Wednesday, March 29, 2017

Who Won Endrew F? #FAPE #IEP #SCOTUS

I got an email from a reporter last week asking a fascinating question: did parents or school districts win in the Endrew F decision by the US Supreme Court? You can read the entire high court decision here.  Also our previous posts concerning the case are available here and here.

The reporter noted that it seems that parent groups are hailing the decision as a victory for them while at the same time school district groups are saying that they are already providing educational benefit at the level required by this decision. You can see the apparent discrepancy in this story by PBS on whether the decision is a game-changer for special ed.

So who won...well the answer is not very clear. I'm going to give you my analysis, but I'd love to hear your opinion as well. Who won and why?

For the parties to the actual case, the matter was remanded to the Tenth Circuit. This means that there will be further court proceedings before we know who prevailed in this case.

For purposes of special education law, however, the answer is a little foggy. School districts clearly won to the extent that the Supremes did not overturn Rowley. In fact the decision does not even mention the battle between some benefit vs. meaningful benefit that the earlier pleadings and argument seemed to involve. So Rowley is still good law.

On the other hand, parents clearly won to the extent that the high court required more benefit than the more than trivial or de minimis standard used by the Tenth Circuit Court of Appeals. To provide FAPE, a school district has to do better than that. The unanimous Supreme Court held that the standard is "markedly more demanding" than the standard used below.

However, school districts clearly won to the extent that the court rejected the potential maximizing standard that was previously rejected by Rowley. The Court refused to require an IEP that lead to self-sufficiency, academic success, and the ability to contribute to society. The Court rejected the argument that opportunity equal to that received by non-disabled students is necessary. In this regard, the Court mentioned that the Congress had amended IDEA a number of times since 1982 and yet never overruled Rowley so that it was good law still. Potential maximization arguments that had been rejected in Rowley continue to be rejected. So an IEP must be reasonable not ideal.

Nonetheless, parents clearly won to the extent that the court made FAPE turn on the individual circumstances of the child. The Court stated, "The goals may differ, but every child should have the chance to meet challenging objectives..." Rather than develop a bright line rule, the Court adopted an individualized fact specific approach.

OK so everybody won. Or at least you can see why they all believe that they won.

The real answer to the question will turn on how hearing officers and courts apply the new standard to actual fact patterns.  The new standard requires that an IEP must be reasonable given the unique circumstances of the child with a disability. In other words, the IEP must be reasonably calculated to enable a child to make progress in light of his own individual circumstances. Students fully integrated in general education classrooms will be expected to make passing grades and advance from grade to grade. Other special education students may not need to make grade level success to receive FAPE as the standard for them is somewhat lower. 

Hearing officers and courts will follow the Supreme Court's instruction and apply the revised standard on a case by case basis. They will engage in a fact-specific analysis involving the unique circumstances of the child with a disability. To some extent, what is "reasonable" is in the eye of the beholder.

So how will hearing officers and courts apply the newly clarified FAPE standard? Stay tuned.

Monday, March 27, 2017

Weekly Question!

We recently ran a post asking whether special education is in danger. What do you think? #IDEA #POTUS

Thursday, March 23, 2017

More On Endrew F Supreme Court Decision #FAPE #IEP #IDEA

We ran an analysis of the Supreme Court decision yesterday that clarifies the FAPE standard- the most important substantive requirement of IDEA. You can read the post here.

Some additional thoughts. First, the Court did not get to the some benefit vs. meaningful benefit debate which seemed to be the real question in the petition for certiorari. Instead, the court rephrased the FAPE standard without reversing the Rowley decision. So the new standard is that an IEP must be reasonable given the unique circumstances of the individual child with a disability.  The high court stated that although the standard does not require an ideal education or potential maximization, it clearly requires more than a trivial or de minimis educational benefit. So what do you think of this new FAPE standard?

One reader has suggested that parents may now fight harder for full inclusion because of the court's statement that generally students in the general education classroom receive FAPE where they make grade level progress and advance from grade to grade. Do you agree?

Here are some other analyses of the decision: The SCOTUS blog gave this analysis; as well as a roundup which included this blog's analysis. Here is the NPR story on the Endrew F decision.

More on this big decision next week.

Breaking News: Supreme Court Clarifies FAPE Standard #FAPE #Endrew F #IEP

OK big news. The United States Supreme Court issued a big decision on Wednesday. The high court clarified what FAPE means and how courts should apply the FAPE requirement.

The decision in Endrew F by Joseph F v. Douglas County Sch Dist RE-1, # 15-827,  580 U.S. ______ (2017) vacates and remands a previous decision by the Tenth Circuit. We have had a number of previous posts on this case which can be reviewed here, here, here, here and here.

First a few preliminary observations. First this was a unanimous decision, the second special ed unanimous decision by the Supremes this year. So we have a new slogan of this area of law: Special ed law...bringing people together!

Second this is not the case in which my outline was cited in an amicus brief to the Supreme Court by NASDSE, NSBA. AASA and other groups, you can read about my notoriety here.

Third, although this opinion clarifies how courts should apply the FAPE standard, the court's decision does not overrule the seminal Rowley decision. Instead, it clarifies Rowley and explains how courts have not been correctly interpreting the decision.

Now for some general analysis- the new gold standard for FAPE is: to meet its obligations under IDEA, a SD must offer an IEP reasonably calculated to enable a child to make progress in light of the child's circumstances. The court described this standard is a fact-intensive exercise. The question is what is reasonable not what is ideal.

