Special Education Update: Is Average Enough? Fourth Circuit Rules That a Student with ADHD and Dyslexia is not Eligible for Special Education Under the IDEA Based on Academic Performance

Special Education Update: Is Average Enough? Fourth Circuit Rules That a Student with ADHD and Dyslexia is not Eligible for Special Education Under the IDEA Based on Academic Performance

by | Nov 18, 2024 | Special Education

G.M. v. Barnes, 114 F.4th 323 (4th Cir. 2024).

On September 4, 2024, the Fourth Circuit Court of Appeals upheld a lower court ruling that a second-grade student with dyslexia and attention deficit hyperactivity disorder (ADHD) was not eligible for special education services under the Individuals with Disabilities Education Act (IDEA). After his parents noticed a decline in his standardized test scores compared to the previous year, an IEP team was convened to determine the student’s eligibility. The Maryland school district determined that the student was ineligible based on his performance. His parents then removed him to a private school, and filed a due process complaint against the district for denying their son a free and appropriate public education (FAPE).

To qualify for special education under the IDEA, a student needs to demonstrate they have a qualifying disability and “by reason thereof” require special education and related services. In this case, the parents argued that the student had two qualifying disabilities:

  1. A specific learning disability (SLD) arising from his dyslexia; and
  2. An other health impairment (OHI) arising from his ADHD.

Despite the student’s decline in his reading and writing standardized test scores, the district argued that the student’s test scores still indicated that he had average achievement in reading, writing, and mathematics compared to his peers. Additionally, his teacher, who had previously expressed concerns with his reading and writing ability, indicated on his final report card that he was “independently or with assistance meeting all of the criteria that are listed” for second grade, including reading and writing requirements. Based on his academic performance, the due process case came out in favor of the district with a conclusion that the student did not need special education services.

On appeal, the 4th Circuit concluded that the student did not have a SLD. While dyslexia can be an SLD under the IDEA, Maryland regulations instruct IEP teams to determine a student has an SLD if they do not achieve adequately for their age or meet state approved grade level standards when provided with learning experiences appropriate for the student’s age and ability levels. The student’s achievement is inadequate if the student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, state-approved grade-level standards, or intellectual development. Because his test scores and evidence presented by the parties indicated that his reading and writing ability were within the expected range for his grade level, his parents failed to demonstrate that he had a cognizable weakness.

The Court did agree with the parents that the student’s ADHD qualified as an OHI, but they concluded that he did not require specially designed instruction because of his ADHD. Under the IDEA, “a student does not ‘need’ such services if the student is already getting what would qualify as a FAPE without them.” The 4th Circuit reminded the parties that progress through the system is what is generally meant by an “education” and for most children, FAPE means a program “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Endrew F., 137 S. Ct. 988 (2017).

While the 4th Circuit recognizes that no parent wants to see their child fail to reach their academic potential, they cautioned that the IDEA should not be used as “a vehicle for securing a potential-maximizing education.” (Quoting Rowley, 458 U.S. at 197 n.21). This student was fully integrated in the regular classroom setting; he received passing marks and was independently or with assistance meeting all the listed criteria; and he was advancing from grade to grade. This was enough for FAPE. His parents’ concerns about the drop in his standardized test scores, even if legitimate, were not enough to change that.

What does this mean for your district? While this case is not controlling in Ohio, it is informative and highlights the focus for evaluation teams in a post-Endrew F. world: not only does a student have an identified disability, but also, because of that identified disability, do they require specially designed instruction and / or related services? Districts should consider the unique needs of the child when calculating what is necessary to enable appropriate progress, and academic progress can be a strong indicator that a student is receiving FAPE. If a student is already receiving what would qualify as FAPE, they may not be eligible under the IDEA because they do not require special education and related services. This is true even if the student appears to have a qualifying disability.

 

On the Call: Administrative Law and Special Education

by | Sep 10, 2024 | Special Education

Given the scale of federal regulations and their importance to several laws related to special education, the U.S. Supreme Court’s decision in Loper Bright may leave you feeling caught in the undertow of uncertainty. Have established “rights” found in regulations – such as service animals under the ADA, public funding for IEEs under IDEA, FAPE under 504 – been tossed out by the Court? In this episode Jeremy and Erin discuss how the standard for administrative law has changed from Chevron to today and break down a case from Alabama that demonstrates how judges may approach challenges to the IDEA in a post-Chevron world. By explaining the role and impact of federal regulations going forward and how districts can continue to ensure compliance, Jeremy and Erin will help you chart a course to calmer shores.

