Supreme Court to Decide Level of Educational Benefit for Students with Disabilities

On January 11, the U.S. Supreme Court heard arguments in one of the most significant special education cases in past three decades. In the 1982 case Board of Education v. Rowley, the Supreme Court determined that an individualized education program (IEP) must be “reasonably calculated to enable the child to receive educational benefits.” Since then, federal courts have weighed in on educational benefits, some determining that a minimum standard, de minimis, is enough, while others, including the Sixth Circuit (Deal v. Hamilton Bd. of Ed., No. 03-5396, 6th Cir. 2004), have held that a meaningful educational benefit is needed. With federal circuits divided on this federal issue, the Supreme Court agreed to hear the case at hand. The question before the Court is as follows:

What level of educational benefit must school districts confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act (IDEA)?

Endrew F., who goes by the name Drew, is a student with autism in Colorado. He was placed on an IEP from preschool through fourth grade. His proposed IEP for fifth grade contained goals that his parents say too closely resembled the goals from previous years. Dissatisfied with the progress Drew was making in public school, his parents withdrew him and enrolled him in private school.

Drew’s parents filed a complaint with Colorado’s Department of Education, claiming that Drew had been deprived of a free appropriate public education (FAPE). The parents also claimed that Drew had made academic, social, and behavioral progress in private school. They asked to be reimbursed for the cost of his private schooling, per IDEA, which provides for reimbursement of private school tuition and related expenses if a public school cannot meet the educational needs of a student with a disability. Drew’s parents and the school district argued their case in an administrative hearing, then in a federal district court, and finally on appeal in the Tenth Circuit Court. All of the rulings were in favor of the school district, finding that the public school had provided Drew with FAPE, that he had made “some academic progress” which was “more than de minimis,” and that his IEP was “substantively adequate.”

IDEA grants students with disabilities with the right to receive “appropriate” special education and related services at public expense. The IEP must be designed to provide for this “appropriate public education” under IDEA. However, IDEA does not define the term “appropriate,” nor does it define the required level of educational benefit.

Clearly, the law requires that special education be designed to each child’s individual needs and that schools provide services to benefit special education students. How far schools must go to benefit students, however, remains unclear.

The 1982 Rowley case involved a deaf student who was an excellent lip reader. Her parents asked for an interpreter, but the school said she was doing well enough that she didn’t need one. Her parents contended that she was not reaching her full potential, but the Supreme Court held that a school is not required to maximize each student’s potential. After the Rowley decision in 1982, many federal courts used the analogy that schools provide the educational equivalent of “a serviceable Chevrolet” but not a “Cadillac.”

The level of educational benefit therefore remains unclear and undefined, which results in inconsistent federal court decisions. The standards in federal court range from merely more than a minimum benefit, to some benefit, to a meaningful benefit. The Endrew v. Douglas case currently in the Supreme Court goes beyond the two extremes of minimum benefit and maximum potential and focuses specifically on the level of educational benefit required of schools under IDEA.

The Supreme Court requested input from the federal government, which urged the Court to reverse the Tenth Circuit’s ruling, noting that it “is not consistent with the text, structure, or purpose of the IDEA … and it has the effect of depriving children with disabilities of the benefits Congress has granted them by law.”

A report summarizing the January 11 Supreme Court arguments notes that one thing was relatively clear: “The justices were dissatisfied with the U.S. Court of Appeals for the 10th Circuit’s ruling that school districts can satisfy federal education law as long as they offer a student with a disability an educational program that provides him or her with a benefit that is more than merely de minimis, or non-trivial.” The justices were also concerned with imposing additional costs on school districts by requiring them to provide increased services and creating educational standards without being educational experts. They considered the idea of flexibility in IDEA, possibly tailoring special education to the student rather than to the grade level.

Counsel for the U.S. Solicitor General argued that IDEA requires a program “aimed at significant educational progress in light of the child’s circumstances,” which led to discussion among the justices about the right words and adjectives to describe the standard. While Justice Sotomayer thought that IDEA “provides enough to set a clear standard,” Justice Roberts concluded the law has “really nothing concrete” for courts to review.

