Education Law Outline

Case Review



  1. Legal to not allow students with disabilities to attend public schools
  2. Struck down local statutes and regulations that excluded children with disabilities from schools and training programs
  3. Est that children with disabilities were to be afforded access to FAPE
  4. Est that students were to be reevaluated every few years (PARC)
  5. Access for services for students with ADHD, etc (Mills)



  1. First US Sup Ct Sped case
  2. Sets FAPE standard
  3. Sets FAPE analysis



  1. Defined scope of “related services:”
  2. Two prong test
      1. Supportive services necessary?
      2. Exception as medical service?
    1. If its about access to services, state will always have to provide it
    2. If it is a medical service, the school doesn’t have to provide it BUT
    3. Said here that this wasn’t a medical service b/c a physician doesn’t have to be doing it all the time (catheter just gets inserted, physician doesn’t have to constantly be there)



  1. Est parent right to reimbursement in certain situations
  2. Est two prong test
    1. Did the District offer on the IEP constitute FAPE?
      1. If yes, then parents don’t get reimbursed
    2. If no, then question #2: does what the parents chose constitute FAPE? (standard for parent is more did the child make some progress? Lower standard than for the District)



  1. First and only IDEA discipline case for Sup Ct
  2. Removed local school’s unilateral authority to suspend or expel students with an IEP
  3. No “dangerousness exception” under IDEA to not educate these students
  4. Two prong test:



  1. If parents otherwise meet the test, they have right to reimbursement even if school is not certified by state for non-public placement
  2. Caution: prospective placement



  1. Second time, defined scope of related services
  2. Cost is not a factor in mandating school to provide services – school has to provide services regardless of cost



  1. BOP (persuasion) is on the party seeking relief, as in other litigation
  2. Reasoning:
    1. BOP often critical
    2. Parents right to review education records
    3. Right to an “independent educational evaluation” (but really difficult to actually get in reality)



  1. IDEA’s award of attny fees to parents who prevail does not extent to recovery of the costs of experts’ services to parents who prevail, but parents can recoup attny fees



  1. Parents may pursue IDEA claims pro per on their own behalf (have rights and claims independent of child)


Forest Grove

  1. IDEA does permit tuition reimbursement where a child has not previously received services from the local education agency (school district)


To meet FAPE, must include:

  1. Public money
  2. State standards
  3. Appropriate placement in a school
  4. Conform with IEP



IDEA (Improvement) Act 2004 – Individuals with Disabilities Education (Improvement) Act




Child with a Disability (And) Who by reason thereof (NEEDS) Special education (And/Or) Related Services


Child with a Disability

A child with:

Mental retardation

Hearing impairments


Speech or language impairment

Visual impairments

Including blindness

Serious emotional disturbance

Orthopedic impairments


Traumatic brain injury

Other health impairment

Specific learning disabilities


Multiple Disabilities


Special education:

  1. Specially designed instruction
  2. At no cost to parents
  3. To meet unique needs of child


Related services: supportive services to benefit child

Ct Inquiry

  1. Has LEA complied with procedures?
  2. Is IEP reasonably calculated to achieve educational benefit?


Related Services

  1. Transportation
  2. Developmental services
  3. Corrective services
  4. Other supportive services

As may be required

  1. To assist a child with a disability
  2. To benefit from special education



  1. Emphasis: BENEFIT

FAPE: Free Appropriate Public Education

  1. At public expense
  2. Under public supervision and direction
  3. Without charge


FAPE: Free

  1. At no cost to parents


FAPE: Appropriate

  1. Standard:
    1. Rowley (+ NCLB)
      1. Reasonably Calculated to Achieve Educational Benefit
      2. Some . . . More than trivial . . . meaningful


FAPE: Public

  1. Standard: LRE


FAPE: Education

  1. Instruction and Services
  2. Academic
  3. Social Emotional
  4. Other?


Instruction & Services

  1. At public expense
  2. Under public supervision
  3. Meet the state’s educational standards
  4. Comport with the IEP


FAPE Inquiry: Two prongs

  1. Substantive
  2. Procedural


Level of Access

  1. District has to provide some educational benefit and access needs to be meaningful. If the state takes the funding, 3 requirements must be met
    1. State has to develop a plan approved by the federal government
    2. States agree they will meet the needs of the children with disabilities with an IEP
    3. Follow procedural requirements – notice of changes to the child’s plan, parents can bring complaint, etc.
  1. There’s NO Constitutional right to an education, if it’s provided – it must be without regard to race, religion, disability, etc.


Hearing Decisions Standard: Shall be made on substantive grounds unless


Procedural Issues

  1. Rose to the Level of a
  2. Denial of FAPE
  3. Because they:
    1. Impeded the child’s right to FAPE OR
    2. Significantly impeded the parents opportunity to participate in the decision-making process
    3. Caused a deprivation educational benefits


Substantive Issues

  1. Result in Denial of FAPE when the LEA:
    1. Does Not Address Student’s Unique Needs
    2. When the IEP
      1. Is Not Calculated to Provide Some Education Benefit
      2. When the Instruction and Services Do Not Comport with the IEP
      3. When Placement is not in the Least Restrictive Environment (LRE)



  1. To the Maximum Extent Possible Educated with Non-Disabled Peers
  2. Removal from Regular Education ONLY when
    1. Nature or Severity is such that
    2. Education in Regular Education
    3. Cannot be achieved satisfactorily WITH Use of Supplementary Aids & Services


9th Circuit Test

  1. Factors
    1. Educational benefits of regular ed.
    2. Non-academic benefits (social, etc.)
    3. Effect on teacher and other students
    4. Costs of mainstreaming


Assessments & Referrals


Child Find

  1. Identify
  2. Locate
  3. Assess


Referral for SPED

  1. When
  2. By Whom
  3. Justification


District Assessments

    1. Parent Approval


Parent Participation

  1. Who
  2. When
  3. To what extent
    1. Waivers
    2. Refusals
  4. Why


When Parent Requests an Assessment

  1. 15 days for school to reply to assessment
  2. 15 days for parents to reply to schools request to assess
  3. 60 days for school to assess



  1. In primary language
  2. Validated
  3. Trained personnel
  4. Address specific areas of need
  5. Observation


Assessment Report

  1. Written
  2. Justification
  3. Behavior, health, development, results
  4. Need for specialized services
  5. Recommendation


IEE (Independent Education Evaluation)

  1. When to request
  2. District’s duty
  3. Criteria for evaluation (assessment)


Private Assessments

  1. Compare
    1. District assessments (evaluations)
    2. IEE
  2. District’s duty


Bd of Educ v Rowley

  1. Law requires appropriate education, w/some educational benefit, measurable & meaningful. (Does not require school district to maximize benefit).
  2. Need personalized services with enough support to benefit to meet FAPE.
  3. LRE was met
  4. Still received technology to assist
    1. Had a tutor
    2. Basic floor of opportunity: SC looked at grades and advancement from grade to grade (kind of ridiculous since she’s just in kindergarten)
  5. SC limited this ruling to the facts of this case, did not establish any ONE test for benefits of all children, there is no substantive standard with so many unique children, must look to procedural requirements & whether IEP was reasonably calculated to achieve success.
  6. Test:
    1. Did the State comply with the statutory procedures?
    2. Was the individualized program developed through such procedures reasonably calculated to enable the child to receive educational benefit.
  7. ** “If these requirements are met, the State has complied with the obligations imposed by Congress, and the courts can require no more.”**



Eligibility & Evaluations


Particular Activities & Conditions


Section 504 – no otherwise qualified individual with a disability shall, solely by reason of his disability:

  1. Be excluded from the participation in be denied the benefits of, or
  2. Be subjected to discrimination in, or
  3. Be denied the benefits of or
  4. Be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.


504 Analysis

  1. Is this an essential requirement for the activity/program?
    1. If yes, then use reasonableness of it
    2. Financial or administrative burden?
  2. Whether the change would fundamentally alter the nature of the activity
    1. If no,
      1. Is the child otherwise qualified (somehow make if so that he is deemed to make it)?
    2. If yes to the previous then, if reasonable accommodations would enable him to meet requirement?



  1. IDEA: Public schools
  2. Section 504: Receiving federal funds
  3. ADA: Public entities, public accommodations, private nonsectarian schools, employers >15


Comparison Eligibility

  1. IDEA: Birth through 21, disability + “need”
  2. Section 504: Disabled (under Act), otherwise qualified, entity receives federal funds, excluded/denied benefits/subject to discrimination
  3. ADA: Essentially same as 504


Changes in ADA/504

  1. Americans with Disabilities Act Amendments Act of 2008 (effective January 1, 2009)
    1. Amended the ADA and included a conforming amendment to the Rehabilitation Act of 1973 that affects the meaning of disability in Section 504.
      1. Disability determinations must now be made without considering mitigating measures.


