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On August 18, 2014, the Sixth Circuit Court of Appeals rendered a decision in N.W. v. Boone County Board of Education, which denied IDEA reimbursement to the parents of an autistic child. The parents filed the action under the Individuals with Disabilities Education Act (“IDEA”) arguing that the school district had failed to offer a “free appropriate public education” (“FAPE”) to their child, as required by IDEA.

This case involved an autistic student who had been diagnosed with apraxia. Under the student’s Individual Educational Program (“IEP”) the student had been placed at St. Rita’s School for the Deaf. However, the parents became dissatisfied with St. Rita’s program, and unilaterally removed their son and placed him in a private school in Cincinnati without the local school district’s consent.
After unilaterally placing their son in a new private school, the parents sought reimbursement of tuition and transportation costs from the school district. The school district, however, maintained that it could provide the student with FAPE. The parties attempted to mediate the placement issue for three years, without success, and eventually litigation ensued at the administrative level, and then before the federal courts.

The parents filed suit in the District Court offering two main arguments for reimbursement: (1) that the school district’s plan failed to provide a FAPE; and (2) IDEA’s “Stay-Put” provision permitted the student to continue attending the private school and required the school district to reimburse the parents for tuition and transportation expenses at such school until the dispute was resolved.

Despite finding that the parents failed to show that the school district denied their son a FAPE and that the parents unilaterally withdrew their child from the district’s schools, the court ordered the school district to reimburse the parents for the tuition and transportation costs incurred by attending the private school. The school district appealed the decision to the Sixth Circuit, which reversed the decision.

On appeal, the Sixth Circuit held that the IDEA does not permit the courts to order reimbursement absent a finding that a school district failed to offer a FAPE. The Sixth Circuit relied on the district court’s determination that the parents had failed to prove the school district did not offer a FAPE, which the parents did not appeal to the Sixth Circuit.

Moreover, the Sixth Circuit ruled that the IDEA’s “Stay-Put” provision did not apply to the student. The Sixth Circuit stated that in order to qualify for stay-put protection and reimbursement, the school district’s approval is necessary for the student to be “placed” at a school. Thus, the Sixth Circuit determined that the student had not be “placed” at the private school because his parents unilaterally enrolled him at the private school, without the school district’s approval.

Under the IDEA, a FAPE must be provided to all disabled children who are 2 to 21 years of age. A FAPE is to be provided at the public’s expense and in conformity with each disabled child’s IEP. According to the Sixth Circuit, however, a school district will not be forced to reimburse parents for expenses incurred for private schooling when the parents unilaterally enroll their child in private school, without establishing that the school district failed to offer a FAPE to the student.

The Dispatch has the story here.

The Finney Law Firm is counsel to the Smitherman for City Council Committee.  As he ran for reelection in 2013, a dark-money group called Cincinnatians for Jobs Now produced and ran hundreds of thousands of dollars in negative advertisements disparaging Council member Smitherman, encouraging voters to oppose his re-election to Council, and  promoting the election of certain other candidates for Mayor and City Council.  The shadow committee filed no campaign finance reports, which would have identified its income and expenses.

Our firm has filed a Complaint with the Ohio Elections Commission to force compliance with campaign finance reporting laws.

This week, the Ohio Elections Commission ruled on pending motions on discovery, and required Cincinnatians for Jobs Now to produce documents and submit participants to depositions, as sought by our client.

You may read the OEC order here.

SCOTUS Blog  reports here on today’s expedited interim and narrow (5-4) decision of the US Supreme Court ending “Golden Week” in Ohio, the week in which a citizen can register and vote on the same day, at least for 2014.

The order may also mean that early voting will not be permitted on most Sundays and after 5 PM leading to election day, depending on the timing of the state certiorari petition.

Ohio is somewhat unique in all the nation in judging and punishing speech in the context of political campaigns it subjectively deems false.  As our blog’s readers know, our firm has been at the forefront — successfully so far — of litigation to get Ohio out of this business entirely as an infringement of core First Amendment liberties.

Notwithstanding clear pronouncements from the U.S. Supreme Court that government should not be in the business of judging and punishing political speech claimed to be false, last week, the Ohio Supreme Court piled on in this genre in its decision to punish Judge Colleen O’Toole from Ohio’s 11th District Court of Appeals for the audacity during her 2012 election campaign to call herself “Judge.”  (When Judge O’Toole ran for election that year, she was not on the bench as she had been defeated in a 2010 re-election campaign.)  You may read about that decision in the Cleveland Plain Dealer here and you may read the decision itself here.  Court News Ohio has the story here.

First, let’s start with the “truth” of the “statement” by Judge O’Toole in calling herself “Judge.”  As the Internet amply tells us here, here and here, it is entirely proper and appropriate to address a former Judge as “Judge” for the remainder of his or her life.  It is an honor they rightfully have earned.  Thus, there is no falsehood in others or the Judge himself using the title “Judge.”  Rather, it is entirely polite and proper (or at a minimum, even if not preferred, it is a commonly accepted title).

Still, the Ohio Supreme Court has elected to discipline Judge O’Toole for her self-identification as “Judge” during her 2012 campaign to return to the bench.

In the decision, the Court did narrow the rules applicable to Judges, declaring unconstitutional that portion of the rule that prohibited dissemination of information that is true, but “deceiving or misleading” to the average listener.

Judge O’Toole was formally reprimanded, fined $1,000 and ordered to pay $2,500 in attorneys fees and costs for her prosecution.

After a successful trip to the United States Supreme Court, and a victory before Judge Timothy Black on the Federal District Court, the legal battle that started in September of 2010 will continue.

Yesterday, the Ohio Elections Commission voted to appeal this month’s decision to Judge Timothy Black declaring Ohio’s False Political Statements law unconstitutional and enjoining its enforcement.

It is unclear whether the Commission will seek a stay of the injunction to allow it to continue about its business while the appeal is pending.

The last journey through the Court of Appeals and US Supreme Court took more than 2.5 years.  The path and timing of this appeal is expected to be as prolonged.