What Parents Need to Know when Disability Impacts Behavior and Discipline at School

A Brief Overview

  • Students with disabilities are disciplined twice as often as non-disabled peers. Washington is taking actions to remedy the inequities. Read on for examples of the new state rules and where to go for more information.  
  • Schools are required to provide education and support before resorting to discipline. This article includes resources and information to help families ensure that students are receiving the best-practice services they need and that disciplinary actions are non-discriminatory.
  • Chris Reykdal, Superintendent of Public Instruction, says, “We should do what we can to make suspensions and expulsions the last option while ensuring our schools are safe. The numbers are clear: This is an equity issue, and some groups of students are impacted much more than others.”
  • Concern is nationwide. The Center for Civil Rights Remedies in 2018 issued a state-by-state estimate of lost instruction due to discipline for students with disabilities: “Schools once routinely denied students with disabilities access to public education. Federal law makes it clear that such denial is unlawful, yet some schools may still be meting out discipline in a manner that has the same effect.”
  • If the school calls to send a child home, parents can ask whether the student is being suspended. If the school is not taking formal disciplinary action, parents are not required to take a child home. If the action is a formal suspension, specific rules apply. Read on for more detail.

Full Article

Some disabilities make it difficult for students to communicate distress or manage their behavior in ways that schools expect or require from typically developing students. Data clearly show that students with disabilities are disciplined more frequently than their non-disabled peers. By learning about state and federal guidelines, parents can advocate to ensure that students with disabilities are receiving the services they need to successfully access school and that disciplinary actions are non-discriminatory.

Parents can empower themselves by learning the federal framework for special education protections. Students who receive services or accommodations through the Individuals with Disabilities Education Act (IDEA) or through Section 504 of the Rehabilitation Act of 1973 are guaranteed access to a Free Appropriate Public Education (FAPE). Disciplinary actions that deny access to FAPE may be discriminatory. Schools follow specific procedures when they discipline students with special needs to avoid violations of FAPE.

For example, a student with an Individualized Education Program (IEP) cannot be excluded from school because of behavior that results from a disability: Read on for further information about Manifestation Determination Hearings. Also, schools are required to provide education and support before resorting to discipline for children who struggle with behavior because of their impairments.

Some agencies are researching the impacts of exclusionary discipline, such as suspensions and expulsions, on children and their families. Some research shows that trauma and a worsening of mental health are outcomes. Excessive punishments are linked to negative lifelong outcomes, such as reduced graduation rates and more incarcerations. The National Center for Pyramid Model Innovations (challengingbehavior.org) has a webinar about the impact of suspensions on children in early learning.

Unexpected behavior may indicate that a student has a disability and needs services

Federal laws can protect students who haven’t yet been identified as having disabilities. School districts have a duty to evaluate students to determine eligibility for special education if they exhibit behavior that may indicate a disability. Under IDEA, this responsibility is called the Child Find mandate. Suspension, expulsion, isolation or restraint due to unexpected behavior can initiate an evaluation process, and students who qualify for services can retroactively be afforded protections from the IDEA or Section 504.

The Office for Civil Rights within the United States Department of Education in December 2016 issued a two-page Fact Sheet on Restraint and Seclusion that succinctly describes some federal guidelines related to disciplinary action and disability:

“A student’s behavioral challenges, such as those that lead to an emergency situation in which a school believes restraint or seclusion is a justified response could be a sign that the student actually has a disability and needs special education or related aids and services in order to receive FAPE.”

Washington State has new rules for schools

The Office of Superintendent of Public Instruction (OSPI), which oversees all Washington school districts, in July 2018 adopted new state guidelines related to discipline. Priority is placed on positive interventions to avoid disciplinary actions that disrupt learning. A four-page Parent Guide is available from OSPI.

Also available is a Menu of Best Practices and Strategies. Restorative justice, behavioral health support and social skills instruction are on the menu for a more proactive, student-centered approach. The state includes requirements for parent notification and family engagement in the new rules, which are being implemented over two years, 2018-2020.

“The state discipline rules were created four decades ago,” says Chris Reykdal, Superintendent of Public Instruction. “Our students and schools are vastly different today. The new rules provide more clarity and they allow for student, family, and community input in developing local discipline policies.

“While some students do occasionally need discipline, our approach must be different. We should do what we can to make suspensions and expulsions the last option while ensuring our schools are safe. The numbers are clear: This is an equity issue, and some groups of students are impacted much more than others.”

