Free Speech 7: Dress Codes

Although public schools must respect students’ constitutional right to freedom of expression, the U.S. Supreme Court and the U.S. Court of Appeals for the Eighth Circuit have determined that schools may place certain limits on students' free speech in the school setting. This includes limits on the clothing that students can wear to school. For example, First Amendment free speech may not protect a student who wears items with words, images, or symbols that:

• are vulgar or lewd. See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).  

• threaten violence. See Elonis v. United States, 575 U. S. 723, 733 (2015).

• promote illegal conduct. See Morse v. Frederick, 551 U.S. 393 (2007).

• are likely to cause serious disruption at school or violate other students’ rights. See Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734, 735 (8th Cir. 2009).

However, it appears that public school students in the states covered by the U.S. Court of Appeals for the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota), are unlikely to receive governmental interference with their hairstyles. 

In Torvik v. Decorah Community School District, two male students appealed a school district regulation requiring all male school students to conform their hairstyle to certain approved standards. See Torvik v. Decorah Cmty. Sch., 453 F.2d 779, 779 (8th Cir. 1972). Finding that the regulation violated the student’s right to free expression, the Eighth Circuit wrote:

    “A regulation governing the hairstyle of students cannot be sustained simply because it is promulgated by school authorities. Tinker v. Des Moines Independent Cmty School Dist., 393 U.S. 503 (1969). This approach would otherwise condone the prohibiting of any recognized constitutional right. Every individual enjoys the liberty to wear the hairstyle he chooses. Before the state can intrude into recognized areas of privacy and freedom there must exist some rational basis to justify paternal control. This court recently found that no rational relation exists between a similar school regulation and the educational goals and processes of school administration.” 

Free Speech 6: Cyberbullying

In 2019, a U.S. District Court in the Eighth Circuit ruled on a case in which a student had been suspended from school for violating the school district’s cyberbullying policy. See A.S. v. Lincoln Cty. R-III Sch. Dist., 429 F. Supp. 3d 659, 669-70 (E.D. Mo. 2019).

In that case, a high school student, A.S., a student who had been bullying C.S., a classmate with depression, created a social media post containing a doctored photograph of C.S., lying in a casket with text referring to C.S.’s funeral and visitation at a funeral home. A.S. shared this with a group of other students and encouraged them to post it on their own social media pages - which they did. The next Monday during class, C.S., upset about another student’s comments about his “death,” put the student in a chokehold. After investigating the incident, the school principal suspended A.S. for ten days for violating the school district's cyberbullying policy. A.S. appealed his suspension.

In its decision, the Court noted that although students don't “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” (citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)), the First Amendment does not protect all speech in the school environment, and school officials may lawfully punish some forms of unprotected student speech (citing S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012) (citing Tinker, 393 U.S. at 513, stating: “conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts class, involves substantial disorder, or invades the rights of others is . . . “not immunized by the constitutional guarantee of freedom of speech.”).

The Court further noted that Tinker applies to off-campus student speech where it is "reasonably foreseeable that the speech will reach the school community and cause a substantial disruption to the educational setting” (citing S.J.W., 696 F.3d at 777 (citing D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. # 60, 647 F.3d 754, 766 (8th Cir. 2011)). On this basis, speech that “actually causes” a substantial disruption to the educational environment is not protected by the First Amendment. Id. at 778.

In deciding the case, the Court concluded that although A.S.’s social media post was created off school grounds, it was purposefully designed to bully and harass another student by generating talk among other students at the high school at A.S.'s invitation and encouragement. Not only had it caused an actual disruption at the school, it was reasonably foreseeable to school administrators that, if left unchecked, the disruption would continue given the effect it already had on C.S., as well as the students who expressed concern for him to teachers and administrators, but also on the students who continued to tease and make comments to C.S. about his death. On this basis, the Court held that A.J.’s off-campus speech was not protected by the First Amendment and that the school district was within its authority to discipline A.S. for his speech.

Free Speech 5: Restrictions on Student Speech on School Grounds

Adam Henerey was a high school student who decided to run for junior class president. Like all the other students seeking to run for student council office, he was required to sign a contract requiring all candidates to agree to obey all school rules, including the requirement that before distribution, all campaign materials had to be approved by the principal or assistant principal.

When the campaign began, Henerey obtained approval from the administration for his campaign slogan, “Adam Henerey, The Safe Choice.” Henerey became aware that as in previous years, the other candidates were handing out gum and candy. On the day of the election, in the school hallways, Henerey handed out condoms with stickers bearing his campaign slogan. Unfortunately, he hadn’t first obtained approval from the administration before he distributed the condoms.

While the ballots were being counted, a student complained to the school principal about Henery handing out condoms. The principal decided that Henerey should be disqualified from the student election for his failure to comply with the rule requiring students to get prior approval before distributing materials. Although Henerey received the majority of the ballots cast in the election, he was not allowed to take office. Henery appealed this decision.

