Midwest Education Law

Here's an interesting twist on a frequently-litigated issue in special education cases.

Parents of a student in California filed a due process complaint, alleging in part that the school violated their rights under IDEA by not giving the parents a draft of the IEP goals and objectives before the IEP meeting.  The hearing officer and the courts rejected this argument, given evidence that the parents were able to contribute to the discussion and modification of the goals at the IEP meeting.

We occasionally see claims that schools violated IDEA's prohibition on "predetermination" by coming to the meeting with a draft of the IEP.  These claims almost always fail, because thearing officers expectation that the school members of the IEP team should have given the IEP some forethought before the IEP meeting, given their more intimate knowledge of the student's day-to-day performance.

This case goes to show that when it comes to special education claims, schools are often faced with no-win arguments.  Still, we believe it is generally a good idea, when possible, to formulate a draft of most of the IEP beforehand, with the possible exception of the placement recommendation, and to share the draft with the parents at or before the meeting.  This contributes to a more efficient, focused meeting. 

A school district in Texas was recently ordered to pay parents for the cost of an Independent Education Evaluation, after the district was unable to prove that its own evaluation was appropriate.  The reason?  The school had not retained the test protocols or the student's responses to the questions on the various assessments.  According to the hearing officer, this violated IDEA in two ways.  First, it violated the section of IDEA requiring that information obtained from all evaluation sources be documented.  Second, it violated the rights of the parents to participate in the process of developing an IEP.

Schools should probably retain test protocols and student responses until it is clear that the evaluation in question is no longer relevant, e.g., when the student is re-evaluated.  This does not necessarily mean that parents may see the test protocols, since there are often copyright or ethical restrictions prohibiting such documents from being reviewed by persons who are not qualified to interpret them.  (In the Texas case, the parents had retained an expert who said her ability to critique the school's evaluation was hampered by the lack of protocols.)  But they should be available in the event they are needed to show that a school's evaluation is accurate.

Yesterday the U. S. Supreme Court declined to review a Fifth Circuit decision that a parent acted unreasonably by rejecting a school district's settlement offer and continuing the case for more than three years.  That decision resulted in denying the parent's request for over $45,000 in attorney's fees.

The case, El Paso Independent School District v. Richard R., 53 IDELR 175 (5th Cir. 2009), cert. denied, 110 LRP 35628 (U.S. 6/21/10), is the seventh special education case denied certiorari by the Supreme Court this year.

During the resolution session prior to the due process hearing, the school district made a settlement offer of all relief sought by the parent plus reasonable attorney's fees.  The parent rejected this offer and continued with litigation for three years, arguing before the Fifth Circuit that the proposed settlement offer would not have been enforceable. The Fifth Circuit disagreed, ruling the parent could not recover attorney's fees for work performed after the settlement offer.  In addition, the Fifth Circuit noted it had discretion as to whether to award attorney's fees for work performed prior to the written offer of settlement.  The Court then vacated the lower court's award of $45,804 in attorney's fees for work performed prior to the settlement offer, citing the unreasonable protraction of the litigation as the reason for precluding such an award.