Students with disabilities and students of color are disciplined more frequently

OSPI reports that 3.5 percent of all students were suspended or expelled during the 2016–17 school year. Among students receiving special education services, the percentage was 7.1 percent. For African-American students, the percentage was 7.4 percent. For Latino students, the rate was 4.1 percent. Students of color who also have disabilities are impacted at the highest rates. Seattle’s King 5 News on Oct. 25, 2018, broadcast a news report about the disparities in discipline for students with disabilities.

In 2016, the Washington Legislature passed House Bill 1541 to help close opportunity gaps in learning. OSPI spent two years researching the statutes and guidance. In rewriting the rules that were adopted in July 2018, the agency gathered feedback from families, students, educators, and community members through three public comment periods and eight public hearings.

New state policies are designed to discourage disciplinary actions that take a child out of the learning environment and encourage family engagement and positive behavior supports and other evidence-based practices. OSPI’s one-page introductory handout for parents outlines the new guidance.

According to OSPI, the new rules aim to make policies fair statewide. They require districts to include parents and guardians when updating discipline policies. The overarching goal is to keep children in school and learning and avoid severe or exclusionary disciplinary measures. 

In general, Washington’s new state rules:

Encourage schools to minimize the use of suspensions and expulsions and focus instead on evidence-based, best-practice educational strategies

Prohibit schools from excluding students from school for absences or tardiness

Further limit use of exclusionary discipline (suspension, expulsion) for behaviors that do not present a safety threat

Prohibit the use of expulsion for students in kindergarten through grade four (children in that age range already cannot be excluded from their classroom placements for more than 10 cumulative days per academic term)

Clarify expectations for how school districts must provide students access to educational services during a suspension or expulsion

When are students entitled to a Manifestation Determination Hearing?

In Washington, a student with an identified disability may be suspended for a short period of time if there are safety concerns or if other interventions are failing to control behaviors that cause a significant disruption. However, if a suspension or an accumulation of in- or out-of-school suspensions within a semester or trimester totals 10 days, the school holds a Manifestation Determination Hearing to determine whether the behavior resulted—or “manifested”—from the disability. This hearing is a distinct process for students with IEPS or Section 504 accommodation plans and is separate from any other general education disciplinary hearings or procedures. Removal for more than 10 days is considered a change in placement and could violate the school district’s responsibility to provide the special education student with FAPE.

If a student’s behavior manifested from disability, the school and parents meet to discuss program or placement changes likely to help. A Manifestation Determination hearing can also initiate an evaluation process for students not yet identified as needing special education services or disability-related accommodations. Regardless of whether the student has qualified for services, the hearing can trigger a Functional Behavior Assessment (FBA), which can be done for students with or without IEPs or Section 504 plans. Keep reading for more detail about the FBA and how it’s used to generate positive behavior interventions and supports.

The IDEA guarantees parent participation in the IEP process, which includes disciplinary hearings and any other formal meetings in which a student’s educational program or placement is reviewed or amended.  

If the conduct is determined to be unrelated to a disability, then school personnel may use general education discipline procedures. In that case, the school must still provide any special education services that the student has already been found to need. The IEP team decides the appropriate alternative setting and special education services to meet the student’s needs during the suspension.

The school district is required to provide educational services during a suspension

State law requires that all suspended and expelled students have an opportunity to receive educational services (RCW 28A.600.015). OSPI issued a bulletin September 8, 2016, that states, “When educational services are provided in an alternative setting, the alternative setting should be comparable, equitable and appropriate to the regular education services a student would have received without the exclusionary discipline.” The bulletin mentions alternative schools, 1:1 tutoring and online learning as examples of alternative settings.

Note: If a student’s conduct involves Special Circumstances – weapons, illegal drugs, or serious bodily injury—a student may be removed for up to 45 school days regardless of whether the student’s behavior was a manifestation of disability. However, a manifestation determination hearing still is required within the first 10 days of removal from school and educational services still are provided.

The American Civil Liberties Union of Washington provides a free, downloadable Parents’ Guide to Public School Discipline in Washington. Part III includes information about laws and procedures that are specific to students in special education. The ACLU guidebook encourages parents to gather as much information as possible when a student is disciplined:

“It is important to fully understand the type of proposed discipline, the underlying behavior, how the behavior relates to the student’s disability, and what additional supports may be available in order to fully advocate for your student.”