When the U.S. Court of Appeals for the Eighth Circuit reviewed the case, it explained that although students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (citing Tinker v. Des Moines Indep. Com. Sch. Dist., 393 U.S. 503, 506 (1969)), the Constitution does not compel “teachers, parents, and elected school officials to surrender control of the American public school system to public school students” (citing Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986)). See Henerey ex rel. Henerey v. City of St. Charles, 200 F.3d 1128, 1131 (8th Cir. 1999).  It further explained that the constitutional rights of public school students "are not automatically coextensive with the rights of adults in other settings and a school need not tolerate speech that is inconsistent with its pedagogical mission, even though the government could not suppress that speech outside of the schoolhouse. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, (1988) (citing Bethel, 478 U.S. at 685). Id. It concluded that courts must analyze First Amendment violations alleged by students “in light of the special characteristics of the school environment” (quoting Hazelwood, 484 U.S. at 266 (quoting Tinker, 393 U.S. 503 at 506). Id. 

The Court upheld the school’s policy, finding that school officials may restrict individual student expression that “is reasonably related to legitimate pedagogical concerns,” carries an implied imprimatur of the school, “would substantially interfere with the work of the school, or impinge upon the rights of other students.”

Free Speech 4: Speech Advocating Illegal Conduct

Question:  Does the First Amendment of the U.S. Constitution protect a public school student from the consequences of wearing a t-shirt featuring an illegal drug or underage drinking to public school or a school-sponsored event?

Answer:  No.

In Morse v. Frederick, a student appealed his school suspension, claiming that his high school had violated his First Amendment right to freedom of expression. Morse v. Frederick, 551 U.S. 393, 396 (2007).

In that case, a school district sponsored an event during school hours at which students and staff could stand in front of the high school, on either side of the street, to watch the Olympic Torch Relay as it passed by the school on its way to the winter games in Salt Lake City, Utah. At the appointed time, students and teachers left their classes and assembled on either side of the street in front of the school. Once outside, teachers and administrators monitored the students' actions.

Frederick, a high school senior, and his friends chose to stand on the side of the street across from the school. As the torchbearers and camera crews approached, Frederick and his friends unfurled a 14-foot banner bearing the phrase: “BONG HiTS 4 JESUS.” The large banner was easily read by the students on the other side of the street. The school principal crossed the street and directed the students to take down the banner because the banner appeared to advocate illegal drug use in violation of school policy. All but Frederick complied. The banner was confiscated and he was subsequently suspended from school.

On review, the U.S. Supreme Court held that the school officials did not violate the First Amendment by confiscating the banner and suspending Frederick. The Court concluded that the “substantial disruption” rule of Tinker was not the only basis for restricting student speech. Considering the special characteristics of the school environment and the government’s interest in preventing student drug abuse, the Court decided that the school was entitled to take steps to safeguard the students entrusted to their care from speech that could reasonably be regarded as encouraging illegal drug use. Based on this reasoning, courts have given public schools a fair amount of leeway in deciding whether student expression poses a danger to their other students or staff.

Free Speech 3: Indecent, Lewd, or Vulgar Speech on School Grounds

 The U.S. Supreme Court has long recognized that under some circumstances, public school students may be punished for certain forms of expression on campus or at school activities —such as “indecent,” “lewd,” or “vulgar” speech, and that a public school may categorically prohibit vulgar, lewd, indecent or plainly offensive speech that could "undermine the school's basic educational mission. 

Example 1: Speech at a Student Assembly

In 1986, the U.S. Supreme Court issued a landmark decision upholding a school district’s right to impose a suspension on a student for delivering a sexually explicit student counsel nominating speech at a school assembly. The Court said that the school was entitled to dissociate itself from the speech to demonstrate that vulgarity was inconsistent with the fundamental values of public school education. See Bethel School Dist. No. 403 v. Fraser, 478 U. S. 685 (1986).

Example 2: Distributing an Off-Campus “Underground” Newspaper

In 1987, the U.S. Court of Appeals for the Eighth Circuit ruled in a case that raised questions about whether the First Amendment allows public school authorities to have a policy regarding distribution of written materials prepared by students or others, prohibiting such materials or requiring school authority pre-approval of materials before distribution. See Bystrom v. Fridley High Sch., Indep. Sch. Dist. No. 14, 822 F.2d 747, 753 (8th Cir. 1987). In that case, the Eighth Circuit held that school officials may regulate expression that materially and substantially interferes with the requirements of appropriate discipline in the operation of the school or collides with the rights of others. They also found it appropriate for schools to impose sanctions to make the point to pupils that vulgar speech and lewd conduct are wholly inconsistent with the "fundamental values" of public school education. Id. 

