Conn. Office of Prot. and Advocacy for Persons with Disabilities v. Hartford Bd. Of Educ.

The Second Circuit Court of Appeals

___ F.3d ___, 2006 U.S. App. LEXIS 23469

September 15, 2006

The Second Circuit Court of Appeals affirmed the District Court’s judgment which entered a permanent injunction against the Hartford Board of Education in the case of Protection & Advocacy v. Hartford Bd. of Educ. This is the case where the state office of Protection and Advocacy for Persons with Disabilities (P&A) brought suit against the Hartford Board of Educ. (“HBOE”) requesting access to the HBOE’s controversial Hartford Transitional Learning Academy (“HTLA”) to (1) observe programs and speak with students and (2) give P&A a directory of HTLA students and contact information for their parents/guardians to investigate allegations of abuse and neglect at the school. In a lengthy decision issued in February 2005, the District Court declared that defendants’ refusal to provide the agency with physical access to the facility when students were present and with name and contact information for parents and legal guardians of the facility’s students violated the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. §§ 15001-15115 and the Protection and Advocacy of Individual Rights Act (PAIR), 29 U.S.C. § 794e. Defendants were ordered to grant both physical access and names and contact information to allow the agency to perform its statutory duty to investigate suspected abuse and neglect.

On appeal – the HBOE challenged the courts findings, and added the assertion that the Family Education Rights and Privacy Act (“FERPA”) and Individuals with Disabilities Education Act (“IDEA”) prohibited release of information, visitation during school hours, etc. even if PAIMI and PAIR provided P&A access to the students and information. After oral argument – the Circuit Court solicited the US Depts. of Education and Health and Human Services to file amicus briefs to provide their interpretation of FERPA and IDEA. Both agencies filed documents soundly rejecting HBOE’s arguments – and thus HBOE dropped that portion of their appeal, The Court went on to affirm the District Court’s holding – including the issuance of the permanent injunction.

The key issues decided on appeal involved mootness, access to the academy, and parent/guardian contact information. The court affirmed the findings of the district court on the latter two issues – signifying that P&A is inherently charged with not only the mission, but the responsibility of protecting persons with disabilities who are warehoused at schools implicitly designed for impaired individuals. On the mootness issue – the HBOE’s deference to the HHS and the US Department of Education did not moot their appeal – because P&A has continuing statutory duty to perform its duty to “investigate suspected abuse and neglect.”

The case may be found on LEXIS or Westlaw, or by going to the Second Circuit’s website athttp://www.ca2.uscourts.gov.

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