..
, ,
07-044
MAY242007
f'
CASE CLOSURE
J
SUMMARY REPORT
f~Jdi!"
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(This summary sheet must be used as a cover sheet for the hearing officer's decision at the end of the
special education hearing and submitted to the Department of Education before billing.)
School Division: Name of Parents:
Public Schools
Name of Child: Date of Decision or Dismissal:
              May 22, 2007
Representing LEA: Representing Parents:
David R. Clarke, Esq. Hunter C. Harrison, Jr., Esq.
Ms. Andrea D. Gemignani, Esq. 1485 Chain Bridge Road, #105
4020 University Dr., #300 McLean, VA22101-4513
Fairfax, VA22030-6802
Party Initiating Hearing: Prevailing Party:
Parents Public Schools
Hearing Officer's Determination ofIssues: (1) Burden of proof was on the parents, as they were the
initiating party; (2) Certain procedural issues related to an IEPwhich was not the subject of the
parents request for a due process hearing, and thus were not relevant: and, (3)
School could provide
with a free, appropriate public education.
Hearing Officer's Order's and Outcome of Hearing: Decision denying the relief sought in the Request
for a Due Process Hearing.
This certifies that I have completed this hearing in accordance with regulations and have advised the
parties of their appeal rights in writing. The written decision from this hearing is attached in which I have
also advised the LEA of its responsibility to submit an implementation plan to the parties, the hearing
officer, and the SEA within 45 calendar days.
Printed Name of Hearing Officer:
Lawrence E. Lindeman
Signature:
.L~
E. .LUt4eMtI"
MAY 2 42001
VIRGINIA
DEPARTMENT
SPECIAL EDUCATION
OF EDUCATION
,
,- -, ,
j",,.,
DUE PROCESS HEARING
In the Matter of:
v.
Public Schools
Hunter C. Harrison, Jr., Esq., for ~
and
.
David R. Clarke, Esq., and Andrea D. Gemignani. Esq., for
Schools
Public
Hearing Officer Decision
Preliminary
This matter was instituted
("parents"),
School (
and
by a February 28, 2007 letter from
(" '''), to
parents of,
) requesting a due process hearing.
The Independent
Evaluation
Program ("IEP") team had concluded that it was in the best interests of
were to attend
that the
School ("
if he
5"), and the parents were of the opinion
5 would not and could not provide.
with a free, appropriate
public
education ("FAPE"), as required by federal and state law. By letter dated March 6,
2007 the undersigned
A prehearing
was appointed as the hearing officer for this proceeding.
conference was held on March 21, 2007 in
, Virginia.
Hunter C. Harrison, Jr., Esq., appeared on behalf of the parents, and David R.
Clarke, Esq., and Ms. Andrea D. Gemignani, Esq., appeared on behalf of,
of
also attended.
The primary issue identified by both parties was whether the
5 provides
sufficient educational programs and extracurricular activities, as required by
j
u--
u--
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U-_d
applicable regulations, so that the overall program meets the requirements of FAPE.
A procedural item was also elucidated, but the parties agreed to address this issue
through a motion and reply. The parties agreed to stipulate the following three
facts: (1) The notice requirements
to the parents have been satisfied; (2)
.
has a
needs special education and related services.
disability; and, (3)
On March 22, 2007 an amended due process hearing request was filed. This
amendment provided more comprehensive facts under 34 CFR 300.507(c)(iii), (iv),
and (v), by the addition of the following language:
"(iii)
last attended
School, is
now on home based schooling (but receiving no
PS members of the IEP team, over
instruction) and the
objections, want
to attend
School. "
School does not and cannot provide
"(iv)
-
with the free, appropriate,
public education
required by federal and state law.
School
does not provide the variety of educational programs and
services available to children without disabilities, including
art, music, industrial arts, consumer and homemaking
education, and vocational education, which are provided
at
HS (and at other equivalent general
education schools).
School does not
provide nonacademic and extracurricular services and
activities in the manner necessary to afford
,a
child with a disability, and equal opportunity for
participation in those services and activities, which are
provided at
HS (and at other equivalent
general education schools). (Nonacademic and
extracurricular services and activities may include but are
not limited to counseling services, athletics,
transportation, health services, recreational activities,
special interest groups or clubs, referrals to agencies that
provide assistance to individuals with disabilities, and
employment of students, including both employment by
the local educational agency and assistance in making
outside employment available.)
School
provides neither the physical education services that must
be made available to every child with a disability receiving
a free appropriate public education, nor the opportunity
2
to participate in the regular physical education program
available to children without disabilities, which is available
at
HS (and at other equivalent general
education schools).
School does not
provide a school day comparable in length to the day
provided to school-aged students without disabilities at
HS (and at other equivalent general
education schools)."
