Special Education Law School Outline

IDEA (does not have damages remedies; other two do)

Section 504 (1973)

ADA (1990)


Case Review


PARC & MILLS – the seventies

Legal to not allow students with disabilities to attend public schools

Struck down local statutes and regulations that excluded children with disabilities from schools and training programs

Est that children with disabilities were to be afforded access to FAPE

Est that students were to be reevaluated every few years (PARC)

Access for services for students with ADHD, etc (Mills)



Sped services are not an entitlement – not a const right but a statutory right

Fed offered states 40% of expenses if they opted in to adopting statutory laws for sped children

First US Sup Ct Sped case

Sets FAPE standard

Sets FAPE analysis



Defined scope of “related services:”

Two prong test

Supportive services necessary?

Exception as medical service?

If its about access to services, state will always have to provide it

If it is a medical service, the school doesn’t have to provide it BUT

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)



Est parent right to reimbursement in certain situations

Est two prong test

Did the District offer on the IEP constitute FAPE?

If yes, then parents don’t get reimbursed

If no, then question #2: is what the parent chose constitute FAPE? (standard for parent is more did the child make some progress? Lower standard than for the District)



First and only IDEA discipline case for Sup Ct

Removed local school’s unilateral authority to suspend or expel students with an IEP

No “dangerousness exception” under IDEA to not educate these students



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



Second time, defined scope of related services

Cost is not a factor in mandating school to provide services – school has to provide services regardless of cost



BOP (persuasion) is on the party seeking relief, as in other litigation


BOP often critical

Parents right to review education records

Right to an “independent educational evaluation” (but really difficult to actually get in reality)



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



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


Forest Grove

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

Statute v Constitional Right

Const right is an entitlement that can’t be opted out of; a statute can be repealed and is right

Statute v Regulation

Regulation is not really a law. Bureaucrats are the ones making the decision for a regulation. Under IDEA, we have the Code for the statute, and the regulations fall under the code of regulations


***To meet FAPE, must include: Public money, state standards, appropriate placement in a school, conform with IEP***

Special education: specially designed instruction, at no cost to parents, to meet unique needs of child

Related services: supportive services to benefit child

Ct Inquiry

Has LEA complied with procedures?

Is IEP reasonably calculated to achieve educational benefit?


IDEA (Improvement) Act 2004



Individuals with Disabilities Education (Improvement) Act




Child with a Disability


Who by reason thereof,


Special education and


Related Services

Child with a Disability
20 U.S.C. § 1401(3)(A)(i), 34 C.F.R. §300.8(a)(1)

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

Specially designed instruction

At no cost to parents

To meet unique needs of child

Related Services

Related Services


Developmental services

Corrective services

Other supportive services

As may be required

To assist a child with a disability

to benefit from special education





Question: HOW MUCH?

Answer: FAPE J



FAPE: Free

At public expense

Under public supervision and direction

Without charge


FAPE: Appropriate


Rowley (+ NCLB)

Reasonably Calculated to Achieve Educational Benefit

Some . . . More than trivial . . . meaningful


FAPE: Public




FAPE: Education

Instruction and Services


Social Emotional



Instruction & Services

At public expense

Under public supervision

Meet the state’s educational standards

Comport with the IEP


FAPE Inquiry

Two prongs



Hearing Decisions Standard
20 USC §1415 (f)(3)(E); 34 CFR §300.513(a)

Shall be made on

Substantive Grounds



Procedural Issues

Procedural violations

Rose to the Level of a

Denial of FAPE

Because they:

I. Impeded the child’s right to FAPE


II. Significantly impeded the parents opportunity to participate in the decision-making process


III. Caused a Deprivation


Educational Benefits


Substantive Issues

Result in Denial of FAPE when the LEA:

I. Does Not Address Student’s

Unique Needs

II. When the IEP

Is Not Calculated to Provide

Some Education Benefit

III. When the Instruction and Services


Do Not Comport with the IEP

IV. When Placement is not in the

Least Restrictive Environment (LRE)



To the Maximum Extent Possible

Educated with Non-Disabled Peers


Removal from Regular Education

ONLY when . . .


Nature or Severity is such that

Education in Regular Education

Cannot be achieved satisfactorily


Use of Supplementary Aids & Services


9th Circuit Test


Educational benefits of regular ed.

Non-academic benefits (social, etc.)

Effect on teacher and other students

Costs of mainstreaming


RTI (response to intervention)

Basic Floor of Opportunity

Access to specialized instruction and related services that allow student to benefit

Individually designed to equal some meaningful educational benefit  

Identify student needs in the education environment

·         Disability characteristics

·         Functioning level

Least Restrictive Environment

District Satisfies FAPE by

o   Personalized instruction

o   Sufficient support services (this is where failure occurs)

o   Student to benefit educationally

·         Evidence StandardPreponderance of the evidence

·         Fape Inquiry –   2 prong inquiry by courts:

§ Adequate compliance with procedures

§ Substantive Issues

·         Level of Access – 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.

