Disability Rights Texas along with several parents of students with disabilities have sued the Austin ISD alleging that the district has failed to conduct evaluations in timely fashion.  Among other remedies, the suit seeks an order that the district conduct an ARD meeting for each child whose services were delayed to consider if compensatory services are owed.  The case has a long way to go, but the court has already rejected one of the district’s arguments. The district argued that the plaintiffs could not go straight to court with something like this. They should first pursue their claims through a special education due process hearing.

The court disagreed.  As a general rule, people complaining of violations of IDEA do have to go through the administrative process. But one of the exceptions to that rule is called the “futility” exception.  If the administrative process would be “futile,” it need not be pursued.  Futility applies if “an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law.” That’s exactly what the plaintiffs allege.  Moreover, the problems alleged could not all be chalked up to the pandemic.  Key Quote:

Plaintiffs in this case have alleged a systemic violation of the IDEA.  Although the pandemic has made working conditions difficult for AISD, plaintiffs complaint alleges conduct that reveals systemic issues in the implementation and fulfillment of AISD’s IDEA obligations.

The suit alleges that much of this can be traced to “staffing decisions and AISD’s failure to follow state guidance.”

The court refused to dismiss the case, and so it will proceed.  Of course we now have a state law that requires all schools to do what the plaintiffs ask this court to order: to consider if compensatory services are needed due to a delay in completing the initial evaluation or developing the initial IEP.  So it will be interesting to see how the court deals with that.

This decision does not spell out for us what the “staffing decisions” were that allegedly contributed to the problem. But it’s a good reminder that these are the kind of issues that can come up in litigation.  Staffing is particularly challenging right now, and districts will want to be sure to keep a good written record of all of the efforts to maintain adequate staff levels. 

Let’s put it this way: the best position to be in is to have all positions adequately filled with properly qualified people. The next best position is to have records to show that any failure to do that was not due to a lack of effort, and was certainly not a conscious decision. 

This one is J.R. v. Austin ISD, issued by the federal court for the Western District of Texas on December 12, 2021. It’s located at 2021 WL 6374871.

DAWG BONE:  MAKE EVERY EFFORT TO STAFF ADEQUATELY. 

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: a helpful nugget…