FCSN // Newsletter // 2019 // Fall 2019 // Issues in Special Education that Candidates Should Address
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Issues in Special Education that Candidates Should Address

 

The FIVE Fs : Funding, Attorneys’ Fees, Expert Fees, Full Potential, and Fair Burden

Robert Crabtree

By Robert K. Crabtree, Esq.

(Mr. Crabtree was a founding partner of Kotin, Crabtree & Strong, LLP, a general practice firm in Boston with a major concentration in special education and disability law. He now serves the firm as “of counsel”. He teaches a session on Special Education Laws and Advocacy for the Federation’s Parent Consultant Training Institute offered four times per year across the state.)

As the political season moves into full gear in the presidential and many congressional elections, and   as we celebrate the 45th anniversary of the enactment of Individuals with Disabilities Education Act (IDEA), this is a good time for the special education advocacy community to gather our thoughts and agree on a few issues that we would like candidates to understand and to address if elected.

Unlike many issues that currently divide our culture, the challenges of a child’s disabilities arise in families across the board without regard to political leanings and, in large part, without regard to differences in class, ethnicity, income, religion, or other such variables.

In that light, perhaps common cause can be found in a mission to improve the systems we have for addressing the needs of children who need an extra hand in their academic, social/emotional, vocational or behavioral development because of intellectual, emotional, physical and/or social challenges. Here are a few issues – the five “Fs” we think candidates should be prepared to address:

Increase federal FUNDING for special education.

IDEA has never been funded to the extent promised in the original legislation in 1972. The advocacy community was told that within a relatively short few years states would receive some 40 percent of the costs of providing special education and related services pursuant to IDEA (then called the Education for All Handicapped Children Act) from the federal till. As it now stands, only about 15 percent has ever been provided.

Bills have been filed to fully fund Congress’s avowed share of special education costs – e.g., H.R. 2902, the House IDEA Full Funding Act, filed in 2017 and S. 2542, the Senate IDEA Full Funding Act, filed in 2018 – but none has passed. The current prospects for more federal funding seem bleak, in the wake of the so-called “tax reform” legislation enacted at the end of 2017 – a step that has stripped the resources available for federal support of education and other human needs to the bone.

Attorneys’ FEES for prevailing parents: amend IDEA (as well as all other federal civil rights statutes) to overturn Buckhannon.

In the process leading to Congress’s enactment of civil rights legislation during the 1960s and 1970s, sponsors and advocates knew that without reliable access to legal assistance, it was unlikely that those with modest or no means could successfully enjoy the benefits of those statutes. Defendants in civil rights cases were, and are, typically well-heeled corporate and/or public entities who could and would dig deep to ensure that their practices and structures could continue without interference, regardless of the discriminatory effects on any protected category of individuals.

Accordingly, Congress included provisions in civil rights statutes giving plaintiffs the right to recover reasonable attorneys’ fees and related costs if they prevailed in their claims. With that right in place, attorneys who were asked to represent civil rights plaintiffs – even those without means to pay for their services – could evaluate a case knowing that if the plaintiff’s claims could be successfully litigated they could recover for what is often an enormous investment of time.

For some decades the courts helped to make this a solid and accessible right by interpreting “prevailing” to include any situation where the plaintiff’s legal circumstances were improved as a result of filing a civil rights claim, even if that improvement consisted of a settlement or another change in the defendant’s behavior without any further involvement of courts or hearing officers. This was called the “catalyst” theory, and its effects in the world of civil rights litigation were very real: both plaintiffs with modest means with which to pay an attorney and attorneys willing to risk their time for those who could not pay could pursue a claim in the realistic expectation that they would recover their fees even if the case were not fully tried, as long as they achieved a positive outcome.

This all changed, however, when the Supreme Court decided Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001). There, Justice William Rehnquist wrote that the catalyst theory was incorrect. The Court established, in a holding that has now been extended to IDEA fee claims in all circuits where the issue has arisen, that a plaintiff cannot be deemed to have prevailed until and unless there is a “judicial imprimatur” – i.e., until a judge has ruled in the plaintiff’s favor.

In the world of special education due process, this reasoning immediately threw the parties out of balance. Once school districts realized that there would be no penalty for delay, as they would no longer be liable for the fees parents incurred in the meantime if a district made changes to resolve a case at the last minute, districts began to drag their heels. They found that if they delayed resolution long enough, many parents with limited means would drop their cases or try to proceed without legal assistance. Buckhannon, in other words, offered districts license to drive away parents with legitimate claims under IDEA by causing the costs of making good on their claims either to exhaust the parents’ resources (or an attorney’s willingness to proceed without hope of recompense) or vastly outweigh the hoped-for benefits.

The catalyst theory courts had it right. They correctly interpreted Congress’s intent in the “prevailing party” provisions of civil rights statutes to ensure that plaintiffs – and especially those plaintiffs who could not afford an attorney, often precisely because of their having suffered discrimination – could get the legal help they would need to realize their rights. The Rehnquist court had it wrong and in Buckhannon effectively took the keys to the courthouse away from civil rights complainants.

All presidential and congressional candidates should be asked to align themselves with the original civil rights architects and reinstate access to legal assistance for plaintiffs by working for legislation to reinstate the catalyst rule under all civil rights statutes.

FAIR allocation of the burden of proof: amend IDEA to allocate the burden of proof in special education litigation to school districts.

The Supreme Court held in Schaffer v. Weast, 546 U.S. 49 (2005), that the party who files a proceeding under IDEA to seek a change in a student’s program must bear the burden of proving that the existing program fails to provide a Free Appropriate Public Education (FAPE). In the vast majority of special education disputes, this means that the burden falls on the parents. (Note that some state laws vary this rule.)

