Education Law Prof Blog

DeVos Attempts to Roll Back Student Protections Once Again Crumbles Before the Judiciary

For the second time this school year, Betsy DeVos got a judicial smack down for attempting to eliminate regulations from the prior administration.  In September, it was over protections for student loan borrowers.  Yesterday, it was over racial disparities in special education.    

In both cases, DeVos’s justifications for reversing Obama-era regulations amounted to little more than "I'm in power now and I don’t like Obama’s regulations.”  The dressed up justification has been that the Department needs to pause the regulations so that it can “study” the issues more. 

The problem, the federal courts have told the Department, is that it cannot just scrap regulations because it doesn’t like them, particularly when those regulations have already gone through a rigorous process of notice, comment, study, and justification.  Reversing existing regulations requires a showing that the existing regulations are wrong.  That requires evidence and logic—something that does not seem to interest the current administration.

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Landmark Disability Screening Program Underway for Flint Schoolchildren

This from the Education Law Center:

Students in Flint, Michigan, are beginning to receive high quality screenings and evaluations through the Flint Registry and Genesee Health System/Hurley Children’s Hospital Neurodevelopmental Center of Excellence (NCE) to identify disabilities that may entitle them to special education services. The screening and evaluation program is the key component of an April 2018 settlement agreement reached in D.R. v. Michigan Department of Education, a class action lawsuit to enforce the rights of Flint children impacted by the lead crisis under federal and state special education law.  

The Flint students are represented by Education Law Center, the ACLU of Michigan and White & Case LLP. The defendants in the lawsuit are the Michigan Department of Education, the Genesee Intermediate School District and the Flint Community Schools (FCS).

The partial settlement agreement resolved the lawsuit’s “child find” claims challenging the defendants’ failure to appropriately identify and evaluate Flint students with disabilities. Key commitments contained in the settlement agreement included over $4 million provided by the State of Michigan to get the screening and evaluation program up and running.

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Lead Screenings Offer Hope for Flint by David Sciarra and Kary Moss

This oped originally appeared in The Detroit News.  David Sciarra and Kary Moss explain the next steps in addressing the catastrophic harms that students have suffered.  Fortunately, they now, at least, have path-breaking legal victories on their side:

A major milestone has been achieved in the struggle to vindicate the rights of Flint students. In response to a class-action lawsuit filed by Flint children and their families, a federal court in Detroit approved a settlement agreement making universal screening, and in-depth evaluations when necessary, available to every Flint child exposed to lead in the water supply.

The Flint children in this case are represented by the ACLU of Michigan, Education Law Center and global law firm White & Case LLP.

The facts about the Flint water crisis are now well known. In what many describe as an “American catastrophe,” the state-appointed fiscal manager in 2014 switched the city’s water supply from Lake Huron to the Flint River in a reckless attempt to save money. The water corroded the city’s aging pipes, causing them to leach lead into the system. The lead impacted the water in every home, business and school.

Much of the focus since the lead crisis came to light has been on providing Flint residents with bottled water and replacing the city’s contaminated pipes. But too little attention was paid to another major consequence of the crisis: the plight of Flint’s children and the potential long-term effects on their learning and success in school.   

Children are especially vulnerable to the neurotoxic effects of lead. Lead exposure can negatively influence a child’s development, cognitive functioning, and behavior. Its impact on learning can be life-long and profound.

In Flint, community-wide exposure to elevated levels of lead over an extended period put the entire school-aged population at risk of developing a disability that affects their education. Under federal law, these children are entitled to special education programs and services.

But officials at every level failed to address the educational aftermath of the lead exposure. This dereliction of duty was compounded by an already broken special education program in Flint’s schools. 

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Charter Schools Remove Tens of Millions in Funding from Three California Districts, While Severely Under-enrolling Students with Disabilities

Yesterday, I posted on Helen Ladd's pathbreaking study of the cost of charter schools to local school districts in North Carolina.  She found an "average fiscal cost of more than $3,500 for each student enrolled in charter schools."   Today brings more troubling factual findings out of California. In the Public Interest finds that "Oakland Unified loses $5,643 a year per charter school student while San Diego Unified loses $4,913 a year and East Side Unified loses $6,000 a year."

What was once just rebutted as rhetoric is now increasingly becoming an established fact--charter schools are reducing the amount of funding that is spent on each student who remains in traditional public school. As I recently explained in Huffington Post, states are favoring school choice at a steep cost to public education.  From funding and management practices to teacher and student policies, states are giving charter schools and private schools a better deal than public schools.

As people gawk at the dollar signs in this new report, I would, however, encourage them to not overlook more evidence of separate and unequal schools.  I argue in my forthcoming research, Preferencing Choice: The Constitutional Limits, that the preferences that states have created for charters, in particular, are helping fuel segregation on any number of levels--race, socio-economic status, language status, and disability.  This new report by In the Public Interest adds yet another piece of evidence to prove my point.

As this chart shows, while charter schools enroll 28 percent of all Oakland-area students, they only enroll 19 percent of its special education students.  And the special education students they enroll are not representative of the overall special education population.  Rather they enroll those who tend to cost less to serve.  Most notably, they only enroll 15 percent of the districts emotionally disturbed students, only 8 percent of its autistic students, and only 2 percent of those students with multiple disabilities.

The state then whops a huge advantage on top of all this.  It gives charters 28 percent of all special education funding for Oakland-area students. 

Let me say it again, as bluntly as I can, Oakland charters only serve 19 percent of the district's special education students and the ones they serve tend to be lower cost, but the charters still receive 28 percent of the districts special education funding.

 

 

Here is In the Public Interest's press release:

$142.6 Million Net Loss in School Districts in San Diego, Oakland, and San Jose, While Student Needs Go Unmet

 

WASHINGTON – In a first of its kind analysis of three California school districts, researchers found that public school students are bearing the cost of charter schools’ rapid expansion. The report calculates the net fiscal impact of charter schools on three representative California school districts: San Diego, Oakland, and San Jose’s East Side Union High School District. 

The analysis, Breaking Point: The Cost of Charter Schools for Public School Districts, conducted by In the Public Interest, a California-based think tank, with Dr. Gordon Lafer, examines the cumulative effect of charter schools on California school districts, which rank 42^nd nationwide in per pupil spending. The number of California charter schools increased by more than 900 percent to more than 1,200 schools over the last two decades. 

“Our analysis shows that the continued expansion of charter schools has steadily drained money away from school districts and concentrated high needs students in neighborhood public schools,” said Dr. Gordon Lafer, political scientist and professor at the University of Oregon. “The high costs of charter schools have led to decreases in neighborhood public schools in counseling, libraries, music and art programs, lab sciences, field trips, reading tutors, special education funding, and even the most basic supplies like toilet paper.” 

