Return to Report
THE PARENTS OF XXXX XXXX * BEFORE JAMES W. POWER,
v. * AN ADMINISTRATIVE LAW JUDGE
THE CHARLES COUNTY * OF THE MARYLAND OFFICE
PUBLIC SCHOOLS * OF ADMINISTRATIVE HEARINGS
* OAH NO.: MSDE-CHAS-OT-200200293
* * * * * * * * * * * * *
STATEMENT OF THE CASE
SUMMARY OF THE EVIDENCE
FINDINGS OF FACT
CONCLUSIONS OF LAW
STATEMENT OF THE CASE
This case arises from a request on July 30, 2002 by XXXX and XXXX XXXX
("Parents"), on behalf of [the Student], for a hearing to review the identification, evaluation or
placement of [the Student], a X year old autistic child.
James W. Power, Administrative Law Judge ("ALJ") conducted a hearing on August 26
and 27, 2002 at the Charles County Public Schools Administration (“CCPS”) building in
Laplata, Maryland, and on August 29 and 30, 2002 the Office of Administrative Hearings, Hunt
Valley, Maryland, pursuant to the Individuals With Disabilities Education Act ("IDEA")
Reauthorization, Disabilities Education Act Amendments of 1997, 20 U.S.C.A. § 1415(f) (2000);
34 C.F.R. § 300.510 (1999); Md. Code Ann., Educ. § 8-413 (1999); Maryland State Department
of Education Guidelines for Maryland Special Education Mediation/Due Process Hearings. The
Partie s agreed that the deadline for issuing a decision would be 60 days from the date of the
Edmund O’Meally, Esq. represented the CCPS. The Parents were represented by Wayne
D. Steedman, Esq. Procedure in this case is governed by the contested case provisions of the
Administrative Procedure Act, and the Rules of Procedure of the Office of Administrative
Hearings. Md. Code Ann., State Gov't §§ 10-201 through 10-226 (1999); Code of Maryland
Regulations ("COMAR") 28.02.01.
The issue is whether the Parents are entitled to tuition reimbursement for SCHOOL 1, for
the 2001-2002 school year.
SUMMARY OF THE EVIDENCE
See attached exhibit list
The CCPS presented the testimony of the following individuals:
XXXX XXXX, Expert in Special Education
XXXX XXXX, Expert in Behavioral Support Services
XXXX XXXX, Expert in Special Education
Dr. XXXX XXXX, Expert in School Psychology
XXXX XXXX, Expert in Special Education
XXXX XXXX, Expert in Education Administration
In the summer of 2001, the CCPS requested a due process hearing after being notified that [the Student] was being
placed in SCHOOL 1. The Parents field a Motion to Dismiss on the grounds there was no controversy at the time.
An Administrative Law Judge granted the Parents’ Motion and found the CCPS did not have a right request a
hearing. Charles County Public Schools v XXXX, OAH, MSDE-CHAS-OT-200100364. On August 1, 2002, the
United States District Court for the District of Maryland reversed the Administrative Law Judge’s decision and
decided that the school system had a right to a hearing in the summer of 2001. XXXX v Charles County Public
Schools, No. [number]. In the meantime, the Parents filed their own request for a hearing on July 30, 2002.
The Parents, XXXX and XXXX XXXX testified and presented the testimony of the
XXXX XXXX, Home Therapist
XXXX XXXX, Expert is School Psychology
XXXX XXXX, SCHOOL 1
XXXX XXXX, Special Educator from SCHOOL 1
XXXX XXXX, Expert in Special Education
XXXX XXXX, Admission Specialist, SCHOOL 2
Dr. XXXX XXXX, Expert in Autism
XXXX XXXX, Expert in Autism
FINDINGS OF FACT
Based upon the evidence presented, I find the following facts by a preponderance of the
1. [The Student] is a X-year-old autistic child who has been found eligible, for special
2. [The Student] is easily distracted. Due to this distractibility, usual methods of measuring
intelligence such as the WISC cannot be used. However, his level of cognitive ability, as
measured by other testing shows he function substantially below his chronological age.
3. [The Student] is an auditory learner, which is not typical of autistic children
4. [The Student] learns particularly well when the learning is linked to events or people from
his own family or community.
5. From January to April, 2000, [the Student] attended the XXXX Program for Disabled
Children (“[program]”) in the CCPS. He was taken out of that program because of
difficulties in the staff instructing him and reinforcing negative behaviors.
6. After April, 2000, [the Student] was home schooled with the assistance of an in home
assistant who provided support in the area of Applied Behavioral Applications (“ABA”).
7. In October, 2000, an IEP Meeting was held. At that meeting, the Parents and school system
were both represented by counsel. Both the school personnel and Parents’ experts and
consultants were in attendance. The meeting lasted for several hours.
8. Prior to October, 2000, CCPS had hired Dr. XXXX XXXX to train its staff in the area of
“discrete trials.” This is a behavior modification form of instruction, which uses repetition of
a given task and a form of reward. Tasks are mastered to a certain degree of success before
moving on to the next task.
9. By October, 2000, the CCPS had made progress in the training of discreet trial, but according
to Dr. XXXX were not yet fully trained.
10. The parties reached a compromise at the October, 2000 IEP meeting. [The Student] would be
placed at SCHOOL 2 and the Parents would waive their right to the stay put provision of the
11. The IEP developed and agreed to by the parties in October is adopted by reference herein. It
contained feeding goals and objectives. It called for a one on one aide, “as needed”, which
did not mean a specific individual who would be assigned to [the Student] at all times of the
12. The Parents agreed to and signed the October, 2000 IEP.
13. In January, 2001, [the Student] began SCHOOL 2 in a program for autistic children. At
SCHOOL 2 [the Student] did not have a one to one aid.
14. The Parents wanted [the Student] to attend SCHOOL 2 for the summer of 2001. CCPS
wanted [the Student] to attend the CCPS extended school year program, which was actually
longer than the SCHOOL 2 program.
15. The school system and Parents agreed that [the Student] would attend the summer program at
SCHOOL 2. CCPS assumed responsibility for the SCHOOL 2 Program from January the
through the summer of 2001.
16. At the IEP meeting in October, 2000, it was agreed and understood by the parties that the
SCHOOL 2 placement would only be until the end of the 2000-2001 school year.
17. In April, 2001 Dr. XXXX indicated in writing to CCPS that its staff was sufficiently trained
in the area of discreet trial.
18. Dr. XXXX also trained Ms. XXXX, who in addition to teaching discreet trial would serve as
a trainer of others in the school system in discrete trial methodology.
19. On May 18, 2001 an IEP meeting was held. At that meeting the parties were represented by
counsel. CCPS proposed the [program] at SCHOOL 3.
