January 1997, Vol. 10, No. 5 Return to the Article INDEX
An "Ounce of Prevention..." News
Information and Ideas from IPPSE for Practical Problem Solving in Special Education
ACCOMMODATING A PARENT'S PREFERRED
TEACHING METHODOLOGY IS BEYOND THE
SCOPE OF IDEA
A U.S. District Court rejected a parent's attempt to secure a particular
instructional method for her child in Wall by Wall v Mattituck-Cutchogue
Sch Dist, 24 IDELR 1162 (ED NY, 1996).
In Wall, a parent of a learning disabled student sought
reimbursement for the cost of a private residential school after she
unilaterally withdrew her son from the public school district in which he
was enrolled when she became displeased with the district's program.
On the basis of various achievement test results and the student's own
classroom performance, the school district had placed the child in a 5th
grade self-contained special education room for reading, social studies,
spelling, and math and mainstreamed him into a regular education classroom
for all other subjects for the 1993-94 school year. This placement was
initially acceptable to the parent. However, about mid-year, the parent
voiced her displeasure with the program. In particular, the parent was
unhappy with the reading instruction technique used by the district. She
subsequently removed her son from the school and enrolled him in a private
school for students with dyslexia. The parent then requested a due process
hearing seeking reimbursement for private school tuition and related
expenses.
At the hearing, the parent did not challenge the appropriateness of the
IEP. Instead, she contested the district's failure to exclusively use the
Orton-Gillingham approach to reading instruction. She also claimed that
the district had failed to group her son with children with similar
abilities and needs. The hearing officer found for the district,
concluding that the instructional technique used by the district had
satisfied the child's educational needs and that the decision not to rely
exclusively on the Orton-Gillingham technique was appropriate and
consistent with the practice in other schools in the area. The hearing
officer also found that the child had been appropriately grouped with
children of similar needs. The hearing officer's decision was upheld at
the state review level. The parent appealed to federal court.
In concluding that the district's IEP was reasonably calculated to
provide the child educational benefit, the court dismissed the parent's
complaint and stated:
Although [the teacher's] instructional technique, specifically the
absence of exclusive reliance on the Orton-Gillingham method, may not have
met Wall's exact desires, accommodating a parent's ideal educational
program is beyond the scope of IDEA.
The court further held that the district had appropriately grouped the
child with other children of similar abilities, noting that the child's
abilities were "well within the range of other students" in his
classroom. Accordingly, the court dismissed the parent's complaint in its
entirety and granted summary judgment in favor of the school district.
IMPLICATIONS:
With the increasing trend of parents attempting to micromanage
educational services through the IEPC process, it is reassuring to note
that hearing officers and courts will still recognize that methodology is
a district/professional prerogative. But there is a cautionary note as
well. As this case illustrates, along with several recent Lovaas/TEACCH
cases, the methodology argument only works when the district's methodology
of choice addresses FAPE. A methodology inadequate to the delivery of FAPE
leaves the district vulnerable. A second cautionary note is that it may
not be possible to convince a hearing officer that a methodology based
request for due process hearing should be dismissed summarily (i.e.,
without proceeding to hearing). That is because there may be conflicting
views on the adequacy of the district's methodology in providing FAPE. It
may take an evidentiary hearing for the hearing officer to conclude that
the issue is one of methodology and thus dismissable.
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PUNITIVE DAMAGES NOT AVAILABLE FOR
VIOLATIONS OF SECTION 504
The Sixth Circuit Court of Appeals recently ruled that a party was not
entitled to punitive damages for violations of Section 504, even if
such violations amounted to intentional discrimination. Moreno v
Consolidated Rail Corp, 25 IDELR 7 (6th Cir, 1996).
Although the fact situation in Moreno involved discrimination in an employment setting, its principles are applicable to actions in which parents seek damages pursuant to Section 504 and the IDEA. In Moreno, an employee brought an action against the railroad claiming that he had been removed from his position in violation of Section 504 and that such discrimination was intentional. At the district court level, a jury returned a verdict in favor of the employee awarding compensatory damages and punitive damages in excess of $1 million. The district court entered an order striking the punitive damage award but upholding the compensatory damages. Both parties appealed to the Sixth Circuit.
