August 1st CLE - Moritz College of Law

Report
OHIO COMPLAINT RESOLUTIONS,
DUE PROCESS DECISIONS, AND
DISTRICT COURT DECISIONS:
2012-2013
RUTH COLKER
DISTINGUISHED UNIVERSITY PROFESSOR
MORITZ COLLEGE OF LAW
THE OHIO STATE UNIVERSITY
AUGUST 1, 2013
OVERVIEW
 TOPICS:
 COMPLAINT RESOLUTIONS
 DUE PROCESS DECISIONS
 DISTRICT COURT REVERSALS
 THEMES
 BLAME THE MOTHER
 STINGY RELIEF
 ERRORS BY HEARING OFFICERS
 BETTER RESOLUTIONS BY COMPLAINT INVESTIGATORS WITH NOTABLE
EXCEPTIONS
OVERVIEW OF COMPLAINT RESOLUTIONS
 May 2012 to May 2013:
 81 Complaints
 51 Pro-parent/student (63 %)
 30 Pro-district (37 %)
 Significant variation by investigator and by school district
SORTED BY INVESTIGATOR
 Laughlin: 11 complaints (82 % success rate)

9 pro-parent/student: Cincinnati, Wilmington, Toledo, Hilliard (3), Bright Local, Allen East, Brunswick

2 pro-district: Warren Local, Cleveland
 Cline: 21 complaints (52 % success rate)

11 pro-parent/student: Willoughby, Toledo, Chagrin Falls, Westerville, E. Muskingum, Heir Force, Cincinnati(2), Batavia, Meigs Local, Richmond
Heights

10 pro-district: Columbus (3), Winton Woods, Cincinnati (4), Wilmington, Hillsdale
 Bockrath: 4 complaints (75 % success rate)

3 pro-parent/student: Barberton, Newbury Local, Martins Ferry

1 pro-district: Rocky River
 Petrasek: 4 complaints (50 % success rate)

2 pro-parent/student: Ohio Virtual Academy, Danbury

2 pro-district: Canton, Lima
 Drvota: 19 complaints (74 % success rate)

14 pro-parent/student: Twinsburg, Columbus Preparatory Academy, Norwood, Bethel, Finneytown, Strongsville, Toledo, Lockland, E. Muskingham,
St. Mary’s, Brookville, Cincinnati, Columbus, Parma

5 pro-district: Springfield, Strongsville, Pickerington, Hamilton, Boardman
 Rensch (2 with Sharabi): 22 complaints (54.5 % success rate)

12 pro-parent/student: Columbus(3), Focus Learning Academy, Shaker Heights, North Canton, Solon, Steps Center for Excellence in Autism,
Newbury, Par Excellence Academy, Evergreen, Olmsted Falls

10 pro-district: Worthington, Columbus, Focus Learning Academy (2), Switzerland, Solon (3), Dublin, Autism Academy
EXAMPLES OF SUCCESSFUL ISSUES IN
COMPLAINTS
 1.
Who is in attendance at IEP meetings
 2.
Lack of parent communication/progress reports
 3.
Poor scheduling of meetings with Parents
 4.
Poorly Written IEPs
 5.
Failing to have continuum of alternative placements
 6.
Improper use of seclusion and restraint
 7.
Obligations of community schools
 8.
Failing to conduct evaluations/child find
WHO SHOULD BE IN ATTENDANCE AT IEP
MEETINGS
 CP 0048-2012 (Cincinnati)(Laughlin):

Need to have at least one regular education teacher if child is participating in
the regular education environment

Must have a District representative who is knowledgeable about the
availability of resources for the District. Must be able to authorize services.

Parent must be provided an opportunity to participate. (Can’t have another
group, without parent, make determination after the meeting.)
 CP 0168-2012(Hilliard)(Laughlin)

But parent found to have consented to certain individuals being absent from
meeting.
 CP 0158-2012 (Bright Local)(Laughlin)

Parent requested attendance of science teacher. Facilitated IEP meeting with
new science goal.
 CP 0043-2013 (Columbus)(Drvota)

