UPDATE FROM THE COURTS THAT COUNT€¦ · The magistrate's recommendation was based on a theory...

© Walsh Anderson 2013 of 13

UPDATE FROM THE COURTS THAT COUNT:

YOU BE THE JUDGE

Presented by

Nona C. Matthews

Attorney at Law

www.WalshAnderson.com

The information in this presentation was created by Walsh, Anderson, Gallegos, Green & Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney. Information in this presentation is

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ELIGIBILITY/EVALUATION

J.T. v. Fairfax County School Board, 113 LRP 14226 (4th Cir. 2013)

The Circuit court upheld the District court's judgment in favor of the school District. The court

reasoned that the Student received a FAPE, when the Student's IEP addressed all of the Student's

educational needs, regardless of the eligibility category. The teenage student with Down's

syndrome may have had an auditory impairment, according to an IEE. While the court

questioned the validity of the IEE, it ultimately determined the District had addressed all the

needs identified in the IEE, regardless of eligibility. The District staff provided detailed

testimony regarding instruction strategies used. This testimony was critical in the court's

decision.

INDEPENDENT EDUCATIONAL EVALUATIONS

L.M. v. Lancaster County School, 60 IDELR 92 (8th Cir. 2012)

The court did not find a denial of FAPE over the use of a calming room in the Student's

behavioral intervention plan. The Student's independent evaluators recommended the use of a

three-level plan that included increased consequences for behavioral incidents, the use of

physical restraint, and keeping the Student in the general education classroom unless he

presented with five incidents of misbehavior in a five-minute period. The ARD committee

included the recommended three-level plan in the Student's BIP. However, the ARD committee

rejected the independent evaluator's other recommendations over safety concerns for the Student,

staff, and other students. The court found that the ARD committee chose an appropriate

intervention plan for the Student after considering a variety of positive intervention strategies,

including some of the independent evaluator's recommendations.

A.C. v. Jefferson County Board of Education, 60 IDELR 30 (11th Cir. 2012)

The District Court rejected a federal magistrate's recommendation that the District Court deny a

Parent's request for an IEE. The magistrate's recommendation was based on a theory that the

Education Department exceeded its authority in the mandating the provision of publicly funded

IEEs, via regulation. The District appealed. The 11th Circuit ruled that the District must fund

the parentally requested IEE. The Circuit Court reasoned that the Education Department was

bound by the IDEA to preserve any IDEA regulations in effect from July 20, 1983, unless

Congress clearly intended otherwise. 20 U.S.C 1406(b)(2). The court recognized Congress's

failure to change the regulations in effect since 1983, providing for the right to a publicly funded

IEE, even though Congress had repeatedly reauthorized the IDEA.

M.Z. v. Bethlehem Area School District, 60 IDELR 273 (3rd Cir. 2013)

The court affirmed the District Court's order that previously overruled a Hearing Officer's failure

to order an IEE. At the due process hearing, the Hearing Officer determined the District's


evaluation to be insufficient, yet did not grant the Student an IEE. The Student challenged the

decision in the District Court. The District Court determined that the Student's entitlement to an

IEE at public expense was mandatory, once the hearing officer determined the District evaluation

was insufficient. The District appealed. The Circuit Court affirmed. Here the record was clear

that the District's assessment was not sufficiently comprehensive. The District's reevaluation

failed to consider the Student's pragmatic language skills in peer settings, the Student's upcoming

transition to high school, and the District only reported anecdotal data on the Student's IEP

progress updates. It is important to note that the District sought but was not afforded the

opportunity to correct its flawed assessment.

