28 IDELR 904
28 LRP 5097
Georgetown Independent
School District
Texas State Educational
Agency
June 2, 1998
Case Summary
The hearing officer addressed the
allegations relating to the discipline imposed on a 12-year-old
student with a LD and ADHD who brought a knife to school, and
concluded no violations occurred. The student was assigned to an
alternative school after a manifestation meeting was conducted, at
which it was determined the student's misconduct was not related to
his disability. While attending the alternative school, the student
had access to the general curriculum, his IEP was implemented, and
the district took steps to ensure he would not engage in similar
misconduct again. The alternative school was an appropriate
placement, and the student made progress during his placement there.
The parents absence from an administrative placement review meeting
did not result in a procedural violation, as parents have no right to
attend this meeting. Further, the district complied with all
procedural requirements when imposing discipline on the student.
After being caught with a knife at
school, a 12-year-old student with a learning disability and ADHD was
suspended for three days and assigned to an alternative school for 20
days. The decision to assign the student to the alternative school
was made after an administrative placement review meeting. The
parents were unable to attend this meeting, and the district refused
to reschedule it. Shortly thereafter, the parents requested a due
process hearing, claiming the district denied the student a FAPE.
According to the parents, the district committed procedural and
substantive violations with respect to the imposition of discipline,
identifying the student, the provision of related services, the
student's placement and his IEPs. As relief, the parents sought
compensatory education, a summer program, a district-funded IEE, and
reimbursement for the costs of two IEEs the parents arranged for. The
district filed a counterclaim challenging the request for
reimbursement of the IEEs, asserting its recent evaluation of the
student was appropriate.
HELD: for the district.
First, the hearing officer addressed
the allegations relating to the disciplinary proceedings, and
concluded no violations occurred. The student was assigned to the
alternative school after a manifestation determination meeting was
conducted, and it was determined the student's misconduct was not
related to his disability. While attending the alternative school,
the student had access to the general curriculum, his IEP was
implemented, and the district took steps to ensure he would not
engage in similar misconduct again. The alternative school was an
appropriate placement, and the student made progress during his
placement there. The parents' absence from the placement review
meeting did not result in a procedural violation, as parents have no
right to attend this meeting. Further, the district complied with all
procedural requirements when imposing discipline on the student.
Based on these findings, the hearing officer concluded no violation
occurred during the disciplinary proceedings. Second, the hearing
officer determined the student was classified appropriately. Contrary
to the parents' assertions, the student did not qualify for services
under the categories of serious emotional disturbance, speech
impairment, hearing impairment or visual impairment. There was no
evidence indicating the student should be classified under any other
category but learning disabled. Although the student had been
diagnosed with dysthymia, there was no evidence his performance at
school was affected by his condition. Next, the hearing officer
concluded the parents were not entitled to reimbursement for the
costs of the IEEs they arranged. The recent district evaluation was
appropriate, therefore, IEEs were unwarranted. Lastly, the hearing
officer determined the student's IEP provided him with a FAPE in the
LRE. There was no evidence the student's placement was inappropriate,
and he was making academic progress. The student was placed in the
LRE due to his placement in regular education with supplementary aids
and services. Because the district provided the student with a FAPE
in the LRE, the hearing officer refused to award compensatory
education or order the district to provide the student with a summer
program.
Judge / Administrative Officer
Janis Herd., Hearing Officer
Full Text
Counsel for Parents: Karen Key Johnson,
Austin, TX.
Counsel for District: Denise Hays,
Elena Gallegos, Bridget Robinson, Walsh Anderson et al., Austin, TX.
Statement of the Case
David A. (David), by next friend Diane
A., requested a due process hearing under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq.
