Kappan Home
PDK Home

A Two-Headed Monster

By Perry A. Zirkel

Illustration © 1998 by Mario Noche

IN NOVEMBER 1992, the parents of Francis C., who are residents of Palmyra, a small town in New Jersey directly across the river from Philadelphia, requested that the district's multidisciplinary team evaluate their son for eligibility as learning disabled under the Individuals with Disabilities Education Act (IDEA). In April 1993, after a comprehensive evaluation, the team concluded that Francis was not eligible. The ensuing legal dispute is divisible into two Hydra-like heads, one under the IDEA and another under Section 504.

The IDEA

In November 1994, after requesting the district to reopen the IDEA issue, Francis' parents filed for a due-process hearing. After a 19-session hearing, in which a non-lawyer expert was their advocate, the parents lost; the hearing officer decided that Francis' learning difficulties were not severe enough to necessitate special education.1 The parents then proceeded pro se -- i.e., on their own without a lawyer -- to federal court to appeal the hearing officer's decision. Ruling that non-attorney parents could not represent their children in IDEA litigation, the federal district court gave them 30 days to hire an attorney for Francis. When they failed to do so, the court dismissed their claims. The parents then obtained the assistance of the Public Citizen Litigation Group in Washington, D.C., to appeal the court's ruling on this specific representation issue.

On 23 November 1998, the Third Circuit Court of Appeals affirmed the court's ruling, concluding that "the IDEA's language and legislative history, as well as relevant case law and policy considerations," strongly imply that parents may not proceed pro se on behalf of their children in such federal litigation.2

Section 504

Meanwhile, on 12 April 1995, when Francis was in the sixth grade, the district's multidisciplinary team determined that he was eligible for services under Section 504 of the Rehabilitation Act. Pointing to his high scores in intellectual functioning, the team recommended that Francis continue in the gifted program. As for Section 504, the team based its determination of his eligibility on the impact of his attention deficit hyperactivity disorder (ADHD) on his written language and self-esteem. The district gave him a Section 504 plan consisting of seven accommodations, including extra time on written essay tests and regular counseling.

When Francis was in the seventh grade, the district agreed to 13 additional accommodations, including assignment of a mentor to meet with him weekly, a meeting of all his teachers with the parents three weeks after the start of school "to assess adjustment and organization," an extra set of textbooks upon parental request, and a calendar of long-term assignments with a copy to the parents. Francis qualified for the honor roll in the seventh grade. However, until his parents successfully intervened, the district was going to retain him in grade based on excessive absenteeism.

On 3 September 1996, when Francis entered grade 8, the Section 504 coordinator and other district representatives met with his parents and their non-attorney advocate and determined that he was performing at a superior level in math computation and application; at an above-average level in speaking, word recognition, reading comprehension, social studies, and science; and at an average level in listening, spelling, and written expression. Nevertheless, they determined that he was still eligible under Section 504 based on the impact of his ADHD on his written language, self-esteem, and organizational skills. They agreed to additional accommodations, including the provision of a full set of notes when Francis missed class, adjustments in homework assignments, 24-hour notice to the parents of any detentions, and consideration of his ADHD prior to determining any disciplinary action. Francis also received organizational support in a study-skills resource room until, at his parents' insistence, his schedule was revised to allow him to take an additional math class during that period.

In October Francis' parents rejected the accommodations plan and requested a due-process hearing. In early November, they had Francis independently evaluated by the director of pediatric psychiatric services at Columbia-Presbyterian Medical Center in New York City, who opined that Francis' Section 504 plan did not provide the necessary remediation in writing, reading, and organization to allow these skills to become automatic.

Meanwhile, during the second marking period, Francis received B's in math, science, and social studies, but an F in language arts because he had refused to read the required book, Jane Eyre. His parents requested replacing his language arts period with one-on-one instruction, assigning a new case manager, and removing the Section 504 compliance officer. After participating with the parents in a mediation session, the district representatives reviewed the private psychiatric report and concluded that it did not add new information sufficient to warrant further revisions in Francis' Section 504 plan.

