Statutes & Cases

The resource information provided below is for informational purposes only and does not serve as legal advice or an endorsement or recommendation by Mayerson &  Associates.  Each parent must make an independent inquiry to determine what is appropriate for their child’s individual needs.

Important Statutes

Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.

Combating Autism Act of 2006

Family Educational Rights and Privacy Act, 20 U.S.C. § 1232(g), et seq.

Individuals with Disabilities Education Improvement Act (“IDEIA”) of 2004, 20 U.S.C. § 1400, et seq., IDEIA Regulations, 34 C.F.R. Part 300.

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq.

Regulations of the Commissioner of Education, 8 N.Y.C.R.R. § 200, et seq.

New York Education Law, N.Y. Educ. Law § 4401, et. seq.

New York Anti-Bullying Statute (The Dignity for All Students Act), 2010 Sess. Law News of N.Y. Ch. 482 (A. 3661-C)

New Jersey Anti-Bullying Bill of Rights Act, P.L. 2010, Chapter 122; N.J.S.A. 18A:37-13

Important Court Decisions

Arlington v. Murphy, 548 U.S. 291 (2006) ­ – The Court held that a provision of the IDEA authorizing “reasonable attorneys’ fees” for prevailing parents does not authorize the recovery of fees for expert’s services.

B.R. v. New York City Department of Education, 910 F.Supp.2d 670 (S.D.N.Y. 2012) – The court found that the failure of the district to offer 1:1 occupational therapy services to the student amounted to a denial of FAPE where it was clear that the student required these services.  The court held that the purpose of discouraging reliance on “retrospective testimony” (see R.E. below) is to allow parents to make placement decisions “based solely on the information made available to them by the [school district] at the time of the placement decision.”

Board of Education v. Rowley, 458 U.S. 176 (1982) – The Court held that an IEP must be reasonably calculated for a child to receive educational benefit, but the school district is not required to provide every service necessary to maximize a child’s potential.

Board of Education v. Tom F., 193 Fed. Appx. 26 (2d Cir 2006), aff’d 128 S.Ct. 1 (2007) – Parents do not have to “try out” an inappropriate placement before challenging the IEP.

Bucks County Department of Mental Health v. DeMora, 379 F.3d 61 (3d Cir. 2004) – The Third Circuit held that under appropriate circumstances, parents may be personally compensated for performing a FAPE function that the school district was duty-bound to perform.

C.B. v. New York City Department of Education, 2005 U.S. Dist. LEXIS 15215 (E.D.N.Y. 2005) – The court held that the parents’ unilateral program is subject to a less-stringent standard under Prong II of the Burlington/Carter test, than is the school district’s standard under Prong I.

C.F. v. New York City Department of Education, No. 11-5003-CV-2014 U.S. App. LEXIS 4085 (2d Cir. March 4, 2014)–The Second Circuit reversed the district court (and the SRO) to reinstate the IHO’s award in favor of the student, holding that the school district deprived the student of a FAPE by, among other things, offering only a 6:1:1 classroom without one-to-one instruction,  and by offering an IEP without any provision for parent training and without an appropriate behavior intervention plan to address the student’s interfering behaviors. Court also reiterated its prior prohibition against “retrospective” evidence and held that the pleading-waiver rule is not to be “mechanically applied.”

C.L. v. New York City Department of Education, 2014 WL 278405 (2d Cir. 2014) – The Second Circuit affirmed the district court’s decision (2013 WL 93361) in its entirety, holding that the school district failed to meet its burden to show how its recommended 6:1:1 placement would be able to provide educational benefits to the student, who required 1:1 instruction to learn.

Cerra v. Pawling Central Sch. Dist., 427 F.3d 186 (2d Cir. 2005) – The court held that a parent had meaningful participation in the IEP process when she had been given a coded “Draft” of the IEP at a meeting, reasoning that it was a supplement to the discussion in the meeting, not a substitute for the final IEP, and that the school district only had to supply a copy of the IEP before the first day of school to comply with the law.

Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998) – The court held that when parents establish to the Impartial Hearing Officer (“IHO”) that they do not have the financial means to front the cost of a non-approved private school, and the Burlington test has been satisfied, prospective funding may be awarded.  The school district “must pay the cost of private placement immediately.”