Petitioner alleged, inter alia, that
Respondent Georgetown Independent School District (GISD) failed to:
timely assess and identify all suspected disabilities; provide a
timely and proper manifestation determination based on appropriate
assessment data; provide a free appropriate public education (FAPE);
provide placement in the least restrictive environment appropriate;
provide appropriate assessments and appropriate related services,
including occupational therapy, counseling, parent counseling and
training, social work services, and tutoring; provide an appropriate
IEP with appropriate modifications and measurable goals and
objectives; provide a timely behavioral intervention plan; provide a
stay-put placement after David brought a knife to school; ensure the
attendance of David and his parents at an administrative disciplinary
committee meeting; provide notice of parental rights; provide a
proper ARD committee meeting because a meeting was recessed by school
personnel and not reconvened within 10 days of recess, and because a
juvenile probation officer was present at the meeting.
Petitioner's requested relief included
compensatory services, summer school, an independent
psycho-educational assessment, and reimbursement to the parent for
all expenses relating to assessments and counseling.
Held for Respondent.
Procedural History
Petitioner's request for hearing was
filed with the Commissioner of Education on March 18, 1998.
Petitioner was represented by Karen Key Johnson, Attorney at Law,
Austin, Texas, who was assisted at hearing by Carol Sprott,
paralegal. Respondent Georgetown ISD was represented by Denise Hays,
Elena Gallegos, and Bridget Robinson of Walsh Anderson et al, Austin,
Texas.
On March 25, 1998, the Hearing Officer
issued an order setting the due process hearing for April 16 and 17,
1998. A continuance was requested by Respondent due to a scheduling
conflict of Respondent's counsel. The continuance was granted and the
hearing was reset to April 20 and 21, 1998. On April 2, 1998,
Respondent filed a counterclaim on the issue of whether Petitioner
was entitled to an independent educational evaluation at public
expense. The Hearing Officer ordered that issue to be heard as part
of the due process hearing already scheduled.
During the first day of hearing,
Petitioner's counselor requested additional time to present
Petitioner's case. This request was granted and the hearing lasted
approximately 3.5 days, taking place on April 20, 21, and 22, and May
4, 1998. Sixteen witnesses testified on behalf of Petitioner. Eight
witnesses testified on behalf of Respondent.
The parties agreed to file post-hearing
closing statements and briefs on May 19, 1998, and agreed that the
Decision by the Hearing Officer would be issued on or before June 2,
1998. Respondent timely filed its post-hearing closing statement and
brief. Petitioner requested and received an extension, and filed a
post-hearing closing statement and brief on May 21, 1998.
Based on the evidence and arguments of
counsel, the Hearing Officer makes the following findings of fact and
conclusions of law:
Findings of Fact
Background
1. David A. is a 12-year-old male
student who was in sixth grade at the time of the hearing at Tippit
Middle School in Georgetown ISD (GISD). He is classified for special
education purposes as a student with a learning disability in written
expression. His placement was changed from resource to regular
education with content mastery during or after second grade. He
previously carried the additional classification of speech
impairment, but was dismissed from speech at the end of third grade
when he no longer met eligibility criteria. He was diagnosed with
attention deficit hyperactivity disorder (ADHD) in 1991, for which he
takes Ritalin.
2. David has difficulties with spelling
and writing, and in completing his math homework. He is in regular
education classes with content mastery support. He receives
appropriate classroom modifications to address his disabilities and
his health problems, including a vision problem and ADHD.
Assessments
3. A comprehensive individual
assessment (CIA) of David was completed on March 1, 1998, by Regina
Gilchriest, GISD educational diagnostician, based on testing and
information gathered in February 1998. David continued to be eligible
for special education under the classification learning disabled in
written expression.
