Lincoln Public Schools' education plan for a student with autism did not violate federal education law, despite a national expert's opinion that it would make the boy's behavior worse, a U.S. District Court judge ruled.

Chrissy and Matt McNair filed a lawsuit against LPS on behalf of their son Luke, alleging that LPS officials' insistence on using a "calm down room" for him did not provide him with a "free and appropriate education plan" as required by federal law.

The lawsuit argued the district should have relied on research and recommendations of a national expert from the Kennedy Krieger Institute, who found that using the calm down room actually made Luke more aggressive, significantly reducing his academic progress.

The McNairs were so concerned with how bad their now 11-year-old son's behavior had gotten in spring 2009 that they pulled him out of Sheridan Elementary and took him to the research facility for child and adolescent development disabilities associated with Johns Hopkins University in Baltimore.

There, an expert concluded his aggressive behavior dramatically increased with the use of the calm-down room because he preferred spending time there and realized if he acted aggressively teachers would send him there. His behavior markedly improved during his time at the institute, when he wasn't given such an option, according to testimony during a half-day trial in Omaha.

The McNairs pulled Luke out of LPS and enrolled him at the private Prairie Hill School in Roca, which used the behavior plan, and the McNairs said Luke thrived. They wanted the court to order LPS to reimburse them $37,000 for tuition as well as find they violated federal education law.

But U.S. District Judge Laurie Smith Camp said the district fulfilled its duties under federal law because it took the plan provided by the institute into consideration, even though it didn't adopt all of the recommendations.

The district also allowed the parents "meaningful participation" in developing their son's plan during his fourth-grade year at Sheridan, and the school made revisions to the plan based on their concerns, Camp found.

"Although LPS did not adopt the KKI plan in its entirety as (the McNairs) would have preferred, it did listen to their concerns and evidence," she wrote in the decision filed Wednesday in U.S. District Court in Omaha.

Her ruling upheld a determination by a Nebraska Department of Education hearing officer.

Neither the McNairs or their attorney could be reached for comment.

LPS attorney Greg Perry said he was pleased with the court's decision, which confirms that the staff worked well with the student.

The ruling is important because it keeps educators -- and parents -- in charge of making a school-based behavioral plans, rather than outsiders such as the expert in this case, he said.

"Educators are trained to educate and trained in educational settings as opposed to those in a hospital setting," he said. 

The McNairs' attorney had argued that the linchpin of Luke's success was eliminating the use of the calm room.

But Camp noted that federal law is satisfied when a school district's plan provides "some educational benefit" and does not need to try to maximize a child's potential or even guarantee a student will make any progress at all. Nor, she said, does it require the school to follow the parents' preferences.

Luke, who was diagnosed with autism when he was 2, attended Sheridan until his behavior problems began to escalate in third grade; eventually, his parents decided to take him to the Kreiger Institute.

The McNairs' attorney said at trial that Luke's behavior had gotten so bad before he went to Baltimore that his parents had considered making him a state ward. That changed when he came home, they said.

Camp, however, found that despite Luke's behavior problems before he left, he continued to make progress at LPS, and part of the reason he didn't finish all of his third-grade math curriculum is because he was in Baltimore.

Camp said while she had to rule based on the "preponderance of evidence," she also had to give weight to the administrative proceedings and not substitute her own "notions of sound educational policy" for those of school officials.

"LPS staff, based on their prior experiences of interacting with and teaching (Luke), stated they believed the (education plan) drafted for (his) fourth-grade year would have provided (him) with an educational benefit had it been implemented, and the court will not substitute its own judgment for that of LPS," she said.

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Reach Margaret Reist at 402-473-7226 or mreist@journalstar.com.


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