Washington must provide FAPE to students until their 22nd birthday

If a state decides that it will not provide special education to students with disabilities after the school year in which they turn 21 but provides services to students without disabilities until their 22nd birthday, does it violate the IDEA?

According to the 9th U.S. Circuit Court of Appeals in N.D. v. Reykdal, No. 23-35580 (9th Cir. 05/22/24), the answer is “yes,” and the state of Washington violated the IDEA by limiting special education to the end of the school year in which students with autism turned 21.

The case arose because Washington cut off special education services at the end of the school year in which the students turned 21, but it offered adult-education programs to 21-year-olds who did not have disabilities.

Specifically, Washington created a system of community and technical colleges that offered two education programs: 1.) High School+, which allowed students who demonstrated competency in specified subjects to receive a high school diploma, and 2.) GED preparation classes. In these programs, some students received the benefit of a waiver of the $25-per-quarter tuition.

The IDEA requires states to provide special education and related services to students with disabilities until their 22nd birthday, but an exception allows states to discontinue services as early as age 18 if providing special education to older students would be “inconsistent with state law or practice.”

The students brought an IDEA action against their district, and the District Court eventually denied their request for a preliminary injunction, concluding that the students did not show “irreparable harm” or a “likelihood of success on the merits.”

The students appealed to the 9th U.S. Circuit Court of Appeals.

The 9th Circuit held that the students made their case based on its previous ruling in E.R.K. v. State of Hawaii Dep’t of Educ., 728 F.3d 982 (9th Cir. 2017), which ruled that a state could not deny special education to students with disabilities aged 18 through 21 if it provides free publication education to students without disabilities in that range of ages. In this case, the state of Washington did just that.

“Tens of thousands of Washington students participate in the High School+ and GED programs at zero cost—receiving ‘free’ education under any definition of that word—because they have been granted waivers of the $25 tuition fee,” the court wrote. “Thus, it cannot be said that providing free public education to 21-year-olds is ‘inconsistent with State law or practice.’”

As a result, the 9th Circuit vacated the District Court’s order and remanded the case for further proceedings that included issuing a preliminary injunction.

Bus driver’s inaction doesn’t show ‘state-created danger’ for pre-kindergartner’s repeated sexual assaults

Sometimes, it seems like the choice to do nothing can be as harmful as doing something. However, as the court in Payne v. Indep. Sch. Dist. I-001, 2024 WL 2224669 (W.D. Okla. 05/16/24) explained, a mother could not show that a school bus driver created a “state-created” danger when he failed to stop a pre-kindergartner from experiencing multiple sexual assaults.

Allegedly, a high schooler on three occasions kissed and touched a pre-kindergartner on the bus. On these occasions, the high schooler allegedly kissed and touched the pre-kindergartner in a sexual manner, kissed the pre-kindergartner and physically assaulted the pre-kindergartner by touching her under her clothes and having her sit on his lap.

After the second of these incidents, the pre-kindergartner told her mother, who notified school officials of the high schooler’s sexually inappropriate behavior. The bus driver was not one of the officials notified.

In addition to suing the school district, the mother brought a substantive due process action against the driver, alleging that he violated the pre-kindergarnter’s 14th Amendment rights.The mother relied on a state-created danger theory to advance her substantive due process claim.

Generally, the due process clause of the 14th Amendment does not require school districts to “protect life, liberty, and property” of students against “invasion by private actors,” but cases have recognized a narrow exception known as the “state-created danger theory.”

As explained in Est. of B.I.C. v. Gillen, 710 F.3d 1168 (10th Cir. 2013), the state-created danger theory provides that state officials can be liable for the acts of private parties where those officials created the “very danger that caused the harm.”

To invoke the state-created danger theory, a plaintiff must show there was violent conduct by a private actor and affirmative conduct by a state actor. The mother’s case fell apart on this requirement because she did not “plausibly allege” that any of the driver’s actions constituted affirmative conduct.

“Essentially, all of [the mother’s] allegations regarding [the driver’s] conduct pertain to actions that he did not take — i.e., passive conduct,” the court wrote.

