The case was about eligibility for special education.  The school provided special education services to the student for a while, but ARD-ed him out in May, 2013 on the basis of “no need.” The parent agreed with that at the time, but later sought to get the student back into special ed.  The ARD said no, and the parent sought a due process hearing. And then another one.  The district prevailed in both hearings and then the parent appealed to federal court.   The court ruled in favor of the district, ordering the case dismissed.  We can learn three things from the court’s decision.

First, in special education matters, the law starts out with an assumption that the school district did nothing wrong.  The parent bears the burden of overcoming that assumption.  Moreover, it remains this way even if the parent wins the special education due process hearing and the school district appeals into federal court.  The court put it this way:

Regardless of which party prevailed at the TEA level, the burden of proof is on the party challenging the school district’s decision, in this case, the Plaintiff.

In this case, the school district was victorious at the TEA level and at the courthouse, but it is interesting to note that the burden of proof is on the parent either way.

Second, testimony from experts who have not observed the child in the school setting is of limited value.  In this case the parent produced an MHMR counselor, but the court noted that she “had not observed [the student] in the classroom setting.”  Then there was the psychiatrist who “testified that he had not observed [the student] in a school setting or with peers” after the relevant date.  The parent also produced a psychologist who “never observed [the student] in an educational setting or with peers.  Neither had he spoken with any of [the student’s] teachers or administrators.”   The court noted that the psychologist “consulted only with the parent and did not attempt to corroborate her opinions or complaints or rule out other causes.” Presumably, these were three well qualified expert witnesses, but they simply lacked the personal knowledge to give testimony that would enable the parent to satisfy the burden of proof.

Third, some kids like being in the DAEP. This did not factor into the court’s decision, but it probably helped the district make its case that this was a student who did not need special education services.  It’s the assignment to DAEP that often leads to litigation, and yet, there are many students who do quite well in that more structured setting, and, in fact, like it.

The case is M.P. v. Aransas Pass ISD, decided by the federal court for the Southern District of Texas on February 25, 2016.  You can find it at 2016 WL 632032.

DAWG BONE: THIS IS WHY THERE IS A “D” IN ARD.