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 have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

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