There’s NO Constitutional right to an education, if it’s provided – it must be without regard to race, religion, disability, etc.

·         Eligibility

o   Child with a disability

o   Who by reason thereof needs special education and related services

§ Includes: Mental retardation, hearing impairments, speech or language impairments, visual impairments, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, specific learning disabilities, deaf-blindness, multiple disabilities.

·         Disability Categories – not as important as other items (needs, etc)

·         Needs –The most important thing to get correct

·         Special Education Specially designed instruction at no cost to parents to meet the needs of the child

·         Related ServicesTransportation, Developmental services, Corrective Services, & Other support services, as may be required to assist a child with a disability to benefit from special education.

·         Benefit The emphasis is benefit, the question is how much? Answer: enough benefit to have FAPE

·         Fape

o   Free: at public expense, under public supervision and direction without charge

o   Appropriate: according to the Rowley standard + No Child Left Behind. Reasonably calculated to achieve educational benefit (some, more than trivial, meaningful)

o   Public: means it must occur in the least restrictive environment

o   Education: Instruction & services: Academic & Social, Emotional

·         Instruction and Services

o   Under public supervision/ at public expense

o   Must meet states education standards

o   Must Comport with the IEP

·         LRETo the maximum extent possible educated with non-disabled peers.

§  Removal from regular education ONLY when…nature or severity is such that education in regular education cannot be achieved satisfactorily even with use of supplementary aids and services.

o   LRE9th circuit Test- factors

§ educational benefits of regular education

§ non-academic benefits (social, etc.)

§ effect on teacher and other students

§ costs of mainstreaming

·         Denial of Fape (Prove)Shall be based on substantive issues, unless

o   Procedural errors significantly impede right to FAPE because they:

§ Significantly impeded the parents opportunity to participate in decision making process, OR

§ Caused a deprivation of educational benefit

§ Substantive Issues: Result in a denial of FAPE when the LEA

o   Does not address student’s unique needs

o   When the IEP is not calculated to provide some educational benefit

o   When instruction and services do not comport with the IEP

o   When placement is not the least restrictive environment.

IEP must include:

statement of present levels of need (academics, social, emotional, behavioral, etc)

annual goals

specific educational services to be provided – must be specific; whose going to do it, when, where

extent to which child should be allowed to participate in gen ed

Projected date for initiation and anticipated duration of such services

Appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved (measurable & meaningful statement of goals)

Procedural safeguards for parents with IEP:


Opportunity for a due process hearing. Must administrative remedies before you can go to a civil trial

If District violates IDEA, theoretically, the federal gov should pull federal funding, but that never happens. Districts know nothing will happen on the federal level b/c it makes no sense – also safeguard b/c fed promised 40% of funding to District but has only given at most 18%


Board of Education v. Rowley:emphasis was on procedural, rather than substantive rights. Say if the procedural rules are followed, the requirements of IDEA follow naturally. But substantive is also really important when they talk about intent

Rowley was a high functioning deaf student. Parents also deaf. Parents wanted an interpreter, however Amy showed progress without the help of an interpreter so school was not required to provide this services because they are not required to maximize the potential.

Issue: (1) What is meant by the Act’s requirement of FAPE?; (2) What is the role of state and federal courts in exercising the review of the courts?

Held:  Law requires appropriate education, w/some educational benefit, measurable & meaningful. (Does not require school district to maximize benefit). Need personalized services with enough support to benefit to meet FAPE.

LRE was met

Still received technology to assist

Had a tutor

Basic floor of opportunity: SC looked at grades and advancement from grade to grade(kind of ridiculous since she’s just in kindergarten)

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.

Mainstreaming preference: LRE

1. The Act’s requirement of a “free appropriate public education” is satisfied when the State provides personalized instruction with sufficient support services to permit the handicapped child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate grade levels used in the State’s regular education, and must comport with the child’s IEP, as formulated in accordance with the Act’s requirements. If the child is being educated in regular classrooms, as here, the IEP should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.

2. In suits brought under the Act’s judicial review provisions, a court must first determine whether the State has complied with the statutory procedures, and must then determine whether the individualized program developed through such procedures is reasonably calculated to enable the child to receive educational benefits. If these requirements are met, the State has complied with the obligations imposed by Congress, and the courts can require no more.


J.D. v Pawlet School District

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.

Issue: IDEA eligibility for a behaviorally and emotionally disturbed child who is academically gifted?

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

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

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.

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.

