Midwest Education Law

The U.S. Department of Education recently released a report entitled "Creating Equal Opportunities for Children and Youth with Disabilities to Participate in Physical Education and Extracurricular Athletics."  You can review the report here.  The report outlines common barriers that restrict students' access to physical education and extracurricular athletics.  It also contains information about resources and other data to improve participation rates among students with disabilities.  The report (including exhibits) is only 20 pages in length and may provide assistance to school officials wrestling with competing interests in this area. 

A federal court in New York recently concluded that the IDEA creates an affirmative duty to remedy disability-related bullying or harassment.  Failure to do so may constitute a denial of FAPE in violation of the IDEA.  The case involved a female student who was allegedly bullied and harassed because of her disability.  The parents removed her from the public school, placed her in private school and sought reimbursement.  The request was denied and the family sought judicial review after exhausting administrative remedies.  The federal court allowed the parents' claim to move forward, findings as follows:

When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination.

This case is another reminder that allegations of bullying or peer harassment must be taken very seriously.  Courts and administrative agencies look unfavorably on school officials who appear to dismiss reported misconduct, especially when tied to a student's disability. 

Today the U.S. Court of Appeals for Eighth Circuit issued its decision in C.B. v. Special School District No. 1, affirming the district court's finding that the school district failed to provide FAPE, but reversing the lower court's ruling that the school district was not required to reimburse the parents for the cost of private tuition.  The district court previously held that the parents' enrollment of C.B. in Groves Academy, a private school serving predominately learning disabled students, was not an appropriate placement, because it did not present the "least restrictive" learning environment. The district court reasoned that the IDEA expresses a preference for children with disabilities to be educated in the “[l]east restrictive environment,” and provides that “[t]o the maximum extent appropriate,” children with disabilities should be educated with children who are not disabled."  Because ninety percent of the students at Groves had IEPs, the district court observed that it offered education in an environment that was largely restricted to students with disabilities. The district court found that the special education program available in the public schools “offered educational services similar to Groves but in a less restricted environment,” that C.B. benefitted from the social opportunities available in the general educational environment, and that the evidence did not establish that C.B. required “a totally segregated, private school environment” to make educational progress. The court accordingly found that Groves was not an “appropriate” placement under the IDEA.

Rejecting this reasoning, the Eighth Circuit stated that "[a] less restrictive environment is the ideal, but C.B.’s move to Groves after years of frustration in the public schools is a far cry from “the apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special classes” that concerned Congress. We thus join the Third and Sixth Circuits in concluding that a private placement need not satisfy a least-restrictive environment requirement to be “proper” under the Act." (Citations omitted).  As a result, the Court of Appeals held that the parents were entitled to reimbursement of tuition expenses for C.B.

The Michigan Department of Education has given the Detroit Public Schools a loud wake-up call.  Citing persistent noncompliance with the Individuals with Disabilities Education Act, the Michigan Department of Education recently informed the Detroit Public Schools that it would be taking action to block $5 million in special education funding to the district.  The penalty serves as a valuable reminder to school districts to consistently and effectively monitor their compliance with IDEA.

According Michigan ED, the Detroit Public Schools have failed to, among other things: monitor the district’s 7,000 disabled students’ progress, demonstrate that special education staff members are appropriately trained, and provide a list of qualified instructors, therapists, and social workers.  The Detroit Public Schools’ problems were first identified in July 2008, and Michigan ED put the district under heightened scrutiny a year later when the district failed to show signs of improvement. The financial sanctions come as a last resort now that the district is still noncompliant, according to the Detroit News.

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