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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. Oh, the name calling was not name calling, it was merely social commentary making this point, which is on the minds of many, as an aside to the article's focus: https://answers.yahoo.com/question/index?qid=20100111082327AAmlmMa Or, if you prefer a local angle, I give you exhibit A in that analysis of viva la difference: http://fox59.com/2015/03/16/moed-appears-on-house-floor-says-hes-not-resigning/

  2. Too many attorneys take their position as a license to intimidate and threaten non attorneys in person and by mail. Did find it ironic that a reader moved to comment twice on this article could not complete a paragraph without resorting to insulting name calling (rethuglican) as a substitute for reasoned discussion. Some people will never get the point this action should have made.

  3. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  4. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  5. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

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