Academic journal article Exceptional Children

Which Procedural Parts of the IEP Process Are the Most Judicially Vulnerable?

Academic journal article Exceptional Children

Which Procedural Parts of the IEP Process Are the Most Judicially Vulnerable?

Article excerpt

Steven Phillips is a sixth grader with specific learning disability in reading. He currently receives small-group, direct instruction in reading and math in a special education classroom. During the past year he has shown unexpected improvement in his academic skills.

At Steven's most recent annual individualized education program (IEP) meeting, the district proposed a placement in a newly established, co-taught, more inclusive classroom. The general education teacher from the proposed classroom was not in attendance at the meeting. Due to Steven's progress in the smaller, more specialized class during the past year, Mrs. Phillips was apprehensive about the proposed placement change. She attempted to express her concerns that (a) the change appeared to be based on an administrative decision to implement the co-teaching model rather than individualized consideration of Steven's specific needs and (b) the IEP did not include present educational levels and the goals were not objectively measurable. The special education director, who chaired the meeting, interrupted Mrs. Phillips, assuring her that the team had already considered these matters and concluded that the IEP, including the more inclusive placement, was appropriate.

Mrs. Phillips filed for a due-process hearing and, subsequently, for judicial review under the Individuals With Disabilities Education Act (IDEA; 2013). She alleged various procedural violations concerning membership of the IEP team, contents of the IEP, and predetermination that denied her the opportunity for meaningfully participation in the IEP process. What is the likelihood that Mrs. Phillips will prevail on these procedural claims?

With cases likes this one, special education litigation continues to be on the rise during recent decades, while general education litigation has remained relatively stable (Zirkel & Johnson, 2011). As compilations of the court decisions under IDEA reveal (e.g., Zirkel, 2014), the bulk of this litigation concerns the central obligation for school districts to provide each eligible student with a "free appropriate public education" (FAPE), with many of these FAPE cases including alleged procedural violations. This litigation represents a significant allocation of limited educational resources, with the consequences particularly costly where the court rules that the procedural errors amount to a denial of FAPE. Thus, special education practitioners and policy makers can benefit from knowing (a) which alleged procedural violations are most frequently subject to adjudication and, among them, (b) which ones do courts conclude to be a denial of FAPE?

Despite the importance of these two successive case law issues, the available knowledge is notably limited. The limitations are evident via a concise review of the applicable legal framework and the prevailing presentations and publications to date. The major missing piece is a systematic analysis of the procedural FAPE case law.

Legal Framework

FAPE for a student with disabilities is the "central pillar of the IDEA" (Sytsema v. Academy School District, 2008, p. 1312). Moreover, the "cornerstone" for this central pillar is the IEP (,Murray v. Montrose County School District RE-1J, 1995, p. 923, n. 3).

In its landmark decision in Board of Education v. Rowley (1982), the Supreme Court provided a two-pronged standard for determining whether the district met its FAPE obligation, with the first being procedural and the second being substantive. More specifically, the Rowley Court posed these two prongs as follows: (a) Did the school district comply with the various applicable procedures? and (b) Is the IEP "reasonably calculated to enable the child to receive educational benefits?" (pp. 206-207). The many lower court decisions in the immediate decades after Rowley developed variations of what amounted to a "harmless-error" approach for the procedural prong, which required preponderant proof of not only the alleged violations but also a harmful effect in terms of the substantive, benefit prong. …

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