Category: Special Education Law

The Carroll County Board of Education is being accused of segregating students with disabilities from their non-disabled peers, as well as failing to provide adequate resources, according to a complaint filed with the Tennessee Department of Education and the Tennessee State Board of Education.

Representing the affected students and families, The Gilbert Firm’s Justin Gilbert explained to the Jackson Sun, “Children with special needs are entitled to access to their non-disabled peers, whether that is in the classroom, lunchroom, hallways, gym, or in extracurricular activities. Otherwise, we send the message that they are different, do not belong, and should be walled off from society.”

The Carroll County Special Learning Center

The Carroll County Special Learning Center (CCSLC) was created for students with disabilities, from preschool through grade 12. Typically serving between 40 to 70 students, the school closed in May 2018. Although it’s perfectly legal to create a learning center for students with disabilities, it is not legal to separate or segregate them from other students.

According to Attorney Gilbert, “Federal law does not allow totally segregated learning environments like the CCSLC.”

The complaint alleges that not only were the students separated from their non-disabled peers, but weren’t given adequate learning supplies, materials, or textbooks, were denied school-subsidized transportation, and did not learn an adequate curriculum according to state standards.

A county- and state-wide issue

The Sun reports that in May 2018, the Tennessee Board of Education notified Carroll County Schools Superintendent John McAdams that the state wouldn’t be renewing their contract with similar learning centers in five other school districts – Huntingdon, McKenzie, Hollow-Rock Bruceton, West Carroll and South Carroll. This decision came down after the state investigated complaints.

However, the filing alleges that the state didn’t properly do their job in effectively supervising and monitoring their learning centers. The complaint also says neither the state nor the county addressed the need to compensate the students for the educational opportunities they lost.

Denial of education

As outlined by the Individuals with Disabilities Education Act (IDEA), every student has the right to a free public education in the least restrictive environment. The complaint describes one student, for example, who was separated from his peers into the CCSLC. The young man has limitations in speaking, learning, digestion, elimination of waste and motor skills. The district chose to place him into the CCSLC full time, rather than hire him an aide for school instead. He spent the 2016 school year there until he found an advocate who successfully placed him into the non-segregated school the next year.

The families of the students in the complaint against the Tennessee Department of Education and the Tennessee State Board of Education are seeking compensatory educational relief, likely in a fund, based on the number of years their children were denied proper education.

Attorney Justin Gilbert is dedicated to protecting the right to education for students with disabilities in Tennessee.

Your child is entitled to a free public education in the least restrictive environment possible. The Tennessee special education attorneys at The Gilbert Firm can help protect your child’s rights when they’re being denied the right to a proper education. Call us today at 888.996.9731, or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

 

 

 

 

 

 

According to a recent article in the Bristol Herald Courier, disciplinary events are declining in local schools. However, after sifting through data found through the Freedom of Information Act, researchers found that when discipline does occur, special education students are affected more than other students.

Stats for Bristol, Virginia Public Schools

Comparing data from the same periods in the 2016-2017 and 2017-2018 school years, incidents leading to out-of-school suspensions at BVPS dropped by 19 percent. Digging a little deeper, however, data shows that although special ed students make up only 15 percent of the student body, they made up 31 percent of out-of-school suspensions. (Incidents for small groups of students—fewer than 10—were not included in order to protect their identities.)

Stats for Bristol, Tennessee City Schools

At BTCS, data collected also left out incidents for small groups of students. Incidents leading to out-of-school suspensions dropped by 10 percent. However, researchers found an 18 percent difference between the rate of suspensions of special education students and the general population of students.

At-a-glance breakdown

Here are the details from each school system.

BVPS: Percentage of special-ed students disciplined vs. general population

• Special-education: 30 vs. 15

BTCS: Percentage of special-ed students disciplined vs. general population

• Avoca Elementary: 61 vs. 14
• Holston View Elementary: 58 vs. 20
• Fairmount Elementary: 35 vs. 21
• Vance Middle: 26 vs. 15
• Anderson Elementary: 26 vs. 30
• Tennessee High School: 20 vs. 12

Director of human resources at BTCS Jennifer Padilla pointed out that the numbers are based on incidents and not individual students, so a single student could represent several incidents.

