April 2009

Case of the Month: Salem-Keizer School District, DP 08-120 (ODE, December 23, 2008) - high school math

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In 2008, there were 28 due process hearings filed in Oregon. All but five were settled or withdrawn for other reasons. This case is one of the five that went to hearing. Like most cases that go to hearing, it turns on what is "FAPE". Here, the question is whether a high school student with autism and a specific learning disability in math needed "exclusive one-on-one tutoring" in math for FAPE.

As a junior, the student took Algebra I and, predictably, had difficulty. In November, the parents filed a due process hearing seeking "exclusive one-on-one tutoring" for math. The district and parents settled, with the district providing one-on-one services for several months in the spring and for ESY in the summer.

Although the student had fulfilled his math requirement for graduation (he passed Algebra I with a "D"), he wanted to take another year of math to increase his chances of getting accepted to college. Again the parents filed a due process hearing to seek continuation of the one-on-one math tutoring.

This time the case did not settle and the ALJ agreed with the district that placement in the LRC academic support class was reasonably calculated to provide educational benefits to the student, and one-on-one tutoring was not necessary.

Here are some of the factors that influenced the outcome of this case:

• The ALJ found the parent had limited credibility as a witness because the parent was "uncooperative and evasive during the hearing" and withheld documentation. The student's credibility was affected by poor memory and s/he was "overly influenced by Parent, who had a strong bias against District."
• The district's autism specialist gave expert testimony that the student could learn in the academic support class, and would benefit from peer involvement in that setting, which was less restrictive than one-on-one tutoring.
• The district offered to make one-on-one tutoring available in a separate space when needed in specific situations.
• The student's voluntary participation in band and other classes with background noise detracted from the premise that the student could not learn with other students in the LRC.
• Given the student's age and limited time left in public education, providing math instruction in the LRC would be more likely to prepare the student for future learning and living environments.
• The IDEA does not guarantee a placement that parents and students prefer. (Here, the student did not like for other students to know that he needed help in math.)
• An increase in math scores alone was not persuasive evidence that "exclusive one-on-one tutoring" in math was necessary for APE.
• Although staff held "pre-meetings" before some of the IEP meetings for the students, these pre-meetings were used to develop proposals and did not constitute "predetermination" of IEP or placement.

Lessons learned: On the surface, it is surprising this case went to hearing, but sometimes districts just feel enough is enough. The ALJ confirmed that what the district was offering was not only reasonable but also consistent with IDEA. Hopefully this lesson will not be lost on other families contemplating legal action.