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7th Circuit rules school provided appropriate public education

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Hamilton Southeastern Schools has prevailed on appeal that it does not have to reimburse two parents for their son’s special education at another institution because they claimed the school system wasn’t providing a free appropriate education to their son, who had a traumatic brain injury.

In M.B., by his parents and next friends, Damian Berns and Amy Berns v. Hamilton Southeastern Schools and Hamilton-Boone-Madison Special Services, No. 10-3096, parents Damian and Amy Berns appealed summary judgment in favor of Hamilton Southeastern Schools and Hamilton-Boone-Madison Special Services on their lawsuit that the school system violated the Individuals with Disabilities Education Act and the provisions relating to special education in the Indiana Administrative Code by not providing their son M.B. with a free appropriate public education. M.B. suffered a traumatic brain injury prior to starting kindergarten, and his parents – based on the advice of a neuropsychologist – believed that M.B. needed to be in both sessions of kindergarten offered each day by the school.

The Berns worked with the school to develop an individualized education program, and the school provided some early education, at which M.B. showed progress in a number of areas. But when the Berns learned that the school would not place M.B. in both the morning and afternoon sessions of kindergarten, they placed him in an outside learning center and filed suit seeking reimbursement for M.B. to attend the center.

A hearing officer, the Board of Special Education Appeals, and the District Court all ruled in favor of the school, finding M.B. wasn’t denied a free appropriate public education. On appeal, the 7th Circuit Court of Appeals affirmed.  

The Berns didn’t meet their burden on appeal of establishing any type of procedural defect that rose to the level of a substantive denial of a free appropriate public education. The appellate court also found that M.B.’s individualized education program substantively provided him with a free appropriate public education. The evidence in the record showed that M.B. was making progress toward his IEP goals not only upon receiving early childhood services, but also while receiving extended school year services.

“Given that M.B. was making progress toward his IEP goals while receiving half-day, early-childhood services, it was reasonable for the committee to conclude that M.B. did not require double-session kindergarten to meet his needs,” wrote District Judge Joan B. Gottschall, of the Northern District of Illinois, sitting by designation.

The Berns aren’t entitled to any reimbursement for placing M.B. in the learning center because the evidence they presented to establish the propriety of the placement was “deficient in detail” and “general.” They also aren’t entitled to attorney fees because they didn’t prevail on any of their claims.

 

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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