The issue of special education students being disciplined at a rate higher than their student peers is a national problem, one known as the “discipline gap.” Intervention programs may be key to behavioral issues instead of immediate punishment. Positive behavioral interventions and support (PBIS) is a model being successfully used in some schools, where children are taught appropriate behavior and consequences for inappropriate behavior.

Appropriate behavior and rule-following is rewarded with kudos from a teacher, or small rewards like a lunch with the principal. At Fairmount Elementary, administrators have seen some success with a behavioral intervention program. After adopting this program, they saw a 20 percent decline in their discipline rate year-over-year.

Your child should never be unfairly disciplined because of their special needs. This is a violation of their rights and we are here to stand up for your child and your family.

At the Gilbert Firm, we advocate on behalf of Tennessee students whose rights have been violated. To learn more about our services, or to work with an experienced Tennessee special education attorney like Justin Gilbert, we invite you to call 888.996.9731, or to fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenience.

 

 

 

My practice at the Gilbert Firm is mostly focused on employment and education, and there’s some natural overlap with laws like the Americans With Disabilities Act, which applies to both areas; so I represent individuals in all matters of employment, whether it’s a harassment claim, a wrongful termination claim, or maybe a benefits dispute.

In the education field, I represent teachers, professors. I represent educators. I also represent children, including preschool children who may need services for their disabilities.

At the Gilbert Firm, we protect clients whose rights have been violated. Whether you are an employee, a student, or a parent, we are prepared to handle your claim with dignity and dedication. To learn more about our services, or to speak with a skilled Tennessee special education attorney like Justin Gilbert, please call the Gilbert Firm at 888.996.9731, or fill out our contact form. The Firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, for your convenience.

In a widely published case brought by the Gilbert McWherter Scott Bobbitt PLC, the United States Court of Appeals for the Sixth Circuit recognized that “[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][b]oth the ADA and Section 504 prohibit retaliation against any individual because of his or her opposing practices made unlawful by the Acts or otherwise seeking to enforce rights under the Acts.” A.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 696 (6th Cir. 2013) (emphasis added).

What does this mean for teachers? It means that teachers who stick up for the rights of students with special needs cannot experience retaliation at work. Examples of retaliation against teachers include termination of employment, unfavorable job assignment, or hostility in the workplace.

What does this mean for parents? Parents, too, are protected from retaliation by their child’s school system. Examples of retaliation against parents could include banning them from the school premises, preventing them from attending IEP meetings, or making false complaints against them to the Department of Children’s Services.

Through the years, Gilbert McWherter Scott Bobbitt has stood up for many teachers and parents. In A.C., parents were protected from false accusations made to the Department of Children’s Services because “[h]aving a government official appear at their door . . . would surely be enough to dissuade many reasonable parents from seeking accommodations at school.” Id. at 698.  In other cases, the Firm has represented parents who voiced their concerns about school action. These cases have taken the form of First Amendment retaliation as well as retaliation under Section 504 and the ADA.

If you are a teacher or parent who has experienced retaliation arising out of efforts to help a child with special needs, the Gilbert Firm can help. To speak with an experienced Tennessee education lawyer like Justin Gilbert, please call 888.996.9731, or fill out our contact form. The Firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, for your convenience.

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Navigating the appropriate placement for a child with special needs can be difficult.  Some educators or IEP team members may offer opinions on what they believe is “best” for the child, but not necessarily what is the least restrictive placement. 

In the Supreme Court case of Endrew F. (2017), Justice Roberts wrote that children with disabilities cannot be “receiving instruction that aims so low [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][that it] would be tantamount to ‘sitting idly . . . awaiting the time when they were old enough to ‘drop out.’”

Often, the more challenging curriculum is found in the regular education classroom with non-disabled peers (a least restrictive placement). With supports and, in some cases, modifications to the curriculum, placement in the regular education classroom is not only possible, but highly desirable. Why? Because children with disabilities can learn not just from teachers, but from children without disabilities. They can emulate good behavior too.

