Asked almost 2 years ago - Inglewood, CA


Attorney answers (4)

  1. Janina Dawn Botchis

    Contributor Level 10


    Lawyer agrees

    Best Answer
    chosen by asker

    Answered . There appear to be a number of issues that could come into play depending upon the details.

    Questions that you should contemplate:
    Does your child have an IEP?
    Was your child suspended? expelled? Was there an MDR?
    What precisely do you mean when you say that your child's classroom was "moved"?

    I offer a free consultation, as do a number of other education attorneys on this site. Hopefully we can either assist you or point you in the right direction.

    While I am an attorney and I practice in the area of special education the answers that I provide in this forum... more
  2. Hans Albert Gillinger

    Contributor Level 15


    Lawyer agrees

    Answered . You provided too little information for any answer to help much at all. That your child's classroom was moved does not necessarily require your consent. A change of placement requires your consent, but changes in location or classrooms are not always considered a change in placement
    OSEP: The IDEA does not define a change in placement, although OSEP has stated that a change in location should be considered a change in placement for purposes of triggering procedural safeguards (34 C.F.R. §300.505 ) if it substantially or materially alters a student’s educational program. OSEP stated that "change in placement" means a change in the substance of the program itself (whether the services are of the same type and quality), and "refers to a situation in which a student's educational program is materially altered.” In Letter to Fisher (1994), OSEP responded to a question from the Tennessee Department of Education whether a change in schools would constitute a change in placement for purposes of the notice and hearing provisions of the IDEA when the educational program stated in the IEP remains the same and the only change was the physical location where the services would be provided. The change was occasioned by the closing of a school for violation of the LRE element of the IDEA. According to the letter, determination of whether a "change of placement" has occurred should be analyzed on a case-by-case considering: (1) whether the educational program in the IEP has been revised; (2) whether the child will be educated with nondisabled children in both academic and nonacademic settings; (3) whether the same opportunities to participate in nonacademic and extracurricular services exist; and (4) whether the new placement option is the same option on the continuum. If it is determined that the change in placement involves only a change in location—for example, the school or facility, and not a corresponding change in program (same level and quality of services) , the formal notice requirements of 34 C.F.R. §300.505 do not apply. However, OSEP did state that the LEA is required to use its normal notification procedures to inform parents of the change in program location. In such a communication, the LEA may wish to provide the parents with an explanation of why in its view the change in location would not substantially or materially alter the student’s educational program. OSEP also stated that once the IEP team selects the option on the continuum and the location of the school or facility in which the pupil’s IEP will be implemented, the assignment of a particular classroom or teacher can be an administrative determination.
    California special education law defines placement more narrowly than federal law, which does not specifically define “educational placement.” California special education law specifically defines “educational placement” as “that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to an individual with exceptional needs, as specified in the individualized education program.” 5 C.C.R. §3042(a). In California, the issue of whether a change in location constitutes a change in placement often comes up in the context of “stay-put” orders and interdistrict transfers.
    Courts created the “school closure” exception to enable districts to manage their costs and allow districts flexibility in administering their programs. Under the “school closure” exception principle, when a school has closed and is thus unavailable as a stay-put placement, an LEA is obligated to place the student in a program similar to his/her prior placement, with the requirement that the new program continue to implement the the student’s IEP. (See McKenzie v. Smith, 771 F.2d 1527, 1533 (D.C. Cir. 1985); Weil v. Board of Elementary and Secondary Education, 931 F.2d 1069 (5th Cir. 1991)).
    Good luck!
    Hans Gillinger
    Law Offices of Bonnie Z. Yates

    This is not legal advice and the within response does not create an attorney client relationship between this... more
  3. James Victor Kosnett


    Contributor Level 8


    Lawyer agrees

    Answered . The first step is to get the child back in school. If you like the former school, despite its flaws, then we can fight to get her re-enrolled there, and request a new IEP. Otherwise you should choose a school of which you approve, as well as a second and even a third choice, in case the school you like is over capacity (and even then things can be arranged sometimes). Then allow your attorney to negotiate a placement with the District. The next step would be to request an IEP at the new school. Finally, we would evaluate your damages and consider filing a government tort claim, which must be filed no later than 6 months from the date of the wrongdoing.

  4. Rixon Charles Rafter III

    Contributor Level 20

    Answered . What were you looking for in terms of answers: guidance for proceeding against the school? Most immediate steps to get her back in school? You did not indicate what you mean by 'kicked out'--expelled? suspended? withdrawn? Was the school private or public? How did the school refuse help? Does your daughter have an IEP?

    Recommend you repost with the who, what, when, where, and why kinds of details--better yet, sit down with an education attorney in your location and let that attorney review all the facts and circumstances and see if the two of you can address near-term actions and long term strategies that benefit your child.

    READ THIS BEFORE CALLING OR EMAILING ME: I am licensed to practice before the state and federal courts in Virginia.... more

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