How to Understand FAPE in Massachusetts
and –
How to Prove that the IEP is Providing the
Student a FAPE
April 26, 2011
Miriam Kurtzig Freedman, M.A., J.D.
Stoneman, Chandler & Miller LLP
99 High Street
Boston, MA 02110
617-542-6789
mfreedman@scmllp.com
Miriam@schoollawpro.com
www.schoollawpro.com
The information provided herein is intended to be used for general information only and not as legal
advice. In the event that legal advice is required, the services of an attorney should be sought.
Copyright © 2011 by Miriam Kurtzig Freedman, M.A., J.D. and Stoneman, Chandler & Miller LLP.
All rights reserved.
MIRIAM KURTZIG FREEDMAN, M.A., J.D.
Reformer, Lawyer, Speaker, Author
Goals:
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To promote systemic and meaningful reform of special education nationwide.
To build excellence in educating ALL students through books, speaking, and
consultations.
To bring understanding of special education and ‘504’ requirements and develop
reliable, valid and legal accountability: standards, tests, report cards, accommodations,
and inclusion.
Experience:
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Respected authority with an outspoken perspective to change the climate in the special
education arena. Attorney at Boston law firm since 1988, representing school districts.
Massachusetts Hearing Officer for eight years; public school teacher in California, New
Jersey, New York and Massachusetts.
Visiting fellow at Stanford University since 2005.
Reform achievements:
Co-founder Special Education Day and Special Education Day Committee (SPEDCO) to honor
special education’s achievement and spur reform. The Massachusetts Department of
Elementary and Secondary Education funds and administers one of SPEDCO’s reforms,
SpedEx—an Alternate Dispute Resolution model. The other reform, Procedures Lite, is being
piloted by schools.
Pioneer Institute Runner Up awards in its Better Government Competition (2007 (coauthored) and 2004).
Author and presenter Fixing Special Education—12 Steps to Transform a Broken System.
Authorships:
Special reports, six books in the education and law fields, and articles, including two Hoover
Institution publications (Education Next and Hoover Digest), several in Education Week and
Education News interviews. Please visit www.schoollawpro.com.
Professional memberships:
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Fordham Institute “brainstorming session” on new directions for special education
(2010); National Governors Assessment Board’s (NAGB) Advisory Panel on Uniform
National Rules for Testing Students with Disabilities for the NAEP, the ‘Nation’s Report
Card.’ (2009).
MA Commissioner’s Advisory Panel on MCAS Accommodations (2008-9).
National Speakers Association (former board member, New England chapter).
Education Consumer Consultants Network.
MA Bar Association.
Founding member of SPEDCO.
Education:
LLB
MA
BA
New York University School of Law
University of New York at Stony Brook
Barnard College (Columbia University)
Public schools in Palestine (now Israel), Holland and New Jersey
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Ten-step process to understand what a FAPE is (and isn’t) and to
measure progress and demonstrate educational benefit (A FAPE)
Free appropriate public education
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What FAPE is.
1. Start with the basics. The key. What is an IEP FAPE? Reread the
Supreme Court’s Rowley decision. What does FAPE promise? A
Benefit. How much benefit? That is, what benefit to the child do
schools measure? What progress do they need to demonstrate?
Board of Education of Hendrick Hudson School District v.
Rowley, 458 U.S. 176; EHLR 553:656 (1982). Almost 30 years old and still
good law.
The Supreme Court set forth a two-part test for a free appropriate public
education (FAPE) under the old EHA, now the IDEA. (1) Has the state
complied with procedural requirements, especially those that enable the
parents to participate in the development of the IEP1/ and (2) is the IEP
developed by the Team “reasonably calculated to enable the child to
receive educational benefits.”
We therefore conclude that the ‘basic floor of opportunity’ provided by the Act
consists of access to specialized instruction and related services which are
individually designed to provide educational benefit to the handicapped
child.
(w)hatever Congress meant by an “appropriate” education, it is clear that it
did not mean a potential-maximizing education.
(P)ersonalized instruction with sufficient support services to permit the child
to benefit educationally from that instruction….In addition, the
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FAPE is a two-part test: one, for the student and one for the parents. Decisions
about procedural flaws as a denial of a FAPE are not discussed herein. See, e.g., Ludlow
Public Schools, 10 MSER 3822 (BSEA 2010).
IEP…should be formulated in accordance with the requirements of the Act
and, if the child is being educated in the regular classrooms of the public
education system, should be reasonably calculated to enable the child
to achieve passing marks and advance from grade to grade.
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197o’s to early 1980’s “adequate and appropriate”
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1985 David D. v. Dartmouth “maximum feasible benefit”
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2000 Massachusetts amends statute to adopt FAPE
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2002 Arlington Public Schools, BSEA decision by Crane describes
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FAPE well.