But obstacles still exist. Some educators may believe that “small” or “more structured” classrooms, ones with “other children with disabilities,” are superior to the regular classroom environment. These classrooms often consist of children with disabilities only. They may be perceived as “best,” but they are “more restrictive,” not “least restrictive.”

While it is important to avoid generalizing, any perceived benefit from a more restrictive classroom should be assessed very closely. Ask whether any such benefit can be brought into the regular education classroom. Maybe it is a modified curriculum. Maybe it is a paraprofessional. Maybe it is some “pull out” time for 1:1 support. Can these perceived advantages be delivered in the regular education classroom too? If they can, the regular education classroom may be the appropriate placement.

For years, the United Kingdom offered parents of children with disabilities a choice of a classroom—a classroom for disabled-only students; or inclusion in the regular education classroom with supports.  This allowed researchers to study how the two groups progressed.

Dr. Sue Buckley, of Down Syndrome Education International, reports that children with Down syndrome who were educated with their non-disabled peers averaged 3.3 years ahead in reading and 2.5 years ahead in expressive language than peers educated with disabled children only.

Again, every child is unique and careful individual considerations of the appropriate placement must be undertaken. However, parents should be aware of the power of the regular education environment with appropriate supports. Always ask whether one’s perception of “best” is also the “least restrictive.”  If it’s not, consider asking whether any advantages of the more restrictive placement can be delivered in the regular classroom. That may provide the student the right placement while avoiding Justice Robert’s fear of them “sitting idly . . . [until] they are old enough to drop out.”

If you are the parent of a student with disabilities, and your child’s rights have been violated, you have legal options. At the Gilbert Firm, we advocate on behalf of students, so they can experience all the educational system has to offer. To speak with a skilled Tennessee special education attorney like Justin Gilbert, please call 888.996.9731, or fill out our contact form. The Firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, for your convenience.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

If you are a parent, it is likely you have put your child in “time out” for a few minutes, until he or she calms down. If you are the parent of a child with autism, however, the idea of a “time out” can have different connotations. By using words like “time away” and “time out,” some schools have been able to violate the laws when it comes to isolations and restraints.

Recently, schools in Iowa have come under fire for using “Seclusion boxes” which they have labeled “time outs.” Students with disabilities are placed inside these pine boxes for behavior related to their disabilities. HuffPost put together this video about them:

Iowa is not alone. In Tennessee, with the help of Justin Gilbert, two families are fighting back in a suit that names the Tennessee Department of Education (“TDOE”), Tennessee State Board of Education (“TBOE”), the Knox County Board of Education and Knox County in a first-of-its-kind lawsuit alleging inappropriate seclusions. The suit alleges that Knox County has repeatedly violated the laws regarding isolation/seclusion and restraints through “time away rooms,” leading to systemic problems, and that the State of Tennessee, is co-liable for those actions.

Understanding the laws which protect special needs students

The Individuals with Disabilities Education Act, or “IDEA,” is a federal law that requires all students with special needs to be provided with a “free appropriate public education.” IDEA also says that schools have to uphold state regulations as well. In Tennessee, that means schools have to uphold and follow the regulations put forth in the Special Education Behavior Support Act, or “SEBSA.” (Tenn. Code Ann. §49-10-1301 et. seq.)

Federal law also requires all states to monitor the use of isolations and restraints for special needs students.

Because of this, the TDOE is supposed to collect data about the use of restraints and isolations, and submit that data to the Tennessee Advisory Council for the Education of Students with Disabilities. However, public schools in Tennessee have different understandings of what constitutes an “isolation” or “restraint” and, as a result, the data sent to TDOE is not reliable.

Written guidance to schools is necessary. For example, basic definitions of the terms, timeframes for how long a student can be put in isolation or restrained, and analysis of what constitutes an emergency situation, are all needed. Unfortunately, this work has yet to be completed.

Why this lawsuit should matter to parents of students with special needs like autism

What makes this particular lawsuit so important is two-fold:

1. It is the first time a lawsuit alleging systemic, continuous neglect by the State of Tennessee, in regard to the use of isolation and restraints on children with special needs, has ever been allowed to proceed.
2. If the case is successful, important guidance to public school systems can result. That way, fewer isolations and restraints will occur.

