School district sues 'vexatious' mother

This is a redacted version of the original appeals panel decision. Select details from the decision may have been removed to preserve anonymity of the student. The redactions do not affect the substance of the document. COMMONWEALTH OF PENNSYLVANIA SPECIAL EDUCATION DUE PROCESS APPEALS PANEL REVIEW In Re: THE EDUCATIONAL ASSIGNMENT OF : SPECIAL EDUCATION M.Z., A STUDENT IN THE : OPINION BETHLEHEM AREA SCHOOL DISTRICT : No. 1432 BEFORE APPEALS PANEL OFFICERS CAUTILLI, KAUFMAN & McELLIGOTT. OPINION BY McELLIGOTT. BACKGROUND Student is an 8-year-old student residing in the Bethlehem Area School District (“District”). The student’s eligibility under federal and Pennsylvania special education laws as a student with a disability is not disputed between the parties.1 Likewise, the student’s eligibility under Pennsylvania gifted education laws is not disputed.2 The parties disagree over aspects of the student’s special education and gifted education programs. The student entered District schools in kindergarten in the 2001-2002 school year. In preschool, the student had been receiving early intervention services for speech and language services and socialization skills.3 Over the summer of 2001, the parties communicated back and forth regarding the student’s potential eligibility.4 The District performed an evaluation and issued a comprehensive education report (“CER”) on November 14, 2001.5 The student was identified as having a central
1 34 C.F.R. §300.1, et. seq.; 22 PA Code §14.101, et. seq. 2 22 PA Code §16.1, et. seq. 3 School District Exhibit (“S”)-1, S-2; Notes of Testimony (“NT”) at 495-499. 4 S-3, S-4, S-5, S-6, S-7, S-8, S-9. 5 S-13.
auditory processing disorder (“CAPD”) requiring speech and language support and social skills needs.6 The parties disagreed over the student’s needs regarding socialization. At this time, there was no diagnosis regarding autism/pervasive developmental delay (“PDD”). In December 2001, the parties agreed to a Section 504/Chapter 15 service agreement for the socialization needs and to an individual education plan (“IEP”) for speech and language support.7 In the summer of 2002, the parties met to discuss the student’s IEP for the 2002-2003 school year.8 In the course of these discussions, the parent shared with the District a private evaluation that the student had been diagnosed with autism/PDD.9 Throughout the fall of 2002, the parties designed a new IEP for the student. 10 In December 2002, the student was identified as gifted, and an IEP and a gifted IEP (“GIEP”) were developed and agreed-to on January 9, 2003.11 At the same time, in January 2003, the parties also met to consider parent’s request for changes to the IEP.12 On January 30, 2003, the team issued a new IEP along with a notice of recommended educational assignment.13 The parent did not respond.14 In the spring of 2003, the parties went back and forth on disputes over the IEP of January 30th.15 Unable to resolve these disputes, the District proceeded to due process in May of 2003.16 6 Id. 7 S-17. 8 S-21, S-22, S-23, S-24, S-25, S-26, S-27, S-28, S-29. 9 S-24, S-25, S-26, S-27. 10 S-29, S-30, S-31, S-32, S-33, S-34, S-35, S-36. 11 S-38, S-41, S-42, S-43. 12 S-46; NT at 134. 13 S-50, S-54. 14 Because parent did not respond, the District proceeded to implement the new IEP after 10 days. 15 S-51, S-52, S-53, S-54. 16 S-67.
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The hearing took place over three sessions in September and October 2003.17 The hearing officer identified five issues: 1. Is the student’s IEP appropriate and being implemented properly? 2. Is the student’s GIEP appropriate and being implemented properly? 3. Are the monitoring of the student’s performance/progress and communication of this information to the parent appropriate? 4. Should the separate IEP and GIEP documents be combined into one document? 