Abstract
In the summer of 2013, the State of Florida passed legislation that, among other things, gave parents of students with significant cognitive disabilities the right to refuse a separate curriculum and/or school for their child. This case frames the legal ramifications of Florida Senate Bill 1108 through the lens of the landmark Supreme Court case Schaffer v. Weast. In doing so, it will explore how one family’s struggle to navigate the special education system has taken on a new life in light of this legislation.
Introduction
The relationship between a child’s caregivers and school can be one of the most influential in a young person’s life. The roles of the parent and school personnel are intimately related and, in an ideal situation, both seek to guide the moral, social, and education development of the child in their care. This relationship becomes intensely important if a child has needs that in any way deviate from those perceived to be the norm. Therefore, a positive and productive relationship between school and parent can be a significant predictor of lifelong success for the child whose care all are working to promote (Adams & Christensen, 2000).
For students who have been identified as a student with a disability, the parent/school relationship has been codified in various ways to promote the development of shared expectations and ideal outcomes for the student. In particular, the Individuals With Disabilities Act (IDEA) guarantees parents and students certain rights (i.e., the Procedural Safeguards). These rights include, in part, Participat[ion] in meetings related to the identification, evaluation, and placement of their child, and the provision of FAPE (a free appropriate public education) to their child . . . the right of parents to receive “prior written notice” on matters relating to the identification, evaluation, or placement of their child, and the provision of FAPE to their child . . . the right of parents to give or deny their consent before the school may take certain action with respect to their child . . . [and] the right of parents to disagree with decisions made by the school system on those issues. (Center for Parent Information and Resources, 2014)
The Procedural Safeguards are of particular importance because they emphasize the broad nature of the relationship between parents, students, and schools, and the role parents and students are entitled to play in the determination of educational priorities. They “are not simply ‘procedural’ rights; they are the keys to guaranteeing a substantively appropriate education” (Hyman, Rivkin, & Rosenbaum, 2011, p. 118). The Procedural Safeguards state, both explicitly and implicitly, the notion that families and schools should work as equal partners to determine how best to provide a Free Appropriate Public Education (FAPE) to students with disabilities.
Another important component of IDEA is the mandate that students with disabilities be educated in the Least Restrictive Environment (LRE). For most students, this is in a general education setting to the maximum extent possible, or in a setting with the least amount of separation from nondisabled peers as is feasible (IDEA, 20 U.S.C. 1412 (5)(B)). Consequently, parental concerns regarding placement are among those most often raised when discussing perceived challenges with respect to schools’ service models. Furthermore, students’ access to education with typically developing peers is one of the issues surrounding the education of students with disabilities most often contested (Smith, 1981; Yell, Katsiyannis, Drasgow, & Herbst, 2003).
Unfortunately, not included in the law is clear stipulation as to what, exactly, “least restrictive” or “appropriate” means. This lack of clarity can lead to differing perspectives between parents and school districts, as local educational agencies often provide placement options based on existing practices and structures of support, while parents seek placement options based on the outcomes they desire for their child and their perception of the school system with which they are working (Ryndak, Downing, Morrison, & Williams, 1996). In one in-depth qualitative research study of parents of children with a variety of placements and disabilities from western New York State, many of the parents reported “feelings of powerlessness” in dealing with the school district (Ryndak et al., 1996, p. 112). These parents shared the sense that the school was the authority on educating their child, and thus felt obliged to defer to the district’s decisions regarding their child’s placement, even if they did not agree with the district. Many parents also noted a belief that the schools used deficit-based thinking in considering their child’s placement, and several stated they had been told their child belonged in self-contained classrooms (Ryndak et al., 1996). This language of authority and the frequent sense of disempowerment experienced by parents can lead to relationships between families and schools that are adversarial rather than collaborative and potentially detrimental to the child’s educational outcomes.
