Tuesday, August 14, 2012

Fifth Circuit Decides Fascinating, Troubling IDEA Case

Last week, the United States Court of Appeals for the Fifth Circuit issued an opinion in Klein Independent School District v. Hovem.  Per Hovem, a very intelligent teenager with a learning disability that affected his writing abilities, got very good grades in high school and passed readily from grade to grade.  He achieved these results with certain accommodations, which included "extra time to complete written assignments, the opportunity to respond orally to assignments, printed copies of class notes, and the * * * use of his portable speller in class and at home."  (Apparently, Hovem never used the portable speller in class, because he found it stigmatizing; his teachers never saw him use it, but they assumed that he was using it, and he told them that he had been using it when asked.)

On the statewide Texas Assessment of Knowledge and Skills (TAKS) administered at the end of his junior year, Hovem "achieved Commended scores in Social Studies and Science, but he failed the written composition sections, which comprised a portion of the exit level English test."  To address this problem, the school assigned him to a "practical writing course" for his senior year.  When he took the SAT that fall, he received a 650 in Critical Reading and a 640 in Math, but only a 340 in Writing.  Sometime in the spring, Hovem and his parents decided that he should not graduate with his class but should instead receive specialized writing instruction from an out-of-state private school that focuses on providing services to intelligent students with learning disabilities.  Accordingly, Hovem dropped a course that was required for graduation.  Beginning with the summer session, Hovem enrolled in the private school.  His parents requested reimbursement of the private school's tuition; they contended that the public school district had not provided Hovem a Free Appropriate Public Education as required by the Individuals with Disabilities Education Act.  The United States District Court for the Southern District of Texas agreed with the Hovems and awarded reimbursement, but the Fifth Circuit, by a 2-1 vote, reversed.