20. The [program] is not a program specifically for autistic children, but includes children with
other moderate or severe disabilities. The use of discrete trial is one part of the program, and
is usually done on a one on one basis when the teacher is introducing the child to a new task.
21. The [program] involved a special education teacher with three aides in a special education
classroom. This is in addition to the speech/language and occupational therapist that would
be in the room.
22. In July, 2001 the Parents notified the CCPS that it intended to enroll [the Student] at
SCHOOL 1 in XXXX, Maryland.
23. [The Student] attended SCHOOL 1 for the entire 2001-2002 school year. SCHOOL 1 is a
two and one half- hour drive from [the Student]’s home in Charles County.
24. SCHOOL 1 adopted and implemented in its entirety, the IEP from October, 2000 developed
in the CCPS.
25. At the beginning of the school year [the Student] did not have a one to one aid.
26. [The Student] did not start Ritalin until November 2001. The use of Ritalin improved [the
Student]’s ability to learn by improving his attention.
27. For the first two months of the 2001 school year, [the Student] did not achieve success and
achieved an insignificant number of goals in discreet trials.
28. As a result of Ritalin, a one on one aide, and the opportunity to work with [the Student] for
the remainder of the 2001- school year, he began achieving in a significant way in discreet
trials at SCHOOL 1.
29. The Parents refused the CCPS staff the opportunity to observe [the Student] at SCHOOL 1
and refused to attend an October, 2001 IEP meeting offered by the CCPS at SCHOOL 1.
[The Student] is a X-year old autistic child who has been found eligible for special
education services. Standard indicators of cognitive ability, such as the Wechsler Intelligence
Test for Children (“WISC”) cannot be given, due to [the Student]’s distractibility. [The
Student]’s functional ability is significantly below his chronological age.
[The Student] at one time was in the [program] in the Charles County Schools from
January to April 2000. He was taken out of this program and schooled at home with assistance of
a behavioral support specialist.
CCPS had retained the services of Dr. XXXX XXXX to provide training to school
personnel in the area of “discreet trials.” While behavior modification has been used as a
method of managing students’ behavior, discreet trial was an effort to use this methodology as an
actual form of instruction. It involves repetition of tasks with various rewards until a child has
mastered a skill. As explained by XXXX XXXX, the CCPS Support Specialist who was trained
by Dr. XXXX, it is a good way of imparting basis skills to individuals such as [the Student], who
essentially require a behavior modification method of instruction.
At an October, 2000 IEP meeting, CCPS felt its personnel had been sufficiently trained to
provide [the Student] these services within the CCPS. Dr. XXXX expressed a different view, and
indicated that the CCPS personnel had made progress, but were not quite ready to assume full
responsibility for [the Student]’s instruction.
The October, 2000 IEP meeting, like all the IEP meetings, lasted many hours and
involved numerous professional retained by both the Parents and Schools system. Dr. XXXX
himself was retained by both parties as a consultant. The meeting resulted in a compromise, by
which CCPS would agree to fund a private placement for [the Student] for the remainder of the
2000-2001 school year, and the Parents would waive the stay-put provision. SCHOOL 2 was
selected as the placement for the remainder of the year. CCPS assumed financial responsibility
for this placement, but made clear at the October, 2000 meeting that this placement was only for
the remainder of the 2000-2001 school year.
In the summer of 2001, the Parents wanted [the Student] to attend the summer program at
SCHOOL 2. CCPS wanted [the Student] to attend the CCPS extended school year program,
which was actually longer than the SCHOOL 2 program. The parties again reached a
compromise and CCPS agreed to fund the SCHOOL 2 program for the summer of 2001.
By the end of the 2000-2001 school year, the CCPS school personnel who had been
training with Dr. XXXX, were determined by Dr. XXXX, to be sufficiently trained in the area of
discreet trial. In May, the CCPS selected the [program] at SCHOOL 3 as the appropriate
placement. This program involved a special educator with three aids, in a class of 6 to 8
children, as well as the other support personnel, such as speech language and occupational
therapy. The IEP stated that [the Student] would receive one to one assistance “as needed”.
In July, 2001, the Parents notified CCPS that they intended to send [the Student] to
SCHOOL 1 in XXXX, Maryland. Despite another IEP meeting in August, 2001, the Parents
insisted that [the Student] attend SCHOOL 1.
An individual who has little or no relationship to a situation is sometimes blamed for the
ensuing conflicts which arise from that situation. This is an experience which many have had at
some point in life. While the Parents request tuition reimbursement for SCHOOL 1, and allege
numerous procedural errors on the part of CCPS, as well as harassment by school personnel, the
denial of the schools system to let them view the [program] placement, and an improper IEP
meeting, this entire case is actually about parents who did not want a teacher whom they never
met, to teach their child. The sole basis for the Parents claim in this case, is that a first year
teacher, whose name remains unknown, did not testify or provide any relevant information to
this hearing, is incompetent as a matter of law, to teach a child with disabilities in a public
The intent of Congress in passing the Individuals with Disabilities Education Act
("IDEA") was to identify and evaluate handicapped children, and to provide them with access to
the type of free, public education that would be sufficient to confer some educational benefit
upon the handicapped child. Board of Education v. Rowley, 458 U.S. 176, 201, 102 S. Ct. 3034,
3051, 73 L.Ed.2d 690 (1981).
The primary purpose of the law is to provide access for special education students to the
general curriculum. This access is supposed to be individualized and involve the use of special
[The Student] is clearly a child who needs close supervision and instruction with
specialized services. The Parents and school system do not disagree over the goals and objective
of the IEP, or the services. Nor do they disagree over the use of the discreet trial methodology.
With respect to the issue of tuition reimbursement, requested by the Parents in this case,
the Supreme Court stated in Burlington v. Dept. Educ., 471 U.S. 359, 372 (1982):
The Act contemplates that such education will be provided where possible
in regular public schools, with the child participating as much as possible in the
same activities as nonhandicapped children, but the Act also provides for
placement in private schools at public expense where this is not possible. In a
case where a court decides that a private placement wanted by the parents was
proper under the Act and that an IEP calling for placement in a public school was
inappropriate, it seems clear beyond cavil that "appropriate" relief would include
a prospective injunction directing the school officials to develop and implement at
public expense an IEP placing the child in a private school.
The issue of tuition reimbursement is in many ways a form of risk taking. This was
expressed by the court in Burlington.
This is not to say that 1415(e)(3) has no effect on parents. While we doubt
that this provision would authorize a court to order parents to leave their child in
a particular placement, we think it operates in such a way that parents who
unilaterally change their child’s placement during the pendency of review
proceedings, without the consent of state or local official, do so at their own
financial risk. If the courts ultimately determine that the IEP proposed by the
school official was appropriate, the parents would be barred from obtaining
reimbursement for any interim period in which their child’s placement violated
1415(e)(3). Burlington 372.
