A Comprehensive Evaluation of the Supreme Court’s Forest Grove Decision?

Flawed Reliance on the Supreme Court’s Forest Grove Decision

The Dixon et al. article’s reliance on the Supreme Court’s decision in Forest Grove is flawed for several reasons. First, this Supreme Court ruling provides no support for the authors’—or any—interpretation of the meaning of comprehensive evaluation under the IDEA. Instead, the Supreme Court in Forest Grove addressed the narrow and entirely distinct issue of whether a child’s lack of previous enrollment in special education precludes the remedy of tuition reimbursement under the IDEA. Even the “dicta,” which are other conclusory statements beyond the issue in the case and, thus, without precedential value, do not address comprehensive evaluation. For example, Dixon et al. (2011) quoted the following statement in the majority opinion as, purportedly “[i]n other words” (p. 104), equating to its comprehensive evaluation thesis: “when a child requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP” (Forest Grove School District v. T.A., 2009, pp. 238-239). Rather than demarcating the district’s IDEA evaluation responsibilities, this quotation from the Supreme Court’s opinion was specific to the first substantive step of tuition reimbursement analysis, which is whether the district met its postevaluation obligation of providing an appropriate program. A district’s failure to propose an IEP obviously amounts to a failure to provide an appropriate IEP, but it does not obviously or subtly define the scope or contents of a comprehensive evaluation.

Second and similarly, Dixon et al. (2011) characterized the Supreme Court decision as “in part based on the child find [provision of the IDEA]” (p. 107). Yet the only reference in the Supreme Court’s Forest Grove (2009) opinion to child find was merely dicta. Specifically, citing the child-find language in the IDEA, the Court only observed that the obligation “to ‘identif[y], locat[e], and evaluat[e]’ ‘[a]ll children with disabilities residing in the State’ to ensure that they receive needed special-education services” (p. 245) was contradictory to the district’s contention that the child’s lack of enrollment in special education categorically barred tuition reimbursement. This incidental reference to child find was specific to the threshold for tuition reimbursement, not to the contours of comprehensive evaluation. The Dixon et al. characterization was overbroad because it failed to distinguish between (a) child find, which more specifically refers to the district’s obligation to provide an evaluation upon reasonably suspecting that the child may fit the definition of disability, and the overlapping but successively separable IDEA issues of (b) whether the evaluation was appropriate, and (c) whether the child was eligible (e.g., Martin & Zirkel, 2011, 2012). The differences among these legal issues are subtle but significant. For example, in a case where the district violated its child-find obligation but belatedly evaluated the child and determined that he or she was ineligible, the Fifth Circuit Court of Appeals vacated the lower court’s awards of compensatory education and attorneys’ fees to the plaintiff-parent. Citing Forest Grove, the Fifth Circuit concluded: “[the] IDEA does not penalize school districts for not timely evaluating students who do not need special education” (D.G. v. Flour Bluff Independent School District, 2012). To whatever extent Forest Grove addressed the issue of whether an evaluation was sufficiently timely, it clearly did not address the issue of whether an evaluation was sufficiently comprehensive.

The third flaw is the Dixon et al. (2011) interweaving between the Supreme Court’s decision and the impartial hearing officer’s decision in Forest Grove. Their reliance on the hearing officer’s decision is contrary to the titular tenor of their article. Moreover, in comparison to the Supreme Court’s jurisprudence, hearing officer decisions have no precedential weight. Furthermore, Dixon et al. overstated the reason for the hearing officer’s inadequate evaluation conclusion—namely, “because the district failed to evaluate T.A” (p. 106). Instead, the hearing officer identified the reason as the failure of the district’s evaluation specifically to address ADHD (Forest Grove School District, 2004). Finally, contrary to Dixon et al.’s characterization that the Supreme Court “affirm[ed] the . . . Hearing Officer’s decision” (p. 104), the Supreme Court only reversed the trial court’s ruling on an issue that the hearing officer had not addressed—whether the child’s lack of previous special education services was a categorical bar to tuition reimbursement. The hearing officer had awarded tuition reimbursement. Rather than affirm this award, the Supreme Court remanded the case back to the lower courts for a determination. On remand, the Ninth Circuit ultimately ruled that the child was not entitled to tuition reimbursement, and the basis of its decision—like Supreme Court’s decision—was not child find, much less comprehensive evaluation.

