The Council for Exceptional Children (CEC) is opening its doors to the special education community in need of resources. Nonmembers of CEC can receive a free basic membership from now through May 31 by using the promotional code “CECED60.” This will give you access to all of CEC’s journal articles, member discounts on publications and events, and an online membership community where you can ask questions and receive support from special educators, administrators and support personnel. Join Now! (https://cec.sped.org/Membership)
OSEP issued this question and answer document on providing services to students with disabilities during the Corona Virus outbreak: https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf
May 17th 2019, was the 65th anniversary of perhaps the most important U.S. Supreme Court decision in the 20th century: Brown v. Board of Education (1954). Although the specifics of the case are well known; the enormous effect it had on the educational rights of students with disabilities is less well known. The Supreme Court’s decision in Brown led to advocates going to courts to secure the rights of students with disabilities to a public education.
Brown v. Board of Education as heard by the Supreme Court was actually a consolidation of five cases: Briggs v. Elliott (1952), filed in South Carolina; Brown v. Board of Education of Topeka (1952), filed in Kansas, Davis v. County School Board of Prince Edward County (1952), filed in Virginia; Gebhart v. Belton (152), filed in Delaware; and Boiling v. Sharp (1954), filed in Washington DC. The case that would become the most well-known was Brown v. Board of Education of Topeka.
This case involved a young girl, Linda Brown, who was denied admission to an all white elementary school in Topeka, Kansas. Her father, Oliver Brown, filed a class-action suit against the Board of Education in Topeka. In the lawsuit, Brown challenged the “separate but equal doctrine” that the U.S. Supreme Court had announced in a case called Plessy v. Ferguson (1896). According to the Plessy decision, racially separate facilities were permissible as long as they were equal. The ruling essentially became the justification for the Jim Crow laws, which allowed racial separate in public facilities, such as buses, movie theaters, and schools. The separate but equal doctrine would be used in areas of the country, especially the South, for 60 years.
In the early 1950s, the National Association for the Advancement of Colored People (NAACP) began to bring lawsuits to challenge the separate but equal doctrine in public schools. One of these challenges was Brown v. Board (1952) challenging the segregated schools in Topeka, Kansas. The case was appealed to the U.S. Supreme Court, which consolidated the five cases. Thurgood Marshall, who was named to the Supreme Court by President Lyndon Johnson in 1967, was the chief counsel of the NAACP and argued the case for the plaintiffs (Oliver Brown, et al.) before the High Court. The defendants were represented by John W. Davis, a former presidential candidate and attorney who had argued over 100 cases before the Supreme Court. Davis argued that states had the right to educate their children as they saw fit.
The case was heard by the Supreme Court in 1953. The Chief Justice at the time was Fred M. Vinson who believed the Plessy doctrine of separate but equal should be upheld. Interestingly enough, John W. Davis made the following argument in his opening statement “May it please the Court, I think if the appellants’ construction of the 14th Amendment should prevail here, I am unable to see why a state would have any further right to segregate its pupils on the ground of sex, on the ground of age, or on the ground of mental capacity.” Davis’ statement proved to be prescient!
Although John W. Davis thought that the defendants would win the case, the justices were unable to come to a conclusion. Associate Justice Felix Frankfurter asked that the case be reheard, which it was in the 1954 term. However, before the beginning of the 1954 term, Chief Justice Winson died. President Dwight Eisenhower nominated a former governor of California, Earl Warren to be the next Chief Justice. Thus, Warren would be Chief Justice during the rehearing of Brown.
Chief Justice Earl Warren showed enormous political skill in guiding the Court to the unanimous decision that “in the field of public education the doctrine of separate but equal has no place. Segregated schools are inherently unequal.” The Court ruled that because of segregation in the schools, the plaintiffs were being “deprived of the equal protection of the laws guaranteed by the 14th Amendment.” Chief Justice Warren also wrote that
Today, education is perhaps the most important function of state and local governments…In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right that must be available to all on equal terms.”
The ruling in Brown v. Board of Education was a major victory for the civil rights movement and became a foundation for further civil rights action and changes in education. The U.S. Supreme Court ruled that state-required or state-sanctioned segregation solely on the basis of a person’s unalterable characteristics, such as race, was unconstitutional. The Court also determined that segregation solely on the basis of race violated equal protections and denied children from minority backgrounds equal educational opportunity.
