“The parents overread the letter….”

In the process of ruling in favor of a school district in a special education dispute, the 3rd Circuit Court of Appeals had little good to say about some guidance from the Department of Education.  The case was about just how ambitious an IEP should be.  The little girl at the center of the dispute was below grade level, making slow progress.  The parents relied on a guidance letter issued by OSERS in 2015, to support their belief that a proper IEP would call for the student to achieve at grade level. The court summarizes and quotes from the letter:

“Research has demonstrated that children with disabilities who struggle in reading and mathematics can successfully learn grade level content and make significant academic progress when appropriate instruction, services, and supports are provided.”  It also instructs that “the annual goals…should be sufficiently ambitious to help close the gap” between the child’s current and grade level achievements.

The court concluded that the parents “overread the letter.”  Key Quote:

The letter sets forth research and aspirational goals, which may be helpful for some children. But while it aspires to “close the gap,” it does not specifically require grade-level goals for children who are not and cannot be fully integrated into regular classrooms. It never mentions a presumption.  Nor does it suggest that all (or even most) disabled children can advance at a grade-level pace.

On top of that, the court noted that a “guidance letter” from the Department of Education carries no legal weight:

Even if the letter could be read as relevant, it would neither bind nor persuade us.  Guidance letters do not enjoy Chevron deference.  And this guidance letter does not address the IDEA’s language, let alone parse it.

The Circuit Court affirmed decisions by the hearing officer and the district court that the student received FAPE and thus the parents were not entitled to tuition reimbursement.  The court held that Endrew F. did not change the standard for FAPE in the 3rd Circuit.  By this time, the Endrew decision had sparked a national debate over what FAPE means, with many parents and advocates arguing that the SCOTUS ruling had significantly raised the bar.  After all, the Supreme Court told us that all special education students should have IEP goals that are “appropriately ambitious.”  Is it OK for a student to continually lag behind her peers?  Here’s what the Circuit Court said:

IEPs must be reasonable, not ideal. Though her parents argue otherwise, K.D.’s slow progress does not prove that her IEPs were deficient.

While courts can expect fully integrated students to advance with their grades, they cannot necessarily expect the same of less-integrated students…..[K.D.] received supplemental learning support for much of the day. So there is no reason to presume that she should advance at the same pace as her grade-level peers.

We should take seriously the admonition from SCOTUS to develop IEP goals that are “appropriately ambitious.” But as this case illustrates, sometimes parents may be seeking an IEP that is overly ambitious.  If it is overly ambitious it is inappropriately ambitious.

The case of K.D. v. Downingtown Area School District, was decided by the Third Circuit Court of Appeals on September 18, 2018. We found it at 72 IDELR 161.