In a case coming out of Compton, California, the Obama administration has advised the Supreme Court not to take on a 9th Circuit “child-find” decision under which a child was provided compensatory education in an administrative process hearing win. The Supreme Court had requested the Solicitor General’s advice on whether to hear the case, asking it to respond to the question
Whether an allegation that a school district has violated the “child-find” provision of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1412(a)(3)(A), may be considered in a due process hearing under the IDEA.
Donald B. Verrilli, Jr., the U.S. Solicitor General penned a well-reasoned response in a brief filed November 18, in which he urges the Court not to take up the case and to let the 9th Circuit ruling stand.
“Child-find” is a provision of IDEA that requires District to proactively seek-out and identify, locate, and evaluate children in need of special education services.
Starvenia Addison was a student who was enrolled in regular education services through her tenth grade in Compton Unified. At the conclusion of her ninth grade year, she received D’s in her academic subjects and scored below the first percentile in standardized reading and mathematics tests. The following school year, Addison failed every academic subject in which she was enrolled. Her teacher reported problems, noting that her “work was gibberish and incomprehensible in all areas of study including reading, writing, listening, and speaking.” Court documents further noted that Addison “urinated on herself and played with dolls in class.”
After a mental health counselor met with Addison based on a district referral, the counselor recommended to the district that the student be evaluated for learning disabilities. The district declined to follow the recommendation and promoted the girl to 11th grade.
During 11th grade, the mother made a request for special education testing for her daughter, and during the course of that testing the child was indeed determined to be learning disabled and given an IEP. Her mother later filed for a due process hearing in which she successfully argued that due to the district’s failure to identify her daughter’s needs at an earlier stage, that the district should be required to pay for compensatory education. In Compton Unified School District v. Addison, the district appealed this Administrative Law Judge (ALJ) decision.
In opening his brief, Verrilli confirmed his agreement with both the ALJ and the 9th Circuit’s holding that a due process claim heard by an ALJ has the authority to hear a violation of the “child-find” requirements. Compton had attempted to argue that an ALJ suit was not appropriate where a district had merely failed to act rather than refused to act. Verrilli noted in his brief that to agree with Compton’s line of reasoning would lead to perverse consequences surely unintended by Congress in its passage of IDEA. Verrilli correctly noted that if a district proposed an inadequate IEP for a special education child, the parents, under Compton’s theory, would have the right to file for a due process hearing. However, if a district committed “the more fundamental statutory violation of failing to recognize the child’s disability in the first place,” a parent who later discovered such a failure would be precluded from filing for a due process hearing.
Next, Verrilli reasoned that the decision in this case did not differ from other decisions in other circuit courts across the country. This is important in that differing interpretations of the law across circuit courts is often a trigger for the Supreme Court to take up a case.
In the final section of his brief, Verrilli argued that even if a controversy does exist, that this particular case would not make a good vehicle for settling this legal question. Compton had argued that this decision subjects educational institutions to a type of “educational malpractice.” His brief noted that liability already exists in cases like this since parents under current law have the ability to bring suit for violations of IDEA, and that Compton’s actions here are a clear breach of IDEA.
The decisions of the courts noted that the investigation of a breach of duty under “child-find” is a heavily fact-based investigation. On the facts of this case, the ALJ rejected Addison’s claim that Compton violated the “child-find” requirements during her ninth grade year, “solely on the basis of her poor grades and standardized test scores.” Alternatively, the court held that Compton had violated its “child-find” obligations in tenth grade when the school counselor “’knew or should have suspected that Addison required an assessment to determine special education eligibility,’ based upon her ‘worsening academic performance and unusual and disturbing behavioral manifestations.’” The district’s liability in this case was a result of its serious delay in assessing the disabilities Addison manifested and which it itself had observed, particularly in light of the recommendation from Addison’s psychologist.
According to Mark Walsh, who gets a tip of the hat for bringing attention to this ruling, with this brief now sent to them, the Supreme Court has added this case to its private conference agenda to be considered.
Gregory Branch is an educator and a attorney practicing in the area of special education. His law practice is located in Orange County, California. He can be reached at email@example.com.