deliberate indifference, bad faith, intent to discriminate

[twinturbo]

http://ht.ly/2GG4Y2

NSBA COSA SpEd webinar

That would be National School Board Association Council of School Attorneys.

May 14, 2014 - Special Ed. Session 3: Litigating a Special Education Case in Federal Court: Tips and Recent Decisions
Special education cases are regulars in federal courts. This webinar gives the school attorney an inside look at litigating a case appealed from due process, including practical tips. The presenters, experienced practitioners with numerous hours in federal court, will also discuss recent federal case law of note.  Register now for the Special Ed. series or per webinar.

Registration https://secure.nsba.org/register/webinar/webinarDetails.cfm#SpecialEd_Rates

[ajasfolks2]

Attending as fly on wall?

Hmmmmm . . .

[twinturbo]

Some personal notes



Movement from educational experts to legal experts as hearing officers.

Courts should show deference to solidly written decisions by hearing officers. Judiciary lacks special knowledge of educational policies.

63 IDELR 24 2014



Additional evidence in Circuit Court of Appeals. Some are likely to give more deference to administrative decisions. Most critical piece court looks at was hearing officer careful and thorough.

6th Circuit more open, liberal towards additional evidence. "You want to oppose additional evidence if parent is bringing case". If school you want additional evidence. It's all school vs. parent in this. All.

Town of Burlington is seminal case.

All of this is getting court to look at evidence/decisions they want court to see in school district's favor.

Expert witnesses often cost school a lot of money.

Additional evidence usually requires its own hearing for determination. Motions need timely filing.

"Discovery" is tricky for SD, "data that parent refuses to turn over" that supports school's case.



A.M. v. NYC, 964 F.Supp. 270 (2013)  Deference to Hearing Officer

deference substantive opinion written by hearing officer



Parent appealing, filing law suit in federal court jurisdiction based on IDEA. Add on other federal claims. IDEA does not preclude ADA, Section 504, other disability, but IDEA must exhausted first.

IDEA can work with constitutional claim, but can't add 504 or ADA (Title II) claim for compensatory because compensatory isn't available under IDEA. Failure to exhaust administrative remedies mandated for IDEA will make such claim subjected to immediate dismissal.

State statute of limitations for IDEA. Motions to dismiss alleging parent has failed to exhaust IDEA administrative remedies.

63 IDELR 15 student prevailed because student was not found to QID under IDEA so was not held to exhaust IDEA. Prevailed under 504/ADA.

Bad faith or gross misjudgment are high standards to meet proving the "intent to discriminate"

504/ADA are not tort actions, like malpractice. "Rarely will a parent be able to prove bad faith because no one at the school has bad intentions" ((hello, deliberate indifference))

HAH! Deliberate indifference I'm psychic. The bogeyman comes up. This standard varies PER CIRCUIT and may rely on bad faith.

Title II may stand as a separate standing, a separate burden of obligation for schools depends on disability and regulations.



http://www.nsba.org/sites/default/files/reports/Tustin-USC-v-KM.pdf

^They fear this one enough to have filed an amicus brief. Must read that one.

[Macabre]

Wow.  Just wow.

[ajasfolks2]

Movement from educational experts to legal experts as hearing officers.

Courts should show deference to solidly written decisions by hearing officers. Judiciary lacks special knowledge of educational policies.

Refresh my memory -- are the hearing officers also attorneys?  Or does this vary by school district?

Aren't the hearing officers in bed with the school districts already?

Why did my blood run cold when I read the above quote for the first time?

[twinturbo]

It may be less ominous in context. I saw it as an identified problem in that there were too many hearing officers positions being filled with persons with not enough education knowledge or background, rather weighted too much towards legal making the hearing decisions a little less useful for all parties.

On the other hand it may be fair to interpret that too many hearing officers are selected from the ranks of JDs instead of Ed D,  M Ed, for example.

Or, that they must be JDs but the present set are as a group trending towards legal balanced away from knowledgable of education, and it shows in poorly written decisions without enough substantive information that in a way causes more litigation by not providing clear solution at due process.

They were big on well written substantive hearing decisions. In retrospect that may be causing some headache on both sides.