"(v) The
proposed resolution is for PS to place
in a high school, whether public or private
where the education required by law can be provided.
The
are not educators and are not qualified or able
to identify such a school (other than'
HS).
PS personnel are fully qualified to identify such a school
and it is their responsibility to identify such a school."
By Order dated April 20, 2007 this amendment was authorized by the
hearing officer.
On April 19, 2007 a second amended due process hearing request was filed.
This amendment provided details regarding certain alleged procedural violations of
.PS. These alleged violations were mentioned at the prehearing conference, but
no details were provided at that time. The amendment consisted of the following
language:
"(iv) Mr. & Mrs.
were informed by a representative
of PS, upon the suspension of
, that the only
way
could continue to receive an education was
for the
to agree to and sign a 'Home-Bound IEP'.
Neither Mr. nor Mrs
was informed that -
could only be suspended from school for a maximum of
ten (10) days and then would have to be returned to
school, pending a possible due process request by ,PS
to change the location of his education. Based upon this
intentionally incomplete information, the 'Home-Bound
IEP' was signed. In addition, once the 'Home-Bound IEP'
was signed it was not properly implemented. For long
periods of time
received no instruction at all.
One instructor provided byPS
was not fluent in the
English language and had an accent so thick as to be
incomprehensible. "
3
"(v) The -
proposed resolution is for the 'Home-
Bound IEP' to be vacated and for ?S to place
in a high school, whether public or private where the
education required by law can be provided."
It was alleged that no prejudice would accrue to
amendment, as
PS by this second
PS was put on notice of these specific complaints at the
prehearing conference.
'SP filed an objection to this motion for a second amendment
2007.
:PS stated that, au contraire the allegations,
on April 23,
it would be prejudiced if the
second amendment is permitted. Furthermore, the matters alleged were never
included in the matters discussed in the resolution process.
By Order dated April 25, 2007 this amendment
was authorized
by the
hearing officer.
The hearing was held on May 8 and 9, 2007, at the - :PS facilities in
"
Virginia.
By letter dated May 13, 2007 counsel for the parents complained that,
;PS
did not comply with the previously issued subpoena decus tecum as it failed to
produce the time cards for the instructors
By letter dated May 16, 2007 counsel for
providing the homebound
services for
PS replied, stating that any objections
to discovery should have been made prior to the hearing. Additionally it asserts
that the documents being requested were not embraced within those sought by the
subpoena, as they are teacher personnel records, and not part of the student's file.
Finally,
PS submits that the records sought are not relevant.
By letter dated May
16, 2007 counsel for the parents replied, avowing that he could not have made an
objection prior to the hearing because he did not know of the existence of the
4
documents until after the hearing, and that the documents sought were adequately
covered by the subpoena.
The request of the parents is denied. The record already contains the
unrebutted testimony of Mrs.
instruction provided for
concerning the amount of homebound
. (Tr. 36-37), and further amplification of this issue is not
needed. In addition, my disposition of the homebound issue later in this decision
warrants denying the relief sought.
In this decision exhibits introduced by the parents will be identified as "Ex",
and exhibits introduced by
PS will be identified as "
PS Ex".
Statement of the Case
is a sixteen year old who was evaluated by
subsequently
found to be eligible for special education services (
While attending
implemented
PS in 1998 and
',PS Exs. 19-22).
School in 2004 an IEP was developed and
for him. This IEP found him to be eligible for special education
services in the areas of emotional disability ("ED") and other health impairment
("OHI"). It recommended that he primarily be placed in regular classes, with a few
hours of additional educational assistance weekly. It noted that he was more
successful academically and behaviorally in a structured
classroom setting (
PS
Ex. 7).
In 2005 another IEP was prepared fm' .
which would be followed at
This IEP indicated that
at
.
This would be the IEP
HS when he started classes there in the Fall of 2005.
would function best in a small group setting, and be
provided with certain academic accommodations
5
and modifications, such as
extended time to complete assignments, an assignment notebook for homework
review, an extra set of textbooks, etc., designed to aid his educational pursuits (Tr.
190;.
SP Ex. 8).
After several months at
HS, and at the behest of Mrs.
HS IEP
, the
team met on December 12, 2005 to review the situation and modify
IEP.
Basically, the IEP was revised to ensure more communication between the parents
and the teachers, as well as to revise some of the other accommodations. At this
time
was enrolled in only one self contained class (Tr. 192-194;
:PS Ex. 9).
Approximately one month later, on January 19, 2006, again at the request of
Mrs.
