In T.B., et al. v. San Diego Unified School District (No. 12-56060, Amended 11/19/15), the United States Court of Appeals for the Ninth Circuit held that a reasonable jury could find the San Diego Unified School District (“school district”) was deliberately indifferent in refusing to specify in an individualized education plan (“IEP”) whether a school nurse would assist with a disabled child’s gastronomy tube (“g-tube”) feedings, and that the child’s parents were entitled to a greater range of attorneys’ fees than granted by the District Court.
This dispute arose from the parties’ repeated failure to agree on a proposed IEP for a disabled child, particularly regarding the administration of the child’s g-tube and the manner in which he would be transitioned back to public school. At a subsequent due process hearing under the Individuals with Disabilities in Education Act (“IDEA”), an administrative law judge (“ALJ”) ruled largely in favor of the school district. However, the ALJ ruled in favor of the parents regarding the g-tube feeding issue, finding that the IEP was silent about who would perform the feedings. The ALJ further found the feedings should be performed by a school nurse until the school district made an evidentiary showing that another staff member would be qualified. The parties engaged in settlement negotiations but were ultimately unable to come to an agreement.
The parties filed respective complaints in district court appealing the ALJ’s decision. The parents also asserted three civil rights claims under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132. The District Court granted the school district’s motion for summary judgment on the civil rights claims but found the parents were prevailing parties at the due process hearing with respect to the g-tube administration issue and accordingly, awarded them attorneys’ fees. However, the District Court limited the attorneys’ fees to the period before the school district’s settlement offer, finding that pursuant to IDEA, 20 U.S.C. § 1415(i)(3)(D), the parents did not secure more favorable relief from the ALJ and were not substantially justified in rejecting the school district’s offer.
On appeal, the Court of Appeals reversed summary judgment on one of the parents’ civil rights claims, finding the school district failed to comply with the ALJ’s decision regarding the child’s g-tube feedings. It provided that to succeed on a civil rights claim in this context, the parents must show intentional discrimination. Deliberate indifference qualifies as intent, and is defined as “knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood.” The Court found a reasonable jury could conclude the school district was deliberately indifferent to the child’s rights because its proposed IEP provided that a Behavioral Support Assistant (“BSA”) would perform the child’s feedings despite the ALJ’s strong suggestion that feedings be facilitated by a school nurse. Thus, it held there was a genuine issue of material fact on this issue and reversed summary judgment accordingly.
Additionally, the Court of Appeals found the District Court’s decision to cut off the parents’ attorneys’ fees at the date of the school district’s settlement offer to be clearly erroneous. The Court held that in accordance with IDEA, the relief obtained by the parents from the ALJ may have been more favorable from their perspective than the relief proposed in the offer. The Court provided several reasons the parents would have been justified in rejecting the offer. For example, although the school district offered an annual payment for the child’s private education, the parents may have preferred to keep the child in public school. As such, the Court concluded that the parents were substantially justified in rejecting the offer, and should not have been denied fees for services on or after that time. It vacated and remanded the award accordingly.
This T.B. opinion illustrates the legal complexities facing parents opposing IEPs proposed by school districts, both in terms of obtaining the desired accommodations and recouping attorneys’ fees pursuant to IDEA.
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