The Supreme Court said today that the Rowley decision sheds light on what appropriate progress will look like in many cases- where a child is fully integrated in regular education classes, that is the IEP must be reasonably calculated to make progress and to make passing marks and advance from grade to grade. The court noted that the facts of Rowley fit this analysis. In footnote # 2, the court reiterated the language in Rowley that it was specifically declining to hold that every child advancing from grade to grade is automatically receiving FAPE. The Court also noted that the fact that the new standard is not a bright line is not in any way a suggestion that a court substitute its own notion of sound educational policy for that of professional educators.

But where a child is not fully integrated in regular education classes, the IEP need not aim for grade level advancement. Instead, the IEP must be appropriately ambitious in light of the child's circumstances. The goals may differ, but every child should have the chance to meet challenging objectives. 

The clarification, according to the Court, is a standard not a formula- but in any event it is "...markedly more demanding than the 'merely more than de minimis' test applied by the Tenth Circuit. It cannot be the case that the Act typically aims for grade level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot."

The Supreme Court decision also flatly rejected the parent's argument that FAPE requires an opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.  The court here noted that Congress has reauthorized IDEAa number of times without overruling the Rowley decision which had rejected a similar potential-maximizing FAPE standard, so it would not adopt the parent's proposed FAPE standard.

The court stated..."We will not attempt to elaborate on what “appropriate” progress will look like from case to case. It is in the nature of the Act and the standard we adopt to resist such an effort: The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created."

So what do you think about the new gold standard for FAPE? It is pretty clearly broader than the   FAPE standard of more than de minimis which many lower courts had interpreted Rowley to mean- but how much higher is the bar set for students with disabilities? We will have more on Endrew F in future posts.

You can and really should read the entire supreme court decision here.

Monday, March 20, 2017

Weekly Question!

We recently ran a post asking whether special education is in danger. What do you think? #IDEA #POTUS

Thursday, March 16, 2017

2017 CADRE Symposium #CADRE

CADRE, the National Center on Dispute Resolution in Special Education, will sponsor a Symposium this fall.  CADRE conferences are the best.  Right now, CADRE is seeking proposals to present at Restoring Focus on the Child: CADRE’s Seventh National Symposium on Dispute Resolution in Special Education. Keeping the theme in mind, CADRE is seeking proposals with a focus on child-centered dispute resolution processes emphasizing strategies which ultimately yield improved and successful outcomes for children with disabilities. Proposals must be received by email by April 21, 2017 to be considered.

 Objectives for this Symposium: Symposium participants will have the opportunity to:
  Examine collaborative dispute prevention and conflict management strategies within the expanding continuum of dispute resolution practices in special education and early intervention. 
 Learn about innovations, initiatives, and current research in the field of dispute resolution.
 Receive information, resources, and guidance related to the design, implementation, and improvement of dispute resolution processes and systems. 
 Enhance communities of practice, and connect dispute resolution coordinators, practitioners, educators, and parent leaders with each other and nationally renowned experts in the field. 
 Acquire advanced conflict management skills and knowledge critical to the effective resolution of disputes. 

You can access the rfp form at the CADRE website. Please let me know if you will be attending.

Monday, March 13, 2017

Weekly Question!

We recently ran a post asking whether special education is in danger. What do you think? #IDEA #POTUS

Monday, March 6, 2017

Weekly Question!

We recently ran a post asking whether special education is in danger. What do you think? #IDEA #POTUS

Friday, March 3, 2017

Procedural Safeguards - The Series Part XII #attorney's fees

This is the final installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you thought about the series.

Attorneys’ Fees

IDEA’04 changed the section on attorneys’ fees to provide that a school district or SEA may now recover their attorneys’ fees from the parent’s attorney who files a complaint that is frivolous, unreasonable, or without foundation or who continues to litigate after the litigation clearly becomes frivolous, unreasonable, or without foundation. Section 615 (i)(3)(B)(i)(II). Also, the statute now provides that a school district or SEA may now recover their attorneys’ fees from the parent or the parent’s attorney where the claim was presented for an improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation. Section 615 (i)(3)(B)(i)(III). The standard for an award against a parent’s attorney or a parent is very high, and it is unlikely that many awards of attorneys’ fees will be made against parent’s attorneys, and especially against parents without attorneys. These new provisions, however, may cause counsel who represent parents to decline borderline cases. There could also be awards in those rare cases in which parents clearly abuse the system. OSEP declined to clarify the standard for an award of attorney’s fees against a parent stating that judicial interpretations would likely vary on a case-by-case basis and should be left to the discretion of the court. 34 CFR Section 300.517(c)(2)(ii); 71 Fed. Register No. 156 at page 46708 (August 14, 2006).

The provision permitting an award of attorneys’ fees to parents who prevail in a due process or court proceeding remained unchanged in IDEA’04. The regulations provide that attorney’s fees may not be awarded for attending IEP team meetings, except where they are convened as a result of judicial action, an administrative proceeding, or in the discretion of the state, for a mediation. 71 Fed. Register No. 156 at pages 46708-09 (August 14, 2006).

In Arlington Cent. Sch. Dist Bd. of Educ v. Murphy   548  U.S. 291,     126 S.Ct. 2455, 45 IDELR 267 (6/16/06) the Supreme Court ruled that a parent who prevails in an IDEA case is not entitled to recover expert witness fees under the Act’s provision allowing recovery of reasonable attorney’s fees and costs.

A parent's right to attorney's fees may be cut off if the parent declines a settlement offer and then receives less relief after hearing. See, TB by Brenneise v San Diego Sch Dist 795 F.3d 1067, 66 IDELR 2 (Ninth Cir 7/31/15){see corrected opinion at 115 LRP 54544 (9th Cir 11/19/15)} 

ADDITIONAL RESOURCES: OSEP has also published a Question and Answer document, Questions and Answers On Procedural Safeguards and Due Process Procedures For Parents and Children With Disabilities (OSEP Revised June 2009). The Q & A document is available at the OSEP IDEA website