Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Thursday, December 5, 2013

Weber, IDEA Class Actions

Professor Mark Weber just published on SSRN another excellent article. This one addresses IDEA class actions. The abstract provides:

Wal-Mart v. Dukes overturned the certification of a class of a million and a half female employees alleging sex discrimination in Wal-Mart’s salary and promotion decisions. The Supreme Court ruled that the case did not satisfy the requirement that a class have a common question of law or fact, and said that the remedy sought was not the type of relief available under the portion of the class action rule permitting mandatory class actions. Over the last two years, courts have struggled with how to apply the ruling, especially how to apply it beyond its immediate context of employment discrimination litigation. 

In two prominent cases under the Individuals with Disabilities Education Act (IDEA), the federal courts of appeals have displayed remarkably different attitudes about class actions after Wal-Mart. This article will discuss these two leading cases, describe additional post-Wal-Mart class action decisions in IDEA and analogous contexts, then consider how Wal-Mart will affect the litigation decisions of advocates trying to address systemic violations of IDEA, and the courts’ likely reactions. 

Analysis of Wal-Mart and the cases decided in its wake suggests that group litigation to enforce IDEA will continue to be viable, but also that the litigation will change. Plaintiffs bringing IDEA class actions will likely attempt to distinguish Wal-Mart as a case preoccupied with interpreting underlying employment discrimination law. They will frame their cases as challenges to specifically defined policies and practices, and they will probably propose smaller, more tightly circumscribed classes or subclasses. They will also be likely to pursue non-class action approaches to addressing systemic violations of the law, bringing individual actions for broad relief, asking for group administrative remedies, and seeking action by governmental entities with the power to sue to enforce the IDEA rights. 

Much has been written about the Wal-Mart and its impact on class action procedure and the enforcement of substantive law. This Article seeks to contribute to the discussion by analyzing the case’s application to a field in which class action litigation has been a prominent means of enforcing important statutory rights, and by determining how litigants and courts are likely to respond.

This important paper can be downloaded  without charge here. 

Mitchell H. Rubinstein

December 5, 2013 in Special Education Law | Permalink | Comments (0)

Saturday, September 29, 2012

2d Cir Upholds New York's Ban on Subversive Techniques In Special Education

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Bryant v. NYS Education Dep't., ___F.3d___(2d Cir. Aug. 20, 2012).  Download Bryant

Subversive techniques are a form of punishment designed to induce appropriate behavior. They are very controversial, to say the least, and not used in most main stream programs. New York has taken the lead and outlawed them altogether. 

In this decision, the 2d Circuit upholds the New York regulation which ban it. 

Mitchell H. Rubinstein

September 29, 2012 in Special Education Law | Permalink | Comments (1)

Monday, September 24, 2012

5th Circuit Holds District Did Not Violate IDEA By Removing Student From Regular Education Class

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J.H. v. Fort Bend Indep. Sch. Dist., No. 11-20718 (5th Cir. July 26, 2012), is an interesting special education decision. The 5th Circuit upheld a district court’s determination that a Texas district complied with the Individuals with Disabilities Education Act when it placed a disabled student in special education science and social studies classes, after he struggled in general education classes for these subjects. J.H.’s parents objected to the placement, but his teachers and independent evaluators testified that J.H. was unable to grasp the concepts being taught in general education classes, leading the panel to conclude that he did not gain an educational benefit from the classes.

Mitchell H. Rubinstein

 

September 24, 2012 in Special Education Law | Permalink | Comments (0)

Sunday, September 23, 2012

9th Circuit Holds District Violated IDEA By Not Providing IEP Notwithstanding Parents Lack of Cooperation

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Anchorage Sch. Dist. v. M.P., No. 09-189 (9th Cir. July 19, 2012), is an interesting IDEA case. The 9th Circuit held that a school district failed to provide a special education student with a free appropriate public education as required by the Individuals with Disabilities Education Act (IDEA), when the district failed to update the student’s individualized educational plan annually, concluding that the Parents’ alleged lack of cooperation did not excuse the district from its procedural duty to do so.

