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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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Revised 09/09/08

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