4. A psychological assessment of David
was performed by Dr. Douglas Keene on April 1, 1998, while David was
attending the Georgetown Alternative Program (GAP). Dr. Keene
diagnosed ADHD and Developmental Expressive Writing Disorder. He
found that David is sensitive to rejection, tends to react to
rejection with social withdrawal and anger, may bottle up his
feelings, was unhappy and anxious about attending the GAP, and looked
forward to returning to his regular campus. However, Dr. Keene found
David not to have an emotional disturbance. David's anxiety is a
normal response to being arrested and placed on an alternative
campus. Dr. Keene reviewed school records and records of prior
assessments. His own testing and the assessments he reviewed included
at least four self-reports in which David consistently described
himself as generally happy and having friends and reasonably good
self-esteem. David's mother told Dr. Keene that David's medication
had been adjusted two weeks prior to the assessment date.
5. A psychological assessment, dated
April 15, 1998, was obtained by the parents from Dr. Kevin McFarley,
based on testing performed by Dr. McFarley and his assistant, Carol
Mitchum, M.A., L.P.C. intern, on April 3 and April 6, 1998. Dr.
McFarley diagnosed David as having dysthymia, which is chronic
low-grade depression. Dr. McFarley administered the Children's
Depression Inventory but used a version he got from a journal some
years ago rather than the official published test, and did not use
the accompanying manual for the test. He also used his own scoring
system for the Hansburg Separation Anxiety test administered by Dr.
Keene, rather than the standard scoring instrument. According to Dr.
Keene, Dr. McFarley made clerical and numerical errors on the form he
used to interpret the Hansburg test.
6. Dr. McFarley referred David for a
psychiatric consultation with Dr. Harry B. Rauch to consider whether
his ADHD medication should be changed. At the time of the hearing,
Dr. Rauch had seen David only once, on an emergency basis on April
13, 1998, due to urinary retention symptoms. Dr. Rauch testified he
"saw him as having an adjustment disorder with anxious mood at
the very least," and wanted to see David subsequently "on a
month-long basis and see if I could include . . . a formal diagnosis
of . . . anxiety disorder. . . . " Tr. 93. Dr. Rauch did not see
the knife incident as indicating a psychiatric disorder and agreed
that it could be described as a stupid mistake by a sixth grader. He
attributed the adjustment disorder to the arrest and other recent
events surrounding the knife incident, not just the GAP placement.
7. The urinary retention problem is of
recent origin and was first reported while David was attending GAP,
but also recurred after he left the GAP and was back in his regular
placement. Urinary retention can be exacerbated by Ritalin, as Dr.
Rauch testified.
8. Mr. Jose Cardenas, a social worker,
counseled David during 1991 and 1992, and again for several visits
after the knife incident. He described David as immature, having
fluid self-esteem, nonaggressive, and anxious about the arrest and
GAP placement. He attended David's ARD committee meetings on March 6
and March 24, 1998, and opposed placing David in the GAP.
9. Neither Dr. McFarley, Dr. Rauch, nor
Mr. Cardenas had visited the GAP or had outside knowledge of it other
than the parent's description of it.
Disciplinary Procedures
10. On February 26, 1998, David brought
a switchblade knife to school. The arresting officer found the knife
to be an illegal weapon and arrested him. School officials initially
considered expelling David. Mrs. A. was told that an administrative
meeting would be held March 6, 1998 to decide David's placement, but
that meeting did not take place till later. At one point school staff
notified the parents that David would only serve three days
suspension and then attend in-school suspension. David served a
three-day suspension beginning the day of the arrest, then returned
to his regular program for several days.
11. An ARD committee meeting was held
on March 6, 1998, to review the March 1, 1998 CIA and determine if
David's behavior of bringing a knife to school was a manifestation of
his disability. Petitioner's attorney was present and Respondent's
attorney was not. A juvenile probation officer also was present for
at least part of the meeting. Petitioner questioned his identity but
did not request that he leave. The March 1, 1998 CIA was reviewed.
David's teachers described his progress in their respective classes.
Ms. Ferguson, the content mastery teacher, noted a drastic
improvement in his attitude about accepting her help in recent weeks.
At the request of Petitioner's attorney, the committee agreed to
provide a psychological evaluation, although district personnel did
not believe a psychological evaluation was warranted. Before the
manifestation determination was performed, Stephanie Blanck, special
education director, recessed the meeting because she believed the
district needed the advice of its legal counsel to proceed.