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

Issue: parents entitled to refund for IEE, cost of residential facility, attny’s fees? Yes for all

“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.”

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

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

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)

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

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 initiative a request for an initial evaluation to determine if the child is a child with a disability


Hood v Encinitas Union School District

Issue: IDEA Eligible? No.

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”. 

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.  Every eligibility determination is a three-pronged decision – whether the student meets the state’s disability criteria, whether the disability is adversely affecting the student’s education, and whether, as a result, the student needs special education services.  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.

Dicta: discrepancy, performance






Referral for SPED

WHEN: at time of suspected disability


JUSTIFICATIONS: reasons why assessment should be done. If District refuses parents’ request for assessment, the school must not only say no, but give prior written notice (why, when, etc)



Parent Approval




WHO: anyone who falls under definition of parent (including foster parents, relatives assuming role of parent, etc)

WHEN: throughout whole process


Waivers: can’t waive initial assessment but can waive services




15 days after parent request for assessment for school to give written request for assessment to parents

15 days for parents to review assessment and sign or deny (but parents can take longer)

60 days for District to do assessment and hold IEP meeting


IN PRIMARY LANGUAGE (or mode of communication – student functioning using English in school, can do assessment in English even if primary language is Spanish, etc)




OBSERVATION (across all settings; i.e., classroom, playground, bus, etc)

NO SINGLE PROCEDURE (can’t just use one measure, like state tests, to assess)



JUSTIFICATION for the decision




IEE – Independent Educational Evaluation

When to request – when District has completed assessment and parents’ disagree

District’s duty – say fine or no and give prior written notice and to why they say no

Criteria for evaluation (assessment)

Private Assessments – parents come in with assessment or goes to their own Dr, etc


District Assessments (Evaluations)

IEE is different from a private assessment

District’s Duty – if parent provides private assessment, the District must consider it (should have meeting and put it in the notes so that they can prove they considered it)


Section 504 – no otherwise qualified individual with a disability shall, solely by reason of his disability, be excluded from the participation in be denied the benefits of, or be subjected to discrimination in, be denied the benefits of or 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

Is this an essential requirement for the activity/program?

If yes, then use reasonableness of it

Financial or administrative burden?

Whether the change would fundamentally alter the nature of the activity

If no,

Is the child otherwise qualified (somehow make if so that he is deemed to make it)?

If yes to the previous then, if reasonable accommodations would enable him to meet requirement?


Pottgen v Missouri State HS

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.”

MSHSAA contends Pottgen is not an otherwise qualified individual under section 504 of the Rehabilitation Act. A Rehabilitation Act analysis requires the court to determine both whether an individual meets all of the essential eligibility requirements and whether reasonable modifications exist. We find that MSHSAA has demonstrated that the age limit is an essential eligibility requirement in a high school interscholastic program

Analysis is two pronged: Unreasonable if:

Is the rule an essential requirement?

If it is, can we make reasonable accommodations?

Difference between 504 & ADA: cost is an issue with ADA

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

Even though Pottgen cannot meet this essential requirement, he is otherwise qualified if reasonable accommodations would enable him to meet the age limit. Reasonable accommodations do not require an institution to lower or to effect substantial modifications of standards to accommodate a handicapped person. 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.

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.

To determine whether Pottgen is a qualified individual under the ADA< we must 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.

Pottgen alleges he can met the eligibility requirement is MSHAA waives it for him. We conclude that this is not a reasonable modification

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.

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.

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

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

In this Circuit, it is settled that a private right of action against recipients of federal financial assistance may be implied from section 504. To establish a prima facie violations of section 504, a P must prove that

He is a handicapped person as defined in the Rehabilitation Act

He is otherwise qualified to participate in the offered activity or to enjoy its benefits

He is being excluded from such participation or enjoyment solely by reason of his handicap; and

The program denying the P participation receives federal financial assistance

Once a prima facie violation of section 504 has been established, the D must present evidence to rebut the inference of illegality.

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

The Rothschilds are otherwise qualified for the parent-oriented activities incident to their children’s education that are offered by the school

The conclusion is supported by the DOE regulations interpreting the term “otherwise qualified” contained in section 504 – defines “qualified handicapped person” as:

With respect to employment, a handicapped person who, with reasonable accommodation, can person the essential functions of the job in question

With respect to public preschool, elementary, secondary, or adult education services, a handicapped person

Of an age during which nonhandicapped persons are provided such services

Of any age during which it is mandatory under state law to provide such services to handicapped persons, or

To whom a state is required to provide a free appropriate public education under section 612 of the Education of the Handicapped Act; and

With respect to postsecondary and vocational education services, a handicapped person who meets the academic and technical standards requisite to admission or participation in the recipient’s education program or activity;

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?