Originally this matter was heard before a three-judge panel. The first
Sixth Circuit decision [23 IDELR 77] found that punitive damages were
available for intentional violations of Section 504 and that there
was sufficient evidence to permit a reasonable jury to find that the
discrimination was intentional. Therefore, punitive damages were allowed,
but the case was remanded for the court to decide whether the punitive
damages which were awarded were excessive.
Prior to the district court making that determination, the Sixth Circuit
decided to review the matter en banc [before the entire bench].
On rehearing, the entire bench reversed and vacated the prior Sixth
Circuit decision, finding that punitive damages were not intended under
Section 504, even for intentional violations.
The court agreed that the employer was subject to the provisions of
Section 504. The court then analyzed the relationship of Section 504
to Section 501 and Title VI of the Civil Rights Act. In doing so, the
court noted that compensatory damages were permitted for violations of
Section 504, however, historically punitive damages were not. Recent
amendments of the Rehabilitation Act did add a provision for punitive
damages under Section 501, however, they were subject to a $300,000
cap. It would therefore be inequitable to permit punitive damages under
Section 504 (without a cap) when Section 501 specifically capped the
amount of recovery.
More importantly, however, the court found that the statute expressly
provided a particular remedy; namely, termination of federal funding and
the possibility of compensatory damages. As such, a court should not read
additional remedies into a statute when specific remedies are provided.
Finally, the court found that violations of Section 504 were
typically "benign" and that punitive damages were not necessary
to punish "thoughtlessness":
Punitive damages are hardly necessary to punish "thoughtlessness"
and we have no reason to believe that the administrative scheme and the
threat of compensatory damage awards are not adequate to accomplish the
task of deterrence. Adding punitive damages to the mix, in our view, would
expand Section 504 beyond all "manageable bounds."
IMPLICATIONS:
There has been a lot of controversy of late relating to the availability
of damages under the IDEA. Typically, when a parent initiates litigation
in federal court seeking damages under the IDEA, a claim is also made for
discrimination under Section 504. School districts are constantly
attempting to balance between the two differing statutes. The Sixth
Circuit ruling should bring some relief. However, it must be remembered
that compensatory damages are available under Section 504, even if they
are not available under the IDEA.
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SCHOOL DISTRICT AWARDED COSTS
AND ATTORNEY FEES
A "prevailing party" is entitled to recover costs and
reasonable attorney fees in an action brought pursuant to the IDEA.
Typically, however, this has only been applied to a parent who is
a prevailing party. School districts, although they may prevail, have not
recovered attorney fees based upon the belief that to award such fees
would have a "chilling effect" on a parent's exercise of the
rights guaranteed in the IDEA. Recent cases, however, show that this "trend"
may be changing.
In Kreher v Orleans Parish Sch Dist, 25 IDELR 40 (ED LA,
1996), the parents initiated a due process hearing and ultimately federal
district court action claiming that a school district failed to provide a
student with Attention Deficit Disorder and dyslexia an adequate
individualized educational plan. Approximately one year after the lawsuit
was filed and following several conferences with the magistrate judge, the
parties reached settlement. The settlement required that the school
district pay $15,000 to the parents and to provide a multi-disciplinary
evaluation of the student. The parties notified the court that settlement
had been reached, although it had not yet been reduced to writing. The
court dismissed the lawsuit provided, however, that it could be reinstated
within 60 days if the written settlement document had not been
finalized.
Following the entry of the order of dismissal, counsel for the school
district drafted the settlement and provided it to counsel for the
parents. Although the parents' attorney admitted that the settlement
agreement accurately set forth the agreement of the parties, the parents
refused to sign the agreement. Instead, the parents unilaterally added an
additional paragraph which required the school district to guarantee that
the student would attend a specific high school and would be allowed to
remain there until graduation. This additional language caused
difficulties in reaching further settlement.
When the parties were unable to reach a written agreement, a conference
was held with the magistrate judge. He indicated to counsel that the court
was prepared to enforce the settlement as originally agreed. Additional
time was granted to the parties to attempt to reach a written finalization
of the settlement agreement.
When agreement was not forthcoming, the school district filed a motion
to enforce the settlement agreement. In considering this motion, the court
found it important that the parties had reached an agreement before the
magistrate judge and had communicated that fact to the court in writing.
