The Sixth Circuit Court of Appeals has agreed to hear oral arguments in a case involving a student with Down syndrome, and the school district that refused to provide him a free and appropriate education in the least restrictive environment. Like many special education court decisions, the results of this case could either give families courage to fight or could be huge potential setback in the battle for inclusion.
Hamilton County School District in Tennessee wanted to place Luka for half his day in a self-contained classroom in a school outside of his neighborhood. “The segregated class follows no state curriculum or standards. There’s no homework or grades. No accountability,” Luka’s mother Deborah Duncan explains. Knowing Luka would not receive a Free and Appropriate Education in the Least Restrictive Environment if he stayed, Deborah moved her son to a Montessori school where he continues to attend today.
Read Related Post Here: Ninth Circuit Court to Decide if Student with Down Syndrome Can Stay in General Education Classroom
After paying private school tuition, $75,000 dollars in legal fees, and a five year battle with the school district the family eventually prevailed at the district court level in Tennessee. The District Court ruled that a self-contained class is more restrictive than necessary, but that the family would not receive reimbursement for the private Montessori School.
Then Hamilton County Schools filed an appeal to the Sixth Circuit Court of Federal Appeals. “They have no ground to land on, but it allows them to delay reimbursement of our legal fees. They just look vindictive and have spent a lot of taxpayer money just to violate the law. We finally decided to cross appeal for reimbursement of the Montessori school private tuition,” Deborah explains.
Now the Sixth Circuit has agreed to hear oral arguments on July 26th. Luka’s attorney is confident, but there is a risk that the Appeals Court could uphold the lower court decisions under IDEA, ADA and Section 504 but still deny any reimbursement or compensatory education. “This would have a ‘chilling effect’ that prevents families and attorneys from pursuing these cases because there are no consequences. We would just hate that,” Deborah says. Any decision would create precedent in the states of Tennessee, Kentucky, Ohio, and Michigan.
The Supreme Court of the United States ruled that families can be reimbursed for private school tuition if the public school IEP was found to be inappropriate, and if the private school placement is deemed to be the most appropriate available option (School Committee of the Town of Burlington v.Department of Education of Massachusetts). “The District Judge even stated Luka made progress at the Montessori School, and he ruled the public school was inappropriate. I think he knew there was a clear violation, but just didn’t want to penalize the school district by making them pay for the private school tuition,” Deborah explains.
Read Related Post Here: 7 Research Studies You Can Use at Your Child’s Next IEP Meeting to Win the Fight for Inclusion
“What has discouraged and flummoxed me most has been the willingness of school systems to spend more than a MILLION DOLLARS and three to ten years fighting to deny ONE STUDENT with an appropriate education! We weren’t asking for any service that the school doesn’t already provide other students. We weren’t asking for any unique locations or times. We just wanted accommodations and modifications in the regular education classroom. With the amount of money the school system has wasted in legal expenses to-date, every teacher in the district could have received multi-day training in providing accommodations and modifications every single year (into perpetuity) AND paid for the most expensive private school in our state through Luka’s graduation! What sense does that make?! Instead a million dollars will be spent and not a single child will be educated with those funds,” Deborah laments.
Have you or someone you know had to fight a similar battle for inclusion? Are you frustrated that we’re still fighting this fight more than 30 years after the Individuals with Disabilities Education Act (IDEA) was passed? Tell me about it below.
My son will be in 3rd grade this year. At my very first IEP meeting for kindergarten I was told by school staff that a self contained class would be the least restrictive. Luckily I knew better. His first two years were in gen ed and were great. The past two years not so great because he spends most of his time in the self contained class.. This year I will begin my fight for him to be in the gen ed room where he has a right to be. His diagnosis of Down syndrome does not decide his placement.