Mitchell H. Rubinstein

September 23, 2012 in Special Education Law | Permalink | Comments (0)

Tuesday, August 28, 2012

3rd Circuit holds that N.J. District did not violate IDEA when student’s IEP did not provide for interaction with non-disabled peers

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L.G. & E.G. ex rel. E.G. v. Fair Lawn Bd. of Educ., ___F.3d____(3d Cir. June 28, 2012), is an interesting special education case. The 3rd Circuit held that the Districtdid not violate the least restrictive environment (LRE) requirement of the Individuals with Disabilities Education Act (IDEA) when it developed an individualized education plan (IEP) that placed a disabled student in a class with other students with the same disability, and did not provide for interaction with non-disabled peers. The Third Circuit panel agreed with the district court that the IDEA does not require inclusion of students with disabilities in interactions with non-disabled students if the child would not benefit from a less restrictive environment or gain from being around peers modeling appropriate behaviors. 

Mitchell H. Rubinstein

August 28, 2012 in Special Education Law | Permalink | Comments (0)

Sunday, August 19, 2012

School district ordered to reimburse parents for total attorneys’ fees awarded, despite only partial success on IDEA claim

E.S. & M.S. ex rel. B.S. v. Katonah-Lewisboro Sch. Dist., ___F.3d___(2d Cir. July 6, 2012), is an interesting case. The Second Circuit affirmed a New York federal district court’s decision not to reduce the amount of attorneys’ fees awarded to the parents to correspond to the partial tuition reimbursement awarded for an inadequate individualized education plan (IEP) designed by the Katonah-Lewisboro School District.The Second Circuit also determined that the district court did not abuse its discretion when it reduced the hourly billing rates used in the calculation of that award to be commensurate with rates used in similar IDEA cases.

Mitchell H. Rubinstein

 

August 19, 2012 in Special Education Law | Permalink | Comments (0)

Thursday, July 5, 2012

New York May Amend Special Education Law To Allow Consideration of Family Circumstances

Albany Bill Would Add Family to Special Education Factors is an important July 2, 2012 article from the NY Times. States are free to supplement the federal IDEA with more protections. This New York Bill, which was passed by the state legislature and is awaiting the Governors signature, would require that “home life and family background” of special education students be taken into consideration when public school officials are deciding whether to place a child in a public school or pay for private schooling.

The article points out that several religious groups suppport this Bill because it may make it easier to get placed in a religious school.

Mitchell H. Rubinstein

July 5, 2012 in Special Education Law | Permalink | Comments (2)

Thursday, June 28, 2012

DC Circuit Holds Mapping of Cochlear Implants is not a ”Related Service”

Petit v. United States Dep’t of Educ., ___F.3d___ (D.C. Cir. Apr. 13, 2012). This is an important special education law issue.

Mitchell H. Rubinstein

June 28, 2012 in Special Education Law | Permalink | Comments (1)

Monday, April 16, 2012

Kentucky DOE drafting regulations to limit use of restraint and seclusion

 Associated Press (AP) reports that Kentucky education officials are are acting to limit the use of restraint and seclusion on public school students after citing two schools for violating the rights of three disabled students who were subjected to the practices. In all three cases, the schools were found to have violated the students’ right to a free, appropriate public education under the Individuals with Disabilities Education Act. All have been ordered to follow a state-imposed plan to remedy the situation, including providing specially-designed instruction for the affected students. Failure could result in loss of federal and state funding.

Source: Bowling Green Daily News, 1/20/12, By AP

April 16, 2012 in Special Education Law | Permalink | Comments (0)

Thursday, March 29, 2012

6th Circuit holds officials, board members entitled to qualified immunity from equal protection claim in peer racial harassment suit

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Williams v. Port Huron Sch. Dist., ___F.3d____ (6th Cir. Jan. 9, 2012), is an interesting decision. The Sixth Circuit, in a 2-1 split, has ruled that individual school administrators and school board members are entitled to qualified immunity from a suit brought by a group of African-American students’ parents alleging that the defendants violated the students’ equal protection rights by acting with deliberate indifference to student-on-student racial harassment. The panel’s majority concluded that the students failed to establish a violation of their constitutional rights based on the school administrators’ deliberate indifference to the harassment because they could not show that the administrators’ response “to the harassment or lack thereof [was] clearly unreasonable in light of the known circumstances.”