12. Spring break for GISD was March
9-13, 1998. Therefore, no school days occurred for purposes of
computing procedural timelines during that week. Tippit Middle School
principal Carlos Cantu, by letter dated March 10, 1998, informed the
parents that in lieu of expulsion, he was ordering David to attend
GAP for 20 school days, beginning on March 17, 1998, pending the
result of a District Placement Review Committee meeting on Monday,
March 16, 1998. David and his family were unable to attend the review
committee meeting because it coincided with David's
great-grandmother's funeral. On March 16, 1998, Mrs. A. left a
message with school staff requesting that the meeting be rescheduled
to after the funeral so that the family could attend. Linda Taylor,
the GAP principal and the facilitator of the review committee
meeting, knew about the funeral but chose to go forward with the
meeting as scheduled. The review committee agreed with the
principal's assignment of David to GAP. The district's actions in
changing its plans about how to discipline David and in holding the
review committee meeting without them resulted in stress and
confusion to David and his parents.
13. The ARD committee meeting that
recessed on March 6, 1998, was reconvened on March 24, 1998. The
committee performed a functional behavioral assessment and developed
a behavioral intervention plan. The school staff members of the ARD
committee concluded that David's act of bringing a knife to school
was not a manifestation of his learning disability or his ADHD, and
that the GAP was an appropriate placement for him. David's parents
and his social worker, Mr. Cardenas, disagreed with the manifestation
determination and with the placement at the GAP.
14. David received an appropriate
education at the GAP that allowed him to continue participating in
the general curriculum and that addressed his special education needs
and provided appropriate modifications, as well as providing a
program to deter future instances of bringing a weapon to school. At
least three special education teachers were available at the GAP, and
his content mastery teacher, Ms. Ferguson, visited the GAP and
discussed his modifications with his teachers there. Ms. Ferguson and
other staff observed him participating in group activities and
interacting normally with other students while at the GAP.
Educational Program
15. Several ARD committee meetings were
held during fall 1997 at the request of David's mother to address his
frustration and difficulty in completing math homework. He spends
long periods of time on his math homework and his parents believe he
would not get it done without his father's help. Dr. McFarley
testified that David's problems with getting his math homework
finished may be due to having ADHD and consequently having trouble
staying on task. David's mother told the ARD committee in March 1998
that his medication has completely worn off by evening.
16. David's sixth-grade math teacher,
Sherlyn Novak, had 18 students in her class. David received classroom
modifications and content mastery support for math, as well as other
subjects. Additional math modifications were added during the fall
1997 ARD committee meetings. Modifications provided by Ms. Novak
included redirecting, refocusing, preferential seating near the
teacher, extra time to complete assignments, reduced assignments,
modified tests, and modified problem sets. To address his vision
problems, Ms. Novak supplied paper copies of notes and of information
she put on the overhead projector, although David preferred to look
at the overhead instead of the paper, and was able to read what was
on the overhead out loud to her. To fulfill the assignment notebook
modification, a separate notebook for math was provided, containing
his modified problems sets for the week.
17. David finished his tests in math
class promptly, within 45 minutes. He received direct instruction
from Ms. Novak, and went to Jennifer Ferguson in content mastery for
the independent practice part of the class. During fall 1997, Ms.
Ferguson began using a timer to remind her to check David's progress
on math problems approximately every five minutes. David attends
content mastery at least 30 minutes per week in math. During the
third nine weeks, he spent 1200 minutes in content mastery, according
to Ms. Ferguson.
