STATE OF OHIO
DEPARTMENT OF EDUCATION IMPARTIAL DUE PROCESS HEARING
IN THE MATTER OF : CASE NO. SE 1423-2004
_________________________ :
and : DUE PROCESS HEARING
DECISION
SPRINGBORO COMMUNITY SCHOOL :
DISTRICT
PROCEDURAL BACKGROUND
This matter was commenced by XXXXXXXXXX, the parents of the student, whose date of birth is xx/xx/1985, by a Request for an Impartial Due Process Hearing filed January 7, 2004. At the time the Request for a Due Process Hearing was made, The student was an 18 year old senior in his last semester at Springboro Community Schools.
The student was attending a vocational school in the morning and then taking three academic classes at the high school in the afternoon. The student had been previously identified as Other Health Impaired because of his Attention Deficit Hyperactivity Disorder (ADHD) and had an Individual Education Plan (IEP) in place.
When the parents filed their request for a Due Process Hearing, they were not represented by an attorney. They alleged a violation of The student’s management/behavior plan, that his placement was changed without notification and that the school district created a hostile/negative environment.
The student’s parents requested permanent home instruction and transportation to and from the vocational school, reimbursement for legal fees in defending criminal charges and for
the due process proceedings including educational expenses and a written apology and public reprimand by the responsible school district administration.
A telephone conference was held on February 4, 2004 with the parents and the school district’s attorney, in which the school district agreed to provide home instruction to The student. At that time both parties were informed that the hearing officer did not have any authority or jurisdiction to order reimbursement of legal expenses, or to order an apology or to issue a public reprimand of school officials. It was determined that the only issue for the Due Process Hearing was to be the adequacy and sufficiency of the home instruction The student was receiving.
A Disclosure Conference was held on February 12, 2004 with the documents and witness lists being exchanged. The Due Process Hearing was scheduled for February 19, 2004. On February 18, 2004, one day before the hearing was to begin, the parents retained Attorney Carol Holm to represent them. Ms. Holm requested a continuance, which was granted, and the Due Process Hearing was rescheduled for March 24, 2004.
On March 1, 2004, the parents, through their counsel, amended the due process hearing request. (See Pt. Ex. 11). The parent’s attorney requested subpoenas which were issued to her. However, Ms. Holm became unavailable for the hearing on March 24, 2002 and requested a continuance which was granted. The Due Process Hearing was rescheduled for May 25, 2002 and the hearing took place as scheduled.
FACTUAL BACKGROUND
The student attended Springboro Local Schools from first grade through high school. Throughout grade school The student received average to above average grades. (Pt. Ex. 9) There was no evidence presented that The student had any behavior problems while in grade
school. There was no evidence presented that The student exhibited any signs or symptoms of ADHD while in grade school.
The student began to experience academic problems when he started high school. Although The student earned passing grades in most of his 9th grade classes and received 4.25 of the 5.0 credits needed to advance to the 10th grade, he failed Spanish I and Algebra I. There was no evidence presented to show he was receiving detentions or other disciplinary actions for any behavior problems in the 9th grade.
The next year (2001-2002), The student repeated Spanish I and Algebra I and passed them. However he failed Biology that school year, having accumulated 9.25 of the 10.0 credits needed to advance to the 11th grade. During his second year in high school, The student began having disciplinary problems with one teacher in particular, Ms. Weilnaw, his math teacher, from whom he received several detentions. (Pt. Ex. 8). The parents’ position is that Ms.
Weilnaw was out to get The student. The school district would have the hearing officer believe that The student did not like Ms. Weilnaw and that he deliberately went out his way to make life difficult for her. Ms. Weilnaw was not called as a witness by either side, so her testimony on the issue could not be evaluated. The student told Lorie Mitter, Springboro’s School Psychologist, that math was his least favorite class and that he had disliked math for years. (Jt. Ex. II). Nevertheless, the evidence presented did not indicate that The student had any major behavior problems with any of his other classroom teachers that resulted in detentions or disciplinary action.
