Chattanooga Times Free Press

System appeals ruling on disability rights

- BY ZACK PETERSON STAFF WRITER

Facing a potential bill for $108,612 of education expenses, Hamilton County Schools attorneys on Friday asked a federal appeals court that ruled against them in a student disability rights case to reconsider its decision.

Attorney Scott Bennett said he’s asking the U.S. Sixth Circuit Court of Appeals to clarify two things in the case of Luka Hyde, a 15-year-old Chattanoog­an who was moved out of a classroom in 2013 because of his Down syndrome and sent to Red Bank Elementary, where he would spend half his days segregated from general education students. Hyde, then a second-grader, now attends The Montessori School.

“First, under what circumstan­ce is it appropriat­e for teachers to consider a more restrictiv­e placement for a child when he or she is getting only a marginal benefit from the regular education classroom?” Bennett wrote in an emailed statement. “Certainly, teachers have a duty to educate a child in the least restrictiv­e setting, but they also have a duty to provide the child with a meaningful education. What happens when these two duties are in conflict?

“Second, if a teacher makes a good faith error in judgment regarding where a child should be educated, is that mistake the legal equivalent of discrimina­tion?” he said.

The odds of Bennett’s 13-page petition swaying the appeals courts aren’t incredibly high: Earlier this month, the court affirmed a local judge’s ruling that Hamilton County Schools violated federal civil rights laws prohibitin­g discrimina­tion against disabiliti­es when it moved Hyde. Plus, it doesn’t usually accept petitions calling for a rehearing or clarificat­ion on an issue.

Hyde’s case reached a similar conclusion in Chattanoog­a’s U.S. District Court, where his family filed suit in 2014. Here, U.S. District Court Judge Curtis Collier ruled against Hamilton County Schools but said Hyde’s family couldn’t be reimbursed for the alternativ­e, private education they sought. Because the appeals court disagreed and ruled Hyde’s family actually

should be compensate­d for that education, Collier will preside over whatever agreement attorneys reach in the matter.

Between five years of education and a personal assistant, Hyde’s family says the bill is $108,612, according to an affidavit filed Friday in Chattanoog­a by their lawyer, Justin Gilbert. It’s unclear to date if the school

district’s insurance policy will cover that claim.

Federal law requires schools to educate students with disabiliti­es alongside those without them to the maximum extent appropriat­e. The concept is referred to as mainstream­ing, and teachers, parents and experts come up with individual­ized plans for each student to fit their needs.

In his 13-page motion Friday to the appeals court, attorney Bennett said teachers acted in good faith and tried to do what they viewed was best for Hyde. Bennett wrote that Collier acknowledg­ed this, too, in previous hearings. Previous cases have set different standards for teachers to follow, he said, and the appeals court, which determines legal precedent for Tennessee, Michigan, Kentucky and Ohio, should clarify for future cases.

Furthermor­e, Bennett argued, a violation of the federal laws shouldn’t be equivalent to discrimina­tion if the teacher acts in good faith.

“HCDE appealed [Collier’s] decision [in December 2017] on the basis that [the federal law] is fundamenta­lly about the education of students with disabiliti­es; it does not address the intentiona­l discrimina­tion of individual­s with disabiliti­es,” Bennett wrote in his motion. “Accordingl­y, an error in placement that violates the [federal law’s] mainstream­ing requiremen­t ought not to constitute a per se violation … where that error is made in good faith.”

Recently, the district and partner organizati­ons have developed a plan that calls for the end of comprehens­ive developmen­t classrooms, allowing students to attend their zoned schools or schools of choice, as well as improving communicat­ion among the district, families and caregivers of students with disabiliti­es.

But Hyde’s attorney, Gilbert, has previously said his client doesn’t get to enjoy this change in policy, and that Hamilton County has continued to downplay Hyde’s capabiltie­s.

“Four federal judges and two experts in Down syndrome have informed Hamilton County that [Hyde’s] abilities are far greater than it is willing to admit,” he said. “The necessary shift involves asking what a child can do, not pitying what one thinks he cannot. In our view, that change involves the head and heart, not more legal appeals.”

 ?? STAFF FILE PHOTO BY TIM BARBER ?? Deborah Rausch talks about special education beside her son, Luka Hyde, at their home in Chattanoog­a on July 20.
STAFF FILE PHOTO BY TIM BARBER Deborah Rausch talks about special education beside her son, Luka Hyde, at their home in Chattanoog­a on July 20.

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