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.

As “otherwise qualified handicapped individuals,” the Rothschilds are entitled to “meaningful access to” the activities that the school offers parents. 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.” Accommodations to permit access to handicapped persons should not impose “undue financial and administrative burdens.” Thus, a recipient of federal financial assistance should not be “required to make fundamental or substantial modifications to accommodate the handicapped.” A recipient may, however, be required to make “reasonable” modifications to accommodate an otherwise qualified handicapped individual. “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.

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.



Deal v Hamilton

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. 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. 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. 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.

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

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.

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

OVERVIEW: The district court concluded that the 1997 IDEA amendment superseded the U.S. Supreme Court’s free appropriate public education “educational benefit” standard in Rowley. The court found that there was no plausible way to read the definition of “transition services” as changing the free appropriate public education standard. The vague legislative findings cited by the district court were insufficient for the court to conclude that Congress sought to supersede the standard set forth in Rowley. The district court erred in declaring Rowley superseded. The proper standard to determine whether a disabled child had received a free appropriate public education was the “educational benefit” standard set forth in Rowley. The district court lacked subject matter jurisdiction to consider whether the district committed a procedural violation of the IDEA in regards to transition services because plaintiffs failed to exhaust their claim. The district did not commit a procedural violation of the IDEA in its pre-meeting meeting. Finally, the district did not violate the IDEA by not specifying minutes of instruction in the minor’s individualized educational program.

OUTCOME: The orders were vacated except to the extent that the conclusion that the district committed procedural violations of the IDEA that resulted in the denial of a free appropriate public education was reversed. The matter was remanded to the district court to review the ALJ’s determination that the district provided a free appropriate public education as required by Rowley. The district’s request for a different judge on remand was denied.


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

Parental participation

IEP team: teacher, rep from district, parents, current placement rep

Must be based on the unique needs of the child

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

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 Process

Procedural safeguards

Must give notice when

There is an assessment

There will be an IEP

There is a change in placement


White v Ascension Parish School Bd

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

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)

When an action is brought under IDEA, or the appropriateness of an IEP challenged, our inquiry is two-fold:

Whether the IEP developed through the Act’s procedures is reasonably calculated to enable the child to receive educational benefits (substantive)

Whether the school district has complied with the procedures set forth in the IDEA (procedural)

If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more

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.

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.

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.

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

The court held that the school system may determine the substantive program provided for a child with disabilities where procedures followed were appropriate

Discussion at IEP is very critical – principle promised to provide those services, then didn’t

Districts always have a right to assess, so long as they have never assessed or it has not assessed for 12 months

Michigan has added to the Rowley standard by requiring that an IEP be designed to develop the maximum potential of a child

This court reviews both the procedural and substantive matters under a standard of “modified de novo review.”

We hold that administrative findings in an IDEA case may be set aside only if the evidence before the court is more likely than not to preclude the administrative decision from being justified based on the agency’s presumed educational expertise, a fair estimate of the testimony or both. A court should defer to the administrative findings only when educational expertise is relevant to those findings and the decision is reasonable.

Court rejected all P’s arguments

There was an IEP even though it wasn’t recorded – all IEPs must be recorded

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)

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

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

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

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

The school violated the IDEA’s procedural mandates in its development of the student’s IEP, and thereby denied student’s a FAPE, by not including a representative from CID (the private school) or student’s parents at the June 8 IEP.

We have held that a school district’s failure the include a representative from a private school that a child is currently attending violates the procedural mandates of the IDEA. IDEA requires the persons most knowledgeable about the child to attend the IEP meeting. The school made no attempt to include a representative from CID at the IPE meeting. As a result, the teachers most knowledgeable about student’s special education levels and needs did not attend the meeting, in violation of the IDEA.

34 C.F.R. 300.345(d): “a meeting may be concluded without parent in attendance if the public agency is unable to convince the parents that they should attend.”

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.

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.

We engage in a two-part test to determine whether the district afforded student a FAPE. First, we must determine whether the school complied with the procedures set forth in the IDEA. Second, we must determine whether the IEP developed through the IDEA’s procedures was reasonable calculated to confer educational benefit upon student.

The school’s violation of the IDEA’s procedural mandates resulted in lost educational opportunity for student.

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.

The school’s failure to include the persons most knowledgeable about student’s educational levels and needs at the IEP meeting and its concomitant creation of a defective IEP resulted in lost educational opportunity for students.

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.

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

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)

Regular education

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)

Special day class

Non-public schools and day treatment programs

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)

State special schools and specialized programs

Home hospital (student can’t go to school so someone comes in to help educate a child)


Sacramento Unified v Rachel H

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

The District failed to make an adequate effort to educate Rachel in a regular class pursuant to IDEA:

Rachel had benefitted from her regular kindergarten class – that she was motivated to learn and learned by imitation and modeling

Rachel was not disruptive in a regular classroom

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.

