Potential Liability Risks for a School District’s Failure to Act When it has Knowledge of a Suicidal Child in its Population
Special Education Liability
A school district can be held liable when it fails to serve a student within its population when it has knowledge that a student is or has been suicidal.
This was the case in the March 2002 impartial due process hearing decision in case of KJE vs. Oakwood Community Unit School District #76 (Case No. 25-553).
KJE had been diagnosed since October 1999 with a number of mental illnesses. In October of 1999, the parents of KJE reported to the school principal that their daughter had informed them that she had planned to kill herself. The principal failed to request or even suggest a case study evaluation for special education services or to offer any services whatsoever to KJE. In December 1999, KJE once again threatened to kill herself and also threatened to kill her mother after becoming violent with her parents. She was subsequently hospitalized and diagnosed with major depression. On December 31, 1999, KJE attempted to commit suicide a second time. She subsequently informed the school principal that she was continuing to have suicidal feelings. Soon thereafter, she made a third suicide attempt and was admitted to an inpatient psychiatric unit. After her third psychiatric hospitalization, KJE’s parents met with the school principal and informed her of the suicidal history of their daughter. The principal offered no services to KJE and did not refer her for a case study evaluation. At age 14, KJE was eligible to attend the school district’s high school, which also refused to provide appropriate special education services. The parents were forced to home school KJE while they searched for an appropriate residential placement.
In November 2001, the school district conducted an IEP meeting to discuss special education eligibility and placement. Despite an overwhelming amount of evidence that KJE suffered from a severe emotional disturbance, the school district team decided that KJE was ineligible for special education services. During the session, the team’s social worker presented a letter describing KJE as being a “very real risk to herself.” But the team made no mention of KJE’s four suicide attempts, history of psychotic behavior, or socialization problems, but instead stressed that she had received passing grades in 7th and 8th grade. In determining that KJE was not eligible for special education services, the meeting notes stated that it was not possible to determine an adverse effect on educational performance since KJE was not attending classes full-time at a regular education high school setting. The parents filed for a due process hearing and moved KJE to a residential facility.
1. The school district, as its defense, claimed that KJE was not “seriously emotionally disturbed” and she was therefore not entitled to special education services.
2. The school district also claimed that KJE was not entitled to special education services because she was not failing her courses and was progressing from year to year.
3. The district further claimed that it was not required to provide a case study evaluation because the parents failed to request it.
The School District Had Adequate Knowledge To Establish That KJE Was Seriously Emotionally Disturbed
The basic tenets of IDEA are that all applicable laws and regulations require a school district to demonstrate that it properly identifies the nature and severity of a student’s suspected disability and offers the student a free appropriate public education in the least restrictive environment. In so doing, a district must act consistently with procedural safeguards. Part of these safeguards is that a school district has an affirmative duty to actively seek out and identify children in need of special education services.
The hearing officer in the KJE case emphasized the fact that the school was aware of KJE’s suicide attempts, psychiatric hospitalizations, and telephone conversations that were made between the parents and the middle school principal and the school district’s social worker. According to Federal Regulations (34 C.F.R. Sec. 300.7(a)), in order to be identified as an emotionally disturbed student, a child must be determined to have a condition exhibiting one or more of the following characteristics over a long period of time. A student must demonstrate:
- Inability to learn which cannot be explained by intellectual, sensory, or health factors; or
- An inability to build or maintain satisfactory interpersonal relationships with peers; or
- Inappropriate types of behavior or feelings under normal circumstances; or A general pervasive mood of anxiety, unhappiness, or depression; or
- A tendency to develop physical symptoms or fears associated with personal or school problems.
The hearing officer, in determining that the student met the requirements of the definition of severely emotionally disturbed, stated: “Had the local school district properly investigated the student’s academic performance, it is clear to the hearing officer that an investigation would have led to the conclusion that the student met the requirements.” The hearing officer rejected the school district’s notion that because KJE was not failing academically, she did not meet the emotional disturbance criteria.
