Education Malpractice?

  [I wrote most of this blog last spring, but held off completing it until after the Eighth Circuit Court of Appeals issued its decision in Baker v. Bentonsville.]

Last spring I had a flood of calls from Iowa parents asking if they could sue a school district, area education agency, or an employee of either for “education malpractice.” The short answer is probably not because the courts have refused to recognize a cause of action for education malpractice. 

Malpractice is a tort (a civil wrong) based on reasonableness and fault. Under tort law, an individual who has suffered because of the improper conduct of another person or entity may sue for money damages. The purpose of tort law is to balance a plaintiff's claim to protection from harm against the defendant's freedom of action. Malpractice focuses on the duty owed to the recipient of the professional service and whether that duty has been breached, causing injury. See DeMitchell, T., King, S., & DeMitchell, TA. 2022. Educational Malpractice: Is it a tort whose time has come? 32 U. Fla. J.L. & Pub. Pol'y 253, 262.

Educational malpractice complaints are generally brought under the theory of negligence and focus on the reasonableness of the conduct of school officials in providing the basic functions of teaching, supervising, placing, and testing students in relation to academic performance.  

Between 1982 and 2023, Iowa’s state and federal courts and the Eighth Circuit Court of Appeals have issued 66 decisions involving educational malpractice claims. I have briefly summarized four of them below. 

1986 Moore v. Vanderloo, 386 N.W.2d 108, 113-15 (Iowa 1986). 

In the Moore decision, the Federal District Court for the Northern District of Iowa recognized three categories of educational malpractice. 

1. Basic academic instruction or misrepresentation of the level of academic performance,
2. Placing or failing to place a student in a specific educational setting, 
3. Supervision of student performance. 

In denying relief to the plaintiffs, the court gave five policy reasons for its refusal to make any of these categories actionable:

1. the absence of an adequate standard of care, 
2. uncertainty in determining damages,
3. the burden placed on schools by the potential flood of litigation that would probably result, 
4. the deference given to the educational system to carry out its internal operations, and 
5. the general reluctance of courts to interfere in an area regulated by legislative standards.

The court also posited that educational malpractice claims "would force the courts blatantly to interfere with the internal operations and daily workings of an educational institution" which would be contrary to academic freedom and the autonomy of schools. 

2001 Sain v. Cedar Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 121 (Iowa 2001). 

In Sain, the Iowa Supreme Court dismissed the educational malpractice claims of a former Cedar Rapids Community School District student who was being recruited to play Division I college basketball. He filed suit against the District after losing his scholarship to play basketball for a major college when it turned out that one of the courses he took on the advice of his high school guidance counselor had not been accepted by the NCAA Clearinghouse. The student filed an action claiming that the guidance counselor breached a duty to provide competent academic advice concerning the student’s eligibility to participate in Division I sports as a freshman. In finding against the student, the court held that the school district had no duty to provide a list of courses for approval to the NCAA.

2020 Richardson v. Omaha Sch. Dist., 957 F.3d 869, 872 (8th Cir. 2020)

The Eighth Circuit Court of Appeals denied relief to the parents of a child with disabilities who claimed that the school had engaged in educational malpractice in violation of the ADA and § 504 when it failed to ensure that their child was not bullied. In finding against the parents, the court stated that Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the ADA, 42 U.S.C. § 12131-12165, do not create general tort liability for educational malpractice. 

The court explained that when alleged ADA and § 504 violations are based on educational services for disabled children, the plaintiff must prove that school officials acted in bad faith or with gross misjudgment," and further explained:

In order to establish bad faith or gross misjudgment, a plaintiff must show that the defendant's conduct departed substantially from accepted professional judgment, practice, or standards so as to demonstrate that the persons responsible actually did not base the decision on such a judgment. Bad faith or gross misjudgment requires more than "mere non-compliance with the applicable federal statutes." The non-compliance "must deviate so substantially from accepted professional judgment, practice, or standards   as to demonstrate that the defendant acted with wrongful intent." 

2023 Baker v. Bentonville Sch. Dist., 75 F.4th 810, 815-16 (8th Cir. 2023)

A young child with impaired visual acuity had several playground accidents (i.e., tripping on a concrete slab, colliding with the foot of a child playing on the monkey bars, etc.). The school implemented a § 504 Plan with safety provisions and no further accidents occurred.  A year later, after the child was diagnosed with epilepsy, her parents filed a lawsuit against the school district claiming the district had committed educational malpractice in violating Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.  

