February, 2001 ~ Volume 14, Issue 6
Ounce of Prevention News
Information and Ideas for Practical Problem Solving in Special Education
Return to the Articles Index Return to the Issues Index
In this issue:
A
Michigan Federal Court Upholds an IEP, Rules that Complaint
Issues were Properly Excluded from Due Process Hearing.....................................1
U.S.
Supreme Court Declares Athletic Association a State Actor
When Enforcing Rules Against a Member................................................................1
Graduation: Is Being Ready for College or Work the Test?.....................................2
FAQ's........................................................................................................................2
SRO Rejects Parents' Request for Specific Reading Methodology............................5
A Michigan federal district court has upheld a district=s proposed IEP and rejected a parent request for reimbursement of a private placement, in Kuszewski v Chippewa Valley Schools, 34 IDELR 59 (ED Mich., 2001). We reported on earlier procedural rulings in this case in OP News, December, 2000 and January, 2001.
The IEP at issue was developed in November, 1998. The parents initially agreed to the IEP and it was implemented. Several months later, however, they revoked their approval and requested a due process hearing. In the sixth day of the hearing, the parents announced that they were withdrawing their son from the district and placing him in a private school.
The district then moved to dismiss the hearing as moot. The hearing officer granted the motion. On state level review, the review officer affirmed the dismissal but also reviewed the administrative record and rejected the parents= procedural and substantive claims, finding that the district=s proposed IEP provided FAPE to the student=s maximum potential in the LRE.
On appeal to federal court, the parents raised a number of claims. They alleged that their due process rights were violated by the hearing officer=s dismissal of the hearing. The court held that their unilateral private placement did not waive their right to a determination of whether the district had provided FAPE. Thus, the dismissal was error but there was no injury because the review officer gave them a full review of the IEP.
The parents also contended that annual IEPs should have been developed while the litigation was pending but were not. The court ruled that the district was not required to develop updated IEPs because they could not be implemented under Astay put@ and, on the facts of the case, their development would have been futile and merely added to the dispute. Even if IEPs should have been developed, the failure did not cause any substantive harm.
The court also rejected a claim for reimbursement of an IEE because the parents did not indicate a disagreement with the district=s evaluation. The court held that, to obtain reimbursement for an IEE, the parents must first give the district the opportunity to defend its evaluation in a hearing or agree to the IEE.
The parents next contended that the hearing officer and review officer improperly excluded some of their claims on the basis that they were Acomplaint issues@ and not hearable. The court ruled that issues of compliance with an existing IEP should be raised in a Part 8 complaint under the Michigan rules and were properly excluded from the due process hearing. The court found that Part 8 provides a separate procedure that cannot be combined with a due process hearing under Part 2 of the rules.
The parents contended that the district failed to include input from the parents= and district=s experts in formulating the IEP. The court found that the record clearly showed that the evaluation of the district=s expert had been considered. The review officer and the court found that the parents= expert had participated by telephone in the IEP meeting. The court observed that there was no requirement that the district follow the expert=s recommendation.
The parents also claimed that their son was denied FAPE by insufficient communication with the district. The court found that there was abundant communication but, in any event, the federal regulations only require the same type of communication as the district has with nondisabled students. Since the student had received regular report cards, the district complied with IDEA. If the parents were contending that the district did not provide communications required by the IEP, that was a complaint issue.
The parents next alleged that the IEP did not provide measurable goals and objectives. The court rejected a contention that quantitative numerical goals were required. The court found that tables setting forth nonquantitative goals in each subject area but containing short term objectives with performance criteria, evaluation procedures and schedules for evaluation were sufficient because they addressed how improvements would be evaluated and at what intervals.
Finally, the parents contended that the IEP should have a cursive writing curriculum component as well as a parapro with specific training. The court agreed with the review officer that these were methodology decisions properly left to the discretion of the district and correctly excluded as issues in the hearing.
The court held that the district=s IEP provided FAPE both under IDEA and under Michigan=s maximum potential standard. Because the district provided FAPE, the claim for reimbursement of private educational expenses was denied. In turn, because the parents were not prevailing parties, their attorney fee claim was also denied.
Implications:
Several of the court=s rulings are of significance, with the most important easily being its treatment of complaint issues. The court approved of the traditional distinction between hearable and nonhearable issues, which has recently been called into question. The court expressly ruled that issues of compliance with an existing IEP should be raised in a Part 8 complaint and are properly excluded from a due process hearing.
