An Updated Primer of Special Education Law

Child Find and Eligibility

The threshold issues under the IDEA are child find and eligibility. These two issues overlap, with evaluation being the connector. Although the Supreme Court has not addressed either of these issues, extensive case law has informed child find and eligibility processes. Dating back respectively to 2004 and 2006, the IDEA legislation (IDEA, 2017) and the regulations (IDEA regulations, 2018) provide for child find, yet the lower courts have developed the specific meaning of this ongoing affirmative obligation for evaluation. They have crystallized this obligation into two criteria: (a) the trigger of reasonable suspicion (i.e., when the school district has reason to suspect that the child may meet the criteria of eligibility) and (b) proceeding ahead to obtain consent for the evaluation of the child within a reasonable period of time (e.g., Zirkel, 2018a).

The IDEA legislation and regulations have more clearly established two essential prongs for eligibility: (a) meeting the criteria for one or more of the identified classifications in the IDEA, such as specific learning disability, and (b) having a resulting need for special education (e.g., IDEA, 2017, § 1401[3]). Eligibility overlaps with but is separable from child find. For example, the district may violate child find by not completing the evaluation until an unreasonably long period of time after reasonable suspicion, but the evaluation may, in some cases, defensibly determine that the child is not eligible. Moreover, the most frequent decisional factor in case law that is specific to eligibility is the second prong—the need for special education services (Zirkel, 2018a).

Free Appropriate Public Education (FAPE): Procedural

The central obligation under the IDEA is the provision of FAPE. The Supreme Court, Congress, and the lower courts have successively developed four faces, or dimensions, of FAPE. In Board of Education v. Rowley (1982), the Supreme Court established the procedural side of FAPE as the first of two questions initially answerable by the state but ultimately by the school district: “Has the [district] complied with the procedures set forth in the Act?” (p. 206). In the 2004 amendments of the IDEA, Congress codified a second element that the Rowley progeny had gradually developed for denial of FAPE for procedural violations—requiring that the violations resulted in substantive harm to the child or the child’s parents’ rights to participate in the decision-making process, respectively (§ 1415[f][3][E]). Thus, although the alternate route of the state education agency’s complaint investigation process is likely to provide a more strict approach to procedural compliance, the adjudicative route is limited to this two-step, harmless-error approach, although the IDEA authorizes the hearing officer or court to order corrective action for procedural violations.

FAPE: Substantive

In Board of Education v. Rowley (1982), the Supreme Court also established the substantive standard for FAPE, and in Endrew F. v. Douglas County School District RE-1 (2017), the court refined the standard. The resulting applicable standard is that the child’s individualized education program (IEP) must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” (Endrew F. v. Douglas County School District RE-1, 2017, p. 999). The italicized words show the Endrew F. court’s replacement of the Rowley “receive educational benefits” wording. In refining the language, the court clarified that Rowley was specific to a child fully integrated within a regular classroom and capable of grade-level achievement, whereas the new standard is intended to be more general yet recognizing the individualized nature of the IDEA. The result is subject to interpretation depending on not only the individual child but also the perspective of the particular adjudicator or stakeholder, such as parent or educator.

FAPE: Implementation

Neither the Supreme Court nor Congress has yet addressed the standard for alleged denial of FAPE based on either or both of two implementation issues—failure to implement fully the provisions of the recent IEP or inability to implement fully the proposed IEP. One aspect looks to the recent past, and the other looks to the near future. The lower courts and the alternative IDEA dispute resolution forum of the complaint investigation process have identified three alternative approaches to the failure-to-implement issue: (a) a per se approach, which regards anything more than a de minimis, or negligible, shortfall as a denial of FAPE; (b) a materiality approach, which regards substantial or significant implementation as sufficient; or (c) a materiality–benefit approach, which regards as denial of FAPE only implementation that is less than substantial or significant and also results in deprivation of benefit (Zirkel, 2017b).

The newer implementation issue in the lower courts is the claim that the proposed school is not capable of implementing the proposed IEP. Thus far, the courts have not yet developed specific standards for this issue, but the targeted aspects tend to be the assigned facilities and staffing for implementing the IEP in relation to the individual needs of the child (Zirkel, 2017a).

