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.
As many of you know, I am collecting your ideas for changes to the Individuals with Disabilities Education Act when it comes up for reauthorization by the Congress. To further celebrate this quest we have launched a new poll as to this question. As always, our polls are not meant to be scientific in nature. But they are fun, and they give us an idea of what our readers are thinking, so please exercise your opportunity to vote! The poll appears on the lefthand side of the blog.
Now you may notice that the topic of this post definitely relates to my upcoming interview of Dr. Alexa Posny, the new Assistant secretary of Education. Unfortunately though the poll will not finish before the interview so I won’t be able to utilize the results at the big interview.
I have whittled down your suggestions concerning changes to IDEA to the most popular ten. Here are the choices: - Raise the Bar for FAPE – Give Expert Witness Fees to Prevailing Parents – Expand Role/Mission of OSEP – Restrict Comp Ed/Reimbursement as Remedies – Place Burden of Persuasion on School Districts – Increase Transition Rights – Allow Arbitration and More Mediation – Assess Children with Disabilities at Instructional Levels for AYP – Expand and Encourage Response to Intervention – Regulate Seclusion/Restraints
There have been other suggestions and possibilities, these were just the top ten. Other frequent suggestions have included: Make the resolution session meetings confidential; clarify the educational rights of non-custodial parents; prohibit parents from representing themselves in federal court; allow systemic or class action style due process complaints; adopt the principals recommendation for a standard of care for each disability category; require IEP implementation to be material before constituting a violation of the law; and throw out the whole system and start again.
Please tell me what other changes you would like to see. IDEA will eventually be reauthorized – lets get our list together. Given our high level of credibility, I feel that we are being listened to by those who will be making the changes.
This is the second in a series of posts on charter schools inspired by the excellent, recent law review article by my friend professor Mark Weber. You can read the first post in this series here. Professor Weber’s article may be found here.
The number of charter schools is clearly on the upswing. In fourteen communities mo
re than one-fifth of all public school students attend a charter school. In three major urban areas, more than 30% of all public school kiddos are in charter schools: Detroit (32%); Washington DC (36%) and New Orleans leads the league with 57%. You can read all of the current statistics here .
For those of you who like research, there has been some research on charter schools, and of course a few controversies. This link will take you to a study by Caroline Hoxby and others about New York City’s charter schools. This link will take you to a review critical of the methodology used in the Hoxby study. This link will take you to the national study by CREDO at Stanford University released in June which finds that the the achievement levels at charter schools is about the same as that of students who do not attend charters. Are charter schools better than other schools?
Because it appears that charter schools are likely to be the next big thing, Professor Weber’s article takes on added importance. One of the important principles that his article identifies involves procedural safeguards. If a special education student attends a non-private charter school, he and his parents are still entitled to all the procedural safeguards established by IDEA. This issue is near and dear to my heart inasmuch as I am a mediator and hearing officer and a consultant to states on dispute resolution systems. Procedural safeguards are an important part of the special education law, and how they are enforced in the charter school setting may make for some new law.
One difficult issue will involve who is the defendant. For the most part, IDEA places the responsibility upon local educational agencies (LEAs) to provide a free and appropriate public education to a child with a disability. This can become tricky with charter schools because sometimes they are themselves the LEA and sometimes the local school district is the LEA. So the charter school or the school district, or possibly both, can be the ones getting sued and providing the relief. Of course, if the charter school is a private school, procedural safeguards only come into play under limited circumstances (involving proportionate share and child find/evaluation), but that is way beyond the scope of today’s topic.
So as with all changes, the legal knots will undoubtedly follow. Any ideas on other problems with these issues?
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