ARTICLE ANALYSIS: SPECIAL EDUCATION LAW

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Preventing School Failure: Alternative Education for Children and Youth

ISSN: 1045-988X (Print) 1940-4387 (Online) Journal homepage: https://www.tandfonline.com/loi/vpsf20

Endrew F. v. Douglas County School District (2017) and special education law: What teachers and administrators need to know

Michael A. Couvillon, Mitchell L. Yell & Antonis Katsiyannis

To cite this article: Michael A. Couvillon, Mitchell L. Yell & Antonis Katsiyannis (2018) Endrew F. v. Douglas County School District (2017) and special education law: What teachers and administrators need to know, Preventing School Failure: Alternative Education for Children and Youth, 62:4, 289-299, DOI: 10.1080/1045988X.2018.1456400

To link to this article: https://doi.org/10.1080/1045988X.2018.1456400

Published online: 30 May 2018.

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Endrew F. v. Douglas County School District (2017) and special education law: What teachers and administrators need to know

Michael A. Couvillona, Mitchell L. Yellb, and Antonis Katsiyannisc

aDepartment of Special Education, Drake University, Des Moines, Iowa; bDepartment of Educational Studies, University of South Carolina, Columbia, SC; cDepartment of Special Education, Clemson University, Clemson, SC

ABSTRACT Even though special education law is covered in most teacher and administrative certification programs, it is an area that is continually evolving. The results of the 2017 U.S. Supreme Court case Endrew F. v. Douglas County School District will have a lasting impact on the future of special education guidelines; the outcomes of this case will also have implications on best practice for students with disabilities. The findings of this case, along with other recent court findings, will be used as a framework to help both teachers and administrators prevent similar situations in their own districts. Specific approaches and strategies will be discussed and detailed resources are provided to help readers remain current with future trends in special education law.

KEYWORDS Endrew; special education law; teacher preparation

Preparing individuals to enter the teacher profession is a complex undertaking (Darling-Hammond, 2010). There is a common body of knowledge and skills that begin- ning teachers should possess, such as subject matter preparation, pedagogical preparation, clinical prepara- tion, and preservice policies (Grskovic & Trzcninka, 2011). In addition, teachers and administrators who are already in the profession need to receive effective staff development so they are aware of important changes and advancements in their various fields. Special educa- tion law is one area of information that should be included in staff development activities of public school teachers (Gullatt & Tollett (1997) and administrators (Hess & Kelly, 2007; Pazey & Cole, 2012); unfortunately, it is frequently overlooked.

This oversight does not seem to hold in all areas of education. For example, in college and universities that prepare special education teachers for the profession there is commonly an emphasis on providing the pre- service special educators with a working knowledge of special education law. In fact, the first core principle of the Content Standards of the Council of Exceptional Children (CEC), titled “Foundations,” is that “Special Educators understand the field as an evolving and changing discipline based on philosophies, evidence- based principles and theories, relevant laws and policies

…” (Our emphasis, p. 26). Thus, special education teachers and building administrators who are in certifi- cation programs at colleges and universities are often well versed in legal issues.

However, it is important that special education and related legal education information be available to all teachers and administrators, both in general and spe- cial education, during their preparation programs and when they are practicing/working in their respective fields. Thus, staff development activities that include legal updates should be systematically provided when teachers and administrators are already in the profes- sion to keep them abreast of this important and changing information. This is important for three rea- sons. First, even though special education students comprise approximately 10% of the public-school population of students, special education accounts for the vast majority of all education-related litigation (Zirkel & Machin, 2012). In fact, Zirkel and Johnson (2011) referred to special education as the “growth area” in education litigation. Second, the mistakes that lead to the majority of litigation in special education are in the areas of failing to (a) follow the procedural requirements of the law, (b) develop an educational program that is reasonably calculated to enable a stu- dent to make educational progress, and (c) implement

CONTACT Michael A. Couvillon [email protected] 2702 Forest Avenue, Des Moines, IA 50311, USA. © 2018 Taylor & Francis Group, LLC

https://doi.org/10.1080/1045988X.2018.1456400

PREVENTING SCHOOL FAILURE, 2018 VOL. 62, NO. 4, 289–299

a student’s special education program. When school- based personnel commit such errors, these errors are usually made because teachers and administrators do not understand and therefore do not properly fulfill their responsibilities under the laws (Decker & Brady, 2016). Third, such errors can lead to negative out- comes for school districts when litigation is brought against them. Some of these negative outcomes may include having to pay for or reimburse student tuition at a private education facility. Additionally, reim- bursement for the attorney’s fees incurred during liti- gation can prove costly to school districts (Yell, 2016). Litigation also brings the potential for mistrust between schools and families. Therefore, we strongly believe that all educators need to understand their responsibilities under special education law. Much of what we learn regarding special education law comes as a result of recent court cases. One recent court case, Endrew F. v. Douglas County School District (2017) will likely be viewed as a landmark case in years to come (Yell & Bateman, 2017). This article will exam- ine the major factors discussed in the case as well as other recent events that have helped shape the land- scape of special education law.

