The
Story behind the 9th Circuit Court decision in Lucht
v. Molalla River School District by
Dale and Terry Lucht
On May 1,
1998 Dale and Terry Lucht the parents of Dustin Lucht filed a
complaint with the Oregon Department of Education alleging
Molalla River School District had made several violations of the
Individuals with Disabilities Education Act (IDEA)over the prior
two year period. This
action was taken after their attending at least 14 meetings with
the district over this two year period trying to come to an
agreement to an appropriate educational program for Dustin.
At the time of the filing Dustin’s placement was a self
contained classroom by himself for a period of 1.5 hours per
day. On May 4, 1998
Dustin shoved the school’s SLP and threw a ball at her.
Molalla River School District immediately removed Dustin
from school and assigned him to home sending out a tutor for 1
hour a day till the end of the school year.
On May 6, 1998 Dale and Terry amended their complaint to
include this action.
On
August 18, 1998 after conducting an investigation, the Oregon
Department of Education (ODE) did in fact find the Molalla River
School District had violated IDEA resulting in a failure to
provide a Free and Appropriate Public Education (FAPE) to
Dustin. As a result
of this violation the ODE ordered the following Corrective
Action Plan.
(1)
Within 30 days, the District shall convene a meeting with
a team that includes D.L.’s parents, the autism specialist,
and other knowledgeable people to review D.L.’s eligibility as
SED. If the Team
rejects the parents request to drop SED as an area of
eligibility, the District shall give the parents written notice
of a refusal to make this change.
(2)
(a) Within 30 days, the parents shall provide the
District with evidence of the costs related to transporting D.L.
to the tutoring program, (May 1996 - April 1997) and for the
additional three hours of tutoring (November 1996 - April 1997)
(b)
Within 60 days, the District shall reimburse the parents for
their reasonable expenses related to these services.
(c)
Any disagreements about reimbursement shall be submitted in
writing to the Department by either party within 90 days.
The Department will resolve any disagreements within 30
days of receiving a statement of disagreement.
(3) (a) The District shall provide
compensatory education to address the failure to deliver
services on D.L.’s IEP for the following periods of time:
(1)
May 6, 1996 - November 22, 1996 (excluding summer) and January -
April 10, 1997
(speech/language services, psychological/behavioral services
academic tutoring);
(2) Summer 1997 (ESY) and September - October 1997
speech/language services.
(b)
Within 30 days, the District shall meet with D.L.’s parents to
reach an agreement regarding the amount and nature of
compensatory serves to be provided consistent with (a).
(c)
If the parents and District agree, the District shall submit a
written agreement signed by the parents and District
representative within 60 days.
(d)
If no agreement is reached, either party may submit a statement
describing reasonable compensatory services to the Department
within 90 days. The
Department will make a final determination within 30 days of
receiving such statement.
(4) The District shall provide
training to appropriate District staff on:
(a)
the need to review IEPs before making changes on placement to
insure that the placement decisions are based on IEPs;
(b)
writing IEPs that include criteria and measurable outcomes.
(5)
Within 30 days the District shall submit a copy of
D.L.’s revised IEP and placement for the 1998-99 school year.
The Department reserves the right to order additional corrective action if needed to address the types of
problems identified in this complaint.
It is
number 5 of the corrective action plan that resulted in our need
to involve a lawyer with this matter.
Number one was resolved at a meeting on September 15,
1998 when the district agreed to do an evaluation to see if
Dustin met the criteria for SED.
The resulting evaluation found that he did not and SED
was removed from his eligibility at a meeting on December 15,
1998. As to Number
2 the district did reimburse us for these expenses.
As for number 3 we did not reach agreement with the
district so the amount of compensatory ed was decided by the
Oregon Department of Education.
As for Number 4 we have no direct knowledge of what
action the district took, but they did notify the State that
they had complied. When
it came to complying with number 5 things got very complicated.
We have reason to believe due to a correspondence with
ODE that they were under the impression there was a revised IEP
and placement already done for Dustin when they wrote this
order. This in fact
was not the case as there had been no work done on a new IEP for
Dustin and his placement still consisted of the 1 hour a day of
home tutoring for the start of the school year.
This meant that there needed to be an IEP meeting to
develop a new IEP and placement for Dustin.
The
first meeting was held on August 27.
The meeting consisted mostly of a report by a consultant
hired by the district outlining things that needed to be done
mostly in regard to Dustin’s behaviors.
It was our impression going into this meeting that the
district would be presenting a behavior plan that was needed for
Dustin to start returning to school but this was not the case.
Another meeting was scheduled for September 3 so that a
behavior plan could then be written.
