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In Court for Drew

Below is a summary of events regarding a family's efforts to obtain an education and services for their autism-spectrum child.

Incredible Turn of Events for Our Son Drew:

As a parent, it is extremely frustrating. School officials said Drew was ready for job training and for college. School officials said he was graduating. As Drew's parent, you know that their arguments were absurd. You know the evidence is there.

You make your arguments in a 10 page letter, asking for a new IEP if school officials agree, to mediate if they do not. You had made the same proposal two months earlier in an IEP meeting.

A month later, and quickly approaching graduation, you email a school official. You ask if you are going to get a response to your letter. Two days later, a letter arrives, setting up an IEP after seniors were to graduate. As a parent, your relieved. A legal battle will not be necessary. They saw the light.

What they saw was a way to mislead the parents, setting up an IEP to make the parents think their son would not be graduating, then claiming graduation actually occurred the last day seniors were in class, not the date of graduation. The school system was playing a very serious game of GOTCHA.

The California attorney hired by the school board has begun his work to keep the facts out of the proceedings. Before the administrative hearing, your attorney is told the only thing to be considered in the hearing is whether the credits add up. The school board outspends the parents 2:1 on legal, the school board attorney is really slick, some of his legal graffiti sticks, and the administrative judge says there will be no discussion of if credits were earned, no discussion of FAPE issues, only a discussion of whether the credits put on Drew's records were in the right subjects and present in the right numbers.

At the beginning of the administrative hearing or maybe a couple of days before, there is a surprise, the Administrative Judge will allow some testimony on whether the credits were earned but holds firm that no FAPE issues will be argued. In November, 2004, the Administrative Hearing Judge (ALJ) finds Drew did not graduate.

We appeal the ALJ's rulings to Federal Court, switching legal counsel from an over-worked special needs attorney to two federal appellate attorneys.

The Federal Judge rules Drew's parents did not meet their burden of proof obligation that Drew had not graduated in the original administrative hearing - Drew Graduated. The parents had not met their burden of proof in the administrative hearing. But the Federal Judge said the FAPE issues should have been permitted, and remanded the FAPE issues back to the administrative judge.

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We Now Know:

There was stong evidence that Drew did not earn his credits, it just did not get presented. For instance, there is a transcript of a February 22nd IEP meeting where Drew's teacher says Drew has not written a paragraph the entire school year. That year Polk awarded Drew an English IV credit. That transcript was not part of the original Due Process Hearing transcript or exhibits. There were daily academic logs for more that half of Drew's last two years of school, logs which confirm with any reasonable extrapolation that many of the academic courses fell well short of the hours required of direct instruction for credits to be awarded. The logs were never made an exhibit.

The school district administrators are now aware of evidence mentioned above and other evidence that should clearly demonstrate Drew did not graduate. Yet the School Board continues to spend hundreds of thousands of dollars to keep him out of school. When confronted on the ethical question, the school board authorized another $75,000 of legal expenses for the next 66 days.

For the First Federal Court Order: Click Here

When the evidence was presented in the administrative hearing, the School System was outspending us on legal 2 to 1. The ethics behind their strategy were appalling.

The Good News for Drew in the First Federal Court Order:

All of the FAPE issues were still very much in play. The FAPE issues were remanded back to the Due Process Hearing.

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So what happened next that was so incredible?

While the litigation was underway, we wanted Drew to be able to stay in school. There was a lot of discussion in court over a letter crafted by the District that the parents believed was misleading, exactly when Drew graduated, when the parents filed for Due Process, and if a request for mediation triggered "Stay Put" rights under IDEA. Judge Bucklew, the federal judge for Drew's case, ruled the stay-put rights under IDEA applied. The School District, with their billion dollar budget, appealed the stay-put ruling to Circuit Court. With the appeal still pending, there was a hearing to determine what compensatory education Drew should receive because Drew had missed a year of school.

In the compensatory education hearing in January, 2006, with the graduation concern behind them, the school district no longer argued Drew was ready for college and ready for job training. The school district presented expert witnesses in federal court that argued that Drew would never be able to hold a job and would not succeed on a college campus. The District argued that an additional year of education would not change Drew's outcome. This new argument was to prevent the district from having to provide compensatory education for a year of "stay put" time that was lost.

