Season 4: Episode 5: Education Law Round Up 2019

Recorded before the COVID-19 pandemic, this episode highlights some of the more interesting education law cases decided by appellate courts in 2019. Christina Peer and Miriam Pearlmutter, education attorneys at Walter | Haverfield, summarize judicial rulings and discuss child abuse reporting, retaliation claims, MDR mistakes, and a restraint-and-seclusion case out of the 5th Circuit. Join us for a leisurely and informative look back at 2019!

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Miriam: Welcome back to Class Act: Updates in Education Law. I’m Miriam. This is usually where Lisa says, “I’m Lisa.” We’re attorneys at Walter | Haverfield, but Lisa is not here today, and instead today with us, we have Christina Peer, who is also an attorney at Walter | Haverfield.

Christina Peer: Thanks for having me.

Miriam: Thanks. We practice school law. Christina and I, we get together every so often, we talk about the latest legal developments relevant to school boards, administrators, teachers, really anybody who works in the school districts. Today, we are going to have a special treat for you. We are going to be talking about circuit court decisions in 2019. Welcome to the New Year everybody. It’s 2020 and we thought that it would be a good idea to take a look back at some of the key decisions affecting education in states all around the country. Before we do that, Christina, can you explain to our audience what circuit courts are? I’m sure that many people in our audience are familiar with circuit courts, but the federal and state court systems can be confusing.

Christina: Sure. You’re going to make me go back to either like high school government, or maybe my first year of law school, and explain circuit courts. Got it. All right. I’m all over this. Within our court system, we have state courts and federal courts. State courts are typically going to handle what we would consider to be state law issues, anything that’s a law specific to the state of Ohio or Kentucky or any of our 50 states. Then we also have federal courts that deal with federal laws primarily. You have federal district courts, and those are the courts that are within one particular state, and that’s the first-level court that you would go to if you have a federal issue or a question.

Then you have 13 circuit courts of appeal. If you’re not happy with what your district court judge did, or the trial that you might have had, like for a criminal matter in District Court, then you can appeal to one of the circuit courts of appeal. Like I said, there are 13 of them around the country, and each circuit handles different states. Basically, they’ve divided the whole country up into this map, if you will, of 13 circuit courts. For example, you have the Ninth Circuit Court of Appeals, and that covers mostly states that are out west, so you’ve got California, you have Nevada, Oregon, Idaho, Washington, Arizona, Montana, Alaska and Hawaii.

Miriam: That’s a lot.

Christina: All of those are in the Ninth Circuit. It is a huge, huge, huge circuit. In Ohio, you’re covered by the Sixth Circuit Court of Appeals. The Sixth Circuit is a little bit smaller. It only covers Ohio, Kentucky, Michigan and Tennessee. Those are your circuit courts. If you take a case up to a circuit court like the Sixth Circuit, and you’re unhappy with what those judges decide, then you can ask the United States Supreme Court, and of course, the United States Supreme Court, any decision that they make governs the entire country. You could ask the United States Supreme Court to review what the circuit court did and perhaps make a different decision.

However, the important thing to know here is that the US Supreme Court does not take every case that they’re asked to look at. You have to file something, it’s called a petition for certiorari, and the US Supreme Court only takes a small fraction of cases. Typically, they take cases that involve something called a circuit split, which is where maybe you have two circuit courts of appeals that have decided differently on the same issue. When you have a case like that, it’s important for us to have one law that covers the whole country, so the US Supreme Court would take a look.

That is your civics government lesson for today on circuit courts of appeal and how that all works.

Miriam: I just want to say, I always find it fascinating. The reason that they’re called circuit courts is because in the olden days, these judges would actually travel from state to state, like on a horse and buggy, and they would complete a circuit. That’s why they’re called circuit courts.

Christina: They would ride the circuit. That’s what it was called. They would stop at different courthouses in different states and go ahead and decide these cases because back then it wasn’t easy for everyone to travel, so the judges did the traveling.

Miriam: Now, of course, you have to go to the circuit court. They’re not going to come to you.

Christina: No, they don’t come to you. [chuckles]

Miriam: Now let’s just jump in and take a look at some of these cases that have been affecting school districts around the country in the last year or so. First, I’d like to talk about a few cases out of the Sixth Circuit, which is where we are, in Ohio, Tennessee, Kentucky, like you said, Michigan. The first case is Burton versus Cleveland Heights-University Heights.

This is an interesting case, Christina, because this involves a high school senior and a parent who felt strongly that her child should have been evaluated for a disability, but she was not. The child was not evaluated for disability.

