Forest Grove likely to appeal ruling on heels of landmark case

For the second time in nine years, the Forest Grove School District has been hit with a legal challenge focused on one of its special education students.

Last Wednesday, an administrative ruling by an Oregon Department of Education judge ordered the district to provide a "compensatory education" for a special ed pupil whose parents say their child was not provided an adequate education under federal law.

Reached by phone Tuesday afternoon, one of the student's parents, who did not want to be identified, had this to say: "All I've ever tried to do is get my child's needs met, and the judge has stated the district hasn't done that."

If upheld on appeal, the ordered services — which include evaluations, counseling and tutoring — could cost the district tens of thousands of dollars.

"There is a dollar amount connected to the order, but we don't know how much," Superintendent Yvonne Curtis said Monday night after briefing members of the Forest Grove School Board on the case during an executive session.

That closed-door meeting was allowed because it involved pending legal action.

District spent $244K on 'T.A.'

The latest action follows by about a year the final resolution of a case involving a former Forest Grove pupil known as "T.A.," whose family tried to get the district to pay for their son's private education after becoming disenchanted with the way the local special ed department handled his schooling here.

That case went all the way to the U.S. Supreme Court before the federal Ninth Circuit Court of Appeals sided with the district in April 2011, determining it was not responsible for reimbursing T.A.'s parents for his tuition at a private academy in central Oregon.

Forest Grove spent more than $244,000 defending itself in court in that case, which was first brought in 2003 and thrust the district into the national special ed spotlight. It was widely regarded as a watershed case whose outcome could have set precedent for parents wishing to challenge the delivery of public special education services under the federal Individuals With Disabilities Education Act (IDEA).

Its resolution was viewed by district leaders as a huge victory. "It took (the district) nine years to be vindicated in that one," noted Andrea Hungerford, whose Oregon City law firm handled the case.

Appeal decision coming

This time around, the district is again likely to appeal the initial decision out of Salem. Hungerford said Tuesday a decision about a potential appeal to the Oregon U.S. District Court was expected "any day."

Parents of the student, who is not identified in any documents, retained attorney Diane Wiscarson, a specialist in special education law, to represent them during hearings held in April, May and June of this year.

They brought between 30 and 40 witnesses to testify about whether the student, currently enrolled at Forest Grove High School, was underserved by Forest Grove's team of special educators.

The order, signed Sept. 12 by Administrative Law Judge Jill Marie Messecar from the ODE's office of administrative hearings, says the student's parents have "shown … that the district did not provide (the) student with a Free Appropriate Public Education as required" under IDEA.

The student's parents filed an initial due process complaint against the district on Dec. 6, 2011. According to the final order document, the family in 2005 moved to Forest Grove from Maine, where the student "had been receiving special education services under the designation of 'multi-handicapped.'"

In May 2008, the student's individualized education plan team determined the student "was eligible for special education under the categories of Autism Spectrum Disorder and Other Health Impaired but not under Communication Disorder."

The long list of district staff members testifying over 12 days included teachers, psychologists, occupational therapists and autism specialists, as well as Special Education Director Brad Bafaro and Special Education Coordinator Kimberly Shearer.

Hungerford said she wasn't particularly surprised by Messecar's ruling.

"I thought she demonstrated a marked preference for the parents" during hearings last spring, she noted. "I thought she demonstrated a bias."

Hungerford added that the district would challenge the appropriateness of Messecar's assignment to the case if it appeals. "This was the first IDEA hearing this … judge has ever done," she said.

While there is no dollar amount tied to the order, Hungerford said that if the district loses the case, it could be asked to reimburse the parents for certain educational services.

Hungerford also estimated the petitioners have spent "in excess of $100,000" in legal fees on the case to date. If the district appeals Messecar's ruling and wins, it won't have to pay the family's legal bills. But, the district will remain on the hook for its own debts no matter the case's outcome.

"IDEA has an attorney fees provision that only goes one way," Hungerford explained. "If the parent wins, the district pays all attorney fees for both sides."

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