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An academically gifted child with an emotional-behavioral disability is not eligible for special education under the Individuals with Disabilities Educational Act, the 2nd U.S. Circuit Court of Appeals has ruled. In a case of first impression in the circuit, J.D. v. Pawlet School District, 99-9263, the court found that under Vermont’s federally approved special education regulations, an exceptional student’s emotional difficulties were not severe enough to have an “adverse effect on educational performance.” The Vermont Department of Education’s Special Education Regulations (VSER) implement the Individuals with Disabilities Educational Act (IDEA), 20 U.S.C. Section 1400, which provides federal funding to help children with disabilities. One of the definitions of “children with disabilities” contained in regulations promulgated under IDEA is children who need special education because of a “serious emotional disturbance.” A serious emotional disturbance is shown by one or more of several characteristics such as “inappropriate types of behavior or feelings under normal circumstances” or an “inability to build or maintain satisfactory interpersonal relationships with peers and teachers.” Under the regulations, a child is considered to suffer from a serious emotional disturbance if he or she evidences those characteristics over a long period of time and of such a severity that there is an adverse affect on the child’s educational performance. Despite suffering from behavioral and emotional problems, J.D., a teenager, was a stand-out in school who consistently achieved high grades, scored high on IQ and basic skills tests, and was taking classes above his grade level. In 1996, J.D.’s parents asked that he be evaluated for special education. A psychologist found that, despite his highly developed skills, J.D. suffered from “frustration, boredom, alienation, apathy, and hopelessness,” which led to passive resistance and aggressive behavior in school. The psychologist classified J.D. as a student with “an emotional and behavioral disability” and recommended that he be given counseling and placed in a more challenging academic environment. But the school district, applying Vermont’s regulations, found that J.D.’s disability was not bad enough to adversely affect his educational performance. The next step in the process was a district evaluation to determine whether J.D. was qualified for protection under Section 504 of the Rehabilitation Act, 29 U.S.C. Section 794. The school district determined that J.D. was a “qualified individual with a disability” and recommended that he stay at Poultney High School, but under a specially designed academic program. However, the parents had enrolled J.D. at Simon’s Rock College in Massachusetts and sought reimbursement for his college tuition and costs. In a decision upheld by Vermont District Magistrate Judge Jerome J. Niedermeier, a hearing officer granted the school district partial summary judgment, finding that J.D. was ineligible for special education under IDEA, and that under the Rehabilitation Act, the district was not obligated to place J.D. among his intellectual peers outside his residential community. On appeal, Second Circuit Judge Robert Katzmann wrote that the school district provided several reports about J.D.’s ability and performance. “J.D., on the other hand, emphasizes his emotional condition, including his difficulty with interpersonal relationships and negative feelings,” he said. “However, while these are signs of emotional disability, under the statutory and administrative schemes, they are not measures of an adverse effect on basic skills by which educational performance must be assessed.” J.D. had also argued that his due process rights were violated because the district judge granted summary judgment without letting him call and cross-examine witnesses regarding the adverse effect criterion. But Katzmann said that “nothing in the legislative history of the IDEA suggests that Congress intended to require an evidentiary hearing when the material facts are already established by ample affidavits and documents.” The “uncontested facts,” he said, establish that “notwithstanding J.D.’s emotional-behavioral disability, his basic skills consistently matched or exceeded those of his age cohorts; indeed, J.D.’s parents placed him in a private boarding school not because his basic skills were lagging, but so that he may be among his intellectually gifted peers.” LIMITED DUTY As to the claim under the Rehabilitation Act, Katzmann said “the duty to provide a free appropriate public education is not without limits.” While the act mandates that a student with a disability be placed “in a public or private residential program at no cost to the parent” if that is needed to provide a free appropriate public education, he said, once the parents choose a private school over the public school option, the district is not obligated to pay for it. Moreover, he added, the federal regulations “express a preference” for placing students in the “regular educational environment” unless doing so would lead to less than satisfactory results. Judges Pierre N. Leval and Fred I. Parker joined in the opinion. Karl C. Anderson of Anderson & Eaton in Rutland, Vermont, represented the boy and his parents. Patti R. Page of Stitzel, Page & Fletcher in Burlington, represented the Pawlet School District and Bennington-Rutland Supervisory Union. Special Assistant Attorney General Geoffrey A. Yudien represented the Vermont Department of Education.

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