When the ruling in the Brown decision was announced, Dr. Gunnar Dybwad, the executive director of the National Association of Parents and Friends of Mentally Retarded Children (now the Arc), called attention to this crucial decision. He suggested that the Supreme Court’s ruling that the separate but equal doctrine was inherently unequal, the implications for the education of children with disabilities were clear. After all, these children often had no educational facilities because they were totally excluded from receiving an education in public schools.
In 1971, a young attorney in Pennsylvania, Thomas Gilhool, represented the Pennsylvania Association for Retarded Children (PARC) in class action lawsuit, which was to become a seminal ruling in the history of special education. In PARC v. the Commonwealth of Pennsylvania, attorney Gilhool based his arguments on the Brown decision asserting that if the Court should find for the African-American children…how could states anymore segregate on the basis of sex, age, or disabilities. A year later a lawsuit was filed against the District of Columbia in the United States District Court for the District of Columbia. The case, Mill v. Board of Education (1972), was also class action lawsuit filed on behalf of seven children with varying types of disabilities. The attorney for the plaintiffs, Stanley Herr, used the Brown decision to argue that if African-American children had a right to a public education so did children with disabilities. The plaintiffs prevailed in this case; In fact, the judge in Mills, Judge Waddy, used a quotation from Brown in his decision.
The decisions in the PARC and Mills cases were incredibly important in the development of special education. These cases secured the rights of students with disabilities to receive a free public education. These cases set a precedent for similar cases to be filed across the United States. In the 2 1/2 years following these decisions, 46 similar cases were filed in 28 states. Three years after the PARC and Mills decisions, Congress passed the Education for All Handicapped Children Act of 1975 (which was renamed the Individuals with Disabilities Educatoion Act in 1990).
Although in Brown, the Court was addressing the right of African-American children not to be segregated from white children in the educational process, the Court’s words were eventually applied to millions of children with disabilities.
In a previous blog, I addressed the recent special education case heard by the U.S. Supreme Court, Endrew F. v. Douglas County School District (2017). The case dealt with the definition of a free appropriate public education (FAPE) under the IDEA, specifically answering the question: What is the degree of educational benefit that the IDEA requires that school districts provide to students with disabilities to meet the FAPE standard of the Individuals with Disabilities Education Act (IDEA). This case involved a young boy with Autism and ADHD, Endrew F. Endrew’s parents had pulled him from the Douglas County Schools because they believed he was not making academic or behavioral progress in the school’s special education program. They placed Endrew in a private school called the Firefly Autism House, where he made progress, both academically and behaviorally. Endrew’s parents then sued the Douglas County School District asserting that the district had failed to provide Endrew with a FAPE and requesting tuition reimbursement for his placement at the private school. The Douglas County School District refused to reimburse Endrew’s parents for the tuition. The parents then requested a due process hearing and eventually brought the case to the U.S. District Court for the District of Colorado. The parents lost at both the hearing and the district court. They then appealed to the U.S. Court of Appeals for the Tenth Circuit, where they also lost. The hearing officer and both courts ruled that the Douglas County School District had provided sufficient educational benefit to Endrew to meet the FAPE standard of the IDEA. The parents appealed to the U.S. Supreme Court.
In a unanimous ruling, that was issued on March 22, 2017, the High Court overturned the decision of the U.S. Court of Appeals for the Tenth Circuit that a school district had to provide an education that was conferred merely more than de minimus (a little more than trivial) educational benefit to meet the FAPE standard of the IDEA. In fact, in the decision, Justice Roberts wrote that an educational benefit standard required merely more than de minimis benefit was so low as to not provide any benefit at all. The new higher educational benefit standard required by the Court was that a student’s IEP must be reasonably calculated to enable a student to progress appropriately in light of his or her circumstances.
The Supreme Court remanded or send the case back to the tenth circuit court to reconsider its ruling in light of the Supreme Court’s new higher standard for educational benefit. The tenth circuit court did not issue a new ruling; rather it remanded the case to the lower court, the U.S. District Court for the District of Colorado, that first decided the Endrew case to reconsider its ruling in light of the Supreme Court’s higher educational benefit standard.
