Category: Education

A young girl with significant motor and intellectual disabilities was represented by Justin Gilbert of Gilbert McWherter Scott & Bobbitt. After missing a substantial amount of school, the student filed a legal action about the denial of a Free Appropriate Public Education (FAPE) under the Individuals with Disabilities Education Act. The parties worked cooperatively to reach a settlement, as reported in the local paper.

“We were pleased to work this one out with the school system early on. The child has substantial and permanent challenges arising from a tragic automobile accident as an infant, requiring constant nursing. But despite those obstacles, she is entitled to an education and is now on the right track,” said Justin Gilbert, who handled the case.

We invite you to read the story here.

Gilbert McWherter Scott & Bobbitt continue to yield unprecedented results in education law cases. A sampling of reported opinions from 2018-2019 is below. The firm focused most heavily on least restrictive environment (inclusion) cases; restraint and isolation cases; and state liability for failures to educate. Collectively, these cases provide protections for children as early as age 3 to be mainstreamed/included; free from excessive restraints and isolations; and, where violations do occur, the ability to hold the state education system accountable.

According to firm founder Justin Gilbert, “We’ve been fortunate to represent the smallest of children at the pre-K level, making a fundamental change in their educational lives. At the other end of the spectrum, we have worked with outstanding young women who stood up against collegiate abuse under Title IX. I really think that gives our law firm an unmatched perspective of advancing youth no matter the age, education level, or opponent.”

Pre-K

A.H. v. Clarksville-Montgomery Cty. Sch. Sys., 2019 U.S. Dist. LEXIS 20060 (M.D. Tenn. Feb. 7, 2019) (mainstreaming opportunities must be offered in Pre-K, even if state only funds Pre-K for students with disabilities)

L.L. v. Tenn. Dep’t of Educ., 2019 U.S. Dist. LEXIS 25194 (M.D. Tenn. Feb. 15, 2019) (Least Restrictive Environment applies in preschool)

Least Restrictive Environment (Inclusion) and Segregation Cases

L.H. v. Hamilton Cty. Dep’t of Educ., 900 F.3d 779 (6^th Cir. 2018) (successful representation of child with Down syndrome, establishing least restrictive environment standard)

L.H. v. Hamilton Cty. Dep’t of Educ., 356 F. Supp. 3d 713 (E.D. Tenn. 2019) ($349,249.50 in fees awarded for successful representation of child with Down syndrome).

S.P. v. Knox Cty. Bd. of Educ., 329 F. Supp. 3d 584 (E.D. Tenn. 2018) (illegal to bus students with epilepsy to separate school with a nurse)

J.A. v. Smith Cty. Sch. Dist., 2018 U.S. Dist. LEXIS 214346 (M.D. Tenn. Dec. 20, 2018), affirmed, 2019 U.S. Dist. LEXIS 35989 (M.D. Tenn. Mar. 6, 2019) (favorable least restrictive environment decision for kindergarten child with Down syndrome)

Illegal Isolation and Restraint

I.L. v. Knox Cty. Bd. of Educ., 257 F. Supp. 3d 946 (E.D. Tenn. 2017) (first judgment under the Special Education Behavior Supports Act—SEBSA—for unlawful isolation of child with Down syndrome).

N.S. ex rel. J.S. v. Tenn. Dep’t of Educ., 2017 U.S. Dist. LEXIS 55941, 2017 WL 1347753 (M.D. Tenn. Apr. 12, 2017) (SEBSA is enforceable through the IDEA)

Title IX

Doe v. Hamilton Cty. Bd. of Educ., 329 F. Supp. 3d 543 (E.D. Tenn. 2018) (establishing liability under Title IX for failed preventive measures)

Exhaustion of Administrative Remedies

P.G. v. Rutherford Cty. Bd. of Educ., 313 F. Supp. 3d 891 (M.D. Tenn. 2018) (physical force/abuse does not require due process exhaustion)

A.A. v. Walled Lake Consol. Schs, Civil Action No. 16-14214, 2017 U.S. Dist. LEXIS 91933 (E.D. Mich. June 15, 2017) (separate exhaustion under ADA and 504 is not required where IDEA relief is exhausted)

State Liability

L.L. v. Tenn. Dep’t of Educ., 2019 U.S. Dist. LEXIS 25194 (M.D. Tenn. Feb. 15, 2019) (State may be liable for failing oversight obligations relating to Least Restrictive Environment in preschool)

J.M. v. Tenn. Dep’t of Educ., 2017 U.S. Dist. LEXIS 222621 (M.D. Tenn. Dec. 14, 2017) (state may be held liable for illegal isolations under IDEA and Section 504 and ADA).