Do you need to pick up your student every time the school calls?

The ACLU booklet commits a page to addressing the question, “Do you need to pick up your student every time the school calls?” A parent can ask whether the student is being suspended.  “If your student has not been officially suspended,” ACLU advises, “The school cannot force you to pick up the student.

“If you choose to pick up your student when he or she has not been suspended, the school may not record the removal from class and may not trigger additional protections (such as Manifestation Determination Hearings) that apply when students with disabilities are removed from school for 10 days or more.”

The ACLU points out that without formal paperwork that describes a disciplinary action and its specific start and end times, a school may not be accountable to specific rules that govern special education: “Any time your student misses class time because of a behavior problem, it may be considered a discipline and should be considered as counting towards the 10 days that would be a ‘change of placement’ under the law and trigger additional protections. If your student is having behavioral problems that do not lead to suspension, you may suggest that the IEP team should consider holding an IEP meeting to reevaluate your student’s behavior supports, or that the 504 team meet to consider changes to the accommodation plan.”

The ACLU guidebook includes a list of supports parents can ask for: “The law requires behavior supports to be based on evidence, and so you can ask for additional expert evaluation to determine whether the behavior supports offered to your student are appropriate.”

Schools teach skills for expected behavior

Specialized instruction designed to meet a student’s unique needs can include education in social communication, self-regulation, choice-making and other areas of Social Emotional Learning (SEL) that may impact behavior. These strategies are well recognized as best-practice for keeping children engaged in school and avoiding problems that might lead to discipline.

In addition, schools can conduct a Functional Behavior Assessment (FBA) to develop a Behavior Intervention Plan (BIP). A BIP is developed to proactively help a child learn expected behaviors and shift away from circumstances that might lead to escalations. The BIP identifies target behaviors that are disrupting education and determines “antecedents,” which means conditions or events that occur before the targeted behavior. A BIP is intended to support “replacement” behavior so a student can develop skills that prevent escalations and keep the student in school and learning.  

A BIP can be a stand-alone plan or can work with an IEP or a Section 504 accommodations plan. OSPI offers guidance to schools and families about FBA/BIP process. Another place to find valuable information is through the Parent Center Hub, a website operated by the Center for Parent Information and Resources (CPIR).

School discipline is a national topic of concern

On August 1, 2016, the U.S. Department of Education published a Dear Colleague Letter for public-school staff: “Recent data on short-term disciplinary removals from the current placement strongly suggest that many children with disabilities may not be receiving appropriate behavioral interventions and supports, and other strategies, in their IEPs.” The letter included data that 10 percent of all children with disabilities, ages 3-21, were subject to a disciplinary removal from school. Children of color with disabilities faced an even higher rate.

The letter encourages all schools to develop robust programs for Positive Behavior Interventions and Supports (PBIS) and provides specific guidance for IEP teams. “In the case of a child whose behavior impedes the child’s learning or that of others, the IEP Team must consider – and, when necessary to provide FAPE, include in the IEP – the use of positive behavioral interventions and supports, and other strategies, to address that behavior.”

The federal guidance includes statements about staff development: “School personnel may need training, coaching, and tools to appropriately address the behavioral needs of a particular child. Supports for school personnel may be designed, as appropriate, to better implement effective instructional and behavior management strategies and specific behavioral interventions that are included in the child’s IEP.”

In 2014, the federal government issued guidance to discourage disciplinary actions that discriminate against students with disabilities, particularly students of color. A variety of federal sources have highlighted disparities, and the Center for Civil Rights Remedies and the Charles Hamilton Houston Institute for Race and Justice in April 2018 issued the first state-by-state estimate of lost instruction due to discipline for students with disabilities. The data include a finding that children of color who also have disabilities lost 77 more days of instruction because of disciplinary actions than peers who are Caucasian.

“These data on lost instruction are rarely reported,” the report concludes in its executive summary. “Although many could guess that the racially disparate impact is large, these dramatic disparities were derived from reliable publicly reported federal data, and they should be cause for alarm. Students with disabilities receive much more than classroom instruction when they are in school. For example, they often receive related counseling services, occupational and physical therapy as well as additional small group or one-on-one tutoring. Therefore, they lose much more when they are removed from school.”

