Information, Events, Tips and Advice for Parents of Special Needs Children in Pennsylvania

FROM THE LEGAL DESK: U.S. SUPREME COURT HITS TWO HOME RUNS FOR KIDS IN JUNE

Question: Can a school district be required to reimburse parents for the cost of placing their disabled child in a private school, even though the student never received special education services from the district?

Answer: Yes.

Question: Can a school district or its employees be held liable for violating the Fourth Amendment right of a 13-year-old student to be free from an "unreasonable search" when they required her to strip down to her underwear and expose her intimate areas to inspection because they believed she may be concealing prescription drugs that she reportedly was giving to other students?

Answer: Yes. The court found that the search violated the student's Fourth Amendment rights. However, it held that the individual school officials involved in this specific search were legally "immune" to liability because the law governing the limits of such searches by school officials was unclear at the time they performed the search (in 2003), and it remanded the case to the lower court to determine whether the school district itself could be held liable for the violation of the student's Constitutional rights by the school officials.

Nutshell

The U.S. Supreme Court's answer to the first question is loud and clear. It ruled in Forest Grove School Dist. v. T.A. that under the Individuals with Disabilities Education Act (the "IDEA") a school district may be required to reimburse parents for the cost of placing their disabled child in an appropriate private school, even though the child had been found ineligible for special education by the school district and never had an IEP. The student in Forest Grove attended the public school for almost 11 years before his parents removed him and placed him in a private school equipped to deal with his ADHD and learning disabilities. During that time, the school district evaluated the struggling student and found him ineligible for special education. The Supreme Court rejected the district's argument that new language added by Congress to the IDEA in 1997 barred parents of disabled children from obtaining private school reimbursement, if their child had not previously received special education services at school.

Second, in Safford Unified Sch. Dist. #1 v. Redding, the Supreme Court upheld the Fourth Amendment right of the middle school student involved there to be free from an "unreasonable search." The court found that an assistant principal had a "reasonable suspicion" that the girl in question was distributing prohibited, prescription drugs at school, based in part on the report of another student and the discovery of four prescription-strength ibuprofen and one over-the-counter naproxen pill in a planner owned by the student. This suspicion justified searching the student's backpack and outer clothing for drugs, according to the court. But the court held that the administrator's knowledge of the type of drugs and the limited quantity likely to be involved, the limited threat presented to other students, and the lack of specific information indicating the student was concealing drugs in her underwear, did not support a strip search of the child under the legal standard required by the Fourth Amendment. Although the court further held that the assistant principal and two other involved school staff had "qualified immunity" to a lawsuit under these circumstances, it remanded the case to the federal district court to determine whether the school district itself could be held liable for the unconstitutional acts of its officials.

Now, you know the "news." Want more information on these cases? Keep reading.

The Forest Grove Decision

Facts

Every special education "case" tells a story. Ever since kindergarten, a student in Oregon struggled with paying attention in class and doing his homework. Over the years, his problems worsened. At his parents' request, the school conducted an evaluation during the student's ninth grade year to determine if he had a disability that would qualify him for special education and related services under the "IDEA." When the evaluation was completed, the psychologist and other school personnel held a meeting with the boy's mother, in which all agreed that the student did not qualify for special education.

With much help from his parents, the boy completed his sophomore year, but his problems worsened during his junior year. In March of that year, the parents retained a private evaluator, who diagnosed the student with ADHD and learning disabilities and recommended placement in a structured, residential learning environment. Four days after placing their child in a private academy for special needs children, the parents hired a lawyer to notify the district of the action taken. In April, they requested an administrative due process hearing. In July, the school evaluated the student again, concluding that his ADHD did not have a big enough impact on his educational performance to qualify him for special education under the IDEA. The parents pressed on with "due process" under the IDEA, seeking reimbursement of the cost of placing their child in the private school.

Path to the Supreme Court

After hearing testimony from expert witnesses and others, the hearing officer found that the student's ADHD interfered with his educational performance and that the school's failure to find the student eligible for special education violated the IDEA. The hearing officer therefore ordered the district to reimburse the parents for the cost of the private school tuition. On appeal, a federal judge set aside the hearing officer's decision, citing language in the IDEA limiting reimbursement of private school tuition to disabled children "who previously received special education and related services." On further appeal, a federal "circuit" court reversed the district court's decision, focusing on different language in the IDEA, which states that in any action brought under the IDEA, a court "shall grant such relief as the court determines is appropriate," and on prior Supreme Court decisions in Burlington Sch. Committee v. Massachusetts Dept. of Education and Florence County Sch. Dist. Four v. Shannon Carter that interpreted this language to give judges broad power to grant relief in IDEA cases, including private school tuition reimbursement. The school district's appeal to the Supreme Court followed.

