The Instructional Methods Blues

This week a parent called me to ask if it is true that the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.), does not require schools to provide instruction that is better suited to addressing their child’s learning needs because schools are only obligated to provide instruction is reasonably calculated to provide their child an educational benefit in light of the child's circumstances. 

The parent explained that he and a university reading expert had just attended his son's IEP meeting. They had presented a report of testing which documented that if the reading program currently used for his son’s specially designed instruction (SDI) were changed to a different reading program, this would more rapidly close the discrepancy between his son’s reading rate and comprehension skills and those of his non-disabled peers. Reading from his meeting notes, the parent said that after their presentation, the other IEP team members were silent and looked toward the AEA consultant who was chairing the meeting. The consultant replied that although the child would probably learn to read faster with better comprehension if the school changed to the recommended reading program, the school didn’t need to make the change because the child’s reading goal aim line is trending upward (albeit very slowly) and this means the child is already receiving “some benefit.” When the parent and university reading expert responded that changing reading programs would allow the child to meet his goal faster, the AEA consultant said: This doesn't matter. All the school district is required to do is provide him with 'some benefit.' This was proven last year in the Kass case.

I moaned inwardly and began explaining the “Kass case.”

On August 21, 2020, Charles and Lisa Kass, filed a due process complaint with the Iowa Department of Education. They claimed, among other things, that the school district and AEA had denied their son, BK, a free appropriate education (FAPE) because the method of reading instruction used was not reasonably calculated to enable him to learn to read. See 30 D.o.E. App. 032. At the due process hearing, the parents and their expert witness made the case that two other reading programs would have been a better choice for BK. Id.

After the due process hearing, Administrative Law Judge David Lindgren of the Iowa Department of Inspections and Appeals issued his decision finding against the parents. Among other things, he wrote that the issue was not whether there were better methods of reading instruction for BK, but whether the school district's choice of methods was reasonably calculated to provide him with a FAPE under the circumstances. Id. He wrote that a school district may use any educational methodology that enables a student with a disability to make progress appropriate in light of the child's circumstances. Id. The ALJ further stated that the IDEA does not require a school district to provide a special education student with the best education or services available and wrote that: "[n]either the parents' preference for a different methodology nor evidence that the student would make greater progress with a different technique will make the District's program inadequate." Id.

The parents appealed ALJ Lindgren’s decision to the Federal District Court for the Northern District of Iowa, which upheld the ALJ’s decision. See Kass ex rel. Kass v. Western Dubuque Community School District. 

The parents appealed the federal district court's decision to the Eighth Circuit Court of Appeals on December 5, 2022, and it was argued last week. The case number and title are #22-3506, Charles Kass  v.  W. Dubuque Comm. School Dist. When the court’s decision is published, we will learn whether the Eighth Circuit thinks “we don’t have to” is a good enough reason under the facts of this case for refusing to change a child’s reading program to one that would more effectively enable the child to master the skills needed to meet his reading goal.

Weeping, the parent told me that he couldn’t understand why the special and general education teachers weren’t interested in being more successful with his child. He noted: "If someone told me a simple way to do my job faster and more successfully, I’d be excited." I told him that as a former teacher, I didn't understand it either. I thought the best thing about teaching was finding an effective way to reach a student whose progress was delayed by disability challenges. I recalled that each time a new approach “worked” and a child made a leap of progress, I felt “over the moon.”

I explained that at the take-home message from the “Kass case” should be that it does NOT prove that the IDEA requires school districts and AEAs to limit their instruction to the type or amount that allows a child to make just enough progress to escape a legal finding that they denied the child a FAPE.  Moreover, I explained that although neither state or federal laws require school districts and AEAs to employ the “best” instructional methods for children with disabilities, there is nothing in the IDEA that requires school districts and AEAs to limit the methodologies they use for specially designed instruction to those that will prevent children from making progress beyond what they are currently achieving.

Students with IEPs and Public School Expulsions

Recently, I've received questions concerning public school expulsion of students with IEPs. Below I have briefly summarized the general procedures and applicable law. 

The Iowa Legislature conferred broad statutory authority on local public school boards to adopt and enforce their own rules and disciplinary policies. Local school boards have explicit statutory authority to expel or suspend students for violating school rules under Iowa Code 282, which states in its first paragraph:

The board may, by a majority vote, expel any student from school for a violation of the regulations or rules established by the board, when the presence of the student is· detrimental to the best interests of the school. The board may confer upon any teacher, principal, or superintendent the power temporarily to suspend a student, notice of the suspension being at once given in writing to the president of the board.