On February 7, 2002, more than half way through The student’s second year of high school, Teresa Rand, Springboro’s special education coordinator, received a telephone call from Dr. Tracey Todd, an advocate on behalf of The student. (Bd. Ex. A). After her conversation with
Dr. Todd, Ms. Rand spoke with The student’s mother who informed Ms. Rand that she wanted to have her son evaluated. Ms. Rand sent the parents the booklet “Whose Idea Is This” and a form to request an evaluation of The student. Ms. Rand informed the parents that the school district would complete a multi-factored evaluation for them at no cost. She further advised them that if they pursued a private evaluation, it would be at their own cost. Ms. Rand also informed the parents that any information from the private evaluation would be considered in the school’s multi-factored evaluation process. (Bd. Ex. A)
The parents did not return the Request for Assistance, but proceeded with a private evaluation by The Shennong Center on March 1 and 4, 2002. (Pt. Ex. 2). The report from The Shennong Center concluded that The student had Attention-Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD) as well as a severe Reading Disorder. (Pt. Ex. 2, page 16). The report further concluded:
Although many of his disabilities are not ready apparent to observers, his AD/HD and learning difficulties are real. AD/HD is a disorder of inconsistency. It will be easy for adults that interact with him to expect behavior to be consistent and attribute his inconsistencies with willful misbehavior. While at times he will misbehave purposefully, many of his lapses are likely to be the result of his disorder. (Pt. Ex. 2, page 17)
On March 25, 2002, The student’s mother signed the Request for Assistance to start the MFE process. (Jt. Ex. II). Because the Shennong Center had concluded that The student’s reading comprehension was extremely low (age equivalent 6y 8m; grade equivalent 1:7) and that his discrepancy score was greater than four standard deviations, (Pt. Ex. 2, page 17) Springboro retested The student for Reading skills and found that he performed in the average range with a Standard Score of 95. The MFE was completed and The student was found eligible for Special Education services for Other Health Impaired, by virtue of his ADHD. All parties signed the
Determination of Eligibility on April 16, 2002. (Jt. Ex. II). One week later, on April 23, 2002 an IEP was prepared and signed by all parties. (Bd. Ex. B).
With the IEP in place during The student’s third year in high school (2002-2003), his grades improved and he had acquired sufficient credits by the end of the school year to advance to a senior. (Pt. Ex. 9) However, during the fall of 2002, his behavior became more problematic, so a functional behavior assessment was conducted and a classroom management plan was prepared on September 23, 2002. (Jt. Ex. IB).
On January 28, 2003 The student was criminally charged with Obstructing Official Business and Disorderly Conduct as a result of an incident at a school basketball game. He was given a ten day out of school suspension. There was no evidence presented of any other major discipline/behavior incidents the remainder of the school year.
On September 24, 2003, The student’s IEP for his senior year was updated. His IEP called for him to attend the Warren County Career Center in the morning to pursue the electrical trades field and to attend the high school in the afternoon for three academic classes. (Jt Ex. IA). The school district offered The student transportation from his home to the Career Center, but he elected to have his parents drop him off rather than ride the school bus as a senior. The student did very well in his electrical trade classes at the Career Center and according to the testimony had absolutely no behavior or discipline problems there. (Tr. 27-28).
The student’s last class at the Career Center ended at 10:35 a.m. His first class at Springboro High School started at 11:25 a.m. Although Springboro provided transportation for its students from the Career Center to Springboro High School, The student’s parents voluntarily transported The student from the Career Center to Springboro High School. (Tr. 101-102) Around Thanksgiving The student began arriving at Springboro High School well before his first
class at the high school. He would sign in at the office and then go the school cafeteria before his fifth period class which started at 11:25 a.m. (Tr 161).
The students are required to stay in the cafeteria during lunch period until the bell rings for the next class. (Tr. 162-163). On November 21, 2003, The student left the cafeteria before the bell rang in disregard of the monitoring teacher’s warning. As a result, the Principal, Dr. Ron Malone instructed The student’s parents by a letter that The student was to eat lunch at the
Career Center and not to go to the cafeteria upon arrival at the high school. (Pt. Ex. 6) The student was to sign-in at the attendance office and remain there until the bell rang at 11:25 a.m.
On December 16, 2003 a malfunctioning fire alarm system caused an unplanned fire drill at the high school just as The student was arriving from the Career Center. The Principal, Dr. Ron Malone, saw The student inside the school building but outside of the attendance office. Dr. Malone told The student that he should go into the attendance office, sign in and stay in the attendance office until the fifth bell rang. The student refused. Dr. Malone asked the District Resource Officer, a Springboro Police Officer assigned to the school district to assist with The student. (Tr. 170-177) The Resource Officer had difficulty in getting The student to comply with instructions and he subsequently filed criminal charges against The student for trespassing and Misconduct at an Emergency. (Pt. Ex. 5) The student’s parents hired an attorney to defend the criminal charges, which were dismissed. (Pt. Ex. 5).
