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UPDATE FROM THE COURTS THAT COUNT:

You Be The Judge

Presented by

Nona C. Matthews

Attorney at Law

www.WalshAnderson.com

The information in this presentation was created by Walsh, Anderson, Gallegos, Green & Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney. Information in this presentation is

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ELIGIBILITY/EVALUATION

A.G. v. Lower Merion Sch. Dist., 113 LRP 46389 (3rd

Cir.) (November 14, 2013)

The District initially identified the student, who is African American, for special education

services in elementary school based on a Specific Learning Disability and Speech Impairment.

The District and the parent agreed that no evaluation was necessary in middle school. Based on

a re-evaluation in high school, which included parental concerns regarding difficulty focusing

and completing homework, and teachers’ reports of inappropriate classroom behavior, the

student was reclassified as Other Health Impaired based. The psychologist suspected ADHD,

but he knew that the parents had an aversion to an ADHD diagnosis. Therefore, he made no

mention of ADHD in his report. The District proposed dismissal from special education during

the student’s senior year; however, the parent disagreed and wanted a hearing officer to decide

whether the student was eligible.

After graduating, the student sued the District for money damages under the ADA and Section

504, alleging that the District placed her in special education despite knowing that she may not

have a disability. Such a claim in the Third Circuit requires a showing of deliberate indifference,

as demonstrated by showing the District 1) knew that a harm to a federally protected right was

substantially likely, and 2) that the district failed to act upon that likelihood. The student did not

satisfy the first element. “Because [the evaluator] had a basis for his conclusions, it can hardly

be said that [the evaluator] or [district] had knowledge at that point that [the student] may not

have had a disability.” “Although Dr. Cosden’s classification of A.G. as OHI may have been in

technical noncompliance with the IDEA, that fact alone does not provide a basis for a claim

under Section 504 or the ADA.” The fact that the parents received numerous procedural

safeguards and attended IEP team meetings negated the student’s claim that the District

intentionally kept her family in the dark concerning basic facts about her placement.

INDEPENDENT EDUCATIONAL EVALUATIONS

A.C. v. Jefferson County Board of Education, 60 IDELR 30 (11th

Cir.) (November 21, 2012)

The District Court rejected a federal magistrate’s recommendation that the District Court deny a

Parent’s request for an IEE. The magistrate’s recommendation was based on a theory that the

U.S. Department of Education exceeded its authority in mandating the provision of publicly

funded IEEs via regulation. The District appealed. The 11th

Circuit ruled that the District must

fund the parentally requested IEE. The Court reasoned that the USDE was bound by the IDEA

to preserve any IDEA regulations in effect from July 20, 1983, unless Congress clearly intended

otherwise. 20 U.S.C. 1406(b)(2). The Court recognized Congress’s failure to change the

regulations in effect since 1983, providing for the right to a publicly funded IEE, even though

Congress had repeatedly reauthorized the IDEA.

Comment: The U.S. Supreme Court denied the District’s petition for certiorari on October 7,

2013, thereby effectively preserving the Circuit Court’s ruling that the District could not cure the

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flaws in its assessment. See Jefferson Co. Bd. of Ed. v. Phillip C., 113 LRP 42398 (U.S.)

(October 7, 2013).

M.Z. v. Bethlehem Area School District, 60 IDELR 273 (3rd Cir.) (March 27, 2013)

The court affirmed the District Court's order that previously overruled a Hearing Officer's failure

to order an IEE. At the due process hearing, the Hearing Officer determined the District's

evaluation to be insufficient, yet did not grant the Student an IEE. The Student challenged the

decision in the District Court. The District Court determined that the Student's entitlement to an

IEE at public expense was mandatory, once the hearing officer determined the District evaluation

was insufficient. The District appealed. The Circuit Court affirmed. Here the record was clear

that the District's assessment was not sufficiently comprehensive. The District's reevaluation

failed to consider the Student's pragmatic language skills in peer settings, the Student's upcoming

transition to high school, and the District only reported anecdotal data on the Student's IEP

progress updates. It is important to note that the District sought but was not afforded the

opportunity to correct its flawed assessment by conducting formal classroom evaluations and

seeking parent and teacher input.

