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| Home > Law > Caselaw > > Amanda J. v. Clark County Sch. Dist. and Nevada Dept of Educ. (NE) (9th Cir. 2001) |
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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
v. CLARK
COUNTY SCHOOL DISTRICT, AND NEVADA STATE DEPARTMENT OF EDUCATION, No. 99-17157 August 13, 2001 Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding. D.C. No. CV 98-01076-HDM Counsel: Geralyn M. Clancy, (argued) Varma & Clancy, Sacramento, California, for the plaintiff-appellant. Donna Mendoza Mitchell, (argued) Office of the General Counsel Clark County School District, Las Vegas, Nevada, for defendant-appellee Clark County School District. Melanie Meehan-Crossley (on brief), Deputy Attorney General of the State of Nevada, Carson City, Nevada, for defendant-appellee Nevada State Department of Education. Before: Michael Daly Hawkins, M. Margaret McKeown, and Kim McLane Wardlaw, Circuit Judges. The opinion of the court was delivered by: Wardlaw, Circuit Judge Argued and Submitted March 13, 2001--San Francisco, California OPINION Amanda
J., a minor, by and through her mother and Guardian Ad Litem, Annette
J., appeals from the district court's decision to affirm the State Review
Officer's ("SRO") conclusion that she received a free I. Statutory Background The
IDEA provides states with federal funds to help educate children
with disabilities if they provide every qualified child with a FAPE that
meets the federal statutory requirements. Congress
enacted the IDEA "to ensure that all children with disabilities
have available to them a free appropriate education that emphasizes special
education and related services designed to meet their unique needs"
and "to ensure that educators and parents have the necessary tools
to improve educational The
child's unique needs are addressed in an IEP, which is specially created
for that child through the collaborative efforts of the child's parents,
teachers, the local educational agency, and, in appropriate cases, the
child herself. 20 U.S.C. § 1414(d)(1)(B). To comply with the IDEA,
the IEP must describe the child's present performance levels, the educator's
short and long term goals, the specific educational services to be provided,
how much the child can participate in regular educational programs, and
objective criteria for measuring the child's progress. 20 U.S.C. §
1414(d)(1)(A). At a minimum, the IEP must be reviewed annually to measure
the child's progress and to modify her goals In
addition to establishing substantive requirements, the IDEA also includes
procedural safeguards which, if violated, may prevent a child from receiving
a FAPE. Among the most important procedural Copies
of"the evaluation report and the documentation of determination
of eligibility" must be given to the parent, 20 U.S.C. § 1414(b)(4)(B),
and parents have the right to "present complaints with II. Autism According
to two studies conducted in the mid-1980s, 3.3 of every 10,000 children
suffer from autism. [1] Autism is a developmental disorder of neurobiological
origin that "generally has lifelong effects on how children learn
to be social beings, to take care of themselves, and to participate in
the community." National Research Council, Educating Children
With Autism 9 (Catherine Lord & James P. McGee, eds., National
Academy Press 2001)[2]. The disorder is present from birth, or very early
Although
autism manifests itself in different ways, its symptoms in children are
often measurable by eighteen months of age. Id. at 20. The main
characteristics that differentiate autism from other developmental disorders
include "behavioral deficits in eye contact, orienting to one's name,
joint attention behaviors (e.g., pointing, showing), pretend play, imitation,
nonverbal communication, and language development." Id. According
to the National Academy of Sciences, "[w]ith adequate time and training,
the diagnosis of autism can be made reliably in two-year-olds by professionals
experienced in the diagnostic assessment of young children" with
autistic disorders. Id. at 3. Early diagnosis is crucial because
education (of children as well as of parents and teachers) is the primary
Without
early identification and diagnosis, children suffering from autism will
not be equipped with the skills necessary to benefit from educational
services. Id. at 170. A report by the National Research Council
analyzed ten educational intervention models for children with autistic
disorders. All ten programs emphasized "the importance of starting
intervention when children are at the earliest possible ages. " Id.
at 120. These studies showed that intensive early intervention "makes
III. Amanda J. Amanda J. was born in 1991. She and her family lived in Las Vegas, Nevada, in the Clark County School District, until they moved to California in October 1995. On January 18, 1994, when Amanda was two years old, she was evaluated by a psychologist at the Special Children's Clinic, who found her to be "moderately low" in communication and daily living skills and "adequate" in socialization and motor skills. The psychologist recommended that Amanda be placed in the District's early childhood program prior to her third birthday to determine her eligibility for special education and to promote her language-based needs. On
March 21, 1995, Amanda was evaluated by psychologist Mark Kenney, and
speech pathologist Christy Zuckerman, both of whom worked for the District.