Relationships and Trust
When parents do not trust schools and do not feel that they are valued partners in the process of making decisions about educational needs, outcomes for the students involved are significantly affected. Once there has been a meaningful breach of trust in a parent/school relationship, the partnership becomes dangerously at risk of failing all together (Adams & Christensen, 2000; Lake & Billingsley, 2000). This is essential because trust between parents and schools is “correlated significantly with three indicators of school performance for high school students: credits earned, GPA, and attendance” (Adams & Christensen, 2000, p. 491). Furthermore, when the essential components of trust are breached, both schools and parents may have a difficult time taking the risks and leaps of faith necessary to make decisions that are in the best interest of the child (Lake & Billingsley, 2000).
Unfortunately, when trust between a school and family is breached, both parties may reveal “bases of power and tactical maneuvers . . . employed either consciously or unconsciously in an attempt to get what they [want]” (Lake & Billingsley, 2000, p. 247). In some cases, this may leave parents feeling compelled to purchase the services of an advocate or attorney that can speak on behalf of their child and navigate the complex bureaucracy and legalities of Exceptional Student Education (ESE). Regrettably, once an outside voice has been brought in to speak on behalf of parents and children, it would stand to reason that a fundamental trust has been lost because it demonstrates parents no longer feel empowered to speak on their own behalf or they feel they lack the expertise to represent the specific needs of their child.
Recently, in an effort to empower parents to take a role as more influential decision makers in the Individual Education Plan (IEP) process, Florida passed a law known as Senate Bill (SB) 1108. However, before the particulars of SB 1108 are discussed, to provide context for this debate and deepen understanding, one family’s experience navigating the parent/school relationship and trying to support the needs of the family’s child will be explored.
Case Narrative
Susan is a 13-year-old sixth grader at Daybreak Middle School in Sun County, Florida, who, in most respects, is not unlike many other 13-year-old girls. She lives with her parents and her 22-year old brother. Her mother Diane works full-time and her father is enrolled full-time in graduate school. Diane describes Susan as crafty and creative, someone who likes music, dancing, and getting her nails done. According to Diane, Susan is becoming more interested in boys, her appearance, and having friends. From her mother’s description, she is tenacious, bordering on stubborn, and once she has decided on something, it can be close to impossible to get her to change her mind. However, unlike her peers, Susan faces unique challenges related to a rare neurological condition known as Pachygyria or “smooth brain syndrome.” According to the National Institutes of Health’s Office of Rare Disease Research, Pachygyria is a rare developmental disorder which results from abnormal migration of neurons in the developing brain and nervous system. In Pachygyria, the gyri are relatively few and are unusually broad and flat. The condition does not affect the entire brain, and is also known as “incomplete lissencephaly.” Symptoms are variable, but may include seizures, developmental delay, growth failure, small head size, feeding issues and poor muscle control. Most cases are isolated, although autosomal dominant and recessive forms have been described. Treatment is symptomatic and supportive. (National Institutes of Health, n.d.)
Susan was diagnosed with Pachygyria at the age of 3. According to her mother, she was a generally a healthy baby, although she did not talk. When Susan was 3, Diane was forced to stay home from work for several weeks due to surgery and it was during this time that she began to notice something was different about her child. Diane saw that Susan would periodically stop whatever she was doing and stare into space, occasionally making noises or bubbles with her mouth. Susan’s parents took her to the doctor where they learned she was having complex partial seizures. A series of magnetic resonance imaging (MRIs) confirmed a diagnosis of Pachygyria.
From a young age, Susan has been in classes designed for students with significant cognitive disabilities. As a result of her unique needs, Susan struggles to retain information and requires substantial repetition to learn new tasks and material. Activities that many children take for granted such as swimming or tying shoes have proven to be a struggle for Susan. In addition, she has great difficulty with expressive language and has to search to find the words to express herself. This can make writing and speaking a challenge; however, Susan’s mother stated confidently that she is able, with practice, to overcome the manifestations of her neurological impairment.
