Alert! Appeals Court Upholds Four Years of Compensatory Ed - Draper vs Atlanta Public Schools

2008-03-18T04:34:00.001-07:00

FYI - Important case and award here in Atlanta for all children with Dyslexia who are not identified and remediated in our public school systems! Have a similar case in Gwinnett that has been turned over to attorneys as well. Perhaps when parents begin winning these large settlements for school districts harming their children, not teaching them to read, misdiagnosing as mentally retarded when they are severely language impaired and learning disabled, they will begin to implement truly scientific based remedial reading programs we have long been advocating for in our State!

Additional links to info on Draper vs Atlanta Public School System

http://www.bridges4kids.org/articles/3-07/AJC3-23-07.html

http://www.wsbtv.com/news/7041095/detail.html?subid=22105243&qs=1;bp=t

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Carol Sadler, Special Education Consultant/Advocate
GA Advocacy Office PLSP I Graduate
770-442-8357
1105 Rock Pointe Look
Woodstock, GA 30188
CarolSadler@bellsouth.net
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"There is nothing more unequal than the equal treatment of unequal people." ---- Thomas Jefferson

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Information contained in this communication is confidential and privileged. It is not meant to represent legal or medical advice, but rather advice given based on my knowledge as a trained Parent Advocate by the GA Advocacy Office, Council of Parent Advocates & Attorneys, CHADD, LDA, the GA DOE Parent Mentor program as an invited guest and the special education attorneys that I often work with on educational matters. Please do not forward without my permission.

http://www.ajc.com/metro/content/metro/atlanta/stories/2008/03/10/misdiagnosed_0311.html

Court rules in favor of student misdiagnosed as mentally disabled

By DORIE TURNER
Associated Press
Published on: 03/10/08

A federal appeals court has upheld a ruling that Atlanta Public Schools pay up to $152,000 to send a student long misdiagnosed as mentally disabled to a private school.

The 11th U.S. Circuit Court of Appeals ruled last week that the school system pay for Jarron Draper, now 21, to attend a school specializing in developmental disabilities for up to four years.

Draper was misdiagnosed with mental retardation by the school system in 1998, according to court records. His family fought for five years to have him retested. In 2003, an independent analysis showed he actually has dyslexia, a learning disability, but Draper's attorneys say the school system was slow to remove him from the restrictive class for mentally disabled students even after the new diagnosis.

"We're elated," said Draper's attorney David Monde about the appeals court decision. "What it means for him is that he is assured of having four years of private school education ... to try to compensate for the years of educational neglect that he suffered at hands of Atlanta Public Schools."

Atlanta Public Schools spokesman Joe Manguno issued a statement from administrators later that said the system "serves thousands of special education children every day, and every one of them is important to us.

"We acted in what we believe was the best interest of this student and his family, and will continue to do so. Furthermore, we fully intend to abide by the rulings of the courts," the statement said.

Draper, who was reading at a fourth-grade level when he was 17, has been moving from one minimum-wage job to another since he left Benjamin E. Mays High School three years ago, Monde said. Draper wants to finish high school and go on to college to study computer services, Monde said.

He plans to attend The Cottage School, a suburban Atlanta campus devoted to serving special-needs students, Monde said.

The appeals court's ruling affirms an order from U.S. District Court Judge Martin Shoob issued a year ago. In his court order, Shoob agreed with an administrative judge who had found in favor of Draper, saying it is "incredulous that anyone, let alone supposedly trained professionals, could have deemed JD mentally retarded as late as 2003."

A state law passed last year gives Georgia parents the option to apply for state-funded vouchers to send their children with mental, emotional or physical disabilities to private schools. The vouchers can be worth between $2,000 and $15,000 annually, depending on the child's disability.

Draper would not qualified for that assistance because he was not enrolled in a Georgia public school last year.

Subject: FW: Alert! Appeals Court Upholds Four Years of Compensatory Ed

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	Alert! Appeals Court Upholds Award of Four Years of Compensatory Ed

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March 10, 2008

ISSN: 1538-3202

Issue: 426
Subscribers: 58,760

In This Issue:

Prospective Compensatory Ed in a Private School

"Poor Man's Burlington Remedy" by Steve Wyner, Esq.

What is the Significance of Draper?

"A Lesser Spirit Would Have Been Crushed Years Ago"

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On March 20, 2007, the District Court of Georgia ordered the Atlanta Independent School System to pay Jarron Draper's tuition at a private special education school for four years, or until he graduated with a diploma from high school, as prospective compensatory education for their persistent failure to educate him.

