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Special Education Law 101 - Part X

James A. Bennett's Private School, Butte, Montana (1901) (Photo credit: Butte-Silver Bow Public Library)

This is another installment in our continuing series on the basics of special education law. Today we enter the mysterious world of unilateral placements. If the parents (or adult student) win a due process hearing, the two most common types of relief are compensatory education and reimbursement for a unilateral placement. Today we will take a hard look at the latter remedy.

Unilateral Placements

In the case of Burlington Sch. Comm. v. Dept. of Educ., et. al. 471 U.S. 359, 105 S.Ct. 1996, 556 IDELR 389 (1985), the Supreme Court was faced with the issue of whether the IDEA permitted courts to award reimbursement to parents when the IEP developed by the schools is not appropriate and the parent removes the student from public school and places him in a private school that does provide FAPE. Noting that the statutory provisions of the IDEA confer broad equitable powers upon the courts to fashion an appropriate remedy, and the fact that judicial review of IDEA cases often takes years, the Supreme Court held that the IDEA does empower courts to award such reimbursement. Burlington, supra.

In Florence County Sch. Dist. v. Shannon Carter, et. al. 510 U.S. 7, 114 S.Ct. 361, 20 IDELR 532 (1993), the Supreme Court was faced with a unilateral placement case in which the public schools provided an inappropriate education leading to a unilateral placement at a private school that provided an appropriate education for the student but that did not meet some of the requirements of the SEA (specifically state approval of the private school.) The Supreme Court held that courts may award reimbursement in these cases. Carter, supra.

In Forrest Grove Sch Dist v. TA 129 S.Ct. 2484, 52 IDELR 151 (U.S. 6/22/9) The Supreme Court held that it is not a prerequisite to reimbursement under IDEA that a child have been previously enrolled in and receive services from a public school. The Court noted that under its previous rulings in Burlington and Carter, courts have broad authority to grant appropriate relief when there has been a violation of IDEA. The Court held that the 1997 amendments do not limit that authority. The ambiguous language of the provision at issue was not sufficient to effectuate a repeal by implication of Burlington and Carter.

The IDEA now provides that a hearing officer or court may order an LEA to reimburse parents for a unilateral placement if the hearing officer or court finds that the LEA had not made FAPE available to the student in a timely manner prior to the enrollment in the private school. IDEA, § 612 (a)(10)(C)(ii). Such reimbursement may be reduced or denied if the parents failed at the last IEP meeting to reject the proposed placement and state their intent to enroll the child in private school at public expense, IDEA, § 612 (a)(10)(C)(iii)(I)(aa); or if they fail to give written notice to the LEA of their rejection of the proposed placement and state their intent to enroll the child in private school at public expense 10 business days prior to removal, IDEA, § 612 (a)(10)(C)(iii)(I)(bb); or if the parents fail to make the student available for an evaluation, IDEA, § 612 (a)(10)(C)(iii)(II); or upon a judicial finding of unreasonableness with respect to the actions taken by the parents, IDEA, § 612 (a)(10)(C)(iii)(III). Reimbursement shall not be reduced or denied for failure to give notice if the school prevented the parent from providing such notice, IDEA, § 612 (a)(10)(C)(iv)(I)(aa); or if the parents were not provided with written procedural safeguards stating this notice requirement, IDEA, § 612 (a)(10)(C)(iv)(I)(bb); or if compliance with the notice clause would likely result in physical harm to the child, IDEA, § 612 (a)(10)(C)(iv)(I)(cc). Within the discretion of the hearing officer or court, reimbursement may or may not be reduced or denied if the parents are illiterate or cannot write in English, IDEA, § 612 (a)(10)(C)(iv)(II)(aa); or if compliance with this clause would likely result in serious emotional harm to the child, IDEA, § 612 (a)(10)(C)(iv)(II)(bb). See also, 34 C.F.R. § 300.148.

