1. VOUCHERS, CHARTERS AND THE IDEA: OLD WINE IN NEW (AND LEAKY) BOTTLES

2. © March 2017 Caryl Andrea Oberman, Esq.
The Law Offices of Caryl Andrea Oberman LLC

3. iN THE BEGINNING…
PARC v. COMMONWEALTH OF PENNSYLVANIA, 343 F. Supp. 279 (E.D. PA. 1972), U.S. Dist. LEXIS (concluded by consent decree).
MILLS v. BOARD OF EDUCATION, 348 F. Supp. 866 (D.D.C. 1972) (concluded by decision).
MAJOR PROVISIONS:
Every child can be educated
Individual evaluation
Individual, written program (IEPs)
Least restrictive environment
Parental participation (opportunity to object prior to school district action) and procedural safeguards   

4. The idea
These principles were enshrined into federal law by the education of the Handicapped Act and its successor, the Individuals with Disabilities Education Act (IDEA).
The IDEA is a “cooperative federalism” statute that requires, as a condition of receiving federal funds, state education agencies (SEAs) and local education agencies (LEAs) to provide students with disabilities with free, appropriate public education (FAPE) in the least restrictive environment (LRE).

5. The IDEA
The IDEA also requires explicit procedural safeguards, including the rights to: prior written notice, full parental participation, mediation, due process hearings, the parents’ right to maintain a placement during due process proceedings even when the LEA wants to change it, and special procedures prior to the imposition of many kinds of school discipline.

6. Overview
The Seventies were about access; the Eighties about curriculum; the Nineties about inclusion; and this century so far about a little of everything, including transition (is there life after high school?), accountability, and procedure.
School choice initiatives like charters and vouchers raise significant questions about all of these.

7. Charter Schools
When charter schools are LEAs (most are), they are bound by all of the requirements of the IDEA, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act.
The state (SEA) is the responsible guarantor under the IDEA for ensuring the provision of FAPE by charter schools.
Depending on how charters are created in various states, this may mean that the state is responsible for guaranteeing that a charter’s contractual commitments (such as settlement agreements) and remedy liability will be fulfilled if the charter ceases to operate.

8. vouchers
Private schools receiving federal funds in any manner are covered by Section 504.
Many private schools are covered, as places of public accommodation, by Title III of the ADA whether they receive federal funds or not.
However, “entities controlled by religious organizations”, including private schools, are explicitly exempted from coverage. Section 307.
How does this exemption affect the responsibility of voucher programs that are entirely state funded?

9. FAPE (Free, Appropriate Public Education)
Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982)
FAPE requirement is satisfied by providing personalized instruction with sufficient support services to permit the child to benefit educationally from instruction.
FAPE does not require maximizing a child’s potential.

10. FAPE (Free, Appropriate Public Education)
Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988)
FAPE requirement demands more than merely a trivial, negligible, or “de minimis” educational benefit.
See also D.S. v. Bayonne Bd. of Educ., 602 F.3d 553 (3d Cir. 2010); Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238 (3d Cir. 1999).

11. COMING SOON:
The U.S. Supreme Court this term will decide Endrew F. v. Douglas County School District, Case # , which will determine the amount of educational benefit necessary to satisfy the IDEA’s requirement: “more than de minimis” or “meaningful”. The case was argued in January and will be decided by June.

12. Parental Rights
In the bad old days, parents had few rights to prevent or protest district-initiated changes to their child’s education. Not so since the IDEA.
Parents exercise the special educational rights of their children throughout minority (defined in Pennsylvania as until age 21). These rights include the right to FAPE in the LRE.

13. Enforcement and procedural rights:
the opportunity to request evaluations,
prior written notice,
consent to evaluations and services,
participation in decision-making,
access to records,
access to complaint and due process procedures.
20 U.S.C. Sections 1414(a)(1)(B), 1414(a)(1)(D), 1414(e), and 1415(b).

14. WINKELMAN v. PARMA CITY SCHOOL DISTRICT, 550 U. S
WINKELMAN v. PARMA CITY SCHOOL DISTRICT, 550 U.S. 516 (2007): Parents can not only assert their child’s rights and their procedural rights, but also have a legally cognizable interest in the education and upbringing of their child.