The court also approved of the standard form used by most Michigan districts to address goals and objectives. A few cases from other jurisdictions have suggested that this approach may not provide the Ameasurable goals@ of the Ameasurable goals and objectives@ required by IDEA-97. A Michigan federal court, however, has now found that a goal may be measurable by way of its objectives.
Another significant issue was whether the district was required to develop annual IEPs while this dispute was pending. The court clearly felt that, on the facts of this case, attempting to develop new IEPs would simply Aadd fuel to the fire,@ and held that the district was not required to do so. NOTE: A number of other cases hold that a district should develop annual IEPs and this is recommended as a matter of best practice so that, in a prolonged dispute such as this one, the district can show what it would have provided had it been permitted to do so.
U.S. Supreme Court Declares Athletic Association a State Actor When Enforcing Rules Against a Member
The United States Supreme Court has held that the Tennessee Secondary Athletic Association is engaged in Astate action@ (i.e., acting as an arm of the state) when it enforces its rules against member schools. Brentwood Academy v Tennessee Secondary School Athletic Association, 531 US ___ (February 20, 2001).
The dispute in this case centered around the Association=s 1997 regulatory enforcement proceeding against Brentwood Academy, a private parochial high school and member of the Association. The Association determined that the Academy violated a rule prohibiting undue influence in recruiting athletes when it wrote to incoming parents and their students about spring football practice. The Association placed the Academy athletic program on probation for two years, barred its participation in boys= football and basketball playoffs for two years, and ordered the Academy to pay a $3,000 fine.
The Academy sued the Association in a Tennessee federal court, alleging that the Association was a Astate actor@ whose enforcement proceeding and penalties violated the First and Fourteenth Amendments to the United States Constitution. The federal district court ruled in favor of the Academy and enjoined the Association from enforcing its rule. However, the Sixth Circuit Court of Appeals reversed and held that the district court erred in finding a Asymbiotic relationship@ between the State and the Association.
The United States Supreme Court reversed the holding of the Sixth Circuit, bringing the Sixth Circuit into line with all of the other federal courts of appeal that have considered the issue. In equating the Association with a Astate actor,@ the Court focused on the makeup of the Association. The Court pointed out that the Association includes mostly public school members, that it acts through public school representatives, that it draws its officers from among the public school members, that it is largely funded with dues and fees collected on behalf of public schools, and that the Association has historically been seen as the entity to regulate interscholastic athletic competition in lieu of the State Board of Education. The Court stated that these facts clearly showed that the Association was so pervasively entwined with public institutions and officers that a nexus between the State and the Association had to be inferred.
Implications:
With this decision, the Untied States Supreme Court has resolved a split between the Sixth Circuit and all of the other circuits to consider the question. There has been a discernible trend throughout the country of parents and students requesting that interscholastic athletics be made a part of the programs and services offered by a public school under IDEA and Section 504. In some of those cases, Courts have held that the athletic association rules and by-laws must give way to the federal statutes and regulations governing the provision of FAPE to students.
The Michigan High School Athletic Association (MHSAA) is structured almost identically to the Tennessee Secondary School Athletic Association. It is, thus, almost certain that MHSAA will now also be found to be a state actor. The Sixth Circuit has previously upheld both MHSAA=s Aage 19" and Aeight semester@ rules against challenges that they discriminate against disabled students. None of these cases were decided on the basis that MHSAA was not a state actor. Nonetheless, it is possible that the Brentwood decision will lead to further challenges to these rules.
Districts need to be aware that parents may seek to have participation in specific interscholastic activities listed on the IEP. IEP teams should consider on an individualized basis whether such participation is necessary to achieve the student=s goals and objectives. Since interscholastic sports is an after school activity, this will also involve the question whether the student requires an extended school day to achieve goals and objectives. There may be alternatives in the school day that will address the goals/objectives in question and provide FAPE. If participation in interscholastic sports is not required to provide FAPE, but parents are still concerned about opportunities for participation, the district should explain that '504/ADA addresses general access opportunities for students with disabilities.
Graduation: Is Being Ready for College or Work the Test?
As students approach graduation and termination of special education eligibility, some parents and students balk at a diploma being awarded. Resistance to graduation may be premised on the fact that the student is not testing at grade level on standardized tests or a belief that the student is not ready to move on to college or work or has not learned everything the parent feels the student should have learned in high school, or simply that the district has not yet Acured@ the student. Two recent hearing decisions consider these contentions and find that they are not a basis for delaying graduation or continuing eligibility.
