Judge: Shawnee Mission violated special ed law. It must pay $400K of family’s legal fees
After three years of litigation, a federal judge has ruled the Shawnee Mission school district violated special education law and failed to provide needed services to a boy who has autism.
Under the 84-page ruling, the district must provide several remedies, including paying for outside professionals to reevaluate the elementary student, hiring a specialist to develop a new individualized educational program, or IEP, for the boy, and contracting with an independent behavior analyst.
The district will bear the cost for those outside services, after already incurring $430,000 for its own legal fees in the case, according to data provided to The Star through an open records request.
The district also is paying $400,000 of the attorney fees for the Westwood parents, says a settlement agreement provided to The Star.
“Ultimately, almost a half-a-million dollars was spent on this,” Natalie Beer, the boy’s mom, said in an interview. “What could that money have done for all of these other kids? Why do you have money to fight these children that need services, but you don’t have money to just give them services? It’s absolutely kind of ridiculous. What does that say about our culture?”
The Beers’ attorney, Matthew Rogers, told The Star that it’s rare in Kansas for a special education case to go this far, all the way to a ruling in federal court.
“It takes a strong family to litigate a case as long as this case took to litigate. And kudos to the Beers for standing firm and advocating for their rights,” Rogers said.
The Beers, whom The Star profiled last year, have argued that Shawnee Mission failed to appropriately evaluate their son for special education and provide adequate services, both before and after he was diagnosed with autism spectrum disorder. They said their son was operating under an IEP based on faulty data and an evaluation done when he was in kindergarten.
Their son is now entering fifth grade.
In 2020, the couple filed a due process complaint against the district, alleging that Shawnee Mission violated the Individuals With Disabilities Education Act, denying their son his right to a free, appropriate public education.
A hearing officer — a third party attorney who is trained to conduct special education hearings and is usually assigned by the school district — largely sided with the Beers. And a review officer agreed with the majority of that ruling, ordering the district to provide several remedies, including hiring the outside experts to support the student.
The district has continually denied the Beers’ claims, saying in court records it ”employed extraordinary efforts” to develop an appropriate special education program for the child and meet the various demands of the family. Shawnee Mission appealed the decision in federal court, saying it was “harmed by the unsupported findings and conclusions issued.”
The Beers also appealed, arguing the services awarded for their son did not go far enough.
Now U.S. District Judge Daniel Crabtree has ruled that the district did violate special education law, by failing to properly evaluate the student and implement services, while relying on “outdated” and “insufficient” data.
“I feel confident now,” Beer said. “To see now that this is how things should have been done. That’s a good fight. And I want my son to know that we stood up for him. Maybe he won’t recognize it now, but maybe when he’s older he’ll see that.”
District spokesman David Smith told The Star in an email that, “it would not be appropriate for the district to comment on a legal matter concerning the education of a specific student.” The judge did agree with the district that it met its “child find” obligations under federal and state law, which requires schools to do a timely evaluation of students they believe may have disabilities — a point the Beers fought in their appeal.
The Star is not naming the student, who is only referred to by his initials in court documents.
A difficult start at school
Beer said her 10-year-old son is a pro with computer software, spending time designing his own video games and a 3D model of a zeppelin. And he’s recently been captivated by his family tree, researching his roots and connecting with distant relatives on Ancestory.com.
But while he thrives when engaged in his passion projects, school has been difficult for him from the beginning. Concerns were first raised by a teacher in a district summer program in 2017, before he entered pre-K. The teacher said the boy had difficulty following directions, withdrew from his peers and would need additional support the following school year.
That fall, the district agreed to evaluate him to see if he was eligible for special education services. Special education staff determined at the time that the student did not qualify, and Beer accepted that decision, relieved that the team didn’t find anything wrong with her son.
An outside expert later testified that she felt the evaluation was inadequate given the student’s struggles. And the boy’s behavior problems persisted at school, raising concerns.
This took place during a turbulent time for Shawnee Mission’s special education department. Critics claimed the department was mismanaged, pointing blame at former superintendent Jim Hinson and then-special education director Jackie Chatman. They said some protocols flirted with violating the law, a concern that was substantiated in a small number of cases in a 2017 state probe.
And, special education is a difficult field that educators say is made more challenging due to decade-long underfunding in Kansas. Educators across the state have pleaded with lawmakers to increase special education funding to the level required by law, a move that Shawnee Mission has estimated would add $8 million to the district’s budget.
In summer 2018, the Beers’ son underwent genetic testing that suggested he may have autism. And the family got on the wait list at Children’s Mercy for an evaluation.
In the 2018-19 school year, their son attended kindergarten at Westwood View, and his behavioral issues continued. He reportedly bit his shirt as a nervous tick, didn’t participate or follow directions in class, and ripped up papers at his desk at the back of the room.
Beer requested the district evaluate her son to determine whether he qualified for special education services. Staff collected data over several months. But over the course of the evaluation, “the data became inconsistent and contradictory, causing a prolonged evaluation period,” court records say.
Such data is crucial for determining what interventions a student might need.
