No. 15-30164 IN THE UNITED STATES COURT OF … · FOR THE EASTERN DISTRICT OF LOUISIANA, NEW ORLEANS CIVIL ACTION NO. 2:13-CV-06068 Honorable Nannette Jolivette Brown,

No. 15-30164

_____________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________________

SETH B., by and through his parents and next friends,

Donald B. and Cheryl B.; DONALD B.; CHERYL B.

Plaintiffs-Appellants,

v.

ORLEANS PARISH SCHOOL BOARD,

Defendant-Appellee.

_____________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA, NEW ORLEANS

CIVIL ACTION NO. 2:13-CV-06068

Honorable Nannette Jolivette Brown, United States District Judge

_____________________________

BRIEF FOR THE AMICI CURIAE NATIONAL DISABILITY RIGHTS

NETWORK, THE NATIONAL FEDERATION OF THE BLIND, AND THE

NATIONAL ASSOCIATION OF THE DEAF, IN SUPPORT OF

PLAINTIFFS-APPELLANTS AND FOR REVERSAL OF THE DISTRICT

COURT’S ORDER

(WITH CONSENT OF THE PARTIES)

ELLEN SAIDEMAN CONSTANCE WANNAMAKER

LAW OFFICE OF ELLEN SAIDEMAN DISABILITY RIGHTS TEXAS

7 Henry Drive 300 E. Main, Suite 205

Barrington, Rhode Island 02806 El Paso, Texas 79901

(401) 258-7276 (Phone) (915) 542-0585 (Phone)

(401) 709-0213 (Fax) (915) 542-2676 (Fax)

[email protected] [email protected]

Counsel for Amici Curiae

Case: 15-30164 Document: 00513029931 Page: 1 Date Filed: 05/04/2015

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CERTIFICATE OF INTERESTED PERSONS

(1) Seth B., by and through his parents and next friends, Donald B. and

Cheryl B., Donald B. and Cheryl B. v. Orleans Parish School Board, Case No.

2:13-CV-6068.

(2) The undersigned counsel of record certifies that the following listed

persons and entities described in the fourth sentence of Rule 28.2.1 have an interest

in the outcome of this case. These representations are made in order that the

judges of this Court may evaluate possible disqualification or recusal.

Amici curiae in support of Plaintiffs-Appellants:

National Disability Rights Network

National Federation of the Blind

National Association of the Deaf

Council of Parent Attorneys and Advocates, Inc.

Plaintiffs-Appellants:

Seth B.

Cheryl B.

Don B.

Defendant-Appellee:

Orleans Parish School Board

Attorneys:

For amici curiae National Disability Rights Network:

Ellen Saideman

Constance Wannamaker

For amici curiae Council of Parent Attorneys and Advocates, Inc.:

Jon Zimring

Selene Almazan-Altobelli


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For Plaintiffs-Appellants:

The Advocacy Center (Louisiana)

Ronald K. Lospennato

Sarah Voigt

Debra Weinberg

For Defendant-Appellee:

Wayne T. Stewart

Judges below: Honorable Nannette J. Brown, United States District Judge for the Eastern

District of Louisiana

Honorable Daniel K. Knowles, III, United States Magistrate Judge for the

Eastern District of Louisiana

/s/ Constance Wannamaker

CONSTANCE WANNAMAKER


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RULE 29(c)(5) STATEMENT

Pursuant to Fed. R. App. P 29(c)(5), amici certify that: (A) no party’s

counsel authored this brief in whole or in part; (B) no party or party’s counsel

contributed money that was intended to fund preparing or submitting the brief; and

(C) no person—other than the amicus curiae, its members, or its counsel—

contributed money that was intended to fund preparing or submitting the brief.

RULE 29(a) STATEMENT OF CONSENT

Pursuant to Fed. R. App. P 29(a), no motion for leave to file this brief is

required because all parties have consented to its filing.


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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ......................................................... i

RULE 29(c)(5) STATEMENT ................................................................................ iii

RULE 29(a) STATEMENT OF CONSENT ........................................................... iii

TABLE OF CONTENTS .......................................................................................... iv

TABLE OF AUTHORITIES .................................................................................... vi

STATEMENT OF IDENTITY, INTEREST, AND SOURCES OF

AUTHORITY TO FILE ............................................................................................ 1

SUMMARY OF ARGUMENT ................................................................................. 4

ARGUMENT ............................................................................................................. 7

I. The Publicly-Funded IEE is an Essential Procedural

Safeguard for Implementing the IDEA, by Enabling

Parents to Obtain Relevant Expert Information

Needed for Meaningful Participation in Their

Children’s Education ............................................................................. 7

II. Hearing Officers and Courts Must Review a School

District’s Unilateral Decision to Deny Parents a

Publicly-Funded IEE, and Have a Duty to Carefully

Examine the Parents’ Claims that the Denial Deprives

Them of an IEE ................................................................................... 12

III. Allowing School Districts to Apply Inappropriate and

Irrelevant Criteria to IEEs While Shifting the Burden

of Proof to Parents Would Deprive Parents of Their

Right to an IEE .................................................................................... 16

A. School Districts Bear the Burden of

Establishing that Their Criteria are Appropriate


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and Not Inconsistent with the Parent’s Right to

an IEE ........................................................................................ 17

B. Hearing Officers and Courts Must Ensure that

School Districts Only Use Criteria Relevant and

Material to the Evaluation in Reviewing IEEs

and that Those Criteria Do Not Deprive the

Parents of an IEE....................................................................... 19

1. Only agency criteria relevant to

conducting the IEE requested by the

parent may be imposed ................................................... 20

2. The school district’s criteria may not be

deprive the parent of an IEE and may not

constrain the evaluator’s professional

judgment ......................................................................... 23

IV. Because the Regulation Requires that the IEE be at

No Cost to the Parents, Parents Have the Right to an

Order Directing the School District to Pay for an IEE

Before the Evaluator is Retained, and Therefore, a

Determination Regarding the IEE’s Cost ............................................ 23