In Fort Bend Indep. Sch. Dist., 34 IDELR 111 (SEA Tx, 2000), the student was an 18 year old high school senior. She had ADD and was eligible as LD, with deficits in written language, auditory processing and reading comprehension. She tested at the 6.9 grade level on the Woodcock Reading Mastery Test. Nonetheless she was taking and passing all advanced general education classes with modifications. She had failed Algebra II but then passed the course in summer school.
She had received scores on the SAT and ACT that she and her parents felt were unsatisfactory and would prevent her from attending a four-year college. Her parents contended that she had not received FAPE or a transition program to prepare her for college. They sought compensatory education to improve her reading, receptive language and math skills sufficiently to prepare her for college.
The hearing officer found that, although the student had struggled because of her disabilities, she in fact had succeeded in a general education curriculum with little or no actual special education services and would receive a regular high school diploma.
The hearing officer ruled that no student is guaranteed a right to score at grade level on standardized tests and the real question is whether the student can achieve a passing grade in the classes in which she is enrolled. This student was. The hearing officer also observed that the parents= belief that she would not succeed in college was speculative but, in any event, that IDEA does not guarantee that a student will be admitted to or succeed in college. The hearing officer found the district had provided FAPE and denied relief.
In Elmhurst Sch. Dist. 205, 34 IDELR 112 (SEA Ill, 2000), the student was eligible as LD. In twelfth grade, he completed the first semester with a modified curriculum but failed the second semester and was not eligible to graduate. The district agreed to have him repeat twelfth grade in a private placement at district expense and graduate in June, 2000.
He successfully completed the required credits for graduation and met his transition goals. He was reading at a sixth or seventh grade level, however, and his math proficiency was lower. He and his parents requested a due process hearing to prevent his graduation and seek compensatory education until his twenty-first birthday.
They contended graduation was being forced on him solely because he had earned enough credits but that he was not prepared for graduation. The hearing officer found that he had a transition plan all through high school and had made progress on those goals. He observed that the student=s learning disability would persist for the rest of his life and the district was not required to cure it. He found the district had provided services for him to learn to cope with it.
The hearing officer found that the student had received FAPE and had earned a regular high school diploma. He thus ordered the diploma to be issued and denied compensatory education. In so doing, he observed that whether the student was prepared to succeed in college was not the issue. He noted that it was not disputed that the student needed further education, some of it at the high school level. This did not, however, show that the student had been denied FAPE or was being improperly graduated.
Implications:
Under IDEA-97, graduation involves two issues: has the student earned a regular high school diploma and has the student=s transition plan been carried out. If the answers to these two questions are or will be yes, then the IEP Team properly finds that graduation is appropriate. Whether the student is prepared for college is not the issue. Nor is the fact that the student does not test at grade level. A good many general education students do not test at grade level either. As the hearing officer in the Fort Bend case found, the proper question is whether the student has in fact successfully completed the courses and earned the required credit.
Some parents and students believe that, as long as they do not pick up the diploma, they have not graduated and are still eligible. In fact, if they have earned it and it has been awarded, they have graduated. Actual receipt of the diploma is not required for graduation to occur.
Q. Does a district=s disclosure of the misconduct investigation results to parents of student victims or witnesses violate FERPA?
A. No, as long as the disclosure is narrow and targeted only to parents of students directly affected. The disclosure should be limited to only the information the parent needs under the circumstances, e.g., if the student is merely a witness, why the student was questioned.
In Jensen v. Reeves, 34 IDELR 31 (10th Cir., 2001) in responding to a harassment complaint, the district advised the parent of the student victim that it had completed its investigation and the student perpetrator would lose his lunch privileges for one week and be required to stay in the principal=s office. The court held that this contemporaneous disclosure to the parents of the victim was not a release of an education record within the meaning of FERPA because FERPA was not intended to prevent a district from conveying to parents of affected students the steps it has taken to assure their safety.
In a second incident, the district sent a memorandum to parents of children allegedly assaulted on the playground by the student and other children who were witnesses. The memorandum informed the parents that an identified student had been involved in a playground incident with several other children in which he was allegedly verbally or physically abusive to them; that their child had been questioned about the incident and reported that the student had been abusive; and that the student had been informed that, if he had been abusive, the behavior must stop immediately and that there were consequences for such behavior. The court found that this memorandum merely informed the parents that their child had been involved in an alleged incident with the identified student and had been questioned. It did not disclose whether the student had been found at fault or punished. The court held that this disclosure did not violate FERPA.
Both of the disclosures approved by the court were very limited and went only to parents of students directly involved. The case does not support a general disclosure to parents or students not directly involved, even though other students may be aware of the incident.
