Light v. Parkway
When A School District Bends Over Backwards To Accommodate “Inclusionist” Parents: No Good Deed Goes Unpunished
Martin Light v. Parkway District C-2, (8th Cir. 1/11/95 St. Louis) 41 F.3d 1223.
Lauren Light, a 13 year old with SED, PDD, BD, MMR, autistic features, language impairment, and organic brain syndrome – she is impulsive, unpredictable, and aggressive. She kicks, bites, hits and throws objects.
During 1993-1994, she was in a self contained classroom, and parents obtained a transfer to a less restrictive setting. Her IEP then required two on one staffing at all times! She received, consequently, one additional full time teacher, and one aide, totally dedicated, in addition to the regular class teacher. Also, the teachers at the new school were specially trained; the district hired a consultant selected by the family; Lauren in addition to instruction received S/L; OT; PT; adaptive PE; living skills instruction; and “weekly community access.” Teachers kept daily logs which were regularly provided to the parents; Lauren participated in PE, art, computer lab, home economics, and library – all “full inclusion.” She participated in extracurricular activities. Also, she was given music therapy. No other student in the school received this service.
Lauren committed 11 to 19 aggressive acts per week, including biting, hitting, kicking, poking, throwing objects, turning over furniture. During 30 of these (over a two year time line), the attention of the nurse was required. This behavior had a negative effect on the progress of the five other students in the program. The class was rarely able to complete a lesson plan. One student required supplemental support to compensate for Lauren’s behavior – and all the parents were quite upset.
In November, 1993, the multidisciplinary team re-evaluated the situation. In a full-day IEP meeting on March 23, 1994, a change of placement was recommended. Parents requested a hearing and invoked “stay-put.”
On April 12, 1994, Lauren attacked another pupil, hitting her three times on the head – and the principal suspended her for ten days. Parents immediately filed in federal district court to have this lifted and the district counterclaimed to remove Lauren from the program during pendency of the proceedings. The district claimed a substantial risk of injury to self or others, and further argued that parents were not present at informal hearing prior to suspension and Lauren had no capacity to represent her interests, thus, there were procedural violations.
The trial court held for the parents, found that they had been denied due process, and lifted the suspension. Then there were more hearings and the same court reversed itself, holding for the district. The court further declined to inquire into what placement would be appropriate, or into the district’s efforts to accommodate Lauren’s disabilities.
1. “The IDEA seeks to guarantee the educational rights of disabled children by requiring policies of inclusion” – then cites LRE language, and Oberti’s “strong preference” language.
2. Discussion of required procedural protections, with emphasis on Honig v. Doe standard of substantial likelihood of injury. Parents’ argument that underlying, the child must “intend” injury was rejected. The purpose of removal is not punishment but maintaining a safe learning environment for all students. (41 F.Rep.3d at 1228). Also, “removal” does not terminate a placement.
3. The Court also outlined a second test for removal:
The district must show that it has made reasonable efforts to accommodate the child’s disabilities so as to minimize the potential for injury to self or others. This boils down to whether the district has made reasonable use of supplemental aids and services. This may give rise to the argument they must actually be tried before more restrictive placement is implemented.
(Quote from 41 FR.3d 1228 n. 4, 5):
Where injury remains substantially likely to result despite the reasonable efforts of the school district to accommodate the child’s disability, the district court may issue an injunction ordering that the child’s placement be changed pending the outcome of the administrative review process.
There was a substantial likelihood of injury; parents’ arguments that these were merely “nuisance” behaviors were rejected.
1. A child need not first inflict serious injury before being deemed “substantially likely” to do so.
2. The district took reasonable steps to minimize the risk of injury.
3. Removal of child from program was proper.