Education Law : Pennsylvania Education Law Lawyer & Attorney : Fox Rothschild Law Firm : Education Statutory and Regulatory Changes

In a new case out of the Middle District of Pennsylvania, Baker v. Southern York Area School District, the District Court applied in a Section 504 FAPE case a strict two year statute of limitations, borrowing the statute of limitations from the IDEA. Looking to a recent case from the Third Circuit, P.P. v. West Chester Area School District, discussed below, the Court simply looked to the filing date of the Complaint and limited the claims to two years prior to that date. However, it appears that there continues to be cases all over the map on how to apply statute of limitations in IDEA cases. It appears that will likely to continue until the issue is decided by the Third Circuit.   

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Happy New Year to our readers! As we start 2010, I thought it would be a good opportunity to take a look back at some of the comments we received to some of the 2009 postings. 

In response to my posting in July predicting that now Justice Sotomayor would be friendly to school districts in the area of special education, our own Karl Romberger responded that he disagreed and that she likely would not be that friendly to public schools. Naturally, that elicited a response from Nancy asking which is which. The short answer is that has yet to been seen. As I advised in my original posting, trying to guess how a judge turned justice might rule in a particular area is always risking business. I suppose we will just have to wait and see. 

In response to my July posting on a case out of the Ninth Circuit related to a blog operated by a teacher and the finding that this does not qualify as protected speech, Michael wrote “[i]t is a shame that we are allowing this type of case law to be put in place.” He further notes “[a] blog is essentially a public journal and it is not the government’s place to judge the quality or content of a private writing.” I believe the court’s view was more that employees of public entities do not have the right to say whatever they want in public about their work and then once that speech begins to have an adverse effect on work, the limits of the protection have been breached.   

On my blog posting back in October related to a case out the Ninth Circuit that found that teachers who complain about the treatment of disabled students also qualify for the protections of the ADA and Section 504, even if the teacher is not disabled, Mekei wrote “Very interesting. As a parent I observe that often times, the special ed teachers et al, are considered second class citizens among the other teachers.” 

Finally, in response to my posting in late December on Least Restrictive Environment, Rick responded “[s]chools use LRE as an inexpensive way to ‘dump’ special ed kids in a mainstream classroom and let them try to keep up with the rest of the class.” He further notes “schools are relying on law enforcement personnel to handle simple behavior problems that would be taken care of in a special ed classroom.” Rick’s comments only seem to underscore the ongoing debate on how to apply the LRE concept. 

As always, the blog welcomes your comments, questions and suggestions and, from time to time, we will try to respond to them.    

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The issue of providing special education services in the least restrictive environment, also known as mainstreaming, is an area of law in which the basic legal principles may be easily stated, much like the elements of torts. But in practice, it can be difficult to apply and raises not only legal concerns, but also philosophical and educational concerns.

The mainstreaming requirement provides that children with disabilities should, to "the maximum extent appropriate," be "educated with children who are not disabled." See 20 U.S.C.A. § 1412(a)(5)(A). While there may be disagreement about whether this mandate has been met in a particular case, Pennsylvania school districts have met this legal requirement overall.

Mainstreaming can be a complex issue over which parents of students with disabilities often disagree. Its application to particular cases tends to be fact-specific and is an issue that courts, hearing officers, parents and school districts have sometimes struggled with. As the U.S. District Court for the Eastern District of Pennsylvania noted in Greenwood v. Wissahickon Sch. Dist. , there is "inherent tension between the [IDEA's] goal of mainstreaming a disabled student and its requirement to provide an individualized educational program meeting the student's special needs."

In addition, the U.S. District Court for the Western District of Pennsylvania, in Leighty v. Laurel Sch. Dist., emphasized that the focus is on providing the student's education in an "appropriate educational environment."

A review of several recent cases in this area reveals that parents of students with special education needs take diverging views, with some demanding more restrictive placements than those offered by the local school district and others saying districts have not done enough to mainstream their children. These cases illustrate the complexity of the issues faced by school districts in attempting to meet this mandate.

One series of cases demonstrates that parents of students sometimes seek a placement that is more restrictive than that suggested by the school district, primarily in the form of a private placement. For example, in the case of Leighty , the parents of a disabled student sought to have the district pay for a private placement recommended by their expert, a notion that was rejected by the court, which found that the district had educated the student with inclusion into regular education and that approving the private placement at district expense would be inconsistent with the mainstreaming requirements.

In the Eastern District case of Daniel S. v. Council Rock Sch. Dist. , the parents of a student with a specific learning disability placed the student at a private school and then sought tuition reimbursement, contending it was an appropriate special education placement for the student. The court rejected the request for reimbursement, finding that the school district had offered the student a special education placement that included inclusion in the regular education setting and in which the student had previously made educational progress. Accordingly, the court found that the more restrictive environment chosen by the parents was not appropriate.