Comparison Right

  1. IDEA: Free appropriate public education in the least restrictive environment
  2. Section 504: Access, protection against discrimination (must be reasonable/not undue hardship, must not change the fundamental nature of activity)
  3. ADA: Title II, same as 504 – public benefits



  1. IDEA: Special education and related services, at public expense, in conformity with IEP and reasonably calculated to receive educational benefit (FAPE)
  2. Section 504: Meet needs as adequately as children who are not disabled (FAPE)
  3. ADA: N/A



  1. IDEA: Removed from general education only when the nature or severity of the disability is such that even with supplementary aids and services, education cannot be satisfactorily achieved
  2. Section 504: Placed in general education unless education cannot be achieved even with aids and services
  3. ADA: N/A


Procedural Safeguards

  1. IDEA
    1. Written notice
    2. Parent’s dominant language
    3. Prior to initiation, change, refusal
    4. Identification, evaluation or placement
    5. Right to an IEE at public expense?: Yes
  2. 504: Not required, but advisable 
    1. Right to an IEE?: No
  3. ADA: N/A
    1. Right to an IEE: No


Evaluations for Eligibility

  1. IDEA
    1. Comprehensive
    2. All areas of suspected disability
    3. Multidisciplinary team
    4. Not rely on one procedure
  2. 504
    1. Info from variety of sources
    2. Documented



  1. IDEA – Every three years (triennial review)
  2. 504 – Before significant change of placement



  1. IDEA – requires parent consent
  2. 504 – not specifically stated



  1. IDEA
    1. Written
    2. Individualized Education Program (IEP)
  2. 504
    1. No written requirement
    2. Individualized Accommodation Plan (IAP)



  1. IDEA
    1. Resolution Session Hearing
    2. OAH
  2. 504
    1. Hearing
    2. OCR (Office of Civil Rights) Hearing



  1. IDEA
    1. 10 day rule
    2. Stay put (exceptions)
  2. 504
    1. Evaluation prior to more than 10 day removal
    2. No stay put


J.D. v Pawlet School District

  1. Summary: The court found an academically gifted student with emotional and behavioral problems not eligible for special education under IDEA and analogous state law. It ruled that the IEP offering placement at local high school and counseling provided a reasonable accommodation under section 504.
  2. Whereas IDEA require federally funded State and local educational agencies to provide special education and related services to students who meet specified eligibility criteria. Section 504 of the Rehabilitation Act prohibits such agencies from discriminating against students with disabilities
  3. Under 504 regulations, a student may have a viable discrimination claim even if her academic performance is satisfactory, provided the student established that she does not enjoy equal access to the school’s performance
  4. While a federal funds recipient must offer reasonable accommodations to individuals with disabilities to ensure meaningful access to its federally funded program, 504 does not mandate substantial changes to its program. We have also held that in evaluating the accommodation offered by a D, courts should be mindful of the need to strike a balance between the rights of the student and his parents and the legitimate financial and administrative concerns of the School District.
  5. The heart of J.D.’s opposition to the proposed accommodation is that it was not optimal. However, 504 does not require a public school district to provide students with disabilities with potential maximizing education, only reasonable accommodations that give those students the same access to the benefits of a public education as all other students


Seattle School District, No 1 v B.S.

  1. Summary: The court found that the school district failed to provide FAPE and to follow proper procedures for an emotionally and behaviorally disabled student. The district was ordered to reimburse the parents for the cost of an independent evaluation and placement at an out of state facility as well as for attorney’s fees and costs
  2. Issue: parents entitled to refund for IEE, cost of residential facility, attny’s fees? Yes for all
  3. “Because A.S.’s parent disagreed with the school district’s evaluation and the district was unable to establish the appropriateness of its evaluation, A.S. was entitled to an IEE at public expense.”
    1. District didn’t include anyone trained at dealing with A.S’s disorder in the evaluation, the evaluation was deficient


Schoenbach v District of Columbia

  1. Summary: The court recognized the significance of evaluation in determining correct placement for student with Asberger’s Syndrome, but refused reimbursement for a private placement where the parents did not raise objections and concerns at the appropriate time
  2. Issue: proposed placement appropriate, entitled to reimbursement for private services? Placement was not appropriate BUT parents didn’t give adequate notice to school before removing child (didn’t speak up enough during IEP meetings to ask for private placement)
  3. The court may reduce or deny tuition reimbursement if, a disabled child’s parents, prior to or during the most recent IEP meeting before removing their child from school, failed to inform the IEP team that they were rejecting the placement proposed by the public agency to provide a FAPE to their child including stating their concerns and their intent to enroll their child in a private school and public expense. A court may also reduce or deny tuition reimbursement upon a judicial finding of unreasonableness with respect to actions taken by the parents
    1. The 2004 Reauthorization of IDEA adds to the prior law’s obligation on the state and local agencies to conduct evaluations that either a parent of a child, or a State educational agency, other State agency, or local educational agency may initiate a request for an initial evaluation to determine if the child is a child with a disability


Hood v Encinitas Union School District

  1. Issue: IDEA Eligible? No.
  2. Here, the court said “it is appropriate for courts to determine if a child classified as non-disabled is receiving adequate accommodations in the general classroom – and thus is not entitled to special education services – using the [Rowley] benefit standard.”  Grades and teacher assessments are important in determining whether a child with a discrepancy is “reaping some educational benefit in the general classroom”. 
  3. While the circumstances in this case arose before the IDEA 2004 amendments (and also involved specific California law), many school districts are still implementing a modified discrepancy formula as part of a “strengths and weaknesses” model. 
  4. Every eligibility determination is a three-pronged decision
    1. Whether the student meets the state’s disability criteria
    2. Whether the disability is adversely affecting the student’s education, and
    3. Whether, as a result, the student needs special education services. 
  5. Hood v. Encinitas involves the third prong of this determination and supports looking at a student’s classroom performance (whether the student is benefitting without special education), rather than just looking at standardized test scores, to determine whether special education services are needed.
  6. Dicta: discrepancy, performance


Pottgen v Missouri State HS

  1. Summary: The court found that a 19 year old who was still in HS because of learning disabilities was not entitled to waiver of an athletic association’s age eligibility requirements under section 504 or ADA where the rule was “an essential eligibility standard” and its waiver would “constitute a fundamental altercation in the nature of the baseball program.”
  2. A Rehabilitation Act analysis requires the court to determine both whether
    1. An individual meets all of the essential eligibility requirements and
    2. Whether reasonable modifications exist.
  3. In other words – Analysis is two pronged: Unreasonable if:
    1. Is the rule an essential requirement?
    2. If it is, can we make reasonable accommodations?
  4. Difference between 504 & ADA: cost is an issue with ADA
  5. But here, they say the reason they do it is b/c it will fundamentally alter the nature of the sport of they change the age limit
    1. Accommodations are not reasonable if they impose undue financial and administrative burdens or if they require a fundamental alteration in the nature of the program.
  6. 504 Holding: Other than waiving the age limit, no manner, method, or means is available which would permit Pottgen to satisfy the age limit. Consequently, no reasonable accommodations exist.
  7. Qualified under ADA?: First determine whether the age limit is an essential eligibility requirement by reviewing the importance of the requirement to the interscholastic baseball program. If this requirement is essential, we then determine whether Pottgen meets this requirement with or without modifications. It is at this later stage that the ADA requires an individualized inquiry.
  8. ADA Holding: Pottgen alleges he can meet the eligibility requirement is MSHAA waives it for him. We conclude that this is not a reasonable modification
  9. Dissent: In my view, the courts are obligated by statute to look at Ps as individuals before they decide whether someone can meet the essential requirements of an eligibility rule like the one before us in the present case. Such an individualized inquiry, I believe, shows that the age requirement, as applied to Pottgen, is not essential to the goals of MSHSAA.
    1. The age requirement could be modified for this individual player without doing violence to the admittedly salutary purposes underlying the age rule. But instead of looking at the rule’s operation in the individual case of Pottgen, both the Activities Association and this Court simply recite the rule’s generally justifications (which are not in dispute) and mechanically apply it across the board.
    2. If a rule can be modified without doing violence to its essential purposes, as the Court has found, I do not believe that it can be essential to the nature of the program or activity to refuse to modify the rule


Rothschild v Grottenthaler

Summary: The court ruled that under 504, the school must provide sign language interpreter services to hearing-impaired parents of nondisabled children for certain school-initiated meetings and activities

  1. To establish a prima facie violations of section 504, a P must prove that
    1. He is a handicapped person as defined in the Rehabilitation Act
    2. He is otherwise qualified to participate in the offered activity or to enjoy its benefits
    3. He is being excluded from such participation or enjoyment solely by reason of his handicap; and
  2. Once a prima facie violation of section 504 has been established, the D must present evidence to rebut the inference of illegality.
  3. If the Rothschilds are otherwise qualified for the parent-oriented activities offered by the District, the Rothschilds must be afforded an equal opportunity to participate in those activities
    1. The Rothschilds are otherwise qualified for the parent-oriented activities incident to their children’s education that are offered by the school
    2. The conclusion is supported by the DOE regulations interpreting the term “otherwise qualified” contained in section 504 – defines “qualified handicapped person” as:
      1. With respect to other services, a handicapped person who meets the essential eligibility requirements for the receipt of such services (here, it was the parents who had the right to participate). Excluded solely b/c of their handicap?
  4. The DOE has determined that, under section 504, schools are required to afford handicapped parents of non-handicapped school children the same opportunity to participate in school activities as that afforded non-handicapped parents.
  5. As “otherwise qualified handicapped individuals,” the Rothschilds are entitled to “meaningful access to” the activities that the school offers parents.
  6. However, our determination must be “responsive to two powerful but countervailing considerations – the need to give effect to the statutory objectives and the desire to keep 504 within manageable bounds.”
    1. Accommodations to permit access to handicapped persons should not impose “undue financial and administrative burdens.”
    2. Thus, a recipient of federal financial assistance should not be “required to make fundamental or substantial modifications to accommodate the handicapped.”
    3. A recipient may, however, be required to make “reasonable” modifications to accommodate an otherwise qualified handicapped individual. “
    4. Section 504 of the Rehabilitation Act requires some degree of positive effort to expand the availability of federally funded programs to handicapped persons otherwise qualified to benefit from them.
  7. This seems a “reasonable accommodation,” which permits the Rothschilds to be involved in their children’s education while preserving the responsible administration of the School District.



