Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

M.B. v. HAMILTON SOUTHEASTERN SCHOOLS (December 22, 2011) 

M.B., the son of Damian and Amy Berns, was four years old when he suffered a traumatic brain injury. The Berns approached Hamilton Southeastern Schools for information about special education services. Within a few months, both the Berns' psychologist (Dr. Bryan Hudson) and the School's psychologist had evaluated M.B. The Berns and the School held several meetings over the course of the next year to develop a individualized education program. A principal point of contention was the Berns' frequent requests that M.B. be provided full days of schooling (as recommended by Dr. Hudson) and the School's reluctance or inability to do so. The Berns eventually moved M.B. to a different school and initiated proceedings at the Indiana State Department of Education. After a due process hearing, a hearing officer found that the school had not denied M.B. an appropriate education and refused to grant any relief to the Berns. The Indiana Board of Special Education Appeals agreed. On the administrative record, Judge Pratt (S.D. Ind.) denied the Berns' request for relief. The Berns appeal.

In their opinion, Seventh Circuit Judges Williams and Tinder and District Judge Gottschall affirmed. Under the Individuals with Disabilities Education Act, a state that accepts federal funding for educating disabled children must provide a "free, public, and appropriate" education that is reasonably calculated to provide an educational benefit. The IDEA contains both procedural and substantive requirements. The Berns made several arguments on appeal, which the Court addressed in turn. First, the Court rejected the argument that procedural inadequacies constituted denial of a free education. There were some procedural errors, but they were not significant enough to amount to a denial of a free and appropriate education. There were other alleged procedural errors that could have risen to that level but were unsupported by the record. Second, the Court concluded that the School did not violate the IDEA by not providing full-day education. The administrative record contains evidence that M.B. was making progress toward his goals in his half-day program. Although Dr. Hudson thought otherwise, the School was not required to give his report or testimony dispositive weight and was allowed, in fact was required, to consider the entire record. The conclusions of the administrative tribunals were reasonable. Third, the Court rejected the Berns' argument that the school violated the IDEA by not commencing services within 60 instructional days. The Court found that the School met its 60-day requirement. Plus, any delay was due to the Berns' refusal for several months to give consent to the school to conduct an evaluation. Finally, the Court noted that the Berns failed to meet their burden of proving that the new school was an appropriate placement. Under the IDEA, when parents unilaterally transfer schools, they are entitled to reimbursement only if they show both that earlier school violated the IDEA and that the new school was an appropriate placement.

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MARSHALL JOINT SCHOOL DISTRICT v. C.D. (August 2, 2010)

Minor student C.D. was a kindergarten student when he was diagnosed with EDS, a genetic disease affecting the joints. He had poor upper body strength and stability accompanied by chronic pain. The school district evaluated him pursuant to the Individuals with Disability Education Act (“IDEA”) and began providing special education services to C.D. in his gym class. The district developed an Individualized Education Program ("IEP") pursuant to which C.D. received adaptive physical education, physical and occupational therapy, and other aids and programming modifications. The following year, the district developed a new IEP. Among other changes, the new IEP required regular consultation between his adaptive gym teacher and his regular gym teacher. When C.D. reached second grade, the district again reevaluated his entitlement to special education and determined that he no longer met the criteria -- that he had an ailment that adversely affects his educational performance and that he needs special education. The district concluded that he met neither criterion. C.D.'s parents sought administrative review. After a lengthy administrative hearing, the administrative law judge (ALJ) concluded that C.D. was still eligible for special education. Judge Crabb (W.D. Wis.) affirmed. The school district appeals.

In their opinion, Judges Cudahy (concurring), Manion, and Williams reversed and remanded. The Court first took some care in identifying the precise issue on appeal in what it viewed as a complicated case. The Court specifically noted that, notwithstanding significant discussion and attention to C.D.'s academic performance, the only issue was whether he was entitled to special education in his gym classes. In order to qualify as a "child with a disability" under the Act, C.D. must have a health condition that adversely affects his educational performance and thus requires special education. The Court found little evidence in the record addressing the first prong and indications that the ALJ misapplied the test. There was evidence in the record that C.D.'s health condition could affect his educational performance and the ALJ did conclude that C.D.'s health condition could affect his educational performance. But there was little probative evidence that it actually did affect his performance – which is what the Act requires. The Court thus concluded that C.D. was unable to satisfy the first prong of the Act's test. Alternatively, the Court addressed the second prong of the test -- whether C.D. needed special education. The Court reviewed in detail the evidence presented on that issue and concluded that the ALJ impermissibly discounted testimony of C.D.’s special education gym teacher and that the record lacked substantial evidence or a reasoned basis for the finding that C.D. needed special education in gym.

Judge Cudahy concurred. Although he joined in the majority's result, he expressed the need for caution in overruling findings of fact based on witness reliability and in balancing the weight to be given medical professionals versus education professionals.

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BINGHAM v. NEW BERLIN SCHOOL DISTRICT (December 4, 2008)

Sam Bingham was a Wisconsin high school student. His parents petitioned their school district to provide special education services for him. The district did not do so. Sam transferred to a private school. After Sam graduated, his parents filed a request for a hearing with the Wisconsin Department of Public Instruction. They alleged that the school district had failed to comply with the Individuals with Disabilities Education Act (“IDEA”). They asked for reimbursement of their private school tuition costs. Before a hearing was held, the district reimbursed the Binghams for the full amount they requested. The administrative law judge dismissed the petition as moot. The Binghams asked for a declaration that they had “prevailed” for purposes of seeking attorneys’ fees under IDEA. The administrative law judge refused. The Binghams appealed to the district court. The court concluded that the Binghams were not prevailing parties and denied their motion for attorneys’ fees. The Binghams appeal.

In their opinion, Judges Flaum, Rovner and Williams affirmed. In fact, the Court very quickly and easily resolved the sole issue presented by the appeal – whether the Binghams were entitled to attorneys’ fees under IDEA – against the Binghams. In Buckhannon, the Supreme Court in 2001 held that a voluntary monetary settlement by a defendant does not entitle a plaintiff to “prevailing party” status. The Court further noted that every circuit that has considered the issue has applied Buckhannon to IDEA cases.

The Court went on because it was troubled by the plaintiffs’ conduct. The plaintiffs and their counsel were well aware of Buckhannon and yet did not even cite it in their papers. The Court emphasized that it was not the fact that they appealed which was disturbing. Buckhannon has been the target of much criticism, especially when applied to IDEA. The Court allowed for the possibility that the Binghams could have elected to appeal solely for the purpose of preserving an argument for the Supreme Court. Having decided instead to ignore binding precedent, the Court ordered the Binghams and their counsel to show cause why they should not be ordered to pay the defendant’s costs and fees of the appeal. 

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