due process – SPECIAL EDUCATION LEGAL JOURNEY

FORMAL PROCEDURES FOR INVESTIGATING BULLYING OF STUDENTS WITH DISABILITIES IS SEPARATE FROM AN IEP TEAM’S OBLIGATION TO ADDRESS THE IMPACT OF BULLYING ON FAPE

Bullying happens every single day. Schools have the responsibility to investigate incidents of bullying and discipline students who bully. Students with disabilities are at an increased risk of being bullied. In a recent due process decision, the Office of Administrative Hearings held that bullying of a student with a disability that deprives the student of meaningful educational benefit, it can constitute a denial of a FAPE under the IDEA.

A district may deny a student FAPE by failing to address reported bullying. Parents v. Colton Unified School District (OAH #2017060750) An IEP team should at least discuss the issue, document the conversation, and determine the impact, if any, on a student’s receipt of FAPE. Formal procedures for investigating bullying are separate from the IEP team’s obligations.

Making a determination of whether bullying has denied a student FAPE requires the following analysis:

Whether bullying occurred; and
Whether the bullying resulted in the student not receiving educational benefit.

A determination must be made of whether bullying occurred. The IDEA does not contain a definition for bullying. The California Education Code defines it for the purposes of possible suspension or expulsion. California Education Code Section 48900(r)(1) states:

(1) “Bullying” means any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act, and including one or more acts committed by a pupil or group of pupils as defined in Section 48900.2, 48900.3, or 48900.4, directed toward one or more pupils that has or can be reasonably predicted to have the effect of one or more of the following:

(A) Placing a reasonable pupil or pupils in fear of harm to that pupil’s or those pupils’ person or property.

(B) Causing a reasonable pupil to experience a substantially detrimental effect on his or her physical or mental health.

(D) Causing a reasonable pupil to experience substantial interference with his or her ability to participate in or benefit from the services, activities, or privileges provided by a school.

Once a determination is made as to whether bullying has occurred, a determination must be made as to whether the student has lost any educational benefit. There is no clear rule governing how much of a change in academic performance or behavior is required. A school must be given a reasonable opportunity to prevent or address the bullying. M.L. v. Federal Way School District (9^th Cir. 2005) 394 F.3d 634. A disabled student is deprived of a FAPE when school personnel are deliberately indifferent to or fail to take reasonable steps to prevent bullying that substantially restricts a child with learning disabilities in his or her educational opportunities.

School districts have an obligation to protect all students from bullying. Taking disciplinary action against a student who engages in bullying may not be enough. If the student has disabilities, the IEP team may need to convene to discuss the bullied student’s needs.

If you believe your child is being bullied, do not ignore your concerns. You need to alert school staff so they can conduct an investigation. If your child has an IEP for disabilities, determine if it is necessary to call and IEP team meeting.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

NON-ATTORNEY ADVOCATES MAY NOT REPRESENT ANY PARTY IN A DUE PROCESS HEARING

The Office of Administrative Hearings (OAH) is a quasi-judicial tribunal that hears administrative disputes. OAH is divided into two divisions: General Jurisdiction Division and Special Education Division. OAH’s Special Education Division contracts with the California Department of Education to handle special education due process hearings and mediations.

On September 28, 2017, the California Attorney General submitted Opinion No. 14-101 to the OAH. The Opinion held that neither the IDEA and/or California law authorize any party to a due process hearing to be represented by a person that is not an active member of the California State Bar in due process hearings. The Opinion recognized that the representation of another before a governmental entity has historically be regarded as the “practice of law.” Under the State Bar Act, it is unlawful to practice law in this state unless one is a member of the State Bar of California or is otherwise authorized by statute or court rule to engage in the practice of law.

The Attorney General’s Opinion does not prohibit a party from being accompanied and advised by individuals with special knowledge or training relating to the problems of individuals with exceptional needs. (See CA Education Code Section 56505.) However, these individuals may not represent the legal interests of the party if they are not an attorney.

If you believe you have a claim against your school district that may result in due process, contact Kristin Springer at (925) 551-1041 for a 20 minute free consultation.