In considering whether the District proposed an appropriate placement for Rachel, the Court must examine the following factors:

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

Is she making academic progress as compared to her IEP goals, not the rest of the regular education classroom

The non-academic benefits of interaction with children who were not disabled

The effect of Rachel’s presence on the teacher and other children in the classroom

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

Whether there was detriment because the child was disruptive, distracting or unruly

Whether the child would take up so much of the teacher’s time that the other students would suffer from lack of attention

All of this weighed in favor of pacing her in a regular classroom

The cost of mainstreaming Rachel in a regular classroom

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

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

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


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

Factors the courts consider in applying the first prong of this test are

The steps the school district has taken to accommodate the child in a regular classroom

Whether the child will receive an educational benefit from regular education

The child’s overall educational experience in regular education

The effect the disabled child’s presence has on the regular classroom

Courts are to

Compare the benefits the child would receive in special education with those she would receive in regular education

Consider whether the child would be disruptive in the non-segregated setting

Consider the cost of mainstreaming

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

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

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

Whether IEP constituted FAPE

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”

Disruptiveness of student

How much time the teacher has to spend on this one particular child

4) “the costs of mainstreaming [the student].”

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.

District asserts this is the least restrictive environment because it will afford greater educational benefit than in a regular education class.

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.

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.

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.

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.

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.

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.

Definition of parent (20 USC 1401 (23) (A-D)):

(A) A natural, adoptive, or foster parent of a child (unless a foster parents is prohibited by State law from services as a parent);

(B) a guardian (but not the State if the child is a ward of the State);

(C) 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;

(D) An individual assigned under either of those sections to be a surrogate parent



After school programs do not have rights to education records

Parent Attorney or Advocate does not have right to request records without parent written consent



Gonzaga v Doe – No suit under FERPA, to enforce the non-disclosure

Owasso School Dist v Falvo – classmates may grade each other’s papers; didn’t reach the issue of teacher records

If it’s something that’s said, it’s not a record

Irving Independent School District v Tatro

Two prong test:

Is a supportive service?

Is it excluded as a medical service?

SC says some health services, like administering medication, etc are already provided at a school, how is this any different?

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

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

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).

A free appropriate education is explicitly defined as “special education and related services.”

Related services are defined as “transportation, and such development, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupation therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluative purposes only) as may be required to assist a handicapped child to benefit from special education, and includes the early identification and assessment of handicapping conditions in children

The issue in this case is whether CIC is a “related service” that petitioner is obliged to provide to Amber. We must answer two questions: first, whether CIC is a “supportive service required to assist a handicapped child to benefit from special education;” and second, whether CIC is excluded from this definition as a “medical service” serving purposes other than diagnosis or evaluation.

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.”

We hold that CIC services in this case qualify as a “supportive service required to assist a handicapped child to benefit from special education.”

Provision of CIC is not a “medical service, which a school is required to provide only for purposes of diagnosis or evaluation.” The regulations define “related services” for handicapped children to include “school health services, which are defined in turn as “services provided by a qualified person,” services are defined as “Services provided by a licensed physician.”

The obligation to provide services that relate to both the health and educational needs of handicapped students, we note several limitations:

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.

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

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.

We conclude that provision of CIC to Amber is not subject to exclusions as a “medical service,” and we affirm the Court of Appeals’ holding that CIC is a “related service” under the Education of Handicapped Act.


Cedar Rapids Community School District v Garret F.

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.

Provide a two-step analysis of the “related services” definition in § 1401(a)(17) — asking first, whether the requested services are included within the phrase “supportive services”; and second, whether the services are excluded as “medical services.”  The Court of Appeals succinctly answered both questions in Garret’s favor. The Court found the first step plainly satisfied, since Garret cannot attend school unless the requested services are available during the school day. As to the second step, the Court reasoned that Tatro “established a bright-line test: the services of a physician (other than for diagnostic and evaluation purposes) are subject to the medical services exclusion, but services that can be provided in the school setting by a nurse or qualified layperson are not.”

As a general matter, services that enable a disabled child to remain in school during the day provide the student with the “meaningful access to education that Congress envisioned. (“Congress sought primarily to make public education available to handicapped children and to make such access meaningful.”)

While more extensive, the in-school services Garret needs are no more “medical” than was the care sought in Tatro.

District tries to argue for a four-prong test:

Whether the care is continuous or intermittent

Whether existing school health personnel can provide the service

The cost of the service

The potential consequences if the service is not properly performed (what is the liability?)

District also tries to apply an undue burden test, based on 504, but SC doesn’t even address Section 504 since they resolve the District must provide services based on IDEA.