The U.S. District Court for the District of Colorado issued its decision in Endrew on February 12. The judge reversed his original decision in favor of the Douglas County School District and announced its ruling in favor of Endrew and his parents. According to the judge, the Douglas County School District had failed to provide a FAPE to Endrew in light of the Supreme Court’s new higher educational benefit standard. The judge ordered the Douglas County School District to reimburse Endrew’s parents’ tuition and related expenses incurred when they removed their child from the Douglas County School District and placed him in a private school, the Firefly Autism House, at their own expense. The judge also ordered the Douglas County School District to pay Endrew’s parent’s court costs and attorneys’ fees. Although the amounts have not yet been determined the final price tag will be large. Except for the determination of these fees, the case of Endrew F. v. Douglas County School System has reached its conclusion.
The Denver Post published a very interesting account of this decision. It is available at https://www.denverpost.com/2018/02/12/douglas-county-schools-private-education-costs/.
On December 7, 2017, the Office of Special Education and Rehabilitative Services (OSERS) in the U.S. Department of Education issued a question and answer document on the U.S. Supreme Court’s unanimous ruling in Endrew v. Douglas County School District (2017). The question and answer document can be found at https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-endrewcase-12-07-2017.pdf
The intent of officials at OSERS in issuing this document was to provide parents, educators, and other stakeholders with a synopsis of this important ruling and describe how the decision in the Endrew case should inform school district’s efforts to improve academic and functional outcomes for students with disabilities. The document included 20 questions and OSERS responses to these questions. The document is divided into the following three sections:
Section 1-An overview of the Supreme Court’s ruling in Endrew
Section 2-Clarification of FAPE requirement of the IDEA
Section 3-Considerations for implementation of the Endrew ruling.
In the document, officials in OSERS examined the importance of the new higher educational benefit standard developed by the Supreme Court and reiterated that to meet the higher standard IEP teams must develop special education programs that “provide meaningful opportunities for appropriate academic and functional advancement and to enable the child to make progress” (OSERS, 2017, p.6). According to OSERS, IEP teams can accomplish this by focusing on the individualized needs of a student conduct and conducting a thorough and meaningful assessments of all of a student’s needs, and then focusing on (a) a student’s academic and functional needs, (b) the views of the student’s parents, (c) a student’s disability, and (d) a student’s potential for growth, when developing his or her IEP. Moreover, to ensure that a student’s IEP is reasonably calculated to enable a student to make academic and functional progress, the student’s IEP must include ambitious and challenging goals and objectives, and be revisited if he or she is not making the expected progress. Monitoring a student’s progress is particularly important because, according to OSERS, the Supreme Court’s decision in Endrew “clarified that the standard for determining whether an IEP is sufficient to provide FAPE is whether the child is offered an IEP reasonably calculated to enable the child to make progress that is appropriate in light of the child’s circumstances” (OSERS, 2017, p. 7). Officials at OSERS wrote that a student’s “parents and other IEP team members should collaborate and partner to track progress appropriate to the child’s circumstances” (OSERS, 2017, p. 8) and also noted that LEAs and SEAs should provide support and guidance to school personnel to ensure that they develop IEPs that meet the new Endrew standard for conferring a FAPE.
On January 11, 2017, I was fortunate enough to attend oral arguments at the U.S. Supreme Court in the important special education case, Endrew F. v. Douglas County School District. The case involved Endrew F., a young boy with Autism who attended a special education program in Douglas County School system in Colorado. Endrew’s parents had requested a due process hearing, contending that the Douglas County School System had failed to provide him with a free appropriate public education (FAPE), as required by the Individuals with Disabilities Education Act (IDEA).
The IDEA defines a FAPE as special education and related services that (a) are provided at public expense, (b) meet the standards of the state educational agency (SEA), (c) include an appropriate preschool, elementary, or secondary education, and (d) are provided in conformity with the individualized education program (IEP). Thus, a student’s FAPE is developed, implemented, and memorialized through the IEP. Moreover, the IEP must be targeted toward meeting the student’s unique educational needs and be designed to confer educational benefit.