Deal v. Hamilton County Board of Education, 392 F.3d 840 (6th Cir. 2004), cert denied, 546 U.S. 936 (2005) – The court held the child was denied a FAPE where the school district impermissibly “predetermined” the child’s educational program and failed to meaningfully include the child’s parents at the IEP meetings.

Dracut School Committee v. Bureau of Special Education Appeals, 737 F.Supp.2d 35 (D.Mass. 2010) – The court held that compensatory education services were appropriate to compensate a student where the school district failed to provide him with a FAPE.  Because the student was twenty-years old at the time of the court’s decision, it was held that he would remain eligible for these services beyond the typical age of special education eligibility (twenty-one), in order to adequately compensate the student for the failures of the school district.

Draper v. Atlanta Independent School System, 518 F.3d 1275 (11th Cir. 2008) – The court found that where a school district failed over a number of years to provide student with a FAPE, compensatory education in the form of placement at a private school was appropriate.  The decision articulated that the district court had authority to fashion appropriate relief for the student.

Honig v. Doe, 484 U.S. 305 (1988) – The Court held that the “stay-put” or pendency provision of the IDEA prevents the school from excluding handicapped students from school or changing the students educational placement until proceedings are complete.

Florence County School District IV v. Carter, 510 U.S. 7 (1988) – The Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education and put the child in a private school that provides an education that is appropriate. The court will look to whether the parents cooperated with the school district, balancing the equities, in determining a reimbursement award.

Forest Grove School District v. T.A., 129 S. Ct. 2484 (2009) – The Court held that parents are not obligated to first “try out” a school district’s proposed placement to have standing to seek reimbursement relief.

Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006) cert. denied, 169 L.Ed.2d 325 (2007) – The parents’ burden for Prong II is subject to a less stringent standard: parents must demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

G.B. v. Tuxedo Union Free School District, 486 Fed.Appx.954 (2d Cir., Oct. 18, 2012) – The court adopted the Newington test for least restrictive environment: (1) whether a child with disabilities can be educated satisfactorily in a regular classroom with supplemental aids and services; and (2) whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate.

Gagliardo v. Arlington Central Sch. Dist., 489 F.3d 105 (2d Cir. 2007) – The court reversed a judgment requiring reimbursement because the parents proposed placement was found to be inappropriate.  It must be shown that the special needs of the student are met and that the student is able to receive a benefit from the private placement’s instruction.

L.B. v. Nebo School District, 379 F.3d 966 (10th Cir. 2004) – The Tenth Circuit held that the child’s school district had failed to educate the child in the child’s “least restrictive environment” and was liable to reimburse the child’s parents for ABA and other privately secured services.

 

M.H. v. New York City Department of Education, 685 F.3d 217 (2nd Cir. 2012) – The court held that the substantive adequacy of an IEP should be given more weight than the procedures used to develop the IEP.

M.S. v. Yonkers Board of Education, 231 F.3d 96 (2d Cir. 2000), cert. denied, 532 U.S. 942 (2001) – The court deferred to the State Review Officer’s (“SRO”) finding that the parents were not entitled to reimbursement because of the supportable finding that the private school was not appropriate, reasoning that an assessment of educational process is a type of judgment for which the court should defer to the SRO’s educational experience.

M.V. v. Shenendehowa Central School District, 2008 U.S. Dist. Lexis 182 (N.D.N.Y. 2008) – The court awarded tuition reimbursement, saying that the parents had met the Prong III equity requirement by cooperating with the school district in attending and fully participating in CSE meetings, sending concerns to the school district in writing, actively seeking out-of-district placements, and investigating the proposed placements to determine that they were not appropriate.

P. v. Newington Bd. of Ed., 546 F.3d 111 (2d Cir. 2008) – The court established a two-prong analysis for the least restrictive environment requirement: (1) whether a child with disabilities can be educated satisfactorily in a regular classroom with supplemental aids and services; and (2) whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate.

