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Parent Prevails in Due Process Hearing Against Norfolk
In March of 2009, I was hired to provide advocacy services for a woman who was the legal guardian of her nephew, a 9 year old male student. The aunt was upset because a Norfolk City Public School had suspended her child and required that she admit him to the Virginia Beach Psychiatric Center before they would even consider allowing the student back at school. The student was in the Psychiatric Center for five days and during this time the NPS district held a manifestation review determination meeting to decide if the behavior was a direct result of the student’s disability. Of course, the district decided that it was not a manifestation of his behavior.
The behavior: The student was upset at Dr. Foster, the principal at Campostella Elementary School because, according the student, Dr. Foster “grabbed him.” That night, when the student went home, he called the school and left a voice message stating that he was going to “get” Dr. Foster. The student also left a message saying that Dr. Foster was “going down” and “meet me at 3:00 after school because I am going to beat you up.” Mind you, this student was 9 years old. He had an in-utero stroke resulting in right side hemiplagia and seizure disorders. His growth is stunted, he has right side partial paralysis and walks with a gait. Comparably, Dr. Foster is about 6 foot 2, however, Dr. Foster stated he felt threatened by the student and gave the student a long term suspension. Upon the student’s release from the hospital he received a psychiatric diagnosis of Major Depression, Single Moderate, without psychotic features and a concurrent diagnosis of Oppositional Defiant Disorder. The district refused to consider the diagnosis and they ignored the crisis report produced by their psychologist who reported “student has poor coping ability to handle stress, student is depressed due to physical limitations and student has very low self esteem which impairs his judgment.” I filed a state complaint against the district, and they were found in non-compliance with the standards for Manifestation Review requirements. They were told by the state to hold another Manifestation Review hearing. I was hired after the first meeting, so I did not have first hand knowledge of the discussion. I did attend the second manifestation that VDOE required. At this meeting (which of course was tape recorded) there was no special education teacher who had worked with the student, and no school psychologist or counselor present. The Senior Special Education Coordinator, Mrs. Janice Mitchell led the meeting and very boldly on tape announced that "no data would be reviewed because all the members of the team participated in the last meeting." She also refused to review or allow members to consider the Psychiatric Center report and information. When she concluded the meeting, she sent a sheet around which had checked that all evaluations, school records and disciplinary reports had been reviewed and considered during the meeting. Of course, the parent and I objected to that and wrote on the form that none of those things had been done. At the close of the meeting, we asked for due process paper work and filed against the district. The hearing dates were spread out over 7 days starting in end of August with last day of testimony on Oct 21, 2009. The hearing was open to the public and a few people did show up to support the parent. The hearing had many (too many) explosive exchanges between the hearing officer and the city attorney, and parent attorney Mrs. Manes. decision and Part III will include hints, tips, and suggestions, on how to win a due process hearing.
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