TWO YEARS MAY REALLY MEAN TWO YEARS ... MAYBE

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.   

THIRD CIRCUIT GIVES SOME GUIDANCE ON STATUTE OF LIMITATIONS UNDER IDEA AND SECTION 504, BUT STILL LEAVES SOME ISSUES UNRESOLVED

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.   

UPDATE ON CHANGE IN CALENDAR CASE

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. 

Advanced placement and disabled students: U.S. Department of Education guidance

In a December 26, 2007 "Dear Colleague" letter, the U.S. Department of Education addressed "an issue involving students with disabilities seeking enrollment in challenging academic programs, such as Advanced Placement and International Baccalaureate classes or programs (accelerated programs)."  The letter would be applicable to any covered entity.

Apparently, some schools refuse to allow qualified disabled students the right to participate in such programs or require the student’s to forego some other right. These actions, said the Department, "are inconsistent with Federal law, and the Office for Civil Rights (OCR) in the U.S. Department of Education will continue to act promptly to remedy such violations where they occur."

OCR notes that "[i]t is unlawful to deny a student with a disability admission to an accelerated class or program solely because of that student’s need for special education or related aids and services, or because that student has an IEP or a plan under Section 504." (Footnote omitted.)

[I]f a qualified student with a disability requires related aids and services to participate in a regular education class or program, then a school cannot deny that student the needed related aids and services in an accelerated class or program.  For example, if a student’s IEP or plan under Section 504 provides for Braille materials in order to participate in the regular education program and she enrolls in an accelerated or advanced history class, then she also must receive Braille materials for that class.  The same would be true for other needed related aids and services such as extended time on tests or the use of a computer to take notes.

Schools are not, however, required to admit a student who happens to have a disability to advanced courses if the student is not otherwise qualified for the program. But the qualification requirements must be proper and not, among other things, tend to disqualify a student because of a disability. The example above of a visually impaired student is illustrative: being able to visually read text would probably not be a proper qualification. Having certain background or prerequisite knowledge probably would be proper.

Although OCR’s jurisdiction falls under Section 504 and the Americans With Disabilities Act, the letter notes that the advice is issued after consulting with the Office of Special Education Programs, which oversees the IDEA. OCR offers technical assistance to schools interesting in improving their programs. The guidance contains contact information.

 As with all things involving disabilities and education, each decision must be individualized. And ultimately, the rationale behind any decision must be clearly articulable, proper, and objective in order to be convincingly proper and defensible.

Annual notice time

Annual notices are one among the many things that school administrators must remember to do at this busy time of year. The National School Boards Association has issued a convenient summary regarding the multiple notices that schools (including higher education institutions in some cases) must provide to parents, students, and the public, complete with handy links to model forms and other information. 

You should note that the model forms links are to federal models and are not specific to a particular state's or district's requirements or needs. A district should consider its unique circumstances for each notice, for example, whether the FERPA notice covers independent contracts, such as private student evaluators, sufficiently to meet anticipated district needs. 

OSEP letters January - March 2007

In Saturday’s Federal Register, the U.S. Department of Education published its quarterly listing of letters and other documents of interest regarding Department interpretations of the Individuals With Disabilities Education Act. The letters are from January through March, 2007. The letters should be available at this part of the Department’s website, although at the moment the site is current only through 2006.

Included in the list is a letter addressing criteria to determine whether a speech and language impairment adversely affects a child's educational performance as well as how a school may respond when speech sessions are missed because of student or provider absence, and an explanation of the requirements governing the continuum of alternative placements. All in one letter. 

Other issues addressed include Medicaid reimbursement; child find for students enrolled in private schools; evaluation for specific learning disability; Part C to Part B transition; and parental consent.

Hopefully, the letters will be available freely on the web soon as there seems a wide-range of interesting issues covered. If anyone has a link to current public domain web documents, please provide it.

Money damages, disabilities, and education

One shoe has dropped as a result of the recent en banc Third Circuit Court decision in A.W. v. The Jersey City Public Schools, 341 F.3d 234 (3d Cir. 2007), which ruled that there is no cause of action under Section 1983 for money damages based on a violation of IDEA and or Section 504.   The full court, aligning itself with other circuit courts and Supreme Court precedent, effectively overruled its 1995 decision in W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995) (unfortunately, the court's posted opinion is incomplete).

Basically, the court in A.W. reasoned that both IDEA and § 504 provide comprehensive remedies.  Because neither statute gives a textual indication that Congress sought to provide those comprehensive remedies in addition to a § 1983 remedy, the Sea Clammers doctrine bars any § 1983 cause of action. 

The problem for educational institutions (but to the relief of plaintiffs) is that the A.W. case addresses only one part of the Matula decision and money damages may still be available directly under § 504

(although probably not under IDEA – in addition to the simple fact that the statute does not say so, see the cases and discussions in Ortega v. Bibb County School District, 397 F.3d 1321 (11th Cir. 2005) among others). 

The court in Matula wrote "plaintiffs may seek monetary damages directly under § 504, as well as the § 1983 claim predicated on § 504."  As such, money damages claims directly under § 504, untouched by A.W., appear to still be viable in the Third Circuit.  On this issue, the Third Circuit is out-of-step with the other circuit courts and it is an issue the Third Circuit, if not the Supreme Court, will likely need to address in the future.

When that day comes, the viability of money damages based on a direct § 504 recovery theory is questionable. Because it involves a complex analysis similar to A.W., based on a cross- and back-tracking comparison of intervening Supreme Court, Third Circuit cases, and various anti-discrimination statutes, I will not give great detail. But in Alexander v. Sandoval, 532 U.S. 275 (2001), the Supreme Court held that private right of action for money damages requires proof of intentional discrimination, casting doubt on Matula’s reasoning, which was based on earlier Supreme Court cases. Indeed, In Pryor v. National Collegiate Athletic Association, 288 F.3d 548 (3d Cir. 2002), (unfortunately the link appears to be dead) the Third Circuit applied the Alexander evidentiary standard.  Recent cases such as Indiana Area School District v. H.H., 428 F. Supp. 2d 361 (W.D. Pa. 2006), show the need for reexamination of the standards for §504 money damages. At a minimum, direct § 504 money damages claims require proof of intentional discrimination or gross negligence.

One shoe has dropped; eventually, the other will, too.