The U.S. Supreme Court & Special Education: 2005-2009

1. The U.S. Supreme Court & Special Education: 2005-2009 www.mitchyell@wikispaces.com Mitchell l. Yell, Ph.D. University of South Carolina AntonisKatisyannis, Ed.D. Clemson University

2. Special Education & The Supreme Court • 1975 to 2005 The U.S. Supreme Court heard 8 cases that directly involved students with Disabilities & IDEA • 2005 to 2009 The U.S. Supreme Court heard 5 cases • These 5 cases addressed the procedural due process rights of parents of students with disabilities

3. Due Process Rights • Prior written notice • Parental consent • Assess to educational rights • Independent educational evaluation • The opportunity to present and resolve complaints • Requirements for unilateral placement of students with disabilities • Due process hearings

4. Supreme Court Decisions • Schaeffer v. Weast (2005) • Arlington Central School District v. Murphy (2006) • Winkelmanv. Parma City School District (2007) • Board of Education, City of New York v. Tom F. (2007) • Forest Grove School District v. T.A. (2009)

5. Schaeffer v. Weast (2005) • On November 14, 2005, the U.S. Supreme Court issued a ruling in the case of Schaffer v. Weast Superintendent, Montgomery County Public Schools. • The Court directly addressed the issue of who bears the responsibility of providing the “burden of proof” in administrative due process hearings. • This ruling is highly influential because it deals with the area of procedural safeguards (i.e., due process hearings), one of the cornerstones of the Individuals with Disabilities Education Act (IDEA). • This Court ruling will change current practice across nearly half the United States, in which individual states do not currently have a pre-existing rule regarding the assignment of the burden of proof.

6. Schaeffer v. Weast (2005) • The term burden of proof when used in legal proceedings refers to two related concepts: • the burden of production, and • the burden of persuasion • The party with the burden of production must offer sufficient evidence at the outset of an action to be allowed to proceed. • After the presentation of evidence, the party with the burden of persuasion must have convinced the court of the existence of certain facts in order to prevail.

7. Implications of Schaeffer • If special educators meet the requirements of the Individuals with Disabilities Education Improvement Act by providing an appropriate and meaningful education to students with disabilities, they will be focusing on the most important issue, which is not who bears the burden of persuasion in due process hearings, but rather that they are providing educational opportunities that improve the lives of the students they serve.

8. Arlington v. Murphy (2006) • On June 26, 2006, the U.S. Supreme Court ruled that parents who prevail in due process hearings are not eligible to recover fees for services rendered by expert witnesses in IDEA actions. • Expert witnesses: Individuals who have special knowledge within a specific field which allows the witness to provide an opinion on the meaning of the facts presented). • Typically, expert witnesses have additional education, training, or experience in a particular field that goes beyond the average person which affords them the opportunity to make expert opinions based on a set of facts presented. • Expert witnesses are the only individuals permitted to provide opinions rather than facts while providing testimony. As a result, services rendered by expert witnesses have often played a critical role in many proceedings.

9. Winkelmanv. Parma City School District (2007) • On May 21, 2007, the United States Supreme Court announced its decision in Wilkelmanv. Parma (2007). • In this case, the Court addressed the issue of whether parents are entitled to prosecute claims on their own behalf under the Individuals with Disabilities Education Act. IDEA ensures a “free appropriate public education” (FAPE) for all students with disabilities eligible for special education services.

10. Pro se Representation • A petitioner in federal court has a right to act as his or her own counsel. However, a petitioner has no authority to appear as an attorney for others than himself (the legal term used is “pro se”; pro se means to appear for one's self, a person may not appear on another person's behalf in the other's cause). • In the case of minors (or someone deemed incompetent), these individuals are entitled to trained legal assistance so their rights may be fully protected. • Minors do not have the choice to appear pro se as state laws specifies that they are incapable of determining their own legal actions

11. Unlawful Practice of the Law • The practice of law by a person, typically a nonlawyer, who has not been licensed or admitted to practice in a given jurisdiction • The problems faced by the Winklemans was that the Circuit Court decided that because they were not attorneys they could not practice law by representing their child’s rights • They could not proceed on their child’s behalf because the IDEA did not give them substantive rights as parents to a FAPE for their child

12. The Reasoning • Supreme Court reversed the judgment of the 6th Circuit Court • The IDEA grants parents independent, enforceable rights including procedural and reimbursement rights and also the entitlement to a free appropriate public education • Parents are “parties aggrieved” not only for aspects of the hearing officer’s findings and decision relating to certain procedures and reimbursements, but also in judicial proceedings. Being an aggrieved party entitles parents to represent their children in courts.

