Special Education Law Blog

Giving Meaning to the the term "Meaningful Progress"

Special education advocates were excited with last March’s Supreme Court ruling on Endrew F. v. Douglas County School District and its determination that students must make “appropriately ambitious” progress in their special education programs under the Individuals with Disabilities Education Act (IDEA). Cases are now coming up that will hopefully begin to flesh out the pararmeters of Endrew F and give more defintion to the term "meaningful progress". The Rowley case, which was decided in 1982, provided some guidance on what constitutes progress, but Endrew further refines it and raises the standards of special education for students.   This past October, referencing the Endrew case, the Supreme Court remanded a special education case (E.F. v. Newport Mesa Unified School District) back to the lower court not because of the arguments in the case put forth by the parents, but because the Supreme Court wanted the district court to reconsider the case using the new Endrew standard. 

Endrew F. Decision: 8-0 Decision for Parents

The U.S. Supreme Court just issued a huge victory for parents in resetting the Rowley standard for the first time in more than 30 years. See decision--http://www.scotusblog.com/case-files/cases/endrew-f-v-douglas-county-school-district/.

The Court ruled that schools to "meet its substantive obligation under the Individuals with Disabilities Education Act, a school must offer an "individualized education program" reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." While full parameters of this ruling will be played out over years, this decision soundly rejects the minimal standard that the school district argued and raises the standard for an education for students with special needs. Stay tuned as there is certainly more analysis that will be forthcoming.

Fry v. Napoleon Resounding Victory for Parents in Supreme Court

The U.S. Supreme Court just issued a victorious ruling for parents in Fry v. Napoleon  Download Fry decision that will open up avenues of judicial enforcement of rights without the need for taking cases through due process first, and then seeking redress in court, provided that the issues presented are not redressable under IDEA. The Court specifically held:"[e]xhaustion of the IDEA’s administrative procedures is unnecessary where the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee of a FAPE." Frequently parents in my office are seeking to bring a separate action in court for denial of 504 rights to access or discrimination under ADA, but are deterred given the need to first have an expensive adjudication in an IDEA due process proceeding. This decision gives the parents another significant litigation avenue to either pursue a hearing or possible settlement. The full scope and ramifications of this decisions will be unfolded as lower courts flesh out this decision but it is a happy day for parents; and goodness knows we could use some good news.

Judge Gorsuch No Friend of Special Education Students

Judge Gorsuch has served for the last 10 years on the United States Court of Appeals for the 10^th Circuit.  In this capacity, Judge Gorsuch has heard several cases related to special education and disability, which has enabled those who have analyzed both his concurring and issued opinions to determine how he might rule on such cases should he serve on the Supreme Court. A review of his decisions over this decade-long period shows that Judge Gorsuch overwhelmingly tends to uphold administrative rulings favoring school districts.  As pointed out by Pete Wright, however, in some instances Judge Gorsuch has ruled in favor of students. Overall he is no friend to students with special needs.

How Judge Gorsuch has ruled on previous disability and special education cases is of critical importance. Fortunately, it is not likely he will be able to participate in the 2 pending cases before the Court. The first case currently pending is Fry v Napoleon, which asks if the exhaustion element applies to a 504 claim regarding the use of service animals. The other case, which is even more seminal, is Endrew F. v. Douglas County School District that is likely to result in clarification and possibly raising the Rowley standard and defining more clearly “meaningful” vs “some benefit.” Arguably, Endrew F. is the most consequential IDEA case to be heard before the Supreme Court since Rowley v. Hendrick Hudson School District.  It is unlikely that even if Judge Gorsuch is confirmed that he will rule on these cases given oral arguments have already been made before the Court. Nevertheless, there are at least two more disability related cases, including an Obama-era case regarding use of restrooms by transgendered persons, that are making their way through the judicial pipeline and possibly to the Supreme Court.

What constitutes the Rowley standard of “some educational benefit” is frequently the basis of due process actions by families against school districts.  The courts have debated “just above trivial” educational benefit versus “meaningful benefit.”  In a Rowley-type case, Thompson R2-J Sch Dist. V. Luke P., Judge Gorsuch stated that since a student with autism with severe behavioral issues was making “some progress,” the school was not obligated to provide a residential placement, even though the child was unable to generalize skills and was making no progress outside the school environment.   This decision reversed the ruling of an administrative hearing officer, a review officer, and a District Court. This narrow view of what schools can be expected to deliver for students with special needs is very disturbing. Moreover, his willingness to overrule the lower adjudicatory bodies shows a willingness to be a judicial activist to serve a conservative agenda in favor of a school's authority.

