Virginia Lawyers Weekly VA Lawyers Weekly
High school staff failed to timely respond to parents’ requests for disability testing, but an administrative fact finder reasonably concluded that the student’s poor scholastic record was caused by his frequent absences and disdain for teachers, not the violation.
Background
T.B., a former student of Prince George’s County Public Schools, alleges that the school district failed to provide him a free appropriate public education, in violation of the Individuals with Disabilities Education Act.
T.B. received mostly As and Bs in elementary school, but his grades took a turn for the worse in middle school. Teachers noted that he didn’t follow instructions, didn’t participate in class, and had missing and incomplete assignments.
In high school, T.B.’s performance continued to decline. In 10th grade, he failed every class except Algebra, in which he received a B. His declining grades reflected, in part, T.B.’s declining attendance. He recorded 68 absences over two years and, on days he did attend, was tardy or skipped class. Near the end of 10th grade, he stopped attending school entirely. However, T.B. generally performed adequately when he attended class and completed assignments.
T.B.’s parents asked for him to be tested for a learning disability and met with staff to discuss strategies to get him back on track. An independent evaluation diagnosed him with ADHD and a depressive disorder. His parents explained his absences from school citing asthma and panic attacks. Believing that the School District’s response to their requests for special education was insufficient, they filed a complaint alleging that T.B. had been denied a free appropriate public education.
Statutory violation
The court finds no reason to disturb the ALJ’s conclusion that the School District violated the Act by “failing to respond to the Parents’ requests and conduct a timely evaluation” of whether T.B. was eligible for special education or related services.
In October of T.B.’s ninth grade year, his father emailed various school staff about getting T.B. tested for special education eligibility. But the School District declined to test even after T.B.’s parents supplied an independent diagnosis of qualifying disabilities. Although individual educators attempted to promote T.B.’s academic progress, the ALJ’s finding regarding the School District as a whole was based on a six-day hearing and extensive evidence.
Adverse effect
Despite finding that the School District violated the Act, the ALJ found that this violation did not establish a failure to provide a free appropriate public education, because no evidence supported the view that, had testing been promptly provided, T.B. would have regularly attended school. The court agrees.
T.B. failed even to attend the transition program eventually recommended by his IEP team, which the ALJ found would have fulfilled T.B.’s educational rights. The ALJ concluded that T.B. and/or his parents were not interested in receiving academic services from the School District.
T.B. had in the past gotten — and was capable of again earning — decent grades if he applied himself. For example, teachers told his parents that T.B. did well enough on his completed assignments, but the difficulty was getting him to turn them in. When asked why he was not doing his assignments, T.B. “just said he wasn’t trying.” T.B.’s widely variable grades, even within single courses, also reflect that he often failed to perform in settings where he was capable of performing well. Virtually every teacher testified that T.B. was capable of performing satisfactory work but that his frequent absences and failure to do assignments necessarily led to poor or failing grades. They were nearly unanimous in their conclusion that T.B. had no disability that special education would have remedied; he was simply unwilling to take his education seriously.
Routinely, this disinterest manifested itself in outright contempt. T.B.’s teachers reported that he would talk, text, play cell phone games, and otherwise cause disruptions during class. When not actively disruptive, T.B. would occasionally sleep through class. His disdain for schooling at times ventured into pure meanness, such as ridiculing a transgender teacher.
In contrast, the ALJ found contrary testimony by T.B.’s father to be “frequently shifting or contradicted” by other evidence and, therefore, unreliable. The ALJ also found much of the Plaintiffs’ other evidence, including test results and expert opinions, inconsistent or unsupported. Many of the witnesses T.B. called ultimately turned out to be effective witnesses for the School District.
In sum, the record is devoid of any credible evidence that an unaddressed disability caused T.B.’s educational difficulties and replete with credible evidence that T.B. himself was the cause. Teachers tried repeatedly to get T.B. to take even a modest interest in his education, and their efforts just as repeatedly came up short. Holding the School District liable for regrettable results in every case would simply deplete its resources without improving outcomes for anyone, a result Congress could not have intended.
Affirmed.
Concurrence
(Gregory, C.J.) Although I join the court’s judgment, I do so solely on the grounds that the plaintiffs failed to present sufficient evidence at the due process hearing to establish that T.B. was denied a free appropriate public education. I write separately to express my view that I cannot agree with the majority’s characterization in its opinion of either T.B. and his parents or the School District and its employees.
While I am constrained to conclude that the Plaintiffs have failed to demonstrate that the School District’s egregious violations actually interfered with education, I cannot agree that the blame lies with T.B. and his parents, and that the School District bears little or no responsibility for a student in its care or for the unfortunate outcome of this case. Accordingly, I concur in the judgment only.
T.B. v. Prince George’s Cnty. Bd. of Educ., Case No. 17-1877, July 26, 2018. 4th Cir. (Wilkinson), from DMD at Greenbelt (Hazel). Dennis Craig McAndrews for Appellant; Andrew Wayne Nussbaum for Appellees. VLW No. 018-2-158, 30 pp.
