SPECIAL EDUCATION Are You Keeping Pace With the Supreme Court? Beth - - PDF document

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SPECIAL EDUCATION

Are You Keeping Pace With the Supreme Court?

Beth A. Bourassa, Esq. Whiteman Osterman & Hanna LLP One Commerce Plaza Albany, New York 12260 P: 518‐487‐7617 E: bbourassa@woh.com W: www.woh.com

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July 18, 2017 Latham, New York Earlier this year, the United States Supreme Court issued two decisions affecting the rights of students with disabilities and their parents, and the obligations of school districts.

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• What if anything has changed, in this

state, as a result of those two decisions?

• How can school administrators best

protect the school district, and ensure that the special needs of students with disabilities are met, in light of these decisions?

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Statutory Background

Three relevant Federal statutes:

• Individuals with Disabilities Education Act (IDEA), 20

U.S.C. § 1400 et seq., and implementing regulations at 34 C.F.R. Parts 300‐303;

• Americans with Disabilities Act (ADA), Title II (places
• f public accommodation), 42 U.S.C. § 12131 et seq.,

and implementing regulations at 28 C.F.R. Part 36; and

• Section 504 of the Rehabilitation Act (federally

funded public entities), 29 U.S.C. § 794 and implementing regulations at 34 C.F.R. Parts 100‐105.

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Statutory Background

The IDEA and corresponding New York State law (N.Y. Education Law §§ 4401‐4410 and implementing regulations at 8 N.Y.C.R.R. Parts 200‐201) require a school district to provide a “free appropriate public education” (FAPE) to students with a covered disability. An “individualized education plan” (IEP) “serves as the primary vehicle for providing each child with the promised FAPE.” Fry, 137 S.Ct. at 749.

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Statutory Background

Very generally, the IEP must:

• adequately describe the student’s present levels of

achievement and individualized needs;

• establish measurable annual goals tailored to each

student’s individualized needs; and

• provide appropriate special education and related

services to enable the student to make progress in the general education curriculum and in meeting the annual goals.

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Statutory Background

When parents challenge the adequacy of their child’s IEP, or the implementation of the IEP, and allege that their child has been denied a FAPE, parents must first bring their claims through a two‐tiered administrative process:

• “due process hearing” before an “impartial

hearing officer” (IHO); and

• appeal to the “State Review Officer” (SRO).

Only after completing that process may parents sue in state or federal court.

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Statutory Background

• The ADA and § 504 are “non‐discrimination” statutes
• The ADA and § 504 apply to a broader range of

disabilities, and apply to both children and adults.

• The ADA and § 504 impose lesser substantive and

procedural obligations on school districts than do the IDEA and corresponding New York State special education laws.

– Reasonable accommodation to provide equal access. – Undue burden limit.

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Statutory Background

• Under the ADA and § 504, an aggrieved

individual may sue directly in court, without first “exhausting” any administrative remedies.

• Also unlike the IDEA and corresponding New

York State special education laws, monetary damages are available under the ADA and § 504.

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Statutory Background

In this state, there is probably no state law analogue to the ADA and § 504, with respect to a parent’s right to obtain monetary damages in court from a school district for disability‐based discrimination against student.

• The N.Y. Human Rights Law, N.Y. Exec. Law § 290 et seq. (HRL)

does not apply to students.

North Syracuse Central School District v. N.Y. State Div. of Human Rights, 19 N.Y.3d 481, 495 (2012).

• The Dignity for All Students Act, N.Y. Education Law §§ 10‐18

(DASA) probably does not provide a private right of action for monetary damages.

Motta v. Eldred Cent. School Dist., 141 A.D.3d 819, 820 (3d Dep’t 2016); Terrill v. Windham‐Ashland‐Jewett Central School District, 176 F.Supp.3d 101, 108‐09 (N.D.N.Y. 2016).

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When May Parents of Students with Disabilities Go Directly to State or Federal Court to Sue a School District?

Fry v. Napoleon Community Schools, 137 S.Ct. 743 (Feb. 22, 2017)

• Hailed by parent advocates as a landmark decision

that ensures “better access to the court system without having to jump through administrative hoops.”

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Fry v. Napoleon Community Schools

In Fry, the U.S. Supreme Court examined the interrelationship of the IDEA, the ADA, and § 504, and held that exhaustion of administrative remedies is not required, and a parent of a student with a disability may sue directly in court: “when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee . . . of a free appropriate public education.”

Fry, 137 S.Ct. at 748.

