Public School Law & Educational Law & Policies, Special Education, William Allan Kritsonis, PhD

1. PRAIRIE VIEW A&M UNIVERSITY
PUBLICE SCHOOL LAW
ADMN 5023
William Alan Kritsonis, PhD
Professor
FAPE
Submitted
By:
Lola Higgins, Reginald Green, and Danyelle Reece
July 13, 2009

2. Higgins, Green, Reece
FAPE
INTRODUCTION
The Individuals with Disabilities Education Act (IDEA) is the law that provides
your child with the right to a free, appropriate public education (FAPE). The purpose of
the IDEA is "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 further education, employment,
and independent living..." 20 U.S.C. 1400(d) (Wrightslaw: Special Education Law, 2nd
Edition, page 20). The Board of Education v. Rowley case is significant because it
established the principle that school districts are not required to maximize the potential of
a child but provide some educational benefit to the child and how courts would examine
future disputes under IDEA (Walsh, Kemerer, and Maniotis, 2005).
Case One
United States Supreme Court
BOARD OF EDUCATION OF THE HENDRICK HUDSON CENTRAL SCHOOL
DISTRICT, WESTCHESTER COUNTY,
v.
AMY ROWLEY, by her parents, ROWLEY et al.
No. 80 – 1002
LITIGANTS
Plaintiffs – Petitioners: Board of Education of the Hendrick Hudson Central School
District, Westchester County, et al.
Defendant – Respondent: Amy Rowley, by her parents, Rowley, et., al.
BACKGROUND
The Education for All Handicapped Children Act of 1975 (IDEA), provides federal
money to assist state and local agencies in educating handicapped children, and federally
fund States in compliance with extensive goals and procedures. The Act represents an
ambitious federal effort to promote the education of handicapped children, and was
passed in response to Congress' perception that a majority of handicapped in the United
States "were either totally excluded from schools or [were] sitting idly in regular
classrooms awaiting the time when they were old enough to 'drop out.'" The Acts
evolution and major provisions shed light on the question of statutory interpretation
which is at the heart of this case.
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3. Higgins, Green, Reece
Congress first addressed the problem of education the handicapped in 1966 when it
amended the Elementary and Secondary Education Act of 1965 to establish a grant
program "for the purpose of assisting the States in the initiation, expansion, and
improvement of programs and projects for the education of handicapped children. That
program was repealed in 1970 by the Education for the Handicapped Act, Pub. L. No.
91-230, 84 Star, 175, Part B of which established a grant program similar in purpose to
the repealed legislation. Neither the 1966 nor 1970 legislation contained specific
guidelines for state use of the grant money; both were aimed primarily at stimulating the
States to develop educational resources and to train personnel for educating the
handicapped.
Dissatisfied with the progress being made under these earlier enactments, and spurred by
two district court decisions holding that handicapped children should be given access to a
public education, Congress in 1974 greatly increased federal funding for education of the
handicapped and for the first time required recipient States to adopt "a goal of providing
full educational opportunities to all handicapped children." Pub. L. 93-380, 88 Stat. 579,
583 (1974) (the 1974 statue). The 1974 statute was recognized as an interim measure
only, adopted "in order to give the Congress an additional year in which to study what if
any additional Federal assistance [was] required to enable the States to meet the needs of
handicapped children." H.R. Rep. No. 94-332, supra, p.4. The ensuing year of study
produced the Education for All Handicapped Children Act of 1975.
In order to qualify for federal financial assistance under the Act, a State must demonstrate
that it "has in effect a policy that assures all handicapped children the right to a free
appropriate public education." 20 U.S.C. 1412(1). The "free appropriate public
education" required by the Act is tailored to the unique needs of the handicapped child by
means of an 'individualized educational program" (IEP). In addition to the state plan and
the IEP already described, the Act imposes extensive procedural requirements upon State
receiving federal funds under its provisions. Parents or guardians of handicapped children
must be notified of any proposed change in "the identification, evaluation, or educational
placement of the child or the provision of a free appropriate public education to the
child," and must be permitted to being a complaint about "any matter relating to" such
evaluation and education. 1415(b)(1)(D) and (E).6 Complaints brought by parents or
guardians must be resolved at "an impartial due process hearing," and appeal to the State
educational agency must be provided if the initial hearing is held at the local or regional
level. Thus, although the Act leaves to the States the primary responsibility for
developing and executing educational programs for handicapped children, it imposes
significant requirements to be followed in the discharge of that responsibility.
Compliance is assured by provisions permitting the withholding of federal funds upon
determination that a participating state or local agency has failed to satisfy the
requirements of the Act, 1414(b)(A), 1416, and by the provision for judicial review. At
present, all States except New Mexico receive federal funds under the portions of the Act
at issue today.
FACTS
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4. Higgins, Green, Reece
Amy Rowley is a deaf student in New York. Amy has minimal residual hearing and is an
excellent lipreader. During the year before she started attending Furnace Woods School,
Amy’s parents and school administrators met and decided to place her in a regular
kindergarten classroom to determine what supplemental services would be necessary to
her education. Several members of the administration took a course in sign-language
interpretation, and a teletype machine was installed in the principal’s office to facilitate
communication with her parents who are also deaf. After Amy was placed temporarily in
the regular classroom, it was determined that she should stay in that class, but be
provided with an FM hearing aid to amplify words. Amy successfully finished her
kindergarten year.
Before Amy entered first grade, an Individualized Education Plan (IEP) was prepared,
which provided that Amy should continue to receive her education in the regular
classroom and use the FM hearing aid, she should also receive instruction from a tutor for
the deaf for one hour each day and from a speech therapist for three hours each week.
The Rowleys agreed with parts of this plan, but insisted that Amy also be provided a
qualified sign-language interpreter in all of her academic classes instead of the assistance
proposed in other parts of the IEP.
An interpreter had been placed in Amy’s kindergarten class for a 2-week experimental
period, but the interpreter had reported that Amy did not need his services at that time.
The same conclusion was reached by the school for Amy’s first grade year. An
independent examiner also agreed with the administrators’ determination that an
interpreter was not necessary because Amy was achieving educationally, academically,
and socially without such assistance. Amy performs better than the average child in her
class and is advancing easily from grade to grade. However, she understands less of what
goes on in the class than she could if she were not deaf and so she is not learning as
much, or performing as well academically, as she would without her handicap.
DECISION
The Court stated that a “free appropriate public education” is one which consists of
educational instruction specially designed to meet the unique needs of the handicapped
child, supported by such services as are necessary to permit the child “to benefit” from
the instruction. If personalized instruction is being provided with sufficient supportive
services to allow the child to benefit from the instruction, and the other items on the
definitional checklist are satisfied, the child is receiving a “free public education.”
Absent in the statute is any substantive standard prescribing the level of education to be
accorded handicapped children.
“By passing the Act, Congress sought primarily to make public education available to
handicapped children. But in seeking to provide such access to public education,
Congress did not impose upon the States any greater substantive educational standard
4