The current system is not working. But we may be able to finally mandate the change our students need to access the free appropriate education guaranteed to them by federal law. No more changing the language to hide the number of isolations the schools use. No more overuse of restraints to contain children whose brains simply work a little differently than other children’s do. No more ignoring what the law says in favor of what is convenient to the schools. No more confusion on behalf of education personnel about what is allowed and what is not. This case could change the way special needs students are treated and taught in Tennessee for the better, and ensure that EVERY child is safe and secure in the classroom.

At the Gilbert Firm, we uphold the laws designed to protect children’s access to education. We are willing to fight for what is right for students. To make an appointment with Tennessee special education attorney Justin Gilbert, or schedule a consultation at one of our offices in Nashville, Chattanooga, Memphis, Jackson or Knoxville, please call 888.996.9731 or fill out our contact form.

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Recently, the Gilbert Firm won the first judgment ever under the Special Education Behavior Supports Act (SEBSA), Tennessee Code Ann. §49-10-1301 et. seq.  In an East Tennessee case, on 21 occasions, the school surrounded an elementary-school child who has Down syndrome with a blue gym mat.  The school used the mat to create a “fence” around the child, with a stool inside for her to sit.  She was kept inside the mat/fence for nearly 45 minutes on one occasion.

In court, the school system argued this was no different than placing a child in “time out.”  The Gilbert Firm vigorously disagreed, arguing this was a human rights violation, a humiliation for the child in front of her peers, and a legal violation of SEBSA and the Individuals with Disabilities Education Act (IDEA).

The Court agreed.  The United States District Court for the Eastern District of Tennessee found that the “fence was an enclosed area, and the fencings were not a time-out.” I.L. v. Knox Cty. Bd. of Educ., No. 3:15-cv-558, 2017 U.S. Dist. LEXIS 92257, at *106 (E.D. Tenn. June 15, 2017). It awarded the judgment to young I.L., creating the first legal precedent for illegal isolations in the state of Tennessee.

There is a very limited set of situations when isolation of students may be practiced under SEBSA. First, there must be a true emergency. Thus, a situation repeated 21 times does not qualify. Second, positive de-escalation techniques must be attempted first.  Third, the isolation may not last more minutes than the child’s age (e.g. if the child is 5 years old, the isolation may not exceed five minutes).  Fourth, any isolation may not occur in a space of less than 40 square feet.

School should be a safe and supportive environment for all children. School systems must be held accountable for undue use of restraints and isolation techniques. The Gilbert Firm provides counsel to parents of special needs children who have suffered abuse or had their rights violated. To speak with a  Tennessee special education lawyer like Justin Gilbert, please call 888.996.9731, or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

For the last three years, a Chattanooga family has been litigating the issue of inclusion for their child with Down syndrome.  Justin Gilbert of the Gilbert Firm, along with a team of national and international experts, has been with them at every step. That is why we are so happy to announce that the family has won an important battle for inclusion under the Americans with Disabilities Act and Section 504. As the Times Free Press reports:

“A federal judge on Monday ruled the Hamilton County Department of Education violated multiple federal guidelines protecting students with disabilities when it removed a second-grader with Down syndrome from Normal Park Elementary School in 2013.

In the ruling, federal Judge Curtis Collier said the school district violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, a federal civil rights law prohibiting discrimination against individuals with disabilities.”

This is an important win – not only for the student, but for every student with special needs who seeks a learning environment with their non-disabled peers. Too often, schools earn a reputation for segregating its students with intellectual disabilities. This ruling sets a precedent for other families whose children have been unfairly segregated in Tennessee.

What federal laws were violated?

In 2013, the Hamilton County Department of Education planned to remove a young student (L.H.) from Normal Park Elementary School and placed him in a “comprehensive development classroom” at Red Bank Elementary. L.H., who has Down syndrome, would have been segregated from his friends and peers, and would have been subjected to a less rigorous curriculum focused on life skills, as opposed to working on modified goals tied to state standards.