SUFFICIENCY OF THE IEP

R.P. v. Alamo Heights, 60 IDELR 60 (5th Cir. 2012)

The court ruled that the District provided a FAPE to a fourth grade student with intellectual

disability, autism, and a speech impairment despite a year-long delay in reviewing the Student's

Assistive Technology evaluation, and subsequent provision of a voice output device to the

Student. The court reasoned that the delay in discussing the AT evaluation requested by the

ARD committee resulted in a failure to incorporate the results in the Student's IEP. Thus, the

Student's IEP was not sufficiently individualized. However, the court also found that the

Student demonstrated positive academic and non-academic benefits from the use of less

sophisticated assistive technology, during the period of time that elapsed before the AT

evaluation was ultimately incorporated into her IEP. Specifically, the Student showed progress

using picture communication cards. The court ruled that R.P. was not denied a FAPE though the

Student later demonstrated greater progress with the voice output device. The 5th Circuit

reasoned that the IDEA requires an opportunity for meaningful educational benefit, not

maximization of potential.

R.G. v. Downington Area School District, 113 LRP 23556 (3rd Cir. 2013)

A grade school Student's IEP was found to be appropriate after the District refused continued

private school placement at public expense. The ARD committee recommended placement at

the public school after the Student failed to make educational progress in the private setting. The

court noted that the District's proposed IEP was very similar to the private school IEP. The

private school offered 150 minutes of one-to one speech therapy. However, the court found the

District's proposed 120 minutes of therapy adequate, even though it would be provided in an

individual and group setting. It is important to note that the District failed to specify in the IEP

whether speech therapy would be provided one on one or in a group setting. This fact had to be

established through witness testimony.

DISCIPLINE/RESTRAINT/FBAs AND BIPs

L.M. v. Lancaster County School, 60 IDELR 92 (8th Cir. 2012)


The court did not find a denial of FAPE over the use of a calming room in the Student's

behavioral intervention plan. The ARD committee opted for the strategy after reviewing data

that indicated the strategy had been successful in the past, and determining the use of restrain

posed a safety risk to students and staff members. Critical to the court's decision was the ARD

committee's consideration of multiple positive behavioral intervention strategies in determining

the appropriate strategy for the Student.


The District created and implemented a BIP for the Student with autism without first conducting

an FBA. The evidence showed that the BIP was based upon observations, a records review, and

data analysis. The BIP identified the Student's behavioral antecedents and replacement

behaviors. The 5th Circuit held that an FBA was not required under federal law since the

Student was well behaved and never removed for disciplinary reasons. Also, FBAs are

suggested for students with autism but not required when developing a BIP. The District's BIP

was sufficient.

Ebonie S. v. Pueblo Sch. Dist. 60, 112 LRP 43336 (10th

Cir. 2012)

Ruling on the Parent’s Section 1983 claims the Court found the use of a “wraparound desk” did

not significantly exceed the inherent limitation of movement found in every day compulsory

attendance; therefore, it did not violate the Student’s constitutional rights. The court held that

use of the desk did not amount to a seizure under the Fourth Amendment or a violation of the

Student’s Fourteenth Amendment right to be free from bodily restraint. The school placed the

Student with intellectual disabilities and Down’s syndrome into the U-shaped desk. The desk

had a restraining bar attached to it which ran across the back of the Student’s chair, thus

preventing the chair from sliding back, but it did not contain a restraint attached to the Student or

force the Student to sit in any unusual manner. According to the Court, the desk merely required

the Student to remain seated in the classroom setting just as required of countless school children

across the nation. Critical to the court’s reasoning was the fact that the Student could get out of

her seat, albeit in an awkward fashion, by crawling over or sliding under the desk’s surface. The

desk was used not only for keeping the Student on task, but also for discipline. In this regard, the

court found that the desk was analogous to in-school disciplinary measures that restricted liberty

and noted that due process rights cannot be triggered by every time-out and after-school

detention. The Court also affirmed a judgment for the District on the Parent’s equal protection

claim holding that use of the desk was a rational response to the “Student’s unique pedagogical

challenges.”

Comment: The U. S. Supreme Court denied the Parent’s petition for certiorari on March 18,

2013; therefore, this decision is final. See 113 LRP 10906.


