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Time for a Change to the Rowley Standard

October 3rd, 2012

By Marion M. Walsh, Esq.

A little over thirty years ago, on June 8, 1982, the United States Supreme Court set forth the seminal standard for a free appropriate public education in  Board of Education v.  Rowley for students with disabilities.   In this case, the Supreme Court ruled that a school district provided a free appropriate public education (“FAPE”) to a child by providing an Individualized Education Program (“IEP”) “reasonably calculated” to produce educational benefit.  In the Second Circuit, which covers New York, Connecticut and Vermont, the courts have refined Rowley to require “meaningful educational benefit,” still a vague term, and look to evidence of passing grades and regular advancement from grade to grade as evidence of FAPE.  While courts will examine objective data, such as progress in standardized test scores,  Rowley does not deem this essential.

Few courts have questioned Rowley’s basic premise or updated the standard to comply with the mandates of the Individuals with Disabilities Education Improvement Act  (“IDEIA”) or the No Child Left Behind Act, both of which require scientifically-based research strategies in instruction and explicit evidence of progress in the general education curriculum for students with disabilities.   Rowley made sense in 1982, based on the statute it was interpreting, the Educational for All Handicapped Children Act of 1975, in an era when children with disabilities were systematically denied access to education and generally excluded from standardized assessments.  In the decision, Justice Rehnquest did not examine specific student achievement or test scores.  Clearly, in the thirty years since the Rowley decision, the educational landscape and the expectations on the methodology that school districts utilize has drastically changed.   NCLB requires data driven decisions and requires school districts to demonstrate progress for all subgroups of students, including students with disabilities, measured by a precise formula for “adequate yearly progress.”   Moreover, school districts must keep this data and chart individual student progress.

Courts have applied the Rowley standard universally to all cases, although the Rowley case involved the specific issue of whether a student with deafness, with above-average intelligence, who was doing well in a classroom required the additional service of a sign language interpreter.  The Court found that because the student was progressing, the school was not required to maximize her potential by having a sign language interpreter.   In many cases, the vague standard clearly harms students.   Most IDEIA cases indeed do not deal with parent claims that a school district must maximize potential, but rather with programs that have failed students, but which courts deem appropriate because the school district set forth an IEP that was “good enough.”  Parents know that passing grades are necessarily subjective, but grade inflation can be very difficult to prove.

In addition, Rowley discouraged courts from carefully reviewing and questioning educational methodology and substituting their judgment. For example, in Grim v. Rhinebeck Central School District, in 2003,  the United States District Court for the Southern District of New York ruled that the challenged IEPs were substantively inadequate because, among other reasons, they did not provide sufficient services to address the student’s decline in test scores from the preceding year. The Second Circuit, reversed this decision, based on Rowley, because the Impartial Hearing Officers and State Review Officer had held that the IEPs were appropriate.  The Second Circuit held that adopting expert opinion on dyslexia was inappropriate for a court reviewing administrative determinations under the IDEA.

Thus, based on the applicable legal standard set by the courts for FAPE, parents must be proactive at the CSE level to understand the IDEIA and ensure their child is making meaningful progress.   In conformance with the IDEIA, parents should expect and school districts should deliver:

  • Scientifically-based instructional and positive behavioral support strategies;
  • Training and professional development for staff targeted for a student’s disability;
  • Supporting the use of assistive technology devices and services to maximize accessibility for students;
  • Precise measurement and objective evidence of student progress and outcomes;
  • Goals and objectives that are individualized, measurable and based on knowledge of a student’s abilities and scientifically-based, rather than vague and cookie- cutter;
  • An examination of whether passing grades reflect students’ ability, as measured by careful attention to standardized test scores and student work product;
  • Transition services designed to help students lead productive and independent adult lives, to the maximum extent possible.

When parents expect this level of progress and document, in a careful record, if it is not occurring under the IDEIA, the Rowley standard will eventually evolve. Due to the substantial deference standard used by the Second Circuit, Impartial Hearing Officers and the State Review Officer, rather than the federal courts, will be on the forefront of this evolution.

