Thursday, February 13, 2014

Autistic child's mom wants cameras in special needs classes

Autistic child's mom wants cameras in special needs classes



CLEVELAND -- Tara Heidinger wants cameras in all special needs classrooms in Ohio. She started this campaign when her son, Corey, came home with bruises on his arm.
"He said the teacher was mean to me," Heidinger said.
She says her son is autistic and the school believed he made it up. There was no proof of abuse, so that's when this mom decided cameras should be in Ohio special needs classrooms.
"I want more eyes and ears in these classes," says Heidinger.
She hopes legislation will be introduced in Ohio soon. She has a Facebook page and supporters all over the country and world.
Not everyone agrees.
The Ohio Education Association said this:
"Incidents of abuse are abhorrent, but rare. Current school district policies guard against such incidents and provide the means to correct any neglectful or abusive practices. The ramifications of mandating cameras in the classroom pose greater issues for student privacy than merely seeking to eliminate abuse."

Tuesday, February 11, 2014

Restraints, Seclusions Target Students With Autism, New Report Shows | Connecticut Health Investigative Team

Restraints, Seclusions Target Students With Autism, New Report Shows | Connecticut Health Investigative Team



Children with autism were the most frequently subjected to restraint or seclusion in Connecticut schools in the 2012-13 school year, according to a new state report that tallied more than 33,000 incidents of physical restraint or seclusion in public schools and private special education programs.
The report from the state Department of Education shows that autism was the primary disability among special education students subject to “emergency” restraint or seclusion, with 40.4 percent of all such incidents involving a child with autism. Autism also accounted for nearly half of all cases in which children were put in seclusion as part of their individualized education plans, or IEPs.
Restraint graphic
Jordan Harrison Graphic
The report shows a slight decline from the previous year in the overall number of students restrained or secluded, and a drop in reports of injuries – from 840 in 2011-12, to 378 last year. But the number of serious injuries rose from eight to 10, and more than 900 reported episodes of seclusion or restraint lasted more than an hour.
“This is just so disheartening,” said Shannon Knall of Simsbury, policy chair of the Connecticut chapter of Autism Speaks, an advocacy group. She blamed the high incidence of children being restrained and secluded on “a tremendous lack of training” of teachers and school staff in alternative interventions.
“The numbers of children with autism are skyrocketing, and I think our school districts are just overwhelmed,” she said. “The people on the front lines need training and tools” in alternative behavior management. “If you only give someone a hammer and a nail, that’s all they’re going to use.”
This is the second year that the state Department of Education has compiled data on restraints and seclusions submitted by schools. While the education department has no specific strategy to reduce those practices, the report says that the “continued examination” of the data will inform “technical assistance and trainings” that promote the use of positive interventions and reduce reliance on restraint and seclusion.
The release of the report comes as a coalition of eight state agencies, including the Office of the Child Advocate and Office of Protection and Advocacy for Persons with Disabilities, begins a public education campaign to reduce the unnecessary use of restraints and seclusion in schools. The education department is a partner in that effort.
Sarah Eagan, the state’s child advocate, said the new report illustrates that the use of physical restraint and seclusion is still common in schools, especially among young children with developmental disabilities. About half of all the 2012-13 incidents involved special education students in grades five and below, with about 180 incidents involving children in kindergarten and pre-K.
“What this highlights is that ultimately, the practices are widespread,” Eagan said. “What we have to remember is that the use of restraints and seclusion [for behavior management] has no research to support it. We’re really going to have to support schools and teachers with resources and tools so they can find a better way” to de-escalate problem behaviors.
A seclusion room for children with emotional/behavioral problems.
A seclusion room for children with emotional/behavioral problems.
Connecticut state law allows for the use of restraints and seclusion in emergencies that pose imminent danger to a student or others. It also allows for special education students to be put in seclusion if their IEPs provide for such measures – a provision that some child advocates say is overly broad.
Schools reported that the majority of restraints and seclusions – 71 percent -- were in response to emergency risk of harm, with the remaining 7,741 seclusions done in accordance with an IEP. In many cases, individual children were restrained and secluded multiple times throughout the year. Forty students were physically restrained or secluded more than 100 times -- and 11 of them were subject to those practices 300 to 900 times during the year, the report shows.
Eagan noted that the U.S. Department of Education issued a “resource document” to schools in 2012 that discourages the use of physical restraints or seclusion except in extreme situations where a child’s behavior poses imminent danger of serious harm to self or others. But there is no federal law restricting the practices.
Data in the new state report shows the majority of restraints and seclusions lasted 20 minutes or less. However, 30 emergency restraints and 119 seclusions lasted more than two hours.
Farm Hill Elementary School
Farm Hill Elementary School
Reporting by individual school districts and programs varied widely, with some smaller programs reporting hundreds of incidents, and some large districts reporting a handful. Hartford schools reported no incidents, Bridgeport reported 28, and New Haven reported 54.
Education department officials said they were following up with districts that reported very low numbers.
Eagan said that, on the flip side, some programs may be diligently reporting “every time they put hands on a student,” boosting their numbers.
Among districts reporting the highest number of restraints and seclusions were: East Hartford, with 1,644 cases involving 165 special education students; Darien, with 895 incidents involving 10 students; Vernon, with 357 incidents involving 24 students; and Windsor, with 298 incidents involving 19 students.
High numbers were reported by many state-approved private special education programs and regional education centers, including: CREC, with 3,860 cases involving 89 students; Benhaven School in Wallingford, which serves children with autism, with 2,162 incidents involving 30 students; and the Connecticut Center for Child Development in Milford, which also specializes in autism, with 3,183 cases involving 35 students.
The co-chairs of the legislature’s Committee on Children, Sen. Dante Bartolomeo and Rep. Diana Urban, both expressed concerns about the unnecessary use of restraints and seclusion at a recent forum on the issue convened by the Office of the Child Advocate and the Office of Protection and Advocacy. Last year, leaders of those two agencies called for an end to the use of restraints and seclusion as behavioral interventions in schools, as they investigated the controversial use of “scream rooms” at the Farm Hill Elementary School in Middletown.
The report indicates that black and Hispanic children are more likely to be restrained and secluded than white students. Fifty-seven percent of students who were restrained or secluded were members of minority groups, while the majority of special education students statewide are white.
Read the full report below.

