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.
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.
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.
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):
"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."
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.
________________________________________________________________________________________
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.
