IDEA Regulations Amended to Align with ESSA

July 2017
Number 37

The United States Department of Education has released amended regulations implementing Parts B and C of the Individuals with Disabilities Education Act (IDEA) intended to align the Act’s terminology with that under the Every Student Succeeds Act of 2015 (ESSA). The amended regulations, which were released on June 30, are effective immediately. A copy of the new regulations can be found here.

Most of the changes will not significantly affect the day-to-day practices of local education agencies (LEAs), and are not expected to affect LEA costs.

The IDEA was reauthorized in 2004 after adoption of the No Child Left Behind Act (NCLB). The NCLB was superseded by the ESSA in 2015.

A summary of substantive amendments to the IDEA regulations includes:

  • Change in the definition of “regular high school diploma” to exclude diplomas based on alternate academic achievement standards, general equivalency diploma, certificate of completion or attendance or other credential;
  • Listing of special education teacher qualification requirements in § 300.156(c);
  • Addition of specific references to the rules in ESSA that provide comprehensive trainings and support, such as professional development, for teachers of students with special needs;
  • Alignment of requirements for assessments based on alternate academic achievement standards with those under ESSA, such that these assessments are limited to “children with the most significant cognitive disabilities”; and
  • 2016-17 is the last school year for which states may report on the results of children with disabilities taking alternate assessments based on grade-level achievement standards.

A summary of technical amendments to the IDEA regulations includes:

  • Change in the definition of “charter school” to reference the definition under the ESSA;
  • Removal of the terms “core academic subjects,” “highly qualified special education teachers,” “scientifically based research;” and
  • Changes “limited English proficient” to “English Learner.”

If you have questions regarding these new regulations or other special education obligations, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Jessi T. Gasbarro

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Ninth Circuit Loosens Time Limits on IDEA Claims

April 2017
Number 19

In a case of first impression, the Ninth Circuit Court of Appeals has ruled in favor of looser time limits on Individuals with Disabilities Education Act (IDEA) claims. (Avila v. Spokane School District 81 (9th Cir.,
Mar. 30, 2017, No. 14-35965) ___ F.3d ___ < http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/ 30/14-35965.pdf>.) The Ninth Circuit’s ruling reversed a district court decision which held that some of the plaintiff parents’ claims were time-barred under a provision of the IDEA that establishes a two-year statute of limitationsbased on the date of a due process complaint.

In 2006, student G.A.’s parents requested that the Spokane School District 81 assess G.A. for special education services due to his behavior issues. The District found that G.A. did not qualify for special education services. In 2007, G.A. was diagnosed with Asperger’s disorder by a private physician and his parents asked the District to reassess him. In April 2008, the District’s psychologist found G.A. eligible for special education services under the category of autism and in February 2009, G.A.’s parents consented to an Individualized Educational Program (IEP). A year later, the District reassessed G.A. and developed another IEP. G.A.’s parents did not agree with the assessment report or the proposed IEP, and they asked the District for an independent educational evaluation (IEE). The District denied the request for an IEE and G.A.’s parents filed a request for due process hearing.

An administrative law judge (ALJ) ruled that the District’s reassessment was appropriate and that G.A.’s parents were not entitled to a publicly-funded IEE. The ALJ also ruled in favor of the District on nine procedural claims concerning the District’s alleged failure to give prior written notice and two substantive claims alleging that the District denied G.A. a free appropriate public education (FAPE) by failing to identify G.A. as a child with a disability in 2006 and failing to assess G.A. in areas of suspected disability in 2006 and 2007.

In so ruling, the ALJ determined that some of the parents’ claims were time-barred, reasoning that because their due process complaint was filed on April 26, 2010, any complaints regarding the District’s actions prior to April 26, 2008 were time-barred by a two-year statute of limitations based on the date of their due process complaint. G.A.’s parents appealed the ALJ’s decision to the district court, which affirmed the ALJ’s ruling, including the ruling regarding the IDEA’s two-year limitation on claims arising before April 26, 2008.