Despite Diane’s confidence that Susan’s potential exceeds her current placement in a class for students with significant cognitive disabilities, she has repeatedly struggled to come to a consensus with Susan’s school team regarding the appropriate educational environment for Susan. At Susan’s most recent IEP meeting, Diane reports having to “fight” with the school to allow Susan access to one mainstream elective rather than the “life-skills” elective to which all students in her self-contained class are assigned. Eventually, the administration and IEP team agreed to provide Susan access to an elective her mother refers to as “The Wheel,” where students spend the first semester getting brief exposure to a sample of electives including Spanish, art, chorus, music, and technology. During the second semester, Susan will be able to choose which class she would like to take and dedicate the entire semester to that elective.
Beyond this single opportunity to spend time with her typically developing peers, Susan spends the rest of her school day in a self-contained class. The class travels to the cafeteria for lunch; however, they all sit and eat together, effectively segregated from their typically developing peers. Diane was unsure whether the school mandated this arrangement or whether it was the choice of the students. Physical education (PE) class is described, according to Diane, as “inclusion” time for Susan; however, the school has refused to allow her class to participate with general education classes in PE despite the family’s desire to have Susan engage with her peers more frequently.
According to Diane, Susan is very socially aware, and wants to be “normal” like the other children she sees in school and on TV; however, without any access to her mainstream peers, she is unable to make friends or develop relationships with children outside her classroom. A recent example of how this lack of access affects Susan was illustrated by an evening Susan and her father spent at the school fair in the fall. Susan was excited to attend the event on a Friday evening, and looked forward to socializing with her friends. Unfortunately, none of her classmates attended, and Susan did not know or have relationships with anyone else from the school. Her mother expressed great frustration at this and wondered how Susan is supposed to make friends if she is never allowed to spend time with any other students at the school.
Susan is currently being educated on a curriculum based on the Florida Standards Access Points. According to her mother, Susan and the rest of the family do not want her pursuing these alternate standards; however, the school has been resistant to the idea of providing Susan access to the general education standards and assessments.
Context
Special Education Services in Florida
To graduate with a standard high school diploma, the Florida Department of Education (FLDOE) requires that students take a set number of courses in assorted subject areas, maintain a minimum grade point average, and pass various statewide exams (Fla. Stat. § 1003.428, 2013). Although the specific requirements regarding which courses and exams varies between cohorts and the level of diploma (i.e., scholar or merit), the general expectation remains that the vast majority of students will pursue this option to complete high school. For students with disabilities who otherwise meet graduation requirements but cannot pass the statewide exams, Section 1003.428 of the Florida Statutes outlines the process by which students can apply for a waiver and graduate with a high school diploma.
For students with significant cognitive disabilities who are unable to master grade-level standards, an alternate to the general curriculum exists. If the IEP team decides, based on existing data, that the general education curriculum does not meet the needs of the student, the team may decide to allow the student to participate in a curriculum based on the Florida Standards Access Points (previously known as the Sunshine State Standards Access Points). These standards, although related to the general education standards, are developed at decreased levels of complexity. Students placed in classrooms that utilize an Access Points curriculum take a statewide exam known as the Florida Alternate Assessment in lieu of the general education statewide assessment (Fla. Stat. § 1003.438, 2013). These students would have, in past years, received a special diploma; however, students such as Susan, based on yet undecided rulemaking, may possibly receive a standard diploma or simply a certificate of completion (S. 850, 2014). This is the plan currently in place for Susan, despite her and her family’s wishes to the contrary.
Sun County, Florida
Sun County is 1 of the 5 largest school districts in the state of Florida and 1 of the 15 largest in the United States. It has an enrollment of more than 200,000 students in grades prekindergarten through 12 including more than 35,000 students who receive ESE services (FLDOE, 2012b, 2012c). Of the 35,000 students receiving ESE services, nearly 1,700 took the Florida Alternate Assessment during the 2011-2012 school year (FLDOE, 2012a).