., the IEP team met and modified
academic and behavioral problems at
would enable
.IEP.
was continuing to have
HS, and it was hoped that the revised IEP
to better address these problems (Tr. 194-198;
On May 8, 2006 the IEP team met once again.
the same. By this time
PS Ex. 10)
's goals remained relatively
was attending self contained classes for all of his core
subjects. This is the IEP which would be followed when
yea r at HS (Tr. 202-203;
entered his sophomore
PS Ex. 11).
On October 10, 2006 the IEP team met again.
problems were persisting, so the number of hours
's academic and behavioral
spent in special education
classes receiving ED services was increased to ninety per month (Tr. 204;
PS
Ex. 12).
Throughout
'HS
School and his freshman year at
his career in
incurred multiple behavioral and disciplinary problems (
:PS Exs. 47-77).
On November 1, 2006 he reached what was perhaps the nadir of his brief
HS
career when he refused to report to the gym for being tardy to a class, physically
6
assaulted
an assistant
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principal, and fled from the school building (Tr. 165-168;
,PS Exs. 77-84). As a result,
be expelled from
-- --
'HS (
was suspended and it was recommended that he
:PS Ex. 88). After a hearing, this recommendation was
adopted by the School Board by a letter dated January 19, 2007 \
?S Ex. 93).
Subsequent to the suspension the IEP team met for a manifestation
determination review. It was concluded that the assault by
had a direct and substantial relationship to his disability (
was not caused by or
PS Ex. 13. This
decision was later affirmed by the School Board (Tr. 205-206;
PS Ex. 15).
On November 7, 2006 the IEP team again met and, because of
suspension,
"s
placed him on homebound instruction services until the disciplinary
proceeding was ultimately resolved (Tr. 208;
PS Ex. 14; Ex. 3).
Subsequent to the School Board's expulsion letter (
team met on February 5, 2007 and recommended that
PS Ex. 93), the IEP
be placed in
S.
However, the parents did not agree with this placement, and refused to sign off on
the IEP (Tr. 211-212;
"s Ex. 17; Ex. 4).
On February 26, 2007 the IEP team met again. The parents did not attend
this meeting, although they were notified of it. The purpose of this meeting was
simply to offer
as the homebound
an additional three weeks of compensatory educations services,
services did not begin on the eleventh day of his suspension.
This IEP was never signed by the parents (Tr. 247;
PS Ex. 18; Ex. 5).
Thereafter, on February 28, 2007 the parents wrote their due process
hearing request letter, and this proceeding commenced.
Testimony
7
certain behavioral problems with
in the past, such as skipped classes, profanity,
etc., there had never been an incident involving violence of any kind. She also
indicated that, prior to the November 1, 2006 assault incident,
her that-
should be placed in an ED center (Tr. 26, 27, 28, 44, 57).
began receiving homebound
Ms.
,PS did not inform
instruction services on December 11, 2006.
stated that the only reason she signed the IEP designating the
IEP team members, Ms.
"
would receive no educational
The homebound
to the
PS
PS Ex. 14) was due to the fact that one of the
homebound services (Ex. 3;
informed her that if she failed to sign the IEP
services (Tr. 29, 30, 41, 62).
services provided by.
PS consisted of twenty-seven
visits
household by a ,PS instructor during the period December 11, 2006
through March, 2007. During the latter part of March, 2007 a second teacher
.
began to come to instruct
This instructor came two to three times per week,
and stayed for two hours per visit (Tr. 36-38).
Ms.
,
at
testified that she refused to sign the IEP which would have placed
S (Tr. 42; Ex. 4;
PS Ex. 17) because she did not agree with the
placement, and did not want
In her opinion,
placed in an ED center (Tr. 48, 50, 66).
needs an academic environment which is conducive to
learning. He needs extra time to complete his assignments.
He needs assistance
with some of his courses, particularly math, and he needs to work on his
socialization and organizational skills (Tr. 49-50).
Mrs.
admitted that
had had problems at
HS, such as using
profanity, refusal to cooperate, leaving and cutting classes, not completing
8
assignments, etc. Tr. 51-53).
_u
------
did not have much success at
---------
HS, and she
concluded that part of his problems were due to the fact that the
HS teachers
were not following the goals set forth in the IEP (Tr. 55, 59-60, 61).
The parents did not visit the
376-377). Although a
.s facility until April, 2007 (Tr. 68, 81, 85,
S representative attended the February 5, 2007 IEP
meeting and informed her basically what courses and services the school offered,
she was of the opinion that
S simply did not offer the vast panorama
and activities that were available at
HS. She opined that
of courses
HS had more
teachers, including a selection of different teachers teaching the same course, so
that.
would have a broader selection of teachers and courses at
would have at
S. She specifically testified that
Mrs.
was interested in a pre-
HS, but not at
veterinary course that was offered at
did not believe that
HS than he
S (Tr. 69-74, 75-76).
should be in self contained classes,
although he was in them for all of his core courses, the only general classes he
attended being health and physical education. She thought that he had been very
successful in general classes in the past (Tr. 75-75, 83).
