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District to appeal special ed ruling

Attorney says parents met resistance from Forest Grove officials over student evaluations


School officials in Forest Grove plan to appeal a state-level administrative ruling ordering the district to provide a "compensatory education" for a special education student.

Andrea Hungerford of The Hungerford Law Firm in Oregon City, which is representing the district in the case, said Tuesday she would file an appeal in federal district court in Portland within a week.

"It wasn't a school board decision," noted Hungerford, who said a discussion between several high-level administrators — including Superintendent Yvonne Curtis, Special Education Director Brad Bafaro, Special Education Coordinator Kimberly Shearer and Business Manager Mike Schofield — led to the decision last Friday.

It's the second time in nine years the district is fighting a legal challenge to its delivery of special ed services under the federal Individuals with Disabilities Education Act. In a case initiated in 2003, the U.S. Supreme Court ruled six years later that the parents of a former Forest Grove student known only as "T.A." could seek reimbursement for his private schooling, even though he never received special ed services from the district.

But the federal Ninth Circuit Court of Appeals in 2011 absolved the district from responsibility for paying the family's nearly $100,000 in tuition and $500,000 in legal bills, and the Supreme Court declined to hear an appeal, effectively bringing that case to a close.

Though Forest Grove counted it as a legal victory, the district spent at least $244,000 defending itself in the case. Bafaro has said it did so because "Forest Grove v. T.A." could have set a precedent nationally for parents who, unsatisfied with special ed services in their home district, might seek reimbursement for educational services elsewhere under the provisions of IDEA.

'A lot of resistance'

In the latest due process complaint, brought by the parents of a current Forest Grove High School student, "the family spent a long time trying to get their child evaluated by the district," said Diane Wiscarson of Wiscarson Law in Portland, a firm that focuses in special education law and disability advocacy. "They met a lot of resistance."

In late 2010, the parents pursued private evaluations for their child after paying for them out of pocket. They took the results to the district, "but they weren't reviewed and considered," said Wiscarson.

"Over a few years of trying to get the right services for their child, (the parents) felt like they weren't getting anywhere," she added. "It's the family's position this (legal complaint) could have been avoided."

The tipping point came on Dec. 6, 2011, when Wiscarson filed a request for a due process hearing on the matter before the state superintendent of public education. The case was referred to the Oregon Department of Education's office of administrative hearings, and testimony was taken on both sides last spring and early summer.

Administrative Law Judge Jill Messecar ruled Sept. 12 that the district had not provided the student, who has not been identified, with a "free and appropriate public education" under federal law, and ordered evaluations, counseling and a "compensatory education" in reading and mathematics.

No dollar amount was attached to Messecar's order.

The parents are not asking for reimbursement, Wiscarson said, but that the district be "forced to pay for new evaluations … compensating the student for what was missed."

Wiscarson pooh-poohed the district's decision to persevere in the T.A. case, saying it "spent $400,000 to save $60,000." She insisted the current complaint is "nothing like" the T.A. case.

"This is just about a kid who was going to school who didn't get her needs met," Wiscarson said. "This was a really frustrating process for the parents, In these economic times, it seems like it would have been much better to have decided to meet this child's needs than to litigate."

Case could go on for years

Curtis declined Monday to comment about the new case or the appeal, deferring to the district's legal counsel.

According to Hungerford, it could take many months, or even years, for the current case to wind its way through the justice system. "This is a total guess, but I'd estimate three or four months for briefs, oral arguments after the first of the year and possibly a decision before the end of the (2012-13) school year," she said.

That's a best-case scenario. Between the filing of briefs, oral arguments and potential appeals on both sides, the case's resolution could extend to 2015, she added.




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