Comment: The U.S. Supreme Court denied the District’s petition for certiorari on October 21,

2013, thereby effectively preserving the Circuit Court’s ruling that the U.S. Department of

Education did not exceed its authority in issuing the regulation authorizing IEEs at public

expense. See Bethlehem Area School District v. D.Z., 113 LRP 40516 (U.D.) (October 21,

2013)..

IEP MEETING PROCEDURAL REQUIREMENTS

Doug C. v. State of Hawaii DOE, 61 IDELR 91 (9th

Cir.) (June 13, 2013)

The district denied FAPE to the student by holding an IEP Team meeting without the parent,

even though the parent expressed a desire to attend. The district’s rationale was that the current

IEP was about to expire, the parent was hard to deal with and 13 other people had had to

rearrange their schedules on three separate occasions to accommodate him. None of that passed

muster with the court. Key Quotes:

Because the Department’s obligation is owed to the child, any alleged obstinance

of Doug C. does not excuse the Department’s failure to fulfill its affirmative

obligation to include Doug C. in the IEP meeting when he expressed a willingness

(indeed eagerness) to participate, albeit at a later date.

The court makes it clear that the parents’ participation is more important than the participation of

other team members:

Once again, the Department improperly prioritized its own representatives’

schedules and attendance over the attendance of the parent.

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What about that annual deadline? The district argued that it could not provide services beyond

the annual deadline. The court:

We reject this argument because it is premised on the erroneous assumption that

the Department is authorized (let alone required) to cease providing services to a

student is his annual IEP review is overdue. The IDEA mandates annual review

of a student’s IEP. However, the Department cites no authority, nor could it, for

the proposition that it cannot provide any services to a student whose annual

review is overdue.

What is more important: meeting the deadline, or ensuring parent participation? The court:

When confronted with the situation of complying with one procedural

requirement of the IDEA or another, we hold that the agency must make a

reasonable determination of which course of action promotes the purposes of the

IDEA and is least likely to result in a denial of FAPE.

Comment: This is an excellent analysis of a fairly common scenario by a high level court. It

didn’t help the school’s case that they not only held this meeting without the parent, but they also

changed a placement that had been in effect for six years at a private school that the parent

favored.

W.K. v. Harrison Sch. Dist., 61 IDELR 123 (8th

Cir.) (June 14, 2013)

The court affirmed the District Court’s decision that the District did not deny the Student’s

parents meaningful participation in an IEP Team meeting. The District failed to provide the

Student’s parents proper written notice that the IEP Team would discuss the Student’s recent

aggressive behavior and possible home instruction at the meeting. The court concluded this

procedural violation did not deprive the Student’s parents of meaningful participation in the

meeting because they knew before the meeting that the aggressive behaviors would be discussed

and had participated in discussions regarding the Student’s placement. The court denied the

parents’ request for private school tuition reimbursement.

DISCIPLINE/RESTRAINT/FBAs AND BIPs

M. W. v. New York City Dept. of Education, 61 IDELR 151 (2nd

Cir.) (July 29, 2013)

The court affirmed the District Court’s ruling that the District’s failure to conduct a FBA for a

student with autism did not deny the Student a FAPE. New York state law requires a school

district to conduct a FBA for a Student where the Student’s behavior interferes with his/her

learning or the learning of other when necessary to determine the physical, mental, behavioral,

and emotional factors which contribute to the disability. The Student transferred to the District

from a private placement. The District developed a BIP for Student which, based on the

evidence, accurately described the Student’s interfering behaviors; “included a reward system,

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praise, encouragement, and positive modeling to learn to adjust his behavior within a

collaborative support system between parent, teacher, and paraprofessional.” The parents did not

allege the BIP failed to address interfering behaviors or that the interventions were inappropriate.