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…the intent of the Act was more to open the door of public education to
handicapped children on appropriate terms than to guarantee any
particular level of education once inside.
A bit of Massachusetts history: from “a & a” to MFB to FAPE
2. Understand that education is broadly defined in Massachusetts
and in the 1st Circuit. The IEP needs to cover all domains of the student’s
disability and the school needs to measure progress in all of the domains.
These include academic, social, emotional, behavioral, and physical
disabilities.
Mr. I. v. Maine School Administrative District No. 55 (1st Cir. 2007).
Thus, benefit needs to be offered and progress measured in all domains.
Benefit needs to be offered and progress measured in all domains. Note
that the word benefit is a noun—not a verb. Why this matters will be
discussed.
The IEP program needs to be research-based, to the extent possible.
School personnel need to collect data to prove an educational benefit.
The IEP Team selects the methodology to be used, and the district does not
need to adopt the parents’ requested methodology if its program provides a
FAPE. Xenon Public Schools, BSEA 09-7928 and 10-0262 (BSEA 2010).
For a student with dyslexia, Hearing Officer Berman accepted the district’s
choice of the Wilson Reading Program, a sequential, phonetically-based
reading program and found that the parents’ request for Reading Recovery
was not required.
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The IEP needs to be in the least restrictive environment (LRE) that is
appropriate—where the student can receive a FAPE and the other students
are not impeded. Las Virgenes Unified School District v. S.K., 54
IDELR 289 (C.D. CA 2010). Case involved a 17-year-old student with
autism. The district sought to place him in a substantially separate
program, while parents sought general education classes with support of an
aide. The court found for the district because of the student’s low cognitive
ability, even with an aide and substantial modifications, he could not
participate academically; nothing in the law requires an inclusion setting for
the purpose of increasing a student’s proximity to general education
students; and ‘mainstreaming’ was a denial of a FAPE, because the student
was isolated without real social interactions.
Related services are provided to support special education.
Shrewsbury Public Schools, 54 IDELR 137 (SEA MA 2010). They are
provided when the student’s disability interferes with the ability to learn. A
student has a right to such services only if he needs them to benefit from
special education or to have a meaningful access to his education.
A denial of FAPE can be by a parent or child. Middleboro Public
Schools and Ken, BSEA 10-0006 and 10-3532 (SEA MA 2010). Hearing
Officer Oliver found that the child’s refusal to attend school was a denial of a
FAPE. He found that the child and father subverted a mediation agreement
by failing to cooperate with the doctor. “I conclude that Parent’s and Ken’s
actions completely sabotaged the entire purpose of the Agreement Reached
Through Mediation—to develop a process to get Ken back into the school
setting.” Etc., etc., etc.
See also Greenfield Public Schools, BSEA 10-4003 (BSEA 2010), where
Hearing Officer Byrnes found the school’s proposal appropriate for a high
school student with emotional disabilities and severe anxiety, in spite of his
statement that he had “lost trust” in the teachers and would refuse to attend.
In short, a FAPE in Massachusetts is
 A free appropriate public education, that is
 Tailored to a student’s unique needs,
 Reasonably calculated to provide the student with educational benefit to
enable him/her to make meaningful, effective, measurable, demonstrable
educational progress (Pick your adjective!)
a. In Massachusetts [see below], such progress is measured in relation to
the student’s potential, and
 Delivered in the least restrictive environment (LRE) appropriate to meet
the student’s needs.
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What a FAPE is NOT
 A program ‘in the best interest of the child.’ That legal concept comes
from family law, dealing with child custody issues!
 A program that promises success. Instead, the program should promise
a benefit—progress.
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A program that creates a “Cadillac, instead of the well-tuned Chevy.”
 A program that fails to provide a benefit to the student. Sometimes (too
often in this inclusion era, where schools have closed more restrictive
settings?), this failure may come from programming that attempts to fit a
child into an existing school model. See, for example, Belmont Public
Schools, BSEA 100-5170, where Hearing Officer Figueroa blasted the
district’s continued use of a partial-inclusion program with resource-room
supplementation for a profoundly dyslexic functionally illiterate high school
student, and ordered Belmont to fund several years at Landmark School.
 A program that assumes inclusion is the LRE, even when it does not
benefit the student. See Belmont above. The LRE needs to be appropriate!
KEY: The better regular education is, the less special education and
fewer accommodations we need.
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If something exists, it exists in some amount.
If it exists in some amount,
then it is capable of being measured.
Rene Descartes, Principles of Philosophy, 1644
Will you know progress when you see it?
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3. How much benefit needs to be demonstrated? “Measurable,”
“demonstrable” benefit in the 1st Circuit.
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The Massachusetts regulations define “progress effectively in the
general education program,” 603 CMR 28.02(17).