Monday, February 10, 2014

Restraints, seclusions target Connecticut students with autism

Restraints, seclusions target Connecticut students with autism



Children with autism were the most frequently subjected to restraint or seclusion in Connecticut schools in the 2012-13 school year, according to a new state report that tallied more than 33,000 incidents of physical restraint or seclusion in public schools and private special education programs.
The report from the state Department of Education shows that autism was the primary disability among special education students subject to “emergency” restraint or seclusion, with 40.4 percent of all such incidents involving a child with autism. Autism also accounted for nearly half of all cases in which children were put in seclusion as part of their individualized education plans, or IEPs.
The report shows a slight decline from the previous year in the overall number of students restrained or secluded, and a drop in reports of injuries — from 840 in 2011-12 to 378 last year. But the number of serious injuries rose from eight to 10, and more than 900 reported episodes of seclusion or restraint lasted more than an hour.
“This is just so disheartening,” said Shannon Knall of Simsbury, policy chair of the Connecticut chapter of Autism Speaks, an advocacy group. She blamed the high incidence of children being restrained and secluded on “a tremendous lack of training” of teachers and school staff in alternative interventions.
“The numbers of children with autism are skyrocketing, and I think our school districts are just overwhelmed,” she said. “The people on the front lines need training and tools” in alternative behavior management. “If you only give someone a hammer and a nail, that’s all they’re going to use.”
This is the second year that the state Department of Education has compiled data on restraints and seclusions submitted by schools. While the education department has no specific strategy to reduce those practices, the report says that the “continued examination” of the data will inform “technical assistance and trainings” that promote the use of positive interventions and reduce reliance on restraint and seclusion.
The release of the report comes as a coalition of eight state agencies, including the Office of the Child Advocate and Office of Protection and Advocacy for Persons with Disabilities, begins a public education campaign to reduce the unnecessary use of restraints and seclusion in schools. The Department of Education is a partner in that effort.
Sarah Eagan, the state’s child advocate, said the new report illustrates that the use of physical restraint and seclusion is still common in schools, especially among young children with developmental disabilities. About half of all the 2012-13 incidents involved special education students in grades five and below, with about 180 incidents involving children in kindergarten and pre-K.
“What this highlights is that ultimately, the practices are widespread,” Eagan said. “What we have to remember is that the use of restraints and seclusion (for behavior management) has no research to support it. We’re really going to have to support schools and teachers with resources and tools so they can find a better way” to de-escalate problem behaviors.
Connecticut state law allows for the use of restraints and seclusion in emergencies that pose imminent danger to a student or others. It also allows for special education students to be put in seclusion if their IEPs provide for such measures — a provision that some child advocates say is overly broad.
Schools reported that the majority of restraints and seclusions — 71 percent — were in response to emergency risk of harm, with the remaining 7,741 seclusions done in accordance with an IEP. In many cases, individual children were restrained and secluded multiple times throughout the year. Forty students were physically restrained or secluded more than 100 times — and 11 of them were subject to those practices 300 to 900 times during the year, the report shows.
Eagan noted that the U.S. Department of Education issued a “resource document” to schools in 2012 that discourages the use of physical restraints or seclusion except in extreme situations where a child’s behavior poses imminent danger of serious harm to self or others. But there is no federal law restricting the practices.