Amanda's parents attended all of her evaluation sessions. Kenney's written
report indicated that Amanda's results on the Autism [h]er mother
reported that she whirled herself for long periods of time, did not play
with toys appropriately, seemed not to hear, lunged/darted about with
spinning, toe-walking, etc., had severe temper tantrums, had not developed
friendships, got involved with "rituals" such as lining things
up, had communication problems, and had strong reactions to changes in
routine/environment. Zuckerman
found that Amanda qualified as "severely autistic" under the
Childhood Autism Rating Scale, and recommended speech and language therapy
as well as further assessments in other areas. She also believed that"[s]pecific
activities should be developed and demonstrated in the On March 30, 1995, Amanda was evaluated by the school nurse, who found no health problems other than a concern for Amanda's hearing abilities. Amanda's mother did not consent to an audiological evaluation. On
April 6, 1995, an eligibility team determined that Amanda was eligible
for special education due to her difficulties in the areas of receptive
or expressive language, cognitive ability, self-help, and social On
May 6, 1995, the initial IEP meeting was held with Amanda's parents, an
early childhood special education teacher, and a District representative.
The IEP team recognized that Amanda "demonstrated delays in language,
cognitive, social skills, and self-help." Goals of "toilet training,
matching colors and shapes, establishing eye contact, making choices,
and following classroom activities and rules" were established. The
IEP placed Amanda in a specialized early childhood special education program
"to develop emerging skills to generalize to a large group-home setting,
" and included speech and language therapy "as needed. "
At the IEP meeting, Amanda's parents were given notice of their parental
rights and the procedural safeguards of both the IDEA and the Nevada Pursuant
to the IEP, Amanda enrolled in the Extended School Year Program, a program
designed to assist students in maintaining their current levels over the
summer break. Amanda's parents felt that six to eight weeks of instruction
would help Amanda continue to develop her emerging language skills. On
September 12, 1995, sixteen days after school officially started, Amanda
enrolled in Lynn Martin's [3] early childhood education class. While enrolled
in Martin's class, Amanda had some speech sessions with therapist Marshall
Fenig. Fenig's therapy "focused on attending to name, vocal or verbal
interaction and following directions." On a review sheet dated November
17, 1995 (completed after Amanda's family moved to California and left
the District), Fenig noted that, although On
October 17, 1995, Amanda's early childhood teacher, Martin, requested
an IEP review because she felt Amanda "was ready to have some of
her goals invested [sic]. She needed to have some of her cognitive goals
changed and she also was ready to have some fine motor goals added which
On October 23, 1995, a second IEP meeting was held. A state agency designee, Amanda's mother, and Martin were in attendance. During the review the IEP team noted that although Amanda had improved with respect to her toilet training goal, she still did not go to the bathroom independently, nor did she "use language to manipulate her environment," make eye contact when spoken to, or respond consistently to her name. Although Amanda was noted to display "amazing dexterity" in the fine motor skills area and had learned to copy a simple circle, she had poor pencil and scissors grasp. Amanda was also able to match all colors and shapes, work a simple inset puzzle, and complete complex tangrams. Individual instruction was recommended to improve her short attention span and lack of interest in cognitive games. The second IEP also recommended more specific speech and language therapy -- requiring sixty minutes a week rather than "as needed." Approximately eleven days after the second IEP assessment, on or around October 31, 1995, Amanda and her parents moved to California. Amanda had been enrolled in the District for forty-eight school days, twenty-six of which were in the Early Childhood Special Education Program. Soon after moving, Amanda was enrolled in the First Steps Preschool in Woodland, California [4], in an interim placement program. Amanda's mother signed an authorization for release/ exchange of information, which allowed Amanda's files to be transferred from the Siegle Diagnostic Center in Nevada to her preschool