Spring Branch Independent School District v. O.W., No. 4:16-CV-2643, 72 IDELR 11 (S.D. Tex. Mar. 29, 2018), merits the attention of impartial hearing officers. The court affirmed the decision of the due process hearing officer against the school district in a case involving a student who transferred from a therapeutic school to public school for fifth grade. The parent provided the public school with a psychiatrist’s letter containing the student’s ADHD diagnosis and a recommendation for Section 504 accommodations, and the mother discussed the student’s oppositional defiant disorder, mood disorder, and other conditions with the principal. By October 1, the student had repeatedly been referred to the school principal for cursing, racial slurs, leaving class, and other misconduct, the school had received records of the student’s past problems, including a report describing him as gifted but with multiple disabilities, and the student’s longtime counselor had contacted the principal expressing concern about the student’s regression and asking if the district was going to undertake a special education evaluation. The student was failing all his substantive classes.
The school refused the parent’s oral request for a special education evaluation at a Section 504 meeting on October 8, but developed a Section 504 plan calling for behavior charting and rewards for good conduct. By January, the student was failing four classes and had received two out of school suspensions (for conduct including hitting a coach and a teacher), three in-school suspensions, numerous early dismissals, and additional referrals to the principal’s office. In mid-January, the district finally referred the student for a special education evaluation and offered immediate placement in an alternate program. The evaluation was completed on February 24 and identified the student as eligible under the emotional disturbance category. An IEP developed on March 11 included provisions addressing the student’s behavior: Teachers were to provide positive reinforcement of good behavior, frequent breaks, private discussions about conduct, and access to cooling off areas. Teachers were also to use a calm style for interactions, minimize verbal interactions, provide physical space, and avoid power struggles. On March. 23 the district provided a placement in an “Adaptive Behavior” program, but despite the language in the IEP, staff there repeatedly used timeouts, applied physical restraints at least 8 times, and isolation 16 times. Police were called at least four times. The student was placed on shortened school days for the last 20 days of the school year, without any deliberation or approval by the IEP team. The parents enrolled the student in a private school for the following year, though they did not notify the school district until August 15.
The court affirmed the hearing officer’s determination that the district violated the child-find obligation, reasoning that the district knew or had reason to suspect a disability and need for special education by October 8 of the student’s fifth grade year but delayed in making the referral until January 15. It further affirmed the ruling that the district failed to implement the IEP as written by using timeouts, restraint, and police intervention rather than the specific behavior techniques called for on the document, and truncated the student’s school day without modifying the IEP. The court found the failure to implement the IEP to be substantial.
The hearing officer awarded the student one year of compensatory education in the form of tuition reimbursement for the child-find violation and IEP implementation failure, and another year of tuition reimbursement for the year the due process hearing remained pending for failure to make free, appropriate public education available before the private placement. Although the court said allowance should be made for the days needed to complete the evaluation and convene the IEP meeting, as well as for the period before accrual of the claim in relation to applicable limitations, it concluded that equity demanded the award of the entire school year’s worth of compensatory education. The court agreed with the hearing officer that the private placement chosen by the parents, Fusion Academy, was appropriate. Although the student did not receive special education services there, he obtained academic benefit from one-on-one instruction and calm interactions with staff in dealing with his behavior. The award for the year following fifth grade was also affirmed. The court rejected the argument that the notice of removal provided by the parents was not adequate, stating that the student’s regression should have provided notice to the school that its program was failing, and that the hearing officer was correct in concluding that return to the public school placement would likely have resulted in physical or emotional harm to the student.
As the opinion notes, the case provides a counterpoint to cases in which a child displays some learning or behavioral problems and the school responds promptly and reasonably with tailored interventions short of an immediate referral for special education evaluation. It is also far different from a case in which there are minor deficiencies in how an IEP is implemented. The case illustrates how hearing officers and courts are compelled to order significant remedies when schools are on ample notice of reasons to suspect disability but do not refer for evaluation and when schools do not pay attention to important behavioral interventions called for in a student’s IEP, but instead respond with physical restraints and police intervention.