Data in the new state report shows the majority of restraints and seclusions lasted 20 minutes or less. However, 30 emergency restraints and 119 seclusions lasted more than two hours.
Reporting by individual school districts and programs varied widely, with some smaller programs reporting hundreds of incidents, and some large districts reporting a handful. Hartford schools reported no incidents, Bridgeport reported 28, and New Haven reported 54.
Education department officials said they were following up with districts that reported very low numbers.
Eagan said that, on the flip side, some programs may be diligently reporting “every time they put hands on a student,” boosting their numbers.
Among districts reporting the highest number of restraints and seclusions were: East Hartford, with 1,644 cases involving 165 special education students; Darien, with 895 incidents involving 10 students; Vernon, with 357 incidents involving 24 students; and Windsor, with 298 incidents involving 19 students.
High numbers were reported by many state-approved private special education programs and regional education centers, including: CREC, with 3,860 cases involving 89 students; Benhaven School in Wallingford, which serves children with autism, with 2,162 incidents involving 30 students; and the Connecticut Center for Child Development in Milford, which also specializes in autism, with 3,183 cases involving 35 students.
The co-chairs of the legislature’s Committee on Children, Sen. Dante Bartolomeo and Rep. Diana Urban, both expressed concerns about the unnecessary use of restraints and seclusion at a recent forum on the issue convened by the Office of the Child Advocate and the Office of Protection and Advocacy. Last year, leaders of those two agencies called for an end to the use of restraints and seclusion as behavioral interventions in schools, as they investigated the controversial use of “scream rooms” at the Farm Hill Elementary School in Middletown. The report indicates that black and Hispanic children are more likely to be restrained and secluded than white students. Fifty-seven percent of students who were restrained or secluded were members of minority groups, while the majority of special education students statewide are white.
This story was reported under a partnership with the Connecticut Health I-Team (www.c-hit.org).

Tuesday, February 4, 2014

Lee's Summit R-7 School District: Findings in the audit of the Lee's Summit R-VII School District

Lee's Summit R-7 School District: Findings in the audit of the Lee's Summit R-VII School District



Findings in the audit
of the Lee's Summit R-VII School District


The district did not competitively bid several purchases
in accordance with district administrative procedure and state law, including
travel services ($29,172), installation of technology equipment ($21,866), and
printing ($20,357), and did not always document in writing single feasible
source
justifications. District administrative procedures
require competitive, advertised, sealed bids for construction of facilities
costing $15,000 and above and require bids for individual non-construction
purchases projected to cost $5,000 or more and quotes for non-construction
purchases under
$5,000. The district does not always document the
evaluation and selection of architectural/construction management services for
non-bond issue projects as required by board policy and state law. The district
has not periodically solicited proposals for some professional services and has
used the same vendors for several years. The district has used the same auditor
for 15 years, diversity initiative provider for 6 years, and primary legal counsel
for 4 years without periodically soliciting proposals.

The district does not have written agreements with the
entities providing legal services or the communications audit, and district
officials did not sign an education services contract for the 2012-2013 school
year until March 28, 2013. The district pays $25,000 to the Lee's Summit
Economic
Development Council for membership, but the council's
website indicates maximum membership benefits are available for $10,000, and it
is unclear what additional benefits the district receives for the additional
contribution.