in California. The records were transferred on December 5, 1995, [5] and on December 15, 1995, a Yolo County IEP team in Woodland reviewed the interim placement and determined Amanda was properly placed. On December 15, 1995, Dr. Michael Harris, a physician and Amanda's uncle, referred Amanda to Dr. Robin Hansen, a professor of Pediatrics and the Director of Developmental and Behavioral Pediatrics at U.C. - Davis Medical Center, requesting that Amanda be evaluated because of characteristics denoting autism. Amanda was diagnosed as autistic for the first time on January 10, 1996, by Dr. Hansen, who referred Amanda's parents to Families for Early Autism Treatment and to the Alta Regional Center for a second opinion. On February 29, 1996, the Alta Regional Center confirmed the diagnosis of autism. One day earlier, on February 28, 1996, Amanda's mother had Amanda evaluated by Jane Germ and her employee Melissa Travis from American River Speech and Hearing Associates. Amanda was diagnosed with a severe language delay. Six months of intensive speech therapy was prescribed. American River did not diagnose Amanda as autistic. Amanda began an in-home intervention program with Vicki Wells using a discreet trial format [6] for fifteen hours a week on April 1, 1996. Amanda's parents funded this program. On
April 16, 1996, Amanda's parents requested an IEP review from the California
school district. At the IEP meeting, Amanda's parents were given updated
assessments from the Alta Regional Center and American River as well as
copies of the Clark County School District's early reports indicating
possible autism. When they finally saw copies of the District's reports,
Amanda's parents learned for the first time that the District had detected
the possibility of autism more than a year previously. The On
April 24, 1996, Amanda was evaluated by Dr. Bryna Siegel, Associate Adjunct
Professor and Director of Persuasive Developmental Disorders Clinic. Siegel
confirmed that Amanda was autistic and On
July 1, 1996, Alta Regional Center began funding Amanda's home intervention
program. On October 17, 1996, another IEP meeting was held in California
when Amanda's parents unilaterally decided to remove Amanda from the early
intervention program so that she could visit a kindergarten Amanda's parents requested a due process hearing in Nevada on October 24, 1997, to resolve whether Amanda had been correctly identified and whether she had received a FAPE. A due process hearing was held March 30-31, 1998. The
Hearing Officer concluded that Amanda had been misidentified as developmentally
delayed and had therefore been denied a FAPE. On June 28, 1998, the State
Review Officer reversed, overturning the credibility determinations of
the HO, concluding that Amanda's parents had been informed of the tests
suggesting a diagnosis of autism. The SRO did not reach the procedural
violations found by the HO. Amanda's family challenged the SRO's decisions
in federal court. Construing this case as IV. Standard of Review This
case requires us to conduct a multi-layered review of decisions of the
district court, the Nevada State Review Officer, and the District's Due
Process Hearing Officer. We review the district court's Under the IDEA, federal courts reviewing state administrative proceedings are to "receive the records of the administrative proceedings;" "hear additional evidence at the request of a party;" and "grant such relief as the court determines is appropriate" based on a preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(B). Thus, Congress intended "judicial review in IDEA cases [to] differ substantially from judicial review of other agency actions, in which courts generally are confined to the administrative record and are held to a highly deferential standard of review." Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993). Complete de novo review, however, is inappropriate. Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 624 (6th Cir. 1990). As the Supreme Court has held, we are not free "to substitute [our] own notions of sound educational policy for those of the school authorities which [we] review." Rowley, 458 U.S. at 206. Because Congress intended states to have the primary responsibility of formulating each individual child's education, we must defer to their "specialized knowledge and experience" by giving "due weight" to the decisions of the states' administrative bodies. Id. at 206-08. Here
we are confronted with a question the Supreme Court did not address when
it articulated the "due weight" standard of review in Rowley.