15. LRE (Least Restrictive Environment)
Oberti v. Clementon Sch. Dist. Bd. of Educ., 995 F.2d 1204 (3d Cir )
IDEA prohibits placing a child outside the regular classroom if educating him or her there, with supplementary aids and support services, can be achieved satisfactorily.
LEA bears the burden of proving compliance with the LRE or “mainstreaming” requirement under the IDEA.
To determine whether a child can be educated in a regular classroom with supplementary aids and services, courts consider:
(1) Steps taken to try to include the child in regular classroom;
(2) Comparison of the educational benefits child would receive in a regular classroom, with supplementary aids and services, and the benefits child would receive in a separate special education classroom; and
(3) Possible negative effects that inclusion may have on the education of other children in the regular classroom.

16. LRE (Least Restrictive Environment)
Carlisle Area Sch. v. Scott P. By & Through Bess P., 62 F.3d 520 (3d Cir )
LRE does not require school district to find an optimal placement for the student, but rather to determine whether an appropriate placement can be achieved in a non-restrictive setting.
20 U.S.C. § 1412(5)(B) requires maximal educational integration of disabled children with nondisabled children. Separate placement should be used only where the nature or severity of the disability is such that education in regular classes with supplementary aids and services cannot be achieved satisfactorily.
L.E. v. Ramsey Bd. of Educ., 435 F.3d 384 (3d Cir. 2006)
In distinguishing between FAPE and LRE analyses, the central question is whether the placement at issue represents the LRE in which the child could receive an FAPE.

17. Student Discipline Honig v. Doe, 484 U.S. 305 (1988)
The District Court did not abuse its discretion when it enjoined the school district from indefinitely suspending an emotionally disabled student pending completion of the student’s expulsion proceedings.
“Stay put” prohibited unilaterally excluding disabled children from the classroom for dangerous or disruptive conduct caused by their disabilities during the pendency of due process proceedings.
Where a student posed an immediate threat to the safety of others, the school district could temporarily suspend the student for up to ten days.
A unilateral suspension in excess of ten days constituted a prohibited “change in placement” under the IDEA.

18. Student Discipline Manifestation Determinations
Pursuant to 20 U.S.C. § 1415(k)(1), within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the school district, the parent, and relevant members of the IEP Team shall review all relevant information in the student’s file, including the IEP, teacher observations, and any relevant information provided by the parents to determine:
(I) If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or
(II) If the conduct in question was the direct result of the school district’s failure to implement the IEP.
If the school district, the parent, and relevant members of the IEP Team determine that either subclause (I) or (II) is applicable, the conduct shall be determined to be a manifestation of the child’s disability.

19. Student Discipline Manifestation Determinations
Once a determination is made that the violation is a manifestation the child’s disability, the child must be returned to the prior educational placement unless certain special circumstances exist.
With regard to such “special circumstances,” 20 U.S.C. § 1415(k)(1)(G) provides that a student may be removed to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, in cases where a child:
(i) Carries or possesses a weapon to or at school, on school premises, or to or at a school function;
(ii) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function; or
(iii) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function.
20 U.S.C. § 1415(k)(2): the interim alternative setting must be determined by the IEP Team.

20. Transition Services
Is there life after high school? Is graduation a walk across the stage into a promising future, or a short step off a steep cliff?
The focus of the IDEA has always been to foster the self-sufficiency and independence of students with disabilities by providing them with equal educational opportunities. 34 C.F.R. Section 300.1(a)(purpose to prepare students for “further education, employment, and independent living”); See BOARD OF EDUCATION OF HENDRICK HUDSON CENTRAL SCHOOL DISTRICT v. ROWLEY, 458 U.S. 176, 192, 201 (1982).
Progressive reauthorizations of the IDEA have made that focus manifest by setting up procedures and requirements for future planning, starting in the IEP year during which the student will turn fourteen, and updated annually. (The IDEA mandates age sixteen or earlier if warranted, but Pennsylvania, New Jersey, and Delaware have opted for fourteen across the board).