Example 3: Nude Photos Displayed on and Forwarded from a Cell Phone

In 2015, the Iowa Department of Education upheld a school district’s suspension of a junior high school student who during the school day was displaying and forwarding to other students nude photos, some of which were of female students in the district. See 27 D.o.E. App. Dec. 626. The nature of the photos was such that the student could have been criminally charged in state court with disseminating obscene material to minors, sexually exploiting minors, or in federal court with possession and dissemination of child pornography. The First Amendment didn’t protect the student’s expression or prohibit the punishment imposed by the school district because, among other things, that “expression” led to a material and substantial disruption to the school environment and presented a threat to the health and safety of students on the school premises. 

Free Speech 2: Threats of Violence

In the past year, several parents have called to ask whether the First Amendment allows public schools to suspend or expel their children (with and without IEPs) for making written, oral, or online threats of violence toward their school building, other students, and school personnel.

The answer is YES.  

It is long-established in law that the Constitution doesn’t protect “true threats of violence.” See Virginia v. Black, 538 U.S. 343, 359-360 (2003). The use of the word “true” differentiates between silly jests and hyperbole that don’t communicate a real possibility that violence will follow (e.g., “I’ll just kill you if you don’t bring your applesauce cake.”) and serious expressions that convey the message that the speaker intends to commit an act of unlawful violence. There are good reasons for this rule - threats inflict harm, have little or no social value, and may cause serious emotional stress for the person threatened and those who care about the person.

In 2015, the U.S. Supreme Court wrote that whether a threat is a “true threat” doesn’t depend on the mental state of the person who made it, but on what the statement conveys to the person who receives it. Elonis v. United States, 575 U. S. 723, 733 (2015). In 2023, the U.S. Supreme Court addressed the question: “Where is the line between true threats of violence that are punishable as crimes and free speech protected by the First Amendment? By a 7-2 majority, the Court decided that (1) true threats are not free speech if the person who made them recklessly disregarded a substantial risk that they would be viewed as threatening violence, and (2) whether the threat subjects the receiver to the fear of violence and to the kinds of disruption that fear engenders. See Counterman v. Colorado, 600 U.S. 66 (2023).

In D.J.M. v. Hannibal Public School District #60, the Eighth Circuit applied the Tinker "substantial disruption standard" (see Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)) to off-campus student speech where it is reasonably foreseeable that the speech will reach the school community and cause a substantial disruption to the educational setting. 647 F.3d 754, 766 (8th Cir. 2011). In that case, while at home, the student, D.J.M. sent instant messages to a school friend, threatening to obtain a gun and shoot students at his school. D.J.M.'s friend reported the instant messages to the school principal, and D.J.M. was suspended. The Eighth Circuit upheld the school's action, finding that D.J.M.'s speech was not protected by the First Amendment because it was "reasonably foreseeable" that it "would be brought to the attention of school authorities and create a risk of substantial disruption within the school environment," and his speech actually caused substantial disruption. See 647 F.3d 754, 766 (8th Cir. 2011).

For an Iowa case in point, we need look no further than a 2021 decision of the Iowa Department of Education that upheld a school board’s expulsion of a student with an IEP who sent out a Snapchat message stating that he was going to shoot up the school. 30 D.o.E. App. Dec. 074. The receiver forwarded it to other students who continued to pass it on. When a parent was shown the message, the parent forwarded it to the local police chief. The police chief forwarded the message to the school superintendent and to the original sender’s mother. Although the school sent out a public statement that there was no threat and school was not canceled, 86 students were absent the next day.

Free Speech 1: Public Schools and First Amendment Free Expression

[In response to the number of calls I’ve received from parents whose public school children (with and without IEPs) have been disciplined based on their "expressions," I will be posting several blog articles about circumstances in which students may be subject to school discipline because their speech has crossed the line between protected and unprotected speech.] 

Public schools are prohibited by the First Amendment of the U.S. Constitution and  Article I, section 7 of the Iowa Constitution from enacting laws abridging the freedom of speech or the press. However, the U.S. Supreme Court has long recognized as applied to public school students, free expression rights are not entirely the same as the rights of adults in other settings because, among other things, public schools have a responsibility to teach students “the boundaries of socially appropriate behavior” and make sure the campus environment is conducive to learning.

What Does the First Amendment Mean by “Speech?”

Although the text of the First Amendment refers to “freedom of speech,” courts have recognized that speech includes many different kinds of on and off-campus expression:

1. spoken and written words, including posts and comments on social media,

2. visual art, film, plays, dance, televised shows, videos, and video games,

3. actions that convey a message (known as “symbolic speech”) such as burning a flag, and

4. wearing items, symbols, and clothing that express an opinion.

Note:  The First Amendment also protects the right NOT to speak. For example, in 1943, the U.S. Supreme Court ruled that students may stay silent during the pledge of allegiance. West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

Over the years, the U.S. Supreme Court has carved out some exceptions to First Amendment protections. In the next few blog posts, I will examine several U.S. Supreme Court and Eighth Circuit rulings that address the contours of the free expression rights of public school students.

