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Couple challenges appeals court ruling in 5J schools suit

Couple challenges appeals court ruling in 5J schools suit Published: May 4, 2007 By CHRIS COLLINS ccollins@bakercityherald.com A recent ruling by the 9th U.S. District Court of Appeals in a lawsuit which a Baker City couple filed against the Baker School District almost six years ago proves that the district provides quality service to special education students, the district's attorney, Dan Van Thiel, contends. But Pamela Van Duyn, who with her husband, James, filed the suit on behalf of their son, Christopher, who is autistic, believes the ruling is flawed. She has asked the court to reconsider its decision. Van Thiel told the Baker School Board during a special meeting Tuesday night that the district should be very proud of the outcome of the lawsuit. The Van Duyns allege in the suit that the district failed to provide their son with a free appropriate public education, as federal law requires, because the district did not properly implement the boy's individualized educational program (IEP) while he was a student at Baker Middle School. On April 3, 2007, a panel of three judges from the Court of Appeals upheld, by a 2-1 decision, the rulings of two lower court judges who found that the school district properly applied all but one part of Christopher Van Duyn's education program. Both administrative law judge Weisha Mize (in April 2002), and U.S. District Judge Michael Mosman (in January 2005) concluded that though the district failed to comply with the math requirement of Christopher Van Duyn's IEP, the district otherwise complied with and properly implemented the plan. "This decision is a good one for this district," Van Thiel told the board. "You can be proud." Director Deon Strommer said the decision renewed his confidence in district programs. "It shows that the staff is doing what it's supposed to be doing," he said. Van Thiel noted that the two federal appeals court judges sided with the Van Duyns on just one of 11 issues. "It is indeed one of the best decisions I've seen and I've seen a number of them over 40 years," Van Thiel said after Tuesday's board meeting. "When you toss out 10 out of 11, I think that's an excellent result." Van Thiel said the ruling established new law for defining "material violations" of individualized educational programs, which must be developed for all students receiving special education services under the federal Individuals with Disabilities Education Act (IDEA). "It refines that law, with a focus on materiality and what does it mean to depart from an IEP," he said. And that's the crux of the problem, according to Pamela Van Duyn, and why four educational advocacy groups have joined her family in asking the court to reconsider the ruling. "There were factual errors made in the decision," Van Duyn said. "That could affect enforcement of IEPs for every child in the western United States." And that's why she hopes the appeals court will take a second look at the ruling, she said. "I am an advocate not only for my own disabled child, but for others," Van Duyn said. "A long time ago this became about a lot more than Christopher." Christopher is now 18 and attending school in another district, his mother said. The issue that led the Van Duyns to file the lawsuit started in 2001 when Christopher was 13 and making the transition from South Baker Elementary School to the Baker Middle School. Pamela Van Duyn said the middle school staff was not prepared to handle Christopher's "intense needs." She worked with a team of teachers and other district employees to prepare an individualized educational plan for him to use as a seventh-grader during the 2001-02 school year. In making its ruling, the appeals court evaluated Christopher's class schedule, which it said included "language arts-reading and written work" for six to seven hours per week, "math computation/math computer drills" for eight to 10 hours per week and "adaptive P.E.-gymnastics and swimming" for three to four hours per week. Among other requirements, his educational program included a behavior management plan that was to be implemented full time and called for him to be presented material at his level in a self-contained special education classroom. It also called for his teachers and teaching assistant to receive specialized training about autism. The court's majority opinion states that although the district did not meet every requirement of Christopher's education program "none of the implementation failures was material" (with the exception of the math requirement). In defining "the materiality standard," Judge Raymond C. Fisher, who was joined in the majority opinion by Judge Diarmuid F. O'Scannlain, wrote: "A material failure occurs when the services a school provides to a disabled child fall significantly short of the services required by the child's IEP. Minor discrepancies between the services provided and the services called for by the IEP do not give rise to an IDEA violation." Fisher and O'Scannlain concluded that only a five-hour shortfall of math instruction "was a material implementation failure" that was corrected upon the administrative law judge's order. In his dissenting opinion, Judge Warren J. Ferguson argued: "Given the extensive process and expertise involved in crafting an IEP, the failure to implement any portion of the program to which the school has assented is necessarily material." Ferguson concluded: "I would reverse the district court and hold that the school district's failure to fully implement the IEP, to which it expressly assented, violates the IDEA." The 9th Circuit Court of Appeals reversed the lower court's ruling regarding the Van Duyns' attorney's fees, which were denied by the District Court judge. Fisher wrote that because the Van Duyns partially prevailed, they are "entitled to reasonable attorney's fees for the relevant work done at the administrative hearing level — though not for (Pamela Van Duyn), who has acted as one of (Christopher's) attorneys in these proceedings." Van Thiel told the school board that because the Van Duyns prevailed on only one of the 11 issues considered, attorney fees probably would be awarded on a one-eleventh basis. Pamela Van Duyn disagrees with that assessment. "That's not the way the 9th Circuit viewed it," she said. "They recognized we were successful on a substantial claim." That issue will be returned to the U.S. District Court to determine fees owed to Damien Yervasi, a Baker City attorney who served as attorney of record for the Van Duyns at the administrative hearing and at the U.S. District Court level. Yervasi, who is seeking election to the Baker School Board in the May 15 election, said he has taken a secondary role in the case in recent months. Pamela Van Duyn argued the case in the 9th Circuit Court of Appeals. Yervasi said he would not be concerned about a conflict of interest if he were elected to the board. "Obviously, I would not be able to participate in any executive session proceeding on the school board that required a decision to be made during any pending litigation," he said. "With all the challenges facing the school board, I think that's one of the lesser things." The case is being carried forward for the Van Duyns by the Legal Aid Society of San Francisco-Employment Law Center. On April 24, Shawna L. Parks of the center filed an amicus curiae (friends of the court) letter brief on behalf of fellow "friends," the Learning Rights Law Center, the Oregon Advocacy Center and Protection & Advocacy Inc. The letter supports the Van Duyns' request that the three-member panel or all nine judges of the 9th Circuit Court of Appeals rehear the case. "By making it easier for school districts to forego implementation of services agreed upon through this process, the panel decision frustrates the rights of these families to the equal opportunities for education mandated by Congress in IDEA and strengthened in its subsequent reauthorizations," Parks wrote. Pamela Van Duyn said if the request for a rehearing is granted, the advocacy groups will continue to write briefs and argue the case at no cost to the family. If they prevail, the school district would be required to pay their fees also, she said. http://www.bakercityherald.com/news/story.cfm?story_no=4938

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