Harry Singleton is an attorney who was the Assistant Secretary for the Civil
Rights Division at the Department of Education during the period 1982
-
1987.
Among his duties was to insure compliance with the federal civil rights statutes.
was familiar with FAPE,and stated that the FAPEstandards were the same for
special education students as they were for non-special education students.
He
stated that the Rowley easel defined FAPE. He also stated that each special
education student was entitled to personalized instruction, and that this standard
I
Board of Education v. Rowley, 458 U.S. 176 (1982)
9
He
also applied to expelled special education students, who were the most at risk (Tr.
125-129, 138).
Mr. Singleton testified that the term "general curriculum" means that special
education students are to receive the same curriculum
students,
and that the curriculum
other activities
socialization
as non-special education
available includes extra curricular activities,
and
which would help special education students improve their
skills (Tr. 129-130)
In Mr. Singleton's opinion, with respect to expelled students, the student's
IEP determines
whether the same services have to be provided.
are provided do not have to be identical to those opportunities
The services which
previously provided,
but have to be similar. As long as the new educational setting provides FAPE,it
would be sufficient (Tr. 134-135,
136).
is the principal of
approximately
as
ninety students.
5 is a public day facility serving
It is in session from 7:25 am to 2:00 pm, the same
HS, and is physically adjacent to
gymnasium,
S.
and four counseling offices.
HS. It has outdoor athletic facilities, a
All of its classes are self contained.
It has
more resources that the ED centers which are attached to other high schools in the
area (Tr. 88, 104-105,
366-368,
370-371,
384).
S offers coursework and Standard of Learning ("SOL") that the students
need to progress through the general educational curriculum
Commonwealth.
It is fully accredited by Virginia.
When a student graduates from
S his diploma is conferred by his base high school (Ex. 7;
372-373, 382).
10
as outlined by the
PS Ex. 128; Tr. 90,
S offers base courses in math, English, history, government,
physical education,
courses.
and electives in art, music, design and technology,
It offers intramural
science, and
and other
athletics and activities, and has interscholastic
teams. It also has a yearbook (Ex. 8;,
athletic
PS Ex. 128; Tr. 91-94, 99). It does not,
however, offer full extent of athletics, activities,
and courses that are available at
HS (Ex. 9-11; Tr. 95-97, 108-112).
Even though it has a smaller student body,
are on the staff at HS. The goal of
student (Tr. 100-101,
5 has more counselors than
369, 378).
Mr.
S is to maximize the opportunities
was of the opinion that the offerings of
goals and objectives
for the
S match well with the
-'s IEP (Tr. 102).
set forth in
is the assistant principal in charge of special education at
'HS. She is a licensed special education instructor
years in this capacity at
Ms.
in ED. She has had three
HS (Tr. 113, 147, 148; FCPS Ex.130C).
has known.
since his freshman year at
HS. She met him
because of his special education status, and because of his disciplinary
problems.
She has also had contacts with his parents, and is the principal contact between the
parents and
HS (Tr. 121, 150, 151-152,
's academic history at
172, 173).
"HS has been less than stellar. His past record
indicates below average grades, and above average absences ( PS Exs. 40-42,
45; Tr. 154).
and objectives
has demonstrated
(
some limited progress in meeting his IEP goals
PS Ex. 43).
11
. - --
- --
's behavioral history has been even more checkered. He has a lengthy
(
School
a variety of infractions at both
discipline record, reflecting
.PS Exs. 48-57) and at
HS (Tr. 156-158,
161-163;
PS Exs. 47, 58-75).
This witness testified that, contrary to the thoughts of Ms.
. not permitted
to pick and choose amongst teachers at
.
, students
are
HS. This is especially
true of students in self contained classes (Tr. 155-156).
Ms.
-
, who is familiar with the sports, clubs and activities, and physical
HS, is of the opinion that
education courses offered by
academic setting for
S offers a more therapeutic
S is the appropriate
setting, and has a small
student/counselor ratio (Tr. 114, 171).
is a teacher and case manager at
HS.
,
She provides
services for special education students with ED. She is a licensed special education
HS for two years (Tr. 186-188;
teacher, and has been at
Ms.
first met
when he was a freshman at
the students over whom she had supervision.
When
entered
She was responsible for his IEP and
'HS the IEP he was using was the one that had been
developed at
School in the Spring of 2005 (
'PS Ex. 8). At this
was in only one self contained class (Tr. 191).
The IEP was amended on December 12, 2005 \PS
Mrs.
'HS. He was one of
his parents (Tr. 189).
contacting
time
PS Ex. 130E).
..
