Sep 29

Change Is In The Air


Yes, the season is changing here in New York, but there are other special education law changes afoot. The last time the Supreme Court reviewed a case involving special education issues was when it Forest Grove Sch. Dist. v. T.A., 577 U.S. 230 (2009). Now, the Court has decided to hear two cases dealing with the rights of parents and children with disabilities in public schools. The first case is Fry v. Napoleon Community Schools, 788 F.3d 622 (6th Cir. 2015). The second case is Endrew F. v. Douglas Cty. Sch. Dist., 798 F.3d 1329 (10 Cir. 2015). Here is a summary of both cases:

Fry involved a Michigan elementary school student with cerebral palsy. A human aide was assigned in the child’s IEP, but the family wanted the child to be able to bring her service dog to school. They claimed that the dog would give more effective help and allow the child to have greater mobility. The principal refused and the parents brought an action under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973, which forbid discrimination and require provision of reasonable accommodations in places like public schools. The school district challenged the suit on the grounds that the parents should have initiated a claim in an he IDEA Due Process administrative claim because it was really related to ‘education’. The trial court and 6th Circuit agreed with the school district, stating that the claim was ‘educationally related.’ So, this case will determine whether parents dealing with accessibility issues for their children must resolve disputes with their public school districts through the IDEA’s Due Process procedure or whether they can go directly into court and sue under the ADA and Section 504 for damages.

Endrew F., involved an autistic child in Colorado. His parents placed him in private school because they felt he was not making adequate progress. Their claim for private school tuition reimbursement was denied, since it was determined that there was “some” educational benefit from the public program. The case of Bd. of Educ. v. Rowley, 458 U.S. 176 (1982) established the benchmark of ‘progress’ as the standard to determine whether the duty to provide an ‘appropriate’ education had been fulfilled. In Rowley, the court held that passing from grade to grade was enough in that particular case. Footnote 25 -which is largely ignored – makes it clear that passing grades are not an exclusive factor. Nonetheless, since 1982, parents and school districts have been debating exactly how much progress is enough to make an education ‘appropriate’. Some progress? Meaningful progress? More than trivial progress? That’s what this decision is supposed to resolve. However, I think the decision won’t provide clarification, because the words are subject to individual interpretation; what is meaningful for one person might be trivial for another. However, it is, without doubt, the most significant special education case since Forest Grove and will hopefully be a positive game changer for parents.

Stay posted!

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