21. Transition Services
Transition planning is a “results-oriented” process comprising a “coordinated set of activities” to facilitate the student’s movement from “school to post-school activities” C.F.R. Section It involves other agencies that provide services to adults with disabilities. 20 U.S.C. Section 1412(a((12)(A). If the other agencies fail to deliver the education agency must reconvene the IEP team to identify alternative strategies to meet the transition objectives in the IEP.
IEP must include “appropriate, measurable postsecondary goals” based on assessments related to training, education, employment and, where appropriate, independent living skills”, and the transition services, including course of study, must assist the student in reaching those goals. 34 C.F.R. Section (b). The student must be invited to be involved in planning for her own future. 34 C.F.R. Section (b)

22. Curriculum
IEPs must include “a statement of the special education and related services and supplemental aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child…, and a statement of the program modifications or supports for school personnel that will be provided”…to enable the child “to be involved in and make progress in the general education curriculum…” 34 C.F.R. Section (a)(4), (a)(4)(ii).
The paradigm is that students with IEPs will participate in the general regular education curriculum unless there is a good reason why they cannot, even with support and modifications.

23. Remedies Tuition Reimbursement: Burlington/Carter
Sch. Comm. of Town of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359 (1985)
IDEA grants hearing officers the authority to order school districts to reimburse parents for tuition and other expenditures associated with a private special education placement, upon a determination that the private placement made by the parent was appropriate.
A parent’s unilateral decision to change the then-current educational placement of the student during the pendency of due process proceedings does not constitute a waiver of the parent’s right to reimbursement.
Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993)
The parent is not required to prove that the private school’s program offers a FAPE as defined by the IDEA, only that the school is “appropriate.”
Reimbursement is not barred merely because the school chosen by the parents is not on the state’s list of approved private schools.
The court must consider all relevant factors in awarding private school tuition, including the appropriate and reasonable level of reimbursement that should be ordered based upon the facts of each case.

24. Remedies Tuition Reimbursement
M.R. v. Ridley Sch. Dist., 744 F.3d 112 (3d Cir. 2014)
Parents’ right to reimbursement for cost of private school tuition under the “stay put” provisions of the IDEA continues until the completion of judicial proceedings.
The Third Circuit held that the operative “stay put” placement is not determined by the date on which the parents seek tuition reimbursement, but by the date on which the dispute between the parents and the school district “first arises” and proceedings conducted pursuant to the IDEA begin.

25. Remedies Compensatory Education
M.C. v. Central Regional Sch. Dist., 81 F.3d 389 (3d Cir. 1996)
If an IEP fails to confer a meaningful educational benefit, the student has been deprived of a FAPE, and the right to compensatory education accrues from the point that the school district knew or should have known of the IEP’s failure to offer a meaningful benefit to the student.
The Third Circuit held that a child’s entitlement to compensatory education should not depend upon the vigilance of parents, nor be abridged because the school district’s behavior did not rise to the level of slothfulness or bad faith.
The school district is entitled to a reasonable period of time in which to address and attempt to rectify a student’s lack of educational progress before it can be found to have denied FAPE.

26. Remedies Compensatory Education
Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238 (3d Cir )
The Court reiterated the principle articulated in M.C. v. Central Regional Sch. Dist. that a disabled student’s right to compensatory education accrues when the school knows or should know that the student is receiving an inappropriate education.
Parent’s failure to object to a student’s placement does not bar a compensatory education claim.

27. Procedure
Pendency
“Stay put” is an important right. Students are entitled to remain in their then-current educational placements during the pendency of proceedings, unless the parties agree otherwise U.S.C. Section 1415(j).
How long does pendency extend?

28. Procedure
Ridley School District v. M.R., 680 F. 3d 260 (3d Cir. 2012)– pendency extends through the entire appellate process, including circuit court appeals, regardless of whether the pendent party has won in the previous proceedings. The U.S. Supreme Court denied certiorari on this issue after the Solicitor General agreed with the Third Circuit.

29. Where are the leaks? Charter schools are volatile and often fail.
Charter schools think of themselves as private schools, but function legally like school districts.
Charter schools are frequently untrained about special education rights and their responsibilities to vouchsafe them, including where necessary the obligation to pay for a student to attend a different private school.
Cyber-charters are often surprised to learn that their responsibilities may extend to providing brick and mortar service
Special education rights are enduring, can entail remedies that span many years and require continuing funding and/or oversight.

30. More leaks
Private schools that are religiously affiliated may not be precluded from discriminating against students with disabilities in admissions or in services.
Private schools that are not religiously affiliated are precluded, but discrimination is notoriously difficult to prove.
Siphoning of money from public schools to charters or to private schools through vouchers will likely leave the public schools responsible for serving the most challenging students with deeply diminished funding.