G.A.’s parents then appealed to the Ninth Circuit, arguing that the district court improperly applied the IDEA’s statute of limitations to their substantive claims. In addressing the issue regarding the statute of limitations, the Ninth Circuit noted that the IDEA has two conflicting sections regarding the statutory timeline to file for due process. Specifically, the provision found at 20 U.S.C. § 1415(b)(6)(B) allows parents to file a complaint for violations “that occurred not more than [two] years” before they knew or should have known about the actions that form the basis of their complaint. The second provision, 20 U.S.C. § 1415(f)(3)(C), requires a parent to file a due process complaint within two years of the date they knew or should have known about the underlying conduct. The Ninth Circuit observed that the first provision focuses more on the timing of the violation itself, while the second provision focuses more on the timing of the complaint. In an attempt to harmonize these two provisions, the court found that 20 U.S.C. § 1415(f)(3)(C), which focuses on the date of the discovery of the alleged IDEA violation, is controlling over the other IDEA provision. Thus, the Ninth Circuit remanded the case back to the district court for a determination of when G.A.’s parents actually discovered the alleged violation of the IDEA.

The Ninth Circuit’s interpretation of the IDEA means that parents must file for a due process hearing within two years of the date that they knew or should have known about the alleged action that formed the basis of their complaint. According to this decision, claims are not limited to two years preceding the date of the filing of a due process complaint. This is important for districts to keep in mind because the application of this decision means there is no “automatic” two-year bar of claims based upon the date of the filing of a due process complaint.

For more information on the Avila case or IDEA claims in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Marcy Gutierrez

Partner

Michelle Truong

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

IDEA Procedural Requirements Warrant a Second Look After Recent Ninth Circuit Decision

April 2017
Number 17

The Ninth Circuit Court of Appeals recently issued a decision inM.C. v. Antelope Valley Union High Sch. Dist. (9th Cir., Mar. 27, 2017, No. 14-56344) ___ F.3d ___ [2017 U.S.App. LEXIS 5347] that expanded procedural requirements in special education cases and opened the door for parents to add issues during a special education due process hearing. This decision appears to shift the balance in favor of parents’ attorneys throughout California and other Ninth Circuit states.

In Antelope Valley, the student suffered from a genetic disorder resulting in blindness and “a host of other deficits.” His parent filed for a due process hearing, taking issue with the school district’s Individualized Educational Program (IEP) documentation of “teacher of visually impaired” (TVI) services offered, the IEP’s omission of the types of assistive technology (AT) devices offered, and the lack of a 10-day response to the parent’s due process complaint, among other things. The Individuals with Disabilities Education Act (IDEA), the federal law governing special education, guarantees students with disabilities a free, appropriate public education (FAPE) and requires procedural and substantive compliance when crafting an IEP for a special education student.

Although the school district prevailed in the due process hearing and at the district court level, the Ninth Circuit overturned those decisions. In ultimately determining that the student was the prevailing party entitled to an award of attorney’s fees with regard to the most recent appeal, the Ninth Circuit came to a number of additional conclusions primed to impact those who serve special education students, while also remanding the case back to the district court for additional proceedings. The issues of note are summarized below.

Adequacy of Due Process Hearing Decision

First, the Ninth Circuit examined its standard of review of special education cases. The court decided that the duration of a due process hearing, the administrative law judge’s (ALJ) active involvement in a hearing and the length of an ALJ’s opinion issued did not necessarily determine that a “thorough and careful” fact finding had occurred. Even though the ALJ in the parties’ three-day due process hearing had questioned witnesses and wrote a detailed 21-page opinion, the Ninth Circuit found that “no thorough and careful” fact finding had occurred because the ALJ had disregarded evidence and failed to address all issues. As a result, the Ninth Circuit reviewed the entire case anew, based on the evidence in the record from the underlying due process matter.

Typographical Errors in IEP Documents and the IEP as a Contract

Second, the court concluded that a typographical error constituted a denial of FAPE, even though the error had resulted in no substantive loss of services. After the parent consented to the student’s IEP, the school district realized that it had inadvertently written in the IEP 240 minutes of TVI services per month instead of the agreed-upon frequency of per week. The school district provided at least 240 minutes of TVI services per week. The school district corrected the IEP a month later, but the parent first learned of the correction during the due process hearing. The Ninth Circuit determined that although no substantive harm may have occurred with the student receiving additional minutes of TVI services, the parent nonetheless suffered procedural harm because the mistakes necessitated the parent incurring legal fees to determine the actual level of services provided. This constituted a form of prejudice denying educational benefit.