No one present to interpret speech results

Moving from ETR to IEP procedurally defective because of lack of notice to
parent of an IEP meeting.
PARENT COMMUNICATION
 CP 0045-2012 (Twinsburg)(Drvota):
 IEP specified would call parent if grades worsened. Otherwise, just
expected parent to check parent portal available to all students.
 CP 0048-2012(Laughlin)(Cincinnati)
 Poor communication because drafts not labeled as drafts.
 One IEP not even signed.
 School district not clear about which meetings are “IEP meetings.”
 CP 0064-2012(Norwood)(Drvota)
 Called parent the morning of the manifestation meeting.
Inadequate notice.
 Progress reports placed in student’s backpack. Mailing
communications more effective.
 CP 0046-2012(Willoughby-Eastlake)(Cline)
 One of many examples of school district not providing prior
written notice. A PWN is required when school district denies
request to classify child as disabled.
SCHEDULING OF MEETINGS
 CP 0091-2012(Winton Woods)(Cline)
 One of many examples of parent not being able to
attend MFE or IEP meeting because couldn’t be
scheduled within required time limits. Parent may
have sought postponement for various reasons
including finding an advocate to assist.
 Ohio does not always find a violation but recent 9th
Circuit case suggests that meeting should be
rescheduled at parent’s request rather than be held
without parent. See Doug C. v. State of Hawaii Dept
of Education, No. 12-15079 (9th Cir. June 13, 2013).
 CP 0020-2013 (Cincinnati)(Cline)
 Ninth grade boy in foster care. Need to invite
mother or grandmother to meetings.
POORLY WRITTEN IEPs
 CP 0098-2012 (Strongsville)(Drvota)

Good example of ridiculously inadequate IEP (that parent consented to, initially). Tries to solve
student’s organizational problems by merely requiring student to take personal responsibility for
being organized.
 CP 0150-2012(Newbury)(Bockrath)

District used generic forms that had no data for specific student. No progress reports.
 CP 0168-2012(Hilliard)(Laughlin)

Annual goals were too vague. For example, original IEP said “Given a writing prompt, student
will write a response in a complete sentence.” 75 % mastery.

New IEP said: “Given a writing prompt of a familiar subject, student will independently write a
response of 1-4 sentences using correct spelling, capitalization, punctuation, form and proper
word spacing.”
 CP 0173-2012(Hilliard)(Laughlin)

Annual goals were too general. For example, original IEP said “Student will demonstrate
understanding and use of language. 80 % mastery.”

New IEP said: “The student will verbally state grammatically correct sentences to define,
describe, and express herself with details in the therapy setting.”
 CP 0231-2012(Heir Force Community School)(Cline)

Criticizes lack of effective behavior plan. Just sends child home.
 CP 0170-2012 (Westerville)(Cline)

Failed to develop FBA on a timely basis.
INADEQUATE INTERVENTION
 CP 0153-2012 (Hilliard)(Laughlin)

When student had attendance issues, school offered intervention of a shortened school
day, alternative school program, and home instruction when student failed to attend.
Private psychologist made suggestions that were ignored. When student transferred to
Middle School B, no evidence of any interventions. Only responsibility fell to parent -"parent agrees to implement more tools to help the student not get overwhelmed and
work with counselors on a treatment plan.” After transferred to school B, the parent
withdrew the student from the district to attend an online school. Student was allegedly a
victim of bullying, which State said should be resolved under Section 504 with a complaint
to OCR.
 CP 0246-2012 (East Muskingum)(Cline)

Inadequate IEP without measurable goals or clear roles for professionals. District provided
ESY to no students!
 CP 0196-2012 (Newbury Local)(Rensch)

Older student did not like reading “baby books.” Reading materials should be high interest
– low vocabulary so that student is ensured of having access to general curriculum.
 CP 0038-2013 (Meigs)(Cline)

