9th Cir. Revives Disabled Boy’s Fight for Education

     PASADENA, Calif. (CN) – The San Diego County School District may have violated the rights of a disabled student by not specifying which trained staff member would help with his feeding tube, the Ninth Circuit ruled Friday.
     After years of fighting with the school district on how best to educate their son Tyler, Allison and Robert Brenneise sued the district for civil rights violations under the Individuals with Disabilities Education Act – but not before turning down the district’s offer to pay for Tyler’s private education at a cost of $75,000 per year.
     A federal judge partly agreed and affirmed a due-process ruling by an administrative law judge who said the district’s individual education plan denied Tyler a free public education by not describing how it planned to give the boy his gastronomy-tube feedings or who would administer them.
     But the trial judge also found that the Brenneises had not shown the school district acted in a way that was deliberately indifferent to Tyler’s disability, and accordingly awarded them just $55,000 of the nearly $1.4 million in attorney fees they sought.
     The Brenneises appealed and argued the matter before the three-judge panel of Circuit Judge Richard Clifton, Raymond Fisher and Lee Rosenthal in July 2014.
     Writing for the panel, Clifton said in an opinion released July 31 that while a “school district’s failure to abide by California’s minimum standards on g-tube feeding may give rise to a civil rights claim,” the panel rejected the “argument that a district’s failure to provide these services means that they automatically” are guilty of violating Tyler’s civil rights.
     Instead, Clifton said the Brenneises needed to show intentional discrimination or deliberate indifference by the school district, but they have not and instead are applying the standard for strict liability.
     The panel agreed the school district did not retaliate against Tyler and his mother due to her “‘aggressive advocacy'” on his behalf but said there was a “genuine dispute” over the school district’s help with Tyler’s individualized education program and reversed and remanded the district court’s ruling favoring the school district.
     While the school district participated in “detailed discussions,” offered accommodations for feedings and never ignored the Brenneises, it also believed it could determine who would help Tyler with his tube feedings,” Clifton wrote.
     Because the school district was not intentionally discriminatory or deliberately indifferent to Tyler’s needs, the panel affirmed the trial court’s summary judgment in favor of the school district.
     But the district may have violated Tyler’s civil rights by not designating a nurse to care for him as required by California law in the 2007-2008 school year – as ordered by the administrative law judge during the prior school year – so the panel reversed the trial court’s summary judgment in favor of the district on that count.
     “The pertinent issue here is whether a reasonable jury could find that the district violated Tyler’s civil rights by failing to accommodate his need for g-tube feedings. We believe that it could,” Clifton wrote for the panel.
     “After the ALJ handed down her decision, the district knew how a judge might interpret California’s rules on g-tube feeding and what the district would likely have to do to comply with the rules. A reasonable jury might find that the district was being deliberately indifferent to Tyler’s rights under California law-as opposed to merely negligent or wrong-by refusing to specify that a nurse, special-education health technician, or special-education technician should carry out the g-tube feedings when the ALJ had suggested strongly that this was the only way in which the district could fulfill its legal duties.”
     As for the attorney fees – which the trial court decided to limit to work done after the Brenneises rejected a five-year, $150,000 per year settlement offer from the school district – the panel said the rejected offer wasn’t as “exceptionally generous” as the trial court found it to be since the district was already paying the parents $157,000 to home-school Tyler in their garage.
     “The additional costs imposed on them might actually have exceeded the difference between $157,000 and $150,000,” Clifton wrote for the panel. “A case manager from the school district was involved in arranging garage school for Tyler, for example. Under the settlement offer, the Brenneises would have taken full responsibility for arranging services for Tyler, requiring additional time or additional expense to hire someone else to do it.
     “Furthermore, Tyler was an individual customer in the special-education market, while the district was a repeat player and had more bargaining power. It might have cost more for the Brenneises to arrange to have Tyler educated privately or to have obtained assistance from external service providers than it cost the district.”
     The panel ordered the trial court to reconsider the Brenneises’ attorney award and to explain the reasoning behind any new award, which did not happen the first time.
     San Diego Unified School District officials were not immediately available for comment.

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