Related Services

The Supreme Court has settled a single issue specific to the related-services component of FAPE: What is the dividing line between the express exclusion for “medical services” within the otherwise broad breadth of the IDEA definition of “related services”? In both Irving Independent School District v. Tatro (1984) and Cedar Rapids Community School District v. Garret F. (1999), the two eligible children had severe physical disabilities. For Tatro, the student required clean intermittent catheterization, and for Garret F., the student required constant specialized nursing services. The defendant districts did not dispute that what these children needed fit under the broad definition of “related services” under the IDEA; rather, they argued that these services fit within the definition’s express exclusion for “medical services” and, thus, were not part of the FAPE obligation. In these successive cases, the court established a relatively clear boundary for the medical-services exclusion in the related-services component of FAPE: Only if a physician must provide the service, it fits in this exclusion.

Although the determination of related services remains an individualized matter, the key question is whether the student needs the proposed service to benefit from special education. If the answer is yes, the district must provide it as part of FAPE unless only a physician may provide said service. Thus, the traditional narrow meaning of education and the accompanying concern with costs do not constitute the primary considerations under the IDEA.

Least Restrictive Environment (LRE)

The IDEA (2017) legislation has long required that students with disabilities be educated in the LRE, with students without disabilities “to the maximum extent appropriate,” with removal to other placements “only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily” (§ 1412[a][5]). For this purpose, the IDEA regulations (2018) have also long required the availability of a “continuum of alternative placements,” including resource rooms, special classes, special schools, home instruction, and instruction in hospitals and other such institutions (§ 300.115).

Although the Supreme Court has not specifically addressed LRE under the IDEA, the federal circuit courts of appeal have done so in two ways. First, in a series of cases that examined LRE alone and that arose largely in the 1980s and 1990s, these appellate courts established varying tests, or standards, that include multiple factors, such as the comparative benefits of the more integrated and the less integrated placement (e.g., Howard, 2004). Second, in the more extensive and continuing case law in which FAPE was at issue, LRE has tended to play a subordinate and seemingly harmonious role.

However, a recent Sixth Circuit Court of Appeals decision may signal a new direction for this FAPE-LRE interplay. More specifically, in L.H. v. Hamilton County Department of Education (2018), the Sixth Circuit seems to provide a separate and leading role for LRE in at least two ways. First, in contrast to FAPE, LRE does not warrant the traditional judicial deference to the judgment of school authorities. Second, LRE requires in some cases more extensive efforts and services so that the integrated setting provides FAPE:

[The district’s] actions . . . do not demonstrate a failure of mainstreaming as a concept, but a failure of [the child’s] teachers and the other [district] staff to properly engage in the process of mainstreaming [the child] rather than isolating and removing him when the situation became challenging. (L.H. v. Hamilton County Department of Education, 2018, p. 795)

Thus, the interaction of FAPE and the LRE promise more judicial and professional attention.

Discipline

The Supreme Court’s only foray into the issue of discipline of students with disabilities was limited to alleged dangerousness. In Honig v. Doe (1988), the defendant district had suspended for a long period of time two students with emotional disturbance who had victimized their classmates with dangerous behavior connected with their disability. Revisiting the exclusionary history that led to the IDEA and the act’s procedurally prescribed placement process, including the “stay-put” provision, the Supreme Court ruled that school districts do not have unilateral authority to exclude a special education student from school for more than 10 consecutive days for conduct that was a manifestation of the student’s disability; rather, if the parents do not consent to such a change in placement, the only way under the IDEA was a preliminary injunction from a state or federal court.

The succeeding 1997 and 2004 amendments to the IDEA preserved the Honig interpretation but have added separate refinements, such as setting forth the criteria for determining whether the behavior is a manifestation of the child’s disability and providing impartial due-process hearing officers with authority to approve 45-day interim alternate educational placements if the student’s behavior poses a substantial danger to self or others. Congress also added authorization for unilateral district removals to an interim alternative educational setting for up to 45 school days for (a) possession of weapons, (b) possession or use of illegal drugs, or (c) infliction of serious bodily injury (§ 1415[k][1][G]).

Remedies

Congress and the courts have made clear that hearing officers and judges have broad equitable authority for various forms of injunctive relief but not money damages. The two primary remedies for denials of FAPE are tuition reimbursement and compensatory education (e.g., Zirkel, 2018b).