Ex. 9) at the request of
was failing his classes at the time (Tr. 192).
The IEP was further modified on November 19, 2006
the request of Mrs.
.
.
l
:PS Ex. 10), again at
was refusing to meet with his speech, language, and
12
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counseling clinicians, his social worker, was having additional behavioral problems,
and was still failing his courses (Tr. 194-196).
On May 8, 2006 the IEP team met for the annual review.
's IEP goals
remained relatively the same, but by the end of the year he was attending self
contained classes in all his core courses (Tr. 202-203;
Once
FCPS Ex. 11).
HS, his IEP was modified to provide
began his sophomore year at
for more support hours, increasing from sixty to ninety hours per month (Tr. 204;
PS EX. 12).
Ms.
attended the November 7, 2006 meeting which resulted in the
homebound instruction
IEP (
'PS Ex. 14) pending the appeal of the expulsion
proceeding. She claims that Ms
did not tell Mrs.
that
would
did not sign off on the IEP (Tr. 209-
not receive any special education if Mrs.
210).
Prior to the February 5, 2007 IEP meeting, Ms.
and provided a copy to Mrs.
. In preparing this draft, Ms.
's past records, as well as his Psychological and Sociocultural
216;
considered
Evaluations (Tr.
,PS Exs. 32, 33). This was consistent with her previous modus operendi in
providing Mrs
She indicated that
Mrs.
prepared a draft IEP
.
with draft copies of the IEP prior to the meeting (Tr. 223, 250).
S was never mentioned
was adamant that
in any of the previous IEPs because
should not be in an ED facility, and was also
unwilling to consider a self contained setting for
This witness is of the opinion that
(Tr. 229, 232, 251-252).
S is the appropriate
setting for
, as it
is a smaller setting, and offers more counselors and social workers who are more
readily available.
S would enable.
to continue to progress on achieving his IEP
13
goals.
. --
-
-
-- -. --.
needs a higher level of services than
She believes that
-. -
HS can provide
(Tr. 214, 219, 221-222).
Ms.
testified that the general educational curriculum
both special education and non-special education students.
method used to present the curriculum to the students.
educational
curriculum
changing teachers at
can be pursued at
-
driven, not personality
driven (Tr. 199, 242-244,
The difference is in the
She stated that general
S (Tr. 255).
'HS is generally not an option.
is the same for
She also indicated that
Any changes are need
258).
HS. She has
is a special education biology teacher at
taught since 1978, and has been at
She is certified
entered her self contained class in the second
to teach special education.
semester of 2006.
HS for the past seven years.
She has found him to be unpredictable,
and behavioral standpoint.
Some of the accommodations
both from an academic
which are provided to
include the fact that he is in a small group, receiving one-on-one
instruction
at
times, his tests are read aloud to him, he is given extra time to complete
assignments,
encountered
when she has
etc. She has spoken to and emailed Mrs.
difficulties
with
(Tr. 272-275,
277-280,
This witness is likewise of the opinion that
a smaller environment, has a better teacher/student
the core classes which.
284;
.PS Exs. 70, 85).
S is appropriate
than
S is
requires (Tr. 283, 284).
Ms.
ratio
for
HS, and offers
was of the opinion that the term "general educational
curriculum" was synonymous with the term "core courses" (Tr. 285).
is an instructional
He has been at
assistant and football coach at
HS for the past seven years (Tr. 286-287).
14
HS.
Mr.
met
the guidance department.
. He tried to assist
from time to time about
his problems. He also spoke to Mr.
was in
during his lunch
frequently visited Mr.
became a mentor to
period, and Mr.
was on the
was a freshman and Mr.
in 2006, when
in resolving
. He knewthat
HS football team for approximately two weeks, but does not know
why he quit (Tr. 287-290,
291-293,
302-303).
This witness was a substitute teacher at
facility. He thinks it would be an appropriate
S, and is familiar with that
setting for
because
would have
better access to the services he needs (Tr. 295-298).
is a licensed special education teacher who teaches algebra in
a self contained class at
HS. She has taught at
and for the three years prior to that taught at
She met
HS for the past three years,
S (Tr. 304-305, 306, 322).
when the latter enrolled in her class as a sophomore. She
characterized him as a nice young man who needed one-on-one attention, and
required patience when dealing with him. However, on several occasions she did
have to call security when she was having behavioral problems with him. She
concerning
spoke and emailed Mrs.
309-310,
318;
progress and problems (Tr. 306-307,
PS Ex. 119).
attended the November 7, 2006 IEP meeting, but did no hear Ms.
Tell Ms.
that she had to sign the IEP or the special education
services would be ended (Tr. 312-313).
This witness thinks that
S would be appropriate for
S has a more
structured environment, more supervision, and psychologists on site. She stated
15
----
that the math courses that
would be taking at
HS are available at
5 (Tr.