E.C. v. County of Suffolk, 60 IDELR 242 (2nd

Cir. 2013)

The court affirmed a summary judgment in favor of the school District after the Student was

restrained. Claims alleging illegal seizure were dismissed. The court noted that the claims turned

on an assessment of the reasonableness of the seizure. The court found that minimal force was

used, and it was justified. The incident was described as follows:

(a) E.C. began throwing pebbles, then rocks, while on the playground, which his aide

told him to put down; (b) when told by his physical education teacher to stop

throwing the rocks, E.C. became agitated and defiant; (c) teacher’s assistant

Zimmerman took the rock from E.C., at which time he became upset and began

yelling and running; (d) school security guard Wilson testified that when she told

E.C. he could not throw rocks he became very agitated; (e) when security guard

Burns approached E.C. he assumed a boxing stance and began running around in

an attempt to make physical contact; (f) Wilson held E.C.’s right arm down at his

side by holding his right wrist with both of her hands while [Burns] held E.C.’s

left arm down; (g) E.C. screamed and tried to run, pulling the guards along with

him; (h) when Wilson and Burns let of E.C., he tried to swing at bystanders so

they again held his arms; (i) the guards sat E.C. down in a sandy area by dropping

down in a seated position while holding him; (j) E.C. continued thrashing around

as testified to by newcomers to the scene, Principal Stokkers and E.C.’s teacher,

Valente; and (k) E.C. tried to bang his head and continued thrashing when

defendant Officer Fiorillo arrived and relieved Wilson, then Burns.

Comment: We counted six adults trying to deal with this student: aide, P.E. teacher, teacher’s

assistant, two security guards and a police officer.

LEAST RESTRICTIVE ENVIRONMENT/PLACEMENT

D.W. v. Milwaukee Public Schools, 61 IDELR 32 (7th Cir. 2013)

The court found no error with a District's decision to place the Student in a more restrictive

instructional placement. A ninth grade student in a multi-categorical class (serving individuals

with a variety of disabilities) earned poor grades and refused to participate in assignments. The

ARD committee developed a BIP that provided several hours of one-to-one instruction daily,

modified assignments, and daily progress reports. When the Student's progress did not improve,

the ARD committee reconvened and changed the Student's IEP and BIP. Specifically, the IEP

and BIP provided instruction at the Student's instructional level, preferential seating, and positive

feedback. The ARD committee reconvened and recommended placement in a special day class

for students with intellectual disabilities after the Student still failed to make progress despite the

additional interventions. Evidence that the Student could not receive a satisfactory education in

the multi-categorical class was essential to the court's ruling.

Stamps v. Gwinnett County School District, 59 IDELR 1 (11th

Cir. 2012)


The Circuit Court affirmed the ruling that the Student did not need to be served at home. The

Parents’ argument was based on the testimony of their private physician but the court concluded

that the doctor’s testimony did not establish a health-based need for homebound instruction.

Comment: The U. S. Supreme Court denied Parents’ petition for certiorari on November 5,

2012; therefore, this decision is final. See 112 LRP 54652.

A.T. v. Dumont Public Schools, 61 IDELR 33 (3rd Cir. 2013)

The 3rd Circuit affirmed the District court decision, finding a Student's placement at a

centralized kindergarten inclusion program appropriate. The kindergarten inclusion class not

available at the Student's neighborhood school, and was only offered at one elementary school in

the District. The court did not find evidence that the District had a policy of placing all

kindergarteners in the program. In contrast, the evidence showed that the Student's need for an

inclusion program drove the ARD committee's placement decision.