The general rule, then, is that reimbursement for a unilateral placement may be awarded where a parent/student proves the following:1) the school district denied FAPE to the student or otherwise violated IDEA; 2) the parent's private school placement for the student is appropriate; and 3) equitable factors do not preclude the relief. Forrest Grove Sch Dist v. TA 557 U.S. 230, 129 S.Ct. 2484, 52 IDELR 151 (U.S. 6/22/9)

The Rowley Standard for FAPE - Are the Bullying Cases Changing the Standard? Part II

No Bullying sign - School in Racine, Wisconsin (Photo credit: Wikipedia)

We have interrupted our series on Bullying because a light bulb flicked on. (For the smart alecs out there, yes my light bulb still has an on position!) In Part I, I described the Rowley standard for FAPE. This is the closest thing that we have to a hornbook rule, gold standard in the slippery metaphysical world of special education law.

But as we reported in a previous post, professor Mark Weber has written a law review article that wonders whether the Supremes prematurely decided the issue. Rather than wait for a split among the Circuits and rather than wait for the common law to develop first, the high court jumped in and announced a standard. In a nutshell, the Supreme Court determined in Rowley that FAPE was not a potential maximizing standard. Rather the test was "some educational benefit."

Professor Weber's article also mentions, however, that there are some cases where the Rowley standard is not strictly adhered to. In cases not involving FAPE, like least restrictive environment, FAPE is not in issue and Rowley does not govern. I am summarizing a lengthy academic article here, and as those of you who know me know, that can be dangerous. But two of the other areas he specified where the strict interpretation of Rowley's some benefit test are cases involving inadequate transition services or inadequate behavior interventions. He cites some examples and for me, this notion is an eye opener.

In thinking about the bullying cases, I believe that they may also fit into the grey area concerning the FAPE standard. In particular in TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011), which is being highlighted in our ongoing series on bullying, the court set a higher bar than Rowley seems to require. There the court ruled that the parents do not need to show that the student was deprived of all educational benefit or that she regressed; rather, the parent only needs to show that her educational benefit was adversely affected by the bullying. Where the bullying reaches a level where the student is substantially restricted in learning opportunities, this court says that FAPE has been denied.

OK so my new theory, inspired by the creative thinking of Professor Weber, is that FAPE is always FAPE, but sometimes it isn't. In particularly hot button cases, like bullying cases, maybe the courts are not applying the strictest version of Rowley. The courts always cite and quote from Rowley, but the application of the standard involves a higher bar for FAPE.

My theory here is based upon the old saw from law school that good facts make good law. So maybe the newer hot button issue cases can have juicer facts. Bullying of kids with disabilities can provide some outrageous facts. So can the restraint/seclusion cases. Is it possible that courts are applying a higher FAPE standard when they are nauseated by the facts of a case? And that these newer hot button issues are pushing the envelope? I know that this one is going to get some reaction. What do you think?

By the way, you really should read Professor Weber's article. The citation is "Common-Law Interpretation of Appropriate Education: The Road Not Taken in Rowley," 41 Journal of Law & Education 95 (January 2012). Also he has provided a link to the internet version of the article on the social science research network: http://ssrn.com/author=83733

Have I stumbled onto something here?

The Rowley Standard for FAPE - Are the Bullying Cases Changing the Standard? Part I

The Supreme Court of the United States. Washington, D.C. Français : La Cour suprême des États-Unis. Washington D.C., États-Unis. ‪Norsk (bokmål)â€¬: Høyesterett i USA. Washington, D.C. (Photo credit: Wikipedia)

This is the first of a two part series. As I have said many times, special education law is a lot closer to metaphysics than it is to contract law. Older lawyers (obviously I mean those older than me) are confounded by it; teachers and parents find it difficult to understand. Assistant principals in charge of student discipline curse it. It can indeed be slippery.

The one hornbook rule that we have, though, is the standard for a free and appropriate public education. The basic requirement of the IDEA is that states and school districts must have in effect policies and procedures that ensure that children with a disability receive a free and appropriate public education, hereafter sometimes referred to as “FAPE.” IDEA, § 612(a)(1).