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“to make documented growth in acquisition of knowledge & skills
including social/emotional development within the general
education program, with or without accommodations, according to
chronological age and developmental expectations, the individual
educational potential of the student, and the learning standards set forth in
the Massachusetts Curriculum Frameworks and the curriculum of the
district.”
4. Become familiar with and use IDEA language about
demonstrating progress in the general curriculum. And recall
that evaluations of SWD need to provide information with
instructional implications. The IDEA is now squarely in this
standards-based world.
IDEA language: “present levels of academic achievement and functional
performance.” 20 U.S.C. 1414 (d)(1)(A)(i)(I); 34 C.F.R 300.320 (a) (1).
Note that the term “academic achievement and functional
performance” is the NEW mantra!
“how the child’s disability affects…involvement and progress in the general
education curriculum” 34 C.F.R. 300.320(a)(1)(i).
“to be involved in and make progress in the general education curriculum”
34 C.F.R. 300.320(a)(4)(ii).
A description of…“how the child’s progress…will be measured.” 34 C.F.R.
300.320 (a)(3).
5. Use IDEA language to demonstrate progress for students who are
NOT participating in the general curriculum.
These students need alternate assessments (AA) that are aligned to alternate
academic achievement standards.
“a description of benchmarks or short-term objectives.” 34 C.F. R.
300.320(a) (2)(i)(B).
“a statement of why the child cannot participate in the regular
assessment… and the particular AA selected…” 34 C.F.R.
300.320(a)(6)(ii)(A).
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6. For most students with disabilities (SWD), IEPs needs to provide
a benefit for the student. The school needs to demonstrate
(measure) progress in the general curriculum.
How do you prove it? Grades, tests, teacher reports, report cards, and other
sources…
Start with grades. Good questions to ask include:
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Is the child receiving passing grades and advancing from grade to grade?
Are the grades standardized or modified for this child? That is, are the
grades valid or “gifts?”
If the grades are modified, does the IEP incorporate that determination?
If the grades are modified, does the report card incorporate that
determination?
Is the child advancing from grade to grade according to class standards
or a “social promotion?”
Is the child making progress on the goals and objectives of the IEP?
Educators and school attorneys need to understand the various ways
that the curriculum is changed for SWD—whether accommodated or
modified.
Some key definitions include—
ADAPTATIONS
The umbrella term for changes in the IEP or
Section 504 plan for a student with disability.
These changes includes accommodations,
appropriate accommodations, modifications,
aids, benefits, and services. The term
“adaptation” does not involve the concept of the
effect of the changes on standards.
f author
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ACCOMMODATIONS/
APPROPRIATE ACCOMMODATIONS
Changes in course/test presentation, location, timing,
student response, or other attribute which are necessary to provide
access for a student with a disability to participate and demonstrate his
“academic achievement and functional performance” and do not
fundamentally alter or lower the standard or expectations.
MODIFICATIONS/
NON-STANDARD ACCOMMODATIONS
Changes in course/test presentation, location, timing,
student response, or other attribute which are necessary to provide
access for a student with a disability to participate and demonstrate
…(same as above….) but which fundamentally alter and/or lower the
standard or expectations.
rmission of author
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Simply stated, adaptations are the “stuff” you do for students with
disabilities which is different from what you do for other students. “Stuff” is
not a legal term. But it works! Accommodations and modifications define how
that “stuff” affects standards, tests,
Validity:
The extent to which a test actually measures
what it is intended to measure. Note that a test that is valid for one purpose
may not be valid for another. See 34 C.F.R. § 104.35 (b) (1).
In using grades as a measure of progress, consider the following
factors:
2/ The IDEA uses the term “appropriate accommodations.” Adding confusion, NCLB
uses “adaptations” and “accommodations,” while the Section 504 uses the terms “aids, benefits,
and services.” All terms are undefined.
The IDEA now defines Appropriate accommodations on State and district wide
assessments, as follows: An accommodation that is “necessary to measure the academic
achievement and functional performance of the child on State and district wide assessments
consistent with section….[of the IDEA].”
Alternate assessment: An assessment that substitutes for the State or district-wide
assessment, which is determined to be appropriate for a specific student by his/her IEP Team.
The No Child Left Behind Act (NCLB) contemplates two types of alternate assessments—one
which measures the same academic achievement standards (but in an alternate manner) and
one which measures alternate academic achievement standards. Stay tuned for changes in next
reauthorization.
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A. Grades: are they standardized for the general curriculum class in
which the child is participating? Did educators use “accommodations”
appropriately? Or are the grades modified---“gifts.” Do they lead to
standard promotion or social promotion? Have parents been fully
notified of the grading system used. Remember—gifts are for
birthdays—not report cards.