The California Charter Schools Act does not allow school boards to consider how a charter school may impact a district’s educational programs or fiscal health when weighing new charter applications. However, when a student leaves a neighborhood public school for a charter school, all the funding for that student leaves with them, while all of the costs do not. This leads to cuts in core services like counseling, libraries, and special education and increased class sizes at neighborhood public schools. 

San Diego Unified is the second-largest district in the state, with a combined enrollment of more than 128,000 students, and a total of 51 charter schools. Oakland Unified has 50,000 students and has the highest concentration of charter schools in the state. East Side Union High School District has a total enrollment of 27,000 and is comprised solely of high schools. Although the districts face unique challenges and student populations, they share similar financial challenges from charter school expansion. 

“Unlimited charter school expansion is pushing some of California’s school districts toward a financial tipping point, from which they will be unable to return,” Dr. Lafer said.

The report recommends that each school district create an annual economic impact report to assess the cost of charter school expansion in its community. With consideration of economic impact, school districts could more effectively balance the value of a new charter school with the needs of neighborhood public school students.

Key findings from the report include:

• Oakland Unified loses $5,643 a year per charter school student while San Diego Unified loses $4,913 a year and East Side Unified loses $6,000 a year.
• Charter schools cost Oakland Unified $57.3 million per year, a sum several times larger than the forced drastic cuts to Oakland’s neighborhood school system this year.
• In East Side Union High School District, the net impact of charter schools amount to a loss of $19.3 million per year.
• Charter schools cost the San Diego Unified $65.9 million in 2016-17, $6 million more than the most recent round of budget cuts in early 2018.
• In Oakland, nearly 78 percent of students come from low-income families, are English language learners, or are foster youth, while 63 percent of students in San Diego Unified and 52.7 percent of students in East Side High School Unified share those backgrounds.

 The report builds on previous studies that used different methodologies but came to similar conclusions. In the smaller cities of Buffalo, New York, and Durham, North Carolina, the net impact of charter schools was estimated as a loss of $25 million per year to the school district. In Nashville, Tennessee, the loss is approaching $50 million per year. And in Los Angeles—the nation’s second-largest school district—the net loss is estimated at over $500 million per year.

In the Public Interest is a nonprofit resource center that studies public goods and services.

Settlement in Flint Lead Case to Launch Groundbreaking Remedies for Students

Greg Little is leading a team of attorneys that is accomplishing something very few have every done before in class action education cases--secure remedies for the actual victims.  The nature of education and the long time that it takes to bring and win a claim most often means that the next generation benefits from the prior generation's sacrifices.  School desegregation and school funding litigation, for instance, have on only the most rare occasions remedied the full harms that the original plaintiffs suffered.  The original victims have graduated and moved on by the time integration or increased funding occur.  The lawsuit in Flint is changing that trend for public school children.  This from the Education Law Center:

DETROIT, April 9 - Attorneys for Flint schoolchildren have reached a historic agreement with the Michigan Department of Education (MDE), Genesee Intermediate School District (GISD) and Flint Community Schools (FCS) to establish an unprecedented program to provide universal screening, and in-depth assessments when necessary, to all Flint children impacted by the Flint water crisis.

The program will leverage the Flint Registry, a population-wide screening platform, and expanded assessment services by the Genesee Health System/Hurley Children’s Hospital Neurodevelopmental Center of Excellence (NCE). The program will be organized and operated under the leadership of Dr. Mona Hanna-Attisha, Director of the Michigan State University-Hurley Children’s Hospital Pediatric Public Health Initiative, and will begin at the start of the 2018-19 school year.

“The children and families of Flint have lived with exposure to lead in their water and with schools unequipped to help students whose learning may be affected by this dangerous neurotoxin,” said Greg Little, Chief Trial Counsel at Education Law Center (ELC). “The program set up in the agreement announced today is a major milestone on the road to addressing the needs of children affected by the Flint water crisis.”

The settlement agreement is a major step in DR, et al. v. MDE, et al., a class action lawsuit filed on behalf of Flint children asserting violations of federal and state special education laws. The settlement will be final after an April 12 court hearing in Detroit, subject to court approval.

The lawsuit challenges systemic deficiencies in Flint’s special education program, including failures to find and serve children with special needs and to address the impact of the water crisis, which potentially put thousands of children at risk of developing a disability or worsening an existing disability. The settlement addresses a major aspect of the special education failures in the Flint schools: the need to identify all students with disabilities and properly evaluate them.

The agreement has several key elements:

• The state of Michigan will provide more than $4 million to get the program up and running by September 2018. Families of Flint children exposed to elevated lead levels in the Flint drinking water can enroll their children in the Registry, complete a screening, and have their children referred for further assessment by the NCE. The battery of available assessments will include neuropsychological testing, which is important for evaluating the effects of lead on cognitive development, memory and learning.
• The state, city and school district will provide staff to facilitate and maximize participation in the program and collaboration between the program and the schools.
• Training and professional development will be provided for administrators, teachers and staff on the availability of the program and how to recognize children potentially harmed by lead who may need to be referred for assessments.
• Importantly, results of the assessments will be sent to the schools to be used in the process of evaluating students for special education services.

“The settlement is a critical first step in creating a system to identify the needs of the children of Flint,” said Kristin Totten, ACLU of Michigan Education Attorney. “However, the heart of this lawsuit remains, which is ensuring kids with disabilities receive the education guaranteed them by law. As we move forward, we are fully committed to protecting those rights.”

“This is a groundbreaking program, using the most advanced testing available, that represents the first step in an unprecedented solution to an unprecedented crisis,” said Lindsay Heck, an attorney at White & Case. “The partnership created between the medical profession and the schools recognizes that education is the antidote to the crisis that Flint children have endured. In the next phase of the lawsuit we will work to ensure that FCS schools have the resources to provide the children of Flint with the educational opportunities they deserve and to which they are entitled under the law.”

The agreement is a partial settlement of the lawsuit. The attorneys for the Flint parents and children will continue to pursue additional claims, including the provision of appropriate special education services and proper student discipline procedures. 

The legal team representing the students pro bono includes attorneys from the ACLU of Michigan, Education Law Center, and global law firm White & Case LLP. The team is headed by ELC Chief Trial Counsel, Greg Little.

About Education Law Center:

Founded in 1973, Education Law Center (ELC) is a leading voice for public school children and one of the most effective advocates for equal educational opportunity and education justice in the United States. Widely recognized for groundbreaking court rulings on behalf of at-risk students, including New Jersey’s landmark Abbott v. Burke decisions, ELC also promotes education equity through coalition building, litigation support, policy development, communications and action-focused research in the states and at the federal level.