Indeed, the Rowley “reasonably calculated” standard does not serve school districts well either, particularly with the new annual professional performance review (“APPR”) model that New York State has required for teachers and principals, including special education teachers.  The adoption of a lackadaisical “C” standard actually encourages a lack of vigilance and attention to the details, training and monitoring needed to identify and serve students with disabilities, under the IDEIA.  Given the extensive resources that school  boards devote to providing special education services and to the instructional staff employed, high expectations and precise measurement of progress, will better serve students and ensure that school districts are effectively using their vast resources to identify student needs and to educate students.

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Celebrate the IDEIA: A Global Perspective

September 28th, 2012

By Marion M. Walsh, Esq.

As we begin a new school year, we must all remember that the Individuals with Disabilities Education Improvement Act (“IDEIA”) is a revolutionary civil-rights statute, unparalleled in any other country or at any point in history. In re-enacting the IDEIA in 2004, Congress found that:

Disability is a natural part of the human  experience and in no way diminishes the right of individuals to  participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.

A glimpse of other countries offers a different picture.  This past year, my daughter traveled in Kolkata, India to volunteer for Daya Dan, an orphanage for  children with disabilities run by the Missionaries of Charity.  My daughter tutored a boy who was approximately 11, who was just leaning his letters and to read, but had no formal diagnosis, no formal teaching, except the volunteers and the nuns.  She tried multi-sensory techniques, sang songs about the letters of the alphabet and helped him with writing and art projects.  He grasped a lot but became easily frustrated.  Yet he was one of the lucky ones, since he had attention, care, shelter and food. But an IEP?  Special education and related services provided all school year?  Not a chance.    By some estimates, only 2% of children with disabilities in the world attend school, with the remaining 98% excluded.

As Americans, while we are rightfully critical of much of our educational system, we should be proud of our progress.  The IDEIA findings note that, before the date of enactment of the Education for All Handicapped Children Act of 1975, school districts were not meeting the educational needs of millions of children with disabilities because, among other reasons, the children were excluded entirely from the public  school system and from being educated with their peers or  undiagnosed disabilities.  The law has been successful in helping to ensure that children with disabilities and the families of such children have access to a free appropriate public education and in improving educational results for children with disabilities.

Of course, we have a long way to go.  Because the IDEIA represents a model for the world, we have to make sure it is working.  Appreciation of the law does not mean that we should not continue to advocate for its continued improvement or settle for less than strict compliance and meaningful progress.  Clearly, the implementation of the IDEIA has many challenges, but let us not forget how fortunate we are to live in a country that protects the educational rights of every student and sets an affirmative duty on every school district in the country to identify students with disabilities and provide a free appropriate public education to each student identified.  In fall 2010, I heard former New York State Education Commissioner David Steiner speak, who described the IDEIA as a model and envy of the world and noted that no other country went to such lengths to protect the substantive and procedural rights of its most vulnerable students.  He stated that in his view, every child should have an IEP.  This is a vision worthy of contemplation.  However, given the political environment, as exemplified by the New York State tax cap and the burdens on schools in doing so, it seems unlikely that such legislative measure would pass.  Still, the IDEIA creates a model of differentiating instruction and serving all student needs. It also important to remember that the IDEIA protects every child and every parent, because, disabilities can develop or become identified at any point during a child’s educational career and every child needs a safety net.

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Second Circuit Rules that School Districts Cannot Use Retrospective Testimony to Rehabilitate Defective IEPs

September 21st, 2012

By Marion Walsh, Esq.

The United States Court of Appeals for the Second Circuit, in R.E. on behalf of J.E. v. New York City Department of Education, has set an important precedent for parents in tuition reimbursement cases, under the Individuals with Disabilities Education Improvement Act (“IDEIA”).  The Second Circuit ruled that in evaluating an Individualized Education Program (“IEP”) for a student with a disability, courts and administrative officers must examine an IEP prospectively as of the time of its creation. The decision clarified that courts and administrative officers must not consider retrospective testimony, from a school district on how it would have implemented the program to modify or correct deficiencies in the IEP.

