High Court Upholds Ruling School Programs Must Meet Needs of Children with Autism

Oct. 11, 2005 -- The United States Supreme Court today refused to hear the appeal of the Hamilton County (Tennessee) Department of Education in a landmark “autism” case that had been brought under the federal Individuals With Disabilities Education Act (“IDEA”).

This decision will affect how children with autism, as well as those with other disabilities, receive educational services in public schools. The decision makes clear that parents must be meaningfully included at their child's IEP meetings, that educational decision must be personalized and individually tailored to meet the child's needs, that educational programs may not be “predetermined” or the result of an official or unofficial policy by the school district, and that cost cannot be the driving factor in deciding what kind of program a child should receive. The Sixth Circuit also held that educational programs must be “meaningful”.

Hamilton County Schools had filed a petition for a writ of certiorari seeking permission from the Supreme Court to appeal a unanimous decision that the Sixth Circuit Court of Appeals had rendered in favor of a Chattanooga boy diagnosed with autism, Zachary Deal.

Gary Mayerson, of Mayerson & Associates and a member of the Autism Speaks board of directors, represented the Deal family. “Hamilton county took the position that a 'meaningful benefit' standard was too much to expect from a school district,” said Mayerson. “We disagreed and took the position that a meaningful benefit test is what is required pursuant to earlier Supreme Court precedent in order to individualize a child's IEP. As a results of this decision, parents across the country are able to invoke the Sixth Circuit decision for its important principles to secure appropriate intervention programs for their children.”

Mayerson added that parents should not hesitate to bring a copy of the Sixth Circuit's decision to their IEP meetings if they believe that their school district is not upholding the letter and spirit of the IDEA statute. A copy of the decision is available at www.mayerslaw.com.

The Sixth Circuit ruled unanimously in December, 2004, that the Hamilton County Schools had deprived Zachary of his statutory entitlements under IDEA by, among other things, unilaterally “predetermining” Zachary's educational program, perpetuating an unwritten “policy” that effectively precluded the individualization of Zachary's education plan, failing to meaningfully include Zachary's parents in the development of Zachary's educational plan, and failing to follow mandatory procedures set out in the IDEA statute.

The Sixth Circuit's decision notes that at one meeting with Zachary's parents in 1999 called to develop Zachary's education plan, Zachary's parents were told by Hamilton County administrators that they were not allowed to ask any questions. The court's decision also reveals that the Hamilton County school system maintained a guide entitled “How To Avoid Parents' Demands For Lovaas [ABA]” (the intervention that Zachary's parents asked the Hamilton County Schools to consider).

At meetings with Zachary's parents, Hamilton County administrators communicated that “the powers that be” would not even consider funding the Applied Behavior Analysis (ABA) intervention that Zachary's parents had requested. ABA intervention involves the delivery of intensive one-to-one teaching, where tasks and skills are broken down into small components, and then taught and “reinforced” systematically over time, with data collection to demonstrate effectiveness and reliability.

In view of Hamilton County's conduct, the Sixth Circuit held that the Hamilton County schools had deprived Zachary of his procedural statutory entitlements under IDEA. In framing relief, the Sixth Circuit held that Zachary's parents were entitled to reimbursement from the Hamilton County schools for the cost of Zachary's Applied Behavior Analysis (“ABA”) intervention program that was delivered both at home and in the mainstream preschool that Zachary was then attending.

The original trial in Chattanooga, held before Tennessee Administrative Law Judge A. James Andrews, lasted for 27 days and consumed tens of thousands of pages of testimony and documentary evidence presented by approximately two dozen witnesses, including several autism experts. Significantly, one of Hamilton County's own expert witnesses, Dr. Eileen Schwartz, admitted that Zachary needed the ABA intervention that Zachary's parents were asking Hamilton County to provide.

Zachary won the initial trial in a decision that issued just days before the events of September 11, 2001. Judge Andrews made credibility findings and found that many witnesses employed by the Hamilton County Schools were lacking in credibility.

In the Fall of 2001, the Hamilton County Schools prosecuted an appeal to the United States District Court, sitting in Chattanooga. With the permission of the District Court, Hamilton County's lawyers commenced a new round of deposition and document discovery in California, Ohio, Tennessee and New York.

After a two-day “additional evidence” trial before the District Court in which the Hamilton County Schools presented four new expert witnesses who had been flown in from California, the District Court reversed Judge Andrews' August, 2001 Decision and held for the Hamilton County Schools. The District Court also awarded “costs” against the Deal family. Zachary and his parents then prosecuted an appeal to the Sixth Circuit Court of Appeals, sitting in Cincinnati, Ohio. Zachary's appeal was argued in August of 2004 before a three judge panel.

As part of the Sixth Circuit's December, 2004, decision unanimously reversing the Chattanooga District Court on a series of material procedural violations, the Sixth Circuit directed a remand for the district court to consider the issue of any substantive harm that the Hamilton County Schools had caused by its conduct. In this connection, the Sixth Circuit, relying upon earlier Supreme Court precedent, held that children with disabilities are entitled to a “meaningful educational benefit” that considers and takes into account the child's potential and individual needs.

In its petition for a writ of certiorari, the Hamilton County Schools argued that a “meaningful benefit” standard was unduly burdensome and that the Supreme Court should consider it legally sufficient if a school district's educational plan is calculated to produce at least “some” benefit. Hamilton County's counsel also contended that there was a “split” among the circuits on this issue. In denying Hamilton County's petition for a writ of certiorari, the Supreme Court declined to hear these arguments. This apparently is the very first time that an “autism” case has reached the Supreme Court level.

Based on publicly available documents and interviews with Hamilton County administrators, the local media in Chattanooga have reported that even before Hamilton County's efforts to seek Supreme Court review, Hamilton County had spent at least $2.3 million dollars paying two powerful law firms to fight the Deal family. According to these same news reports, at least $500,000 of such sum went to pay Hamilton County's expert witnesses.

Ironically, Zachary's ABA program is reported to have cost less than $100,000 annually and Zachary's lawyers advise that, collectively, they have recorded fees that are a mere fraction of the millions of dollars that Hamilton County has spent so far fighting Zachary and his parents.

According to Zachary's counsel, a remand hearing will soon be initiated with the Chattanooga District Court to fix the precise amount of the reimbursement relief that Zachary's parents are entitled to, as well as to fix the amount of the costs and attorneys' fees that Zachary's parents and counsel are entitled to recover by reason of Zachary's status as a “prevailing party” under the IDEA statute.

The Hamilton County schools were represented at the various stages of the litigation by Charles L. Weatherly, Carter G. Phillips, Thomas W. Dickson, Kathleen Sullivan, Jennifer Fain, Wendy Jacobs, Joseph R. Guerra, Thomas A. Burns and Gary D. Lander.

Zachary and his parents were represented at both trials and before the Sixth Circuit by Gary Mayerson and Christina D. Thivierge of Mayerson & Associates, and Theodore Kern as local Tennessee counsel. Zachary's lead counsel at the Supreme Court level included Steven M. Pesner, Edward Lazarus and James E. d'Auguste of Akin Gump Strauss Hauer Feld.