Instead, they simply argued the failure to conduct a FBA resulted in a legally invalid BIP. The

court rejected this argument based on its lack of identification of a particular problem with the

BIP as a result of the failure to conduct a BIP.

FAPE/ SUFFICIENCY OF THE IEP

R.G. v. Downingtown Area School District, 113 LRP 23556 (3rd Cir.) (June 3, 2013)

A grade school Student's IEP was found to be appropriate after the District refused continued

private school placement at public expense. The ARD committee recommended placement at

the public school after the Student failed to make educational progress in the private setting. The

court noted that the District's proposed IEP was very similar to the private school IEP. The

private school offered 150 minutes of one-to one speech therapy. However, the court found the

District's proposed 120 minutes of therapy adequate, even though it would be provided in an

individual and group setting. It is important to note that the District failed to specify in the IEP

whether speech therapy would be provided one on one or in a group setting. This fact had to be

established through witness testimony.

H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 61 IDELR 121 (2nd

Cir.) (June 24, 2013)

The court affirmed the District Court’s ruling that the District provided the Student a FAPE. The

Student’s parents argued the District denied the Student a FAPE based on evidence of the

widening of the gap between the Student’s reading skills and the reading skills of her

nondisabled peers. The Student’s parents also asserted the District denied the Student FAPE by

not providing the Student the parents’ preferred brand FM system. The court rejected these

arguments and pointed out that “[t]o the extent that Parents argue that the gap between M.C. and

her peers was growing in terms of reading ability, moreover, ‘a child’s academic progress must

be viewed in light of the limitations imposed by the child’s disability.” The evidence

demonstrated the Student made progress in reading. Regarding the selection of a specific brand

for an FM system, the court concluded the parents failed to prove the inadequacy of the District’s

selected brand FM system for the Student and noted “a school district does not fail to provide a

child with a FAPE simply because it employs one assistive technology over another, so long as

the technology employed is reasonably calculated to permit the child to receive educational

benefits.”

G.I. v. Lewisville ISD, 61 IDELR 298 (E.D. Tex.) (July 3, 2013)

The District Court found the District provided the Student, identified as a student with autism, a

FAPE where the District appropriately addressed the needs resulting from his ADHD in his IEP.

The fact that the District did not identify the Student as a student with an OHI as a result of the

ADHD did not result in a denial of FAPE. The District Court pointed out that ‘[t]he IDEA does

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not require Defendant to create an appropriate label to identify G.I.’s disabilities, but rather

Defendant is required to develop an appropriate education tailored to meet G.I’s specific needs.”

The Student’s IEP included several appropriate supports to address his difficulties with attention

including preferential seating, a low staff-to-student ratio during instruction and re-teaching,

frequent redirection, and reminders to stay on task. The District Court found these supports

appropriate address the Student’s needs which resulted from his ADHD.

K.L. v. New York City Dept. of Education, 61 IDELR 184 (2nd

Cir.) (July 24, 2013)

The court affirmed the District Court’s ruling that the Student’s IEP was reasonably calculated to

provide her a FAPE where the IEP included a 1:1 paraprofessional, related services, and a BIP.

The Student’s parents alleged the Student, a student with autism, required a 1:1 teacher, but

presented no evidence the 1:1 paraprofessional could not meet the Student’s behavioral needs.

The parents also alleged the Student’s IEP was insufficient because the District failed to conduct

a FBA. The court rejected this argument based on evidence the BIP adequately identified the

Student’s problem behaviors and included ways to manage her behavior with positive behavioral

supports. Finally, the court rejected the parents’ argument that the IEP was insufficient because

it did not include specific instructional methodologies where the parents failed to demonstrate

the Student required a specific instructional methodology to receive a FAPE.

