WAVE 10-27-17 Volume 4 Issue 7

Mom walks out of IEP meeting –
and then sues for FAPE denial

An Arizona federal judge rejected a mother’s alle-
gation that an IEP team’s decision to continue a
meeting after she left amounted to a denial of a
FAPE under the IDEA.

T.P. has learning disabilities and thus had an IEP
that outlined services to help her succeed in
school.

In late 2012, the IEP team met to formulate T.P.’s
2013 IEP. The district scheduled a two-hour meet-
ing.

T.P.’s mother and her advocate (an education con-
sultant) attended the meeting. At the beginning of
the meeting, the consultant said she could only
stay for the allotted two hours.

After the two hours had passed, the consultant
suggested reconvening at a later point to continue
the discussion.

District officials agreed the IEP team would meet
at a later date to make addenda and finalize the
IEP.

But the district also told the Dist., No. CV-14-00836-PHX- process hearing hearing request.
mother and the consultant that JJT, 2017 WL 603834 (D. Ariz. The hearing officer held for the
the IEP team would finish the IEP 2/15/17). school.
during the current meeting, as
the current IEP was set to expire Vacationing Dad wants Dad: School ‘excluded’ me!
within a few days. The mother IEP meeting rescheduled
and the consultant left while the The father sought judicial review,
IEP team continued the meeting. — again challenging the hearing officer’s
decision. The father argued that
Then the IEP team met with the A school did not violate the IDEA the school deliberately excluded
mother and the consultant two by holding an IEP meeting while him from the IEP meeting by
more times – once in January an autistic student’s father was scheduling it during a time that
and February – where changes on vacation, so a Hawaii federal they knew he was going to be on
were made to the 2013 IEP. judge ordered the clerk to close vacation.
the case. Here are three things
The mother wasn’t happy with the school did right: As you know, the IDEA stipulates
the IEP. She filed a due process that schools must allow parents
complaint, but the ALJ denied the The student has autism, so the to participate in IEP meetings.
majority of her requested relief. boy was entitled to services. The
The mother thought the ALJ school set up an IEP meeting to When parents refuse to coop-
made the wrong call. determine an appropriate plan erate: 3 key steps
for the child.
Court’s take The IDEA also includes guidance
The boy’s father cancelled and about when IEPs can be held
She sued, alleging the district de- postponed the meeting several without parents, the court ex-
nied T.P. a FAPE by “significantly times. plained.
imped[ing] parental participation
in the IEP by continuing an IEP School officials continued to If school officials decide to hold
meeting” after she left. postpone the meetings and an IEP meeting without a parent,
reached out to the father for po- then educators must document
The court disagreed. tential dates to reschedule. He their attempts to schedule the
ignored or failed to respond to IEP meetings with parents,
The mother had participated in the school’s attempts to resched- specifically including:
IEP in the majority of the meeting ule at least three times.
– with a consultant – on that spe- 1. Detailed records of phone
cific day. Further, the court noted, This pattern continued for more calls made and attempted – and
the mother and consultant partic- than six months. Eventually, the results of the calls
ipated in two follow-up meetings school officials held the IEP
and helped make changes to the meeting without the father, citing 2. Copies of letters and emails
IEP. the need to comply with the sent to parents – and any re-
IDEA. sponses received from the par-
The evidence didn’t support the ents, and
claim that she was denied mean- The child’s father filed a due
ingful input in the IEP, so the 3. Detailed records of visits made
ALJ’s ruling was affirmed. to the parent’s home or work-
place – and the results of those
Pangerl v. Peoria Unified School visits.

In this case, the school’s records The father had a state court A state hearing officer found the
showed the father had cancelled order awarding him custody of mother, as a non-custodial par-
or postponed a scheduled meet- the child. For about four years, ent, had no right to bring a com-
ing on four occasions and ig- the mother exercised visitation plaint about the child’s IEP.
nored or failed to respond to the rights without an explicit award of
school’s attempts to reschedule visitation rights. Within a week, the mother filed a
on three occasions. second due process complaint,
In 2015, the court ordered that seeking relief against the district
The Ninth Circuit – which this the child stay in the father’s cus- not allowing her to participate in
court follows – has repeatedly tody and that visitation with the his educational decisions.
held that when parents fail to re- mother be reserved until a further
spond to schools’ attempts to order, pending a neuropsycho- After a second hearing, a differ-
schedule IEP meetings, then the logical examination of the child. ent hearing officer said the child
meeting can go on without the was represented by his father at
parent. all times and the mother’s partic-
ipation rights were not impeded.
As such, the school did not vio- The mother wasn’t happy. She
late the father’s rights by “exclud- sought judicial review, alleging
ing him from his son’s IEP she had a right to enforce her
meeting,” the court held. son’s right to a FAPE under the
IDEA.
It affirmed the hearing officer’s
ruling for the school and ordered Generally parents have enforce-
the clerk to close the case. able rights to assure their chil-
dren receive
P.M. v. Dept. of Education,No. a FAPE. IDEA regs define a par-
15-00437-LEK-RLP, 2016 WL ent as biological parents, without
6434072 (D. Haw. 10/31/16). regard to full or joint custody of a
child.