Rely on the expertise of teachers. Medfield Public Schools, 13 MSER
365 (2007). Hearing officer found teachers to be credible in their
description of student’s participation in the curriculum.
B. Generally, passing from grade to grade is a measure of a FAPE. But
not always!
And see the IDEA’s specific statement confirming this. 34 C.F.R.
300.101 (c).
Cohasset Public Schools, 15 MSER 160 (2009). Hearing Officer
Crane found that the student got passing grades but had so many
accommodations that skills were not improved.
The evidence is persuasive that Student’s grades and her general
success in school bear little, if any, relation to either her abilities or
her progress in her areas of principal weakness being addressed by
her IEP—that is reading and writing. It is not disputed that Student is
not required to read any books for the purpose of her academic work.
As is allowed under her IEP, Student obtains her grade-level text
books on tape and listens to the material, making it unnecessary for
her to read these texts for meaning. In addition, Student’s English
teacher [ ] explained that in class he reads the difficult portions of
assigned books. Etc. etc. etc.
And then the Hearing Officer proceeded to analyze her writing—
finding that ‘the grades and academic success in school are not likely
a true indication of her writing abilities or progress in this
area….However, Student testified persuasively that during her
academic support periods in the resource room, Student’s special
education aide prompted Student with specific language to be used in
these later papers with the result that the papers reflected the
suggestions of the aide and did not reflect Student’s own writing……”
Etc. etc. etc.
The Hearing Officer was not persuaded that ‘accessing the general
curriculum’ helped this student, as the accommodations, essentially,
allowed her to by-pass her deficits. Etc. etc. etc.
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Gifts are for birthdays…not
report cards!
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2007 Copyright © by Miriam Kurtzig Freedman. All rights reserved. Copies to be made only upon written permission of author
Westford Public Schools, BSEA 11-0373 (BSEA 2010). Case of a 7th
grade student with epilepsy who had a nonverbal learning disorder and a
central auditory processing disorder. Her parents unilaterally placed her at
the Learning Skills Academy—a placement that Hearing Officer Figueroa
upheld. Among the findings was that the district’s IEP offered more than 25
accommodations to be implemented in regular education settings—
including much reliance on technology, including calculators, cell phones,
and digital watches, and not the furtherance of basic skills.
For example, one issue was the student’s calculator. The school’s special
education teacher testified that the student “should not waste her brain
power in learning addition facts or multiplication facts...” The Hearing
Officer disagreed: “….was not persuasive given the fact that Student is of
solid average cognitive abilities.” Etc.
C. In context. How does this child’s grades compare with classmates. Did
many students receive low grades? Is the child’s performance typical for
her, or did she have a bad day? Was she off her medications? Keep
and compare rank books!
In Cohasset above, the Hearing Officer was NOT persuaded by the
teacher’s testimony that the student progressed within the OrtonGillingham approach (moving from level 3 in the 10th grade to level 4 in
the 11th grade.) No context! What do those numbers mean?
Instead, the Hearing Officer was persuaded by standardized testing,
including grade level testing, even though such scores are problematic.
See discussion below.
D. Other curriculum-based measures. Review measures of progress
in the general curriculum, such as the grade levels of books read;
material covered, etc.
E. Observations. Train staff to be observant; to collect data; to become
“teacher-researchers.” To conduct repeated classroom observations.
F. Demonstrate hard to measure progress. To measure goals and
objectives for behaviors, social skills, emotional, develop systems and
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note them on the IEP. These can include such data as teacher
observations and opinions, formal classroom observations, behavior
rating scales, discipline and attendance records, functional behavioral
assessment data, and the opinions of others (in and out of school) who
know the child. Create goals and objectives for targeted behaviors or
social skills only—based on need.
On report cards and transcripts…for accommodations or modifications….
Good words to use…
• “Within test
guidelines”
• “As allowed by the
test or class
standard”
• “So long as validity
is maintained..”
• ETC
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Good words to use when
modifications are used
• “Whether or not it
meets test guidelines”
• “As student needs,
whether it is allowed
by the test or class
standard or not”
• “Validity will not be
maintained..”
• “The grades are
modifications of class
standards.
• ETC
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7. Use grades appropriately to demonstrate progress and benefit.
Beware of the “Goldilocks Conundrum.”
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Doing too little; doing too much; and doing it JUST RIGHT!
The “side effects” of offering too many accommodations or providing
inappropriate modifications? The courts are catching on to this issue and
coming down rather hard on schools that overuse “accommodations.”
An accommodation may, in fact, be contra-indicated….like side effects of
medicines about which we are warned.
Extended time.
Axelrod v. Phillips Academy, (D. C. MA 1999). Interesting discussion of the
side effects of “extra time” for a student with ADHD. Case decided under
Section 504 and the ADA.