Flawed Reliance on Other Legal Relevant Authority

Similarly, in its connected analysis of the purportedly relevant regulations and their legal import for RTI, the Dixon et al. (2011) article is notably flawed as a matter of law. First, Dixon et al. primarily relied on the “relevant” (p. 107) IDEA regulation (2006) that requires evaluation in “in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities” (§ 300.304[c)][4]). Not only was this regulation not at issue in the Supreme Court’s Forest Grove decision but Dixon et al. failed also to give sufficient significance to two express limitations in this requirement: (a) the specific focus on “the” suspected disability, and (b) the integral qualifier “if appropriate.” The cited regulation does not require evaluating all areas relating to all disability classifications, and it does not require—as necessarily appropriate—including assessment of cognitive ability in every evaluation. Using the case that Dixon et al. targeted as the example, the hearing officer’s decision clarified that the disability classification at issue was other health impairment based on ADHD (Forest Grove School District, 2004). Yet Dixon et al. cited this legal authority to support their contention that a comprehensive evaluation must include cognitive assessment for SLD identification. Moreover, for this separate disability classification, the commentary accompanying the IDEA regulations clarify the issuing agency’s position that an assessment of psychological or cognitive processing is “not required in determining whether a child has an SLD . . .” (IDEA Regulations Commentary, p. 46651). Although not binding on courts, such official agency interpretations generally are entitled to persuasive weight (Zirkel, 2003), which is clearly more than courts accord to hearing officer decisions (e.g., Alex R. v. Forrestville Valley Community Unit School District, 2004). A systematic review of SLD identification cases under the traditional, severe discrepancy approach revealed that in the vast majority of both the hearing officer and judicial decisions the psychological-processes component was not a critical factor (Zirkel, 2006, 2010). Thus, the “comprehensive psychoeducational evaluation of psychological processes,” which Dixon et al. interpret as a “must” for school districts in light of their cited legal authority (p. 110), is even more legally questionable as a legal requirement under the RTI approach, where “intellectual development” is not part of the regulatory requirements (§§ 300.307[a][2] and 300.309[a][2][i]).

Conversely, Dixon et al. (2011) confusingly equate the “third” approach for SLD identification with the “pattern of strengths and weaknesses” language in the IDEA regulations (§ 300.309[a][2][ii]). As explained in the regulations and the cited Zirkel and Thomas (2009) analysis, the third approach is “other alternative research-based procedures” (IDEA regulations, 2006, § 300.307[a][3]). As explained by OSEP this “pattern” language, which does refer to “intellectual development, encompasses both the severe discrepancy approach and, for the states that permit or require it, the “other alternative” approach (Letter to Zirkel, 2008).

Finally, contrary to Dixon et al. (2011), who ultimately based their interpretation on scholarly sources that are part of a larger professional debate, the predominant weight of clearly relevant case law takes a relaxed and skeletal view of the meaning of appropriate evaluation under the IDEA, whether in terms of procedure or substance or in terms of the IDEA’s “comprehensive” or “all areas related to the suspected disability” provisions (e.g., Zirkel, in press), which is clearly distinct from the rigorous and detailed norms of the assessment profession. As a quick example, the Third Circuit Court of Appeals rejected the parent’s principal claim that the district failed to provide a timely comprehensive language evaluation, summarily distinguishing between what was legally “required” and what was professionally “desirable” (R.R. v. Manheim Township School District, 2011, p. 550).

Conclusion

In sum, in contrast with Dixon et al. (2011), I do not advance a position for or against cognitive assessment, RTI, or other professional assessment issues but only seek an impartial and expert analysis of the IDEA that carefully distinguishes the lore from the law, thus providing for informed decisions by school psychologists, other practitioners, and policy makers. The Supreme Court’s decision in Forest Grove simply does not provide any TA, or technical assistance, for school psychologists concerning comprehensive evaluations.

Assessment of the views of Dixon et al. should be independent of the legal authority on which they rely. Although not obvious from the tenor of their article, their legal interpretations are as advocates. A comprehensive evaluation from a judicious legal perspective suggests that the connection between the professed legal foundation of their article and their expressed professional views about comprehensive evaluations is so tenuous as to be discontinuous. Conversely, their particular professional recommendations should not be characterized as, or confused with, the applicable legal requirements.