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law Alert!


Another Great Autism Decision in JP v. Hanover
September 1, 2006

ISSN: 1538-3202

In this Issue

JP v. School Board of Hanover County VA

Learn more about JP v. Hanover County School Bd, Autism Caselaw, Special Ed Caselaw

Autism, Autism Spectrum Disorders (ASD), Pervasive Developmental Disorder (PDD), Asperger Syndrome (AS)

Tropical Storm Ernesto Takes Wrightslaw "Off the Grid"

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Alert - JP v. School Board of Hanover County VA

On Monday, August 28, in JP v. County School Board of Hanover County, Judge Robert Payne of the U.S. District Court of the Eastern District of Virginia issued another powerful pro-child decision on behalf of a child with autism. Download this Alert.

JP v. School Board of Hanover County VA is a case about autism, ABA therapy, and reimbursement for a private special education program. J.P. v. Hanover also demonstrates why schools should use objective tests to measure a child's progress (or regression), discrete trial data, and why schools must provide children with the services in their IEPs.

In his decision, Judge Payne describes weight due to the State hearing officer's decision and why testimony by the school witnesses was impeached. The decision in
cludes charts of J.P.'s progress and regression on objective standardized educational tests.

In J.P. v. School Board of Hanover County VA, the parents lost at the due process hearing, but prevailed in the U.S. District Court.

Download the decision in JP v. County School Board of Hanover County VA

Note: The Order and Decision are 88 pages in pdf and a very large file (1.5 mb). Please do not try to open this document online. Instead, download the file to your hard drive, then open it.

Hearing Officer's Decision: Inadequate, Incorrect

In JP, the Judge analyzed over 1,200 pages of testimony and heard additional evidence. He found that "The decision of the State Hearing Officer in this matter is so inadequate as to be of little use ... The opinion also is virtually useless in assessing the credibility of the witnesses because [he] 'found all the witnesses credible, and all the experts qualified to testify within their fields'". The Judge advised that the Hearing Officer's decision "is so inadequate as to be of little use." (Decision, page 19)

The Judge made specific findings that statements of the Hearing Officer were incorrect. "Due to the complete lack of written analysis in the State Hearing Officer's opinion, the Court has no way to judge whether the findings of fact therein were regularly made." The "Court ... accords no weight to the ... findings of fact and conclusions of law." (Decision, pages 21-23)

School Rejects Parents' Requests for Comprehensive Assessment

JP's parents were concerned that he was not making progress. They asked the school to conduct the Assessment of Basic Language and Learning Skills (ABLLS), a comprehensive test that assesses a child's pre-academic and social developmental strengths and weaknesses.

The school "decided that the test was not needed because ... it had sufficient data on JP from other non-comprehensive tests. However, after repeated demands for ABLLS testing by the parents and educational experts, HCPS reluctantly agreed to test JP using ABLLS ... however, the results of these tests were not used by HCPS ... to propose the June 2005 IEP that is here at issue." (Decision, page 11-12)

Did JP Make Progress?

Progress Log - "Not Empirical, Standardized, Comparable, Test-Based Evidence"

As evidence that JP made progress, the school presented testimony by two speech therapists. The speech therapists kept a progress log. The district claimed that the log was "objective data." The Court found "HCPS claims that the log is objective data, and HCPS is correct in the sense that the log states what the therapists observed and wrote down. But, it is not empirical, comparable, or standardized, as are the test scores obtained in the speech and language testing." (Decision, p. 48)

"... entries in the log skip many days. The record contains no explanation for the incomplete, somewhat erratic recording in the log ... the log is more like a diary than a systematic recording of JP's curriculum and progress. The log entries are not referenced to the goals in the IEP so direct assessment of progress on IEP goals is not easily achieved ... sometimes, the log only describes what task was done on a particular day without stating how JP did." (Decision, p. 49-50)

Charting Out Test Scores

In JP v. Hanover School Board, the Judge used JP's test scores to determine if he was making progress or regressing. Baseline testing and findings in subsequent administrations of tests were key evidence that the public school program was not appropriate, and that the private program was appropriate.

In the decision, the Court compared the child's subtest scores on repeated administrations of the Peabody Picture Vocabulary Test, (PPVT) Oral and Written Language Scale, (OWLS) Preschool Language Scale (PLS-4), Visual Motor Integration test (VMI) and Woodcock Johnson (WJ-III).

Although JP made progress in one area, he regressed in other areas while enrolled in the public school program. Discussing JP's speech and language skills, the Judge found "By any measure ... these scores show significant regression in speech and language." (Decision, page 47-48)

At the end of the decision are three appendices. Appendix A are benchmark grades from the IEP and Mrs. P's assessment. Appendix B is a table of Speech and Language Testing with standard scores and age equivalent scores. Appendix C is a table of JP's scores on Woodcock Johnson (WJ-III) subtests, and changes in the subtest scores over time.

