Education Law: The School Board Perspective
REED SMITH LLP
Riverfront Plaza - West Tower
901 East Byrd Street - Suite 1700
Richmond, Virginia 23219-4069
this page in PDF
I. THE REHABILITATION ACT OF 1973 AND THE AMERICANS WITH DISABILITIES
ACT OF 1993
of "Individual with Disabilities" under the Rehabilitation
Act, 29 U.S.C. §706(8)(B).
person" 34 C.F.R. §104.3(j)(1)
. . any person who (i) has a physical or mental impairment which substantially
limits one or more major life activities, (ii) has a record of such
an impairment, or (iii) is regarded as having such an impairment."
or mental impairment" 34 C.F.R. §104.3(j)(2)(i)
. . (A) any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive, digestive,
genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any
mental or psychological disorder, such as mental retardation, organic
brain syndrome, emotional or mental illness, and specific learning
of such an impairment" 34 C.F.R. §104.3(j)(2)(iii)
. . has a history of, or has been misclassified as having, a mental
or physical impairment that substantially limits one or more major
as having an impairment" 34 C.F.R. §104.3(j)(2)(iv)
. . (A) has a physical or mental impairment that does not substantially
limit major life activities but that is treated by a recipient as
constituting such a limitation; (B) has a physical or mental impairment
that substantially limits major life activities only as a result of
the attitudes of others toward such impairment; or (C) has none of
the impairments defined . . . but is treated by a recipient as having
such an impairment."
to Section 504 as contained in the ADA.
Any student with disabilities currently engaged in the illegal
use of drugs or in the use of alcohol who is subjected to disciplinary
action as a result of that use shall be treated as a non-disabled
student. No hearing rights are applicable in these situations. 29
Definition of Disability -- 42 U.S.C. §12131(2)
term 'qualified individual with a disability' means an individual with
a disability who, with or without reasonable modifications to rules,
policies, or practices, the removal of architectural, communication,
or transportation barriers, or the provision of auxiliary aids and services,
meets the essential eligibility requirements for the receipt of services
or the participation in programs or activities provided by a public
evaluation is required prior to an initial placement and prior
to any change in placement. 34 C.F.R. §104.35.
notice of evaluation procedures must be given to the parents in a
language they can understand. Ogden City (UT) Sch. Dist, 21
IDELR 387 (OCR 1994).
timelines are specified for conducting an initial evaluation or reevaluation
evaluations must be conducted "in a timely manner" or
in a "reasonable period of time," which is decided on
a case by case basis. Letter to Saperstone, 21 IDELR 1127
Unreasonable delays deny a free appropriate public education (FAPE)
and violate 34 C.F.R. §§104.33(a), (b) and 104.35(a).
Assessments need to be sensitive to a student's language deficiencies.
West Las Vegas (NM), 20 IDELR 1409 (OCR 1993).
evaluations must be sufficient to define the disability adequately
and its effect on the student's education. 34 C.F.R. §104.35.
Trained personnel must administer and interpret the tests. Taunton
(MA) Sch. Dist., 16 EHLR 128 (OCR 1989).
Parents may choose their own, independent evaluator as long as he/she
qualifies under the district criteria.
A district cannot require a parent/student to provide a medical
statement at their expense. Letter to Veir, 20 IDELR 864
with disabilities are entitled to FAPE. 34 C.F.R. §104.33(a).
child's placement may be in regular education classes or in special
education classes. 34 C.F.R. §104.33(b).
In order to avoid violating §504/ADA, a school system must
be able to justify utilizing special education over regular education
classes. Fairbanks (AK) North Star Borough Sch. Dist., 21
IDELR 856 (OCR 1994).
Students should be integrated to the maximum extent appropriate
with their peers. 34 C.F.R. §104.34(a).
written §504 plan which complies with IDEA will satisfy §504
requirements. 34 C.F.R. §104.33(b)(2).
of the existence of education programs for disabled must be given.
34 C.F.R. §104.32.
of rights must be provided, including the rights of the parents to
receive notice, to review records and to have access to a hearing
process to resolve disputes. 34 C.F.R. §104.36.
the IDEA hearing procedure will satisfy §504 hearing requirements.
34 C.F.R. §104.36.
sure that the school division has a Section 504 procedure and a hearing
has a complaint process separate from §504. 28 C.F.R. §§35.170-78.
ADA must be construed to afford, at a minimum, the rights available
under §504. 28 C.F.R. §35.103.
to assign an ADA coordinator to oversee efforts to comply with the
ADA violates 28 C.F.R. §35.107. Fort Worth (TX) Indep. Sch.
Dist., 19 IDELR 856 (OCR 1993).
Deficit Hyperactivity Disorder ("ADHD") or ("ADD")
to Evaluate: Because ADD or ADHD may affect a student's academic performance
and may be a disability, a school has an affirmative duty to ensure
FAPE by assessing/evaluating the condition and the student's placement.
Romulus (MI) Community Sch., 18 IDELR 81 (OCR 1991).
Even if there exists an outside diagnosis, the district should conduct
a separate evaluation for ADHD for purposes of special education services.
medication is considered a related service under §504 and a school
should ensure that ADHD students receive their medicine in order to
avoid violating 34 C.F.R. §104.33. San Ramon Valley (CA) Unified
Sch. Dist., 18 IDELR 465 (OCR 1991).
has focused on complaints involving diabetic children recently.
that need to be addressed are blood-sugar testing, administration
of insulin and glucagon and training of staff. See Va. Code §8.01-225A9.
is statutory immunity from ordinary negligence for administration
of glucagon and insulin by a school board employee in some circumstances.
Va. Code §8.01-225A9.
INDIVIDUALS WITH DISABILITIES EDUCATION ACT, 20 U.S.C. §§1400,
ET SEQ. ("IDEA"); 34 C.F.R. Part 300; VA. CODE §§22.1-213,
The State Regulations were revised effective January 1, 2001. The cites
in this article are to the regulations current as of April 14, 2000.
term 'children with disabilities' means children --
with mental retardation, hearing impairments including deafness, speech
or language impairments, visual impairments including blindness, serious
emotional disturbance, orthopedic impairments, autism, traumatic brain
injury, other health impairments, or specific learning disabilities;
who, by reason thereof, need special education and related services."
20 U.S.C. §1401(3)(A) (hereinafter cited by section number);
34 C.F.R. §300.7.
Term Includes Children Ages 2 to 21
(Va. Code §§22.1-213.)
and Eligibility Procedures
(§1412(a)(3)(A); §1412(a)(6)(B); 34 C.F.R. §300.530-536;
State Regulations Governing Special Education Programs for Children
with Disabilities ("State Regs.") Part I, Definitions.)
with disabilities must be sought out by school divisions for identification.