The local school system is likewise at risk, since it bears the financial burden of paying
for a private placement, if its IEP and placement is found to be inappropriate.
The Parents attempt to use the peripheral issues mentioned above, in the hope that they
will obscure the basic lack of evidence on the more essential issues.
The Parents in this case, as well as their experts, were given more than sufficient time to
observe the SCHOOL 3 Program. The Parents had previously taken [the Student] to the
[program] and they were clearly aware of what the program involved. Both Parents and experts
were given repeated opportunities to visit the CCPS placement. Although CCPS has a policy of
limiting observations to 30 minutes, the Parents in this case were sometimes given the
opportunity of extended visits up to an hour. In one instance, the child’s expert failed to attend
the observation, because he went to the wrong location. The Parents clearly knew what the
SCHOOL 3 Program was and the reason for sending [the Student] to SCHOOL 1 was in no way
related a lack of familiarity with the program
The notion that [the Student] was somehow dismissed from SCHOOL 2 in the summer of
2001, due to harassment from CCPS is also incorrect. The Parents contend that CCPS officials
spent an inordinate amount of time observing [the Student] at SCHOOL 2, which led to
SCHOOL 2 officials complaining about the close scrutiny. 2 On this issue, I totally discredit the
testimony of Mrs. XXXX, who clearly was putting words into the mouths of SCHOOL 2
officials. Mr. XXXX, the Educational Coordinator at SCHOOL 2, did not testify, but his words
at the May, 2001 IEP meeting were recorded by not one, but two attorneys. Mr. XXXX went to
great pain to explain that he never used the term “harassment”. What he did say, and
which was understandable, is that teachers have a difficult time performing well in “legalistic
The “legalistic situation” however, was not due solely to the school system, but to the
Parents as well, who had an attorney, recorded every IEP meeting and performed the exact same
The parties engaged in a contest comparing the observation times of the CCPS at SCHOOL 2 versus the time given
the parents’ experts at SCHOOL 3. However, this is another example of the Parents utilizing a misleading
comparison. The purpose of going to SCHOOL 3 was to observe the program, not [the Student]. CCPS personnel
went to SCHOOL 2, not to see the program but to see [the Student]. Additionally, SCHOOL 2 has two way mirrors,
legal functions as counsel for the school system.
Ms. XXXX, the Admission Specialist at SCHOOL 2, did testify and stated that she had
no problems with the CCPS personnel and that they acted in a professional manner at all times.
In fact, SCHOOL 2 was unable to accept [the Student] for the 2001 school year due to
staff turnover and the lack of space in an appropriate room.
The Parents’ contention that the IEP was inappropriate because Ms. XXXX, a special
education administrator, signed it instead of the special education teacher, is also misplaced.
Although an administrator cannot sign an IEP in place of the special educator, or appear on their
behalf, this logically presumes that such a person exists. One cannot substitute for someone who
does not exist. [The Student] did not have a special education teacher because he was either
being educated at home or was at SCHOOL 2, and there was no CCPS special education teacher
Another non- issue is the Parents contention that they “had a gun to their head” in
October, 2000 when they negotiated a deal with the school system for SCHOOL 2. The Parents
assert they were forced into waiving their right to “stay put”, and that such legal negotiations are
somehow illegal or “inappropriate” during an IEP meeting. The “stay put” provisions however
do not bar parties from making other arrangements. [The regulation] does not permit a child’s
placement to be changed during the complaint procedure proceeding, unless the parents and
agency agree otherwise. 34 C.F.R. 300.513 note.
If anyone had a “gun to its head” in October, 2000 it was the school system not the
parents. CCPS was in a position in which its personnel were not adequately trained in the area of
discrete trial, and it may well not have been able to provide an appropriate placement at that
which mean that observers can view for any period of time without disrupting the educational program.
time. They also were aware of this vulnerability, because Dr. XXXX had told them at the IEP
meeting that their people were not yet ready to engage in discreet trial.
The parents however, had a right to a due process hearing at which time they would
probably have prevailed, because the school system was essentially conceding that SCHOOL 2
would be the appropriate placement. The ensuing deal, although happening during an IEP
meeting, happened with the full knowledge, consent and advise of the Parents’ counsel, who now
contends that such dealings are somehow sacrilegious during the IEP rituals.
The Parents in this case were not hesitant to place [the Student] in private school if they
though that was what appropriate. [The Student] did not start at SCHOOL 2 until January, 2001.
Had the Parents exercised their due process rights, in October, 2000, they would have obtained,
not only the tuition reimbursement for SCHOOL 2, but attorney fees as well by the start of
2001. SCHOOL 2, in turn, would have become the approved placement and the subject of “stay-
put”. 3 34 C.F.R. 300.513.
However, the Parents response as to why they did not do this, but felt they were
“coerced” in October, 2000, can only be termed implausible. When the school system requested
an expedited hearing in the fall of 2001, the Parents could not be bothered and cried poverty.
When asked why they did not go to a due process hearing in October, 2000, if they were giving
up some valuable right, the Parents responded that such a hearing would “take too long”. In fact,
both the law and facts were clearly in favor of the Parents in October, 2000. Such was not the
case in the fall of 2001.
The Parents’ assertion that CCPS had some type of hostility toward them may or may not
This would have also changed the school system’s legal basis with respect to its right to a hearing in the summer of
2002, because the school system at that time would have been proposing a change from the last approved placement,
be true. I find nothing in the transcripts of the meetings or the record to substantiate this.
However, Congress did not entrust school systems to provide an appropriate education in a
vacuum, but enacted an extremely detailed and elaborate procedural system, ensuring that school
systems meet the demands of the IDEA.
But the IDEA is not a guarantee that Parents will make friends or people will never have
personal conflicts, simply that parents can participate in the process and be heard.
What is documented in the record, however, are instances where I believe the Parents
acted out of nothing more than the same vengeance they attribute to school system. They denied
the school system access to observe [the Student] at SCHOOL 1, they took legal action to fend
off judicial review of their decision in the fall of 2001, and they rejected an IEP meeting offer
from the school system, in October 2001, to be held at SCHOOL 1. 4
The hostility of CCPS officials mentioned by the parents at this point in time, is certainly
not supported by the record of past events. Ms. XXXX XXXX, one of the Parents’ witnesses,
alluded to one statement at the October, 2000 IEP meeting when a CCPS individual made a
disparaging remark to the parents. While I don’t have the audiotape of that meeting, a review of
the transcript does not reveal anything resembling what Ms. XXXX was alleging. If anything
disparaging was said to the Parents at that time, when they were represented by counsel, they
certainly didn’t indicate it at the time.
