May 2009

Case of the Month: Shaeffer v. Weast, (4th Cir., January 29, 2009)
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This case sounds familiar because it has been litigated since Brian Shaeffer was in the 8th grade during the 1998-1999 school year. He has long since graduated high school, but the case lives on, most notably for a 2005 US Supreme Court decision affirming the ALJ's initial assignment of burden of proof to the parents. This most recent 4th Circuit decision affirms the ALJs decision on the merits - that the district's 8th grade IEP for Brian, developed ten years ago, provided FAPE.

The story: Brian attended private school through 7th grade, when his parents asked the district for a program to address his ADHD and other learning disabilities. The district evaluated him, found him eligible as a learning disabled student and developed an IEP with parent participation. The IEP included: reading and writing support in a resource room for 45 minutes per day; co-taught (regular ed and special ed teachers) classes for English, Science, and World Studies; speech-language therapy for 45 minutes per week; general education classes for art, math, and PE; and accommodations across all classes (computer use, copies of lecture notes, preferential seating, etc.).

When the parents objected to the proposed placement at the neighborhood public middle school, the district offered an alternative location with an additional class in the learning center. The parents believed the student needed a placement with smaller classes due to an auditory processing problem and filed for a due process hearing, seeking tuition reimbursement and placement in a private school. The administrative law judge found the district offered FAPE.

Here, the 4th Circuit agreed, finding that the IEP the district and parent developed for 10th grade, calling for placement in a high school learning center, did not prove the earlier placement was inappropriate. Determination of FAPE is based on looking forward, not looking back. Further, the parents' experts were not as credible as district staff at the hearing. Neither expert had observed or was familiar with the co-teaching model used at the middle school, and one expert had only met with the student for ten minutes. In the end, the primary flaw with the parents' argument was that they "sought more than the IDEA requires". The parents' experts were seeking small classes for the student to "maximize his potential" rather than to provide him educational benefit under Rowley.

Lessons learned: This case shows just how "broken" the special education litigation model is. Ten years is way too long to answer a question as simple as "did the 8th grade IEP provide FAPE?" This case screams for alternative dispute resolution. But alternative dispute resolution takes reasonable parties with reasonable expectations and a willingness to be child focused in an era of extremely limited public dollars. Are there creative solutions to these types of problems? Absolutely! Are we willing to try? I can only hope the answer is yes.