In January 1997 the parents unilaterally placed Francis in a private prep school in Pennsylvania, which was a two-hour commute for him each way because he had to use three trains to get to the school van. They sought reimbursement for Francis' tuition and transportation expenses.

On 13 November 1997, after multiple sessions, in which the parents called 16 witnesses to the district's one, the hearing officer concluded that the 1996-97 Section 504 plan was not appropriate because it failed to address sufficiently the specifically identified areas of written language, self-esteem, and organizational skills. Thus he ordered the district to provide tuition and transportation reimbursement for the period from Francis' January enrollment until the district provided him with an appropriate program under Section 504.3

The school district appealed the matter to federal court, where the parents counterclaimed for a preliminary injunction to compel the board to comply with the hearing officer's decision. After a brief hearing, on 22 April 1998 the federal district court granted the parents' motion for a preliminary injunction to the extent of ordering the board to pay $12,115 for September 1997 to April 1998 -- but not the previous tuition and transportation ($20,570) -- pending the court's final determination of the merits.4 Before the court's scheduled hearing for a final determination, the parties reached a settlement, approved by the court, that covered all issues (e.g., agreement that the district would pay for Francis' private schooling until his graduation) except attorneys' fees and expenses.

On 29 July 1999, the federal district court issued a decision ordering the district to pay $53,050 in attorneys' fees (after paring away $6,120 for excessive or duplicative charges), $2,355 in attorneys' costs (including postage, telephone, photocopying, and computer research services), $4,070 in expert witness fees (including $380 for the prep school's psychologist), and $16,440 for the parents' non-lawyer expert advocate (at $200 per hour, deleting the time she spent providing therapy to the parents, attending a professional development workshop, traveling to meetings with the parents, and rendering legal services).5 The court denied the parents' request to recover their own expenses, amounting to $3,470 (e.g., transportation to and from the administrative and court hearings, meals, and dues for a parent information organization that their non-lawyer expert required as a precondition of her services).

 

THIS CASE illustrates various legal lessons. First, it shows the confusing overlap between the IDEA, which is the primary but not exclusive federal legislation protecting students with disabilities, and Section 504, which has a wider definition of "disability" and thus covers not only IDEA-eligible but also other students. The second hearing officer, for example, specified that his decision could be appealed under the IDEA, apparently not recognizing that this case fell purely under Section 504. Similarly, the federal district court in its preliminary injunction relied on a published ruling that concerned a student covered by both the IDEA and Section 504 and that did not deal with the issue of tuition reimbursement for a student covered solely by Section 504.

Second, the case reveals the common practice in certain sections of the country, such as some suburbs in the Northeast, of overidentifying students under Section 504. The three essential elements of "disability," as defined in Section 504 (and the Americans with Disabilities Act), are 1) a mental or physical impairment that limits 2) one or more major life activities to 3) a substantial extent.6 Here, the child had the requisite impairment in terms of a specific, expert diagnosis of ADHD, but it is clearly questionable whether written expression, self-esteem, and organizational skills are "major life activities"; unlike the definition of specific learning disability under the IDEA, this Section 504 definitional ingredient is generic.7 Moreover, even if Francis' condition met the second criterion, the courts have made clear that the frame of reference for determining the third criterion is the aptitude of the average person in the national population, not the aptitude of the individual in question.8

Francis' average and above-average achievement test scores would seem to undermine his eligibility. Instead, there is no evidence in the various published decisions in this case that the Section 504 team even addressed whether Francis' ADHD substantially limited the major activity of learning.