The Parents and school system actually worked collaboratively for many months. On
two occasions they reached compromises which were satisfactory to both sides. Although there
i.e. SCHOOL 2, which would have changed the legal basis for its request for a due process hearing.
The reason given for not allowing the CCPS staff to observe [the Student] at SCHOOL 1 is as implausible as the
reasons they gave for many things during the hearing. They maintain they were “offended” that the CCPS had
contacted SCHOOL 1 to observe [the Student], instead of contacting them directly.
were delays in scheduling meetings and obtaining information, these delays were due to the
schedules and difficulties of people on both sides, not just the school system.
The issues raised by the parents about medication and feeding protocols are likewise
unfounded. [The Student] did not have a medication regimen because he wasn’t on medication
when the IEP was developed in October, 2000. He didn’t start Ritalin until November, 2001
when he was at SCHOOL 1. Nor did he have feeding protocol although there were feeding goals
and objectives on his IEP.
The Parents’ assertion that their views were not considered, is nothing more than the
claim their position was not adopted. The Parents’ experts were clearly afforded the opportunity
to attend all IEP meetings. Not only were the Parents aware of their rights, but they clearly
availed themselves of them by retaining experts who participated in the IEP process. If these
individuals chose not to attend an entire meeting and leave early, it was not because they were
coerced into doing so. “Congress expressly recognized that tha t in many instances the process of
providing special education and related services to handicapped children is not guaranteed to
produce any particular outcome.” Board of Educa. v Rowley, 458 U.S. 192 (1982).
The most serious concern the parents had, and one which they certainly had a right to be
concerned, was that [the Student] had been in the [program] from January to April, 2000. It is
certainly understandable that the Parents would have concerns about [the Student] going back to
program in which so much difficulty. Having listened to the witnesses, I have no doubt that part
of the reason [the Student] had difficulties was in fact the lack of training by CCPS personnel in
However, a placement decision is not a game of chess in which pieces are forever
removed from the board until the only one left is a private school. On the contrary, the law
requires that a continuum of placements be available at all times for the child, so that all are
available at any point in the child’s life. 34 C.F.R. 300.551.
There are basically two aspects to the appropriateness of a placement, the nature of the
child and nature of the placement. Both are subject to change over time.
[The Student] had problems with the [program] to the point where he was home
schooled. However, in January, 2001 he went to SCHOOL 2 in a program for autistic children.
By the end of his time there, the plan by SCHOOL 2 was to put him in a program with children
who had other neurological problems, i.e., a program not simply for autistic children. Therefore,
[the Student] had been able to transition from home, to some type of educational institution,
since SCHOOL 2 is in fact “a school”, to a program with other types of disabled children. This
describes the [program].
[The Student]’s ability to function within an educational setting was different in the
summer of 2001 than it had been in January, 2000.
Likewise, the CCPS had undertaken training with Dr. XXXX to improve the training of
its staff with respect to discreet trial. In April, 2001, one month before the May, 2001 IEP
Meeting at which the [program] Placement was proposed, Dr. XXXX had indicated in writing
that the CCPS were sufficiently trained. Dr. XXXX had no qualms about voicing his objections
about the CCPS staff, because he had done so at the October 2000 IEP Meeting.
Additionally, the one thing, which was known in May, 2001 is that the teacher [the
Student] had in January, 2000 was in all likelihood not the same one he would have in
September, 2001. A placement decision must be based upon the child’s current level of
performance, not information from year and a half earlier.
The reason the Parents sent [the Student] to SCHOOL 1 and are seeking tuition
reimbursement is not related to any of the above issues. Quite simply, the Parents and school
system disagree over what is the legally appropriate placement for [the Student] during the 2001-
2002 school year. There should be no shame in this disagreement, or need to stand behind
fabricated excuses or the hollow cry that the Parents “really wanted to send [the Student] to the
CCPS” when in fact they did not. IDEA clearly contemplates that Parents and school officials
will disagree on this issue.
Unlike school systems, which can only make placement decisions after a detailed process
and at a certain time, Parents have a right to make placement decisions any time they wish. There
is nothing illegal or in any way “wrong” with Parents personally deciding that a particular
system cannot meet the needs of their child.
A Parent is well within his right to decide months before an IEP Meeting that the child is
not going to the public placement and will be in a private school. The appropriateness of the
public placement is not determined by whether the parents actually observed it or not. Indeed,
IDEA does not place any affirmative duties on Parents whatsoever, with the exception of
notifying the school system of its intention to place the child in a private school ten days before
placement. 5 They are simply given the opportunity to participate, but are not required to do so.
In terms of IDEA, I cannot conclude that the parents are guilty of bad faith simply
because they may have decided as early as April, 2000 that [the Student] was not going to the
[program]. Theoretically, Parents can make such decisions, and as long as they do not
affirmatively interfere with the school system’s ability to evaluate the child, not attend the
5 Judge Motz did not specifically cite this statutory requirement, but it is certainly consistent with his reasoning. I
see no reason why school system are to be notified of a private placement, other than to help it fulfill its legal
obligations in a timely manner, which in turn requires an expeditious, not as delayed due process hearing.
subsequent school system meetings and simply show up at a due process hearing. 6 “Without
some minimal cooperation, a school district cannot conduct an evaluation of a disabled child as
in contemplated under the IDEA.” Patricia P., v Bd. of Educ. of Oak Park, 203 F.3d 462, 468
At a due process hearing, however, the parties will take their chances under the
Burlington standard, and regardless of who prevails, the appropriateness of the public placement
is not determined by who a made the correct decision first, but simply who made the correct
Of course, showing up at a legal proceeding requires witnesses. The Parents’ emphatic
claim that they were denied access to view the [program] placement, because they needed to
make some type of informed educational decision is simply an excuse for the real issue. The
Parents had already made their decision by July, 2001, if not earlier. The need for individuals
such as Dr. XXXX and Dr. XXXX to observe the [program] placement was not to advise the
Parents about whether to send [the Student] to [program] because that decision had been made.
IDEA confers significant procedural and legal benefits to Parents. It does not confer the
benefit of tactical or strategic trial tactics to them. The Parents in this case simply miscalculated,
and did not know that the school system was going to call their bluff in the summer of 2001 and
request a due process hearing. At that time, the Parents witnesses would have had little or
nothing to say about the appropriateness of the school system’s placement, which eventually
boiled down to whether the Parents liked the teacher or not.