In reaching this conclusion, the Ninth Circuit also ruled that “an IEP is a contract,” and that making a unilateral amendment is legally impermissible. When the school district in this case learned that the IEP did not reflect
the IEP team’s agreement, it was required to notify the parent and seek consent for amendment. “Absent such consent, the District was bound by the IEP as written unless it sought to re-open the IEP process and proposed a different IEP,” the court said. The “unilateral amendment” to the IEP was deemed a “per se procedural violation of the IDEA because it vitiate[d] the parents’ right to participate at every step of the IEP drafting process.”

Moreover, the court ruled that a unilateral IEP correction may serve as grounds for sanctions. Whether the school district had engaged in “mere bungling” or had deliberately attempted to mislead the parent by inaccurately recording the offer of FAPE must now be determined by the district court on remand. If it is the latter, the district court is ordered to impose sanctions on the school district sufficiently severe to deter any future such misconduct.

Monitoring and Enforcement of IEP as Part of Parental Participation

The court also concluded that the IDEA provides parents a right to participate in every step of the IEP drafting process, which includes IEP monitoring and enforcement. Although the parent had participated in drafting the student’s IEP, the typographical error obfuscated her knowledge of the actual offer made, and without knowing the actual offer, she could not adequately use the IEP to monitor and enforce the services provided. This constituted another procedural violation of the IDEA. Likewise, even though the IEP team discussed the types of AT devices offered, the school district’s failure to provide that discussion in writing “rendered the IEP useless as a blueprint for enforcement.” Thus, the failure to identify the AT devices in the IEP was an additional violation.

Shifting of Burden of Proof at Due Process Hearing

The court additionally held that failing to make a clear offer of FAPE can impact a party’s burden of proof in a due process hearing. The party alleging an IDEA violation typically bears the burden of proving that the services received did not amount to FAPE. Here, the court held that when procedural violations prevent parents from knowing the kind or duration of IEP services offered, it is impossible for them to assess the substantive reasonableness of those services, so the burden of proof must shift to the school district, even if it has not initiated the due process hearing.

Penalties for Failure to Provide Responses to Due Process Complaints

In addition, Antelope Valley has created significant penalties for school districts that fail to provide a timely 10-day response to a parent’s due process complaint. The court held that in such circumstances an ALJ must not go forward with the hearing but instead order the school district to provide a response, and “shift the cost of the delay” to the school district, regardless of the ultimate prevailing party.Antelope Valley makes it clear that a school district has an obligation to commit to a position within the first 10 days after a complaint is filed. In order for the Office of Administrative Hearings (OAH) to enforce this ruling, school districts must now provide OAH with a copy of the district’s response to the complaint.

Issues to be Tried at Due Process Hearing

Finally, after this decision, a party’s failure to object to an ALJ’s restatement of the issues will not be deemed a waiver of any issue “arguably encompassed in a due process complaint.” In this case, the school district argued that the parent had waived the issue of adequate TVI services because although alleged in the due process complaint, the ALJ had not included the issue in the subsequent framing of issues for hearing. The district court agreed, but the Ninth Circuit extended the concept that “issues are treated as if they were raised in the complaint if they are tried by consent” to the IDEA context, so as to find no waiver. In doing so, the Ninth Circuit admitted that “[w]hile we haven’t previously recognized this practice in IDEA cases, it’s often been applied in a variety of other agency adjudications … We see no reason IDEA cases should be treated differently.” Effectively, this means that any issue addressed at hearing without objection could be seen as “tried by consent,” regardless of whether it is memorialized in any statement of issues.

Antelope Valley greatly expands and shifts school district obligations. It reminds those serving special education students of the need to accurately and clearly record in an IEP the offer of FAPE made, to communicate with the parents regarding monitoring and enforcement of the IEP, and to timely respond to due process hearing requests, among other things. If it is not challenged in an expanded Ninth Circuit review or an appeal to the United States Supreme Court, this case will likely alter special education legal processes in California and the rest of the Ninth Circuit for the foreseeable future.

For more information on the Antelope Valley decision, IEP drafting, responses to due process hearing requests or special education law in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Roxana R. Khan

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Ninth Circuit Reverses Summary Judgment, Finding Employer’s Response to Discrimination and Harassment Complaints Inadequate

April 2017
Number 16

In Reynaga v. Roseburg Forest Products (9th Cir. 2017) 847 F.3d 678, the Ninth Circuit Court of Appeals recently delivered an important opinion regarding public entity employers and what is required for an appropriate response to an employee’s complaint of harassment or hostile work environment. In doing so, the Ninth Circuit emphasized that employer liability may exist for negligence, if the employer fails to take effective remedial action in response to such an employee complaint.