18. David's grades in math and other
academic subjects were B's and C's during fourth and fifth grades. In
sixth grade, at the time of the hearing he had made B's and C's in
all subjects for me first three nine-week grading periods, with the
exception of math. He made a failing grade of 63 in math the second
nine-week grading period, but brought it up to 76 for the third
nine-week period. The improvement followed a change in his medication
in the fall of 1997. His math average while assigned to the GAP was
90. David passed both the reading and math portions of the 5th grade
Texas Assessment of Academic Skills (TAAS) test. Both the March 1,
1998 CIA and Dr. McFarley's report found David to be at or above
grade level in mathematics.
Assessment and Identification of
Disabilities
19. Both before and after the knife
incident, David's demeanor at school is perceived by his teachers as
a normal boy who is making educational progress, is generally
compliant, and is not a discipline problem. Other than one discipline
referral in August 1996 for kicking another student, he has not
received office referrals prior to the knife incident. He makes B's
and C's for the most part, and passes from grade to grade. He tends
to get off-task in class, especially when his medication for ADHD is
wearing off, but usually is easily redirected by his teachers. At
times his activity level is high. The March 1, 1998 CIA reflects that
concern was expressed by one or more teachers that he has difficulty
working with peers; however, he has been observed by numerous school
staff participating in games and normal social interactions with his
classmates, at both his regular campus and the GAP. His off-task
behavior at school frequently consists of talking to his classmates.
20. David has friends at school. He has
satisfactory relationships with peers and teachers. He has not
exhibited at school a characteristic over a long period of time and
to a marked degree that adversely affects his educational
performance. His anxiety about being arrested and placed in AEP was
not abnormal for a boy who has never been in serious trouble before,
and such anxiety has not been exhibited over a long period of time.
Further, it did not affect his educational performance at the GAP,
where he did well academically and behaviorally.
21. David has a musculature problem
with his eyes, for which he wears glasses. He has had eye surgery in
the past to correct crossed eyes, and is expected to have eye surgery
again. His corrected vision with glasses is 20/20. He receives
classroom modifications such as preferential seating and written
copies of work put on the overhead projector, and his vision does not
interfere with his classwork. Although his mother has reported that
he has vision problems at home and alerted his teachers to watch for
this, his teachers have not seen this at school and have seen no
interference with his education due to his vision. During her testing
for the March 1, 1998 CIA, Ms. Gilchriest noticed his eye pulling to
the left at one point and asked David if he wanted to take a break.
His testing was not affected. The CIA's performed by the district
dated April 24, 1995, and March 1, 1998, tested visual-motor
integration and indicated that David was in the average range of
reproducing and integrating visual information.
22. David does not have a hearing
problem or auditory processing problem that affects his education.
David is appropriately classified as learning disabled in written
expression. David has received timely and appropriate assessments by
the district.
Discussion
Disciplinary Procedures
On February 26, 1998, David, a
sixth-grader, brought a switchblade knife to school and showed it to
another student, who took it to the principal. District personnel
called police, who identified the knife as an illegal weapon and
arrested David. He was suspended from school for three days,
beginning the day of the arrest. District personnel initially
informed his mother that he would be expelled, apparently believing
they had no choice due to the "mandatory" expulsion
provision for bringing a weapon to school in Tex. Educ. Code §
37.007. The district ultimately assigned David to an alternative
educational placement, the GAP, for 20 school days, of which he
attended approximately eleven days. He was not expelled and no
expulsion hearing was held. The GAP placement was appropriate and the
relevant IDEA procedural safeguards were provided for this placement.
Twenty days in an alternative education placement was not an
excessive or inappropriate consequence for bringing a knife to
school, and took into account David's status as a special education
student and one who had not serious prior disciplinary infractions.
His placement there was designed to address the behavior of bringing
a knife to school and prevent a recurrence. He was provided an
appropriate education and performed well at the GAP, both
academically and behaviorally.
Tippit Middle School principal Carlos
Cantu, by letter dated March 10, 1998, informed the parents that in
lieu of expulsion, he was ordering David to attend GAP for 20 school
days, beginning on March 17, 1998, pending the result of a District
Placement Review Committee meeting on Monday, March 16, 1998 (which
was the first school day after spring break). David and his family
were unable to attend the review committee meeting because it
coincided with David's great-grandmother's funeral. On that day, Mrs.
