Wednesday, October 7, 2009

U S Supreme Court Declines Review of Two Special Ed Cases

The United states Supreme Court has declined review of two special education cases. The order denying "certiorari," or review, of the lower court decision may be found on pages 8 and 9 of this link.

In LM, et al v. Capistrano Unified Sch Dist 538 F.3d 1261, 50 IDELR 181 (9th Cir. 8/19/2008), the Ninth Circuit held that the school district violated state law by limiting the time that a psychologist could observe the student's placement to 20 minute increments, the parents were not thereby deprived of a meaningful opportunity to participate in the IEP review process. Therefore FAPE was provided by the district. The Supremes let the Ninth Circuit decision stand.

The other case was Stancourt ex rel Stancourt v. Worthington City Sch Dist 51 IDELR 19 (Ohio Ct App 9/9/2008). In this decision, the Ohio appellate court ruled that the stay put clause did not prohibit a school district from modifying a student's behavior plan while a due process hearing was pending because a behavior plan is not a part of an "educational placement,"where evidence supported that the behavior plan would not have been effective without modification. The Supremes also decided not to hear this case.

First Floor at the Statute of John Marshall in...Image via Wikipedia

Unfortunately for us special ed law junkies, there will be no supreme court action this term. I'm going to go out on a limb though and suggest that there will be a special education decision by the high court next term. What do you think? Am I right?


  1. Can you clarify the grammar in that first case? It seems like there should be a but or a however in there--they violated state law BUT the parents weren't denied participation? Sorry, but I'm confused.

    These must seem like details to the supremes, but they seem pretty crucial, particularly the observation issue. Details like miranda rights are a detail...sigh.

  2. You're right MC,

    I left out a but or however in that sentence. The 9th Circuit found that the district violated state law, but did not dent FAPE. Specifically, the district was held to have allowed the parents meaningful participation despite their procedural error, under state law, in limiting the classroom visitation.

    Thanks for the correction.