CONCLUSION ........................................................................................................ 29

CERTIFICATE OF SERVICE ................................................................................ 31

CERTIFICATE OF ELECTRONIC COMPLIANCE ............................................. 33

CERTIFICATE OF COMPLIANCE ....................................................................... 34


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TABLE OF AUTHORITIES

CASES

Alief Indep. Sch. District v. C.C. ex rel. Kenneth C.,

655 F.3d 412 (5th Cir. 2011) ................................................................................ 2

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

548 U.S. 291 (2006) ............................................................................................ 18

Burlington School Comm. v. Dep’t of Educ.,

471 U.S. 359 (1983) .......................................................................................... 4, 7

Chevron USA, Inc. v. Natural Resources Defense Council,

467 U.S. 837 (1984) ............................................................................................ 14

City of Cincinnati,

114 LRP 50642 (Ohio SEA 2014) ................................................................ 18, 27

Dunmore Sch. Dist.,

53 IDELR 107 (July 3, 2009) ............................................................................. 27

E.M. ex rel E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin. Hearings,

758 F.3d 1162 (9th Cir. 2014) ............................................................................ 14

El Paso Indep. Sch. Dist. v. R.,

591 F.3d 417 (5th Cir. 2009) .............................................................................. 15

Evans v. Dist. No. 17,

841 F.2d 824 (8th Cir. 1988) .............................................................................. 16

Florence Co. Sch. Dist. IV v. Carter,

510 U.S. 7 (1993) ................................................................................................ 16

G.D. v. Westmoreland Sch. Dist.,

930 F.2d 942 (1st Cir. 1991) ............................................................................... 16

Holmes v. Millcreek Twp. Sch. Dist. 591,

205 F.3d 583 (3d Cir. 2000) ......................................................................... 15, 20


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Johnson v. La. Dep’t of Educ.,

330 F.3d 362 (5th Cir. 2003) ................................................................................ 2

Lakeville Indep. Sch. Dist. #194,

53 IDELR 206 (Minn. SEA 2009) ................................................................ 14, 21

Lauren W. ex rel Jean W. v. DeFalminis,

480 F.3d 259 (3d Cir. 2007) ............................................................................... 21

M.V. v. Shenedehowa Central School District, No. 1-11-CV-0071GTS

2013 WL 936438 (N.D.N.Y. Mar. 8, 2013) ....................................................... 27

Michael P. v. Dep’t of Educ.,

656 F.3d 1057 (9th Cir. 2011) ............................................................................ 12

Morgan Stanley Capital Grp., Inc. v. Public Util. Dist. No. 1,

554 U.S. 527 (2008) ............................................................................................ 14

Pace v. Bogalusa City Sch. Bd.,

403 F.3d 272 (5th Cir. 2005) ................................................................................. 2

Pajaro Valley Unified Sch. Dist. v. J.S.,

47 IDELR 12 (N.D. Cal. Dec. 15, 2006) ............................................................ 10

Philip C. ex rel A.C. v. Jefferson Cty. Bd. of Educ.,

701 F.3d 691 (11th Cir. 2012) .............................................................................. 9

S.H. ex rel Durrell v. Lower Merion Sch. Dist.,

729 F.3d 248 (3d Cir. 2013) ............................................................................... 10

Schaffer v. Weast,

546 U.S. 49 (2005) .......................................................................... 5, 7, 17, 18, 26

T.S. v. Bd. of Educ. of Town of Ridgefield,

10 F.3d 87 (2d Cir. 1993) ............................................................................ 15, 16

West Baton Rouge Parish School Bd. v. Deshotel, No.11-0053-SDD-SCR

2014 WL 1327851 (M.D. La. Mar. 31, 2014) ................................................... 22


viii

Winkelman v. Parma City Sch. Dist.,

550 U.S. 516 (2007) .................................................................................. 6, 18, 26

STATUTES AND REGULATIONS

20 U.S.C. § 1400(d)(1)(A) ......................................................................................... 4

20 U.S.C. § 1400(d)(1)(B) ......................................................................................... 4

20 U.S.C. § 1400(9) ................................................................................................. 22

20 U.S.C. § 1414(a) ............................................................................................. 5, 20

20 U.S.C. § 1414(a)(1)(A) ......................................................................................... 5

20 U.S.C. § 1414(a)(2)(B)(ii) .................................................................................. 22

20 U.S.C. § 1414(b) ............................................................................................. 5, 20

20 U.S.C. § 1415 ........................................................................................................ 5

20 U.S.C. § 1415(b)(1)............................................................................................... 5

20 U.S.C. § 1414(c) ............................................................................................. 5, 20

20 U.S.C. § 1414(d) ................................................................................................... 5

34 C.F.R. § 300.502 ............................................................................................. 5, 17

34 C.F.R. § 300.502(a)(3)(i) .................................................................................... 22

34 C.F.R. § 300.502(a)(3)(ii) ................................................................................... 27

34 C.F.R. § 300.502(b) ............................................................................................ 21

34 C.F.R. § 300.502(b)(i) ......................................................................................... 26


ix

34 C.F.R. § 300.502(b)(2)(ii) ............................................................................... 6, 13

34 C.F.R. § 300.502(b)(4) ........................................................................................ 24

34 C.F.R. § 300.502(c)(1) ........................................................................................ 20

34 C.F.R. § 300.502(e) ......................................................................................... 6, 13

34 C.F.R. § 300.502(e)(1) ........................................................................................ 20

OTHER SOURCES

Alison DeNisco, Navigating special education disputes in school:

Attorneys advise how parents and school districts can work

together to serve students, District Administration (October 2013) .................... 9

Ashlie D’Errico Surrur, Placing the Ball in Congress’ Court: A

Critical Analysis of the Supreme Court’s Decision in Arlington

Central School District Board of Education v. Murphy, 27 J. Nat’l

Admin. L. Judiciary 547 (2007) ......................................................................... 11

David M. Engel, Law, Culture, and Children with Disabilities, 1991

Duke L.J. 166 (1991) ............................................................................................ 8

Debra Chopp, School Districts and Families Under the IDEA:

Collaborative in Theory, Adversarial in Fact, 32 J. Nat’l Ass’n

Admin L. Judiciary 423 (2012) ................................................................ 8, 10, 18

DOE Guidance to Final IDEA 2004 Regulations, 71 Fed. Reg. 46540

(Aug. 14, 2006) ................................................................................................... 25

Elisa Hyman, How IDEA Fails Families Without Means: Causes and

Corrections from the Frontlines of Special Education Lawyering,

20 Am. U. J. Gender Soc. Pol’y & L. 107 (2011) .............................................. 10

Gregory O’Brien & Joanne Pearson, Autism and Learning Disability,

8 Autism 125 (2004) ........................................................................................... 25


x

Jeannie F. Lake & Bonnie S. Billingsley, An Analysis of Factors that

Contribute to Parent-School Conflict in Special Education, 21

Remedial & Special Educ. 240 (2000) ........................................................... 8, 11

Letter to Anonymous, 22 IDELR 637 (OSEP 1995) ................................................ 23

Letter to Petska, 35 IDELR 191 (OSEP 2001) ........................................................ 19

Letter to Wessels, 16 IDELR 735 (OSEP 1990) ...................................................... 27

National Association of School Psychologists, “Preventing and

Resisting Administrative Pressure to Practice Unethically,” Ethics

Advisory Bulletin. ............................................................................................... 11

National Association of School Psychologists, Principles for

Professional Ethics, Principle II.3 & Principle III.4 ........................................... 25

Ruth Colker, California Year in Review: 2013 Special Education ALJ

Decisions, 34 J. Nat’l Ass’n Admin. Law Judiciary 47 (2014) ............................ 8


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STATEMENT OF IDENTITY, INTEREST, AND SOURCES OF

AUTHORITY TO FILE

The National Disability Rights Network (“NDRN”) is the non-profit

membership association of protection and advocacy (“P&A”) agencies that are

located in all 50 states, the District of Columbia, Puerto Rico, and the United States

Territories and include a P&A affiliated with the Native American Consortium

which includes the Hopi, Navajo and Piute Nations in the Four Corners region of

the Southwest. P&A agencies are authorized under various federal statutes to

provide legal representation and related advocacy services, and to investigate abuse

and neglect of individuals with disabilities in various settings. The P&A system

comprises the nation’s largest provider of legally-based advocacy services for

persons with disabilities.