Free, Appropriate, Public Education (FAPE)


Special Education Reform: (Policy of Exclusion to Inclusion)

  1. Education of the Handicapped Act of 1970
  2. Section 504 of the Rehabilitation Act of 1973
  3. Education for All Handicapped Children Act of 1975
  4. Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley (1982)
  5. 1997 Amendment to the Individuals with Disabilities Education Act
  6. President’s Commission on Excellence in Special Education
  7. NCLB 2002
    1. One of the primary purposes is “to close the achievement gap with accountability, flexibility, and choice, so that no child is left behind.”
    2. Requires that all students be proficient in reading/language arts and math by 2014.
    3. Includes four education principles:
      1. Stronger accountability for results
    4. Increased flexibility and local control
    5. Expanded options for parents
      1. Emphasis on scientifically-based effective teaching methods


Response to Intervention

  • School districts are not required to take into account a severe discrepancy between ability (IQ) and achievement when determining whether a student has a specific learning disability


What is RTI (response to intervention)?

  • NCLB definition: response to “scientific, research-based” intervention
  • Early intervention funding for RTI programs
    • 15% of IDEIA funding can be used to develop and implement early intervention services.
    • These funds can be applied in the first tier of an RTI program.
    • Caution: Children already identified as special needs students may not receive services funded by this 15%.


Goals of RTI

  • Quality general education instruction
  • Prevent over-identification for special education
  • Continuous progress monitoring
  • Objective intervention


Post-Rowley: Adams v. Oregon

Ct applied “meaningful benefit” standard, rather than “some” education benefit


Post-Rowley: T.R. v Kingwood Township Bd of Educ (2000)

– Third Circuit held that IEP must confer a “meaningful educational benefit.”

– Citing Rowley, the court acknowledged that a state is not required to “maximize the potential of handicapped children.” However, states must provide an IEP that confers “more than trivial or de minimis educational benefit.” A satisfactory IEP must provide “significant learning” and confer “meaningful benefit.”


Deal v Hamilton

  1. Summary: agreed with the Third Circuit; the court applied “meaningful benefit” test.
  2. It noted that Rowley is the only Supreme Court decision to have addressed the level of educational benefit that must be provided pursuant to an IEP. “Nothing in Rowley precludes the setting of a higher standard than the provision of ‘some’ or ‘any’ educational benefit; indeed, the legislative history cited in Rowley provides strong support for a higher standard
  3. OVERVIEW: The district court found no IDEA violations and reversed the reimbursement ordered by the ALJ. Plaintiffs argued that it erred by (1) allowing and relying upon the board’s additional evidence; (2) failing to take judicial notice of federal court filings challenging the credibility of a board experts; (3) reversing those aspects of the ALJ’s decision that found violations of the IDEA and granted reimbursement and (4) awarding costs.
  4. On the first issue, the court gave great latitude to district courts and found no prohibition against the district court allowing even a large amount of additional evidence if it would add something to the administrative record or assist the district court in deciding the issues before it.
  5. On the second issue, plaintiffs were essentially attempting to get the district court to take judicial notice of a witness’s lack of credibility, a fact very much in dispute, and there was no abuse of discretion in the refusal to take judicial notice.
  6. On the third issue, because the school system deprived plaintiffs of a meaningful opportunity to participate, the predetermination the court found amounted to denial of a free appropriate public education.
  7. OUTCOME: The court affirmed the district court’s decisions on the additional evidence and judicial notice issues. It reversed the district court’s determinations regarding procedural and substantive violations of the IDEA, as well as reimbursement relating to those violations. Because plaintiffs were now the prevailing parties, the issue of costs was moot. The case was remanded for further proceedings.


N.B. v Hellgate

  1. Court concluded that under the 1997 amendments to the IDEA, a school district must provide a student with “meaningful benefit” in order to satisfy the requirements of the IDEA.
  2. Court stated that the “some educational benefit” standard prescribes a very low standard.
  3. OVERVIEW: The court agreed with appellants that the school district failed to meet its procedural obligation under IDEA to evaluate the student to determine whether he was autistic. The court held that the school district failed to meet its obligation to evaluate the student in all areas of suspected disability as required under 20 U.S.C.S. § 1414(b) because it referred the student’s parents to a center for an autism evaluation rather than arranging for an evaluation after being apprised of a physician’s autism diagnosis. The court, however, rejected appellants’ contention that the district court erred in deciding that the school district did not violate the student’s substantive rights under IDEA when it denied him extended school year (ESY) services. While the district court enunciated the regression/recoupment test in a shorthand fashion, it made the determination that the student was not entitled to ESY services by appropriately using the Montana Office of Public Instruction factors. Further, it was reasonable for the hearing officer to rely on the testimony of the school district’s witnesses because they had observed the student’s school performance.
  4. OUTCOME: The court vacated the order insofar as it found that the school district was not liable for violating procedural rights under IDEA, and it remanded with instructions to calculate the costs incurred by the parents for providing alternative educational services during one school year and the associated legal fees. The court affirmed the decision that the school district did not violate substantive rights in denying ESY services.


J.L. v Mercer Island School District

  1. District court in the 9th Circuit applied “meaningful benefit” test.
  2. Court stated that the purpose of EHA “was solely to provide access to education for disabled students.”
  3. The IDEA is not simply about ‘access;’ it is focused on ‘transition services, an outcome-oriented process, which promotes movement from school to post-school activities, taking into account the student’s preferences and interests.”
  4. “‘Meaningful educational benefit’ requires programs and results which reflect the Act’s emphasis on preparation for self-sufficiency.”



Individualized Education Program (IEP)


IEP Meeting

  1. Notice
    1. Early enough to ensure opportunity to attend
  2. Time and Place
    1. Mutually agreed upon
  3. Electronic recording rule
    1. Can if provide notice
  4. Alternative means: video, conference calls


Request, Initial IEP

  1. 15 days for assessment plan (exc. Tolling)
  2. 15 days for parent consent (minimum)
  3. 60 days from signed consent
    1. IEP meeting


Transfer Students – Proposal of IEP

  1. No change to IEP
    1. Otherwise, within 30 days if transferring within state
  2. If transferring from out of state – within a reasonable time
  3. All: conform to current IEP to extent possible, until assess or accept



  1. Who is the ERH?
  2. Intro’s
  3. Create an agenda
  4. Procedural safeguards


IEP Team Considerations

  1. Pupil’s strengths
  2. Results of assessments, standardized tests and grades
  3. Disability and affect on education
  4. Needs
  5. Goals (goals drive placement, services, and special factors – i.e., accommodations)
  6. Placement
  7. Services
  8. Special factors



  1. Continuum of Placements Considered
  2. Least Restrictive Environment
  3. Placement categories
    1. General Education (Inclusion)
    2. General Education (mainstreamed)
    3. Resource Specialist Program
    4. Special Day Class
    5. Non-Public School
    6. Day Treatment
    7. Residential Treatment Center
    8. State Special Schools and Specialized Programs
    9. Home Hospital Instruction


Services & Special Factors

  1. Question: what supplementary aids and related services will the student need to succeed?
  2. Question: are there accommodations or modification necessary for success in the placement?


Related Services

  1. Transportation AND
  2. Developmental, corrective, other supportive services
  3. As may be required to assist a child with a disability to benefit from special education


Offer of FAPE

  1. Written
  2. Specific


Consent to IEP

  1. Must be knowing and voluntary
  2. Parent may consent to all or part of an IEP
  3. Parent should receive a copy of the draft to consider or the final, signed version


Supreme Court seems to think from the IEP that what is most important is:

  1. Parental participation
  2. IEP team: teacher, rep from district, parents, current placement rep
  3. Must be based on the unique needs of the child
  4. Whether procedural requirements have been met (these are universal so everyone knows, cts decide to trust the experts, since they aren’t, if they meet the procedural requirements b/c they are pretty black and white
  5. If District doesn’t follow procedural requirements, ct instantly looks to see if student was denied FAPE or parents weren’t allowed to participate


IEP Team

  1. Member excused if LEA and parent agree, when area of expertise not in discussion
  2. Member excused even if being discussed, same as above, but must also present written comments


IEP parent rights

  1. Meeting within 30 days of written request (when IEP is in place)
  2. Opportunity to participate and have opinions heard and noted
  3. Right to bring an advocate or attorney


IDEA Definition of Parent

  1. A natural, adoptive, or foster parent of a child (unless a foster parent is prohibited by state law from services as a parent);
  2. A guardian (but not the State if the child is a ward of the State);
  3. An individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare;
  4. Except as used in Section 1415(b)(2) and 1439(a)(5), an individual assigned under either of those sections to be a surrogate parent


White v Ascension Parish School Bd

Summary: The court held that the school system has the authority to decide that a child with a hearing impairment will attend a centralized school rather than the neighborhood school requested by his parents

  1. Congress left the choice of educational policies and methods where it properly belongs – in the hands of the state and local officials. Our task is not to second guess state and local school officials; rather it is the narrow one of determining whether state and local officials have complied with the Act. Moreover, the IDEA creates a presumption in favor of a school system’s education plan, placing the BOP on the party challenging it (the parents)
  2. When an action is brought under IDEA, or the appropriateness of an IEP challenged, our inquiry is two-fold:
      1. Whether the IEP developed through the Act’s procedures is reasonably calculated to enable the child to receive educational benefits (substantive)
      2. Whether the school district has complied with the procedures set forth in the IDEA (procedural)
    1. If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more
  3. Statutory provisions do not explicitly require parental participation in site selection. Educational placement, as used in the IDEA, means educational program – not the particular institution where that program is implemented.
  4. To accept the parents’ view of “parental input” would grant parents a veto power over IEP teams’ site selection decisions. Congress could have included that power in IDEA; it did not do so. The right to provide meaningful input is simply not the right to dictate an outcome and obviously cannot be measured by such.
  5. State agencies are afforded much discretion in determining which school a student is to attend. The regulations, not the statute, provide only that the child be educated as close as possible to the child’s home. However, this is merely one of many factors for the district to take into account in determining the student’s proper placement. It must be emphasized that the proximity preference or factor is not a presumption that a disabled student attend his neighborhood school.
  6. IDEA expressly authorizes school districts to utilize regional day schools such as the one at issue here, and we think the importance of these regional programs is obvious. Undoubtedly there are a limited number of interpreters, etc; and by allocating these limited resources to regional programs, the state is better able to provide for its disabled children. Additionally, by placing these educators at regional centers, those centers are better able to provide further training for those educators and make substitutions for absent educators