SRO Rejects Parents' Request for Specific Reading Methodology
Affirming a local hearing officer (LHO) decision, a Michigan state review officer (SRO) ruled that an 11-year old student with a learning disability did not require one-to-one reading instruction, utilizing a specific reading methodology preferred by the parents, in In Re: Student with a Disability, 34 IDELR & 22 (SEA MI, 2000).
The school district found the student eligible for special education services as learning disabled during the 1996-97 school year when the student was in second grade. Concerned that their child was not making sufficient progress in reading, the parents enrolled the student in a six week Lindamood-Bell reading program in February and March of 1999. In the Fall of 1999, the district convened an IEP meeting to develop an IEP for the 1999-2000 school year. The IEP team determined that the child would receive five to ten hours a week of special education reading instruction along with other ancillary and related services. The parents disagreed with the IEP and requested a due process hearing, seeking one-to-one reading instruction, utilizing the Lindamood-Bell methodology, in addition to the special education classroom support, or, alternatively, a classroom setting of not more than five students. Additionally, the parents sought extended school year (ESY) services and reimbursement for the Lindamood-Bell reading program that the parents had enrolled the child in during the previous school year.
During the hearing at the local level, school district witnesses testified and had documentation showing that the student had made significant progress in the school district=s reading program and had not demonstrated any significant regression during the summer months. There was also testimony at the hearing that questioned the purported progress made by the student when enrolled in the Lindamood-Bell program as well as the qualifications of the individuals who assessed the child=s progress in the program.
The LHO concluded that the weight of the testimony clearly indicated that the student did not need one-to-one tutoring utilizing the Lindamood-Bell method, or a classroom setting of no more than five students. Applying the Burlington/Carter analysis, the LHO further determined that the parents were not entitled to be reimbursed for the Lindamood-Bell program because the district=s program was appropriate and the student was making progress. Finally, the LHO held that there was no need for ESY as there was no testimony to show that the student significantly regressed over the summer months or that he experienced an unreasonable amount of time to recoup any lost skills. In view of all the evidence, the LHO concluded that the IEP was appropriate in all respects.
In affirming the decision of the LHO, the state review officer (SRO) concluded that the IEP in question had been reasonably calculated to provide the student educational benefit and to develop his maximum potential. A review of the record demonstrated that the student did not need one-on-one tutoring or a classroom consisting of one to five students. The student had been making progress toward his goals and objectives in his current placement, utilizing a reading methodology selected by the district. The SRO noted that the reading methodology used by the district was highly regarded and staff were adequately trained. In upholding the longstanding principle that educational methodology is within the purview of the school district if it provides the student a FAPE, the SRO also rejected the parents= request for reimbursement. Finally, the SRO refused the parents= request for ESY, finding that there was no testimony in the record indicating serious regression during the summer months or extended recoupment time. Accordingly, the decision of the LHO was affirmed.
Implications:
So long as a school district=s IEP provides a student with FAPE, courts and hearing officers will not interfere in the area of methodology. One aspect of FAPE is the progress made by a student in the educational program. In this case, the teachers had documentation showing steady progress by the student. This documentation included standardized testing instruments as well as teacher made tests. Important was the fact that teachers had collected substantial amounts of data throughout the school year demonstrating the student=s progress on his goals and objectives.
If a lesson is to be learned from any Amethodology@ case (be it Lindamood-Bell or a request for the Lovaas method), it is that ongoing data collection and documentation is essential. In those cases where the district has been able to show that the student made progress, courts have generally found that the IEP provided educational benefits, and therefore FAPE. Similarly, where a student makes little or no progress, courts have found no benefit and a denial of FAPE. It is in the latter cases the courts have ordered particular methodologies, such as Lovaas, and reimbursement for programs. See, e.g., DeMora v. Department of Public Welfare, 34 IDELR 85 (PA Commonwealth Court).
This case also reaffirms that a regression/recoupment standard is to be applied in determining the need for extended school year services. The parents sought extended school year services in this case in order to Acatch the student up.@ The hearing officer found that was not the appropriate reason for extended school year services, and applied a regression/recoupment analysis. Since the parents had not been able to submit any evidence of regression, extended school year services were not appropriate.
In summary, documentation and data are the school=s best defense against claims that its IEP denies FAPE. Paying particular attention to devising goals and objectives which are measurable and specific will go a long way toward making the data collection job easier. Defending the IEP starts at the IEP meeting in devising the goals and objectives, and continues throughout the year through data collection and assessment.