5. than would be necessary to make such access meaningful.” Board of Education v.
Rowley, 458 U.S. 176 at 192. The Court says the intent of the act was more to open the
Higgins, Green, Reece
door of pubic education than to guarantee the level of education once inside. The Court
further states that whatever Congress meant by an “appropriate” education, it did not
mean a potential-maximizing education. It did not mean the State had to provide
specialized services to maximize each child’s potential “commensurate with the
opportunity provided other children.” The basic floor of opportunity provided by the Act
is access to specialized instruction and related services which are individually designed to
provide educational benefit to the handicapped child.
DICTA
Implicit in the congressional purpose of providing access to a "free appropriate public
education" is the requirement that the education to which access is provided be sufficient
to confer some educational benefit upon the handicapped child. It would do little good for
Congress to spend millions of dollars in providing access to public education only to have
the handicapped child receive no benefit from that education. The statutory definition of
"free appropriate public education," in addition to requiring that States provide each child
with "specially designed instruction," expressly requires the provision of "such . . .
supportive services . . . as may be required to assist a handicapped child to benefit from
special education." 1401(17) (emphasis added). We therefore conclude that the "basic
floor of opportunity" provided by the Act consists of access to specialized instruction and
related services which are individually designed to provide educational benefit to the
handicapped child.
IMPLICATIONS
The determination of when handicapped children are receiving sufficient educational
benefits to satisfy the requirements of the Act presents a more difficult problem. The Act
requires participating States to educate a wide spectrum of handicapped children, from
the marginally hearing-impaired to the profoundly retarded palsied. It is clear that the
benefits obtainable by children at one end of the spectrum will differ dramatically form
those obtainable by children at the other end, with infinite variations in between. One
child may have little difficulty competing successfully in an academic setting with
nonhandicapped children while another child may encounter great difficulty in acquiring
even the most basic of self-maintenance skills. We do not attempt today to establish any
one test for determining the adequacy of educational benefits conferred upon all children
covered by the Act. Because in this case we are presented with a handicapped child who
is receiving substantial specialized instruction and related services, and who is
performing above average in the regular classrooms of a public school system, we
confine our analysis to the situation.
5