The majority also found that the individual school board members enjoyed qualified immunity from the suit “because they had no duty to act as individuals.” Specifically, under Michigan law, the board’s duties are imposed on the entire board, rather than on individual members.

Mitchell H. Rubinstein

 

March 29, 2012 in Special Education Law | Permalink | Comments (0)

Sunday, February 26, 2012

Under California Law, Financially Responsible School District is that of Resident Parent

Divorce presents interesting legal issues concerning the responsibility for education and "who pays". The 9 th Circuit recently affirmed in part and reversed in part a lower court judgment that under California law, the state agency responsible for funding a special education student’s education at an out-of-state residential treatment facility is the school district in which the student’s parent, as defined by California Education Code section 56028, resides. Download Orange County Dept. of Educ. v. CA Dept. of Educ. (9th Cir. 2011)

Mitchell H. Rubinstein

February 26, 2012 in Special Education Law | Permalink | Comments (0)

Sunday, February 19, 2012

Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools

Office of Civil Rights Issues Q and A Guide on ADA Amendents with respect to students with disabilities, here.

Mitchell H. Rubinstein

February 19, 2012 in Discrimination Law, Education Law, Special Education Law | Permalink | Comments (0)

Thursday, February 9, 2012

3d Circuit Holds That Parents Are Not Responsible To Repay School District For Private Placement

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J.E. v. Boyertown Area Sch. Dist., ____F.3d_____(3d Cir. Nov. 21, 2011), is an interesting case which discusses the responsbilies of Districts to pay for a private placement as well as the IDEA's stay put provision. I bring it to your attention, however, for another reason. It highlights a rare situation where the District seeks reimbursement from the parent for costs it paid. Ultimately, the 3rd Circuit declined to address the merits of its request that the parents to reimburse it for tuition and transportation costs it has paid because the District failed to request “reimbursement in the District Court, and it points to no statute or rule authorizing us to consider this question for the first time on appeal.”

Mitchell H. Rubinstein

February 9, 2012 in Special Education Law | Permalink | Comments (0)

Monday, January 30, 2012

Parent's Obstructionist Tactics Excuse DOE Procedural IDEA Violations

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French v. Board of Education, ___F.3d___(2d Cir. Nov. 3, 2011), is an interesting IDEA case. The issue was whether the student was entitled to compensatory education. Compensatory education involves services past age 21 and it requires a gross IDEA violation. Because of the parent's obstructionist tactics in refusing to cooperate, the procedural violations by the DOE were found to have not been "gross." As the court explained:

In our view, the District Court did not err in finding that the primary fault for the gap in Amy’s education lies with her father and not with the District.  As discussed above, French repeatedly rescheduled meetings and refused to allow special education teachers sent by the District to meet with Amy, thereby delaying the development and implementation of the District’s IEPs.  He refused to participate in CSE meetings or to recognize IEPs drafted throughout 1998 and 1999 because he insisted that the District conduct a comprehensive evaluation of Amy—an evaluation French repeatedly obstructed when the District later sought to conduct it.  Further, although the June 23, 1999 IEP wasdeclared invalid by the DoE, it was only one of several IEPs developed by the CSE that were in effectduring the period between 1996 and 2003.6  If French had availed himself of those IEPs, Amy would not have been deprived of the opportunity for a FAPE.  It is clear from the record that French, by engaging in the obstructionist tactics discussed above,substantially prevented the District from implementing properly-developed IEPs that it was ready and willing to implement, and from developing revised IEPs that could have assuaged his concerns

Mitchell H. Rubinstein

 

January 30, 2012 in Special Education Law | Permalink | Comments (2)

Wednesday, December 28, 2011

IDEA's Exhaustion Requirement Is Not Jurisdictional

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Payne v. Peninsula Sch. Dist.
, ___F.3d___ (9th Cir. Jul. 29, 2011), is an interesting special education case. The 9th Circuit, sitting en banc held that the Individuals with Disabilities Education Act’s (IDEA) exhaustion of administrative remedies requirement is not jurisdictional and, instead, is an affirmative defense that must raised by a school district or is waived.

The majority also ruled that IDEA’s exhaustion requirement only applies when the relief sought by a plaintiff is available under IDEA. It concluded that non-IDEA claims that are not seeking relief under IDEA are not subject to the exhaustion requirement.  Therefore, the court held, “although the district court properly dismissed Payne’s IDEA-based § 1983 claim, it should not have dismissed her non-IDEA claims on exhaustion grounds.”