Neal Katyal, the attorney for the school district, argued that the level of “some benefit” is the same as “more than merely de minimis,” and this is the level he was advocating. Justice Breyer noted that IDEA has been amended so that an IEP is designed for students to “make progress in general education” and concluded that “some benefit” along with “make progress” equals more than a minimum standard. Katyal noted that the more-than-minimum standard has worked for many years, and Justice Ginsburg hinted that this standard had no precedent for the Court and could be replaced with something more stringent.

The U.S. Department of Education proposed a standard that school districts offer a program “aimed at significant educational progress in light of the child’s circumstances,” which the justices seemed to regard as most consistent with existing law.

Drew has garnered support from organizations such as the National Center for Learning Disabilities and the Parents Education Network in addition to more than a hundred members of Congress. Without taking sides, the National Association of State Directors of Special Education filed a legal brief saying that schools already provide a “meaningful benefit”through IEPs.

Although a decision is not expected until this spring or summer, this case is likely to have significant impact on special education programs throughout the country.

OCR Says Websites Lack 504/ADA Accommodations

Over the past year, the U.S. Department of Education’s Office for Civil Rights (OCR) has shown an increased focus on public school district websites. Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA) require that public school district websites be accessible to individuals with disabilities. After investigating a number of complaints, OCR ultimately concluded that school website content is often inaccessible to individuals with disabilities, particularly blind and visually impaired users, deaf or hard-of-hearing users, and users with disabilities that affect motor control and their ability to use a mouse.

In February and March of 2016, OCR reviewed complaints filed against 11 different educational organizations in the United States and in one U.S. territory, raising website accessibility issues under Section 504 and the ADA. Section 504 and the ADA require public school districts to provide individuals who have qualified disabilities with equal access to programs, services, and activities unless doing so would fundamentally alter the nature of the programs. OCR has indicated on numerous occasions that accommodations must be made to district websites and other online resources in accordance with Section 504 and the ADA.

The most common problems OCR identified with websites are as follows:

  • Images with no accompanying text descriptions, or “alt tags”
  • Navigation that requires the use of a mouse
  • Videos that lack accompanying audio, transcript, or closed captioning
  • Color combinations that make text difficult to read

On June 29, 2016, OCR announced that it had reached voluntary agreements with all 11 organizations, which now have 18 months to resolve the issues under the terms of the agreements. The agreements contained mandates such as development of corrective action plans, completion of a thorough audit to ensure access and functionality, adoption of policies and procedures to ensure accessibility to all content added in the future, and posting notices to disabled individuals that contain information on how an individual can request access to online information or inaccessible content, among other things.

Interestingly, the University of Montana conducted a student survey after receiving an OCR complaint in 2012 about web accessibility from students enrolled in online coursework. The survey results indicated that many of the complaints were caused by a misunderstanding or lack of awareness about available accessibility options. So, along with other ameliorative measures, the university invested resources to educate its student body about web accessibility. The university reached a formal resolution with OCR in 2014.

Catherine E. Lhamon, OCR’s Assistant Secretary for Civil Rights, weighed in on the matter when she stated, “As schools, school districts, states, and territories turn to the Internet as a way to provide relevant and up-to-date information to their audiences in a cost-effective manner, they must make sure they are not inadvertently excluding people with disabilities from their online programs, services, and activities.”

OCR’s recent action on this important accommodations issue highlights the need for public school districts to conduct a formal review of website and social media programs to determine whether content is indeed accessible to individuals who suffer from disabilities. Along the same line, districts should regularly assess all types of technology use during school and extracurricular activities to further consider whether the chosen technologies interfere in any way with a disabled individual’s ability to access programs or participate in school activities. Board policies should be reviewed as part of this process. School districts are encouraged to consult with legal counsel to discuss the implications of this important topic and obtain resources that may further assist with compliance under Section 504 and the ADA.

Court Weighs School’s Regulation of Off-Campus Speech

A school district’s authority to discipline a student for off-campus speech is an increasingly relevant concern today for public schools. Inappropriate or offensive speech can cause lasting injury to victims and can trigger significant community backlash and unrest. The Ninth Circuit Court of Appeals recently addressed this issue in a case that arose out of Oregon.

The case was filed after a school district suspended a seventh-grade student named C.R. for harassing two other students from school. C.R. and some of his friends had been involved in an escalating series of encounters with two sixth-grade students, a girl and a boy, both disabled, first calling them vulgar names and later increasing to sexual taunting. On the day of the incident at issue, the students were traveling home from school through a public park adjacent to school property, just a few hundred feet from the campus. About five minutes after school let out, C.R. and his friends circled around the two younger students, commenting and questioning them about sexual acts and pornography. A school employee rode by the students on her bicycle, noticed the group, and stopped to help the younger girl and boy. The girl reported that the encounter made her feel unsafe, and the employee walked the two students home.