13. Implications • Children represented by their parents who sue pro se may not have the best advocates as parents are likely to be emotionally involved and potentially not exercising rational and independent judgment. But that is better for the child than having no advocate at all. • Pro se parents who are not attorneys also impose unusual burdens on courts, and there is a desire to save courts and school   districts from "poorly drafted, inarticulate, or vexatious claims." (Collinsgruv. Palmyra Board of Education, 1998, p. 231).

14. Board of Education, City of New York v. Tom F. (2007) • Facts of the case: Tom F., the father of a child with a disability (Gilbert F.) requested tuition for a private school placement. • IHO-ruled in favor of parents-school’s IEP did not provide FAPE • School paid for Tom’s tuition for 2 years and then developed a new IEP • Gilbert continued to attend the private school • Tom F. again went to a due process hearing for reimbursement • IHO ruled in favor of Tom F. and ordered reimbursement

15. Board of Education v. Tom F. (cont) • School board sued in federal court. • District Court-ruled in favor of school board because Gilbert had not be reenrolled in the public school • 2nd Circuit-vacated the district court decision and remanded the case back to the District Court. The Second Circuit reasoned that IDEA was not intended to require parents to enroll a student in an inappropriate public school program before they were eligible for private school reimbursement.

16. Tom F (Cont) • Supreme Court -With a 4-4 vote (Justice Kennedyrecused himself), the Supreme Court simply affirmed the ruling of the Second Circuit Court of Appeals. Because the tie vote affirms the Second Circuit Court ruling, rather than establishing a national precedent, the decision is only binding in New York, Connecticut and Vermont, the jurisdiction of the Second Circuit • Parents will still be required to show that the district's proposed program was inappropriate and that the private special education program they chose is appropriate, consistent with the established tuition reimbursement remedy authorized by the IDEA and the Supreme Court's decisions in Florence County School District Four v. Shannon Carter, 510 U.S. 7 (1993) and School Committee of Burlington, Mass v. Department of Education, 471 U.S. 359 (1985).

17. Forest Grove School District v. T.A. (2009) • Facts of the case: T.A. attended kindergarten through eighth grade at Forest Grove Public Schools • Teachers observing that T.A. had problems with paying attention and completing his assignments. When T.A. entered high school, his difficulties increased and prompted the mother to visit with a school counselor to discuss school related problems • A school psychologist evaluated the student and concluded that the child did not qualify for services and there was no need for additional testing for learning disabilities or other health impairments (including ADHD).

18. Forest Grove (Cont) • With parental support, the student went through the sophomore year, but problems worsened in his junior year. • Parents discussed different options with the school district, consulted with a specialist who diagnosed T.A. as having ADHD and other related learning disabilities, and upon the specialist recommendations, enrolled T.A. in a structured, residential learning environment at a private academy. • Soon after, parents hired legal counsel, notified the school district of their actions and after a few weeks requested a due process hearing to determine the child’s eligibility under IDEA. • Following the evaluation process, the multidisciplinary team determined that T. A. was not eligible for special education services and declined to develop an IEP.

19. Supreme Court Decision • Question: Is a child eligible for tuition reimbursement even though he was never found eligible for special education services and never received special education services. • According to the Court when a child requires special education services, a school district's failure to propose an IEP of any kind is at least as serious a violation of it's responsibilities under IDEA as a failure to provide an adequate IEP.” • The Court also held that the district violated their child find responsibilities to identify, locate, and evaluate all children with disabilities' to ensure that they receive needed special education services.

20. Supreme Court Decision • The Court ruled in a 6-3 decision that that IDEA authorizes tuition reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school.

21. Forest Grove (Cont) • The Court held that the IDEA authorizes reimbursement for private placement when a public school fails to provide FAPE and the private school placement is appropriate, regardless of the child’s prior enrollment in special education. • IDEA does not impose a categorical bar to reimbursement based on prior enrollment (or state approval of the facility as presented in Carter), but rather IDEA ensures FAPE trough special education and related services designed to meet the child’s unique needs.

22. Supreme Court Decisions • Schaeffer v. Weast (2005) - Pro School • Arlington v. Murphy (2006) - Pro School • Winkelmanv. Parma City (2007) - Pro Parent • Forest Grove v. T.A. (2009) - Pro Parents

23. What Do These Decisions Mean? • Ensure that parents are meaningfully involved in the development of their child’s special education program • Ensure that teachers and administrators understand their responsibilities under the IDEA (child find, evaluation) • Ensure that special education teachers understand how to develop educationally meaningful and legally sound IEPs • Ensure that special education teachers are fluent in research-based special education programs