The IDEA defines “FAPE” as: special education and related services that:

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(D) are provided in conformity with the individualized education program required (…hereunder.).

IDEA, § 602(9). See also 34 C.F.R. §§ 300.101 to 300.113.

The IDEA defines “special education” as: Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including

(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and

(B) instruction in physical education.

IDEA, § 602(29).

The Supreme Court of the United States issued the seminal decision interpreting the provisions of the IDEA in the case of Board of Education of Hendrick Hudson Bd. of Ed. v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982). The facts of the case were that the student had a hearing impairment. The parents requested that the schools provide a sign language interpreter for all of the student’s academic classes. Although the child was performing better than the average child in her class and easily advancing from grade to grade, she was not performing consistent with her academic potential. Rowley, supra, 102 S.Ct at 3039-3040.

Holding that FAPE required a potential maximizing standard, the District Court ruled in favor of the student. The U. S. Court of Appeals for the Second Circuit affirmed. See, Rowley, 102 S.Ct. at 3040. The Supreme Court reversed. Rowley, supra, 102 S.Ct at 3052. After a review of the legislative history of the Act and the cases leading to Congressional passage of the Act, the Supreme Court held that the Congress did not intend to impose a potential-maximizing standard, but rather, intended to open the door of education to disabled students by requiring a basic floor of opportunity. Rowley, supra, 102 S.Ct at 3043-3051.

The Supreme Court noted that the individualized Educational Program, hereafter sometimes referred to as the “IEP,” is the cornerstone of the Act’s requirement of FAPE. Rowley, supra, 102 S.Ct at 3038, 3049. The Court also notes with approval the many procedural safeguards imposed upon the schools by the Act. Rowley, supra, 102 S.Ct at 3050-3051. The Court also cautioned the lower courts that they are not to substitute their “…own notions of sound educational policy for those of the school authorities which they review.” Rowley, supra, 102 S.Ct at 3051.

The Supreme Court held that instead of requiring a potential maximizing standard, FAPE is satisfied where the education is sufficient to confer some educational benefit to the student with a disability. Rowley, supra, 102 S.Ct at 3048. Accordingly, the Court concludes that the IDEA requires “…access to specialized instruction and related services which are individually designed to provide educational benefit to the …” child with a disability. Rowley, supra, 102 S.Ct at 3048.

The Supreme Court instructed lower courts that the inquiry in cases alleging denial of FAPE should be twofold: First, have the schools “…complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits.” Rowley, supra, 102 S.Ct. at 3051.

The Rowley decision pertained to the adequacy of an IEP, but the ruling is regarded generally as the gold standard for whether FAPE has been provided in any situation. In the next installment in this mini series, we will look at whether the bullying cases may be in the process of altering the Rowley FAPE standard. Stay tuned.

When Politics and Disability Laws Collide

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Here's a question: Do you think that disability laws and political activism are compatible?

Apparently a new Disability Power and Pride Political Action Committee has been formed. Here is an article on the topic from Disability Scoop. Here is the group's website.

We know that all laws are written by legislative bodies and that money is the mother's milk of politics. Should disability advocates organize and raise funds for candidates? The U S Supreme Court has recently ruled that throwing huge amounts at politicians is both protected free speech and and a necessary ingredient in apple pie.

IDEA and NCLB will both be reauthorized, maybe soon. What do you think? Should those who have opinions about changes to be made in the law organize? What about raising money for those who support their changes?

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Why Everybody Hates Special Education Law

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I was giving a presentation last month and one of the participants yelled out, "but we still don't have an answer." This took me by surprise inasmuch as there is rarely an "answer" in special education law. To explain my point, I told the unhappy participant that special education law is more like metaphysics than it is like contract law. This may not have satisfied the participant, but it is true and I like the analogy.

