A Memphis family is alleging Memphis-Shelby County Schools The federal disability law and did not violate adequately provide school services to their 9-year-old for the last two years, according to documents in a new federal court filing and interviews with the family.
Kevin Bardwell, Jr., 9, has autism, an intellectual disability and attention deficit hyperactivity disorder, but has not gotten the educational care he needs from the school district since moving to Memphis two years ago, the suit alleges.
The complaint alleges the school district does not employ sufficient personnel to support students like Kevin Jr., and that it has violated its federal responsibility to identify and assess students with disabilities in the first place.
“The lack of necessary personnel impacts not only (Kevin Jr.), but any other similarly-situated child within the district who has autism and/or other developmental or cognitive delays or impairments that necessitate the use of (Applied Behavior Analysis) therapies in order to have a (free appropriate public education),” according to the complaint, filed Monday by attorneys Janet Goode and Michael Braun.
The federal court filing Monday evening appeals the decision made by a Tennessee administrative judge earlier this spring.
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To challenge violations of disability law, Tennessee families can pursue three different processes. The Bardwells filed a due process complaint, which is considered the most severe. Once the complaint is filed, a hearing ensures, and then a judge determines whether the family or the school district prevails.
The Bardwells had three hearing dates in the spring, and in May, the administrative law judge ruled the Bardwells prevailed in several claims, including that MSCS violated federal disability law in Kevin Jr.’s case for at least a full school year, including an obligation to identify his disabilities and create and implement an appropriate individualized education program (IEP).
“This violation deprived (Kevin Jr.) of an educational benefit and significantly impeded (Kevin Bardwell Sr.)’s opportunity to participate in the decision-making process of his son’s education,” Tennessee Administrative Judge Phillip R. Hilliard ruled in May of this year.
But the ruling doesn’t go far enough, attorneys for the family say in the federal appeal. The administrative judge agreed that Kevin Jr. was denied school services he deserved for the 2020-21 school year, the first and mostly virtual school year of the COVID-19 pandemic, but did not rule that those violations persisted for the entire school year in 2021-22.
Kevin Jr., attorneys say, also deserves more compensatory education than the administrative judge awarded for the school services MSCS did not provide. Separately, it requests MSCS pay for Kevin Jr. to attend a private school that can meet his needs.
The appeal also seeks attorneys fees and some reimbursements to the Bardwell family for money they’ve spent to make up for services the school district did not provide, a monetary relief administrative law judges cannot award, according to the complaint.
Goode, an attorney in the case for the plaintiffs, did not return immediate request for comment Tuesday.
MSCS said Tuesday the district would not comment on pending litigation.
Kevin Sr. and Eboni Guy, who co-parent their blended family of four children, have described in interviews and court documents several efforts to secure education services for Kevin Jr.
The 9-year-old and his older brother and younger sister moved to Memphis to live with his father and Guy in July 2020. In October 2020, MSCS received documents including information about Kevin Jr.’s diagnoses from a previous education facility he attended , but at MSCS, Kevin Jr. did not have an IEP for the duration of the 2020-21 school year, which he completed virtually, according to the f.
Kevin Jr. had trouble logging in to his devices and working independently from home, according to the complaint.
The family wants the school district to follow disability law for Kevin Jr. and for other students like him.
“We can’t use the term pioneers because there are people that have been doing it before us, but at the same time we’re one of the first in a while I guess to put a face on it, I guess…In that regard, yeah, we’re putting a face on it that hasn’t been on there in a while,” Kevin Sr. told The Commercial Appeal in a recent interview. “That’s what it is.”
Laura Testino covers education and children’s issues for the Commercial Appeal. Reach her at [email protected] or 901-512-3763. Find her on Twitter: @LDTestino
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