Update: A federal judge ruled Monday, Feb. 12, that the school district in this case must reimburse the parents for the cost of private school.
All parents want to find a school that has a supportive environment in which their child can to thrive.
Endrew F. vs. the Douglas County School District
The parents of one Colorado student tested federal special education laws when they withdrew their son from public school – placing him in a private school – and sued their school district for what they called “inadequate educational progress.” They also sought reimbursement for the cost of the other school.
They cited the Individuals with Disabilities Education Act (IDEA), a federal law that “requires public schools to provide students with disabilities a free and appropriate education.”
Federal law also provides that “if a school cannot meet the educational needs of a disabled student, the student’s parents can place the child in private school and seek reimbursement of tuition and related expenses.”
On Aug. 25, 2015, the U.S. Court of Appeals for the 10th Circuit – in Endrew F. vs. the Douglas County School District – ruled against the family being reimbursed by the Denver school district, finding that “the child received some educational benefit that is enough to satisfy the district’s obligation to provide a free appropriate public education.”
The case went on to the Supreme Court, which decided on March 22, 2017, to uphold the basic provisions of IDEA and, some would argue, strengthen it. In a unanimous opinion written by Chief Justice John Roberts, the Court vacated the judgment of the 10th Circuit court and held that the proper standard under the IDEA “is markedly more demanding than the ‘merely more than de minimis’ test applied by the Tenth Circuit.”
A meaningful IEP
Erika Tross, a Delaware education and family law attorney, believes that the Endrew F. decision put schools on notice that they can no longer allow children to pass from grade to grade without a meaningful Individualized Education Plan (IEP).
“Those schools are going to have to up their game,” she says, “by tailoring their IEPs, providing challenging objectives and giving the children meaningful opportunities to gain an education.”
She says that one of the goals of the IDEA is for children to become “functioning and productive members of society.” After the Endrew decision, schools need to make sure that their IEPs are helping students to be able to do that.
“Parents need to remain active in the IEP process, know their child’s limits and capabilities, and make sure the IEP is tailored to the needs of the individual student,” she continues. “It is the parents’ and the schools’ responsibility to ensure that the child is making progress in light of his or her individual circumstances.”
Tross never likes to recommend suing as a first step and believes mediation is a better option than heading straight to a courtroom. “If you can do this without an attorney, it can sometimes be more effective,” says Tross. “But if you feel you are still not being heard, then get an attorney to help you through the process.”
When the IEP process doesn’t work
Attorney Craig David Becker practices education law and criminal defense in Pennsylvania and New Jersey from his offices in Bensalem, PA, and Mount Laurel, NJ.
Becker has personal experience with navigating a school district. He was diagnosed with a reading disability, and was not expected to finish school. Instead, his parents pushed his school to provide proper help, and he attended law school to become an attorney in 2003.
Becker’s goal as an education attorney is to “give the child a fair chance at life.
“First, I will encourage the parents to get this done in the school district, but if it is not taking place, I would recommend placement in an out-of-the-district or private school program,” he continues.
A major part of this process is figuring out what the child needs and what the school district lacks.
“For example,” he said, “if the public school has a child with autism and does not have trained aides, or skilled speech and language therapists, it is not going to be realistic for the district to implement a beneficial program, and in some instances, it may be easier, and more cost effective, to fund a program out of the district or at a private school.”
Evaluation
Becker cited another appeals court ruling — Ridgewood Board of Education vs. N.E. for M.E. The ruling, handed down March 30, 1999, applies to the Third Circuit Court of Appeals, and recognized that a student “needs to get a meaningful benefit from his education, and that it should be gauged in relation to the child’s potential.” (The ruling pertained to PA, NJ, DE and the Virgin Islands.)
He explained that the child does not have to be exactly on grade level, but the parents should examine if there is a significant difference between the child’s ability and what the child is achieving.
Becker stresses that the law requires school districts to look at many factors when determining ability, including factors beyond IQ testing. He says that many issues impact IQ test results, such as the type of test, test environment and the student’s emotional state.
“If parents question an educational evaluation they should have the evaluation reviewed by an attorney and/or educational expert to determine if the district properly performed the evaluation,” he says. “I often find significant flaws in educational evaluations.”
Alternative placement
Kathleen Smookler, head of school for ATG Learning Academy in Doylestown, said that one of the most important questions raised from the Endrew F. ruling is: “Who sets the education guidelines to base the decisions on?”
“There is no ‘one size fits all’ in special education,” she says, “and we need to respect everybody’s individuality.”
During the past 10 years, an estimated half of her 200 students, in first grade through high school, have come to the school because of a law suit with a local school district, and Smookler realizes what a major ordeal it is to document everything. “I have tremendous respect for the parents who go through this,” she says.
Often, parents have sued because the cognitive test scores are extremely low, and the district’s defense is that the student can’t learn. “But, when we get these same students in the right environment, we discover that they can thrive with the right curriculum.”
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