How much progress is enough for a district to show that it provided free appropriate public education?
According to the court in Osseo Area Schools v. A.J.T., No. 22-3137 (8th Cir. 03/21/24), regarding a middle schooler with a seizure disorder, not hitting annual IEP goals is not enough progress.
The student had seizures throughout the day, and they were so frequent in the morning that she could not attend school before noon. However, she was alert and able to learn between noon and 6 p.m.
Before the student moved to Minnesota, her Kentucky school district provided an individualized education program that included evening instruction at home, but the Minnesota district denied the parents’ requests for evening instruction. Instead, the district proposed cutting the student’s school day to three hours.
The parents filed a complaint with the state education department, and an administrative law judge determined that the district denied FAPE to the student and made maintaining “the regular hours of the school’s faculty” the “prevailing and paramount consideration” over the student’s educational needs. The judge ordered the district to provide 495 hours of compensatory education.
The district sought judicial review, and the court agreed with the administrative law judge, finding that the student would have made more progress if she had received evening instruction because a three- to four-hour school days “was insufficient to pursue many expert-recommended goals.” The district appealed to the 8th U.S. Circuit Court of Appeals.
Under the IDEA, per the U.S. Supreme Court’s ruling in Endrew F. v. Douglas County School District RE-1, 580 U.S. 386 (2017), an IEP must be “tailored to the unique needs” of the individual student and “appropriately ambitious,” meaning it must be “reasonably calculated to enable a child to make progress appropriate in light of [her] circumstances” and give her a “chance to meet challenging objectives.”
The 8th Circuit agreed with the district court, noting that the student’s “limited progress” was strong evidence that the district denied her FAPE, citing the following:
- The student met none of her annual goals in 2016 or 2017.
- By the end of 2018, the student had met a few short-term objectives but still had not met any annual goals.
- There were no progress reports for 2019.
- In 2020, she again met only a few objectives and not a single goal.
According to the court, the student wasn’t making anything more than “de minimis” progress from year to year. Thus, the 8th Circuit affirmed the District Court’s ruling.
Reasons behind letter of concern don’t raise Title IX retaliation issues
No one likes getting the proverbial “nastygram” for something that happened at work, but what are the chances that a seemingly derogatory memo might be a cover for retaliation?
In Kincaid v. Unified School District No. 500, 94 F.4th 936 (10th Cir. 2024), the court held that legitimate reasons supported a Kansas district’s decision to place a warning letter in an employee’s record.
The case arose when some girls reported that a male special education student had hugged them in the hallway, “touched their bottoms,” and made them feel uncomfortable, and the assistant principle did not discipline the student.
The next month, another female student reported that the same male student pushed her up against a while and “grinded up against her with his private parts.” The assistant principle wrote the student up for sexual assault. On the Monday following this incident, the assistant principle received an email from the principal that said there would be a “new protocol” under which “whenever there is an issue with a Sped kid who [would] potentially be given discipline,” the principal was to be involved.
Four days later, the principal sent the assistant principal a “formal letter of concern” expressing dissatisfaction with how the assistant principal handled both incidents. This letter informed the assistant principal that future concerns “of this nature” would lead to termination, and the letter was placed in her personnel file.
The assistant principal filed a claim of retaliation under Title IX, which the District Court rejected in granting summary judgment to the school district. The assistant principal appealed to the 10th U.S. Circuit Court of Appeals.
Under Title IX, an employee must show that her employer took a materially adverse action against her in retaliation for activity protected under the law and that the employer’s state reason for the adverse action was just pretext for retaliation.
In this case, the 10th Circuit explained that while the assistant principal’s reporting the sexual assault could count as protected activity under Title IX, the alleged adverse actions to which the assistant principal was subjected were not pretextual.
In particular, the court pointed out that the letter of concern was directed to the assistant principal for “facially nonretaliatory reasons” and to clarify the principal’s expectations going forward. As a result, the 10th Circuit affirmed the District Court’s grant of summary judgment in the district’s favor.
ED, HHS team up to remind districts, others about funding for mixed delivery preschool services
With public preschool attendance at only 17% for three-year-olds and 41% for four-year-olds, two Biden administration agencies have recently emphasized the role of, and opportunities for, mixed delivery programs to address the needs of the country’s youngest learners.
In a Dear Colleague letter, the U.S. Education Department’s deputy assistant secretary for policy and early learning, Swati Adarkar, and the U.S. Department of Health and Human Services’ deputy assistant secretary for early childhood development touted funds available for early learning efforts in mixed-delivery settings.
“Mixed delivery preschool approaches should be inclusive of the full range of high-quality early care and education settings including community-based child care providers, schools, Head Start programs, and family child care homes,” the letter emphasized. “A successful mixed delivery approach requires careful planning, collaborative decision-making, and state and local coordination across Child Care and Development Fund (CCDF) administrators, school leaders, State educational agencies (SEAs) and local school districts, Head Start leaders, providers of Individuals with Disabilities Education Act (IDEA) services, early childhood providers (including family child care), early childhood professional organizations and labor unions, among others.”
The letter encouraged mixed delivery programs to explore funding possibilities such as:
- Head Start grants
- Child Care and Development Fund
- Preschool Development Grants Birth through 5 (PDG B-5)
- Title I, Part A of the ESEA (Improving Basic Programs Operated by Local Educational Agencies)
- Title II, Part A of the ESEA (Supporting Effective Instruction).
- Title III, Part A of the ESEA (English Language Acquisition, Language Enhancement, and Academic Achievement)
- Title IV, Part B of the ESEA (Nita M. Lowey 21st Century Community Learning Centers)
- Full-Service Community Schools Program
- Promise Neighborhoods Program
- IDEA Part B and Part C
“Federal funds, when effectively layered and braided, can support greater access to preschool, provide full-day, full-year high-quality services to meet families’ needs, provide adequate wages and benefits to staff, and improve quality across programs,” the letter concluded.
