Montana's Office of Public Instruction is arguing that neither the agency nor its superintendent was required to provide a free and appropriate public education for a 16-year-old student with disabilities who was allegedly removed from his school and placed in a church basement to do things like sort nuts and bolts.
Last year, Disability Rights Montana filed a complaint on behalf of the teen and his family, who lives in a rural school district. Documents provided to the Independent Record this week show Superintendent of Public Instruction Elsie Arntzen and the Office of Public Instruction are asking to be excluded from the complaint.
In the motion to dismiss, which is more commonly used to test the substance of the claim brought in the lawsuit, the office and Arntzen do not deny that the student, referred to as R.C. to protect his identity, was segregated from his peers and eventually removed from school altogether. It also does not dispute R.C. was denied an education for three years.
Instead, the motion says OPI is responsible for ensuring a free and appropriate public education but is not required to provide it.
“The OPI, as the state education agency, is responsible for ensuring a free and appropriate public education is provided to students. This is distinct from being obligated to personally provide it,” Kyle Moen, legal counsel at OPI, wrote in a response to Disability Rights’ objection to a motion to dismiss.
The original complaint filed by Disability Rights of Montana in October alleges R.C. was denied services by the local district and superintendent, who were not identified by name.
R.C. has multiple substantial disabilities, including a significant cognitive delay and a traumatic brain injury. He also has a seizure disorder that is believed to contribute to inappropriate behaviors, according to the complaint.
In August 2014, R.C. was removed from the classroom without explanation and received approximately two hours of services from the district in a church basement, which included sorting nuts and bolts and watching DVDs. In October 2014, R.C. kicked a teacher and was removed from school permanently.
Under federal legislation, schools are required to provide services in an integrated setting and can only remove a student from regular class if supplemental services can’t be achieved satisfactorily. The complaint states that neither the school district nor OPI tried to hire experts, provide additional training to staff or implement the recommendations made by R.C.’s neuropsychologist.
According to the complaint, OPI, former Superintendent Denise Juneau, who is not named as a defendant, and Arntzen failed to provide a free and appropriate public education, often referred to as a FAPE.
Though Disability Rights of Montana has filed the lawsuit in Helena District Court, the organization can't proceed with it before exhausting a due process hearing required under the Federal Individuals with Disabilities Education Act. That process is overseen by a hearing officer instead of a judge, and it provides an opportunity for all parties to come to an agreement through mediation.
For example, the parent might agree to dismiss the complaint if the district agrees to start providing certain services on a specific date. If mediation fails, the parent can proceed with the lawsuit.
The motion to dismiss, if granted, would remove Arntzen and OPI as parties in the due process hearing and leave the school district and local superintendent as the only parties responsible for coming up with a solution.
Tal Goldin, the Disability Rights attorney representing the family, declined to comment, but previously said the state knew R.C. was denied an education and failed to act.
“It’s not just about this kid’s individual rights and the damage that’s being done to this child,” Goldin said in an Independent Record story published in October 2017. “It’s a far bigger issue than that. This raises the question of, 'What type of oversight is OPI doing?' 'Are they ensuring that children in Montana are receiving a free and appropriate education?'”
Montana law requires the superintendent of public instruction to ensure that all students with disabilities are provided a free and appropriate public education in accordance with the Individuals with Disabilities Act, Montana statutes pertaining to special education, and the administrative rules promulgated by the Superintendent of Public Instruction governing special education.
“Nothing in (Montana Administrative Rules) compels the Superintendent to provide a free appropriate public education directly to a student. The language is permissive, not mandatory,” OPI argued in court documents. “The notion that the state education agency must become a direct service provider for every violation of the provision of a free appropriate public education is without merit.”
Moen, who declined to comment or confirm the existence of the complaint, citing state and federal privacy rights, wrote in court documents that Arntzen may take steps to directly provide a free and appropriate public education, but those steps aren’t mandatory.
“The OPI took appropriate steps to ensure a FAPE was provided to the student in this case. Those steps were immediate and ongoing.”
However, the documents don’t provide specific examples of what the agency has done to ensure a free and appropriate public education was provided. The original complaint outlines a series of communications between R.C.’s mother and OPI during Juneau and Arntzen’s administration, but says no corrective action was enforced.
“At the time OPI issued the Corrective Action Plan, it was fully aware that the district had denied R.C. a FAPE for almost two complete years,” Goldin wrote in a response to OPI’s motion to dismiss.
On May 9, 2016, during Juneau's tenure, R.C.’s mother filed a formal complaint with OPI saying her son was not receiving services. OPI conducted an investigation, agreed with R.C.’s mother and ordered the district to provide services within 60 days after completing its investigation on Sept. 1, 2016.
But the district never complied and OPI didn’t enforce its order, the complaint said. Through a lawyer, R.C.'s mother sent a letter to Juneau asking OPI to provide services. The same demand was reiterated on March 21, 2017 and Sept. 27, 2017 during Arntzen’s administration. The complaint says Arntzen discussed the demands with special education administrators Frank Podobnik and Richard Trerise, who are also named in the complaint, but failed to act.
“It has been over 18 months since (R.C’s mother) filed her state complaint and far longer since the OPI found out the district was denying R.C. a FAPE,” Goldin wrote. “R.C. is still not receiving any educational services from OPI or the district.”