After investigating the incident, school administrators concluded that C.R. was the “ringleader” of the group and that the conduct fell within the district’s definition of sexual harassment. All of the boys were disciplined. C.R. was suspended for two days, not only because of the harassment but also because he had lied to administrators during the investigation and had disregarded their request to not discuss the interview with his friends.

C.R.’s parents filed a lawsuit a year after the incident, alleging that his First Amendment and due process rights had been violated and that the school lacked authority to discipline him. The school district moved for summary judgment, which was granted by the district court. The parents appealed the decision to the Ninth Circuit, which considered the following.

Was C.R.’s conduct sexual harassment? The school had a policy that defined sexual harassment, and the investigation had yielded evidence that C.R.’s behavior fit within that definition. The Ninth Circuit Court noted, “Federal courts owe significant deference to a school’s interpretation of its own rules and policies. … We uphold a school’s disciplinary determinations so long as the school’s interpretation of its rules and policies is reasonable, and there is evidence to support the charge.” Therefore, the court upheld the district’s conclusion that C.R.’s behavior was considered sexual harassment.

Could the school regulate his speech and discipline him? The court first considered whether the school could permissibly regulate the student’s off-campus speech at all, and then considered whether the school’s regulation of the student’s speech complied with the requirements of the First Amendment.

Regulation of students’ on-campus speech is well established as constitutional; however, regulation of off-campus speech is another matter. Following a previous Supreme Court decision (Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)), regulation of student speech is permissible if the speech “might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities” or if the speech might collide “with the rights of other students to be secure and to be let alone.” Speech that is merely offensive is not sufficient; however, sexually harassing speech is more than that. Sexually harassing speech, the court held, implicates other students’ rights to be secure, threatening their sense of physical, emotional, and psychological security.

The age of the student who is being harassed is also relevant. The Supreme Court has noted that children younger than age 14 are less mature, and therefore overtly sexual speech could be more seriously damaging to them. For this reason, elementary schools may exercise greater control over student speech than secondary schools.

The court held that the school district did indeed have the authority to discipline C.R. for his harassing speech, even if it was off campus, for a number of reasons:

  • All of the individuals involved were students
  • The incident took place –
    • On the students’ walk home
    • A few hundred feet from school
    • Immediately after school let out
    • On a path that begins at the school
  • The students were together on the path because of school

Succinctly stated, the court held that “a school may act to ensure students are able to leave the school safely without implicating the rights of students to speak freely in the broader community.”

Were C.R.’s due process rights violated? Again citing previous court decisions, the opinion noted that the Constitution allows informal procedures when a student suspension is 10 days or fewer. The school must provide the student notice of the charges but need not outline specific charges and their potential consequences or notify parents of the charges prior to the suspension. If the student denies the charges, the student then must have an opportunity to explain his side of the story. A school is not constitutionally required to inform the student of the specific rules or policies in question. For these reasons, the court held that the school did not violate C.R.’s procedural due process rights.

C.R. also claimed that his substantive due process rights were violated when the school recorded the reason for suspension as “harassment – sexual,” which allegedly deprived him of a good reputation. The court opined that C.R. did not have a genuine interest in maintaining a good reputation, as he had since stolen supplies from the school, and held that the school may record the reason for suspension, “however unsavory,” so long as it applied appropriate procedural safeguards. Therefore, the school also did not violate his substantive due process rights.

Ultimately, the Ninth Circuit upheld the summary judgment that the district court had previously granted.

C.R. v. Eugene School District 4J, No. 13-35856 (9th Cir. 2016)

Ohio Supreme Court to Decide Case on Release of Student Directory Information

On January 26th, 2016, the Ohio Supreme Court will hear oral arguments in a case to determine whether a public school district may implement a more restrictive policy on release of student directory information by requiring that parents “opt in” before the information can be released.

The case was brought by School Choice Ohio, Inc. (“SCO”) against the Springfield City School DistrictBoard of Education(“Springfield”). SCO is a registered non-profit corporation formed in the state of Delaware. The corporation informs students and parents across the state about scholarships the state provides, especially to students of low performing or at risk schools. SCO relies on school directory information that public schools provide through a records request to generate its mailing lists.