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.

 

Special Education Update: Is Average Enough? Fourth Circuit Rules That a Student with ADHD and Dyslexia is not Eligible for Special Education Under the IDEA Based on Academic Performance

Special Education Update: 1st Ten Days of Suspension Without IEP Services Does Not Deny FAPE….Right?

by | Aug 18, 2024 | Special Education, Student Education and Discipline

Student discipline for students with disabilities on an IEP is generally understood to allow ten days of suspension without a need to provide services.  In a recent case, a state level review officer in Ohio considered whether a failure to provide services within that ten day period might constitute a denial of FAPE.

In the case, a parent had filed for due process alleging that the student required a one on one aide for the student, the student had been bullied, the IEP was not being followed, the student was not being allowed to attend specials, was being graded unfairly, and that the school was denying the parent access to ClassDojo.  Additionally, the parent alleged that the student was not provided with services during a recent  six-day suspension.  The parent requested compensatory education, home instruction or tutoring.  The parent was pro se; i.e., representing themself.

 The impartial hearing officer considered three issues: whether the parent was provided with procedural safeguards, whether the IEP was implemented appropriately, and whether bullying prevented the student from receiving a FAPE. 

The hearing officer found the district did develop and implement an IEP appropriate for the student to receive a FAPE and that bullying had not prevented the student from receiving a FAPE (in fact, there was no evidence presented about bullying in the hearing.). However, the IHO found that the student was denied FAPE and entitled to six hours of compensatory education in the form of home instruction or tutoring for the six days the student was suspended and did not receive services in the IEP. 

Both the district and the parent appealed the IHO’s decision.  The school district argued that the law does not require provision of compensatory education during the first ten days of suspension, relying on the IDEA provision requiring that a student who is suspended for more than ten days in a school year receive services (20 USC Sec. 1415(k)(1)(B), 35 CFR 300.530-300). The district also argued that it did offer services for the six days of suspension and the parent refused those services.

The SLRO considered the issues, including the length of the suspension.  In doing so, the  SLRO, found this, “…does not necessarily mean that there cannot be circumstances in which a student who is suspended less than ten (10) days is denied a FAPE. I do not find the statute to mean that a FAPE is never denied unless the suspension is at least ten (10) days.”

In applying this interpretation to the facts, however, the SLRO reversed the IHO determination, finding that because the district had offered services during the suspension and the parent refused, he would not order them to provide it now.  Additionally, parent had offered no evidence that the suspension denied FAPE on the facts of the case.  The SLRO also affirmed on the other issues, including that the IEP was appropriate and enabling him to make progress in the least restrictive environment and denied the parent’s appeal. 

 What this means for schools:  While this decision may be fact specific, Districts and IEP teams should carefully consider the full impact of a denial of services even for short- term removals.

Welcome Back to Season Three! On the Call: Incarcerated Students

by | Aug 13, 2024 | Special Education

Welcome back to Season Three! When a student is locked up, districts hold the key to ensuring they receive special education. In this episode, Jeremy and Erin discuss how to move forward with a student’s IEP plan in the context of incarceration. The discussion includes a state complaint from Ohio where a district was found to have denied an incarcerated student FAPE after they did not revise his IEP and then failed to implement the plan as written. While the district took steps to support the student, they did not adequately document those actions. They provide valuable pointers on how to coordinate with different detention facilities in order to provide services to students, and discuss the importance of leaning into the individualized nature of IEPs in order to respond to the student’s changed circumstances. 

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.

 

Gender Equity Under Scrutiny: 4th Circuit Questions Law Prohibiting Transgender Girls from Competition

Gender Equity Under Scrutiny: 4th Circuit Questions Law Prohibiting Transgender Girls from Competition

by | Jun 19, 2024 | General, Special Education

B.P.J. v. W. Va. State Bd. of Edn., 98 F.4th 542 (4th Cir. 2024).

On April 16, 2024, the 4th Circuit Court of Appeals issued a split decision holding that West Virginia’s Save Women’s Sports Act (the Act) violated Title IX as applied to the plaintiff. The 2022 state law prohibited transgender girls from competition in girls and women’s sports in K-12 and college athletics throughout the state. After the Act went into effect, B.P.J., a transgender girl, was no longer allowed to compete on the middle school cross-country team. She sued the State Board of Education and local public school district, alleging that the Act violated the Equal Protection Clause of the Fourteenth Amendment and violated Title IX.

