March 22, 2017 The Supreme Court offered it’s opinion on Endrew F. v. Douglas County School District. Here are a few highlights from the ruling:
To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
The “reasonably calculated” qualification reflects a recognition that crafting an appropriate program of education requires a prospective judgement by school officials, but this fact-intensive exercise will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians.
The IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.
Accordingly, for a child fully integrated in the regular classroom, an IEP typically should be “reasonably calculated to permit advancement through the general curriculum and enable the child to achieve passing marks and advance from grade to grade.”
If that is not a reasonable prospect for a child, his IEP need not aim for grade level advancement, but his educational program must be appropriately ambitious in light of his circumstances. The goals may differ, but every child should have the chance to meet challenging objectives, not barely more than de minimus progress.
School districts will now be held responsible to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.
Overall, a huge win for students with special education needs!
Kevin McGrew, Director of the Institute for Applied Psychometrics and a co-author of the Woodcock-Johnson Battery III and IV IQ tests says that student performance on the best available IQ tests is correlated with academic success, but he notes that even the best tests explain only about 40% to 50% of school achievement. That means 50% to 60% is not related to cognitive ability. Although no one discounts the importance of raw intelligence, it turns out that qualities such as motivation, determination and a desire to succeed–qualities that IQ tests don’t measure–play a significant role in success. Thomas Edison once summed it up like this: Genius, he said, is 1% inspiration and 99% perspiration. McGinty, Jo Craven. (2016, August 6). “Why Testing Gray Matter Is Sometimes a Gray Area.” Wall Street Journal, The Numbers p.A2
A School for Everyone
The Bay Area is full of options for children with learning difficulties.
All children are born curious and want to learn. As parents, we want our children to succeed in school, and we send them off to preschool or kindergarten with the expectation that they will. But for almost 600,000 children in the state of California alone, learning can be difficult due to a learning disability or learning difference. That means approximately one in 10 children in the public school system are receiving special help for challenges like Autism, Dyslexia, ADHD, Auditory Processing, and others.
Some parents initially deny that there may be a learning difficulty, either out of fear of having a child that is different or the seeming enormity of the task of dealing with it. But, as Susan Horning, parent of a child with learning differences and now a Special Education Advocate, says, “the most important thing you can do is to get your child the extra help they need as soon as possible. Early intervention is critical. You might have a gut feeling that something is not clicking for your child. Don’t ignore your gut feeling.”
Other signs may be that your young child is crying over homework or resisting going to school. Your pediatrician might note delays in milestones, or you may get feedback directly from a teacher that your child is not progressing academically. Horning adds, “It is important to realize that many children with learning difficulties have average or above average intelligence; it is just that they can’t learn the material in the way it is being taught. They need to be taught differently. The sooner this is addressed the less chance there is of children falling behind academically.”
Public School Options
Under a Federal law known as IDEA (Individuals with Disabilities Education Act), school districts must provide testing to any child when a parent requests it in writing. An assessment is then provided, usually by a school psychologist, to determine their eligibility for services. This can be done as early as age three, before your child has even entered the public school system. For babies and toddlers, services are available through local Early Intervention Programs (www.ectacenter.org). All of this is provided free of charge. Some parents opt for independent testing by a neuropsychologist, either in addition or instead of school district testing. But that testing can often be expensive, costing $3000 and up.
For children that are found to have one or more of 13 specific disability categories, IDEA guarantees special education resources be available. Parents will then work with the school to design an Individual Education Plan or IEP for that child. Some children may not qualify under IDEA, but may qualify for a 504 plan, depending on the results of the testing.
Most public schools in the Bay Area have lots of resources like speech therapists, resource teachers, psychologists, etc. who can help kids thrive. Schools may make accommodations for the child in the regular classroom and/or take her out of the class for special help during the school day. In some cases a tutor can be an additional asset, teaching the same material to the child in a different way than the classroom teacher is teaching it. Public schools want to do what is best for the child, and often the IEP is all that is needed. But sometimes the public schools just don’t have the right resources or the IEP is not being met.
When parents make the decision that the public school is not able to meet the needs of a child, the next step may be a non-public school. A nonpublic school, which is funded by the school district, is a California Department of Education certified private, nonsectarian school that enrolls individuals with needs that the school district cannot provide services for. There are many choices in the Bay Area; just a few of the many options are Orion Academy in Moraga for children with Asperger’s or other non-verbal learning disability (NLD), Anova Center for Education (Santa Rosa, Concord, San Rafael) for children on the Autism Spectrum, and Springstone School in Lafayette for children with Executive Function Disorders, Asperger’s, and NLD. Other children may find a good match at Raskob Day School in Oakland for children with language-based learning disabilities or Star Academy in San Rafael for all types of mild to moderate learning disabilities.
Other parents may choose a private school setting because of the school’s specific emphasis, like Charles Armstrong School for children with Dyslexia, or because of their smaller class sizes and more individual attention that can benefit a child who learns differently. In the latter category, the Bay Area has many options, from Montessori schools to high schools that emphasize collaborative learning, project-based learning and/or inclusion of all learning styles and differences.
A third alternative may be an online learning environment, perhaps supplemented by outside experts like tutors, speech therapists and others. California Virtual Academy (www.k12.com/cava) is available to all California children in grades K-12 free of charge and allows kids to work at their own pace, delve into subjects they are especially interested in, and still have the oversight of a credentialed teacher. Many Bay Area school districts also offer an independent study/on-line option like Venture in the San Ramon Valley School District or Vista in the West Contra Costa School District.