From the Country Schoolhouse

Today my mother would have reached her 99th birthday. A highly literate woman who wrote beautifully and was the valedictorian of her high school class, in her early years she attended school at a rural one-room schoolhouse in Union County, near Lorimor, Iowa. Mama likened her days there to those described by Lois Lenski in Prairie School. Among the things she praised about her education in the country schoolhouse was that instead of moving from grade to grade, children only moved on in a subject area once they mastered the topic they were studying. 

Iowa Country School House. Photo credit:  Joefreeman83, CC BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0>, via Wikimedia Commons

Postsecondary Transition Programs and the UI REACH (Realizing Educational and Career Hopes) Program

Earlier this year I watched two excellent feature films created by students in the Daily Iowan Documentary Workshop at The University of Iowa. The first film, Chasing Greatness: Wrestling Life, premiered in March on the Big Ten Network. The second film, Lost in the In-Between: Graduating into 2020, debuted May 4 at Iowa City’s FilmScene. https://stories.uiowa.edu/shaping-next-generation-documentary-filmmakers

At Filmscene, I had the privilege of meeting one of the filmmakers, Daniel McGregor-Huyer,  a photojournalist and videographer at The Daily Iowan. At that time he was a senior majoring in cinematic arts with a certificate in disability studies. Some of his beautiful photography is posted at https://dailyiowan.com/staff_name/daniel-mcgregor-huyer/  Later, I read a 2023 Graduate Spotlight article about Daniel at https://stories.uiowa.edu/spring-2023-graduate-spotlight-daniel-mcgregor-huyer  in which he described his experience in the UI REACH program that he credits for his successful transition to college. 

UI REACH is a four-year postsecondary comprehensive transition program (CTP) of the UI’s College of Education for college-age students with autism, ADHD, learning disabilities, and intellectual disabilities. It offers an integrated college experience in a caring and structured environment that focuses on academics, career and transition, social growth, and campus life. For information see https://education.uiowa.edu/reach

In the July issue of Iowa Magazine, I read an article by UI alum Suzanne Bartlett Hackenmiller, in which she described how the REACH program helped her son with autism find independence.  https://magazine.foriowa.org/story.php?ed=true&storyid=2341

"Comprehensive transition postsecondary programs" (CTP) is defined in the Higher Education Opportunity Act as a degree, certificate or non-degree program that is:

• offered by an institution of higher education;

• designed to support students with with disabilities who are seeking to continue academic, career, and technical education, and independent living instruction at an institution of higher education to prepare for gainful employment; and

• includes an advising and curriculum structure.

For more about REACH and the expanding postsecondary opportunities for students with disabilities, I suggest reading the articles at https://files.eric.ed.gov/fulltext/EJ1070260.pdf and https://www.liebertpub.com/doi/epdf/10.1089/aut.2021.0042 

What is Specially Designed Instruction (SDI)?

                                              SDI is what makes special education "special."

                                                                      -Professor Marilyn Friend

What SDI is:

The Individuals with Disabilities Education Act (IDEA) and the Iowa Rules of Special Education (IRSP) define special education as specially designed instruction (SDI) . . . to meet the unique needs of a child with a disability. See 20 U.S.C. § 1401(29); 34 C.F.R. § 300.39; 281 I.A.C. 41.39.  

The IDEA and the IRSE further provide that SDI involves adapting the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child's disability; and to ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children. See 34 C.F.R. § 300.39(b)(3) and 281 I.A.C. 41.39. This reference to adapting the content, methodology, or delivery of instruction underscores Congress’s expectation that SDI will be individualized according to the child's unique needs arising from the child's disability.

Professor Perry Zirkel pointed out that in Endrew F., the U.S. Supreme Court used the "unique needs" purpose in the SDI definition to reinforce the Court's refined substantive standard for FAPE:  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. (Emphasis added) See Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386 (2017); see also Zirkel, P., 387 Ed. Law Rep. 17 (2021).

For each goal area, the IEP must contain a statement of the SDI, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided to enable the child-

1. To advance appropriately toward attaining the annual goals;

2. To be involved in and make progress in the general education curriculum and to participate in extracurricular and other nonacademic activities; and

3. To be educated and participate with other children with disabilities and nondisabled children in the activities described in this section; . . .   See 20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 C.F.R. § 300.320(a)(4)); 281 I.A.C. 41.320(1)

Additionally, SDI:

• may be provided in any area of the child's unique needs (e.g., academic, behavioral, social, physical, communication, functional) (see 20 U.S.C. § 1414);

• must be designed to prepare the child for further education, employment, and independent living. See 34 C.F.R.300.1; 34 C.F.R. § 300.320(a)(4); 281 I.A.C. 41.1; 281 I.A.C. 41.301(6);

• must be delivered in an intentional, explicit, and systematic manner (see 34 C.F.R. § 300.35; § 300.226(b); 71 FR 46540, 46627);

• may be provided in any location, including multiple settings throughout the school day (see 20 U.S.C. § 1401(29)(a);

• must directly address the ambitious goals in the child's IEP (see Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 402, 137 S. Ct. 988, 1000 (2017));

• does not lower expectations or learning standards for the child (see Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. at 403 citing Rowley, 458 U. S., at 179); and 

• must be closely monitored to ensure the desired results are being achieved (see 34 C.F.R. § 300.320; 281 I.A.C. 41.51(15); 41.314).

