I have had dual professional citizenship for a long time. Trained and licensed as a lawyer, but I spend all my time with educators. As a result of this, I sometimes notice the distinctions between the language that fits the school building vs. the language that fits the courtroom.
One common illustration of this is the term we read in many court cases—“deliberate indifference.” Courts frequently dismiss cases brought against school districts because the school was not “deliberately indifferent.”
Well whoop-dee-doo. The fact that educators were not deliberately indifferent to a student in need is not exactly inspiring. You will never see this phrase in a school mission statement. The principal would be wise not to tell the parents at “back to school night” that our goal is not to be “deliberately indifferent” to student welfare. “Deliberately indifferent” is a phrase that should be used by your lawyer, and only when necessary. It’s a low bar, but one that is sufficient in litigation. So your lawyer may very well acknowledge mistakes and failings by the school while urging the court to rule in its favor because the school was not “deliberately indifferent.”
The 1st Circuit recently issued a ruling that highlights a phrase that works the other way—it should be used in the school building, but not so much in the courtroom. The context was a special education lawsuit. The parents argued that the court should determine if a student’s IEP is “appropriately ambitious.” Does the IEP contain “challenging objectives”?
Those phrases come from Justice Roberts’s opinion in Endrew F. v. Douglas County. They challenge schools to develop an IEP for each child that sets the bar high…for that child. However, the 1st Circuit said that “appropriately ambitious” is not the standard that the courts should apply. Instead, the FAPE standard requires courts to ask “whether the IEP was reasonably calculated to confer a meaningful educational benefit in light of the child’s circumstances.” Key Quote:
On the parents’ reading, after Endrew F. courts must ask not only whether an IEP offers meaningful educational progress, but also, separately, whether the IEP’s objectives are ambitious and challenging.
The parents misread Endrew F., which did not construe the FAPE standard as two independent tests.
So the FAPE standard does not incorporate Justice Roberts’s aspirational language. But the leader at an ARD meeting should. When sitting at the table with teachers and parents, it would be wise to use “appropriately ambitious” and “challenging objectives.” When the team considers annual goals for the child, the leader should ask the members: “do you think this goal is appropriately ambitious for this child? Are the objectives we aim for challenging for this student?” Those high standards from the SCOTUS opinion should make their way right into the school building. But when that IEP gets challenged in court, your lawyer will not be required to show that the IEP was “appropriately ambitious,” but only that it was calculated to confer benefit that would be meaningful for this child.
The case is C.D. v. Natick Public School District, decided by the 1st Circuit on May 22, 2019. We found it at 74 IDELR 121.
DAWG BONE: DIFFERENT PROFESSIONS…DIFFERENT LANGUAGE.
Tomorrow: Has the Doe family moved into your district?