Of all the issues that a school board and administrators must address, one of the most challenging, emotionally-charged and potentially-costly involves the provision of services for students identified as eligible for special education and related services. Some of the reasons that make this area so challenging include the intensive regulation by both federal and state statute and regulations; the extensive amount of litigation and case law; and the fact that each time there are meetings with parents that affect the student’s program, all of the rights associated with the provision of special education services must be provided in writing to the parents. In addition, staff members must be freed up from teaching duties to attend the meetings, and replacements must be located to cover the staff member(s’) assigned duties.

IDEA, FAPE and More Cases that are filed concerning special education issues arise under the Individuals With Disabilities Education Act (IDEA) and its concomitant federal regulations. The state of New Jersey has modeled its regulations after the federal statute and regulations. A significant purpose and goal under this legislation is a mandate for school districts to ensure that all children with disabilities have available to them “a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living.” The acronym FAPE comes from the phrase in the statute “free appropriate public education.”

In order for states to implement the federal mandate, each state, by the acceptance of federal aid, agrees to adopt policies, procedures and regulations to ensure that the requirements of the federal statute and regulations are being met. It is then the requirement that each local school district adopt the same policies and procedures to assure compliance with the federal mandate.

Court Review In almost every litigated case, there are two aspects for the court to review: procedural issues and substantive issues. The procedural issues include notices that are given; the way in which parental participation is implemented; the timelines that are kept and the strict compliance with completing all of the necessary content of the individualized education program developed for each student. The acronym IEP stands for the Individualized Education Program that is developed in writing for each student, after the student is identified as eligible for special education services. An initial IEP can only be implemented upon the written consent of the parent.

Once procedural aspects have been met, a district must then consider the substantive aspects of the IEP. This analysis involves a determination as to whether the content of the IEP offers FAPE in the least restrictive environment, or LRE. That standard is an individual consideration for each student and is based upon a review of the evaluations conducted by members of the child study team and other specialists, progress reports, standardized test scores, teacher and parent input. The IEP team must make a reasonable assessment as to whether the offered services, program and placement have the likelihood of meeting the child’s needs and providing opportunity for meaningful progress. The approach requires a student-by-student analysis that also takes into consideration the capabilities and disabilities of the individual student.

When disputes regarding special education arise, an administrative action called a due process petition may be filed by parents on behalf of the student. If the dispute cannot otherwise be resolved by the parents and the school district, either through resolution session or mediation, then a hearing before an administrative law judge may be necessary.

One Recent Case In a recent case brought by parents seeking reimbursement for a unilateral placement and decided in late 2015, N.S. & M.S. o/b/o A.S. v. West Milford Township Board of Education, the administrative law judge very carefully and meticulously analyzed how to apply the standards of the federal and state law to a particular challenge, as follows: “A program and placement does not turn on the intensity of the services or the superiority of the program. Despite a parent’s best intentions in attempting to seek the optimal placement of his or her child, the standard is not what is optimal but what is appropriate. A program is appropriate if it confers some educational benefit; it need not be the superior alternative. The act does not require more. In short, an IEP must be designed to confer some educational benefit in the least restrictive educational environment.”

In this same case, in which the district successfully defended its in-district program, services and placement, as contained in the initial IEP, the following was a further analysis in the judge’s decision: (1) A preponderance of the evidence did not show the IEP was deficient because it did not specify a specific approach to reading; (2) The evidence did not show that a reading and language arts class consisting of students at different reading levels negatively impacted the delivery of educational instruction; (3) The evidence did not show that the district’s decision not to provide specific modified instructional materials or software individualized for the student, and instead provide work that was differentiated to the individual needs of the student, deprived the student of necessary resources; and (4) The evidence did not show that the school district failed to provide the student with FAPE because the textbooks in the general education classes were at a reading level higher than the student’s tests revealed. The school district credibly demonstrated how the materials and assignments were modified so that the student had accessibility to the content material.

As a result of the analysis above, it was concluded that a preponderance of the evidence did exist that the student was provided with FAPE through the proposed IEP as the services, program and placement were reasonably calculated to provide the student with significant learning and meaningful educational benefit.

