A Capehart Scatchard Blog

Proactive Representation Part I: Knowing When to File for Due Process or Seek Emergent Relief on Behalf of a School District

By on January 30, 2018 in Special Education/504 with 0 Comments

By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

In the increasingly litigious world of special education, New Jersey school districts and Board attorneys are generally accustomed to being on the receiving end of lawsuits with parents. Yet, understanding how and under what circumstances to file for due process or seek emergent relief can be just as important to ensuring your district is legally compliant as defending a due process petition filed by a parent. Special education practitioners representing districts that are facing uncooperative parents would do well to remember one thing: when parents place the child study team in an impossible position, be proactive in your representation.

What kinds of circumstances give rise to the need for a school district to seek affirmative relief? In special education, there are several. If the parents have refused consent to allow the district to conduct initial evaluations of a student suspected of having a disability that adversely affects the child’s educational functioning, the school district should file for due process to compel the evaluations. This was the case in Washington Twp. Bd. of Educ. v. N.L., EDS 06855-17 (May 22, 2017), where the district sought and obtained emergent relief compelling initial evaluations despite the parents’ refusal to consent, in order to enable an initial eligibility determination to be made.

The same is true whenever a child is due for reevaluations that are necessary to determine the child’s level of educational functioning or develop an appropriate individualized education program (“IEP”), but the parents have refused consent. In Gloucester City Bd. of Educ. v. G.H., EDS 9165-15 (July 14, 2015), the district obtained emergent relief to conduct reevaluations for a student aging out of the pre-school disabled category, over the objection of the parents who had refused consent. There are several other cases holding similarly, including River Edge Bd. of Educ. v. V.F., EDS 5680-09 (June 1, 2009), in which the school district was granted emergent relief authorizing it to conduct a psychiatric evaluation despite the lack of parental consent.

At other times, a district must act when it feels that the student is in need of an out-of-district placement, but the parent either (a) will not sign consent to release student records to potentially appropriate out-of-district schools, or (b) refuses to cooperate in the intake and admissions process. In K.P. o/b/o K.A. v. Maple Shade Twp. Bd. of Educ., EDS 8871-09 (September 8, 2009), the district obtained emergent relief authorizing the release of student records and compelling parental cooperation with intakes at potential placements.

Before filing a due process petition or requesting emergent relief on behalf of a school district, several questions should always be asked. The first is whether the facts implicate one of the four situations in which emergent relief may be sought. Emergent relief can only be requested for issues that involve: (1) a break in the delivery of services, (2) disciplinary action, including manifestation determinations and interim alternative placements; (3) stay-put during a pending due process hearing; and (4) graduation or graduation ceremonies.  N.J.A.C. 6A:14-2.7(r).

Of these four scenarios, the first is by far the most commonly invoked when the school district is the party filing for due process. The simple fact of a parent’s refusal to cooperate is not enough. Each of the four cases cited above involved conduct by parents that caused a break in the delivery of services to the student. When parental action or inaction has compromised the district’s ability to provide a FAPE to the student, initiating a small lawsuit to obtain emergent relief now is infinitely preferable to losing a larger lawsuit later on after the student has been denied his or her right to an appropriate education. Often, the risks of doing nothing or adopting a “wait and see” approach are simply too high to ignore.

In the next segment of this series, we will delve into the mechanics of filing for emergent relief, the necessary elements that must be proven, and the proofs necessary to obtain it.


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