US Supreme Court Hears Special Education Case

On January 11, 2017, the U.S. Supreme Court heard oral argument in an important special education case, Endrew F. v. Douglas Co. School District RE-1. Endrew is a child with autism. He attended the public school system in Colorado through 4th grade. During that time he developed severe behavior problems, including repeatedly injuring himself and bolting from the school. His parents claimed that he made no academic progress in 2nd, 3rd, or 4th grade. The school did nothing to combat the behavior problems. Endrew’s parents withdrew him from the public school and placed him in a private school for autistic students. Endrew made rapid progress at the private school and the parents asked the public school to reimburse them for the private tuition.

At issue in the court case is whether a school district has to provide disabled children with an education that allows them to make meaningful progress or whether any amount of progress, as long as it is slightly more than trivial, is good enough. The administrative law judge concluded that Endrew had made “some progress” on a few of his goals in the public school system, and that was all that was required. Reimbursement of tuition was accordingly denied. The district court, in reviewing the administrative decision, agreed, concluding that minimal progress and “some” educational benefit is all that the law mandates. The 10th Circuit Court of Appeals affirmed. The Supreme Court will now decide what kind of education disabled children are entitled to under the federal special education law.

At yesterday’s oral argument, the attorney for the school district argued that as long as schools follow the procedures of the special education law — evaluate, convene team meetings, write IEPs, permit parental involvement in team meetings — districts are doing all that they are legally required to do. The attorney for the student argued that Congress intended that disabled children should have an educational opportunity equal to non-disabled children and that the Act therefore requires that a school provide a student with an educational program that allows the student to make meaningful progress year over year.

Ultimately the Court will decide whether disabled kids are guaranteed an education that provides them with meaningful benefits that will lead to, to the extent possible, post-secondary education, employment, and independent living, or whether these vulnerable kids are entitled only to an educational program that provides “some” progress and leaves them with a very uncertain future. The decision is expected in the spring of 2017. Watch this space.

College Board Accommodation Process Just Got Easier

According to Education Week, The College Board has announced that it will more readily approve accommodations for the SAT, PSAT, and AP tests beginning January 1, 2017. As many who have attempted to receive accommodations know, applications for accommodations have frequently been denied by College Board despite appropriate documentation. Some students who routinely receive accommodations from their schools pursuant to IEPs or 504 plans have had to take the College Board exams without these accommodations, resulting in lower scores. The U.S. Department of Justice has reportedly been looking into the practices of College Board and its competitor, ACT, Inc., after receiving persistent complaints. Education Week reports that College Board will soon begin automatically approving accommodations for students if the accommodations requested are provided by their school through an IEP or 504 plan.

Transition plans and the team process

When students turn 14 (in Massachusetts), IEP teams are required to consider “transition services.” Students with disabilities are far more likely than non-disabled students to have difficulty successfully navigating post-secondary education, finding and holding a job, and living independently. The point of transition planning and transition services is to make your student ready to participate in post-secondary education if that is appropriate, live as independently as possible, and be gainfully employed. Transition planning is a results-oriented process in that it is focused on how to move the student from where he is now to where he wants to be. The transition plan is a set of coordinated activities which is based on the student’s vision for himself.

Eligibility for special education services (and with it, transition services) terminates upon high school graduation or when the student turns 22, whichever comes first. So, it is obviously important that your student not accept a high school diploma and not graduate from high school before he or she is ready, because graduating will terminate eligibility for services.

From the time a student turns 14, the IEP team is supposed to look forward to the future, consider the student’s vision for herself, and discuss how to help her achieve her goals. The student should be the star of the show at this time, because it is the student’s interests, goals, and plans which are the primary focus. The student should attend these meetings and be encouraged to participate as best she can. You should additionally invite anyone to team meetings who you think has a unique perspective on your student, her skills, and her needs (e.g., a coach, a boss, a mentor, etc.). When discussing the student’s goals, the conversation should be specific. Appropriate topics could and should include what education the student wants to pursue, what employment the student would like to achieve, what leisure activities the student would like to be involved in, and where the student wants to live (e.g., city or suburb?; independently in an apartment, in a supported living environment, or with family?). These conversations will evolve over time.

Once the IEP team figures out what the student wants and needs, it must be documented in the IEP. There should be goals which describe what the student needs to work on and there should be services on the service delivery grid which will help the student achieve those goals. It is not enough to just fill out the Transition Planning Form (the “TPF”). The conclusions drawn from the TPF must be put into the IEP as goals, objectives, and services.

Retaliation is a no-no

If you are advocating on behalf of your student, a school district is prohibited under federal law from retaliating against you in any way. Recently, the U.S. Office for Civil Rights (OCR) resolved two cases in Virginia concerning two individuals who were working on behalf of students. In one case, a mother who was employed by the school district was terminated from her job after advocating for her child. The district argued that it had fired the mother because of job performance, but OCR found that the reasons given for termination were a pretext for retaliation for the mother’s work on behalf of her child. In the second case, a school district instructed all of its staff to stop communicating with an advocate who was working on behalf of several children, going so far as to block the advocate’s e-mail account. The case was resolved when the district agreed to restore the advocate’s access and conduct a training program for its employees.

If you have experienced conduct by any school employee which you believe is retaliation for your advocacy on behalf of your student, you can read about the Office for Civil Rights’ complaint processing procedures here. Professional assistance in filing OCR complaints is not required, but is often a good idea.

Get an IEP in Place for the Fall

Time to get an IEP in place for the fall! Although it is still hot outside, every school child can feel the chill of school approaching. In fact, schools will be back in session in about 3 weeks. The law requires that schools have IEPs in place for eligible individuals at the beginning of the school year. It is not acceptable for schools to tell parents that they must wait 6 weeks before an IEP is drafted because the school staff need to get to know the student. IEP teams must do their best to craft an IEP that will meet the student’s needs. Of course, IEPs can be amended at any time if the student is not making progress, and, in fact, it is the school’s obligation to convene a team meeting and amend an IEP if a student is not making progress toward his goals.

“The art of teaching is the art of assisting discovery.”

Mark Van Doren

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