As in the case above the Eighth Circuit said that neither the ADA nor § 504 create general tort liability for educational malpractice and further stated that in the context of children with disabilities, either bad faith or gross misjudgment must be demonstrated before there is a viable claim for a § 504 violation. Explaining that bad faith or gross misjudgment requires more than mere non-compliance with a rule; the non-compliance must deviate so substantially as to demonstrate that the defendant acted with wrongful intent. It concluded, “This rule reflects a proper balance between the rights of handicapped children, the responsibilities of state educational officials, and the competence of courts to make judgments in technical fields.”

The Instructional Methods Blues

This week a parent called me to ask if it is true that the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.), does not require schools to provide instruction that is better suited to addressing their child’s learning needs because schools are only obligated to provide instruction is reasonably calculated to provide their child an educational benefit in light of the child's circumstances. 

The parent explained that he and a university reading expert had just attended his son's IEP meeting. They had presented a report of testing which documented that if the reading program currently used for his son’s specially designed instruction (SDI) were changed to a different reading program, this would more rapidly close the discrepancy between his son’s reading rate and comprehension skills and those of his non-disabled peers. Reading from his meeting notes, the parent said that after their presentation, the other IEP team members were silent and looked toward the AEA consultant who was chairing the meeting. The consultant replied that although the child would probably learn to read faster with better comprehension if the school changed to the recommended reading program, the school didn’t need to make the change because the child’s reading goal aim line is trending upward (albeit very slowly) and this means the child is already receiving “some benefit.” When the parent and university reading expert responded that changing reading programs would allow the child to meet his goal faster, the AEA consultant said: This doesn't matter. All the school district is required to do is provide him with 'some benefit.' This was proven last year in the Kass case.

I moaned inwardly and began explaining the “Kass case.”

On August 21, 2020, Charles and Lisa Kass, filed a due process complaint with the Iowa Department of Education. They claimed, among other things, that the school district and AEA had denied their son, BK, a free appropriate education (FAPE) because the method of reading instruction used was not reasonably calculated to enable him to learn to read. See 30 D.o.E. App. 032. At the due process hearing, the parents and their expert witness made the case that two other reading programs would have been a better choice for BK. Id.

After the due process hearing, Administrative Law Judge David Lindgren of the Iowa Department of Inspections and Appeals issued his decision finding against the parents. Among other things, he wrote that the issue was not whether there were better methods of reading instruction for BK, but whether the school district's choice of methods was reasonably calculated to provide him with a FAPE under the circumstances. Id. He wrote that a school district may use any educational methodology that enables a student with a disability to make progress appropriate in light of the child's circumstances. Id. The ALJ further stated that the IDEA does not require a school district to provide a special education student with the best education or services available and wrote that: "[n]either the parents' preference for a different methodology nor evidence that the student would make greater progress with a different technique will make the District's program inadequate." Id.

The parents appealed ALJ Lindgren’s decision to the Federal District Court for the Northern District of Iowa, which upheld the ALJ’s decision. See Kass ex rel. Kass v. Western Dubuque Community School District. 

The parents appealed the federal district court's decision to the Eighth Circuit Court of Appeals on December 5, 2022, and it was argued last week. The case number and title are #22-3506, Charles Kass  v.  W. Dubuque Comm. School Dist. When the court’s decision is published, we will learn whether the Eighth Circuit thinks “we don’t have to” is a good enough reason under the facts of this case for refusing to change a child’s reading program to one that would more effectively enable the child to master the skills needed to meet his reading goal.

Weeping, the parent told me that he couldn’t understand why the special and general education teachers weren’t interested in being more successful with his child. He noted: "If someone told me a simple way to do my job faster and more successfully, I’d be excited." I told him that as a former teacher, I didn't understand it either. I thought the best thing about teaching was finding an effective way to reach a student whose progress was delayed by disability challenges. I recalled that each time a new approach “worked” and a child made a leap of progress, I felt “over the moon.”

