In the 1963 movie A Child is Waiting, characters played by Burt Lancaster and Judy Garland argue about whether “mentally retarded” children are capable of learning and should be educated. The movie ends with a father reluctantly visiting a facility – a state mental institution – and being stunned to see his developmentally disabled son recite poetry from memory. Strikingly, there is no discussion in the movie of providing these students with access to the public schools.
It would take more than a decade before Congress would pursue that idea in a meaningful way. It passed a law called the Education of All Handicapped Children Act, which was renamed the Individuals with Disabilities Education Act (IDEA) in 1990. Guided by this law and decisions by courts about what it means, schools have made great strides in educating students with physical limitations, developmental disabilities, emotional issues and learning disorders.
While it was a great achievement, IDEA also placed a tremendous responsibility and cost on public schools. Our schools and our legal system have far to go to ensure limited tax dollars go to education and not litigation.
What IDEA requires
In 1975, the majority of disabled children were either totally excluded from schools or “sitting idly” in classrooms. Congress decided to provide federal funding to assist state educational agencies and local schools in educating disabled children. This funding was made conditional on states providing disabled students and their parents with access to public schools and extensive procedural rights.
The law mandated the development of an individualized education plan (IEP) for each disabled student and created extensive due process rights should a dispute arise between district and parent. The law also stated that students with disabilities have the right to receive a free appropriate public education (FAPE) in the least restrictive environment possible, given the student’s individualized needs.
What does FAPE really mean?
One of the crucial questions for school districts is what is required to provide FAPE to a given student. The U.S. Supreme Court fi rst weighed in on the issue in a case involving Amy Rowley, a deaf student attending the Furnace Woods Elementary School in Peekskill, N.Y.
A dispute arose in the development of Rowley’s IEP when her parents insisted that the first grader be provided with a qualified sign language interpreter in all of her academic classes. They fi led for an impartial hearing. The district defended itself on the grounds that the student was already making educational progress in a mainstream public school classroom, and the impartial hearing officer agreed. However, federal judges found that FAPE had not been provided because the school was not doing all it could to help the student meet her “full potential.”
The case reached the U.S. Supreme Court, which found in favor of the school district by 6 to 3 in Board of Education v. Rowley (1982).
Rowley established the legal standard for school districts to meet their obligation to provide FAPE: the creation of an IEP that is “reasonably calculated to enable the student to receive educational benefits.”
Nevertheless, what constitutes FAPE for individual students remains a frequently litigated issue. Interestingly, the Supreme Court recently granted review on the issue of what level of educational benefit bestows FAPE. This case – Endrew F. v. Douglas County School District RE-1 – will allow the High Court to re-examine the Rowley decision.
Three rights of special education students that every board member should understand
While most disputes involving students go no further than the principal’s office, disputes involving special education students have frequently reached the Second Circuit U.S. Court of Appeals (with jurisdiction in New York) as well as the U.S. Supreme Court. The most important of these decisions have taught school districts three lessons:
1. Special factors must be considered when disciplining special education students.
In Honig v. Doe (1988), the U.S. Supreme Court ruled that school districts may not impose long-term suspensions on disabled students by unilaterally changing the student’s placement beyond 10 school days where the disciplinary infraction is found to be a manifestation of the student’s disability.
In that case, a California school district sought to expel “two students who have been classified as emotionally disturbed for violent and aggressive conduct that was found to be related to their disabilities.” The parents objected and pointed to the provisions of the IDEA which prohibit unilateral changes in placement on the part of the district.
The Supreme Court sided with the parents. It noted that the IDEA promoted the education of all disabled students covered by the act, including those who are emotionally disturbed. In the extreme situation where a student was an eminent danger to himself and others, the court invoked the somewhat impractical remedy of obtaining injunctive judicial relief. The justices also made clear that the “stay put/pendency” provisions of the law required that the child remain in the current educational placement pending the outcome of impartial hearing proceedings.
In effect, the Supreme Court created two different systems of student discipline. Once a “nexus” has been found that links improper behavior with a disability, the disabled child cannot be disciplined in the same manner as a child who is not disabled and committed the same infraction. Partially in reaction to this, Congress has since amended IDEA to allow schools to quickly impose discipline when weapons, drugs or serious bodily injury are involved.
2. Parents who place their disabled child in a private facility may be entitled to receive tuition reimbursement.
In 1993, U.S. Supreme Court decisions in the Burlington and Carter cases established that parents have the right to unilaterally place their child and seek the equitable remedy of tuition reimbursement, even if they choose a private school that is not approved by the state, where a district has failed to provide FAPE. Rejecting the argument that private facilities that don’t meet state educational agency standards are per se inappropriate, the Supreme Court held that parents cannot be held to the same standards as public schools, particularly when the public system has failed them. Instead, a three-prong test for adjudicating tuition reimbursement claims was established: (a) did the state or local school provide FAPE? If not, (b) was the parent’s unilateral placement appropriate to meet the student’s needs? And (c) would awarding tuition reimbursement and attorney’s fees represent an equitable outcome?
While hailed as a victory for parents of disabled children who lack the expertise and financial wherewithal to provide for their children’s education, it is fair to say that the court did not anticipate the torrent of litigation these rulings would unleash.
3. Bullying can be a CSE issue.
Did you know that, in New York State, bullying and its effects upon a disabled student’s ability to receive FAPE must be considered by the Committee on Special Education (CSE) and, where appropriate, included in the IEP? That was the ruling of a federal appeals court with jurisdiction over all of New York State in the recent case of T.K. v. N.Y.C. Dep’t of Educ. (2016).
Prior to this decision, issues of bullying (and others not directly related to special education) were not considered to be within the purview of CSE review, and were routinely referred to building administrators to address. But because the court in T.K. found that the school principal had ignored the history of bullying to the point that it adversely affected the student’s learning, it settled upon the established process of CSE review as a timely means to address this issue.
This is an important decision going forward because it expands the jurisdiction of the CSE; the common refrain of “that’s not a CSE issue” must be re-examined and questioned in light of the T.K. ruling. If it can arguably impact FAPE, it must be considered and addressed.
Has the IDEA been successful?
Has the IDEA been a success? The answer is yes and no.
On the positive side, the IDEA established a standardized process by which a student’s educational, psychological and social needs are evaluated by public schools, and a team of educators and other experts, along with the parents, develop a plan to meet those needs within the context of the least restrictive environment. The vast majority of IEPs are developed by the CSE in a collaborative manner, as Congress intended.
However, the IDEA has imposed burdens on school districts that compromise some educational interests while serving others. Arguably, Congress intended that when student improvement is demonstrated, the CSE should recommend a reduction in services or even declassification. But raising such a possibility typically invokes negative reactions in many parents who feel the schools want to take away services just to save money.
In the 1980s, the most difficult obstacle districts faced was parental reluctance to classify their child as disabled. In the 30 years since, the appeal of receiving special services has made such reluctance all but vanish.
Additionally, there are an increasing number of parents with children who are, at best, on the margins of special education eligibility, that aggressively pursue their procedural rights in a quasi-judicial process that has become more and more complex and costly over the years. This creates an anomalous situation where the finite dollars available to districts are being diverted to procedural disputes rather than providing substantive services to students who by consensus suffer with moderate to severe disabilities.
Looking to the future, parents, educators, school lawyers, child advocates and lawmakers need to focus on streamlining the process and reducing over-classification of students while still providing parents a meaningful opportunity to participate. In this way, the original purpose of IDEA of funding special education programs and services for truly disabled students can continue to be met in the current “tax cap” era.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Robert H. Cohen of Lamb & Barnosky LLP.