1. www.spencerfane.com Kansas City  Omaha  Overland Park  St. Louis  Jefferson City Special Ed Law: Where We’ve Been, Where We’re Going Joe Hatley jhatley@spencerfane.com

2. www.spencerfane.com Kansas City  Omaha  Overland Park  St. Louis  Jefferson City Agenda IDEA History/Background Early IDEA legal trends Reactions (courts and Congress) Where we are now Where things seem to be heading, and what it means to you

3. www.spencerfane.com Kansas City  Omaha  Overland Park  St. Louis  Jefferson City IDEA History/Basics Adopted 1976 Written on “blank slate” IDEA: Every disabled student receives “free appropriate public education” Special education and related services Least restrictive environment (LRE) In conformity with IEP

4. www.spencerfane.com Kansas City  Omaha  Overland Park  St. Louis  Jefferson City IDEA Claims Process Due process hearing Court review (often rubber-stamp of due process decision) Parents who win, recover their legal fees (but the converse is not true) School district can be required to pay private school costs ($60K+/year)

5. www.spencerfane.com Kansas City  Omaha  Overland Park  St. Louis  Jefferson City Hendrick Hudson Dist. v Rowley (1982) What is “appropriate”? IEP must be reasonably calculated to lead to “some educational benefit” Does not require maximizing student’s potential Does not require every conceivable service Cadillac vs. Chevrolet Explanation: IDEA intended to open doors; provide access If IDEA procedures are followed, then appropriate education is almost certain to follow

6. www.spencerfane.com Kansas City  Omaha  Overland Park  St. Louis  Jefferson City Post-Rowley Cases focus on procedure more than substance. Why? Low standard + deference to educators Result: “Parental participation/pre-determination” claims IEP glitches (insufficient detail in present levels, wrong people at meeting, etc.) Other paperwork glitches (written notices)

7. www.spencerfane.com Kansas City  Omaha  Overland Park  St. Louis  Jefferson City Courts’ Reaction Schools sometimes get breaks from judges Procedural violations had to result in loss of educational opportunity True placement pre-determination Failure to evaluate eligible student

8. www.spencerfane.com Kansas City  Omaha  Overland Park  St. Louis  Jefferson City Congress’ Reaction 2004 IDEA amendments Hearing officers must decide cases on substance Parents win for procedural violations only if: Right to FAPE impeded Parents’ right to participate significantly impeded Violation caused deprivation of educational benefits

9. www.spencerfane.com Kansas City  Omaha  Overland Park  St. Louis  Jefferson City Fallout Parents rarely win at due process, even in dysfunctional school districts Parents’ attorneys lost interest Due process claims falling dramatically (at least here) Rise of parent “advocates”

10. www.spencerfane.com Kansas City  Omaha  Overland Park  St. Louis  Jefferson City What’s a Parent to Do? OCR!! Experienced SpEd lawyers and “passionate” investigators No cost to parents Definitely costs school districts OCR doesn’t decide substance, only procedures OCR doesn’t go away easily

11. www.spencerfane.com Kansas City  Omaha  Overland Park  St. Louis  Jefferson City What Does it Mean for You? Relentless focus on process and procedures, even for teachers Follow the IEP Be careful with email, etc. The cost dilemma: If a service is needed for FAPE, cost can’t be an object (Cedar Rapids). If a service truly isn’t needed, stay away from cost justifications anyway Be kind...always be kind