The Beers asked the district to gather more data. And staff eventually agreed the boy was eligible for special education services.
He received autism and ADHD diagnoses from Children’s Mercy in January 2019, court records say.
Beer disagreed with the district’s proposed special education plan for her son and pushed for an independent evaluation. Over the summer, the family enrolled their son in the Riley ABA and Autism Center in Kansas City, hoping to help him catch up.
She also disagreed with the proposed IEP during the fall of her son’s first grade year, arguing that it remained mostly unchanged despite her concerns and that the district still did not have baseline data to properly evaluate her son.
After multiple drafts and negotiations on what resources would be provided, the team finished an IEP that Beer consented to in winter 2019.
The court process revealed that internal emails among staff showed some had concerns that the student needed resources that Beer requested but were not offered under the IEP.
A special education teacher said in another email in January that she thought the IEP team should meet because “(t)he current plan is no longer effective.”
After staff implemented the IEP, they did not observe any progress in his behavior between December 2019 and March 2020, court records say. And after Beer learned staff had implemented changes to her son’s schedule that went against the IEP and didn’t tell her, she filed a complaint that spring.
A protracted dispute
The Beers filed a due process complaint listing several concerns and possible special education violations.
And a hearing officer in 2021 largely ruled in the Beers’ favor. He determined that the district failed to complete the student’s evaluation during the time frame required under law, unnecessarily prolonging the process to “correct evaluative errors.” He wrote that the district also failed to communicate critical information to the Beers, including data that showed their child likely had autism spectrum disorder.
The hearing officer also ruled that the district did not reasonably calculate the IEP, as it was based on unmeasurable goals and contradictory data, and failed to revise it. He wrote the district also failed to implement the IEP and track goal progression, violating federal law.
The district appealed the ruling, arguing it was not based on independent findings. When a hearing officer’s ruling is appealed in Kansas, the state education department must conduct an impartial review of the proceedings and render an independent decision.
In late 2021, a review officer affirmed much of that ruling. The officer sided with the district on a claim, saying it did satisfy its “child find” obligation requiring schools to identify and evaluate all children with disabilities.
The review officer ruled that the district must offer several remedies, among them: hire an outside specialist to develop a a new IEP, a board-certified behavior analyst and a tutor for three semesters.
Shawnee Mission appealed the ruling in federal court, arguing that there was no evidence or legal justification for the relief awarded to the Beers. And the district argued it properly evaluated the student for special education eligibility and appropriately determined his placement by developing an IEP.
The Beers also appealed, arguing that the district did not meet its “child find” requirements, and that the review officer awarded too little in relief.
Now a federal judge has affirmed the review officer’s decision, ruling that the district violated federal special education law and denied the student a free, appropriate public education.
The judge ruled the district did not evaluate the student within the required time period, conducted an “insufficient evaluation” and developed a vague IEP that the district failed to implement and monitor.
“The goals in the IEP relied on outdated data that didn’t reflect (the student’s) current levels. The IEP employed vague language that caused confusion among staff and led to (his) removal from the classroom without his parents’ consent,” the judge, Crabtree wrote.
“USD 512 failed to implement (the IEP), and it didn’t attempt to modify them when staff identified their shortcomings. And USD 512 failed to measure (the boy’s) progress adequately or provide the Beers with the underlying data.”
The judge also agreed with the review officer that the district did meet its “child find” obligations under federal and state law.
In addition to requiring the district to contract with outside experts to evaluate the student and develop a new IEP, the district also must reimburse the Beers nearly $1,500 for the boy’s placement in Riley ABA and $1,800 in private evaluation expenses. And the parties reached an agreement requiring the district to pay the $400,000 in attorney fees.
“My hope for the outcome of this litigation, first and foremost, is that (the student) receives the services they have fought for since August 2020,” Rogers, the Beers’ attorney, said. “Secondary to that, my hope is that that this will be an encouragement for school districts not to resort to years-long litigation, but to instead collaborate with the parents and find a way to resolve disputes.”
Rogers said he believes the case provides a “road map for school districts of how critical every step of the IEP process is” and “how to do it right.” He also hopes the case shows parents that, “you are, in my view and through law supporting this, one of if not the most important people in the IEP team room. And it’s OK for you to express disagreement.”
Beer called the outcome “bittersweet,” especially as she watches her son continue to struggle with depression and identity issues. But she said the family is looking forward to the start of fifth grade, hopeful that the outside experts will help ensure he is given the resources he needs.
“It was really difficult,” she said of the case. “The personal pressure, the financial stress, the what ifs and the risks. And also thinking about other families. I was a stay-at-home mom and didn’t have a full-time job. So I felt privileged to be able to take this stance. If I had been a single mother, there’s no way I would have been able to catch any of this stuff or advocate. And it’s a very difficult position to take, to fight. And not everybody has the opportunity to do that.”
She said she often hears from other families with special education students, asking for advice as they advocate for their own children.
“I know I’m not the only one. And that’s why I feel kind of like maybe it was a blessing that I got to stand up and talk about this. Because some people can’t.”
