Jacobson & John attorney Hollie John recently prevailed in a due process hearing against a Bucks County School District, resulting not only in a significant compensatory education award for the student, but also the rare Hearing Officer finding of discrimination by the school district.
The student began Kindergarten in the District for the 2014-2015 school year, and was then retained in Kindergarten for the 2015-2016 school year. He exhibited significant behaviors from the very start of school, as well as academic difficulties, which persisted throughout the two Kindergarten years. The student’s grandparents requested an evaluation for special education services numerous times, but were told that the District does not evaluate Kindergarten students. The Hearing Officer credited the grandparents’ testimony, that “. . .the only conclusion I can reasonably draw is that the principal, at least, if not the District as a whole, does not believe in evaluating Kindergarten students.” This was a violation of the District’s child find duties, and was also discriminatory conduct.
The Hearing Officer indicated that even the least experienced teacher would have to recognize there was a problem when the behaviors exhibited by the student persisted longer than a 2 month period at the start of school. She found that the District obviously thought something was wrong because they called the Grandmother at work on numerous occasions, suspected that something at home was causing the behaviors, recommended psychiatric treatment and outpatient counseling, recommended wrap-around services, and shortened the student’s school day. The Hearing Officer stated, that “[t]he District definitely saw that something was wrong, but did not seem to see that it had any responsibility to do anything about it, other than opting for retention.”
The Hearing Officer also found that the District discriminated against the student by refusing to evaluate him, expecting the family to seek services outside of school, restraining the student on many occasions which resulted in physical contact as well as scrutiny from peers, removing his recess, excluding him from part of the school day, suggesting that he be kept at home towards the end of the school year, failing to involve a Behavior Analyst or conduct a functional assessment of his behaviors, and failing to follow through on a child study team referral.
The Hearing Officer awarded the student 5 hours of compensatory education for every day that school was in session from January 26, 2015 through June 2, 2016, when an IEP was finally provided to the student.