Sometimes you have to read the dissenting opinion first….

I have posted many entries on the Daily Dawg discussing “The Unwritten Rule” of special education litigation—that the hearing officer and judges will always be quietly assessing the comparative reasonableness of the parties.  I’ve reviewed many cases where the opinion points out how one side or the other behaved unreasonably.  The case usually goes against that party.  Not always. 

In the 5th Circuit’s decision in D.C. v. Klein ISD it’s the dissenting opinion that goes off on the behavior of the prevailing party—the parent.  Judge Willett points out that an award of compensatory educational services is what the law classifies as an “equitable” remedy, and it is a basic rule that the party seeking such a remedy must not come to court with “unclean hands.”  Judge Willett found dirt on the hands of the plaintiff, D.C.:

As to unclean hands, D.C.’s aunt, who works for his lawyer, pressured the District into providing the unnecessary services for dyslexia that D.C. now challenges.  According to the hearing officer “she set the tone for the meeting by informing the ARD Committee that she has ‘sued’ her own child’s school district ‘six times’ and had been encouraging [D.C.’s] mother to do the same….for several years.”  The meeting was described as “unpleasant,” very charged and contentious,” “tough,” “hectic,” and “exhausting.”  D.C.’s aunt was ‘demeaning to staff members from the District.” And she hijacked the proceedings: “The evaluator who had conducted the [FIIE] did not have a chance to discuss the evaluation” and the District’s diagnostician “could not even fully present her own opinions.”  Instead, [D.C.’s] aunt insisted to the ARD Committee that [he] should qualify as a student with Dyslexia.”

This was important because the court later faulted the district for providing dyslexia services due to parent insistence when the evidence of dyslexia was lacking.  The 5th Circuit majority relied on this to conclude that the student’s IEP was not properly “individualized.”  Judge Willett blasted that reasoning:

It is entirely unfair for D.C. (really, his lawyer) to recover against the District for providing the wrong services because D.C. (really, his lawyer) succeeded in forcing it to provide exactly those services.”  (Emphasis in original).

I will have more to say about this case later this week.  I confess I can’t make sense of it. It looks to me like the court put the burden of proof on the school district rather than the parent.  More fundamentally, the court’s application of the 5th Circuit’s four-part test for FAPE reveals a fundamental flaw in that test. We’ll address that on Wednesday. 

It’s D.C. v. Klein ISD, decided by the 5th Circuit on June 17, 2021.  We found it at 2021 WL 2492842.  The 5th Circuit elected not to have this one published in the official reporter, and thus it will not be used as a precedent for future cases.   I think that’s a good decision. 


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Tomorrow: “disenrollment” from a charter school….