ELC-PA represents the court-appointed Education Decision Maker (“EDM”) for Y.C.Q., a hard-working and courageous high school student in foster care who desperately wants to learn. Following two successful due process hearings litigated by ELC-PA attorneys, Chichester School District was ordered to pay for an independent educational evaluation (IEE) and to create an Individual Education Program (“IEP”) for Y.C.Q., an English learner who was recognized by the Hearing Officer as a student with a disability who had been unlawfully deprived of special education services.
Chichester School District refused to comply with either order and sought to appeal both decisions. The EDM also challenged the second decision for failure to provide sufficient compensatory education services.
ELC-PA promptly moved for automatic injunctive relief invoking Y.C.Q.’s right to pendency, or “stay-put” to obtain enforcement of the decision while appeals are pending. The District Court denied this request: resulting in Y.C.Q. continuing to be deprived of any special education services. In September, ELC-PA secured expedited review of an appeal to the Third Circuit challenging the denial of pendency. This interlocutory appeal has been fully briefed, including a powerful amicus brief submitted by the Council of Parent Attorneys and Advocates (COPAA), a national leader in special education litigation, which was joined by the National Disability Rights Network (NDRN), the ARC of Greater Pittsburgh, Disability Rights Pennsylvania, Juvenile Law Center, The Public Interest Law Center, and KidsVoice. The amicus brief highlights the district court’s error of failing to uphold the child’s right to receive special education services while the case makes its way through the court system.
After the IEE-related appeal was denied, ELC-PA sought and secured enforcement of the hearing officer’s now-final decision through the Bureau of Special Education of the Pennsylvania Department of Education, as authorized by the Individuals with Disabilities Education Act (IDEA). The state properly directed Chichester to pay for the student’s IEE. However, Chichester refused to comply but subsequently obtained an injunction in the remaining case before the district court prohibiting the state from enforcing the hearing officer’s final decision. In response, ELC-PA filed a second interlocutory appeal along with pro bono partners at Dechert LLC appealing the district court’s decision to enjoin the state’s enforcement of the Hearing Officer’s decision. This appeal is also now pending before the Third Circuit. In support of this second appeal, pro bono counsel from Troutman Pepper submitted a compelling amicus brief in support of our position on behalf of nine national and statewide organizations which advocate for children with disabilities. Y.C.Q. is now in her last year of high school and in the absence of judicial intervention she may be improperly graduated without receiving the free appropriate public education to which she is entitled.
Her case presents important equity issues for children with disabilities who are most marginalized by our education system because they commonly lack access to independent expert and rely on the reimbursement mechanism to obtain an independent evaluation. These children are also more likely to be deprived of their right to pendency. The EDM’s brief and amicus briefs filed in these matters highlight the critical importance of pendency and prompt access to special education as well as the state’s authority to enforce a hearing officer’s decision and maintain an accessible state dispute resolution process. We are extremely grateful to our pro bono partners at Dechert and Troutman Pepper for their extraordinary work on these matters and our colleagues and partner organizations like COPAA who submitted such strong amicus briefs.