The district subsidizes a significant portion of the
operating expenses of the Lee's Summit Educational Foundation, a legally
separate not-for-profit corporation, and has not entered into a written
agreement with the foundation. The foundation's employees, its Director, and
Administrative Assistant are housed in the district's main administration
building free of charge, and the district pays their salaries and fringe
benefits and other foundation expenses even though they spend only 10 percent
of their time working on district activities.

The district did not adequately monitor contract
payments, and a contractor overcharged the district $4,095 in the 2012-2013
school year. The contractor subsequently reimbursed the district. The district
does not competitively bid significant changes to construction projects and
does not always timely approve construction change orders. The district paid a $25,340
change order for a paving project at Lee's Summit North High School that was
not included in the vendor's original bid proposal, and the
Board did not approve and district officials did not sign
the change order until at least a week after the work was complete. The
district paid a $60,616 change order for carpet removal and replacement at
Meadow Lane Elementary that was not included in the vendor's original bid
proposal and approved by the Board. The district does not monitor purchasing
card transaction limits, and limits for some individuals are excessive. The
district has over 900 purchasing cards assigned to various personnel with
monthly limits ranging from $1,000 to $600,000.

The district has historically paid a vehicle allowance to
several employees who use their personal vehicles to conduct official business
within the district, but, other than for the superintendent, the district does
not include vehicle allowances in employee contracts, and the Board does not
approve
the allowances as additional compensation. The district
has not performed an analysis to ensure the vehicle allowances meet the needs
of these positions or are reasonable. Using the IRS-allowed mileage rate, the superintendent
would need to travel over 26,000 business-related miles to earn the $15,000
vehicle allowance he would have been paid for the year ended June 30, 2014.
This number of miles is considerably more than the 4,284 business-related miles
he drove his district-provided vehicle during
calendar year 2012. The Board indicated in its response
to our recommendation that it will no longer provide the superintendent with
the vehicle allowance.

The district purchased approximately 51 acres of land in
December 2012 for $775,000 to be used for the district's fourth middle school,
but it did not obtain an independent appraisal, so it has less assurance it
paid the fair value of the property.



The district's superintendent at June 30, 2013, was Dr.
David McGehee. His annual compensation was $258,660, which included a deferred compensation
allowance of $19,716, family medical insurance of $15,377, and association
expenses of $12,000. He was also provided a district vehicle for business and
personal use. The superintendent's compensation is established by the Board.

Monday, February 3, 2014

J.D. v. Atlanta Public Schools: A Lesser Spirit Would Have Been Crushed Long Ago" by Pamela Wright & Peter Wright

J.D. v. Atlanta Public Schools: A Lesser Spirit Would Have Been Crushed Long Ago" by Pamela Wright & Peter Wright

Court Upholds Award of Compensatory Education in Draper v. Atlanta Public Schools: "Poor Man's Burlington Remedy" by Steven Wyner, Esq. - Wrightslaw.com

Court Upholds Award of Compensatory Education in Draper v. Atlanta Public Schools: "Poor Man's Burlington Remedy" by Steven Wyner, Esq. - Wrightslaw.com



ourt Upholds Award of Compensatory Education in Draper v. Atlanta:
"Poor Man's Burlington Remedy"

by Steven Wyner, Esq. & Marcy J. K. Tiffany, Esq.
On March 6, 2008, the Court of Appeals unanimously upheld the decision of the District Court in favor of our client in Jarron Draper v. Atlanta Independent School System (11th Cir. 2008).
Jarron DraperIn 2007, the District Court had ordered the Atlanta Independent School System to pay Jarron's tuition at a private special education school for four years, or until he graduated with a regular high school diploma, as prospective compensatory education for their persistent failure to educate him.

The Atlanta Independent School System and Jarron appealed to the U. S. Court of Appeals for the Eleventh Circuit to resolve different issues.
Prospective Compensatory Education in a Non-Public School
The U.S. Court of Appeals for the Eleventh Circuit approved the District Court's award of compensatory education requiring the School System to fund prospective educational services provided by a private school. The Court specifically rejected the notion that the student had to prove that the public school system was incapable of providing the compensatory education.
The Court relied on the Supreme Court decisions in Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 105 S.Ct. 1996 (1985) and Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16, 114 S.Ct. 361, 366 (1993), which held that school districts are required to reimburse parents for the costs of private placements in nonpublic schools when the public school failed to provide an appropriate education.
IDEA Does Not Provide Wealthier Parents with Greater Benefits Than Poorer Parents
Relying on these decisions, the Court reasoned that the District Court had the authority to require a public school to pay the cost of prospective compensatory education that would be provided by a private school.

