“I do have a bias of let’s not disable kids…”

There were two problems with the evaluation conducted by the school psychologist in 2017. The smaller problem was her choice of words. The larger problem was her analysis of the evaluation data. The issue was the child’s eligibility. Did John have a “specific learning disability” that required special instruction? The school psych declared it a “close case” and then added:

In the close calls I tend to go no disability and let’s see what we can provide in general education…Which is my understanding of the law, we have to provide a response to intervention before we go to specially-designed instruction.

I do have a bias of let’s not disable kids and so when I’m writing a report or when I’m speaking to parents or when I’m speaking to teachers, my bias is let’s see if we can give them some supports in the regular education setting that could address this area and see if that helps improve their performance in the achievement area.

The word “bias” was used three times, each time causing the school attorney to cringe. It’s a poor choice of words. On the other hand, her disposition aligns with federal law. If a student can be served effectively through general education programs, that’s how the student should be served. The SLD label should attach only if general education will not serve the student well.

The reference to “bias” was a problem, but the bigger problem was that the court did not see this as a “close call.” Key Quote:

A “bias” in close cases arguably aligns with the IDEA’s purpose, but the record does not demonstrate that John’s diagnosis was a close call—thus a reasonable jury could conclude that Dr. Christie’s stated “bias” was rooted in animus.

Animus? Why are we talking about animus?

The reason for that is that the parent was not just alleging a violation of IDEA, but also of Section 504. It's not necessary to show any bias or animus to prevail on a Child Find claim under IDEA. You just have to prove that the district made the wrong decision. But to recover under ADA/504 the plaintiff must prove the additional element of bias or animus. That’s why the school psych’s choice of words was important.

In this proceeding, the district filed a Motion to Dismiss the 504 claim, arguing that there was no evidence of any bias or animus. The court refused to dismiss the 504 claim. Since the court did not think it was a “close call” it concluded that a reasonable jury could interpret that “bias” to be rooted in some level of animus toward students with disabilities.

It’s Mr. and Mrs. Doe v. Portland Public Schools, decided by the federal court in the State of Maine, on July 14, 2022. We found it in Special Educator at 81 IDELR 134.


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

Tomorrow: Toolbox Tuesday!!