Example:

[With the permission of a client-parent, I am sharing notes from a recent meeting of a well-functioning IEP team. "Erin" (not the child's real name) is a fourth-grader. Note how well this information in the IEP passes "the stranger test."]

Erin’s weak working memory is interfering with her progress in the general education math curriculum. Although her long-term memory is in the high average range, she has difficulty holding small amounts of information in working memory for long enough for it to transfer to long-term memory. In math class, Erin forgets the purpose of the instruction, loses track of where she is in the process of multi-step computations, skips steps, and performs steps out of order. Even when she has correctly completed a calculation, she rarely "remembers" what she "learned" and is unable to repeat the process. 

Based on recent testing of Erin's memory and her teacher’s observations of her functioning in math, Erin's IEP team determined that for her SDI in math, Erin will receive direct instruction, including pre-teaching and re-teaching of key vocabulary, math concepts and processes, modeling of abstract math concepts through visual examples/concrete materials/manipulatives, and guided practice of subskills explicitly related to her performance of whole tasks. In addition, her SDI will address the following: 

1.  Erin often does not remember instructions or what kind of problem she is doing (e.g., multiplying fractions).

• Instructions for Erin will be adapted so that they are as brief and simple as possible. 

• Instructions will be broken down into individual steps and illustrated on a flow chart that staff and Erin will use to keep track of where she is in the calculation process. 

• The type of problem and instructions will be frequently repeated by the teacher and by Erin.

2.  Erin often loses her place in multi-step math calculations. 

• Multi-step activities will be broken down into separate steps.

• External memory aids (e.g., flow charts, visual organizers) will be used during instruction and practice. To encourage Erin's use of memory aids, she will receive regular periods of practice in using the aids in the context of simple activities with few working memory demands.

3.  Erin has difficulty remembering new (and forgotten) math vocabulary for long enough to understand and save it in long-term memory.

• New and forgotten math vocabulary will be identified, listed, taught, and re-taught until she has held on to them long enough in working memory to transfer them to long-term memory.

• A list of these terms will be compiled to which Erin will have access at all times.

4.  To additionally prepare Erin for further education, employment, and independent living, she will be encouraged to ask for forgotten information, trained in the use of memory aids, and encouraged when she persists in working on complex tasks instead of abandoning them. 

What SDI is NOT:

SDI is what is done by the teacher or professional consultant (SLP, school psychologist, social worker, etc.), NOT by the child, to help close the academic performance gap between a child with disabilities and the child's general education peers. This means, among other things, that SDI is NOT  gathering data on a child or rating the child’s performance on a rubric. 

SDI is NOT dictated by a school's instructional model (e.g., MTSS, full inclusion) or by current curriculum or staffing.

SDI is NOT differentiated instruction. Differentiated instruction is used to give all students a chance to demonstrate learning in ways that work best for them; SDI is individualized instruction used to address an individual child's goals and needs.

SDI is NOT Tier 3 instruction. Generally speaking, the difference between SDI and Tier 3 interventions is that SDI is the instruction described in the child’s IEP to which the child is entitled and to which the IDEA's procedural safeguards apply. 

Example:

[With the permission of a client-parent, I am sharing notes from the meeting of a poorly functioning IEP team that took place last spring. Sam (not the child’s real name) was in third grade at that time.] 

Sam is identified as being persistently at risk in reading and despite having received Early Literacy intensive reading instruction in K-3, he hasn’t met the grade-level benchmarks on the screening assessments. On (date) his mother gave (the principal) a report from a speech evaluation at the University of Iowa and asked that Sam be evaluated for special education. After the initial evaluation, the team determined that Sam is eligible for special education in reading. 

Proposed specially designed instruction:  Sam will continue to receive 90 minutes per day of Early Literacy reading instruction. 

This description gives us no idea why Sam is struggling and how to adapt instruction to meet his unique needs arising out of his disability.  It provides nothing on which to base an assumption that this is the appropriate SDI for Sam - after all, Sam has already received early literacy instruction in K-3 and is still identified as persistently at risk in reading - so what’s the basis for giving him more of what hasn’t been working? 

 

Transition Services

 In the first section of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400(d)(1)(a)), Congress stated that one of the chief purposes of the Act is: to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living. 

The IDEA requires that when a child turns 16, the child’s IEP includes: appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and, when appropriate, independent living skills" and the transition services (including courses of study) needed to assist the child in reaching those goals." 20 U.S.C. § 1414(d)(1)(A)(i)(VIII). 