Beginning with the Equal Protection claims, the court applied intermediate scrutiny to the Act after determining that it constituted sex-based discrimination. The State’s position was that the law was enacted for the purposes of “participant safety” and “competitive fairness” to justify the Act’s treatment of transgender girls. The court questioned how B.P.J.’s exclusion from the cross-country team was substantially related to either of those interests. The facts of the case were that B.P.J. played a non-contact sport, so the court failed to see a participant safety issue. Additionally, the majority reasoned that B.P.J.’s early transition and prolonged use of hormone therapy called into question whether she enjoyed a competitive advantage over her cisgender peers. Since the parties disputed whether those assigned male at birth enjoyed a competitive advantage over cisgender girls, the court ordered further proceedings to debate the issue.

The public school tried unsuccessfully to argue that it should not be held liable since it was complying with the state law, rather than district policy that violated Title IX. While true, a federal law such as Title IX supersedes the district’s obligations to the state. After quickly dismissing the district’s argument, the court warned that mere compliance with a state law is not a legitimate defense to a Title IX violation.

According to the court, the Act discriminated against and caused harm to B.P.J. in violation of Title IX. The Act prohibited only one category of students, transgender girls, from competing on teams with their corresponding gender. The majority further explained that the state should not expect B.P.J. to go against her social transition to play on the boys’ team, and that the Act risked exposing her to the same level of unfair treatment that West Virginia claimed it was trying to prevent for cisgender girls because of B.P.J’s hormone treatments. The court was careful to note that its holding was a limited ruling on the Act as applied to B.P.J., and that it was not holding that Title IX required every transgender girl to play on a girls’ team.

What this means for your district
It is important to note that this decision applies only to the 4th Circuit. The ruling is limited to its facts as applied to a specific student playing a specific sport, and is not a blanket requirement that all transgender girls be allowed to compete on girls’ sports teams under Title IX. However, Title IX is a federal law and must be followed regardless of jurisdiction. Several states, including Ohio, have adopted similar legislation to West Virginia’s Save Women’s Sports Act. Conflict between these laws and Title IX may force districts into a situation where state compliance risks exposing them Title IX liability.

Special Education Update: IDEA Does NOT Take a Summer Recess

Special Education Update: IDEA Does NOT Take a Summer Recess

by | Jun 19, 2024 | Special Education

Most educators were ready for a much deserved break as soon as the final school buses leave the building. While some things may resume at the start of the next school year, many mandates of the Individuals with Disabilities Act and Ohio Operating Standards do not take a summer break.

1. The 60-day timeline applies: Even if parents request an evaluation at the end of the school year, districts may not wait until the start of the 2024-2025 school year to complete the evaluation. Schools have thirty (30) calendar days after a request for an evaluation to obtain parent consent and only sixty (60) calendar days after consent to complete the evaluation. After that,  the IEP must be completed in thirty (30) days.

 If, for instance, the District tells a parent, “The beginning of the year will include a lot of review. Let’s set some things in place and wait until after the first 9 weeks next year. Then we’ll evaluate.” Caution is warranted.  Schools may not use interventions to delay an evaluation, and a parent may successfully argue that the school may have violated its Child Find obligation. Potential consequences could include corrective action or the parent being declared the prevailing party in a due process complaint with an award of attorney fees.

 2. Consulting with private schools: Each school district must engage in meaningful consultation with representatives of nonpublic schools within their jurisdiction. Since this includes discussions of how the consultative process will operate throughout the school year, it may be beneficial to engage in those conversations while school is not in session.

 3. ESY services include data collection: While IEP teams have already made ESY decisions for eligible students, data collection and progress monitoring during these summer sessions may prove critical for informing future services for the student as well as the necessity for ESY services in the future. Moreover, such documentation is important to establish that students received the required specially designed instruction and related services over the course of the summer program.

4. Due process timelines prevail: In the unfortunate circumstance of a due process complaint at the end of the school year or during the summer months, there is no flexibility to wait until the commencement of the new school year. Indeed, the absence of IEP team members or other witnesses during the summer months is not a justification for delaying the due process complaint. Moreover, schools need to prepare to conduct a resolution session within fifteen (15) days of the notice of the due process – with or without staff participation.