Educators say “those services are not ‘special ed.’” Court says: “Yes they are.”

According to the Pittsburg USD in California, young L.J. did not need special education services. The boy had a lot of problems, but his academic performance was good, and he was even making some progress on behavior. The district provided some assistance to help him along, but nothing that the district considered “special ed.”

The mother disagreed and requested a due process hearing. The administrative law judge agreed with the district. The boy was doing reasonably well with the general education assistance the district provided. He did not “need” special ed services, and therefore, was not eligible.

The mother disagreed with the administrative law judge, and appealed to the federal district court. That court agreed with the school district also.  L.J. was not eligible.

The mother disagreed with the federal judge, and appealed to the 9th Circuit.  Now that court has reversed all of the previous decisions. In doing so, the court held that the services the district was providing were not general education assistance. The district was, in fact, providing “special ed.”

Now that’s interesting.  The educators who provided the services did not classify them as “special ed” but the court did.  This case is a wonderful illustration of how fuzzy is the line separating “special ed” from “general ed.” This is particularly so in the age of RtI.

The court identified four specific features of the services the school was providing that moved those services over the line into “special ed” territory.  They were:

*The district was providing one-on-one assistance with a paraprofessional;

*The district was providing specially designed mental health services, including Group and Individual Rehab, Group and Individual Therapy, Family Therapy, Collateral Family Group and Intensive Home-Based Services;

*The district provided “extensive clinical interventions” by a Behavior Specialist;

*The district provided accommodations, “such as persistent teacher oversight, additional time to complete classwork or tests, shortened assignments, discretion to leave the classroom at will” and “the option to complete classwork or tests in other rooms or with one-on-one support.”

Taken together, the court concluded that the district was already providing special education services, which explained why the boy showed some degree of progress.

You might think that when educators say, “Your Honor, those services are not ‘special ed’” that courts would defer to the judgment of the professional educators. But when terms like “special education” have a legal definition, it opens the door to this kind of judicial second-guessing.   This case nicely illustrates how that can happen.

The court ordered the district to develop an IEP for L.J. so that the services he is getting will be guaranteed.  The school district will owe a lot of attorneys’ fees on this one.  That persistent mother took the case all the way to the Circuit Court before she prevailed.

The case is L.J. v. Pittsburg USD, decided by the 9th Circuit Court of Appeals on September 1, 2016.  We found it at 2016 WL 4547360.


 File this one under: SPECIAL EDUCATION