Courtney, thank you for the update on the progress about this young man and his families battle for integration. My family has a very similar battle. Please Google Killoran vs Westhampton Beach School District. Our NY State ranks 50 in segregation and as a state in general in the special education practices as SO antiquated. We have been through 2 NYS Administration Hearings that found violations but the remedy was to put it back to the same CSE who committed the violation in the first place. There has been no accountability. Our school has 46 outsourced students and have NEVER educated an Alternatly Assessed student in the entire history of the school. Just like Luka’s parents we are not asking for any services the the district does not already have we are simply asking for Aiden to be included as he was K-6 in the general education in the school he would have gone to if he didn’t have a disability along side his brother and sister and his peers and be included with the appropriate supports. We have FOILED their expenses we are heading to our 3 NYS hearing and then Federal Court 2nd district and they have already spent over a quarter of a million dollars to date not including the rest. We realize this is bigger than our child bigger than our school district, we need to make change at the state level. Please feel free to contact myself or my husband
Terrie & Christian Killoran
631-664-5363
Terrieskilloran@optonline.com
Christian@killorlawpc.com
Thank you for standing strong! Thank you for being a voice to our community! BUT-this is a bigger issue. ALL families need to come together and say-QUIT SUING PARENTS! School district-QUIT WASTING OUR TAX DOLLARS on suing parents! Its just absurd that in 2018 kids are still being segregated. : (
There’s over 30 years of research showing inclusive education is better for general ed and special ed students. When will the district’s start using evidence-based-practices? When will they use that money earmarked for attorney fees to teach their educators Universal Design? Do we have to wait for all the “This is the way we’ve always done it” people to retire??
Our son with Ds was in the local Catholic school in CT with his siblings. Upon moving to PA, we found a Catholic school that could accept all of our children in elementary grades up to 8th. We dually enrolled our one son and completed an IEP with our public school district. He could go to public school for therapies, but wentvto school at catholic school where we had to paid for the aide. The public dchool’s placement of him was always in a life skills classroom not in our neighborhood school. I complained every year and asked them why they did this. Of course I was having him in the catholic school fully included so I rejected their placement each of the last 3 years. When I asked a spec ed teacher why the placement isn’t first thought to be gen ed in the home school, she said it used to be but the state of PA wanted the district to change it and have more time out of the gen ed classroom. That seems so backwards and don’t believe it. So frustrating yhat clearly the placement they were offering was not least restrictive at all and didn’t allow access to gen ed curriculum.
I feel like the worst part is that even if the student prevails and the school is forced to quit segregating, we still don’t thave their hearts and minds. Legislating our kids in is just the beginning. Creating a real inclusive environment takes people who are committed and passionate. They have to BELIEVE it will work and WANT to do it.
I attend IEP’s in the state of Wisconsinon on a regular basis to help families of children with Down syndrome. It constantly floors me that we are sometime fighting to get just a few minutes in regular ed classrooms. I find that many school systems work to intimidate parents and caregivers and are even abusive. I also see blatant falsification of records. Recently I had a special ed director say that a child was fully included 80% of the day. However, in the psychologists assessments, it was noted that the classroom teacher’s evaluation was way off from all the other evals. The psychologist noted that the teacher spent very little time with him and did not know the child well. Upon further questioning, we learned the child says hello in the morning and then never returns to class the rest of the day! How is that being included? He was actually being brought to a small class to learn with a learning assistant.
Hi! I am traveling with Deb and Luka tomorrow to attend the oral arguments… Thought you might want to see Luka in a trailer for a documentary we are working on — One of our 3 sons, Miles (whose twin brother, Ben, has autism) is producing this and we are putting it all together later this year after 3 years of footage. Thanks for a super article on Luka! : )
Trailer: https://www.youtube.com/watch?v=EXY66BsxLoU
Yes, I find every year I fight for my child to be in regular Ed and to be treated like any other student in the district, to have reasonable accommodations, to have a specific curriculum based on state requirements for all students and receive grades appropriate for his level of learning. I hate the IEP is stuck on counting to 10 a 100% of the time. Educator is our area have not progressed beyond 1960.
There was a case in CO that passed that required accountability for progress. Something the Court of Appeals needs be made aware.
It’s a very sad day when a Judge rules a school system inappropriate, but continues to violate Luka’s Civil Rights. Maybe OCR needs to be involved as well.
I definitely feel for Luka and his family as well as other families battling to uphold their public educational rights. Both my son and daughter have learning disabilities. My son’s academic experiences, after early intervention through 2nd grade, were beyond frustrating. He is diagnosed with pervasive development disorder and ADHD. In our former district in Macomb County, MI, district administration and teachers “wrote him off” and placed him in a self-contained classroom much like the environment Luka’s mother describes. Like you and Luka’s mom, I knew my son could learn. But, he needed inclusion with the general education population with access to the same standards and curriculum. For years I battled our district for general education inclusion with little to no success. Fortunately, my husband’s job moved our family to Spring Hill, TN, which is in the Williamson County School District. This district supports and practices inclusion for student with special needs. My son is now preparing to enter 5th grade with his grade-level, general education peers. He gets support in the classroom as well as 1:1 instruction with a special education teacher for individualized math and ELA help.