J.M. v. Tenn. Dep’t of Educ., 358 F. Supp. 3d 736 (M.D. Tenn. 2018) (IDEA is enforceable against the state for “monitoring and oversight requirements”)

N.S. ex rel. J.S. v. Tenn. Dep’t of Educ., 2017 U.S. Dist. LEXIS 55941, 2017 WL 1347753 (M.D. Tenn. Apr. 12, 2017) (state is liable under the IDEA)

A.H. v. Clarksville-Montgomery Cty. Sch. Sys., 2019 U.S. Dist. LEXIS 20060 (M.D. Tenn. Feb. 7, 2019) (state may be held liable for knowingly allowing lack of any mainstreaming opportunities for pre-K to exist for years)

 

In a federal lawsuit filed July 12, an advocacy group is accusing the U.S. Department of Education of skirting its responsibilities to students with disabilities by delaying special education legislation that was supposed to go into effect July 2018.

The Council of Parent Attorneys and Advocates (COPAA) alleges the agency is avoiding its obligations under the Individuals with Disabilities Education Act (IDEA) to ensure that all students with disabilities receive the appropriate services, regardless of their racial background. They filed their suit after the Education Department issued a ruling last week delaying regulations that address the issue of “significant disproportionality.” The delay is set for two years.

IDEA requires that states identify school districts that have high rates of students from particular racial or ethnic groups who have disabilities and who are placed in restrictive or discipline-heavy settings. COPAA’s complaint points out the Education Department’s own research, which shows that minority children—most frequently black males—are over-identified as having special needs, which gives schools a “seemingly neutral justification to place them in a separate ‘special education’ classroom away from their white peers.”

However, states have always used different methods to evaluate their districts, and few districts were ever formally identified. Near the end of the Obama administration, a national standard for identification was established and set to take effect July 1, 2018.

According to a statement from the Education Department on July 3, the delay was issued “in order to thoroughly review the … regulations and ensure that they effectively address the issue of significant disproportionality and best serve children with disabilities.” States are allowed, however, to implement the new standard if they wish, and they are still obligated under IDEA to assess their districts for significant disproportionality.

COPAA’s lawsuit argues that DeVos and the Education Department didn’t offer a reasoned explanation for the delay, and failed to consider the costs to parents and students, or offer any alternatives to the delay. They also allege that the federal agency didn’t provide any “meaningful participation” on the subject, as its public comment period only asked for comments on the delay and not the issue itself.

This lawsuit is filed in U.S. District Court for the District of Columbia, and names DeVos and Assistant Secretary for Special Education and Rehabilitative Services Johnny Collett as well as the department itself. It seeks to have a judge invalidate the Department of Education’s delay and reinstate the July 1 start date for the rule.

The Gilbert Firm is experienced in all aspects of special education law. All students have the right to a fair education. If you feel your child is being denied theirs, please contact our Tennessee special education lawyers. We want to help. Call Justin Gilbert at 888.996.9731, or fill out our contact form. We have offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

 

 

On Monday, August 20, 2018, partner Justin Gilbert secured a victory on behalf of a young student with Down syndrome that will help all students with disabilities in Tennessee, Michigan, Ohio, and Kentucky. The Sixth Circuit Court of Appeals found that Hamilton County, Tennessee violated the Individuals with Disabilities Education Act (IDEA), when it chose to remove the student from a general education classroom and segregated him in a “comprehensive development classroom.” This separate classroom was solely for children with disabilities.

The family’s battle for mainstreaming and justice lasted an astounding five years. At almost every step, the courts sided with Justin’s client’s argument that he should not be segregated from his non-disabled peers. Monday’s victory will have a resounding effect on students across state lines. As Justin told the Chattanooga Times Free Press, “Throughout history, the stain of unnecessary segregation has been overcome through the law. I am tremendously proud of this contribution, and a little boy — now young man — named LH. The law of Tennessee, Michigan, Kentucky and Ohio will bear his name, reminding us all that kids with intellectual disabilities belong. They are to be included. And we are all the better for it.”