In Reynaga, plaintiff Efrain Reynaga and his son worked as millwrights for defendant Roseburg Forest Products. The plaintiffs were the only millwrights of Mexican descent. Reynaga alleged that his supervisor, Timothy Branaugh, made repeated and constant racially derogatory statements, such as “we should close the borders to keep mother****ers like you from coming up here,” claiming “minorities are taking over the country,” and asking “are all Mexican women fat?” Reynaga also alleged that he was treated differently than his Caucasian coworkers on multiple, specific occasions, and retaliated against for filing a written complaint alleging hostile work environment.

Reynaga subsequently submitted a written complaint alleging harassment and discrimination by Branaugh. The employer hired an outside investigator to conduct an investigation into Reynaga’s complaint. In the course of the investigation, Reynaga was interviewed and he recounted Branaugh’s race-based statements. When the investigator requested a follow-up interview with Reynaga, Reynaga initially stated that he would only participate if he had counsel. Later, Reynaga agreed to participate without counsel, but the employer never followed up. On the basis of the investigation, the employer rearranged Branaugh’s schedule so that he would not be on the same shift as Reynaga.

Shortly after the investigation was completed, Branaugh left a printed email in the breakroom containing an article that claimed former President Barack Obama was an illegal alien and that “our borders are like sieves.” Reynaga read the email and described feeling “very concerned about the racial hostility and harassment at work.”

A few days later, on January 9, 2010, Reynaga and his son arrived at work for their shift. Upon discovering that Branaugh was also on site, Reynaga and his son immediately left the premises. Reynaga’s son notified the employer about Branaugh’s presence on the same shift and stated, “[w]e will not work in a hostile work environment. We will report to our shift on … Wednesday [January 13]… [u]nless we hear otherwise.” On Wednesday, January 13, 2010, when they arrived to work, plaintiffs were asked to meet with the Defendant’s human resources manager, Dan Johnson. Johnson told plaintiffs that Branaugh had been directed to have no contact with them absent an mergency. Johnson directed Reynaga and his son to do the same, and asked them if they would complete their shift that day while Branaugh remained on site. Reynaga and his son responded that they would not work with Branaugh. As a result, they were suspended “pending the conclusion of the investigation.” Five days later, Reynaga received a letter explaining that he was discharged for walking off the job on January 9, 2010 and refusing to work on January 13, 2010.

Thereafter, based upon these events, Reynaga filed a complaint in the United States District Court alleging claims for: (1) hostile work environment, including employer liability through negligence; (2) disparate treatment with regard to his discharge; and (3) retaliation related to his discharge. While the district court granted summary judgment in the defendant employer’s favor, the Ninth Circuit reversed, finding that Reynaga had presented sufficient facts to move forward with these claims.

As to Reynaga’s hostile work environment claim, the court held that a factual dispute remained as to whether: (1) the unwelcome race based conduct described above was “sufficiently severe or pervasive to alter the conditions of the Reynaga’s employment and create an abusive work environment”; and (2) whether the defendant employer, once apprised of Branaugh’s behavior, was liable for the hostile work environment claim through its negligence in failing to take adequate remedial action. The Ninth Circuit thus held that Branaugh’s repeated racist comments and Reynaga’s statements that he felt physically threatened at work met the “sufficiently severe or pervasive” test.

Significantly, the Ninth Circuit held that a reasonable trier of fact could find Reynaga’s employer liable for negligence as to Reynaga’s hostile work environment claim. Specifically, a fact finder could conclude that the employer “knew, or should have known, about the harassment, and failed to take prompt and effective remedial action.” Reynaga’s employer knew of Branaugh’s misconduct, however, the employer never formally disciplined Branaugh, despite multiple complaints about his behavior. Instead, the court found that the employer merely “coached” Branaugh with platitudes, such as “I hope you learn from your mistakes. Don’t do it again,” and “you can make people uncomfortable.” The court found this in sharp contrast to firing Reynaga for “walking off” the job and refusing to work with Branaugh. In effect, the defendant employer conditioned Reynaga’s continued employment on his willingness to work with a coworker who had a proven history of repeatedly harassing him based on race and national origin.