This was a young lady. She was a senior in high school. The parents wanted her child to have an IEP and then filed a due process complaint essentially saying, “Look, my kid should have been evaluated, should have had services. None of this happened, so I’m suing your school district.” In that administrative proceeding, the hearing officer sided with the parent on the evaluation issue, said, “Yes. The district should have evaluated your child.” That was pretty much the extent of the decision.” What happened after that is that the parent sought attorney fees. This attorney fees thing, it’s a little bit boring, but it’s really important. I want to alert you to this.

The attorney fees piece is pretty important because there’s an important takeaway for your district from this case.In many civil rights cases, the legislature, Congress, has created a situation where the losing side pays the winning side’s fees in certain cases. That’s done to not discourage civil rights plaintiffs like parents. We don’t want to necessarily live in a society where a person has a legitimate civil rights claim, but then they say, “You know what? Even if I bring this case, and even if I win, I will have spent $200,000 on attorneys, and it’s just not worth it. So I’m not going to defend my civil rights. I’m not going to file this lawsuit.”

Congress didn’t want that. They included a provision saying, “Look, if you win, if you win on anything substantive, you can ask a court to get your attorney’s fees paid.” That’s what these parents did. They said, “You know what? We won on this piece, we won on the evaluation piece. Let’s go and ask the court to have all of our attorney’s fees covered.” The court interestingly here looked back at the statute, which allows for those attorney fees and the language of the statute said, “Parents of a child with a disability are entitled to have their fees paid in these circumstances.”

The court said, “This child, this young lady, was never evaluated and never found to have a disability, so she doesn’t fit this criteria, she doesn’t fit this category. You as a parent, you may want your attorney’s fees paid, but because you’re not technically a parent of a child with a disability, this doesn’t apply to you. So you will not have your attorney’s fees covered by this district.” An important takeaway here is that there are some districts, I’m sure you’ll agree, that the team is just tired of arguing with a parent. The parent might want an IEP. The parent might want services. The parent might want these for reasons that are not legitimate.

They might say, “You know what? I want my kid to have extra time on the SATs, so I really want my child to have an IEP, and I demand that this team evaluate my kid who’s getting good grades, not having any social issues.” Sometimes we see this. Sometimes we see teams who are just tired of fighting, and they go ahead with it.

Christina: Absolutely. I think the takeaway here, the really important piece, is not to bow to that pressure that parents can sometimes assert because there are real-world consequences– Financially, there could be a real-world consequence to doing that. I think maybe the other takeaway from this, and this had more to do with the decision that the student should have been evaluated to begin with. Now, I always caution districts to be careful about saying no to an evaluation. Just because you say that you’re going to evaluate, doesn’t mean that you’re going to say, “Yes, this is a student with a disability.”

I think it’s easier to defend a case, to say, “This is not a child with a disability,” if we’ve done a full evaluation, and we have that whole team report that we can rely on, as opposed to maybe just some intervention data. That’s a little bit of a tangential issue to this Sixth Circuit case, but I think it’s also an important takeaway here because, obviously, that was the part where the court and the hearing officer said, “Well, that’s where the district went wrong with this.” It wasn’t that they should have found the student eligible, it’s that they should have evaluated the student to begin with, and then made that determination.

Miriam: Right. As a team, if you’re just mollifying a parent, know that you’re opening a door to fees in a future case with this parent. You’re opening that door that maybe didn’t have to be opened. Now, to be very clear, because I don’t want any misunderstandings, we’re not saying that districts should avoid qualifying students to avoid fees. That’s not what we’re saying at all.

Christina: No. What we are saying is, if a student truly does not meet the eligibility criteria under IDEA, don’t make the child eligible just because the parent continues to push and because they’re telling you that that’s what they want. A student really needs to meet the eligibility criteria under IDEA in order to be eligible.

Miriam: Yes. I think that’s an important takeaway. Another case out of the Sixth Circuit, I think this was the Tennessee district, was ML versus Williamson County Board of Education. This case was interesting because the facts are pretty strange, but I think that the overall situation is one that many school districts face. This was a school district that filed a protective services report, an abuse and neglect report, and then ended up in federal court on a retaliation claim from that parent.

The facts here are that this was a seven-year-old with attention deficit disorder, oppositional defiant disorder, and the parent was pretty high maintenance. [chuckles] This was a parent who called a lot of IEP meetings, but also was pretty hostile. She accused staff of not updating her child’s behavior intervention plan, and essentially, was explaining to the staff that all of her child’s conduct and behavior issues were their fault. Nobody likes to hear this. Staff don’t like to hear that kind of thing at all. There was some tension. There was some tension between the parents and the rest of the team.