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.


Because Tatro cannot be squared with the text of IDEA, the Court should not adhere to it in this case. Even assuming that Tatro was correct in the first instance, the majority’s extension of it is unwarranted and ignores the constitutionally mandated rules of construction applicable to legislation enacted to Congress’ spending power

The primary problem with Tatro, and the majority’s reliance on it today, is that the Court focused on the provider of the services rather than the services themselves.

Congress enacted IDEA to increase the education opportunities available to disabled children, not to provide medical care for them

As such, where Congress decided to require a supportive service – including speech pathology, OT, and audiology – that appears medical in nature, it took care to do so explicitly. Congress specified these services precisely because it recognized that they would otherwise fall under the broad medical services exclusion. Indeed, when it crafted the definition of related services, Congress could have, but chose not to, include nursing services in this list

Tatro was wrongly decided even if the phrase medical services was subject to multiple construction, and therefore, deference to any reasonable Department of Education regulation was appropriate. The Dept of Education has never promulgated regulations defining the scope of IDEA’s “medical services” exclusion

Instead, he regulations actually define only those medical services that are owed to handicapped children. Now, as when Tatro was decided, the regulations require districts to provide services performed by a licensed physician to determine a child’s medically related handicapping condition which resuls in the child’s need for special education and related services.

The Tatro Court did not defer to the regulation itself, but rather relied on an inference drawn from it to speculate about how a regulation might read if the Dept of Education promulgated one. Deference in those circumstances is impermissible. We cannot defer to a regulation that does not exist.

Assuming that Tatro was correctly decided in the first instance, it does not control the outcome of this case. Because IDEA was enacted pursuant to Congress’ spending power, our analysis of the statute in this case is governed by special rules of construction. We have repeatedly emphasized that, when Congress places conditions on the receipt of federal funds, it must do so unambiguously. It follows that we must interpret Spending Clause legislation narrowly, in order to avoid saddling the States with obligations that they did not anticipate.

We have previously recognized that Congress did not intend to impose upon the States a burden of unspecified proportions and weight in enacting IDEA.

Although the majority recognizes the extreme of cost of these services, it nonetheless concludes that the more extensive the nature of those services that respondent needs is irrelevant to the question whether those services fall under the medical services exclusion. This approach disregards the constitutionally mandated principles of construction applicable to Spending Clause legilsation and blindsides unwary States with fiscal obligations that they could not have anticipated.


Shaffer v Weast

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. “Absent some reason to believe that Congress intended otherwise, … we will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief.”

(a) 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. Although the ordinary rule admits of exceptions, decisions that place the entire burden of persuasion on the opposing party at the outset of a proceeding–as petitioners urge the Court to do here–are extremely rare. 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.

(b) 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. 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

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.

1. 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.

2. 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

Held: IDEA does not authorize the payment of the experts’ fees of the prevailing parents

Reasoning: Justice Alito, writing for the majority, ruled that 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.

Furthermore, the Court said that without clear notice to the states, a statute cannot require that a certain fee shall be assessed against the state. In response to the Murphys’ contention that the legislative history suggests that experts’ fees should be included, the Court stated that because the statute’s actual wording is unambiguous, there is no need to consult outside sources. In addition, the fact that the Act authorized a GAO study of the effect of awarding costs does not change the actual wording of the Act, which does not so award them.

Breyer’s dissent: Justice Breyer dissented from the Court’s ruling, and was joined by Justices Stevens and Souter. Stating that the statute is not unambiguous, and relying on the legislative history, Breyer wrote that the term “costs” was intended by Congress to include the cost of hiring expert witnesses. He also wrote that the “Act’s basic purpose” dictates that the award of all costs, including experts’ fees, be allowed. He rejected the application of the “clear notice” rule.

Souter’s dissent: Although he had also joined Justice Breyer’s dissent, Justice Souter dissented separately to write that certain GAO studies authorized by IDEA give weight to Breyer’s arguments and distinguish this case from those the majority cites.

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


For not more than 10 school days when child violates code of student conduct (especially defiance & disruption)

Step 1

Hold an IEP meetings within ten school days

Step 2

IEP Team must consider all relevant info, including IEP, any teacher observations, and info supplied by parents

Questions for Manifest Determination Hearing

Was the conduct caused by, or had a direct and substantial relationship to disability?


What conduct can be expected?

Build into IEP

Special factors, goals

What is direct?


What is substantial?

Aligned with diagnosis?

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


IEP assumes new importance

What to do if school says “no?”