At the Due Process Hearing, the Hearing Officer concluded that: (1) the
District failed to properly identify Amanda as an autistic child; (2)
Amanda "gained very minimal educational benefits" from the program
she attended; and (3) Amanda's parents should be compensated for past
educational costs and awarded compensatory education. The State Review
Officer disagreed and reversed the HO's decision, in part because the
SRO Because we have not previously addressed this question, we turn to our sister circuits for guidance. We find ourselves in agreement with the conclusions of the Second, Sixth, and Seventh Circuits that, in most situations, due weight must be given to the final decision of the state authorities, which in a two-tiered system is that of the SRO. See Karl v. Bd. of Educ. of Genesco Cent. Sch. Dist., 736 F.2d 873, 877 (2d Cir. 1984) ("We believe Rowley requires that federal courts defer to the final decision of the state authorities, and that deference may not be eschewed merely because a decision is not unanimous or the reviewing authority disagrees with the hearing officer."); Thomas, 918 F.2d at 624 ("[F]ederal courts are required to defer to the final decision of the state authorities . . . ."); Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997) (relying on Thomas and Karl in holding that due weight must be given to the final state determination in a two-tiered review process). We also agree with our colleagues in the Second, Third, Fourth, and Tenth Circuits that when an SRO overturns the credibility determinations of an HO, due weight to the decision of the SRO is not warranted. The Fourth Circuit has held, for example, that in situations where two state administrative decisions differ only with respect to the credibility of a witness, the HO is "entitled to be considered prima facie correct." Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1992). In Doyle, the SRO reversed the HO's decision on the grounds that a particular witness's testimony was not credible even though the SRO had neither seen nor heard the witness testify. Id. at 104. Because
reviewing the credibility determination of a fact-finder was "so
far from the accepted norm of a fact-finding process designed to discover
truth," the court accorded due weight to the HO on the credibility
determination. Id. The court, however, was careful to limit its
holding to cases in which "a state administrative appeals authority
has departed from the fact-finding norm to such an extent as here."
Id. at 105. See, e.g., Springer v. Fairfax County Sch. Bd.,
134 F.3d 659, 663 (4th Cir. 1998) (rejecting Springer's contention that,
under Doyle, the decision of the HO must be given deference over
that of the SRO because (1) the HO had "no special claim to deference"
as it did in Doyle; (2) the The Fourth Circuit is not alone in recognizing this exception to the general rule that deference should be accorded to the final decision of state authorities. According to the Second Circuit, [t]here is no principle of administrative law which, absent a disagreement between a hearing officer and reviewing agency over demeanor evidence, obviates the need for deference to an agency's final decision where such deference is otherwise appropriate. Karl, 736 F.2d at 877. Similarly,
the Third Circuit has held that the credibility-based findings [of the
HO] deserve deference unless non-testimonial, extrinsic evidence in the
record would justify a contrary conclusion or unless the record read in
its entirety would compel a contrary conclusion. But beyond this rather
narrow class of record-supported, credibility-based factual findings,
we think that, to give the statute's language about `independent' decisions
effect, the appeals panel must have much more leeway in reviewing other
non-credibility based findings of the hearing officer. We will therefore
defer to the appeals panel rather than the hearing officer in most circumstances.
See Carlisle Area Sch. Dist. v. The Tenth Circuit is also in accord: [W]e
will give `due weight' to the reviewing officer's decision on the issues
with which he disagreed with the hearing officer, unless the hearing officer's
decisions involved credibility determinations and We
join our colleagues in holding that in a two-tiered state administrative
system due weight should be accorded to the final state determination
-- that of the SRO -- unless the SRO's decision deviates V. Free Appropriate Public Education We next consider whether Amanda received a FAPE as required by the IDEA. The IDEA was created "to bring previously excluded handicapped children into the public education systems of the States and to require the States to adopt procedures which would result in individualized consideration of and instruction for each child." Rowley , 458 U.S. At 189. To accomplish this goal, Congress provides federal funding to states that have "in effect policies and procedures to ensure . . . [a] free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21 . . . ." 20 U.S.C. § 1412(a)(1). A FAPE is defined by the IDEA as special education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(8). For purposes of the IDEA,"special education" means "specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including -- (A) instruction conducted in the classroom, the home instruction, in hospitals and institutions. " 20 U.S.C. § 1401(25). Thus,
a FAPE must be "tailored to the unique needs of the handicapped child."