After the incident in the cafeteria and charges from the fire drill incident, The student’s parents believed that The student was being harassed by the administration at Springboro High School. They requested that The student be placed on home instruction the remainder of the school year for his three academic classes. Springboro agreed and The student’s IEP was
the Career Center back home, but after a few days The student stopped using the transportation because he did not want to be the only person on the bus. (Tr. 113, 139).
The student’s parents requested a due process hearing on January 7, 2004. By the time the hearing was held, The student was on track through his home instruction to earn the
necessary credits to graduate with his class in June, 2004. The student completed both the junior and senior curriculum in the residential electrical trades program and was eligible to return to the Career Center at no charge for the 2004-2005 school year for advanced training in the electrical trades program if he wished to do so at no charge. (Tr. 30, 146-147).
ISSUES PRESENTED FOR REVIEW
The parents in their initial request for a due process hearing identified the issues as follows:
1. The student’s classroom management/behavior plan was violated. 2. The student’s placement was changed without notification. 3. Springboro had created a hostile/negative environment. The resolution sought by the parents was as follows:
1. Permanent home instruction and transportation through graduation. 2. Reimbursement of legal fees incurred for both criminal charges.
3. Written apology and official public reprimand of responsible Springboro High School Administration.
The request for a due process hearing was amended March 1, 2004 by the parents’ legal counsel who raised the following issues:
1. Inaction of District’s educators
a. The student, a student in crisis, was not identified as Child Find requires. b. Educators did not evaluate The student, so parents had to make
arrangements to have him evaluated in early 2002, and pay the cost associated thereon. (Such evaluation was then used by the District to write an I.E.P.)
c. Educators have not responded timely to The student’s needs and his I.E.P.’s.
2. District educators have not followed The student’s I.E.P. a. The student’s I.E.P. was not implemented properly.
b. The student’s classroom management/behavioral plan was violated. c. The student’s placement was unilaterally changed without discussion with
or notification of, to the I.E.P. team or parents.
3. Certain educators have created a hostile/negative environment for The student, so that it has harmed him.
The resolution sought by the amended request for due process hearing was as follows: 1. Home instruction sufficient and timely, so that The student receives his grades,
credits and diploma in June, 2004.
2. Reimbursement of costs incurred by parents for testing/evaluation of The student. 3. Reimbursement to family of transportation costs for The student for his education
for the 2003-2004 school year.
4. Compensatory education costs for The student to continue his vocational education.
FINDINGS AND DISCUSSION
Since the parents’ issues were incorporated in the amended request for a due process hearing, they will be addressed together. The first issue deals with the school district’s alleged failure to identify and evaluate The student in a timely manner. The Individuals with Disabilities Education Act (IDEA) requires that a state identify, locate, and evaluate all children with
disabilities residing in the state. 20 U.S.C. §1412(a)(3)(A).
The hearing officer does not find that the school district violated its Child Find obligations. In this case there was no evidence presented to indicate that the school district should have suspected that The student was handicapped. In fact, the evidence was just the opposite. The student performed average to above average work for his first eight years in the Springboro school system. There was no evidence presented to indicate that there were any
behavior problems with The student during his grade school years. For eight years The student displayed characteristics of a non-disabled child.
One would expect a disabled child to exhibit and display symptoms of his disability early on in his school career. That was not the case here. The student suddenly began to have academic problems and behavior problems when he entered the ninth grade. It would have been reasonable to assume that the cause was something other than a disability. Any teenage boy whose grades suddenly drop and who begins having trouble in school should not automatically be presumed to be disabled. In The Shennong Center report, they found:
The student’s score on the MAC-R scale suggests that he has some personality or behavioral characteristics associated with alcohol or other drug use, including risk-taking behaviors and the desire to be the center of attention. His elevated score on the PRO scale indicates that he shares some of the personality features of adolescents who are in treatment for alcohol or other drug problems. His
potential for developing alcohol or drug problems requires attention in therapy; however, his lack of acknowledgment of problems in this area might interfere with treatment efforts. (Pt. Ex. 2, page 10).
Further, The Shennong Center’s second recommendation was, “The student’s past history of marijuana and alcohol use and current academic and behavioral issues warrant further
attention.” (Pt. Ex. 2, page 18). If The student’s poor academic performance and behavioral problems were exhibited in the first or second grade and the school district did not evaluate him that would be a different story. After eight years of good academic performance and no record of discipline problems, the hearing officer does not find that Springboro violated its Child Find obligations in this case.