Goals very general, such as “student will develop, practice and use strategies to answer
comprehension questions.”
FAILURE TO HAVE CONTINUUM OF
PLACEMENTS
 CP 0168-2012(Hilliard)(Laughlin)
 Investigator found that placement decision was based on student’s disability rather
than the unique needs of the student.
 But not chided for unnecessary delays despite citation to Musgrove letter.
 Parent found to have consented to certain individuals being absent from meeting.
 Parent not able to have child receive services while contested placement even though that
is parent’s clear intent.
SECLUSION AND RESTRAINT
 CP 0231-2012(Heir Force Community School)(Cline)
 Very very strong findings criticizing a community school’s use of restraint
 But contrast with Columbus complaint (CP 0203-2012)(Cline)
CP 0231-2012
(HEIR FORCE COMMUNITY SCHOOL)(CHRISTINE CLINE)
 Student was only in first grade but being subject to restraint frequently.
Parents were told that expulsion would result in the student's inability
to enroll in any other school in the state. On the day the student could
have been suspended for an eleventh day, and the school was required
to conduct a manifestation determination, the parents withdrew the
student from the school. When the parents tried to rescind the
withdrawal, the school stated that "classroom limits had been reached."
Investigation also found that school frequently called child's parents or
grandparents and had them pick up child early. OEC found that "having
students leave during the school day because of their behavior could
count as days of suspension under certain circumstances. Further not
providing specially designed instruction to meet the unique needs of the
student could also constitute a denial of FAPE." Also found that
inclusion setting may not have been LRE. "The third extremely serious
concern involves the practice adopted by several staff members at the
school of restraining this student frequently and having one person
carry the student to the office or other locations when he refused to
move." Documented a teacher noting that he or she actually sat on the
student's chest which investigator describes as "potentially lethal."
Complaint filed with Children's Services over alleged abuse of child.
OBLIGATIONS OF COMMUNITY SCHOOLS
 CP 0231-2012
(Heir Force Community
School)(Cline)
 Very strong language about obligation
of community schools to educate
children rather than force them to
withdraw
 CP 0030-2013
(Par Excellence Academy)
(Rensch)
 Did not properly prepare IEP and did
not have sufficient placement options.
DELAY IN EVALUATING STUDENT
 CP 0016-2013 (Cincinnati)(Cline)
 School District used FBA and BSP to delay student’s evaluation for nearly one year without providing
data that demonstrated that the BSP was providing an educational benefit to the student.

In contrast to CP 0182-2012 (Cline)(Columbus City Schools)

In contrast to CP 0168-2012 (Laughlin)(Hilliard School District)
 CP 0023-2013 (Brookville)(Drvota)
 District insisted that could not evaluate until tried interventions for 6 to 8 weeks.
 CP 0230-2012 (Evergreen)(Rensch)
 District said it needed to conduct five weeks of interventions before evaluating child. Not found to
have violated IDEA due to this fact (because other factors already caused it to be out of compliance)
but was cautioned due to this fact.
 CP 0014-2013(Columbus)(Rensch)
 District used lack of attendance as excuse not to conduct evaluation. After complaint filed, agreed that
poor attendance due, in part, to behavioral difficulties.
OTHER ISSUES
 CP 0042-2012 (Ohio Virtual Academy)(Petrasek)
 Not equipped to provide specialized services
 CP 0049-2012 (Columbus Preparatory Academy)(Drvota)
 Inappropriate behavior plan and segregating behavior
 CP 0071-2012 (Toledo City Schools)(Cline)
 No evaluation until parent submitted complaint. Conducted evaluation without parent
participation.
 CP 0083-2012 (Bethel Local School District)(Drvota)
 Filing complaint caused district to comply with closed captioning rules from IEP.
 CP 0056-2012 (Columbus)(Rensch)
 Filing complaint led to facilitated IEP meeting and manifestation determination that
behavior was result of not following behavior plan.
OTHER ISSUES
 CP 0121-2012 (Toledo)(Drvota)
 School district delayed IEP and then slow to change it after behavior worsened.
 CP 0141-2012 (Toledo)(Laughlin)
 Inappropriate behavior plan
 CP 0106-2012 (Lockland Local)(Drvota)
 IEP has insufficient behavior plan
 CP 0147-2012 (Wilmington)(Laughlin)
 Poor transition planning
 CP 0144-2012 (North Canton)(Rensch)
 District blamed parent for “effectively unilaterally removing the student from school” rather than
acknowledging severity of student’s medical problems.
 CP 0056-2013 (Richmond Heights)(Cline)
 Parent paid for evaluation; little data to suggest that interventions suggested were implemented
or effective
SOMETIMES INVESTIGATOR FINDS OTHER
ISSUES
 CP 0199-2012 (East Muskingum)(Drvota)
 Parent complained about way school district reported progress but
investigator found no rule violated. Student did not receive some OT
and compensatory services will be provided.
 Although not subject of complaint, investigator also found other
problems such as opportunity to examine records, parent
participation at meeting, PWN, definition of IEP -- progress reports
specific to the goals and objectives.
IHO AND SLRO OPINIONS
 1.
SE 2603-2011, SLRO 2603-2012 (pro-District)
 Procedural violations but no finding of substantive harm
 School district removed services to allegedly help student function more independently
 2.
SE 2609-2011, SLRO 2609-2011 (pro-District)(won’t discuss further)
 Longstanding dispute by parent whose child was sent to Educare
 District court cases under Horen v. Bd. of Educ. of City of Toledo Public School District
 3.
SE 2662-2012, SLRO 2662-2012 (pro-Student)
 Found no FAPE for two years but still ordered no compensatory education
 IHO tried to apply new Ohio seclusion rules before they had gone into effect
 4.
SE 2702-2012 (pro-District)
 Pro se parent who isn’t able to follow rules
 5.
SE 2802-2013 (pro-Student, in part)
 Blamed mother but provided some relief for being forced to home school
 6.
SE 2804-2013 (pro-District)
 Blamed mother
 Refuses to provide relief despite procedural violations
SE 2603-2011, SLRO 2603-2012 (STRONGSVILLE
CITY SCHOOL DISTRICT) (PRO-DISTRICT)
 Parents did not receive complete progress reporting regarding IEP vocational goals 4 and 5 over the course of
the 2010-2011 school year. Parents also did not receive final reporting on student’s 2010-2011 IEP.