…[T]the court accepts the testimony of Dr. Klein that giving an extension
to a person who procrastinates is not an effective solution because the
problem is not that the student needs more time--rather, it is that he is not
organizing his time. Giving such student more time is akin to giving
somebody who is chronically late for appointments a later appointment-that person would still be late for his later appointment.
1:1 aide.
A.C. v. Board of Education of the Chappaqua Central School District,
(2nd Cir. 2009). Discussion of use of a 1:1 aide for a 12-year-old, and need to
teach independence, not “learned helplessness.” Flagler County School
District (SEA FL 2007). Parents’ request for more one-to-one assistance
denied. Child had made dramatic progress without that. I would impede his
progress in expanding interactions with more people.
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Grade inflation/academic adaptations.
Fisher v. Board of Education of Christina School District, (Del. 2004).
A district argued that the 15-year-old student with SLD passed his courses and
received a FAPE. He received many accommodations in the inclusion setting,
including a tape recorder, rereading instructions, extending time, allowing him
to complete tests over several sessions, reading test passages to him, and
someone to record his answers. The court found inclusion inappropriate and
ordered two years of private school as compensatory services. His ‘passing’
scores did not demonstrate that he had progressed in the basic components of
reading.
His ‘progress’ in areas such as spelling and writing was more a function of
the School District’s accommodations than any real improvement in
mastering the subject.
Montgomery Township Board of Education (3rd C. 2005) involves a 4th
grader. The district argued that its IEP was appropriate and the student had
made progress, evidenced by passing grades. The Court was not persuaded. It
found his IEP “overstated his actual progress:”
…evidence that, in order to boost D.C.’s self-esteem, his previous
grades were based largely on his effort, rather than his
achievements… D.C.’s third-grade teacher also allowed a high degree
of informal accommodation of his disabilities,… substantial
assistance by his parents (amounting, at times to outright completion by
them of their child’s assignments), as well as extra time to complete
assignments. D.C.'s "successful" completion of classroom tasks
does not appear probative of a "meaningful educational
benefit”…
Technology.
Sherman and Nishanian v. Mamaroneck Union Free School District,
(2nd Cir. 2003). The parents of an 11th grader with a math SLD sought an
advanced calculator to pass math. District provided an earlier model that
required the student to work through problems. District prevailed.
If a school district simply provided the assistive devices requested, even if
unneeded, and awarded passing grades, it would in fact deny the
appropriate educational benefits the IDEA requires.
Teacher assistance.
Somoza v. New York City Department of Education, (D. S. N. Y. 2007).
Student denied a FAPE for many reasons, including apparent focus by school
personnel on having the student “pass.” E.g., teacher testified that he/she did
most of the student’s work on a project.
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Inappropriate inclusion.
Klein Independent School District v. Hovem, 55 IDELR 92 (D.C. SO TX
2010). A district failed to provide a FAPE to a highly intelligent high schooler
with a learning disability in writing. It passed the student, and ‘successfully
mainstreamed’ him, even though “testimony repeatedly showed that he was not
actually held to the same standards as his regular-education classmates; his
teachers often excused him from requirements they imposed on his
classmates… the IEP team (called the ARD in Texas) waived him from the KISD
written TAKS test as a graduation requirement ‘rather than make an
individualized effort to help him pass.”
And see Cohasset and Westford above. Too many accommodations
covered up a lack of progress in the students’ areas of disability.
Educators need to keep their eyes on the “prize.” A FAPE is about providing an
educational benefit; it’s not about “passing” or getting “through” school. It’s
about learning in school. See Wall Street Journal front-page story about
the overuse of accommodations, August 21, 2007.
Cautionary tales, indeed. The LRE and the IEP FAPE MUST
PROVIDE A MEANINGFUL BENEFIT! The IEP FAPE requirement is
learning—not just good grades or “passing.”
See the following cases, where the districts demonstrated that grades were valid.
Appropriate policies and practices that won the day.
J.A. v. Mountain Lakes Board of Education, 46 IDELR 164 (DC NJ
2006). Case dealt with a high school student with a mild learning disability who
performed well in honors and advanced placement classes. Parents alleged that
his grades were “gifts.”
The court credited the teachers, who testified that he was functioning “in
conformity with the grade they each gave him.” The court found no evidence
supported the parents’ allegation that the high school student’s passing grades
and performance in honors and advanced placement courses were “the result of
grade inflation…or falsification.” [T]here is simply no credible evidence in the
record to support such a contention.”
Leighty v. Laurel School District, 46 IDELR 214 (D.C. W. PA 2006). Case
involved a teenager with learning disabilities whose parents had placed her in a
private school for which they were seeking public funding. The district
prevailed.
