By Tyler S. St Cyr, Esq.
Occasionally special education teams make mistakes and do not follow established rules during the special education process. The law refers to these mistakes as procedural errors. This term stems from a set of procedures that Congress requires schools to follow, to protect special education students and their parents. See 20 USC 1415 to review these rights or for Vermont Parents, See the Special Education Procedural Rights Handbook. While most mistakes do not result in major legal issues under the Individuals with Disabilities Education Act (IDEA), there are three scenarios when a school’s violation of special education procedures may result in an actionable due process claim. These three situations arise when the school’s error:
(i) Impeded the child's right to FAPE;
(ii) Significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of FAPE; or
(iii) Caused a deprivation of educational benefit.
(20 U.S.C. § 1415[f][E])
Let us unpack this a little bit. For the first situation “(i) Impeded the child's right to FAPE”, some readers may be wondering what FAPE is. See 20 U.S.C. § 1415[f][E]. FAPE is an acronym for the term a “free and appropriate public education”, which means special education services, occurring through an IEP, at public expense, that meets the basic standards set by the state and the US Department of Education. See 34 CFR 300.317. FAPE is the basic thresh hold of services that schools are required to provide to students with disabilities. Expanding on that definition a little bit more, the Supreme Court in Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley (U.S. 1982), held that one indicator of FAPE being provided occurs “if the [IEP] was reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” However, there are instances when the student has been promoted to the next grade and assigned passing grades, yet still has been deprived of FAPE. In Cerra v. Pawling Central School District, the Second Circuit held that another indicator of FAPE not being provided is when a school has provided special education services, but the student has either academically regressed or has not been able to consistently narrow the gap between their own academic skills and grade level expectations. 427 F.3d 186 (2nd Circuit, 2005). The take away from this section is that a school’s failure to adhere to IDEA procedures is actionable if the error can be linked to the student not making enough progress.
The second situation refers to a school’s procedural error that “(ii) significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of FAPE”. See 20 U.S.C. § 1415[f][E]. The United States Supreme Court noted in Burlington School Committee, et.al., v. Massachusetts Department of Education that “one of the reasons Congress enacted special education procedures was “to insure the full participation of the parents and proper resolution of substantive disagreements.” 471 U.S. 359 (1985). The take away from this scenario is that if a parent can show that a school’s error stopped the parent from meaningfully participating in the special education process, the school may be liable in a due process claim.
For the third scenario a parent must show that the procedural violation “(iii) caused a deprivation of educational benefit” to the student. See 20 U.S.C. § 1415[f][E]. This means if a school’s error caused the student to not receive benefit from her/his IEP, it may be liable to the student and parents. An example of this standard can be seen in Corey H. v. Cape Henlopen School District, where a parent brought a school district to a due process hearing for going seven days over the allotted time frame to develop an IEP. 286 F. Supp. 2d 380, (D. Del. 2003). In Corey H., the court held that “although […] this seven day delay is regrettable, the Court concludes that it is only a de minimis deprivation of the Plaintiff's educational benefits.” The court reasoned that the school’s isolated failure to stay within the required time frame to develop an IEP was too slight to result in the student missing educational benefits. The take away from this scenario is that for a school to be liable for making a one-time error, the parent needs to be able to point to the procedural error as having a limiting effect on the student’s education.
Thinking about things in the big picture…
If a school has failed to do something they should be doing, let them know about it, in person and in writing. If you trust the school, it is okay to take the wait and see approach to monitor whether they have fixed what you have asked them to. From a pragmatic perspective, letting the school know what you are expecting of them is a critical part of working through special education problems. From a legal perspective, being able to point to a paper trail that shows that the school had notice of what the parent was asking for goes a long way in helping attain your education goal. On the flip side, it is also critical to your child’s education to be able to realize when your requests are being ignored or that the school is incapable of doing what you are asking them to do.