Special ed law is new law as we have said here before. For me, "new law" is roughly defined as whatever didn't come over on the boat from England. Because special ed law is of a mid-1970's vintage, it is very new law. Older lawyers don't like new law, especially law that combines social policy. They like property and contracts- areas of the law where you can look at a set of facts and provide reasonably reliable advice to a client. Special ed law is not like that.

Special education law is a lot like the weather in Urbana, it changes frequently. In fact I have often commented on these pages about the "cycle" of special ed law. The statute was enacted, followed by federal regulations, followed by state regulations, followed by hearing officer decisions followed by court decisions, (both trial and appellate court opinions)(we even have ten by the Supremes). Then the statute, IDEA, is reauthorized and changed and the whole cycle repeats until we are pretty comfortable with the law, then the process repeats itself again. As I have said before, if certainty or red letter, hornbook law is your thing, you may not like special ed law. (I still think that there must be a Jeff Foxworthy joke in there somewhere, but I can't quite grasp of it!)

The ever-changing nature of it makes teachers, parents, administrators and many others hate special education law. It's slippery, and it's hard to get a handle on. How many cases, like the recent Supreme Court case of Forest Grove, have we seen where several of the decision makers disagree as to the result based upon the same set of facts? The answer my friend is in the eye of the beholder.

Only those who enjoy metaphysics, a shrinking number indeed, refuse to hate special ed law, or the "player" as we call it. We do have some guiding principles, but the rule of law model of applying a clearly established legal standard to any given set of facts doesn't really work here. Don't hate the player!

Special Education Law 101 - Part II Revisited

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Beginning last week, I have been running a repeat series I wrote a few years ago on the basics of special education law, with a few updates as appropriate. This is part two.

Today's post is on the requirement of the least restrictive environment, which along with FAPE is one of the twin towers required by IDEA. People are often amazed when I tell them that the word "inclusion" is not contained in IDEA. Instead the requirement is that a child with a disability be educated in the "LRE." Sometimes our fascination with FAPE overshadows the LRE analysis, but it is one of the key components of the law.

Special Ed Law 101- Part II

The Requirement of LRE (least restrictive environment)

In addition to the requirement of FAPE, which was discussed in a previous post, the IDEA also requires that to the “…maximum extent appropriate, children with disabilities … are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. IDEA, § 612(a)(5). See, 34 C.F.R. §§ 300.114 to 300.119. This is known as "LRE."

The Supreme Court has not yet ruled on the issue of LRE, but a number of Circuit Courts of appeal have provided some guidance. For example, the Fifth Circuit has developed a two pronged analysis: the first question is whether the education of the student with a disability in the regular classroom, with the use of supplemental aids and services, can be satisfactorily achieved, and if it cannot, whether the school district has provided the student with interaction with non-disabled peers to the maximum extent appropriate. Daniel RR v. State Board of Education 874 F.2d 1036, 441 IDELR 433 (5th Cir. 1989). (See decisions in your circuit.)

The special education law, then, requires that a child with a disability be provided a FAPE (free and appropriate public education) and that it be provided in the LRE (least restrictive environment that is appropriate for the child). These are the key legal requirements of special education law.

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Special Education Law 101- Part I Revistied

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In a recent post, I mentioned that I wanted to rerun a previous series on the basics of special ed law, with a handful of updates . Here goes:

People often ask me what "FAPE" and "IEP" mean. This is a good question. At a conference I attended a few years ago, a success story former special education student told the group, "You all speak in alphabet soup." It is a tough habit to break, but the criticism is valid.

As a result I decided to post a series of Special Ed Law 101 articles to foster a better understanding of the key concepts.

Special Ed Law 101- Part I

The primary source of special education law is the federal Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et. seq., hereafter sometimes referred to as “IDEA.” (NOTE: many people refer to the sections of the act as beginning with section 600. Thus “Section 615” would be found at 20 U.S.C. Section 1415, etc.) The regulations promulgated by the United States Department of Education to implement the IDEA are found at 34 C.F.R. Part 300.