About White & Case LLP:

White & Case is a leading global law firm with lawyers in 43 offices across 30 countries. Among the first US-based law firms to establish a truly global presence, White & Case provides counsel and representation in virtually every area of law that affects cross-border business. White & Case’s clients value both the breadth of its global network and the depth of its US, English and local law capabilities in each of its regions and rely on White & Case for their complex cross-border transactions, as well as their representation in arbitration and litigation proceedings. To learn more about the Firm, our work on behalf of clients, and our global pro bono practice, please take a look at our Services and Global Citizenshippages.

About ACLU of Michigan:

The ACLU of Michigan is a nonprofit and nonpartisan organization that protects the liberties that our Constitution, federal and state laws guarantee everyone. We have offices in Detroit, Lansing, Flint and Grand Rapids.

Court Says Allegations That Flint Schools Must Address Students' Lead Exposure Can Move Forward

Last year, the Education Law Center and the ACLU of Michigan filed an important special education case on behalf of 30,000 students against the Flint School System and the Michigan Department of Education. They alleged that the defendants had placed students at risk of developing disabilities by exposing them to elevated levels of lead in the water.  Rather than wait years for the problems to manifest themselves or ignore those that already have, plaintiffs argued that the school system should be identifying affected students and providing services.  They argue the failure to do so violates the IDEA and other disability laws.

The defendants moved to dismiss the complaint under the standard defense in special education class actions: the students did not exhaust their administrative remedies.  Plaintiffs concede they did not exhaust remedies, but argued the rule did not apply in this case.  They just won on that point.

Last week, the district court wrote:

The two principle exceptions to this requirement of exhaustion of administrative remedies are where the administrative procedures “would be futile or inadequate to protect the plaintiff’s rights,” or where “plaintiffs were not given full notice of their procedural rights under the IDEA.” Id. at 917. Courts have applied the futile or inadequate exceptions to exhaustion when plaintiffs seek relief that is not otherwise available through the administrative process, i.e. allegations of “structural or systemic failure.” Jackie S. v. Connelly, 442 F. Supp. 2d 503, 518 (S.D. Ohio 2006) (citations omitted).

Speaking of the Flint students, the court wrote:

Plaintiffs are seeking systemic relief in the form of injunctive relief on behalf of a large class. The challenge is to the very framework and processes that the school district undertakes for every child, rather than individuals contesting their IEPs. The Court agrees with the logic in J.S. that challenges such as these are incapable of correction in the individual administrative exhaustion procedure, and instead, are of a systemic nature that is properly addressed by the Court.

. . . .

The complaint alleges four systemic violations: failure to develop and implement child find procedures; failure to provide a free appropriate public education that confers a meaningful educational benefit in the least restrictive environment; failure to protect students’ procedural due process protections in the disciplinary process; and discrimination on the basis of disability with accompanying denial of access to educational services.

. . . .

It is clear from Plaintiffs’ complaint that the remedy they are seeking is a systemic change in the very way that Defendants identify, place, and educate all children in the Flint School District. The relief they are seeking is plainly not individual and could not be remedied by individual exhaustion since Plaintiffs are challenging the very efficacy of the system employed within the Flint District. Further, the representative Plaintiffs have emphatically illustrated that the alleged violations are widespread across the Flint schools and repetitive in nature. Thus, these systemic violations cannot be adequately exhausted through the administrative procedure and the systemic violation exception applies.

The case marks a major victory for students in Flint, as exhaustion defenses often derail special education claims, but it also marks another important precedent for allowing these types of cases to proceed.

Download Ruling on Motion to Dismiss

Eighth Circuit Holds That Private School Student with Special Needs Entitled to FAPE Under Minnesota Law

Although the Individuals with Disabilities Education Act (IDEA) does not guarantee a right to special education services for private school students with disabilities, the Eighth Circuit recently held that Minnesota law does require public school districts to provide a free appropriate public education (FAPE) for private school students, as well as the right to dispute the provisions of special education services in an impartial due process hearing. In Special School District No. 1 v. R.M.M., 16-1601 (8th Cir. June 29, 2017),  R.M.M., a student who attended a Catholic private school in Minneapolis, received an evaluation from the Minneapolis Public Schools (Special School District No. 1), in the fifth grade for special education services in reading, written expression, and math. After the Catholic school informed her parents that it could not provide the special education services that the student needed, the student transferred to Minneapolis Public Schools (MPS). The student sued MPS for failing to provide appropriate special education services while she was enrolled in private school. The Administrative Law Judge concluded that R.M.M. had been denied a FAPE; the federal district court dismissed the FAPE claims again the school system, but held that Minnesota law granted private school students the right to under the state law counterpart to FAPE. The district court also ruled for R.M.M. on the issue of whether private school students in Minnesota are entitled to a due process hearing to dispute whether they have received a FAPE. On MPS' appeal to the Eighth Circuit, the appeals court held that Minnesota's provision went beyond the minimum requirements of the IDEA, and when comparing Minnesota's statute with language in IDEA, the Eighth Circuit found that the Minnesota legislature intended to provide private students the right to a FAPE, even though the statute does not use the term. The applicable statute, known as the shared-time statute, provides that “No resident of a district who is eligible for special instruction and services under this section may be denied instruction and service on a shared time basis . . . because of attending a nonpublic school.” Id. § 125A.18. The appellate court also affirmed the district court on the issue of R.M.M.'s parents' ability to to an impartial due process hearing under state law. The parents did have such a right under Minnesota law, the court held, rejecting MPS' argument that only the school district could pursue such remedies when a child was enrolled in a non-public school. The case, Special School District No. 1 v. R.M.M., 16-1601 (8th Cir. June 29, 2017), is available here.

Flint, Lead Poisoning and the Promise of General Education By Karen Syma Czapanskiy

Three years ago, the municipal water system in Flint, Michigan, began delivering leaded water to homes, schools, and daycare centers.  Lead is a neurotoxin that leaves irreversible effects on children's brains.  Lead exposure has put every one of Flint’s 30,000 children at risk of cognitive, emotional and behavior problems. Some will experience reduced IQ's.  Others will have trouble learning to read, controlling their behaviors, and focusing, among other issues.  For many, education holds the only promise of a full or partial antidote.  

The schools in Flint and the state of Michigan have been sued for failing to provide special education evaluations and services to Flint’s children.  The premise of the lawsuit is that general education in its usual form isn't going to help many of Flint's kids.  Only special education will do.  

As a practical matter, however, special education isn't going to help many of Flint’s kids either.  Special education is an individualized process requiring an evaluation of each student and the development and delivery of a plan to deliver adequate education to that student.  In the average school system, fewer than 20% of students get special education.  In Flint, 100% of the students could need special education.  Evaluating 30,000 students and planning for all who need special education cannot happen quickly or easily.  In the meantime, far too many kids will be left illiterate and hopeless.  Far too many will drop out or get pushed out. 