Non-custodial mom wants to According to the mother, the State custody laws apply
call the shots: Can she? child had a history of behavioral
issues at school and had been But the Seventh Circuit – which
Question: Just how far do you diagnosed with ADHD. She said this court follows – has held that
have to go to appease an angry school staff never implemented a a biological parent’s rights under
non-custodial mother? This rul- Section 504 plan designed to ac- the IDEA depend upon the cus-
ing provides insight. commodate his ADHD and that tody arrangement of the parents
the plan was inadequate. as defined by state law and any
An Illinois federal court deter- applicable custody orders.
mined that a mother can’t pursue Mother demands IEP
IDEA claims because she Under Illinois state law, the cus-
doesn’t have legal custody of the The mother wanted an IEP for todial parent has the authority to
child. her son. The school didn’t create make educational decisions –
one. She filed a due process unless a custody order stipulates
hearing request. otherwise. This mother’s custody
order didn’t.



In the Seventh Circuit’s view, a classroom and told Brown that The campus police department
noncustodial parent cannot upset another teacher needed to see launched an investigation. Within
choices committed to a custodial Doe. a week, all seven male students
parent by state law. had been arrested.
Without confirming this, Brown
In this case, the father was the allowed Doe to leave with the Story changes
child’s custodial parent, so the student. He led Doe to a boys’
hearing officers correctly found restroom, where seven males The campus police deparment
the mother lacked educational raped and sodomized her. transferred the case to the city
decision-making authority and police.
lacked standing to bring an IDEA Doe had never before been sex-
due process complaint to chal- ually assaulted at the school, and When the city police interviewed
lenge the district’s decisions. the boys involved in the attack Doe, she recanted her statement
were never previously accused and the criminal charges against
Smith v. Meeks, No. 15 C 10250, of sexually assaulting students at the attackers were dropped.
2016 WL 7049057 (N.D. Ill. school.
12/5/16).

Special ed student gang-
raped in school restroom

Expressing sympathy about the
ordeal the victim endured, the
Eleventh Circuit affirmed that a
Georgia school was not deliber-
ately indifferent to the rape of a
special education student.

It dismissed a Title IX claim.

Teacher lets girl leave class

Jane Doe II in court documents
was a special education student
at Northeast High School. In
2012, she was 16 years old, but
she functioned on the level of a
nine year old due to her intellec-
tual disabilities.

Doe was in Oslynn Brown’s class
when a male student came to the

Learning Doe had recanted, the Next, the court addressed the al- Eight-year-old Jonathan Mar-
school prepared a disciplinary legation that the school was de- tinez died at a nearby hospital
charge letter for Doe, alleging liberately indifferent to the after being airlifted from the
she’d engaged in sexual miscon- assault after the attack. school. The other, a 9-year-old
duct. boy, is recovering.
Doe’s parents said the discipli-
However, a disciplinary commit- nary charge against Doe after This was the 12th school shoot-
tee determined that her “alleged the assault was proof that school ing in 2017, according to Every-
misconduct was caused, or sub- officials were deliberately indiffer- town for Gun Safety, a
stantially influenced, by her dis- ent to the assault. pro-gun-control group that
ability.” So no disciplinary action sprang up in the wake of the
was pursued. The court disagreed for two rea- Sandy Hook shooting in 2012.
sons. First, Doe was not singled
Doe was homeschooled for the out. The school issued discipli- ‘Just dropping something off’
remainder of the year and then nary letters to the male students,
transferred to a private school. too.

School officials also issued disci- But moreover, Doe was never
plinary charge letters for the stu- actually disciplined, as a discipli-
dents who were accused in the nary committee deemed her al-
assault. None returned to the leged misconduct was a
school. manifestation of her disability.

Title IX violation? So the claim failed.