As to why your blood ran cold upon reading I suspect it's the statement that they cited policies over judiciary as the final word, meaning whim of the district over the law. The law protects students, and by taking a contrary stance to the law those charged with educating the students are assuming an oppositional posture to both the law (Dept Ed/OCR oversight) and the disabled students.

[twinturbo]

It should be noted that some of these private attorneys hired for the presentation to public school administrators are themselves involved in shaping laws and politics wrt disabled students, special education at the state and federal level. Much like I would describe my father as a lifer in military and law enforcement I would similarly describe this crew as lifers in school administration law.

For me the real stench of brimstone came when the groupthink circled around "good intentions" when clearly the totality of actions and conversation were not geared towards the intent of fulfilling the spirit of FAPE at all, and minimizing the letter wherever possible. I would go so far to say they've seen some bad apples and certainly overextension of FAPE obligation, but when they start thinking how to chip away at the progress and good for society these constitutional and civil rights are for kids in education it's hard to not ask yourself at what point did they get so jaded everyone should lose, or oh-no, parents "win".

[twinturbo]

I feel like I'm talking to myself here sometimes so bear with me, but I'd like to post a summary from the NSBA amicus brief to KM which is making a darned solid claim to Title II in addition to IDEA, which in previous we learned NSBA does not like in federal courts. So too are we concerned with TF's case in Circuit court currently on appeal for equitable damages for denial of FAPE.

Remember how for kcw in the other thread and for TF we were all wondering where or when was OCR and Dept of Ed, and how we're all struggling with the PITA "reasonable" is where regulations and Letter to Zirkel spell out the application of the standard differently than federal court determination. In that stew we had brewing we have Woodrum's fantastic blog entry that reminds us how to contextualize it all.

Well, I'm calling it a battle of obligation and jurisdiction pitting budgets against progress for civil rights in education. What's weird in the scrabbling for resource management where in the world is the thinking on the forefront under control of the school administrators to grant low to no cost accommodations in order to avoid a huge outpouring of pure money out to litigation. There is not enough oversight or transparency in either the budgeting or procedures and I'm not sure if it's the work of lazy administrators or if the system is so jacked it needs to be razed and rebuilt from the ground up. Off soapbox.

Finally, K.M.'s deference to and adoption of DOJ's views regarding § 35.160's interaction with the IDEA not only is inconsistent with SmithKline's limits on Auer deference,14 but also improperly stands on an agency's interpretation of a statute outside of its jurisdiction. DOJ's interpretation of § 35.160 constitutes an unauthorized extension of the obligations imposed by the ADA that effectively subsumes and nullifies portions of the IDEA. Specifically, while DOJ is authorized to promulgate regulations for and interpret the ADA (e.g., Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597- 98 (1999)), DOJ has no such authority with regard to the IDEA, for which the U.S. Department of Education is responsible (e.g., D.P. ex rel. E.P. v. School Bd. of Broward Cnty., 483 F.3d 725, 730-31 (11th Cir. 2007)). Because DOJ's position is based on an interpretation of the IDEA, it goes too far and should not have received deference. See Ardestani v. I.N.S., 502 U.S. 129, 148 (1991) (―courts do not owe deference to an agency's interpretation of statutes outside its particular expertise and special charge to administer.‖) (citations omitted); Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 650 (1990) (―it is fundamental  ̳that an agency may not bootstrap itself into an area in which it has no jurisdiction.'‖) (citation omitted).

Are we really at the point that an association of school administrators is going to take on and "win" against the Department of Justice so qualified individuals with disabilities don't get "too much"? DOJ cedes jurisdiction over Title II and 504 with respect to primary and secondary education but clearly DOE is able to hand off cases to them per the Case Processing Manual, with specific qualifications of course but it's not like it's so far removed to have a Title II obligation beyond 504 or IDEA if greater protections prevail.

[twinturbo]

The argument from the DOJ's side of things. http://www.justice.gov/crt/about/app/briefs/kmtustindecision.pdf

This is Ninth Circuit. Apparently, it matters which Circuit so keeping track. 

Oh yeah, da good stuff. No wonder they were shaking in their boots.