IDEA CLAIMS: THE TWO YEAR STATUTE OF LIMITATIONS

The IDEA is a federal law enacted to ensure every child with special needs is afforded a free and appropriate education. Prior to 2004 the IDEA did not contain a statute of limitations. In 2004, Congress reauthorized the IDEA and added a two-year statute of limitations. A statute of limitations is a law which sets out the maximum time that parties have to initiate legal proceedings from the date of the alleged offense.

Parents and school districts are entitled to file due process complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free and appropriate public education of such child. (20 USC Section 1415(b)(6)(A)). The two-year statute of limitations for filing due process applies equally to a parent’s request for an IEE. (Placentia-Yorba Linda Unified School Dist. v. Parents (2012) OAH #2012051153).

Calculating the Two-Year Statute of Limitations

20 USC Section 1415(f)(3)(C) states:

A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.

Since the reauthorization, hearing officers have wrestled with the interpretation of the two-year statute of limitations. In 2017, the 9^th Circuit Court of Appeals held there is no automatic two-year time bar of claims based on the date of the filing of the case. Avila v. Spokane School Dist. 81 (9^th Cir. 2017) 852 F.3d 936. The 9^th Circuit refused to uphold a strict occurrence rule which would calculate the two-year statute of limitations from the date the due process complaint was filed. Instead, they upheld the discovery rule, which requires courts limit claims to the two-year period that precedes the date when a parent or agency knew or should have known about the alleged action that forms the basis of the complaint. Avila. This is a question of fact for the hearing officer.

Exceptions to the Two-Year Statute of Limitations

There are only two narrow exceptions to the two-year statute of limitations. 20 USC Section 1415(D)(i) and (ii) provide the following exceptions:

specific misrepresentations by the local educational agencythat it had resolved the problem forming the basis of the complaint; or
the local educational agency’s withholding of information from the parent that was required under this subchapter to be provided to the parent.

These narrow exceptions require that the LEA’s actions be intentional or flagrant rather than a repetition of an aspect of determining whether a student received a free appropriate public education. Placentia-Yorba Linda Unified School Dist.

Hearing officers have recognized that while an IEP’s implementation is on-going, special education law does not recognize the doctrine of continuing violations as an exemption from the two-year statute of limitations. (Parents v. Hermosa Beach City Elementary School Dist. (2011) OAH# 2011081019).

As you negotiate disputes with your local school district, it is important to keep in mind the two-year statute of limitations. If you don’t, you may lose your right to file a claim for violations under the IDEA as well as other federal and state laws.

If you believe you have a claim against your school district, contact Kristin Springer at (925) 551-1041 to determine whether your claim falls within the statute of limitations.

DURING TIMES OF DISAGREEMENT, CAN A DISTRICT SIT BACK AND FORCE THE PARENTS TO FILE FOR DUE PROCESS?

In most instances where a child is already receiving special education services, the simple answer is no. The Individuals with Disabilities Act (“IDEA”) provides procedural protections to parents and local educational agencies (your school district). One of those procedural protections is the allowance of an impartial due process hearing with respect to the provision of a free and appropriate public education to a student (“FAPE”). Parents and the local educational agency may file for due process to resolve disputes related to the identification, evaluation, or educational placement of a student.

School districts have a mandatory responsibility to file for due process when a disagreement arises with parents of a student receiving special education services. The school district is required to continue to provide the services set out in the student’s IEP while they resolve the remaining disputes. Failure to request due process for a protracted period of time is a serious procedural violation of state law. Porter v. Manhattan Beach Unified School Dist. (C.D.Cal., Dec. 21 2004 (Case No. CV 00-8402 GAF)) 105 LRP 40577.

The school’s responsibility to file for due process also extends to the obligation to have an IEP in place at the beginning of the year. (34 C.F.R. 300.323(a), see also M.M. v. School Dist. Of Greenville County (4^th Cir., 2002) 37 IDELR 183) School districts “cannot excuse their failure to satisfy the IDEA’s procedural requirements by blaming the parents.

Something to consider…. The party who files the administrative complaint has the burden of persuasion by a preponderance of the evidence. (Schaffer v. Weast (2005) 546 U.S. 49) It isn’t always advantageous to file due process when the school district has the obligation to file. Please also understand that a procedural violation alone doesn’t entitle a parent to seek relief from the school district. If you would like more information regarding this issue, contact me at (925) 551-1041 to discuss the facts of your particular case.