6. PRAIRIE VIEW A&M UNIVERSITY
PUBLICE SCHOOL LAW
ADMN 5023
William Alan Kritsonis, PhD
Professor
LEAST RESTRICTIVE ENVIRONMENT
Submitted
By:
Lola Higgins, Reginald Green, and Danyelle Reece
July 13, 2009
6

7. Higgins, Green, Reece
LEAST RESTRICTIVE ENVIRONMENT
INTRODUCTION
An important provision of Public Law 94-142 (IDEA) is that all handicapped
students be educated in the least restrictive environment (LRE) (Heron & Skinner, 1981).
Federal law expresses a strong preference for placing the child with disabilities in the
setting in which that child would be served if there were no disability (Walsh, Kemerer,
and Maniotis, 2005). However, these requirements continue to generate complex and
interesting questions from the field. In particular, this report focuses on questions that
have been raised about the relationship of IDEA's LRE requirements to "inclusion." If
the goal of IDEA is to mainstream students with disabilities, despite efforts made from
administrators, specialists, and staff, how can this be achievable if the child has not made
academic progress in the regular classroom?
Case One
United States Court of Appeals,
Fourth Circuit.
950 F.2d. 156
18 IDELR 350
Shannon CARTER, a minor, by and through her father, and next friend, Emory D. Carter,
et al., Plaintiffs-Appellee,
v.
FLORENCE COUNTY SCHOOL DISTRICT FOUR: Ernest K. NICHOLSON,
Superintendent, in his official capacity; SCHOOL BOARD MEMBERS; Bennie
ANDERSON, Chairman; Monroe FRIDAY, Jack ODOM; Elrita BACOTE; T.R.
GREEN; James W. HICKS, in their official capacity
No. 91 – 1047
LITIGANTS
Plaintiffs – Appellees:Mark Hartmann, et al.
Defendant – Appellant: Florence County School District Four, et., al.
BACKGROUND
Mark Hartmann is an eleven year old child with autism. Autism is a developmental
disorder characterized by significant deficiencies in communication skills, social
interaction, and motor control. Mark is not able to speak and has severed problems with
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8. fine motor coordination. Mark’s ability to write is limited. He types on a keyboard but
can only consistently type a few words such as “is” and “at”. Mark has had episodes of
Higgins, Green, Reece
loud screeching and other disruptive conduct; including, hitting, pinching, kicking, biting,
and removing his clothing. The school district proposed removing Mark from the regular
classroom and place him in a class structured for children with autism. However, he
would be integrated for art, music, physical education, library, and recess. Mark would
be allowed to rejoin the regular education setting as he demonstrated an improved ability
to handle it. The Hartmanns refused to approve the IEP, claiming that it failed to comply
with the mainstreaming provision of the IDEA, which states that "to the maximum extent
appropriate," disabled children should be educated with children who are not
handicapped. 20 U.S.C. § 1412(5)(B). The county initiated due process proceedings, 20
U.S.C. § 1415(b), and on December 14, 1994, the local hearing officer upheld the May
1994 IEP. She found that Mark’s behavior was disruptive and that despite the
"enthusiastic" efforts of the county, he had obtained no academic benefit from the regular
education classroom. On May 3, 1995, the state review officer affirmed the decision,
adopting both the hearing officer’s findings and her legal analysis. The Hartmanns then
challenged the hearing officer’s decision in federal court.
While the administrative process continued, Mark entered third grade in the regular
education classroom at Ashburn. In December of that year, the Hartmanns withdrew
Mark from Ashburn. Mark and his mother moved to Montgomery County, Virginia, to
permit the Hartmanns to enroll Mark in public school there. Mark was placed in the
regular third-grade classroom for the remainder of that year as well as the next.
The district court reversed the hearing officer’s decision. The court rejected the
administrative findings and concluded that Mark could receive significant educational
benefit in a regular classroom and that "the Board simply did not take enough appropriate
steps to try to include Mark in a regular class." The court made little of the testimony of
Mark’s Loudoun County instructors, and instead relied heavily on its reading of Mark’s
experience in Illinois and Montgomery County. While the hearing officer had addressed
Mark’s conduct in detail, the court stated that "given the strong presumption for inclusion
under the IDEA, disruptive behavior should not be a significant factor in determining the
appropriate educational placement for a disabled child."
FACTS
Mark spent his pre-school years in various programs for disabled children. In
kindergarten, he spent half his time in a self-contained program for autistic children and
half in a regular education classroom at Butterfield Elementary in Lombard, Illinois.
Upon entering first grade, Mark received speech and occupational therapy one-on-one,
but was otherwise included in the regular classroom at Butterfield full-time with an aide
to assist him.
After Mark’s first-grade year, the Hartmanns moved to Loudoun County, Virginia, where
they enrolled Mark at Ashburn Elementary for the 1993-1994 school year. Based on
Mark’s individualized education program (IEP) from Illinois, the school placed Mark in a
regular education classroom. To facilitate Mark’s inclusion, Loudoun officials carefully
8