§1412(a)(3)(A); 34 C.F.R. §300.125.
school divisions must establish procedures to screen children within
its jurisdiction for possible identification. State Regs. §3.2.C.
child study committee must meet within 10 administrative working days
of a referral for possible special education services. State Regs.
§3.2.C(3) & (4).
child study committee decides whether to refer children for a special
education evaluation. State Regs. §3.2.D.
evaluation process begins with written notice to and consent by the
parents for the evaluation. Notice of rights is given at this stage.
§1414(a)(1)(C); State Regs. §3.2.E; 34 C.F.R. §§300.530-543.
must be completed and eligibility held within sixty-five administrative
working days. State Regs. §3.2.E.6. This timeline is unchanged
by the 1999 Federal Regulations.
must be made by trained evaluators. Tests must not be racially or
culturally discriminatory, must be validated, and must be administered
in the child's native language or mode of communication. §1414(b)(2)
and (3). State Regs. §3.2.E.2.a; 34 C.F.R. §300.532.
may obtain an independent educational evaluation. 34 C.F.R. §300.502.
Parents are entitled to reimbursement for only one independent evaluation.
Lawyer v. Chesterfield County Sch. Bd., Civil Action No. 3:92CV760,
20 IDELR 172 (E.D. Va. 1993).
determinations are made by a team of qualified individuals and
the parent of the child. §1414(b)(4)(A); 34 C.F.R. §300.534
parent must be given a copy of the evaluation report and the documentation
of the eligibility determination. §1414(b)(4)(B); 34 C.F.R. §300.534(a)(2).
eligibility committee must produce a written report and give written
notice of the decision to the parents. State Regs. §3.2.F.4;
34 C.F.R. §300.534(a)(2).
determination of eligibility cannot be based predominantly on a problem
arising from a lack of instruction in reading or math or limited English
proficiency. §1414(b)(5); 34 C.F.R. §300.534(b).
evaluation must be conducted before determining that a child with
a disability is no longer eligible. 20 U.S.C. §1414(c)(5); 34
must participate in the decision regarding which evaluations will
be performed because this decision is made by the IEP team. §1414(c)(1).
evaluations are not required to determine continued eligibility if
notice of this fact is given to the parents, reasons are supplied,
the parents are advised of their right to require an evaluation and
the parents do not desire an evaluation. §1414(c)(4); 34 C.F.R.
Appropriate Public Education ("FAPE")
(20 U.S.C. §1401(18); 34 C.F.R. §300.13, 300.300?.313; State
Regs. Part I, Definitions; see also Va. Code §22.1-213.)
- special education and related services which:
Are provided at no cost and under public supervision;
Meet state standards;
Are based on an individualized education program ("IEP");
Include preschool, elementary, secondary and vocational education;
appropriate education does not require maximization of services. Board
of Education v. Rowley, 458 U.S. 176 (1982).
Individualized Education Plan
(20 U.S.C. §1401(11); 34 C.F.R. §300.346-.347)
IEP is appropriate if:
It is developed through the IDEA's procedures; and
The designated services are designed to confer educational benefit.
Board of Education v. Rowley, supra.
IEP must include the following items (20 U.S.C. §1414(d)(1)(A);
34 C.F.R. §300.346-.347).
Present level of educational performance, including
the affect of the child's disability on the child's involvement
and progress in the general curriculum; or
for preschool children, how the disability affects the child's
participation in appropriate activities.
Statement of measurable annual goals, including benchmarks or short-term
objectives related to:
meeting the child's needs that result from the disability so that
the child can be involved in and progress in the general curriculum;
meeting the other education needs that result from the disability;
Statement of the special education and related services and supplementary
aids and services to be provided to the child and a statement of
program modifications so that the child:
will advance toward attaining the annual goals;
be involved in and progress in the general curriculum and participate
in extracurricular and other nonacademic activities; and
be educated and participate with other children with disabilities
and nondisabled children;
Statement of the extent, if any, to which the child will not participate
with nondisabled children in the regular class or activities;
A statement of modifications needed for statewide or district-wide
testing or, if the student will not participate, a statement of
why the assessment is not appropriate and how the child will be
A statement of the beginning date for services and modifications,
anticipated frequency, location and duration (Note: location does
not necessarily mean school site; it means type of program such
as general education);
At age 14 and annually thereafter, a statement of the transition
service needs and at age 16, or younger if needed, according to
the IEP team, a statement of transition services and agency linkages;
At least one year before the child reaches the state age of majority,
a statement that the child has been informed of the transfer of
rights, if any, that will transfer at the age of majority; and
A statement of:
how the progress toward the annual goals will be measured; and
how often progress reports will be provided to the parents, but
no less frequently than are provided to parents of nondisabled
the progress reports must include:
the child's progress toward annual goals and
the extent to which this progress is sufficient to enable
the child to achieve the goals by year-end. §1414(d)(1)(A);
34 C.F.R. §300.347(a)(7).
IEP Team will consist of :
At least one regular education teacher, if the child participates
in regular education,
the regular education teacher will, to the extent appropriate,
participate in the IEP development including the determination
of appropriate positive behavioral interventions and strategies,
supplementary aids and services, program modifications and support
for school personnel (§1414(d)(3)(C)); 34 C.F.R. §§300.344,
At least one special education teacher or at least one special education
A representative of the Local Education Agency ("LEA")
qualified to provide or supervise the provision of specially designed
is knowledgeable about the general curriculum, and
is knowledgeable about the availability of resources;
An individual who can interpret the instructional implications of
evaluation results, although this member may be one of the other
IEP team members other than the parent;
Other individuals with knowledge or expertise regarding the child
as deemed appropriate by the parent or LEA; and
Whenever appropriate, the child. §1414(d)(1)(B); 34 C.F.R.
LEA must have in effect at the beginning of each school year an IEP
for each child with a disability in its jurisdiction. §1414(d)(2);
34 C.F.R. §300.342.
IEP team must consider:
The strengths of the child and the concerns of the parents for enhancing
the education of the child. §1414(d)(3)(A)(I); 34 C.F.R. §300.346(a)(1)(i);
The results of the initial evaluation or most recent evaluation.
(§1414(d)(3)(A)(ii); 34 C.F.R. §300.346(a)(1)(ii);
for children with behavioral concerns which impede learning for
the child or others, interventions, strategies and supports to
address the behaviors;
for children who are blind or visually impaired, instruction in
Braille, unless the IEP team determines after an evaluation that
Braille is not appropriate;
the communication needs of the child and for the deaf or hard
of hearing, consideration of the language and communication needs,
opportunities for direct communication in the child's language
and communication mode, academic level and full range of needs;
whether the child requires assistive technology devices and services.