Judge Edith Jones wrote the majority opinion, joined by Judge Leslie Southwick.  For Judge Jones, the case was a straightforward application of the Supreme Court's decision in Board of Education v. Rowley:
In Rowley, the Supreme Court clearly and repeatedly expressed IDEA's purpose “to confer some educational benefit upon the handicapped child.” 458 U.S. at 200, 102 S.Ct. at 3048 (emphasis added)). The Court quoted the statute as affording “specially designed instruction” and services “to assist a handicapped child to benefit from special education. § 1401(17) (emphasis added).” Id. Rowley declined to fix any single test to determine the adequacy of benefits that must be conferred by IDEA; this court's Michael F. test fills in some gaps. But Rowley held that for a particular child who had received “substantial” specialized instruction and services to compensate for deafness and “who is performing above average in the regular classrooms of a public school system,” the IEP was sufficient to afford her a FAPE. The Court held, “the IEP, and therefore the personalized instruction, should . . . if the child is being educated in the regular classrooms . . . be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” 458 U.S. at 204, 102 S.Ct. at 3049. Rowley not only enjoined lower courts to be “careful to avoid imposing their view of preferable educational methods . . . ” 458 U.S. at 207, 102 S.Ct. at 3051, but on the facts before it rejected a demand that the particular student be furnished additional auditory services to maximize her potential. 458 U.S. at 198, 102 S.Ct. at 3047
Nowhere in Rowley is the educational benefit defined exclusively or even primarily in terms of correcting the child's disability. Certainly, given the wide range of disabilities covered by IDEA, remediation may often be part of an IEP. Behavioral modifications, for instance, immediately come to mind as an example of an IEP strategy that may remediate a disability while also being necessary to confer educational benefits. But the whole educational experience, and its adaptation to confer “benefits” on the child, is the ultimate statutory goal.
* * *
The fundamental issue as seen by the district court is whether Per's program, fully acquiesced in by his parents until his senior high school year, was not sufficiently individualized because it failed to enable him to write and spell better. On the facts before us, Rowley is decisive. As has been noted, overall educational benefit, not solely disability remediation, is IDEA's statutory goal. Per's IEPs were sufficient because they were “reasonably calculated to enable [Per] to achieve passing marks and advance from grade to grade” in mainstream classes. Rowley, 458 U.S. at 204, 102 S.Ct. at 3049.Moreover, an IEP is not required to maximize a child's potential, but to provide “a basic floor of opportunity.” See Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 346 (5th Cir.2000) (paraphrasing Rowley). Finally, Rowley emphasizes that courts should not lightly disregard educators' decisions on the appropriate educational methods to achieve a FAPE. Whether KISD could have remediated Per's disability more effectively is debatable, but the school district did far more, and offered him far more, than robotic IDEA form-checking to assist his performance in school. And, to say nothing of his generally admirable academic career, the record shows that he made progress in his written expression over the course of high school. His IEPs were sufficiently individualized.
In dissent, Judge Carl Stewart argued that the school district does not satisfy its obligations under the IDEA simply because the student does well in the areas not affected by his disability; the district also has to provide the student with services that will address the limitations imposed by the disability.  He found "numerous flaws with the majority's reasoning":
First is its over-reliance on and misunderstanding of aspects of Rowley. In Rowley, the Supreme Court ruled that, in light of the district court's factual findings that a deaf student was receiving an adequate education and easily advancing in grade level, and “that [the student] was receiving personalized instruction and related services calculated by ... school administrators to meet her educational needs, the lower courts should not have concluded that the Act requires the provision of a sign-language interpreter.” 458 U.S. at 210, 102 S.Ct. 3034. Accordingly, Rowley stands for the proposition that, where courts determine that the individualized education plans afforded to disabled children are adequate, “courts must be careful to avoid imposing their view of preferable educational methods upon the States.” Id. at 207, 102 S.Ct. 3034. 
The majority disregards the nuance of the Rowley opinion, and instead treats Rowley as a blanket permission slip for federally-funded school districts to ignore the special needs of disabled students by affording them passing grades and advancement in the regular classroom. Although in Rowley the Supreme Court “considered Amy Rowley's promotions in determining that she had been afforded a FAPE, the Court limited its analysis to that one case and recognized that promotions were a fallible measure of educational benefit.” Hall by Hall v. Vance Cnty. Bd. of Educ., 774 F.2d 629, 635–36 (4th Cir.1985) (citing Rowley, 458 U.S. at 203 n. 25, 102 S.Ct. 3034). 
Promotion from grade to grade is less indicative of a disabled student's receipt of a FAPE where it appears that the student was promoted pursuant to a school policy rather than his achievement, where good grades are traceable to exemptions from standard expectations intended to circumvent rather than address his area of disability, and when independent evaluations contradict the amount of progress otherwise to be inferred from class promotion. See id. at 636 (holding that “[t]he district court did not err in discounting [the student's] promotions in light of the school's policy of social promotion and [his] test scores and independent evaluations”); D.B. v. Bedford Cnty. Sch. Bd., 708 F.Supp.2d 564, 584 (W.D.Va.2010) (“Although the [hearing officer] observed that D.B. was promoted a grade every year, [he] failed to comprehend that this token advancement documents, at best, a sad case of social promotion.”); Nein v. Greater Clark Cnty. Sch. Corp., 95 F.Supp.2d 961, 977–78 (concluding that, because dyslexic student “was graded on a modified scale and his tests and quizzes were modified, often being read to him aloud because he was unable to read them[,] ... [his] promotions to the next grade level are not evidence of educational benefit . . . .”); Smith v. Parham, 72 F.Supp.2d 570, 576 (D.Md.1999) (“[A]dvancement from grade to grade should not be the only factor considered when determining whether a child is receiving an educational benefit.”); Carl D. v. Special Sch. Dist., 21 F.Supp.2d 1042, 1053 (E.D.Mo.1998) (“Achievement of passing marks and advancement from grade to grade are important—but not dispositive—factors in assessing educational benefit.”). 
In this case, there is plentiful evidence that Per's promotion in classes in which his disability affected his performance was due in large part to the school's policy of excepting his full participation rather than tailoring his instruction to address his disability. As expressed above, Per was in a posture to graduate only upon the school's waiver, on the basis of his disability, of the requirement that he pass the written component of the TAKS. Moreover, the battery of tests Per undertook as part of his application to the Landmark School provided measurable data that he was performing significantly below grade level in areas affected by his disability. Accordingly, Per's passing grades and presumptive graduation are insufficient to establish that KISD had provided him a FAPE. 
Acquiescence to a disabled student's weaknesses, even if well-meaning, cannot obviate the requirements of the IDEA. Put otherwise, the fulfillment of a school district's obligations under the IDEA is not a matter of intention. It is entirely reasonable to assume, as the majority apparently does, that KISD's employees believed that they were doing Per a favor by excusing his failure to complete written assignments legibly, timely, or even at all; by emphasizing his many strengths when grading his performance, yet ignoring his core weaknesses; by matriculating and promoting him through the general education curriculum toward graduation, in spite of the fact that, though he possesses an impressive intellect, he plainly displayed severe difficulty in producing even the most basic forms of written communication, such as words, sentences, and paragraphs, which average students produce with ease.
What's interesting about this argument is its suggestion that providing accommodations to a student, far from satisfying the school district's obligations under the IDEA, may actually violate that statute by excluding the student from important (though difficult) learning experiences.

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