The Office of Special Education Programs (“OSEP”) recently issued guidance clarifying when and how parents must be notified before records containing personally identifiable information (“PII”) are destroyed under the Individuals with Disabilities Education Act (“IDEA”). Letter to Zacchini, 69 IDELR 188 (February 27, 2017).
Federal regulations require local educational agencies (“LEAs”) to (1) inform parents of children with disabilities when PII collected, maintained, or used under IDEA is no longer needed to provide educational services to the child; and (2) destroy PII at the request of the parent once it is no longer needed. 34 CFR §§ 300.624(a), (b). However, a permanent record of a student’s name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation. 34 CFR § 300.624(b), see also, 5 C.C.R. § 430 et seq. [state regulations governing classification, retention, and destruction of pupil records].
Typically, LEAs provide the required notice to the parent and student when the student graduates (i.e., receives a regular high school diploma or ages out) or otherwise leaves the LEA. OSEP has clarified that an LEA is not required to also provide this notice to parents when it actually destroys a student’s special education records that are no longer needed or deletes them from its database. Rather, it is sufficient if the LEA informs parents that the records are unnecessary at the time that the LEA makes that determination.
OSEP explained that LEAs should also remind parents that they may require the records, such as an IEP, for other purposes, including college or employment accommodations, public benefits, or insurance. As a result, parents may want to exercise their right to access those records and request copies of the records that they will need to acquire post-school benefits in the future before they are destroyed.
While OSEP’s guidance is informal and is not legally binding, it represents an interpretation of the IDEA by the U.S. Department of Education in the context of the specific facts presented. In addition, this guidance serves as an important reminder for LEAs to ensure their policies and procedures for retention and destruction of student records meet the state and federal legal requirements for students with disabilities.
Supreme Court Holds IEPs Must Be “Reasonably Calculated to Enable a Child to Make Progress Appropriate in Light of the Child’s Circumstances"
- Where a student is educated outside of the general classroom setting, his or her IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
- This progress must be “appropriately ambitious in light of his [or her] circumstances,” as “every child should have the chance to meet challenging objectives.”
- The goals should be written by someone knowledgeable about the student’s individual needs, present capabilities, and potential for growth, and include significant input from the student’s parent(s) and/or guardian(s).
- There is still no “bright-line rule,” but reviewing courts should give deference where a school can “offer a cogent and responsive explanation for their decisions” showing the IEP is appropriate for the individual child.
Today, in an unanimous decision, the U.S. Supreme Court issued its long-anticipated ruling in Endrew F. v. Douglas County School District, reversing the Tenth Circuit’s use of a “de minimis benefit” test when determining whether an IEP sets out appropriately challenging educational goals. The Supreme Court instead held that an IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___ (2017) at *14-15 (emphasis added).
Endrew F. is a Coloradoan elementary school student diagnosed with autism. Endrew attended Douglas County schools from preschool through fourth grade. However, by fourth grade, Endrew’s “academic and functional progress had essentially stalled” as he faced behavioral problems in the classroom. Endrew F., at *7. As evidence of this stall, Endrew’s IEPs “largely carried over the same basic goals and objectives from one year to the next.” Endrew F., at *7. When the school district presented a proposed 5th grade IEP what was “pretty much the same as his past” IEPs, Endrew’s parents removed him from his school and enrolled him in a private school specializing in educating children with Autism. Endrew F., at *7.
At the new school, Endrew was given increased academic goals and a new behavioral intervention plan. Almost immediately, Endrew’s behavior improved and he began making academic progress well beyond that made at his prior school.
Six months later, Endrew’s parents met again with the Douglas County School District, and the district presented a new IEP that parents believed was “no more adequate” than the prior IEP, and no new behavioral plan that incorporated the changes and progress made at the private school. Endrew F., at *7. Parents continued sending Endrew to the private school, and filed a complaint alleging a denial of FAPE and seeking reimbursement of tuition.