§1414(d)(3)(B); 34 C.F.R. §300.346(a)(2).
Review and Revision (§1414(d)(4); 34 C.F.R. §300.346):
The IEP must be reviewed periodically but not less frequently than
annually to determine whether the annual goals are being achieved
The IEP must be revised to address:
Any lack of expected progress toward the annual goals and in the
The results of any reevaluation;
Information provided by the parents;
The child's anticipated needs; or
Other matters. §1414(d)(4)(A);
The regular education teacher must participate in the review and
revision of the IEP. §1414(d)(4)(B); 34 C.F.R. §300.346(d).
a participating agency does not provide identified transition services,
the IEP team must meet and develop alternative strategies to meet
the transition objectives. §1414(d)(5); 34 C.F.R. §300.348.
the required IEP components are set forth in one area of the IEP,
there is no need to include the information under another component.
§1414(e); 34 C.F.R. §300.346(e).
LEA shall take steps to ensure that one or both parents are present
or afforded the opportunity to attend the IEP meeting. §1414(f);
34 C.F.R. §300.345. This requirement includes:
Notifying parents of the meeting, its purpose and scheduled participants;
Scheduling at a mutually convenient time;
Considering telephonic meetings, if necessary;
Documenting efforts by LEA to include parents in the IEP process;
The meeting may take place without the parents if there is documented
refusal by the parents to be involved.
IEP must be developed within 30 days of the eligibility determination.
State Regs. §3.3.B.2.a(2).
LEA is not responsible for insuring that IEP goals and objectives
are met; however, the benefit received by a handicapped child from
implementation of the IEP must not be trivial. Hall v. Vance County
Board of Education, 774 F.2d 629 (4th Cir. 1985); Polk v. Central
Susquehanna Intermediate Unit 16, 853 F.2d 171 (3rd Cir. 1988).
is important that the LEA document both success in attaining IEP goals
and the benefit obtained from the educational program.
with Disabilities in Adult Prisons
is no requirement for children with disabilities in adult prisons
to participate in statewide or district-wide assessments;
is no requirement for transition planning if eligibility will end
because of their age before they will be released from prison; and
a child is convicted as an adult and is in an adult prison, the IEP
team may modify the IEP or placement without regard to general education
considerations and the least restrictive environment provision if
the State can demonstrate a bona fide security or compelling phenological
interest that cannot otherwise be accommodated. §1414(d)(6).
(§1401(22); 34 C.F.R. §300.24; State Regs. Part I, Definitions)
student is entitled to receive related services if:
The child is identified as disabled under the Act;
The related service is necessary for the child to benefit from a
special education program; and
The service is not a medical one. Irving Independent School District
v. Tatro, 468 U.S. 883 (1984).
of related services -- counseling, speech, recreation, transportation,
etc. The Reauthorized IDEA includes "orientation and mobility
services" as related services. §1401(22); 34 C.F.R. §300.22.
nursing services are required under the IDEA. Cedar Rapids Community
School District v. Garret F., __ U.S. __ (1999).
Alternatives and the Least Restrictive Environment
(§1412(a)(5); 34 C.F.R. §300.550-556; State Regs. §3.3.A.2).
of services: Resource; self-contained; special school for handicapped
only; residential facility; homebound; education in the hospital.
care is not an educational service which the school division must
provide. Matthews by Matthews v. Davis, 742 F.2d 825 (4th Cir.
1984); Burke County School Board v. Denton, 895 F.2d 973 (4th
residential placement is required when no less restrictive alternative
will produce benefit. Matthews by Matthews v. Davis, supra.
LEA has the responsibility for selecting the placement site, not the
parents. Schimmel v. Spillane, 819 F.2d 477 (4th Cir. 1987).
the neighborhood school is the preferred school for attendance, it
is not always the required location for the delivery of services.
Barnett v. Fairfax County School Board, 927 F.2d 146 (4th Cir),
cert. denied, 502 U.S. 859 (1991); Pinkerton v. Moye,
509 F. Supp. 107 (W.D. Va. 1981).
order for a student with disabilities to participate in the general
education class, he or she must be able to benefit from the instruction
in that class. Loudoun County School Board v. Hartmann, 118
F.3d 996 (4th Cir. 1997), cert. denied, 118 S. Ct. 688 (1998).
rules now apply for children placed by their parents in private schools
when a free appropriate public education is available in the public
The LEA must expend a proportionate amount of federal funds, consistent
with the numbers of these children, to provide special education
and related services to children with disabilities placed by their
parents in a private school. §1412(a)(10)(A)(I); 34 C.F.R.
There is no individual entitlement to services by these privately
enrolled children so long as total funds expended on some of the
private school children equals the proportionate share of total
federal funds; 34 C.F.R. §§300.454(a).
Services may be provided on the site of the private school, even
if a parochial school, so long as there is no conflict with law.
§1412(a)(10)(A)(II); 34 C.F.R. §300.456.
Reimbursement under the Act (Va. Code §22.1-216)
assistance is provided when the LEA cannot meet the child's educational
needs in a public program. Burlington School Committee v. Dept.
of Education, 471 U.S. 359 (1985); see also 34 C.F.R. §300.349;
State Regs. §3.3.B.8.
assistance may be ordered for a program which is not state?approved.
Florence County School District Four v. Carter, 510 U.S. 7,
114 S. Ct. 361 (1993).
certain situations, parents may make the placement themselves and
seek reimbursement from the LEA. Burlington School Committee v.
Department of Education, supra.
Test for tuition reimbursement:
The LEA's IEP must be found to be inappropriate; and
The placement made by the parents must be shown to be appropriate.
Rules have been established in cases where the students are placed
by their parents in private schools and for whom tuition reimbursement
is subsequently sought from the school district.
The first rule regarding these placements does not reflect a change.
There is no obligation for the school district to pay for parental
placements in private schools if the school district has made
a free appropriate public education available to the child with
disabilities. §1412(a)(10)(C); 34 C.F.R. §300.403.
The school district will be liable for the private school tuition
only if a hearing officer or the court finds that the school district
had failed to offer a free appropriate public education. §1412(a)(10)(C)(ii);
Hall v. Vance County Board of Education, supra;
Board of Education of Cabell County v. Dienalt, 843 F.2d
813 (4th Cir. 1988).