In January of 2013, SCO submitted a request for student directory information to Springfield. The District denied the request, citing a new policy it had recently passed which purportedly stopped the District’s collection of directory information, and further required parents to sign a consent to “opt in” to release of the data for lawful records requests. SCO countered that under state public records law, codified in ORC §149.43, the District does not have the authority to refuse an otherwise lawful request for directory information that the District maintains. Through its case, SCO seeks an order from the Ohio Supreme Court that would prevent Springfield from denying SCO’s requests for directory information on that ground.

State and federal law, specifically Ohio Revised Code §3319.321 and the Family Educational Rights and Privacy Act (20 USC §1232g/20 CFR Part 99), permit public schools to release limited student information defined as directory information in certain circumstances. In general, federal law defines directory information to include a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. Ohio’s definition of directory information is more expansive. However, schools are required to provide an annual notice to parents that allow them the opportunity to opt out of directory information releases. Schools also are prohibited from releasing directory information to anyone who may use the information for a profit making plan or venture.

The Supreme Court’s decision in this case could have far-reaching policy implications for districts, and may open the door for additional challenges to the release of directory information in the future. A decision from the Court is not expected before early summer 2016. We will keep you posted on the status of the case. In the meantime, seek legal counsel if you have questions about application of your directory information policies and procedures.

Ohio Supreme Court Decides Important Tax Exemption Case

On December 30th, 2015, the Ohio Supreme Court unanimously declared that real property owned by a public school district board of education is tax exempt regardless of whether it is currently used for school purposes. Ennis Britton Shareholder Gary Stedronsky represented the Talawanda City School District Board of Education at all levels of appeal, including before the Supreme Court.

The case involved a provision in Ohio law that generally exempts real property owned by a public school district from property taxes, which is codified in Ohio Revised Code section 3313.44. In this case, the Talawanda City School District Board of Education (the “Board”) purchased 154 acres of land to build a new high school. A portion of this land was not needed for the high school and was leased by the Board to a farmer.

In January of 2010, the Board filed an application to exempt all 154 acres from real property taxes. The Tax Commissioner approved the exemption application for all but the portion of the land that was leased to the farmer. The Tax Commissioner concluded that the pecuniary benefit realized by the farmer disqualified the land from tax exemption because the property was not being used for school purposes.

The Board appealed the Tax Commissioner’s decision to the Ohio Board of Tax Appeals (“BTA”), which affirmed the Tax Commissioner’s decision. The Board further appealed to the Ohio Supreme Court.

The Supreme Court was tasked with deciding whether the BTA decision was supported by the language in Ohio Revised Code section 3313.44. The applicable version of section 3313.44 simply states: “Real or personal property owned by or leased to any board of education for a lease term of at least fifty years shall be exempt from taxation.” The Board argued that this statute requires that a board of education merely own real property in order for it to qualify for tax exemption. In other words, there is no requirement in the statute that the property must be used for school purposes in order for the tax exemption to apply.

The Ohio Supreme Court agreed with the Board’s argument and concluded that the property that was leased to the farmer was exempt from taxation regardless of the specific use of the property. The Supreme Court acknowledged that past interpretations by the Tax Commissioner may have correctly interpreted an implied use restriction in the prior version of the statute. However, the Court recognized that the General Assembly chose not to include such a restriction when the statute was amended in 2010 even though it had authority to do so. Therefore, the Court held that the statute does not include an implied use restriction and the Board’s property is entitled to tax exemption even though it was leased to a farmer.

The Court also dismissed the Tax Commissioner’s argument that the Board’s request for tax exemption must be denied on grounds that the Board overstepped its legislative authority by leasing the land to a farmer for a commercial purpose. The Court held that a Board of Education’s property is entitled to tax exemption as long as it meets the conditions of the exemption statute in Ohio Revised Code section 3313.44, which merely requires ownership.

Ultimately, the Supreme Court decision clarifies that a board of education is entitled to a property tax exemption for all real property owned by the board of education regardless of how the property is currently being used. This decision is very favorable to school districts and will be used in the future to support applications for tax exemptions.

Talawanda City School District Board of Edu. v. Testa, Tax Commissioner (Ohio 2015), Slip Opinion No. 2015-Ohio-5450.