We have two SCOTUS cases about what FAPE means. The first was in 1982, involving Amy Rowley, a very bright little girl with a hearing impairment. The second was in 2017, involving Endrew F. who was functioning below grade level due to the severity of his disabilities.
Since Endrew F. most of the cases about FAPE have been about students like Endrew—students who were functioning below grade level. Today I want to tell you about a case involving a student who was more like Amy Rowley—a bright student making good grades despite his disability. The parents pulled him out of public school and placed him in a ritzy private school (the school’s website lists tuition for the 2021-22 school year as $41,000) that serves students with disabilities, where he did very well. The parents emphasized the language in Endrew that called for an “appropriately ambitious” IEP. However, the court pointed out IDEA, including as it is interpreted in Endrew, only requires an appropriate education—not the ideal. Moreover, the public school offered a placement in a less restrictive environment than the private school that only served students with disabilities.
Thus the court ruled in favor of the school district, denying the parental request for tuition reimbursement.
This is one of many cases in which a hearing officer finds the testimony of classroom teachers to be more persuasive than the testimony of independent experts retained by the parent. The hearing officer conducted a six-day hearing and issued a 35-page opinion in favor of the school district. The federal court affirmed, primarily based on the credibility determinations of the hearing officer. The court noted that one of the experts who testified on behalf of the parent never observed the child in the general education classroom, and thus gave an opinion that was “at odds with the first-hand accounts of D.H.’s classroom and special education teachers who worked with D.H. daily.” The second expert did not observe the student at school and “did not speak with [district] teachers who worked with D.H. on a daily basis.”
In special education litigation, the best experts are usually right there in your classrooms. Here we have yet another example of this.
It’s D.H. v. Fairfax County School Board, decided by the federal court for the Eastern District of Virginia on January 19, 2021. It’s on Special Ed Connection at 78 IDELR 39.
DAWG BONE: WHAT COUNTS THE MOST IS DAY-TO-DAY EXPERIENCE WITH THE STUDENT.