Defining “Appropriate Education”

Ever since Congress passed the original law requiring public schools to provide a free appropriate public education (FAPEto students with disabilities in 1975, everyone involved in the special education system has struggled with the definition of “appropriate.” This includes teachers, parents, advocates, attorneys and the court system. The problem, of course, is that the word appropriate defies precise definition. On one hand, the law does not require public schools to provide children with disabilities the best possible education, even though parents should always advocate for that. On the other hand, if a child fails to make any progress and merely gets a de minimis education, that is clearly not appropriate and therefore violates the law. The challenge has been in that huge grey area in between. Some have said the the child is not entitled to a Cadillac type of education, but only a Chevrolet. I like to add that the Chevrolet must have 4 wheels and be in sound operating condition.

Fortunately, earlier this year, in a unanimous decision, the U.S. Supreme Court offered updated clarification on this issue and rejected the 10th Circuit Court of Appeals definition of appropriate. The 10th Circuit had ruled that public school merely needed to provide, “merely more than de minimis” education to children with disabilities, but in the case known as Endrew F., the Supreme Court stated that,

a school must offer an IEP [individualized education program] that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.

The Court additionally emphasized the requirement that “every child should have the chance to meet challenging objectives.”

While this case, especially in light of its unanimous nature in an often divided Supreme Court, is very important, earlier this week, something even more important happened when the U.S. Department of Education issued a Q&A on the Endrew F. decision. This Q&A is very important because:

  • Many advocates feared that Secretary DeVos would eviscerate enforcement of the special education law known as the IDEA (Individuals with Disabilities Education Act);
  • Public reaction was strong and many were troubled with the U.S. Department of Education rescinded 72 pieces of policy guidance in October; and
  • Most important, as set forth below, the Q&A fully supports both the substance and rationale of the Endrew F. decision and thus the U.S. Dept. of Education appears prepared to enforce the IDEA according to this landmark decision.

USDOE

Due to the importance of both the Endrew F. decision and the administration’s interpretation of it, everyone involved in the education of children with disabilities should be aware of the following key points emphasized by the Q&A:

  • Public schools must offer an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” to all students with disabilities, including those performing at grade level and those unable to perform at grade level.
  • “[A] student offered an educational program providing merely more than de minimis progress from year to year can hardly be said to have been offered an education at all…The IDEA demands more.”
  • Each child’s educational program must be appropriately ambitious in light of his or her circumstances, and every child should have the chance to meet challenging objectives.
  • In determining whether an IEP is reasonably calculated to enable a child to make progress, the IEP Team should consider the child’s previous rate of academic growth, whether the child is on track to achieve or exceed grade-level proficiency, and any behaviors interfering with the child’s progress.
  • The IEP Team, which must include the child’s parents, must give “careful consideration to the child’s present levels of achievement, disability, and potential for growth.”
  • The IEP must include annual goals that aim to improve educational results and functional performance for each child with a disability. This inherently includes a meaningful opportunity for the child to meet challenging objectives.
  • Annual IEP goals for children with the most significant cognitive disabilities should be appropriately ambitious and “reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.”

The Q&A concludes by stating that,

IEP Teams must implement policies, procedures, and practices relating to: (1) identifying present levels of academic achievement and functional performance; (2) the setting of measurable annual goals, including academic and functional goals; and; (3) how a child’s progress toward meeting annual goals will be measured and reported, so that the Endrew F. standard is met for each individual child with a disability.

In sum, with both a typically divided Supreme Court and the U.S. Department of Education which advocates feared would take special education backwards, making strong statements in favor of a meaningful definition of appropriate education, parents and advocates now have important tools to insist that children with disabilities receive the kind of education that will allow them to make meaningful progress every year.

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For more information on how I can help you accomplish effective, progressive systems change contact Jeff Spitzer-Resnick by visiting his website: Systems Change Consulting.

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Law as Preventive Medicine

In my nearly 3 decades engaging in systems change, legislators and other policymakers often ask 2 questions when advocates ask them to support proposed legislation or policy change:

  1. Will this bill solve the problem?
  2. Will this bill create more litigation?

While these questions appear to have surface level legitimacy, they are often interposed as excuses to avoid supporting legislation.  It does not take deep analysis to understand that mankind has yet to find the law that is universally followed and therefore solves the problem.  Indeed, even the most fundamental universal law, Thou shalt not kill, is sadly violated on a daily basis.  Needless to say, there is not a civil society that has rid itself of its laws against murder because they have not solved the problem.

Regarding increased litigation, that question depends in large part on the nature of the proposal.  Some bills specifically set forth a litigation framework to provide for their enforcement, such as the Civil Rights Act of 1964 which just celebrated its 50th anniversary.  Other bills, such as Wisconsin Act 125, prohibiting the inappropriate use of seclusion and restraint, are framed more at the level of guidance and best practices, but do not envision litigation to enforce them.

For its nearly 40 years of existence, federal special education law, now known as the IDEA (Individuals with Disabilities Education Act), has been vilified by many school district officials and politicians as too litigation oriented.  True, the law has always empowered parents to sue school districts when their children do not receive a free appropriate public education (FAPE) in the least restrictive environment (LRE). However, any reasonable analysis of the numbers of cases litigated under the IDEA demonstrates that the fears of excessive litigation are greatly exaggerated.

For example, during the 2013-14 school year, there were 122,654 children eligible for special education in Wisconsin.  Yet, only 6 administrative due process hearings were filed that year, with only 2 of those hearing requests proceeding to a full hearing.  In percentage terms, these negligible hearing requests are less than 5/1000% of students in special education.

With litigation in such minuscule numbers, it is puzzling why the aura of over litigation in special education continues to hang over the IDEA.  I learned a satisfying lesson about the power of the IDEA and other civil rights legislation to act as preventive medicine during Gov. Scott McCallum’s brief term as Wisconsin governor from 2001-03, which coincided with the Congressional and state debate over the last reauthorization of the IDEA.  Gov. McCallum surprised many when he hired retired teacher’s union director, Morrie Andrews, to lead an effort to build a consensus for state level education reform.  Andrews started that effort by meeting with key education leaders, including me.

During my meeting with Mr. Andrews, he made it quite clear that he felt there was too much special education litigation.  I relayed the paltry numbers of special education cases that were being litigated at the time, which truly surprised him.  He then provided me with an important lesson on the power of law as preventive medicine.

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After conceding that I knew the numbers better than he did, he informed me that school districts obeyed the law because they were afraid of being sued.  As I let that sink in, a big smile came across my face as I came to the realization that over 100,000 children with disabilities in Wisconsin were receiving a free appropriate public education in the least restrictive environment because the law was acting as preventive medicine.

My conversation with Morrie Andrews helped me realize that systems change happens in many ways.  Of course, for law to impact behavior, it must provide both guidance and an enforcement mechanism.  But there truly are not enough lawyers (or people who can afford them) to enforce the laws on the books.  That is why successful systems change must include use of the media to magnify the impact of laws on the books and the handful of cases which are litigated to enforce them, so that those who must obey the law understand that the risk of failing to obey the law is simply not worth taking.  

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For more information on how I can help you accomplish effective, progressive systems change contact Jeff Spitzer-Resnick by visiting his website: Systems Change Consulting.