Special education may fail many of Flint’s children for another reason.  In general, the special education system delivers its greatest benefits to kids who attend highly-resourced schools and whose parents enjoy access to time and money.  Flint and Flint’s parents fit neither category.  Flint is not a high-income place.  Flint’s parents, who had enough challenges before, now face new illnesses and logistical problems created by leaded water.       

If the students and families cannot rely on special education to do enough, general education needs to change so it can do more.   Encouraging studies demonstrate that the goal is not far-fetched.  General education can and, in some situations, already does reach kids who would otherwise rely on special education. 

Figuring out how to change general education to serve lead-poisoned students is not simple.  Research is needed into possible changes and the impact of those changes on students.  Teachers and administrators will need to master new protocols and curricula.  Unhappily for Flint’s families, 100% of their children are possible subjects.  A positive side also exists, however.  Whatever is learned in Flint can be used to help the thousands of lead-poisoned children in school systems across the United States, whether those students are in general education or special education classrooms.

According to a special report from the Centers for Disease Control, a few things are already known about reaching lead-poisoned children outside of special education.  For example, intensive early education has been found to help young students avoid some of the worse effects of elevated lead levels.  The evidence is strong enough that special funding was made available to provide intensive early education to about half the preschool students in Flint.

The same report suggests interventions that hold promise for older children.  Many lead-poisoned students have problems with self-management, memory and planning, similar to what is seen in students with ADHD.  Educational researchers have found that written assignments and posting assignments to school websites help students with ADHD in general education classroom.  See Czapanskiy, Kids and Rules:  Challenging Individualization in Special Education. Perhaps lead-poisoned students would be helped as well.  Students old enough to learn to read could benefit from systems like Response to Intervention (RTI), which involves frequent testing accompanied by tailored interventions.  Conflict-resolution training could help students who cannot readily control explosive behaviors.

Even with a responsive general education system, some students will need special education.   That number may be fewer, however, so identifying and planning for them can proceed more expeditiously.

Three years have already passed since leaded water reached the taps of houses, schools and daycare centers in Flint.  Other cities with aging infrastructures and older housing stock face similar risks and similar experiences.  Preventing exposure to lead is the only way to protect children.  When that doesn’t happen, however, making sure that public education responds to the needs of poisoned kids is essential to their futures. 

Changing and studying general education could convert the tragedy of Flint from being a total loss into an opportunity for a better future for lead-exposed children everywhere.  Law can push the process by insisting that all children get what they need, whether in general education or special education settings.  Lawsuits cannot do the job alone.  Educators, school administrators, communities, public officials and funding sources need to come to the aid of Flint’s children and lead-poisoned children everywhere.

Ninth Circuit Finds School District Must Pay Attorney Costs For Student Formerly In Juvenile Detention

The Ninth Circuit held last week that a school district must pay attorney fees in a suit resolving which state agency bears the  responsibility to pay for special education services for students in juvenile detention. In 2013, the Ninth Circuit held in the case that a school district had to pay for education services under under the Individuals with Disabilities Education Act (“IDEA”) for student K.G., who was formerly in juvenile detention. K.G. then sought attorney's fees to recover the costs of the suit. The district court below denied K.G.'s request for attorneys’ fees, finding that he was not a “prevailing party” under the IDEA because his victory—determining which agency would fund the free appropriate public education (FAPE) required by the IDEA—was “technical or de minimis.” The district court further found that K.G.'s argument was the same as the school district's--that the State was responsible for K.G.'s education rather than the school district. The Ninth Circuit rejected both grounds. The circuit court noted that K.G. had to prove that some state agency was responsible for his education, and his presence in the litigation was necessary even though he and the school district shared similar positions. However, the Ninth Circuit remanded part of the case for the district court to determine whether K.G. was entitled to any attorney fees for litigation after his graduation--that was presumably after he had gotten the education due him. The case is Irvine Unified Sch. Dist. v. Cal., No. 14-56457 (9th Cir. Apr. 13, 2017).

Special Education and the Quantum of Solace by Jonathan D. Glater

Difference creates challenges.  Treating people who are different the same can be unfair; treating people who are similar differently can be unfair.  The trick is determining what fairness requires under given conditions.

Special education inevitably demands this determination.  Under federal law, the Individuals with Disabilities Education Act (20 U.S.C. §1400 et seq.) or “IDEA,” schools that receive federal support must provide a “free appropriate public education” or “FAPE” to students with disabilities.  But just what is “appropriate” – how much a school must do to support a disabled student – has been a subject of controversy for many years.

Last week the Supreme Court waded into this area for the first time in decades in Endrew F. v. Douglas County School Dist. RE-1.  The unanimous opinion was cogently analyzed in a prior post produced virtually instantly by Professor Mark C. Weber at DePaul University College of Law; this follow-up reflects on the implications of the Court’s words.

The justices decided explicitly for the first time that students whom IDEA aims to assist must receive a benefit that is more than “minimal.”  The Court held that the lower courts, which had ruled that the public school defendants had provided an adequate education to the plaintiff because he had made “some progress” – i.e., any progress – had used the wrong standard to reach their conclusion.

The correct standard, according to the Court, is this: the school must provide an individualized education plan that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

Perhaps because Endrew F. could have come out very differently, Education Week reported that advocates for children with disabilities viewed the Court’s opinion as a “clear win.”  The Court could have espoused the view that any amount of progress, however small, constituted progress and thus would satisfy the FAPE mandate.  Certainly that is the direction the majority opinion in Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), the Court’s last tussle with IDEA, pointed. 

In Rowley, a majority of the justices rejected the notion that IDEA required states to “maximize the potential of handicapped children ‘commensurate with the opportunity provided to other children.’”  458 U.S. 176 at 189-90 (internal citations omitted).  The opinion, authored by Justice Rehnquist, instructed that schools had to provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” 

From this language, it is easy to see how the lower court judges who heard Endrew F.’s case might have thought that any benefit at all satisfied the Rowley standard.

While the Court’s opinion in Endrew F. provides clarification and reassures that a standard higher than de minimis does apply, it does a bit more besides.  Most importantly, the justices appear to have accepted Rowley’s limited aspiration; the Court has accepted that requiring perfect equality of opportunity is too much to ask.

There are practical reasons not to require schools to take whatever steps, provide whatever support, is necessary to give a child with a disability or multiple disabilities the same opportunities as a student who lacks them.  The Court could have alluded to this practical constraint, instead of suggesting that the (unattainable) target sought through the law should be lowered, and then struggled with the question of how close schools must get to the ideal.  The justices did not take this path.