Before this decision, the permissibility of retrospective testimony on IEPs represented an open question in the Second Circuit. Although the decision had mixed results for the parents and students involved, on the whole, the decision represents an important legal victory for parents.

This decision actually involved the appeals of three parents on behalf of their children with autism, in tuition reimbursement cases.   As background, under the IDEIA, parents may reject an IEP that they believe is inappropriate, place their child in an appropriate private school and then seek tuition reimbursement from the school district, under the well-known BurlingtonCarter standard.  The Second Circuit decided the appeals in tandem due to common questions of law.   In each case, the respective Impartial Hearing Officers initially granted the parents reimbursement and the New York State Review Officer (“SRO”) reversed all three cases. In each case, the SRO relied on testimony from the school district about the educational program that the student would have received if he or she had attended public school.  The parents all challenged the reliance on this “retrospective” testimony.  From the parents’ perspective, in order to make an informed decision about the IEP, they had to have sufficient information at the time of its creation.

In contrast, in the three cases, under the New York City Department of Education’s view, the court noted that a school district could create an IEP that was materially defective, cause the parents to justifiably effect a private placement, and then defeat the parents’ reimbursement claim at a Burlington Carter hearing with evidence that would essentially fix or amend the IEP and add testimony on what services would have been applied.  The court found that by requiring school districts to create appropriate IEPs at the outset, the IDEIA prevents a school district from fixing a deficient IEP after the fact.

The Second Circuit declined to adopt the strict “four corners” rule which would prohibit any testimony beyond the face of the IEP.  For example, the court noted that a school district could introduce evidence explaining how a 6:1:1 teacher ratio would operate but could not introduce evidence that modified the staffing ratio. Specifically, the court stated:

Although we decline to adapt a four corners rule, we hold that testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP.

The Second Circuit did note that during the Resolution process, after parents request a due process hearing, school districts do have the opportunity to amend or correct deficiencies in the IEP.  The court stated that a school district that inadvertently or in good faith omitted a required service could cure that deficiency during the resolution period once it receives a due process complaint.

Second Circuit Application of Rule to Students Involved

In deciding the three (3) cases, and applying the retrospective testimony rule, the Second Circuit reached the following results in the three cases:

In R.K., the court found that the Department had failed to provide a FAPE, as there was consensus that the student needed an ABA program and speech and language and occupational therapy.  The court found that the IEP offered no dedicated aide and no guarantee of ABA therapy.  The Second Circuit found that the SRO should not have relied on extensive testimony from the teacher who would have taught the student on the planned provision of ABA services. Because the court also found the private placement appropriate, it affirmed the judgment of the district court awarding full tuition reimbursement.

However, in R.E., the court found that the Department of Education had offered a free appropriate public education (“FAPE”) to the student because the IEP was substantively appropriate, despite its omission of a functional behavioral assessment and parent training. In that case, due to the student’s needs, the Second Circuit did not find that these violations deprived the student of a FAPE and reversed the district court award for tuition reimbursement. Similarly, in E.Z.-L, the court concluded that the Department of Education’s proposed placement was substantively appropriate. Although the Department’s testimony on parent training was inappropriate, the court held that the omission of parent training on the IEP did not alone establish the denial of FAPE, as parent training was available at the proposed placement. Thus the Court affirmed the district court ruling that the student was not denied a FAPE.

What the Decision Means for Parents

Parents in tuition reimbursement cases always face an uphill battle.  But the decision provides needed clarity on the appropriate use of retrospective testimony.   Parents of children with disabilities facing a decision on whether to remove their child from public school are entitled to rely on an IEP as written and not be blindsided at a hearing by testimony on corrections or additional services that a child would have received.   In addition, the decision should prompt parents to demand more specificity on IEPs as to what services, programs and methodology will be provided.

Of course, the Second Circuit decision leaves many open questions.  Future litigation will have to determine where courts draw the line between testimony that explains an IEP and testimony that rehabilitates a deficient IEP.  In addition, the Second Circuit’s emphasis on the importance of the resolution period to allow school districts to amend deficient IEPs is perplexing and could be prejudicial to parents, as by this period, parents would already have already unilaterally placed their child.

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