A. left a message with school staff requesting that the meeting be
rescheduled to after the funeral so that she could attend. Linda
Taylor, the GAP principal and the facilitator of the review committee
meeting, knew about the funeral but chose to go forward with the
meeting, testifying that district policy does not require parental
presence at such meetings.
The timing of the review committee
meeting was unfortunate, but Petitioner did not demonstrate that the
district thereby violated any rights under IDEA. IDEA authorizes
school personnel to order a change in the placement of a child with a
disability to an appropriate interim alternative educational setting
for not more than 45 days if the child carries a weapon to school or
a school function. 20 U.S.C. § 1415(k)(1)(A). This provision is an
exception to the stay-put provision in 20 U.S.C. § 1415(j).
The statute does not prescribe which
school personnel will make the placement decision or what procedures
they will use. It does not require that a committee of administrators
review the principal's initial recommendation, as was done in this
case, and it does not require that parents attend this or other
administrative meetings of school staff concerning the disciplinary
decision. IDEA does, however, prescribe detailed procedural
protections for the student in this situation, and the district
complied with these by holding a timely ARD committee meeting and
performing a manifestation determination and a functional behavioral
assessment, developing a behavioral intervention plan, and
determining that the GAP was an appropriate AEP setting. See 20
U.S.C. § 1415(k)(1)(B) and (3)-(7).
At the ARD committee meeting held on
March 6, 1998, Petitioner's attorney was present and Respondent's
attorney was not. After the March 1998 CIA had been reviewed, but
before the manifestation determination had been performed, the
special education director, Stephanie Blanck, recessed the meeting
because she believed the district needed the advice of its legal
counsel to proceed. Petitioner argues that the recess was a
procedural violation because only a parent can request an ARD
committee recess. That argument is without merit. Ms. Blanck and
Petitioner's attorney were in disagreement about the application of
various special education laws, and the district was entitled to
recess to have its attorney present. However, Ms. Blanck
incorrectly asserted during the meeting that parents must speak for
themselves. Parents can choose to have an attorney or other advocate
speak for them at an ARD committee meeting, and their doing so would
not be a valid reason for the district to recess a meeting.
The ARD committee meeting was resumed
on March 24, 1998, which was within the timelines required by IDEA
for the manifestation determination and other procedural requirements
discussed above.
Petitioner did not demonstrate error in
the ARD committee determination that David's bringing a knife to
school was not a manifestation of his learning disability or his
ADHD. The knife incident appears to be an isolated instance of poor
judgment, perhaps triggered by his pride in the knife collection he
keeps at home. The manifestation determination was based on a recent
CIA completed shortly after the knife incident. Information was
provided by the parent as part of the CIA and also in the ARD
committee meeting held to do the manifestation determination. David
has been well-behaved at school both before and after bringing the
knife to school. He did not threaten anyone with the knife and
appeared remorseful about having made a mistake. Under the
circumstances, the fact that he brought a knife to school did not
trigger a duty to perform a psychological assessment, and did not
render the recent CIA inappropriate because it did not include a
psychological assessment. The school later did provide a
psychological assessment at the parent's request, and it found David
not to have an emotional disturbance.
