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.