The basic requirement of the IDEA is that states must have in effect policies and procedures that ensure that children with a disability receive a free and appropriate public education, hereafter sometimes referred to as “FAPE.” IDEA, Section 612(a)(1).

The IDEA defines “child with a disability” as a child:

(i)with mental retardation, hearing impairments…, speech or language impairments, visual impairments…, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and

(ii)who by reason thereof, needs special education and related services.
IDEA, Section 602(3)

The IDEA defines “FAPE” as:
special education and related services that:

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(D) are provided in conformity with the individualized education program required (…hereunder.).

IDEA, Section 602(9). See also 34 C.F.R. Sections 300.101 to 300.113.

The IDEA defines “special education” as:

Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including

(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and

(B) instruction in physical education.
IDEA, Section 602(29).

The Supreme Court of the United States issued the seminal decision interpreting the provisions of the IDEA in the case of Board of Education of Hendrick Hudson v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982). The facts of the case were that the student had a hearing impairment. The parents requested that the schools provide a sign language interpreter for all of the student’s academic classes. Although the child was performing better than the average child in her class and easily advancing from grade to grade, she was not performing consistent with her academic potential. Rowley, supra, 102 S.Ct at 3039-3040.

The Supreme Court reversed. Rowley, supra, 102 S.Ct at 3052. After a review of the legislative history of the Act and the cases leading to Congressional passage of the Act, the Supreme Court held that the Congress did not intend to impose a potential-maximizing standard, but rather, intended to open the door of education to disabled students by requiring a basic floor of opportunity. Rowley, supra, 102 S.Ct at 3043-3051.

The Supreme Court noted that the individualized educational program, hereafter sometimes referred to as the “IEP,” is the cornerstone of the Act’s requirement of FAPE. Rowley, supra, 102 S.Ct at 3038, 3049. The Court also notes with approval the many procedural safeguards imposed upon the schools by the Act. Rowley, supra, 102 S.Ct at 3050-3051. The Court also cautioned the lower courts (and by implication, due process hearing officers) that they are not to substitute their “…own notions of sound educational policy for those of the school authorities which they review.” Rowley, supra, 102 S.Ct at 3051.

The Supreme Court instructed lower courts (and again by implication, due process hearing officers) that the inquiry in cases alleging denial of FAPE should be twofold: First, have the schools “…complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits.” Rowley, supra, 102 S.Ct. at 3051.

That completes the first installment of Special Education Law 101. In the next installment we'll explain least restrictive environment, or "LRE."

Justice Stevens and Special Education Law - Part II

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Justice John Paul Stevens has announced his retirement from the United States Supreme Court. Although originally considered a moderate by most, he has drifted to the liberal wing as the court added more and more very conservative justices. In addition to being a loyal fan of the Chicago Cubs, Justice Stevens left his mark on special education law.

Last week we reviewed his opinions in the big ten decisions by the Supremes in this area of the law. We also discussed in detail, the opinion he authored in Forest Grove v. TA. This week we will take a look at the other major opinion in this area authored by Justice Stevens.

In the case of Cedar Rapids Community School Dist v. Garret F 526U.S. 66, 119 S.Ct 992, 29 IDELR 966 (3/3/1999), Justice Stevens wrote the opinion for the seven justices who formed the majority. Near the beginning of the opinion, Justice Stevens notes that the student "... is a friendly, creative and intelligent young man." It was refreshing to see this emphasis upon the student whose education is being litigated.

The main issue in the case was whether the school district was required to provide urinary bladder catheterization, suctioning of a tracheotomy and various monitoring functions for the student. IDEA, the federal special education law requires a school district to provide as related services to students with a disability those related services that are necessary for the student to receive a free and appropriate education. There is an exception for "medical services" and the district argued that the exception applied. Justice Stevens reaffirmed the "bright line" test from the previous Tatro decision, holding that the medical services exception only applies to services that must be performed by a physician. Accordingly, the opinion requires the district to provide the related services at issue.