While the Parents choice of sending [the Student] to SCHOOL 1, and the timing of it, is
A Parent’s failure to participate in the IEP process however is far different than his or her affirmatively placing
obstacles to the school systems creating and developing an IEP, such as denying the school system the opportunity
within their right, a witness in any type of legal proceeding who testifies under oath is subject to
scrutiny, especially when their actions are inconsistent with their testimony. In drawing an
adverse inference from the Parents testimony and behavior after [the Student] was placed at
SCHOOL 1, I in no way imply that they violated the law or are in some way barred from tuition
reimbursement because they violated some affirmative duty, since they had none. But they were
less than honest.
But the underlying legal issue eventually surfaces, despite any amount of peripheral ones.
In comparing [program] and SCHOOL 1, there is in fact no difference, except that SCHOOL 1 is
too restrictive an environment. Attending SCHOOL 1 would involve five hours of bus rides and
be totally outside the community where [the Student] lives. He would have no contact with
nondisabled peers. Ms. XXXX, the special education teacher at SCHOOL 1, also noted that [the
Student] learns particularly well when the learning is linked to events or people that have
significance in [the Student]’s life. These would include events related his family or life in
Charles County. It remains unclear why he needs to be in XXXX, Maryland when people and
events in Charles County would provide a better opportunity for [the Student] to learn.
Although SCHOOL 1 is a twelve- month program, CCPS offers extended school year
services which would create the equivalent of such a program. It should also be noted that in the
summer of 2001, the parents actually opted for the shorter summer program at SCHOOL 2,
instead of the longer one at CCPS.
[The Student] attended SCHOOL 1 in 2001 with the same IEP he had at CCPS. The
method of instruction, discreet trial was the same at SCHOOL 1 as at CCPS. The student ratio
was not one to one at either SCHOOL 1 or CCPS. However, there were sufficient personnel in
to observe the child in the private placement.
each location to assure that [the Student]’s needs would be attended to.
The Parents could not articulate any real difference between SCHOOL 1 and the
[program]. The differences they did cite involved issues unrelated to IEP issues, such as the
observation policy of SCHOOL 1 versus that of CCPS.
Throughout the hearing they made an issue of [the Student] needing a one on one aide.
They wanted this written into the IEP and it appeared that this was the true stumbling block
between the parties. The IEP stated that [the Student] would receive one on one attention “when
needed”. The Parents were not satisfied with this.
Yet on direct examination, Mrs. XXXX stated that a one on one aide was not really what
concerned her. When asked what did, she reverted to generalities and provided nothing specific
about how the program at SCHOOL 3 differed from that at SCHOOL 1.
According to Dr. XXXX, the educational consultant retained in the fall of 2001, [the
Student] needed a one on one aide. When asked whether this individual should always be the
same person, she responded “yes”. She was then confronted with the fact that that [the Student]
did not have the same aide all the time at SCHOOL 1. She then responded by saying in such a
situation the various aides must be perfectly coordinated to ensure that they deal with him in the
proper manner. She clearly implied in her testimony that this method was not the preferred one
and she could see no value in having [the Student] being assigned various aides.
In fact, the deliberate rotation of aides is not done at SCHOOL 1 simply because the staff
there feel like doing it. As explained by Ms. XXXX, [the Student]s’ teacher at SCHOOL 1, this
is done in order for the child to generalize and learn why this person, no matter who it happens to
be at a particular time, is there. This sounds strangely similar to the school system’s rationale
that having the same person with [the Student] at all times creates dependency on the part of the
child. In fact, the program at SCHOOL 3 is more similar to the one at SCHOOL 1, than to what
Dr. XXXX recommended, because at SCHOOL 3, [the Student] would not be assigned a
particular person but would assisted by which ever aide was available. 7
The Parents also called Dr. XXXX XXXX to explain the difference between the CCPS
program and SCHOOL 1.
According to Dr. XXXX, the difficulty with the CCPS placement is that the room had
children with a wide spectrum of severe disabilities. This in turn “stressed” the staff, since they
could not attend to the needs of such a disparate group. According to her, [the Student] needs a
program for autistic children.
When pressed to explain what a “program for autistic children” was, Dr. XXXX’
response was couched in terms of educational management, not educational research. According
to Dr. XXXX, [the Student] should be in a class with other autistic children, because it reduces
the stress on the staff. Implicit in this response is the assumption that children with the same
category of disability must somehow present similar behaviors to school staff. Since the
behaviors or issues presented by children with the same disability must be similar, the staff in
turn can more easily handle these demands.
When asked to explain how this problem of staff dealing with a disparate group of
children arose in the CCPS placement, Dr. XXXX was only able to cite one example, which
involved a child with a feeding tube. One time during her observation at [program], a nurse
The aim of education is independence, not dependence upon either family or society in general. This was
recognized by Congress as a core value in the enactment of IDEA. A necessary skill in attaining this goal of
independence is the ability to generalize beyond a concrete situation and engage in some degree of abstract
thinking. [The Student] is a child who will no doubt require adult assistance and support throughout his life, and
whose ability to engage in abstract thinking is clearly limited. It is precisely for this reason that his ability to
understand the role of adults in general within his life, and attain some degree of independence in this area, is not a
minor educational achievement.
entered the room and fed the child through the tube, presenting a distraction to others in the
room. She also testified that SCHOOL 1 program had children with other issues, such as eating,
although she quickly added that the staff at SCHOOL 1 were quickly able to deal with the issue.
In fact, the staff at SCHOOL 1 evidently had significant problems handling [the Student]
because they eventually placed him with an aide, but not until trying instruction in smaller
But the significant aspect of this observation has nothing to do with the other children
being autistic or no t autistic. [The Student] is clearly unaware of whatever disabilities other
children have. The significant aspect of this observation is simply that [the Student] can be
distracted. He can be distracted by an autistic child as easily as a child with some other disability.
The critical issue is not the disability the other children have, but whether sufficient staff are
available to deal with him when he becomes distracted.
When asked if it would be appropriate to place [the Student] in a program with other
autistic children, based on his disability, Dr. XXXX’ response was, “why not?”.
The use of categorical labels and the provision of special education services based on
these categories is the reason why special education was changed with the enactment of IDEA.
Children cannot be provided services based on the belief that children with the same disability all
act the same and therefore can be taught in the same manner. Yet this was exactly the rationale
of Dr. XXXX. The issue is not finding the easiest way for a school to provide special education,
but finding the appropriate way for an individual child to learn. There are no doubt many school
administrators who wish providing special education was simply matter of matching students
with disabilities to classrooms with similar signs. Yet educators today realize that this is legally
and practically impossible.
I gave Dr. XXXX the opportunity provide some educational basis, or insight into autistic
children which would justify an individual placement of [the Student], based upon some research
of autistic children. She provided none. Her response was nothing more than the belief that
children with the same label must behave the same way.