Note: If you have attended a Wrightslaw special education law and advocacy training program, you know it is essential to use the bell curve, standard scores and percentile ranks to chart educational progress. During the program, you learned how to put test data into a table and convert the data in the table into an impressive bar graph. You learned that progress / regression graphs are excellent visual aids that can be used as evidence that a child is making progress or regressing in a special ed program.

Testimony by School Witnesses Negated by Other Evidence

The Judge described testimony by one speech therapist that placement in an ABA school "would deprive JP of social interaction with typical students, which is important and necessary for speech development ... [this] testimony was negated by other evidence."

The other speech therapist 'largely echoed" the testimony of her co-worker, but "she acknowledged that JP has very limited verbal output, makes very few spontaneous utterances, and had difficulty with yes/no questions and pronouns. Inexplicably, the log actually shows that JP did very well with these last two areas. This contradiction undercuts the reliability of the log, and it adversely affects the weight given to [her] testimony." (Decision, page 53)

Testimony by School Witness Impeached: "Language Necessary Prerequisite to Social Interaction"

"[Speech therapist] Augustine testified that JP should not be at an ABA-type school because he needs social interaction with typical students to develop his language skills. She stated that socialization is important ... as a language development tool ... However, Augustine's testimony was significantly impeached when, on cross examination, she admitted that a basic understanding and competence in language is a necessary prerequisite to social interaction, and that JP lacked the basic language skills needed to communicate with his peers. This impeachment significantly damages the weight and credibility of Augustine's testimony." (Decision, p. 53)

"The record shows that, if JP could not communicate with his peers, socialization would do him little good, and could actually cause him frustration, anxiety, and emotional trauma." (Decision, p. 54)

Low Expectations & Failure to Use Research Based Methods of Teaching and Learning

The Court found that JP did not make progress under the 2004-2005 IEP. Since the IEP proposed for 2005-2006 was "essentially the same IEP ..." it was inappropriate. (Decision, page 73)

In their post-hearing briefs, the school district argued that the IDEA intended schools to provide a "basic floor of opportunity." In his decision, the Judge cited the Findings in IDEA 2004 that "implementation of this chapter has been impeded by low expectations and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities." (20 U.S.C. Sec. 1400(c)(4) (page 67) (see also Wrightslaw: IDEA 2004, page 30)

"The legislative history of the EAHCA and the IDEA show quite clearly that Congress did not enact the statutes for the purpose of meeting the minimal level of service urged by HCPS."

The decision has dozens of excellent quotes that attorneys can use in briefs.

It is refreshing when a Judge goes to such lengths and reads the transcript, takes new evidence, studies the exhibits, reads cases (and cites footnotes from cases), and uses objective test data in his decision.

We congratulate Virginia attorney Philip Carter Strother on his success.

We thank JP's parents who persevered, despite ongoing opposition from Hanover County Public Schools and the adverse decision from the Hearing Officer.

Learn more about JP v. Hanover County School Board, Autism Caselaw, Special Education Caselaw

Autistic Child's Parents Prevail in Virginia - Judge Rules against Hanover, Orders School System to Pay Student's Private Tuition by Bill McElway of the Richmond Times Dispatch describes the judge's decision, resistance from the school system, (including a threat to file trespassing charges against the parents), and other noteworthy decisions by Judge Payne in RT v. School Board of Henrico County and RT v. School Board of Henrico County-2 earlier this summer.

Note: To read the article by Bill McKelway of the Richmond Times Dispatch, please copy and paste the complete URL into your browser window. The link to the newspaper article ends with 602 - we don't know how long it will be available online. You may also contact Mr. McKelway at

Download the decision in JP v. County School Board of Hanover County VA

Note: The Order and Decision are 88 pages in pdf and a very large file (1.5 mb). Please do not try to open this document online. Instead, download the file to your hard drive, then open it.

More autism caselaw:

More special education caselaw:

Autism, Autism Spectrum Disorders (ASD), Pervasive Developmental Disorder (PDD), and Asperger Syndrome (AS)

If you are like many parents, teachers, and health care providers, you have questions about special education services for children with autism, autism spectrum disorders, Pervasive Developmental Disorders (PDD), and Asperger Syndrome.

It is essential that you educate yourself about the child's disability, the impact of the disability on the child's ability to learn, research based educational methods that are proven to work, and how to measure and monitor the child's progress.

Our updated and revised Autism, PDD & Asperger Syndrome page has new articles, cases, resources, free publications, and information and support groups.

More special education topics.

Tropical Storm Ernesto Takes Wrightslaw "Off the Grid"

As we prepared to publish this Alert, we lost electrical power and are using a generator. Waves are breaking across our yard, now under 4+ feet of water (at low tide). The gardens are gone, the wells are full of salt water, and water is up to the windshields of the cars.

Conditions will continue to deteriorate for a few hours as Ernesto gets closer with gale force winds and higher water arrives with high tide later this afternoon.

This storm brings back memories of Hurricane Isabel in September 2003. Fortunately, our house is now built on pilings 10 feet above ground.

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