Inappropriate discipline may be a denial of FAPE

The full report from the Center for Civil Rights Remedies includes this statement in its introduction: “Schools once routinely denied students with disabilities access to public education. Federal law makes it clear that such denial is unlawful, yet some schools may still be meting out discipline in a manner that has the same effect. To suspend a student because of behavior that is a result of their disability is the equivalent of denying that student access to education.”

However, in December 2018, a federal school safety commission recommended that the U.S. Department of Education rescind the 2014 guidance intended to prevent discriminatory practices. OSPI responded by stating that Washington State’s policies and updated guidance would be unaffected. “Rescinding the 2014 guidelines will have no effect on Washington’s laws and rules related to student discipline…and will have no effect on OSPI’s enforcement of civil rights laws that prohibit discrimination in the administration of student discipline,” OSPI stated.

Washington discipline laws include statutes in the Revised Code of Washington (RCW) and rules in the Washington Administrative Code (WAC). Washington State student discipline laws apply to all K–12 students. Students with disabilities are subject to both general education and special education rules and statutes. For the most up-to-date information about general education discipline procedures and the rules changes underway, visit OSPI’s Student Discipline page. For more information about special education discipline procedures, visit OSPI’s Special Education Behavior and Discipline page.

Guidance related to isolation and restraint

The state has specific rules related to the use of isolation and restraint, which are implemented only when a student’s behavior poses an imminent likelihood of serious harm and are discontinued when the likelihood of serious harm has passed. Isolation and restraint are not used as a form of standard discipline or aversive intervention.

When severe disciplinary actions become frequent, schools might ask the parent/guardian to sign an Emergency Response Protocol (ERP) for an individual student. Families are not required to sign this. The ERP specifically explains what the school’s policies are related to isolation and restraint and what the training requirements are for staff who are authorized to provide isolation and restraint. Parents can request a copy of the district’s general education policies on this topic. The ERP can include a statement about how parents are contacted if the school uses isolation or restraint. Schools are required to provide a report to the parent/guardian any time formal disciplinary actions are taken and any time that their child experiences isolation or restraint.

Where to find the state laws

For a link to the complete Washington Administrative Codes (WACs) that describe the Final Rules for the 2018-19 and 2019-20 school years, visit OSPI’s website and click on links for the downloadable PDF documents: www.k12.wa.us/studentdiscipline

Evaluations Part 1: Where to Start when a Student Needs Special Help at School

A Brief Overview

  • Special Education is provided through the Individualized Education Program (IEP) for a student with a qualifying disability. The first step is to determine eligibility through evaluation. This article describes that process.
  • An article about IEP essentials is also available on PAVE’s website.
  • Parents can request an evaluation by submitting a written letter to the school district. PAVE offers a template to help with letter writing.
  • An educational evaluation collects information in all areas of suspected disability, including non-academic areas such as Social-Emotional Learning (SEL). Read PAVE’s three-part series on SEL for more information.
  • See PAVE’s Part 2 article about what to do if the school says no to your request for a special education evaluation.

Full Article
If a student is having a hard time at school and has a known or suspected disability, the school evaluates to see if the student qualifies for special education. If eligible, the student receives an Individualized Education Program (IEP). Information collected during the evaluation is critical for building the IEP, which provides specialized instruction and other supports in a unique way for each student.

A parent/guardian, teacher or school administrator can request an evaluation. A variety of tests and questionnaires are included. The evaluation looks for strengths and difficulties in many different areas, so input from parents, teachers and providers is critical. 

Generally, the evaluation reviews developmental history and assesses cognition, academic achievement and “functional” skills. Functional skills are necessary for everyday living, and deficits might show up in unexpected behaviors, unskilled social interactions or struggles with emotional regulation. Strengths are measured alongside challenges and can provide important details for a robust program.  

Evaluation is part of special education law

Nondiscriminatory Evaluation is a key principle of the Individuals with Disabilities Education Act (IDEA), which is the federal law that governs special education. The IDEA includes a mandate called Child Find, which requires school districts to seek out, evaluate and serve students ages Birth-21 who may have disabilities that impact school success or access. The mandate applies to all children, including those who go to public or private schools. Children who are homeless or wards of the state are included, as are children who move a lot. Children who are “advancing from grade to grade” are included in the mandate, if they may have disabilities that impact learning in non-academic areas of school.