The story of L.H.

In 2013, L.H. was attending Normal Park Elementary School. He was in a general education classroom (also called a “mainstream” classroom) – a classroom that contained students both with and without disabilities. Under the law, every student has the right to a free appropriate public education in the least restrictive environment. Yet the Hamilton County Department of Education felt that L.H. would be “better off” in a comprehensive development classroom – one where he would be segregated from non-disabled students for at least half the day. The Department intended to bus L.H. to this separate school, over the parent’s objections.

The separate school lacked a state-approved curriculum. Kids lacked homework. Much of the teaching amounted to online videos. And the special education director opined that math would be taught during gym class, by a non-certified gym teacher.

L.H.’s parents, of course, refused the transfer, resulting in the lawsuit between L.H. and the school system. With the help of experts from Down Syndrome Education International and professors, L.H. was able to explain why his segregation was harmful—and unlawful.

At the trial court level, L.H. won the right to be mainstreamed. However, he was not awarded reimbursement for his private placement at a Montessori school during the legal battle. The Department of Education appealed the mainstreaming decision, while L.H. appealed his right to reimbursement for the private placement.

In a thorough opinion, the Sixth Circuit ruled that L.H. can and MUST be mainstreamed. And it ruled that the private Montessori school was an appropriate private placement such that L.H.’s family is entitled to reimbursement.

At last, the legal fight appears to be over. The ruling will have a significant impact on students not just in Hamilton County and in Tennessee, but in districts across state lines which are served by the Sixth Circuit Court.

Changes are already underway

Hamilton County identifies more than 8,100 students as having a disability. As of 2015, only 16.5% spent time in general education classrooms. This placed Hamilton County in the lowest 10% of all school districts in Tennessee for inclusion, which means the rest of those “children have spent sometimes hours on buses being shuffled to segregated classrooms where the standards are different or nonexistent and often lack academics at all, focusing solely on life skills.”

In 2017, Superintendent Bryan Johnson reorganized the administration of Hamilton County Schools. He hired Garfield Adams as the new Exceptional Education Director for the district. In July of this year, Garfield Adams and Cale Horne, a member of the Chattanooga Inclusive Education Working Group, presented a three-year plan to improve special education and move towards inclusivity. The plan “calls for the end of comprehensive development classrooms, allowing students to attend their zoned schools or schools of choice, as well as improving communication among the district, families and caregivers of students with disabilities.”

All of these changes were developing as HCDE continued to appeal decisions against them.

The Gilbert Firm is incredibly proud of the work Justin Gilbert has done on behalf of L.H., his parents, and other students whose right to a free and appropriate education has been denied. The impact of this ruling in the Sixth Circuit Court of Appeals cannot be underestimated, because it will set the bar higher for all districts. This is about more than the violation of federal law: inclusion has been repeatedly proven as the more effective tool for helping students with disabilities learn and grow. Thanks to the perseverance of L.H.’s parents, countless students will have access to a better education in a healthier, more inclusive environment.

Read More:

• Sixth Circuit Court Of Appeals Rules In Favor Of Inclusion And Acceptance For Student With Down Syndrome
• Interview of Justin Gilbert, counsel in the L.H. v. HCDE Case

• Gilbert Firm Achieves Another Special Education Victory in East Tennessee
• Helping Integrate Students with Autism in Chattanooga
• Restraints, Seclusions, and Isolations on Special Education Students in Tennessee
• The Chattanoogan: Attorney Fights to Protect Rights of Child with Disabilities
• The Gilbert Firm’s Very Own Atticus Finch

The Gilbert Firm fights for students in Tennessee whose rights have been violated, and who have been denied access to the education the law guarantees them. If your child has been denied a free and appropriate education anywhere in the state, we want to help. To work with Justin Gilbert and the members of his team, please call 888-996-9731, or fill out our contact form.

 

We became involved in education law as a natural extension of our work in employment law. The Americans With Disabilities Act applies to both employment and education, so we now represent children with all sorts of disabilities, from speech disorders to brain disorders to you name it – any kind of condition that requires some special services. Those cases are particularly rewarding because it’s nice to see children succeed, and parents who come to us in the education world are particularly grateful for our assistance.

