Wednesday, October 8, 2008

Hot Button Issue: IEP Implementation - Addendum

When I do caselaw updates at conferences, I often include a topic on Hot Button Issues. IEP
Implementation is now in that category. I asked a group of special ed administrators recently, "how much of an IEP do you have to implement?" I was reassured when about all couple hundred of them said "all of it!" (I am purposefully omitting any expletives.) I'm glad that I was not the only one reading the law this way.

I then explained the Van Duyn decision. In a two to one decision, the U. S. Circuit Court of Appeals for the Ninth Circuit held that a school district’s failure to implement an IEP must be material to constitute a violation of IDEA. Van Duyn ex rel Van Duyn v. Baker Sch Dist 5J 481 F.3d 770, 47 IDELR 182 (9th Cir. 4/3/7). The Ninth Circuit found that minor discrepancies between the services actually provided and those specified in the IEP do not constitute a violation. 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. Minor discrepancies between the services provided and the services called for by the IEP do not give rise to an IDEA violation." The majority found that failures to implement the student's behavior management plan and to present material at his level, among other allegations, were not "material failures" to implement, and therefore, there was no violation of IDEA. (For the record, and believe me there is ALWAYS a record, I strongly disagree with this holding and I believe that it misstates the law.)

Then I reminded them that special education law is new law. New law may be defined as anything that did not come over on the boat from England. Because the federal special education law came into existence in the 1970's, it qualifies as very new law. Most lawyers do not like new law. They like contracts and property law where there are clear-cut answers and they can give advice to their clients with some degree of certainty concerning what the law is. New law, on the other hand, is very unsettled. There is even a built in cycle of uncertainty with brand new laws: the statute is enacted; federal regulations are promulgated; state regs are promulgated; hearing officer decisions emerge, court decisions are handed down; the statute is reauthorized, usually with amendments to the law; new federal regs are issued. It is tempting to use the phrase ad naseum, but Latin isn't really my thing.

Then I told them not to worry because they do not live in the Ninth Circuit. Then I ask them again, "how much of an IEP do you have to implement?" and again they all said "all of it!" At least for now, they are right. Look for a flurry of new cases on this topic.


  1. Thanks for your vote.
    I have done the same with you blog.
    Greetings from Murcia.

  2. Thanks for your vote. You are now one of approximately 6.3 Trillion people who have voted for my blog, and I've returned the favor. I'm pretty sure that's the figure, but I may be confusing it with economic news....hard to tell after a 5th of rum.

    Cap'n Bob
    a.k.a. TheMightyGuru

  3. Jim wrote: "I asked a group of special ed administrators recently, "how much of an IEP do you have to implement?" I was reassured when about all couple hundred of them said "all of it!" (I am purposefully omitting any expletives.) I'm glad that I was not the only one reading the law this way."

    Ah, in theory, yes, but in the real world...

    Special ed administrators know that that's what they're supposed to say. In the micro world (the school buildings, the principals, and the teachers' classrooms), IEPs do go ignored -- especially by the general education teachers. Special ed administrators -- even the very good ones -- have very little authority, if any, over building principals, hired/tenured teachers, and direct IEP implementation. Special ed administrators, (and parents) have a tough job influencing front-line teachers even with *the law* in their corner.

    Special ed teachers are often akin to the annoying "little sister/brother" that the other teachers ignore or treat as insignificant. I know b/c I'm a parent who is helping my son's SE teacher educate her fellow teachers, because, as she said to me, "I don't understand why the other teachers don't respond to me. It's like I'm not sure they even want your son in their class." My response, "Isn't that sad that you, as their colleague, don't know if they want my son in their class."

    Jim, love your blog's perspective, but there is a huge disconnect between the letter of the law and carrying it out for the benefit of special ed children. Not all parents can afford to retain a lawyer when the schools violate the IEP so we end up educating ourselves and confronting a system that has paid legal experts up the whazoo.

  4. Thanks for your perspective Pass.

    In your opinion, is there a way to change the law to make it better for implementation purposes?

    By the way, I agree with your perception, I love special education teachers and related service providers. They are almost always in it for the kids, and if I had my way most of them would be cannonized.

    I also continue to believe that most administrators try to do the right thing. I have heard from plenty of parents who disagree, but I still think most try to get it right.

    I also share your concern about the cost of legal counsel. In many parts of the country, there are very few lawyers conversant with any "new law," especially SpEd. I have written previous post feraing that the all inportant procedural safeguards may be being accessed disproportionately by wealthy families.

    Please keep reading.


  5. Thanks for the vote, right back atcha!