Author: Michael Tucker
Even if every effort is made to resolve a special education due process dispute, parties may still find themselves headed towards a hearing. To prevent unnecessary litigation and create an opportunity for the parties to resolve their dispute, the IDEA requires a resolution session, convened by the LEA, unless it is waived. 34 CFR 300.510. The meeting’s purpose is for the parties to discuss the due process complaint, and the facts forming the complaint’s basis, so that the LEA has an opportunity to resolve the dispute. Id. Below, please find 4 tips to help prepare for a resolution session.
- Quickly Organize All Files and Relevant Documents to Analyze the Case.
Parties to a due process complaint often enter into the case with preconceived notions regarding what the case’s exact “issues” that form a basis for the dispute. While it is important to understand these issues, it is equally important to enter the resolution session prepared to discuss the student’s entire educational history. To do so often requires ensuring that a complete copy of all the relevant documents exists and the participants to the resolution session have an understanding regarding the student, his/her needs, and the various potential options for resolution. It is also important to understand the relative strengths and weaknesses in each case so that a clear understanding of liabilities exists to assist the parties in making the best decision possible during the resolution session. Finally, it should be noted that the LEA is required to convene a resolution meeting within 15 days of receiving notice of the due process complaint (or within seven (7) days for expedited matters which are generally related to discipline matters). Id. This short timeline requires quick action.
- Embrace Curiosity as a Problem-Solving Method.
It can be easy to assume that a party’s position is clear cut and that the only way to resolve the dispute is to give the party what they have been demanding since the disagreement first surfaced. However, dogmatic adherence to such assumptions can limit the universe of potential settlement options. Also, parents and student’s counsel may not be aware of the various potential educational options offered by an LEA. Curiosity can help both parties open up creative approaches to problem solving during a resolution session. Asking that a party to clarify their motivation for a particular request can show that there is an interest in understanding and resolving the conflict. Additionally, sometimes the parties to a dispute can often become frustrated with each other. Occasionally movement towards resolution can be achieved by including new team members in the resolution session that can offer a fresh perspective to a stale dispute.
- Designate a Facilitator.
Often times resolution sessions can be disorganized, which can limit the meeting’s productivity. It is recommended that the team approaching the resolution session designate a meeting facilitator to maximize the meeting’s efficiency and productivity. The facilitator should be prepared and provide a measured approach to the meeting. It is likely that the student’s representatives are already suspicious of the LEA. Providing a facilitator who at the very least appears neutral can help instill trust and increase the opportunities for a resolution. While the LEA can’t bring an attorney unless the student does, the LEA team should include various IEP members and a person with decision making authority. Id. A facilitator could be selected from any one of these individuals.
- Consider Confidentiality.
Unlike mediation, resolution sessions are not generally automatically confidential. This means that information shared, or comments made, during the resolution session may be later used by either party. Letter to Cohen, 67 IDELR 217 (OSEP 2015). It is also important to note that an LEA may not demand that the session be confidential without the other party’s agreement. Letter to Baglin, 53 IDELR 164 (OSEP 2008). However, the parties may agree to keep the session confidential by entering into a confidentiality agreement prior to conducting the resolution session.
Author: Anisa Jassawalla, Attorney at Law
In the Massachusetts case C.D. v. Natick Public School District (2019) 74 IDELR 121 (“Natick”), the parents of a high school student with an intellectual disability and deficits in language ability filed a complaint with the Massachusetts Bureau of Special Education Appeals (MBSEA) seeking reimbursement for their daughter’s tuition at a private placement. Parents alleged, among other issues, that Student’s IEPs for the 2012-2013, 2013-2014, and 2014-2015 school years denied Student a free appropriate public education (“FAPE”) by failing to develop sufficiently challenging objectives.
MBSEA found that Student’s IEPs provided her with FAPE and denied Parents’ request for reimbursement. Parents then appealed the MBSEA decision to the U.S. District Court and U.S. Court of Appeals, First District, arguing that the MBSEA and the lower court misapplied the Endrew F. decision when it reviewed the Student’s proposed IEPs.
According to the landmark Supreme Court case Endrew F. v. Douglas County School District, a local educational agency must offer an IEP “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances,” in order to meet the LEAs obligation under the Individuals with Disabilities Education Act. (Endrew F. v. Douglas County School District (2017) 137 S.Ct. 988, 991). The Endrew F. court further stated that a student’s educational program must be “appropriately ambitious” and that “every child should have the chance to meet challenging objectives.” (Id. at 1000).
Parents asserted in Natick that a court cannot simply consider whether an IEP allows a student to “make progress that is appropriate in light of the child’s circumstances.” Rather, the court is additionally required to consider whether a student’s IEP objectives are “ambitious” and “challenging,” which would essentially create a two-part test to determine whether a school district provided a student with FAPE.
However, the U.S. Court of Appeals, First District disagreed with Parents. The Court of Appeals found that Endrew F. does not require a two-part test. Instead, the court stated, “The parents misread Endrew F., which did not construe the FAPE standard as two independent tests.” Instead, “Endrew F. used terms like ‘demanding,’ ‘challenging,’ and ‘ambitious’ to define ‘progress appropriate in light of the child’s circumstances,’ not to announce a separate dimension of the FAPE requirement.” While the Court of Appeals recognized that a court evaluating the appropriateness of an IEP may need to consider whether the IEP was sufficiently challenging, such an analysis would be part of the court’s comprehensive review of an IEP rather than a separate and distinct two-part test. The Court of Appeals upheld the lower court’s determination that the parents were not entitled to reimbursement for Student’s private placement because Student’s IEPs allowed Student to make appropriate progress.
The takeaway for local educational agencies is that Endrew F. does not require courts to evaluate the appropriateness of an IEP based on a two-prong test, or require courts to conduct a separate evaluation into whether an IEP’s objectives or goals are “appropriately ambitious” or “challenging.” Instead, the court will evaluate whether an IEP provides a student with FAPE based on a holistic review of the IEP. However, it is also important to note that Natick is a Massachusetts case. As a result, while California courts may apply this case as persuasive authority, they are not required to follow the court’s conclusions.