Tuition reimbursement for private school placements made by the
parents will be reduced or denied in total if:
At the most recent IEP meeting or at least 10 business days before
the child was removed from the public schools, the parent did
not inform the IEP team or school district, as appropriate, of:
the rejection of the school district's placement,
their concerns with the IEP, and
their intent to place the child in private school at public
expense. §1412(a)(10)(C)(iii); 34 C.F.R. §300.403(d).
This limitation will not apply if:
the parents are illiterate,
physical or emotional harm would occur to the student,
the school prevented the parent from providing notice or
the school failed to advise the parents that they had to give
written notice. §1412(a)(10)(C)(iv).
Tuition may also be reduced or denied if, prior to the removal to
private schools, the school district informed the parents through
notice requirements of the intent to evaluate the child and the
child was not made available for an evaluation. §1412(a)(10)(C)(iii)(II);
34 C.F.R. §300.403(d),
Upon a judicial finding that the parents have acted unreasonably.
The parents' violation of the status quo provision
of §1415(j) does not automatically result in a waiver of their
reimbursement rights. Burlington School Committee v. Department
of Education, supra; Florence County School District
v. Carter, supra.
Children placed by the School District in Private Schools
Students who are placed privately by the school district must
be provided a free appropriate public education at no cost to
the parents. §1412(a)(10)(B)(I); 34 C.F.R. §300.400-402.
SCHOOL YEAR SERVICES UNDER THE IDEA
Year Services ("ESY") Must Be Provided to Qualified Students
with Disabilities. 34 C.F.R. §300.309.
the IDEA, a school division may not limit special education services
to 180 school days. Such a limitation is contrary to a determination
of the necessary components for a free appropriate public education.
An inflexible 180 day limitation is at odds with considering the unique
needs of the child. Battle, et al. v. Commonwealth of Pennsylvania,
et al., 629 F.2d 269 (3rd Cir. 1980).
failure of Congress to address extended school year services in the
IDEA does not, by implication, authorize the provision of a traditional
nine-month program. Georgia Association of Retarded Citizens, et
al. v. McDaniel, et al., 740 F.2d 902 (11th Cir. 1984).
for an Extended Year Services Is Based On the Individual Student's Needs.
34 C.F.R. §300.309.
determination of whether a handicapped student requires summer school
services in order to receive a free appropriate public education is
made by the IEP Committee. 1978-87 EHA Rulings, EHLR 211:481 (Aug.
12, 1987); Lawyer v. Chesterfield County School Board, supra;
34 C.F.R. §300.309(a)(2).
all students require ESY. Bales v. Clarke, 523 F. Supp. 1366
(E.D. Va. 1981).
need for summer school services is made each year in an IEP meeting.
There is no automatic renewal or denial. Schwartz v. County of
Nassau. 489 N.Y.S. 2d 274 (App. Div. N.Y. 1985).
length of time that ESY services are provided must be determined on
a case-by-case basis. A school division cannot allow the length of
ESY services to be dictated by the schedule of a private service provider.
Hamilton County Schools (TN), 18 IDELR 338 (Oct. 18, 1991).
proof of regression is not necessary before finding that ESY services
are needed. Need for ESY services can be shown by empirical data as
well as expert opinion based on professional assessment. Cordrey
v. Eukert, 917 F.2d 1460 (6th Cir. 1990).
to consider in determining whether ESY services should be offered
are: (a) degree of regression, (b) recovery time, (c) ability of parents
to supplement in the summer, (d) the child's rate of progress, (e)
the child's behavior and physical problems, (f) avail-ability of alternate
resources, (g) peer relationships, (h) continuous educational needs,
(I) vocational needs, and (j) whether the requested services are extraordinary
given the child's handicap. Johnson v. Independent School District
No. 4 of Bixby, Tulsa County, Oklahoma, 921 F.2d 1022 (10th Cir.
1990). See also Richfield Joint School District No.
1 (WI), 18 IDELR 168, 171 (September 9, 1991).
Day Programs Might Be Required During the Regular School Year.
regular education students are allowed to participate in an after-school
Latch Key program, handicapped students must be given an equal opportunity
to participate. Board of Education of the City of New York (NY),
16 EHLR 373 (Dec. 6, 1989).
in-home behavior management program may be required under IDEA but
is not required when a student is receiving a free appropriate public
education without the home component. Burke County Board of Education
v. Denton, supra.
Restrictive Environment (Sometimes Erroneously Referred to as Inclusion).
is no mention in special education law of the terms inclusion or full
inclusion. Courts also have not adopted the term in their decisions
dealing with mainstreaming. Even the U.S. Department of Education
notes that the term "inclusion" is not found in special
education law and is not a defined term. OSEP Memorandum 95-9,
21 IDELR 1152 (1994).
state must establish procedures to assure that, "To the maximum
extent appropriate, children with disabilities . . . are educated
with children who are not disabled, and that special classes, separate
schooling, or other removal of children with disabilities from the
regular educational environment occurs only when the nature or severity
of the disability is such that education in regular classes with the
use of supplementary aids and services cannot be achieved satisfactorily.
. . ." 20 U.S.C. §1412(a)(5)(A).
requirement to educate children with disabilities with children who
do not have disabilities to the maximum extent appropriate is restated
in the Federal Regulations. 34 C.F.R. §300.550.
public agency shall ensure that a continuum of alternative placements
is available to meet the needs of the children with disabilities.
34 C.F.R. §300.551(a).
decisions should be made at least annually, be based on an IEP and
be as close as possible to the child's home. 34 C.F.R. §300.552.
selecting the least restrictive environment, consideration should
be given to any potential harmful effect on the child or on the quality
of services that he or she needs. Id.
should also be given to any potential harmful effect on the education
of other students. 34 C.F.R. §300.552(d).
Students with disabilities are to be educated with non-handicapped
students "to the maximum extent appropriate." 34 C.F.R.
Consideration should also be given to the proximity to the child's
Restrictive Environment Cases.
v. Loudoun County Board of Education, 118 F.3d 996 (4th Cir. 1997),
cert. denied, 118 U.S. 688 (1998). The Fourth Circuit
held that an eleven year old autistic student was not appropriate
for placement in a regular education class because (1) he would simply
be monitoring the classes and would require a different curriculum;
(2) he would not benefit from instruction in that class; and (3) his
disruptive behaviors would negatively affect the education of the
regular education students. The district court had found the credentials
of the properly certified teachers who worked with the student to
be lacking with regard to training in working with autistic students.
The Fourth Circuit found, however, that "[n]ot all school systems
will have the resources to hire top-notch consultants, nor will every
school have the good fortune to have personnel who were involved in
a major state program related to the needs of every disabled child.