Mitchell H. Rubinstein

 

December 28, 2011 in Special Education Law | Permalink | Comments (0)

Thursday, December 15, 2011

Commissioner of Education Does Not Have Jurisdiction Over Special Ed Cases

Appeal of Student With A Disability, No. 16, 286 (Aug. 17, 2011), is an interesting case. It stands for the proposition that in New York, the Commissioner of Education does not have jurisdiction in special education cases. Rather, an appeal must be filed before an Impartial Hearing Officer or IHO.

Mitchell H. Rubinstein

December 15, 2011 in Special Education Law | Permalink | Comments (0)

Wednesday, October 5, 2011

First Circuit holds parents stated valid IDEA tuition reimbursement claim against Massachusetts school district despite move

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E.D. v. Newburyport Pub. Sch., Nos. 10-1241/10-1251 (1st Cir. Aug. 19, 2011), is an interesting case. The First Circuit holds that the parents’ claim under the Individuals with Disabilities Education Act (IDEA) seeking reimbursement for the previous year’s private school tuition was not rendered moot because the parents moved out of the school district after filing suit. 

Mitchell H. Rubinstein

October 5, 2011 in Special Education Law | Permalink | Comments (1)

Monday, August 15, 2011

Ninth Circuit denies parents tuition reimbursement under IDEA because student was enrolled in private school for non-educational reasons

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Forest Grove Sch. Dist. v. T.A., No. 10-35022 (9th Cir. Apr. 27, 2011), is an interesting case. T

he Ninth Circuit, in a 2-1 split, ruled that the parents of a student with ADHD who unilaterally placed him in a private school are not entitled to tuition reimbursement under the Individuals with Disabilities Education Act (IDEA) because the parents placed the student in private school for reasons unrelated to his disabilities. The majority concluded that the district court had not abused its discretion in finding sufficient evidence in the record to support a factual determination that the parents enrolled the student  in the private school solely because of his drug abuse and behavioral problems.

 

 

 

Mitchell H. Rubinstein

August 15, 2011 in Special Education Law | Permalink | Comments (0)

Thursday, August 11, 2011

4th Circuit Finds Home Placement Appropriate In Autism Case

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Sumter County Sch. Dist. 17 v. Heffernan, No. 09-1921 (4th Cir. April 27, 2011), is an important decision. The Fourth Circuit held 2-1 that a South Carolina district court did not err in finding that a school district had failed to provide a disabled student with a Free Appropriate Public Education (FAPE) for the 2005-06 school year, and that the home placement provided by the parents was appropriate.

Regarding the appropriateness of the parents’ home-bound placement, the panel decided that, while more detailed evidence of the social skills aspects of the program “would have been preferable,” and the parents’ evidence about the placement itself was “thin,” the panel could not conclude that the district court clearly erred by finding the placement appropriate.  ”[T]he evidence established that T.H. was receiving intensive ABA therapy, the kind of therapy that the District through its IEPs had concluded was necessary to provide T.H. with an appropriate education, and that T.H. was responding well to the program.  Under these circumstances, we believe the evidence was sufficient, if barely , to support the district court’s conclusion.”

 

August 11, 2011 in Special Education Law | Permalink | Comments (0)

Thursday, July 7, 2011

Parents who unilaterally placed student in private school not entitled to tuition reimbursement under IDEA

S.H. v. New York City Dep’t of Educ., ____F.Supp. 2d___ (S.D. N.Y. Feb. 18, 2011), is an interesting case. The SDNY held that the parents of a special education student who was denied a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA), were not entitled to tuition reimbursement under IDEA for unilateral placement of the student in a private residential school because that placement was not appropriate. While conceding that a parent’s failure to meet the mainstreaming requirement of IDEA in unilaterally placing their child  is not fatal to parental reimbursement, the court determined that it is a factor in considering the appropriateness of the parent’s choice.

In this case, the parent was unable to satify prong two under the Burlington line of case (that the private placement is appropriate) even though it established prong one (a FAPE was not provided).

Mitchell H. Rubinstein

July 7, 2011 in Special Education Law | Permalink | Comments (0)