“You can’t be in honors courses and special ed at the same time.” You can’t?

We can learn four things from the recent decision by the 8th Circuit Court of Appeals involving a bright student in Minnesota with a host of mental health issues. 

Let’s start with the practice of “disenrolling” a student without considering a need for special services.  This girl was “disenrolled” in 8th grade, 9th grade, and twice in 10th grade.  At no point did the district refer the child for special education testing.  First lesson of this case:  “disenrolling” a student due to failure to attend when the district is aware of a plethora of mental health diagnoses going back years is a problem. 

Let’s talk about providing the parents with accurate information.  The district discussed special education with the parents on two occasions, but each time left it up to the parents to request an evaluation.  The parents did not make that request, but perhaps that was because they were given inaccurate information. The court:

Once again, the parents were told that if the Student was placed in special education, she would be removed from her honors classes, effectively placing her in course work that would not challenge or stimulate her intellectually.  

Second lesson: you can be in special ed and honors classes at the same time.

In April, 2017 the parents did request an evaluation. The following September, with the evaluation still not complete, the student again stopped attending classes. The court noted that she “had earned far less than half of the 46 credits necessary to graduate.”  The evaluation was finally completed in November (that’s seven months after the request). The district determined that the student did not qualify for special education. 

The parents challenged that decision by requesting a special education due process hearing. They won.  The federal district court affirmed the ruling in favor of the parents, and now the 8th Circuit has agreed.  The court held that the district was liable for a failure to refer in a timely manner, an incomplete evaluation, and an incorrect decision about eligibility.  Much of the problem seemed to stem from over reliance on how smart this girl was.  Key Quote:

…..the District maintains that the Student is simply too intellectually gifted to qualify for special education.  The District suggests the Student’s high standardized test scores and her exceptional performance on the rare occasions she made it to class are strong indicators that there are no services it can provide that would improve her educational situation.  The District confuses intellect for an education.

Lesson three: no student is too smart to be in special education.  Intellectually gifted students can still have an “educational need” for specially designed instruction.  There is no IQ score cutoff.

Finally, there is attendance.  The court drew a distinction between those students who willfully refuse to attend school vs. those with significant mental health issues:

The Student was absent from the classroom not as a result of “bad choices” causing her “to fail in school,” for which the IDEA would provide no remedy, but rather as a consequence of her compromised mental health, a situation to which the IDEA applies.

The court described the student as having “a panoply of mental health issues that have kept her in her bedroom, socially isolated, and terrified to attend school.” 

Lesson four:  consistent failure to attend school is a red flag.  Not all students who fail to show up are doing so because of a disability. But some are.  The district would be wise to pause and look into it.

It was a costly lesson for the Minnesota district which has been ordered to 1) make the student eligible; 2) develop an appropriate IEP; 3) conduct quarterly meetings to consider changes to the IEP; 4) reimburse the parents for over $25,000 for testing and educational expenses they incurred;  5) pay for private tutoring; and 6) pay the cost of the student’s private psychiatrist and tutor to attend IEP Team meetings.  No doubt there will be an award of attorneys’ fees on top of that.

The case is ISD No. 283 v. E.M.D.H., decided by the 8th Circuit Court of Appeals on June 3, 2020. 


Tomorrow: Parent can’t find the child.  School staff won’t tell.