In this article, we emphasize foundational areas in spe- cial education law that should be addressed in teacher and administrator preparation programs and school districts staff development programs. The Individuals with Disabil- ities Education Act (IDEA), which includes the mandate to provide eligible students with a free appropriate public education (FAPE) in the least restrictive environment (LRE) through students’ Individualized Education Pro- grams (IEPs) will be reviewed. We examine these three areas by first describing the history of the law and explain- ing why teachers and administrators need to know about the law. Second, we examine the essential information (e.g., FAPE, LRE) teachers and administrators need to know. Third, we offer informational sources that teacher and administrator trainers and school district officials may use in preparation and staff development programs. These resources can help ensure that teachers and admin- istrators are current with trends regarding legal develop- ments in special education and how these relate to the recent U.S. Supreme Court decision.

Individuals with Disabilities Education Act

The Individuals with Disabilities Education Act, which was titled the Education for Handicapped Children

Act until the name was changed in 1990, is the most important educational law affecting students with dis- abilities. In this milestone law, the federal government became a partner with the states in educating students with specific disabilities specified by the law.1 In fact, to receive federal funding, state education officials had to submit a plan to the U.S. Department of Education that assured the states would, at a minimum, provide students with disabilities with the basic rights granted students by the law.

The basic rights the IDEA provides students with disabilities were as follows: (a) the right to receive a FAPE, which was publicly supervised and publicly funded; (b) the right to be educated in the LRE, a set- ting in which a student with disabilities would be edu- cated to the maximum extent appropriate with students who do not have disabilities; and (c) the right to have an IEP, consisting of special education serv- ices, related services, and supplementary services developed in collaboration with a students’ parents that would serve as a blueprint of a student’s FAPE. It is very important that all public school teachers and administrators understand their basic responsibilities under the IDEA. We next address these components of the IDEA.

Free appropriate public education

The most important right extended to all eligible stu- dents with disabilities under the IDEA is the right to a Free Appropriate Public Education (FAPE) (Huefner & Herr, 2012). Thus, it is extremely important that teachers and administrators understand their respon- sibilities in developing and implementing a FAPE and that students’ parents understand their children’s rights to a FAPE and what that entails.

Unfortunately, the definition of a FAPE in the law is somewhat cryptic rather than comprehensive (Board of Education v. Rowley, 1982). Since, its origi- nal passage in 1975, the definition of FAPE in the IDEA has remained unchanged. According to this def- inition, a FAPE consists of special education and related services that are (a) provided at public expense, under public supervision and financing, (b) meet the

1The IDEA includes the following 13 categories of disabilities: Autism (added in 1990), deaf-blindness, deafness, emotional disturbance, hearing impairment, intellectual disability, multiple disabilities, orthopedic impair- ments, other health impaired, specific learning disability, speech or lan- guage impairment, traumatic brain injury (added in 1990), and visual impairment including blindness.

290 M. A. COUVILLON ET AL.

standards of the state education agency (SEA), (c) include an appropriate education at the preschool, ele- mentary, and secondary levels, and (d) are developed in conformity with a student’s IEP (IDEA, 20 U.S.C. x 1401[a][9][A-D]).

In 1982, the U.S. Supreme Court in ruling Board of Education v. Rowley (hereinafter Rowley), interpreted the FAPE definition. To this day, the Rowley case remains influential in how FAPE is interpreted. The Supreme Court’s interpretation of FAPE is binding on all lower courts in the country, so the specifics of the ruling are very important in aiding teachers in under- standing their responsibilities when developing and implementing FAPE for eligible students with disabil- ities. The case involved a young girl, Amy Rowley, who was being educated in a kindergarten class in the Furnace Woods Elementary School in Peekskill, New York. She was very bright and academically able. When an IEP was developed for Amy in first grade it did not include a sign language interpreter, which Amy’s parents had requested. Amy’s parents believed that because Amy was denied these services, she would not be able to learn at a level equal to those of her peers without disabilities. The Rowleys filed suit in federal court. Both the Federal District Court and then the U.S. Court of Appeals for the second Circuit courts held for Amy Rowley, ruling the school district had failed to provide Amy with a FAPE because she had been denied an opportunity to achieve to her full potential or at a level commensurate with the oppor- tunity available to her classmates. The school district appealed to the U.S. Supreme Court.