Third, the various court decisions in this case make quite clear the high costs of the "legalization" of special education. In contrast to their dead-end route in pursuing the case unrepresented under the IDEA, the parents' Section 504 itinerary proved the value of a specialized advocate, other experts, and a successful attorney. For example, the specialized, non-attorney advocate had been the subject of previous litigation that precluded her from attorneys' fees awards9 and faces pending bar association charges of unauthorized practice of law;10 yet here she won more than $16,000 in "consulting" fees as part of the settlement, in addition to whatever the parents paid her for her related services. Her $200 per hour rate was only $25 less than the rate charged by the parents' lead attorney, who has made major contributions to jurisprudence under the IDEA and Section 504.11

The Palmyra case invites a plethora of reactions and interpretations. For example, Attorney Rebecca Spar, who represented the parents in the Section 504 appeal, asserts: "All of this litigation occurred because Palmyra discriminated against [Francis] and refused to accept that he could be very bright and still have a significant educational disability." On the opposite side, attorney Joseph Beckley, who represented the defendant administrators, advises: "You have to be very careful about using Section 504 for a child not covered by the IDEA in an effort to mitigate parental or student problems, particularly those under the broad label of ADD/ADHD."

In any event, the two overlapping heads of Palmyra add up to another costly case in the adversarial world of special education.12

1. F.C. v. Palmyra Bd. of Educ., 96 N.J.A.R.2d (EDS) 29 (N.J. SEA 1995). The hearing officer also found that Francis' problems reflected "some far-ranging family problems," including "excessive expectations."
2. Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225 (3d Cir. 1998).
3. Palmyra Bd. of Educ., 27 IDELR 858 (N.J. SEA 1997).
4. Borough of Palmyra Bd. of Educ. v. F.C., 2 F. Supp.2d 637 (D.N.J. 1998).
5. Borough of Palmyra Bd. of Educ. v. R.C., 31 IDELR § 3 (D.N.J. 1999). I obtained additional information via telephone interviews in early October 1999 with attorney Rebecca Spar, who represented the parents; attorney Frank Cavallo, who represented the school district; and attorney Joseph Betley, who represented the defendant administrators.
6. 29 U.S.C. § 706(8)(B); 34 C.F.R. § 104.3(j). The alternative "record of" and "regarded as" prongs of the definition were not at issue in this case. For a comprehensive source, see Perry A. Zirkel and Jeanne Kincaid, Section 504, the ADA, and the Schools (Horsham, Pa.: LRP Publications, 1995).
7. See, for example, Soileau v. Guilford of Maine, 105 F.3d 12 (1st Cir. 1997); and Muller v. Automobile Club, 897 F. Supp. 1289 (S.D. Cal. 1995).
8. See, for example, Bercovitch v. Baldwin Sch., 133 F.3d 141 (1st Cir. 1998); and Price v. National Bd. of Med. Examiners, 966 F. Supp. 416 (W.D. Va. 1997).
9. See, for example, Arons v. New Jersey State Bd. of Educ., 842 F.2d 58 (3d Cir. 1998), cert. denied, 488 U.S. 942 (1988).
10. See, for example, Richard Schmitt, "Advocates Act as Lawyers, and States Cry 'Objection,'" Wall Street Journal, 14 January 1999, p. 1.
11. See, for example, Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238 (3d Cir. 1999); M.C. v. Central Regional Sch. Dist., 81 F.3d 389 (3d Cir. 1996), cert. denied, 117 S.Ct.176 (1996); and W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995).
12. For previous examples, see Perry A. Zirkel, "Special Education: Needless Adversariness?," Phi Delta Kappan, June 1993, pp. 809-10; idem, "Costly Lack of Accommodations," Phi Delta Kappan, April 1994, pp. 652-53; and idem, "Another Withering Decision," Phi Delta Kappan, October 1996, pp. 171-72.

PERRY A. ZIRKEL is Iacocca Professor of Education, Lehigh University, Bethlehem, Pa.


PDK Home | Site Map
Kappan Professional Journal
Last updated 28 January 2000
URL: http://www.pdkintl.org/kappan/kzir0001.htm
Copyright 2000 Phi Delta Kappa International