We note that in Virginia, there is no certification for autism. .
. . [The teachers] were clearly qualified to work with Mark as special
educators. . . . To demand more than this from regular education personnel
would essentially require them to become special education teachers
trained in the full panoply of disabilities that their students might
have. Virginia law does not require this, nor does the IDEA. . . ."
The decision of the district court was reversed. The Supreme Court
of the United States refused to review this case.
R.R. v. State Board of Education, et al., 874 F.2d
1036, 1048 (5th Cir. 1989). In determining whether a student is in
the least restrictive environment, consideration should be given to
(1) whether education in the regular classroom with the use of supplemental
aids and services can be achieved satisfactorily for a given child;
and (2) if not, whether the school has mainstreamed the child to the
maximum extent appropriate. "[T]he Act does not require regular
education instructors to devote all or most of their time to one handicapped
child or to modify the regular education program beyond recognition."
The factors which the court will consider in addressing this test
are (1) whether consideration has been given to accommodating the
child in the regular class; (2) whether the child will receive any
educational benefit from regular education; and (3) what effect the
child's presence has on regular education students.
v. Rome City School District, 950 F.2d 688, 696 (11th Cir. 1991).
The court adopted the Daniel R.R. test. During the development
of the IEP, ". . . school officials should consider the full
range of supplemental aids and services that may be provided in conjunction
with regular classroom education, and they should share these considerations
with the child's parents at the IEP meeting. It is not sufficient
that school officials determine what they believe to be the appropriate
placement for a handicapped child and then attempt to justify this
placement only after the pro-posed IEP is challenged by the child's
parents." The Greer court added as a consideration the
cost of the supplemental aids and services. Id. at 697. (NOTE:
This opinion was withdrawn when jurisdiction was questioned (956 F.2d
1025) and later reinstated (967 F.2d 78).
v. Bd. of Education of the Borough of Clementon School Dist.,
995 F.2d 1204 (3rd Cir. 1993). Downs syndrome child was removed from
the regular classroom and placed in a segregated special education
class. The court adopted the Daniel R.R. test in reviewing
the case rather than the Roncker test adopted by the district
court. (NOTE: The school district did not raise cost as an issue and
the court did not consider cost.) The court held that Raphael was
entitled to placement in a regular class because the school district
did not prove by a preponderance of the evidence that he could not
be satisfactorily educated in a regular classroom with supplementary
aids and services. Although Raphael had been disruptive in the past,
there was nothing in the record to suggest that, at the point in time
the court was considering the case, he would be a behavior problem
in regular classes.
v. Portland School Committee, 998 F.2d 1083 (1st Cir. 1993). Student
who might make more educational progress in a residential placement
is not entitled to that placement if it is established that the student
could make educational progress in a day program. The day program
allowed Daniel to live at home with the support of the parents, to
have the opportunity to be educated with nondisabled peers and to
interact with the members of his community.
Independent School Dist. v. Todd L., 999 F.2d 127 (5th Cir. 1993).
Seventeen-year-old boy who had disorders of affect, behavior, learning
and speech did not require hospitalization for educational reasons.
The school district had proposed an IEP which called for one-on-one
instruction during a reduced school day of two hours. Todd had received
"significant benefit" from his public school placement,
and whether he benefited at the private placement was questionable.
The court held that Todd did not require removal from his home community
and from any contact with nondisabled peers, and that Todd "could
not only cope, but thrive, in a less restrictive setting."
City Unified School District v. Rachel H., 14 F.3d 1398 (9th Cir.
1994). Eleven year old student with IQ of 44 was appropriate for placement
in a second grade class. Court adopted a combination of the Roncker
and Daniel R.R. tests.
v. Shawnee Mission School Dist. (U.S.D. No. 512), 856 F. Supp.
1521 (D. Kan. 1994). Student who had pervasive developmental disorder
and attention deficit hyperactivity disorder had been placed in a
private residential facility by his parents. His academic skills were
above grade level in all areas. The court held that a residential
placement was not required to remedy problems the student was having
at home. Counseling and support for the parents may be a part of related
K. and Sheila K., Guardians for Ryan K. v. Puyallup School Dist.,
35 F.3d 1396 (9th Cir. 1994). The court held that the burden of proof
in mainstreaming cases is not on the school district, but rather it
is on the party bringing the lawsuit. In determining the least restrictive
environment, the court said it must consider (1) the academic benefits
of the placement in a mainstream setting, with any supplementary aids
and services that may be appropriate; (2) the nonacademic benefits
of a mainstream placement, such as language and behavior models; (3)
the negative effects the student's presence may have on the teacher
and other students; and (4) the cost to educate the student in the
mainstream environment. The conclusion of the court was that a student
who directed sexually explicit remarks to female students and whose
behavior interfered with the ability of other students to learn was
not appropriate for placement at a regular junior high school and
required a placement in a separate self-contained program.
v. Jefferson County School District R-1, 870 F. Supp. 1558 (D.
Colo. 1994), aff'd, 89 F.3d 720 (10th Cir. 1996). Nineteen-year-old
trainable mentally disabled student who functioned as a two to three
year old was not appropriate for placement in his neighborhood school.
Mainstreaming is not required in every case. It should be considered,
however, whether a child would benefit from non-academic experiences
in a regular education environment even though functioning at a much
lower level than the other students in the class.
modifications to the regular program must be stated in the IEP. Letter
to Anonymous, 20 IDELR 541 (OSEP 1993).
is not necessary that a student fail in a regular classroom before
a more restrictive environment is attempted. The IEP dictates the
placement based on the child's unique needs. Letter to Anonymous,
20 IDELR 1168 (OSEP 1993).
neighborhood school should be the first placement option considered.
Letter to Johns, 21 IDELR 571 (OSERS 1994).
must be placed based on least restrictive environment considerations
as dictated by the IEP. The amount of participation in regular education
is an IEP decision. If supplementary aids and services are required,
they must be described in IEP. OSEP Memorandum 95-9, supra.