Burlovich v Bd of Educ of the Lincoln-Consolidated Schools

  1. Summary: The court held that the school system may determine the substantive program provided for a child with disabilities where procedures followed were appropriate
  2. Discussion at IEP is very critical – principle promised to provide those services, then didn’t
  3. Districts always have a right to assess, so long as they have never assessed or it has not assessed for 12 months
  4. There was an IEP even though it wasn’t recorded – all IEPs must be recorded
  5. P’s were denied meaningful parent participation b/c they were not invited to two IEP meetings – these were only staff meetings (District can’t hold meeting w/o parents w/o due diligence, etc, but may hold IEP if follow thru with # of steps)
  6. District failed to consult with knowledgeable professionals re B.J.’s placement – they only say this b/c they wanted their expert and that isn’t required
  7. P’s say IEP failed to take student’s unique need into consideration – they only say this b/c they wanted the school to use their program
  8. The IEP didn’t address student’s unique needs b/c it did not mention student’s home program of DTT or his potential for regression – an IEP is not defective if it fails specifically to address regression


Shapiro v Paradise Valley Unified School District

  1. Summary: The court held that the district’s IEP decision as to where to place a child will not be valid when the IEP team is not properly constituted; parents held entitled to tuition reimbursement
  2. The school violated the IDEA’s procedural mandates in its development of the student’s IEP, and thereby denied student a FAPE, by not including a representative from CID (the private school) or student’s parents at the June 8 IEP.
  3. Under the regulation, before it can hold an IEP meeting without a child’s parents, the district must document phone calls, correspondence, and visits to the parents demonstrating attempts to reach a mutually agreed upon place and time for the meeting.
  4. The IDEA imposes upon the district the duty to conduct a meaningful meeting with the appropriate parties. We have made it clear that those individuals, like student’s parents, who have first-hand knowledge of the child’s needs and who are most concerned about the child must be involved in the IEP creation process. After the fact parental involvement is not enough. Nor does the district’s inclusion of the parents in certain parts of the process excuse the district’s failure to include the parents in the IEP meeting; involvement in the “creation process” requires the district to include the parents unless they affirmatively refused to attend.
  5. We engage in a two-part test to determine whether the district afforded student a FAPE.
    1. First, we must determine whether the school complied with the procedures set forth in the IDEA.
    2. Second, we must determine whether the IEP developed through the IDEA’s procedures was reasonable calculated to confer educational benefit upon student.
  6. The school’s violation of the IDEA’s procedural mandates resulted in lost educational opportunity for student.
  7. Procedural flaws do not automatically require a finding of a denial of a FAPE. However, procedural inadequacies that result in the loss of educational opportunity, or seriously infringe the parents’ opportunity to participate in the IEP formulation process, clearly resulted in a denial of a FAPE.
  8. Because we conclude that the school’s procedural violations of the IDEA resulted in a loss of educational opportunity for student, it is unnecessary for us to address the second prong of FAPE analysis. On the basis of the first prong of the FAP two-part inquiry, which is a procedural analysis, we conclude that the school denied student a FAPE.



FERPA – Family Education Rights Privacy Act of 1994



  1. Applies to any education agency that receives federal funds (even private schools)
  2. Agency must inform parents of rights for ed records:
    1. Inspect and review
    2. Challenge contents (and amend)
    3. Confidentiality


Examples of education records

  1. personally identifiable information”
  2. Discipline reports
  3. Test protocols and answer sheets
  4. Personal notes if shared
  5. Emails only if maintained as part of record


Exceptions to rules – not absolute

  1. Disclosure to school officials
  2. Disclosure to juvenile justice



  1. Gonzaga v. Doe, 536 U.S. 273 (2002) – no private right of action under FERPA
    1. No suit under FERPA, to enforce the non-disclosure
  2. Owasso Indep. School District v. Falvo, 122 S.Ct. 934 (2002)
  3. Classmates may grade each other’s papers; didn’t reach the issue of teacher records



Least Restrictive Environment – LRE


LRE: A child with a disability to the maximum extent appropriate should be educated with non-disabled children and removed only when the nature of the disability does not enable them to achieve educational progress

  1. It’s not staying up with their peers in their classroom, just achieving a benefit


Least to most restrictive environment (parents must consent to placement)

  1. Regular education
  2. Resource room or services (a room with a special education teacher where kids go to for their disability for a certain time period a day)
  3. Special day class
  4. Non-public schools and day treatment programs
  5. Residential treatment center (parents could not consent but if they want their child to attend public school, have to have child there if District says so)
  6. State special schools and specialized programs
  7. Home hospital (student can’t go to school so someone comes in to help educate a child)


Child Find

  1. Locate
  2. Assess
  3. Identify



  1. In primary language
  2. Validated
  3. Trained personnel
  4. Address specific areas of need
  5. No single procedure


Child with a Disability

  1. A child with
    1. Mental retardation
    2. Hearing impairments
    3. Speech or language impairments
    4. Visual impairments
    5. Serious emotional disturbance
    6. Orthopedic impairments
    7. Autism
    8. Traumatic brain
    9. Other health impairments
    10. Specific learning disability
  2. And, who by reason thereof, needs special education and related services


Sacramento Unified v Rachel H

  1. Summary: In this case, the court affirmed a district court decision that required a placement in a full-day mainstream setting, with supplemental services, for a second grader with mental retardation
  2. The District failed to make an adequate effort to educate Rachel in a regular class pursuant to IDEA:
    1. Rachel had benefitted from her regular kindergarten class – that she was motivated to learn and learned by imitation and modeling
    2. Rachel was not disruptive in a regular classroom
    3. The District had overstated the cost of putting Rachel in regular education – that the cost would not be so great that it weighed against placing her in a regular classroom with support services, including a special education consultant and a part-time aide.
  3. In considering whether the District proposed an appropriate placement for Rachel, the Court must examine the following factors:
    1. The educational benefits to Rachel in a regular classroom, supplemented with appropriate aids and services, as compared with the educational benefits of a special education classroom
    2. Is she making academic progress as compared to her IEP goals, not the rest of the regular education classroom
    3. The non-academic benefits of interaction with children who were not disabled
    4. The effect of Rachel’s presence on the teacher and other children in the classroom
  4. The DC next addressed the issue of whether Rachel had a detrimental effect on others in her regular classroom. The court looked at two aspects
    1. Whether there was detriment because the child was disruptive, distracting or unruly
    2. Whether the child would take up so much of the teacher’s time that the other students would suffer from lack of attention
  5. All of this weighed in favor of pacing her in a regular classroom
  6. The cost of mainstreaming Rachel in a regular classroom
    1. No persuasive or credible evidence to support the claim that educating Rachel in a regular classroom with appropriate services would be significantly more expensive than educating her in the District’s proposed setting
  7. By inflating the cost estimates and failing to address the true comparisons, the District did not meet its burden of proving that regular placement would burden the District’s funds or adversely affect the services available to other children. Therefore, the court found that the cost factor did not weigh against mainstreaming Rachel
  8. Rachel received substantial benefits in regular education and all of her IEP goals could be implemented in a regular classroom with some modification to the curriculum and with the assistance of a part-time aide
  9. Discussion
    1. The Statute: The IDEA provides that each state must establish: “Procedures to assure that, to the maximum extent appropriate, children with disabilities are educated with children who are not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily
    2. Factors the courts consider in applying the first prong of this test are
      1. The steps the school district has taken to accommodate the child in a regular classroom
      2. Whether the child will receive an educational benefit from regular education
      3. The child’s overall educational experience in regular education
      4. The effect the disabled child’s presence has on the regular classroom
    3. Courts are to
      1. Compare the benefits the child would receive in special education with those she would receive in regular education
      2. Consider whether the child would be disruptive in the non-segregated setting
      3. Consider the cost of mainstreaming
  10. The District’s Contention on Appeal: The District is also not persuasive on the issue of cost. The District now claims it will lose a lot of money in state special education funding if Rachel is not enrolled in special education classes at least 51% of the day. However, the District has not sought a waiver pursuant to CA Educ Code 56101. This section provides that
    1. Any school district may request a waiver of any provision of the Education Code if the waiver is necessary or beneficial to the student’s IEP, and
    2. The Board may grant the waiver when failure to do so would hinder compliance with federal mandate for a free appropriate education for children with disabilities.


