Evelyn Howard-HandWalsh, Anderson, Brown, Gallegos

and Green, P.C.

Private placement cases turn on two main issues.

Did the district offer FAPE? If not, is the private program

appropriate? There are defenses available, but if the

district loses on these two issues, they are likely going to owe something.

Kindergarten teacher spotted some problems almost immediately. Slow progress in reading.

C.B. declared eligible (LD) in 1st grade. Reading rate in 1st grade went from 3

wpm to 13; district rated this as “slight” progress.

Very slow progress continued in 2nd, 3rd grade.

End of 3rd grade: 32 wpm.

Teacher invited C.B. to summer program before 4th grade—Orton-Gillingham method.

Teacher saw big improvement after nine one-hour sessions.

But by the time 4th grade started, he had regressed again.

W-J III showed reading at 0.1 percentile. C.B. has average intelligence.

School officials suggested to the mother a move to another public school where the CLASS program was used for kids who need intense interventions.

Mom balked, concerned over boy’s self esteem and social skills.

IEP did not suggest the CLASS program.

The goal is still to get him to a 1st grade level in reading. Thus he is falling further behind.

“By the end of 4th grade, C.B.’s reading level was less than what he had achieved the previous summer, and far below the fluency expected of a student at the end of 4th grade.”

And it was even worse when 5th grade started.

School brings up the CLASS program again, but agrees to keep C.B. in his current school due to parental concerns.

Progress is still very slow. At the end of 5th grade, he reads 2nd grade material at 55 wpm.

Parents enroll C.B. in the Groves School for 6th grade.

Parents ask school to pay for this. School says no. Litigation.

ALJ (hearing officer) ruled for the student, noting that the district failed to make FAPE available and Groves was appropriate.

Parent then filed suit to seek attorneys’ fees. District filed appeal of ALJ decision.

District court agreed with ALJ that district did not provide FAPE.

But……

But held that parents were NOT entitled to reimbursement because Groves was too restrictive.

90% of the students at Groves had IEPs due to learning disabilities.

CLASS program offered similar services in a less restrictive environment.

8th Circuit agreed that C.B. was deprived of FAPE:

“There may be instances in which an educational program that results in such slight progress is sufficient…but this is not such a case. C.B.’s intellectual ability consistently measured in the average range, and…he was socialized, well behaved and persistent.”

Court reversed the district court on the second issue, thus ruling in favor of the parents.

This is what makes this case interesting and important.

Court notes that LRE is a preference, not an absolute mandate.

If school fails to provide FAPE, parents have a “right of unilateral withdrawal.”

The private program passes muster if it is “proper under the Act” and “furthers the purposes of the Act.”

“It did not frustrate the purposes of the Act for C.B.’s parents to enroll him at Groves, where he could receive the educational benefit that was lacking in the public schools.”

Parents not required to give the school another try, especially when the CLASS program was never proposed in an IEP.

“A less restrictive environment is the ideal, but C.B.’s move to Groves after years of frustration in the public schools is a far cry from “the apparently widespread practice of relegating handicapped children in private institutions or warehousing them in special classes” that concerned Congress.”Quotes are from Burlington case.

C.B. v. Special School District No. 1, Minneapolis, Minnesota, 111 LRP 28683

8th Circuit April 21, 2011

Evelyn Howard-Hand Walsh, Anderson, Brown, Gallegos and

Green, P.C. ehand@wabsa.com www.walshanderson.com Austin, Texas