Ironically, it was Ms. XXXX, [the Student]’s teacher at SCHOOL 1, who provided the
type of insight which eluded Dr. XXXX. According to Ms. XXXX, [the Student] is an auditory
learner, which she stated is different than most autistic children. If this is the case, then it make
even less sense to say that he needs a program for autistic children, based on the assumption that
he learns the way the typical autistic child learns.
The purposes of this title are-
(1)(A) To ensure that all children with disabilities have available
to them a free appropriate public education that emphasizes special education
and related services designed to meet their unique needs and prepare them for
employment and independent living. 20 U.S.C. 33-1400(10)(d).
Categorical labels and “unique needs” are by definition incompatible. One cannot attend
to “unique needs” if the only basis for doing so is based upon the belief that individuals with a
shared label behave the same.
The use of categories of disabilities is also incompatible with the dictates of IDEA, that to
the extent possible, children with disabilities be educated with children who have no disabilities,
i.e. children with no labels. Under 34 C.F.R. Sec. 300.550, special classes, separate schooling or
other removal of children with disabilities from the regular educational environment occurs only
when the nature or severity of the disability is such that education in regular classes with the use
of supplementary aids and services cannot be achieved satisfactorily. There is nothing in the
nature of discreet trials, which requires that it only be performed in a private school. Yet Dr.
XXXX suggested this when she stated that as a matter of educational policy, it would be
impossible for a staff, such as the one at SCHOOL 3, to adequately teach [the Student], given the
diverse disabilities of children in the room.
Both Dr. XXXX, the autism specialist who trained the CPPS personnel and Dr. XXXX,
the CCPS School Psychologist, were correct when they stated that the issue is not the name of
the program, but the nature of the services. The important aspect of the placement is whether the
methods of instruction and services are appropriate to the unique needs of the child. The IDEA
charges the school with developing an appropriate education, not with coming up with a proper
label with which to describe [the child’s] multiple disabilities. Heather S. v Wisconsin, 125 F.3d
1045, 1055 (7th Cir. 1997).
Ms. XXXX, the admission specialist at SCHOOL 2, testified that while at SCHOOL 2,
[the Student] was in a program for autistic children. However, she then stated that the plan for
[the Student], had he stayed at SCHOOL 2, was to be moved to a program with children who had
other neurological disorders. Unfortunately, there was no space in this room for [the Student].
SCHOOL 2 was moving away from a program strictly for autistic children and toward a
program, which resembled the make up of the CCPS placement.
Dr. XXXX’ solution totally igno res the “least restrictive environment” dictate of the law
and immediately places [the Student] in an “autistic program” with no consideration even given
as to possible contact with non-disabled students.
“An IEP is a snapshot, not a retrospective. In striving for “appropriateness”, an IEP must
take into account what was, and what was not objectively reasonable when the snapshot was
taken, that is, at the time the IEP was promulgated…Correctly understood, the correlative
requirements of educatio nal benefit and least restrictive environment operate in tandem to create
a continuum of educational possibilities. Roland M. v The Concord School Committee, 910 F 2d
983, 987 (1st Cir. 1990).
This principle was cited by Judge Motz in this case, when he wrote: “ Theoretically, the
success (or lack of success) of a child in the school where the parents unilaterally placed him
during the year for which they are seeking reimbursement should not be considered in deciding
the reimbursement claim since the appropriateness of the board’s proposed placement should
only be judged by what information the board possessed before the school year began.” XXXX
v. Charles County Board of Education at FN5.
The Parents’ resort to the expertise of their witnesses, and the suggestion that somehow
the testimony of these witnesses resolves the case in their favor because of their “independence”,
and the fact they are not “hired guns” obscures the larger issues.
Dr. XXXX, the Psychologist presented by the Parents, is not what I term an independent
witness. She was called to testify for no other purpose than to say that [the Student] needs a
program for autistic children because he is labeled autistic.
Dr. XXXX’s testimony is ir relevant because she did not enter the scene until September,
2001, well after the relevant events of this case. However, her testimony was strangely
reminiscent of the mother’s testimony, especially on the issue of the need for the same one on
one aide to accompany [the Student], which no other expert witness in the hearing seemed to
The witnesses from SCHOOL 1 are indeed independent, but their testimony is irrelevant
to the issue of the appropriateness of the CCPS placement decision, because they were not part
of that process.
The testimony of Dr. XXXX is relevant, but must be put into context. Although Dr.
XXXX testified that SCHOOL 1 was appropriate at the present time, that is not the issue in the
present hearing. He also testified that the teacher he observed at the [program] placement on
September 11, 2001 was not appropriately applying discreet trial.
The situation as it existed in the summer of 2001, was very different than it was on
August 30, 2002.
In the fall of 2001, SCHOOL 1 had shown little success in working with [the Student].
Ms. XXXX, [the Student]’s teacher at SCHOOL 1, was unable to achieve any significant gains
in the behavioral objectives. But [the Student] had not started Ritalin and did not have a one to
one aid. Ms. XXXX’s experience of working with [the Student] only consisted of several weeks.
In the fall of 2001, Dr. XXXX would have been presented with a situation which was far
different than as he testified on August, 2002. He would have faced a private school which had
the child, not on Ritalin, but was unable to make progress, and a public school which did not
have the child, but had problems with its teaching methodology. Dr. XXXX did testify that he
did not think [the Student] needed a program for autistic children. What was important was the
method of instruction.
Had Dr. XXXX observed the SCHOOL 3 Placement earlier, it simply means that he
would have appeared at a May, 2001 IEP meeting and provided the same criticisms of the CCPS
personnel that he observed in September. Even this is uncertain, because the particular teacher
that Dr. XXXX would have observed in May would clearly not have been the same teacher he
observed in September.
But he certainly could not have provided an opinion about SCHOOL 1, because
SCHOOL 1 did not exist for purposes of this hearing in May, 2001.
The Parents’ contention that Dr. XXXX is objective is absolutely correct. He would not
have appeared at a due process hearing or IEP meeting in the fall of 2001 with a crystal ball and
tried to prognosticate [the Student]’s future.
While Dr. XXXX may well have believed that SCHOOL 1 offered a better opportunity
for [the Student], that issue is irrelevant. The question which should have been asked a year ago,
but was not, is whether Dr. XXXX thought that the training and intervention needed to improve
discreet trials could have been done within the CCPS placement, notwithstanding the teaching
errors he observed.
Of course, no one, not even Dr. XXXX knows what his candid opinion, would have been
in 2001 on this issue, because the Parents ensured there was no due process hearing and they
rejected the school system’s offer of an IEP meeting at SCHOOL 1 in October, 2001.
