April 1996, Vol. 9, No. 8
"An Ounce of Prevention..." News
Information and Ideas from IPPSE for Practical Problem Solving in Special Education
TWO NEW COURT DECISIONS DISCUSS
SERVICES TO STUDENTS IN PRIVATE SCHOOLS
Continuing the ongoing controversy regarding a school district's obligation to students parentally placed in private schools, two federal district court opinions have recently been issued dealing with the "equitable participation" and consultation aspects of the EDGAR regulations. Benjamin P v City of Lackawana, 23 IDELR 430 (WD NY, 1995), and Natchez-Adams Sch Dist v Searing, 23 IDELR 982 (SD Miss, 1996).
In Benjamin P, a class action lawsuit was filed on behalf of students attending parochial schools against the city of Lackawana and the local school district. The parents claimed that the manner in which special education and related services were being provided to certain parochial school students denied them a free and appropriate public education. More specifically, the parents argued that the amount of time that the students spent traveling to and from the neutral site on which the school district provided special education resulted in the loss of considerable regular class time. Since the students were required to miss so much academic class time, the benefits provided by the school district were not "comparable" as required by 34 CFR § 76.654(a). Ultimately, the parents sought provision of the special education services on the parochial school site. The court noted that the provision of on site services has been required by other district courts, but only when the needs of the child in question were so extensive that there was "no meaningful alternative" to the on site services. (See K.R. v Anderson Comm Sch Corp.) Further, the court noted that the Supreme Court decision in Zobrest eliminated any Establishment Clause bar to the on site provision of certain neutral services, reiterating that while a school district was not required to provide the services on site, they are also not barred from doing so. The court went on to find, however, that the district violated the students' rights and did not provide "comparable services" based upon the amount of time the students missed from core academic classes. The court found this to be the result of the district's failure to "consult" with parochial schools when determining the manner and method of providing such special education services. The district was then required to consult with the parochial schools and propose a plan which would address the scheduling problems and transportation issue.
Likewise, in Natchez-Adams Sch Dist v Searing,
the parents of a student with disabilities sought provision of special education services.
The parents, however, were willing to accept these services at a neutral, off site
location. Although the local school district acknowledged that if the student attended the
public school she would be provided with such service, the district refused to provide any
service to the student so long as she was enrolled in the private school. Instead, the
district prepared an IEP and offered such IEP to the student in the event the student ever
returned to the public school.
The district court found that the school district had not
provided the students enrolled in private schools an opportunity for "equitable
participation" in special education services which are available to public school
students. The school district argued that all it was required to do was to consult the
private school personnel and make special education services available to the student in
the event she returned to the public school setting. Citing to OSEP interpretations which
allowed a school district to provide less than a full range of services to private school
students, the district reasoned that, in its discretion, it could choose not to serve any
private school students.
The district court found that the school district failed to provide a genuine opportunity for equitable participation by having a blanket policy denying any service to students in parochial schools. While it is true that a school district need not provide the full panoply of services available in the public school, some type of participation is required. Unlike many other cases in which parents were seeking on site services, the parents in Natchez-Adams agreed to services being provided at a neutral site. The court indicated that a district must do more than merely consult with the parents of private school children and offer them free and appropriate education if they return to the public schools. Instead, the district must follow the EDGAR regulations at 34 CFR § 76.651-76.652 relating to that consultation. Further, the IDEA requires "the local school district to make an equitable distribution of the IDEA resources made available to it among eligible students regardless of whether they attend a district school or a private school." The resources may not be sufficient to provide every child with every service he or she desires, or even needs. It is for this reason that the local school district is given some discretion in allocating its resources. However, in exercising its discretion, the local school district may not do so by totally excluding students who do not attend public schools.
IMPLICATIONS:
These cases give some guidance in a district's responsibility under the EDGAR Regulations. Although not dealing with any issues under the Establishment Clause, they focus on, and explain, the responsibilities of a district in providing "equitable participation" for private school students.
In essence, these courts have rejected the extremes: an
absolute mandate for on-site provision of service and denial of all service to private
school students as a group. Both cases continue to reiterate the long-standing OSEP
interpretation that a school district has discretion in what services are provided to
students enrolled in private schools, as well as the manner that those services are
provided.
In discussing a district's responsibility to "consult," a school district must contact private schools within its geographic area to determine what types of students with disabilities may be attending those schools, and the types of services which would be needed by those students.
Nothing in any of the interpretations or these cases
require that this be an "in person" or "on-site" contact. Instead, it
could be done by letter in the form of a survey, or by telephone. The goal is to determine
the approximate number of students with disabilities in private schools, and the types of
services that are needed by these students.
After consulting with the private schools, a district then has discretion in which services it decides to provide as long as it makes a proportionate allocation of its Part B funds between public and private school IDEA eligible students as a group. Therefore, if a district has a total of 1,000 students who would require services, and 100 of those students are enrolled in private schools, approximately 10% of the district's Part B funds should be expended for services to students attending private schools. Such expenditure of funds must be made by the district, however, and cannot be given directly to the private school(s). Once the proportional share is calculated, a district must then determine the type and/or level of services that will be provided. For example, a school district may decide that it is going to provide occupational therapy and physical therapy, but will not provide health care aides. This decision could be based upon the number of students which could be served by providing "less expensive" services such as OT and PT, as compared to the few students who could be served by providing health care aides. Not all services must be provided. However, once it is determined that a type and/or level of service will be provided, that service must be comparable to the service a student would receive if the student was enrolled in public school.