Rowley, 458
U.S. At 181. Although the instruction provided need not be the"absolutely
best or `potential maximizing,' " Our inquiry in determining whether Amanda received a free appropriate public education is twofold. We must determine first whether "the State complied with the procedures set forth in the Act" and, second, whether "the individualized educational program developed through the Act's procedures [was] reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. At 206-07. "If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more." Id. at 207. A. Procedural Compliance Amanda
argues that the district court and the SRO failed to consider the procedural
violations of the Act and the Nevada Administrative Code, and therefore
erroneously determined that Amanda 20
U.S.C. § 1415 enumerates the procedural safeguards of the IDEA,
the importance of which "cannot be gainsaid." Rowley,
458 U.S. At 205. Procedural compliance is essential to ensuring that every
eligible child receives a FAPE, and those procedures which provide for
meaningful parent in
many instances the process of providing special education and related
services to handicapped children is not guaranteed to produce any particular
outcome. By changing the language [of the provision relating to individualized
educational programs] to emphasize the process of parent By mandating parental involvement and requiring that parents have full access to their child's records, Congress sought to ensure that the interests of the individual children were protected. See Rowley 458 U.S. At 208. Not only will parents fight for what is in their child's best interests, but because they observe their children in a multitude of different situations, they have a unique perspective of their child's special needs. Among
the procedural rights guaranteed
to parents by the IDEA is the right "to examine all records
relating to such child and to participate in meetings with respect to
the identification, evaluation, The
evaluation procedures provided
for in 20 U.S.C. § 1414 further emphasize the importance
of parental participation. They require "a copy of the evaluation
report and the documentation of determination of eligibility [to be] given
to the parent" after the initial eligibility evaluation has been
conducted. 20 U.S.C. § 1414(b)(4)(B). They also mandate that the
parent of the eligible child participate as a member of the "IEP
team" in designing the student's IEP, and, as such, the parent The critical nature of the provisions requiring and protecting parental involvement is highlighted when they are considered in light of the stated purposes of the IDEA. To accomplish the IDEA's goal of ensuring that "all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs," 20 U.S.C. § 1400(d)(1)(A), those individuals who have first-hand knowledge of the child's needs and who are most concerned about the child must be involved in the IEP creation process. The procedural safeguards facilitate this objective. They also help to ensure that "the rights of children with disabilities and parents of such children are protected," and that"educators and parents have the necessary tools to improve educational results for children with disabilities." 20 U.S.C. § 1400(d)(1)(B). Given the importance of the IDEA's procedural safeguards, it should be of no surprise that when a school district or other state agency violates "the procedural requirements of the Act by failing to develop an IEP in the manner specified, the purposes of the Act are not served, and the district may have failed to provide a FAPE." W.G. v. Bd. of Trustees of Target Range Sch. Dist., 960 F.2d 1479, 1485 (9th Cir. 1992). As the Supreme Court observed, [i]t
seems to us no exaggeration to say that Congress placed every bit as much
emphasis upon compliance with procedures giving parents and guardians
a large measure of participation at every stage of the administrative
process, see e.g., §§ 1415(a)-(d), as it did upon the measurement
of the resulting IEP against a substantive standard. We think that the
congressional emphasis upon full participation of concerned parties throughout
the development of the IEP . . . demonstrates the Not
every procedural violation, however, is sufficient to support a finding
that the child in question was denied a FAPE. Technical deviations, for
example, "will not render an IEP invalid." Burilovich v.