The Court held that:

"The argument of the School System would provide those wealthier parents greater benefits under the Act than poorer parents. We do not read the Act as requiring compensatory awards of prospective education to be inferior to awards of reimbursement. The Act does not relegate families who lack the resources to place their children unilaterally in private schools to shouldering the burden of proving that the public school cannot adequately educate their child before those parents can obtain a placement in a private school. The Act instead empowers the district court to use broad discretion to fashion appropriate relief."

"Poor Man's Burlington Remedy" for Families That Cannot Afford Private School Tuition
The 11th Circuit fashioned a "poor man's Burlington remedy" for families that cannot afford to unilaterally remove their child from a public school and pay the cost of educating a child in a private school after the public school failed to provide a FAPE, while also incurring the expense of a due process hearing and subsequent litigation before they can recover the cost of tuition for the private placement.
Significance of Decision in Draper
Negotiating for Quality Compensatory Education Services
This decision should help special needs families and their counsel in negotiating settlements that provide quality educational remediation when their child has been denied a free appropriate public education (FAPE).

When the school system fails to provide FAPE, the family can and should ask for compensatory education from a non public agency or school.
Public schools often offer to provide compensatory education in the form of supplemental educational services provided by their staff. Since the public school failed to provide FAPE previously, compensatory educational services provided in the future (prospectively) by school district staff is generally an ineffective remedy. The same teachers who previously failed to educate the child would be responsible for remediating their past failures.
Compensatory Education Requires More
School officials are fond of interpreting Board of Ed. of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. (1982) as requiring that they provide the educational equivalent of a Chevrolet and not a Cadillac.
While the Supreme Court decision in Rowley requires school districts to provide special needs students with a "basic floor of opportunity" that provides "some educational benefit," the 11th Circuit held that compensatory awards must do more, and "should place children in the position that they would have been in but for the violation of the Act." Jarron Draper v. Atlanta Independent School System (11th Cir. 2008)
Simple Themes: Teaching a Child to Read
Simple themes win cases. In Jarron's case, the themes included the following: the school system failed to appropriately evaluate him, misdiagnosed him as mentally retarded when he had dyslexia, and failed to teach him to read.

If schools don't teach children the basic skills of reading, writing and math, these children will not have an opportunity to become productive, self sufficient members of society, as envisioned by the IDEA.
When you read the decisions from the U. S. District Court and the U. S. Court of Appeals for the Eleventh Circuit, you see this theme repeated over and over - that Jarron's reading skills were at the 3rd grade level, year after year, until he finally left school.
Resources: Draper v. Atlanta Independent School System
"A Lesser Spirit Would Have Been Crushed Long Ago" is the "inside story" of Jarron Draper's case. When the Judge issued a favorable decision in 2007, Jarron was 20 years old, stocking shelves at Target and working as a security guard. He couldn't read, earn a high school diploma, or fulfill his dream of attending college.

In A Lesser Spirit, you'll learn about the battles his family fought, how school employees viewed their responsibilities to Jarron, and who stepped up to the plate to represent him in the due process hearing. You'll learn about some legal issues - burden of proof, statute of limitations, and remedies for the failure to provide a child with a free appropriate education. You'll meet the dedicated and talented attorneys who also stepped up to the plate to help Jarron and his family when their case went to federal court.


Legal

Complaint in Jarron Draper v. Atlanta Public Schools (03/01/07)

Jarron Draper v. Atlanta Independent School District (N.D. GA 2007) - The U. S. District Court finds, "Based upon a preponderance of the evidence, the Court concludes that APS failed to provide J.D. with a FAPE for the 2002-03,2003-04, and 2004-05 school years. APS failed to timely assess J.D. in the 2002-03 school year making it impossible for APS to design a proper IEP to meet J.D.'s unique needs." The Court ordered the school system to pay for four years of compensatory education at a private special education school.(03/20/07)