9. selected his teacher, hired a full-time aide to assist him, and put him in a smaller class
with more independent children. Mark’s teacher, Diane Johnson, read extensively about
Higgins, Green, Reece
autism, and both Johnson and Mark’s aide, Suz Leitner, received training in facilitated
communication, a special communication technique used with autistic children. Mark
received five hours per week of speech and language therapy with a qualified specialist,
Carolyn Clement. Halfway through the year, Virginia McCullough, a special education
teacher, was assigned to provide Mark with three hours of instruction a week and to
advise Mark’s teacher and aide.
Mary Kearney, the Loudoun County Director of Special Education, personally worked
with Mark’s IEP team, which consisted of Johnson, Leitner, Clement, and Laurie
McDonald, the principal of Ashburn. Kearney provided in-service training for the
Ashburn staff on autism and inclusion of disabled children in the regular classroom.
Johnson, Leitner, Clement, and McDonald also attended a seminar on inclusion held by
the Virginia Council for Administrators of Special Education. Mark’s IEP team also
received assistance from educational consultants Jamie Ruppmann and Gail Mayfield,
and Johnson conferred with additional specialists whose names were provided to her by
the Hartmanns and the school. Mark’s curriculum was continually modified to ensure that
it was properly adapted to his needs and abilities.
Frank Johnson, supervisor of the county’s program for autistic children, formally joined
the IEP team in January, but provided assistance throughout the year in managing Mark’s
behavior. Mark engaged in daily episodes of loud screeching and other disruptive
conduct such as hitting, pinching, kicking, biting, and removing his clothing. These
outbursts not only required Diane Johnson and Leitner to calm Mark and redirect him,
but also consumed the additional time necessary to get the rest of the children back on
task after the distraction.
Despite these efforts, by the end of the year Mark’s IEP team concluded that he was
making no academic progress in the regular classroom. In Mark’s May 1994 IEP, the
team therefore proposed to place Mark in a class specifically structured for autistic
children at Leesburg Elementary. Leesburg is a regular elementary school which houses
the autism class in order to facilitate interaction between the autistic children and students
who are not handicapped. The Leesburg class would have included five autistic students
working with a special education teacher and at least one full-time aide. Under the May
IEP, Mark would have received only academic instruction and speech in the self-
contained classroom, while joining a regular class for art, music, physical education,
library, and recess. The Leesburg program also would have permitted Mark to increase
the portion of his instruction received in a regular education setting as he demonstrated an
improved ability to handle it.
DECISION
To demand more than this from regular education personnel would essentially require
them to become special education teachers trained in the full panoply of disabilities that
their students might have. Virginia law does not require this, nor does the IDEA. First,
such a requirement would fall afoul of Rowley’s admonition that the IDEA does not
9

10. guarantee the ideal educational opportunity for every disabled child. Furthermore, when
the IDEA was passed, Congress’ intention was not that the Act displace the primacy of
Higgins, Green, Reece
States in the field of education, but that States receive funds to assist them in extending
their educational systems to the handicapped." Rowley, 458 U.S. at 208. The IDEA
"expressly incorporates State educational standards." Schimmel v. Spillane, 819 F.2d 477,
484 (4th Cir. 1987). We can think of few steps that would do more to usurp state
educational standards and policy than to have federal courts re-write state teaching
certification requirements in the guise of applying the IDEA. In sum, we conclude that
Loudoun County’s efforts on behalf of Mark were sufficient to satisfy the IDEA’s
mainstreaming directive.
DICTA
The IDEA embodies important principles governing the relationship between local school
authorities and a reviewing district court. Although section 1415(e)(2) provides district
courts with authority to grant "appropriate" relief based on a preponderance of the
evidence, 20 U.S.C. § 1415(e)(2), that section "is by no means an invitation to the courts
to substitute their own notions of sound educational policy for those of the school
authorities which they review." Board of Education of Hendrick Hudson Central Sch.
Dist. v. Rowley, 458 U.S. 176, 206 (1982). These principles reflect the IDEA’s
recognition that federal courts cannot run local schools. Local educators deserve latitude
in determining the individualized education program most appropriate for a disabled
child. The IDEA does not deprive these educators of the right to apply their professional
judgment. Rather it establishes a "basic floor of opportunity" for every handicapped
child. Rowley, 458 U.S. at 201. States must provide specialized instruction and related
services "sufficient to confer some educational benefit upon the handicapped child," id. at
200, but the Act does not require "the furnishing of every special service necessary to
maximize each handicapped child’s potential," id. at 199.
IMPLICATIONS
The IDEA encourages mainstreaming, but only to the extent that it does not prevent a
child from receiving educational benefit. The evidence in this case demonstrates that
Mark Hartmann was not making academic progress in a regular education classroom
despite the provision of adequate supplementary aids and services. Loudoun County
properly proposed to place Mark in a partially mainstreamed program which would have
addressed the academic deficiencies of his full inclusion program while permitting him to
interact with nonhandicapped students to the greatest extent possible. This professional
judgment by local educators was deserving of respect. The approval of this educational
approach by the local and state administrative officers likewise deserved a deference
from the district court which it failed to receive. In rejecting reasonable pedagogical
choices and disregarding well-supported administrative findings, the district court
assumed an educational mantle which the IDEA did not confer. Accordingly, the
judgment must be reversed, and the case remanded with directions to dismiss it.
10