Chief Justice William Rehnquist delivered the High Court’s opinion. Writing for a 6–3 majority, the Court reversed the decisions of the lower courts and held for the school district. The High Court rejected the Row- ley’s assertion that a FAPE required that Amy receive an education that allowed her to reach her maximum potential. Justice Rehnquist wrote that:

The requirement that States provide “equal” educational opportunities would thus seem to present an entirely unworkable standard requiring impossible measure- ments and comparisons… . To require the furnishing of every special service necessary to maximize each handi- capped child’s potential is, we think, further than Con- gress intended to go (Rowley, p. 186).

Rather, the Supreme Court concluded “that the ‘basic floor of opportunity’ consists of access to

specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child” (Rowley, 1982, p. 184).

To help determine FAPE, the Supreme Court devel- oped a two-part test to guide courts in future cases in this area. First, had the school district complied with the procedures set forth in the law, and second, was the IEP reasonably calculated to enable a student to receive educational benefit? The Court applied the two-part test in the Rowley case and found that (a) Amy’s elementary school had met all the procedural requirements of the law, and (b) because Amy was doing well in school and passing from grade to grade her IEP had been reasonably calculated to provide her educational benefit. The Court also noted that every student with disabilities who was advancing from grade to grade was not automatically receiving a FAPE; rather, FAPE could only be determined on a case-by-case basis. Understanding the Rowley two- part test is important to administrators and teachers because in developing students’ special education pro- grams they must (a) adhere to the procedural require- ments of the law (part one of the Rowley test), and (b) develop an IEP that is reasonably calculated to enable students to receive educational benefit (part two of the Rowley test).

In 2017, the U.S. Supreme Court heard its second case regarding a school district’s responsibility to pro- vide FAPE in Endrew F. v. Douglas County School District (hereinafter Endrew). It is especially impor- tant for administrators and teachers understand the ruling in Endrew because this decision will greatly affect special education programs. Specifically, the Endrew decision clarifies the second part of the Row- ley test: what is the degree of educational benefit an IEP must confer on a student (Yell & Bateman, 2017)? The question of when a student’s program of special education is reasonably calculated to provide educa- tional benefit has been a critical issue in numerous court cases.

Because the U.S. Courts of Appeals, the level of courts immediately below the U.S. Supreme Court, had been split regarding the second prong of the Rowley Test (i.e., educational benefit), the U.S. Supreme heard the Endrew case to resolve these dis- putes. Some circuit courts had used a lower standard of educational benefit, referred to as de minimis, or trivial benefit, to determine whether FAPE had been conferred, whereas, other circuits held that de

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minimis, standard was too low a standard. These circuit courts required that school district’s deliver a greater degree of educational benefit, often referred to as the meaningful benefit standard, to confer FAPE.

The case involved Endrew, a student in the fourth grade in the Douglas County School District in Colorado. Endrew has autism and attention deficit hyperactivity disorder. His parents, alleging that he had failed to progress academically or functionally in the fourth grade, rejected Endrew’s IEP and placed him in a private school, the Firefly Autism House. Endrew’s parents then filed for a due process hearing in which they argued that the Douglas County School District had failed to provide him with FAPE. The due process hearing officer and federal district court found that the Douglas County School District had provided FAPE. The parents then appealed to the U.S. Circuit Court of Appeals for the Tenth Circuit. The tenth cir- cuit court found that the school district had provided Endrew with a FAPE because the district had provided him with a special education that was merely more than de minimis, thereby meeting the FAPE require- ment of the IDEA.

Following the Circuit Court decision, the parents appealed to the U.S. Supreme Court. The question presented to the Court was what is the level of educa- tional benefit school districts must confer on children with disabilities to provide them with a FAPE guaran- teed by the IDEA? The parents argued that the Doug- las County School District had failed to provide Endrew with a FAPE in accordance with the Rowley standard (two-part FAPE test) because the IEP was not reasonably calculated to provide him with educa- tional benefit.