The path to finding the right education for your child will take some time and parents must advocate for their children. But there is lots of help available to parents on this journey. There are professionals like Special Education Advocates and Education Consultants, and many on-line resources (see sidebars).
‘Once you get your child in the right learning environment for him, he can thrive,” says Horning. “His self-esteem is restored, he’s successful, and he enjoys learning again.”
Isn’t this what we all want for our children, no matter how they learn?
Special Education Advocates
When the public school is not accommodating the needs of a particular student, parents may want to enlist the aid of someone like Susan Horning who, as a Special Education Advocate, is trained in laws related to education rights. She can attend IEP meetings and help parents work through the system to get the best solution for their child. Sometimes that may lead to finding a placement outside the public school system.
Other professionals that can help parents are Education Consultants like Amanda Mallory. Mallory’s firm can help parents with decisions about whether a change is needed or not, refer parents to tutors or therapists, or help find alternative placements. Theresa Lozach, also a Bay Area Education Consultant, is a former Special Education Teacher. She will start with a review of everything that has been tried so far and a look at the child’s school file. She likes to get involved before a crisis erupts to see if the current school can make adjustments. “Sometimes much can be done in the current school without the disruption of changing schools, but when a change is needed, it takes work to find the best option.” Lozach adds, “In the Bay Area we have lots of people thinking about education options, and we have an extraordinary number of options that parents just don’t have in many other parts of the state.”
Susan Horning, Special Education Advocate www.susanhorningadvocacy.com
Theresa Lozach, Education Consultant www.theresalozach.com
Amanda Mallory, Education Consultant www.mmbredu.com
Center for Parent Information and Resources www.parentcenterhub.org
California Department of Education www.cde.ca.gov
Disability Rights Education and Defense Fund http://dredf.org
Community Alliance for Special Education http://caseadvocacy.org
There are three main scenarios surrounding children who have been found eligible to receive special education services in a public school, but attend private schools:
1. Sometimes school districts offer a child FAPE (Free Appropriate Public Education), but the parents elect to enroll their child in a private school. Children with disabilities found eligible to receive special education services unilaterally enrolled by their parents in private schools no longer have an IEP, but are still entitled to an Individualized Service Plan (ISP). Parentally-placed private school children with disabilities may receive a different amount of services than children with disabilities in public schools, and have no individual right to equitable special education and related services. Although school districts have a clear responsibility to offer FAPE to students with disabilities residing within their district, those children, when placed by their parent in private schools, do not have the right to receive some or all of the special education and related services necessary to provide FAPE. (20 USC 1415[a][A]; 34 CFR 300.137 and 300.138; EC 56173). Even though you enrolled your child in a private school, the school district in which the private school is located has a responsibility under Child Find to identify and evaluate your child, and write an ISP if warranted. Each parentally-placed private school child with a disability who has been designated to receive services should have an ISP. In this scenario the school district in which the child resides would not pay for tuition at the private school, because FAPE was made available to the child and the parents elected to place the child in a private school.
2. Children with disabilities found to be eligible for special education services enrolled by their parents in private schools when FAPE is at issue can possibly receive tuition reimbursement based on a few factors. If the school district made FAPE available and the parents elected to enroll their child in the private school anyway then that is scenario #1 above. If the school district did not make FAPE available to the child and there is a disagreement about FAPE, then the parents can pursue reimbursement if they can show that the district did not make FAPE available and that the private school placement is appropriate. A court or a due process hearing officer may require the school district to reimburse the parent or guardian for the cost of special education and the private school only if the court or due process hearing officer finds that the school district had not made FAPE available to the child in a timely manner prior to that enrollment in the private elementary school or secondary school and that the private placement is appropriate. (20 USC 1412[a][C]; 34 CFR 300.148; EC 56175). The parents must inform the IEP team via 10 days written notice that they are rejecting the FAPE offered by the district, must state their concerns and must inform the district of their intent to enroll their child in a private school at public expense. The private school placement does not have to be a certified non-public school (NPS), though often times it is. This child would still have an IEP, and various other laws kick in as to whether or not his placement would remain at the private school during the time the disagreement is being resolved. This scenario describes a common disagreement between parents and school districts. The dispute usually revolves around whether or not what the school district offered was truly appropriate to the child’s needs and hence FAPE. Under The Individuals with Disabilities Education Act of 2004 (IDEA), parents have the right to resolve disputes with their school districts through due process. Procedural safeguards have been designed to protect the rights of children with disabilities and their parents. Parents are urged to consult a reputable special education attorney for legal advice surrounding this scenario.
3. Children with disabilities placed in, or referred to, private schools by the school district do have an IEP and that IEP states that the private school is the school placement decision. Most often times the private school placement will be a certified NPS (non public school), which the school district has a contract with to provide services to those students which it cannot. However, the private school placement by the district does not have to be an NPS. Tuition reimbursement would occur, since under IDEA, this placement would be at no cost to the parents. This often times happens when the child’s needs are unique enough that the school district does not have a classroom or service that will meet the child’s needs and the IEP team agrees that a private school must be used to conform to the child’s IEP.
Parents should figure out which of the above scenarios best describes their situation, keeping in mind that the law requires that to the maximum extent possible, children should be educated in the least restrictive environment (LRE). In scenario #1, the IEP would turn into an ISP when the child is enrolled in a private school. In scenarios #2 and #3, the child would have an IEP.
All children with disabilities found eligible to receive special education services are entitled to a FAPE developed in accordance with their unique needs. Regardless of whether the child attends public or private school, IDEA ensures that his rights are protected. It is essential for parents to understand, assert and execute these rights to improve educational results for their children with disabilities.