Today the effective legal standard for the education and services that Nevada public schools must provide special-needs children is significantly higher than it was just 11 months ago.
That’s because of the Supreme Court’s March 22, 2017 Endrew F. decision, followed — a mere five days later — by the 9th Circuit Court of Appeals ruling in the M.C. v. Antelope Valley Union High School District case.
The latter decision is especially significant for Nevada children because federal appeals out of Nevada go the 9th Circuit. And that court, in its M.C v. Antelope Valley ruling, demonstrated at least two things.
One is that the 9th will now be enforcing the new, higher, Endrew F. standard diligently — rather than tolerating, as has the Circuit at times previously, use of the de minimis approach that the Supremes struck down with Endrew F.
Another signal from the 9th, however, may be just as important.
Going forward — the Antelope Valley case summary strongly suggests — 9th Circuit justices are out of patience with charades that school districts have long played out to limit the sometimes-costly services for special-needs children.
Indeed, the Antelope Valley case also appears significant for the sharp knuckle-raps the appeals court gave not only the school district, but also a federal district judge and an administrative law judge. Both appear to have viewed the school district’s clear, serial violations of the federal Individuals with Disabilities Education Act with casual equanimity.
IDEA law: a cockpit
For readers who lack personal experience with the cockpit that is IDEA law, the Antelope Valley case — as dissected by the 9th Circuit panel of justices — should be informative.
The case centers on a boy, “M.C.,” who suffers from Norrie Disease — a genetic disorder that renders him blind — and other disabilities.
Thus, under IDEA, M.C. is entitled to a “free and appropriate public education” — or “FAPE” — which is supposed to be ensured by an individualized educational program, or “IEP.”
According to federal law, the specifics of that individualized program are to be drawn up jointly by the child’s public school and his parents. But while schools must hear out the recommendations of parents in the IEP meetings, according to the law, the school can still go ahead and approve its preferred IEP, even if the parents do not agree that it actually suits the child.
This happened in M.C.’s case. So while his mother, M.N., signed a district IEP document authorizing the goals and services offered by the school district, she did not agree that those services would be adequate and thus appropriate.
The IEP, for example, included only 240 minutes per month for the boy of so-called “TVI services” — that is, time with a professional who specializes in teaching the visually impaired.
Such a rate, in an average 20-day school month, calculates out to approximately only 12 minutes per day.
Under federal law, however, parents do not have to simply acquiesce to a clearly inadequate school-district IEP dictate.
Because the law was designed by Congress to empower parents in circumstances where public schools may not be acting in good faith, M.C.’s mother had the option of seeking a hearing before an administrative law judge (ALJ).
This she did, filing a due-process complaint alleging that Antelope Valley Union High School District had committed both procedural and substantive violations of the IDEA.
For one thing — said the mother and the attorney she retained — the district did not provide her with “any written record of reasonable expectations” that the minimal services the district proposed would actually be provided her son.
IEP documents, under federal IDEA regulations, must include statements of measurable annual goals, both academic and functional, for the child, as well as the specific education and related services that were selected to accomplish those goals. The specific school personnel who are to provide the specified services are also supposed to be named.
A month later, when the due-process hearing actually began, the school district showed up with a different IEP than the one M.N. had signed. On the record, the district announced, it had “realized” a week after the meeting that the 240-minutes-per-month offer had been a mistake.
However, the district never bothered to notify the mother of its alleged discovery — if, indeed, such had occurred. Instead, district personnel simply unilaterally changed her son’s IEP, so that it now specified 240 minutes per week.
As the 9th Circuit justices noted, the failure to inform the mother of the “discovery,” if it actually had happened, was not only a procedural violation, but an abusive one. Had the mother been informed, she might not have taken on the expense of retaining an attorney. Changing the boy’s IEP unilaterally, the justices noted, was yet a second procedural violation.
It also became apparent that the district had also unilaterally changed the boy’s IEP in other respects. The form “initially indicated that M.C. didn’t require AT [assistive technology] devices or services,” but the district, privately conceding that this had been wrong, had — perhaps in view of the upcoming hearing — changed the checkbox for AT devices from ‘no’ to ‘yes.’ Even then the IEP still failed to specify the devices M.C. required.
The furtiveness of the school district and its lawyers did not stop there. As the 9th’s panel of justices noted:
Even then, [district] lawyers didn’t identify the purported amendment but rather buried it in a document production, leaving it to plaintiffs’ counsel to stumble upon it.
Reviewing the record, the 9th Circuit justices identified multiple serious procedural violations by the high school district:
Because the District denied M.N. [the mother] an opportunity to participate in the IEP drafting process by unilaterally revising the IEP, and because the IEP as initially drafted didn’t provide M.N. with an accurate offer of the TVI [teacher of visually impaired] services provided to M.C., the District committed two procedural violations of the IDEA.
These procedural violations were significant, wrote the justices, because:
…in enacting the IDEA, Congress was as concerned with parental participation in the enforcement of the IEP as it was in its formation…. Under the IDEA, parental participation doesn’t end when the parent signs the IEP. Parents must be able to use the IEP to monitor and enforce the services that their child is to receive. When a parent is unaware of the services offered to the student — and, therefore, can’t monitor how these services are provided — a FAPE has been denied, whether or not the parent had ample opportunity to participate in the formulation of the IEP. (Emphasis added.)