Additionally, evidence existed that the employer never contacted Reynaga to complete his follow-up interview during the investigation and that it treated Reynaga differently from his Caucasian coworkers. Based on the employer’s failure to discipline Branaugh or to implement effective remedial procedures to deter Branaugh’s continued harassment, the Ninth Circuit held that a reasonable trier of fact could reasonably find the employer liable for hostile work environment based on its negligence: “[w]hen the employer undertakes no remedy, or where the remedy does not end the current harassment and deter future harassment, liability attaches for both the past harassment and any future harassment.”

As to Reynaga’s disparate treatment claim, the court held that there was sufficient evidence to give rise to an inference of discrimination based on the employer’s treatment of two Caucasian employees, which was more favorable than the employer’s treatment of Reynaga. As to Reynaga’s retaliation claim, the court determined that he had a “strong” case based on temporal proximity: Reynaga had worked for the employer for over five years but the employer fired him barely one month after making a formal written complaint against Branaugh.

The important takeaway from this case for employers is that it is crucial to promptly and thoroughly investigate an employee’s complaint, and to take effective remedial measures to deter future misconduct. Such remedial measures may include avoiding contact between a complainant and the offending party (such as through reassignment, rescheduling shifts, etc.) and issuing disciplinary action sufficient to deter the offending party. Failure to implement effective remedial measures may result in employer liability for a hostile work environment on a theory of negligence.

For more information on the Reynaga decision or an employer’s duty to respond to employee harassment or hostile work environment complaints, please contact the authors of this Client News Brief or an attorney at one
of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Meera H. Bhatt

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Local Education Agencies Now Prohibited from Collecting Social Security Numbers

March 2017
Number 13

Armed with the understanding that Social Security numbers are the piece of information most used by criminals perpetrating identity thefts, the California legislature has barred local education agencies from collecting them.

Effective January 1, 2017, Assembly Bill (AB) 2097 modified section 56601 of the Education Code to prohibit school districts, county offices of education and charter schools from collecting or soliciting Social Security numbers or the last four digits of Social Security numbers from pupils or their parents or guardians. Prior to the law’s effective date, Education Code section 56601 authorized the Superintendent of Public Instruction to collect and use the Social Security numbers of individuals with exceptional needs as student identification numbers in order to assist the state in evaluating the effectiveness of special education programs.

AB 2097 was a direct response to issues raised inMorgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ. (E.D. Cal., No. 2:11-cv-3471) (Morgan Hill), a case brought by parent groups who claimed the state systematically failed to provide disabled children with a free and appropriate public education. ( See 2016 Client News Brief No. 12.) During the discovery process in Morgan Hill, the court issued an order requiring the California Department of Education (CDE) to release student data relating to as many as 10 million current and past public school students. The data was presumed to include sensitive information, such as student Social Security numbers. Some of the central concerns raised by parents in response to this order were the security of their children’s information and the possibility of identity theft.

AB 2097 repealed Education Code section 56601’s authorization to collect and use Social Security numbers in conjunction with special education programs and requires the Superintendent of Public Instruction to instead assign and use student identification numbers, commencing with the 2017-18 fiscal year and phased in over a two-year period. AB 2097 also added section 49076.7 to the Education Code to implement a broad prohibition on local educational agencies from collecting or soliciting Social Security numbers or their last four digits from pupils or their parents or guardians in any program, unless otherwise required to do so by state or federal law. Going even further, AB 2097 authorizes the CDE to create additional restrictions on the collection and solicitation of other personally identifiable information.

This new law should not only alert public agencies to the risks of and prohibitions against requesting Social Security numbers, but should serve as a reminder that public agencies should review and update non-complying forms and processes.

The newly added Education Code section 49076.7 declares that pupil data privacy is a priority because students are at risk of identity theft when providing their Social Security numbers to local educational agencies. It cites to a technical brief published by the United States Department of Education (DOE) in 2010, “ Data Stewardship: Managing Personally Identifiable Information in Electronic Student Education Records.” Through its brief, the DOE provides guidance and “best practices” regarding the ongoing management of electronic data collection, processing, storage, maintenance and use of student records. It addresses data stewardship at all levels of governance, ranging from the state department of education to individual schools. Resources like this may be invaluable to public agencies as they assess their current practices and vulnerabilities.

Data governance and stewardship in the public sector are becoming increasingly important as public sector agencies continue to transition from the use and storage of paper records to electronic and online data. For educational agencies, this transition has raised concerns about the storage and release of sensitive and confidential student information because the laws and regulations governing student records have been slower to evolve than the technology used to electronically collect, use and store the data.

