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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. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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