The Advocacy Center, counsel for plaintiffs in this case, is a member

agency. NDRN supports its members through the provision of training and

technical assistance, legal support, and legislative advocacy, and works to create a

society in which people with disabilities are afforded equality of opportunity and

are able to fully participate by exercising choice and self-determination. Special

education cases make up a large percentage of the P&A networks case work. The

P&A agencies handled over 10,000 special education matters in the most recent

year for which data is available.


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NDRN has an extensive history as amicus curiae, including Fifth Circuit

education cases. See, e.g., Alief Indep. Sch. District v. C.C. ex rel. Kenneth C., 655

F.3d 412 (5th Cir. 2011); Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir.

2005); Johnson v. La. Dep’t of Educ., 330 F.3d 362 (5th Cir. 2003).

The National Federation of the Blind (“NFB”) is the largest organization

of blind and low-vision people in the United States. Founded in 1940, the NFB has

grown to over fifty-thousand members. The organization consists of affiliates and

local chapters in every state, the District of Columbia, and Puerto Rico. The NFB

devotes significant resources toward advocacy, education, research, and

development of programs to integrate the blind into society on terms of equality

and independence, and to remove barriers and change social attitudes, stereotypes

and mistaken beliefs about blindness that result in the denial of opportunity to

blind people. The NFB actively engages in litigation and advocacy to protect the

civil rights of the blind, including the right to education of blind children.

The National Association of the Deaf (“NAD”), founded in 1880, is the

oldest civil rights organization in the United States, and is the nation’s premier

organization of, by and for deaf and hard of hearing individuals. The mission of the

NAD is to preserve, protect, and promote the civil, human and linguistic rights of

48 million deaf and hard of hearing individuals in the country. The NAD

endeavors to achieve true equality for its constituents in all aspects of society


3

including but not limited to education, employment, and ensuring full access to

programs and services. Serving all parts of the USA, the NAD is based in Silver

Spring, MD and has dedicated much of its work over its 135 years to ensuring the

appropriate education of deaf and hard of hearing children.

Amici have advocated on behalf of students and their families on education

issues for decades. Amici frequently assist parents of students with disabilities in

obtaining Independent Educational Evaluations (IEEs). Amici found IEEs useful

in the collaborative process, often providing new information about students and

their educational needs that enables school districts to find students eligible for

IDEA and to improve Individual Education Plans. More rarely, attorneys and

advocates have used IEEs in due process hearings.

Amici submit this brief to provide additional information about of the

importance of a publicly-funded IEE for implementing IDEA, as the IEE provides

parents the expert information that they need to participate as partners in their

children’s education. Amici also explain how the district court’s decision, if not

reversed, could eliminate the IEE as a procedural safeguard of any kind for

children with disabilities and their parents.

Amici have authority to file pursuant to Fed. R. App. P. 29(a), as counsel for

both the Plaintiffs-Appellants and the Defendant-Appellee have consented to the

filing of this brief.


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SUMMARY OF ARGUMENT

This case is one of first impression before this Court, and indeed, any Circuit

Court of Appeal. It raises the question of whether a school district that has agreed

to fund an Independent Educational Evaluation (IEE) may refuse to pay the bill—

based on the district’s assertion that the IEE does not meet agency criteria—

without careful scrutiny of the parents’ claims that its criteria are irrelevant,

immaterial, and inconsistent with their right to an IEE. Amici adopt the Plaintiffs-

Appellants’ Statement of Facts.

Congress has made clear that the purpose of the Individuals with Disabilities

Education Act (IDEA) is to “ensure that all children with disabilities have

available to them a free appropriate public education [(FAPE)] that emphasizes

special education and related services designed to meet their unique needs and

prepare the child for further education, employment and independent living,” 20

U.S.C. § 1400(d)(1)(A), and “to ensure that the rights of children with disabilities

and parents of such children are protected.” 20 U.S.C. § 1400(d)(1)(B).

Although IDEA sets out a cooperative process for parents and school

officials, Congress recognized that this process “would not always produce a

consensus between the school officials and the parents, and that in any dispute the

school officials would have a natural advantage.” Burlington School Comm. v.

Dep’t of Educ., 471 U.S. 359, 368–69 (1983). To address this imbalance,


5

Congress “incorporated an elaborate set of what it labeled ‘procedural safeguards’

to insure full participation of parents and proper resolution of substantive

disagreements.” Id. See 20 U.S.C. § 1415.

Under IDEA’s statutory scheme, accurate evaluations are essential. Before a

child can get any services under IDEA, the child must be evaluated and found

eligible for IDEA services. 20 U.S.C. § 1414(a)(1)(A). The statute sets out

requirements for both evaluations and reevaluations, including review by the

Individual Education Program team (“IEP Team”).1 20 U.S.C. § 1414(a), (b), &

(c). These evaluations are then used to determine eligibility and develop the

Individual Education Program (IEP) that is the foundation for FAPE. 20 U.S.C. §

1414(d). IDEA specifically provides that parents have a right to an IEE. 20 U.S.C.

§ 1415(b)(1). The United States Department of Education (“DOE”) promulgated

its regulation detailing the IEE requirement to ensure that parents can participate

fully and meaningfully in the IEP process. 34 C.F.R. § 300.502.

The Supreme Court has recognized that the parents’ right to an IEE “ensures

parents access to an expert who can evaluate all the materials that the school must

make available, and who can give an independent opinion.” Schaffer v. Weast, 546

U.S. 49, 60–61 (2005). It also held that parents may not be required to incur

1 The IEP Team includes the parents and at least three school representatives: a regular

education teacher, a special education teacher, and a school district representative. 20 U.S.C. §

1414(d).


6

expenses to access the rights guaranteed by IDEA. Winkelman v. Parma City Sch.

Dist., 550 U.S. 516, 532-33 (2007).

The district court’s decision guts the procedural safeguard of the IEE,

shifting the burden from the school district to the parents and creating

insurmountable obstacles for the vast majority of families receiving special

education services under IDEA. For the IEE to be a meaningful procedural

safeguard, courts should insist on strict adherence to the regulation, which requires

the district to initiate a hearing and bear the burden of proof if it disputes a parent’s

IEE. See 34 C.F.R. § 300.502(b)(2)(ii).

