The “predetermination” theory is on life support….

It was 18 years ago when the 6th Circuit took a bad set of facts and created the theory of “predetermination” as a valid claim under IDEA.  The case was Deal v. Hamilton County BOE and parent lawyers have been citing it ever since. They are rarely successful with those claims. Today I’ll tell you about two recent decisions that are typical.  

The first is from Virginia.  It’s clear from the court’s opinion that the parent was very involved in the IEP process. The team made changes to the IEP based on parental input.  But the school held a staffing prior to the IEP Team meeting, and the lawyer representing the parent hauled out the Deal case and claimed this was the same thing. 

Nope.  Key Quote:

…the hearing officer correctly found that it is “standard procedure for school staff to meet prior to IEP meetings and prepare a draft IEP for discussion.”

The second case is from Tennessee.  Again, the parent alleged that the IEP was “predetermined.” Much of the dispute between the parties was about the specific reading program to be used. The parent preferred Wilson and the school preferred “Language!” 

The court held that the IEP was not predetermined and the parent had a meaningful opportunity to participate in the process.  The court noted that the parent actively participated in the meeting along with an advocate from Ignite Dyslexia, asked questions, and influenced changes in the IEP.  There was no predetermination:

The case law tends to demonstrate that predetermination is a high bar. If courts were quick to hold that a school’s actions are predetermination, it could encourage schools to come to IEP meetings with no plan at all, creating an incentive for inadequate preparation.

Both of these cases are from district courts which cannot overrule a Circuit Court case like the Deal case. But these cases, like many others, have isolated the “predetermination” theory to the facts of that case.  Educators need to always be prepared for accusations of “predetermination” but if they provide proper notice to parents, accommodate their needs at the meeting, listen respectfully and take parental input seriously, there should be no problem.  In other words, if you treat parents the way the law expects you to treat parents, you will be fine.  These are not the first cases to make the distinction between “predetermination” and “preparation.”  Having a staffing to gather information and compare notes is not “predetermination.”

The Virginia case is A.P. v. School Board of Fairfax County, 80 IDELR 277 (E.D. Va. 2022). The Tennessee case is C.M. v. Rutherford County Schools, 80 IDELR 239 (M.D. Tenn. 2022).


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Tomorrow: why the parent did not get the tuition reimbursed…