The allocation of burden of proof means that the party who carries that burden loses the case if an adjudicator does not find that party’s evidence more persuasive than the opposing party’s evidence. With an ambiguous standard like the one described in Endrew (see our argument for a “Full progress” standard below) and the deference that hearing officers typically pay to school districts’ actions in their unwillingness to substitute their judgment for that of professional educators, placing the burden on parents makes for a Sisyphean (a continual and often ineffective) challenge, while allowing school districts to introduce a minimum of evidence to defend their choices.

The author of the decision, Justice Sandra Day O’Connor, acknowledged the parents’ argument that school districts ought to carry the burden because they possess the bulk of any material evidence – educators’ and school experts’ testimony and documents generated in the course of the student’s program – that might contribute to a hearing officer’s decision. She dismissed that argument, however, stating that the apparent imbalance was offset by the parents’ right to obtain a second opinion by a publicly-funded Independent Educational Evaluation (IEE). Payment for such evaluations is typically set at the lowest possible rate, however, and the actual tasks covered by such evaluations are typically restricted (e.g., not including time observing a program or attending a team meeting). The availability of credible experts under these circumstances is far less than a fair due process system would entail. In order even to approach a level playing field, Congress needs to amend IDEA to require school districts to prove that a challenged Individualized Education Program (IEP) offers FAPE.

Expert FEES for prevailing parents: amend IDEA to include expert fees as “related costs” when a special education plaintiff prevails.

Some time after Buckhannon and Schaffer, in Arlington Central School District Board of Education v. Murphy, 548 U.S. 291 (2006), the Supreme Court considered a claim by parents who had prevailed under Buckhannon’s criteria and then sought to recover, in addition to their legal fees, the expert fees they had incurred in the litigation. Shockingly, the Court ruled that expert fees were not reimbursable as “related costs” for a prevailing parent because Congress did not explicitly provide for those fees.

As anyone familiar with special education litigation knows, parents whose arguments are not supported by a well-informed and credible independent expert witness have little chance of convincing a hearing officer. Even when those parents are able to obtain an IEE of their child at the district’s expense pursuant to IDEA and/or state law, there are many other tasks that an expert must perform to support a case beyond merely completing testing and writing a report, few (if any) of which are covered by the IEE statutes and regulations. These tasks include program observations, attendance at team and other meetings, assisting with responses to discovery requests, reviewing documents produced by the district (such as peer IEPs), responding to subpoenas, and preparation for and testimony at hearing.

In short, experts are critical to success in special education due process, and to omit the costs of that essential element from a prevailing parent’s recovery is senseless. The exclusion of expert costs when a parent prevails cruelly undermines a parent’s ability to secure a child’s rights under IDEA.

FULL Progress toward Full Potential: amend IDEA to require that IEPs provide for students to make meaningful progress toward their highest potential.

In Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988 (2017), the Supreme Court rejected a standard for measurement of effective progress under an IEP (“merely more than de minimis”) that had been announced by the 10th Circuit Court of Appeals – a standard that effectively trivialized the requirements of IDEA. (The 10th Circuit decision had, ironically, been authored by Judge Neil Gorsuch, who joined the Supreme Court in the week that the Court announced its decision setting his court’s holding aside.)

But while Endrew was helpful to some extent in its refusal to adopt the minimal standard articulated by the 10th Circuit, it fell far short of truly embodying the aims of the original architects of special education law. In Endrew, the Supreme Court studiously avoided establishing a standard that would push districts to maximize a student’s chance to participate fully in the life of his or her community after exiting the public school program. The Court said that IDEA requires “an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

Of equal significance, the Court stated that, as a matter of federal law, the educational program for a student with disabilities must be “appropriately ambitious in light of his circumstances” and that every student should have “the chance to meet challenging objectives.”

While these formulations may help to avoid the abysmal result of the 10th Circuit’s conclusions, they invite school districts to paint a student’s “circumstances” in as bleak a light as possible in order to minimize the expectations for that student. The Court having gone as far as we can reasonably expect on this issue, it will require congressional action to amend IDEA and establish a higher standard to ensure that students with IEPs are given the chance to attain their full potential, in order for such students to become contributing and well-functioning members of their communities.

The Five Fs are inextricably linked, and first among equals is Funding!

Among IDEA’s central aims are to support the development of programs and services to ensure that children with disabilities can achieve full and satisfying lives as members of their adult communities and, in the service of that ultimate aim, to open a robust channel for parents to participate fully in the decision process that drives the design and implementation of special education services for their children. For those aims to succeed there must be sufficient funding to allow decisions to be made without undue regard for the costs of services and placements.

Less-than-adequate funding has led to districts defending inadequate programs, to courts and administrative adjudicators acting out of sympathy for stressed systems instead of pushing for excellence in programs for challenged children, and to legislators countenancing erosion of the original hopes and aims of the law.

In this political season, let’s not shrink from pointing out to all who seek to serve in legislative and executive offices the issues that must be addressed for IDEA and its state counterparts truly to enable children with disabilities to become full and valued members of their communities.

A concluding note: Most of the issues outlined here have arisen because many federal courts have, over the decades, interpreted ambiguous provisions in IDEA in ways that narrow the promises contained within the Act, rather than affirming its more expansive aims in favor of helping children with special needs to achieve to their potential. This is just one of many good examples of the importance of choosing humane and knowledgeable candidates in federal elections, as presidents and legislators play their critical roles in choosing judges at all levels of the federal judicial system.