With relentless advocacy, my daughter with Down syndrome was very successfully almost fully included here in Hawai’i in elementary school. She was based in a SPED Classroom for the hearing impaired, but was included with her typical peers in Social Studies, Computer, Science, Music, PE, and even had modified English assignments. She received awards, signed in talent shows and graduated with her peers. She thrived with every moment exposed to her typical peers who modeled for her what age appropriate socialization was and being exposed to the general curriculum! She was in a co-teaching environment in middle school with accommodations and modifications and had similar inclusion–even playing the bass drum in her school beginning band with 1:1 support. When she hit high school we expected the same but the school had other ideas. She was somewhat included in a hula class and performed once for a homecoming bonfire. Over the next three plus years we later discovered that her high school was fraudulently recording that she was attending her mainstream electives when she was not. This past year, though her IEP mandated attendance in two electives, her teacher only facilitated her enrollment in one mainstream elective–photography. When we went to observe my daughter in her photography class (to enable parent’s meaningful participation in her annual IEP meeting) her photography teacher told me that my daughter had never attended his class. Photography teacher said that he had given weekly assignments to my daughter via her SPED teacher. I asked for my daughter’s digital portfolio and SPED teacher gave me random pictures my daughter took of her peers a couple of times during the whole school year. When I wrote the school principal to document my daughter’s non-participation in her elective, the SPED Director responded that I, the parent, had blocked my daughter’s and staff’s entry to the classroom door and that parent was hostile and uncooperative. Unbeknownst to the SPED Director, SPED Teacher, Photography Teacher and aides–my beautiful and bright daughter with Ds took pictures of the whole “observation” on her ipad on her own! The pictures (which staff attempted to delete and I found in trash on her ipad) showed photography teacher blocking the door, looking at another student’s long negative strip and appearing rather perturbed with the interruption to his class and her Mother somehow smiling through it all. THIS is the reality of inclusion in high schools not just in the state of Hawai’i but across much of our country. Needless to say, my daughter has been deeply depressed for years now since middle school, saying/signing– “I not go to school. I sick. No one listens to me. No one loves me…”
The Winklemans in Parma fighters with Parma schools in similar fashion and was similarly befuddled by the school continuing to fight at a cost of over a million dollars, well over what they would have paid to send the student with autism to an appropriate school placement. I have no clue how much my district paid to argue a day with me over moving my son with autism from a day treatment type placement where he was not advancing per his etr testing (because he was sleeping through classes and getting straight A’s because his behavior was so good) into a school designed for students with autism that also has typical peers (student sibs studied here as well). He did great and made progress there as expected and measured by standardized tests after the district acquiesced and let me move him. After the fiasco in the first district in public school I was not letting him back into public school ever.
There was no inclusion for my daughter in Sacramento City Unified schools in California– the district has the worst record for suspensions in the state. They allowed her to be bullied, harassed and assaulted by general education peers for 2 years and then she suffered harsh discipline for her reactions. But the district remains firm that they have provided a Free and Appropriate Public Education. What they really provided was discrimination, abuse, and trauma. I hope Luka is successful.
This is outrageous! My 5 year olds son is entering kindergarten within a district in CA that I believe will hold fast to their systematic way of separation for all instruction time and mainstream during recess/lunch/and other non academic times of the day. They will likely fight and pay millions as well so that our son does not set a precedent in the district that others think they can follow. shameful and wrong.
IZM v ISD 196 Blind student with no accessibile classroom materials forced to state school for blind.
We have had very much the same experience with School. My son is popular and the “we just love him” comments are plentiful while i stay up nights educating myself and writing dissertations to the school about his skillset, progress, assessments and beyond requesting the suppoort he was garanteed by the federal government. I have been turned inside out; frankly into someone i didn’t want to be. We are always fighting for his rights and more importantly for them to do the right thing. We live in induced poverty with tiny bandaids for all our big problems with school and the system at large. The parents have to turn thier families into non profit volunteers and the whole family is enslaved to right the wrongs of the entire system or choose to watch a capable child wither. I can not believe nothing much has changed. I have a sister and a brother and a son all with Downs syndrome……..nothing much has changed except the number of children with Down syndrome being aborted when they could be appropriately supported.
I am in the middle of a very similar situation with my son. He is autistic, has severe ADHD, disruptive mood disregulation disorder, and has been denied an IEP three times. In the last school year, he was suspended 8 times and put up for expulsion. Yet, “they” claim he does not need accommodations. We are currently getting an independent evaluation and are working with an attorney to get him placed in a local school specifically for kids with autism.