Q: May I file a due process complaint against the Iowa school district in which my daughter was enrolled last year? In grades 1-2 she struggled with reading so I asked the school and AEA several times to evaluate her for special education services, and gave them copies of her long-term video EEG reports showing that absence and focal seizures (which are seldom evident to observers) occur during school hours, and explaining that they interfere with her memory and concentration. They told us that because her reading score wasn’t below “proficiency” she didn’t have an “educational disability.” We asked again in 3rd grade when her score fell below proficiency, but they still refused to evaluate her, stating that school personnel hadn't noticed seizure activity. Before the end of the year we moved to another Iowa community across the state. When we gave the new school district and AEA the same medical reports, they immediately evaluated our daughter, found that she has a reading disability and started special education services.
The difference
in our daughter is like night and day. Instead of making self-depreciating
remarks when asked about school, she’s excited to talk about what she’s
learning and says she’s beginning to feel “smart.” While her former teachers talked
about her “poor attitude,” her new teachers talk about how bright she is and
how hard she is working to catch up in math and reading.
We want to
hire a tutor to help her catch up. But we think her previous school district
and AEA should pay this because we don’t think she would have needed the help
if they had provided her with special education services.
A: The IDEA
statute doesn’t prohibit parents from filing a due process complaint against a
former school district for denial of a free appropriate public education
(FAPE). The only restriction is that parents must file their due process
complaint within two years of the date they “knew or should have known” of the
alleged violation, except in limited circumstances when certain equitable
tolling provisions built into the statute apply.
However, Iowa
is subject to precedent-setting decisions of the Eighth Circuit Federal Court
of Appeals, which has held that parents forfeit the right to challenge educational
services (or the lack there of), unless the parent requests a due process
hearing before the student changes school districts. See Thompson by & Through Buckhanon
v. Board of the Special Sch. Dist. No. 1, 144 F.3d 574, 579 (8th Cir. 1998). In
2010, the Eighth Circuit confirmed that a student must "request a due
process hearing before transferring from a delinquent district if the
student wishes to preserve his or her right to challenge the educational
services provided by that district." See C.N. v. Willmar Pub. Sch., Indep.
Sch. Dist. No. 347, 591
F.3d 624, 631, n.6 (8th Cir. 2010).
The majority
of decisions in cases involving this question by federal district courts outside
the Eighth Circuit have concluded that when a student leaves a school district
alleged to have failed to provide a FAPE, the district remains subject
to a due process complaint whether or not the parent filed it before
transferring the child to a new district. For example, in a Pennsylvania case in
which the parents did not file the due process complaint until after
transferring their child to a different school district, when the school
district argued that point, the court found that in order to ensure that the
student receives a FAPE, compensatory education must be available for a student who has moved from the school district after he has already been deprived of a FAPE, and further explained that otherwise "a school district could simply stop providing required services to a student with the underlying motive of inducing this student to move from the district, thus removing any future obligation under IDEA which the district may owe to the student. Such a result would frustrate the purposes of IDEA in that a student would be denied his right to a FAPE. Surely, Congress, in creating and ensuring a disabled student's right to public education, would not allow a school district to suspend the educational rights of a disabled child without a remedy." See Neshaminy Sch. Dist. v. Karla B. ex rel. Blake B., No. 96-3865, 1997 U.S.
Dist. LEXIS 3849, at *13-18 (E.D. Pa. Mar. 20, 1997).
Returning to the Iowa
and other states covered by the Eighth Circuit, in the above-mentioned C.N. case, the
parent filed a due process complaint after transferring her daughter, C.N., who
had autism, from a public school at which the child’s special education teacher
used seclusion and restraint procedures contained in C.N.'s BIP, The parent
alleged that the teacher used those procedures improperly and excessively, and mistreated
C.N., including yelling and shouting at her, demeaning and belittling her, pulling
her hair, making her sit at a "thinking desk" and either hold a
physical posture for a specified time or suffer restraint or seclusion, and
once denied C.N. use of the restroom, causing an accident. A state
investigation had previously found that the teacher had violated a number of
C.N.’s rights as a child with a disability and had maltreated her by denying her
access to the restroom. Despite these allegations and findings, the Eighth
Circuit concluded that the parent’s due process complaint failed as a matter of
law because she did not file it until after transferring her daughter out of
the school district.
After reading
this, you may think the the Eighth Circuit “got it wrong,” and wonder if it might
modify its position. While this seems unlikely absent a decision of the U.S.
Supreme Court that would require such a change, it is worth noting that in his
written concurrence with the decision, one of the judges indicated that that the
court might consider an exception if the facts of a case demonstrated that the continued
enrollment of the child while a parent filed a due process complaint before
transferring the child would likely would result in physical harm or serious
emotional harm to the child.