Questions: so if school doesn’t include it in IEP, then you’re SOL


If answer to either question is: YES

Then the behavior is a manifestation of the disability BY LAW

Was a manifestation

Cannot expel

Should look to reasons and resolve them

Was not manifestation

May discipline to the same extent as any other student without a disability

Still requires FAPE in new placement

Stay Put


Weapons (1997)

Dangerous weapon, capable of causing death or serious bodily injury)

Drugs (1997)

Serious bodily injury (2004)

Alternative Placement

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)

Suspensions (can suspend for up to ten days, it’s a change of placement if suspension if over ten days)

Expulsion – two track process

Administrative hearing at district level

Honig v Doe

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

No dangerousness exception: Honig Test

For court to remove, district must prove:

Substantially likely to result in injury to self or others

Reasonable efforts made to minimize risk of harm


Current placement (means last agreed upon IEP – means parent has to sign it to)

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

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)

Half day in school could be FAPE b/c some educational benefit is all that’s required.

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

Ct says this isn’t just about funding, not just about a funding statute

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

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. 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. Here, the District Court properly balanced respondents’ interests under the Act against the state and local school officials’ safety interest, and both lower courts properly construed and applied § 1415(e)(3), except insofar as the Court of Appeals held that a suspension exceeding 10 schooldays does not constitute a prohibited change in placement. The Court of Appeals’ judgment is modified to that extent.


Question: IS the IEP team required to hold a manifestation determination each time that a student is removed for more than 10 consecutive days… (yes)

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? (YES! Still have to hold hearing, but student doesn’t get to be in school during that time)

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)

See slides for rest


BSP (Behavior support plan)

Added to IE by team

Consideration of strategies, when behavior impedes learning of self or others

Often in conjunction with goals focusing on behavior or social/emotional needs

BIP (Behavior Intervention Plan)

Written document

Developed when behavior problem significantly interferes with implementation of IEP

Facilitated and supervised by IEP team

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

The plan shall include – really should be measurable and easy to do so b/c so specifically tailored to individual student

Summary of info from FAA

Objective and measurable description of the behavior and replacement positive behaviors

Goals and objectives specific to BIP

Detailed description of behavioral interventions and circumstances

Specific schedules for recording frequency of behaviors and use of interventions

Criteria for fade out or less intense interventions

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)

Specific dates for review

Only implemented and supervised by staff with documented training

Shall be based upon a FAA

Shall be specified in the IEP

Shall be used only in a systematic manner

Evaluation of Effectiveness

Baseline measure of frequency across multiple settings, people times

Measures of frequency, duration, intensity

Documentation of program implementation

Measures of program effectiveness reviewed by teacher, BICM others at scheduled intervals

If changes needed, additional FAA


FBA – federal law (functional behavioral assessment)

Required when student misconduct is determined to be a manifestation of disability and

Change in placement exceeds 10 school days or

May exceed 10 school days; involuntary change or expulsion

Analyzes the behavior

Looks at the function of the behavior (what is the kid getting out of it?)

Recommendations for services to address behavior

CONSENT: parent consent required

Result in a BIP or BSP:

Leads to recommendations for behavioral intervention

Services and modifications

Designed to address the behavior violation so that it does not recur

FAA – CA state law only (functional analysis assessment)

WHO: must be conducted (or supervised) by person with documented training in behavior analysis with emphasis on positive behavioral interventions

HOW: sources of information

Direct observation

Interviews with significant individuals

Review of available data


WHEN: Other approaches have been ineffective

CONSENT: Parent consent required

FAA Procedures – required

FAA Report

Must include

Nature and severity of the targeted behaviors in objective, measurable terms

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, SEE SLIDES

Description of the rate of alternative behaviors, their antecedents


Positive Response Options


Emergency Interventions


Burlington School Committee v Dept of Education

Ct assessing when parents can get remedies and when

Rowley: some educational benefit that is meaningful

So, this ct says no right to reimburse parents if school has provide some education benefit that is meaningful

Parent doesn’t have a right to a remedy if the IEP offers some benefit

Argument will be that education was offered but it wasn’t enough

Parents didn’t like IEP that parents 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)

Ct uses Burlington standard (what ct looks at to determine whether parent is entitled to reimbursement):

Was the IEP appropriate

Past IEP

Moving forward to be reasonably calculated to achieve educational benefit

If no, was parent’s action appropriate, like with what the parents do – did that constitute FAPE

If yes, then no argument

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

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

School doesn’t look at the neurological issues the child had that the parents brought forward

During pendency of all legal proceedings, child shall stay put

District argues that stay put applies so keep him at place parents don’t agree with

Ct says, no that’s only for the parents, parents can remove and then seek reimbursement

Parents not really entitled to interest

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.

1. 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.

2. 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

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.

– Congress meant to include retroactive reimbursement to parents as an available remedy in a proper case.

