Sometimes the universe conspires to deliver a message at exactly the right time. This happened to me on April 27 as I was moderating the annual spring legal conference on special education law sponsored by ED311 and TCASE. Glancing at my phone during the lunch break I saw that the 5th Circuit had issued two new decisions. That’s not unusual. They do that every day.
But I saw that one of them involved a Texas school district!
And it was about special education!!
And the district was Comal ISD. The conference was in New Braunfels—Comal County. Holy Moly!!!
It turns out that H.W. v. Comal ISD is a Toolbox case. It’s an illustration of how to use Tool #3.
There are ten “tools” in the Toolbox. Tool #3 is one of the more difficult tools to use. It’s an Educational Change of Placement Without Parent Consent. It’s those last three words that tip you off to the complexity of using this tool.
When would a school district use Tool #3? In the Toolbox training we emphasize that the district has to be prepared to convince the hearing officer and/or court of three things: 1) the current placement is not working well for the student; 2) this is despite the best efforts of the school district over a lengthy period of time; and 3) we have something better to offer. In this case, Comal ISD passed all three tests.
The 5th Circuit’s decision is mostly about LRE—least restrictive environment. The parents opposed the change in placement because it moved the student to an MRE, a More Restrictive Environment. The parents argued that this was not necessary or appropriate—the student was making progress in the current placement. It ain’t broke. Don’t fix it.
Was that true? Was the student making progress? The court noted the importance of this issue:
This leads to the critical question in this case: how should we measure H.W.’s “progress”? Put another way, should we primarily rely on H.W.’s progress toward her IEP goals or instead look to her overall academic record when determining whether she is making appropriate progress?
The parents argued that progress on the IEP was the key. If the student was achieving the majority of goals in the IEP, the student was making progress. H.W. had mastered 11 of her 17 goals. Therefore, the argument went, she was making progress in the current placement and a move to a more restrictive setting was not called for.
The court described this as the “IEP-centric test,” and rejected it. The court held that the proper measuring stick is “an overall academic record-based review.” This should be a “fact-intensive, individualized, holistic” approach taking into account “test scores, percentile rankings, IEP progress reports, testimony from qualified professionals, and the like.” Looking at all of that information the court concluded:
While H.W. undoubtedly mastered many of her IEP goals, she was still unable to make consistent and/or appropriate progress toward several of those goals in a general education setting. The ARDC frequently reconvened to try and help her to meet her goals. It gradually increased the assistance offered to her. And it even lowered the mastery criteria with her parent’s consent—an implicit acknowledgement from H.W.’s parents that she was making inadequate progress. Yet H.W. still struggled in many regards.
The court’s opinion includes many specific examples of how the district staff patiently and consistently worked with the student to maintain her in a less restrictive setting. It wasn’t working. There were behavioral issues as well as academic concerns.
This opinion would be a good thing to share with teachers and other direct service staff. I suggest you have a professional development presentation in which the teachers read this opinion and make note of the good work done by the district staff over a long period time. That demonstrates a commitment to student success. In H.W. v. Comal ISD that commitment is recognized by the 5th Circuit. Congrats to the staff at Comal ISD and to Andrew Tatgenhorst (Thompson and Horton) who ably represented the district.
The case was decided on April 27, 2022, by the 5th Circuit. It will be a “published” decision, meaning that it will be cited as binding precedent in future cases. In other words, this is a big deal.
DAWG BONE: USING TOOL THREE? READ THIS OPINION FIRST.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: our FAB Group…..