Tuesday, September 16, 2008

Eligibility for Special Education - Part II

Last week, I noted that there have been a lot of decisions by courts and hearing officers in the last year and a half concerning special education eligibility. After explaining the two part legal definition of a "child with a disability," I mentioned that my friend Professor Mark Weber had written a new law review article concerning eligibility. The excellent article is very long, but I wanted to talk about Mark's persuasive argument that some courts seem to be being very
restrictive in interpreting the second (needs SpEd) prong of the eligibility standard for special education.
Two decisions illustrate his point. In Hood v. Encinitas Union School District 486 F.3d 1099, 47 IDELR 213 (9th Cir. 4/9/7), the Ninth Circuit Court of Appeals held that the Rowley "some benefit" standard should be used in determining the second prong of the eligibility standard. Professor Weber points out that the Rowley standard applies only to whether services are appropriate. The analysis of whether a disability causes a child to need special education should be a much lower bar. Using the elevated standard, the Court held that a child with specific learning disabilities who made good grades but who had difficulty completing assignments, staying organized and submitting assignments to be not eligible.
The second opinion is Alvin Independent School District v. A.D. by Patricia F 503 F.3d 378, 48 IDELR 240 (5th Cir. 10/4/7). In that case, the Fifth Circuit Court of Appeals also used the Rowley standard (good grades and test scores) as well as the testimony of teachers that the student could succeed without special education to conclude that the student was not eligible. Accordingly the court ruled that a student with ADHD and a number of behavior issues was not eligible for special education.

You can find Mark's entire law review article "The IDEA Eligibility Mess," at this link:

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