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Among the evidence demonstrating progress were

The special education teacher’s testimony about Amy’s progress “was
based on very detailed information about the steps used in the SRA
program.” These involved prereading skills, letter sounds, word attack
skill, and a final focus on skills application. The teacher compared Amy’s
skills at the beginning of the program and later and found a “remarkable
improvement.”

The speech therapist testified about periodic adjustments in Amy’s
program as she mastered certain skills.
8. Use tests appropriately
Broad test categories include aptitude, achievement, or diagnostic assessments.
Test scores are either raw (number of questions the student got right) or
derived. Derived scores are calculated by the test producer. Each test and
company has its own system.
Here are some common ways in which test scores are expressed,
taken from Gerald M.Zelin’s presentation, “A lawyer’s guide to
understanding and critiquing special education assessments”
(2001).

Raw scores (RS)—the number of questions correctly
answered. To provide meaningful information, raw scores are
usually converted to other ways of reporting results, called
derived scores, including these:

Percentile ranks (PR)— this score reflects a student’s position
in relation to others in a standardized sample. The highest
possible PR is 99; the lowest is 1. PR is usually the easiest
derived score to understand.
A PR rank of 50 is average; the average range is usually
between 16 and 84 %ile.

Standard scores—this score reflects a student’s position
relative to other students in a standardized sample. The score
range is between 1 and 199. Standard scores are hard for
hearing officers to understand.

Grade equivalent scores (G.E)—Beware! They are often used
because they seem easy for parents to understand but they
don’t measure what most parents think they measure. Many
test manuals recommend against using G.E. scores to measure
progress. They have lots of statistical flaws. Unfortunately,
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they are often used on IEPs and IEEs (Independent
Educational Assessments) and the hearing officers seem to
like them. Better to ask for PR (percentile scores).

Age equivalent scores (A. E.) –Beware! These have similar
flaws as G.E.

Verbal descriptors—Each test has its own language. Be sure to
use it correctly.
Also the following common ways to express test scores—not
described here



Subtest standard scores
Stanines
T scores
A. “Think longitudinally. You are looking for evidence of progress.”
Gerald M. Zelin presentation. You are looking for change over time.3/
Walczak v. Florida Union Free School District, 142 F. 3d 119; 27
IDELR 1135 (2nd Cir. 1998). Case provides a good example of
demonstrating progress over time, both academically and socially.
B. CREATE and PRESERVE useful data. 2004 IDEA (and NCLB) are DATADRIVEN. Data! Data! Data!



Be sure that teachers save work samples from different periods in the school
year.
Have educators test students on the same instrument at the same times each
year; e.g., September, January, and May.
Create data that leads to valid comparisons.
Pembroke Public Schools, BSEA 10-1097, 16 MSER 281 (SEA MA
2010). District ordered to collect data about the student’s current levels
of achievement. Pro se parent who sought private placement for her 6th
grade child with a severe language-based learning disability and auditory
3/
The presenter acknowledges attorney Gerald M. Zelin for his generosity in sharing
materials relating to the use of testing to develop a winning case.
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processing disorder—lost a narrow decision because she had no data
about the child’s progress in reading to support her request.
Medford Public Schools, BSEA 10-6403, 16 MSER 289 (2010). Here,
the district did have good data to prove progress (and not have to pay for
Landmark School). Case involved an 8th grader with Tourette’s
Syndrome and a language-based learning disability. The hearing officer
rejected the parents’ evaluator’s opinion that, while student had made
progress, it was not ‘enough.’ Medford staff members were able to give
concrete examples of the student’s progress.
Data includes class observations, anecdotal data, quotes—lots of good
stuff!
Pawtucket School Department, 55 IDELR 214 (SEA RI 2010).
School staff members’ observation of a 5-year-old with autism justified
exiting him from special education, in spite of standardized testing that
appeared to indicate otherwise. An excellent decision demonstrating
that Teachers ARE EXPERTS!
C. Use tests for the purposes they were developed and validated.
The subject of tests, as evidence of benefit and progress is complex and
far broader than this presentation can provide. A few key statements
follow. See Bibliography for other sources.
D. Understand test categories. Tests are either norm-referenced (often
used for eligibility determinations) or criterion-referenced (often
used to measure achievement). Norm referenced tests relate to how this
student functions in comparison to his/her peers. Criterion-referenced
tests relate to how this student functions in comparison to the standard
being measured. Thus, the MCAS is a criterion-referenced test.
E. For norm-referenced tests, educators and school attorneys need to
become knowledgeable about the bell curve, which provides scores (such
as percentiles and standard scores) that can be compared to each other.
Thus, on a bell curve, over time, a student’s numbers may decline and he
still may be progressing.