When a student is formally referred for an evaluation, the school follows a schedule of deadlines. Districts have 25 school days to respond to a written request for evaluation. Some schools will invite parents to a meeting to discuss concerns. Being prepared with a written statement can help. Parents can also share information from doctors, therapists or other outside providers. Parents can mark a calendar to track these timelines.

Before a school evaluates a student, the parent/guardian signs consent. If school staff recommend an evaluation and parents do not agree or sign consent, then the school does not conduct the evaluation. Please note that parents are consenting to the evaluation, so that parents and schools can make an informed decision about what to do next. Parents can choose at the next step whether to sign consent for a special education program to begin.

If a parent initiated the referral and the school doesn’t respond or denies the request for an evaluation, the parent can request an answer in writing. PAVE provides an article about what to do if the school says no to your evaluation request.

Considerations:

  • Child Find mandates evaluation if there is reason to suspect a disability. 
  • Students who are failing or behind their peers might have challenges related to language or access to school that don’t indicate a disability.
  • Parents who don’t understand the school’s reason can request a written explanation.
  • Schools cannot refuse to evaluate because of budgetary constraints. They also cannot refuse because they want to try different teaching strategies. School staff might use the term Response to Intervention (RTI). Although the school might benefit from a review of its methods, RTI is not a basis for refusing to evaluate a child for a suspected disability.

What happens next if the school agrees to evaluate?
If all agree that an evaluation is needed, and a parent/guardian signs a formal document giving permission, then the school completes the evaluation within 35 school days.

In compliance with the IDEA, an evaluation for special education is non-discriminatory. If the child cannot read, for example, the testing uses verbal instructions or pictures. The child’s native language is honored. Schools have a variety of tools available to eliminate bias. Parents can ask for clarification if they suspect that the testing missed its mark because of methodology.

The IDEA requires schools to use “technically sound” instruments in evaluation. Generally, that means that the tests are evidence-based as valid and reliable, and the school recruits qualified personnel to administer the tests properly. The IDEA is clear that a singular measure, such as an Intelligence Quotient (IQ) test, does not meet the standard for an appropriate evaluation.

Don’t be intimidated by fancy language!

The formal language of the IDEA and the evaluation process can feel intimidating, but parents need to remember that they have a critical role as the experts and long-term investors in their child. If the evaluation data is confusing, parents can ask the school to provide charts or graphs to make it clear. Parents have the right to ask questions until they understand the evaluation process and what the results mean.

If the evaluation indicates that a student has a qualifying disability, the impairment will meet criteria in one of 14 categories defined by the IDEA. A place to get more information about each of these categories is the Center for Parent Information and Resources (CPIR), which manages a website called the Parent Center Hub. These are the categories:

A primary goal of evaluation is to identify a child’s strengths and needs in the general education environment. Regular classrooms are the Least Restrictive Environment (LRE) unless a student is unable to succeed there. The evaluation determines whether a student needs extra help in the general education setting, and the IEP team uses information gathered through evaluation to recommend an initial program.

The IEP isn’t a one-and-done project

The IEP shifts and changes with the needs of the student, so the initial evaluation is only the beginning. A new evaluation is required by the IDEA at least every 3 years, but a new evaluation can be initiated earlier if there’s a question about whether the program is working. The school and family are always collecting new information and insights, and the IEP adapts in real time with new information.

For example, the school might document that a student is failing to access learning in general education despite help that was carefully designed to make the setting accessible. Then the IEP team, which includes a parent or guardian, might discuss placement in a more restrictive setting.

What if I don’t agree with the school?

Parents can always ask school staff to describe their decisions in writing, and parents have rights guaranteed by the IDEA to informally or formally dispute any decision made by the school. The Center for Appropriate Dispute Resolution in Special Education (CADRE) offers a variety of guidebooks that describe these options. In Washington State, the Office of Superintendent of Public Instruction (OSPI) provides state-specific guidelines for dispute resolution

Evaluation is a 3-part process

Not every student who has a disability and receives an evaluation will qualify for an IEP. The evaluation asks 3 primary questions: 

  1. Does the student have a qualifying disability?
  2. Does the disability adversely impact education?
  3. Do the student’s unique needs require specially designed instruction?

If the answer to all three questions is Yes, the student qualifies for an IEP and the protections of the Individuals with Disabilities Education Act (IDEA).

Eligible students are entitled to an education designed just for them. That entitlement is for a Free Appropriate Public Education (FAPE). Every student in the United States has access to a public education for free. An educational evaluation determines whether a student is also entitled to an education that is “appropriate,” with unique help so the individual can make meaningful progress toward goals despite the circumstances of disability.