The court cited two cases that supported its conclusion that nonaction could not amount to state-created danger:

  • Graham v. Indep. Sch. Dist. No-I89, 22 F.3d. 991 (10th Cir. 1994). In this case, a mother alleged that another student shot and killed her son after district employees had received prior warnings that a student who had threatened violence against her son was on school grounds with a gun. The 10th Circuit upheld dismissal of the case because the mother failed to allege “affirmative actions” by the district that created or increased the danger to the son.
  • Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226 (10th Cir. 1999). Here, a child told his mother that he had been sexually assaulted at school while using the bathroom. Allegedly, after the principal assured the mother that her son would be supervised at all times while in the bathroom, the child was sexually assaulted in the bathroom a second time. The 10th Circuit held that the state-created danger substantive due process claim failed because the complaint did not sufficiently plead “affirmative acts” on the part of the principal.

The court in this case explained that the takeaway from previous decisions was that “knowing that an act of private violence is ongoing nor failing to stop such violence” is not enough to demonstrate affirmative conduct. “The court concludes [the mother] has not sufficiently alleged that [the driver] created or increased the danger to [the student] through any affirmative action,” the court wrote in dismissing the mother’s claim.

ED secretary pens ‘dear colleague letter’ to encourage states to address chronic absenteeism

Chronic absenteeism and great educational outcomes don’t go together, and the former doubled between 2018 and 2022, so it’s not surprising that the Biden administration wants to find ways to keep students in school.

In “Letter to Chief State School Officers,” U.S. Education Department Secretary Miguel Cardona encouraged states to take three “key actions” to help more students attend and engage in school each day. In the letter, Cardona noted that as of SY 2021-22, over 14 million students nationwide were chronically absent, but three steps might curb the problem:

  1. Supporting schools in increasing regular attendance through a state’s consolidated state plan. “States can enhance their accountability systems by partnering with local universities or their Department Regional Educational Lab to analyze data and ensure that a chronic absenteeism or related measure is playing a meaningful role in school identification,” Cardona wrote. “This could involve analyzing how well the indicator differentiates among different school types and how potential variations in the calculation and reporting of the measure might alter the list of identified schools.” Additionally, the letter suggested states invest in and use real-time tracking and intervention systems that identify students who are or are at risk of becoming chronically absent.
  2. Accessing ED resources and training to promote regular school attendance and encouraging districts to do the same. For example, ED’s Student Engagement and Attendance Center and National Center on Safe Supportive Learning Environments offer resources and technical assistance on engagement, multi-tiered systems of support, school climate and more.
  3. Redoubling efforts to “urgently invest” remaining ARP funds in evidence-based strategies for improving regular school attendance. “As you lead planning for the school year ahead, please remind LEAs of the Department’s guidance on use of ARP funds, work with LEAs that may benefit from liquidation extension, and let my team know if we can offer additional support or technical assistance to help you maximize the benefits of these funds,” Cardona wrote. “And because students experiencing homelessness face particular challenges in attending school regularly, please make sure that your State and LEAs are on track to exhaust funds this fall.”

Some examples of successful efforts to combat excessive absenteeism that Cardona cited included:

  • In the Fort Worth Independent School District, for example, 100 family engagement specialists hired using ARP funds have helped improve regular daily attendance for nearly 3,000 students.
  • The Los Angeles Unified School District conducted more than 19,300 home visits to establish stronger and trusting relationships between schools and families, reducing chronic absenteeism by more than a third.
  • hode Island launched “Attendance Matters Rhode Island,” creating community data dashboards to spur an all-hands-on-deck approach to increasing the number of students who attend school regularly.
  • Connecticut and several other states have found success in reporting chronic absenteeism data on a monthly, as opposed to annual, basis.
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Frank Ferreri
Frank Ferreri
Frank Ferreri has written about education law and policy for over 13 years. His topics of focus have included special education, disability law, Title IX, the Elementary and Secondary Education Act, and related subjects. Frank holds a master’s degree from the University of South Florida and a juris doctor degree from the University of Florida Levin College of Law.