Supreme Court's Analysis

Judges often must decide close questions dealing with how to interpret a law passed by Congress. Here, the Supreme Court was required to determine what Congress meant when it added certain language to the IDEA in 1997 that could be read to limit a parent's right to recover reimbursement of private school tuition from a school district. That new language reads in part: "If the parents of a child with a disability, who previously received special education and related services ... " enroll their child in a private school without the district's consent, a court or hearing officer "may require" the district to reimburse the parents for the cost of that enrollment "if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment." (Emphasis added). But, as indicated, there is other language in the Act that broadly authorizes a court to "grant such relief as [it] determines is appropriate." So did Congress intend to limit this broad grant of authority to judges when it amended the IDEA and included the new language in 1997? That is the question the court needed to answer.

A majority of six justices on the Supreme Court, in an opinion written by Justice Stevens, held that the parents of the Oregon student were entitled to receive private school tuition reimbursement under the IDEA, even though their son had never received special education services. They reasoned that if Congress really intended to prevent parents from recovering private school tuition reimbursement for disabled children who had never received special education services from the public school district, it could have said so in the Act in clear and unmistakable language. The language it added in the new private school reimbursement section of the 1997 amendments to the IDEA (quoted in boldface above) could be interpreted in different ways, in this view, and therefore was not clear enough to meet the high standard required.

The court further reasoned that Congress could not have intended to empower school districts to avoid liability for private school cost reimbursement to parents by the simple expedient of finding a disabled student ineligible for special education. According to the court, this would undermine IDEA's primary purpose of providing eligible, disabled children with the special education they need.

Writing for the dissent, the now-retired Justice Souter found that the language added by Congress in 1997 limiting private school tuition reimburse to students "who previously received special education and related services" is a clear statement of Congress' intent to enforce this limitation. Personally, we think Justice Souter made a very strong argument, and we are surprised that the two conservative justices on the court, Chief Justice Roberts and Justice Alito, did not join with him, which would have resulted in a 5/4 decision in favor of the school district.

Effect of Forest Grove

It can be difficult to predict how broadly a Supreme Court decision will be applied in future cases. Certainly, the Forest Grove decision will mean that a parent will not be disqualified from recovering private school tuition reimbursement from a school district merely because the district evaluated the student and found the student to be ineligible for special education. In such cases, parents may choose to unilaterally withdraw the student from the district, after notifying the district of their intention, place the student in a private school, and seek reimbursement from the district for the cost of the placement.

But remember that winning such cases is not easy. A parent must still prove that (1) the district improperly denied the student a "free appropriate public education" under the IDEA, (2) the private school is an appropriate placement for the student, and (3) fairness favors reimbursing the parent for the cost of the private school placement.

We think the first and third "elements" of the required proof will tend to limit the scope of the Forest Grove decision. So, for example, we think parents who never request the district to evaluate their special needs child, remove her from the public school, and place her in a private school, will face an uphill battle in recovering tuition reimbursement because they may be found to have acted "unfairly" in not "cooperating" with the school district. An even harder case, in our view, would be one in which parents remove their disabled child from a private school, such as a Catholic school, place him in a different private school where his special needs can be addressed, and then seek reimbursement from the local public school district.

Parents must remember that in a tuition reimbursement case their claim for reimbursement can be reduced or denied, if they are perceived by the hearing officer or judge as having failed to cooperate with the school district or as having treated the district unfairly. In these cases - and in nearly all special education cases - we advise our clients to "ride the white horse." We want judges to want to find in our clients' favor.

The Safford United Decision

Facts

In October 2003, Savana Redding was a 13-year-old student at Safford Middle School west of Phoenix, Arizona. An assistant principal, Kerry Wilson, summoned Savanna to his office, there showing her an open, unzipped day planner containing several knives, lighters, a permanent marker, and a cigarette. Savana admitted owning the day planner, but stated that she had lent it to a friend a few days earlier and did not own the items inside it. Wilson then showed Savana four white prescription-strength ibuprofen and one over-the-counter naproxen pill. These pills used for pain and inflammation were banned under school rules, without prior permission. Wilson told Savanna that he had received a report that she was giving these pills to other students. Savana denied knowing anything about the pills or giving them to other students. With Savana's permission, Wilson and an administrative assistant searched her backpack, finding nothing.