P.K. v. New York City Department of Education, 2013 WL 2158587 (2d Cir. May 21, 2013) – The court held that the IEP at issue in the case was substantively inadequate because it failed to provide sufficient 1:1 instruction to the student, despite clear evidence in the record demonstrating the student’s need for 1:1 instruction.  The court further found that the State Review Officer impermissibly relied on retrospective evidence, which the R.E. court held could not be used to rehabilitate or amend an IEP.

Polk v. Central Susquehanna Intermediate Unite 16, 853 F.2d 171 (3d Cir. 1988) – The Third Circuit interpreted the IDEA to require more than just “some educational benefit” for a student, there must be more than a de minimus educational benefit.

R.E. v. New York City Department of Education, 694 F.3d 167 (2nd Cir. 2012) – The court held that a school district may only offer testimony that explains or justifies what is already written in the IEP – it may not “rehabilitate” or amend an IEP after the fact through testimony regarding services that do not appear in the IEP.  In other words, testimony about what the district “would have” offered a student is impermissible.  The court also held that failure to implement an FBA/BIP is a significant procedural violation.

Sackets Harbor Central School District v. Munoz, 283 A.D.2d 756 (N.Y. App. Div. 2001) – In a case of first impression, the Appellate Division, Third Department, held that if a school district conducts a vote at an IEP meeting, and the parents’ position prevails following that vote, the school district is bound by the vote and is estopped to deny its effect.

Schaffer v. Weast, 546 U.S. 49 (2005) – The Court held that the burden of proof in an administrative hearing challenging the appropriateness of an IEP is placed on the party that is seeking relief.

School Committee of Burlington v. Department of Education, 471 U.S. 359 (1985) – The Court established a three-prong test for reimbursement: (1) whether the school district offered the student a FAPE; (2) whether the parents’ placement was appropriate for the student; and (3) whether the equities of the case favor reimbursement.

Spielberg v. Henrico County Public School, 853 F.2d 256 (4th Cir. 1988) – The court held the school district failed to provide a FAPE due to their changing the placement of the student and then developing the IEP to support the change of placement.

Student X v. N.Y. City Dept. of Educ., 2008 U.S. Dist. Lexis 88163 (E.D.N.Y. 2008) – The court held that a student’s pendency entitlements continue during an appeal at the district court level.  The local educational agency (“LEA”) failed and refused to honor and implement the student’s pendency entitlements for ABA service hours and other interventions, and the District Court awarded the student more than a year’s worth compensatory services.  Furthermore, the District Court held that the LEA was liable to pay attorneys’ fees and other costs.

T.H. v. Board of Education, 55 F.Supp.2d 830 (D. Ill. 1999) – T.H. is an early reimbursement case involving autism and tuition reimbursement for ABA services.  Significantly, a sizeable portion of this court’s compensatory relief was for the student’s ABA services.

T.P. v. Mamaroneck School District, 554 F.3d 247 (2d Cir. 2009) – The court applied the “predetermination” principles of the Sixth Circuit’s decision in Deal to this New York case (though holding that parents did not prove predetermination).

T.M. v. Cornwall Central School District, 2012 WL 4069299 (S.D.N.Y. 2012) – The court held that where the school district failed or refused to provide pendency services to the student, it was required to reimburse the parents for the costs they paid to provide those services for the student.

V.S. v. NYCDOE, 13-CV-3476 (E.D.N.Y. 6/10/14) – The court held that “parents have a procedural right to evaluate the school assignment” and that “permitting the local education agency to give advance notice of one school but to defend another does not comport with the hearing required under the IDEA” and amounts to a “denial of due process.”

W.G. v. Board of Trustees, 960 F.2d 1479 (9th Cir. 1992), superseded on other grounds by statute as stated in L.M. v. Capistrano Unified Sch. Dist., 2009 U.S. App Lexis 6052 (9th Cir. 2009) – The court found that procedural inadequacies or a serious infringement on parents opportunity to participate in the IEP process amount to a denial of a FAPE.

Walczak v. Florida Union Free School Dist., 142 F.3d 119 (2d Cir. 2001) – The court held that there is a strong preference for children with disabilities to be educated with nondisabled peers to the maximum extent that is appropriate.

Winkelman v. Parma City School Board, 127 S.Ct. 1994 (2007) – The Court held that parents, as well as the child, have independent, enforceable rights under the IDEA.

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