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Factual Background

Plaintiffs in Fry were the parents of E.F., a Kindergarten student with cerebral palsy. E.F. had a service dog named “Wonder.” Wonder was reportedly trained to assist E.F. by:

• retrieving dropped items;
• helping her balance when she uses her walker;
• opening and closing doors;
• turning on and off lights;
• helping her take off her coat; and
• helping her transfer to and from the toilet.

Fry, 137 S.Ct. at 751.

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Factual Background

E.F.’s elementary school (in Michigan) refused to allow Wonder to accompany her to Kindergarten. E.F.’s IEP provided her with a 1:1 aide at all

• times. Because E.F.’s needs could be met by the

aide, the school concluded that Wonder was superfluous.

Fry, 137 S.Ct. at 751.

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Factual Background

E.F.’s parents found another school district for her, where Wonder was welcome. They then sued E.F.’s former school district in federal court. The parents brought claims under the ADA and § 504, alleging that the defendant school district:

• denied E.F. equal access to its programs;
• refused to reasonably accommodate E.F.’s use of her

service animal; and

• otherwise discriminated against E.F. on the basis of

her disability.

Fry, 137 S.Ct. at 751‐752.

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Factual Background

The defendant school district moved to dismiss the parents’ federal court lawsuit, on the grounds that this was really a FAPE claim in disguise, such that the parents were required to exhaust their administrative remedies under the IDEA. The parents, however, contended that they were not alleging a denial of FAPE. It was undisputed that E.F.’s IEP, including a 1:1 aide, had offered her a FAPE.

Fry, 137 S.Ct. at 752.

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The Fry Court’s Analysis and Ruling

The Court concluded that exhaustion of administrative remedies is required only when the “lawsuit seeks relief for the denial of a free appropriate public education.”

• The “gravamen” or substance of the claim(s) is

controlling, rather than “artful pleading.”

Fry, 137 S.Ct. at 754‐755.

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The Fry Court’s Analysis and Ruling

The majority (7 justice) opinion offered two “clues” to guide the lower courts in determining whether a complaint seeks relief for a denial of FAPE under the IDEA, such that exhaustion of administrative remedies is required.

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Clue #1

Ask two hypothetical questions:

1) Could the student have brought the same claim if the alleged conduct had occurred at a different public facility, such as a public theatre or library? 2) Could an adult at the school, (either an employee or a visitor) have brought the same claim against the school district?

Fry, 137 S.Ct. at 756.

If the answer to both questions is “yes,” the claim “probably” does not concern an alleged denial of FAPE, and the parents may proceed directly in court.

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Clue #1

Examples:

• A. Denial of a service dog

– not a FAPE claim

• B. Lack of wheelchair access ramps

– not a FAPE claim

• C. Failure to provide a remedial math tutor to a

student with a learning disability

– is a FAPE claim

Fry, 137 S.Ct. at 756‐758.

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Clue #2

Did the parents previously invoke the IDEA’s due process procedures to resolve the dispute, thus starting to exhaust administrative remedies “before switching mid‐stream?” If so, the parents’ claim is more like a FAPE claim, and the parents may now be foreclosed from proceeding directly in court.

Fry, 137 S.Ct. at 757.

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Was the Fry Court Clueless?

The concurring opinion (by Justices Alito and Thomas) expressed a concern that the “clues”

• ffered by the majority would be “likely to

confuse and lead courts astray.”

Fry, 137 S.Ct. at 759.

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Was the Fry Court Clueless?

1) The same conduct might violate all three statutes (IDEA, § 504, and ADA). 2) Parents might have legitimate reasons for “switching mid‐stream,” such as advice of counsel. 3) Would evidence of any prior administrative steps by the parents ever be part of the court record, on the school district’s motion to dismiss for failure to exhaust administrative remedies?

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Cases Applying Fry

Harrington v. Jamesville Dewitt Central School District, 2017 WL 1327719 (N.D.N.Y. April 11, 2017)

• Plaintiff, a former high school student, was not classified as a

student with a disability, but had:

– medical diagnoses of severe depression and anxiety; and – a pattern of long‐term absences from school.

• Plaintiff was found responsible for plagiarism on a paper for a

writing course. As a result, he was given an “F” on the paper, assigned several days of detention, and not allowed to participate in the school play.

• Post‐graduation, Plaintiff sued in federal court. He alleged

various constitution claims and a § 504 claim.

Harrington, 2017 WL 1327719 at *1‐3.