For the roughly 1,700 students taking the Florida Alternate Assessment, all of whom receive instruction in an Access Points curriculum, Sun County typically offers two different educational environments. The first is instruction in a self-contained classroom at the student’s neighborhood school or at a nearby school that houses one of these classrooms. The classrooms are divided based on developmental level and grade groups (e.g., third to fifth, sixth to eighth). In addition, separate Access Points classrooms exist for students with Autism Spectrum Disorder who display significant behavioral problems. These settings are typically grouped based on the same criteria as the other Access Points classrooms.
For students with significant cognitive impairments, the IEP team may also consider placement in an ESE center. These schools are located throughout the district and are designed only for students with disabilities. They offer the benefit of flexibility with regard to scheduling and grouping because of the large numbers of students and staff. Proponents of this type of setting “stress the need of many who [have intellectual disabilities] to have protective, caring, and cheerful environments and to receive technically sophisticated training and health support systems” (Landesman & Butterfield, 1987, p. 809). Opponents of ESE centers point out that they operate in contrast to the ultimate goal of independence and “minimally restrictive community living” (Landesman & Butterfield, 1987, p. 809).
The decision to place a student in one of these two settings is made by the IEP team, which ideally includes the parent but, in reality, may not. Until recently in Florida, a student who was placed in one of these settings despite the objections of the student’s parents would remain in the last agreed upon setting if the parent chose to pursue mediation and/or file for a due process hearing as outlined in the Procedural Safeguards of IDEA.
Due Process and Legal Ramifications
For parents and school districts that are unable to come to an agreement regarding the educational placement of a student with a disability, IDEA allows for multiple courses of remedy, the most formal of which is the due process hearing. Modeled after the American civil court system, due process hearings generally occur when the dispute is of “an immensely complex nature, or at least one of the parties has demonstrated an unwillingness to cooperate or compromise” (Cope-Kasten, 2013, p. 506). Because of this, due process hearings are an inherently combative and taxing process for both the district and the family.
In addition to the emotional and interpersonal burden of due process hearings, there are a number of barriers that may prevent families from fully accessing or benefiting from this process. First and foremost, a stark discrepancy in level of knowledge of and familiarity with the special education process puts families at a distinct disadvantage. As Hyman et al. (2011) noted, IDEA does not require districts to provide written information to parents that explains the special education process in plain language. Thus, parents receive complicated notices and descriptions of procedural and due process rights without having a basic understanding of how the underlying special education system functions. (p. 135)
Second, parents may have feelings regarding whether or not their children are receiving the type of education that they should, but they may not be able to recognize whether or when there is an actual problem in the process itself. Because of this, the ability of families to engage the services of an attorney can directly affect their likelihood of being able to meaningfully access and navigate the legal process (Cope-Kasten, 2013).
Attorneys and/or advocates may improve a family’s ability to traverse complex procedural and legal processes related to special education; however, access to such resources is not equitable to all families. According to Wagner, Marder, and Blackorby (2002), “of all the disabled children eligible for special education services under the IDEA, one-quarter (approximately 2 million) live below the poverty line and two-thirds (approximately 4.5 million) live in households with incomes of $50,000 or less” (as cited in Hyman el al., 2011, pp. 112-113). Although IDEA allows for reimbursement of attorney fees when parents prevail in due process hearings (although not for other expenses such as expert witnesses), the initial expenditures paired with the risk of not prevailing in the case (and thus not receiving reimbursement) makes the notion of due process inaccessible for many families (Hyman et al., 2011). Of course, families could choose to forgo legal representation; however, faced with the qualified and experienced legal teams school districts employ, this too may seem like a fruitless option.
In addition to the procedural knowledge and financial advantage school districts have with regard to due process proceedings, school districts also possess a very important advantage in the form of the burden of persuasion. This important concept was the key consideration in the landmark case Schaffer v. Weast (2005).
Schaffer v. Weast
In legal proceedings, the burden of persuasion is (t)he obligation of a party to introduce evidence that persuades the factfinder, to a requisite degree of belief, that a particular proposition of fact is true . . . (It) is comprised of two elements: the facts a party must plead and prove in order to prevail on a particular issue; and how persuasively the party must prove those facts. (Cornell University Law School, n.d.)