The fact that training is required under these circumstances does not mean the CCPS
placement is inappropriate. Ms. XXXX had been trained by Dr. XXXX as the classroom
resource person who would provide the classroom supports to the teacher doing the instruction. I
saw no evidence of her “incompetency”. Every witness who testified about discrete trials stated
that ongoing training is itself a part of discreet trial methodology. Even SCHOOL 1 has a
training manual which is used to train teachers and is used as a reference.
This is not a case, as was implied by the Parents, of an English teacher being put into a
Mathematics classroom and being told to teach Calculus.
The Parents’ contention that they were denied the ability to find out what the placement
at SCHOOL 3 really was, is in fact a subterfuge. The Parents knew where the building was. They
didn’t’ need to hire Dr. XXXX in September, 2001 to learn that it was in fact a temporary
classroom building. They knew the staffing ratio and the services provided. They knew from
prior experience the make up of children in the class. They knew the methodology, discrete trial
which was to be used. They also knew the individual, Dr. XXXX, who was doing the training of
the CCSP personnel. The only thing not known, was the teacher.
The Parents’ exasperation in asking “where is this teacher that CCPS had?”, is but
another example of their misunderstanding of the law. As stated by Judge Motz in his decision, a
due process hearing where two new placements are being considered, should ideally be under
circumstances where no teacher is trotted into the hearing room. It should occur at a time prior to
or shortly after the student arrives at a new placement, and should involve an examination of the
placements, not the personalities of the teachers.
Instead, we have the exact situation which Judge Motz warns against as being
inappropriate, i.e all those familiar with the child’s recent school performance come from the
When pressed to show what reasonably was known in the summer of 2001, that would
cause the CCPS school system to suddenly conclude that its placement was inappropriate, Mr.
Steedman resorted to the only argument left, which was to accuse everyone at CCPS of being
incompetent. Sometimes an emotional outburst will reveal the true legal basis, or lack thereof,
of a party. He said this, because in fact there was nothing known in the summer of 2001 which
would cause the school system, which had just been told by Dr. XXXX that its staff had been
properly trained, to suddenly conclude that its placement was wrong. Mr. Steedman’s Freudian
slip, was in fact an admission that this entire case centers around a teacher who nobody knows,
and in fact whose expertise is irrelevant to this case.
Competence presumes the opportunity to perform a skill. What can be said with certainty
is that in the summer of 2001, the teacher selected by CCPS was not incompetent, because she
had yet to teach. The Parents assume that more experienced teacher necessarily yields better
educational results, which may well be true. However, there are many experienced teachers who
are incompetent, and worse yet, not amenable to supervision, which the discrete trial
The Parents have no right to select the age, race religion or experience of the teacher. The
appropriateness of the placement is not determined by whether the parents approve of him or her.
The county board shall employ individuals in the position that the county board considers
necessary for the operation of the public schools in the county. The Superintendent shall
nominate for appointment by the county board all principals, teachers and other certificated
personnel and assign them to their positions in the schools. Md. Code. Ann Educ. § 6-201(b).
We would anticipate that, in all likelihood, only on rare occasions, could a
Plaintiff establish that an individual instructor was not only the cause of
the disabled student’s inability to progress, but also the causative factor in
preventing that student from obtaining an appropriate education in the
future, so as to warrant a Court’s intrusion upon a School District’s
undeniably strong interest in selecting instructors who are most suitable to
a disabled student’s needs. Similar, we suspect that the availability of
alternatives such as compensatory education, or in service training for
instructors, would render the removal of a given teacher as a most
extraordinary remedy. Moubry v Indep. Sch. Dist. No. 696(ELY, 951)
F.Supp. 867, 885 (D.Minn. 1996).
The regulations require that the State use its own highest requirements to determine the
standards appropriate to personnel whom provide special education and related services under
this part. The regulations do not require States to set any specified training standard, such as a
master’s degree, for employment of personnel who provide services under this part. 34 C.F.R.
Whatever failure [the Student] had for the first two months of the 2001 school year, could
clearly not be attributed to the incompetence of a new teacher, because [the Student] was not on
Ritalin, did not have a one to one aid and was not achieving success under Ms. XXXX, who is a
six year teacher. The Parents’ entire case, rests on the assumption that a first year teacher is
incompetent and as a matter law, to teach an autistic child in a public school.
The examination of evidence and its proper consideration to the legal issue of the case
takes on more significance in this case, given its unique procedural posture. After receiving
notice that the Parents were going to send [the Student] to SCHOOL 1, CCPS attempted to
request a due process hearing in the summer of 2001. Had that hearing occurred in a timely
manner, the evidentiary record would have included little if any of what happened at SCHOOL
1. Indeed, the holding of such a hearing, prior to the start of the school year would have involved
the comparison of two programs, without any evidence at to how [the Student] was doing in
In his decision reversing the denial of the school system’s request for a hearing, Judge
Motz alludes to the policy behind an expeditious resolution of disagreements between parents
and school systems.
It may be, as the XXXX complain, that a school board’s right to
have a placement dispute timely resolved by an ALJ inconveniences
parent like themselves who would like to make a unilateral placement of
their child in a private school and litigate the question of their right to
reimbursement at a time of their own choosing. That fact alone, however,
hardly provides a basis for judicial nullification of the regulations creating
the board’s right to demand a due process hearing. To the contrary, the
regulations are wholly consistent with the terms, purposes, and policy
underpinnings of the IDEA, and a court’s failure to uphold them for the
convenience of a child’s parents would constitute an arbitrary exercise of
[P]arents who seek public funding for their child’s special education
possess no veto over a school board’s decision. The very premise of the
IDEA is that the duty to develop individualized education programs and to
make placement decision resides in the public educational agencies
themselves…..Necessarily concomitant with that duty is the existence of
the opportunity and the power to perform it. If parents were able to
withdraw their child from the public school at which the school board
determined he could receive a free appropriate public education for the
duration of a school year and insulate their actions from prompt review by
delaying their request for due process hearing for their reimbursement
claim, the board’s fulfillment of its statutory obligations would be
impaired in two critical respect. First, during the course of the then current
school year, the board would not be providing the child an education at the
school it had determined to be appropriate. Second, the teachers who
would be providing information for consideration in developing the
following year’s IPE based upon personal knowledge of the child’s most
recent academic performance would be from the school chosen by the
parents, not the one selected by the board. In both instances, decision
making authority would be transferred from the board, upon whom the
statutory duty to make the decision is imposed, to the child’s parents who,
until and unless their entitlement to public benefits, have an important but
merely consultative role in the placement decision.
Judge Motz then explains in a footnote, that the benefit of a hearing, at or near the start of
the school year would provide the parents the option of sending the child back to public school
for the second semester of the year, assuming they did not prevail in their claim for
reimbursement and assuming the ALJ’s decision was rendered prior to the start of the second
The Parents in this case however, were not concerned with their options during the year.