Houston Independent School District v. Bobby R., 200 F.3d 341,
31 IDELR 185 (5th Cir. 2000) dealt with a secondary school student who
had dyslexia and ADD. His parents placed him in a private school and
sought public funding for that. Of note, the student had had rising
grade equivalent (G.E.) scores (as well as passing grades) even
though his percentile scores on the bell curve fell. The court, in
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overturning the hearing officer, found that the student had made
progress in most areas and thus, had received an educational benefit.
“[A] disabled child’s development should be measured not by his relation
to the rest of the class, but rather with respect to the individual student,
as declining percentile scores do not necessarily represent a lack of
educational benefit, but only a child’s inability to maintain the same
level of academic progress achieved by his nondisabled peers. As with
the argument in Rowley that an IEP must maximize a child’s potential,
the argument that Caius should not experience declining percentile
scores may be an unrealistic goal; and it is a goal not mandated by the
IDEA.”
Remember that we do NOT live in Lake Wobegon. By definition, half
of the all students will be below the 50%ile.
F. The bell curve does NOT include grade equivalent (G. E.) or age
equivalent (A. E.) scores. They are very popular among parents, hearing
officers, and courts, but often misused and misleading. They cannot be
compared to the various attributes of the bell curve. See their use in
Cohasset discussed above.
See the bell curve in Jerome M. Sattler’s Assessment of Children:
Cognitive Applications (4th Edition).
9. Closing the gap? Does the IDEA require that?
It appears not. Note the several types of gaps discussed below.
Leighty v. Laurel School District, 46 IDELR 214 (D.C. W. PA 2006).
Parents argued that the IEP was not reasonably calculated to “close (or
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narrow) the gap between Amy’s level of achievement and her level of
ability…..The IDEA, however, does not require the District to eliminate the
very discrepancy that renders Amy disabled in the first place… A learning
disability, by its very nature, renders it difficult for a child to learn on a level
consistent with his or her intellectual potential.” The court concluded that
the very fact that this student was able to advance from grade to grade,
despite her severe learning disability, suggested that not only was the IEP
calculated to benefit her, but it had also achieved its objective.
In discussing including Amy in regular education classes, such as science,
with program modifications and accommodations, the court found that she
benefited. “While it is clear that Amy has not been able to learn at the same
pace as the other students in her class, it is likewise clear that her
educational experience has been meaningful and productive.”
Parents argued that under the NCLB, FAPE now “depends on how well a
particular student performs on standardized tests administered by a
participating State.” The court rejected their argument, finding no
unambiguous change in the conditions imposed on states to receive federal
funds by the IDEA. For example, while the IDEA requires students with
disabilities to be included in State tests, there is NO requirement that “FAPE
determinations be based on the results of those assessments, nor does it
require that the IEPs prepared for disabled children be designed specifically
to enhance their scores on standardized tests.” Neither law (the NCLB and
the IDEA) mandates that FAPE determinations be based on test results.
Houston Independent School District v. Bobby R., 200 F.3d 341, 31
IDELR 185 (5th Cir. 2000). See discussion above.
El Paso Independent School District v. Robert W., 898 F. Supp. 442;
22 IDELR 1129 (W. D. TX. 1995). This case dealt with the “widening gap”
between Robert and his peers. The court found that, in spite of this gap, the
student had received a benefit from his school. That determination of the
appropriateness of Robert’s placement was based on HIS own
performance—not that of his peers. As he had shown progress in all areas,
the district’s program was deemed appropriate.
But see, Cohasset above. The Hearing Officer was persuaded that the
student was falling further behind her peers. That is, the gap was widening.
A troubling finding. The issue is whether a student makes progress; the
issue is not whether the gap between that student and others widens or
narrows. Jaccari J. v. Bd. of Education of the City of Chicago, 54
IDELR 53 (N.D. Ill 2010).
But see, Mountain Empire Unified School District, 36 IDELR 29 (SEA
CA 2001), for discussion of a “widening gap” in the context of eligibility
determination.
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10.What to do when there is NO progress or no demonstrated
benefit? RECONVENE the TEAM! At the Team:




Determine the reason for this
Consider whether the IEP needs to be amended
Consider whether additional evaluations need to be performed
Record the Team’s findings and provide parents with appropriate notice
and statement of their rights
Kevin T. v. Elmhurst Community School District, 34 IDELR 202;
(N.D. Ill. 2001). Case about a 19-year-old high school student who sought
public funding for a private school. Among the court’s findings was that, as
student was failing to benefit or make progress in the district program, the
district did not reconvene the Team to determine how to proceed.
