Child
Entitled to Education That is Appropriate . . . and Free
On
May 6, 1998, the U. S. Court of Appeals for the Sixth Circuit issued
a decision in Cleveland
Heights-University Heights v. Sommer Boss.
To learn about the child's right to a free appropriate public
education, we'll examine the factual and legal issues in this
case.
Background
Several
"red flags" went up before Sommer entered school. Although
educational experts know that retention
is not recommended for children whose academic skills are
delayed, Sommer's school recommended that she be held back from
Kindergarten. Her Kindergarten teacher recommended that she be evaluated
for special education services.
The district evaluated her and found that she was eligible for speech
and language services. Although
Sommer's reading skills were deficient, the district did not offer
any special education services to remediate her reading problems
but placed her into their existing Chapter I reading program.
Over
the next three years, Sommer's reading and other academic skills
declined. She fell further behind her peer group. During these years,
her report cards said her progress was "satisfactory."
In
first grade, Sommer's reading skills were at the 15th percentile.
By the end of third grade, her reading skills had dropped to the
5th percentile. (Note: To learn how to compute your child's
test scores into percentile ranks, read Understanding
Tests and Measurements)
The
"Action Plan"
When
Sommer's parents urgently requested help, the district developed
an "action plan."
This "action plan" called for the parents to secure private
tutoring during the summer. The school would "monitor her progress"
during fourth grade.
Sommer
Needs Remediation
After
a disastrous third grade, Sommer's parents had a private evaluation
of their daughter. The reading tutor said Sommer would never catch
up unless she received intensive instruction. The tutor advised
the parents to place her in The Lawrence School.
The Lawrence School is a private school for children with learning
disabilities that focuses on teaching children with learning disabilities
how to read, write, spell and do arithmetic. While the children
learn basic skills, they are also taught course content.
Placement
in Private School
The
parents asked the school district to provide Sommer with intensive
instruction. The district did nothing. Sommer's parents took the
tutor's advice and placed their daughter in The Lawrence School.
The
district did not evaluate Sommer until after the school year began.
By this time, Sommer was attending The Lawrence School. The school's
evaluation showed that Sommer had a reading disability.
In
May of that year, Sommer's parents asked the district to provide
their daughter with an appropriate special education program.
At
first, the district insisted that they were under no obligation
to help Sommer because she was no longer one of their students.
Finally, the district agreed that they were responsible for providing
special education services and developed an IEP.
School's
IEP - Inadequate and Inappropriate
The
parents rejected the school's IEP as inadequate and inappropriate.
The IEP goals and objectives were vague. The IEP did not include
a way to measure Sommer's progress objectively. the IEP did not
explain what services Sommer would receive while she was mainstreamed.
The district refused to modify or make any changes to the IEP.
Hearing
Officer Orders District to Reimburse Parents
Sommer's
parents requested a special education due process hearing. The
Hearing Officer found that the district failed to provide Sommer
with a free, appropriate education. He ordered the district to reimburse
the parents for her tuition.
The
school district appealed.
Appeals
The
State Reviewing Officer agreed that the district failed to provide
Sommer with a free appropriate education and ordered the district
to reimburse the parents for her tuition at the private special
education school.
The
district appealed the adverse decision to the United States District
Court.
The
district court ruled that the school failed to provide Sommer with
a free appropriate education. The judge ordered the school district
to reimburse the parents for her tuition.
The
district appealed to the United States Court of Appeals for the
Sixth Circuit.
In
their appeal, the district claimed that: the IEP in question was
only a "first draft;" that the deficiencies in the IEP
were "minor technicalities;" that because the private
school only enrolled children with learning disabilities, it failed
to meet the mainstreaming requirement of IDEA.
The
Court of Appeals for the Sixth Circuit disagreed. The Court ordered
the school to reimburse the parents for Sommer's tuition at the
Lawrence School.
Citing
U. S. Supreme Court decisions in Burlington and Carter,
the Sixth Circuit wrote:
.
. . it is clear that the IDEA was intended to provide BOTH a free
AND an appropriate education for disabled children and the Act should
not be read to provide one of these benefits at the expense of the
other.
Read
the decision in Sommer Boss' case
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