When Spring Branch ISD set up a new Life Skills Unit at Frostwood Elementary it made sense that a student named E.R. would be transferred there. The little girl was happy and well served in the Life Skills Unit at Wilchester Elementary, but Frostwood was closer to home and it was the school that she would have attended if she did not need special services.
But E.R.’s parents were not happy with the move. It looked to them like Frostwood was simply not well prepared to serve their child, who had complex medical issues. Moreover, the Life Skills Unit was a long ways from the nurse’s office. The staff seemed unprepared, and in some cases, uninterested.
To address these concerns, the district agreed to transfer the paraprofessional who was most familiar with E.R. She would be with E.R. at all times and would be available to help the Frostwood staff learn how to take good care of E.R.
E.R. stayed at Frostwood for the first semester of that year. During that semester there was considerable back and forth between the parents and the school. That paraprofessional was reporting to the parents that things were not going well, with criticisms of the new teacher and other staff. The role of the paraprofessional was a big point of contention in the subsequent litigation. E.R.’s new teacher at Frostwood testified that the paraprofessional was “a detriment to E.R.’s learning on many days because she was so familiar with her….She treated her like a family member and not like a student. Her discipline wasn’t as professional as what I would expect in a classroom, and often she [the student] wouldn’t work for [the paraprofessional].”
So, as in many cases, there was a certain amount of distrust between the parents and the school. Concerned for their daughter’s well being, and convinced that the school was not providing appropriate services, the parents pulled her out of Spring Branch and placed E.R. in a private school. They requested a due process hearing, seeking tuition reimbursement. The hearing officer ruled against them, and now the federal court has affirmed that decision.
The most significant legal issue in the case involved the involuntary transfer from Wilchester to Frostwood. At an ARD meeting in April, 2014, the parents were told that the district might open a Life Skills Unit at Frostwood. But they were told that they expected E.R. to continue at Wilchester. Moreover, the ARD paperwork indicated that the girl would remain at Wilchester.
All that changed shortly after the ARD meeting. When the district informed the parents of the girl’s transfer, E.R.’s father responded with a three-page letter expressing his concerns about the move to Frostwood. That’s when the district agreed to transfer the paraprofessional along with E.R., but otherwise, the district stuck to its position. Beginning in the fall of 2014, E.R. would be in the new Life Skills Unit at Frostwood.
In the litigation, the parents argued that this was an illegal change of placement, done without an ARD meeting, parental consultation or approval. Citing 5th Circuit rulings, the federal court rejected that argument. The key point: this was not a change of “placement.” The court put it this way:
But this Circuit has stated that “placement” does not mean a particular school. Instead, it means a setting, such as regular classes, special education classes, special schools, home instruction, or hospital or institution-based instruction. White v. Ascension Parish School Board, 343 F.3d 373, 379 (5th Cir. 2003). Because of this, a district is not obligated to consider parent’s opinions on which school location is appropriate.
That may be the general rule, but E.R. had some very serious health issues that needed to be taken into account. Not every school campus would be able to meet her needs. Does that not matter?
Of course it does. The court put it this way:
Although SBISD might have the right to make a unilateral decision to move E.R. to Frostwood, and to keep her at that location despite the protestations of her parents, it must not do so if that causes a significant disruption in her educational opportunities.
The rest of the court’s analysis, then, was focused on the services provided to E.R. at Frostwood. The court considered health and safety, the preparation of the new unit, the qualifications of staff, the level of continuity and communication and the level of E.R.’s educational progress. All things considered, the district satisfied the standard.
There are two takeaways here. First, the legal point that “placement” means instructional setting—not location. In this case, there was no change of placement at all. E.R. was in the Life Skills Unit at both schools, and her IEP was not changed.
Second, the unique needs of a child and the concerns of the parent should always be addressed when the school proposes a significant move. This may not have been a “change of placement” but it was a big deal for E.R. and her parents. In this case, the court was persuaded that the district appropriately ensured that the move would not harm the child:
The preponderance of the evidence shows that E.R. was making progress and was likely to master each of her IEP goals by the end of the school year, and that those goals were appropriate for her abilities.
The case is E.R. v. Spring Branch ISD, decided by the federal court for the Southern District of Texas on July 14, 2017. The court’s very brief ruling can be found at 2017 WL 3016952. The magistrate’s recommendation, which provides a lengthy analysis, is at 2017 WL 3017282.
DAWG BONE: “PLACEMENT” MEANS INSTRUCTIONAL SETTING, NOT SCHOOL CAMPUS.
If you were handcuffed and being escorted by two cops would you consider yourself to be “under arrest”?