At that point, Wilson instructed the assistant to take Savana to the school nurse's office to search her clothes for pills. The assistant and the nurse asked Savana to remove her jacket, socks and shoes, leaving her in stretch pants and a T-shirt, which she was then asked to remove. Finally, they told Savana to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area. No pills were found.

Supreme Court's Decision

The legal question presented to the Supreme Court was whether the 13-year-old student's Fourth Amendment right to be free from an unreasonable search was violated by the search of her bra and underpants by school officials acting on suspicion that she was giving prescription drugs to other students.

The Fourth Amendment to the Constitution protects the "right of the people to be secure ... against unreasonable searches and seizures ..." As interpreted by the Supreme Court, this Amendment prevents a police officer, for example, from searching a person without "probable cause"; that is, without a reasonable knowledge that the individual being searched may be committing a crime or had committed a crime.

Because school officials have a special responsibility to protect from harm the students in their care, courts have held that they do not have to meet the high "probable cause" standard that applies to a police officer searching a suspected robber on the street. Instead, the Supreme Court has interpreted the Fourth Amendment to require only a "reasonable suspicion" by a school official that a crime or a violation of school rules is being or has been committed in order to perform a search of a student or her possessions. The standard the court developed for the school setting asks whether the search was "reasonably related" to the school officials' objectives and "not excessively intrusive in light of the age and sex of the student and the nature of the infraction."

Applying this standard, the court held that the search of Savana Redding violated the Fourth Amendment. On the day of the search, a friend of Savana's had been found in possession of the "planner" that Savana later admitted she had lent to her friend. Shortly before that day, another student had told the principal that Savana and other students had given prescription pills to other students at school. The court ruled that this and other relevant information that was reported to the assistant principal was sufficient to create a "reasonable suspicion" that Savana was violating a valid school rule prohibiting such pills and to justify a search of her outer clothing and backpack. But the court found that the type, quantity and strength of the prescription drugs involved, the relatively lower safety threat that these pills presented to the other students, the absence of any reports or information indicating that Savana was hiding the drugs in her underwear, and the student's young age, were factors indicating that the search of her underwear was unreasonable and excessively intrusive, in violation of the Fourth Amendment.

But the law is a thicket sometimes! Did the court find the assistant principal and the other school officials individually liable for violating Savana's Fourth Amendment rights? No. It held that those officials had "qualified immunity" protecting them against liability here because under the law existing at the time of the search in 2003 it wasn't clear that the search was illegal. In other words, the school officials couldn't have reasonably known at that time that they were doing something wrong.

Nor did the court hold the school district itself liable to Savana and her parent. Under governing law, in a "civil rights" case like this one an agency cannot automatically be held liable merely because it is the employer of someone who violated a person's civil rights. Instead, there must be proof that the alleged wrongdoer - primarily the assistant principal in this case - was acting in accordance with the agency's official policy or custom when he performed the search in question. The Supreme Court decided that this decision was better left to the lower court, which could hear additional facts on this issue and make a ruling on whether the school district itself was liable to Savana Redding and her parent for damages. So the parties here will have still another "day in court," unless they "settle" the case between themselves.

Effect of Safford United

The Safford United decision serves as a welcome reminder to school districts that there are limits under the Fourth Amendment on how far they can go in searching a student and that an excessively intrusive search potentially can result in liability for school officials individually and for the school district itself.

But it must be read in light of the particular circumstances surrounding the search of Savana Redding. Every search involves different facts. A school official sometimes can be required to make close judgments on an urgent basis in balancing the right of an individual student to be free from an "unreasonable" search against the official's responsibility to protect other students in her charge. Generally, courts give school officials a fair amount of leeway in making these decisions, especially in this post-Columbine, post-Virginia Tech era. Nevertheless, the Safford United decision demonstrates that the more intrusive the search, the closer the courts will scrutinize them under the Fourth Amendment and the greater the potential for a school district and its officials to be held liable.

Questions? Comments? We like to think about - and discuss - the law. That's part of the reason we're lawyers! Want to talk to us about it? Contact us anytime.