When a school district asserts that an IEE “did not meet agency criteria,”

and refuses to pay for it, a hearing officer or court must carefully scrutinize and

then decide whether those “agency criteria” are permissible criteria under IDEA

and its regulations. The court or hearing officer must also carefully consider and

decide whether those criteria are “inconsistent with the parent’s right to an [IEE].”

34 C.F.R. § 300.502(b)(2)(ii); 34 C.F.R. § 300.502(e). By shifting the burden to

the parents, the district court here abdicated its responsibility to review

substantively the district’s justifications for denying payment. Finally, a parent

cannot be obligated to incur any expenses of an IEE.

As with other rights and protections provided by the IDEA, an IEE should

not depend on a parent’s level of education, sophistication, or ability to pay or


7

access counsel. The district court’s decision reinforces the power imbalance

between parents and school districts, particularly for those parents who cannot

afford to retain counsel or experts, or pay the up-front costs of an IEE. This Court

should reverse district court’s decision as contrary to IDEA.

ARGUMENT

I. The Publicly-Funded IEE is an Essential Procedural Safeguard for

Implementing the IDEA, by Enabling Parents to Obtain Relevant

Expert Information Needed for Meaningful Participation in Their

Children’s Education

Although the IDEA’s core is “the cooperative process it establishes between

parent and schools,” school officials, who include professionals trained in special

education, have “a natural advantage.” Schaffer, 546 U.S.at 53; Burlington, 471

U.S. at 368. For parents to participate meaningfully in IEP team meetings, they

must be seen as equal partners, which requires access to independent professionals

to evaluate their children and inform them about their children’s educational needs.

Without access to independent experts, parents find that school officials,

who see themselves as experts, dismiss their opinions about their children’s needs.

When attending IEP meetings, parents often find themselves vastly outnumbered

by school district personnel. One researcher noted:

Often, but not always, parents feel that their own observations or

requests are given little weight and that decisions are based primarily

on the recommendations of the professionals. Their own close


8

relationship with the child is viewed as a liability rather than an as an

asset – a liability that renders their judgment inherently suspect.2

Another researcher found that hearing officers often gave little weight to the

testimony of mothers, including even a licensed speech and language therapist who

had worked for the school district, and the hearing officers often described the

mothers “in a disparaging light.” 3

Moreover, although parents may know their children and their struggles in

school very well, they are often unfamiliar with “the technical language of psycho-

educational testing and educational interventions,” used by the school staff with

the result that they find themselves “shunted aside during the IEP process as they

are bombarded with professional terminology in which they are not conversant.”4

Parents are also often unversed in the IDEA’s requirements. As one parent noted,

“What is really hard is we go in there and . . . the special education director . . .

knows the rules and regulations, everybody else knows the rules and regulations.”5

Parents find it “difficult to know if the services offered for their children were

really appropriate without adequate knowledge.”6 Parents need access to experts to

2 David M. Engel, Law, Culture, and Children with Disabilities, 1991 Duke L.J. 166, 188 (1991). 3 Ruth Colker, California Year in Review: 2013 Special Education ALJ Decisions, 34 J. Nat’l

Ass’n Admin. Law Judiciary 47, 63 (2014). 4 Debra Chopp, School Districts and Families Under the IDEA: Collaborative in Theory,

Adversarial in Fact, 32 J. Nat’l Ass’n Admin L. Judiciary 423, 434 (2012). 5 Jeannie F. Lake & Bonnie S. Billingsley, An Analysis of Factors that Contribute to Parent-

School Conflict in Special Education, 21 Remedial & Special Educ. 240, 245 (2000). 6 Id. at 249.


9

review and supplement the school evaluations and to ensure that school evaluations

are accurate and complete.

“[T]he right to a publicly financed IEE guarantees meaningful [parental]

participation throughout the development of the IEP.” Philip C. ex rel A.C. v.

Jefferson Cty. Bd. of Educ., 701 F.3d 691, 698 (11th Cir. 2012) (emphasis added).

“Since the inception of the IDEA in 1975, the Secretary of Education has

promulgated the regulations . . . specifying that an IEE obtained by parents, subject

to certain exceptions will be ‘at public expense.’” Id. at 694. An IEE, a second

opinion by an outside evaluator, provides parents with an important counterweight

to the school district’s evaluation.

IEEs often provide valuable information that assists the parents and the

school district in collaborating to provide FAPE to children. An experienced

special education attorney advised school district administrators recently that:

[IEEs] from an outside group also help avoid litigation. If the

independent evaluation says the child needs the same services the

school is saying, parents are willing to accept it much more quickly.

And if it comes back and says the child needs more than what the

school is recommending, it helps the school system regroup and

rethink providing the services.7

7 Alison DeNisco, Navigating special education disputes in school: Attorneys advise how

parents and school districts can work together to serve students, District Administration

(October 2013), at http://districtadministration.com/articlee/navigating-special-education-

disputes-schools (Apr. 20,2015).


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The IEE’s critical importance is demonstrated by numerous cases in which

IEEs have determined that the school’s evaluation was wrong or incomplete. See,

e.g., S.H. ex rel Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 254 (3d Cir.

2013) (IEE determined student did not have a learning disability, leading to a

child’s removal from special education); Pajaro Valley Unified Sch. Dist. v. J.S.,

47 IDELR 12 (N.D. Cal. Dec. 15, 2006) (IEE needed to adequately explore

pervasive developmental disability and nonverbal learning disabilities).

It is “very difficult for a parent without financial resources to exercise this

right”8 to an IEE, and millions of parents lack those resources. DOE has found that

about one fourth of children eligible for special education have family incomes

below the poverty line and as many as two-thirds have family incomes of $50,000

or less,9 leaving them without the resources to pay thousands of dollars for

evaluations. Many may not even know of their right to an IEE, which is often

buried in the lengthy “procedural safeguards” document.10 And while some school

districts will provide IEEs readily, too often parents find that districts refuse to

provide IEEs, or, even if they agree to an IEE, they “often move to choose the

8 Elisa Hyman, How IDEA Fails Families Without Means: Causes and Corrections from the

Frontlines of Special Education Lawyering, 20 Am. U. J. Gender Soc. Pol’y & L. 107, 127

(2011). 9 Chopp, supra n. 3 at 437, n. 59. 10 Chopp, supra n. 3, at 436.


11

evaluator themselves or to limit the scope of the evaluation in order to control

costs,”11 As one commentator noted:

Unfortunately, “the vast majority of parents whose children require

the benefits and protections provided in the IDEA lack knowledge

about the educational resources available to their child and the

sophistication to mount an effective case against a [district refusal to

provide an IEE or to restrict an IEE].” Thus, the parents who need an

expert the most will likely be unable to obtain one, and in effect, the

level playing field imagined by Congress is now increasingly

uneven.12

Additionally, parents are often concerned that school officials, as

“gatekeepers” of the districts’ funds, make decisions based on financial constraints

rather than their children’s unique educational needs.13 Too frequently these

concerns are warranted. One study found that 14% of school psychologists

reported being pressured to violate federal or state law, including determining a

student ineligible for special education although he met eligibility requirements

and omitting recommendations for support services due to cost.14 The IEE

provides an independent expert whose sole focus is determining the unique needs

of a particular child; that expert’s opinion can assist both the parents and school

officials in making informed decisions.