R.C. v. Keller ISD, 61 IDELR 221 (N.D. Tex.) (July 31, 2013)

In a disputed regarding whether the Student should be identified as a student with an ED or a

AU, the District Court held that the District provided the Student a FAPE where his IEP

addressed his individual needs. The Student’s parents alleged the District failed to provide the

Student a FAPE because the District “misdiagnosed” the Student as a student with an ED instead

of AU. However, the Student’s parents failed to identify any particular services they believed

the Student would require as a Student with AU that his IEP did not already include. The

District Court noted the importance of in evaluating the Student’s IEP to determine if the District

provided a FAPE. The Student’s parents argued that due to the District’s failure to identify the

Student as a student with AU, the District failed to even consider the additional services which

student’s with AU are entitled to. The District Court rejected this argument and noted the

Student’s passing grades and success on the most recent state assessment evidenced the District

provided the Student a FAPE. Key Quotes:

As far as the strategies and services under § 89.1055(e), the record reflects that defendant

considered such services and strategies, implemented many of them, and asked the

parents specifically which additional services they wanted that defendant was not

providing…[t]he IDEA, provides no right for a student to be classified under a particular

disability, but requires that the student’s educational program be designed to suit the

student’s demonstrated needs…the court looks not to whether plaintiff was properly

labeled as ED or autistic, but whether the IEP itself was sufficiently individualized to

meet plaintiff’s unique needs and provide him with educational benefits.

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LEAST RESTRICTIVE ENVIRONMENT/PLACEMENT

M. M. v. Pottsville Area Sch. Dist., 61 IDELR 152 (3rd

Cir.) (July 25, 2013)

The court affirmed the District Court’s ruling that the Student was not entitled to reimbursement

for residential placement where the Student was enrolled in the residential placement to meet his

mental health needs, and any educational benefit was incidental. The Student earned above

average grades in school and presented no serious problems with attendance or social

interactions with his peers. The Student previously expressed thoughts of suicide and had to be

hospitalized. The District provided the Student a Section 504 plan, and ultimately offered an IEP

to provide emotional support services. The Student continued to threaten suicide and was again

hospitalized for treatment. Upon his release from the hospital, his parents enrolled him in a

therapeutic residential treatment center and sought reimbursement from the District. The court

held the Student was not entitled to reimbursement for the residential placement because the

primary purpose of the placement was the provision of mental health treatment rather than

provision of special education. The court agreed with the reasoning of the District Court that the

Student was placed in the residential facility due to “a medical/mental health crisis that required

immediate treatment.” The testimony of the Student’s parents who “emphasized that Student

needed to attend [the residential facility] in order to keep him safe from the effects of his

depression, which led to suicide threats and gestures when he was living at home” supported the

conclusion of the court that the placement was primarily to address the Student’s medical/mental

health crisis.

LIABILITY

J.H. v. Diana O’Neill, 61 IDELR 211 (11th

Cir.) (August 13, 2013)

The court affirmed the magistrate judge’s denial of the teachers’ motion for summary judgment

and concluded her alleged conduct against the Student reflected the kind of egregious official

abuse of force that would violate substantive due process protections in other, non-school

contexts. Here, the Student presented with profound mental and physical disabilities. She was

blind, non-verbal, and bound to a wheelchair that she could not maneuver on her own. In

determining whether the teacher’s alleged conduct was obviously excessive, the court

considered: 1) the need for corporal punishment; 2) the relationship between that need and the

amount of punishment administered; and 3) the extent of the injury inflicted. Classroom aides

testified the teacher hit the Student in the head out of frustration with the Student’s inability to

perform a feeding exercise. The court concluded the teacher had no need to use force and

therefore did not need to consider the relationship between the need for force and the amount of

punishment administered. Considering the extent of the injury inflicted, the court noted the

difficulty in in assessing the extent of the injury due to the Student’s inability to communicate.

However, the parents submitted evidence that as a result of the teacher hitting the Student in the

head, in an area of her head that was particularly sensitive due to a surgery to remove a portion

of her brain, the Student experienced bruising, vomiting, a lack of energy, and cried with pain.

The court found these injuries sufficient to state a substantive due process claim in that the

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teacher’s knowledge of the Student’s injury put her on notice that hitting the Student in the area

presented a reasonably foreseeable risk of injury. Key quote:

Simply put, striking a profoundly mentally and physically handicapped child on the head

– in a place where the child is particularly vulnerable due to a soft spot on her skull

resulting from surgery – was obviously excessive and presented a reasonably foreseeable

risk of serious bodily injury.

