COPAA Sues US DOE Over Delay in IDEA Regulations on Disproportionality

On Thursday, July 12, 2018, The Council of Parent Attorneys and Advocates (COPAA) sued the U.S. Department of Education, Secretary Betsy DeVos, and Johnny W. Collett, Assistant Secretary for Special Education and Rehabilitation Services, for delaying implementation of the Equity in IDEA regulations, otherwise known as the significant disproportionality regulations. These regulations require that states examine their statistics to make sure that special education laws are being applied equally across all racial groups. Studies have shown that students of color are often wrongly under-identified or over-identified for special education. If under-identified, disabled students do not receive the services that they need, are disciplined for behavior related to their disabilities, and are not otherwise provided with the protections to which they are entitled. If over-identified, students without disabilities are wrongly placed in special education and denied access to educational instruction that is appropriate for them. The regulations, written during the Obama administration, are intended to guard against over- or under-inclusion by requiring states to measure whether there is racially significant disproportionality in the way a school district identifies, places, or disciplines students with disabilities. If disproportionality is found, a State must review how the school district implements the IDEA and analyze the factors that contribute to the difference in the way racial groups are treated. If the disproportionality reflects real differences among different student populations and does not result from violations of the IDEA, no further action is required. If, on the other hand, the disparity is unexplained, corrective measures must be taken using a percentage of IDEA funding.

The regulations were supposed to take effect on July 1, 2018. Last week, the US Department of Education announced that it was delaying the implementation of these regulations for two years. COPAA charges that the government offered no reasoned explanation for its decision to delay the implementation date by two years, and failed to consider the cost to parents and students of the delay.

Immigrant children have the right to attend school without ICE interference

In the six months since Donald Trump was sworn in as President, the U.S. Government has stepped up efforts to deport individuals who have immigrated to our country. There are about 2.5 million undocumented youth in our country. Their immigration status should not affect their right to be in school.

Immigrant children have a constitutional right to K-12 public education. School districts cannot create a chilling effect on school attendance by requiring a birth certificate, or a social security number, or a copy of a parent’s driver’s license prior to admission. Although school districts are permitted to ask for this information, they cannot require it as a condition of enrollment. Additionally, school districts are prohibited from asking about a child’s or a parent’s immigration status.

In 2011, Immigration and Customs Enforcement (ICE) adopted a memo that identified certain “Sensitive Locations” and which currently prohibits ICE from engaging in enforcement activities at those locations. These include schools, hospitals, clinics, places of worship, and public demonstrations. ICE should therefore not be conducting any arrests, interviews, or searches on school grounds. There have been scattered reports, though, of ICE agents staking out positions near schools and intercepting parents as they pick up and drop off their children. Although likely not illegal, these actions imperil immigrant children’s constitutional right to a public education.

Parents Prevail at U.S. Supreme Court in Endrew F.

On March 22, 2017, the U.S. Supreme Court issued one of the most significant special education decisions in decades. The case, Endrew F. v. Douglas County School District, concerned a young boy with autism. Endrew F. et al. v. Douglas County School District RE-1 (Slip Opinion, March 22, 2017).

Endrew had attended his local public school from pre-school through 4th grade. Endrew’s severe behavioral difficulties related to his autism made it impossible for him to make any real educational progress: he screamed, climbed over furniture and other students, bolted from the classroom, and was obsessively fearful of many common items (flies, germs, etc.). At the end of 4th grade, his parents concluded that Endrew was not making any progress either academically or functionally.

For many years, Endrew’s Individual Educational Programs (IEPs) were largely the same: Endrew’s IEPs repeated the same basic goals and objectives year after year. Endrew’s parents concluded that a totally new approach was needed in order for Endrew to break the cycle and make progress. The school district, however, presented Endrew’s parents with the same IEP and approach for 5th grade that it had offered for years. Endrew’s parents had had enough. They removed Endrew from the Colorado public school and placed him at Firefly Autism House, a private school that specializes in educating children with autism. Endrew did very well at Firefly; his behavior improved so much in 6 months that he was able to make progress on his academic goals. Endrew’s parents met with the Douglas County School District to request that it offer an IEP with the same behavioral approach used by Firefly. Instead, school officials offered an IEP substantially identical in approach to that offered in all of the previous years. Endrew’s parents filed for a hearing, contending that the IEP offered by the school district was not reasonably calculated to provide Endrew with a free appropriate public education (a “FAPE”) as the federal special education law requires.

Endrew’s parents lost at the administrative level, the district court level, and at the circuit court level (10th Circuit). Those courts agreed that Endrew had not shown “immense educational growth,” but they concluded that because Endrew’s IEPs had been modified slightly year over year, those modifications were enough to establish that Endrew had made some minimal progress on at least some of his objectives. As the proposed IEP was similar to the past IEPs, the courts reasoned that it, too, would allow Endrew to continue to make at least “some” progress. The courts concluded that “some” educational benefit was all that the law required, and that the IEP was sufficient as long as it would confer an educational benefit that was “merely … more than de minimis.” (In so holding, the 10th Circuit panel followed a 2008 decision authored by current U.S. Supreme Court nominee Neil Gorsuch.)

