Friviolous Claims in Special Education cases: DC v Jeppson

My thoughts on a recent Special Education law case: D.C. v. Jeppson U.S. Dist. LEXIS 50893 (2006). In my opinion, this case demonstrates how foolishly school districts waste our taxpayer resources. While the family finally got the education needed for their daughter, I can’t imagine how much time and money they had to expend defending their daughter’s right to a free and appropriate education. And the resources wasted by the D.C.P.S. in challenging the child’s placement should have been used to improve D.C.P.S. programs already in place. As you read further, what happened to M.J. happens all too frequently in special education law cases.

In this case, an early-deaf child, M.J., received a cochlear implant. The implant gave M.J. the ability to hear sounds, but M.J. couldn’t distinguish between different sounds she could now hear.

The inability to distinguish sounds is a common problem previously deaf people face after receiving cochlear implants. To learn how to hear requires specialized training: the process to retrain a child’s brain to distinguish between the sound of wind blowing through trees and the sound of someone making an “sssss” sound requires the use of different specialized techniques to build the skill sets needed to learn how to hear. . . training that is significantly different than the training used to teach a deaf child how to function in a hearing world.

At the time, no D.C. public school program existed for the hearing impaired. D.C. Public Schools (“DCPS”) thus funded M.J.’s tuition to a private school for four years. However, in 2004, DCPS established a public school program for the hearing impaired and required M.J., against her parent’s and educators’ recommendations, to attend the new DCPS program.

Clearly, DCPS hoped to use the monies spent on private schools to pay for their newly created hearing impaired program. M.J.’s parents and educational team on the other hand, had serious reservations about the new DCPS program and the motivations behind moving M.J. from her current placement to the DCPS system. D.C. is well-known for the large dollar amount spent per student head, but most D.C. residents believe the D.C. public schools lag far behind their private and suburban public school counterparts in student educational outcomes.

The DCPS plan meant moving M.J. from her familiar school to a new DC public school. It meant restructuring M.J.’s Individual Education Plan (“IEP”) goals and objectives already established at her current school to one implemented by a new team. Perhaps this new DCPS team would have new ideas, tools and strategies to help M.J.… or perhaps M.J. would be placed in a poor situation with minimal facilities, low quality instruction and outdated methodologies as is often reputed to be the case in DC public schools.

M.J.’s parents and educational team strongly disagreed with DCPS’s decision, and filed a due process hearing request; they also invoked the protections of the “stay-put” provision of the IDEA (20 U.S.C. § 1415(j)). The stay-put provision provides that during any further proceedings, the child must remain in the current educational placement until a decision is made.

DCPS was required to prove that its change to M.J.’s IEP would be more appropriate than M.J.’s current IEP plan at the private school. DCPS’s new program was designed for the hearing impaired. In order for DCPS to claim M.J. as one of its students, DCPS had to prove that M.J. was actually hearing impaired. DCPS would have had to demonstrate that it had pedagogical strategies designed to help students to work with their hearing impairments.

The absurdity in DCPS’s argument is obvious – M.J. was no longer hearing impaired, thanks to her cochlear implant. M.J. needed experience interpreting what she could hear. She required pedagogical methods that taught her what the noises meant.

In order for M.J. to receive the level of appropriate public education required by the IDEA, DCPS’s new program would have had to have a component of speech and language education as part of its hearing impaired program. However, the DCPS program clearly used teaching methods for the profoundly deaf, which are not the same teaching methods designed to help the newly hearing.

M.J.’s legal team was forced to counter DCPS’s placement requirement. They argued that M.J.’s disability was not deafness, it was a speech/language impairment requiring her to learn how to comprehend sounds. The strategies used at M.J.’s private school placement, paid for by DCPS, taught M.J. how to identify different sounds and use different contexts in order to interpret the meaning of the sounds into language. The newly created DCPS hearing impaired program, however, was clearly not intended for speech/language impairments.

The hearing officer found that DCPS did not meet its burden of proving that their plan was more appropriate for M.J. than the private school placement, and ordered DCPS to continue funding M.J.’s education at the private school.

This is the point in the story where I wonder about the policy priorities behind a public school system’s choice of action and use of resources.

To reclaim the monies required to provide DC citizens with free, appropriate public education, DCPS could have chosen to develop a program within their hearing impaired school specifically designed for children with cochlear implants to learn how to distinguish sounds. DCPS could have waited another year until its speech and language program was in place, and requested the following year to reevaluate M.J.’s plan to see if the DCPS program met her IEP goals and objectives.

(As an aside, DCPS probably initially recommended the specific private school to M.J. and her family, and I would not be surprised if the DCPS instructors at the new hearing impaired DC school were hesitant to bring M.J. into their program because M.J.’s disability required different methodologies. Could it be the DCPS administrators, under pressure from the city to find dollars and student heads, who overrode initial DCPS teacher recommendations to keep M.J. in her initial private school placement? I would not be surprised.) It doesn’t seem to occur to DCPS that the money spent on attorney salaries and fees could have been better spent on improving their programs in place.

Instead, DCPS spent its money by filing a complaint against the hearing officer’s decision. DCPS asked the U.S. District Court to force M.J. into the DCPS hearing impaired program. Most egregiously, DCPS asked the court to require M.J. to refund the money DCPS spent on M.J.’s education during the parents appeal, even though DCPS paid the private school directly, never giving the money to M.J.

In short, DCPS was asking for the court to treat M.J.’s private education during her appeal as if M.J.’s private school education were a personal choice, and not a requirement of the stay-put provision of the IDEA. Rightfully so, the court considered DCPS motion for summary judgment as moot –DCPS was supposed to pay for M.J.’s education through a stay-put provision as clearly stated in the IDEA for any attorney to read. The court described multiple lower and Supreme Court cases supporting how it was clearly inappropriate for DCPS to ask for their money back for educating M.J. during the appeal. Clearly the IDEA and prior case law supported the parents, as the DCPS attorneys could likely see in their research.

However, DCPS has deeper pockets and attorneys on staff who can drag on friviolous claims until DC parents are financially forced to accept DCPS placements.

Imagine how much money parents have to expend in attorney’s fees to rebut unsupported DCPS’s appeals against a hearing officer’s decision. Even if parents try to hold DCPS for attorney fees because the parents are prevailing parties harmed by frivolously unsupported DCPS legal action, if the Court declares the DCPS motions as moot, then there is no “prevailing party” – no winner in a decision – and thus, no compensation for harassed families.

Could M.J.’s legal team have asked for Rule 11 sanctions against DCPS for bringing a frivolous claim? Not likely. Note 5 in the opinion suggests that M.J.’s IEP can and will change in the future and that it is not possible to predict whether M.J.’s placement at the private school will be supported by future hearing officers. Thus, DCPS can bring frivolous appeals claims each and every year, even when the hearing officers support M.J.’s IEP placement at the private school. The only thing the parents can count on is that this battle will continue.

While M.J. won her battle to keep her education as is her right, her parents and the citizens of DC are the losers financially. The only winners in this decision are the attorneys.