The CCSD precedent
Interestingly, a key precedent cited by 9th Circuit panel was from a Clark County School District case where, in 2001, both CCSD and the State of Nevada, were unsuccessful defendants before a 9th Circuit appeals panel.
CCSD had effectively concealed the likely autism of a young girl from her parents and thus denied her a FAPE, a State of Nevada hearing officer found. That finding was then reversed by a state review officer, before being appealed to the 9th Circuit.
At stake was money — reimbursement costs for privately purchased assessments indicating autism in 1996, costs of an in-home program funded by her parents during four months that year, as well as compensation for the inappropriate language services provided on CCSD’s recommendation during the child’s time living in Clark County.
The 2001 9th Circuit panel wrote that compliance with the IDEA’s procedural safeguards is:
…essential to ensuring that every eligible child receives a FAPE, and those procedures which provide for meaningful parent participation are particularly important… Procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA.
The case was Amanda J. v. Clark Cty. Sch. Dist., 267 F.3d 877, 891.
In March 2017, some 17 years later, a panel of different 9th Circuit justices were again addressing the implications of procedural violations that kept parents in the dark about their child’s condition, saying:
If parents don’t know what services are offered to the student — in kind or in duration — it’s impossible for them to assess the substantive reasonableness of those services. In such circumstances, the burden shifts to the school district to show that the services the student actually received were substantively reasonable. We remand so the District can have an opportunity to make such a showing before the district court.
The subtext here seems to be that, after reviewing the district’s multiple violations, the justices were not clear as to what extent the district actually operates in good faith. After all, the common denominator in all of the district’s “mistakes” and IDEA violations had been that, if the parent didn’t notice them, they saved the district money.
Thus, it made sense to remand the case back to a district court that was now instructed to closely scrutinize the school district’s justifications of the educational program it was proposing for M.C.
Another reason the panel gave for the remand was so that the district court could consider the mother’s claims in light of the Supreme Court’s new Endrew F. ruling
…which clarified that to meet its substantive obligation under the IDEA, a school district must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. (Emphasis added.)
Beyond the subject of school district behavior, a significant amount of the Antelope Valley case summary provided by the 9th Circuit focused on errors the panel found in first, the actions of the administrative law judge, and second, in the decisions made by the district court:
The panel held that the district court erred in deferring to the administrative law judge’s findings after a due process hearing because the ALJ was not thorough and careful….
The district court had accorded the ALJ’s findings substantial deference because the ALJ “questioned witnesses during a three-day hearing” and “wrote a 21-page opinion that reviewed the qualifications of witnesses and culled relevant details from the record.”
But, said the justices, neither the duration of the hearing, nor the ALJ’s active involvement, nor the length of the ALJ’s opinion can ensure that the ALJ was “thorough and careful….
As plaintiffs point out, the ALJ didn’t address all issues and disregarded some of the evidence presented at the hearing. Even the district court recognized that the ALJ’s analysis “is not entirely satisfying.” Accordingly, the district court erred in deferring to the ALJ’s findings. (Emphasis added.)
In a footnote, the panel observed that the previous year the 9th Circuit had, in Timothy O. v. Paso Robles Unified Sch. Dist, reversed “a lengthy ALJ opinion with detailed findings that were unsupported by the record.”
In that case, too, the district court:
…had deferred to the ALJ’s findings, apparently impressed by the length and superficial plausibility of the ALJ’s opinion…. Such blind deference is not appropriate. Rather, the district judge must actually examine the record to determine whether it supports the ALJ’s opinion. (Emphasis added.)
It seems doubtful that politically sophisticated 9th Circuit justices — producing America’s first post-Endrew F. circuit-level ruling — were unaware of the national attention their ruling, and arguments, were soon to receive.
Thus their unsparing language regarding the performance of both the ALJ and the district court in the case seems likely intended to send a broad signal throughout the 9th Circuit, as well as beyond: That the U.S. Supreme Court’s Endrew F. decision marks a new day not only for special-needs children and IDEA enforcement — but also for blasé judges inclined to wink at the recalcitrant behavior of many school districts.
For those judges, the message seems to be, such behavior is not a good career move.
Still, a major question remains: Is the jig really up for school districts that attempt to save money by misleading, as long as possible, the initially naïve and trusting parents of special-needs children?
Such chicanery, after all, has an exceedingly long history — dating back well before IDEA’s predecessor, the Education for All Handicapped Children Act, was implemented in 1977. Previously, the default school response to special-needs children was quite simple: explicit exclusion.
And today? As court cases constantly document, something of that same impulse still lingers — sometimes as merely in the form of an unspoken attitude, but also, sometimes, as an all-too-baleful reality.
In Part Three of this series, Nevada Journal will explore the surprisingly nationwide scope of school-district resistance to the admittedly profound demands of the Individuals with Disabilities Education Act.
We’ll look at the difficulties multiple major American public-school systems have had, and still have, in coming to terms with IDEA. This installment will examine the special-ed history of the nation’s largest and second-largest school districts, New York City and Los Angeles, as well as the state of Texas system.
Then in Part Four, we’ll return to Nevada and America’s fifth-largest school system, the Clark County School District.
Earlier in the series:
Part 1: Supremes’ decision on special-ed sets higher standards for care
Called ‘a recipe for financial disaster’ by unhappy
Steven Miller is the managing editor of Nevada Journal and a senior vice president at the Nevada Policy Research Institute.