I explained that at the take-home message from the “Kass case” should be that it does NOT prove that the IDEA requires school districts and AEAs to limit their instruction to the type or amount that allows a child to make just enough progress to escape a legal finding that they denied the child a FAPE.  Moreover, I explained that although neither state or federal laws require school districts and AEAs to employ the “best” instructional methods for children with disabilities, there is nothing in the IDEA that requires school districts and AEAs to limit the methodologies they use for specially designed instruction to those that will prevent children from making progress beyond what they are currently achieving.

Students with IEPs and Public School Expulsions

Recently, I've received questions concerning public school expulsion of students with IEPs. Below I have briefly summarized the general procedures and applicable law. 

The Iowa Legislature conferred broad statutory authority on local public school boards to adopt and enforce their own rules and disciplinary policies. Local school boards have explicit statutory authority to expel or suspend students for violating school rules under Iowa Code 282, which states in its first paragraph:

The board may, by a majority vote, expel any student from school for a violation of the regulations or rules established by the board, when the presence of the student is· detrimental to the best interests of the school. The board may confer upon any teacher, principal, or superintendent the power temporarily to suspend a student, notice of the suspension being at once given in writing to the president of the board.

1.  Suspension. When a student is discovered or reported for violating a school rule for which the student may be expelled, generally, a school administrator issues an out-of-school suspension and sends a notice of the student's suspension to the parents and the president of the school board. The board will review the suspension and decide whether to hold a disciplinary hearing to determine whether or not to order further sanctions against the student, which may include expulsion. See Iowa Code 282.4.

2. Manifestation Determination Meeting. A suspension for more than ten days is considered a "change of placement." See Doe v. Todd Cty. Sch. Dist., 625 F.3d 459, 461 (8th Cir. 2010) citing Honig v. Doe, 484 U.S. 305, 325 n.8, (1988). When the student has an IEP and the suspension is for more than 10 days, or adds up to 10 days within the same school year, or if expulsion is recommended, within ten school days the school district and AEA are required to hold a manifestation determination meeting to determine whether the student's behavior that gave rise to the violation was a manifestation of the student’s disability. See 20 U.S.C. § 1415(k); 34 C.F.R. § 300.530; 281 I.A.C. 41.530. 

The team should determine whether the student actually committed the alleged violation, determine whether (1) the student's behavior was caused by the student's disability, and (2) whether the student's conduct was the result of inappropriate placement. Meeting discussions and conclusions should be recorded. The team must inform the parent of its decision that same day. Id.

2.  Notice of the school board hearing. The hearing notice sent to the student's parent should refer to the board policy or rule the student is accused of violating and a state that expulsion is being recommended. The notice must state the date, time, and place of the school board hearing and what evidence and witnesses the board plans to present at the hearing. The notice should also inform the parent of the parent's right to:

• have counsel or representation present at the parent's choice and expense,
• cross-examine witnesses against the student,
• produce witnesses to testify,
• receive copies of the documents supplied to board members, and
• a closed (nonpublic) hearing.

3.  The school board hearing. At the hearing, the school board is not required to give a full statement of the student's rights and:

• there is no right to have all witnesses sworn by a person authorized to give oaths,
• there is no subpoena power to compel witnesses to be present and testify against their will,
• there is no free legal assistance,
• there is no requirement for a court reporter (the hearing will be recorded),
• there is no right to know the identity of student informants, and
• Iowa law does not require the recusal (non-participation) of a board member if the board member is biased in favor or against the student.

4.  After the hearing. The board deliberates in closed session before making its decision. After it has concluded its deliberations, the parent will be given the decision.

5.  Findings of fact and conclusions of law. The parent will receive a written copy of the board's findings that will state the evidence that led the board to believe the student committed the violation and the board's decision. 

6.  Appeal. A parent who disagrees with the decision of the school board may, within thirty days after the decision, appeal the decision to the Iowa State Board of Education. See Iowa Code 290.1.  The standard of review of such appeals requires the State Board to affirm the local board's decision unless it is "unreasonable and contrary to the best interest of education." See In re Jesse Bachman, 13 D.o.E. App. Dec. 363 (196). 

