Big New Decision by 5th Circuit: Part I - Educational Progress & FAPE

Most special education hearing officer and court opinions are pretty boring. They cite ROWLEY, the seminal supreme court decision, pay homage to the FAPE requirement and apply boilerplate from previous decisions. But every once in a while, there is a case with some new analysis. Special ed law junkies, like myself, love these reasoned decisions that seem to break new ground. Sometimes the new approaches of a court will not "have legs;" they die on the vine. Other such decisions are embraced by other hearing officers and courts around the country and become a new trend or hot button issue.

That is the true beauty of our legal system. A court applies some new logic or announces a new rule. Then professors and litigants either love it or hate it and they battle it out in other places As hearing officers and later other courts accept or reject the groundbreaking opinion, a rule gets straightened out. But as special education law lovers know all too well; there is no finality here. After the "rule" is established, Congress reauthorizes the statute and perhaps changes the rule. Then the feds ,as I love to call the Department of Education, adopt regulations. Then the states adopt regs. The cycle never really ends, and I don't think that's bad unless you abhor ambiguity. (Show of hands here, how many remember the "F-Scale?")

So the Fifth Circuit Court of Appeals has turned out two big new special education decisions in less than a month. In the next installment in this series, we'll deal with the decision involving reimbursement for unilateral placements: residential vs. educational. Today we'll discuss Houston Independent School District v. V. P. 53 IDELR 1 (5th Cir. 09/09/09). You can view the opinion here.

The court first reiterated the Fifth Circuit's four part test for whether an IEP provides FAPE:
"We have set out four factors that serve as "indicators of whether an IEP is reasonably calculated to provide a meaningful educational benefit under the IDEA," and these factors are whether "(1) the program is individualized on the basis of the student's assessment and performance; (2) the program is administered in the least restrictive environment; (3) the services are provided in a coordinated and collaborative manner by the key 'stakeholders'; and (4) positive academic and non-academic benefits are demonstrated."

NOTE: I strongly disagree that the second factor is a component of the FAPE analysis. I believe that LRE is a placement issue unrelated to the services issue underlying FAPE. I believe that FAPE is a separate and independent requirement of IDEA. That is not at issue in this case, but as my lawyer friends like to say, I am preserving my record for a fight for another day!

Back to the VP decision, the court focused upon the fourth factor in its FAPE analysis. The unusual thing about this decision is that the teacher testified that she thought the student had made academic progress not because of his IEP but rather because of modifications implemented by the teacher that were not submitted to or approved by the IEP team. The school district argued that the student had made academic progress and that was the end of the debate; case over, they win. The Fifth Circuit said not so fast. The student made academic progress in spite of not because of the district's IEP. Accordingly, this is not FAPE as defined by IDEA. Parents win.

This is somewhat related to the issue of whether a court or hearing officer may consider evidence of academic progress after an IEP is written or whether the only question was whether an IEP was reasonably calculated to achieve academic benefit at the time it was written. I once thought that that would also be a hot button issue, but itseemed that it never "had legs!"

This case is a big deal. Look for lots of discussion on this point. Other hearing officers and courts outside of the Fifth Circuit may disagree. This case is only the law for the Fifth Circuit, which includes Texas, Louisiana and Mississippi. Courts and hearing officers from other states can consider the reasoning of the VP decision and accept or reject. By the way here is a nice map of the states covered by each federal circuit court of appeals.

So I am again predicting that this case is going to be a trend or hot button issue in special education law. What do you think? Please let me know if you hear of academic progress not tied to the IEP being rejected, or accepted, in other jurisdictions. I like to keep track of these things. I'm anxious to hear your reactions. Thanks in advance.