Tuition reimbursement has been the subject of three successive Supreme Court decisions, with intervening codification of the first two decisions in the 1997 amendments of the IDEA. In the first two decisions (Burlington School Committee v. Department of Education, 1985; Florence County School District v. Carter, 1993), the court had to balance the district’s FAPE obligation with the “stay-put” provision, which requires the child to remain in the last agreed-upon placement upon either party filing for a due-process hearing and until the disputed issue is resolved. In each of these cases, the parent unilaterally placed the child rather than maintaining the “stay-put,” but the reason was that, in the parents’ perception, the district was not meeting its FAPE obligation. In these two decisions, the court established a three-step test for parents who unilaterally place the child outside the district and seek tuition reimbursement: (1) Was the district’s proposed placement appropriate? (2) If not, was the parents’ unilateral placement substantively appropriate? and (3) If so, do the “equities,” such as the reasonableness of the cost of the unilateral placement in comparison to available private alternatives, warrant a reduction or elimination of the requested reimbursement? The 1997 congressional codification added a parental prerequisite of timely notice to the district (IDEA, 2017, § 1412[a][10][C]). More recently, the Supreme Court ruled that despite the IDEA’s reference to the child “previously [receiving] special education,” the reimbursement remedy extends more broadly to children with disabilities who had not but should have received special education (Forest Grove School District v. T.A., 2009).

Although not yet subject to either Supreme Court action or IDEA codification, compensatory education has gradually developed in the lower courts as an alternative form of relief for denials of FAPE when the parent has not unilaterally changed the child’s placement. Thus far, the three approaches for calculating compensatory education, depending on the jurisdiction, are (a) quantitative, (b) qualitative, and (c) a hybrid or relaxed approach (e.g., Zirkel, 2017c).

Section 504 and the ADA

Section 504 and its sister statute, the ADA, provide a wider definition of disability than does the IDEA, thus including but extending beyond students with IEPs. All of the applicable Supreme Court decisions thus far have arisen in contexts other than preK–12 education, mostly initiated by employees. In the only student case to date, which was in the postsecondary context, the Supreme Court concluded that the institutional obligation is to provide “reasonable accommodation,” not substantial modification (Southeastern Community College v. Davis, 1979).

This updated primer is intended to strengthen your legal currency in improving the professional effectiveness of opportunities for preK–12 students with disabilities and, ultimately, for all students.

The 2008 amendments to the ADA, which also directly apply to Section 504, extended the interpretive standards for the second and third of the three definitional elements of disability: (a) physical or mental impairment that (b) substantially limits (c) one or more major life activities. Finally, the lower courts have clearly established that the remedy of money damages is available under Section 504 and the ADA but that the standard is some proxy for intentional discrimination, such as deliberate indifference or gross misjudgment (e.g., Zirkel, 2018c).

Adjudicative Issues

Finally, because special education law results from extensive litigation in addition to the legislation and regulations of the IDEA and Section 504 and the ADA, a specialized set of key concepts is specific to the adjudication process. For example, in a series of successive cases, the Supreme Court has ruled that (a) the burden of persuasion in IDEA due-process hearings is on the filing party, which is often but not always the parent (Schaffer v. Weast, 2005); (b) parents who prevail in IDEA cases are not entitled to expert-witness fees (Arlington Central School District v. Murphy, 2006); (c) parents may proceed in federal court without an attorney for their own independent rights, but not their child’s rights, under the IDEA (Winkelman v. Parma City School District, 2007); and (d) parents must engage in “exhaustion,” which refers to completing a due-process hearing under the IDEA, before filing suit under Section 504 and the ADA or other legal bases if the crux of their claim is denial of FAPE (Fry v. Napoleon Community Schools, 2017). One other key example of this adjudicative category has not yet reached the Supreme Court but has been the subject of continuing and unsettled litigation (e.g., Zirkel, 2019)—the specification, in the 2004 amendments, of the statute of limitations, which refers to the period for filing, for a due-process hearing under the IDEA.

Conclusion

The world of special education law is fluid and fascinating. This basic primer identifies only a selection of core concepts that Congress and the Supreme Court have established under the primary framework of the IDEA or the secondary and wider framework of Section 504 and the ADA. As exemplified by the limited residual coverage here of the lower court case law, the organically evolving contents of this framework include nuanced developments and jurisdictional differences. This material is available in texts, professional periodical articles, specialized credit and noncredit courses and conferences, and web sites. In examining this material, be careful to detect two distinctions that are often not sufficiently transparent: (a) the difference between legal requirements and professional recommendations and (b) the equally important difference between advocacy and objective perspectives.

Finally, remember that this field is inevitably individualized, per the Endrew F. court’s contingency of “in light of the child’s circumstances.” This orientation sometimes results in multiple factors, such as the legal meaning of child find and LRE, or blurry lines, such as the boundary between “special education” and emerging practices for more effective general education. In any event, this updated primer is intended to strengthen your legal currency in improving the professional effectiveness of opportunities for preK–12 students with disabilities and, ultimately, for all students.