In 1982, the U.S. Supreme Court heard its first special education FAPE case, Board of Education v. Rowley. Ruling that the special education services provided to a student had to be sufficient to confer some educational benefit upon a student with disabilities, the High Court developed a two-part test to determine if a school district had provided a student with a FAPE. To determine whether a school district had provided a student a FAPE, the test required that a hearing officer or court ask first if a school district had adhered to the procedural requirements of the IDEA and second if a student’s IEP was reasonably calculated to enable the child to receive educational benefits? In the years since the Rowley decision, hearing officers and judges had few difficulties in applying the first part of the Rowley standard, the procedural test, in FAPE cases. The second part of the standard, the substantive test, however, proved to be much more difficult because hearing officers and judges would have to determine what degree of educational benefit was necessary to confer a FAPE. Furthermore, courts were split on the question of what amount of benefit was necessary, with some courts holding that to confer FAPE a school district’s program had to confer meaningful educational benefit, whereas other courts held that the degree of benefit only had to be slightly more than trivial or de minimis.
This degree of educational benefit question was addressed in a decision by the U.S. Court of Appeals for the Tenth Circuit on August 25, 2015 in the case Endrew F v. Douglas County School District. The case involved Endrew F (hereafter Drew), a young boy who was diagnosed with autism and attention deficit hyperactivity disorder (ADHD). Drew attended the Douglas County Schools from preschool through the fourth grade. During those years, Drew received special education services in conformity with his IEP. Because Drew had an especially difficult fourth grade year, his parents decided that he was no longer receiving benefit from his educational program. They rejected the school district’s IEP fifth grade IEP and placed him in a special school for students with autism. The parents believed that Drew had been denied a FAPE, therefore, they requested tuition reimbursement for Drew’s private school placement. The parents asserted that Drew had failed to make progress toward his measurable IEP goals and that the school had not addressed their child’s worsening problem behavior. The matter went to a due process hearing level. The hearing officer decided that the school district had provided FAPE, therefore denying the parents request for tuition reimbursement. The parents appealed to the U.S. District Court and eventually to the U.S. Court of Appeals for the 10th Circuit, losing at both levels. The parents filed with the U.S. Supreme Court, arguing that the hearing officer and courts needed to use the heightened meaningful benefit when determining if a FAPE had been conferred.
On September 29, 2016, the U.S. Supreme Court decided to hear Endrew F. v. Douglas County School District. In this case, the high Court agreed to address the following issue: What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the FAPE guaranteed by the IDEA.
The Supreme Court’s decision in the Endrew F. case, which, along with Board of Education of the Hendrick Hudson School District (1982), have been the only FAPE cases heard by the highest court in the land since the Education of All Handicapped Children Act was passed in 1975 (this law was renamed the IDEA in 1990). The U.S. Supreme Court’s decision was handed down on March 22, 2017. Chief Justice John Roberts wrote the opinion for a unanimous court in vacating and remanding the decision of the U.S. Court of Appeals for the 10th Circuit. According to Justice Roberts to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a student to make academic and/or functional progress appropriate in light of the student’s circumstance. In the Court’s opinion, Justice Roberts also noted that the IEP, which he called term this “fact-intensive exercise,” is developed and implemented by school personnel and a student’s parents collaborating to create a special education program for pursuing academic and functional advancement. Justice Roberts wrote that the Court had developed a standard that was “markedly more demanding than the trivial or de minimis standard.” According to the Court’s opinions:
When all is said and done, a student offered an educational program providing ‘merely more than de minimis progress from year to year can hardly be said to have been offered an education at all… A substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act.”
Although the full effects of this ruling will not be evident until new FAPE cases reach the courts, we can be confident that the decision in Endrew means that the de minimis standard of educational benefit is dead and that courts will look more at student progress in future FAPE litigation.
In this post I will address a decision out of the U.S. Court of Appeals for the Second Circuit: T.K. and S.K. on behalf of L.K. v. New York City Department of Education (http://law.justia.com/cases/federal/appellate-courts/ca2/14-3078/14-3078-2016-01-20.html). The highest court that has yet addressed bullying of a student with disabilities, heard this case. This decision, which was announced on January 20, 2016, is a very important decision because the courts of appeals are under only the U.S. Supreme Court in terms of influence. Although decisions from the second circuit are only controlling in the states of Connecticut, New York, and Vermont, this decision is likely to have great persuasive influence on lower court throughout the country.