In the end, after the Federal Judge ruled the School District would have to provide compensatory education for a year lost on a stay-put violation. Ironically, almost immediately thereafter, the Circuit Court ruled (in conflict with another circuit) a request for mediation did not trigger stay-put, so Drew did not have stay-put rights. Taking the matter to the U.S. Supreme Court would settle the matter, but we could not afford the cost or the time. There was an argument under equity that had great merit, but we had to drop it due to the additional cost of litigation and delaying the eventually resolution of the FAPE issues.

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Finally, we present our case on FAPE:

From August 28 to September 1, 2006, we presented our case to the Administrative Law Judge on FAPE. On November 8, 2006, the ALJ ruled:

"226. The Schoo1 Board is obligated to provide personalized instruction with sufficient support services to permit the handicapped student to benefit educationally from that instruction. There is little evidence that any educational benefit was received by A.S. during the 2002—2003 and 2003-2004 school years. Under the facts of this case, the award of a diploma at the conclusion of the student’s school attendance is insufficient in and of itself to constitute educational benefit.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is DETERMINED that the Polk County School District has not met its obligation to provide a free appropriate public education to A.S. for the 2002—2003 and 2003—2004 school years."

For the November 8th, 2006 ALJ Order, Click Here.

Nov. 8th, 2006 Due Process Decision From Administrative Law Judge

It took two years and over $250,000 before my wife and I finally had an opportunity to lay out the facts at a hearing in the summer of 2006. The facts told of what was not happening the last two years of Drew's education. By that time the Polk County School District had spent almost one half million dollars in their efforts to avoid addressing the facts. The district was been presented and a decision by an administrative law judge, Judge William F. Quattlebaum in November, 2006.

From page 65 of the 67 page November 8th, 2006 Order (Click Here for Entire Order):

ORDER

Judge Quattlebaum was the same judge that ruled Drew had earned all of his credits to graduate in our first hearing in 2004. What happened? The evidence, including transcripts of IEP meetings and daily logs of academic work, were not presented in 2004 but were now in evidence. He could not go back and change the outcome of the first hearing, or could he? Note that once the school board new the truth as to the legitimacy of the credits awarded Drew, they could have brought Drew back into the system as requested by Janie and me. Janie and I thought that ethically they would be compelled to do so. Not so.

Our Reaction at the time:

Janie and I greatly appreciated that Judge William F. Quattlebaum confirmed what we believed all along. The facts confirmed Drew received little, if any, educational benefit his last two years of school.

But we were surprised when Judge Quattlebaum chose not to address the compensatory remedies in his order. The judge needed to identify just what it would take to correct the the oppositional behaviors that were reinforced during the last two years of Drew's schooling, and the additional education Drew could have received if the school district had chosen to really seriously consider a diploma option change in 2003 that would have permitted Drew to stay in school another 4 years. Just after Judge Quattlebalm's ruling, we were expecting to address these matters before Judge Bucklew in Federal Court. Then we received a new order from Judge Bucklew on November 21, 2006.

An Order from the Federal Judge (Judge Susan Bucklew):

Just when we were discussing the next step, Judge Bucklew cleared it up for us. On November 21, 2006, Judge Bucklew remanded the case back to the Administrative Law Judge Quattlebaum, saying:

"Therefore, the Court again remands the case to the ALJ to determine the issue of compensatory education, in its entirety, including the appropriate amount of compensatory education and specific educational services that should be awarded to A.S. in order to compensate him for the denial of FAPE during the 2002-2003 and 2003-2004 school years."

How did we feel then?

It was discouraging. Another delay. Little did we know at the time it would represent a 17 month delay. From our standpoint, Greg Scharff, Esq., and the school district administrators seem made a sport out of this process. Greg Scharff, the Board's California attorney, and the board members knew the Board has a billion dollar budget, and another half-million dollar expense was very doable.

Apparently it was worth any amount of money to to the district to demonstrate to all of Polk's ESE parents that Polk will not provide necessary educational services to its students with learning disabilities. And if a parent doesn't agree, the District can and is willing to prove they will litigate the parent into bankruptcy.

How does a 17 month delay occur. Ask a school board attorney that is familiar with the sport. In our case, we immediately filed an appeal in federal court, given my attorney was concerned the Polk County School District would try to appeal the decision in state court, looking for a more friendly venue and creating additional delays to resolve the litigation. Sure enough, that is just what they did. Fortunately they filed in state court the day after we had filed in federal court. Their filing was not without benefit to the school board. It cost my family time and money to have to have the suit pulled out of state court. Time and money is on a school board's side.