Doe’s parents sued, alleging a vi- Doe v. Bibb County School Dist., When Cedric Anderson arrived at
olation of Title IX, alleging their No. 15-14361, 2017 WL the school, he went to the office
daughter’s rights were violated 2240825 (11th Cir. 5/22/17). and followed the sign-in policy.
before and after the assault. He told employees that he was
Domestic dispute: 3 dropping something off for his
To prove their claim, Doe’s par- dead, 1 injured in special wife and headed for Karen
ents had to show the school had Smith’s classroom.
actual knowledge of the assault needs classroom
and were deliberately indifferent This wasn’t an uncommon prac-
to it. On April 10, a California man tice, and office staffers had no in-
went to North Park Elementary dication that Anderson was
They pointed to prior cases of School and fatally shot his es- armed, police said.
sexual harassment in the district tranged wife – a special educa-
– once in 2002 and once in 2008. tion teacher – before killing Anderson walked into the room
himself. Two students who’d and started shooting “without
But the court said that prior sex been standing near the teacher saying anything,” according to
harassment or assault involving were caught in the line of fire. witnesses. Two adults and 15
different students and different students were in the classroom
attackers didn’t give “actual no- at the time.
tice” of Doe’s harassment, the
court held.

The couple had recently married Mainstreamed student the district and the school princi-
and separated. Further, Ander- attacks classmate: Was pal recommended L.L. be re-
son had a history of domestic vi- moved from the mainstreamed
olence in previous relationships, school to blame? classroom and placed into a day
police said. treatment program.
An incident from 2013

Checklist: Domestic violence After her daughter was attacked L.L.’s teacher agreed, document-
policy by a classmate with a disability, ing her concerns that L.L. might
a Mississippi mother filed suit, hurt her or another student.
Historically, domestic violence claiming the school’s failure to re-
has been considered a “private move the child from the class- Despite the three recommenda-
matter,” but schools can’t over- room amounted to a due process tions, the district’s superinten-
look the possibility that it could violation. dent decided L.L. would remain
spill over into the workplace, ac- mainstreamed in the classroom
cording to the Crisis Prevention During the 2009-10 school year, for a portion of the school day.
Institute. student Ruby Carol Dixon was a
fourth-grade student at Kossuth Conflict with specific student
It offers this checklist to help you Elementary School.
prevent a similar incident at your Most of the time, L.L. made
school: That same year, L.L. was a vague comments that were not
fourth-grade special ed student. directed at any particular student.
1. Do you have a system in place For an allotted period of time But on two occasions in Febru-
to make sure all visitors sign in, each school day, L.L. was main- ary, L.L.’s comments were about
are expected and are accompa- streamed into Ruby Carol’s Ruby Carol:
nied while on campus? class.
* On a day when the girl was ab-
2. Do you have procedures for During the first half of the school sent, L.L. announced to the
employees to follow in the event year, L.L. amassed a long disci- class, “I am just so happy Ruby
of a potentially violent incident? plinary record, with incidents like: Carol is not here,” and
Does your staff periodically re-
view and practice violence pre- * hitting his teacher with his * Days later, L.L. said to Ruby
vention procedures? lunchbox Carol, “Stop looking at me, you
enemy!”
3. Do you have a policy regard- * slamming the classroom door in
ing employees who have re- another child’s face L.L.’s behavior issues took a turn
straining orders? for the worse in March.

For more on domestic violence in * kicking a fellow student in the While waiting in line to sharpen
the workplace: leg, and her pencil, Ruby Carol bumped
into L.L. That’s when he:
https://www.crisisprevention.com * making threatening remarks.
/Blog/September-2016/When- * grabbed Ruby Carol and held
Domestic-Violence-Intersects- L.L.’s behavior issues were com- her head against the wall
With-Your-Workpl mon knowledge among school
employees. * rubbed a Clorox cleaning wipe
into her eye
The supervisor of curriculum in

