New Hot Button Issue: IEP Implementation Part II

In the previous installment in this series, we discussed Van Duyn ex rel Van Duyn v. Baker Sch Dist 5J 481 F.3d 770, 47 IDELR 182 (9th Cir. 4/3/2007). In that decision, the Ninth Circuit majority found that minor discrepancies between the services actually provided and those specified in the IEP do not constitute a violation of IDEA. To constitute a violation, a school district’s failure to implement an IEP must be material, the court ruled. A material failure occurs, the Court said, "...when the services a school provides to a disabled child fall significantly short of the services required by the child's IEP."

This came as pretty big news to many of us, including the dissenting judge on the Ninth Circuit Court of Appeals panel, who thought that the "rule" was that a district pretty much had to implement all of an IEP. We also pointed out that "rules' in special education law generally must be written in pencil and on scratch paper and placed in a looseleaf binder.

Special education law, it seems, is new law. We don't have "hornbooks." It isn't like the lawyer's best friends- contracts and property law. Things keep changing. Nobody knows how a court is going to rule until the court rules, and occasionally, not even then.

Well, as one might well expect, Van Duyn is probably not going to be the last word here. That's where the hot button status comes in. Other courts have reached the opposite conclusion

For example, in DD by VD v. New York City Bd of Educ 465 F.3d 503, 46 IDELR 181 (2d Cir. 10/12/2006), the United States Court of Appeals for the Second Circuit was presented with the school district’s argument that partial implementation of IEPs constituted the necessary ”substantial compliance” required by IDEA. The Court rejected that argument and held that substantial compliance in IDEA pertains only to a district’s right to receive funding. The Court concluded that FAPE obligation as defined in part by the child's IEP, on the other hand, requires “compliance.” End of discussion.

If the Second Circuit opinion sounds a bit different to you than the holding of the Ninth Circuit, welcome to the uncertain world of special education law! If you prefer clarity of rules and centuries of precedent, you just might be a property lawyer. Forget lawyers, imagine the looks I get when I try to reconcile these types of disparate outcomes to teachers and building principals or to parents. It must be a tough time to be a professional educator or to be a parent of a child with a disability.

We will discuss the new hot button issue of IEP implementation further in a future installment in this series.