The family opposed the removal, resulting in a substantial litigation concerning the student’s proper placement. In 2016, the federal judge ruled that the Hamilton County Department of Education violated the IDEA with its plans to remove L.H. from a mainstreamed classroom and place him in a self-contained class in a different school. In Judge Curtis Collier’s own words, “the comprehensive development classroom was ‘more restrictive than necessary’ and… ‘[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][L.H.] could receive a benefit from mainstreaming…. The record is abundantly clear: [L.H.] could, and did, make behavioral and academic progress in a regular-education classroom at Normal Park during kindergarten, first grade and second grade.’”

The Gilbert Firm did not stop there. It argued that L.H.’s rights were violated not only under IDEA, but also the equal rights laws of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. On July 17, 2017, Judge Collier agreed. The Judge ruled that the Hamilton County Department of Education also violated the Americans with Disabilities Act, which prohibits discrimination against people with disabilities, and Section 504 of the Rehabilitation Act, which states “No otherwise qualified individual with a disability in the United States… shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance… [including any] local educational agency, system of vocational education, or other school system.”

Mr. Gilbert told the Press that “The right to belong, the right to inclusion, and the right to avoid exclusion are all American civil rights. We will look forward to being able to work with our county, not against it, so that together we make these rights a reality for kids with special needs.”

This is hard, but important work.  Many other parents of children with intellectual disabilities or other disabilities are fighting these same battles in classrooms throughout Tennessee. If you have need of an experienced Tennessee special education lawyer like Justin Gilbert, or have questions about whether you have a case, please call 888.996.9731, or fill out this contact form. With offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, we are nearby when you need us the most.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

The Individuals with Disabilities Education Act (IDEA) mandates that public schools create an Individualized Education Plan (IEP) for any child who receives special education services. The IEP defines a child’s education needs, what services will be provided, and how success will be measured. It is a written legal document that is prepared with input from the school, the parents, education counselors, and others concerned about the child or qualified to help him/her.

Children can be eligible for an IEP starting at age 3 and running to graduation from high school or age 22, whichever comes first.

New Supreme Court guidance

After years of remaining silent about the IDEA, the United States Supreme Court has weighed in. Endrew F. v. Douglas County School Dist. RE-1, 2017 U.S. LEXIS 2025, at *21 (Mar. 22, 2017). Chief Justice Roberts, writing for a unanimous Court, explained that the IEP guarantees substantial rights to children with disabilities. It lays down a number of important principles.

First, the school must implement an IEP which “enable[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][s] a child to make progress appropriate in light of the child’s circumstances.” Endrew F., at 349. In other words, the school may not claim “de minimis” (or minor, or trivial) progress is sufficient.  Rather, the progress must be genuine, considering the child’s abilities.

Second, the child’s abilities must include potential, not merely present levels.  The IEP Team must consider the child’s “potential for growth.”

Third, the expertise of school officials remains important but so, too, is the “input of the child’s parents or guardians.”

Fourth, offering “canned” IEPs used for other children with similar disabilities is prohibited.  They must be individualized and designed for each child in particular.

Fifth, when considering the potential of the child, advancement from grade to grade is relevant but the IEP must also consider both “academic and functional advancement.”  This includes behavioral supports and supports beyond pure academics.

You can find the full decision here.

How an IEP can help your child with special needs

An IEP can mean the different between your child’s ability to succeed in school and an ongoing lack of resources that impairs his/her ability to thrive academically. For this reason, parents should understand the components of an IEP in order to best advocate for their child. An IEP contains the following:

• A statement of the special education student’s present level of performance (PLOP). This document spells out your child’s current strengths and weaknesses. It details your child’s learning difficulties in handling academic courses and normal functioning activities, including the ability to socialize. The PLOP is based on test results and observations by the teachers. The PLOP should change year to year to match the student’s progress.
• Objective tests. These typically include state and local assessments.
• Support services. The IEP details what services will be provided during the year, such as speech therapy, psychological counseling, and individualized tutoring. The nature of the services will be tailored to the student’s specific needs.
• Any accommodations or modifications. Accommodations apply to performance measurements. Adjustments may include more time to complete assessments or the ability to ask questions when taking the standardized tests. Modifications apply to how and what the child learns.
• These are the academic standards and functional level the child should achieve by the end of the school year. A goal could be, for example, the ability to participate in classroom discussions. For children with multiple disabilities, there short b short-term goals and benchmarks.
• These are objective assessments that confirm the child is making significant progress. These measurements should be shared regularly with the parents.
• Effective date. This is the date that the IEP goes into effect.