Behavior a Factor Another challenging area that has recently emerged involves students who have various aggressive and potentially dangerous behaviors in the school setting. Pursuant to state laws, the school district is responsible for the safe operation of each of its schools. With the emergence of school violence as a reality, numerous measures and procedures have been developed which have been approved by the courts as appropriate and legally sustainable. However, when the general education statutes and standards intersect with a student either identified as potentially eligible or already classified, the result can be a misapplication of the law.

In May 2016, the commissioner of education, who is delegated by law with the responsibility to resolve disputes arising from general education laws, but not special education matters, recently decided a matter which may clarify future handling in this area, J.L. o/b/o T.D. v. Board of Trustees of the North Star Academy Charter School. The facts indicated that a student was suspended for assaulting a staff member, and that a recommendation for continuation beyond the initial ten days’ suspension would be presented at the next board meeting. The school board continued the suspension at that meeting, and then continued it further at a subsequent meeting and stated that the suspension would be continued on a long-term basis in order to complete and consider evaluations for special education. These board actions, which were taken without affording the student a hearing, expanded the length of the suspension by several weeks and ultimately almost five months.

The commissioner noted that the actions of the board to continue a suspension for purposes of evaluation is not authorized by the state regulations and that “the determination regarding a long-term suspension and an evaluation for special education are in no way related. The commissioner only has jurisdiction over the long-term suspension – a disciplinary matter – and not over special education matters. Thus a district may not conflate issues as the board has done here.”

Of further significance, however, the commissioner noted that “the Board would have been permitted to require a psychological or psychiatric examination prior to the student’s return to school for purposes of determining whether it was safe for her to return or whether she continued to be a danger to self or other students. However, in this circumstance, there is no evidence in the record that the Board required a psychiatric or psychological evaluation as a condition of the student’s return to school. Instead, the only mention of a psychiatric evaluation in the record is in the context of the [student]’s psychiatric evaluation” regarding eligibility for special education services. Therefore, keeping the student out of school for five months, in the absence of a determination that the student continued to be a potential threat to self and others, was a violation of the student’s rights.

Special Ed and Bullying A third area that also involves special education intersecting with other statutes and regulations involves bullying. New Jersey has been on the forefront of the nation with its adoption of anti-bullying statutes, regulations, policies and procedures. In a case decided by the Second Circuit Court of Appeals in 2016 involving the New York City Department of Education, T.K. & S.K. o/b/o L.K. v. New York City Department of Education, it was determined that a school district’s refusal to discuss at an IEP meeting, the issue of the child being a victim of bullying, impeded the parents’ right of participation in the development of the IEP and constituted a denial of FAPE.At the district court level, a substantive four-part standard to determine if bullying resulted in the denial of FAPE was set out as follows: “(1) was the student a victim of bullying; (2) did the school have notice of substantial bullying of the student; (3) was the school ‘deliberately indifferent’ to the bullying, or did it fail to take reasonable steps to prevent the bullying; and (4) did the bullying ‘substantially restrict’ the student’s ‘educational opportunities’?”

On further appeal, the Second Circuit chose not to address the substantive issue as to whether the bullying of a student with a disability would be an appropriate consideration in the development of the IEP or whether the bullying itself could result in the denial of FAPE. Rather, the court concluded that the school district failed to provide FAPE by violating the parents’ procedural rights to fully participate in the development of the IEP by denying them the right to discuss the impact of bullying and thereby assess the adequacy of the IEP.

While this decision does not set a precedent for cases arising in the State of New Jersey, which is part of the Third Circuit, it can be anticipated that this case would be viewed as persuasive authority, particularly given the focus that this state continues to have upon issues involving harassment and bullying.

In considering these three cases and the trends that they suggest, it is clear that the area of special education continues to be an area of legal complexity. There are ongoing reviews of new circumstances, and the development of standards by the interpretations in decisions issued by the various court systems. Boards of education and their administration need to carefully consider any actions involving students, and understand the interrelationship of the many statutes and regulations governing student rights. Lastly, but perhaps most importantly, they must pay particular attention when the affected student also is one with the additional protections under IDEA.

Nathanya G. Simon, Esq. is a senior partner at the law firm of Schwartz, Simon, Edelstein & Celso, LLC in Whippany. Thanks are given to Kyle J. Trent, Esq. for assisting in the preparation of this article.