ALJ, District Court, and Tenth Circuit Apply the “de minimus Benefit” Test and Deny Parent’s Complaint
In the administrative hearing, Endrew’s parents “contended that the final IEP proposed by the school district was not ‘reasonably calculated to enable him to receive educational benefits’” and therefore the school district denied Endrew FAPE. Endrew F., at *8. However, the ALJ disagreed and denied relief. Parents sought review in Federal District Court, which upheld the ALJ’s ruling based on the de minimis benefit test. The District Court found that while Endrew’s performance under the school district’s IEPs did not show “immense educational growth,” the “annual modifications to Endrew’s IEP objectives were ‘sufficient to show a pattern of, at the least, minimal progress.’” Endrew F., at *8.
The Tenth Circuit affirmed, stating the school district did not deny Endrew FAPE because under the de minimis test, an IEP “is adequate as long as it is calculated to confer an educational benefit that is merely more than de minimis.” Endrew F., at *8-9. Because the Tenth Circuit found Endrew’s IEP had been “reasonably calculated to enable him to make some progress,” it held that the school district had met its burden to provide an appropriate education. Endrew F., at *8-9.
The Supreme Court Reverses, Holding “a School Must Offer an IEP Reasonably Calculated to Enable a Child to Make Progress Appropriate in Light of the Child’s Circumstances”
The Supreme Court unanimously reversed, stating that the FAPE “reasonably calculated to enable the child to receive educational benefits” “standard is more demanding than the ‘merely more than de minimis’ test applied by the Tenth Circuit.” Endrew F., at *14. The Court found that “a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly . . . awaiting the time when they were old enough to drop out.’” Endrew F., at *14 (citing Board of Ed. V. Rowley, 458 U.S. 176, 179 (1982)).
Instead the Court found the proper standard is that “a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” “to meet its substantive obligation under the IDEA.” Endrew F., at *11.
In reaching this position, the Court reflected on its prior decision in Rowley, in which it held that for a student in a general education setting, adequacy of an IEP could generally be measured by determined whether the IEP was reasonably calculated to enable the student “achieve passing marks and advance from grade to grade.” Endrew F., at *5-6. However, the Rowley decision limited itself to the facts of the case and declined to provide a test for interpreting whether an IEP was “reasonably calculated to enable the child to receive educational benefits” where the student was not in a general education setting.
Where a student is not in a general education setting, an IEP “need not aim for grade-level advancement” if that “is not a reasonable prospect for the child.” Endrew F., at *14. Instead, an “educational program must be appropriately ambitious in light of [the child’s] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F., at *14.
Here, the Court again declined to state a bright-line rule for determining the adequacy of an IEP’s educational goals. Instead, the Court noted because an IEP “is not a form document” and the offered instruction must be specially designed to meet the unique needs of a child on an individualized basis, “the IEP must be appropriate in light of the child’s circumstances.” Endrew F., at *11-12. This analysis must be performed on a “case-by-case” basis because “the adequacy of an IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., at *15-16. The Court explicitly stated that “the ‘reasonably calculated’ qualification reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials. . . . informed not only be the expertise of school officials, but also by the child’s parents or guardians.” Endrew F., at *11.
Finally, the Court recognized that because the adequacy of the IEP turns on the uniqueness of every situation, a reviewing court should give deference “based on the application of expertise and the exercise of judgment by school authorities” and cannot “substitute their own notions of sound educational policy for those of the school authorities which they review.” Endrew F., at *16.
Federal Department of Justice and Department of Education Withdraw Policies and Guidance Protecting Transgender Students form Discrimination. However, California State Anti-Discrimination Protections for Transgender Students Remain in Place
Federal Policies and Guidance Regarding Anti-Discrimination Protections for Transgender Students Withdrawn by Department of Justice and Department of Education
On February 22, 2017, following the confirmation of Jeff Sessions and Betsy DeVos, the Department of Justice and Department of Education jointly issued a withdrawal of policy and guidance statements regarding protections from discrimination of Transgender Students issued under the Obama Administration. The withdrawn statements are:
- Letter to Emily Prince from James A. Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, Office for Civil Rights at the Department of Education dated January 7, 2015; and
- Dear Colleague Letter on Transgender Students jointly issued by the Civil Rights Division of the Department of Justice and the Department of Education dated May 13, 2016.
In general, the withdrawn statements interpreted Title IX requirements as requiring schools to treat transgender students in a manner consistent with their expressed gender identity. However, under the new Administration, “the Department of Education and the Department of Justice have decided to withdraw and rescind the [now-withdrawn] guidance documents in order to further and more completely consider the legal issues involved . . . [and] thus will not rely on the views expressed within them.”