The IEP should also set forth whether the child will participate in any extracurricular activities. It may, depending on the child’s age, also include a transition plan setting forth the services to help the child graduate from high school and function after high school. An IEP can also address services and support given during the summer months and school breaks, if applicable.

Parents have an opportunity under “Parental Concerns” to list any perceived shortcomings of the IEP. If the IEP lacks ambitious goals or lacks explanations, parents should say so. For example: “This IEP is too vague to understand the goals and the programming is ambiguous.”

The right IEP can help your child progress while the wrong one can limit them. At the Gilbert Firm, our Tennessee IDEA attorneys hold schools accountable when they fail to provide a quality IEP for you child. For more information on IEPs, please call Justin Gilbert at 888.996.9731 or complete our contact form. We have offices in Nashville, Chattanooga, Memphis, Jackson, and Knoxville and represent parents and children throughout the state.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

As attorneys for students with disabilities, we know just how hard it is to keep fighting against a system that sometimes seems determined to deny our clients’ rights. We also know that for some people, the fight can be overwhelming or even discouraging at times. So, when a hard-fought case ends well for a student, we want to share that good news because it can give hope to so many.

The case is Fry v. Napoleon Community Schools, 580 U.S. __ (2017). If you are unfamiliar with it, the background can be summed up like this: in 2009, Stacy and Brent obtained a service dog, a Goldendoodle named Wonder, to help their daughter Ehlena, who has cerebral palsy. Wonder helped her with balance, moving around school, putting on her coat, and going to the bathroom.

The school district decided it would not allow Wonder. Instead, it offered a human aide to help Ehlena. Dissatisfied, Ehlena filed a lawsuit in federal court in 2012, claiming that the school violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act by denying Ehlena the use of Wonder.

Ehlena’s suit was dismissed by the District Court on grounds that she brought the suit in the wrong place—it said she should have used a state administrative proceeding known as due process, not a federal lawsuit. Ehlena then lost a split decision at the Sixth Circuit Court of Appeals. But the Supreme Court agreed to hear her case. On February 22, 2017, the Supreme Court unanimously decided that that both the district court and Sixth Circuit got it wrong. Two important features emerge for future cases.

First, the Supreme Court said that a human aide (“two-legged assistance”) was not a substitute for Wonder. Writing for the Court, Justice Kagan said that would be like denying a child a wheelchair because a human being happens to be willing to carry the child.

Second, the Court outlined rules for whether filing an administrative due process complaint, or a federal lawsuit, is proper. That’s a technical issue, but it boils down to whether the child is seeking a “free appropriate education” under a law called the IDEA, or whether the child is seeking something different, such as equal access. If the child is seeking a free appropriate education, then administrative due process is the answer. But otherwise, suits in federal court may be proper. In Ehlena’s case, the Supreme Court said further analysis is necessary to determine this issue.

The End of the Shell Game?

Too often, in Tennessee, parents who file claims for children with special needs face an initial obstacle of the proper legal forum. Often, they are told by schools they have chosen the wrong place. For example, if they file due process under ADA and Section 504, they may be told they should have filed in federal court. But if they file in federal court, they are invariably told they should have filed in due process. It has become a shell game, or a no win proposition.

Fry helps change that. Fry advises administrative judges (and parents and schools) that “[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][t]he only relief that [an administrative judge] can give…is relief for the denial of a FAPE.” Everything else can proceed in federal court. That is welcome relief for parents.

At the Gilbert Firm, we advocate on behalf of Tennessee students whose rights have been violated. To learn more about our services, or to work with an experienced Tennessee special education attorney like Justin Gilbert, we invite you to call 888.996.9731, or to fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville for your convenience.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]