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The Individuals with Disabilities Education Act (IDEA) is a landmark federal statute that protects the rights of children with disabilities to receive a free and appropriate public education. One of the keys to ensuring that a public school district provides an appropriate education is the proper evaluation of the impact of the child’s disability on his/her education. The IDEA requires schools to conduct a range of comprehensive and periodic evaluations for each child who has been identified as having a disability. However, parents don’t always agree with the results of evaluations that a school may conduct. When this happens, the IDEA allows parents, under certain circumstances, to request that the school pay for an “independent educational evaluation” (an “IEE”) with a properly qualified expert not employed by the district.

The parents in this case disagreed with one specific evaluation conducted by the Trumbull Public School District and then requested public funding of seven IEEs. The parents took the position that once any evaluation of their child occurred, the school district, upon request by the parents, was required to pay for any IEE requested regardless of the scope of the original evaluation. If the parents had been successful in their argument, school districts could have been exposed to requests for IEEs which would have required a district to fund all-encompassing, wide-ranging and perhaps unnecessary IEE’s at public expense.

Judge Jeffrey Alker Meyer of the United States District Court, writing one of the only (if not the only) opinions on this issue nationwide agreed with the Trumbull Public School District (Trumbull Board of Education). He determined that a parents’ disagreement with a limited assessment does not entitle the parent to ask that the school district pay for a wide-ranging, all-encompassing IEE. The Court also found that a parent who seeks the benefit of a publicly funded IEE must affirmatively disagree with the school district’s evaluation within two years of the date of that evaluation.

The matter is currently on appeal to the United States Court of Appeals for the Second Circuit.

The IDEA currently requires a parent to “exhaust administrative remedies” before filing a complaint based on another statute, if the parent seeks relief that is available under the IDEA.  In other words, a parent must file an IDEA due process complaint before filing a disability discrimination complaint in federal court under Section 504 or Title II, if the parent seeks relief which can be provided through due process.  In 2017, the U.S. Supreme Court issued its decision in Fry v. Napoleon Comm. Schs., clarifying when the substance of a complaint does or does not require such exhaustion.  Earlier this month, just over two years after the Supreme Court’s decision, the federal district court issued another decision in the Fry saga.

In Fry, the parents of a student with cerebral palsy and an IEP filed Section 504 and Title II disability discrimination claims in federal district court after the board of education denied their request for the use of a service animal in school. The lower courts held that the parents were first required to exhaust the IDEA administrative process because the violations they claimed were broadly “educational in nature.”  In February 2017, however, the Supreme Court reversed those decisions and ruled in favor of the parents, holding that the exhaustion requirement only applies where the “gravamen,” or essence, of a parent’s complaint is the denial of a free and appropriate public education (“FAPE”).  By contrast, exhaustion is not required where the gravamen of a parent’s complaint is the denial of equal access to school facilities, programs, or services as compared to nondisabled peers, otherwise known as “disability discrimination” under statutes such as Section 504 and Title II.  The Supreme Court’s decision was not the end to litigation, however, as the case was ultimately sent back to the lower federal courts for a determination of whether the gravamen of the parents’ complaint was actually the denial of a FAPE.

The latest district court decision issued following remand found that the parents’ request for the use of a service animal was originally considered and rejected by the student’s PPT, and that the parents made a written request for mediation in light of the PPT’s decision.  However, the parents’ request for the use of a service animal was only considered by the student’s PPT because the school district had a practice of convening a PPT meeting any time a student with an IEP requested an accommodation.  Moreover, it was determined that the parents only requested mediation because the school district’s standard form did not provide any other means of disagreeing with the PPT’s denial of the service animal accommodation.  The parents did not, in fact, disagree with the student’s IEP in general.  Rather, the parents only disagreed with the PPT’s denial of an accommodation allegedly necessary for the student to access school facilities, programs, or services similar to her nondisabled peers.

