Yesterday I told you about the recent federal court decision holding that a Texas school district violated Child Find by not offering to conduct an evaluation of a high achieving student who was experiencing significant mental health issues. Despite that ruling, the court also held that the school did not fail to provide FAPE, and the parents were not entitled to recover attorneys’ fees.
The court based the Child Find ruling on its belief that the school had enough information to justify a full evaluation. But that did not mean that the evaluation would demonstrate that the student qualified for special education services. Moreover, in the due process hearing the parents bore the burden of proving that the student should have been declared eligible. They failed to do that.
A lot of things happened in this case after the hearing officer’s decision, including evaluations of the student, but the court refused to consider any of that. Following proper judicial protocol, the court based its decision on the evidence that was presented to the hearing officer. This was an appeal of the hearing officer’s decision, so it would be based only on the evidence presented to the hearing officer.
That’s where the parent’s case fell short. They presented their own testimony along with an independent psychological evaluation that included a whole slew of instruments: a Wechsler Intelligence Scale, the Woodcock-Johnson, the BASC-3, Adolescent Parent Report, a Rorschach Inkblot Test, the MMPI, Million Adolescent Clinical Inventory, a Teenage Sentence Completion Exercise and a Substance Abuse Subtle Screening Inventory. That’s a lot of testing, but the special education hearing officer found the resulting evaluation to be inaccurate and the court agreed:
Most importantly, the Hearing Officer concluded the Evaluation was not reliable or accurate because Dr. Kalenchak did not request or review C.B.’s education records from NEISD, did not review C.B.’s educational records from Pacific Quest [the residential facility where the student was served], and did not solicit information or other feedback from C.B.’s educators at NEISD or at Pacific Quest. Further, Dr. Kasenchak did not review state assessment information because she did not consider C.B.’s academic proficiency relevant given the purpose of the Evaluation. Instead, Dr. Kasenchak assessed C.B.’s adaptive functioning by soliciting parent responses only.
That was not enough to move the needle, not enough to satisfy the burden of proof. Moreover, on the issue of “educational need” the district provided excellent testimony that the court described as “the most compelling evidence.” Guess where that came from. Teachers!!
C.B.’s English teacher testified that she did not observe C.B. have any panic attacks, C.B. was never disruptive in class, did not exhibit difficulty in performing daily tasks in a safe and efficient manner, never had difficulty controlling her behavior and mood, or difficulty making friends, and she never observed any instances of self-harm.
C.B.’s Theatre teacher stated C.B. thrived in her class, as she was very interested and passionate about the subject. For these reasons, C.B. performed well academically. C.B. did not exhibit any panic attacks, trouble breathing, or physiological symptoms of anxiety, but instead exhibited excitement and strong interest in the class and in her assigned duties. C.B. was never disruptive in theatre, did not have problems performing daily tasks in a safe and efficient manner, did not have difficulty controlling her behavior, and had many different types of friends in the theater department.
There was more of this from the Pre-AP Algebra teacher, leading the court to summarize:
The evidence of testimony from C.B.’s teachers presents a more reliable perspective of C.B.s academic proficiency at the relevant time…and presents a picture of her ability to function in an educational setting at that time.
So there was insufficient evidence of an “educational need” meaning that the student was not eligible for services, meaning that the district did not fail to provide FAPE because the student was not entitled to FAPE.
The other issue in the case was about attorneys’ fees. Recall that the parents prevailed on the issue of Child Find when the court ruled that the district should have conducted its own evaluation of the student. Normally, parents who prevail on a significant issue are entitled to recover some of their attorneys’ fees, even if they lost on other issues. So why not here?
Because attorneys’ fees can only be awarded to the prevailing party who is the parent of a “child with a disability.” The court held that C.B. was not a “child with a disability.” The evidence did not show that she needed special education. Since she was not eligible, she was not a “child with a disability” and the court could not award attorneys’ fees even if it wanted to.
It’s C.B. v. North East ISD, decided by the federal court for the Western District of Texas on February 16, 2022. It’s reported in Special Ed Connection at 122 LRP 6123.
DAWG BONE: TESTIMONY FROM TEACHERS IS OFTEN “THE MOST COMPELLING EVIDENCE.”
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: When to file a grievance….