The path that they did choose looks like it may give schools more say in determining when a student receives an adequate education.  Why?  Because officials at the school are best placed, the Court instructs, to assess what progress is appropriate in light of a child’s circumstances. 

The Court, in the penultimate paragraph of its decision, speaks of “deference... based on the application of expertise and the exercise of judgment by school authorities,” and suggests that a “reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions.” 

If lower courts hearing parents’ challenges to schools’ proposed individualized education plans do show schools greater deference, it seems likely that those challenges will become more difficult and more expensive.  Children whose parents are less sophisticated, less well-off, and/or have less access to expertise may be correspondingly less able to mount a successful challenge.

However, the efforts of relatively empowered parents will have “ripple effects” that improve the educational experiences of other students, too, as Professor Weber has pointed out.  Educational opportunity is not necessarily in limited supply, whatever the Court’s limited conception of “adequacy.” 

Now we will see what the lower courts do with Endrew F. on remand.

Supreme Court Requires Opportunity for Special Education Students to Make Progress, Not Just Receive Minimal Benefits by Mark Weber

On March 22, the Supreme Court decided Endrew F. v. Douglas County School District RE-1. The Court overturned a lower court decision that had applied a “merely more than de minimis” test to the duty to provide appropriate education to children with disabilities in public schools. The case involved a child with autism whose parents placed him in a private school because they were dissatisfied with the progress he was making under his fourth grade individualized education program (IEP) and thought he was unlikely to achieve much more under a similar IEP proposed for fifth grade. He continued to have severe behavior problems in his public school setting, including screaming in class, climbing over furniture and classmates, and running away, and manifested extreme fear of commonplace aspects of his environment. His parents believed his academic progress had stalled. In the private school, he made rapid progress with a behavioral intervention plan, and the improved behavior allowed him to make academic gains. His parents sought tuition reimbursement, as permitted under the Individuals with Disabilities Education Act (IDEA), which requires that states receiving federal funds for special education guarantee each child with a disability a free, appropriate public education. The administrative law judge, the district court, and the Tenth Circuit all ruled against the parents. The Tenth Circuit interpreted the Supreme Court’s sole case on the appropriate education standard, Board of Education v. Rowley, 458 U.S. 176 (1982), to require simply that the child be offered some educational benefit, interpreted as merely more than de minimis.

The Supreme Court vacated and remanded. In a unanimous opinion by Chief Justice Roberts, the Court read Rowley as steering a middle course between no enforceable appropriate education standard at all and the standard endorsed by the lower courts in that case, an education affording the child an opportunity to achieve her full potential commensurate with the opportunity provided children without disabilities. The Endrew Court stressed Rowley’s language requiring a substantively adequate education as well its proviso that its analysis was limited to the facts of that case and did not establish a universal test. Endrew said that Rowley pointed to a rule that the school has to offer an IEP reasonably calculated to enable the child to make progress in light of the child’s circumstances. Though this focuses on the reasonable, not the ideal, the standard keys into student progress; moreover, the program must be individualized to afford progress given the child’s unique needs. The Court reaffirmed Rowley's conclusion that for a child being educated in the general education classroom, passing marks and advancement from grade to grade through the general curriculum will ordinarily satisfy the IDEA standard (though the Court cautioned in a footnote that “This guidance should not be interpreted as an inflexible rule,” to be applied automatically). But it rejected the standard of the Tenth Circuit and courts like it that for children not in the regular classroom, offering merely de minimis progress is enough.

The Court rejected the parents’ position that in light of amendments to IDEA since Rowley, children are entitled to an education that affords opportunities to attain self-sufficiency and contribute to society substantially equal to opportunities afforded children without disabilities. The Court did not see the amendments to the Act over the years as adopting the proportional maximization standard that Rowley rejected. The Court also cited a need for deference to school authorities’ educational judgment. Nevertheless, parents, their advocates, and many other observers are likely to be pleased that the Court has rejected the low standard applied by the Tenth Circuit and many, many other courts and clarified that the law imposes a more demanding standard oriented towards the child’s progress and the child’s individual needs.

The decision is found at https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf

What Is an "Appropriate" Education for Students with Disabilities?; The Court Will Tell Us Soon by Jonathan D. Glater

 

Just how much must a school district do to support the educational opportunity of a disabled student?  Just enough to enable that student to get something, anything, out of the education provided?  Or enough to enable that student to thrive, to excel?

The question has confronted courts for years, as parents of disabled children have demanded that school districts do more to provide their children a “free appropriate public education.”  But the meaning of this phrase, typically abbreviated as “FAPE,” has eluded precise definition.  When the Supreme Court addressed the question, in Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), a majority concluded that

[A] “free appropriate public education” consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child "to benefit" from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State's educational standards, approximate the grade levels used in the State's regular education, and comport with the child's [individualized education program – more on that below]. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a "free appropriate public education" as defined by the Act.

The Court’s language suggests that any benefit is sufficient to satisfy the requirement that schools provide FAPE; Justice Rehnquist, who wrote the majority opinion, took a very literal and formal approach to the language of the law to reach this Court’s conclusion.

Congress imposed the FAPE mandate in the Education for all Handicapped Children Act of 1975, Public Law 94-142, subsequently re-enacted as the Individuals with Disabilities Education Act (“IDEA”).  The meaning of FAPE is before the Court again this year.

The plaintiff in Endrew F. v. Douglas County School District RE 1 was diagnosed at age two with autism and attention deficit/hyperactivity disorder (“ADHD”).  As a result of these conditions, he “struggles with the ability to communicate personal needs, emotions and initiations [sic], and does not engage or interact with others in social routines or play.”  Endrew F. v. Douglas County School District RE 1, 2014 WL 4548439, *1. 

During his fourth grade year, his parents removed him from his public school in Douglas County, Colo., and placed him in a private school specializing in education of children with autism.  His parents sued, claiming that the school district in prior years had failed to provide the boy with a FAPE and demanding that the district reimburse them for the cost of attending the private school.

An administrative law judge ruled against Endrew F.’s parents, finding that he received a FAPE, and so concluded that his family was not entitled to reimbursement of expenses.  The trial court judge, who reviewed Endrew F.’s progress in public school before he switched, concluded that Endrew F. had received some educational benefit under the individualized education program (“IEP”), the kind of plan called for under IDEA.  The district had developed Endrew F.’s IEP in an effort to comply with the FAPE mandate. 

A panel of the Tenth Circuit Court of Appeals affirmed the district court, and the Supreme Court granted certiorari.  The precise question that the case presents to the Supreme Court, which heard oral argument in January, is this: 

What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate education guaranteed by the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq.?