PRIVATE PLACEMENT

Ka.D. v. Solana Beach School, 9 ECLPR 74 (9th Cir. 2012)

Ka.D. was a four-year-old with documented difficulties with transition and large groups. After

attending a meeting in the District to develop an IEP, in which, the District’s evaluator

recommended special education services with transition relatively quickly to an inclusive general

education classroom, Ka.D.’s parents gave the District notice and unilaterally placed her in a

private school that served typically developing students. Her parents then sought reimbursement

for the private school expenses. The District’s inclusive classroom was a general education

classroom with 24 students. But, counting the different core students who attended the class each

day, it amounted to 42 different students that Ka.D. would be interacting with each day.

Comparatively, the private school’s class size was 6-8 children, Ka.D. had a 1:1 aide, and she

was making good progress. The District’s evaluator testified at the due process hearing that

Ka.D. was not ready for the District’s inclusive classroom because of the class’s large number of

peers. The hearing officer found that the private school classroom with the aide was meeting

Ka.D.’s unique needs. Additionally, the District and Circuit Courts held that under the IDEA, a

child receives FAPE if the program addresses the Student’s unique needs and provides adequate

support services so that the child can take advantage of the educational opportunities. Here, the

District’s program did not meet the Student’s unique needs due to Ka.D.’s difficulties with

transitions and large groups; and therefore, the District had failed to offer a FAPE.

M.N. v. Hawaii DOE, 60 IDELR 181 (9th

Cir. 2013)

The court affirmed the ruling that the Parent was not entitled to reimbursement for private

placement due to the inappropriateness of the private placement as well as the failure of the

private school and Parent to cooperate with the public school. The Student had been at the


private school for a year and a half and showed no progress in a number of key areas. The

private school focused on language acquisition and did not provide services that were needed to

address other areas of need. Moreover, the private school did not share records with the public

school, thus blocking efforts to evaluate the Student, and the mother evaded school efforts to

contact her which included seven phone messages and four letters.

D.D-S. v. Southold Union Free School District, 60 IDELR 94 (2nd

Cir. 2012)

The Circuit Court upheld the ruling in favor of the school District, denying tuition

reimbursement. The school conceded that it failed to offer FAPE, but successfully defended the

claim by convincing the hearing officer and the courts that the residential placement at the

Landmark School in Massachusetts was inappropriate, largely due to it being highly restrictive.

The court noted that the restrictiveness of a placement is an appropriate consideration, and the

Student’s academic progress at Landmark “alone is not a dispositive indicator of

appropriateness.”

M.B. v. Minisink Valley Central Sch. Dist. 113 LRP 13330 (2nd Cir. 2013)

The court denied the recovery of costs for private placement. The Parents' of a parentally placed

private school student failed to meet their burden to prove the private school placement as

appropriate. The court was not persuaded by evidence of academic and behavioral gains alone.

The court cited lack of evidence to demonstrate the private school's provision of specially

designed instruction and support services to meet the Student's unique educational needs and

provide positive behavioral supports. In contrast, the court found that the private school failed to

address the Student's organizational, executive functioning, and fine motor needs. In lieu of

positive behavioral supports, the school's behavior management strategies were limited to the use

of punitive consequences.

Jefferson County School District v. Elizabeth E., 60 IDELR 91 (10th Cir. 2012)

The court awarded the cost of out of state placement to the Parents of a residentially placed

student with emotional disturbance. The circuit ultimately did not apply the 5th circuit standard

in determining whether the placement was appropriate. Nevertheless, the court noted that the 5th

Circuit applies the following two prong test to determine when a residential placement is

appropriate under the IDEA, the placement must be (1) essential in order for the disabled child to

receive a meaningful educational benefit, and (2) primarily oriented toward enabling the child to

obtain an education." Under the first prong, a school District is only required to pay for the

residential placement if the Student is unable to receive an educational benefit without the

placement. The second prong necessitates consideration of a variety of factors including, but not

limit to, how the Student's progress will be judged at the private placement, the initial motivating

factors for the placement. Once the court conducts an analysis of the services as a whole, it must

examine each constituent part of the placement to differentiate between inappropriate and

appropriate (and therefore reimbursable) treatments.


