Tuesday, September 17, 2013

Rob Garda on Third Circuit's Recent Disability Misidentification Case

Rob Garda offers the following:

The Third Circuit recently held that a student who is not an eligible “child with a disability” cannot seek redress under the IDEA for misplacement in special education.  S.H. v. Lower Merion School District, 2013 WL 4752015 (May 23 2013).  LaJuana Davis summarized the facts and the holding of the S.H. case on this blog here.  The key holding - that the plain language of the IDEA permits only a “child with a disability” to bring claims under the statute – does not hold up under scrutiny.  The Court relied on the general introductory language of Section 1415(a), requiring that states establish procedures to protect “children with disabilities,” to conclude all the remaining specific procedural safeguards in Section 1415 apply only to eligible children.  But in identifying who may bring a due process claim, the IDEA allows “any party to present a complaint with respect to any matter relating to the identification, evaluation or educational placement of the child . . .”  20 U.S.C. 1415(b)(6) (emphasis mine).  The Third Circuit’s presumption that the introductory language of subsection (a) limits the specific procedural rights listed under subsection (b) is wrong because many of the subsection (b) rights distinguish between “child with disabilities” and simply “child.”  For example, only a “child with disability” may inspect records, 1415(b)(1), but any “child” is entitled to notice when the school proposes to initiate an identification or evaluation.  1415(b)(3). Many procedural rights are granted to children that are not eligible and the right to file for due process is one of them.  Further, the mediation and due process subsections make no mention of being procedures available to only eligible children.  1415(e) and (f).  While the Third Circuit purports to apply the plain language of the IDEA, it apparently ignores that “any party” may contest “any matter” relating to the evaluation and placement of a child, which is exactly what S.H. did in the case.

The Third Circuit’s conclusion that IDEA eligibility is a jurisdictional prerequisite to bringing a due process claim also ignores a long line of cases permitting students to contest eligibility determinations.  Courts and hearing officers are often asked to determine whether evaluation procedures were followed in eligibility determinations or whether the substantive eligibility determinations were correct.  For articles discussing the eligibility cases see here and here.  Many of these courts and hearing officers conclude that the child is not eligible under the IDEA, but none of them question the child’s right to contest eligibility in a due process hearing. 

Maybe a jurisdictional line can be drawn between parents contesting denial of eligibility, as occurs in most cases, and misplacement into special education, as happened in this case.  But the Third Circuit did not draw such a line, nor should it.  As counsel for S.H. pointed out, the IDEA is equally concerned with non-placement and misplacement into special education, particularly for minority students.


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Thanks to LaJuana for the case description and Rob for the commentary. One thing that occurred to me regarding the holding about non-eligible kids not having any rights under IDEA: I think it takes the wind out of the sails of the exhaustion defenses that are frequently raised in cases where both the school and the parents are taking the position that the kid is not eligible under IDEA. I’ve seen cases of that type where the school argues that the parents should have taken the IDEA eligibility denial up through due process even when the parents are not asserting IDEA rights but only sec. 504 and ADA rights. In other words, if both parties admit – as in S.H. – that the kid is not IDEA-eligible, then he or she has no rights under IDEA and by definition 1415(l) does not require exhaustion because no remedy is available for any relief under IDEA.

Posted by: Mark Weber | Sep 17, 2013 8:06:29 AM

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