Recommended guidelines for requesting an evaluation

  • Make your request in writing.
  • Address your letter to the district’s special education director or program coordinator.
  • You can deliver your request by email, certified mail, or in person. If you hand-deliver the letter, make sure to have your copy date/time stamped so you have a receipt.
  • You can track the days the district takes to respond. The district has 25 school days (weekends and holidays excluded) to respond.

Items that can be included in your letter:

  • The student’s full name and birthdate.
  • A clear statement of request, such as “I am requesting a full and individual evaluation for my son/daughter.”
  • A statement that “all areas of suspected disability”  be evaluated.
  • A complete description of your concerns, which can include details about homework struggles, meltdowns, grades, failed or incomplete assignments, and any other mitigating factors.
  • Attached letters from doctors, therapists, or any other providers who have relevant information, insights, or diagnoses.
  • Your complete contact information and a statement that you will provide consent for the evaluation upon notification.

You can follow up if you don’t hear back from the district within 25 school days. When you provide consent for the evaluation, please note that you are not giving consent for your student to be placed in a special education program. You are consenting to the evaluation so that you and the school can make an informed decision about how to help your child succeed.

After receiving a letter of request for evaluation the school district has the responsibility to:

  • Document the referral.
  • Notify you, in writing, that the student has been referred for evaluation.
  • Examine relevant documents from you, the school, medical providers, and other involved agencies.
  • Tell parents/guardians in writing about the decision to evaluate or not. This formal letter is called “prior written notice” and is provided within 25 school days of the evaluation request.
  • Request your formal written consent for the evaluation.
  • Complete the evaluation within 35 school days after you sign consent.
  • Schedule a meeting to share the evaluation results with you and determine next steps.
  • Initiate development of an IEP, if the student qualifies.

Evaluation for Behavior Supports

Sometimes a Functional Behavior Analysis (FBA) is conducted alongside an educational evaluation when behavior is a primary feature of a child’s difficulty at school. The FBA uses tools and observation to identify triggers and unskilled coping strategies that can help explain areas of need for learning. The FBA provides the foundation for a Behavior Intervention Plan (BIP), which supports positive choices. BIP goals and strategies prioritize social skill development and emotional regulation tools. The BIP can be a stand-alone document or can be used with an IEP or a Section 504 Plan (see below).

A student may qualify for a Section 504 Plan, if not an IEP

Section 504 is part of the Rehabilitation Act of 1973 and provides for accommodations for individuals with disabilities that severely impact their ability to access a public building or a service, such as school. Sometimes students who don’t qualify for an IEP will qualify for special supports through a 504 Plan. Disability is more broadly defined under this Civil Rights law, and a disability that impacts a “major life activity,” such as learning, can qualify a student for accommodations and modifications in school.

Independent Educational Evaluation (IEE)

If you disagree with the evaluation and/or the school declines to offer any support services, parents can pursue a request for an Independent Educational Evaluation (IEE). While a request for an IEE is not required to be in writing, a written request is encouraged because it documents the request (see letter guidelines above). When granting a request for an IEE, the school district provides a list of possible examiners and covers the cost. If the school district denies an IEE request, the district initiates a due process hearing within 15 calendar days to show that its initial evaluation was appropriate.

Here are some additional resources:

Washington laws regarding evaluation are in sections 392-172A of the Washington Administrative Code (WAC)

Office of Superintendent of Public Instruction (OSPI): k12.wa.us

Center for Parent Information and Resources (English and Spanish): Parentcenterhub.org

Smart Kids with Learning Disabilities: smartkidswithld.org

PAVE’s Parent Training and Information (PTI) team can provide you with 1:1 support and additional resources. Here are two ways to Get Help:

Call 1-800-5PARENT (572-7368) and select extension 115, English or Spanish available, to leave a dedicated message.

OR

Go online to fill out a form to Get Help! Use the Google translate to make it to the language you use the best! 