FAPE


The Parents argued that they were denied meaningful participation when the District prematurely

ended ARD committee meetings and allegedly predetermined the ARD committee's decisions.

The heated ARD committee meetings did occasionally end early. However, the early

termination of the meeting was due to the Parents' behavior. The court also found that the

District promptly rescheduled meetings at a mutually agreeable time in order to continue

discussing the issues related to R.P's IEP. This practice was critical in the court's finding that the

early termination of meetings did not result in a denial of FAPE. Also, the District convened

numerous ARD committee meetings, R.P.'s parents were provided numerous opportunities to

voice their input regarding R.P.'s IEPs, and the Parents' proposed changes were incorporated into

R.P's IEP. Thus the court concluded there was no denial of meaningful parent participation, due

to predetermination.

Klein Independent School District v. Hovem, 59 IDELR 121 (5th

Cir. 2012)

A high school student, who qualified for special education with a learning disability in writing,

exhibited extremely limited writing skills. He had difficulty transferring information to paper,

and his spelling and handwriting were very poor. Despite these limitations, the Student was

successful and made above-average grades in his classes. Throughout high school, he used

accommodations including a portable word processor to address spelling deficits, study guides

for his classes, copies of class notes, computers for essays and handwritten assignments,

correction of spelling errors without penalty, extra time for written work, and oral essay tests.

His writing difficulties persisted, however. His parents, convinced that he needed additional

help, planned for his enrollment in a private school which taught “intelligent disabled students

with methods designed to ameliorate their deficiencies in writing, spelling, and phonetics.” In

order to preserve his eligibility for this school, which would not take high school graduates, the

Student dropped a required course for graduation. His teacher encouraged him to finish the

course and graduate, but the Student enrolled in the private school instead. His parents then filed

for reimbursement claiming a denial of FAPE contending that the District had not remediated the

Student’s writing disability. The District court agreed with the Parents.

The Fifth Circuit, in a split decision, did not agree, holding that the District court’s reasoning

was flawed by its erroneous interpretation of “educational benefit” as it had interpreted this

solely in terms of the weaknesses caused by the Student’s learning disability, rather than his

overall academic record. The court opined, “Overall educational benefit, not solely disability

remediation, is IDEA’s statutory goal.” Here, the Student’s IEP was sufficient because it was

reasonably calculated to enable him to achieve passing marks and advance from grade to grade

in mainstream classes. The court noted that “nowhere in Rowley is the educational benefit

defined exclusively or even primarily in terms of correcting the child’s disability.” So long as

the student makes meaningful progress under his IEP, the District has fulfilled its obligation to

provide a FAPE.


Comment: The U. S. Supreme Court denied Student’s petition for certiorari on March 18, 2013.

This decision is final. See 113 LRP 10911.

S.W. v. Governing Board of East Whittier City School District, 58 IDELR 211 (9th

Cir. 2012),

unpublished

The court affirmed a ruling in favor of the District, holding that there was no procedural error.

After the parties failed to come to agreement on the IEP at the ARD committee meeting, the

District modified one goal in its draft IEP and then sent the modified version to the Parents. The

ALJ described the change as “minor” and noted that it arose directly from the discussions held at

the meeting. There was no need to re-convene the ARD committee to make this minor change in

the District’s draft.

L.F. v. Houston ISD, 58 IDELR 63 (5th

Cir. 2012)

The 5th

Circuit summarily rejected substantive and procedural arguments made by the Parent,

applying the four-part Michael F. test with the District satisfying each element. This upheld

decisions of the hearing officer and District court. The decisions of the ARD committee were

based on information from evaluation, the Parents, and school personnel. The ARD committee

recommended reevaluation when more information was needed to address a concern regarding

the Student's behavioral and educational needs. The Student's individual education plan was

adjusted based upon the reevaluation data. The ARD committee considered a variety of

educational settings, before ultimately determining placement in a self contained behavior

intervention program. The court agreed with the ARD committee that a self contained behavior

class was the least restrictive environment for the Student. The court found that all key

stakeholders were involved in the IEP meetings, though the Parent refused to attend some

meetings. The District documented its efforts to gain the Parents participation and reschedule

meetings at a mutually agreeable time. The court also determined that the Student received both

academic and non-academic benefits from the IEP developed by the ARD committee. The

Student made good grades and progress on his IEP goals and objectives, even though the

Student's overall performance was below grade level.