11. PRAIRE VIEW A&M UNIVERSITY
PUBLIC SCHOOL LAW
ADMN 5023
William Allan Kritsonis, PhD
SPECIAL EDUCATION
Submitted
By
Reginald P. Green
July 13, 2009
11

12. Green, Higgins, Reece
SPECIAL EDUCATION
INTRODUCTION
“Appropriate” education is one that goes beyond the normal school year. If a child will
experience severe or substantial regression during the summer months in the absence of a
summer program, the handicapped child may be entitled to year round services. The
Education for All Handicapped Children Act (EAHCA) passed in 1975, this act provided
support to state special education programs to provide free appropriate public education
to disabled children. National precedent establishing the tests for determining the need
for an extended school year for special needs children.
For the purpose of this case we will determine if there is sufficient enough
evidence of regression to justify requiring the district to provide summer services to the
student.
Case One
United States Court of Appeals,
Fifth Circuit
Alamo Heights Independent School District-Plaintiff-Appellants
v.
State Board Of Education, et al., Defendants-Apelles
790 F .d 1153
LITIGANTS
Plaintiff –Appellant: Alamo Heights Independent School District
Defendants – Apelles: State Board of Education
Background
12

13. In the summer 1979, when Steven was seven, his mother moved into the Alamo
Heights Independent School District. That school year Steven attended a special
education program at Cambridge Elementary School. In the late spring of 1980, Mrs. G.
Green, Higgins, Reece
requested that the Alamo Heights Independent School District provide summer services
for Steven.
For seven years prior to 1980 the Alamo Heights School District had offered a
summer program to all special education students who were moderately or severely
handicapped. The decision to offer the program was made on the administrative level, as
a matter of district policy, and any moderate to severely handicapped child was eligible to
attend. In the summer of 1980, when Steven would have been eligible for this program,
however, the School District changed its policy and offered only a half-day one-month
program, without providing transportation. The decision to curtail the summer program
was based on its cost and the apparent lack of interest on the part of teachers and eligible
students in previous years.
No students from Steven's multiply handicapped class took advantage of the 1980
summer program, nor did Steven. It is not clear, however, whether Mrs. G. was not told
of the program or whether the lack of transportation and the hours made it impossible for
Steven to attend. During that summer, Steven stayed with a baby-sitter who had no
training in special education. There was testimony that Steven's behavior deteriorated that
summer and that he suffered regression in his ability to stand, point, and feed himself.
The next year Mrs. G.'s request for summer services and transportation was
refused by school officials, without consultation with Steven's Admission, Review and
Dismissal (ARD) Committee or with his teacher. The only caretaker Mrs. G. could find
for Steven lived a mile outside of the district boundary, and even during the school year,
the School District would not provide out-of-district transportation.
Mrs. G. then employed legal counsel and appealed the denial of services to the
Texas Education Agency. The administrative hearing officer issued an interim order
requesting a meeting of Steven's ARD Committee to consider the issue of summer
13

