, dually eligible children are accorded the rights and protections of both Part H and Part B regulations. That question had to do with the procedures to be followed when the family of a dually eligible child refuses to consent to services on the IFSP/IEP. OSEP responded that under Part B regulations a school district may initiate procedures to challenge the parent's refusal to consent to the initial evaluation and the initial provision of services, while under Part H. Per OSEP's response, the public agency can only challenge the parent's refusal to an initial evaluation, but not a refusal of early intervention services. (As implemented in Michigan, there is no agency right to challenge parent refusal to evaluate under Part H.) Furthermore, OSEP noted that it was the state's discretion, not the local school district's to determine whether it would continue to provide FAPE pursuant to voluntary state laws according special education/related services to children ages 0-3. In other words, if a state law mandates special education and related services for eligible children in the 0-3 age group a school district cannot "opt out" of these obligations merely because these same children would otherwise be served under Part H.

Under Section 678(a)(8) the Part H lead agency must initiate the transition process from Part H to Part B no later than 90 days prior to the child's third birthday. This requires that, for children eligible for special education and related services, an IEP or an IFSP, in accordance with 20 USC 1414(a)(5) must be developed and implemented by the third birthday. When a child with a disability would reach their third birthday during the summer, the state's transition system should provide methods which assure that the meeting is held at least 90 days prior to the child's third birthday while school personnel are available. If the nature and severity of the student's condition requires an extended school year (ESY), and the child would reach age three during the summer months, the IEP or IFSP would specify the child's program beginning on the third birthday including the ESY. In the event that an ESY is not needed, the date of initiation of the service could be at the beginning of the upcoming school year.

Specifically regarding ESY, a determination relative to this service must be made on an individual basis as part of the IEP process. A state may not have a policy that excludes any disability category from eligibility for extended school year services. A state has discretion to establish policies and procedures on how to determine the need for its ESY services. Evidence of regression and slow recoupment can be considered as a factor in determining the need for ESY services. An analysis of whether a child's level of achievement would be jeopardized by a summer break in his or her educational programming should proceed by applying not only retrospective data, such as regression and recoupment, but also predictive data such as the opinions of professionals, as well as circumstantial considerations of the child's individual situation at home, neighborhood, or community. Because of Part B's requirement for individual determinations, OSEP does not believe that it would be permissible for a state to adopt a policy which refuses to consider information such as predictive data.

IMPLICATIONS:

At first blush it looked like the feds might do something reasonable, i.e., take the position that compliance with Part H requirements would control for dually eligible children (children ages 0-3 eligible under birth mandate provisions in the state special education laws enacted prior to the adoption of Part H). But no such luck. Regulatory and procedural simplification will apparently only come with state statutory charges. OSEP's description of the "law" with regard to ESY determinations should sound familiar. The "contribution" of Part H to ESY determinations will likely be an increasing number of parents requesting such services. Why? With services rendered by multiple providers not on a school calendar pursuant to an IFSP that is based on six months as opposed to school year intervals, parents, and families may be transitioning from Part H to Part B with the mind set that services should be ongoing throughout the year.

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