SECTION 504/AMERICANS WITH DISABILITIES ACT (“ADA”)

D.L. and T.L. v. Murray County Sch. Dist., 61 IDELR 122 (11th

Cir.) (June 18, 2013)

The court affirmed the dismissal of a Section 504 claim against the District. In this case, an 11th

grade with Asperger syndrome was subjected to disability based bullying and committed suicide.

The Student’s parents sued the District alleging violations of Section 504 for failure to

adequately address the bullying. The court found the parents failed to meet the high standard to

show deliberate indifference from the District in response to the bullying. Instead, the evidence

showed the District promptly responded to reported bullying incidents. Additionally, the court

reasoned that based on the District’s communications with the parent and the absence of reported

incidences of bullying during the last semester of the Student’s 10th

grade year and the first

semester of his 11th

grade year, it was reasonable for the District to believe the efforts to address

the bullying were effective. Although the court agreed there District could have done more to

address the bullying, the parents “failed to meet the high bar of deliberate indifference and have

failed to demonstrate that [the District’s] response was clearly unreasonable.”

K.M. v. Tustin Unified Sch. Dist., 61 IDELR 182 (9th

Cir.) (August 6, 2013)

The court held a school district’s compliance with its obligations to a deaf or hard-of-hearing

student under the IDEA does not establish compliance with its effective communication

obligations to the student under Title II of the ADA. In a consolidated case, two students with

hearing impairments requested a Communication Access Realtime Translation (“CART”) in the

classroom from their school district to assist in following classroom discussions. The requests

were denied for both, but the District offered the Students other accommodations. Both Students

unsuccessfully challenged the refusal of the CART in an IDEA administrative hearing and then

filed a lawsuit in the District Court. At the District Court level, both Students claimed the

District’s denial of the CART violated both the IDEA and Title II of the ADA. The District

Court granted summary judgment in favor of the school district and concluded that since the

District complied with the IDEA the Student’s ADA claims were foreclosed. The court

disagreed. Key Quote:

[T]he IDEA and Title II differ in both ends and means. Substantively, the IDEA sets

only a floor of access to education for children with communications disabilities, but

requires school districts to provide the individualized services necessary to get a child to

that floor, regardless of the costs, administrative burdens, or program alterations required.

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Title II and its implementing regulations, taken together, require public entities to take

steps towards making existing services not just accessible, but equally accessible to

people with communication disabilities, but only insofar as doing so does not pose an

undue burden or require a fundamental alteration of their programs.

S.H. v. Lower Merion Sch. Dist., 61 IDELR 271 (3rd

Cir.) (September 5, 2013)

The court affirmed the District Court’s ruling that the Student’s parents failed to plead deliberate

indifference and were therefore not entitled to recover $127,010 for college tuition. Here, the

District inaccurately identified the Student as a Student with SLD and provided special education

services and placement, but the Student did not in fact have a disability. The Student’s parents

filed suit under the ADA, which extends protections not only to individuals who actually have a

disability, but to individuals “regarded as” having a disability. To meet the deliberate

indifference standard, the parents must present evidence to show: “(1) knowledge that a

federally protected right is substantially likely to be violated (i.e., knowledge that S.H. was likely

not disabled and therefore should not have been in special education), and (2) failure to act

despite that knowledge.” The Student’s parents argued the District knew it had misidentified the

Student and wrongfully placed her in special education classes because the Student stated she

didn’t like to be in special education and performed well academically in some areas. Eventually

an independent evaluation concluded the Student did not have a disability. The District

dismissed the Student from special education. The court concluded the Student’s dislike for

special education and academic success in some areas was not sufficient to establish the District

had knowledge of the misdiagnosis. The court pointed out the District immediately dismissed

the Student from special education upon review of the independent evaluation.