14. services. The ARD Committee met and agreed only to provide some adaptive equipment
for Steven and to request consultative services from the state during the summer of 1981.
On August 21, 1981, the hearing officer issued a "proposal for decision" in which he
found that the School District was required to provide summer services and related
Green, Higgins, Reece
transportation services during 1981, and also required the School District to make a
decision regarding summer services for 1982 by March of 1982.
Facts
Without some kind of continuous, structured educational program during the
evidence to conclude that Steven G. would definitely suffer severe regression after a
summer without such a program, neither can it conclude that he would not and there is
evidence that shows that Steven G. has suffered more than the loss of skills in isolated
instances, and that he has required recoupment time of more than several weeks after
summers without continuous, structured programming. A summer without continuous,
structured programming would result in substantial regression of knowledge gained and
skills learned, and, given the severity of Steven G.'s handicaps, this regression would be
significant.
Decision
Mrs. G.'s efforts to obtain the appropriate provision of free educational services
for her son were pursued within the administrative framework set up by the State of
Texas pursuant to EAHCA guidelines. The success she achieved in requiring the School
District to provide Steven with an appropriate individualized educational placement,
including summer services, was obtained through and within the "elaborate, precisely
defined administrative and judicial enforcement system. Because we find that, whether or
denominated due process, the claims upon which Mrs. G. has prevailed are rights granted
by the EAHCA, and because the EAHCA contains no provision for attorney's fees, we
agree with the district court that no attorney's fees are to be awarded under Sec. 1988.
We also find that Mrs. G. is not entitled to attorney's fees under the Rehabilitation
Act. In Smith, the Court stated, "Of course, if a State provided services beyond those
required by the [EAHCA], but discriminatorily denied those services to a handicapped
14

15. child, Section 504 [of the Rehabilitation Act] would remain available as an avenue of
relief."
Mrs. G. asserts that the fact that the School District provided a summer remedial
reading program, free of charge, to nonhandicapped children without providing an
Green, Higgins, Reece
analogous free summer program to handicapped children is a clear instance of
discrimination on the basis of handicap in violation of Sec. 504.
We do not agree. Under the EAHCA, the School District is required to provide
handicapped children with a free, appropriate education geared towards their individual
needs. If a handicapped child's IEP requires summer services under the EAHCA, he is
entitled to summer services. The fact that the School District affords some
nonhandicapped children remedial help during the summer does not mean that it is
required to offer similar remedial summer guidance to handicapped children, irrespective
of whether their individual IEP's provide for structured summer services. The school
district's action in Steven's case has not been shown to constitute discrimination on the
basis of his handicap distinct from the protection afforded under the EAHCA. Hence,
Mrs. G. is not entitled to attorney's fees under 29 U.S.C. Sec. 794a(b), the attorney's fees
provision of the Rehabilitation Act.
Finally, the School District argues that it was denied due process by the
procedures employed by the State Board of Education during the administrative stage of
this action. It contends that under Helms v. McDaniel, the hearing officer's initial
proposed decision of August 24, 1981 should have been considered the final decision of
the case and that the hearing officer's later adoption of the Commissioner of Education's
decision was a direct violation of Helms. It contends that the failure of the hearing officer
to adopt his initial proposed decision as the final decision of the case denied them due
process. The School District does not favor us with any authority for the proposition that
an adjudicative officer is prohibited by the due process clause from changing his opinion
in the course of an orderly procedure. We find the district court did not err in dismissing
the School District's due process claims against the state defendants.
15

16. Dicta
The district court carefully phrased its conclusion and, while it did not explicitly
state that the educational program offered by the School District did not meet the "some
Green, Higgins, Reece
educational benefit" standard of Rowley, the district court showed that it was aware of
that decision and its judgment is therefore tantamount to such a conclusion. Hence, we
hold that the district court applied the appropriate standard to the factual determinations
supported by the record. The general injunctive relief granted by the court was
appropriate to ensure that Steven receives the summer programming to which he is
entitled under the Act.
With respect to out-of-district transportation for Steven G., the district court found
that transportation is included in the definition of "related service" under 20 U.S.C. Sec.
1401(a)(17) and that such transportation does not cease to be a related service simply
because a parent requests transportation to a site a short distance beyond the district
boundaries.
Implications
The evidence indicates that Todd was receiving benefit from the TISD special
education program, and hence, the TISD special education program was an appropriate
placement under IDEA. Equally important, the TISD special education program provided
Todd with an opportunity to interact with nondisabled peers, and was a less restrictive
environment than The Oaks. Thus, regardless of whether Todd extracted any academic
benefit from the educational program at The Oaks, Todd's parents' unilateral decision to
place him there remains their financial responsibility. For these reasons, the decision of
the district court is AFFIRMED.
16

17. PRAIRE VIEW A&M UNIVERSITY
PUBLIC SCHOOL LAW
ADMN 5023
William Allan Kritsonis, PhD
SPECIAL EDUCATION
Submitted
By
Reginald P. Green
17