Procedural violation but no finding of substantive harm.

“I am reluctant to determine that a progress reporting error would ‘significantly impede’ a parent’s ability to participate in
a student’s educational programming where the parents did not take reasonable steps to work through the claimed
deficiency without litigation.”

BUT, hearing officer orders district to provide missing reports to parents, as a remedy for procedural violations, pursuant
to (k)(iii).
 Parents objected to IHO saying: “Petitioners must present evidence demonstrating that, no matter what
information they were to provide the school district, the school district would be unwilling to consider
alternatives.” (IHO, p. 21). The “no matter what” language was criticized. (SLRO at 10)

SLRO found that parents take the “no matter what” language out of context. Other language shows a fuller consideration
of the facts.

SLRO: “The fact that the District independently made IEP decisions prior to the IEP team meeting is permitted under
IDEA without amounting to a predetermination.” Found that IEP meeting was not a “sham.” (p. 14)
 One on one services removed allegedly to allow student to attain more independence despite no evidence
that meaningful benefit could occur without one-on-one services

IHO: “Meaningful benefit does not require that a Student master or even progress on every objective in an IEP – it is
measured cumulatively …. Moreover, levels of progress must be judged with respect to the potential of the particular
child.” (IHO, p. 32)
SE 2662-2012, SLRO 2662-2012 (PRO-STUDENT)
(GREEN LOCAL SCHOOL DISTRICT) (IHO RON ALEXANDER)
 18 year old student with Prader-Willi Syndrome. School district used a
“chill room” to control his behavior even though not on IEP. Parents
unilaterally placed student at Latham Center and sought
reimbursement.
 Favorable decision by IHO (Ronald Alexander) but 220 page opinion is
riddled with typos and makes many clear legal errors. Also fails to
provide parents with full relief despite strong findings.
SE 2662-2012 (CONT.)
 Found decisions to place student in Chill Room to be “predetermined.”
 But Chill Room not even mentioned in IEP. Not clear what that even means.
 Found that school district should pay the cost of enrolling student at
Latham Center but found he has “no authority” to award travel and
transportation expenses.
 But IDEA clearly permits payment of travel and transportation. Is child supposed to walk
there?
 Ordered relief beyond two year statute of limitations
 Referred to new Ohio rules about seclusion and restraint that had not yet
gone into effect.
 Parents requested three additional years at Latham as compensatory award
for no FAPE for three years. IHO found that request too mechanical so
ordered NO compensatory award at all!
SE 2662-2012: COMPENSATORY AWARDS
 Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005)
(case relied upon by IHO in this case, and often cited by Sixth Circuit)
 The decision by the hearing officer is supposed to be "a fact-specific
exercise of discretion by either the district court or a hearing officer.”
 That decision can be overturned if it is "an abuse of discretion."
 An award of "zero" is an abuse of discretion!!
 The Reid court also said (with respect to the proposed hour per day
formula): "we have no basis for concluding that 810 hours — barely
more than half of a single academic year — would suffice to make up
for Matthew's four-and-a-half years without FAPE, especially considering
that during that period he developed 'counterproductive' reading
habits."
SLRO 2662-2012 (MONICA R. BOHLEN)
 Not appropriate to describe use of Chill Room as “seclusion”:
 “Courts have found that the purpose of placing a student in a ‘timeout’ serves the
legitimate ends of modifying a student’s behavior without expelling him and
preserving the rights and interests of other students in receiving an education.” (p.
44)
 No discussion of standards for compensatory awards.
 Cleaned up some of IHO’s errors but did not reverse reimbursement
determination.
SE 2802-2013 (BULLYING ISSUE) (PRO-STUDENT IN PART)
(HUDSON CITY SCHOOL DISTRICT) (IHO TODD ANTHONY MAZZOLA)