11 Id. 12 Ashlie D’Errico Surrur, Placing the Ball in Congress’ Court: A Critical Analysis of the

Supreme Court’s Decision in Arlington Central School District Board of Education v. Murphy,

27 J. Nat’l Admin. L. Judiciary 547, 600 (2007). 13 Lake, supra n.4 at 246. 14 National Association of School Psychologists, “Preventing and Resisting Administrative

Pressure to Practice Unethically,” Ethics Advisory Bulletin, at 2, available at

www.napasonline.org/standards/ethics/Administrative_Pressure.pdf.


12

The district court’s reliance on state regulations as a reason for denying an

IEE is misplaced, as those regulations may violate IDEA. Because parents have

the right to challenge state regulations as violating IDEA, they must also have a

right to an IEE by an expert who can assist them in that endeavor. See, e.g.,

Michael P. v. Dep’t of Educ., 656 F.3d 1057, 1068 (9th Cir. 2011) (holding

Hawaii’s regulation relying exclusively on the severe discrepancy model for

eligibility for Severe Learning Disabilities violated IDEA).

Here, educated parents represented by counsel have been stymied for years

in their efforts to obtain reimbursement for an IEE after the school district agreed

they were entitled to an IEE. The district court’s decision, which failed to give the

required scrutiny required to Plaintiffs’ claims that the Defendant deprived them of

their rights to an IEE, should be reversed.

II. Hearing Officers and Courts Must Review a School District’s Unilateral

Decision to Deny Parents a Publicly-Funded IEE, and Have a Duty to

Carefully Examine the Parents’ Claims that the Denial Deprives Them

of an IEE

The relevant federal regulation explicitly requires courts or hearing officers

to make an independent analysis of a school district’s justifications for denying a

parent an IEE or reimbursement for an IEE. DOE provided for a district-initiated

due process hearing as the procedural protection for an IEE if the district wishes to

contest the IEE before it occurs. If a district agrees to an IEE and then wishes to

contest payment for it, the relevant regulation requires the district to “[e]nsure that


13

an independent educational evaluation is provided at public expense, unless the

agency demonstrates in a hearing . . . that the evaluation obtained by the parent did

not meet agency criteria.” 34 C.F.R. § 300.502(b)(2)(ii) (emphasis added).

The regulation further explains that “the criteria under which the evaluation

is obtained, including the location of the evaluation and the qualifications of the

examiner, must be the same as the criteria that the public agency uses when it

initiates an evaluation, to the extent those criteria are consistent with the parent’s

right to an independent educational evaluation.” 34 C.F.R. § 300.502(e)

(emphasis added). Thus, to prevail in a hearing, the school district must

demonstrate both that the IEE did not meet agency criteria and that those criteria

are consistent with the parent’s right to an IEE.

Here, neither the hearing officer nor the district court judge ever determined

whether any of the criteria applied by the school district were consistent with the

parent’s right to an IEE as the regulations require, relying instead on the school

district’s self-serving assertion that its criteria were not met. Their failure to

independently analyze the district’s criteria is contrary to the plain language of the

regulations: If all the school district had to do to decline payment for an IEE was

assert noncompliance with its criteria, there would be no need for the hearing

mandated by 34 C.F.R. § 300.502(b)(2)(ii). The regulation explicitly provides


14

jurisdiction to hearing officers regarding any claim that a school district has

deprived a parent of an IEE, including claims about “agency criteria.”

DOE’s regulations regarding IEEs are entitled to Chevron deference as they

are a proper exercise of DOE’s regulatory authority, and they are not “arbitrary,

capricious, or manifestly contrary to the statute.” See Morgan Stanley Capital

Grp., Inc. v. Public Util. Dist. No. 1, 554 U.S. 527, 558 (2008); Chevron USA, Inc.

v. Natural Resources Defense Council, 467 U.S. 837, 843–44 (1984); E.M. ex rel

E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin. Hearings, 758 F.3d

1162, 1174–75 (9th Cir. 2014).

Further, the requirement of a district-initiated hearing and careful oversight

by hearing officers and courts is essential because school districts may err in

applying their criteria. See, e.g., Lakeville Indep. Sch. Dist. #194, 53 IDELR 206

(Minn. SEA 2009) (holding that a school district had erred in determining that tests

over ten years old were invalid).15

While the district court expressed concern that it lacked the “’specialized

knowledge and experience,” that school officials have, ROA.1234, such expertise

is not necessary to decide IEE issues. Courts routinely adjudicate cases in which

school districts claim their evaluations are appropriate and IEEs are not required.

15 In that case, the school district had paid for the assessment but had refused to consider it at the

IEP meeting.


15

See, e.g., Holmes v. Millcreek Twp. Sch. Dist. 591, 205 F.3d 583, 591 (3d Cir.

2000) (school district psychologist’s evaluation of a deaf student held appropriate).

The type of deference the district court applied incentivizes protracted

litigation and stymies parents’ efforts to obtain appropriate educational services for

their children. As this Court has noted, “The IDEA envisions that the parties to a

dispute should resolve their disputes cooperatively.” El Paso Indep. Sch. Dist. v.

R., 591 F.3d 417, 425 (5th Cir. 2009). The requirement that the district timely

initiate a hearing gives school districts an incentive to resolve any dispute

regarding an IEE cooperatively. Otherwise, a school district could stonewall

parents indefinitely without any penalty and deter parents from taking action to

protect their rights. Time is of the essence in obtaining evaluations, as they are the

foundation for FAPE.

Courts should not encourage school districts to scour IEEs for possible

defects and launch years of litigation before paying for an IEE when a parent is

entitled to an IEE. The school district is free to contest the IEE on its merits, both

at IEP meetings and due process and other legal proceedings. Significantly, the

district’s stakes are low in paying for the IEE; payment is not a “School District

Stamp of Approval.” When provided at an IEP meeting, all the school district

needs to do is consider the IEE; it need not adopt any of its recommendations or

discuss its substance. See T.S. v. Bd. of Educ. of Town of Ridgefield, 10 F.3d 87,


16

89–90 (2d Cir. 1993); G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947 (1st Cir.

1991); Evans v. Dist. No. 17, 841 F.2d 824, 830 (8th Cir. 1988).

Courts merely require that school evaluations be appropriate, not perfect,

when parents challenge the school evaluation and seek public funding for an IEE.