They insulated their action by avoiding litigation of the issue. Although the Parents suggest that
they could not afford to hire an attorney to represent them at a due process hearing in the fall of
2001, they nevertheless had retained an attorney throughout the entire proceedings, even when
there was no litigation. They were paying for SCHOOL 1 and in fact retained an attorney who
represented them in an effort to fend off a hearing in the fall of 2001. They had already made the
decision to send [the Student] to SCHOOL 1 and he was already at the school which the Parents
were completely happy with, yet they could afford to hire another educational consultant , Dr.
XXXX, for a decision that had already been made.
More importantly, they may not have been quite sure of what Dr. XXXX, who was also
retained by the school system, might testify to in the summer or fall of 2001.
There is a corollary to Judge Motz’s decision, and it does not involve the options of the
Parents, but the options of the school system. The school system like the Parents have a
financial risk involved in this litigation, but they also have primary responsibility for providing
[the Student] a public education.
[The Student]’s IEP, which he took to SCHOOL 1 was the same one developed with
CCPS. Ms. XXXX, from SCHOOL 1, stated that the IEP from CCPS was adopted in it entirety
and implemented as written. SCHOOL 1 had the advantage of working with [the Student] and
adjusted its program based on its experience of working with him. While there were various IEP
goals objective dropped or added from the IEP , this was done after the staff at SCHOOL 1 had
the opportunity to work with [the Student].
If the school system had the opportunity to work with [the Student], it would have had
the same benefit of first hand experience with him that SCHOOL 1 had. On this point the
testimony of Dr. XXXX must be discarded. She attempted to compare [the Student] in the
[program] based upon the observation of the program in November, 2001. Her efforts at
“visualization” however, are exactly what the law does not allow. Had the CCPS staff been given
the opportunity to work with [the Student] the first two months of the year, and with he addition
of Ritalin, which the staff at SCHOOL 1 had after November, there is no way for anyone to
“visualize” what would have been happening.
Dr. XXXX’s testimony also presumes that a new teacher will ignore the specific
interventions of a supervisor, who could provide feedback and corrections for teaching errors. 8
The Parents did not expect SCHOOL 1 to make educational decisions based upon what
happened in CCPS, but based upon their own experience with [the Student], after they worked
with him. Yet they denied the school system this very opportunity. The placement decision by
the school system in October, 2001, is based solely upon what was happening at SCHOOL 1.
One cannot simply presume that even this decision would have been the same if [the Student]
had been in the [program], since a placement decision in October, 2001 would have been based
upon the school system’s own experience of dealing with [the Student]. The school system was
not even afforded the opportunity to observe [the Student] in October, 2001, let alone work with
him at that time.
“If a student’s parents want him to receive special education under the IDEA, they must
allow the school itself to reevaluate the student and they cannot force the school system to rely
solely on an independent evaluation.” Andress c. Cleveland Indeped. Sch. Dist., 64 F.3d 176, 178
(5th Cir. 1995). “Accordingly we hold that that parents, because of their failure to cooperate, do
not allow a school system reasonable opportunity to evaluate the disabled child, forfeit their
claim for reimbursement for a unilateral private placement. Patricia P., v Bd. of Educ. of Oak
Park, 203 F.3d 462, 469 (2000).
In his closing argument, Mr. Steedman indicated that he was getting “steamed”. Given
his inability to address the relevant questions, which were in fact pointed, with anything
resembling evidence, this is understandable. By that point of the proceedings, all the nonessential
and peripheral issues had been stripped away, and he was left to explain what basis his client had
to claim tuition reimbursement, given the appropriate law and evidence to be considered. In fact
he had no answer.
What Mr. Steedman should appreicate however, is that others involved, such as school
personnel and even Administrative Law Judges, also get frustrated, when they spend four days
peeling a legal onion in search the of the core issue, and find that it is one that can be resolved in
ten minutes, and is not even a unique issue with respect to special education.
In an emotional plea, the Parents request tuition reimbursement because they should not
have “to sacrifice their child to failure”. Yet this is what they did at SCHOOL 1 for the first part
of the 2001 school year. They further implore that tuition reimbursement should be granted
because the school system should not be allowed to “get away” with an allegedly pernicious and
harassing course of conduct. They further plead in an attempt to instill guilt, that I should not
“send [the Student] back to the Charles County Public Schools”, totally ignoring the fact that the
Parents never consulted anyone before taking him out of the Charles County Schools.
When attorneys start claiming that they “don’t use hired guns “, and resort to emotional
pleas, it usually indicates that the use reason in light of evidence has reached its limitations. If
anyone is trying to “get away” with anything, it is the Parents, not the school system.
The Parents insulated their action from judicial review and created an evidentiary record
which is mostly irrelevant and consists of nothing but the child’s performance at SCHOOL 1.
This is what Judge Motz alluded to when he stated that such action results in the Parents trying
“veto” the school system’s action.
The Parents now hope to find a sympathetic ear, who will consider irrelevant evidence,
ignore the clear dictates of the law and apply misleading comparisons, all in a crusade to avenge
the wrongs committed by an allegedly incompetent school system, whose only incompetence
was that it had to hire a first year teacher.
If there are any second thoughts, or soul searching to be done, it should be by the Parents.
They had the opportunity a year ago to resolve this entire issue and determine where [the
Student] would be and who would pay for it. They showed no concern at the time, yet now they
act as if this an issue of dire consequence.
If there is a lesson to be taught however, it is not to school systems but to parents. The
financial risks of Burlington are real, and should not be lightly undertaken. The Parents will
receive nothing more or less than what they are entitled to in this case, which is a decision based
upon the appropriate law and the relevant evidence.
I conclude that the placement proposed by CCPS was appropriate and at the requirement
of Rowley and IDEA. I further conclude that SCHOOL 1 is an inappropriate placement, because
it is too restrictive.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact and Discussion, I conclude, as a matter of law
that the IEP and placement of the CCPS from May, 2001, for [the Student] at SCHOOL 3 is
appropriate. Board of Education v. Rowley, 458 U.S. 176, 201, 102 S. Ct. 3034, 3051, 73
L.Ed.2d 690 (1981).
I further conclude that SCHOOL 1 is not appropriate, because it is not the least restrictive
environment. 34 C.F.R. Sec. 300.550
I ORDER that the appeal be DISMISSED.
September 16, 2002 _________________________________
Date James W. Power
Administrative Law Judge
Any party aggrieved by this Final Decision of the Maryland State Department of
Education may appeal it by filing a petition for judicial review with the circuit court for the
county where the child resides or the United States District Court for Maryland, without regard
to the amount in controversy, within one hundred eighty (180) days after the date that notice of
the decision is sent. Md. Code Ann., Educ. § 8-413(h) (1999).