Three lessons on special education law from the 5th Circuit.

The 5th Circuit has affirmed a lower court ruling in favor of Highland Park ISD (Dallas version) in a dispute with the parents of a student with multiple disabilities.  Yesterday we told you how the court addressed concerns over the student’s safety. Today, three more lessons from this important ruling. 

FAPE.  First and foremost, the court strongly confirmed that the four-part test the 5th Circuit has  used since 1997 remains the gold standard for determining if the district has provided the student with FAPE (Free Appropriate Public Education).  The Supreme Court’s decision in 2017 (Endrew F. v. Douglas County) has not changed that.  In Endrew, SCOTUS urged educators to develop IEPs that are “appropriately ambitious.”  Here, the Circuit Court observes that for some students “aiming for small amounts of progress is appropriately ambitious.” That was the case for this student. 

LRE.  Second, the case provides a lesson in how to satisfy the LRE standard (Least Restrictive Environment) with a student who is served in a self-contained placement.   In particular, the court cited “reverse inclusion” as an appropriate methodology.  The appellate court cited with approval the analysis of the lower court on this issue:

The court approvingly cited Hyer Elementary’s policy of “reverse inclusion,” under which R.S.’s general education peers would eat lunch with him in his special education classroom. The court found that R.S. also had interaction in the general education classroom, on school field trips, on the playground, and during school assemblies.  It further found that R.S. interacted with his general education peers at McCulloch Middle School through a peer-tutor program, during PE, in the cafeteria during the lunch period, and during his job delivering items throughout the campus.   

STATUTE OF LIMITATIONS.  The third lesson of this case falls into the “boring but important” category, meaning that it’s of more concern to the lawyers than the educators.  The issue was the statute of limitations.  In particular: when does the clock start?  Parents who believe that the school has failed to provide FAPE to a student have one year to file for a due process hearing. When does that year begin?  If the complaint is about a procedural violation, the year would begin when the specific procedural error occurred. Thus if the complaint is that the district held an ARD meeting without inviting the parent to attend, the statute would begin on the date when the parents learned, or should have learned, about their exclusion from the meeting.

In this case, however, the complaint was about substance, not procedures. The parents alleged that the IEP failed to satisfy the substantive standard of providing FAPE. The court held “that a claim challenging the substantive sufficiency of an IEP must be linked to a specific act adopting, changing, or declining the change the IEP, and such a claim accrues when a parent knew or should have known that the action resulted in a deficient IEP.”

Let me close this out with kudos to the staff at HPISD.  But don’t take my word for it. Here’s what the 5th Circuit said:

Highland Park expended a great amount of time and resources developing and implementing an IEP that was based on multiple in-depth evaluations of R.S.’s unique needs and abilities with significant input from R.S.’s parents and expert consultants, and R.S. achieved at least some academic and non-academic benefits as a result of his plan.  The district court accordingly did not err in finding that Highland Park provided R.S. with a FAPE as IDEA requires.

It was a privilege for the lawyers in our firm to represent the district in this difficult case.  Kudos also go to Nona Matthews and Meredith Walker from our firm’s Irving office for excellent advocacy.

The case is R.S. v. Highland Park ISD, decided by the 5th Circuit on February 26, 2020.  The case is published at 2020 WL 914703.


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