Jarron Draper v. Atlanta Independent School System (11th Cir. 2008) - The U. S. Court of Appeals for the Eleventh Circuit unanimously upheld the decision of the District Court and ordered Atlanta Public Schools to pay Jarron's tuition for four years at a private special education school as compensatory education for their persistent failure or refusal to educate him. (03/06/08) 
News

Atlanta school tuition case is ‘tip of iceberg’ - Dyslexic student awarded $38K toward education after being placed in special education classes in Atlanta Public Schools - Jones Day attorney David M. Monde, who represented Jarron Draper as co-counsel with Wyner & Tiffany, suggested that Jarron’s case is “the tip of the iceberg … given this kid’s needs are not particularly unique. There are an awful lot of other Jarrons out there in the system who just don’t get the help they need.” (Daily Report, 04/03/07)
Jones Day Obtains Pro Bono Eleventh Circuit Win for Special Education Student - Jones Day represented Jarron Draper, against the Atlanta Public Schools (APS) in an appeal of last year's order from U.S. District Court Judge Shoob that APS pay up to $156,000 in future private school tuition, plus transportation costs, because of APS' multiple violations of federal law. The Firm worked with California-based Wyner & Tiffany, a nationally-recognized firm in the area of special education law. (Jones Day, 03/08) 
Family Says School Misdiagnosed Boy As "Retarded" from www.wsbtv.com (includes link to video)

Atlanta Schools Told to Pay up to $136,600 For Private Tuition: Student's Dyslexia was Misdiagnosed by Kristina Torrcis - A federal judge has ordered Atlanta Public Schools to pay for a former student misdiagnosed as mentally disabled to go to private school to get his high school diploma.
The student, Jarron Draper, now 20, has been out of school since June, stocking shelves at Target and working full time as a security guard while he and his family fought for an education that he hopes will get him into college. (Atlanta Journal-Constitution, 03/23/07) 

Alert! Civil Rights Case: Discrimination & Retaliation - Wrightslaw.com

Alert! Civil Rights Case: Discrimination & Retaliation - Wrightslaw.com



Violation of Civil Rights: Discrimination Under Section 504
In Jarron Draper's civil rights case, he "asserts that he suffers from injuries as a result of his educational deprivations that cannot be addressed by any amount of compensatory education" and is requesting damages under Section 504 of the Rehabilitation Act.

On March 31, 2008, the U. S. District Court of Georgia issued a decisionthat denied the motion by the Atlanta Independent School District (“APS”) to dismiss Jarron’s civil rights claims that APS discriminated against him and retaliated against him and his family. In Jarron’s civil rights Complaint, he asserted that:
  • APS incorrectly assessed Jarron as mentally retarded in fourth grade
  • APS placed him in a functional program for the mildly intellectually delayed (“M.I.D.")
  • APS failed to reassess him for over five years as required by law, and
  • after learning that Jarron has dyslexia, APS moved him from the M.I.D. program into a 10th grade regular ed program with no support or remediation, which caused him to fail
In this decision, the District Court held:

"In addition to being denied appropriate educational services, J.D. also alleges that he suffers from stigmatization as a result of being improperly labeled 'mentally retarded' throughout most of his educational career.There is little doubt that the harm suffered by J.D. exceeded a mere denial of FAPE (emphasis added) ... the cumulative impact ... supports a reasonable inference that defendants may have exercisedbad faith or gross misjudgment (emphasis added) in denying J.D. access to a free and appropriate education" in violation of Section 504 of the Rehabilitation Act.
 

Read decision

Violation of Civil Rights: Retaliation Against Jarron and his Family 
The court also refused to dismiss the retaliation claims, explaining that:

"The Rehabilitation Act's anti-retaliation regulation provides that "[n]o recipient ... shall intimidate, threaten, coerce, or discriminate against any individual for the purposes of interfering with any right or privilege secured by [the Act], or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing ..." 34 C.F.R. § 100.7(e)

Specifically discussing the retaliation claim, the court held that "a causal link is supported by plaintiff’s allegation that ‘[w]hen J.D. and his aunt challenged his placement in the M.I.D. program, ‘Faustina Haynes made [it] clear that he would always be M.I.D. and would never graduate from high school.’”

The Court concluded that "plaintiff's and his family's requests for reassessment and their resort to administrative remedies triggered retaliatory conduct appears plausible."
Exhaustion of Administrative Remedies

According to Wyner and Tiffany, "APS had moved to dismiss the 504 claims on various grounds, including failure to exhaust and statute of limitations. 