In Township High School District #211, 24 IDELR 1059 (June 3, 1996), parents of a high school student unilaterally placed their child in a residential placement and sought reimbursement from the district. The district refused to pay because she was not “emotionally disturbed,” according to their test results. A hearing officer found, however, that there was overwhelming evidence that she was either unhappy or depressed over a considerable length time, and that her emotional state affected her academic performance.
In KJE’s case, it was clear that she had been seriously depressed, and that this depression had affected her behavior — KJE had attempted suicide on four separate occasions. Furthermore, it was clear that this depression had affected her scholastic performance. She was not failing her academic courses only because she possessed higher cognitive ability, however not how our regulations define a “educational performance”:
Educational Performance: “A student’s academic achievement and ability to establish and maintain social relationships and to experience a sound emotional development in the school environment” (emphasis added, 23 IAC 226.75).
The hearing officer rejected the notion that the school could ignore its knowledge of KJE’s suicidal tendencies and other serious emotional difficulties simply because she was not failing her academic courses, as this conveyed a profound ignorance of the regulatory definition..
There is No Requirement That a Student Must Be Failing Academically Before He or She is Entitled to Special Education Services
In the Rowley case, 458 U.S. 176, 102 S.Ct. 334, 73 L.Ed. 2nd 690 (1982), the U.S. Supreme Court noted that Amy Rowley was a deaf student who performed “better than the average child in her class and is advancing easily from grade to grade.” 73 L.Ed. 2nd at 699. In fact, Amy was receiving A’s and B’s in her classes but under the IDEA, the school district nevertheless found her eligible for special education services. The Supreme Court ruled that while the education system does not have to maximize the potential of each handicapped child, the school system’s commitment to children with disabilities requires that these children must have access to specialized education and related services. And, these services must be individually designed to provide significant educational benefits to each handicapped child.
A child cannot be excluded from special education services just because he or she is not failing academically. The Supreme Court stated: “We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a free appropriate public education. 73 L.Ed. 2nd at 1710.
Hearing officers and judges have concurred in cases throughout the country. In Cornwall Central School District Board of Education, 17 E.H.L.R. 10239 (June 6, 1991), the parent of a 14-year-old child appealed a decision that their child was not seriously emotionally disturbed. The review officer held that the child’s emotional difficulties had, in fact, impacted significantly on his educational performance even though the child had not failed any courses. The child also experienced physical symptoms at school. The hearing officer determined that the child met the criteria for SED, but due to the fact that no observations had been done in the classroom, the final decision on his eligibility would have to wait until observations were complete.
In Manhattan Beach Unified School District, 34 IDELR 249 (March 14, 2001), an administrative hearing officer ruled that the parents of a 16 year old with serious emotional difficulties who was unilaterally placed in a private facility were entitled to reimbursement by the school district. In this case, as in the case of KJE, the student had never been found eligible for special education. At the time of the hearing she was living in a therapeutic boarding school. When the student was in eighth grade she began exhibiting disturbing behaviors that were in many ways similar to those exhibited by KJE. She, like KJE, was hospitalized in a psychiatric facility and had made a suicide attempt. The school district in Manhattan Beach found that the student did not meet the eligibility criteria for special education in part because in the district’s view, she was doing well academically.
The hearing officer in Manhattan Beach disagreed with the school district, finding that the student was seriously emotionally disturbed in light of the fact that she demonstrated a general pervasive mood of unhappiness and depression; exhibited characteristics of emotional disturbance for over 6 months; exhibited these characteristics in home, school and therapy environments; and was not achieving “mastery” in her classes — her class work was sufficiently affected by her disability. The hearing officer concluded that because the school district did not find the student eligible for special education, it did not provide a free appropriate public education and ordered the school district to reimburse the parents for their unilateral private residential placement.
