A recent 4th Circuit case, Lexington County School District One v. Janet B. Frazier, shows the factors that a court looks at in determining whether a district has offered FAPE, a free and appropriate public education.  In the case, the court held that for one year, FAPE had not been offered based on the contents of the proposed IEP, but that in the following two school years, the district had offered FAPE when its proposed IEP contained new elements designed to meet the student’s unique needs.

Case Facts: D.K. is an Asperger’s Disorder identified child who suffered a number of difficult life changes during the 2006 school year. During this time, his father passed away, his mother, Janet Frazier,  remarried, and the family moved to anew city. Part of Asperger’s is difficulty in dealing with change.

Prior to the move, D.K. was already exhibiting resistance to attending school. In fact at one point court records show, he completely refused to go despite the best efforts of his mother. Because of this, the then home district made counseling services available to D.K., although the services showed little effect.

In the spring of 2007, the family moved toLexington,South Carolina. The district, Lexington County School District One, there proposed an IEP for D.K. that did not offer counseling nor include an attendance goal. Instead, the district focused on the academic setting with the hope that this would positively impact D.K.’s attendance. It did not. Once again, despite Frazier’s efforts and the academic program proposed by the district, D.K. continued to miss a large number of days due to refusal to attend.

After numerous IEPs where Frazier requested counseling services but was denied, she unilaterally moved D.K. to a private, residential school in Michigan, Montcalm School for Boys. In that setting, D.K. made progress. He did refuse to attend classes on three occasions, but afterward, the school’s counseling and intervention was successful in getting him to return to class. Part of the curriculum offered through Montcalm is on-going counseling, both individual and group.   During the year at school, D.K. progressed two years in reading and math.

Prior to the 2008 school year,LexingtonCountyagain had an IEP with Frazier. This time around though, the IEP proposal contained a provision for a psychologist to perform an evaluation of D.K. to determine if counseling was necessary. In addition, the IEP offered preferred activity time to help D.K. decompress and “virtual” classes, classes conducted through the internet. Despite this offering, Frazier elected to move her son to a new private facility located closer to their home.

Court’s ruling and logic: The court here held that for the 2007 school year, D.K. had not been offered FAPE, but that after that, due to the changes made to the proposed IEP, that he had. The effect of that ruling is thatLexingtonCounty must reimburse Frazier the cost of D.K.’s Montcalm tuition for 2007, but not tuition for his subsequent placement at the new private facility.

When a parent unilaterally, meaning without the district’s permission, places their child in a private educational facility, the parent can file with the court to require the district to pay. It is a gamble though, because if the parent is wrong, then she is on the hook for the cost. Parents may be reimbursed only if the program and institution where they place the child will provide an “educational benefit” and the student would not have received benefit under the proposed district IEP.

Here, the court determined that during the 2007 school year at Montcalm, the student did in fact receive benefit, as evidence by his academic progress and his regular attendance. While academic growth alone is not sufficient for such a determination to be made, the court can give weight to such a finding, which here it did. Under the standard above, D.K. receiving educational benefit is not sufficient though. Frazier was required to show thatLexingtonCounty’s proposed IEP would not benefit her son.

In support of its case,LexingtonCountyargued that the reason why D.K. would not attend school was unrelated to his disability but rather anxiety stemming from the many changes that had occurred in his life, from his father’s death to his relocation. The court rejected these arguments though, looking to the fact that these events had happened more than a year prior to the on-going attendance issues. The court further noted that there was…

“ample evidence in the record to suggest that the anxiety D.T. experienced in school, while it may have been exacerbated by life events , is a common symptom of Asperger’s and was a major cause of his unresponsiveness.”

Having ruled in Frazier’s favor for the 2007 school year, the court then turned its attention to Frazier’s claim that the district should also reimburse her for the subsequent school years, a claim the court rejected.

The court applied the same test to determine if the district should be responsible, but under this analysis, due to changes in the proposed IEP rejected Frazier’s claim. The court noted that in 2008, D.K. was not in the same position as he had been in 2007. His attendance had been normalized, he had made significant educational progress, and was showing reduced signs of anxiety.

Probably more importantly though, the district was no longer offering a proposed IEP that did not attempt to deal with the emotional issues that D.K. had evidenced. The district proposal now included stress relieving time built into D.K.’s schedule, virtual classes, and the opportunity for counseling should a need exist. Over Frazier’s arguments to the contrary, the court held that the IEP did not need to include counseling, only an opportunity to determine if it was necessary. With these elements in place, the district’s offer in 2008 and 2009 was an offer of FAPE, in that it was reasonably calculated to offer educational benefit.

This case does an excellent job of illustrating how a court will examine FAPE where a parent decides to place their child in a private setting without a district’s consent. In such cases, parents must meet a high threshold to obtain reimbursement. They must prove that the placement they chose provided an educational benefit to the child, usually the easier part, and second, that the district’s offer would not provide their child benefit.

Gregory Branch is an educator and educational attorney who practices inSouthern California. He can be reached at gregorybranch@edrightsadvocate.com.