RICHMOND, Va. (CN) – An attorney for the family of an autistic student argued Tuesday before the Fourth Circuit that she was neglected by her Maryland school and isolated from her peers, while the school district’s lawyer said it handled the matter in accordance with federal law.
At issue is the lack of success of the student, identified as R.F. in court papers, in her individualized education program, or IEP, which are personally tailored plans for special-needs students mandated by federal law.
The student’s parents claimed the lack of progress made in her program amounted to a failure by school officials to address her needs.
Their lawsuit, filed in Maryland federal court in 2017, alleges Cecil County Public Schools’ altered the IEP without their consent and forced their child to be “warehoused” alone in a separate classroom – a violation of federal law requiring special-needs students to have equal access to education alongside their peers.
The district court dismissed the complaint, prompting the parents to appeal to the Fourth Circuit.
The family’s lawyer, Wayne D. Steedman, told the Richmond, Virginia-based appeals court panel Tuesday that R.F. “failed to achieve goals, made no progress - minimal or incremental - which falls short of the Supreme Court’s standard.”
He cited the U.S. Supreme Court’s 2017 ruling in Endrew F. v. Douglas County School District, which bolstered the rights of learning-disabled students by requiring public school districts to ensure their special education programs offer them more than the bare minimum of instruction.
But U.S. Circuit Judge Allyson Kay Duncan, a George W. Bush appointee, was quick to point out the specifics of R.F.’s needs, and the degree of her disability, could have also hampered her progress.
She said the Endrew F. decision was about “making progress in light of circumstance,” as opposed to guaranteed progress.
Arguably the most eye-popping part of R.F.’s complaint is the claim that the school’s inability to properly teach her led her to be forced into isolation - a step that was allegedly taken without updating her IEP or discussing the move with her parents.
But when David Burkhouse of Pessin Katz Law argued in defense of Cecil County Public Schools, additional details came to light.
Burkhouse said the move towards “isolating” R.F. was based on observations from her appointed counselor, and happened incrementally over the course of four months. At the end of those four months, the student’s parents were brought in to update the IEP, in line with federal law.
“The record makes it seem more binary,” he said, noting R.F.’s behavior was so detrimental that keeping her in class could have also violated the rights of other students because of the related disruptions. “The teacher would see [the student’s] behavior and remove her from general education classes because it was needed.”
Her isolation might have taken her away from other student peers, but she had both the counselor and a teacher present with her at all times, Burkhouse said.
While federal law requires special-needs students to be around their fellow students as much as possible, in the spirit of an equal education, Burkhouse said the parents’ only demand after the perceived failure of the IEP was funding to send the student to a private Catholic school that solely serves special-needs kids.
“Appellants have turned the least restrictive [school atmosphere] standard on its head,” he said.
But the panel was not all skeptical of the family’s needs and wants.
Duncan and U.S. Circuit Judge Pamela Harris, a Barack Obama appointee, wondered if the lower court did not properly consider the parent’s remedy request.
“The parents were clear, they wanted private placement,” Duncan said. “The problem is the [lower court] didn’t walk through that analysis.”
Burkhouse pushed back and said an administrative law judge and the district court found no violation, so the parents’ argument might be moot.
U.S. Circuit Judge Steven Agee, a George W. Bush appointee, also sat on the panel. The judges did not signal when they might decide the case.
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