Chula Vista School District v Student

  1. Whether IEP constituted FAPE
  2. To determine whether a special education student could be satisfactorily educated in a regular education environment, the Ninth Circuit Court of Appeals has balanced the following factors:
    1. the educational benefits of placement full-time in a regular class”;
    2. the non-academic benefits of such placement”;
    3. the effect [the student] had on the teacher and children in the regular class”
    4. Disruptiveness of student
    5. How much time the teacher has to spend on this one particular child
    6. the costs of mainstreaming [the student].”
  3. The dispute in this case concerns what is the least restrictive environment for Student. For the 2007-2008 school year, District offered to place Student in the mild to moderate special day class for students in kindergarten through second grade at Liberty.
  4. District asserts this is the least restrictive environment because it will afford greater educational benefit than in a regular education class.
  5. Student takes the position that the least restrictive environment was the regular education first grade class taught and located at his local neighborhood school at Salt Creek.
  6. Under the Ninth Circuit’s decision in Rachel H., the benefits, effects, and costs of placement must be balanced to determine the least restrictive environment.
  7. When a student with a disability is placed in a regular education classroom, the student is expected to achieve at a level commensurate with his or her ability and IEP requirements, with the assistance of appropriate special education and related services. The student is not necessarily expected to keep pace with the non-disabled students in the class or to achieve all the regular education requirements in order to be placed in the next grade level. Rather, the student with a disability is expected to move on to the next grade level upon achieving success in the classroom, as measured against his or her own IEP.
  8. In balancing the factors above, the evidence showed that Student would likely derive the same benefit from attending the regular education first grade class as attending the SDC.
  9. However, even if Student could receive more academic benefit from the smaller group settings and the more intense attention from the adults in the K-2 SDC, the balance tips in favor of the regular education setting when considering the non-academic benefits and the lack of adverse impact on the classroom teacher and other students. There is little doubt Student would receive more substantial non-academic benefit from the regular education setting than the K-2 SDC in view of the benefits of such inclusion. Typically developing peers would provide language and social skill models for Student throughout the entire school day. Moreover, the benefits received would be in a critical area of need for Student due to his expressive and receptive language deficits. Student’s ability and willingness to imitate others, coupled with his positive social skills, are good predictors he would benefit from such placement.
  10. The academic and non-academic benefits that Student gains from his regular education classroom meet the educational benefit standard established by the Supreme Court. In view of Congress’s stated preference for educating children with disabilities in regular classrooms with their peers, the Liberty K-2 SDC for mild to moderate disabilities offered by District is not the least restrictive environment in which to educate Student.



Early Childhood Programs and Part C of IDEA


Early Intervention: Legal Framework

  1. Federal Laws
    1. IDEA, Part C (20 U.S.C. § 1431 et seq.)
    2. Federal Regulations (34 C.F.R. part 303.)
  2. California State Laws
    1. California Early Intervention Services Act (Cal. Gov’t Code § 95000 et seq.)
    2. California Code of Regulations (Title 17, CA Code of Regulations)
    3. The Lanterman Act (WIC § 4400 et seq.)


Section 504

  1. Section 504 applies to children as young as three years old. (34 C.F.R. part 104.3(l)(2).)
  2. Section 504 applies to preschoolers both within public preschools and private preschools which receive any type of federal financial assistance.


Part C System

  1. Congress directed States to develop a “statewide, comprehensive, coordinated, multidisciplinary, interagency system that provides early intervention services for infants and toddlers with disabilities and their families . . . “
  2. In California that is the Department of Developmental Services, providing services through Regional Centers for the Developmentally Disabled.



  1. Services for children age birth to three years old who have a disability are covered by Part C of the IDEA
    1. Anyone can refer an infant or toddler for Early Intervention services, including parents, doctors, social workers, neighbors, foster parents, daycare providers and preschool teachers.


Referral Timeline

  1. Upon a referral for Early Intervention Services, a child must be evaluated, eligibility determined, and as IFSP developed within 45 days


Part C Services

  1. Individualized Family Service Plan (IFSP)
    1. IFSP services are for the child and the family.
    2. An IFSP “shall focus upon the infant and his or her family and shall include home visits, group services, and family involvement activities.” (Cal. Educ. Code § 56426.)
    3. IFSPs must include written “outcomes.” (17 C.C.R. § 52102.)
    4. IFSP are reviewed every 6 months, or more often if requested. (17 C.C.R. § 52102.)
  2. Early Intervention services designed to help families meet the needs of infants and toddler
    1. Early Intervention services must be written in the IFSP document, including the frequency and duration of each service. (Cal. Educ. Code § 56426.8.)


IFSP Services

  1. The law allows for a broad range of Early Intervention services, based upon the need of the child. Examples include group programs, home programs, parent supports and training, and related services (Speech, OT, PT, ABA).
  2. Medically based OT and PT may be included as IFSP services. (Cal. Educ. Code § 56426.7)
  3. Contrast with IEPs, which do not include medically necessary services.


Legal Standard

  1. Early Intervention Services must meet the child’s developmental needs and be provided by qualified personnel
  2. Contrast with Part B: There is no right to a Free Appropriate Public Education (“FAPE”) under Part C, for Infants and Toddlers.
  3. No right to “free” services.
  4. Services must be provided in “natural environments.”



  1. Parents (or guardians or foster parents);
  2. Anyone the parent chooses to invite, including other family members, or advocates;
  3. Service Coordinator;
  4. Persons who conducted assessments or evaluations of child that are to be reviewed at the meeting;
  5. Persons providing services to the child, as appropriate. (17 CCR § 52104.)


The Document

  1. An IFSP must include
    1. A statement of the family’s resources, priorities, and concerns relating to the development of the child;
    2. The child’s present levels of development;
    3. The developmental outcomes expected for the child, including the timelines and procedures for determining the child’s progress toward meeting those outcomes;
    4. The outcomes for the family;
    5. Statements of the specific services required by the child to meet the expected outcomes, including the frequency, intensity, method, and location.


Transition: 2 -6 Meeting

  1. When a child is 2 years 6 months old the IFSP team must conduct an IFSP review.
    1. This is a good time for the team to begin discussing the transition process. Since the law does not require any “transition steps” at this stage it is up to the parents, caseworker, or service provider to initiate this conversation.
  2. When a child is 2 years 9 months old the IFSP team must conduct a Transition Meeting.
    1. A School District representative must be invited, but their participation is not mandatory.



Related Services


Irving Independent School District v Tatro

  1. Summary: The Court ruled that the exception to covered related services for medical services does not reach the service of clean, intermittent catheterization (CIC) for a child who cannot urinate normally (so school must provide for service since it doesn’t have to be done by a doctor).
  2. Two prong test:
    1. Is it a supportive service required to assist a handicapped child to benefit from special education?
    2. Is it excluded from this definition as a medical service serviing purposes other than diagnosis or evaluation?
  3. SC says if it has to be performed by a physician, it is a medical service and is not covered under IDEA, but if it is not performed by a Dr., then District is required to provide it
  4. SC just really wanted to have these services provided since IDEA’s goal is to open the door to special ed students, so made interesting legal argument based on “related services” language to get these services included
  5. Without having CIC services available during the school day, Amber cannot attend school and thereby “benefit from special education.” CIC services therefore fall squarely within the definition of a “supportive service.”
  6. The obligation to provide services that relate to both the health and educational needs of handicapped students, we note several limitations:
    1. First, to be entitled to related services, a child must be handicapped so as to require special education. In the absence of a handicap that requires special education, the needs for what otherwise might qualify as a related service does not create an obligation under the Act.
    2. Second, only those service necessary to aid a handicapped child to benefit from special education must first be provided, regardless how easily a school nurse or layperson could furnish them
    3. Third, the regulations state that school nursing services must be provided only if they can be performed by a nurse or other qualified person, not if they must be performed by a physician. It bears mentioning that here not even the services of a nurse are required; a layperson with minimal training is qualified to provided CIC.


Cedar Rapids Community School District v Garret F.

  1. Summary: This case established that extensive services to enable a child with quadriplegia who uses a ventilator are related services that must be provided under the federal special education law. Rather than excluded medical services.
  2. While more extensive, the in-school services Garret needs are no more “medical” than was the care sought in Tatro.
  3. District tries to argue for a four-prong test:
    1. Whether the care is continuous or intermittent
    2. Whether existing school health personnel can provide the service
    3. The cost of the service
    4. The potential consequences if the service is not properly performed (what is the liability?)
  4. District also tries to apply an undue burden test, based on 504, but SC doesn’t even address Section 504 since they resolve that District must provide services based on IDEA.
  5. The District may have legitimate financial concerns, but our role in this dispute is to interpret existing law. Defining “related services” in a manner that accommodates the cost concerns Congress may have had, is altogether different from using cost itself as the definition. Given that 140(a)(17) does not employ cost in its definition of related services or excluded medical services, accepting the District’s cost-based standard as the sole test for determining the scope of the provision would require us to engage in judicial lawmaking without any guidance from Congress. It would also create some tension with the purposes of the IDEA. The statute may not require public schools to maximize the potential of disable students commensurate with the opportunities provided to other children, and the potential financial burdens imposed on participating State may be relevant to arriving at a sensible construction of the IDEA. But Congress intended “to open the door of public education” to all qualified children and “required participating States to educate handicapped children with non-handicapped children whenever possible.



Due Process Hearings


Shaffer v Weast

  1. Held: The SC ruled that in due process hearings assessing the appropriateness of an IEP, the burden of persuasion falls on the party seeking relief. In the typical case, that will be the parent.
  2. Because IDEA is silent on the allocation of the burden of persuasion, this Court begins with the ordinary default rule that plaintiffs bear the burden regarding the essential aspects of their claims. Absent some reason to believe that Congress intended otherwise, the Court will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief.
  3. Petitioners’ arguments for departing from the ordinary default rule are rejected. Petitioners’ assertion that putting the burden of persuasion on school districts will help ensure that children receive a free appropriate public education is unavailing. Assigning the burden to schools might encourage them to put more resources into preparing IEPs and presenting their evidence, but IDEA is silent about whether marginal dollars should be allocated to litigation and administrative expenditures or to educational services. There is reason to believe that a great deal is already spent on IDEA administration, and Congress has repeatedly amended the Act to reduce its administrative and litigation-related costs. The Act also does not support petitioners’ conclusion, in effect, that every IEP should be assumed to be invalid until the school district demonstrates that it is not.
  4. Petitioners’ most plausible argument–that ordinary fairness requires that a litigant not have the burden of establishing facts peculiarly within the knowledge of his adversary, United States v. New York –fails because IDEA gives parents a number of procedural protections that ensure that they are not left without a realistic chance to access evidence or without an expert to match the government.


