The state Department of Education failed to provide a Maui special-needs student with a free appropriate public education when it excluded the boy’s father from participating in a meeting that changed the student’s school placement for the first time in six years, a 9th U.S. Circuit Court of Appeals panel ruled Thursday.
"The court generally said the Department of Education has a responsibility to ensure certain procedural rights and they can’t excuse not doing those things by saying it’s the parents’ fault," said Honolulu attorney Keith Peck, who represented the student in the case.
Spencer Clark, now 18, was diagnosed with autism at age 2, and as a result of his condition is eligible to receive special education and other related services under the federal Individuals with Disabilities Education Act, or IDEA.
(Spencer’s last name is redacted in the court records, but his mother, Cindy Clark, granted permission to use his full name.)
The law requires all special-needs children be given a free appropriate public education. Under the law, the department is responsible for providing educational services for special-needs students ages 3 to 20. Those services take up 20 percent of the department’s budget, with spending this year at nearly $362 million.
Figuring out what services a student requires is done at Individualized Education Program meetings, which help outline the services each student gets, along with their progress and benchmarks they should meet over a school year.
Beginning with the fifth grade, Spencer’s program placed him at a private special-education facility — Horizons Academy of Maui — at the department’s expense.
Spencer’s father, Doug Clark, was unable to attend his son’s annual program meeting in 2010 because of scheduling conflicts and an illness. At that meeting the department changed Spencer’s educational placement, moving him to a program at Maui High, his local public school.
Doug Clark protested the move through a due-process hearing but lost that fight. A U.S. District Court judge upheld the decision, which Clark appealed.
Spencer’s parents have kept him enrolled at Horizons at their own expense. The appeals court has remanded the case to state District Court to determine whether the Clarks are entitled to tuition reimbursement. Special-education tuition is listed at $2,300 a month on Horizon’s website.
Education Deputy Superintendent Ronn Nozoe said in a written statement, "We are carefully reviewing the 9th Circuit Decision. The Department intends to comply fully with the legal mandates on free and appropriate education."
The three-judge 9th Circuit panel, which heard oral arguments on the case in October in Hawaii, said the central issue was whether the department’s efforts to include Doug Clark in the 2010 meeting were "sufficient to meet the requirements of the IDEA."
The court said in its opinion that "parental participation in the IEP and educational placement process is critical to the organization of the IDEA."
It concluded that "procedural inadequacies that result in the loss of educational opportunity, or seriously infringe the parents’ opportunity to participate in the IEP formulation process, clearly result in the denial of (a free appropriate public education)."
Spencer’s mother, Cindy Clark, said she’s glad the court ruled in her son’s favor, but said her family is "constantly having to fight for his services."
"I’m glad we won, but the DOE on Maui plays games. They really don’t care for the special-needs children," she said in an interview. "Our son won that placement (at Horizon), but for fun and games they want to pull him out. They know an autistic child cannot take changes. To pull him out would cause a huge meltdown. He’s doing well. My son only has a couple of years left of school, and they want to rip him out now."