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Cases Applying Fry

• Plaintiff’s constitutional claims were dismissed on the merits.
• Plaintiff’s § 504 claim was dismissed under Fry. The Court

concluded that the “gravamen” of Plaintiff’s disability discrimination claim was really a FAPE claim.

• In essence, Plaintiff was alleging a violation of the school

district’s “child‐find” obligations. Plaintiff’s theory was that the school district should have known that he was disabled, and that if his school had provided him with greater academic assistance for his writing course, he would not have accidentally plagiarized, and thus would not have been disciplined.

• As a result, Plaintiff should have exhausted his administrative

remedies under the IDEA and corresponding N.Y.S. law.

Harrington, 2017 WL 1327719 at *9‐10.

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Impact of the Fry Decision

• Fry underscores the importance of litigation

strategy and venue.

• Consult with counsel as to the pros and cons

for the school district:

– Cost – Timing – IHO/SRO issues – Scope of review (court deference to SRO or IHO)

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Impact of the Fry Decision

Be particularly cognizant of: 1) Promptly and effectively responding to bullying claims, including but not limited to addressing bullying on an IEP. Bullying claims may present a forum selection issue under Fry.

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Impact of the Fry Decision

In 2016, the “T.K.” case taught us that un‐ remedied bullying of a student with a disability can lead to a denial of FAPE. T.K. v. NYC Dep’t of Education, 810 F.3d 269 (2d

• Cir. 2016).

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Impact of the Fry Decision

In T.K., a school district’s failure or refusal to address bullying on a student’s IEP resulted in:

• a unilateral private school placement by the parents;
• a tuition reimbursement claim, arising out of an alleged denial
• f FAPE, brought through an impartial hearing and appeal to

the SRO, followed by further federal court appeals; and

• school district liability for the private school tuition and

attorney’s fees.

Under Fry, could parents instead litigate alleged bullying of a student with a disability directly in federal

• r state court?

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Impact of the Fry Decision

2) “Access” issues Ex: a student with a disability has a 1:1 aide for the full school day on his IEP. The parent now wants the district to provide a 1:1 aide on Friday evenings so that the student can successfully attend “movie nights,” when children gather at the elementary school for a Disney film, popcorn and juice.

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Impact of the Fry Decision

Is this a FAPE claim for which parents must exhaust administrative remedies, or one that can proceed directly in court, under Fry? What about claims arising from the exclusion of a severely disabled student from an international trip, based on safety concerns?

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Impact of the Fry Decision

3) “Pet cases” Increasing number of requests for: a) A trained service animal

– dogs only – except for a possible miniature horse – required by the ADA

28 C.F.R. § 36.302(c)

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Impact of the Fry Decision

b) “Comfort animals”

– not required by the ADA, but might be required under § 504; – can be any animal, and need not be trained. What is the current position of the United States Department of Education, Office for Civil Rights, (OCR) with respect to whether a comfort animal is a reasonable accommodation for a student with a disability under § 504?

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Impact of the Fry Decision

A parent’s request for a trained service dog for a student with a disability and, in some instances, a separate adult handler for the dog while in school, have already resulted in a number of litigated cases against school districts:

E.g., United States v. Gates‐Chili Central School District, 198 F.Supp.3d 228 (W.D.N.Y. 2016).

Comfort animals may be the next wave of the

• future. Under Fry, these cases can probably be

litigated directly in federal or state court.

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What is the “New” Legal Standard for Determining Whether an IEP Appropriately Provides an Opportunity for a FAPE?

Endrew F. v. Douglas County School Dist. RE‐1, 137 S.Ct. 988 (March 22, 2017)

• Hailed by parent advocates as a dramatic expansion
• f the rights of special education children,

nationwide.

– “The most monumental IDEA case in 30 years.” – “Empowerment for parents.”

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Legal Background – the Rowley Case

• In an early decision under the IDEA, the U.S.

Supreme Court held that an IEP is substantively appropriate and provides an

• pportunity for a FAPE if the IEP is “reasonably

calculated to enable the child to receive educational benefits.”

Board of Educ., Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 207 (1982).

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Legal Background – the Rowley Case

• Over the next 35 years, different U.S. Circuit

Courts of Appeals in various parts of the country established different tests to determine when the Rowley standard was met.

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Legal Background – the Rowley Case

• The Endrew F. case arose in Colorado, within

the 10th Circuit.

• There, the test was whether an IEP is

reasonably calculated to:

– confer an educational benefit that is merely more than de minimus; and – enables the child to make some progress.