Assessment and Identification of
Disabilities
Petitioner did not demonstrate that
David should be classified as having a serious emotional disturbance
(SED). Petitioner asserted that David has dysthymia, an adjustment
disorder, and possibly an anxiety disorder. The school's March 1,
1998 CIA and Dr. Keene's psychological evaluation found no such
disabilities, and Petitioner did not demonstrate that David has
exhibited a symptom or characteristic over a long period of time and
to a marked degree that adversely affects his educational
performance. 34 C.F.R. § 300.7(b)(9). Although he has ADHD, it is
controlled by medication and addressed by classroom modifications,
and does not warrant an SED classification. As Dr. Keene testified,
David's anxiety about being arrested and placed in an AEP appears
normal for a boy who is not accustomed to being in trouble. Anxiety
did not impair his educational performance because he did well at the
GAP, earning "merits" for good behavior and making good
grades. His urinary retention problems emerged while he was at the
GAP, but were not shown to be caused by anxiety about the GAP,
because his mother testified that the problem had recurred at least
once after he returned to the regular classroom. The urinary problems
are recent, have not occurred over a long period, and may be caused
or aggravated by Ritalin. Both Dr. McFarley and Dr. Rauch expressed
concerns that David needed his Ritalin dosage adjusted and/or a
different medication.
Although Dr. McFarley testified that
David has dysthymia, David has not exhibited symptoms of even mild
depression at school. Other than the isolated knife incident, David
exhibits good behavior at school, and his parents have reported good
behavior at home. He appears to have normal social interactions, and
in fact plays and talks with other students enough that his teachers
must sometimes intervene and redirect him to his work. David has been
generally successful at school, making B's and C's in recent years
with the exception of failing math one nine-week period last fall. He
passed both the reading and math sections of the TAAS in fifth grade,
and has moved to progressively less restrictive placements during his
academic career.
David is appropriately classified as
learning disabled in written expression. Petitioner did not
demonstrate an educational need for identifying David as having
vision impairment, speech impairment, auditory processing or hearing
impairment. Petitioner also did not demonstrate a lack of timely and
appropriate assessment of David's disabilities.
Independent Educational Evaluation
(IEE)
Respondent filed a counterclaim as part
of this proceeding, asserting that its March 1998 CIA and the
psychological assessment the district provided were appropriate,
thereby precluding Petitioner's claim that the district pay for the
IEE obtained by Petitioner. Respondent's CIA and psychological
assessment were appropriate. Petitioner is not entitled to an IEE at
public expense.
Educational Program
The burden is on Petitioner, the party
challenging the educational program, to prove it is not
appropriate.Tatro v. State of Texas, 703 F.2d 823 (5th Cir. 1983),
aff'd 468 U.S. 883 (1984). Petitioner did not demonstrate that
David's IEP, placement, or program were inappropriate. David was in a
resource placement early in his elementary years. He was moved out of
resource prior to third grade, and dismissed from speech therapy at
the end of third grade. David's current placement is in the regular
classroom with content mastery and appropriate classroom
modifications to address his learning disability, his ADHD, and his
vision problems. He receives numerous classroom modifications, but he
does not receive modified grading criteria, and he is passing from
grade to grade. He is receiving a FAPE in the least restrictive
environment appropriate.
Although David struggles with math
homework, he is passing math and he passed the fifth-grade math TAAS
test. Both the school's March 1998 CIA and Petitioner's own expert,
Dr. McFarley, found him to be on or above grade level in math.
David's parents are frustrated that he did not finish more of his
math homework during content mastery and spent a lot of time on math
at home. His medication has worn off by evening and it is difficult
for him to stay on task at that time. While the school needs to
continue to take initiative to ensure that he works diligently on
math during content mastery, Petitioner has not demonstrated a denial
of FAPE concerning math or other academic subjects.
Conclusions of Law
1. David A. qualifies for special
education and related services as a student who has a specific
learning disability in written expression. He also has medical
diagnoses of ADHD and a problem with the musculature of his eyes. He
is entitled to a free appropriate public education under IDEA. 20
U.S.C. § 1400 et seq., and related statutes and regulations; 34
C.F.R. § 300.7(a)(10).
2. David A. resides in Georgetown ISD,
a legally constituted independent school district within the State of
Texas.
3. David A. has an appropriate IEP, has
received a free appropriate public education and an educational
benefit, and has made educational progress in Georgetown ISD.
Hendrick Hudson District Board of Educ. v. Rowley, 458 U.S. 176
(1982).