 Students allegedly gave candy to students which was allegedly laced with
drugs. Also gave her derogatory notes. Parents argued unsuccessfully that
a school district’s deliberate indifference to or failure to take reasonable
steps to prevent bullying of student with a disability can result in a denial of
FAPE.
 School district cited ODE Case No. SE-2300-2009E for the proposition that
allegations of bullying cannot be claimed as a violation of IDEIA. In that
case, the IHO said: “The undersigned finds that since the assaults were not
a concern under this student’s educational plan and since the assaults were
not in any way a form of imposed discipline by the school or otherwise part
of the school sanctioned educational plan, then the assaults cannot be found
to have violated student’s rights under IDEIA. See Smith v. Port Hope
School District (August 6, 2007), 2007 WL 2261419, No. 05-10267.” (Linda
Warner, IHO)
 The cited case is from E.D. Michigan and the IDEA count was dismissed because amended
complaint did not raise issue and they did not exhaust their IDEA procedural remedies.
SE 2802-2013
(CHANGE IN PLACEMENT ISSUE)
 School district forced parents to educate student at home after school
staff resigned who was assigned to student. Supposed to be temporary
until student “will have an opportunity to display more appropriate and
safe behavior in the school environment” but, of course, that is
impossible if student is at home!
 IHO ruled for student but found that “staffing crisis was one largely
created by Mother and her adversarial relationship with [ ] staff. The
further crisis caused by abrupt resignation was a trickle-down effect
from that original crisis.” (p. 38)
SE 2804-2013 (PRO-DISTRICT)
(WILMINGTON CITY SCHOOLS) (IHO LINDA R. WARNER)
 Student was already on a Section 504 plan. Mother sought child being
placed on an IEP to avoid being placement at Alternative School for rest
of year due to discipline problems. Expedited complaint.
 Impossible burden of proof:
 “[I]n order to meet the burden this parent must establish not only that this student
should have been provided services under an IEP, but she must also prove that had
the student been served under a properly drafted and implemented IEP the behavior
which resulted in the suspensions or removals either would not have occurred at all,
or if they would have occurred, the behaviors would have been or should have been
determined to be a manifestation of the child’s disability.” (p. 31)
 This is another “blame the mother” case.
SE 2804-2013 (CONT.)
 Unremedied procedural error:
 School conducted an ETR on February 17, 2011 and never reached a decision about
whether student was eligible for services. Despite no ETR, “this hearing officer finds
this student is not eligible for special education services.” (p. 24)
 “This IHO finds that there may very well have been a procedural violation involved in
this matter by failing to timely reconvene and have team consensus report from the
evaluation team, after the February 17, 2011 meeting. However, nothing in that
procedural violation amounted to any substantive violation and therefore there was
no harm.” (p. 44)
 Hard to see how District’s failure to reach a conclusion about disability
status after ETR is harmless error in case whose sole issue is whether
child should have been classified as disabled.
DISTRICT COURT CASES
 Reversed IHO or SLRO:
 Gibson v. Forest Hills (transition services)
 P.C. v. Miford Exempted Village Schools (change in placement)
 Affirmed SLRO:
 Horen v. Toledo School District (Educare case)
 Hupp v. Switzerland of Ohio Local School District (FAPE issues; procedural errors
but no substantive harm)
 T.J. v. Winton Woods School District (SLRO reversed IHO; district court affirmed
SLRO)(same lawyer who brought P.C. v. Milford case)
GIBSON V. FOREST HILLS (IHO)
 SE 2381-2009 (Forest Hills)(Tobie Braverman)
 Hearing officer blames parents for difficulties finding agreement with school. Father
described as glaring at witnesses. Mother testified that school district personnel were liars,
despicable and malicious. (p. 8)

Nonetheless, parents did prevail on several grounds:

Student shall be provided with an IEP goal designed to increase reading fluency

Student shall be provided with an IEP designed to increase number and money skills

Student shall be provided with an IEP goal designed to decrease prompt dependency

Revised goals regarding bilateral hand coordination and maneuvering

Compensatory education in the amount of 240 hours for reading and math instruction

Procure an augmentative communication assessment
 “The inability to formulate and execute an IEP has been precipitated in substantial part by
Petitioners’ conduct … As a result, the IHO cannot find, as requested, that Petitioners are
the prevailing party herein.” (IHO, pp. 24-25)
GIBSON V. FOREST HILLS (SLRO)
 SLR 2381-2009 (Forest Hills)(Monica R. Bohlen)
 Parents filed for due process regarding:
 1.
failure of IHO to award relief in areas of communication/assistive technology,
transition and related services.

 2.
failure to order appropriate transition services.
 3.
failure to find lack of meaningful participation
 4.
failure to consider section 504 claims
 5.
failure to use correct standard in determining prevailing party status, and
 6.
failing to order two years of compensatory education
Parents lost on all claims. (There were no cross-appeals by school district.)
 I predicted at last year’s session that SLRO would be reversed on appeal.
GIBSON V. FOREST HILLS LOCAL SCHOOL DISTRICT, BOARD
OF EDUCATION, 2012 WL 1197896 (APRIL 10, 2012 S.D. OHIO)
 Even though school district had not filed a cross-appeal before SLRO, it
filed an action in federal court challenging relief that was ordered by
IHO.
 Gibsons moved to have that case dismissed because school district had
not exhausted state administrative proceedings.
 Federal district court granted dismissal.
GIBSON V. FOREST HILLS SCHOOL DISTRICT BOARD OF
EDUCATION, NO. 1:11-CV-00329 (S.D. OHIO JUNE 11, 2013)
 Parents prevailed on claim 2 (of 6 claims): Transition services
 Chloe turned sixteen in December 2007 and was not invited to any IEP
meetings even though the Federal and State regulations state that a school
district “must invite” the student to IEP team meetings when postsecondary
goals will be discussed. This procedural violation would not result in
substantive harm if the school district took other steps to ensure that
Chloe’s preferences and interests were considered. That did not occur here.
 Court concludes that Forest Hills failed to properly develop transition
services. It also concluded it did not have sufficient information to determine
an appropriate remedy. Must meet with the parties to discuss how to
proceed as to the remedy. (p. 28)
 Parties agreed to hold the prevailing party and attorney fees issues in
abeyance until the resolution of the substantive issues.
P.C.V. MILFORD EXEMPTED VILLAGE
SCHOOLS (IHO)
 SE 2472-2010 (Milford Exempted Village Schools)(Braverman)
 Student had been receiving reading services from private placement at Langsford
Center using LindamoodBell methodology for many years. School district wanted to
move student to Milford Public School. Had reached a mediated settlement previous
year. In 2010, District filed for Due Process when parent refused to consent to
change in placement.
 IHO ruled for District:
 IHO found that Langsford Center “has not provided student meaningful educational benefit
over its four years of use to demonstrate that it warrants continued instruction in a more
restricted environment than that which will be provided by Petitioner’s proposed placement
at Student’s school.” (IHO, p. 9)
 Even though IHO agreed that school district intended to eliminate reading services at the
Langsford Center, IHO found there was no predetermination. It “demonstrates nothing
more than the fact that this disagreement was ongoing and had not been resolved to
Petitioner’s satisfaction.” (IHO, p. 13)
P.C.V. MILFORD EXEMPTED VILLAGE
SCHOOLS (SLRO)
 SLR 2472-2010 (Milford Exempted Village Schools)(Mues)
 “[T]his SLRO does not find that the IHO in her decision indicates that the
Lindamood-Bell reading program is clearly not appropriate, only that the amount of
success achieved in the program has not been so significant to warrant continued use
when School District can offer a reading program in a less restrictive environment.”
(SLRO, p. 6)
 Affirmed IHO.
 Not clear what it means for District to have Burden of Proof. Why can
District change placement without showing that current placement is
inappropriate?
P.C.V. MILFORD EXEMPTED VILLAGE SCHOOLS, 2013 WL
209478 (S.D. OHIO JAN. 17, 2013)
 The district court found that Milford predetermined R.C.’s change of placement. Many