To better protect electronic data maintained by public sector agencies, as well as the agencies themselves, Lozano Smith’s Technology & Innovation Practice Group is committed to working with its clients in order to refine
and develop their data policies and practices. If you have any questions about AB 2097 or any other issues related to student privacy or data protection, please contact the authors of this Client News Brief or an attorney in our
Technology & Innovation Practice Group or at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Amanda E. Ruiz

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Supreme Court Clarifies Educational Progress Standard for Students in Special Education

March 2017
Number 12

In a much anticipated decision, a unanimous United States Supreme Court has ruled that under the Individuals with Disabilities Education Act (IDEA), Individualized Education Programs (IEPs) must be reasonably calculated to enable a child with a disability to make appropriate educational progress in light of the child’s circumstances. (Endrew F. v. Douglas County Sch. Dist. RE-1 (March 22, 2017, No. 15-827) ___ U.S. ___ <https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf&gt;.) The high court vacated and remanded a Tenth Circuit Court of Appeals ruling that set the standard for providing a free, appropriate public education (FAPE) to children with disabilities under the IDEA as requiring “merely more than de minimis” educational progress.

Endrew F. is a child with autism who attended school within the Douglas County (Colo.) School District from preschool through fourth grade. When the child’s IEP team met to discuss his IEP for his fifth grade year, his parents contended the new IEP was substantially similar to his fourth grade IEP and the same goals were generally carried over from year to year. They argued this meant he was not making appropriate progress and enrolled him in a private school for students with autism. The private school created a behavior intervention plan and new academic goals and he achieved significant progress there.

The child’s parents later filed a complaint against the school district alleging a failure to provide a FAPE. An administrative law judge, a federal district court and the appellate court all found the IEP was reasonably calculated for the child to make some progress, defined as “merely more than de minimis.” The Supreme Court then grantedreview.

Foundational to the Supreme Court’s opinion is an acknowledgement ofBoard of Education v. Rowley (1982) 458 U.S. 176, the landmark ruling that established the existence of a substantive standard for FAPE. Refusing to adopt an “equal opportunity” standard inRowley, the Supreme Court required “some” educational benefit but declined to adopt a single measure of adequacy. Upholding Rowley and relying on the statutory language of the IDEA, the Supreme Court inEndrew F. found that in order for a school district to provide a FAPE under the IDEA, an IEP must be reasonably calculated to enable a child to make appropriate educational progress in light of the child’s circumstances and that sufficient progress means exceeding “merely more than de minimis.”

The Supreme Court reasoned that this standard “should come as no surprise” considering the IDEA’s many references to individuality, includingspecially designed instruction, unique needs of a child, and even individualized education program. While declining to establish a bright-line rule regarding what constitutes “appropriate” progress, the Supreme Court held that FAPE necessitates designing a program which allows a student to “‘advance appropriately toward attaining the annual goals’ and, when possible, ‘be involved in and make progress in the general education curriculum'” as statutorily required. “[F]or most children [that] will involve integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade. If that is not a reasonable prospect for a child, his IEP need not aim for grade level advancement,” the Court added. “But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.”

California special education decisions have long applied a standard similar to the one advanced by the Supreme Court in Endrew F. Ninth Circuit decisions have historically interchanged “some educational benefit,” “educational benefit” and “meaningful educational benefit” when applying the Rowley standard to require something meaningful for a particular child. Office of Administrative Hearings decisions frequently cite to Second, Fourth and Eighth Circuit authority holding that FAPE requires progress commensurate with ability, which appears consistent with the standard offered by the Supreme Court. As such, this new iteration of the Rowley standard may have limited impact in California. However, the practical examples outlined in the decision, including issues related to least restrictive analysis, grade level standards and advancement, goal revision, and the instruction that staff be prepared to explain how programs are designed to offer progress appropriate in light of circumstance, should be thoroughly considered by California school districts moving forward.