Burlington School Committee v Dept of Education

  1. Held: The SC determined that the federal special education law permitted courts, and by implication, hearing officers, to provide retrospective relief in the form of tuition reimbursement.
  2. The grant of authority to a reviewing court under § 1415(e)(2) includes the power to order school authorities to reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act. The ordinary meaning of the language in § 1415(e)(2) directing the court to “grant such relief as [it] determines is appropriate” confers broad discretion on the court. To deny such reimbursement would mean that the child’s right to a free appropriate public education, the parents’ right to participate fully in developing a proper IEP, and all of the procedural safeguards of the Act would be less than complete.
  3. A parental violation of § 1415(e)(3) by changing the “then current educational placement” of their child during the pendency of proceedings to review a challenged proposed IEP does not constitute a waiver of the parents’ right to reimbursement for expenses of the private placement. Otherwise, the parents would be forced to leave the child in what may turn out to be an inappropriate educational placement or to obtain the appropriate placement only by sacrificing any claim for reimbursement. But if the courts ultimately determine that the proposed IEP was appropriate, the parents would be barred from obtaining reimbursement for any interim period in which their child’s placement violated § 1415(e)(3).


Arlington Central School District v Murphy

  1. Held: IDEA does not authorize the payment of the experts’ fees of the prevailing parents
  2. Reasoning: The ability to award attorneys’ fees does not include the ability to award experts’ fees. “Costs,” the Court wrote, is a term of art that generally does not include either type of fees. To add attorney’s fees to costs is exceptional under American law, which is why it was written into the statute. That change of the court’s power does not affect its power over experts’ fees.



Independent Educational Evaluations & Assessments


IEE Defined

  1. Federal Law: IEE means an evaluation conducted by a qualified examiner who is not employed by the school district.
  2. CA Law: Referenced as independent educational assessment (“IEA”).
  3. Bottom line: “Independent” means not an employee of the school district, SELPA, or a consultant to the District.


Reasons to obtain an IEE

  1. Address unanswered questions, following the District’s assessment.
  2. Where the assessment requires an observation, an IEE may provide valuable information concerning the effectiveness of the educational program and implementation of the IEP.
  3. Level the playing field, given the “natural advantage” that school districts have in information and expertise. (Schaffer v. Weast)


When parents have a right to an IEE at public expense

  1. Must be in disagreement with an assessment conducted by the district.
  2. When districts fail to assess in all areas related to the suspected disability.
  3. When school districts conduct flawed assessments.
  4. As an equitable remedy.


Criteria for an IEE

  1. Must be the same as that used by the school district.
  2. A district must provide information about the agency criteria for IEEs upon a parent’s request for an IEE.


Selection of the Evaluator

  1. Parent selects the evaluator.
  2. Policies generally inconsistent with a parent’s right to an IEE:
  3. Prohibiting an IEE evaluator’s association with private schools; history of acting as an expert witness against public schools.
  4. Requiring an evaluator to have recent experience in public schools.
  5. A district may not restrict a parent from selecting an evaluator not on the district’s published list of approved assessors, unless the list is exhaustive.


Cost & Location of IEE

  1. A district may establish reasonable cost criteria.
  2. A district must provide advance funding for an IEE if, without the funding, a parent’s right to an IEE is effectively denied.
  3. Parents are not required to utilize their private insurance to fund an IEE.
  4. If an out-of-district location is necessary for the assessment and justified by unique circumstances, a district must fund required travel expenses.


Scope of the IEE

  1. Limit of one IEE for each evaluation conducted by the district.
  2. Types of IEE include:
  3. Assistive technology evaluations
  4. Functional behavior assessments
  5. Assessment of need for ESY services
  6. Oral motor skills and need for APE services
  7. Sensory processing as a component of OT


Points to remember when requesting an IEE

  1. Parents are not required to give notice or express disagreement with the district’s evaluation prior to obtaining an IEE.
  2. Parents need not explain their reasons for disagreement.
  3. Parents are not required to identify specific areas of disagreement with the district’s evaluation (and it is usually advisable not to do so).


District’s Response to an IEE Request

  1. A district has two choices: either initiate a hearing to show that its assessment is appropriate or provide the IEE at public expense.
  2. A district must act without “unnecessary delay.”
  3. What constitutes unreasonable delay?
  4. Three months, according to a Northern CA federal court.
  5. 74 days, CA 2007 administrative hearing decision.
  6. Four weeks, CA 2001 administrative hearing decision.


Common Problems Encountered by Parents Seeking an IEE

  1. District responds to IEE request by proposing an assessment plan.
  2. District entirely ignores your request.
  3. District requests a hearing to establish the appropriateness of its assessment.
  4. District resists allowing the independent evaluator to conduct a classroom observation.



Student Discipline


Manifest Determination IEP (Emergency IEP): still must include parents and must be at a mutually agreed upon time and place

  1. Removals:
    1. For not more than 10 school days when child violates code of student conduct (especially defiance & disruption)
  2. Step 1: Hold an IEP meetings within ten school days
  3. Step 2: IEP Team must consider all relevant info, including IEP, any teacher observations, and info supplied by parents


Questions for Manifest Determination Hearing

  1. Was the conduct caused by, or had a direct and substantial relationship to disability?
  2. Hints
    1. What conduct can be expected?
      1. Build into IEP
    2. Special factors, goals
    3. What is direct?
      1. Nexis
    4. What is substantial?
      1. Aligned with diagnosis?

Questions: was the conduct the direct result of the LEA’s failure to implement the IEP?

  1. Hints
    1. IEP assumes new importance
      1. So if school doesn’t include it in IEP, then you’re SOL
    2. What if school should have recognized the issue in the IEP and it was not included?
  2. Questions: Analysis
    1. If answer to either question is: YES
      1. Then the behavior is a manifestation of the disability BY LAW


Was a manifestation

  1. Cannot expel
  2. Should look to reasons and resolve them

Was not manifestation

  1. May discipline to the same extent as any other student without a disability
  2. Still requires FAPE in new placement


Stay Put – Exceptions

  1. Weapons (1997)
    1. (Dangerous weapon, capable of causing death or serious bodily injury)
  2. Drugs (1997)
  3. Serious bodily injury (2004)


Alternative Placement

  1. 45 day change of placement (if one of three exceptions listed above to stay put applies, then the principal can do a 45 day change of placement just b/c)
  2. Suspensions (can suspend for up to ten days, it’s a change of placement if suspension if over ten days)
  3. Expulsion – two track process
    1. Administrative hearing at district level


Honig v Doe

  1. Held: In a case involving students with serious behavioral problems, the SC refused to read into the federal statute a dangerousness exception to the mandate to education all children with disabilities
  2. No dangerousness exception: Honig Test
    1. For court to remove, district must prove:
      1. Substantially likely to result in injury to self or others
      2. Reasonable efforts made to minimize risk of harm
  3. Caution
    1. Current placement (means last agreed upon IEP – means parent has to sign it to)
    2. Change of placement (occurs after day ten of a suspension or with actual change of placement) (half days do count as half a day, if principal says “come pick up your kid” – considered a suspension, if parent doesn’t come get kid, can call CPS
    3. Interim placement (both parent and district agree but if there is a disagreement, like parent thought it was only for ten days and district says no that was permanent, then be really careful when saying when interim will start and stop and spell out exactly what stay put placement is)
  4. Half day in school could be FAPE b/c some educational benefit is all that’s required.
    1. It’s not just about having kids somewhere, it’s about having them in a normal setting as much as possible so even a half a day in a normal classroom may be considered FAPE
  5. Ct says this isn’t just about funding, not just about a funding statute
  6. Parents said they weren’t apprised of their options and that’s true that the school didn’t inform the parents of their procedural safeguards when there were assessments, IEPs, change in placements – reauthorization made this very clear and schools are now very good about complying
  7. Reasoning: The “stay-put” provision prohibits state or local school authorities from unilaterally excluding disabled children from the classroom for dangerous or disruptive conduct growing out of their disabilities during the pendency of all review proceedings. Section 1415(e)(3) is unequivocal in its mandate that “the child shall remain in the then current educational placement,” and demonstrates a congressional intent to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. This Court will not rewrite the statute to infer a “dangerousness” exception on the basis of obviousness or congressional inadvertence, since, in drafting the statute, Congress devoted close attention to Mills v. Board of Education of District of Columbia, and Pennsylvania Assn. for Retarded Children v. Pennsylvania, thereby establishing that the omission of an emergency exception for dangerous students was intentional.
  8. However, Congress did not leave school administrators powerless to deal with such students, since implementing regulations allow the use of normal, nonplacement-changing procedures, including temporary suspensions for up to 10 schooldays for students posing an immediate threat to others’ safety, while the Act allows for interim placements where parents and school officials are able to agree, and authorizes officials to file a § 1415(e)(2) suit for “appropriate” injunctive relief where such an agreement cannot be reached. In such a suit, § 1415(e)(3) effectively creates a presumption in favor of the child’s current educational placement which school officials can rebut only by showing that maintaining the current placement is substantially likely to result in injury to the student or to others.