Keep in mind, all of this litigation activity was well after the fact that the Polk County School Board had all kinds of evidence before them that not only demonstrated that Drew had not received the ESE services he so desperately needed, but that in fact, contrary to the conclusion of an earlier hearing on the matter, Drew had not earned the credits he was awarded to graduate him. It appears to us that the school board and its administrators had set aside ethics to deal with Drew and his family. Drew was being discriminated against, for both his disability and his father's advocacy efforts.

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A New Hearing and a New Decision:

In late August, 2007 we participated in a five day hearing, again before Judge Quattlebalm, to determine what Drew's compensatory education should be awarded him. On April 28th, 2008 we received the April 24th, 2008 decision. CLICK HERE to get the FINAL ORDER ON COMPENSATORY EDUCATION. In it you will find:

"58. The Respondent failed to provide FAPE to the Petitioner. In this case, there is little evidence that any educational benefit was received by the Petitioner during the 2002-2003 and 2003-2004 school years.

59. The Respondent's failure to provide FAPE was not the accidental result of inadequate educational planning. It is clear that the Respondent was either unable or unwilling to provide the appropriate services to which the Petitioner was entitled.

60. During the 2003-2004 school year, the Respondent's focus was the result of an apparent decision by the Respondent to "graduate" the Petitioner from the school system regardless of whether the appropriate services had been provided.

61. The obvious example ofthe Respondent's determination to move the Petitioner out of the school system was the rejection (with little discussion) of the parents' suggestion that the "regular" diploma track was inappropriate for their child and the simultaneous deletion of goals from the February 2004 IEP towards which there had been no measurable progress.

62. The ultimate result was the award of a "regular" diploma to the Petitioner that had no apparent value. The Petitioner was completely unprepared for transition into an independent adult existence, and it is simply not possible to imagine that the Respondent thought otherwise.

63. An award of compensatory services to the Petitioner is the appropriate remedy. The Respondent must bear the expense of the private compensatory educational services to which the Petitioner is entitled."

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The decision is a win for us, but not really just yet. We will have won when we get Drew back in school getting the education he needs and we have been reimbursed for the legal expense and expert witness fees incurred to get him the education the school district continues to unjustly deny him.

Continuing the litigation for Drew has not been easy, but we will continue on to the end. I am selling an interest I have in a building , the proceeds of which will allow us to vigorously continue the litigation to defend Drew's right to an appropriate education.

Thus far, Polk has been very successful at avoiding the provision of needed services to its disabled students. The District's outcome data for Polk's students with special needs is horrible. It appears to us to be one of the worst in the country. See below!

If you would like to see any additional information, click on the link for The Details. On "The Details" page you will find additional explanations, all of the actual court documents, depositions, and IEP meeting transcripts involved.

Here is our experience.

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Should we have gone to court?

What do you do when:

Your autism-spectrum child is not meeting any of his IEP (Individualized Education Plan) goals, and hasn't been for years; and
the school district takes the position that if they award enough academic credits for your child to graduate the unmet IEP goals are irrelevant in the graduation decision; and
after making arguments regarding whether the academic credits were actually earned, you are told IEP committee can not make the decision regarding the students graduation, it is made at the district or state level; and
the basic daily living skills that have not been learned are not a concern of the school district's transition specialist because the student plans to live at home after graduation; and
the school district's behavior therapist reports that your autism-spectrum child's unwillingness to comply with the teacher's instructions to write is not a behavior. The student is just expressing a preference; and
the school district decides to unilaterally to remove your non-verbal child's three unmet IEP writing goals, justifying it by claiming a minimum passing score on the FCAT proves your child can write; and
the school district is awarding academic credits for English III and English IV when writing has played little or no part in the coursework; and
the school district is awarding academic credits when less than half the required direct instruction (115 days recorded in a log) is provided using instruction methods that should actually require more instruction time; and
under IDEA statues, your child has three additional years of education available to him the school system is denying; and
the school system refuses to discuss a requested mediation of the matter; and
you know these attitudes regarding your child are reflected in your school district's overall performance data for ESE (Exceptional Student Education) students, with this data earning the district a last place performance of all the 67 school districts in the state of Florida; and
you know that the state of Florida ranks well below average nationally.

At some point, would you take a final stand?