18. July 13, 2009
Green, Higgins, Reece
SPECIAL EDUCATION
INTRODUCTION
In order to assure that all children are given a meaningful opportunity to
benefit from public education, the education of children with disabilities is
required to be tailored to the unique needs of the handicapped child by means of an
individualized education plan (IEP). As a condition of federal funding, IDEA requires
states to provide all children with a "free appropriate public education," with the statutory
term "appropriate" designating education from which the schoolchild obtains some
degree of benefit.
This report focuses on parents rights to place their son in a unilateral placement
despite the public school program and IEP. The parents by law have the right to request
reimbursement for private placement.
Case One
United States Courts of Appeals,
Fifth Circuit
TODD L., Mr. and Mrs. L., Defendant-Appellants,
v.
TEAGUE INDEPENDENT SCHOOL DISTRICT, et al., Plaintiff-Appellee,
Docket No. No. 92-8427.
LITIGANTS
Plaintiffs-Appellant: Todd L., Mr. and Mrs. L., et.al
18

19. Defendant-Appellee: TEAGUE INDEPENDENT SCHOOL DISTRICT
Green, Higgins, Reece
BACKGROUND
As a condition of federal funding, IDEA requires states to provide all children
with a "free appropriate public education," with the statutory term "appropriate"
designating education from which the schoolchild obtains some degree of benefit. IDEA
requires that children with disabilities be educated to the maximum extent possible with
nondisabled children in the least restrictive environment consistent with their needs, a
concept referred to as "mainstreaming." In order to assure that all children are given a
meaningful opportunity to benefit from public education, the education of children with
disabilities is required to be tailored to the unique needs of the handicapped child by
means of an individualized education plan (IEP).
Complying with IDEA, Todd's local public school district (the Teague
Independent School District, "TISD"), in collaboration with Todd and his parents,
developed an IEP for Todd. Consistent with IDEA's requirement that special education
services be tailored to the unique needs of the child, the IEP emphasized one-on-one
instruction in specially equipped classrooms, and reduced the length of Todd's school day
from seven hours to two hours. Todd's school day was reduced not for the convenience of
school staff, but in response to Todd's inability to tolerate a longer school day without
becoming unduly frustrated and discouraged, leading to regression rather than academic
progress.
The school psychologist specifically found that a shortened school day would be
necessary, at least temporarily, to assure that Todd's inability to tolerate frustration did
not lead to his giving up on academics altogether and dropping out of school. Though
Todd was educated separately from his nondisabled peers for part of the school day, the
school arranged for Todd to have contact with nondisabled peers. The goal of Todd's
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20. four-year IEP was to provide him with a nonthreatening environment in which he could
continue to make academic progress while gradually learning to tolerate a lengthened
school day and increased stress. The record indicates that the authors of Todd's IEP fully
expected that ultimately Todd would be reintegrated into "the mainstream" of regular
classes at the TISD school, and would graduate.
Green, Higgins, Reece
Facts
When Todd's parents sought reimbursement for the costs of Todd's
institutionalization, the TISD refused on the grounds that Todd had been able to benefit
from the TISD program and that The Oaks placement was more restrictive than necessary
to provide Todd with educational benefit. Todd's parents appealed to a special education
hearing officer, who found that Todd's parents should be reimbursed. The special
education hearing officer found that Todd's parents had established that Todd's local
public school was an inappropriate placement while The Oaks was an appropriate
placement. According to the hearing officer, there was no evidence that Todd had
obtained any benefit from special education at the TISD School. Contending that this
factual conclusion was clearly erroneous, and that the hearing officer did not take into
account the relative restrictiveness of The Oaks and the TISD School’s special education
program, the school district appealed the hearing officer's decision to federal district
court.
Although the district court indicated that it gave "due weight" to the decision of
the hearing officer, the district court concluded, after reviewing all the evidence from the
administrative proceeding and hearing additional evidence, that the TISD public school
placement was appropriate, and that The Oaks placement was inappropriate. Therefore,
the district court reversed the hearing officer's decision to grant Todd's parents
reimbursement for the cost of Todd's institutionalization at The Oaks. Todd's parents
appeal the district court's decision. We affirm.
Decision
Having decided that the district court did not err in subjecting the hearing
officer's decision to a searching review, it remains only to decide whether the conclusions
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21. drawn by the district court were proper. We review de novo, as a mixed question of law
and fact, the district court's decision that the local school's IEP was appropriate and that
the alternative placement was inappropriate under IDEA. Christopher M. v. Corpus
Christi Independent Sch. Dist., 933 F.2d 1285, 1289 (5th Cir.1991). We review the
district court's findings of "underlying fact" for clear error. Id. See also Sherri A.D., 975
F.2d at 207. Findings of "underlying fact" include findings that the schoolchild obtained
Green, Higgins, Reece
any benefit from special education services or would be threatened by a longer school
day. Christopher M., 933 F.2d at 1289. If a parent or guardian unilaterally removes a