Endrew F. v. Douglas County School Dist. Re‐1, 798 F.3d 1329 (10th Cir. 2015), vacated and remanded, 137 S.Ct. 988 (2017).

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Factual Background – the Endrew F. Case

Endrew F. is a child with autism. He attended his public school in Colorado through grade 4.

• He would scream in class, climb over furniture and
• ther students, and occasionally elope from school.
• He was afflicted by severe fears of ordinary things

such as flies, spills, and restrooms.

• Every year, his IEP largely carried over the same goals

and objectives, indicating to the parents that he was not making “meaningful” academic or “functional” progress.

Endrew F., 137 S.Ct. 996.

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Factual Background – the Endrew F. Case

• The school district proposed a 5th grade IEP for

Endrew F. which was, in the parents’ view, “pretty much the same as his past ones.”

• The parents rejected that IEP and unilaterally

enrolled Endrew F. in a private school that specialized in educating children with autism, where Endrew F. reportedly did much better.

Endrew F., 137 S.Ct. 996‐97.

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Factual Background – the Endrew F. Case

• The parents then sought tuition reimbursement from

their public school district.

• To win a tuition reimbursement claim, the parents

were required to show, among other things, that the school district had not offered their son a FAPE.

• The parents lost during the administrative hearing

process, and during their federal court appeals within the 10th Circuit. The lower courts concluded that the child had made “at least minimal progress”

• r “some sort of progress” in his public school

placement.

Endrew F., 137 S.Ct. 997.

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The Endrew F. Court’s Analysis and Ruling

• On the parents’ appeal to the U.S. Supreme Court,

the school district argued that they should win, so long as Endrew F.’s IEP provided “some” educational benefit “as opposed to none” at all. Endrew F., 137 S.Ct. at 997‐98.

• The parents argued that they should win because

their son’s IEP did not afford him an opportunity to achieve progress that was “substantially equal to the

• pportunities afforded to children without

disabilities.” Id. at 1001.

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The Endrew F. Court’s Analysis and Ruling

• The Court rejected both proposed standards

articulated by the parties, and struck a middle ground approach.

• A unanimous Court concluded that “the IDEA

demands more” than something barely above “de minimus” progress. Endrew F., 137 S.Ct. at 1001.

• The Court held that:

– “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

Endrew F., 137 S.Ct. at 999 (emphasis added).

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The Endrew F. Court’s Analysis and Ruling

• For students with disabilities who are “fully

integrated in the regular classroom,” this standard is met if the IEP is “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.”

Endrew F., 137 S.Ct. at 999.

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The Endrew F. Court’s Analysis and Ruling

• If a student with a disability “is not fully

integrated in the regular classroom and is not able to achieve on grade level,” then the IEP “need not aim for grade level advancement.”

• The IEP, however, “must be appropriately

ambitious in light of [the child’s] circumstances,” and afford the child an

• pportunity “to meet challenging objectives.”

Endrew F., 137 S.Ct. at 1000.

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The Endrew F. Court’s Analysis and Ruling

• The IEP must be “reasonable” and need not be

“ideal.” It need not offer everything the parent

• wants. Endrew F., 137 S.Ct. at 999. This standard is

unchanged from Rowley.

• The Supreme Court cautioned that lower courts

should provide a level of deference to the “expertise and exercise of judgment by school authorities.” The reviewing court should not “substitute their own notions of sound educational policy for those of the school authorities.” Endrew F., 137 S.Ct. at 1001.

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The Endrew F. Court’s Analysis and Ruling

• This deference to local school officials, however,

assumes that the child’s parents have had a fair

• pportunity for “input” and contributing their
• pinions with respect to the IEP. Endrew F., 137 S.Ct.

at 999, 1002.

• Thus, procedural compliance, as well as substantive

adequacy of the IEP, remains important

• Chief Justice Roberts, writing for the unanimous

Court, observed that “the procedures are there for a reason.” Id. at 1000.

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Impact of Endrew F.

• New York is within the Second Circuit, where

the bar for the substantive appropriateness of an IEP has long been set higher than it was in the 10th Circuit.

• Has Endrew F. moved the bar in this Circuit?

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Impact of Endrew F.

What was the substantive standard in the Second Circuit, prior to Endrew F.?

• An IEP is substantively appropriate and offers a FAPE

under Rowley (that is, the IEP is “reasonably calculated to enable the child to receive educational benefits”) if it is:

– likely to produce progress, not regression; and – affords the student with an opportunity for more than trivial advancement.