  1. Question: Is the IEP team required to hold a manifestation determination each time that a student is removed for more than 10 consecutive days or each time that the public agency determines that a series of removals constitutes a change in placement?
    1. Answer: Yes. 34 CFR § 300.530(e) requires that “within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct” the LEA, the parent, and relevant members of the child’s IEP Team must conduct a manifestation determination (emphasis added). Under 34 CFR § 300.536, a change of placement occurs if the removal is for more than 10 consecutive school days, or if the public agency determines, on a case-by-case basis, that a pattern of removals constitutes a change of placement because the series of removals total more than 10 school days in a school year; the child’s behavior is substantially similar to the behavior that resulted in the previous removals; and because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.
  2. Question: does a school need to conduct a manifestation determination when there is a violation under 34 CFR 300.530(g), which refers to a removal for weapons, drugs, or serious bodily injury?
    1. Yes. Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the LEA, the parent, and relevant members of the child’s IEP Team conduct the manifestation determination. 34 CFR § 300.530(e).
    2. However, when the removal is for weapons, drugs, or serious bodily injury under § 300.530(g), the child may remain in an IAES (i.e., doesn’t get to be in school during that time), as determined by the child’s IEP Team, for not more than 45 school days, regardless of whether the violation was a manifestation of his or her disability.
  3. Question: what disciplinary procedures would apply in the case of a child who has been referred for sped evaluation and is removed for a disciplinary infraction prior to determination of eligibility? (school on notice that they may qualify so if behavior is direct result then still get protection)
    1. Answer: If a child engages in behavior that violates the code of student conduct prior to a determination of his or her eligibility for special education and related services and the public agency is deemed to have knowledge of the child’s disability, the child is entitled to all of the IDEA protections afforded to a child with a disability, unless a specific exception applies. In general, once the student is properly referred for an evaluation under Part B of the IDEA, the public agency would be deemed to have knowledge that the child is a child with a disability for purposes of the IDEA’s disciplinary provisions. However, under 34 CFR § 300.534(c), the LEA is considered not to have knowledge that a child is a child with a disability if the parent has not allowed the evaluation of the child under Part B of the IDEA, the parent has refused services, or if the child is evaluated and determined not to be a child with a disability under Part B of the IDEA. In these instances, the child would be subject to the same disciplinary measures applicable to children without disabilities.


FBA – Post Manifest Determination

If the LEA, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team must either conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child or, if a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior


Prior Written Notice (PWN)

The IDEA requires district to give prior written notice to parents any time they propose or refuse to change the educational placement of a student with a disability


PWN Requirements

The notice required under 34 CFR 300.503 (a) must include:

  1. A description of the action proposed or refused by the agency;
  2. An explanation of why the agency proposes or refuses to take the action;
  3. A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
  4. A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;
  5. Sources for parents to contact to obtain assistance in understanding the provisions of this part;
  6. A description of other options that the IEP Team considered and the reasons why those options were rejected; and
  7. A description of other factors that are relevant to the agency’s proposal or refusal.


Stay Put

A protective mechanism that requires a school district to retain a student in a current placement during the pendency of any dispute relating to the child’s special education program, unless the school district and the parent mutually agree on another placement


Hearing Officer Authority

  1. In making the determination under 34 CFR 300.532 (b)(1), the hearing officer may:
    1. Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of 34 CFR 300.530 or that the child’s behavior was a manifestation of the child’s disability; or
    2. Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.




Behavior Issues under IDEA – Manifest Determination Requirement



  1. BSP (Behavior support plan)
    1. Added to IEP by team
    2. Consideration of strategies, when behavior impedes learning of self or others
    3. Often in conjunction with goals focusing on behavior or social/emotional needs
  2. BIP (Behavior Intervention Plan)
    1. Written document
    2. Developed when behavior problem significantly interferes with implementation of IEP
    3. Facilitated and supervised by IEP team
    4. During development, expanded IEP team includes a behavior intervention case manager (BICM) which documented training in behavior analysis and positive interventions and qualified personnel knowledgeable of student’s health needs
    5. The plan shall include (really should be measurable and easy to do so b/c so specifically tailored to individual student):
      1. Summary of info from FAA
      2. Objective and measurable description of the behavior and replacement positive behaviors
      3. Goals and objectives specific to BIP
      4. Detailed description of behavioral interventions and circumstances
      5. Specific schedules for recording frequency of behaviors and use of interventions
      6. Criteria for fade out or less intense interventions
      7. Behavioral interventions for home, RTC, work or non-educational settings (District just have to identify them in home, not like provide those supports in home)
      8. Specific dates for review
      9. Only implemented and supervised by staff with documented training
      10. Shall be based upon a FAA
      11. Shall be specified in the IEP
      12. Shall be used only in a systematic manner
    6. Evaluation of Effectiveness
      1. Baseline measure of frequency across multiple settings, people, times
      2. Measures of frequency, duration, intensity
      3. Documentation of program implementation
      4. Measures of program effectiveness reviewed by teacher, BICM others at scheduled intervals
      5. If changes needed, additional FAA




FBA – federal law (functional behavioral assessment)

  1. Required when student misconduct is determined to be a manifestation of disability and
    1. Change in placement exceeds 10 school days or
    2. May exceed 10 school days; involuntary change or expulsion
  2. Analyzes the behavior
  3. Looks at the function of the behavior (what is the kid getting out of it?)
  4. Recommendations for services to address behavior
  5. CONSENT: parent consent required
    1. Result in a BIP or BSP:
    2. Leads to recommendations for behavioral intervention
    3. Services and modifications
    4. Designed to address the behavior violation so that it does not recur


FAA – CA state law only (functional analysis assessment)

  1. WHO: must be conducted (or supervised) by person with documented training in behavior analysis with emphasis on positive behavioral interventions
  2. HOW: sources of information
    1. Direct observation
    2. Interviews with significant individuals
    3. Review of available data
  3. RESULTS in a BIP
  4. WHEN: Other approaches have been ineffective
  5. CONSENT: Parent consent required
  6. FAA Procedures – required


FAA Report

  1. Must include
    1. Nature and severity of the targeted behaviors in objective, measurable terms
    2. Description of targeted behaviors that includes baseline data and an analysis of the antecedents and consequences that maintain the targeted behavior, and a functional analysis of the behavior, across all appropriate settings in which it occurs
    3. Description of the rate of alternative behaviors, their antecedents and consequences
    4. Recommendations for consideration by the IEP Team (may include proposed plan)


Positive Response Options

  1. Shall include, but are not limited to:
    1. Behavior is ignored, but not the individual
    2. Individual is verbally or verbally and physically redirected to an activity
    3. Individual is provided with feedback
    4. Message of behavior is acknowledged (reflection)
    5. Brief, physical prompt to interpret or prevent aggression, self-abuse, or property destruction


Emergency Interventions

  1. May only be used to control unpredictable, spontaneous behavior which poses clear and present danger of serious physical harm to the individual or others, AND
  2. Which cannot be immediately prevented by a response less restrictive than the temporary application of a technique used to contain the behavior
  3. My NOT include:
    1. Locked seclusion (except licensed facility or state law permits)
    2. Use of device or material that immobilizes all four extremities (prone) except as an Emergency Intervention by staff trained in the procedures
    3. Amount of force that exceeds reasonable and necessary under the circumstances


BER: Behavior Emergency Report

  1. Emergency Intervention = Parent shall be notified within one school day “if appropriate”
  2. Report shall be maintained in file and include
    1. Name and age of individual (student)
    2. Setting and location of incident
    3. Name of staff or other persons involved
    4. Description of the incident and emergency intervention used, and whether there is a systematic BIP
    5. Details of any injured sustained by individual or others, included staff
  3. Must be immediately forwarded to, and reviewed by, a designated responsible administrator
  4. If a BIP is not in place, within two days schedule IEP team meeting to be determined if there is a need for an FAA and an interim BIP. If not, a district must document this in IEP notes
  5. If BIP is in place, see if behavior is new of it intervention in BIP is not effective – refer to IEP team to review BIP





Burlington School Committee v Dept of Education

  1. Ct assessing when parents can get remedies and when:
    1. Rowley: some educational benefit that is meaningful
    2. So, this ct says no right to reimburse parents if school has provide some education benefit that is meaningful
      1. Parent doesn’t have a right to a remedy if the IEP offers some benefit
        1. Argument will be that education was offered but it wasn’t enough
        2. Parents didn’t like IEP that was proposed. Hard to prove that something proposed doesn’t meet Rowley standard unless there’s past evidence (like didn’t offer any more services even though student not improving)
  2. Ct uses Burlington standard (what ct looks at to determine whether parent is entitled to reimbursement):
    1. Was the IEP appropriate
    2. Past IEP
      1. Moving forward to be reasonably calculated to achieve educational benefit
      2. If no, was parent’s action appropriate, like with what the parents do – did that constitute FAPE
      3. If yes, then no argument
  3. Ct thinks its right to reimburse parents b/c schools are entitled to FAPE and if the school screws up, parents are entitled to be reimbursed for their not-free education

  4. If no right to reimbursement, just have to work through process, well that could take three or four years and then child may not even be in school anymore
  5. School doesn’t look at the neurological issues the child had that the parents brought forward
  6. During pendency of all legal proceedings, child shall stay put
    1. District argues that stay put applies so keep him at place parents don’t agree with
    2. Ct says, no that’s only for the parents, parents can remove and then seek reimbursement
      1. Parents not really entitled to interest
  7. Held: The SC determined that the federal special education law permitted courts, and by implication, hearing officers, to provide retrospective relief in the form of tuition reimbursement.
  8. The grant of authority to a reviewing court under § 1415(e)(2) includes the power to order school authorities to reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act. The ordinary meaning of the language in § 1415(e)(2) directing the court to “grant such relief as [it] determines is appropriate” confers broad discretion on the court. To deny such reimbursement would mean that the child’s right to a free appropriate public education, the parents’ right to participate fully in developing a proper IEP, and all of the procedural safeguards of the Act would be less than complete.
  9. A parental violation of § 1415(e)(3) by changing the “then current educational placement” of their child during the pendency of proceedings to review a challenged proposed IEP does not constitute a waiver of the parents’ right to reimbursement for expenses of the private placement. Otherwise, the parents would be forced to leave the child in what may turn out to be an inappropriate educational placement or to obtain the appropriate placement only by sacrificing any claim for reimbursement. But if the courts ultimately determine that the proposed IEP was appropriate, the parents would be barred from obtaining reimbursement for any interim period in which their child’s placement violated § 1415(e)(3).