5. Should the student’s gifted education program “go beyond” enrichment? The hearing officer determined that both the IEP and GIEP were appropriate and were implemented properly. He determined that the monitoring of the student’s program and the communication with the parent were appropriate. He further determined that the enrichment program outlined in the GIEP was sufficient and that the IEP and GIEP need not be combined. The parent filed several exceptions. Parent alleged, in general, that the hearing officer’s decision is not supported by the record. Furthermore, the parent alleged specifically that: the student’s class size was too large, the implementation of social/behavioral programming in the IEP had failed, the student’s performance/progress should be communicated home on a weekly basis, the student’s gifted education program has not been individualized, and the IEP/GIEP documents should have been combined. The panel received these case materials on December 1, 2003. 17 The case was assigned for hearing in early July 2003. Multiple circumstances, including the inability to find an interpreter, administrative error, emergency surgery for the District’s attorney, and inclement weather, postponed the hearing. Hearing Officer’s Decision at page 2.
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DISCUSSION This panel’s standard of review requires an independent examination of the record in addition to a determination of whether any error of law has been committed. The panel must defer to the hearing officer’s determinations on issues of credibility “unless non-testimonial, extrinsic evidence in the record would justify a contrary conclusion, or unless the record read in its entirety would compel a contrary conclusion.”18 For the reasons set forth below, we will deny the parent’s exceptions and affirm the hearing officer’s order. Parent’s particular exceptions are addressed below. Hearing Officer’s Decision We find that the hearing officer’s decision is fully supported by the record. The hearing officer has diligently weighed the testimony and the documentary evidence, and we find nothing in the record that would raise questions regarding the hearing officer’s findings of fact or conclusions of law. Accordingly, this exception is dismissed. Class Size We find that the student’s class size was not too large. Nothing in the record indicates that the student’s class size exacerbated the student’s disability, interfered with the implementation of the student’s program, or denied a free appropriate public education to the student. Accordingly, this exception is dismissed. 4
Social/Behavioral Programming We find that the District appropriately designed and implemented programming to meet the student’s social/behavioral needs. The IEP of January 30, 2003 is reasonably calculated to yield meaningful education benefit. And the testimony of the District’s witnesses fully support the hearing officer’s determinations that the student’s social/behavioral programming was appropriately implemented. Accordingly, this exception is dismissed. Progress Reports and Communication We find nothing in the record to support parent’s contentions that either the measurement of the student’s performance/progress or the communication with parent were improper. We agree that weekly behavior charts, monthly speech and language progress reports, and quarterly report cards/progress reports appear to meet the District’s duty to monitor the student’s performance/progress and the parent’s need to receive this information. Accordingly, this exception is dismissed. Gifted Program We find nothing in the record that the gifted program is inappropriate in its substance, or in its form as a stand-alone GIEP document. We agree with the hearing officer that the gifted program appears to be designed and implemented appropriately.
18 Carlisle Area School Dist. v. Scott P., 62 F.3d 520 (3d Cir. 1995), cert denied, 517 U.S. 1135 (1996).
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Furthermore, nothing in the Pennsylvania gifted education regulations requires that a GIEP must be combined with an IEP where a gifted student is also identified as a child with a disability. Accordingly, these exceptions are dismissed. • ORDER AND NOW, this 2nd day of January, 2004, the decision of the hearing officer in this matter is AFFIRMED. Any exceptions not specifically addressed by this opinion and order are dismissed. Pursuant to 22 PA. CODE 14.162 (o), the parties are advised that this matter may be appealed to the Commonwealth Court of Pennsylvania or to the appropriate federal district court. ____________________________ Michael J. McElligott for the Appeals Panel Signed & Mailed: 01/02/04 6