In a unanimous ruling, delivered by Chief Justice John Roberts, the Court held that “to meet its substan- tive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstan- ces” (Endrew, 2017, p. 15). The Supreme Court vacated (i.e., voided the previous judgment) the Tenth Circuit Court’s decision in the Endrew case and remanded the case (i.e., sent back) to the Tenth Circuit Court to apply the new standard created by the Supreme Court. According to the High Court, the standard that the justices developed was “markedly more demanding than the ‘merely more than de mini- mis’ test applied by the tenth circuit. The Court observed that IDEA “guarantees a substantively

adequate program of education” to eligible children. To meet the substantive obligation under IDEA, a school must offer an IEP that shows reasonable calcu- lation of progress for the child in light of their circum- stances. This qualification of “reasonably calculated” reflects recognition that developing an appropriate program of education requires judgment by school officials. In the opinion, Justice Roberts wrote that:

When all is said and done, a student offered an educa- tional program providing “merely more than de mini- mis” progress from year to year can hardly been said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly … awaiting the time they were old enough to drop out. The IDEA demands more (Endrew, 2017, p. 14).

The Supreme Court vacated the decision of the U.S. Court of Appeals of the Tenth Circuit and remanded (i.e., returned) the Endrew case to the tenth circuit court to hold further proceedings consistent with the new higher standard. On August 2, 2017, the tenth cir- cuit court vacated their decision and remanded the decision to the U.S. District Court for the District of Colorado for further proceedings consistent with the Supreme Court’s decision. On February 12, 2018, the U.S. District Court for Colorado issued a 21-page deci- sion reversing the its previous Endrew ruling and ordered that Endrew’s parents were entitled to reim- bursement of their private school placement at the Firefly Autism House and reasonable attorneys’ fees and litigation costs.

These two decisions, Rowley and Endrew, defined a FAPE as comprising procedural and substantive com- ponents. According to the first part of the Rowley test, there are certain required procedures that school dis- trict personnel must adhere to when developing a stu- dent’s program of special education. According to the second part of the Rowley test, which is the new Endrew standard, a student’s special education pro- gram must be reasonably calculated to enable a stu- dent to make progress appropriate in light of the student’s circumstances. This part of the test is the substantive piece developed in the Rowley and Endrew cases. Additional comparisons between the Rowley and Endrew cases can be found in Table 1.

According to the U.S. Supreme Court the “Modus Operandi” (or method of operation) for delivering a FAPE is the requirement that all eligible students with disabilities receive an IEP (Burlington v. Department

292 M. A. COUVILLON ET AL.

of Education of Massachusetts, 1985). We next review this important component of the IDEA.

Individualized education programs

Developing and implementing an IEP is the method in which a collaborative team, consisting of school-based personnel and a student’s parents, develop a program of special education and related services for an eligible student with disabilities. During the IEP process the team (a) assesses a student’s present level of academic achievement and functional performance (PLAAFP); (b) develops measurable annual goals; (c) determines a student’s program of special education, including related services, supplementary services, and program modifications if needed; and (d) decides on a method for monitoring the student’s progress and reporting the progress to his or her parents.

In accordance with the two-part Rowley test there are procedural (i.e., part one) and substantive (i.e., part two) errors in IEP development and implementa- tion that must be followed. Failure to adhere to these requirements could result in a denial of FAPE and a violation of IDEA (see the following section). Bateman (2017) asserted students’ IEPs are so important that they are at the center of most special education dis- putes in hearings or courts. Therefore, it is critically important that special education teachers and admin- istrators understand the IEP and the types of errors that can lead to ineffective and inappropriate IEPs.

We next describe these specific errors that teachers and administrators must avoid when developing and implementing a student’s IEP. We begin with the pro- cedural errors that were identified by Yell, Katsiyannis, Ennis, & Losinski (2013). The IDEA and the guide- lines on implementation identify very specific proce- dures to ensure the proper development of the IEP by the IEP Team. Because procedural errors in and of themselves could result in a denial of FAPE, it is very important that administrators and teachers under- stand the following requirements.

Parents and the IEP process

Perhaps the most important significant procedural error is failing to include a student’s parents in the IEP process. The first requirement is to ensure that parents are included is providing adequate notice of all formal special education program planning meet- ings, which are to be held at an agreeable time and

Table 1. Comparisons between Rowley (1982) and Endrew (2017).

Rowley (1982) Endrew (2017)

The case involved a student, Amy Rowley, who was very bright, academically able, “progressing smoothly through the regular curriculum,” and qualified for special education in the category of “deafness.”

The case involved a student, Endrew F., who qualified for special education in the category of “autism.” Additionally, he had attention deficit hyperactivity disorder, serious language difficulties, and behavior problems.