The Iowa Rules of Special Education require transition planning to be in place not later than the first IEP to be in effect when a child turns 14, or younger if determined appropriate by the IEP team. 281 Iowa Admin. Code r. 41.320(2). 

Transition services means a coordinated set of activities for a child with a disability that:

a. is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child's movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

b. is based on the individual child's needs, taking into account the child's strengths, preferences, and interests; and

c. includes instruction, relation services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.

20 U.S.C. § 1401(34); see also 34 C.F.R. § 300.320(b) (noting a transition IEP "must include appropriate measurable secondary goals . . . related to training, education, and employment . . . [and] transition services (including courses of study) needed to assist the child in reaching those goals.").

When a child needs specially designed instruction (SDI) to benefit from the child’s transition services, it is “special education” and should be tied to an IEP goal. 34 C.F.R. § 300.18(b)(2)(i). When a child needs related services to benefit transition services, those services should be written into the IEP. These determinations should be made on a case-by-case basis by the IEP team. Letter to Hamilton, 23 IDELR 721 (OSEP 1995). 

When a child with an IEP does not require special education to benefit from the child’s transition services, as long as the transition services are determined by the student's strengths, preferences, and interests, and are provided as a coordinated set of activities, the transition services may include instruction that is available to all children. Id. 

A few more things:

• The IEP team must clearly state the amount of services provided in the IEP so that the school district’s commitment of resources will be clear to parents and providers. 71 Fed. Reg. 46,667 (2006). 

• School districts and AEAs may not tell a student with a disability what that child can or cannot achieve.

• School districts may not restrict transition services solely to a menu of experiences that can be provided on school grounds. 

• School districts are expected to take a leadership position in contacting agencies expected to provide services to the student and to act as a liaison between the parents and the other agencies while the student is enrolled in school. See Letter to Bereuter, 20 IDELR 536 (OSERS 1993). See also Yankton Sch. Dist. v. Schramm, 93 F.3d 1369 (8th Cir. 1996). 

• A school district may not unilaterally delegate its transition responsibilities to parents.

• A district is ultimately responsible to the student for ensuring that the transition services called for in the student's IEP are implemented. 

Compensatory Education

When a school district fails to provide a child with a free and appropriate education (FAPE), the IDEA doesn’t provide for recovery of money damages. However, it allows for reimbursement through the provision of compensatory educational services. See Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2020).

Compensatory Education "compensates" the child's educational deprivation (loss of FAPE) resulting from a school district's failure to provide special education services. When those services are not provided or the IEP is not appropriate for the child, the parent may assert a claim for compensatory education.

Whether the school district provides the child a FAPE going forward is irrelevant to an award of compensatory education. See Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2020). An award of compensatory education is backward-looking in nature; its purpose is restorative and intended to put the child in the education position the child would have been had the school district appropriately provided a FAPE. Id.

Example 1: A child’s IEP stated that each week she would receive 45 minutes of specially designed instruction (SDI) in social skills. A year later, the child’s parents found out that the SDI was never provided. The parents filed a complaint and were awarded an equivalent number of hours of compensatory education to make up for the child’s educational loss. 

Example 2: A school district failed to identify a child as eligible for special education. His parents paid the cost of private tutoring to remediate his academic deficits and filed a complaint. They were awarded reimbursement for the cost of tutoring.* The reimbursement was calculated according to the actual costs of tutoring. 

On June 30, 2020, the U.S. Eighth Circuit Court of Appeals issued a decision upholding the due process hearing award of compensatory education. Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1076 (8th Cir. 2020). Under the facts of that case, the school district knew the child was missing significant time due to mental health issues and was receiving treatment at a psychiatric facility. Id. However, the district did not refer her for a special education evaluation because she was of above-average intelligence. The Eighth Circuit, finding that the school district violated its IDEA child-find obligation since the student's eligibility for special education was not foreclosed by her intellect, the Court reinstated the due process award (1) finding that the student eligible for special education and related services; (2) requiring the school district to develop an IEP providing the child with a FAPE; (3) requiring the school district o conduct quarterly meetings to consider changes to the IEP; (4) requiring the school district to reimburse the parents for the past diagnostic and educational expenses they incurred; and (5) requiring the school district to pay for compensatory services in the form of private tutoring and the cost of attendance of the Student's psychiatrist and private tutor at IEP meetings.  Id. 

* In Iowa, one of the duties of the Iowa Department of Education’s School Budget Review Committee may grant supplemental aid to a school district from any funds appropriated to the Department of Education to address any unusual need for additional funds for special education or compensatory education programs. See Iowa Code§ 257.31(5)(h).

The Long and Winding to School-Supported Private School Placement

I receive a number of calls from parents of children with IEPs asking how they can require their child’s school district to pay the tuition and related costs for their child's placement in an out–of–state private school. 