THIS MONTH'S Q&A
Q: Can a parent videotape an IEPC meeting? Can a district have a policy which refuses to allow such videotaping of meetings unless all the participants consent?
A: There are no formally adopted regulations or policies regarding videotaping. However, in response to an inquiry regarding its permissibility, OSEP adopted by analogy its position on audio taping. See, Conley, 16 EHLR 1080 (OSEP, 1990). Therefore, according to OSEP, videotaping is presumed permissible.
The only court case which deals with videotaping did not deal with an IEPC meeting, but rather a parent/teacher conference. In Gardner v Sch Bd of Caddo Parish, 18 IDELR 913, 958 F2d 108 (5th Cir, 1992), the parents sought to videotape the parent/teacher conference relative to their daughter who was enrolled in special education programs in the defendant school district. The district had adopted a formal policy which regulated the recording of parent conferences, including IEPC meetings. The policy only permitted parents to record conferences if all participants consented. The policy was then amended to allow recording only if the "authorities" [Editors Note: presumably the district] determined that it was necessary to ensure that the parents fully understood and could meaningfully participate in the IEP process. The parents sought to videotape a parent conference, and were denied the ability to do this by the school district. The parents filed an action in federal district court seeking an injunction against the school district and an order requiring that they be allowed to videotape. The district court granted the parents' motion, and held that the policy was unenforceable and in violation of the IDEA and its implementing regulations. The school district appealed. On appeal, the Fifth Circuit reversed the district court. The reason for doing so, however, was not that the district court
(See Q&A, p. 4)
Q&A (contd. from p. 3)
was wrong in finding that the policy violated the IDEA, but rather that the parents had failed to exhaust administrative remedies by requesting a hearing at the local level before the school board prior to proceeding to federal court. Since the parents had a right to bring the matter before the school board for a hearing, the circuit court found that the district court should have remanded the matter back for hearing prior to entering its order. Although procedurally flawed, the Court of Appeals did not find that the district court was wrong in its finding that a school district could not restrict a parent's right to videotape parent conferences.
Although this is the only case which we could find which specifically addressed whether or not a parent had the right to videotape, several other cases have utilized videotape recordings for various purposes, thereby implying their permissibility. See, e.g., Conecuh County Bd of Ed (SEA, 1995), where a videotape was utilized at a hearing as evidence; Coaron-Goldfield Comm Sch Dist, (SEA, 1994), where videotape was used as evidence in a local hearing; Carrie H v Frankland Special Sch Dist (Middle Dist TN, 1995), where videotape was used as evidence in a federal district court action; Mountain Brook Bd of Ed, (SEA, 1994), where videotape was used as part of the evaluation process; Pocono Mountain (OCR), where videotaping was utilized as a method of keeping a parent informed of progress with the student. See also, EH v Tirozzi, 16 EHLR 787 (D Conn, 1990), parent right to audio tape record IEPC; and VH v Fadolise, 16 EHLR 1070 (1990), same holding.
OSEP has interpreted and issued opinion letters regarding
the tape-recording of IEPCs on several occasions. In the interpretations of 34 CFR Part
300, Section 300.343, the Department has indicated that the utilization of tape recorders
at IEPC meetings, not being addressed by either the IDEA or its regulations, is
permissible at the option of either the parents or the agency. In the event that the
agency maintains the tape-recording, it becomes an educational record within the meaning
of FERPA. In Letter to Liversidge, EHLR 213:104 (OSEP), a complaint was filed
against a district for refusing to allow parents to tape-record an IEPC meeting where a
district representative objected. In that case, OSEP found the school district policy to
be in violation and directed that the state and local policies be brought into conformity
with the federal interpretation that tape recordings can be done at the option of either
party. In Letter to Doerr, EHLR 213:127 (OSEP), the Department indicated that a
school district did not have the right to deny the parent the right to tape-record IEPC
meetings. Further, OSEP and OSERS have both indicated that there is no breach of
confidentiality if a parent chooses to tape-record an IEPC meeting, and no privacy right
of school district employees is violated as these persons are public employees acting in
their official capacity when at these meetings. Therefore, it has been the opinion of OSEP
and OSERS for several years that either party may record an IEPC meeting, and a school
district does not have the right to deny a parent the ability to record the meeting. See,
Letter to Baugh, EHLR 211:479 (OSERS); Letter to Breecher, 17 EHLR 56 (OSEP,
1990); Letter to Blades, EHLR 211:408 (OSEP, 1986); Policy Interpretation,
EHLR 103:43; McKaig, EHLR 211:141 (1990).