The deeper issue is the meaning of equality.  A demand for equal treatment is not satisfied by providing light for the seeing and the blind student alike. 

IDEA seeks to “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living,” 20 U.S.C. §1400(d)(1)(A).  But how are we to know that a given level of support has leveled the playing field for a disabled student?

Answering will only grow more difficult as we recognize students’ incredible diversity; students’ ability to take advantage of educational offerings lies along a spectrum.  So the assumption that a one type of education serves nearly all will become one type serves some, and then, one type serves a few.  Whether schools’ offerings evolve in response will likely be a political question rather than a doctrinal one.

Still, depending on how broadly the Court rules, the decision in Endrew F. could have far-reaching consequences, imposing clearer obligations on school districts to support disabled students or putting another hurdle in the way of parents seeking the best for their children.  By June we will know whether a majority of the justices prefer the limited and formalistic interpretation of the majority in Rowley or a more idealistic interpretation that may impose greater costs on schools and would afford appropriate benefits to students.

A New Approach to Exhaustion in Cases Involving Students with Disabilities by Mark Weber

On Wednesday, Feb. 22, 2017, the Supreme Court decided Fry v. Napoleon Community Schools, No. 15-497. The case concerned a student with cerebral palsy who was denied permission to bring her service dog, a goldendoodle named Wonder, to school. The dog aids her by retrieving objects, helping her balance when she uses her walker, and performing other tasks independently of assistance from adults or others. Although she eventually obtained permission to use the dog through an Office for Civil Rights complaint, the child’s parents thought that there might be resentment and difficulty with obtaining full cooperation from the school. They moved her a different school district and sued the original one under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, seeking declaratory relief and damages. The Sixth Circuit affirmed dismissal of the case on the ground that the family had not exhausted the due process hearing procedure available under the Individuals with Disabilities Education Act. The Supreme Court vacated the decision and remanded the case.

Section 1415(l) of 20 U.S.C. provides that IDEA procedures have to be exhausted when an action is filed under the ADA, Section 504, or other laws that “seek[s] relief that is also available” under IDEA. The Court, per Justice Kagan, said IDEA makes relief available for denials of free, appropriate public education (FAPE) and that in determining whether a lawsuit seeks relief for a denial of FAPE, courts should look to the substance (the “gravamen”) of the complaint. The gravamen depends on the framing of the complaint, rather than an inquiry whether the family could have sought relief under IDEA, but the use or failure to use a given label does not matter. The Court said there are possible clues about whether the gravamen is denial of FAPE: whether essentially the same claim could have been brought in a situation where there is no FAPE obligation, as with a suit for access to a public library that lacks ramps, or whether a suit similar to the one brought by the family could have brought by an adult visitor or employee (no exhaustion would be required in a similar case brought by a student against a school district). The opinion also suggested that if the parents initiated proceedings under IDEA, that is an indication that the gravamen of the complaint is a denial of FAPE. Justice Alito (with Justice Thomas) concurred in part and concurred in the judgment. He disagreed about the “clues,” arguing that they did not take full account of the overlap between the disability discrimination laws and IDEA. In particular, the initiation of proceedings under IDEA might be based on parental misunderstanding of the legal rule or a later-abandoned decision about what relief to seek.

I think a large number of observers will welcome what appears to be a thoughtful and more liberal approach to when cases that bypass administrative procedures should be heard by courts. The Court’s approach seems similar in some regards to the liberalization that the Ninth Circuit undertook in Payne v. Peninsula School District, 653 F. 3d 863, 874 (2011). I share the concerns of Justice Alito, though, that the clues that the majority opinion relies on are at best incomplete and may, in the instance of initial filing of proceedings under IDEA, be misleading. In a number of cases, courts have recognized that ADA and Section 504 require school districts to provide services that are greater than those entailed by IDEA’s duty to provide FAPE. The leading example is K.M. v. Tustin Unified School District, a case in which deaf students lost their IDEA claim for communication access real-time captioning but prevailed on their claim under the ADA. To require IDEA exhaustion in a case in which the school district argues and the family concedes that the relief is unavailable under IDEA seems nonsensical, even if the family thought at some point it might succeed under IDEA and filed (and later abandoned) a due process challenge.

The Court explicitly left undecided the issue whether exhaustion would be required when the complaint under the ADA or other laws concerns the denial of FAPE but the specific remedy asked for is compensatory damages beyond reimbursement for actual expenses, damages relief that courts generally agree is not relief available under IDEA. The literal terms of the statute would dictate that exhaustion is not required, but concerns have been raised that litigants should not be able to bypass exhaustion simply by adding an ADA or Section 504 damages claim for emotional distress to their suit.

A “Meaningful” Opportunity to Alleviate the School-to-Prison Pipeline for Students with Disabilities

Jason Langberg and Sarah Morris have published a new article, Endrew F. v. Douglas County School District: A “Meaningful” Opportunity to Alleviate the School-to-Prison Pipeline for Students with Disabilities, in the Denver Law Review.  They offer this introduction:

Brandon and Tyler are both sixth grade students with individualized education programs (IEPs) for their serious emotional disabilities. Pursuant to his IEP, Brandon is in a behavioral support class that focuses on social and emotional learning for 60 minutes every day. He also receives psychological services twice a week and his parents receive counseling, twice a month, on how to work with Brandon. A behavioral intervention plan (BIP) that focuses on teaching replacement behaviors and reinforcing positive behaviors is part of Brandon's IEP. Finally, his IEP includes specific, measurable, and attainable behavioral goals. Tyler's IEP, on the other hand, mirrors the boilerplate IEP given to most middle school students with emotional disabilities in the district. It provides for 30 minutes of generic special education twice a month and no related services. Tyler has a BIP, but it focuses on punitive consequences.

Brandon graduated from high school and earned a scholarship to college. Tyler spent the next few years frequently suspended, referred to law enforcement, and failing classes. He eventually dropped out of school and became ensnared in the prison industrial complex.

The primary cause of the disparate outcomes for Brandon and Tyler was where they went to school. Under the current state of special education law, as eligible students with disabilities (SWD), both were entitled to a free appropriate public education (FAPE). However, Brandon was entitled to "meaningful" services in his state, whereas Tyler was entitled to services that were only "just above trivial" in his state.

The U.S. Supreme Court takes up this incongruity in its upcoming term, with implications well beyond the mere formulation of a consistent legal standard. Its decision in Endrew F. v. Douglas County School District[1] will ultimately either worsen or alleviate the "school-to-prison pipeline" for SWD.

Get the full article here.