The U.S. Supreme Court heard argument on the case in January 2017. The school district aimed lower than even the 10th Circuit, contending that the federal special education law (known as “IDEA”) does not require schools to provide any particular level of education. Rather, the school district claimed that the IDEA only prescribes a set of procedures that school districts are required to follow when producing an IEP. Endrew’s parents argued that the IDEA requires much more, and urged that the law mandates a school district to propose an education that would provide an opportunity to a disabled child that is “substantially equal” to that provided to non-disabled children.

The Supreme Court declined to adopt either approach. The Court rejected the parents’ “substantially equal” approach on the grounds that it was unworkable and would require school districts and courts to make “impossible measurements and comparisons.” The Court also rejected the school district’s interpretation that the IDEA requires only adherence to certain procedures. The Court observed that the IDEA cites to the child’s ability to make progress in the general education curriculum as the standard for crafting the individualized education program. The Court concluded that the IDEA expects that the typical level of instruction provided for most students will be a level that allows a disabled child to advance year over year through the general education curriculum.

What, then, of those disabled children like Endrew F. who are not capable of advancing with their same-aged peers through the general education curriculum? The Court observed that an education that provides those children with “barely more than de minimis progress” is “hardly an education at all.” The Court held that such a child’s educational program “must be reasonably calculated to enable a child to make progress appropriate in light of his circumstances.” This new standard is repeated three times in the decision. The Court thus vacated the 10th Circuit Court’s decision and sent the case back for further consideration.

Determining what the new Endrew F. standard means in any particular case is the challenge for the future. The court declined to define what would be an appropriate education in all cases, noting that each child’s circumstances are unique. Rather, it stated that the educational program must be “appropriately ambitious” in light of the student’s circumstances, just as it is “appropriately ambitious” to expect that students who are fully integrated into the general education environment will learn the curriculum and advance from year to year. (In an interesting footnote that could become important in years to come, the Court explicitly stated that it was not ruling that every child who advances from grade to grade is automatically receiving a FAPE.) The Court also put school districts on notice that although courts will continue to defer to the expertise and judgment of school officials in these cases, reviewing courts will expect that a school district will be able to offer “a cogent and responsive explanation” of how the particular student’s IEP is reasonably calculated to allow that student to make progress that is “appropriate in light of his circumstances.”

This decision is a victory for children with special needs, their parents, and for all those who care about disabled students. The Court recognized that every child should have the opportunity to be challenged, and that the IDEA requires an education that is “markedly more demanding” than a program that yields minimal results. It explicitly rejected the idea that the law countenances an education where students sit idly by, waiting for the time when they are old enough to drop out. Against the backdrop of a system where too many of our students continue to be dead-ended in tedious and unambitious programs, this is an important and encouraging decision.

A Win at the U.S. Supreme Court: Fry v. Napoleon Community Schools

Disability rights advocates cheered last week as the U.S. Supreme Court ruled unanimously in favor of a disabled student. The decision, Fry v. Napoleon Community Schools, is a technical one and not likely to widely affect disabled students and their parents. The student, a kindergartner, has a severe form of cerebral palsy. She sought to bring her service dog “Wonder” to school. The district refused her request. The family withdrew their daughter from the school, began to home-school her, and sued under two federal laws that prohibit discrimination against disabled people. As the case wound its way through the courts, the school district argued that the family’s filing was premature because the law required that they first exhaust all of their claims under the federal special education statute. Exhaustion is a legal doctrine that will sometimes require parties to finish suing under one law or in a particular forum before they are allowed to proceed in another. In this case, the family had made no claims under the federal special education statute, but the school district argued that the family should have to proceed under that law anyway and commence their claim in an administrative forum. This approach has recently found favor in many lower courts, and its application, even when no special education issues are pleaded, has served to excessively burden parents with extra costs and time delays. The Supreme Court Justices ruled, 8-0, that the Frys were not required to exhaust special education claims when they were not suing under the special education statute and had asked for no remedy available under that law. This ruling will allow plaintiffs who have claims under statutes like 504, the Americans with Disabilities Act, and Title IX to proceed directly to court when they are not seeking relief pursuant to special education laws.

New Secretary of Education Confirmed

On February 7, 2017, Betsy DeVos was confirmed with the narrowest of margins by Congress. Senators split 50-50, which required Vice-President Mike Pence to cast a historic tie-breaking vote in DeVos’ favor. Many special education activists and groups, teachers, and parents had urged their Senators to vote against DeVos amidst concerns that she was unqualified to serve as Secretary of Education. At her confirmation hearings, she appeared to know almost nothing about special education laws, at one point suggesting that special education was a matter for the states and not something that the federal government should concern itself with. In fact, federal law governs most special education and disability rights matters. Were it otherwise, a student could move from one state to another and suddenly find herself without any special education services. As the law stands now, all states must provide a certain level of services, and individual states are free to provide more than the minimum if they choose to do so. Massachusetts has elected to do this and provides some additional protections to students with disabilities that are not available under the federal law.

As Secretary DeVos begins her term, all those concerned with special education rights must pay close attention to any new guidance, regulations, or proposals to amend federal special education or disability laws. It is possible, as DeVos becomes acquainted with the area, that the new Secretary will see the value of the IDEA (the federal Individuals with Disabilities Education Act) and other disability-rights statutes and move to preserve and strengthen them. The opposite is also possible. It would be wise to be vigilant in the days and weeks to come.

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

Mark Van Doren

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