The Gilbert Firm is proud to stand up for students. To speak with a skilled Tennessee special education attorney like Justin Gilbert, please call 888.996.9731, or fill out our contact form. The Firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, for your convenience.

Tennessee has a restrained isolation law. It’s called the Special Education Behavior Supports Act, and there are very strict guidelines for that. A child, for example, cannot be isolated for more minutes than his age. A child can’t be restrained for non-emergency situations. So a lot of times those guidelines are not followed, and so we get calls from concerned parents and that’s where we come in. On some occasions we have had abuse cases where the restraint has been too severe, the isolation far too long. Those kinds of cases cross over into the realm of child abuse, and we will represent parents and their children in those matters.

If you are the parent of a student whose rights have been violated, or who has been restrained or isolated in an abusive way, we want to hear from you. To speak with a skilled Tennessee special education attorney like Justin Gilbert, please call the Gilbert Firm at 888.996.9731, or fill out our contact form. The Firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, for your convenience.

We have been a leader in the state of Tennessee in the field of education. We have hired some of the most internationally renowned experts in areas like making sure that children with intellectual disabilities are integrated into what’s called a least restrictive environment: sometimes called mainstreaming, sometimes called inclusion. We’ve had projects in East Tennessee, Middle Tennessee, and West Tennessee to make sure children are integrated, so they get the appropriate education to the maximum extent possible, which is what the law requires.

We’ve also worked with children who unfortunately have suffered restraints and isolations, whether it’s a behavioral situation or a disciplinary situation. Sometimes those kids have suffered abuse, and so we have had abuse cases where the restraints have gone too far, or the isolation has been too long, and we have helped kids get back on the right track.

At the Gilbert Firm, we fight for the rights of persons with disabilities of all ages. To speak with a Tennessee ADA attorney like Justin Gilbert, please call 888.996.9731 or complete our contact form. We have offices in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.

 

Many parents of children with special needs are familiar with the local school system’s obligations to their children. Generally, this includes providing them an “appropriate” education and access to supports and services, all written in an enforceable contract known as an “IEP.”

Less is known about state responsibility to ensure the local school system is carrying out its local obligations. The state has very robust obligations, written into law known as “the Individuals with Disabilities Education Act” (IDEA).

Under the IDEA, the state is actually responsible for ensuring all of these:

• Full Continuum of Placements. “The State Educational Agency must ensure that “a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related ” 34 C.F.R. § 300.115(a).
• Adequately Trained Personnel. “The State Educational Agency must “establish[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][] and maintain[] qualifications to ensure that personnel necessary to carry out this part are appropriately and adequately prepared and trained, including that those personnel have the content knowledge and skills to serve children with ” 20 U.S.C. § 1412(a)(14)(A).
• Available Technical Assistance. “The State Educational Agency must provide technical assistance to administrators in all public 34 C.F.R. § 300.119. With respect to the Least Restrictive Environment mandate, each State Educational Agency “must carry out activities to ensure that teachers and administrators in all public agencies (a) Are fully informed about their responsibilities for implementing Sec. 300.114 [(“General LRE Requirements”)]; and (b) Are provided with technical assistance and training necessary to assist them in this effort.” 34 C.F.R. § 300.119.
• Supervision of the Local Schools. The State Educational Agency is “responsible for general supervision” of education in the 20 U.S.C. § 1412(a)(11). Specifically, the State Educational Agency is responsible for ensuring that the requirements of Section 1412 of IDEA are met, including the right to a free appropriate public education in the least restrictive environment. 20 U.S.C. § 1412(a)(11)(A)(i).
• Meeting Appropriate Educational Standards. In addition, the State Educational Agency is responsible for ensuring that “all educational programs for children with disabilities in the State, including all such programs administered by any other State agency or local agency – (I) are under the general supervision of individuals in the State who are responsible for educational programs for children with disabilities; and (II) meet the educational standards of the State educational ” 20 U.S.C. § 1412(a)(11)(A)(ii).
• Kids Meeting Goals. The State Educational Agency must “establish[] goals for the performance of children with disabilities in the State that—(i) promote the purposes of [Section 1412 of IDEA],” including the right to a free appropriate public education in the least restrictive 20 U.S.C. § 1412(a)(15)(A).
• Enforcing the IDEA. The State is required to “monitor implementation of,” and “enforce,” IDEA, 20 S.C. § 1416(a)(1)(C), with the “[p]rovision of a free appropriate public education in the least restrictive environment” being deemed a “monitoring priorit[y]” that requires the collection of data using “quantifiable . . . and . . . qualitative indicators . . . to adequately measure performance,” 20 U.S.C. § 1416(a)(3), with “measurable and rigorous targets for the indicators,” 20 U.S.C. § 1416(b)(2)(A). The targets must be used by the State to “analyze the performance of each local educational agency in the State in implementing [IDEA].” 20 U.S.C. § 1416(b)(2)(C)(i).
• Improving Educational Outcomes. Another “monitoring priorit[y]” for the State Educational Agency is its exercise of its “general supervisory authority” which includes “effective monitoring,” 20 S.C. § 1416(a)(3)(B). The State Education Agency is to focus its monitoring on “improving educational results and functional outcomes for all children with disabilities.” 20 U.S.C. § 1416(a)(2).