I explain that unless a school district agrees to the placement and to payment of the tuition and fees, a parent will have a long, tough road ahead. An example of this complex terrain is demonstrated by the following abbreviated history of the Steckelberg v. Chamberlain School District case.  

Background:

The Steckelberg's son, AMS, was a special education student in a South Dakota public school high school. He had several diagnoses, including autoimmune disorder, PANS/PANDA, Obsessive Compulsive Disorder, Tourette's Syndrome, and random tic disorders. His symptoms prevented him from sitting still in the classroom, paying attention to his teachers, and learning the information being taught. It was difficult for AMS to control his challenging behaviors which included shouting, swearing, not following rules, cheating, and sexual behaviors. 

2018:  

• In February, a behavior analyst hired by the school district who had performed a Functional Behavior Assessment of AMS, developed and gave to the school district a behavior support plan. However, it was never shared with AMS's parents, teachers, or the IEP team, and was never implemented.
• In the summer, before AMS started his junior year, he had a sexually related incident with a six-year-old girl that resulted in criminal charges.
• On December 14, the principal sent an email to the parents stating, "I'm at the point where I don't think being at Chamberlain High School is the right setting for [AMS]." 

2019: 

• The IEP team met on January 25 with the parents in attendance. During the meeting, the parents agreed to home placement of AMS, believing that AMS would receive behavioral and educational supports and services at home. However, the School District did not provide those supports and services, and the home placement was a disaster.
• In April, the parents gave to the School District information about some possible out-of-state placements for AMS that they had located. Their list included the Kaizen Academy, a residential treatment facility in Utah. The School District contacted Kaizen to see if AMS might be a fit for that facility. The District didn't pursue the placement when it learned that Medicaid would not pay any portion of the costs associated with AMS's attendance at Kaizen.
• On August 26, although neither Medicaid nor the School District was willing to pay any portion of the costs for educational and therapeutic services, room, board, or transportation, the parents enrolled AMS at Kaizen Academy.
• On August 30, the parents filed a due process complaint with the South Dakota Department of Education, alleging that the school district had denied AMS a FAPE and that his placement at the Kaizen Academy for therapy and education should be paid for by the School District under the Individuals with Disabilities in Education.*

2021: 

• On July 8, the hearing officer ruled on the parents' due process complaint, likening AMS's circumstances to those of the special education student in S.B. v. Murfreesboro City Sch., 2016 U.S. Dist. LEXIS 31675, 2016 WL 927441 (M.D. Tenn. March 11, 2016), in which the district court found that the student's educational difficulties could not be separated from his emotional and behavioral problems, and that the residential placement was needed for the student to benefit from special education. The hearing officer in the Steckelberg parents' due process case ruled that the School District failed to offer AMS a free appropriate public education ("FAPE"), that the private placement at Kaizen Academy was proper, and that the School District was responsible for reimbursing the parents for AMS's private tuition and travel expenses. 
• On August 6, the School District appealed the hearing officer's decision to the South Dakota State District Court. 
• On August 23, the parents filed a motion to remove the case from state court to the US District Court for the Southern District of South Dakota.

2022:  

• On January 18, the US District Court for the Southern District of South Dakota found in favor of the parents' request for the case to be removed from state to federal court. Steckelberg v. Chamberlain Sch. Dist., No. 4:21-CV-4147-LLP, 2022 U.S. Dist. LEXIS 10294 (D.S.D. Jan. 18, 2022).
• On the same day, it affirmed the hearing officer's due process decision. Steckelberg v. Chamberlain Sch. Dist., 77 F.4th 1167 (8th Cir. 2023).
• AMS graduated from high school at Kaisen Academy.

2023:  

• The School District appealed the federal district court decision to the Eighth Circuit Court of Appeals.
• On August 15, the Eighth Circuit issued a decision upholding the due process hearing decision and the federal district court ruling that both found that the School District failed to provide AMS with a FAPE and awarded reimbursement to the parents of his private school tuition and related costs. See Steckelberg v. Chamberlain Sch. Dist., 77 F.4th 1167 (8th Cir. 2023).

*The IDEA (20 U.S.C. § 1412(a)(10)(C)(i)) bars private school tuition reimbursement when a school district makes a free appropriate public education (FAPE) available by correctly identifying a child as having a disability and proposing an IEP adequate to meet the child's needs. Additionally, 20 U.S.C. § 1412(a)(10)(C)(iii) covers the circumstances under which the amount of reimbursement for private school tuition described in § 1412(a)(10)(C)(ii) may be reduced or denied by a public educational entity, such as when a parent fails to give 10 days' notice before removing a child from public school or refuses to make a child available for evaluation, and § 1412(a)(10)(C)(iv) lists circumstances in which a parent's failure to give notice may or must be excused. 

Education Malpractice?

  [I wrote most of this blog last spring, but held off completing it until after the Eighth Circuit Court of Appeals issued its decision in Baker v. Bentonsville.]

