Aug 13

First Circuit Short Circuits Rowley Review but Examines Two Step Eligibility Process

    Doe v. Cape Elizabeth Sch. Dist., Dkt. N. 15-1155 (1st Cir. Aug. 5, 2016)is a meaty decision. A Maine school district decided to declassify a student with “specific learning disability.” The parents’ challenged the decision, arguing that even though the child had great grades and test scores, she still had a reading fluency disorder. The school district won at the hearing level. The Federal District Court affirmed the hearing officer’s findings. The parents appealed to the next level, the First Circuit. The First Circuit didn’t reverse, but sent the case back down to the District Court for reconsideration, stating that both academic performance and evaluations that had been offered to show reading fluency issues should be considered in determining whether the child remained eligible and whether she needed “special education.” In fact, the district court was harshly criticized for failing to properly analyze the evidence on reading fluency submitted by the parents.

    The decision emphasizes that eligibility requires a two-step analysis; 1) identification of a qualifying disorder and 2) a “need” for “special education” created by the qualifying disorder. There’s great language about how academics are not always reliable indicators of disabilities, since gift can mask a disorder. But the court side-stepped the competing arguments on ‘need’ issue. The parents argued for a narrow focus on “… whether the child needs special education to improve the skills specific to the disability, here, a reading fluency deficit.” The school district argued that the need inquiry should examine “…whether a child requires special education to benefit from the school curriculum.” The court’s response to that debate was “(m)y colleagues do not wish to resolve these competing arguments….” Addressing these competing arguments would likely have resulted in an attempt to have the Supreme Court review the Rowley standard. Perhaps the court side-stepped the issue because it would have been properly discussed after the remand rather than because the court just wanted to avoid a mess. However, Judge Lipez, who wrote the panel’s decision, attempted to address that argument in a separate concurring opinion. He rejected the parents’ view that “need” should focus on remediation of the underlying disability only. But then Judge Lipez acknowledged that the ‘need’ question must consider interference with the child’s “educational experience” if “…a child with a disorder is struggling with a social or behavioral problem that is traceable to the disability.”

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