7. Services in Alternative Educational Placement. Under the Iowa Department of Education Rules of Special Education (281 I.A.C. 530) and the IDEA (20 U.S.C. § 1415(k)(1)(D), 34 C.F.R. § 300.530), a  student who is removed from his or her current placement based on a disciplinary violation, must continue to receive educational services to enable the child to continue to participate in the general educational curriculum, although in another setting, and to progress toward meeting the goals set out in the student's IEP. See 20 U.S.C. § 1415(k)(1)(D); 34 C.F.R. §300.530(c), (d)); 281 I.A.C. 41.530. The IDEA provides that the interim alternative educational setting shall be determined by the IEP Team (unless the student has committed a criminal offense and the juvenile court places the student in a facility), and the IEP Team determines appropriate services under § 300.530(d)(1), 34 C.F.R. § 300.530(d)(5). See also M.M. v. Special Sch. Dist. No. 1, 512 F.3d 455 (8th Cir. 2008). When a student has been removed to an alternate placement, the school district is not required to provide all services in the student's IEP. 

8.  Re-enrollment after expulsion. A student who has been expelled from public school and has not met the conditions of the expulsion, will not be permitted to enroll in a public school district until the board of directors of the school district approves, by a majority vote, the enrollment of the student. See Iowa Code § 282.4.

Doe v. Aberdeen School District, 42 F.4th 883 (8th Cir. 2022)

When Does Restraint and Seclusion Violate a Child’s Fourth Amendment Rights? 

When May a SPED Parent File a Federal Court Complaint Without First Exhausting Administrative Remedies under the IDEA?

   In 2018, parents of children in special education filed a complaint in federal district court against a school district, special education teacher, and other school staff, in which they claimed, among other things, that when the special education teacher restrained and secluded their children, she violated their  rights under the Fourth and Fourteenth Amendments.

    The defendants moved the court to dispose of the case on the basis that they were protected by qualified immunity against the parents’ claims, and because the parents hadn’t first exhausted their administrative remedies under the IDEA. 

    On September 20, 2021, the federal district court issued its decision granting, denying, and dismissing over forty of the parties' motions and claims, in which it ruled that the parents weren’t required to exhaust their administrative remedies under the IDEA because the most serious parts of their complaint were focused on the abuse their children suffered at school - not on denial of a free appropriate public education under the IDEA. The decision was appealed to the Eighth Circuit Court of Appeals.

   On August 1, 2022, the Eighth Circuit issued its decision. Although it rejected the parents’ Fourteenth Amendment claims, noting that the children did not have records of behaviors that placed them or others in imminent danger of serious physical harm, the court held that the special education teacher committed Fourth Amendment violations when she:

    1.  secluded a child in "the little room,"

    2.     secluded a second child with barriers in a "calm-down corner,"

    3.    forcibly held down a third child, stripped off his clothes, put  him in a bathing suit; and

    4.    grabbed the same child by his arms, pushed him into a swimming pool, and wouldn’t let him get out.

The court further held teacher wasn’t entitled to qualified immunity on these Fourth Amendment claims because she had violated the students’ clearly established federal rights when she:

    1.  curtailed the students' movement severely enough to implicate the Fourth Amendment;

    2.  substantially departed from accepted standards such that she unreasonably seized the students in contravention of their Fourth Amendment rights;

    3.  substantially departed from accepted principles when restraining and secluding the students, she violated clearly established federal rights.

    Citing its decisions holding that an authorized professional's treatment of a student with disabilities is reasonable if the professional’s actions are “not a substantial departure from accepted professional judgment, practice, or standards,” the court found that the standards in this case were "clear cut," and quoted the May 2012 U.S. Department of Education Guidance stating: “Physical restraint or seclusion should not be used except in situations where the child's behavior poses an imminent danger of serious physical harm to self or others and other interventions are ineffective and should be discontinued as soon as imminent danger of serious physical harm to self or others has dissipated. . . . Restraint or seclusion should never be used as punishment or discipline] . . . as a means of coercion or retaliation, or as a convenience.”

 

Protecting Your Child's Personal and Health Data Against Identity Theft

On and after October 20, 2020, Iowa parents whose school districts had contracted with Timberline Billing Service, LLC, an Iowa-based company providing Medicaid billing services, began receiving letters from Timberline informing them that their children's data had been subject to a data breach between February 12, 2020 - March 4, 2020, when an unknown attacker had accessed Timberline’s network and exfiltrated students' personally identifiable information (PII) and personal health information (PHI) stored in its system before deploying ransomware.  On October 30, 2020, Timberline reported to the U.S. Department of Health and Human Services that the breach had affected the PII and PHI data of 116,131 students.  