314, 316-317).
Ms.
testified that the general educational curriculum standards are the
same for special education students and non-special education students, although
the delivery may be different.
However, the curriculum has to cover those subjects
which are covered by SOL, thus the content has to be the same (Tr. 323-324).
is a licensed special education teacher in learning disabilities, has
a Master's degree in special education, has been at
HS for the past eight years,
and is the special education department chairperson (Tr. 329-330).
She has been a member of
indicated that
"s IEP team since he enrolled at
's previous IEPs did not recommend
IEP team wanted to keep
placement in
HS. She
S because the
in the least restrictive environment ("LRE"), and this
would be self contained classes at
HS (Tr. 332, 334-337).
However, she thought that, under the circumstances,
familiar with, was the best setting for
S, a school she was
once he had been expelled from
it was the best of the alternatives considered. Some of the benefits which
offers are a full day program, and the support services which
HS, as
5
needs (Tr. 339,
361).
This witness testified that not all of the courses, activities, and clubs (Exs. 9,
10, 11) are offered at
of the students
Ms.
HS all of the time. The offering depends upon the interest
(Tr. 342, 345).
opined that the general educational curriculum set forth the
standards which a student needs to follow in order to graduate from high school.
The content of the individual courses is the same regardless of whether a special
16
education or non-special education student is concerned, but the teaching
methodology may differ (Tr. 351, 353).
Contentions of the Parties
PS advances several arguments in its p~ehearing and post hearing
memorandum,
and in counsel's opening and closing statements.
PS
Initially,
states that the burden of proof is upon the parents, citing Schaffer v. Weast, 126
S.Ct. 528 (2005) (Tr. 25, 407-409).
PS avers that
S can provide FAPE for
"
arguing that the law does not
require the exact same services or setting for an expelled student, if the cause of
the expulsion was not a manifestation of the student's disability. Both federal and
Virginia laws and regulations specifically describe the services which an expelled
student must receive in order to receive FAPE, citing 20 USC 1415 (k)(1)(D)(i)
8 VAC 20-80-68
(C)(5)(f)(2)
that the expelled student
(Tr. 418-419;
422-428).
and
These citations establish
does not have to have access to all the courses and
services that were available at his former school, but rather that the expelled
student be able to continue to participate in the general curriculum.
LRE is not a requirement setting.
in a disciplinary
Federal regulations
Furthermore,
state that
expelled students are not entitled to the same services they received prior to
expulsion,
citing 71 Fed. Reg. 46716 (Aug. 14, 2006).
The parents argument in this regard has previously been before the courts
and rejected in Reiser v. Fairfax County School Board, 44 IDELR 187 (ED, Va,
2005) (Tr. 417). PS postulates that the mere absence of extracurricular
activities, education, and fine arts at
vocational
17
S does not mean that
cannot
--
receive FAPE at that school.
-
---
---
- d -
- --
- --
---
PS submits that the parents' interpretation of IDEA
and Virginia law that expelled students are entitled to the exact same courses and
activities as their non-expelled counterparts would render IDEAmeaningless (Tr.
PS states that Mrs.
416-417).
was not "tricked" into signing the
homebound IEP [Nov. 7, 2006 IEP] (Tr. 412-412), and that
school. To permit to retu rn to
other students of HS (Tr. 410, 415).
appropriate
.s is
HS would be of no benefit to
Finally,
PS states that
's "stay put"
, the
faculty or
S is the
regardless of his expelled status.
school for
In their prehearing and post hearing memorandum, and in counsel's opening
and closing statements,
the parents argue that Schaffer v. Weast, supra, is a
Maryland case, and Maryland does not have a regulation equivalent to 8 VAC 20-
80-76 (J)(17)(d),
thus the burden of proof is upon
PS (Tr. 5, 398-399).
The parents further aver that both the federal and Virginia regulations define
"general
curriculum",
citing 34 CFR 300.320 and 8 VAC 20-80-10
(Tr. 391). Also,
Board of Education v. Rowley, 102 S.Ct.3034 (1982) requires that every education
opportunity provided to a non-handicapped child must be provided to a
handicapped
child (Tr. 9-10, 392-393).
Although the law does not require the
same setting for an expelled special education student, it does require that general
curriculum
courses be provided, regardless of the setting.
FAPE includes more than mere academics.
It also includes extracurricular
activities, clubs, and interest groups, all of which are included under the "general
curriculum"
definition
(Tr. 7-8, 393).
can be expelled, but.
to educate him, citing 8 VAC 20-80-60-A1,
395).
