“THE GOALS MAY DIFFER, BUT EVERY CHILD SHOULD HAVE THE CHANCE TO MEET CHALLENGING OBJECTIVES.” – SUPREME COURT OF THE UNITED STATES

On March 22, 2017, the Supreme Court of the United States issued a decision in Endrew F. v. Douglas Country School District 580 US ____ (Mar. 22, 1997). This is a good time for parents to review their child’s IEP and determine if it provides a free and appropriate education to their child in light of the Supreme Court’s findings in Endrew F. The Supreme Court opined that every child should have a chance to meet challenging objectives. The process used to establish an IEP and implementation of a child’s IEP are important to protecting this right.

Establishment of the IEP

The Supreme Court opined that an IEP must be constructed after careful consideration of the:

  • Child’s present levels of achievement;
  • Disability; and
  • Potential for growth.

The collaboration between the school and parents on these issues is key to an appropriate IEP. The present levels of achievement and disability are often subject to discussion because they are included on the IEP form. An area that may be overlooked is the potential for growth. There isn’t an area specifically designated for this topic.

The IEP should be reasonably calculated to enable the child to receive educational benefits. For students integrated in the regular classroom, this requires the IEP to be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. For students not fully integrated, the IEP must allow the child to pursue academic and functional advancement. In both circumstances, The IEP must take into consideration the unique circumstances of the child.

The courts give deference to the school district based on their expertise. The Supreme Court opined that, given the expertise, schools are required to air their opinions and be prepared to offer a cogent and responsive explanation of their decisions. Parents are entitled to ask seek information and documentation to understand the school’s opinions.

Implementation of the IEP

Parents and school officials should monitor progress during the implementation of the IEP. Parents are not at the school site and unable to monitor progress in person. Therefore, it is important for parents to request school work, including anything generated during specialized academic instruction.

Parents should not accept trivial progress. Parents should expect their child will make progress in light of his or her unique needs. Trivial progress is no longer acceptable.

If you believe your child’s IEP does not contain challenging objectives or your child is not making appropriate progress in light of his or her circumstances, it is important to seek the advice of legal counsel who can help you analyze your situation.

(You can view my initial impressions of the Endrew F. case here: https://specialedlegaljourney.com/2017/03/24/new-ruling-a-school-must-offer-an-iep-reasonably-calculated-to-enable-a-child-to-make-progress-appropriate-in-light-of-the-childs-circumstances/)

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

PARENTAL PARTICIPATION IN IEP PROCESS IS A CRITICAL FEATURE UNDER IDEA- DURING IEP MEETINGS AND IMPLEMENTATION OF SERVICES

One of the complaints I often hear from parents is that the school is not allowing them to be a part of the decision-making process. They are allowed to speak at the IEP meetings only to have their opinions and ideas shot down by the school district. At the end of the IEP meeting they are presented an offer of FAPE in a take it or leave it manner. Lawmakers designed the IEP process to be collaborative and, as such, nobody should leave an IEP meeting feeling like they were not an important part of the process.

According to the IDEA, the IEP team shall include parents of the child with a disability. (20 USC Section 1414(1)(B)) Parents are listed first in order as IEP team members. Often times, parents are not represented by an advocate or attorney at the IEP meeting. Therefore, lawmakers devoted an entire section of the IDEA to procedural safeguards. (20 USC 1415) Some of those safeguards are:

  • Notice of meeting (time, purpose, location, and who will be in attendance);
  • Right to bring others with knowledge/expertise regarding the child;
  • Meeting scheduled at a mutually agreed upon time and place;
  • Alternative means of participation;
  • Right to a copy of the evaluation reports and any other documents considered in making decisions by the IEP team;
  • Right to an Independent Educational Evaluation (if parents disagree with a district’s evaluation); and
  • Right to due process.

When formulating an IEP, a school district “must comply both procedurally and substantively with the IDEA,” M.L. v. Fed. Way Sch. Dist. 394 F.3d 634,664 (9th Cir. 2005) (citing Rowley v. Hendrick Hudson Sch. Dist. 458 U.S. 176 (1982), so that the process will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians,” Endrew F. v. Douglas City Sch. Dist. 580 U.S. (March 22, 2017). (M.C. v. Antelope Valley Union High Sch. Dist. No. 14-56344 (9th Cir., March 27, 2017)) The courts recognize the parents have a unique perspective on their child and observe their child in a multitude of situations.

Parental participation shall be meaningful. Meaningful participation is more than attendance at the IEP meeting. (Amanda J. v. Clark County Sch. Dist. 260 F.3d 1106 (9th Cir. 2001) District representatives are allowed to meet before an IEP meeting to develop a proposal or response that will be discussed at a later meeting. (34 C.F.R. 300.501(b)(3)) School districts should never say “we don’t do that here” or “we won’t consider that.” It prevents the parties from collaborating and builds mistrust.

The court frowns upon school districts lack of transparency during the IEP process, as well as during the implementation of the IEP. Congress is just as concerned with parental participation in the enforcement of the IEP as it is in the formation.  (Rowley 458 at 205) Parents must be able to monitor and enforce the services that their child is to receive. When a parent is unaware of the services offered to the student—and, therefore, can’t monitor how these services are provided—a FAPE has been denied, whether or not the parent had ample opportunity to participate in the formulation of the IEP.  (M.C. at 14)

If you have a question about whether your legal rights to participate in the IEP process has been less than meaningful, give me a call at 925-551-1041. Each case is unique to a specific set of facts and must be analyzed separately.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

DURING TIMES OF DISAGREEMENT, CAN A DISTRICT SIT BACK AND FORCE THE PARENTS TO FILE FOR DUE PROCESS?

In most instances where a child is already receiving special education services, the simple answer is no. The Individuals with Disabilities Act (“IDEA”) provides procedural protections to parents and local educational agencies (your school district). One of those procedural protections is the allowance of an impartial due process hearing with respect to the provision of a free and appropriate public education to a student (“FAPE”). Parents and the local educational agency may file for due process to resolve disputes related to the identification, evaluation, or educational placement of a student.

School districts have a mandatory responsibility to file for due process when a disagreement arises with parents of a student receiving special education services. The school district is required to continue to provide the services set out in the student’s IEP while they resolve the remaining disputes. Failure to request due process for a protracted period of time is a serious procedural violation of state law. Porter v. Manhattan Beach Unified School Dist. (C.D.Cal., Dec. 21 2004 (Case No. CV 00-8402 GAF)) 105 LRP 40577.

The school’s responsibility to file for due process also extends to the obligation to have an IEP in place at the beginning of the year. (34 C.F.R. 300.323(a), see also M.M. v. School Dist. Of Greenville County (4th Cir., 2002) 37 IDELR 183) School districts “cannot excuse their failure to satisfy the IDEA’s procedural requirements by blaming the parents.

 

Something to consider…. The party who files the administrative complaint has the burden of persuasion by a preponderance of the evidence. (Schaffer v. Weast (2005) 546 U.S. 49) It isn’t always advantageous to file due process when the school district has the obligation to file. Please also understand that a procedural violation alone doesn’t entitle a parent to seek relief from the school district. If you would like more information regarding this issue, contact me at (925) 551-1041 to discuss the facts of your particular case.