In most jurisdictions, IDEA requires that parents must exhaust all administrative efforts before taking a complaint to a district court.  In A.F.v. Espanola Pub. Schs, Judge Gorsuch ruled that a district court's dismissal of a lawsuit was justified because a successful mediation on the part of the parents did not constitute exhaustion of administrative remedies and parents could not make subsequent claims under Section 504. This instance shows a willingness to raise the litigation burdens/cost and increase the time needed to have a student's claims adjudicated.

Another particularly disturbing case to me, given that I have represented a number of non-attending students who are frequently unable to attend school in large part because of the utter failure of their district to meet their needs, is Garcia v. Board of Educ. Of Albuqueque Pub. Schs.  Judge Gorsuch ruled that even though the district had failed to provide FAPE by reviewing the student’s IEP, the District Court was correct in denying the student’s compensatory educational claims because of truancy.  This moralistic stance fits neatly with the narrative that schools use as a justification to not serve students with significant needs who have been unable to attend school.

As pointed out by Pete Wright, Judge Gorsuch has been part of the panel that has also on occasion made very pro-child decisions, including a decision where the District Court wasn’t allowed to delegate its remedial authority to IEP teams (M.S. v. Utah Schs. For the Deaf and Blind) and a decision stating that it was unnecessary for courts to sort through conflicting opinions from different appellate courts to determine what constitutes a need for residential placement in the case of a student who, according to the judges, required a residential placement “under any standard.” (Jefferson County Sch. Dist. R-1 v. Elizabeth E.) In A.M. v. Holmes, Judge Gorsuch came down hard on a school district that arrested a 7^th grade student who was fake burping in gym class and suggested that ordering the student to run extra laps or go to the principal’s office might have been more appropriate punishments than having the local police department handcuff the student and take him to jail. 

Because we are living in “interesting times,” it is likely that Judge Gorsuch, or a jurist similar to him, will be appointed to the Supreme Court.   However, given his clear track record that is not favorable to special education students, Judge Gorsuch is not an acceptable candidate, and we should advocate that our respective Senators reject his confirmation, and if need be filibuster the nomination. The courts are our bulwark against erosion of the rights of students with special needs, and Judge Gorsuch will not be a champion of those rights.

 

Supreme Court Grants Review in Fry v. Napoleon

In what could be a very significant break though in the law, the Supreme Court agreed to review the 6th Circuit decision in Fry v. Napoleon. Fry was a case involving allowing a service dog in school and whether parents need to exhaust administrative remedies before going to court. Exhaustion means that parents need to pursue a case through the hearing process before bringing a case to court. Obviously having to litigate before an administrative tribunal that often has limited jurisdiction before being able to litigate issues in court creates a significant hurdle to  full adjudication. Here is the Justice Department's brief seeking review in the Supreme Court. Fry if decided for the parents may allow greater access to court for cases under ADA, 504 and IDEA. Stay tuned it is going to be interesting.

Miranda Rights and Your Child

Although I am a special education attorney and not a criminal defense attorney, occasionally I receive phone calls from parents who are angry and concerned because their child has been questioned or searched by school officials for disciplinary infractions or worse. Occasionally these incidents involve school resource officers or police, particularly when drugs or alcohol are involved. Fundamentally, these parents want to know:  were my child’s legal rights violated?  Can my child be questioned by the school or police without my knowledge or consent?  Can my child or his or her possessions be searched? This issue comes up a lot and all too often with serious consequences for the student. Schools play on their authority and make false promises to induce "confessions" even from student with language-based disabilities. Criminalization of school students especially those with special needs is large issue that has not been effectively addressed.

Finding the Appropriate Placement for Students with High Functioning Autism

The fundamental challenge in finding an appropriate placement for the student with higher-functioning autism or Asperger’s syndrome is meeting the child’s emotional or behavioral needs yet not short-changing him or her academically.  Notwithstanding the various challenges the student may have related to the disability, the student may likely be extremely bright.  Many day therapeutic day programs are well-equipped to help the student develop social skills and learn to maintain a sense of equilibrium, but many programs lack academic rigor for the student.