In this case the New York City Department of Education appealed a judgment for the United States District Court for the Eastern District of New York. The district court held that the NYC Department of Education had denied a student, L.K. a free appropriate public Education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA).
L.K. was a third grade student who had a disability and was receiving special education services as well as services in a “Collaborative Team Teaching” class, which was taught by both a special education and general education teacher. She was making progress during the school year but she started being bullied by other students. There was some physical abuse but primarily the bullying involved name- calling, avoiding physical touch, drawing demeaning pictures of her, and making prank phone calls. L.K.’s teachers apparently did little to stop the bullying. The bullying began to affect L.K.’s academic and nonacademic performance.
L.K.’s parents made several attempts to raise the issue of bullying with her teachers. For example, her parents requested copies of all bullying incidence reports. They also attempted to address the bullying with L.K.’s teachers and the principal of the school but received no response. The parents actually wanted to discuss the bullying during a meeting in which L.K.’s individualized education program (IEP) and behavior intervention plan (BIP) were being developed. Unfortunately, the school principal said that the IEP team meeting was not the proper place to discuss bullying. At a later IEP team meeting held in the summer, L.K.’s parents again tried to discuss bullying.
L.K.’s parents decided to place L.K. in a private school rather than risking more bullying. Her parents requested a due process hearing in which they requested tuition reimbursement. L.K.’s parents argued that the school district had violated the IDEA by refusing to discuss their concerns regarding bullying. The parents lost at the due process level and later at the state review board. The parents’ appealed to the U.S. District Court.
The district court judge noted that students with disabilities have a right to be secure in school and that bullying that is not addressed could constitute a denial of a FAPE. The district court also developed a four-part test to determine whether the bullying resulted in a denial of a FAPE: (1), was the student a victim of bullying, (2) Did school personnel have notice of substantial incidence of the student being bullied, (3) were school personnel deliberately indifferent to the bullying or did they fail to take reasonable steps to prevent the bullying, and (4) did the bullying substantially restrict the student’s educational opportunities? The court remanded the case back to the hearing officer to consider L.K.’s parents’ claims under this test. The hearing officer and state review officer found for the school district, so the parents again appealed to the District Court.
The District Court granted a judgment in favor of L.K.’s parents. The district court judge also held that the school district’s principal and IEP teams refusal to permit L.K.’s parents’ to discuss bullying during the IEP development was a denial of FAPE in violation of the IDEA. The court also ordered tuition reimbursement.
The school district appealed to the U.S. Court of Appeals for the Second Circuit. The circuit court affirmed the lower court’s decision holding the New York City Department of Education had denied L.K. a FAPE by refusing to discuss the issue of bullying, even though it substantially interfered with L.K.’s learning opportunities. The circuit court also affirmed the award of tuition reimbursement. Essentially, the circuit court held that the school district had committing a serious procedural violation of not allowing L.K.’s parents the right to participate in the development of her IEP.
What does this decision mean for school district personnel? First, all administrators, teachers, and staff should be on the lookout for incidences of bullying. Detecting and responding to bullying when it first occurs is extremely important. This is critical if the victim is being bullied because of his or her disability, race, color, national origin, or sex. When there is a complaint from a student’s parents, peers, or teaches, administrators need to act quickly to address the potential problem. School officials should remember that when students in a protected class (e.g., disability, race, color, national origin, sex) is the target of bullying, the school district is responsible for addressing bullying incidence about which it knows, or should have know. Additionally, all investigations should be thoroughly documented.
Second, when incidences of bullying are recognized, administrators and teachers need to respond quickly and effectively. In responding to bullying, school personnel should do more than simply disciplining the offender. School personnel, including IEP and Section 504 teams need to (a) eliminate the hostile environment created by the bullying, (b) address the effects of the bullying on the victim (e.g., providing counseling), and (c) take steps to ensure that the bullying does not reoccur.