child from the local public school system, the parent or guardian may obtain
reimbursement for an alternative placement only if able to demonstrate that the regular
school placement was inappropriate, and that the alternative placement was appropriate.
School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 373-74, 105 S.Ct.
1996, 2004, 85 L.Ed.2d 385 (1985). If Todd's IEP in the local public school district was
appropriate, then there is no need to inquire further as to the appropriateness of The Oaks'
program.
Under IDEA, an "appropriate" placement is that which enables a child to obtain
"some benefit" from the public education he is receiving; not necessarily maximization of
his potential. See Rowley, 458 U.S. at 198-200, 102 S.Ct. at 3047. In addition to
requiring that the child's placement be appropriate in the sense of providing some benefit,
IDEA mandates that to the fullest extent possible, disabled children be educated with
non-disabled children in the least restrictive environment. See 20 U.S.C. § 1412(5);
Rowley, 458 U.S. at 202, 102 S.Ct. at 3048; Sherri A.D., 975 F.2d at 206 ("Even in cases
in which mainstreaming is not a feasible alternative, there is a statutory preference for
serving disabled individuals in the setting which is least restrictive of their liberty and
which is near the community in which their families live"). A presumption exists in favor
of the local public school district's plan for educating the child, provided it comports with
IDEA. See Tatro v. State of Texas, 703 F.2d 823, 830 (5th Cir.1983). See generally
Rowley, 458 U.S. at 207-08, 102 S.Ct. at 3051.
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22. There is ample evidence that Todd received significant benefit from his public
school placement. Todd's teacher and school psychologist both testified that Todd made
significant progress academically and behaviorally while in the TISD special education
program. Not only did Todd advance in terms of grade level, he also became steadily
more able to focus on particular tasks for longer periods without experiencing debilitating
frustration. At the same time, the TISD special education program provided Todd with
Green, Higgins, Reece
some opportunity to interact with nondisabled peers, and the opportunity to participate
in the affairs of the community in which he lived.
Todd's one-on-one instruction at TISD was no more restrictive than necessary to
assure that he would receive some academic benefit from special education at TISD. The
school psychologist testified that while she would have recommended some sort of
residential placement had the district not been able to provide Todd with one-on-one
instruction, she would never consider placing a child like Todd at a residential facility as
restrictive as The Oaks without first exhausting the full range of less restrictive
alternatives. She testified that even though Todd had serious behavior problems, she did
not consider him so unruly as to require twenty-four hour supervision in a locked unit. In
the school psychologist's opinion, The Oaks was a placement of last resort.
By contrast to the unambiguous evidence that Todd benefitted from special
education at the TISD school, the evidence that Todd benefitted from educational
services at The Oaks is equivocal. The evidence Todd's parents produced to support their
claim that Todd benefitted academically from educational programming at The Oaks
compares Todd's performance before he received special education services at the TISD
school with Todd's performance after he was institutionalized. Hence, it is difficult, if not
impossible, to ascertain whether the source of the benefit Todd obtained was provided
primarily by the TISD school, or by The Oaks. It is uncontroverted that The Oaks' focus
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23. was on behavior management, and that The Oaks devoted only the same or a little more
time to Todd's educational programming than did the TISD school.
Finally, Todd's placement at The Oaks involved more restrictions on Todd's liberty than
any other potential placement, removed Todd from his home community, and completely
precluded him from having any contact with nondisabled peers. There is exceedingly little
evidence, other than the hospital's willingness to admit Todd, that he required such a restrictive
environment. Although we can assume, based on Todd's admission to The Oaks, that a physician
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ratified Todd's parents' decision to hospitalize their son, the great weight of the evidence
indicated that he could not only cope, but thrive, in a less restrictive setting.
Dicta
The evidence indicates that Todd was receiving benefit from the TISD special
education program, and hence, the TISD special education program was an appropriate
placement under IDEA. Equally important, the TISD special education program provided
Todd with an opportunity to interact with nondisabled peers, and was a less restrictive
environment than The Oaks. Thus, regardless of whether Todd extracted any academic
benefit from the educational program at The Oaks, Todd's parents' unilateral decision to
place him there remains their financial responsibility. For these reasons, the decision of
the district court is AFFIRMED.
Implications
The district court carefully phrased its conclusion and, while it did not explicitly state that the
educational program offered by the School District did not meet the "some educational benefit"
standard of Rowley, the district court showed that it was aware of that decision and its
judgment is therefore tantamount to such a conclusion. Hence, we hold that the district court
applied the appropriate standard to the factual determinations supported by the record. The
general injunctive relief granted by the court was appropriate to ensure that Steven receives the
summer programming to which he is entitled under the Act.
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