Author: Heather M. Edwards
As a result of school site closures due to the COVID-19 pandemic, parents of students with disabilities may be concerned about promoting their child to the next grade level during the coming school year. In California, school districts and county boards of education are required to have a policy regarding the promotion and retention of students. (Ed. Code § 48070.) The policy must provide, among other things, parental notification when a pupil is identified as being at risk of retention and a process whereby the decision to retain or promote a pupil may be appealed. In addition, the policy must indicate the manner in which opportunities for remedial instruction will be provided to students to avoid retention. (Ed. Code § 48070.5). Therefore, local educational agencies want to ensure they are familiar with and adhering to their promotion and retention policies.
For students with disabilities, placement decisions under the Individuals with Disabilities Education Act (“IDEA”) are not synonymous with a school district’s policies and practices regarding the promotion and retention of its pupils. (Letter to Anonymous (OSEP 2000) 35 IDELR 35; Letter to Davis-Wellington (OSEP 2003) 40 IDELR 182.) The promotion or retention decisions for all pupils, including pupils with disabilities, are left to the state or local school district, and are generally not decisions left to the IEP team. (Letter to Anonymous (OSEP 2000) 35 IDELR 35.) However, IDEA does not prevent a state or local educational agency from assigning this responsibility to the IEP team. (Letter to Davis-Wellington (OSEP 2003) 40 IDELR 182.) Retention may also be considered as an appropriate remedy where there is evidence of a denial of FAPE, such as a school district’s failure to implement an IEP. (Letter to Anonymous (OSEP 2000) 35 IDELR 35.) For students with disabilities, the IDEA requires that an IEP specify any alternative promotion standards or requirements and the standards by which a student will be promoted.
The California Department of Education (“CDE”) has provided specific guidance related to the promotion and retention of students with disabilities. Generally, CDE recommends that where a student with a disability fails to meet board-adopted or individualized promotion standards, the IEP team should convene and consider certain questions including “did the student receive all the services identified in the IEP” and “was the student’s promotion standard appropriate and clarified in the IEP?” IEP teams should also consider what potential interventions and supports may be available to address parents’ concerns about potential learning loss and the impact to their child’s educational program, particularly when a child is transitioning from elementary to middle school or middle school to high school.
Interestingly, in response to school closures during the COVID-19 pandemic, the legislature has introduced Senate Bill 545 (Wilk) which would require school districts, upon receiving a request from a parent to retain a student for the 2021-22 schoolyear, to offer the student specified interventions and supports, certain credit recovery options, and to provide the parent information about research regarding the effects of pupil retention. We will be tracking this legislation as it moves through the process.