Procedural
violations that interfere with parental participation in the IEP formulation
process undermine the very essence of the IDEA. An IEP which addresses
the unique needs of the child cannot be developed if those people who
are most familiar with the child's needs are not involved Here,
the HO found that the District did not give Amanda's parents copies of
the psychologist's and speech pathologist's reports finding mixed results
on the autism tests, his recommendation to consider further psychiatric
evaluation, or the speech and language assessment indicating The
first time Amanda's parents saw the reports indicating possible autism
was in April 1996 during an IEP review in Woodland, California, after
the files had been transferred from the District in We
are not faced with a situation where the parents exhibited a "studied
lack of cooperation with ongoing attempts to develop the . . . IEP,"
as was the case in Roland. There the parents removed their child
from the school district and refused to allow independent testing of the
child. Roland, 910 F.2d at 994. On the contrary, this is a situation
where the District blatantly violated one of the Act's procedural requirements,
preventing full and effective parental participation, thereby "driv[ing]
a A
FAPE, as required by the IDEA, must be tailored to the unique needs of
each individual child. [10]Each child has different needs, different skills,
and a different time frame for effective treatment. We hold that, by failing to disclose Amanda's full records to her parents once they were requested, in violation of 20 U.S.C. § 1415(b)(1), the District denied Amanda a FAPE. The IEP team could not create an IEP that addressed Amanda's special needs as an autistic child without knowing that Amanda was autistic. Even worse, Amanda's parents were not informed of the possibility that their daughter suffered from autism -- a disease that benefits from early intensive intervention -- despite the fact that the district's records contained test results indicating as much. Not only were Amanda's parents prevented from participating fully, effectively, and in an informed manner in the development of Amanda's IEP, they were not even aware that an independent psychiatric evaluation was recommended, an evaluation that Amanda's mother testified she would have had performed immediately. These procedural violations, which prevented Amanda's parents from learning critical medical information about their child, rendered the accomplishment of the IDEA's goals -- and the achievement of a FAPE -- impossible. In
addition to violations of the procedures set out by the IDEA, Amanda argues
that § 388.387(2) of the Nevada Administrative Code was violated
because neither her parents nor a speech and language specialist was present
at the multi-disciplinary team meeting that determined her The multidisciplinary team members attending the April 6, 1995 meeting included a psychologist, a special education teacher, and a coordinator. No speech and language specialist was included. The SRO found that the eligibility determination for a child that was developmentally delayed was "signed by the appropriate team members." Because the multidisciplinary team met the requirements for identifying a child as developmentally delayed, and because Amanda was diagnosed as developmentally delayed, the SRO's conclusion was correct. Amanda further argues that failing to include her parents in the multidisciplinary meeting to determine her eligibility for special education violated their "right to meaningful participation." The IDEA requires that parents be included as part of the IEP team, 20 U.S.C. § 1414(d)(1)(B)(i), but does not contain a similar requirement for the team determining special education eligibility. Instead, § 1414(b)(4)(B) requires that parents receive "a copy of the evaluation report and the documentation of determination of eligibility." In 1994, the Nevada Administrative Code did not require that parents be included in the multidisciplinary team. See Nev. Admin. Code §§ 388.387 and 388.430 (1994). Because Amanda does not provide a specific statutory source for the right to be included in the multidisciplinary team meeting to determine Amanda's eligibility for special education, however, we do not find that this failure was a procedural violation. B. Educational Benefit Because we hold that the District failed to develop the IEP in accordance with the procedures mandated by the IDEA and that this failure in and of itself denied Amanda a FAPE, we do not address the question of whether the proposed IEPs were reasonably calculated to enable Amanda to receive educational benefits. See e.g., Target Range, 960 F.2d at 1485. Nor do we need to reach the question whether the district court erred by refusing to hear the testimony of Marshall Fenig, the District speech-language therapist who consulted in Amanda's early childhood education program. VI. Conclusion For the foregoing reasons, we reverse the decision of the district court and remand. On remand, the district court is instructed to reinstate the decision of the Hearing Officer. REVERSED and REMANDED. Opinion