As such, the district court ultimately determined that, despite the PPT’s involvement and the parents’ request for mediation, the gravamen of the parents’ complaint was disability discrimination under Section 504 and Title II, and not the denial of a FAPE.  The parents, therefore, were not required to exhaust their administrative remedies under the IDEA before proceeding with their Section 504 and Title II claims in federal court. 

It is important for schools to understand that some requests for accommodations, including service animal usage in school, can result in a lawsuit being filed against the school district immediately following the denial, since parents and students may not be required to proceed through the usual mediation and due process procedures, even if the student has an IEP.

Attorneys at Berchem Moses PC are available to consult boards of education regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com.

The United States Department of Education recently closed the public comment period for its proposed Title IX regulations, and school boards and administrators must be ready for significant changes in the coming months.  The regulations, while not yet finalized, will replace existing guidance from the Office for Civil Rights regarding in the investigation and remediation of sexual harassment in educational programs or activities.  School boards and administrators should therefore be prepared to revise their sexual harassment policies and procedures to comply with the regulations, which will be no simple task in light of the proposed changes.

School boards and administrators are strongly encouraged to examine the proposed Title IX regulations and related materials in full and consult with attorneys regarding revisions to their policies and procedures.  The following highlights from the regulations, as originally proposed, are offered as a primer in the meantime:

• Defining sexual harassment.  The proposed Title IX regulations will narrow the existing definition of sexual harassment to any of the following:
  1. An employee of [the school board] conditioning the provision of an aid, benefit or service of [the school board] on an individual’s participation in unwelcome conduct (“quid pro quo”);
  2. Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to [the school board’s] education program or activity (“hostile environment”); or
  3. Sexual assault, as defined in existing federal regulations.
• Remember, while a hostile environment typically requires more than one instance of unwelcome conduct, even a single incident of quid pro quo harassment or sexual assault could constitute sexual harassment under the proposed definition.

• The standard of knowledge.  Under the proposed regulations, a school board will need “actual knowledge” of sexual harassment in an educational program or activity in order for its response to be scrutinized.  A school board will have such knowledge if sexual harassment is reported to a K-12 teacher, Title IX coordinator, or official with authority to take corrective action.

• The investigation requirement.  School boards will have to investigate every formal complaint of sexual harassment.  A meaningful response will be required for every known report of sexual harassment, even if a reporter does not want to make a formal complaint.  A school board will violate Title IX if it is “deliberately indifferent” in its response to alleged sexual harassment, which means that the response was “clearly unreasonable” in light of the known circumstances.  By contrast, a school board will not respond with deliberate indifference if it follows its policies and procedures in response to a formal complaint of sexual harassment.

• Grievance Proceedings.  If an investigation of sexual harassment is substantiated, the accused student or respondent will be entitled to a formal or informal hearing wherein the school board must prove that the harassment occurred.  School boards may adopt a stricter “clear and convincing evidence” standard of proof, or keep the existing “preponderance of the evidence” standard if it is also used for other code of conduct violations with the same maximum disciplinary sanctions.  Significantly, the proposed regulations include a lengthy list of rights which must be afforded to complainants and respondents alike.  These rights include, but are not limited to, access to pertinent records, the opportunity to present evidence and examine witnesses, and to consult with an “advisor” of one’s choice.

• Remedies.  School boards must provide appropriate remedies to restore or preserve a complainant’s access to educational programs or activities, regardless of the outcome of any grievance proceedings.  The proposed regulations include a nonexhaustive list of “supportive measures” which may be made available to complainants and respondents at any stage of the process, such as leaves of absence, no-contact orders, changes to class schedules, and counseling.  In cases where remedies or supportive measures are required, school boards must ensure that they are provided on an individualized basis instead of using a “one size fits all” approach.

• Training and recordkeeping.  School boards will have to provide training to Title IX coordinators, investigators, and other decision-makers regarding the definition of sexual harassment and the investigatory and grievance processes.  The proposed regulations will also require school boards to create and maintain records documenting all Title IX sexual harassment investigations, which may be accessible to complainants and respondents.

Attorneys at Berchem Moses PC are available to consult boards of education regarding regular and special education matters, including Title IX investigations, in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com.