The Iowa Attorney General's Office provides the following information for parents who are seeking to protect their children's PII and PHI against identity theft: 

Placing a Security Freeze on Your Credit Report or Your Child's

Credit to Protect It from Identity Theft 

Each of the three major credit reporting agencies (Equifax, Experian, and TransUnion) offers consumers the ability to place a “security freeze,” or deny access to, their credit reports. A security freeze means that your credit file cannot be shared with potential creditors. A security freeze can help prevent identity theft because businesses will not open credit accounts without first checking a consumer’s credit history. If your credit files are frozen, even someone who has your name and Social Security number probably will not be able to obtain credit in your name.  Placing a security freeze does not affect your credit score – nor does it keep you from getting your free annual credit report.

Frequently Asked Questions (FAQ)

 How much does it cost?

There is NO COST to place or lift a security freeze on your credit reports. There are no joint credit reports.  Everyone has their own, which means a couple would need to place six (6) security freezes (3 for one partner and 3 for the other partner at Equifax, Experian and TransUnion). Parents may want to consider placing security freezes on credit files for children under age 16 and assisting older children. 

How do I place a security freeze?

To place a freeze, you must make a separate request to EACH of the three credit reporting agencies. You must provide identifying information listed below. 

 Write to the addresses listed below, call using the automated system, or log online and provide the following documentation:

#1        Equifax Security Freeze

 P.O. Box 105788, Atlanta, GA 30348

800-685-1111  

To request a security freeze online, go to www.Equifax.com

 Make a request for a security freeze to the address listed above with the following:

• Include name, current and former addresses for the last two years, Social Security number, and date of birth.
• Copy of a utility bill, insurance or bank statement, etc., showing your name and current mailing address.

#2        Experian Security Freeze

 P.O. Box 105788, Atlanta, GA 30348

800-685-1111  

To request a security freeze online, go to www.Experian.com

Make a request for a security freeze to the address listed above with the following:

·       Include name, current and former addresses for the last two years, Social Security number, and date of birth. Enclose a copy of a government identification card, such as a driver’s license, state ID card or military ID card.

·       Copy of a utility bill, insurance or bank statement, etc., showing your name and current mailing address. 

#3        TransUnion Security Freeze

 P.O. Box 2000, Chester, PA 19022-2000

800-685-1111  

To request a security freeze online, go to www.TransUnion.com

800-916-8800

Make a request for a security freeze to the address listed above with the following:

·       Include name, current and former addresses for the last five years, Social Security number, and date of birth.

How long will the security freeze remain on the credit report?

A security freeze will remain until you request its removal.

Can I open new credit accounts if my files are frozen?

Yes, but you have to lift the freeze to obtain a new credit card or loan. You can lift it for a period of time, you can lift it for a specific creditor, or you can lift it permanently. After you send your letter asking for the freeze, each of the credit reporting agencies will send you a Personal Identification Number (PIN). You will also get instructions on how to lift the freeze. There are a variety of ways to lift the freeze (by mail, phone, or Internet) using your PIN. There is no cost for lifting the freeze.

What will a creditor who requests my file see if it is frozen?

A creditor will see a message or a code indicating that the file is frozen.

Can a creditor get my credit score if my file is frozen?

No. A creditor who requests your file from one of the three credit reporting agencies will only get a message or a code indicating that the file is frozen.

 Will a freeze lower my credit score?

No.

 Can an employer do a background check on me if I have a freeze on my credit file?

No. You would have to lift the freeze to allow a background check or to apply for insurance, just as you would to apply for credit. The process for lifting the freeze is described above.         

Can I order my own credit report if my file is frozen?

Yes. To obtain a FREE copy of your credit report from each of the three credit reporting agencies (Equifax, Experian, and TransUnion) once every 12 months, call toll-free 877-322-8228, or order online at www.AnnualCreditReport.com, or write to P.O. Box 105281, Atlanta, GA 30348-5281. Please note: A free copy of your credit report does not contain your credit score.           

Can anyone see my credit file if it is frozen?

Your credit report can still be released to your existing creditors or to collection agencies acting on their behalf. They can use it to review or collect on your account. Other creditors may also use your information to make offers of credit‑unless you opt-out of receiving such offers. See below for how to opt-out of pre‑approved credit offers. Government agencies may have access for collecting child support payments, taxes, or in the course of a legal proceeding. 