It would be contrary to the IDEA and grossly unfair to parents to impose a higher

standard when assessing a parent’s IEE, as the goal of the IEE is to level the

playing field between school districts and parents, not magnify the gap.16 See also

Florence Co. Sch. Dist. IV v. Carter, 510 U.S. 7, 14 (1993) (allowing tuition

reimbursement for a school that did not meet state standards, describing it “ironic”

for a school district to insist on applying state standards when it failed to meet the

student’s needs in the first place).

III. Allowing School Districts to Apply Inappropriate and Irrelevant

Criteria to IEEs While Shifting the Burden of Proof to Parents Would

Deprive Parents of Their Right to an IEE

The ruling below encourages school districts to become adversarial when

presented with an IEE and applies inappropriate and irrelevant criteria to parents’

IEEs, impeding parents’ access to publicly-funded IEEs. For the IEE to be a

meaningful procedural protection, school districts must bear the burden of proof on

IEE issues and must be limited to criteria relevant and material to conducting

particular assessments.

16 In fact, a lower standard would be appropriate due to the disparities in resources between the

parties.


17

A. School Districts Bear the Burden of Establishing that Their

Criteria are Appropriate and Not Inconsistent with the Parent’s

Right to an IEE

The DOE regulations, by requiring a district-initiated hearing in IEE matters,

place the burden of proof on the school district. See Schaffer, 546 U.S. at 62. See

also 34 C.F.R. § 300.502. The district court erred in shifting the burden to the

plaintiffs.

DOE regulations logically place the burden on school districts. As the

Supreme Court noted “’[t]he ordinary rule, based on considerations of fairness

does not place the burden upon a litigant of establishing facts peculiarly within the

knowledge of his adversary.’” Schaffer, 546 U.S. at 60. This consideration is

particularly true in the IEE context, where the school districts perform evaluations,

sometimes hire outside evaluators and expert witnesses, and design the criteria for

the evaluations. Districts also set cost restrictions without being bound by them, as

they typically use salaried professionals to do the evaluations, as was done here.17

School districts also have substantial advantages when they hire private

evaluators. They have the funds to hire the experts of their choice, and providers

are willing to enter into contracts even if they have to wait for payment until the

17 The defendant here provided inadequate notice of the requirements for IEEs, as providing

parents, many lacking even a high school diploma, a link to an extensive document is inadequate.

Further, omitting checklists available to district evaluators is contrary to the collaborative

process envisioned by the statute.


18

evaluation is completed. They have the economies of scale, as they may contract

for multiple evaluations. Many districts have insurance policies that fund both

experts and attorneys.18 They have attorneys trained in defending school districts

to advise them on establishing criteria.19

In contrast, parents often struggle to find evaluators willing to conduct IEEs.

First, most parents are without the resources to fund an IEE themselves. Second,

usually evaluators are unwilling to provide evaluations without the certainty of

prompt payment. Third, many evaluators consult with school districts and are

unwilling to testify for parents at due process proceedings because of realistic fears

that they may be blackballed from subsequent consulting work. Finally, most

parents lack access to attorneys, as the Supreme Court acknowledged in holding

parents could proceed pro se on IDEA claims. See Winkelman, 550 U.S. at 535.

The Supreme Court noted that school districts have a “natural advantage in

information and expertise,” but pointed to the IEE as giving the parent an expert to

counter the school district’s expertise. Schaffer, 546 U.S. at 60. The importance of

the IEE has grown since then, as the Supreme Court later ruled that expert witness

fees are not available under IDEA. See Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy, 548 U.S. 291, 304 (2006). Thus, to even attempt to level the playing

18 The author noted that in Michigan, a school district’s insurance policy covers up to $100,000

for due process proceedings. Chopp, supra n.3, at 456. 19 See, e.g., City of Cincinnati, 114 LRP 50642 (Ohio SEA 2014) (noting school used

“recommendation and advice from a law firm active in education law” in developing its criteria).


19

field, it is essential that the school district bear the burden of proof, as the

regulations provide.

B. Hearing Officers and Courts Must Ensure that School Districts

Only Use Criteria Relevant and Material to the Evaluation in

Reviewing IEEs and that Those Criteria Do Not Deprive the

Parents of an IEE

Without close scrutiny of the agency criteria used by school districts, school

districts may be tempted to impose criteria designed to thwart the parent’s right to

an IEE that would be useful in challenging school districts. For example, four

Wisconsin school districts barred evaluators with histories of advocating for

parents and serving as expert witnesses for parents from doing IEEs. DOE

determined that these criteria were inconsistent with the parents’ right to an IEE.

DOE said these “are not qualifications necessary to perform an evaluation. These

qualification are unrelated to an examiner’s ability to conduct an educational

evaluation and undermine the parent’s ability to obtain an independent evaluation.”

Letter to Petska, 35 IDELR 191 (OSEP 2001).

Here, the district court simply accepted at face value defendant’s claims that

the IEE did not meet its criteria without examining whether such criteria were

related to the IEE and whether they undermined the parent’s ability to obtain an

IEE.


20

1. Only agency criteria relevant to conducting the IEE

requested by the parent may be imposed.

Although the agency criteria “must be the same as the criteria that the

agency uses when it initiates an evaluation,” not all criteria are relevant to the

substance of the IEE.20 34 C.F.R. § 300.502(e)(1). The plain reading of the

regulation, which only mentions the location and the examiner’s qualifications as

specific criteria, is that school districts may impose only criteria that directly relate

to conducting diagnostic examinations. See id. The language “initiates an

evaluation” references the requirements of 20 U.S.C. § 1414(a), (b), and (c), which

govern evaluations. Thus, IEE evaluators must also, among other things, obtain

parental consent and use a variety of assessment tools. Courts use these criteria in

determining whether a school district’s IEE is appropriate. See, e.g., Holmes, 205

F.3d at 591.

Here, the district court improperly applied irrelevant criteria beyond those

required by federal statute or regulation, thereby allowing the school district to

thwart the parents’ efforts to obtain an IEE. The district should have only

considered those criteria relevant to the specific evaluations performed.

20 The regulation uses the same term, “same agency criteria,” to apply to parent-initiated

evaluations at parent expense. Thus, the IEP team can refuse to consider a parent-initiated

evaluation that did not use a variety of assessment tools and strategies or was racially biased.

See 34 C.F.R. § 300.502(c)(1).


21

Because of the direct relationship between criteria and cost, imposing

unnecessary criteria on IEEs drives up the cost and reduces the time and money

available for the assessments the evaluators believe are necessary. Here, the

parents spent a large sum of money on the IEE precisely because they were trying

to meet the school district’s unnecessary requirements of recreating a multi-

disciplinary team. As the IEE is typically considered by the school district’s own

multidisciplinary team, the requirement of a general education teacher and a full-

blown multi-disciplinary team is unnecessarily duplicative. See, e.g., Lakeville, 53

IDELR 206.