R.C. v. Sch. Dist. of Philadelphia Brd. Of Education, 62 IDELR 1 (3rd Cir.) (September 17,

2013)

The court reversed the District Court’s summary judgment ruling in favor of the District and held

the Student’s parents presented a genuine dispute of material fact as to whether the District was

deliberately indifferent where the District repeatedly failed to implement IEP services for a

student with autism. The evidence showed the District failed to implemented the Student’s

speech therapy and occupational therapy for several years, was informed of this failure to

implement at various junctures and was ordered to provide the services. The District could not

confirm whether the Student had received any compensatory education hours as a result of the

repeated failures to implement the IEP. Key Quote:

Given this record, there is a genuine dispute of material fact as to whether the School

District was deliberately indifference. Indeed, it seems to us that a reasonable jury could

infer that (1) the School District knew that [Student] was not being provided a FAPE, and

(2) failed to act appropriately in a way that rose above mere negligence. The record

suggests that the School District was made aware numerous times that [Student] was not

being provided with the various therapies to which she was entitled. The record also

suggests that the School District repeatedly failed to schedule hearings after they were

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requested, and did not place [Student] in an appropriate program for students with her

type of disability.

Estate of A.R. v. Houston Ind. Sch. Dist., 62 IDELR 43 (5th

Cir.) (October 16, 2013)

(Unpublished)

A nine-year-old child who was deaf attended a school for children with disabilities in the

District. During the summer of 2008, her mother enrolled her in a voluntary summer enrichment

program offered by the school, which included swimming in the school’s shallow pool.

Tragically, the student experienced a seizure, fell into the water, and drowned. Efforts by

teachers and medical personnel to save her were not successful. The parent sued the District, the

principal, and the physical education teacher overseeing the children in the pool area under

Section 504 and the ADA. The District Court dismissed the claims against all parties on

summary judgment. The parent only appealed the dismissal of the claims against the District,

alleging that she raised triable issues in that 1) the District intentionally discriminated against the

student by refusing to provide services necessary to give the student a safe and meaningful

access to the summer program, and 2) the District grossly deviated from the standard of care in

ignoring and mishandling information about the student’s seizure disorder.

The Fifth Circuit summarized the requirements of a prima facie case of discrimination under the

ADA, stating that plaintiff must demonstrate: 1) that he is a qualified individual within the

meaning of the ADA; 2) that he is being excluded from participation in, or being denied benefits

of, services, programs, or activities for which the public entity is responsible, or is otherwise

being discriminated against by the public entity; and 3) that such exclusion, denial of benefits, or

discrimination is by reason of his disability. In order to receive compensatory damages, a

plaintiff mush show intentional discrimination. A cause of action is stated when it is alleged that

a school district has refused to provide reasonable accommodations for the student to receive the

full benefits of the school program. Facts creating an inference of professional bad faith or gross

misjudgment are necessary to substantiate a cause of action for intentional discrimination.

Something more than mere negligence must be shown.

The parent pointed out many things the school could have done to make the situation safer for

the student in the pool area: additional lifeguards, different types of alarm devices, etc. The

Fifth Circuit found that at most the parent’s claims only established negligence. The allegations

do not rise to the level of “bad faith or gross misjudgment” or “deliberate indifference”. (The

Court declined to determine the correct standard because the parent failed under either standard.)

Therefore, there is no evidence of “intentional discrimination.” “Tragically, A.R.’s death

resulted from her inclusion in the full activities of a summer school program that was not

discriminatory under the case law or the statute.” The Fifth Circuit upheld the District Court’s

granting of summary judgment for HISD because there was no genuine issue of material fact to

present to a jury.