A Supreme Court Ruling Could Impact Your Child’s IEP

A Brief Overview

  • The parents of a child named Endrew F argued that their son with a disability deserved more from his public school. They appealed their case all the way to the Supreme Court, and the ruling in their favor could mean more robust rights for all children with Individualized Education Programs (IEPs).
  • The implications of this unanimous decision are reverberating through schools and agencies that oversee special education. Read on to learn how you can participate in important conversations about these uplifted standards.
  • Learn key phrases from this ruling to help you be a proactive member of your child’s IEP team. The U.S. Department of Education has an important guidance document that includes some of this language: For example, a school must offer an IEP “to enable a child to make progress appropriate in light of the child’s circumstances.” The court additionally emphasized the requirement that “every child should have the chance to meet challenging objectives.”
  • This article and the included resource links can help you understand the Endrew F ruling and how you might use this information in advocating for your child’s rights.

Full Article

Endrew F (Drew) is a student with autism, ADHD and challenging behaviors. His disabilities impact his academic and functional skills, including his ability to effectively communicate about his emotions and needs. He attended a public elementary school in Douglas County, Colorado, and qualified for special education with an Individualized Education Program (IEP). His parents moved him to a private school in fourth grade, arguing that:

  1. Drew did not make measurable progress on the goals set in his past IEPs, and
  2. The IEP did not address Drew’s escalating behavior problems.

Drew had more success at the private school, and his parents filed a Due Process complaint with the Colorado Department of Education in 2012. They requested reimbursement for the private school tuition on the basis that the public school had failed to provide access to a Free Appropriate Public Education (FAPE), which is a cornerstone of the Individuals with Disabilities Education Act (IDEA), the federal law that governs special education.

The parents argued, and lost, at the state, district and circuit court levels. These lower courts ruled that because Drew had made at least some progress toward his IEP goals, then the school had met its obligation to provide FAPE. Wrightslaw is one source for more detail about the case and its history.

The family filed an appeal with the Supreme Court of the United States (SCOTUS), and on March 22, 2017, the court ruled in their favor. The ruling, which took effect immediately, ended a discrepancy in circuit courts across the country by determining that a trivial amount of progress (“merely more than de minimis”) is insufficient to satisfy a student’s right to FAPE. In order to meet its “substantive obligation under the IDEA,” the court stated, “a school must offer an IEP that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

Since then, a variety of agencies have been analyzing the court’s unanimous ruling and creating guidance documents to help schools and families understand the implications of this case. On April 9, 2018, The Office of Special Education Programs (OSEP) provided a two-hour webinar with speakers from various education fields to discuss the ruling and its broad-sweeping impact on schools and families. Parents need to understand this case, the experts agree, because family voices are critical to raising the level of expectation.

High expectations are a theme in discussions about the ruling. Some other emerging themes:

  • Parents/guardians are the first and most important lifelong teachers of their children. They, therefore, need to be fully welcomed and heard as key collaborators in the process.
  • IEP teams need to assure relevance when writing appropriately ambitious IEP goals for lifelong learning and success in varied environments. Goals toward narrowly defined academic “mastery” often miss this opportunity to create flexible learners.
  • State academic standards should be noted at the IEP table, but challenging objectives are to be individualized, not “one size fits all” or based in goals generated by computer data programs.
  • Educational benefit is determined on an individual basis, and standards for measurement must be varied and rigorous to ensure meaningful progress.
  • An IEP with the same goals year-after-year does not meet the standard of FAPE.

The Statewide Parent Advocacy Network (SPAN) issued a summary of the Endrew F ruling that includes a list of “Roles and Responsibilities” for professionals and families. “This new standard will require a prospective judgment by school officials that will be informed not only by the expertise of school officials, but also by the input of the child’s parents and guardians,” SPAN stated in this overview document.

Understood, a consortium of non-profit agencies committed to providing information on attention and learning problems in children ages 3-21, developed a free, downloadable Endrew F Advocacy Toolkit that provides a four-page handout of Talking Points and a four-page IEP Worksheet to assist parents in using principles from the Endrew F ruling in their own advocacy. For example, the court’s ruling included the words “appropriately ambitious” as a requirement for IEP goals. The worksheet offers a place where a parent can record a list of areas that they feel a child’s goals might not be ambitious enough. The worksheet then suggests a script for a parent to use at an IEP meeting:

“I know that my child’s goals should be appropriately ambitious. Even if my child is behind in academics, the IEP goals should aim to help my child catch up. When can we look at present level of performance and put services and supports in place, so we can set goals that allow my child to meet the same standards as his peers?”