* told Ruby Carol that she was a would’ve been a “known victim” claim alleging the district violated
“fat little bitch” and that he was of an unprecedented assault. her son’s right to due process.
“washing the (f-bomb) germs out
of her eyes.” Instead, she was one student To impose liability under Section
who faced a “general risk result- 1983, the mother had to show
Ruby Carol had to seek medical ing from the school’s attempt to that the district had a policy or
treatment for an eye injury. integrate a mentally disabled widespread practice that caused
child into a normal school envi- the injury.
Her mother sued, claiming the ronment,” the court explained.
school violated Ruby Carol’s Here, the allegations only
right to due process by failing to So the claim failed. showed one driver and one mon-
remove L.L. from the classroom. itor failed to notice one child was
Cite: Dixon v. Alcorn County left on the bus.
The school asked the court to School Dist.
dismiss the claim. It did. Further, she didn’t allege the dis-
Special ed student hitchhiked trict knew of and disregarded a
The court explained the due home after being left on bus pattern of special needs kids
process clause doesn’t require being left on buses. It dismissed
schools to protect students A Florida federal court dismissed the claim, but granted leave to
“against invasions by private ac- the Section 1983 claims filed amend, so the school’s not off
tors” – unless one of two excep- against a district after a student the hook yet.
tions apply. was twice left on a bus – but it
gave the child’s mother leave to Riha v. Polk County School Dist.,
Did an exception apply? amend, so she’ll get a second No. 8:17-cv-787-T-33AAS, 2017
chance to state a valid claim. WL 2986227 (M.D. Fla. 7/13/17).
Ruby Carol’s mother argued the
“state-created danger” exception The student has been diagnosed
applied. as “being on the autism spec-
trum.”
She claimed school officials
should’ve known that having L.L. On two occasions in March of
mainstreamed into Ruby Carol’s 2016, he fell asleep on the bus
class would put her in danger be- and was left there. Video surveil-
cause: lance shows the driver and the
monitor leaving the vehicle with-
* staffers’ recommendations out walking through the bus to
showed the school knew L.L. ensure it was empty.
was dangerous, and
The boy told his mom he hitch-
* the two comments L.L. made in hiked home.
February showed Ruby Carol
was a “known victim.” The mother filed a Section 1983

The court didn’t buy it, noting
L.L.’s behavior was not so fo-
cused on Ruby Carol that she

Student stabbed in the trial. No. 4:16-cv-00117-BLW, 2017
eye during recess: WL 3723640 (D. Idaho 8/29/17).
Given the attacker’s history of vi-
Principal’s not off the olence, a reasonable jury could Arsenal of weapons,
hook find the principal’s conduct was stash of drugs: Student
“reckless, willful and wanton,” the
An Idaho federal judge refused to court said. arrested
dismiss claims filed on behalf of
a student who lost sight in his So it refused to dismiss the claim A Florida tenth-grader has been
right eye after being stabbed with against the principal. arrested for bringing drugs and
a stick. Here’s why the school weapons to Fort Pierce West-
couldn’t nip this suit in the bud: District’s on the hot seat, too wood High School.

On April 14, 2015, the play- After a parent tipped the school,
ground at Pioneer Elementary administrators notified local po-
School was shorthanded. Two lice.
staffers – rather than the usual
four – manned the playground,
as per the principal’s instruction.

A student with a long history of As for the claim against the dis- The sheriff’s department
disciplinary issues (including hit- trict, the court noted that an es- searched the teen’s car and
ting classmates, throwing rocks tablished anti-bullying policy found:
at teachers and punching a para- outlined general disciplinary in-
professional) stabbed a class- structions and reporting guide- * several guns, including a 9 mm,
mate in the eye with a stick while lines. But the principal testified an AK-47, a .45-caliber hand
they were at recess. that she’d never received training gun, a .380-caliber hand gun and
on administering student disci- a pellet gun, as well as
Student loses eyesight pline or documenting incidents of
bullying. * drugs and paraphernalia, in-
The injury required two surgeries cluding 12 grams of marijuana,
and caused permanent blind- As such, a reasonable jury could five Xanax bars, a scale and a
ness in the victim’s right eye. His conclude that the district failed to ceramic pipe.
parents filed a lawsuit, alleging: train the principal to comply with
its policy. So the court refused to The teen faces five drug- and
* the principal provided negligent dismiss the claim against the dis- weapons-related possession
supervision by letting a known vi- trict. charges. His bond was set at
olent student use an under- $27,750.
staffed playground during The case will proceed.
recess, and
Wilson v. Salmon School Dist.,
* the district was negligent be-
cause it failed to train the princi-
pal on best practices to comply
with its anti-bullying policy.
The defendants asked the court
to dismiss the claims without a

Lighter side: What
caused school
evacuation!?

Fall is well underway, which
means that pumpkin spice
lattes, cookies and candles are
probably close at hand – even in
places you might not expect.
Case in point:

A Baltimore high school was
evacuated after several students
and teachers reported having
difficulty breathing. Five people
were taken to a nearby hospital.

The principal called the fire de-
partment, which called in a haz-
mat crew. It conducted testing to
determine whether hazardous
materials were inside the build-
ing.

After tests came back negative,
firemen opened the windows to
air out the building – and discov-
ered the cause of the strong
smell: a pumpkin spice plug-in
air freshener in a classroom.