The district cannot require the parent to repeat an evaluation with which the

parent agrees to receive public funding for a different evaluation, as the district

required here.21 The regulation specifies that the parent has the right to an

evaluation at public expense “if the parent disagrees with the evaluation obtained

by the public agency,” 34 C.F.R. § 300.502(b).22 Repeating evaluations

unnecessarily would not only waste money but subject children to unnecessary

tests. Further, 2004 IDEA makes clear there is no need for unnecessary

evaluations as it eliminated mandatory triennial reevaluations if “the parent and the

21 Typically, when school districts receive advance notice that parents disagree with a

multidisciplinary evaluation, the first question they ask is which evaluations the parents want.

That is in keeping with the collaborative core of IDEA. 22 School districts often argue that parents are not entitled to IEEs at public expense because

they do not disagree with the school district’s evaluation. See, e.g., Lauren W. ex rel Jean W. v.

DeFalminis, 480 F.3d 259, 275 (3d Cir. 2007).


22

local agency agree that the reevaluation is unnecessary.” 20 U.S.C. §

1414(a)(2)(B)(ii). This was consistent with the IDEA’s goal of reducing “irrelevant

and unnecessary burdens that do not lead to improved educational outcomes.” 20

U.S.C. § 1400(9).

Because parental disagreement is a prerequisite, the cases involving IEEs

typically involve one or more specific evaluations by particular professionals. See,

e.g., West Baton Rouge Parish School Bd. v. Deshotel, No. 11-0053-SDD-SCR,

2014 WL 1327851, at *2 (M.D. La. Mar. 31, 2014) (court ordered functional

behavioral and psychological assessment). The federal regulation uses the singular

term, “examiner,” in defining an IEE as “an evaluation conducted by a qualified

examiner who is not employed by the public agency for the education of the child

in question.” 34 C.F.R. § 300.502(a)(3)(i). There is no need to recreate a multi-

disciplinary team evaluation, as the district insisted here.

DOE has recognized that an IEE may consist of several different

assessments by different evaluators, and that a school district may be required to

pay the evaluators individually rather than make one payment to a

multidisciplinary team. Thus, when asked whether a school district may pay the

full amount of its cost restriction to one evaluator, and deny payment to a second

evaluator, DOE advised that a school district may not cherry pick from among the

evaluators, and if it believed that “the IEE obtained by the parent did not meet its


23

criteria, it must either initiate a due process hearing or pay for an IEE.” Letter to

Anonymous, 22 IDELR 637 (OSEP 1995).

Finally, a school district cannot shirk payment because of immaterial

problems, just as similar problems would not impair the appropriateness of a

district’s evaluation. The district court opinion did not analyze any of the allegedly

“missing initial evaluation components,” yet found their absence justified the

school district’s refusal to pay.23 ROA.1219. It is unlikely that a court would find

a district’s evaluation inappropriate because of stylistic quibbles such as

Defendant’s complaint that the IEE lacked a summary and a prioritized order of

educational needs.24 See ROA.451.

Had the court given careful scrutiny to the criteria, it would have found them

irrelevant and immaterial to the evaluations.

2. The school district’s criteria may not be deprive the parent

of an IEE and may not constrain the evaluator’s

professional judgment.

School districts may not set criteria that impose financial or time constraints

that operate to deprive a parent of an IEE conducted by an evaluator using his

professional judgment. As the IEE must be “at no cost to parents,” criteria that

23 A review of the IEE itself shows that most, if not all of the information allegedly missing is

included in the document. Compare ROA.450–453 with ROA.660–669. 24 Defendant’s objections were also vague and unfounded. For example, it claimed that the

evaluation lacked “systematic student observations in environments in which the student is

experiencing learning disabilities,” even though the evaluation devotes extensive discussion to

classroom observations performed by the evaluators. Compare ROA.451 with ROA.1623,

ROA.1633. ROA.1639, and ROA.1644.


24

require parents to expend unnecessary money and reduce the examiner’s time

interfere with the parent’s right to an IEE. More importantly, for students and their

families, unnecessary evaluations cost them time and effort, and can exact a

psychic toll.

The school district may not preclude IEE evaluators from reaching

conclusions that differ with school district’s eligibility criteria, as parents are free

to challenge those criteria in a due process proceeding. For example, if a school

district limited eligibility for occupational therapy to fine motor skill concerns, a

parent could still obtain an IEE to assess a student with autism for sensory

integration issues and then challenge the denial of occupational therapy as

violating IDEA.

Similarly, the school district cannot refuse to pay for an evaluation because

it does not like the result, such as the inclusion of a secondary diagnosis. The

district court indicated that the school district could evade paying for an IEE if it

includes a secondary diagnosis not mentioned in the request for an IEE.

ROA.1219. But a parent is not required to explain the reasons for the IEE. 34

C.F.R. § 300.502(b)(4). Once the school district agrees to fund an IEE, the

psychologist is responsible for using her professional judgment in writing her


25

report based on her observations and findings.25 After conducting an IEE for a

student with autism, a psychologist may well conclude that the student has a

secondary diagnosis of learning disability.26 The school’s IEP team can then

review the report along with other data to see if the student meets eligibility criteria

for Specific Learning Disabilities.

Additionally, DOE has recognized that necessity may require parents to

deviate from agency criteria for an IEE because they need to find evaluators in the

private marketplace, not among school employees. Thus, a district could not

require an evaluator to have a license if only individuals employed by a school

district were eligible for that license. See DOE Guidance to Final IDEA 2004

Regulations, 71 Fed. Reg. 46540, 46689 (Aug. 14, 2006).

Had the district court given careful scrutiny to the district’s criteria, it would

have many of them inconsistent with the parents’ right to an IEE because they

imposed inappropriate constraints on the parents’ evaluators.

25 National Association of School Psychologists, Principles for Professional Ethics, Principle II.3

& Principle III.4, available at http://www.nasponline.org/standards /2010standards/1_%20Ethical

%20Principles.pdf, at 7-8, 10-11. 26 Many students with autism also have learning disabilities. Gregory O’Brien & Joanne

Pearson, Autism and Learning Disability, 8 Autism 125 (2004).


26

IV. Because the Regulation Requires that the IEE be at No Cost to the

Parents, Parents Have the Right to an Order Directing the School

District to Pay for an IEE Before the Evaluator is Retained, and

Therefore, a Determination Regarding the IEE’s Cost

The district court below declined to decide the issues of advance payment

and costs because it had decided that the IEE in question was not yet complete. A

decision that allows a school district to defer a decision on cost restrictions until

after an IEE was completed would eliminate an IEE as a procedural protection for

many students with disabilities because, as noted above, the vast majority do not

have the resources to pay the evaluators in advance. The term “at no cost to

parents” does not intend that “only some parents would be able to enforce that

mandate.” Winkelman, 550 U.S. at 533.