At
,HS
PS has to continue
and to provide FAPEfor him (Tr. 6,
had seventy-nine offerings in clubs and activities available to
18
him; at
S only one of these seventy-nine
Comparison of the general curriculum
is available (Tr. 396-397).
courses offered at
HS and
A
S shows the
former offers many more than the latter (Tr. 397-398). The only difference
between
HS and
S is not the type of instruction offered, but the array of
courses, activities, and clubs available at
HS but not at
S (Tr. 405).
.s
does not have a general curriculum (Tr. 406).
Mrs.
testified
on two occasions that
PS personnel told her that for
to continue to receive an education, she had to sign the homebound
would have had to remain at
not signed, eleven days after the suspension
(Tr. 400-402).
"s homebound
months of his homebound
twenty-seven
occasions.
instruction
instruction,
IEP. Had she
was inadequate.
During the first four
a teacher visited the
Such limited instruction
definitely
HS
home on only
impedes
's right to
receive FAPE (Tr. 14, 402-404).
Discussion and Conclusions
8 VAC 20-80-76
determination
J 17 provides that a hearing officer decision shall include a
of whether (a) the notice requirements
satisfied, (b) the child has a disability,
to the parents has been
(c) the child needs special education and
related services, and, (d) the local educational agency is providing a free
appropriate
public education.
In this proceeding the parties have stipulated that (a), (b), and (c) have
been met, so no further discussion of these items is warranted.
appears to be the central issue involved herein.
19
However, (d)
it rests with the other. The undersigned is of the opinion that the Supreme Court
put this issue to bed in Schaffer v. Weast, 126 S. Ct. 528 (2005).
In that case,
which dealt with the same statute as is involved herein, the Court rather succinctly
stated: "The burden of proof in an administrative hearing challenging an IEP is
properly placed upon the party seeking relief." In this case the burden is on the
parents.
The second issue which needs to be addressed is the procedural issues raised
was inveigled into signing the November 7,
by the parents, i.e., that Mrs.
2006 IEP involving homebound services by misstatements
that the homebound services provided by
by
PS personnel, and
PS pursuant to this IEP have been
woefully inadequate.
The request for a due process hearing only mentioned the February 5, 2007
IEP which recommended
that
. attend
S. At the prehearing conference the
procedural issues were first mentioned. Subsequently, in their second amended
request for due process hearing, the parents reiterated and provided more detail
regarding these alleged violations.
the amendments.
PS objected, but the undersigned permitted
Upon reflection, it now appears that this decision was incorrect.
The gravaman of the request for a due process hearing is the February 5,
2007 IEP which recommended
that.
attend
S (Tr. 4, 53). However, the
procedural allegations are not concerned with the February 5, 2007 IEP, but rather
with the November 7, 2006 IEP. It appears to the undersigned that if the parents
are desirous of contesting the validity of the November 7, 2006 IEP their remedy is
to request a due process hearing regarding that IEP, rather than using alleged
20
defects in the November 7, 2006 IEP to collaterally attack the validity of the
February 5, 2007 IEP. Therefore, I am not going to further consider these
allegations in this decision.
The final issue is whether the
S setting provides.
with FAPE. The
relative positions of the parties have been set forth at another place in this
decision, and will not be reiterated at this point.
IDEA, 20 USC §1400(d) et seq, states that the objectives of the Act are "to
ensure that all children with disabilities have available to them a free appropriate
public education that emphasizes special education and related services designed to
meet their unique needs and prepare them for employment and independent
living." 20 USC §1400(d)(1)(A).
20 USC §1401(9) defines "Free Appropriate Public Education" as follows:
"The term 'free appropriate
public education'
means special education and related
services that (A) have been provided at public expense, under public supervision
and direction, and without charge; (B) meet the standards of the State educational
agency; (C) include an appropriate preschool, elementary school, or secondary
school education in the State involved; and (D) are provided in conformity with the
individualized education program required under section 614(d)."
An almost identical definition can be found in the federal regulations at 34
CFR §300.17, and in the Virginia regulations at 8 VAC 20-80-10.
As can be seen, IDEAdoes not provide any substantive standard regarding
the level of education to be accorded disabled children. Board of Education v.
Rowley, 458 US 176, 189 (1982).
In Rowley the Supreme Court held that an
inquiry in determining whether a FAPEis provided is twofold: (1) Have the
21
procedures set forth in the IDEAbeen adequately complied with, and (2) Is the IEP
reasonably calculated to enable the child to receive educational benefits. Rowley,
pg 206-207.
Thus, the local educational authority ("LEA")fulfills the FAPErequirements by
providing personalized educational instruction with sufficient support services to
permit the disabled child to benefit educationally
from that instruction.
Rowley, pg
203.