The National Center for Parent Leadership, Advocacy, and Community Empowerment (National PLACE) offered a Webinar to explain how the ruling provides families with a new advocacy tool. PLACE, a membership organization whose website is named “Parents at the Table,” has made available some resource documents, including a Power Point with a set of slides titled: “What Parents Can Do.” For example, PLACE suggests that parents prepare questions for an IEP meeting using key phrases pulled directly from the Supreme Court’s ruling. Here are some sample questions:

  • Has the team carefully considered my child’s potential for growth?
  • Have we considered whether my child is on track to achieve or exceed grade-level proficiency?
  • Are the goals appropriately ambitious, with sufficiently challenging objectives?
  • How is the IEP reasonably calculated to enable my child to make progress appropriate in light of his circumstances?

PLACE emphasizes that parents should not accept an IEP with the same goals and objectives from year to year, indicators that a child has failed to make meaningful progress. And, using language directly from the SCOTUS ruling, PLACE encourages parents to hold schools accountable for a child’s progress by requesting a “cogent and responsive explanation” for decisions about goals and progress measurements.

Diana Autin, an attorney and executive director of National PLACE, uses the webinar platform to review foundational principles of the IDEA, re-authorized by Congress in 2004, to set a stage for understanding new guidelines related to the SCOTUS ruling. “It’s important to note that Endrew F can’t be understood or defined or used without it being within the context of the IEP requirements of IDEA,” she says.

Autin shares the PLACE webinar platform with Michael Yudin, former assistant secretary at the U.S. Department of Education and a longtime national leader in disability rights. Yudin points to key language in the ruling that clarifies earlier Department of Education guidance documents that he helped develop. The heart of IDEA, he says, is specially designed instruction that helps students reach goals that are “ambitious but achievable” and in alignment with grade-level content standards. “Specially designed instruction is adapting as appropriate to the needs of the child,” Yudin says, “so that the content, methodology and the delivery of instruction are appropriate to ensure access to the general curriculum so that the child can meet the educational standards that apply to all children.”

Inclusion sometimes requires access to specially designed instruction in Social-Emotional Learning (SEL), and the Endrew F decision reinforces the IDEA’s requirement for necessary behavioral interventions and supports, Yudin says. “This guidance clearly states that failure to consider and provide those needed behavioral supports and interventions through the IEP is in fact likely to result in a denial of FAPE.”

The child at the heart of this landmark case, Drew, struggled with phobias and had behaviors that included screaming, climbing over furniture and occasionally running from school. According to the PLACE webinar: “His parents believed that his progress had stalled and that the strategies used to address his behaviors were insufficient to allow him to learn.” Behavior interventions at the private school chosen by Drew’s parents helped, and his access to learning improved. In considering all aspects of the case, including a lack of suitable behavior interventions, the Supreme Court ruled that the public school had denied Drew access to FAPE.

A child “must be afforded the opportunity for significant learning,” the court stated. And individualized supports and programming must provide for more than “de minimis,” or trivial, progress to meet the standard of FAPE. “For children with disabilities, receiving instruction that aims so low would be tantamount to sitting idly,” the court wrote, “…awaiting the time when they were old enough to drop out.”

The ruling in Endrew F has brought new emphasis to existing policy related to discipline and behavior. On August 1, 2016, the U.S. Department of Education issued a Dear Colleague guidance document to establish clarity about the IDEA’s requirements for behavioral assessments and interventions. “Recent data on short-term disciplinary removals from the current placement strongly suggest that many children with disabilities may not be receiving appropriate behavioral interventions and supports, and other strategies, in their IEPs,” the document states. “In light of research about the detrimental impacts of disciplinary removals… the Department is issuing this guidance to clarify that schools, charter schools, and educational programs in juvenile correctional facilities must provide appropriate behavioral supports to children with disabilities who require such supports in order to receive FAPE and placement in the least restrictive environment (LRE).”

The Office of Special Education Programs (OSEP) offered a summary of policy that included this statement: “Parents may want to request an IEP Team meeting following disciplinary removal or changes in the child’s behavior that impede the child’s learning or that of others, as these likely indicate that the IEP may not be properly addressing the child’s behavioral needs or is not being properly implemented.”

For further information about the Endrew F decision and its implications, refer to the following resources:

The Center for Parent Information and Resources/Parent Center Hub

National PLACE/Parents at the Table

Wrightslaw

Understood Endrew F Advocacy Toolkit

SCOTUSblog

SPAN Parent Advocacy Network

OSEP IDEAs that Work