E.g., A.M. v. New York City Dep’t of Educ., 845 F.3d 523 (2d Cir. 2017).

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Impact of Endrew F.

Alternative standard favored by parents and

• ften articulated by the SRO:
• The IEP must be “reasonably calculated to provide

some meaningful benefit.”

• Mrs. B. v. Milford Board of Educ., 103 F.3d 114, 1120 (2d Cir. 1997).

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Impact of Endrew F.

Post Endrew F., SRO decisions are continuing to string cite the same cases regarding the substantive standards for an IEP, and appear to have merely added Endrew F. to the list of string cites, without suggesting that anything has changed.

E.g., SRO Dec. No. 17‐008 at 13‐14 (April 8, 2017) SRO Dec. No. 17‐010 at 7, 9 (March 24, 2017)

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Impact of Endrew F.

The Second Circuit has, so far, declined to decide whether Endrew F. has raised the bar. In a tuition reimbursement case decided on May 9, 2017, in which the Court ruled in favor of the parents, the Court noted that:

“Because we conclude that the school district failed to provide [the student] with a free and appropriate public education under the existing precedent in this circuit, we need not decide whether Endrew F. raised the bar for a free and appropriate public education

• r left Second Circuit precedent intact.”

J.C. v. Katonah‐Lewisboro School District, 2017 WL 1906729 at *2, n. 2 (2d Cir., May 9, 2017).

The Court observed, however, that the Endrew F. decision “certainly did not” lower the bar. Id.

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Impact of Endrew F.

Other post‐Endrew F. decisions in this Circuit similarly do not suggest that a different analysis or standard is being applied in this jurisdiction:

• D.B. v. Ithaca City School District, 2017 WL 2258539 (2d Cir.,

May 23, 2017)

• R.B. v. New York City Department of Education, 2017 WL

1507784 (2d Cir., April 27, 2017)

• M.M. v. New York City Department of Education, 2017 WL

1194685 (S.D.N.Y., March 30, 3017)

• A.G. v. Board of Education of Arlington Central School District,

2017 WL 1200906 (S.D.N.Y., March 29, 2017).

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Best Practices in Light of Endrew F.

• 1. Remember that “the procedures are there for

a reason.”

• The district’s obligation to demonstrate

procedural compliance is unchanged.

• The complex process of evaluating and identifying

a student with a disability and developing an IEP, when adhered to, is more likely to result in an educationally sound and legally defensible IEP.

• The process is the protection, for the student and

parents, and for the school district.

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Best Practices in Light of Endrew F.

• 2. Ensure that all sections of each IEP are thoroughly

updated and revised at least annually.

• A rehash of the same “present levels of performance”

and/or annual goals on consecutive IEPs will likely suggest that the child is not making progress that is “appropriate in light of the child’s circumstances.”

• Quantify the anticipated rate of progress, especially for a

child who is not expected to make a year of progress in a year.

• Identify, in measurable terms, what knowledge, skills or

behavior the student is expected to demonstrate by the end of the year in which the IEP is in effect.

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Best Practices in Light of Endrew F.

• 3. Data Collection.

Data Collection. Data Collection.

• A lack of comprehensible and comprehensive

data to demonstrate, in quantifiable terms, the extent to which a student is making progress will probably:

– undermine the district’s chances of success in a due process hearing; – breed distrust by the parent(s); and – be detrimental to the student’s education.

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Best Practices in Light of Endrew F.

• 4. If it isn’t on the IEP, it didn’t happen!
• In this Circuit, in the event of a FAPE challenge by the

parents, the district cannot offer evidence of special education, related services, or other accommodations/ supports that are not on the IEP, even if the student actually has received, or would be receiving them.

• This is not new. R.E. v. New York City Dept. of Educ., 694

F.3d 167 (2d Cir. 2012).

• But Endrew F. serves as a reminder that the district’s

ability to demonstrate than an IEP “is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” will likely be constrained by any IEP omissions.

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Best Practices in Light of Endrew F.

• 5. Listen and respond to parents!
• Endrew F. reminds us that parents must have

more than just a seat at the table when an IEP is developed.

• A failure to listen to, and be responsive to parents,
• ften results in parents retaining counsel.
• Promptly return parent calls and reply to parent
• emails. When necessary, communicate “until you

die.”

• Put yourself in the parents’ shoes, and keep the

focus on their child.

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Questions?

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