Friday, May 12, 2017

Special Education Law 101 - Part III #FAPE

This is another post in our series which is an introduction to special education law.  In the previous posts in this series we have looked at the sources of special education law and discussed the critical concept of FAPE.  Today we look at some important decisions by U. S. Courts of Appeal taking FAPE in some interesting directions:

In Deal v. Hamilton County 392 F.3d 840, 42 IDELR 109 (6th Cir. 1//16/04), the Sixth Circuit held that where the school district had already predetermined the student’s program and services before the IEP Team meeting, the parents were denied the opportunity to meaningfully participate in the IEP process.  Accordingly, the district denied FAPE for the student.   

 In Shore Regional High Sch. Bd. of Educ. v. P.S. 381 F.3d 194, 41 IDELR 234 (3d Cir. 8/30/04), the Third Circuit held that a school district’s failure to stop bullying may constitute a denial of FAPE.  Despite repeated complaints by the parents the bullying continued; the student became depressed and the school district developed an IEP.  The harassment continued and the student attempted suicide.  The Third Circuit agreed with the hearing officer that the unabated harassment and bullying made it impossible for the student to receive FAPE. (See our recent series on Bullying for a more detailed discussion.)

  In Lillbask ex rel Mauclaire v. State of Connecticut Dept. of Educ.  397 F.3d 77, 42 IDELR 230 (2d Cir. 2/2/05), the Second Circuit ruled that an IDEA hearing officer has the authority to review IEP safety concerns.  The court provided an expansive interpretation of the jurisdiction of the hearing officer, ruling that Congress intended the hearing officer to have authority over any subject matter that could involve a denial of or interference with a student’s

 In CF by RF & GF v New York City Dept of Educ 746 F.3d 68, 62 IDELR 281 (2d Cir 3/4/14) The Second Circuit held that a procedural violation is only actionable as a denial of FAPE under IDEA if it results in a loss of educational opportunity for the student or it seriously impairs the parent’s participation in the IEP process. However, in LO ex rel KT v NYC Dept of Educ 822 F.3d 95, 67 IDELR 225 (2d Cir 5/20/16) the Second Circuit clarified that the cumulative effect of multiple procedural violations (even if harmless themselves) constituted a denial of FAPE as in this case.

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