Last spring I had a flood of calls from Iowa parents asking if they could sue a school district, area education agency, or an employee of either for “education malpractice.” The short answer is probably not because the courts have refused to recognize a cause of action for education malpractice. 

Malpractice is a tort (a civil wrong) based on reasonableness and fault. Under tort law, an individual who has suffered because of the improper conduct of another person or entity may sue for money damages. The purpose of tort law is to balance a plaintiff's claim to protection from harm against the defendant's freedom of action. Malpractice focuses on the duty owed to the recipient of the professional service and whether that duty has been breached, causing injury. See DeMitchell, T., King, S., & DeMitchell, TA. 2022. Educational Malpractice: Is it a tort whose time has come? 32 U. Fla. J.L. & Pub. Pol'y 253, 262.

Educational malpractice complaints are generally brought under the theory of negligence and focus on the reasonableness of the conduct of school officials in providing the basic functions of teaching, supervising, placing, and testing students in relation to academic performance.  

Between 1982 and 2023, Iowa’s state and federal courts and the Eighth Circuit Court of Appeals have issued 66 decisions involving educational malpractice claims. I have briefly summarized four of them below. 

1986 Moore v. Vanderloo, 386 N.W.2d 108, 113-15 (Iowa 1986). 

In the Moore decision, the Federal District Court for the Northern District of Iowa recognized three categories of educational malpractice. 

1. Basic academic instruction or misrepresentation of the level of academic performance,
2. Placing or failing to place a student in a specific educational setting, 
3. Supervision of student performance. 

In denying relief to the plaintiffs, the court gave five policy reasons for its refusal to make any of these categories actionable:

1. the absence of an adequate standard of care, 
2. uncertainty in determining damages,
3. the burden placed on schools by the potential flood of litigation that would probably result, 
4. the deference given to the educational system to carry out its internal operations, and 
5. the general reluctance of courts to interfere in an area regulated by legislative standards.

The court also posited that educational malpractice claims "would force the courts blatantly to interfere with the internal operations and daily workings of an educational institution" which would be contrary to academic freedom and the autonomy of schools. 

2001 Sain v. Cedar Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 121 (Iowa 2001). 

In Sain, the Iowa Supreme Court dismissed the educational malpractice claims of a former Cedar Rapids Community School District student who was being recruited to play Division I college basketball. He filed suit against the District after losing his scholarship to play basketball for a major college when it turned out that one of the courses he took on the advice of his high school guidance counselor had not been accepted by the NCAA Clearinghouse. The student filed an action claiming that the guidance counselor breached a duty to provide competent academic advice concerning the student’s eligibility to participate in Division I sports as a freshman. In finding against the student, the court held that the school district had no duty to provide a list of courses for approval to the NCAA.

2020 Richardson v. Omaha Sch. Dist., 957 F.3d 869, 872 (8th Cir. 2020)

The Eighth Circuit Court of Appeals denied relief to the parents of a child with disabilities who claimed that the school had engaged in educational malpractice in violation of the ADA and § 504 when it failed to ensure that their child was not bullied. In finding against the parents, the court stated that Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the ADA, 42 U.S.C. § 12131-12165, do not create general tort liability for educational malpractice. 

The court explained that when alleged ADA and § 504 violations are based on educational services for disabled children, the plaintiff must prove that school officials acted in bad faith or with gross misjudgment," and further explained:

In order to establish bad faith or gross misjudgment, a plaintiff must show that the defendant's conduct departed substantially from accepted professional judgment, practice, or standards so as to demonstrate that the persons responsible actually did not base the decision on such a judgment. Bad faith or gross misjudgment requires more than "mere non-compliance with the applicable federal statutes." The non-compliance "must deviate so substantially from accepted professional judgment, practice, or standards   as to demonstrate that the defendant acted with wrongful intent." 

2023 Baker v. Bentonville Sch. Dist., 75 F.4th 810, 815-16 (8th Cir. 2023)

A young child with impaired visual acuity had several playground accidents (i.e., tripping on a concrete slab, colliding with the foot of a child playing on the monkey bars, etc.). The school implemented a § 504 Plan with safety provisions and no further accidents occurred.  A year later, after the child was diagnosed with epilepsy, her parents filed a lawsuit against the school district claiming the district had committed educational malpractice in violating Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.  

As in the case above the Eighth Circuit said that neither the ADA nor § 504 create general tort liability for educational malpractice and further stated that in the context of children with disabilities, either bad faith or gross misjudgment must be demonstrated before there is a viable claim for a § 504 violation. Explaining that bad faith or gross misjudgment requires more than mere non-compliance with a rule; the non-compliance must deviate so substantially as to demonstrate that the defendant acted with wrongful intent. It concluded, “This rule reflects a proper balance between the rights of handicapped children, the responsibilities of state educational officials, and the competence of courts to make judgments in technical fields.”