"With respect to exhaustion, the court held that the due process request mentioned the 504 claims, including the retaliation claim. Although the the administrative decision did not expressly rule on those claims, the decision does include relevant factual findings that go beyond what was necessary to find a denial of FAPE. The court further held that because of the comprehensive remedies received in the due process case, further exhaustion was excused as futile."


Statute of Limitations

"The court also denied the motion to dismiss on the grounds of the statute of limitations. APS argued that because the 504 claims had not been brought within two years of when they accrued, they were barred by the statute of limitations."

"The court agreed with plaintiffs that the statute of limitations on the civil rights claims did not begin to run until the student was 18 years old. In any case, the statute was equitably stayed under federal law while the Jarron's family exhausted their claims under IDEA."


Court Rejected Claims Based on Section 1983

"Although the court rejected various claims based on section 1983 (joining the growing number of courts that have rejected a 1983 claim premised on a violation of the IDEA), this case provides substantial support to plaintiffs who attempt to pursue civil rights claims under Section 504 related to underlying violations of the IDEA."

Filing Due Process under IDEA if Civil Rights Claims by Wyner and Tiffany
According to Wyner and Tiffany, lead counsel in Jarron's cases, "The court’s analysis contains some very important guidance for plaintiffs whofile for due process for a denial of FAPE under the Individuals with Disabilities Act (IDEA), but believe they may also have civil rights claims under Section 504 after exhausting.

The Court found that "Plaintiffs due process hearing was not limited to whether J.D. was denied a FAPE ... [the] due process complaint cited Section 504, ADA, and state law grounds for relief ... specifically mentioning retaliation and defendants' 'willful disregard' of J.D.'s educational rights."

"Even though hearing officers will refuse to rule on the civil rights claims on the ground that they do not have jurisdiction to decide such claims, it is important to include these claims in the due process request. It is also important to introduce evidence relevant to these claimsduring the due process hearing, to the extent that the hearing officer will allow it."

We asked Marcy Tiffany of Wyner and Tiffany what will happen next?
"The next step will be to engage in discovery, including depositions, and ultimately a jury trial. Along the way there will probably be some summary judgment motions and, of course, there is always the possibility of settlement."

We will keep you posted on new developments in this unique case.

Jarron Draper v. Atlanta Public Schools: Background &  Decisions
On March 20, 2007, the U. S. District Court of Georgia ordered the Atlanta Independent School System to pay Jarron Draper's tuition at a private special education school for four years, or until he graduated with a diploma from high school, as prospective compensatory education for their persistent failure to educate him.

The Judge ruled that 
"Compensatory awards should compensate, and this means that they must do more than provide ‘some benefit’ as required by ordinary IEPs ...Read decision

The District Court held that: 


"Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student ...

"Compensatory awards should compensate, and this means that they must do more than provide ‘some benefit’ as required by ordinary IEPs ... compensatory education is necessary to preserve a handicapped child's right to a free education."
Appeal

The Atlanta Independent School System and Jarron appealed to the U.S. Court of Appeals for the Eleventh Circuit to resolve different legal issues.  On March 6, 2008, the Court of Appeals unanimously upheld the decision of the District Court in Jarron Draper v. Atlanta Independent School System (11th Cir. 2008).

The Court of Appeals unanimously upheld the District Court's award of compensatory education that required the school system to pay prospective educational services provided by a private school. (11th Cir. 2008). The Court specifically rejected the notion that the student had to prove that the public school system was incapable of providing the compensatory education. Read decision.

Relying on decisions from the U.S. Supreme Court in Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 105 S. Ct. 1996 (1985) andFlorence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 114 S. Ct. (1993), the Court of Appeals affirmed that the District Court had the authority to require a public school to pay the cost ofprospective compensatory education that would be provided by a private school.

"Poor Man's Burlington Remedy"

Read about the significane of Jarron's IDEA case in Poor Man's BurlingtonRemedy by Stephen Wyner & Marcy Tiffany. 

"A Lesser Spirit Would Have Been Crushed Years Ago"

To learn more about Jarron, his family, and their struggles, read 
A Lesser Spirit Would Have Been Crushed Years Ago by Pamela Wright and Peter Wright.