Two other cases establish the principle that a student need not be failing academically before he or she is entitled to special education services:
1) In Yankton School District vs. Schramm, 93 F. 3rd 1369, 24 IDELR 704 (8th Cir. 1996), a child with Cerebral Palsy who was achieving high marks in school still qualified as a child in need of special education under IDEA, when the child continued to need specially designed instruction and related services;
2) In Schoenfield v. Parkway School District, 138 F. 3rd 379, IDELR 845 (8th Cir. 1998), a court found that academic performance at or above age level does not necessarily mean a child is not disabled or that the education satisfies the standard of appropriateness.
A School District Must Provide a Case Study Evaluation Even If Parents Do Not Request It
The hearing officer in KJE rejected the notion set forth by the district that the they were required to provide a case study evaluation “because the parents did not request one.” The hearing officer found that by failing to investigate KJE’s special needs, the school district failed to comply with the most elementary requirements of “child find” as outlined in the Illinois Administrative Code. Under the “Child Find” provision, each school district is responsible for actively seeking out and identifying all children from birth through age 21 within the district who may be eligible for special education and related services. The hearing officer therefore ordered the school district to pay for private residential placement.
In general, the KJE case shows that knowledge by a school district of a student’s suicidal ideation and other serious emotional difficulties is enough to require a case study evaluation. Moreover, a school district will be found liable should it choose to ignore these therapeutic problems simply because a child is progressing from grade to grade.
Personal Liability of School Officials
There are two relatively recent cases which establish that it is possible to assign personal liability to selected school officials when serious behavioral difficulties are known to the school district, but are ignored.
In November 2000, the Superior Court in Connecticut awarded more than $67,000.00 to a special education student who was attacked by another special education student, based on the evidence that the assistant principal had reason to know of the potential harm to the victim. Kendall B. West Haven Department of Education, et. al., 33 IDELR 270 (Conn. Superior Ct). In this case, a special education student suffered from frequent harassment and bullying from another student. The student told his parents about the harassment, and they told him to inform school officials. The student told the assistant principal of the other student’s actions, which included racial epithets, spitting, and pushing. The assistant principal stated that would take care of the matter, but she took no action. She did not inform other school officials and she left the premises for the day shortly after meeting with the student. Later that day, the student was attacked by the other student in the cafeteria. The student victim’s head hit the floor, knocking out his two front teeth and breaking his jaw on both sides.
The court found that because the assistant principal was informed of the previous attacks, she had an affirmative duty to take action to prevent further attacks. The court noted that “the evidence unambiguously establishes that she did nothing.” Given the nature of the inaction, the assistant principal was not shielded by the doctrine of governmental immunity. She knew of “likely imminent harm to an identifiable person,” and was therefore liable for negligence.
In a Federal District Court action, a judge has ruled that a Santa Barbara high school district administrator was personally liable for damages under Section 1983 of the Federal Civil Rights Act for violating a mother’s right to obtain a free appropriate public education for her special needs son, as required by IDEA. Goleta Union Elementary School District vs. Andrew Ordway, CD 99-07745 (CD CAL, verdict December 5, 2002). The mother of the special needs student alleged that the director of student services for the Santa Barbara High School District placed her son in a new school without investigating whether to new school met the student’s special education needs.
The school official had moved for summary judgment, maintaining that she could not be held personally liable under Section 1983 for a violation of IDEA, because “mere negligence on the part of a government official is insufficient to support such a claim.” The court held that a showing of heightened culpability is not required to establish a violation of IDEA — “…all that is required to establish a Section 1983 claim is proof of a violation of IDEA under color of law.” The court determined that the official denied the student a free appropriate public education by failing to offer him an appropriate placement. This official’s conduct constituted a violation of IDEA. A trial on the parent’s request for damages has been scheduled.
Once a determination is made that a school district violated IDEA by not acting upon knowledge that it had in relation to special needs of a student such as suicide attempts or suicidal ideation — there is school liability and, in certain instances, personal liability of school education personnel for damages resulting from the misconduct.