Opinion
Frivolous Claims in Special Ed Cases: DC v Jeppson
At the time M.Jeppson (“M.J.”), an early-deaf child, was growing up, no D.C.
public school program existed for the hearing impaired. D.C. Public Schools
(“DCPS”) funded M.J.’s tuition to a private school for four years. Later,
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 interpret sounds
requires specialized training different from teaching a deaf child how to
function in a hearing world.
The stay-put provision provides that during any further proceedings, the
child must remain in the current educational placement until a decision is
made.
M.J.’s parents and educational team 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 stay-put provision provides that during any
further proceedings, the child must remain in the
current educational placement until a decision is
made.
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.
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.
During the stay-put period, DCPS was required to prove that its placement
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 argue that M.J. was actually
hearing impaired instead of unable to
distinguish sounds.
Clearly 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 to teach 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 a program component for the newly
hearing.
However, the DCPS program only used teaching methods for the
profoundly deaf, which are not the same teaching methods designed
to help the newly hearing. Thus, M.J.’s legal team argued that the
newly created DCPS hearing impaired program was clearly not
intended for the newly hearing to handle their speech and 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.
DCPS could have chosen to spend their monies on developing 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. It didn’t seem to occur to DCPS that the money spent on
attorney salaries and fees
could have been better spent on improving their programs instead.
Instead, DCPS spent its money on more court costs. They appealed to 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 stay-put period during the parents appeal,
even though DCPS paid the private school directly and never gave the money to
M.J. in the first place.
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.
Imagine how much money parents have to
expend in attorney’s fees to rebut unsupported
DCPS’s appeals against a hearing officer’s
decision.
However, DCPS has deeper pockets and attorneys on staff who can drag on
frivolous 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.
By Melissa Ngaruri