LEA must establish and maintain a system of guaranteed procedural safeguards
for children with disabilities and their parents regarding the provision
of a free appropriate public education. §1415(a).
must be established for:
of records relating to the child,§1415(b)(1); 34 C.F.R. §300.501(a);
in meetings relating to identification , evaluation, educational placement
and the provision of a free appropriate public education, §1415(b)(1);
34 C.F.R. §300.501(b);
of an independent educational evaluation of the child, §1415(b)(1);
34 C.F.R. §300.502;
parent procedures to protect the rights of the child, §1415(b)(2);
34 C.F.R. §300.515;
prior notice to the parents whenever the LEA:
Proposes to initiate or change; or
Refuses to initiate or change the identification, evaluation or
educational placement of the child or the provision of a free appropriate
public education §1415(b)(3); 34 C.F.R. §300.503;
of prior notice in the native language of the parents, unless clearly
not feasible, §1415(b)(4);
opportunity for mediation, §1415(b)(5);
opportunity to present complaints with respect to matters relating
to identification, evaluation or educational placement or the provision
of a free appropriate public education, §1415(b)(6);
from the parent or attorney with regard to any complaint filed which
The name, address of residence and school the child is attending;
A description of the nature of the problem and facts relating to
the problem; and
A proposed resolution of the problem to the extent known and available
to the parents, §1415(b)(7); and
of a model form by the state which will assist the parent in giving
the information required for the filing of complaints. §1415(b)(8).
of prior written notice:
description of the action proposed or refused by the LEA;
explanation of why the agency is taking the action;
description of other options considered and rejected;
description of information considered in making the determination;
description of other relevant factors;
statement that the parents have procedural safeguards available to
them and how to obtain a copy, unless the LEA was required to provide
a copy with the notice; and
for the parent to obtain assistance in understanding the procedural
safeguards. §1415(c); 34 C.F.R. §300.503(b).
notice of procedural safeguards must be given at a minimum on these
initial referral for an evaluation;
notice of an IEP meeting;
any reevaluation; and
a complaint is registered. §1415(d)(1); 34 C.F.R. §300.504(a).
notice of procedural safeguards must include a full explanation of the
procedural safeguards, written in the native language of the parents
unless clearly not feasible, and written in a clearly understandable
manner and which gives notice of the following rights:
to educational records;
to present complaints;
child's placement during the pendency of due process proceedings;
for students placed in an interim alternative educational setting;
related to placement by parents in private schools;
process hearings, including requirements for disclosure of evaluations
fees. §1415(d)(2); 34 C.F.R. §300.504(b).
state must establish procedures to resolve disputes through the mediation
process. §1415(e)(1); 34 C.F.R. §300.506(a).
mediation procedures must ensure:
Mediation is voluntary on the part of the parties;
Mediation will not delay due process hearings or other rights; and
A qualified, impartial and trained mediator is used. §1415(e)(2)(A);
34 C.F.R. §300.506(b).
LEA or state may establish voluntary procedures requiring parents
to attend a meeting which explains the benefits of mediation when
the parents have rejected mediation. §1415(e)(2)(B); 34 C.F.R.
state must bear the cost of the mediation process. §1415(e)(2)(D);
34 C.F.R. §300.506(b)(3).
agreements reached as a result of mediation must be reduced to writing.
§1415(e)(2)(F); 34 C.F.R. §300.506(b)(5).
held during the mediation process are confidential and may not be
used as evidence in any subsequent due process hearings or civil proceedings
and a confidentiality pledge signed by the parties may be required.
§1415(e)(2)(G); 34 C.F.R. §300.506(b)(6).
Due Process Hearings.
process hearings can be initiated over disputes concerning identification,
evaluations, the need for independent evaluations, educational placement,
or the provision of a free appropriate public education. Va. Code
§22.1-214; State Regs. §3.4.A.2; §1415(b)(2); 34 C.F.R.
hearing must be requested within two years for disputes arising on
or after July 1, 1995, and within one year for disputes arising prior
to that date. Manning by Manning v. Fairfax County School Board,
Civil Action No. 95-1181-A, 23 IDELR 639 (E.D. Va. Dec. 15, 1995);
Schimmel v. Spillane, supra; Richards v. Fairfax
County School Board, 7 F.3d 225 (4th Cir. 1993); School Board
v. Nicely, 12 Va. App. 1051 (1991).
hearing is conducted by an impartial hearing officer. 34 C.F.R. §300.508.
In Virginia, the hearing officer is appointed by the Supreme Court
of Virginia. State Regs. §3.4.A.6.
parties have the right to have counsel at the hearing, to present
evidence, to cross-examine witnesses and to compel the attendance
of witnesses. 34 C.F.R. §300.509; State Regs. §3.4.A.9;
Va. Code §22.1-214.1.
Five business days in advance of a due process hearing, each party
must disclose to all other parties all evaluations and recommendations
based on the evaluations which they intend to use at the hearing.
34 C.F.R. §300.509(a)(3) & (b).
The hearing officer may bar the evaluation and recommendations if
a party fails to disclosed them timely. §1415(f)(2); 34 C.F.R.
Any party to a hearing has the right to prohibit any evidence at
the hearing that has not been disclosed at least five business days
before the hearing. Documents may be subpoenaed. 34 C.F.R. §300.509(a)(3);
State Regs. §3.4.A.9.a(3); Va. Code §22.1-214.1.
verbatim written record, or, at the option of the parents, an electronic
record must be made of the hearing. 34 C.F.R. §300.509(a)(4);
State Regs. §3.4.A.8.
decision must be issued in writing within 45 calendar days of the
request for the hearing. State Regs. §3.4.A.10.
hearings are provided for discipline cases. 34 C.F.R. §300.525(a)(2).
appeal must be noted within 30 administrative days. State Regs §3.4.A.10(i).
record is reviewed and additional evidence is taken, if necessary.
State Regs §3.4.A.11; 34 C.F.R. §300.510; Springer v.
Fairfax County Schools, 134 F.3d 659 (4th Cir. 1998); Lewis
v. School Board of Loudoun County, 808 F. Supp. 523 (E.D. Va.
state review proceeding must be concluded within 30 days. State Regs.
appears that an appeal to court now must be filed within two years
for decisions issued on or after July 1, 1995. Va. Code §8.01-248.
Previously it was one year.
may be made to state or federal court. Va. Code §22.1-214D; §1415(i)(2)(A).
court will receive the administrative record, take "additional
evidence" at the request of a party and make its decision based
on a preponderance of the evidence. §1415(i)(2)(B).
term "additional evidence" means supplemental evidence.
Witnesses may not repeat or embellish their prior testimony, and testimony
that was or could have been presented to the administrative hearing
is not considered "additional evidence" and is properly
excluded. Springer v. Fairfax County Schools, supra.
decisions of the hearing officers are entitled to due deference and
the findings of fact are to be considered as prima facie
correct. Doyle v. Arlington County School Board, 953 F.2d 100
(4th Cir. 1991).
burden of proof is on the appealing party. Barnett v. Fairfax County
School Board, supra.
What is the stay-put placement during litigation? 34 C.F.R. §300.514(c).