discussions among school personnel occurred prior to IEP meeting in which they expressed
determination to move R.C. back to Milford, even before deciding what reading program would
be used. “[T]he record here shows that officials went beyond forming opinions and, instead,
became impermissibly and deeply wedded to a single course of action: that R.C. not continue at
Longsford.” (slip op. at *7)
“R.C.’s teacher Donna Roberts testified that Milford was prepared to ‘go the whole distance this
year which means the [parents] will be forced into due process.’” (slip op. at *6)
“Here, the preponderance of the evidence shows that Defendant first decided to withdraw R.C.
from Langsford and then began to decide on what goals to pursue and which methodologies to
try.” (slip op. at *9).
Court declined to rule whether school district committed a substantive violation by proposing
an IEP that does not confer a meaningful educational benefit. “[B]ecause the Court has already
determined that Defendant committed a procedural violation that resulted in substantive harm
denying Plaintiffs meaningful participation in the IEP development process, the Court need not
decide whether Defendant’s proposed IEP amounted to a substantive violation of the IDEA.”
(slip op. at *10)
District court declared parents to be the prevailing party and invited parents to submit a fee
petition for reasonable attorney fees and expenses.
OTHER NOTABLE CASES
 Alexander v. Lawrence County Board of Developmental Disabilities, 2012 WL




831769, No. 1:10-cv-697 (March 12, 2012 S.D. Ohio) (victory for parents)
This is a civil action on defendants’ motion for judgment on the pleadings. Kim Alexander
brought this case on behalf of her son, M.L., for violations of substantive and procedural
due process, violation of equal protection, violation of section 504, negligence and/or
gross negligence, and breach of contract. They had already entered into a settlement with
defendants under IDEA. Lawyer for plaintiffs was Kenneth D. Myers (Cleveland).
M.L. attended Open Door School, for children with multiple disabilities, from 2006 to
2010. Problematic behaviors escalated during that time. Plaintiff alleged that defendants
“frequently physically restrained M.L. using a variety of techniques that included basket
holds and prone restraints, which consisted of having as many as five employees ‘hold M.L.
face down on the ground while’ sitting on him.” (slip op. at * 2).
Also alleged that his education regressed while at ODS. By the time he left ODS at age
fourteen, he could not read at a first grade level.
This is an important case to establish right to compensatory and punitive
damages for harm from physical restraint after exhausting IDEA remedies.
OTHER NOTABLE CASES (CONT.)
 Galloway v. Chesapeake Union Exempted Village Schools Board of Education, 2012
WL 5268946, No. 1:11-cv-850 (Oct. 23, 2012, S.D. Ohio) (victory for parents)
 This is a civil action on defendants’ motions to dismiss. Joseph Galloway and his parents
brought this action against the various defendants alleging that he was the victim of disabilitybased discrimination, harassment and bullying by teachers and students in the Chesapeake
school system since 2005. Joseph turned 18 years old on September 25, 2011.
 For example: one teacher repeatedly questioned Joseph about his seizures in front of the entire class and
questioned whether he really had seizures; students threw water on their pants to mock the fact that during
seizures Joseph could become incontinent; students would call Joseph “seizure boy,” with the knowledge and
approval of the teacher; a student destroyed a class project Joseph had constructed; students would move
Joseph's belongings, hide his belongings, shove him, threaten to break his computer, steal his backpack, and
damage his computer; a student pulled a chair out from behind Joseph; a student punched Joseph in the back;
students encouraged Joseph to commit suicide; and the bullying culminated in several sexual assaults, in which
students would come up behind Joseph in a locker room and grind their penises into Joseph's back. (slip op. at
1)
 This is an important case to establish right to damages for harm from disability-
based bullying.These claims survived dismissal:
 Equal Protection against individual supervisory defendants and individual teachers
 Section 504 and ADA claims
 Title IX claim
CONCLUSION
 These cases provide stark evidence of school districts writing entirely
inadequate IEPs, blaming parents for children’s challenges, and use of entirely
inappropriate seclusion and restraint
 Complaint process is sometimes helpful to remedy these glaring defects.
 IHO opinions reflect weak use of citation, heavy burden of proof on parents
and light burden of proof on school districts with narrowest possible
remedies
 District courts seem more hospitable to these claims than IHO’s but
requires an endurance contest to get that far.
 What can we do to improve professionalism of IHO and SLRO opinions in
Ohio?

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