Section 140(a)(18)(A) requires the the education be “provided at public expense, under public supervision and direction.” Similarly, 1401(a)(18)(D) requires chools to provide an IEP, which must be designed by a respresentative 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) requiremens as applying to parental placements would effectively eliminate the right of unilateral withdrawal recognized in Burlington.

– Moreovver, 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 circumstnaces of this case would defeat this statutory purpose.

– 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

– 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.

– 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 consideations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. This Circuit has held compensatory education appropriate relief where responsible authroities have failed to provide a handicapped student with an appropriate education as required by the Act.

– Under the Act, the relevant question is not whether a student could in theoy receive an appropriate education in a public setting but whether he will receive such an education

– We do not read the Act as requiring compensatory awards of propspective 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 education 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

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

Draper’s award is not disproportiante to the violation by the school system

Draper’s award is compensatory, not punitive


Winkelman v. Parma City Sch. Dist

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


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.

(a) 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, 546 U.S. 49, 53, 126 S. Ct. 528, 163 L. Ed. 2d 387, in the development of each child’s IEP, see §§ 1412(a)(4), 1414(d). They are IEP team members, § 1414(d)(1)(B), and their “concerns” “for enhancing [their child’s] education” must be considered by the team, § 1414(d)(3)(A)(ii). A State must, moreover, give “any [***912] party” who objects to the adequacy of the education provided, the IEP’s construction, or related matter the opportunity “to present a complaint . . .,” § 1415(b)(6), and engage in an administrative review process that culminates in an “impartial due process hearing,” § 1415(f)(1)(A), 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.” § 1415(i)(2)(A). 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, see § 1415(i)(3)(B), including an award “to a prevailing party who is the parent of a child with a disability,” § 1415(i)(3)(B)(i)(I).

(b) 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.

– 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. Other provisions confirm this view. See, e.g., § 1415(a). 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.

– 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.

(c) 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).

2. 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.

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

Don’t have to wait for an inadequate offer of FAPE for the parents to have a CoA

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

– This reading od 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.

– 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

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.

Dissent (Souter):

– In 1997, Congress amended the DIEA with a number of provisions explicitly addressing the issue of payment for education of children enrolled in private schools without consent of or referral by the public agency 1412(a)(10)(C). These amendments generally prohibit reimbursement if the school district made a FAPE available, 1412(a)(10)(C)(i), and if they are to have any effect, there is no exception except by agreement, 1412(a)(10)(B), or for a student who previously received special education services that were inadequate, 1412(a)(10)(C)(ii). The majority says otherwise and hold that were inadequate, 1412(a)(10(C)(ii) places no limit on reimbursements for private tuition.

– Because any other interpretations would render clause (ii) pointless and clause (iii) either pointless or perverse, 1412(a)(10)(C)(ii) must be read to allow reimbursement only for “parents of a child with a disability, who previously received special education and related services under the authority of a public agency.”

Cases: know the rule and the law and how to apply it.

Won’t use case names or are so amazing that they should be known (Chula Vista OAH decision REVIEW, (Hood) the Encinitas case, Union v Smith

Know the basics of 504 (only several 504 questions) IF you know the sports case fact pattern for that case, you will be fine

Post Rowley decisions – be familiar with the principles behind those cases

District assessment and IEE – be familiar with the differences

District has absolute right to assess. Only way to say no would be if they’ve already done that and its less than 12 months

IEE applies when district has completed assessment and parents disagree and request IEE

District either says sure or has to file for due process

Parents have a right to an IEE and so no answer is not ok

Hearing officer can’t order an IEP placement at any place that’s not an NPS so parents should out it on their remedy

NPS guides IEP, not District, but if something is wrong, the District is still liable

Manifestation Determination Hearing – by tenth day of removal, must have hearing so change of placement would of course be more than ten days. Don’t have to be consecutive days where incidents are substantially similar

It’s like any other IEP meeting with those two extra questions

BIP v. BSP – know federal law, FAA v FBA(?) – how to apply it, what to do. When law requires it to be done

Fed law very general – just results in some behavior plan

IEP – mutually agreed upon time and place, etc is all federal law

Qualify for 504 – assessment with review of records & team gets together to determine what accommodations are appropriate.

Anyone who receives federal funds, 504 applies


Only time you reevaluate is when there is a change of placement

504 is handled much better than the law requires usually

NO stay put under 504

Much loser area of law than IDEA, less protections, etc, always would prefer IEP

Qualify for SPED:

Qualify under one of the criteria

Have a need to services

What constitutes a denial of FAPE?

Procedural violations

Impedes a child’s right to FAPE

Parents couldn’t participate

Program not good


Look at success

So with the timeline for assessment, it only tolls when there are five consecutive school days or more (vacation days for students, even if administrative office is still opened)


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