In a unanimous decision, the Court of Appeals for the Ninth Circuit held that parents of two siblings with autism may seek monetary damages for the school’s failure to provide them with a free appropriate public education.
The parents alleged that the department of education failed to provide the children with appropriate services during their formative years. The “window of opportunity” to learn to speak and interact with people closed…
… because of the department’s “deliberate indifference.”
The parents’ Complaint alleges that:
“Hawaii DOE denied Michelle and Natalie meaningful access to the benefits of a public education in two key ways:
(1) by failing to provide the girls with reasonable accommodations for their disabilities through autism-specific special education services, and
(2) by failing to design the girls’ Individualized Education Programs (“IEPs”) to meet the girls’ needs as adequately as the needs of non-disabled students were met.
“The H. Family alleged that these failures were the result of the Hawaii DOE’s deliberate indifference and therefore violated the Rehabilitation Act § 504, giving rise to a private cause of action for damages.” (Mark H. et al v. Patricia Hamamoto and Hawaii Department of Education).
The Court of Appeals reversed earlier District Court rulings that dismissed the parents’ case and remanded the case to a different judge “for further proceedings consistent with this opinion.”
The family is represented by lead attorney Stanley Levin, Michael Livingston, and Keith H.S. Peck.
Parent attorneys said the decision allows parents to seek recovery under Section 504 of the Rehabilitation Act when children are damaged by “deliberate indifference.”
Susan Dorsey, managing attorney of the Levin Education Access Project, said “This is a very far-ranging decision that clearly articulates the standards and opens the door to recover damages.”
Read the decision in Mark H:
More special education caselaw at https://www.wrightslaw.com/caselaw.htm
Suit against state over autism case is reinstated (Honolulu Star Advisor) at