First, we wrote a 10 page letter explaining why we thought our son should remain in school. As we had discussed in the last IEP, if the school district agreed with us, we should schedule a new IEP. If they did not agree, the school district should consider the letter a formal request to mediate.
As a response to our letter, the school district's California attorney helped the ESE Director write a letter to set up a new IEP for our son on May 21st, 2004. We were relieved mediation would not be required.
Upon picking Drew up from School on May 13th, 2004, we were told not to bring Drew to school the next day. His teacher had just been told he would be assisting seniors in their graduation practice the next day. Later that day we received an email asking us if Drew was going to participate in the practice for graduation the next day. On May 14th, Drew's teacher called to tell us he had just been told that our son had graduated the day before, 7 days prior to the widely published graduation date of May 20th, and would not be coming back to school.

The school system required us to file for a due process if we were going to keep our son in school. Would you have filed for a due process?

We filed for a due process hearing on May 17th, but the school system filed a motion with the administrative judge saying that Drew had graduated before the due process request, therefore we had no ability to file a post-graduation action under IDEA statues.
Bruce Tonjes, the top administration official called to testify at the administrative hearing, testified he was asked to write an affidavit regarding Drew's credits without being made aware of our 10 page letter contesting the credits and Drew's graduation (plausible deniability?).
Incredibly, the administrative judge for the due process hearing bought the argument that Drew had graduated on May 13th, and he greatly limited what evidence we could offer, and we lost the due process hearing which was only held to discuss the time of the graduation.

There were very good reasons why the administrative judge should not have ruled as he did.

If there is any way to swing it, would you then have gone to Federal Court?

The school district, at this point, had been very successful. Their strategy, to create an earlier graduation date and to ignore the parents' earlier request for mediation, worked. The parents had incurred $15,000 of legal expense and still had not had a chance to discuss the real issues. With a little luck, the parents would bow out before committing at least another $100,000 to go to Federal Court.
We appealed the administrative judge's decision in Federal Court and asked for a preliminary injunction to get Drew back in school until the matter was resolved in court.
The Director of Exceptional Student Education for the school district testifies that Drew is ready for job training and could succeed and thrive in college.
Drew is the student who Vocational Rehabilitation Department of the Florida Department of Education says does not qualify for job training because they don't believe he will be employable, even part time, within the next 18 months. This is the same student that can not talk and would not write for his teacher in virtually any of his subjects. This is the student that has been declared incompetent by two judges and whose parents are his guardians. This is the student that has not been able to meet any of his IEP goals. This is the student whose FCAT scores are no longer considered passing by today's standards. This is now the former student that has either a care provider or a parent with him 24 hours a day. There is no gray here. The Director of ESE either knows it or should know it.
Now, a year after the administrative hearing, Mr. Tonjes in his deposition said he is not sure if he has ever seen the our April 20th, 2004 letter, and indicated any investigation he has conducted into the matter has been slight, if that. Who do you blame, if not him, for not thoroughly investigating the matter. In his affidavit he clearly defines this type of matter to fall within his job responsibilities. Check out his affidavit, and the transcript of his deposition, and see if you agree with this assessment. Mr. Tonjes has just received a major promotion from the new school superintendent.
We won the hearing for the preliminary injunction, but the school system, of course, filed a motion for the court to reconsider the ruling. That runs up the litigation costs for the parents and delays Drew's return to school.

The character of the school board strategy and behavior to exit Drew from the system is not in question. The record shows it is reprehensible. The strategy is not to get at the facts, but it is to make it as expensive as possible for Drew's parents to present the facts for consideration. One would have to assume that at least the majority of the school board members continue to endorse their past actions by continuing to embrace their outside attorney, Greg Scharff, who continues to implement litigation tactics that would not be appreciated by anyone but the most callous observer.

The school board has probably spent $500,000 to date on their litigation, and we have spent approximately $250,000. It is clear that one of the strategies of the school district is to create legal expenses by filing numerous motions to outstrip the parents financial ability to continue. Fortunately, Drew's dad is a commercial real estate broker experiencing the result of a very strong real estate market.

I have made an effort to assemble and place online all of the documents presented at the due process hearing and in federal court. All of the depositions taken recently have also been included. Click The Details to review them.

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This information has been posted by Bill Sammons, a parent of an ESE student in the Polk County School District in Florida.

Contact: sammons@tampabay.rr.com

Phone: (863) 688-3323