The Judge ruled that "Compensatory awards should compensate, and this means that they must do more than provide 'some benefit' as required by ordinary IEPs ..." Decision

The Atlanta Independent School System and Jarron appealed to the U.S. Court of Appeals for the Eleventh Circuit to resolve different legal issues.

On March 6, 2008, the Court of Appeals unanimously upheld the decision of the District Court in Jarron Draper v. Atlanta Independent School System (11th Cir. 2008).

This Alert describes the case and how it will help other families and their attorneys negotiate better settlements with school districts. The Alert includes additional information about Jarron and the legal issues in these decisions.

Don't hesitate to forward this Alert to other families, friends, and colleagues.

Prospective Compensatory Ed in a Private School

In Jarron Draper v. Atlanta Independent School District (N.D. GA 2007), the District Court held that:

"Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student ...

"Compensatory awards should compensate, and this means that they must do more than provide 'some benefit' as required by ordinary IEPs ... compensatory education is necessary to preserve a handicapped child's right to a free education."

The U. S. Court of Appeals for the Eleventh Circuit upheld the District Court's award of compensatory education that required the school system to pay prospective educational services provided by a private school. The Court specifically rejected the notion that the student had to prove that the public school system was incapable of providing the compensatory education.

The Court relied on the Supreme Court decisions in Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 105 S.Ct. 1996 (1985) and Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 114 S.Ct. (1993), which held that school districts are required to reimburse parents for the costs of private placements in nonpublic schools when the public school failed to provide the child with an appropriate education.

Relying on these decisions, the Court reasoned that the District Court had the authority to require a public school to pay the cost of prospective compensatory education that would be provided by a private school.

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"Poor Man's Burlington Remedy"

The harsh reality is that most families cannot afford to remove their child from an inappropriate public school program and pay tuition for a private placement, while also incurring the expenses of a due process hearing and subsequent litigation.

In Draper, the 11th Circuit fashioned a "poor man's Burlington remedy" for these families:

"The Act does not relegate families who lack the resources to place their children unilaterally in private schools to shouldering the burden of proving that the public school cannot adequately educate their child before those parents can obtain a placement in a private school. The Act instead empowers the district court to use broad discretion to fashion appropriate relief."

Read more in Poor Man's Burlington Remedy by Steve Wyner, one of Jarron's attorneys.

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What is the Significance of Draper?

In an interview with Steve Wyner, we asked what he saw as the significance of the case. He mentioned three issues.

Tool to Negotiate for Quality Compensatory Services

He said, "this decision should help special needs families and their counsel in negotiating settlements that provide quality educational remediation when their child has been denied a free appropriate public education (FAPE)."

Accordiing to Wyner, "When the school system fails to provide FAPE, the family can and should ask for compensatory education from a non public agency or school."

"Public schools often offer to provide compensatory education in the form of supplemental educational services provided by their staff. Since the public school failed to provide FAPE previously, compensatory educational services provided in the future (prospectively) by school district staff is generally an ineffective remedy. The same teachers who previously failed to educate the child would be responsible for remediating their past failures."

Compensatory Education Requires More

"While the Supreme Court decision in Rowley requires school districts to provide special needs students with a "basic floor of opportunity" that provides "some educational benefit," the 11th Circuit held that compensatory awards must do more, and "should place children in the position that they would have been in but for the violation of the Act."

Simple Themes Win Cases: Teaching Children to Read

Simple themes win cases. In Jarron's case, the themes included the following: the school system failed to appropriately evaluate him, misdiagnosed him as mentally retarded when he had dyslexia, and failed to teach him to read.

If schools don't teach children the basic skills of reading, writing and math, these children will never have an opportunity to become productive, self sufficient members of society, which is the purpose of the IDEA.

Read the decisions from the U. S. District Court and the U. S. Court of Appeals for the Eleventh Circuit. You will see this theme repeated over and over - that Jarron's reading skills were at the 3rd grade level, year after year after year, until he finally left school.

Read Steve Wyner's analysis of the significance of the case and how it may benefit you.

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"A Lesser Spirit Would Have Been Crushed Years Ago"

A Lesser Spirit Would Have Been Crushed Years Ago is a more personal "inside story" of Jarron Draper's case.

When the Judge issued the favorable decision in 2007, Jarron was 20 years old. He couldn't read, earn a high school diploma, or fulfill his dream of attending college. He was stocking shelves at Target and working as a security guard.

In A Lesser Spirit, you'll learn about the battles his family fought, how school employees failed to fulfill their responsibilities, and who stepped up to the plate to represent him in the due process hearing.

You'll learn about legal issues - burden of proof, statute of limitations, and remedies for the failure to provide a child with a free appropriate education including compensatory education.

You'll meet the dedicated and talented attorneys who also stepped up to the plate to help Jarron and his family when their case went to federal court.

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