The primary vehicle for meeting the goals set forth in IDEA is the IEP, 20
USC §1414(d)(1)(A),
which is a written statement
that is developed for the unique
needs of each disabled child. Significantly, an IEP is not required to maximize the
educational benefit to the disabled child, nor to provide each and every service and
accommodation which could conceivably be of some educational benefit. Rowley.
pg 199; Gill v. Columbia 93 School District, 217 F3d 1027, 1034 (CA 8, 2000).
Although an educational benefit must be more than de minimis to be appropriate,
Doe v. Board of Education of Tullahoma City Schools, 9 F3d 455, 459 (CA 6, 1993),
an appropriate educational program is one that is "reasonably calculated to enable
the child to receive educational benefits. Rowley, pg 189.
In this proceeding there is an added element in that
was expelled from
HS, and it was subsequently determined that his expulsion was not a
manifestation
of his disability ( 'PS Exs. 88, 13, 15; Tr. 205-206).
agree that, given this scenario, PS remains obligated to provide
6, 395; 418-419, 422-428);
the question is whether the
obligation.
22
The parties
with FAPE(Tr.
S setting fulfills this
- u
u
--
u
--
- --
--
S provides small, self contained classes where students are instructed in
the core curriculum subjects (Ex. 7;
of
PS Ex. 128; Tr. 90, 372-373,
's IEPs stated that a small group setting in a structured
beneficial to him (
382).
environment
Several
would be
PS Exs. 7, 8, 11, 17), and several of his teachers and case
workers testified that a small group setting and self contained classes would be of
benefit to him (Tr. 102, 171, 214, 219, 283, 284, 314, 316-317,
Therefore it appears to the hearing officer that
339, 361).
S is capable of providing an
educational environment which would be highly beneficial to
The parents' argument that
courses, activities,
S cannot and does not provide all of the
and clubs that are available at
provide FAPE, is an example of reductio ad absurdum.
HS, and therefore
cannot
Taken to its logical
conclusion, it would require that, in order to provide FAPE at any school in its
system,
activity,
PS would have to require that all the schools provide every course,
and club that every other school in the system offers, regardless of
whether there was a need or demand for such an educational and social
extravaganza
at every school in the system.
In Reiser v. Fairfax County Public Schools, 44 IDELR 87 (2005) the court
considered this argument
and concluded that:
"The School Board is not required to duplicate at the
alternative setting every single special club, athletics,
arts, Japanese emersion and here I note that Fairfax
County has gone beyond what may be required in
providing Jonathan with an opportunity to participate in
advanced placement classes online."
I find this conclusion to be persuasive in this proceeding,
S does provide FAPEfor
23
and conclude that
.
--
- ---
--
Therefore I find in favor of
proceeding,
- ---
_n_--
--
n n -
n -
- n-
--
- n--
,PS on all of the issues involved in this
and deny the request for the relief sought by the parents.
Appeal Information
This decision is final and binding upon the parties.
Any party may appeal this
decision within one year of the date of the decision in either a state circuit court of
a federal district court.
See 8 VAC 20-80-76(0).
.l!tU1J11M1C8
C.
.I!~
Lawrence E. Lindeman
Hearing Officer
Dated: May 22, 2007
Certificate of Service
I certify that I have served a copy of the foregoing Hearing Officer Decision on David R.
Clarke, Esq., and Ms. Andrea D. Gemignani, Esq., Blankingship & Keith, 4020 University Drive,
#300, Fairfax, VA 22030-6802 and Hunter C. Harrison, Jr., Esq., 1485 Chain Bridge Road, #105,
McLean, VA 22101-4513 by first class mail on May 22,2007.
.I!~
C..I!~
LawrenceE. Lindeman
24
:1AY '31 i..lJtH
Lawrence
E.lindeman,
P.C.
Attorney and Counselor at Law
218 N. Lee Street, #311
Alexandria, VA 22314-2631
-
---
- __un-
-
- _n---
-----------------------------------
Phone: 703.836.7561
Fax: 703.836.0116
Email: duke@his.com
October 25, 2002
Hunter S. Harrison, Jr., Esq.
1486 Chain Bridge Road
Suite 105
McLean, VA 22101-4513
Re:
David R. Clarke, Esq.
Ms. Andrea D. Gemignani, Esq.
Blankingship & Keith
4020 University Dr., #312
Fairfax, VA 22030-6802
decision
Dear Messrs. Harrison and Clarke, and Ms. Gemignani,
The "Appeal Information" in my decision in this proceeding is incorrect. It should
read as follows: "This decision is final and binding unless either party appeals in a federal
district court within ninety (90) calendar days of this decision, or in a state circuit court
within one (1) year of this decision."
I apologize for any inconvenience.
Very truly yours,
.1!~
C. .1!u.JUIUUf,
Lawrence E. Lindeman
cc: R. Geiersbach, Esq.