On February 5, 2002 Dr. Tracey Todd, an advocate acting on behalf of The student, called Teresa Rand, the Special Education Coordinator for Springboro and expressed concerns about The student. Ms. Rand immediately contacted The student’s mother and spoke with her
regarding the possibility that The student might have a disability. The school district offered to complete a multi-factored evaluation (MFE), of The student at no charge. (Bd. Ex A) Ms. Rand sent the parents a form to request and authorize the MFE but they did not sign it and elected to have The student evaluated privately by The Shennong Center.
If the school district had refused to complete a MFE of The student or if the school district had completed a MFE which concluded that The student did not qualify for special education services, it would have been a different situation. The fact that the school district agreed to consider and used parts of The Shennong Center evaluation after the parent refused to allow Springboro to complete its own MFE is not evidence that the school district violated any part of IDEA, but just the opposite.
The hearing officer had concerns about The Shennong Center evaluation where it concluded that The student had a serious reading problem. Its evaluation concluded that his reading comprehension was extremely low (age equivalent 6y 8m; grade equivalent 1:7) and that his discrepancy score was greater than four standard deviations. (Pt. Ex. 2, page 17). How could a student with such extremely low reading comprehension ever complete eight years of grade school with average to above average grades? With all of The student’s other test results from The Shennong Center being in the average to above average range, how could The Shennong Center conclude that The student had a severe Reading disability? The Shennong Center should have retested The student’s Reading comprehension since it was so extremely inconsistent with the other testing results, but they did not. Springboro carefully considered The Shennong Center’s evaluation and found the Reading discrepancy. When Springboro retested The student’s Reading ability, it found him to be in the average range with other students his age which was consistent with his level of performance in the other testing areas.
The hearing officer finds that Springboro acted very timely when it came to The student’s evaluation and the completion of his IEP. On February 20, 2002 Springboro offered to complete a multi-factored evaluation. On March 12, 2002 The Shennong Center completed its assessment. On March 25, 2002 the parents signed the request for assistance to start the MFE process. On April 9, 2002 Springboro retested The student’s Reading and found The Shennong Center report was grossly inaccurate. On April 16, 2002 the MFE team met and found that The student was Other Health Impaired by virtue of his ADHD and was eligible for special education services. (Jt. Ex. II) On April 23, 2002 the IEP team met and completed The student’s IEP. (Bd. Ex. B). The hearing officer finds that the entire process was very timely. It was completed in two months measuring from the time the school district offered to complete a MFE (Bd Ex A) and the signing of the IEP. (Bd. Ex. B).
The second issue deals with Springboro’s failure to follow The student’s IEP. The hearing officer did not see any evidence that the IEP was not implemented properly. In fact, the first year the IEP was in place The student’s grades improved, his cumulative average increased, and he earned 5.75 credits compared to 4.25 and 5.00 credits for the two previous years. It seems clear to the hearing officer that the IEP was working and being properly implemented.
The hearing officer did not see any evidence that The student’s classroom behavior management plan was violated. There was numerous records presented of detentions issued by Ms. Weilnaw, but those were mostly in 2001 and were all before the MFE, the initial IEP and the behavior management plan. There was evidence presented about an incident at a school
basketball game where The student was charged with disorderly conduct and obstructing official business. He also received a ten day suspension for violating rule #26 - Under the influence of
trespass and misconduct at an emergency arising out of a fire alarm drill. Again this was not something that occurred in the classroom. There simply was no evidence that the behavior management plan was not followed while The student was in the classrooms at Springboro.
Finally, the hearing officer does not find that there was a unilateral change in placement. Initially when The student came to the high school from the vocational school he would wait in the lunch room until the bell rang for his first class at the high school. Students are required to stay in lunch room until the bell rings but one day The student tried to leave the lunch room before the bell rang. When the staff member assigned to monitor the lunch room directed The student not to leave the lunch room until the bell rang, The student told the monitor he was going to leave anyway. As a result of the incident, Andrea Cook, Assistant Principal of Springboro High School, directed The student that he was to sign in at the attendance office as soon as he entered the high school and to stay in the attendance office until the bell rang for his class. (Tr. 161-165). The hearing officer does not find changing the location in which The student is to wait for his class to begin to be a change in placement in violation of IDEA.
