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Emerging Issues in Special Education Law

October 12, 2018

Outreach director Dan Ahearn writes about emerging issues in special education law.

Based on a review of court decisions, as well as legislative and regulatory activity in 2017 and 2018, here, in no particular order, are some trends that have emerged. As you read this post, recognize that this list is purely subjective in nature and based solely on my readings and notations. Finally, rather than listing all of the possible activity over the past year, there is a sampling of cases decided and documents issued nationwide; a few notes reference Massachusetts administrative law decisions, as well.  

1. Title IX. Mirroring issues in society at large, issues relating to Title IX sexual harassment claims or incidents continued to merit attention in the education field. As part of this trend, the federal department of education modified prior advisories relating to Title IX protections, claims, and procedures, as well as issued new guidance.  See DOJ/DOE Dear Colleague, February 22, 2017 Transgender Guidance Withdrawn; OCR Dear Colleague, September 22, 2017 Guidance on Sexual Violence Withdrawn; OCR Q&A on Campus Sexual Misconduct Issued, September, 2017.
2. Endrew F. After the Supreme Court’s decision last year, a consensus among the lower federal courts emerged with courts settling on the key language of “an educational program reasonably calculated to enable a child to make progress appropriate in light of that child’s circumstances ” as the guiding principle of the Endrew decision.  Endrew F. v. Douglas County Sch. Dis., 137 S.Ct. 988 (2107); Endrew F. v. Douglas County Sch. Dis., 290 F.Supp. 1175 (D.Colo. 2018) (finding in favor of parents on remand to lower court by Supreme Court). Consensus has also emerged that this new standard does, in fact, provide for a generally higher bar of what is an appropriate education for a child. Though litigation will continue to refine the overall Endrew analysis, this emerging clarity should enable parents and districts to better develop appropriate IEPs for children with disabilities.
3. Discipline. For the first time in many years, discipline cases emerged in court and administrative hearing cases across the country. Historically and generally, districts and parents have successfully sorted out discipline cases without the need for court intervention. This past year, however, displayed more cases than usual in this arena. The overall spike in school violence may have led districts to be more proactive in addressing behavioral concerns. With recent news out of Washington to review the IDEA’s overall requirements, there may be additional attention paid to the IDEA’s discipline provisions.
4. Dyslexia. The trend to enact dyslexia specific legislation continues with a number of additional states adopting varying forms of dyslexia legislation ranging from identifying dyslexia as a disability category to issuing guidance on teacher training for dyslexia to requiring creation of new resources to address dyslexia. See International Dyslexia Association resource dyslexiaida.org/dyslexia-laws-status-by-state/.
5. Behavior. As a potentially deciding factor in the outcome of cases, the behavior of the parties appears to play a role in close cases, particularly at the administrative hearing level. For example, where either district or parental behavior appears unreasonable to a hearing officer or judge, that behavior could, in fact, tip the scale in terms of the outcome of close cases. See Massachusetts Bureau of Special Education Appeals Decisions 1707353 & 1708273.
6. Bullying. Although allegations of bullying and harassment have been appearing in cases for multiple years, this year appeared to indicate a more significant increase in bullying claims and cases. In particular, in cases involving placements of students with disabilities, parents allege that bullying and harassment of their child should be considered as a factor in deciding an appropriate placement for a child who may need services unrelated to the bullying incidents. See Bowe v. Eau Claire Area Sch. Dis., 2018 WL 791416 (W.D. Wisc. 2017), Massachusetts Bureau of Special Education Appeals Decisions #1707353, 1802999, & 1806205.
7. Statute of Limitations. This legal doctrine, which limits IDEA claims to a two-year window, appeared more often in cases over the past year than in prior years. In these cases, parents may be foreclosed from raising claims relating to their child’s education that fall outside the IDEA’s two-year statute of limitations. Though not often seen over the years, this defense raised by districts in cases successfully limited the scope of parental/child claims in these cases. See Avila v. Spokane Sch. Dis. 81, 852 F.3d 936 (9th Cir. 2017). See Massachusetts Bureau of Special Education Appeals Decisions 1802999, 1803736, 1806205, & 1805239.
8. Federal Role. This year continued the trend of the current Administration’s goal of reducing the role of the federal government in education. As evidence, the federal department of education withdrew guidance in several instances (Title IX, Harassment, Transgender) and indicated recently that the IDEA would be under review with a goal to provide greater leeway to states vs. federal government oversight.
9. “Stay Put.” The doctrine of placement pending appeal or “stay put” emerged frequently over the past year as parents and districts disputed a proposed placement for a child. See Z.B. v. District of Columbia, 292 F.Supp.3d (D.C. 2018).  ). See also Massachusetts Bureau of Special Education Appeals Decisions 1804287
10. Transition. The topic of transition services continues to be a key focus at the federal, state, and district level. See OSER Letter to Pugh, January 18, 2017 and OSER Letter to _____, February 27, 2017. Litigation around whether a child with a disability received appropriate transition services has emerged with potential remedies focusing on compensatory services to offset the lack of appropriate transition services and planning.