4. David A. is placed in the least
restrictive environment appropriate. Daniel R.R. v. State Board of
Educ.,874 F.2d 1036 (5th Cir. 1989).
5. David A. was appropriately placed by
the district in an alternative education placement for 20 days. The
district timely provided the procedural safeguards prescribed by IDEA
for placing a disabled student who brings a weapon to school in an
alternative education placement, including a timely ARD committee
meeting, performing an appropriate manifestation determination and
functional behavioral assessment, developing an appropriate
behavioral intervention plan, and determining an appropriate
alternative education setting. 20 U.S.C. § 1415(k)(1)(B) and
(3)---(7).
6. The manifestation determination
performed by the ARD committee was based on proper assessment, as
well as information supplied by the parents, observations of the
child, and consideration of the child's IEP and placement. Petitioner
did not prove error in the determination that David's bringing a
knife to school was not a manifestation of his learning disability or
his ADHD. 20 U.S.C. § 1415(k)(4).
7. Petitioner did not show an IDEA
violation on the part of GISD in its recessing an ARD committee
meeting attended by Petitioner's legal counsel so that the district's
legal counsel could attend.
8. Petitioner did not show an IDEA
violation on the part of GISD in its failure to reschedule an
administrative disciplinary committee meeting so that David and his
parents could attend.
9. Petitioner did not show an IDEA
violation on the part of GISD by the presence of a probation officer
at the March 6, 1998, ARD committee meeting.
10. The Georgetown Alternative Program
was an appropriate placement for David and he received an appropriate
education while attending there. He continued to participate in the
general curriculum, received services and modification described in
his IEP, and received services and modifications designed to prevent
his behavior of bringing a weapon to school from recurring. 20 U.S.C.
§ 1415(k)(3).
11. Under the exception to the stay-put
provision for bringing a weapon to school, David A. was not entitled
to a stay-put placement in regular education pending the decision of
the Hearing Officer in this due process hearing. 20 U.S.C. §
1415(k)(ii).
12. Petitioner did not prove that GISD
failed to provide appropriate and timely assessments, or that GISD
failed to timely identify a disability or disabilities. David A. was
not shown to qualify for special education as a student who has a
serious emotional disturbance, vision impairment, speech impairment,
hearing impairment, or auditory processing disorder. 34 C.F.R. §
300.7.
13. David A. was not shown to meet IDEA
criteria for serious emotional disturbance because he was not shown
to have a condition over a long period of time and to a marked degree
that adversely affects his educational performance in conformity with
34 C.F.R. § 300.7(9).
14. The March 1998 comprehensive
individual assessment was an appropriate CIA. The April 1998
psychological assessment by Dr. Keene was an appropriate assessment.
Petitioner is not entitled to reimbursement for the independent
educational assessment obtained by the parents. 34 C.F.R. §
300.503.
15. Petitioner did not meet the burden
of proof necessary to prove entitlement to related and support
services including occupational therapy, counseling, parent
counseling and training, social work services, or tutoring. Tatro v.
Texas, 703 F.2d 823 (5th Cir. 1983).
16. Petitioner did not meet the burden
of proof necessary to show entitlement to compensatory services,
summer school, an independent psycho-educational assessment, or
reimbursement for expenses relating to assessments and counseling.
Tatro v. Texas, 703 F.2d 823 (5th Cir. 1983).
Statutes Cited
20 U.S.C. 1415(k)(1)(A)
20 U.S.C. 1415(j)
20 U.S.C. 1415(k)(1)(B)
20 U.S.C. 1415(k)(3)-(7)
20 U.S.C. 1415(k)(4)
20 U.S.C. 1415(k)(3)
20 U.S.C. 1415(k)(ii)
Regulations Cited
34 C.F.R. 300.7(b)(9)
34 C.F.R. 300.7(a)(10)
34 C.F.R. 300.7
34 C.F.R. 300.7(9)
34 C.F.R. 300.503
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