Finally, in the Eastern District case of Sinan L. v. Sch. Dist. of Philadelphia , the parents of a disabled student sought tuition reimbursement for placement at an out-of-state residential placement, when the district had offered a placement at a private day school. In applying the mainstreaming requirement, the court explained that a residential placement is inappropriate when a less structured environment, such as a day school, will meet the student's needs.

A second series of cases outlines the view that some parents hold of the need for more inclusion than provided by a school district. In the case of Lauren P. v. Haverford Sch. Dist. , the Eastern District was faced with a case in which the school district offered an autistic student a part-time placement in regular education and part-time placement in learning support, or a special education placement, while the parents sought full-time placement in a regular education placement with supports. In upholding the school district's offered placement as appropriate, the court noted that the school district had fully considered the possibility suggested by the parents and considered a "continuum of alternative placements" as part of the process in reaching its conclusion, including fully considering the possibility of accommodating the student full-time in the general education environment. The court further explained that in considering these various options, the school district found that the student would not make progress in math and language arts if placed in the regular education classroom, but would in the learning support classroom, and that outweighed the benefits of mainstreaming the student.

In Greenwood v. Wissahickon Sch. Dist., the parents of a student who was diagnosed with severe mental retardation and static non-progression encephalopathy sought to have the student put in regular education classes with supports. The court found that the school district had made significant efforts to provide the student with a meaningful benefit from inclusion in the regular education classroom, but that the student received little, if any, educational benefit from the inclusion. The court upheld the placement provided by the district, finding that any further inclusion would hinder the student's own educational progress.

Thus, in order to comply with the requirements of mainstreaming, school districts should consider all possible placements for a student — including placement in a regular education classroom — make an effort to make mainstreaming work as much as possible and, most importantly, ensure that the placement provided offers the student an opportunity to learn. School districts do not have an obligation to mainstream students when doing so would impede their ability to learn.

Overall, the statistics show that school districts in Pennsylvania are well aware of the mandate to provide special education in the least restrictive environment. Nationally, the trend shows that in 1999 about 6.5 percent of special education students were placed outside of the public school setting and that number was down to just over 4 percent by 2005. Pennsylvania is near the national average, according to the Pennsylvania Department of Education, which found just over 4 percent of special education students statewide were placed outside of the public school in 2007 and 2008. Looking to the amount of time that special education students spend outside of the regular education classroom, nationally, close to 25 percent of special education students spent more than 60 percent of their time in a school outside of the regular education classroom in 1989, while that number was down to just under 17 percent in 2005. In Pennsylvania, that number was lower than the national average at close to 11 percent in 2007 and 2008. It is clear that Pennsylvania school districts are not only aware of their mandate to provide special education in the least restrictive environment, they make a diligent effort to meet that mandate and have had success.

While parents of special education students and school districts may agree to disagree over how to meet the mandate of providing special education in the least restrictive environment or whether that mandate has been meet in a particular case, in this area of the law, not only are Pennsylvania's school districts aware of the requirement, they have clearly made a diligent effort to meet it.

This blog posting originally appeared in the December 29, 2009 edition of The Legal Intelligencer and is posted here with permission.  

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The Third Circuit Court of Appeals has issued a decision addressing the issue of the statute of limitations, or the time limits for bring a case, under both Section 504 and IDEA. In P.P. v. West Chester Area School District the only clear guidance that is given is that the statute of limitations provided for in IDEA is also applicable in Section 504 cases. Section 504 does not provide any statute of limitations. The Court also indicates that the exceptions available to the statute of limitations under IDEA would also be available under Section 504.

However, the Court leaves unanswered two issues. First, the Court refused to address whether the statute of limitations under IDEA is applicable at all to cases in which the alleged improper conduct occurred prior to the addition of the time limits in IDEA, which were new to the statute as reauthorized in 2004. The other unresolved issue is whether a strict two year statute of limitations applies or whether the “two plus two” concept is applicable. One approach would limit cases to strictly looking to alleged wrongful conduct two years prior to the filing of the Due Process Complaint. The second approach allows looking back two years from the date the parents of the student knew or should have known of the alleged wrongful conduct and then allows the parents two years from that date to file the claim. Thus, in theory, under the second approach you might be able to look at a four year window in total.

The Court does not address these two remaining issues and has left them for another day.   

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Back in October, I reported on a case out of Hawaii where school districts changed the school calendar to have Furlough Fridays in a money saving effort.  Parents of a number of special education students filed suit claiming the change amounted to a change in programing under IDEA, without parental consent.  While not yet ruling on the merits, the U.S. District Court has at least hinted at what the answer might be on this question.  The Court has refused to issue a preliminary injunction to stop Furlough Fridays, finding that it believes the plaintiffs were unlikely to succeed on their claims.  Thus, we have a hint of where the Court may be going, but a final decision may be some way off. 

