I’ve written many times in the Daily Dawg about what I call the “Unwritten Rule” in special education litigation—that the judge is always quietly assessing the comparative reasonableness of the parties.  When judges find parents to have acted unreasonably it’s often due to overly aggressive behavior at ARD meetings, or as reflected in communications.  When judges find that the school has acted unreasonably, it’s often due to a nitpicky insistence on compliance with some rule or policy. Judges sometimes call that “elevating form over substance.”  

Here’s a good example.  The district had conducted an evaluation of the student.  After reviewing it, the parent sent an email to the district that included the following:

Maybe an independent evaluation would help shine light on the questions. I do disagree with some parts of the last evaluations, so I’m asking for an independent.

New Jersey has a state law that requires schools to respond to an IEE request within 20 calendar days.  So that timeline should run from the moment the district got this request….right?  After all,  there is no doubt about what the parent is requesting.  I think this could be the very model of how to request an IEE. 

But the district did not respond within 20 days. Why?  Because district policy required that IEE requests had to be done by a signed letter. This communication came via email.   

The court seemed to think that the substance of the parental request was more important than the method by which it was made.  Key Quote:

Given [the district’s] clear understanding that [the parent] was requesting an IEE, its decision to elevate form over substance unnecessarily and arbitrarily interfered with [the parent’s] right to a prompt resolution of their request.

It’s K.K. v. Parsippany-Troy Hills Township, decided by the federal court for New Jersey on August 30, 2021.  It’s reported on Special Ed Connection at 79 IDELR 257.

DAWG BONE:  SUBSTANCE OVER FORM IS THE BETTER DECISION APPROACH.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com.  Tomorrow: “take that book out of the library!”