In a practical sense, with the evidence and arguments of a case being otherwise equal, it is the responsibility of the party who bears the burden of persuasion to substantiate their claims in a manner that will sway the factfinder to find in said party’s favor.
In the case of Schaffer v. Weast (2005), the family of Brian Schaffer, a student with a learning disability, challenged the ability of their local school district to provide FAPE to their child. The family, feeling the large class sizes and level of services were inadequate to meet Brian’s needs, chose to enroll him in a private school and initiated a due process hearing in an attempt to receive compensation for their tuition expenses (Conroy, Yell, & Katsiyannis, 2008).
The Supreme Court was faced with a decision of “whether (a) child with disability or school district—seeking relief at administrative hearing of challenge to individualized education plan created under Individuals With Disabilities Education Act (20 U.S.C.S. §§ 1400 et seq.) (was) held to have burden of persuasion” (Schaffer v. Weast, 2005, p. 387). Because IDEA is silent as to which party should bear the burden of persuasion, the school district argued that it should follow the normal rule, that is, the burden of persuasion would fall to the party initiating the process and seeking relief. The family, however, reasoned school districts held a natural advantage and rules of fairness should dictate the district bear the burden of persuasion due to their unique expertise and access to information (Schaffer v. Weast, 2005).
In a majority decision, the Supreme Court affirmed, absent state statutes specifically assigning it or reasons Congress intended otherwise, “the burden of persuasion lay where it usually fell, upon the party seeking relief” (Schaffer v. Weast, 2005, p. 388). This decision meant in the case of Brian Schaffer and other parents seeking relief through due process, the responsibility to prove the inadequacy of services fell to family unless they happened to live in a state that, through statute or legislation, otherwise assigned the burden to school districts. For families in Florida, the burden of persuasion in such cases follows the normal rule; however, recent legislation has significantly altered the status quo.
Florida Senate Bill 1108
In the spring of 2013, two senators whose family members work with individuals with disabilities and whose grandchildren have special needs sponsored a bill in the Florida senate that sought to substantially alter the relationship between schools and families of children with disabilities. Signed in to law in June of 2013, SB 1108 codified a number of changes to preexisting legislation regarding the education of students with disabilities. This wide-ranging bill enacted changes in various areas of education from charter school funding to teacher recertification. One specific section dealing with the rights of parents to make educational decisions for their children is of particular interest to Susan and her family.
A major component of SB 1108 was the creation of Fla. Stat. §1003.5715 (2013) that grants parents the right to give or refuse to give consent for their child’s instruction using an Access Points curriculum or in an ESE center. Historically in Florida, if the parent and district disagreed on these issues, the school district maintained the prerogative to provide what they felt was FAPE in the child’s LRE unless the parent filed for a due process hearing. SB 1108 attempts to shift the balance of power. If a parent refuses to give consent for placement, school districts must make the decision to honor the parent’s wishes or file for a due process hearing. This shift is significant because, as the entity initiating due process and seeking relief, the district now bears the burden of persuasion. This has caused Florida, in these specific circumstances, to move from a state that, under Schaffer v. Weast, would have had the burden of persuasion falling on the parents to one where the burden now falls to the school district.
In an interview with the Orlando Sentinel at the new law’s signing ceremony, the daughter of sponsor John Thrasher claimed, (t)he bill is the first of its kind in the nation . . . and was prompted because school meetings too often were an “overwhelming and intimidating experience” for parents whose children have disabilities. It empowers parents to have a clear voice and a clear role. (Postal, 2013)
There are those, however, who opposed the law’s passage worrying it would serve not to empower parents but rather to divide what should be a united team of parents and schools working together to promote the needs of a child (Thrower & Barnett, 2013). As evidenced in the case of Diane and Susan, Diane believes there exists an unbalanced power dynamic between her child’s school district and her ability to attain educational experiences she believes are appropriate for her child. It remains to be seen whether this legislation will alter districts’ stances when considering parental requests for inclusive educational experiences and whether school districts will proactively look to redesign educational settings to support increased opportunities for the inclusion of students with disabilities.