B.M. v. South Callaway R-II Sch. Dist., 62 IDELR 42 (8th

Cir.) (October 17, 2013)

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The student’s inappropriate behavior began in second grade, including profanity, throwing

furniture, and hitting, biting, and scratching the teachers and principal, for which he was

suspended for five and a half days. The student’s problem behaviors continued in the third

grade. The District provided information about outside resources, conferenced with the parent,

permitted the student’s private counselor to observe the student in class, and implemented

recommendations from the private counselor including a “chill-out room.” In the fourth grade,

the District referred the student for an evaluation under the IDEA. The parent refused to provide

consent on multiple occasions. The parent ultimately requested an evaluation under Section 504;

however, the District insisted on first evaluating under the IDEA. Ultimately, a year after

requested by the District, the parent provided consent for evaluation under the IDEA. Based on

the evaluation completed by the District, the student did not qualify under the IDEA.

Approximately two weeks later, the District promptly provided the parent with a Section 504

referral form, conducted an evaluation, and proposed a Section 504 plan. The parent did not

agree with the first two proposed Section 504 plans, and removed the student from school. Three

months later, the parent ultimately agreed with the third proposed Section 504 plan.

The student’s parents filed suit alleging the District failed to timely evaluate and accommodate

the student and failed to comply with statutory procedural requirements based on OCR’s

previous finding that the District had used erroneous criteria in determining whether its

suspensions of the student constituted a significant change in placement warranting a

manifestation hearing, and that the District had provided inadequate detail regarding the Section

504 complaint and hearing process, The District Court granted summary judgment for the school

district because the parents did not allege any facts rising to the level of bad faith or gross

misjudgment. The Eighth Circuit found that in order for statutory non-compliance to rise to the

level of bad faith or gross misjudgment, the non-compliance must deviate so substantially from

accepted professional judgment, practice, or standards as to demonstrate that the school acted

with wrongful intent. The Court also found that the District’s insistence that it first evaluate the

student under the IDEA, which could have resulted in placement in special education, did not

rise to the level of bad faith or gross misjudgment; nor, under these circumstances did the

resulting delay in evaluating and developing a Section 504 plan for the student. “Most of the

facts cited by the [parents] amount to nothing more than possible instances of statutory non-

compliance.” “In light of the District’s persistent efforts to aid [the student], no reasonable jury

could conclude that the delays in accommodating him resulted from bad faith or gross

misjudgment by the District.”

LEGAL PROCEDURE/ATTORNEYS’ FEES

L.F. v. Houston Ind. Sch. Dist., 113 LRP 43342 (5th

Cir.) (October 24, 2013) (Unpublished)

K.F. v. Houston Ind. Sch. Dist. 113 LRP 47413 (5th

Cir.) (November 21, 2013) (Unpublished)

The pro se parent appealed the District Court’s dismissal of the IDEA cases that challenged

actions by HISD, individuals, and the two Hearing Officers. Although the Fifth Circuit applies

less stringent standards to parties proceeding pro se, and it liberally construes briefs of pro se

litigants, such parties must still brief the issues substantively and reasonably comply with the

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requirements of Federal Rule of Appellate Procedure. Finding that the parent failed to provide

any coherent argument demonstrating reversible error by the District Court, the Fifth Circuit

affirmed the District Court’s dismissal of the complaints.

Giosta v. Midland School District, 113 LRP 44524 (7th

Cir.) (November 5, 2013) (Unpublished)

The parents requested an IDEA due process hearing claiming a denial of FAPE for three years

because the student’s IEP allegedly lacked research-based instructional programs and

occupational therapy, and the school allegedly neglected to record lectures and allow access to

computers for writing assignments. The parents requested compensatory education, including

speech and occupational therapy, IEEs, and at least $10,000 worth of assistive technology. The

hearing officer concluded that the school “largely succeeded” in providing a FAPE; however,

one year the school failed to determine appropriate goals to address the student’s reading and

writing deficits and failed to administer an appropriate vocational evaluation. The hearing

officer ordered additional reading and writing instruction for three hours per week and a new

vocational evaluation. The parents claimed prevailing party status and requested attorneys’ fees.

The Seventh Circuit acknowledged that the parents were technically prevailing parties but

declined to award attorneys’ fees because the parents’ success was merely de minimis, citing to a

non-IDEA U.S. Supreme Court decision that correlates the size of a fee award with the degree of

success obtaining, and finds that for minor successes the appropriate award is zero.