Further, the parents' attorney did not contest that the original agreement
reached was the same that was contained in the original draft submitted to
the parents by the school district. The parents had not opposed the motion
to enforce the settlement. As such, the court granted the school
district's motion and entered settlement along the terms originally
agreed. The court, however, went one step further. In addition, the court
granted the school district's request for costs and attorney fees and
remanded the case to the magistrate judge for a determination of the
reasonable fees.
IMPLICATIONS:
Seldom are school districts awarded attorney fees. In the past year,
however, two federal district courts within the jurisdictional limits of
the Fifth Circuit (Louisiana, Mississippi, Texas), have awarded such fees.
As you may recall, in Cypress-Fairbanks Ind Sch Dist v Michael F,
23 IDELR 1041 (DC TX, 1996) [editor's note: OP News, June 1996,
Vol. 9, No. 1] the district court in Texas awarded costs against a parent
for the frivolous filing of a lawsuit against the school district. In Kreher,
the district court granted the school district's request based upon the
unjustifiable refusal of a parent to enter into a settlement agreement
which had been previously reached. Although an award of costs and attorney
fees may be unusual, it appears that courts are more likely to grant such
costs and fees if the conduct of a parent is clearly unreasonable and
unjustifiable.
Good faith negotiation and compromise in an attempt to resolve conflicts
over a student's program advances the ideals and purpose of the IDEA. When
parties reach an agreement, it is advisable to reduce this agreement to
writing as quickly as possible, even if it is by a confirming letter
between counsel, with a copy being sent to the hearing officer or judge.
If you are in the midst of a due process hearing or trial when the
settlement is achieved you may want to place the terms of the settlement
on the record. Then, if a parent later backs out of the agreement, a
district may be entitled to costs and fees to enforce the agreement.
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THIS MONTH'S Q&A
Q What can a district do where there are safety risks to staff providing
homebound services?
A The only cases, at least since 1980, where the safety of staff has
been a factor in the placement of a child were three early rulings on
students with AIDS. Those cases are not very helpful, however, in
addressing safety risks unrelated to the risk of contracting a
communicable disease. Although there is no specific authority in case law,
we would suggest the following general approach:
First, we believe it is extremely important that the safety risk to
staff be real to a reasonable objective staff person and not the
result of unreasonable perceptions, especially where such might be based
upon socioeconomic, religious, racial, or similar bases. Second, often,
but not always, if there are real safety risks, the children in the home
will be subject to similar safety risks. If so, then as a mandated
reporter of child abuse/neglect, it is incumbent upon the staff to bring
such to the attention of Protective Services. Obviously, that might
resolve the problem, but then again it might exacerbate the problem.
Assuming the safety risk is real and it cannot otherwise be addressed
through Protective Services, then options regarding the location where the
child would be provided services needs to be explored. First in this
regard would be whether the child has to remain in the home setting. From
a medical standpoint, few children would fit this category. In any event,
advice in this regard can always be sought from a child's physician
(preferably directly by the district as opposed to through the parent) and
the district always has the right to have its own physician conduct a
medical evaluation for this purpose. If the child can be removed from the
home to be served, that would solve the problem except for transportation
personnel. A mobile unit might also be an option under this circumstance.
If it's one of the rare situations where the child cannot be removed
from the home, then we see basically four options. First, have someone
else accompany the staff when they go into the home (the person depending
upon the nature of the risk). Or, the district could contract with a
private provider of service to go into the home (which assumes the private
provider would be willing to assume the risk). Third, would again be the
mobile unit approach if such would be feasible under the circumstances.
The last option where the child can't be removed from the home would be
to condition services upon the parent's removal of the risk to staff,
i.e., when staff are there the menacing boyfriend shall not be in the
home, etc. While typically it would be a violation of IDEA to condition
services on the parent providing the student with medication, waiving
potential liability, providing transportation, volunteering, etc., the
condition here would be different in nature. Here, the condition
constitutes good public policy, and no way undercuts parental rights,
improves the environment for services to be provided to the child, and
typically would not be at all burdensome to the parent. Of course, if the
parent is irresponsible and the condition is not met, the child is the one
who loses which may bring us back to Protective Services (or possibly
juvenile court which also has authority in child abuse/neglect
situations).
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IPPSE:
Institute for Problem Prevention
in Special Education
2143 Commons Parkway
Okemos, MI 48864-3987