Discussion
As mentioned previously, Susan’s parents are concerned about allowing her to be educated using an Access Points curriculum. Like most parents, Diane wants what is best for her daughter; however, she faces the same challenges that countless other parents of children with special needs encounter. Many parents who advocate for inclusive educational services simply want “their child to have access to the same activities and opportunities as other students” (Spann, Kohler, & Soenksen, 2003, p. 234). Unfortunately, despite its importance, parental involvement in developing special education services has historically been poor (Spann et al., 2003). With the passage of laws such as SB 1108, perhaps parents will be empowered to take a measure of control over placement decisions for their children.
Undoubtedly, there are concerns regarding this law. Will it cause further divides between families and districts? Will children whose parents refuse consent be provided FAPE? Most importantly, does this law address core issues of parental involvement and access to a meaningful public education or does it simply address the most visible symptoms of a more significant underlying problem?
For now, this law presents an opportunity for people such as Diane and Susan. Although Diane admittedly had very little awareness of her parental rights, she was excited at the chance to engage in meaningful dialogue about Susan’s education without feeling as if she had no choice or recourse should the school disagree with her. She views this as an opportunity and is looking forward to working with the school to ensure Susan has greater access to the general curriculum and her typically developing peers.
Activities and Teaching Notes
In the summer of 2013, the State of Florida passed legislation that, among other things, gave parents of students with significant cognitive disabilities the right to refuse a separate curriculum and/or school for their child. This case frames the legal ramifications of Florida SB 1108 through the lens of the landmark Supreme Court case Schaffer v. Weast. In doing so, it will explore how one family’s struggles to navigate the special education system has taken on a new life in light of this legislation.
Confusion exists regarding the definition of LRE as written in federal law. For Susan, this ambiguity manifested in a disagreement over the placement options that allow her to access FAPE. Alquraini (2013) suggested legislators reevaluate the current definition of LRE and suggested a standard for determining LRE based on a combination of prior legal rulings. Using Alquraini’s framework or another of your choosing, draft sample language that you would propose to your legislator to clarify the term LRE.
The U.S. Supreme Court ruled barring other statutes or legislation to the contrary, the burden of persuasion should fall to the party initiating due process and seeking relief. Does your state have legislation specifically assigning the burden of persuasion? What are the potential benefits and drawbacks of the burden of persuasion being assigned to school districts?
What preparations should Diane and Susan’s family consider when next meeting with Susan’s school to advance their desire that Susan receive greater access to the general education curriculum with her typically developing peers?
Fish (2008) identified parental perception of being equal partners in the IEP process as a key factor in collaborative parent/school relationships for students with disabilities. In the case of Susan, Diane described the need to “fight” to advocate for her daughter’s needs. What are some steps Susan’s school could take to foster collaboration and promote greater agency for parents and students during the IEP process?
Assume your state has passed a bill similar to SB 1108. What are some of the steps a principal of a school should take to prepare for a meeting with parents and other members of the IEP team when there is a known disagreement over the student’s curriculum and educational environment?
Discuss with a school administrator a case where the level of trust between the school and the parents of a child with a disability was breached or a case where there have been disagreements with the parents of a child with special needs. What steps were taken to resolve the situation in a way that both the school and parents saw as beneficial to the student?
Lake and Billingsley (2000) noted that when parent/school relationships are strained, both sides may reveal “bases of powers and tactical maneuvers . . . in an attempt to get what they [want]” (p. 247). Staples and Diliberto (2010) and Mueller (2009) proposed that proactive approaches to conflict resolution could reduce the adversarial nature of meetings in these situations. First, identify what these “tactical maneuvers” might look like during an IEP meeting in Susan and Diane’s situation. Taking into account the recommendations of Staples and Diliberto (2010) and Mueller (2009), how might the school approach this meeting to build trust and remain focused on problem solving and educational planning?
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.