At the same time, the child started coming in with bruises, and the child would complain about pinching, and also there was some sexualized behavior from the seven-year-old. The staff started calling Child Protective Services. In fact, they filed three CPS reports over the course of a year, and each time CPS would come out, the agency would come out and do an investigation, but find that the allegations were not substantiated. In other words, they would find that there was no abuse, that the dad was just play wrestling with the kids, and there was no abuse or neglect.

Actually, the parents moved away, but then they filed a federal complaint alleging that they were retaliated against for their advocacy. They said, “We were fighting for our child. We wanted the best things. We had all these IEP meetings. We were legitimately acting in our child’s best interest, and these people just started calling CPS on us, in retaliation.” Although the facts here may be different, you can hear yourself in these situations.

Christina: This is such a hard issue for districts, particularly when you have a parent who’s a very, very vocal advocate for their child because whether it’s a report to CPS or something else that’s going on, you have to be so careful about retaliation or anything that could be construed as retaliation. The CPS layer just makes it all the more difficult because in Ohio, like many other states, school district employees are mandatory reporters of suspected child abuse or neglect. The folks in this situation were really in a catch-22, no-win situation because on one side, I have a parent who might say later, “Well, you only made the call to Children Services because you didn’t like how I was advocating for my child.”

On the other hand, I can face potential criminal liability or the loss of my license as a professional educator if I suspect that a child was being abused or neglected, and I have good reason to have that suspicion, and I don’t make a call to Children Protective Services.

Miriam: That’s what the court actually found. The court ended up siding with the district and said, “These individuals would have faced liability if they hadn’t reported.” That’s too great of a risk for teachers and staff to take. The court also found interesting that some of the individuals reporting did not even know about the special education conflicts with the parents. Essentially, this was a win for the districts, but there are several important takeaways for schools, which is that, obviously, try to maintain good relationships with parents. Everybody can get frustrated at times, annoyed with parents, but as professionals, we try not to show that.

If anybody has concerns about abuse or neglect, you’re a mandated reporter. You should follow all of your laws and file those reports. When you file the report, you don’t need to add any extraneous information. Just keep it very neutral. Don’t share with the person taking down the report all of your feelings about this family [chuckles], just what’s relevant.

Christina: Sometimes people have a really hard time reporting just the facts, if you will. They tend to want to put in their opinions and their feelings and all of that. You’re going to do a lot better for yourself if you simply report, “This is what I saw. This is what the student said to me,” and leave it at that.

Miriam: Okay. Now I wanted to turn to the Ninth Circuit. The first case I wanted to talk about is Jay F versus William Hart Union District. This is an interesting case because it’s about a manifestation determination review. As you remember, we have previously talked about MDRs, and we’ll probably continue to talk about MDRs in a future episode too. An MDR is a meeting where a team decides whether a child’s misconduct was a manifestation of his or her disability. That decision ultimately influences whether a child is disciplined for that misconduct, and can be removed from their typical school setting, or if the child has to be returned back to the school setting.

Here, the Ninth Circuit overturned a team’s decision because the team, it said, the Court said, relied too heavily on one person’s opinion, on the school psychologist’s opinion. This was a child with emotional disturbance, threatened others, and at the MDR, the school psychologist said that, “Even though the child had emotional disturbance, this threat was not a manifestation of the child’s disability because, typically, the emotional disturbance manifested itself as depression or inappropriate feelings. It wasn’t threats.” The team went along with that, and the child was eventually expelled.

The parent wasn’t happy with this decision. The parent filed various complaints and lawsuits, moving up the ladder until they got to the circuit court, and the Ninth Circuit overturned that. The court actually looked at the extensive history of making threats that this child had, and said, “The school psychologist was entitled to her opinion, but the whole team did not have to follow that view.” Sometimes we do see this. Sometimes we do see schools that are just really frustrated with a child who, because of their disciplinary infractions, ends up really violating the code of conduct many times, and then the team is like, “We just have to get him out of the building. We just have to get him out of here.”

Christina: I think it’s hard sometimes because you have to have somebody who is essentially running or chairing the meeting, but what you have to make sure as a team is that you’re considering the opinions of everybody around the table, including the parent. Just because the parent doesn’t agree, doesn’t mean that we’re necessarily going to take the parents side, we have to make sure everybody has a chance to say what they want to say. You also have to make sure that the decision that’s being made by the team is one that you can support with good rationale.

In this case, it seemed like, “Yes, I understand what the school psychologist opinion was,” but when the court dug a little bit deeper and said, “Okay, well, I’m really going to look into this child’s educational records.” There was this long history of threats, and because of that, while the school psychologist felt very strongly about their opinion, that opinion wasn’t necessarily supported by the student’s educational records. You have to make sure that you don’t let feelings or frustrations or one person’s opinion override good decision making and what’s supported in the record, as you go back and really examine everything.