As the difference between tape-recording and video recording is merely one of media selection, the interpretations and regulations relating to tape-recording would equally apply to video recording. This was OSEP's approach in Conley, supra. Therefore, the school district cannot adopt a policy which would deny a parent the right to videotape an IEPC meeting. Further, a district could not refuse to hold an IEPC meeting if it were being videotaped. See, Letter to Baugh, EHLR 211:479 (OSERS).
EIGHTH CIRCUIT VACATES PRIOR DECISION
AND DISMISSES DAMAGE CLAIMS
The Eighth Circuit Court of Appeals sitting en banc
(the entire bench) recently vacated its prior decision upholding a damage award which had
been entered personally against a school superintendent and special education director and
affirmed the lower court's dismissal of the damage awards. Larson v Miller,
23 IDELR 875 (8th Cir, 1996).
As you may recall, in the case of Larson v Miller, 22 IDELR 957 (8th Cir, 1995) [OP News, Vol 8, No 11], the parents of a nine year old student who had no left eye and an extremely small right eye brought suit against the school district for deprivation of civil rights under Section 1983 and a conspiracy to deprive civil rights under Section 1985. The student was transported to her program in a school district van and had been sexually abused by the van driver. When the school district was notified of the abuse, the van driver was reassigned to warehouse duty pending an investigation. The school district then had a background check run on the van driver and found that he had previously been charged with sexual assault of his stepdaughter. Thereafter, the van driver was terminated.
The district notified the parents of the driver's termination, however, did not reveal the results of the background check. Additionally, the district did not pursue charges against the driver and informed the parents that they may be liable for slander if they reported the incident to the police. The special education director reminded the parents on more than one occasion that the incident would most likely be the word of the child against the van driver. After consulting with their private attorney, the parents filed criminal charges against the van driver, who was later convicted of sexual assault.
The parents brought suit against the district alleging a failure to train and a conspiracy to deprive civil rights. A jury awarded $80,000 in compensatory damages and $395,000 in punitive damages against the district, $100,000 and $10,000 of this being punitive damages for the student and the parents, respectively, and against the superintendent and special education director, personally. The district court, however, set aside the jury award and entered judgment as a matter of law on behalf of the district and its employees. The parents appealed to the Eighth Circuit.
Originally, the Eighth Circuit affirmed the district court's judgment on the 1983 claim but reversed its judgment as to the 1985 conspiracy claim as to the superintendent and special education director and reinstated the jury's award. Thereafter, the district requested a rehearing en banc (before the entire bench) which was granted. On rehearing, the Eighth Circuit vacated its previous decision and affirmed the district court's setting aside of the jury verdict and dismissal of the complaint. In doing so, the Court of Appeals indicated that the parents had not shown any evidence from which a jury could conclude that a conspiracy existed between the special education director and the superintendent. As such, the award of punitive damages against school officials personally was improper.
IMPLICATIONS:
Although the school district and its officials
"won" the rehearing and had the jury's verdict set aside, the most important
aspect of this case is what the court did not say. Specifically, the court did not
indicate that an award of punitive damages personally against school district employees
was improper. Rather, the court found that the parents had not shown sufficient evidence
to allow a jury to conclude that a conspiracy existed. Further, the court found that one
prior complaint to the district about the van driver could not establish a "pattern
or practice" of discrimination amounting to a "deliberate indifference" of
the civil rights of the student.
Although the district was able to avoid any liability in this case, the court's decision leaves open the possibility of future damage suits against districts and district employees individually. Recently a trend has been emerging where circuit courts have been allowing damage claims. See, W.V. v Matula [OP News, Vol 9, No 6]; Doe v Withers [OP News, Vol 7, No 4]. More and more, courts are allowing parents to bring damage claims under IDEA against districts and district employees for denial of FAPE.
Although these cases arise from other circuits, the implications can be devastating. Not only can a school district's resources be at stake, but also the resources and personal assets of the individual employees. The Sixth Circuit (of which Michigan is part) has not gone so far as to allow damage claims under IDEA. However, the cases dealing with damage claims arising out of the Sixth Circuit have recently found that the parents have been unable to show damages, not that they are absolutely unavailable under IDEA. Given the language in these Sixth Circuit cases, it is conceivable that money damages will be allowed in the future in appropriate cases. Further, the Sixth Circuit has allowed punitive damages in Section 504 employment discrimination claims. See Moreno v Consolidated Rail (6th Cir, 1995).
The best way to guard against damage suits is by appropriate training. Pivotal in the Larson v Miller decision that there was no Section 1983 violation was the district's policy on reporting abuse and its training efforts of its employees. Section 1983 damages are allowable only if a district fails to train employees or evidences a deliberate indifference to the rights of students. Additionally, the district must have been put on notice that its procedures and training were inadequate. There may be times, however, when a failure to train employees is so likely to result in a violation of constitutional rights that notice of a pattern of discrimination is not needed. To guard against liability, a district must assure that it has appropriate policies and procedures in place (i.e., suspension/expulsion/discipline, corporal punishment, sexual harassment, reporting of suspected child abuse, FERPA, etc.) and that it provides training to its employees regarding these policies. Appropriate documentation and training are indispensable in guarding against damage suits.
IPPSE:
Institute for Problem Prevention
in Special Education
2143 Commons Parkway
Okemos, MI 48864-3987