I remember seeing many educators wearing lapel pins bearing the inspiring slogan: ALL CHILDREN CAN LEARN. That slogan reflected more than a lofty goal—it was the law. The 1st Circuit Court of Appeals established that in 1989 in Timothy W. v. Rochester, N.H. School District, 875 F.2d 954. The school district in that case argued that Timothy was so severely disabled that he was incapable of receiving any benefit from education. The school argued that the boy needed care and medical attention, but “education,” as we understood it, would not do any good. Therefore, the school argued, it was not required to keep trying.
The court rejected that argument, relying largely on the title of the law at the time: The Education for ALL Handicapped Children Act (Emphasis added). Key Quotes:
The language of the Act could not be more unequivocal.
It never speaks of any exceptions for severely handicapped children.
The language of the Act in its entirely makes clear that a “zero-reject” policy is at the core of the Act.
Now, 31 years later, a federal court in Minnesota has found a child for whom “zero-reject” does not apply. The facts of the case are horrific. As a result of an asthma attack that happened at school and was allegedly very badly handled, the student is now in a permanent vegetative state. The parents are now seeking damages under the ADA, Section 504, state law and medical malpractice standards. The legal fight was over whether or not the parents were required to exhaust their administrative remedies under IDEA before filing suit. The court held that they were not, and in doing so, made some observations that are contrary to the “zero-reject” philosophy of the law. Key Quotes:
Because of the present condition of [the student]….the Court finds that there are no available remedies under the IDEA that would benefit her as she is unable to receive any form of education.
Thus the parents were allowed to proceed with their suit, seeking recovery for monetary and other damages they have suffered. Given the issue at stake, the court’s ruling makes sense. The parents were not seeking any educational services from the district, so why should they have to pursue such services through a special education due process hearing? But I suspect that the case would have a different outcome if the parents were seeking a new IEP or some new or different services from the district. In that context, the court would have likely cited Timothy W. and ordered the district to keep on keeping on in an effort to serve this student.
The case is A.K.B. v. ISD No. 194, decided by the federal district court for Minnesota on March 26, 2020. We found it at Special Ed Connection, 76 IDELR 129.
DAWG BONE: ALL CHILDREN CAN LEARN—YES, STILL THE LAW.
Tomorrow: Toolbox Tuesday!!