 

The Texas Special: Purge Students with Disabilities

Identifying students with a disability is not an exact science.  Scholars have long-since documented both the over- and under-identification of certain demographic groups with certain disabilities.  As Theresa Glennon argued in Race, Education and the Construction of a Disabled Class, educational disabilities can be a proxy for the perception that a student diverges from the cultural norm.  Thus, year-to-year variances in the number of students identified as having a disability that affects educational opportunity are to be expect.  Minor upward and downward shifts are not necessarily an indicator of negligence or ulterior motives.

With that said, the Houston Chronicle has made the case that the state of Texas has systematically reduced its special education population for no legitimate reason.  This chart shows that the state's special education population has shrunk by more than 25% in the past decade.  The numbers are even more drastic when the state is broken down by region.  A number have seen their special education population shrink by a third.  See here.

The reason, cites the Chronicle, is clear: the state mandated a cap on the number of students in special education.

Over a decade ago, the officials arbitrarily decided what percentage of students should get special education services — 8.5 percent — and since then they have forced school districts to comply by strictly auditing those serving too many kids.

Their efforts, which started in 2004 but have never been publicly announced or explained, have saved the Texas Education Agency billions of dollars but denied vital supports to children with autism, attention deficit hyperactivity disorder, dyslexia, epilepsy, mental illnesses, speech impediments, traumatic brain injuries, even blindness and deafness, a Houston Chronicle investigation has found.

Once the message went out to districts, things moved quickly.

The Texas Education Agency had determined that they had too many students in special education, the administrators announced, and they had come up with a plan: Remove as many kids as possible.

The staffers did as they were told, and during that school year, the Laredo Independent School District purged its rolls, discharging nearly a third of its special education students, according to district data. More than 700 children were forced out of special education and moved back into regular education.  Only 78 new students entered services.

"We basically just picked kids and weeded them out," said Maricela Gonzalez, an elementary school speech therapist. "We thought it was unfair, but we did it."

Gonzalez's account, confirmed by two coworkers and district documents, illustrates how some schools across Texas have ousted children with disabilities from needed services in order to comply with an agency decree that no more than 8.5 percent of students should get specialized education.

The Chronicle did a multiple series and data collection.  See here.  

Given the costs of special education, I suppose it does not entirely surprise me that the state might give such a ploy a shot.  What does surprise me is that it was allowed to happen under the watch of the U.S. Department of Education or courts, if they were alerted.  Yet, given the individual nature of special education determinations, courts and agencies can often demand a showing that each individual student has been denied their rights.  As a result, larger trends can go unchecked until a number of individual cases are substantiated.  In any event, the Department announced this past fall that it was sending officials to the state to investigate the matter.

 

Lawsuit Warns That Lead Exposure in Flint Schools Raises Special Education Concerns

Students in Flint, Michigan, recently filed suit in U.S. District Court against the Michigan Department of Education, the Flint and Genesee school districts.  They allege that exposure to lead in the school system can exacerbate learning disabilities and warrants a response under the IDEA.  Those who followed older research may recall a study a couple of decades ago in Maryland showing that racially disparate lead exposure in the state contributed to long term racially disparate educational outcomes.  Kudos to the Education Law Center and the ACLU of Michigan for recognizing the issue in Flint and coming to these students' aid.  Gregory Little of the White & Case has also stepped up to provide pro bono services in the case.  The press release offers this:

The lawsuit demands that the Michigan Department of Education, Flint Community Schools and the Genesee Intermediate School District take immediate action to ensure that all students who require special education services are identified and provided with the programs and supports they require.

“We know that Flint schools are not currently meeting the needs of special education students, and we know that exposure to lead in drinking water can be highly toxic for children, potentially leading to or exacerbating disabilities” said Jessica Levin, ELC Staff Attorney. “It is imperative that the local district and the State of Michigan make sure students are evaluated and provided with appropriate programs and services, especially now that the number of affected students could grow significantly.”

The lawsuit amply documents the systemic violations of federal law, including the Individuals with Disabilities Education Improvement Act (IDEA), in Flint’s public school system. To remedy this situation and prepare for an expected increase in students requiring services, the plaintiffs ask for screenings and evaluations to identify all students in need of special education services and the provision of those services by sufficient and qualified personnel.

“The lead crisis in Flint has put all children at risk, and the state and local education authorities must take action to ensure the public schools meet their legal mandate of addressing students’ educational needs,” said David G. Sciarra, ELC Executive Director. “It is our privilege and our obligation to represent the families of Flint. We will do all we can to come to a speedy and appropriate resolution of this case.”

For more information about the Flint lawsuit, please read this joint ELC-ACLU of Michigan press release.

Supreme Court Hears Arguments Regarding Student's Service Dog Request

Yesterday, the Supreme Court heard oral arguments regarding the dispute over whether Ehlena Fry, a 12-year-old Michigan girl with cerebral palsy, can bring her service dog to school.  The school had prevented her from doing so and she brought suit.  The central issue, however, is narrower than the facts of the case suggest.  It is a procedural question regarding whether the student must first exhaust administrative process or could immediately sue the district.  The Asociated Press reports that the Court was sympathetic to her case:

 

Chief Justice John Roberts said it "would be kind of a charade" to force the family through administrative proceedings if they can't ultimately get the relief they want. He noted that the Frys are seeking money damages for the emotional harm Ehlena suffered, not trying to work out a compromise with school officials.

Justice Stephen Breyer said he was concerned about gutting the less formal administrative process prescribed by Congress, but seemed to agree that allowing the lawsuit made sense if exhausting administrative remedies "would be futile."

But Justice Sonia Sotomayor said she was "horribly confused" by Katyal's position because the family could no longer get anything by going through the administrative process, since Ehlena is no longer at the school.

 

Interestingly, Samuel Bagenstos, a former official in the Justice Department and nationally regarded civil rights and disability scholar, is representing Fry.  He argued that the school is demanding a time-consuming administrative process that would have the effect of denying his client the relief she seeks.  He also adds that her case involves emotional damages resulting from the way the school handled the issue.  On the other side, the district claims that allowing the suit would give the family an "end run" around the statutory process that is designed to encourage parents and educators to resolve their differences outside of court.

 

U.S. Supreme Court to Weigh Level of Benefit Required by Special Education Law by Mark Walsh

At Education Week's School Law Blog, Mark Walsh covers the U.S. Supreme Court's cert grant today in Endrew F. v. Douglas County School District RE-1 (No. 15-827), in which the Court may resolve a circuit split on the issue of what level of educational benefit must a child receive under his or her individualized education program, or IEP, for a school district to have provided a free appropriate public education under the Individuals with Disabilities Education Act? Walsh's article is below:

The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled last year in the case of a Colorado child with autism that because the child's public school IEP had provided him with "some educational benefit," the Douglas County district had provided a "free, appropriate public education" under the IDEA. The 10th Circuit court thus rejected a private school reimbursement for the parents of the boy identified as Endrew F. after the parents had pulled him from public school amid the dispute over his 5th grade IEP.