A recent due process case from Massachusetts recognized this placement tension for a student with Asperger’s whose parents had unilaterally placed him in an out-of-state private residential program that they believed better met his needs.  The hearing officer, in agreeing with the parents, stated that although the school district was not required to provide a program that would maximize the student’s potential to ensure FAPE, the school still needed to consider the student’s potential in order to determine whether or not he was receiving “meaningful benefit” from the IEP.  To be meaningful, the student must be able to progress, even when his potential is high. In this particular case, the student had challenges with reading fluency and poor social skills.  Additionally, he could be argumentative and withdraw socially.  Yet the student was very talented mathematically and desired to attend college where he would study math. The hearing officer stated that the placement proposed by the school failed to provide FAPE.  Although the program specialized in students with Asperger’s and could help with the social skills and learning issues, its three teachers, none of whom had content certification, could challenge the student academically.  The program, which was unable to offer students any science labs, had also not sent any students on to college. This relatively flexible view of the FAPE requirement is new twist and one that is not applied in all cases, making this case very interesting to see if it gets applied in other cases.

ACLU files suit in Michigan

The Michigan ACLU has taken the unprecedented step of filing a class action lawsuit in July against the Highland Park School District, the state of Michigan, and other governmental entities for failing to teach the students in the Highland Park School District how to read.  Kary Moss, executive director of the Michigan ACLU, said “This is not a pro or anti-charter case. . . This is not a pro or anti-teacher case.  This is not a pro or anti-emergency manager case. This case, simply put, is about the right of children to read, a right guaranteed under the constitution and laws of this state.” 

 The ACLU has carefully jockeyed to buttress its argument that the right to read is a civil right for the students in Michigan. Although the ACLU acknowledges that state courts have not recognized education as a fundamental right granted by the Constitution, the ACLU points out that the Supreme Court has referred to education as “not merely some governmental benefit which is indistinguishable from other forms of social welfare legislation.”   Additionally, the Michigan Supreme Court has declared that “education is perhaps the most important function of state and local governments,” and the Michigan Constitution “imposes an obligation” on the state to offer a free public elementary and high school education. 

School District Predetermines Placement Denies Student FAPE

Predetermination at IEPs is a frequent charge against school district but often very hard to prove. In the recent case out of Arizona, Deer Valley Unified School District, 111 LRP 71612 (November 1, 2011) case the school district informed the parents in writing what the placement would be, but the team was prepared to hear the parents' position as to why the placement was wrong, and in that way the parents were allowed to "participate" and in the school's view they had not predetermined the placement.  The ALJ wryly rejected this argument stating:

"One wonders what Respondent School District would think if, at the beginning of a hearing, the Administrative Law Judge announced that he has reviewed the exhibits and made a decision for the parent, but will keep an open mind and reconsider his decision upon presentation of further evidence at the hearing."

While most school district's are not so brazen as to publish their predetermination, it does happen on occasion, and parents should be on the look out for such statements that are clearly indicative of predetermination.  In most cases more inferential arguments on the issue of predetermination are not likely to succeed.

Case Rules No Fee Shifting to Schools from Parents

Since IDEA 2004 became the law one topic that has been troubling parents is the prospect of the school district shifting fees to parents when they file due process.  In an Arizona case, the 9th Circuit Court of Appeals, ruled that since the parents' claim could have resulted in remedies in their favor their claim was sound and there could be no fee shifting. The parents lost the due process but were not held responsible for their school district's fees in excess of $140,000 (that number alone is truly astounding for a due process case even with an appeal).

In R.P. ex.rel. C.P. v. Prescott Unified School District, 56 IDELR, (9th Cir. 2011) ruled that the parents' failure to obtain relief and win their case did not mean that the case was baseless or frivolous.  This case is consistent with a decision out of Missouri where the court similarly turned down the district's efforts to shift fees to parents for losing a due process. Under the current law, parents should bring cases that are well founded in the law and facts without fear of being tagged for the school district's fees in the event that they do not win the case.  Winning or losing the case is not the standard for school's to shift fees claims to parents. It is highly advisable to consult an experienced attorney in the area of special education law to make sure that any due process claim is in fact well-founded in IDEIA and that the facts are sound to go forward with a due process filing.