For a publicly funded IEE to be a meaningful right, parents need an

agreement on cost before the evaluation begins, as the cost affects the willingness

of evaluators to do the IEE. In Schaffer, the Supreme Court emphasized that the

regulations clarify the entitlement to an IEE by providing that a “parent has the

right to an independent educational evaluation at public expense if the parent

disagrees with an evaluation obtained by the public agency.” 546 U.S. at 60,

quoting 34 C.F.R. 300.502(b)(1) (emphasis added). Public expense means the

parent cannot be required to pay anything.

Both Courts and hearing officers have found that they have jurisdiction to

both order districts to fund IEEs and to decide disputes regarding cost criteria in


27

advance of a hearing so parties have clarity regarding an IEE’s reasonable cost.27

See, e.g., M.V. v. Shenedehowa Central School District, No. 1:11-CV-00701, 2013

WL 936438, at *7 (N.D.N.Y. Mar. 8, 2013) (holding school district’s cost and

geographic limits were reasonable). See also Cincinnati City Sch., 114 LRP 50642

(although school district’s limits of $1000 in costs and 25 miles were reasonable,

the student’s unique circumstances justified a departure; the hearing officer

authorized caps for four specific assessments for a total of $5,480, identified the

evaluators, and ordered the school district to pay); Dunmore Sch. Dist., 53 IDELR

107 (Pa. SEA 2009) (ordering that the school district “shall fund” an IEE by a

school psychologist for $4,200, including expenses, over the school district’s

objection that the cost was not reasonable).

The regulation clearly envisions that school districts would either advance

payment or contract with the providers, to ensure that the IEE is done at no cost to

the parent, as it requires the school district to “ensure [] that evaluation is otherwise

provided at no cost to the parent.” 34 C.F.R. § 300.502(a)(3)(ii). DOE has

recognized that parents may be entitled to advanced funding of an IEE. Letter

Wessels, 16 IDELR 735 (OSEP Mar. 9, 1990).

27 Perhaps if Defendant had been ordered to reimburse parents for their costs to date and to pay

the balance needed for any revisions, it might have decided on its own that further revisions were

completely unnecessary.


28

Because the regulation requires school districts to ensure that the evaluation

is provided at no cost to parents, school districts cannot ask parents to search for

evaluators willing to await payment until the school district approves the IEE

without a contractual commitment from the school district. It is not reasonable to

expect an evaluator to provide an IEE for free to parents on speculation that

someday a school district might pay for it.

Here, the hearing officer erred in finding he was without jurisdiction to hear

Plaintiffs’ claims regarding payment in the absence of a final report satisfactory to

the Defendant, and the district judge erred in determining that there was no need to

address these issues. Because of the close relationship between the district’s

criteria and the costs they imposed on the evaluation, the parents were entitled to a

determination of both the criteria that applied to the IEE and the reasonable cost of

an evaluation that would comply with the relevant criteria. Here, without a prompt

resolution of their claims, the parents are put in the position of having to throw

more good money after the $8,000 they have already spent in the hope that they

will somehow be able to generate an IEE acceptable to the defendant and that a

hearing officer might find that their expenses were fully reimbursable.

For parents to have a meaningful right to an IEE, hearing officers and courts

must hear claims regarding financial matters before an IEE is obtained and, unless


29

the school district succeeds on the merits of its claims, order the school district to

fund the IEE so that the IEE can be obtained without any cost to the parents at all.

CONCLUSION

For a publicly-funded IEE to be meaningful for parents and provide any help

in leveling the uneven playing field between school staff and parents, school

districts cannot be given the authority to deny that right without following the

regulatory requirement of a district-initiated due process hearing, and the hearing

officer and any reviewing court need to carefully scrutinize the school district’s

assertions and the parents’ claims that their right to an IEE is being denied.

Otherwise, the school districts will have license to run roughshod over the rights of

parents and their children.

For the reasons set forth above and in Plaintiffs-Appellants’ brief, amici urge

this court to reverse the decision of the United States District Court for the Eastern

District of Louisiana.

Respectfully submitted,



Texas Bar No. 24029329

DISABILITY RIGHTS TEXAS

300 E. Main, Suite 205

El Paso, Texas 79901

(915) 542-0585 (Phone)

(915) 542-2676 (Fax)

[email protected]


30

ELLEN SAIDEMAN

Rhode Island Bar No. 6532

LAW OFFICE OF ELLEN SAIDEMAN

7 Henry Drive

Barrington, Rhode Island 02806

(401) 258-7276 (Phone)

(401) 709-0213 (Fax)

[email protected]

Attorneys for Amici Curiae


31

CERTIFICATE OF SERVICE

I certify that on this 4th day of May, 2015, a true and correct copy of the

foregoing document was filed electronically. Notice of this filing will be sent by

operation of the ECF system to all counsel of record:

Sarah Hall Voigt, [email protected]

Debra J. Weinberg, [email protected]

Advocacy Center

8325 Oak Street

New Orleans, LA 70118

Telephone: (504) 522-2337

Ronald K. Lospennato, [email protected]

Law Office of Ronald K. Lospennato

8325 Oak Street

New Orleans, LA 70118

Telephone: (504) 208-4679

Counsel for Plaintiffs-Appellants

Wayne Thomas Stewart, [email protected]

Hammonds, Sills, Adkins & Guice, L.L.P.

2431 South Acadian Thruway

Baton Rouge, LA 70808

Telephone: (225) 923-3462

Counsel for Defendant-Appellee

Jonathan A. Zimring, [email protected]

ZIMRING LAW FIRM

1425A Dutch Valley Place

Atlanta, Georgia 30324

Telephone: (404) 607-1600


32

Selene A. Almazan-Altobelli, [email protected]

COPAA, INC.

P.O. Box 6767

Towson, Maryland 21285

Telephone: (844) 426-7224

Counsel for Amicus Curiae (COPAA)




33

CERTIFICATE OF ELECTRONIC COMPLIANCE

Counsel also certifies that on May 4, 2015 this brief was transmitted to Mr.

Lyle W. Cayce, Clerk of the United States Court of Appeals for the Fifth Circuit,

via the Court’s CM/ECF Document Filing System, https://ecf.ca5.uscourts.gov/.

Counsel further certifies that: (1) required privacy redactions have been

made, 5TH CIR. R. 25.2.13; (2) the electronic submission is an exact copy of the

paper document, 5TH CIR. R. 25.2.1; and (3) the document has been scanned with

the most recent version of Symantec Endpoint Protection and is free of viruses.




34

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of FED. R. APP. P.

32(a)(7)(B) and FED. R. APP. P. 29(d), because this brief contains 6,950 words,

excluding the parts of the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of FED. R. APP. P.

32(a)(5) and the type-style requirements of FED. R. APP. P. 32(a)(6), because this

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Documents

No. 15-30164 IN THE UNITED STATES COURT OF … · FOR THE EASTERN DISTRICT OF LOUISIANA, NEW ORLEANS CIVIL ACTION NO. 2:13-CV-06068 Honorable Nannette Jolivette Brown,