In an August 2015 decision, the 10th Circuit court panel acknowledged that several other federal courts of appeals have adopted a higher standard that requires an IEP to result in a "meaningful educational benefit." But the 10th Circuit, agreeing with a lower court in Endrew F.'s case, said that a key 1982 Supreme Court precedent on special education, Board of Education of the Hendrick Hudson Central School District v. Rowley, merely requires an IEP to provide "some educational benefit." 

"The courts of appeals are in disarray over the level of educational benefit that school districts must confer on children with disabilities to provide them with a free appropriate public education under the IDEA," says the appeal filed on behalf of Endrew F. and his parents by his Denver lawyers and the Supreme Court Litigation Clinic at Stanford Law School. "This court should use this case—which cleanly presents the legal issue on a well-developed set of facts—to resolve the conflict over this important question."

In May, the Supreme Court invited the U.S. solicitor general to file a brief expressing the views of the Obama administration. On Aug. 18, Acting Solicitor General Ian H. Gershengorn filed a brief that urged the justices to take up the appeal.

"This court should grant certiorari and overturn the 10th Circuit's erroneous holding that states must provide children with disabilities educational benefits that are 'merely ... more than de minimis' in order to comply with the IDEA," the brief states. "The 10th Circuit's approach is not consistent with the text, structure, or purpose of the IDEA; it conflicts with important aspects of this court's decision in ... Rowley, and it has the effect of depriving children with disabilities of the benefits Congress has granted them by law."

Lawyers for the Douglas County district argued in briefs, including one filed in response to the solicitor general's recommendation to grant review, that the asserted split among the federal appeals courts is "shallow" and that only the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, "has consistently applied a purportedly more demanding 'meaningful benefit' standard."

"The government contends that the IDEA demands something 'more robust'" than the "some benefit" standard, says the school district brief. "The question is whether a state has satisfied its substantive obligations if the IEP it offers provides a child more than a de minimis educational benefit. Under Rowley the answer is yes."

Despite the district's arguments, the Supreme Court on Sept. 29 granted review, one of eight cases the justices added to their docket just before the formal start of their new term on Oct. 3.

The Endrew F. case is likely to be argued sometime early next year.

DOJ Attempts to Dismantle the Segregation of Students with Disabilities in Georgia by Emily Suski

On Tuesday, the U.S. Department of Justice filed a lawsuit against the state of Georgia alleging it unlawfully discriminates against students with disabilities through its GNETS program.  GNETS stands for Georgia Network for Educational and Therapeutic Supports.  The program, which is over forty years old, consists primarily of separate facilities designated for providing education and supports to students with behavioral disabilities. DOJ contends that the program violates Title II of the Americans with Disabilities Act, which prohibits unnecessary segregation on the basis of disability in the public schools.  Tuesday’s filing represents the culmination of both years of investigation by DOJ and over a year of negotiations attempting to settle the matter with the state.

DOJ first put Georgia on notice of the potential for such a suit in July 2015, when it sent a Letter of Findings to Governor Nathan Deal and Attorney General Sam Olens.  In that letter, DOJ alleged that the GNETS program created incentives for the placement of students with behavioral disabilities in segregated facilities and that those facilities provide opportunities and services that are not equal to those provided in regular education facilities.  DOJ found that approximately two-thirds of students in the GNETS program are educated in separate facilities even though the students would benefit from inclusion in the general education environment. It also found that students in these facilities do not have access to art, music, physical education or other non-core classes, unlike students in non-GNETS programs.  In addition, DOJ found many stand-alone GNETS program buildings lacked playgrounds, cafeterias, and central or sufficient air conditioning.  Some of the stand-alone GNETS programs are housed in the buildings used to educate black students during Jim Crow era segregation.

In response Georgia closed some GNETS facilities and offered to improve others and review each GNETS student’s individualized education plan, which is the special education plan required for every student receiving special education services.  However, as DOJ pointed out in its letter of intent to sue earlier this month, the state and school districts already have a legal obligation to review students’ IEPs.  DOJ further concluded that improving segregated facilities demonstrates the state’s apparent unwillingness to dismantle a program of segregation.

Time of course will tell whether DOJ can succeed in largely dismantling the GNETS program.  Even if the effort does succeed, the victory will be truly won only if students who would have otherwise found themselves in a segregated GNETS program are not simply segregated into separate classrooms within non-GNETS schools.  Georgia’s general and special education funding scheme, as the DOJ suit suggests, incentivizes segregation.  Being educated in buildings with playgrounds and adequate air conditioning is a vast improvement over being educated in settings without those basic services, but until the system no longer incentivizes segregation, the risk that students with disabilities will be segregated will remain. 

LOF:  https://www.ada.gov/olmstead/documents/gnets_lof.pdf

Complaint:  https://www.ada.gov/olmstead/documents/gnets_complaint.html

First Circuit: Good Academic Performance Is Relevant But Not Determinative For Special Education Eligibility

The First Circuit published an opinion last week dealing with the ambiguity of the "need" provision in the Individuals with Disabilities Education Act. The parents of a seventh-grader, called Jane Doe in the opinion, sued the local school district after it decided that Jane did not require special education in reading fluency because she was doing well in school. Jane had received special education services for years to improve her reading skills. Jane's parents argued that the "need inquiry" under the IDEA should determine whether a child needs special education to remediate the underlying disability. The  school district argued that the need inquiry should determine whether a child needs special education to benefit from the school curriculum. If the child is doing well academically, the district argued, the child no long qualified for special education services. The case centers around the text of Section 1401(3)(A)(ii) of the IDEA that provides that a child determined to have one of the qualifying disorders under the first prong must also, “by reason thereof,” “need[ ] special education and related services” to be eligible for special education. 20 U.S.C. § 1401(3)(A)(ii). The First Circuit found that "Jane's overall academic performance could potentially be relevant in determining whether she has a reading fluency deficit, the district court erred in relying on such evidence without regard to how it reflects her reading fluency skills." The circuit court vacated and remanded the judgment in favor of the district, holding that the district court weighed Jane's overall academic achievement too heavily when the child's deficiency in reading fluency was sufficient by itself to support eligibility and that the district court afforded excessive deference to the hearing officer's determinations. In a concurrence, Circuit Judge Lipez offered guidance cautioning courts to not solely look at "an absolute standard of educational performance, the satisfaction of which would automatically disqualify a child from eligibility under the need prong." The case is Doe, v. Cape Elizabeth Sch. Dist., No. 15-1155, 2016 WL 4151377 (1st Cir. Aug. 5, 2016).