Friday, August 15, 2014

Procedural Violations: My Presentation at the Utah Special Education Law Institute - Part I

The Delicate Arch, a natural arch near Moab, Utah
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.