 |
| The Delicate Arch, a natural arch near Moab, Utah (Photo credit: Wikipedia) |
The 2014 Utah Institute on Special Education Law was fantastic as always. At least it was once I finally got there. My presentation went well; those in attendance participated actively and made great comments during a two hour session right after lunch on the second day of the conference. I enjoyed it, and the discussion was rich.
My topic was procedural violations - which ones are more likely to be actionable. It involved a review of recent court decisions involving procedural violations. First some law:
There
are four categories of IDEA violations that can result in a due process hearing
or court appeal: Denial of a Free Appropriate Public Education (FAPE);
inappropriate educational placement; inappropriate evaluation and failure to
identify. IDEA §§615(f)(1)(A), 615(b)(6).
Decisions by a hearing officer concerning FAPE must be made on
substantive grounds. IDEA §615(f)(3)(E)(i); 34 C.F.R. §300.513(a)(1) ; See 71
Fed.Reg. No. 156 at 46707.
Unlike
substantive violations of the Act, procedural violations are only actionable if
they impede FAPE; or significantly impede the parents’ opportunity to
participate; or cause a deprivation of educational benefits. IDEA § 615 (f)(3)(E) {20 U.S.C. §1515(f)(3)(E)}; See
34 C.F.R. § 300.513(a)(2); See District of Columbia Public Schs (JG) 111
LRP 23798 (SEA DC 1/28/11); In Re: Student With a Disability 58 IDELR
270 (JG) (SEA WV 3/6/12); Midd West Sch Dist 112 LRP 42002 (JG) (SEA
Penna 7/22/12). This provision was added by the 2004 reauthorization, but many courts
had already read the old IDEA to the same effect. For example, see, D. L. ex. rel. J. L. v.
Unified Sch. Dist. 42 IDELR 139 (Tenth Cir. 2004); M. L. v. Federal Way
Sch. Dist. 39 IDELR 236 (Ninth Cir. 2003); and Gadsby v. Grasmick 25
IDELR 621 (Fourth Cir. 1997). The Act also notes that despite the rule
regarding procedural violations, a hearing officer may order an LEA to comply
with procedural requirements of the law. §615(f)(3)(iii).
Compliance
with IDEA procedures is important. As
the Supreme Court noted in the seminal Rowley decision, the ACT’s procedural
requirements are significant. To
determine whether a child with a disability has been provided a free and
appropriate public education ("FAPE"), the Court announced a two-part
test. The two part test involves first whether or not the school district has
substantially complied with the procedural safeguards in the Act and second an
analysis of whether the student's IEP is reasonably calculated to confer
meaningful educational benefit. Bd.
of Educ., etc. v. Rowley, 458 U.S. 178, 102 S. Ct. 3034, 553 IDELR 656
(1982)
In the next post I will discuss the meat of the presentation.
.
I enjoyed this entry Jim! Hope you had a nice time in Utah.
ReplyDeleteThanks Claude.
DeleteJG