And sometimes, it’s because of the student…
San Diego Unified School District, 46 IDELR 26 (SEA CA 2005). 21year old student did not commit to the program; failed to take advantage of
opportunities provided by the district; had a history of lack of motivation
and manipulation; poor attendance, mostly not due to illness. Student not
entitled to monetary compensation. “Student’s failure to attend his classes
made it impossible for him to succeed in school…..Student did not uphold
his responsibilities with regard to his education…..Student has to attend
school and make an effort to learn. In addition to attendance, Student has
to do the assignments. He did not….”
Shrewsbury Public Schools, 13 MSER 325 (2007). Eight year old
student with autism and global developmental delayed was making no
measurable progress in the inclusion setting. School proposed a more
restrictive setting that parents opposed. School prevailed.
HINTS FOR GOOD PRACTICE
1. Educators and parents need to know what a FAPE is—and isn’t.
2. Educators need to act like the education experts that they are.
Educators select methodology. See Xenon Public Schools discussion
above.
3. Educators observe students 180 days a year, not just a few hours in a
clinic.
4. Educators collect data. Educators implement research-based
instruction. Educators are the eyes and ears for the district. Etc.
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5. Educators focus on a student’s learning, on providing a benefit—not just
getting students to “pass” or getting them through school.
6. Courts defer to professional educators.
Key legal concepts in public education
Deference
Discretion
Judgment, Rational Basis
Latitude
Expertise
…vs…
Arbitrary and capricious…
Discrimination
Pretext
Scripts… what to say when…. the parent says…
“The gap between John and his class is widening so the program is
not working for him. He needs to go to….”
“You don’t want what’s best for my child.”
“ You just want to save $$$.”
“Why don’t you give her a 1:1. It can’t hurt.”
“She should be getting higher grades. She tries really hard. I want
her to feel better about herself.”
“My son gets very nervous when he takes test. He needs a 504 plan
for more time.”
“Billy doesn’t want to do his homework. I’m just the parent. I can’t
make him do it!”
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“Can’t we just take a vote at the IEP Team?”
“You are doing a great job with my son. I am so grateful. He’s
come so far from where we all started together. I just want to say,
Thank you!”
What to say when… the teacher says
“I can’t change how the test is given. It’s unfair to other students.”
“We always do it like that for all kids. We are not discriminating.”
“That would cost way too much if we gave it to all of our students.”
“I guess we added that to the IEP because it was what the parents
wanted.”
“He’s just lazy. I don’t believe he needs those accommodations.”
“I can’t do all that. I have 27 other children in my class.”
11. Smile. You’ve done your best. You’ve stayed focused on the
student’s learning. You have done so well in a most important
and challenging career!
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Acronyms
A.E.
Age equivalent
CFR
Code of Federal Regulations
CMR
Code of Massachusetts Regulations
FAPE
Free appropriate public education
G.E.
Grade equivalent
IDEA
Individuals with Disabilities Education Improvement Act of 2004
IDELR
Individuals with Disabilities Law Reporter (LRP Product)
LRE
Least restrictive environment
IEP
Individualized Education Program
MGL
Massachusetts General Laws
PR
Percentile rank
RS
Raw scores
SEA
State educational agency
SLD
Specific learning disability
SWD
Students with disabilities
USC
United States Code
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Bibliography
Jerome M. Sattler, Assessment of Children: Cognitive Applications (4th Edition).
Published by Jerome M. Sattler, PO Box 151677, San Diego, CA 92175.
Miriam Kurtzig Freedman, Fixing Special Education—12 Steps to Transform a Broken
System (2009), www.schoollawpro.com; www.parkplacepubs.com.
Miriam Kurtzig Freedman, Grades, Report Cards, Etc…and the Law (2010), School
Law 1 2 3, PO Box 960515, Boston, MA 02196. www.schoollawpro.com.
Miriam Kurtzig Freedman, IEP and Section 504 TEAM Meetings… and the Law
(2010), School Law 1 2 3, PO Box 960515, Boston, MA 02196. www.schoollawpro.com.
Miriam Kurtzig Freedman, Meeting NCLB’s Mandates: Your Quick-Reference Guide
to Assessments and Accountability (2005), LRP Publications. www.lrp.com.
Miriam Kurtzig Freedman, Student Testing and the Law, LRP Publications/ to be
republished by SchoolLawPro.com in 2011.
Wrightslaw, Peter W. D. Wright and Pamela Darr Wright, Tests and Measurements for
the Parent, Teacher, Advocate & Attorney.
www.wrightslaw.com/advoc/articles/tests_measurementspf.html.
Thank you for your participation today and for the
important work you do every day.
CHECK MY WEBSITE FOR ARTICLES, NEWS, MY BLOG,
GOOD FREE STUFF, ETC.
WWW.SCHOOLLAWPRO.COM
QUESTIONS?
Miriam@SchoolLawPro.com
mfreedman@scmllp.com
From confusion…to confidence
Schools, the law and common sense!
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