The final issue raised is that certain educators created a hostile environment that has harmed The student. With the incident at the basketball game, The student was with a group of boys who were disciplined. The student was not singled out. Requiring that The student remain in the attendance office upon arriving at school since he refused to remain in the lunch room as instructed was within the proper authority of the principal. Requiring students to follow instructions during fire drills is essential to the safety of all the students.
It is clear that The student and his parents believed that The student was being singled out and punished. It is clear that they believed that the school’s enforcement of the rules were intentionally done simply to harass them. I have no doubt that they believe the environment was
hostile. However, the hearing officer does not find that the enforcement of the school rules in this case violates any provision of IDEA.
DECISION
The parents requested home instruction for The student’s three academic classes and Springboro promptly agreed and arranged for the home instruction. The evidence was clear at the time of the hearing that The student had received passing grades and accumulated sufficient credits to graduate with his class in June, 2004. That requested resolution is denied as being moot.
The parents seek reimbursement of the costs incurred for the testing by The Shennong Center. That request is denied because Springboro offered to do the testing and evaluation at no charge to parents but they refused and chose private testing. The parents were advised that private testing would be at their own cost.
The parents have requested reimbursement for attorney fees incurred in defending the criminal charges filed against The student. That request is denied if for no other reason, than the fact that the hearing officer has no authority to make such an order.
The parents’ request that members of the Springboro High School administration be ordered to make a written apology and to be publicly reprimanded is denied.
The parents’ request for reimbursement of transportation costs for The student is denied because Springboro offered to provide transportation, but the parents and The student elected to be transported privately.
The parents’ request for compensatory education costs is denied. If The student wanted to continue at the Warren County Career Center for advanced electrical trades training, he was eligible to do so at no cost, as long as he did not accept his diploma. He could have still walked
and participated in the graduation ceremony with his classmates without accepting his diploma and would have been able to attend the Career Center until he turned twenty one. (Tr. 147) Whether or not The student elected to accept his diploma and graduate or not accept his diploma and continue at the Career Center, the hearing officer does not know since that took place after the hearing and was The student’s choice.
Having heard the testimony, reviewed the exhibits and briefs of counsel, the hearing officer holds that Springboro complied with its obligations under IDEA and the laws of the State of Ohio and the case is dismissed.
___________________________________ Bruce A. Favret
Due Process Hearing Officer
2631 Erie Avenue
Cincinnati, Ohio 45208
CERTIFICATE OF SERVICE
I hereby certify that a copy of decision and Notice of Opportunity for Appeal
and Rights Following the Hearing was served on PARENTS; Ms. Carol J. Holm, Esq, Attorney for the parents, 130 W. Second Street, Suite 1010, Dayton, Ohio 45402; J. Michael Fischer, Esq., Attorney for Springboro Community School Board, Ennis, Roberts & Fischer, 121 W. Ninth Street, Cincinnati, Ohio 45202, Dr. David D. Baker, Supt., Springboro Community Schools, 1685 S. Main Street, Springboro, Ohio 45066 and Arron Gregory, Educational Consultant, Ohio Department of Education, 25 S. Front Street, Mail Stop #202, Columbus, Ohio 43215 this 25th day of June, 2004 by certified mail.
____________________________________ Bruce A. Favret
NOTICE OF OPPORTUNITY FOR APPEAL
AND
RIGHTS FOLLOWING THE HEARING
1. You can request a verbatim transcript of the hearing.2. Appeal Rights: If you are not satisfied with the findings and decision of the impartial hearing officer, you may appeal such a decision to the Ohio Department of Education within forty-five (45) days of the notice of decision to the Ohio Department of Education. If an appeal is filed, the Office for Exceptional Children, on behalf of the Ohio Department of Education, will appoint a State Level Review Officer to review the decision and issue a final order. The address for appeal is:
Ohio Department of Education Office for Exceptional Children 25 South Front Street, Mail Stop #202
Columbus, Ohio 43215-4183 Office: (614) 466-2650
3. Appeal of Rights after a State Level Review: If you are not satisfied with the final order of the state level review officer (SLRO), you may appeal such order within forty-five (45) days of receipt of notice of the order to the Court of Common Pleas of the county in which the child’s school district of residence is located, under Chapter 119 of the Ohio Revised Code. The notice of appeal must set forth the order being appealed from and the grounds of the appeal. In the event that you do appeal, you must file your Notice of Appeal with the Ohio Department of Education. A copy of your Notice of Appeal must also be filed with the Court of Common Pleas of the county in which the child's school district of residence is located."
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