How can a parent obtain help from the state to enforce obligations of the local school system?

One way is to use the “Complaint Resolution Procedure,” or CRP. This is designed to be a less costly procedure to raise concerns to the state.  After such a complaint, the state is required to conduct an investigation and cure failings by the local school system.

The CRP may be preferable to due process, not only because it is less costly but also because it may avoid hard feelings from the local school system which can accompany due process. The IDEA commentary contemplates this:

In addition, the State complaint process and mediation provide parents and school districts with mechanisms that allow them to resolve differences without resort to more costly and litigious resolution through due process.

Comment to CRP Regs., 64 Fed. Reg. 12406, 12646 (1999) (comment on proposed regulation 34 C.F.R. § 300.661, now § 300.152).

If you are having issues with your child’s rights to special need placements, services or supports, the CRP process may be advisable.  Or, you may wish to speak to an experienced Tennessee attorney with experience in special education, like Justin Gilbert or a member of the Gilbert Firm. To learn more about our services, or to schedule an appointment at one of our offices in Nashville, Chattanooga, Memphis, Jackson or Knoxville, please call 888.996.9731, or fill out our contact form.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

The Americans with Disabilities Act (ADA), which became law in 1990, prohibits discrimination against people with disabilities in all walks of life, including schools, jobs, transportation, and any place that is open to the public. The ADA also guarantees equal opportunity for persons with disabilities in various areas. The law is divided into five sections. These sections govern public and private schools, including secondary schools and public and private colleges and universities. The law also applies to employers and many other businesses such as hotels, sports stadiums, restaurants, and retail stores.

The reasonable accommodation requirement

The ADA requires that schools provide reasonable accommodations for children and school attendees with disabilities. This includes setting standards for accessibility for new constructions and for alterations to existing buildings. Public places must also remove unreasonable barriers in existing structures. But it also includes accommodations such as therapies, therapy dogs, and use of hearing devices, just to name a handful.

A disability is an impairment (physical or mental) that restricts (or “limits”) a person’s abilities to engage in major life activities. Life activities include hearing, talking, seeing, reading, concentrating, learning, and communicating. The law should be read broadly. It includes, for example, children who have:

• Anxiety
• Depression
• Dyslexia
• Attention deficit hyperactivity disorder
• Executive functioning issues – difficulty in performing tasks
• Severe allergies
• Problems with mobility

The ADA also applies when a child participates in activities away from school such as a class trip or sports league. These organizations must provide reasonable accommodations to children with disabilities as well.

Additional protections

There are other disability laws that work in tandem with the ADA. These laws are Section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act (IDEA). It is possible to be covered under all three. For example, accommodations may be available under ADA, Section 504, and IDEA.  Similarly, placement of a student in his “least restrictive environment” may be available under all three.

Remedies for violations of the ADA

If a school is not providing reasonable accommodations for a child, or is discriminating against a child, the child is entitled to enforce ADA rights.  Sometimes, this will require a due process filing before a state administrative agency.  Other times, a direct action in federal court may be available.

If your child has any disability, and you think the school or an educational activity is not looking out for his or her best interests, a Tennessee ADA attorney like Justin Gilbert can help you decide whether to bring a claim. At the Gilbert Firm, we fight for the rights of persons with disabilities of all ages. To help your child get the education he or she deserves, please phone us at 888.996.9731 or complete our contact form. We have offices in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.