Florence County v Carter

  1. Held: Here, the court elaborated on Burlington’s approval of tuition reimbursement as a remedy, and further held that the absence of the private school from the state list of approved placements did not rule out reimbursement relief.
  2. Congress meant to include retroactive reimbursement to parents as an available remedy in a proper case.
  3. Section 140(a)(18)(A) requires that the education be “provided at public expense, under public supervision and direction.” Similarly, 1401(a)(18)(D) requires schools to provide an IEP, which must be designed by a representative of the local education agency, and must be established, revised, and reviewed by the agency, 1414(a)(5). These requirements do not make sense in the context of a parental placement. In this case, as in all Burlignton reimbursement cases, the parents’ rejection of the school district’s proposed IEP is the very reason for the parents’ decision to put their child in a private school. In such cases, where the private placement has necessarily been made over the school district’s objection, the private school education will not be under public supervision and direction. Accordingly to read the 1401(a)(18) requirements as applying to parental placements would effectively eliminate the right of unilateral withdrawal recognized in Burlington.
  4. Moreover, IDEA was intended to ensure that children with disabilities receive an education that is both appropriate and free. To read the provisions of 140(a)(18) to bar reimbursement in the circumstances of this case would defeat this statutory purpose.
  5. Parents’ failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement
  6. Public educational authorities who want to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a free appropriate public education in a public setting, or place the child in an appropriate private setting of the State’s choice. This is IDEA’s mandate, and school officials who conform to it need not worry about reimbursement claims.
  7. The DC was free to fashion appropriate relief for Draper regardless of the options offered in the discussion of the administrative law judge. The Act requires appropriate relief, and the only possible interpretation is that the relief is to be appropriate in light of the purpose of the Act. Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. This Circuit has held compensatory education appropriate relief where responsible authorities have failed to provide a handicapped student with an appropriate education as required by the Act.
  8. Under the Act, the relevant question is not whether a student could in theory receive an appropriate education in a public setting but whether he will receive such an education
  9. We do not read the Act as requiring compensatory awards of prospective education to be inferior to awards of reimbursement. The Act does not relegate families who lack the resources to place their children unilaterally in private schools to shouldering the burden of proving that the public school cannot adequately educate their child before those parents can obtain a placement in a private school. The Act instead empowers the DC to use broad discretion to fashion appropriate equitable relief
  10. The DC did not abuse its discretion when it conceived Draper’s misdiagnosis in 1998 and his placement in the restrictive classroom between 1999 and 2003
    1. Draper’s award is not disproportionate to the violation by the school system
    2. Draper’s award is compensatory, not punitive


Winkelman v. Parma City Sch. Dist

  1. Overview: The IDEA’s interlocking statutory provisions were significant. Various provisions, such as 20 U.S.C.S. §§ 1401, 1412, 1414, 1415, accorded parents independent, enforceable rights. The IDEA did not sub silentio or by implication bar parents from seeking to vindicate the rights accorded to them once the time came to file a civil action. “Rights” in 20 U.S.C.S. § 1400(d)(1)(B) referred to those of parents as well as those of the child. The IDEA’s language confirming that parents enjoyed particular procedural and reimbursement-related rights did not resolve whether they were also entitled to enforce IDEA’s other mandates, including the provision of a free appropriate public education to a disabled child. It was difficult to disentangle the procedural and reimbursement-related provisions to find that some rights adhered to both parent and child while others did not. The determination that the IDEA granted parents independent, enforceable rights did not impose any substantive condition or obligation on states they would not otherwise have been required by law to observe
  2. Held:
    1. IDEA grants parents independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free appropriate public education for their child.
      1. IDEA’s text resolves the question whether parents or only children have rights under the Act. Proper interpretation requires considering the entire statutory scheme. IDEA’s goals include “ensur[ing] that all children with disabilities have available to them a free appropriate public education” and “that the rights of children with disabilities and parents of such children are protected,” 20 U.S.C. §§ 1400(d)(1)(A)-(B), and many of its terms mandate or otherwise describe parental involvement. Parents play “a significant role,” Schaffer v. Weast, in the development of each child’s IEP. They are IEP team members and their “concerns” “for enhancing [their child’s] education” must be considered by the team. A State must, moreover, give “any party” who objects to the adequacy of the education provided, the IEP’s construction, or related matter the opportunity “to present a complaint” and engage in an administrative review process that culminates in an “impartial due process hearing, before a hearing officer. “Any party aggrieved by the [hearing officer’s] findings and decision . . . [has] the right to bring a civil action with respect to the complaint.” A court or hearing officer may require a state agency “to reimburse the parents for the cost of [private school] enrollment if . . . the agency had not made a free appropriate public education available to the child.” § 1412(a)(10)(C)(ii). IDEA also governs when and to what extent a court may award attorney’s fees, including an award “to a prevailing party who is the parent of a child with a disability.”
      2. These various provisions accord parents independent, enforceable rights. Parents have enforceable rights at the administrative stage, and it would be inconsistent with the statutory scheme to bar them from continuing to assert those rights in federal court at the adjudication stage.
  3. Respondent argues that parental involvement is contemplated only to the extent parents represent their child’s interests, but this view is foreclosed by the Act’s provisions. The grammatical structure of IDEA’s purpose of protecting “the rights of children with disabilities and parents of such children,” § 1400(d)(1)(B), would make no sense unless “rights” refers to the parents’ rights as well as the child’s. Even if this Court were inclined to ignore the Act’s plain text and adopt respondent’s countertextual reading, the Court disagrees that the sole purpose driving IDEA’s involvement of parents is to facilitate vindication of a child’s rights. It is not novel for parents to have a recognized legal interest in their child’s education and upbringing.
  4. The Act’s provisions also contradict the variation on respondent’s argument that parents can be “parties aggrieved” for aspects of the hearing officer’s findings and decision relating to certain procedures and reimbursements, but not “parties aggrieved” with regard to any challenge not implicating those limited concerns. The IEP proceedings entitle parents to participate not only in the implementation of IDEA’s procedures but also in the substantive formulation of their child’s educational program. The Act also allows expansive challenge by parents of “any matter” related to the proceedings and requires that administrative resolution be based on whether the child “received a free appropriate public education,” § 1415(f)(3)(E), with judicial review to follow. The text and structure of IDEA create in parents an independent stake not only in the procedures and costs implicated by the process but also in the substantive decision to be made. Incongruous results would follow, moreover, were the Court to accept the proposition that parents’ IDEA rights are limited to certain nonsubstantive matters. It is difficult to disentangle the Act’s procedural and reimbursement-related rights from its substantive ones, and attempting to do so would impose upon parties a confusing and onerous legal regime, one worsened by the absence of any express guidance in IDEA concerning how a court might differentiate between these matters. This bifurcated regime would also leave some parents without any legal remedy.
  5. Respondent misplaces its reliance on Arlington Central School Dist. Bd. of Ed. v. Murphy, when it contends that because IDEA was passed pursuant to the Spending Clause, it must provide clear notice before it can be interpreted to provide independent rights to parents. Arlington held that IDEA had not furnished clear notice before requiring States to reimburse experts’ fees to prevailing parties in IDEA actions. However, this case does not invoke Arlington’s rule, for the determination that IDEA gives parents independent, enforceable rights does not impose any substantive condition or obligation on States that they would not otherwise be required by law to observe. The basic measure of monetary recovery is not expanded by recognizing that some rights repose in both the parent and the child. Increased costs borne by States defending against suits brought by nonlawyers do not suffice to invoke Spending Clause concerns, particularly in light of provisions in IDEA that empower courts to award attorney’s fees to prevailing educational agencies if a parent files an action for an “improper purpose,” § 1415(i)(3)(B)(i)(III).
  6. The Sixth Circuit erred in dismissing the Winkelmans’ appeal for lack of counsel. Because parents enjoy rights under IDEA, they are entitled to prosecute IDEA claims on their own behalf. In light of this holding, the Court need not reach petitioners’ argument concerning whether IDEA entitles parents to litigate their child’s claims pro se.


Forest Grove v T.A.

  1. This case goes forward b/c this is a case where the child doesn’t even have an IEP yet. District argues that they didn’t even have a chance to make the over. Ct says they should have done this sooner, kids been in school for a while
  2. Don’t have to wait for an inadequate offer of FAPE for the parents to have a CoA
  3. Held: The Court ruled that 20 USC 1412(a)(10(C)(ii) does not precedent a court or hearing officer from ordering tuition reimbursement when a child has not previously received special education and related services under the authority of a public agency
  4. This reading of 1412(a)(10(C) is necessary to avoid the conclusion that Congress abrogated sub silent our decision in Burlington and Carter. In those cases, we construed 1415(i)(2)(C)(iii) to authorize reimbursement when a school district fails to provide a FAPE and a child’s private school placement is appropriate, without regard to the child’s prior receipt of services. It would take more than Congress’ failure to comment on the category of cases in which a child has not previously received special education services for us to conclude that the Amendments substantially superseded our decision and in large part replaced 1415(i)(2)(C)(iii). Absent a clearly expressed congressional intention, repeals by implication are not favored. We accordingly adopt the reading of 1412(a)(10(C) that is consistent with those decisions.
  5. IDEA authorizes reimbursement for the cost of private special education services when a school fails to provide a FAPE and the private school placement is appropriate, regardless of whether the child previously received special education or related services through the public school
  6. When a court or hearing officer concludes that a district failed to provide a FAPE and the private placement was suitable, it must consider all relevant factors, including the notice provided by the parents and the school’s opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child’s private education is warranted.


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