The 11th Circuit has now joined the 4th, 5th, 8th and 9th Circuits in holding that a failure to implement an IEP is a denial of FAPE only when the school “materially” fails to do so. Key Quote:
The plaintiff must prove more than a minor or technical gap between the plan and reality; de minimis shortfalls are not enough. A material implementation failure occurs only when a school has failed to implement substantial or significant provisions of a child’s IEP.
Here, the court held that the school passed this test. There were services in the IEP that the school did not provide, but that was often because the student refused to attend school. Moreover, the court concluded that the student’s refusal to attend was not attributable to any failing on the part of the school.
This is an important high level court decision that includes a good discussion of the distinction in cases between those that are about the IEP as written vs. the IEP as implemented. Thus it makes for important reading for lawyers.
However, it is also an example of how broken our system of legal review is. This decision from 2019 is about an IEP that was written for the 2005-06 school year. Due to continuous litigation, that IEP (for third grade) remained in effect due to “stay put.” The administrative law judge conducted a hearing that lasted 18 non-consecutive days over a two year period. That hearing concluded in October, 2009, but it was more than a full year later when the ALJ issued a decision. The case then went to federal district court, which made its ruling six years (SIX YEARS!!!) later. Then it went to the Circuit Court. The Court noted this:
As a result, L.J.—now 26 years old—is long gone from the Broward County school system, and any compensatory education he could receive from this case is surely less valuable than it would have been during his middle school years.
No kidding. This one scores high on the Sheesh-O-Meter.
L.J. v. School Board of Broward County, Florida was decided by the 11th Circuit on June 26, 2019. We found it at 74 IDELR 185 (11th Cir. 2019).
DAWG BONE: LAWYERS MADE A LOT OF MONEY ON THIS ONE. DID ANYONE ELSE BENEFIT?
Tomorrow: Restorative Practices conference coming up!