At the meeting on September 3 there was no discussion of
a behavior plan. Instead
the district spent the time talking about possible placements
for Dustin even though we had not yet written an IEP for him.
It was after this meeting that we felt nothing seemed to
have changed with the state’s order and that maybe it would be
beneficial to engage an lawyer to help us get the district to
comply. Our initial
thoughts would be we could use the money we were getting
reimbursed from the district ($1500) to cover any attorney fees
and that might be the best use of that money for the benefit of
Dustin. We met with
Dana Taylor at his office and it was decided he should attend
the next IEP meeting to insure the district put together an
appropriate IEP for Dustin. At the next meeting on September 10 he accompanied us to the
IEP meeting. At
this meeting we finally started working on a new IEP for Dustin.
Most of the efforts of the meeting centered on trying to
get measurable goals and objectives written for his IEP.
It was our thought that with the 30 day deadline coming
up in a few days the meeting would last till the IEP was finally
completed. Instead
the meeting was adjourned by the district after only one hour.
We then had to have our attorney come back for another
meeting on September 17. At
this meeting more progress was made on the goals and objectives
but this meeting was again adjourned by the district after two
hours with the IEP still not completed. As for the fact the 30 days ordered by the state had passed,
ODE gave the district a 30 day extension.
The state continued to issue 30 days extension every time
their deadline was not met by the district up till an IEP was
finally completed on December 15, 1998, 120 days after their
final order. We
then had our attorney attend a third IEP meeting on September
25. At this meeting
we finally finished most of the work on the goals and objectives
although we did not yet have a finished IEP or a placement.
Because we had incurred a much higher bill then we
anticipated due to having to have the lawyer drive out to three
meetings instead of one, we decided to try and finish the IEP
without having him attend any more meetings. On October 1 a meeting was held in which the IEP was finished
and a placement was offered by the district.
This placement was almost identical to the one he was in
when we first filed our complaint with the state except it
included a little longer day.
There was also the agreement by the team that the
placement would be reviewed in November for the possibly of
including Dustin into a more mainstream environment.
The placement was supposed to start on October 12.
The district was also supposed to provide us with a
completed behavior plan prior to his start date.
On the morning of the 12th the district
changed Dustin’s placement deciding not to let him come to
school and instead wanted us to immediately place him in some
form of hospitalization for 30 days.
As this was not acceptable to us, this disagreement
brought all of our efforts to a stand still.
Our lawyer sent a letter on October 23, 1998 to the
district requesting reimbursement for our legal fees of $3819.92
as specified for in IDEA. The
district refused our request forcing us to file in US District
court on November 9, 1998 for these fees.
While this was pending we did finally reach agreement
with district on an IEP and behavior plan on December 15, 1998
and the district again offered a placement similar to the one of
October 1 that was set to start after the Christmas break.
What happened after that begins a whole new story, one
that still continues unresolved today.
Our
case on legal fees was heard on February 8 by federal Magistrate
Stewart. In her
ruling issued on April 23, 1999 she found that IDEA did in fact
require the reimbursement of our legal fees and ordeed the
district to do so. Molalla
River School District contested her ruling to District Judge
Panner. Additional
briefs where filed by the district and our attorney to Judge
Panner. On June 25,
1999 Judge Panner upheld the ruling confirming the order for the
district to reimburse us our legal fees.
On July 15, 1999 Molalla River School District appealed
the District Court ruling to the 9th Circuit Court of
Appeals. A hearing
was held on July 11, 2000.
On Sept 5, 2000 the court issued its ruling upholding the
District Court’s ruling that we were entitled to our attorney
fees.
Presently
Molalla has petitioned the 9th to rehear the case.
To this date we have paid our attorney $6,242 with an
outstanding bill to him for $18,942.
If our school district continues to appeal this case it
could still be quite a while before we get any of our fees
reimbursed to us.
[Editor's
note: In late
October, 2000, the Ninth US Circuit Court of Appeals refused the
Molalla River School District's petition to rehear. This makes the decision final.
Dale does not know whether the School District intends to
appeal to the US Supreme Court.
Annually, dozens of cases are forwarded by losing side
for consideration by the US Supreme Court.
Only a handful are granted Certiorari, usually for
reasons of the gravity or national significance of the issues
raised including constitutional issues, or when a case like this
is "ripe" for the Court's hearing due to its
consideration by a number of lower courts with varying results,
or when there is a conflict of outcomes among the US Circuit
Courts of Appeal. The
Lucht decision meets none of these ordinary requirements.
The likelihood of this case being granted Certiorari is
virtually non-existent.]
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