Miriam: I think the important takeaways from here are that at an MDR, at a manifestation determination review, the team should look at all available information and history, and should avoid over-reliance on one team member to achieve a particular result and consider a neutral fact finder’s perspective on the decision.

Christina: I think that’s right. Like I said, you really have to think about, “What would somebody coming in who doesn’t know anything about the student, what would they think if they were in this particular situation?”

Miriam: To all of the districts who are right now listening to this and thinking, “Oh my gosh, but what if we really do have a child who’s a threat and who’s dangerous?” There are legal procedures that you can implement to make sure that child is not a danger. For example, you can file a due process complaint asking for the child’s placement to be changed, even if the parent disagrees with that decision. That’s something that you would contact your attorney about, but know that you’re not lost here, helpless, without any recourse.

Christina: Here again, just so there are no misunderstandings, we’re certainly not saying that if you have a student whose behavior is not related to their disability that you should find otherwise. What we really are trying to get across is, it’s so important to look at the entire record that is behind that student, not just maybe this one particular incident, or even just what their identification is, their disability category. You’ve got to look at much more than that when you’re making a decision, and again, make sure there’s good rationale to support it.

Miriam: I have one more case that I wanted to share today. That’s a case out of the Fifth Circuit. I think this is out of Texas. Spring Branch Independent School District versus OW. This is a case, this parent had a lot of issues, a lot of complaints. Her fifth-grader was initially served on a 504 plan which was not working. There was, for three months, this behavior plan that was, I guess, part of a 504 plan, was not working. The child was eventually evaluated by the district and then transferred to a specialized behavior classroom where the child attended just half a day by verbal agreement.

Christina: Oh dear.

Miriam: Here, do you see the problem already? There’s verbal agreement that this kid is going to be in this specialized classroom for only half a day. There, even though the child only attended half a day, she was restrained eight times over several months. Every incident of restraint took place only after the staff tried many other things, including calming down strategies-

Christina: De-escalation?

Miriam: De-escalation techniques, thank you, and various other attempts to have the child calm down. Eventually, this parent files a complaint and just alleged all of these violations. Interestingly, the Court said that the restraints were not a violation because they were necessary to keep the child safe and because the team tried all of these other things before going to restraints. Of course, the Court said that this verbal agreement for the child to attend only half a day was a violation because it should have been a part of her IEP, it should not have been a verbal agreement. I think that’s really what I want to make sure that the school districts take away from this case is that the IEP should reflect what is going on with this child.

If you have a student who’s only attending half a day or whose time is otherwise somehow different, even if it’s just for half an hour. Oh, this child will pack up and leave and get ready to leave half an hour before everybody else does, any kind of time difference should be on the child’s IEP so that you can document that the parent agreed with this and went along.

Christina: Certainly, documentation is good and having it on the IEP is very appropriate. Obviously, we’re lawyers. Documentation is what we’re always striving for and parent agreement, but also, if you’re going to be looking at a situation where we are shortening or altering a student’s day, particularly if it’s based on behaviors, we need to make sure that we’re doing it for the right reasons. The right reasons are it’s necessary for the student because they really can’t handle the entire day, not because it’s necessary for our staff because they can’t handle having the child in programming for the entire day.

I’ve certainly seen situations where decisions were made to shorten a student’s day, and there was no data or anything to indicate that that was in the student’s best interest, or it was to meet the student’s needs, rather it was to meet the needs of the building, either the teacher or in a building administrator or someone who said, “This kid just can’t be here all day. We can’t handle this.” If you have a situation where you’ve shortened a student’s day, and it’s based on the student need, it’s also really important to document, “How are we going to work the student back in?” Because remember, any time that we are shortening a student’s day, we’re taking away instructional minutes.

Miriam: Yes, they’re missing their education.

Christina: “How are we, through a behavior plan, for example, going to work that student back in and how are we going to gradually increase their day based on their tolerance for instruction and to be there for the entire time?” I think those are the two other really important takeaways that if you are thinking about shortening a student’s day, really think about why you’re doing it, how you’re documenting it, and then how are you going to get that student back into full-day programming?

Miriam: I just want to say there were many other important cases, and it was kind of difficult to choose for this episode. Thank you for joining us. Next time, we are going to talk about a controversial and difficult topic which will be sex offenders who are parents in schools. Please join us for that and rate us on iTunes Teacher or wherever you get your podcast. We always love fan mail.

Christina: Their mail is great.

Miriam: Thanks very much. Bye-bye.

Christina: Bye.

Disclosure: The content of this podcast is provided for general information purposes only. The podcast does not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of information contained in this podcast.