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President Obama has signed into law the Fiscal Year 2010 National Defense Authorization Act , which provides for additional leave rights for military families under FMLA. 

First, there is a provision relating to qualifying exigency for up to twelve weeks of leave for family members of both active duty service members and national guard and reservists who are deployed to a foreign country.  Previously, the leave was only for National Guard and reservists.  Exigency leave is permitted for short-notice of deployment, military events and related activities, childcare and school, financial and legal responsibilities, counseling, rest and recuperation for five days, post-deployment activities and other activities as agreed with employer.

Second, caregiver leave has been extended to include veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness.  The veteran must have been in the armed forces, including the National Guard or reserves, at any time five years prior to the treatment and the condition being treated must be incurred in the line of duty or a pre-existing condition aggravated in the line of duty.  

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In 2008, President Bush signed the Americans with Disabilities Act Amendments Act (“ADAAA”), which expanded the protections of the ADA to include those who have an actual or perceived physical or mental impairment “whether or not the impairment limits or is perceived to limit a major life activity.” In passing this bill, Congress expressly rejected several Supreme Court decisions that took a more narrow view of the ADA. The question that remains is what standard applies to cases of alleged discrimination that occurred prior to the ADAAA?

It appears that several courts have looked at this issue and reached different conclusions. In Rohr v. Salt River Project Agricultural Improvement & Power District, out of the Ninth Circuit Court of Appeals, while not addressing the issue directly, the court noted that “the ADAAA sheds light on Congress’ original intent when it enacted the ADA” in 1990 and suggests it may be appropriate to read the amendments to allow for protection to a broader class of individuals, even in cases where the alleged discrimination occurred prior to the enactment of the ADAAA. However, the United States District Court for the Northern District of Indiana reached a different conclusion in the matter of Brooks v. Kirby Risk Corp. and found that the more limited standard endorsed by the Supreme Court applies to claims prior to the ADAAA, which went into effect in January of 2009, should be applied to these types of cases. The Brooks court notes that the Seventh, Fifth, Sixth and D.C. Circuit Court of Appeals have taken the view that the broader protections of the ADAAA only apply to actions of alleged discrimination after its enactment, while the Ninth, Tenth and Eleventh Circuits have declined to decide the issue, but at least implied they could by applied to actions prior to the effective date of the ADAAA.

Interestingly, if the Circuit Courts continue to split on this issue, it may be the Supreme Court, whose analysis of the ADA was expressly overturned by the ADAAA, that may get the last word on this issue. Unless, of course, Congress decides that the Supreme Court gets it wrong and decides to amend again.   

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The Ninth Circuit Court of Appeals has found in the case of Barker v. Riverside County Office of Education (October 23, 2009) that the anti-retaliation provisions of Section 504 of the Rehabilitation Act of 1973 and the ADA apply even if the person who claims to have been retaliated against is not themselves disabled. In Barker, a special education teacher voiced concerns that her employer’s special education program was not in compliance with federal and state law and then, along with a coworker, filed a complaint on this alleged non-compliance with the U.S. Department of Education’s Office for Civil Rights. In response to this complaint, according to the employee, the school district retaliated by reducing her case load, intimidating her, excluding her from meetings and other activities that, according to the employee, led to an intolerable work environment.

The employee filed suit claiming she had been retaliated against for filing the complaint and voicing concerns about the alleged non-compliance of the district’s special education program. The court was asked to determine whether this teacher, who herself was not disabled, was afforded the protections of the anti-retaliation provisions of the two statutes. Looking at both statutes the court found that both protected "any person" who was retaliated against. The court further noted its belief that Congress intended to protect other individuals in recognition of the fact that disabled individuals may need assistance in vindicating their rights.

The lesson of Barker is clear. If school districts or other educational entities have employees who complaint internally or to outside agencies about the treatment provided to disabled students or employees, they must be treated the same as other employees and any appearance of retaliation for the complaints must be avoided.

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In Hawaii, students will now be getting seventeen Fridays off this year and seventeen next year in an effort to save money through a furlough of teachers.  However, several lawyers representing a group of students who qualify for special education have filed a suit trying to stop the plan.  The argument is that by taking seventeen days out of the school year, this is a change in programs and services the disabled children receive.  Given that the parents of these students were not consulted prior to this change, the suit alleges it violates the rights of the parents under IDEA.  The suit seeks a temporary restraining order and the first furlough day is this Friday.  Thus, we may know very shortly if in fact such a change in scheduling is a change that requires parental consent under the IDEA. 

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