Does freezing my file mean that I won’t receive pre‑approved credit offers?

No. You can stop the pre‑approved credit offers by calling 888‑567‑8688 or go online at www.optoutprescreen.com. This will stop most of the offers that go through the credit reporting agencies. The opt-out is good for five years or you can make it permanent by returning the Opt-out Election Form which will be provided after you initiate your opt-out request.

Do I have to freeze my file with all three credit reporting agencies?

Yes. Different credit issuers may use different credit reporting agencies. If you want to stop your credit file from being viewed, you need a security freeze with Equifax, Experian and TransUnion.

Do I have to lift the security freeze at all three credit reporting agencies?

No. You can ask the potential creditor which credit reporting agency it is going to utilize. Then place a global lift (with a start and end date) or a specific third party lift with that credit reporting agency.

Does my partner’s credit file have to be frozen, too?  What about my children?

Yes. Everyone has their own which means a couple would need to place six (6) security freezes (3 for one partner and 3 for the other partner for Equifax, Experian and TransUnion). Parents may want to consider placing security freezes on credit files for children under age 16 and assisting older children. 

Does a security freeze guarantee that I will not be a victim of identity theft?

No. While a security freeze can help keep an identity thief from opening most new accounts in your name, it will not prevent all types of identity theft (such as; criminal, driver’s license, government benefit, insurance, medical, and Social Security). It will not protect you, for example, from an identity thief who uses your existing credit cards or other accounts. The freeze won’t be able to stop fraudulent activity that has already taken place before the security freeze was initiated. While a security freeze may not be able to protect you in these kinds of cases, it can protect you from the vast majority of identity thefts that involve opening new lines of credit.

You can get more information about identity theft by going to the Federal Trade Commission's website at: www.FTC.gov or our website at: www.IowaAttorneyGeneral.gov

If you have complaints or questions, contact our office:

Iowa Attorney General's Office

Consumer Protection Division

1305 East Walnut Street, 2nd Floor

Des Moines, Iowa 50319

Phone:  515-281-5926

Toll-free:  888-777-4590

Email: Consumer@AG.Iowa.gov

 Sample Letter for Disputing Billing Errors 

[Date]

Letter sent Certified with a Return Receipt Requested

[Name of Creditor]
Attention: Disputes and Billing Inquiries
[Address]
[City, State, Zip Code]

            RE: [Your Account Number]

Dear Sir or Madam:

I am writing to dispute a billing error in the amount of [$______] on my account. The amount is inaccurate because [describe the problem]. I am requesting that the error be corrected, that any finance and other charges related to the disputed amount be credited as well, and that I receive an accurate statement.

Enclosed are copies of [use this sentence to describe any information you are enclosing, like sales slips or payment records] supporting my position. Please investigate this matter and correct the billing error as soon as possible.

Sincerely,

[Your Name]
[Your Address]

[Cell Phone & Email Address]

 Enclosures/   [List the enclosures] 

Report Identity Theft and Get a Recovery Plan 

On the Federal Trade Commission’s website:  www.IdentityTheft.gov, you can click on “Get Started” to make an identity theft report and receive a recovery plan or you can click on “or browse recovery steps”  to get information about special forms of identity theft such as income tax, child, medical and others, scroll to the bottom of the webpage.

Due Process Complaint Against Child’s Former School District in Iowa?

[Note:  Because I frequently receive questions from Iowa parents about whether they can file due process complaints against their children's former school districts, with the permission of the parent who sent the following question to me by email, I am publishing the question and my response.]

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 3^rd 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. 

Iowa School Seclusion Incidents 2015-2016

Under Iowa law, a student is secluded when school personnel place him or her into an enclosure from which his or her egress is restricted.  According to data reported to the U.S. Department of Education Office of Civil Rights by Iowa’s 335 public school districts, during the 2015-2016 school year, 101 of those districts placed children in seclusion rooms as a form of discipline, for a total of 11,065 times.

The following ten school districts reported the highest numbers of incidents of seclusion:

Des Moines          3,051
Council Bluffs      1,106
Iowa City         786
Cedar Rapids        612
Johnston         552
Waterloo         483
Ottumwa         413
Davenport            306
Burlington        281