Comment: The U.S. Supreme Court denied Parent' motion to reconsider its previous denial of

Certiorari on April 15, 2013; therefore this decision is final. See 113 LRP 15881.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Muskrat v. Deer Creek Public Schools, 61 IDELR 1 (10th

Cir. 2013)

The court held that the plaintiffs were not required to exhaust claims that were essentially based

on three scattered instances of physical abuse. The court: “No authority holds that Congress


meant to funnel isolated incidents of common law torts into the IDEA exhaustion regime.” As to

complaints about the use of a timeout room, the court held that exhaustion was required, but

under the facts of this case, it was satisfied, even though the Parents did not request a due process

hearing. The Parents worked through administrative channels in the school District and

eventually got the use of timeout taken out of the IEP. Key Quote:

At this point, given the steps the Muskrats took and the relief they obtained, it

would have been futile to then force them to request a formal due process

hearing—which in any event cannot award damages—simply to preserve their

damages claim.

Comment: The court cast doubt on prior 10th

Circuit rulings that exhaustion is a jurisdictional

requirement. The court noted that the 2nd

, 4th

and 10th

Circuits had held that exhaustion is

jurisdictional, while the 7th

and 11th

held that it was not. The court characterized all of these

rulings as “drive-by rulings” without serious analysis. The court noted that only the 9th

Circuit,

in Payne v. Peninsula School District, had analyzed the issue carefully. In that case, the court

held that exhaustion is not jurisdictional. Despite all that, the noted that “for purposes of this

case IDEA’s exhaustion’s status as a jurisdictional prerequisite is not at issue.”

LIABILITY

Colomo v. San Angelo ISD, 60 IDELR 95 (51h

Cir. 2012)

The 5th Circuit dismissed the case in which the Student sought to impose liability on the District and

some of its employees on the basis of an alleged student-on-student sexual assault. The court

cited earlier 5th

Circuit authority which rejected the "special relationship" and "state-created

danger" theories of liability.

Dixon v. Alcorn County School District, 60 IDELR 61 (5th

Cir. 2012), Unpublished

The 5th

Circuit here once again refused to adopt or reject the “state-created danger” theory of

liability, but held that the facts of this case failed to establish one of the necessary elements.

Specifically, there was no evidence here that the plaintiff was a “known victim.” Key Quotes:

Importantly, it is not enough to “allege that the school is aware of some general

deficiencies in one of its policies.” Rather, the school must be aware of an

immediate danger to a specific and identifiable student.

Sad as the facts of this case may be, the record makes clear that Ruby Carol was

merely one student among many who faced a generalized risk resulting from the

school’s attempt to integrate a mentally disabled child into a normal school

environment.


Comment: This case involved a 4th

grader who allegedly held another student’s head against the

wall as he rubbed a Clorox cleaning wipe into her eye. The suit alleged that the school was well

aware of the Student’s dangerous propensities. The 5th

Circuit held, however, that there was no

indication

Stewart v. Waco ISD, 60 IDELR 241 (5th

Cir. 2013)

This is a student-to-student sexual harassment case. The student-to-student sexual harassment

case against the District based on 504/ADA was dismissed because the complaint did not plead

sufficient facts to determine that the school was deliberately indifferent. Despite that ruling, the

court permitted plaintiff to proceed with a claim based on the alleged refusal to make reasonable

accommodations. The complaint alleged “gross misjudgment” in the management of the

plaintiff’s IEP, resulting in physical and emotional injury. Key Quote:

Thus, however appropriate the District’s initial response, it had an ongoing

responsibility to calibrate Stewart’s IEP to effectively address the behaviors it

intended to prevent by keeping her separated from males and under close

supervision. Under Section 504, it is not enough that the District might have

discharged its duty under a deliberate-indifference standard by taking remedial—

but ineffective—action. At this early stage, we conclude that even if the District

provided Stewart with reasonable accommodations when it initially modified her

IEP, the three subsequent instances of alleged sexual abuse could plausibly

support a finding that the modifications were actionably ineffective.