1.  Suspension. When a student is discovered or reported for violating a school rule for which the student may be expelled, generally, a school administrator issues an out-of-school suspension and sends a notice of the student's suspension to the parents and the president of the school board. The board will review the suspension and decide whether to hold a disciplinary hearing to determine whether or not to order further sanctions against the student, which may include expulsion. See Iowa Code 282.4.

2. Manifestation Determination Meeting. A suspension for more than ten days is considered a "change of placement." See Doe v. Todd Cty. Sch. Dist., 625 F.3d 459, 461 (8th Cir. 2010) citing Honig v. Doe, 484 U.S. 305, 325 n.8, (1988). When the student has an IEP and the suspension is for more than 10 days, or adds up to 10 days within the same school year, or if expulsion is recommended, within ten school days the school district and AEA are required to hold a manifestation determination meeting to determine whether the student's behavior that gave rise to the violation was a manifestation of the student’s disability. See 20 U.S.C. § 1415(k); 34 C.F.R. § 300.530; 281 I.A.C. 41.530. 

The team should determine whether the student actually committed the alleged violation, determine whether (1) the student's behavior was caused by the student's disability, and (2) whether the student's conduct was the result of inappropriate placement. Meeting discussions and conclusions should be recorded. The team must inform the parent of its decision that same day. Id.

2.  Notice of the school board hearing. The hearing notice sent to the student's parent should refer to the board policy or rule the student is accused of violating and a state that expulsion is being recommended. The notice must state the date, time, and place of the school board hearing and what evidence and witnesses the board plans to present at the hearing. The notice should also inform the parent of the parent's right to:

• have counsel or representation present at the parent's choice and expense,
• cross-examine witnesses against the student,
• produce witnesses to testify,
• receive copies of the documents supplied to board members, and
• a closed (nonpublic) hearing.

3.  The school board hearing. At the hearing, the school board is not required to give a full statement of the student's rights and:

• there is no right to have all witnesses sworn by a person authorized to give oaths,
• there is no subpoena power to compel witnesses to be present and testify against their will,
• there is no free legal assistance,
• there is no requirement for a court reporter (the hearing will be recorded),
• there is no right to know the identity of student informants, and
• Iowa law does not require the recusal (non-participation) of a board member if the board member is biased in favor or against the student.

4.  After the hearing. The board deliberates in closed session before making its decision. After it has concluded its deliberations, the parent will be given the decision.

5.  Findings of fact and conclusions of law. The parent will receive a written copy of the board's findings that will state the evidence that led the board to believe the student committed the violation and the board's decision. 

6.  Appeal. A parent who disagrees with the decision of the school board may, within thirty days after the decision, appeal the decision to the Iowa State Board of Education. See Iowa Code 290.1.  The standard of review of such appeals requires the State Board to affirm the local board's decision unless it is "unreasonable and contrary to the best interest of education." See In re Jesse Bachman, 13 D.o.E. App. Dec. 363 (196). 

7. Services in Alternative Educational Placement. Under the Iowa Department of Education Rules of Special Education (281 I.A.C. 530) and the IDEA (20 U.S.C. § 1415(k)(1)(D), 34 C.F.R. § 300.530), a  student who is removed from his or her current placement based on a disciplinary violation, must continue to receive educational services to enable the child to continue to participate in the general educational curriculum, although in another setting, and to progress toward meeting the goals set out in the student's IEP. See 20 U.S.C. § 1415(k)(1)(D); 34 C.F.R. §300.530(c), (d)); 281 I.A.C. 41.530. The IDEA provides that the interim alternative educational setting shall be determined by the IEP Team (unless the student has committed a criminal offense and the juvenile court places the student in a facility), and the IEP Team determines appropriate services under § 300.530(d)(1), 34 C.F.R. § 300.530(d)(5). See also M.M. v. Special Sch. Dist. No. 1, 512 F.3d 455 (8th Cir. 2008). When a student has been removed to an alternate placement, the school district is not required to provide all services in the student's IEP. 

8.  Re-enrollment after expulsion. A student who has been expelled from public school and has not met the conditions of the expulsion, will not be permitted to enroll in a public school district until the board of directors of the school district approves, by a majority vote, the enrollment of the student. See Iowa Code § 282.4.