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Law Dawg’s Ed Daily Starts in January

A new way to get your ed law news is coming in January of 2015.

You know Jim Walsh as an engaging, knowledgeable and, let’s face it, darn funny  speaker at education law conferences and workshops and from his “Law Dawg” column in the Texas School Administrators’ Legal Digest.  Now you can keep up-to-date on your legal development with this new digital subscription.   Check out some sample Dawg Bones to see what kind of content will be posted daily for subscribers.

Don’t Rush Into the Manifestation Determination Process

You should not rush into the manifestation determination process. ARD Committees are responsible for deciding if a student’s behavior is a manifestation of the student’s disability.  This is not always a simple matter, and even when it appears to be simple, the ARD is well advised to take enough time to be sure that the process is done “carefully and thoroughly.” We put those words in quotes because they come directly from the report of the House-Senate Conference Committee that gave final approval to the language of the law.

Here are the comments of the Conference Committee on this subject in full, with emphasis added by me:

The Conferees intend to assure that the manifestation determination is done carefully and thoroughly with consideration of any rare or extraordinary circumstances presented.  Additionally, it is the intention of the Conferees that when a student has violated a code of conduct school personnel may consider any unique circumstances on a case-by-case basis to determine to whether a change of placement for discipline purposes is appropriate.  The Conferees intend that if a change in placement is proposed, the manifestation determination will analyze the child’s behavior as demonstrated across settings and across time when determining whether the conduct in question is a direct result of the disability.

The Conferees intend that in situations where the local educational agency, the parent and the relevant members of the IEP team determine that the conduct was the direct result of the child’s disability, a child with a disability should not be subject to discipline in the same manner as a non-disabled child.

Conferees intend that in order to determine that the conduct in question was a manifestation of the child's disability, the local educational agency, the parent and the relevant members of the IEP team must determine the conduct in question be the direct result of the child's disability. It is intention of the Conferees that the conduct in question was caused by, or has a direct and substantial relationship to, the child's disability, and is not an attenuated association, such as low self-esteem, to the child's disability.

ARD Meetings and the Admin Rep

R.L., S.L. v, Miami-Dade County School Board, (11th Cir. 2014) 2014 WL 3031231;

Dawg Bones: Words spoken by the “administrative rep” at an ARD Meeting can come back to haunt you.

It has to be frustrating for the Miami-Dade County School District to be found guilty of “predetermination” after holding an IEP Team meeting that lasted three full days, with the parents in attendance the whole time.  The parties met from 9:00 a.m. to 3:30 p.m. on three separate occasions in an effort to develop an IEP and placement for a student moving from middle school to high school.  On top of that, the district sent the parents 59 (59!) “prior written notice” forms following the IEP Team meetings, but was then accused of  not providing “prior written notice” as required by law.  The parents were represented by a slew of lawyers, one of whom sought to recover for his time at the rate of $600/hour.

The 11th Circuit Court of Appeals held that the district “predetermined” the boy’s placement at Palmetto Senior High School. That school served 3600 students.  The parents wanted their son at MAST Academy, a much smaller charter school operated by the district. There was evaluation data to indicate that a large school would be difficult for the student to deal with, and might exacerbate his problems.  But the district insisted on Palmetto, and the court based its “predetermination” claim largely on a transcript of the IEP Team meetings in which the LEA representative was quoted as saying that MAST was “not an option that’s on the table as far as [the Board] is concerned. What our option is, is that he go to his home school.”

“This explicit statement,” said the Court, “that the Board was considering placement only at Palmetto Senior High School, and that bureaucratic policies precluded an alternative placement, weighs strongly in favor of finding predetermination.”

The Court’s opinion makes it clear that the voice of the “administrative representative” carries a lot of weight. The Court noted that “Other Board representatives [i.e., members of the IEP Team], to their credit, seemed ready to discuss whether the Board could accommodate [the student’s] needs by offering a smaller setting for [the student] within Palmetto Senior High School….But the Board representative running the meeting cut this conversation short, saying finally that the placement would be Palmetto Senior High School and that the parents would have to pursue mediation if they disagreed.”

It’s appropriate for the administrative representative to “speak for the school” after a full discussion of all options has been conducted.  It’s OK for the school to come to the conclusion that the meeting is going to end in non-consensus, and to explain that to the parents.  But the “not an option” remark hurt the district’s case.

So be careful out there.  Even when you are tired and frustrated, be careful.

Special Ed Litigation Can Be Expensive

The parents of a student in the Miami-Dade County School District sued the district for over $1,000,000 due to an alleged denial of a Free Appropriate Public Education (FAPE).   They also sought $486,519 in attorneys’ fees.

The parents were successful in the suit, but not to the extent they would have liked. They recovered $48,326 for educational expenses incurred, less than 10% of the amount sought.

And for attorneys’ fees the recovery was $168,313.

Still, that ain’t chicken feed.  There were four law firms involved in the case, including 13 lawyers, one of whom regularly charges $600/hour. The court thought that New York hourly rate was excessive for a case in Florida, so it dropped it down to what competent Florida lawyers might charge.

This case went on for five years, moving from the due process hearing to the federal district court and then the 11th Circuit.  We expect it’s not completely over, as there are more attorneys’ fees to argue over.

Keep in mind: we are only talking about the fees that were incurred by the lawyers representing the parents.  The school ended up paying a large chunk of those fees, and no doubt, kept a number of its own lawyers busy on the case as well.

There has to be a better way than this.

The case is R.L. and S.L. v. Miami-Dade County School Board. The decision of the federal court for the Southern District of Florida addressed the attorneys’ fee issue in detail and it can be found at 61 IDELR 64 or 2013 WL 2157156.  The 11th Circuit decision is at 114 LRP 30126 or 2014 WL 3031231.