The February 22 withdrawal statement goes on to state that “this withdrawal … does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”
Transgender Students Remain Protected Under California State Law
While the federal administration may be moving to roll back protections for transgender students, these federal changes do not alter protections under California law. As such, transgender students retain all State protections against discrimination on the basis of gender identity afforded by California Education Code section 221.5.
Therefore, under California law:
- Schools must afford students equal opportunity and access to the school’s facilities (including bathrooms), activities, and programs, in a manner that is consistent with each student’s gender identity, irrespective of whether the student’s gender identity matches the student’s assigned sex at birth.
- Schools must provide all students with a safe, supportive and inclusive learning environment, free from discrimination, harassment, and bullying, including but not limited to:
- being teased for failing to conform to sex stereotypes,
- being deliberately referred to by the name and/or pronouns associated with the student’s assigned sex at birth,
- being deliberately excluded from peer activities, and
- having personal items stolen or damaged.
The California Supreme Court ruled that government officials are required to search personal devices and accounts for documents related to government business and disclose that information when a Public Records Act request is made.
In City of San Jose v. Superior Court of Santa Clara County, an individual requested documents related to government activity located in a government official’s personal email account with a Public Records Act request. The request also included emails and text messages from the official’s private cell phone. The City denied the request as to the private email accounts and cell phones as traditionally privately maintained accounts and devices were not subject to Public Records Act requests.
The Court summarized the issue as “Are writings concerning the conduct of public business beyond CPRA‟s reach merely because they were sent or received using a nongovernmental account?” Considering the intent of the Public Records Act, the court determined that allowing a government official to conduct government business using private accounts and devices would essentially create an exception to the Public Records Act.
The Court found that documents containing “information relating to the conduct of the public’s business” is subject to the Act even if maintained on an officials private account or device.
The law, like the Public Records Act, is slowly catching up to the popularity of personal electronic devices. As such, the Court here essentially ruled that the intent of the Public Records Act to ensure openness in government prevents officials from preventing the disclosure of government information by using personal accounts and devices.
This case also serves as a valuable reminder of the public’s broad power to request information from government agencies. Therefore, government employees should take special care when using personal accounts and devices for government purposes.
In response to a request from a parent’s attorney, the U.S. Department of Education’s Office of Special Education Programs (“OSEP”) states that the Individuals with Disabilities Education Act (“IDEA”) does not have a general requirement that local educational agencies (“LEAs”) communicate with a parent’s attorney. (Letter to Marcus, 117 LRP 2469 (OSEP,, Dec. 27, 2016.)
The IDEA allows parents to use an attorney in specific circumstances. A parent (and LEA) has a right to legal representation at a due process hearing. 34 CFR § 300.512(a)(1). A parent may also be represented by one or more individuals of his or her choice at an individualized education program (“IEP”) team meeting. This representative may be an attorney as long as the representative has “knowledge or special expertise regarding the child.” 34 CFR § 300.321(a)(6).
In these situations, OSEP believes that the IDEA requires LEAs to communicate with a parent’s attorney as the parent’s designated representative. However, as OSEP explains, the IDEA has no general requirement that LEAs communicate with a parent’s attorney in situations where the IDEA does not affirmatively give parents the right to representation. While OSEP implies that an LEA can insist on communicating directly with a parent in other circumstances, OSEP reminds us that its opinion is only “informal guidance” and not legally binding.
When a parent retains an attorney, we recommend that you confer with your own legal counsel and give careful thought to any direct communication with the parent’s attorney. In some situations you may be able to bypass the parent’s attorney and communicate directly with the parent. In fact, parent participation in the special education decision making process is vitally important. State and federal law establish various procedural safeguards that guarantee parents an opportunity for meaningful input into all decisions affecting their child’s education. Generally speaking, direct communication with the parent is critical to ensure meaningful participation in the IEP process and to ensure that the child’s needs are met.
Keep in mind that different rules apply to attorneys. An attorney cannot communicate directly with a parent or an LEA if the attorney knows that the other party is also represented by an attorney.