interesting that this was the only appeal out of 20 or almost 20 being appeals are no more around a yr ago

think they will file on me being they labeled me as vex. to the fed ct of appeals?

Does this mean parents can sue for attorney's fees when school districts file frivolous suits against parents and force parents to retain attorney?

i don't think courts view hiring an atty is being forced it is a choice

In fantasy, BASD lawsuit looks different
Paul Carpenter
August 7, 2009
To put the Bethlehem Area School District's lawsuit in perspective, it might be helpful to employ fantasy, to change around a few facts.

But first, we must consider the parts of this case that are not imaginary, as reported in a news story this week and in the text of the BASD's new federal lawsuit.

The district went after Diane Zhou of Bethlehem Township in retaliation for her ''vexatious'' efforts to bug school officials on behalf of her two children, one in elementary and the other in middle school.

It is alleged that she made a pest of herself while trying to get the district to obey a state law requiring that gifted children (usually the exceptionally intelligent) be accommodated just as assiduously as any other special education student.



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(That state law, as I and others have argued for years, is wantonly violated by many school officials because all the political pressure is applied to help children at the other end of the intellectual spectrum.)

Anyway, Zhou fought the BASD for failing to provide what she felt was adequate for her children, both of whom are gifted and one of whom also has an anomaly (not identified) that qualifies the child as a special education student under federal law.

''The parent,'' snorts the district's federal lawsuit, ''has a pattern and a history of requesting multiple meetings to develop programs for the students under federal and state law,'' and she refused to accept garbage offered by the BASD (although the complaint did not put it quite that way).

Furthermore, says the complaint, Zhou, whose first language is Chinese, requested an interpreter and a translation of some documents, at a cost of nearly $40,000 for just one hearing.

She also sought 22 due process hearings for her children over an eight-year-period. That represents 22 separate lawsuits filed against the district.

Her ''vexatious'' conduct was ''deliberately designed to harass, annoy and waste funds and assets of the district,'' the complaint alleges, and it all represented an evil scheme by Zhou to get the district to pay for a private school as the only way to get rid of her.

It was stressed that other governmental bodies, notably a state appellate court, sided with the district's power structure. If you are familiar with the horrendous reputation of Pennsylvania's appellate court system, that may not cut too much ice.

Now, I am not ordinarily warmly disposed toward people who file blizzards of lawsuits to get what they want, and 22 lawsuits against the BASD seem a bit much.

However, I cannot help but wonder what would have happened here if some of the facts were shuffled in a flight of fancy.

For example, picture a family that is not of Chinese descent. It is a Hispanic family and the children are special education students, but not for being exceptionally intelligent. They have intellectual disabilities.

So school officials sic their lawyers on the Hispanic mother because she bugs them too often in efforts to get help for her children. She demands that school officials obey the law that requires special accommodations for special education students. She also asks for a Spanish language translator to help her wade through the complexities of meetings with school bureaucrats, and she requests that a transcript be in Spanish.

Can you imagine the uproar if a school district sued her for being so uppity?

We'd have angry crowds marching through the streets. Activists would call for the scalps of school officials and their lawyers. There would be peals of righteous indignation from here to Harrisburg.

Zhou, however, is of Chinese descent, and Asian-Americans are often regarded as politely acquiescent. Their children are often among the best academic students, but are lousy football players, making them undesirable in the eyes of school officials. Consequently, they lack the political clout of other minority groups.

In the lawsuit, the BASD is represented by its solicitor, Donald Spry, and sidekick Kristine Roddick, so I asked them about that $40,000 burden Zhou tried to impose on the district for a transcript in Chinese. How much, I asked, does the BASD spend each year on special accommodations for people whose first language is Spanish?

''I do not know that number,'' Roddick said, but she promised to ask school district officials to look into it.

When Hispanic parents demand special accommodations for their kids, I asked, how often has the BASD sued them ?

''I don't know that we've ever had that,'' Spry said. " [The BASD] never filed a lawsuit like this one.''

I am not saying that Zhou is not a pain in the neck, or that she has not gone overboard in trying to bug school officials.

Most emphatically, I am not saying there is anything wrong with school officials providing special accommodations for Hispanic students and their families.

I am saying there is no way the BASD would get away with such a lawsuit, if aimed at a family in a minority group with more political clout. If I am right about that, this suit represents craven bigotry.

paul.carpenter@mcall.com 610-820-6176