More important, in my opinion, is the manner in which Justice Stevens handled the school district's argument that the expense of the services should be a defense. The majority opinion squarely rejects the argument that the cost of providing services can be a defense in special education cases. This ruling has importance way beyond the facts of the particular case. I believe that this portion of the decision is Justice Stevens' true legacy concerning the body of law involving special education.

Note the President is a known fan of the dreaded Chicago White Sox. I fear that the chances of another Cubs fan being appointed to the Supreme Court are indeed very slim!

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Who Votes for This Clown? Virginia Legislator Refers to Kids with Disabilities as a Curse.

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One has to wonder about our electoral system. Exactly how does a person get elected to public office? I have read a lot recently about the Supreme Court's extreme judicial activism in relation to its shredding of the campaign finance laws. Is the result that our elected representatives are now truly the finest that money can buy?

My current discontent with all things elected is attributable to a Virginia state legislator, Delegate Robert G. Marshall (R. Prince William). He recently made a speech against Planned Parenthood and during his address he said that subsequent children born to women who have abortions are more likely to be "handicapped" because of vengeance and punishment from God. Here is the Washington Post story.

The logic here is stunning. This guy apparently believes that kids with disabilities are a curse. Has he ever met a kid with a disability? How could he possibly think this? I'm not so interested in the gotcha moment as I am in the underlying, and truly dark, belief about people with disabilities that this argument reveals. This was not a casual misuse of the "R" word, it was an insight into a way of thinking about people with disabilities that I thought that we as a society had outgrown. I'm shocked.

The people who write the special education laws on the state level are, unfortunately, people like this guy? Am I right to be worried?

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9th Circuit Rules: Rowley Still Good Law

The United States Court of Appeal for the Ninth Circuit has confirmed what most of us had expected: the U. S Supreme Court decision in Rowley, et al v. Board of Education 553 ID

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ELR 656, is still good law.

At the trial level, the U. S. District court had held that the 1997 amendments to the IDEA had changed the definition of FAPE, the IDEA's primary guarantee that a child with a disability receive a free and appropriate public education. Given new language in the goals of the 1997 amendments, the district court held that the Rowley decision, requiring only that and Individualized Educational Plan be reasonably calculated to confer some academic benefit, set the bar too low. JL & ML ex rel KL v. Mercer Island School District 46 IDELR 273 (W. D. Wash 12/8/6)

On appeal, the Ninth Circuit rejected the reasoning of the district court. The appelate panel found that Congress did not intend by the 1997 amendments to overrule the Rowley standard. The Ninth Circuit cited three reasons for disagreeing with the trial court's analysis. First, Congress did not amend the statutory definition of FAPE. Second, Congress did not require attainment of transition goals in order to rceeive FAPE. Third, Congress did not express dissatisfaction with the educational benefit standard or express an intention of overturning the standard. JL, et al v. Mercer Island School District 109 LRP 48649 (Ninth Cir. 8/6/9). You can read the entire court opinion here.

It is interesting that most school district lawyers say that the Ninth Circuit is the most anti-school district circuit. Despite that reputation, this decision is very pro district. I do believe that most special education lawyers will agree with the result, however. So what do you think? Did the Ninth Circuit get it right?

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Educational Law

Special Education Law 101 - Part X

The Rowley Standard for FAPE - Are the Bullying Cases Changing the Standard? Part II

The Rowley Standard for FAPE - Are the Bullying Cases Changing the Standard? Part I

When Politics and Disability Laws Collide

Why Everybody Hates Special Education Law

Special Education Law 101 - Part II Revisited

Special Education Law 101- Part I Revistied

Justice Stevens and Special Education Law - Part II

Who Votes for This Clown? Virginia Legislator Refers to Kids with Disabilities as a Curse.

9th Circuit Rules: Rowley Still Good Law

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