For more information on Endrew F. or its impact on the development of IEPs and offers of FAPE, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah L. Garcia

Partner

Colleen R. Villareal

Senior Counsel

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

In Service Dog Case, Supreme Court Holds that IDEA Procedures Need Not Be Exhausted if Complaint not Related to Denial of FAPE

February 2017
Number 10

On February 22, 2017, the United States Supreme Court issued a unanimous decision in Fry v. Napoleon Community Schools (2017) 580 U.S. ___ (Fry) that is expected to have a profound effect on the way lawsuits that arise under the Individuals with Disabilities Education Act (IDEA), Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504) are litigated. The Court held that students with a disabilities are not required to exhaust the administrative remedies available to them under the IDEA prior to filing a federal district court case. The Court remanded this case for a determination of whether of the student’s claims arose under the ADA and Section 504 and were related to disability discrimination, or whether the claims might have arisen under the IDEA for the school district’s offer or provision of a free appropriate public education (FAPE).

The plaintiff in Fry is a child with a severe form of cerebral palsy who is assisted by a trained service dog in her various daily life activities. When the child entered kindergarten, her parents sought permission from her Michigan school district for the dog, “Wonder,” to accompany the child to school. The district refused the request, saying that because the child received human aide support pursuant to her Individualized Education Program (IEP), the presence of the service dog was unnecessary. In response to the decision, the child’s parents removed her from the school and began homeschooling her.

The child’s parents filed a complaint with the Department of Education’s Office for Civil Rights (OCR) alleging that the school district’s exclusion of the service dog constituted unlawful disability discrimination under the ADA and Section 504. OCR agreed and found that the school district’s exclusion of the animal constituted discrimination based on disability, and the child was invited to return to school with her service dog. However, the child’s parents instead enrolled her in a different school over fears of resentment from school officials. The child’s family then filed suit in federal court alleging solely disability-based discrimination under the ADA and Section 504. The family sought declaratory and monetary relief.

At the district court level (and as affirmed by the U.S. Court of Appeals for the Sixth Circuit), the family’s suit was dismissed on the basis that the IDEA requires a plaintiff bringing suit under the ADA and Section 504, and seeking relief that is also available under the IDEA, to “first exhaust the IDEA’s administrative procedures.” The Supreme Court vacated and remanded the decision to the Court of Appeals for a determination of whether plaintiff was actually claiming that she was denied a FAPE under the IDEA.

Previously, courts have held that where a plaintiff seeks relief that is available to them under the IDEA for a denial of FAPE, regardless of whether their particular claims arise under the IDEA, ADA or Section 504, the plaintiff must first exhaust the administrative remedies available under the IDEA. However here, where the plaintiff’s complaint alleged only disability-based discrimination – without any reference to the adequacy of her special education program – the Supreme Court found that administrative exhaustion requirement may not apply and remanded the case for adjudication under this standard.

The Court noted that in cases utilizing “artful pleading” to allege a denial of FAPE without phrasing it as such to avoid the IDEA exhaustion requirement, the essence of the case determines whether the complaint is subject to the exhaustion requirement. Two questions must be asked about a complaint that neither alleges only a denial of FAPE under the IDEA or discrimination in violation of the ADA and Section 504: (1) could the plaintiff have brought the same claim if the alleged misconduct had occurred at a public facility that is not a school and (2) could an adult at the same school have pursued essentially the same grievance?

If the answer to both questions is “yes,” unless the complaint expressly alleges a denial of FAPE, the cause of action is also unlikely to involve an alleged denial of FAPE under the IDEA. When the answer to these questions is “no,” the complaint more likely concerns a student’s receipt of FAPE, and is therefore subject to the exhaustion requirement. The history of the proceedings is also indicative of the essence of the complaint in the sense that, if the plaintiff previously pursued FAPE claims under the IDEA, this is “strong evidence” that the substance of the complaint truly concerns a denial of FAPE. The Supreme Court remanded the case back to the Court of Appeals, instructing the court to determine whether the family had invoked the IDEA dispute resolution procedures prior to filing suit.

It comes as no surprise that the concurring justices expressed concern that this standard would add to the confusion surrounding the IDEA exhaustion requirement. Nonetheless, the Fry decision seems to continue the judicial narrowing of the IDEA’s exhaustion requirement. In a similar case, the Ninth Circuit Court of Appeals held that the IDEA exhaustion requirement did not apply where a student sought only monetary damages under Section 1983 of the Civil Rights Act. (SeePayne v. Peninsula School District (9th Cir. 2011) 653 F.3d 863.) Taken together, these cases may create a more direct path for student plaintiffs to federal court on civil rights claims and those arising under the ADA and Section 504.

For more information on the Fry decision and its impact on IDEA, ADA and Section 504 claims, please contact an attorney in our Special Education Practice Group or at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Kyle A. Raney

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.