OF STUDENTS WITH DISABILITIES
of School Personnel (§1415(k)(1)); 34 C.F.R. §300.519-529.
personnel may order a change in placement of a child with a disability
without parental permission under the following circumstances:
Placement for not more than ten school days in an interim alternative
educational setting, another setting or suspension to the same extent
these alternatives would be applied to nondisabled students; or
Placement in an appropriate interim educational setting for not
more than forty-five calendar days and for not more than the same
amount of time as a nondisabled student would be disciplined if:
the student carries or possesses a weapon at school or at a school
the student knowingly possesses or uses illegal drugs or sells
or solicits the sale of a controlled substance while at school
or a school function; 34 C.F.R. §300.520.
interim alternative educational setting for the 45-day placement is
determined by the IEP team. §1415(k)(3)(A); 34 C.F.R. §300.520(a)(2).
The term "controlled substance" means a drug or other
substance set forth in schedules I, II, III, IV, or V in Section
202(c) of the Controlled Substances Act. 20 U.S.C. §1415(k)(10)(A);
34 C.F.R. §300.520(d)(1). See also Section 21 U.S.C. §812(c).
"Illegal drug" means a controlled substance, but does
substances that are legally possessed or used under the supervision
of a licensed health care professional; or
legally possessed or used under the Controlled Substances Act
or any other authority in federal law. 20 U.S.C. §1415(K)(10)(B).
"Weapon" means "a weapon, device, instrument, material
or substance, animate or inanimate, that is used for, or is readily
capable of, causing death or serious bodily injury, except that
such term does not include a pocket knife with a blade of less than
2 1/2 inches in length. See 18 U.S.C. §930(g)(2); 34
IDEA requires school personnel, in situations where the discipline
is a change in placement, to hold an IEP meeting either prior to the
disciplinary action or no later than 10 business days after the action
is taken in order to:
Develop a behavioral assessment plan for intervention regarding
the behavior that resulted in the suspension, if this behavioral
intervention plan had not been developed before the misconduct,
Review the behavioral intervention plan and modify it if necessary
in order to address the behavior, if a plan was already in place.
§1415(k)(1)(B); 34 C.F.R. §300.520(b).
of Hearing Officer (§1415(k)(2)); 34 C.F.R. §300.521.
hearing officer may order a change in placement of a child with a
disability to an appropriate interim alternative educational setting
for not more than forty-five calendar days if he or she considers:
whether there is substantial evidence to demonstrate that keeping
the student in the current placement will be substantially likely
to result in injury to the child or to others;
Whether the current placement is appropriate;
Whether the public agency has made reasonable efforts to minimize
the risk of harm in the current placement through the use of supplementary
aids and services; and
Whether the interim placement will enable the child to continue
to participate in the general curriculum, although in another setting,
to receive the services and modifications set forth in the student's
IEP and to meet the IEP goals. §1415(k)(2).
a placement is made in an alternative setting by the LEA due to weapons
or drugs or by a hearing officer due to the substantial likelihood of
risk of injury, the IEP team or hearing officer, as appropriate, must
the interim placement will enable the child to continue in the general
curriculum, although in a different setting and to continue to receive
services and modifications as set out in the current IEP so the child
will meet the IEP goals; and
the interim placement will include services and modifications designed
to address the behaviors so that they do not recur. 20 U.S.C. §1415(k)(3)(B);
34 C.F.R. §300.522.
hearing and change in placement
school district may seek an expedited hearing to change a student's
current placement during the pendency of due process proceedings if
the LEA maintains that it is dangerous to keep the student in the
current placement pending the hearing. In making this determination,
the hearing officer must consider the factors set forth in sections
B and C above. §1415(k)(7)(C); 34 C.F.R. §300.526(c).
evidence" means beyond a preponderance of the evidence. §1415(k)(10)(C).
disciplinary action is proposed for behaviors involving drugs, weapons
or for a change in placement, there are a number of actions required
to be taken by the school district.
Give notice of the decision and of procedural safeguards to the
parents not later than the date on which the decision is made to
take disciplinary action (§1415(k)(4)(A)(i)) and
Conduct a review of the relationship between the misconduct giving
rise to the discipline and the disability immediately, if possible,
but not later than 10 school days after the decision is made to
take action. §1415(k)(4)(A)(ii); 34 C.F.R. §300.523.
manifestation team shall be composed of the IEP team and other qualified
personnel. §1415(k)(4)(B); 34 C.F.R. §300.523(b).
IEP team is to make its manifestation review by considering the following
All information relevant to the specific behavior including evaluation
and diagnostic results including those supplied by the parents,
observations of the student, and the student's IEP and placement.
§1415(k)(4)(C); 34 C.F.R. §300.523(c).
IEP team must then determine whether:
In relationship to the behavior subject to disciplinary action,
the student's IEP and placement were appropriate and the special
education services, supplementary aids and services, and behavior
intervention strategies were provided consistent with the IEP;
The disability impaired the ability of the student to understand
the impact and consequences of the behavior giving rise to the disciplinary
The disability impaired the ability of the child to control the
behavior subject to disciplinary action. §1415(k)(4)(C)(ii);
34 C.F.R. §300.523(c)(2).
the IEP team determines that the behavior of the student was not a
manifestation of the student's disability, the student may be subject
to the same disciplinary procedures applicable to children without
disabilities except that the student must be provided educational
person in the school district who makes the final decision about whether
to discipline the student with disabilities must be provided with the
special education and disciplinary records of the student. §1415(k)(5)(B);
34 C.F.R. §300.524(b).
by parents of manifestation determination
parent can request a due process hearing when he or she disagrees
with the manifestation determination. 34 C.F.R. §300.525.
expedited hearing must be provided if requested by a parent. §1415(k)(6).
reviewing the manifestation decision, the hearing officer must look
at the required manifestation criteria and consider the criteria for
determining the appropriate interim alternative educational setting.
child remains in the current educational setting during due process
hearings to contest the manifestation determination unless the LEA
has acted under the drug and weapons exceptions, or the LEA has obtained
a ruling from a hearing officer lifting stay-put due to likelihood
of injury or the parent and the LEA agree otherwise. In cases involving
drugs, weapons or a change in placement due to a substantial likelihood
of injury, the child must return to the current placement prior to
the interim alternative education setting at the end of forty-five
calendar days unless the parents and the LEA agree otherwise. §1415(k)(7);
34 C.F.R. §300.526.
expedited hearing may be requested when it would be dangerous for
the student to remain in the current placement. The hearing officer
may order an interim alternative education placement if he or she
considers the factors governing alternative education placement. §1415(k)(7)(C).