The panel rejected the reasoning that (1) a valid IDEA individualized education program, or IEP, satisfies a regulation promulgated under § 504 of the Rehabilitation Act requiring schools to make available to children with disabilities a free appropriate public education; (2) § 504 and Title II are substantially similar statutes; (3) therefore, a valid IDEA IEP also satisfies Title II. The panel held that compliance with the IDEA does not doom all § 504 claims. In addition, there are material differences between § 504 and Title II of the ADA. According deference to the Department of Justice's interpretation of the ADA effective communication regulation, as expressed in an amicus brief, the panel concluded that the ADA requirements regarding students who are deaf or hard-of-hearing are different than those imposed by the IDEA. The panel reversed the grants of summary judgment on the ADA claims in both cases and on a state law claim in one of the cases and remanded for further proceedings consistent with its opinion.

Below is the brief. Above is the decision. Worth a read for a cross-section of overlap between IDEA, 504, ADA Title II, and an example where DOJ intervened. Very important now that we're crossing over from previous comfortable territory with departmental regulations into federal court and litigation. The SD is arguing against the department being able to interpret and apply regulation due to jurisdiction.

http://www.justice.gov/crt/about/app/briefs/kmtustinbr.pdf

[kcw]

Interesting reading to say the least.  I thought I would just give a quick update on our situation. We haven't contacted OCR yet, and to date no more incidents have ocurred.  The amazement/frustration of what has happened in our case is that the very same discriminatory actions that caused our initial claim to be filed in Federal Court, have been repeated more than once in less than one year after signing a settlement with the school and our family.  Not to mention specific breaches in the settlement that were never followed since day one when parties agreed on the settlement.  At the end of the day, no one followed up on what had been agreed, and ultimately the Superintendent and School Board were the defendants in the claim and should be responsible.  Thankfully, however, no more reactions have ocurred with our child.

[twinturbo]

Would it help others if we put out a road map of resources and pitfalls in litigation beyond due process? I'd reorganize the presentation of materials, streamline, obvious emphasis on "deference" and additional evidence, and at least try to break down in easier terms the overlay of departments, regulations, decisions. Suggested options on how to proceed and gather evidence along the way. Documentation is close to religion on FAS but when I keep hearing substantive, deference and additional evidence keep coming up it does send me back to the refinement drawing board to counter the counter.

Game of Schools: You win or you get shafted.

First stop is checking some resources I found last night confirming SCOTUS denied hearing KM v Tustin letting th Ninth Circuit Court's decision for summary judgment for plaintiffs (student) stand. The Ninth Circuit Court overturning previous judgment for school based largely on deference to the DOJ amicus brief on its interpretation of regulation for "equal access" as a Title II ADA standard calling for effective communication in coexisting with IDEA requirements to satisfy FAPE--removing the hamstringing requirement of IDEA statue of limitations to seek remedy under 504, ADA.

And if this means it's now case law, precedent, a prepared advocate can keep calm, keep digging into Title II and try to argue requirements for equal access regulated by DOJ interpretation and jurisdiction.

Also, I'd like to Sunshine Act to the nth degree 'recipient' expenditures on attorney fees for stuff like this when clearly it's not to limit reasonable liability but expenditures on disabled students, and further jaded ideas about parents that is tipping the scales towards emotional motivation than organizational goal.

[ajasfolks2]

TT,

You're gonna have to help me with that last paragraph of yours immediately above . . . don't fully understand.   

[twinturbo]

Essentially, use FOIA to perform forensic accounting of a recipient's federal financial assistance when funding private attorney teams whose main purpose is to litigate against the parent of students who are QID seeking accommodations for FAPE, ADA Title II, IDEA.

How many DOE dollars are being spent on the process of denying accommodations in comparison to granting them? How are BOEs spending money in terms of top level administrator salary and legal? How are they able in terms of legal mechanism to spend funds from the Department of Education on legal assistance to help them fight against OCR oversight? Isn't that supposed to be the punitive measure to lose DOE funds for non-compliance?

[ajasfolks2]

Thanks!  Got it now . . .

[twinturbo]

Note to myself for later.

If intent is a high standard of proof required for bad faith, which goes beyond deliberate indifference, or if we accept the argument that some Circuit courts require bad faith standards (intent must be proven) for deliberate indifference...

... could this be shown to a court or department as a culmination of critical mass by the sheer number of SEA, LEA and NSBA documents, seminars that definitively demonstrate an orchestrated intent of bad faith towards students with disabilities and their parents acting on their behalf?