Footnotes [2] Also available at http://www.nap.edu/books/0309072697/html [3] Martin had a master's degree in early childhood special education but no special training or experience with autistic children. Normally, she did not have autistic children in her class. Her classes usually contained children with a variety of speech and physical disorders, including children with Down's syndrome.[ [4] There is a discrepancy in the record regarding the date of Amanda's enrollment in the California school system. The SRO found that Amanda was placed in the preschool program on November 11, 1995, but the interim placement forms state that placement began on November 14, 1995. [5] Again, the record is unclear as to the date on which this transfer occurred. The SRO found that the records were transferred on December 11, but the Clark County records show that the files were transferred on December 5. [6] Discreet trial training ("D.T.T.") is one approach to educating children with autism. Developed by Dr. Ivar Lovaas, D.T.T. emphasizes early intervention, parental involvement, and treatment in non-professional settings, like the home or the community. [7] Neither the District nor the Nevada State Department of Education asserted an Eleventh Amendment immunity defense at any point during this protracted litigation. After the Supreme Court's decision in Board of Trustees of the University of Alabama v. Garrett, 121 S.Ct. 955 (2001), we sought supplemental briefing on whether Eleventh Amendment immunity shielded either of the appellees. We conclude that both parties waived any rights they may have had to invoke the Eleventh Amendment defense of sovereign immunity by their extensive participation in this litigation. See Hill v. Blind Indus. and Serv. Of Md., 179 F.3d 754, 763 (9th Cir. 1999) (holding that the state agency "unequivocally consented to the jurisdiction of the federal court by its conduct in appearing and actively litigating this case on the merits"). [8] The Carlisle court stated that "[t]he circuits have split on the question whether federal district courts acting pursuant to Rowley should accord due weight to the trial level hearing officer or to the appeals panel where the two bodies differ and where the appeals panel may not have properly deferred to the earing officer's findings." Carlisle Area Sch. Dist., 62 F.3d at 527. We do not believe a circuit split exists on this question. The cases are consistent when read in light of Doyle's limiting principle. [9] Although we "need not consider how much weight the trial court gave or ought to have given to the administrative findings" because this panel reviews the question of whether Amanda received a FAPE de novo, Gregory K., 811 F.2d at 1311, we note that here the district court erred by concluding that as a matter of law due weight should be given to the final decision of the SRO, rather than deferring to the HO's credibility determinations. [10] Congress is aware of the special educational needs of autistic children. In 1990, Congress amended the Act specifically to include children with autism as a special category under the definition of handicapped children. H. Rep. No. 101-544, at 4 (1990), reprinted in 1990 U.S.C.C.A.N. 722, 1726. It did so because it was "concerned to learn that some children, who by reason of their autism require special education and related services, continue to face difficulty in receiving a [FAPE]. By including autism in the statute, the Committee fully intends that children with autism, who by reason thereof require special education and related services, receive a [FAPE] designed to meet their unique needs. " Id. Of course, the special needs of an autistic child cannot be addressed without the knowledge that a child is autistic. FOR
PUBLICATION Caselaw You will find several important decisions about educating children with autism in the caselaw section, including: Stefan Jaynes v. Newport News (E.D. VA 2000) ABA/Lovaas case; child represented by Pete Wright (in pdf). Stefan Jaynes v. Newport News (4th Cir. 2001). ABA/Lovaas case; child represented by Pete Wright. Independent
Sch. Dist. No. 318 (MN SEA 1996). ABA/Lovaas case; child represented
by Sonja Kerr. Michael v. Kanawaha (S.D. WVA 2000) ABA/Lovaas case (in pdf). Mr. X v. New York (S.D. NY 1997). ABA Lovaas case; describes ABA/Lovaas treatment. T.H. v. Palatine Comm. Sch. Dist (N.D. IL 1999) ABA/Lovaas case; extensive discussion of IEPs (in pdf)
Mark Hartmann v. Loudoun County Sch. Bd. (4th Cir. 1997) LRE/Inclusion case. Daniel Lawyer v. Chesterfield (E.D. VA 1993). ESY for child with autism; child represented by Pete Wright. Reusch v. Fountain (MD 1994) Case on behalf of child with about ESY, school's hostility toward ESY. For
more cases, please search the site or visit the Law
Library.
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