Comment: There was a strong dissenting opinion accusing the majority of “defying precedent.”

On June 3, 2013, the 5th Circuit panel granted a rehearing, vacated and withdrew its previous

opinion, and remanded the case to District court. The 5th Circuit noted that the District court

did not address whether the original claim was barred by any alleged failure to exhaust

administrative remedies. This issue is to be considered on remand.

RETALIATION

A.C. v. Shelby County BOE, 60 IDELR 271; 711 F.3d 687 (6th

Cir. 2013)

The court held that the Parents had established a prima facie case of retaliation based on the

school’s report of alleged child abuse. The Parents alleged that the report was in retaliation for

their requests for 504/ADA accommodations. The court repeatedly noted the “minimal” burden

that plaintiffs face at the prima facie stage.

Comment: This case began with a very frustrated principal leaving a voice mail on the Parents’

phone, thinking that she was talking to the school nurse. Oops. The VM referred to the Parent

as “out to lunch” and stated “I don’t know what to do with this lady anymore.” That was at the

very beginning of a rocky relationship. Over two years later, the principal filed child abuse

charges, asserting that “we care about this child and the Parents do not.” Her report also


charged that one of the teachers was “having an anxiety attack from the constant harassment”

from the Parents. Even taking into account the duty of the school to report suspected abuse, the

court held that a reasonable jury could conclude that the school made the report in retaliation

for the Parents’ requests for accommodations.

SECTION 504

Moody v. NYC DOE, 60 IDELR 211 (2nd

Cir. 2013)

The Circuit Court upheld the ruling of the District court that even though the requested

accommodation (heating up lunch in the microwave) was “reasonable” the school was not

required to provide it. Key Quote (from District court opinion):

The principal object of Section 504 is for qualified handicapped individuals to be

“provided with meaningful access to the benefit that the grantee offers.” It

naturally follows that when an individual already has “meaningful access” to a

benefit to which he or she is entitled, no additional accommodation, “reasonable”

or not, need be provided by the grantee. Accordingly, before even reaching “the

ultimate question,” any requested accommodation must first be deemed necessary

to ensure an individual with disabilities has “meaningful access” to the benefit in

question.

Comment: the court also disregarded any alleged procedural errors, such as the failure to

conduct formal 504 meetings, in light of the extensive communication between the parties and

the fact that there was no substantive harm to the Student. Thus all claims, including the one

based on the 1923 Geneva Declaration of the Rights of the Child, were dismissed.

D.L. v. Baltimore City Board of School Commissioners, 60 IDELR 121 (4th Cir. 2013)

The court held that Section 504 does not require public schools to serve students who reside in the

District but attend private schools. Nor does this rule infringe on parental rights to choose a private

school. Key Quotes:

Section 504 and its implementing regulations prohibit discrimination on the basis of

disability, not on the basis of school choice.

[The School District] has legitimate financial, curricular, and administrative

reasons to require that D.L. enroll exclusively in a public school in order to take

advantage of Section 504 services. The school board need not serve up its

publicly funded services like a buffet from which [the Parents] can pick and

choose.


G.C. v. Owensboro Public Schools, 60 IDELR 272; 711 F.3d 623 (6th

Cir. 2013)

The court held that plaintiff had not provided any evidence of bad faith or gross misjudgment in

failing to identify the Student under Section 504.

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