not Yet Determined to be Disabled
child who has not been found eligible may be protected under these
procedures if the LEA had knowledge that the child had a disability
prior to the misconduct. §1415(k)(8)(A); 34 C.F.R. §300.527.
of a disability for those not formally identified will arise if:
The parent has expressed concern in writing (unless the parent is
illiterate or cannot write due to a disability) that the child is
in need of special education and related services;
The behavior of the child demonstrates that the student qualifies
as disabled and needs special education and related services;
The parent has requested an evaluation of the child; or
The teacher or other LEA personnel have expressed concern about
the behavior or performance of the child to the director of special
education or to other LEA personnel in accordance with child find
procedures. §1415(k)(8)(B); 34 C.F.R. §300.527(b)(4).
there is no knowledge of disability attributable to the LEA:
The LEA can subject the child to the same disciplinary measures
as are used for nondisabled children. §1415(k)(8)(C)(I); 34
If a request is made for an evaluation while the child is being
disciplined, an expedited evaluation must be conducted.
If the child is found to have a disability, special education
and related services must be provided.
No special education and related services are required during
the evaluation. §1415(k)(8)(C)(ii); 34 C.F.R. §300.527(d)(2).
with disabilities, who commit crimes or require other judicial intervention,
may be reported to law enforcement officials and judicial authorities.
§1415(k)(9); 34 C.F.R. §300.529.
Provisions Governing Attorneys' Fees under IDEA.
any action or proceeding brought under this subsection, the court,
in its discretion, may award reasonable attorneys' fees as part of
the costs to the parents or guardian of a child or youth with a disability
who is the prevailing party." §1415(I)(3)(B); see also 34
provision is made in the law for an award of attorneys' fees to prevailing
school districts. See, Board of Education of Northfield
Township High School District 225 v. Roy H. and Lynn H., individually
and as parents of Elizabeth H., Civil Action No. 93-C-3252, 21
IDELR 1173 (E.D.N.D. Ill. January 12, 1995). ("Because the statute
pointedly authorizes attorneys fees only for the parents of the disabled
child without providing a reciprocal right for the state educational
agency, we deem [the school district's] request for attorneys fees
based on IDEA to be inappropriate." Id. at 1174).
of Attorney's Fees and Related Costs for Certain Services
fees are not allowed for attendance at IEP meetings unless the meeting
is convened as a result of an administrative proceeding or judicial
action, or, at the state's discretion, at mediation conducted prior
to filing a complaint. §1415(I)(3)(D)(ii); 34 C.F.R. §300.513(c)(2).
fees may be reduced if the attorney representing the parent did not
give notice to the LEA of the information required in the due process
complaint. §1415(I)(3)(F)(iv); 34 C.F.R. §300.513(c)(4)(iv).
v. Botetourt County School Board, 26 IDELR 535 (W.D. Va. 1997)
-- Plaintiff lost his attempt to have the school's educational placement
declared inappropriate. However, the hearing officer ordered the School
Board to reimburse Plaintiff for previous counseling and to pay for
future psychiatric care. The School Board refused to reimburse Plaintiff
for his attorney's fees, arguing that Plaintiff was not the prevailing
party despite the fact that the hearing officer had ordered counseling,
etc. The Court disagreed with the School Board, holding that the hearing
officer had "'altered the legal relationship between the parties'
by modifying the School Board's behavior in a way that directly benefited
[Plaintiff.]" Therefore, Plaintiff was the prevailing party.
However, the inquiry did not end there, as the Court has the discretion
to identify specific hours billed by the attorney that should be eliminated,
or the Court may "simply reduce the award to account for limited
successes." The Court did not consider work performed on Plaintiff's
first Complaint that was dismissed. Also, Plaintiff did not succeed
to the degree necessary to warrant an award of full attorney's fees.
Finding it impracticable to separate the time and effort by Plaintiff's
counsel in securing additional psychiatric counseling from the time
spent on other issues raised at the due process hearing, the Court
awarded one-third of Plaintiff's fees.
v. Southampton County Public Schools, 25 IDELR 1193 (E.D. Va.
1997) -- Plaintiffs were not "prevailing parties" and therefore
attorneys' fees were denied. Plaintiffs had been dissatisfied with
the IEP, obtained private evaluations, and presented their own expansive
IEP proposal to the School Board. The School Board then revised its
own IEP which borrowed some elements from the Plaintiffs'. The revised
IEP was deemed appropriate and the Plaintiffs' inappropriate. Plaintiffs'
theory that they had prevailed because their efforts served as a catalyst
to effectuate the desired change had been previously rejected by the
Fourth Circuit in S-1 & S-2 v. State Bd. of Educ. of North
Carolina, 21 F.3d 49, 51 (4th Cir.)(en banc), cert. denied,
115 S. Ct. 205 (1994). Plaintiffs had no enforceable judgment, consent
decree, or settlement, and therefore were not the prevailing party.
Further, the facts were similar to those found in Combs v. School
Bd. of Rockingham County, 15 F.3d 357 (4th Cir. 1994), where the
Court held that the School Board's actions were unilateral and were
not the result of the administrative proceedings. Quoting Combs,
the Court held that allowing the Plaintiffs to recover fees would
discourage schools from taking "any action whatsoever, particularly
any favorable change in a child's IEP, . . . for fear that any action
on its part would give rise to a claim by the plaintiff that he prevailed
and that attorneys' fees are in order."
v. Gosling, 26 IDELR 1135 (4th Cir. 1997) (unpublished) -- Plaintiffs
claimed they were the prevailing parties because they obtained, at
the administrative level, (1) weekly reports detailing the special
education services rendered to Anna during the past week; (2) the
imposition of the ten-day limit before they must be notified if special
education services will be suspended in the future pursuant to Honig;
and (3) an input as into what, how, and where compensatory services
will be provided if there is a suspension of services in the future.
The Court denied attorneys' fees. First, with respect to the weekly
reports, the Plaintiffs' efforts did not contribute to the resolution
of a problem that could have been achieved without resort to administrative
or legal process. Plaintiffs did not give adequate notice and the
opportunity to provide weekly reports before they sought administrative
action. Second, regarding the ten-day limitation, the reviewing officer
made only a "favorable judicial statement of law in the course
of litigation," which is insufficient to render Plaintiffs the
prevailing party. Third, the Plaintiffs had waived the claim regarding
compensatory services because they had not raised it in the district
court, and the reviewing officer did not explicitly give the Plaintiffs
input as to what, how, and where services would be provided.
Copyright © 1999-2014, Peter W.
D. Wright and Pamela Darr Wright.
All rights reserved.