The case involved the parents’ assertion that the school district failed to provide Amy with a FAPE because she was not provided with sign language interpreter.

The case involved the parents’ assertion that the school district failed to provide Endrew with a FAPE because he failed to make meaningful progress academically or behaviorally.

The U.S. District Court and U.S. Circuit Court of Appeals for the 2nd Circuit ruled that the school district violated the IDEA because it failed to provide a FAPE, which the courts held should provide an opportunity for Amy to achieve to her full potential at a level “commensurate with the opportunity provided to the other children” (Rowley, 1982, p. 186).

The U.S. District Court and U.S. Circuit Court of Appeals for the 10th Circuit ruled that the school district did not violate the IDEA because it did provide a FAPE, which the courts held only required that a district confer educational benefit that was “merely more than de minimis” (Endrew, 2017, p. 14).

The U.S. Supreme Court developed the two part “Rowley test,” which required that a court exam two specific questions in FAPE cases.

The Supreme Court in effect changed part of the Rowley test.

Part 1 of the test—Has the school “complied with the procedures of the Act” (Rowley, 1982, p. 206)?

The Endrew case did not involve any request to address any procedural shortcomings of the school.

Part 2 of the test—Is a student’s IEP “reasonably calculated to enable a student to receive educational benefits” (Rowley, 1982, p. 207)?

The Endrew standard replaces part two of the Rowley test. The Endrew standard requires that a student’s IEP be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” (Endrew, 2017, p. 15).

The U.S. Supreme Court reversed the decision of the 2nd Circuit court and remanded for further considerations consistent with this opinion.

The U.S. Supreme Court vacated the 10th circuit court’s decision in Endrew and remanded (i.e., sent back) for further proceedings consistent with this opinion. On August 2, 2017, the United States Courts of Appeals for the 10th Circuit vacated its opinion in Endrew, and remanded to the U.S. District for the District of Colorado for further proceedings consistent with the Supreme Court’s decision and on February 18, 2018 the U.S. District for the District of Colorado reversed the Endrew decision and ordered the Douglas County School District to reimburse Endrew’s parents for tuition and expenses paid to the Autism Firefly House as well as attorney’s fees and litigation costs.

The full implications of the Endrew decision will not become clear until courts apply the new standard to the facts presented in future FAPE litigation.

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place. Additionally, the specific purpose of the meet- ing, along with notice of invited and welcome attend- ees (e.g., advocate, therapist, relative), should also be clearly identified.

Predetermination

Predetermination is the term used to describe a situa- tion in which a student’s goals and related services are decided before the start of the IEP meeting. Predeter- mination is an IEP error that can lead to the denial of a FAPE, and therefore a violation of IDEA (Bateman, 2017; Yell, 2016; Yell, Katsiyannis, Ennis, Losinski, & Christle, 2016). It is important to note that draft IEPs are permissible and have been supported in legal chal- lenges (e.g., Doyle v Arlington County School Board, 1992) as long as the drafts have been clearly labeled as such, and that edits and amendments to the IEP are noted during the IEP meeting.

Determining placement

A student’s placement must be decided based on the content of his or her IEP. For example, a student with emotional and behavioral needs should not be auto- matically placed in a district’s self-contained class- room because that is where such students are usually served. It is only after the student’s goals and services are decided that decisions regarding the student’s placement should occur (Bateman, 2017). Courts have long recognized the tension between the FAPE and LRE requirements and that the first responsibility of IEP teams is to develop a student’s program, which confers FAPE (Yell, 2016). To determine placement first, and then to attempt to fit a student’s program into that placement essentially puts the LRE principle first and the FAPE principle second. This practice, which has been referred to as “shoehorning,” is a potential violation of the IDEA and should be avoided (Yell, 2016).

Convening an appropriate IEP team

Ensuring that all IEP team members are present for meetings is critical. The regulations to the IDEA (34 C.F.R. x300.321) list the required members of the IEP team as: the parent(s) of the student; not less than one regular education teacher of the student (if the child is, or may be, participating in the regular education environment); not less than one special education

teacher of the student, or where appropriate, not less than one special education provider of the student; a representative of the public agency who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of chil- dren with disabilities; is knowledgeable about the gen- eral education curriculum; and is knowledgeable about the availability of resources of the public agency; an individual who can interpret evaluation results; other individuals who have knowledge or special expertise regarding the student; and the child with a disability (when appropriate).

Whereas knowledge of the required attendees at the IEP meeting may be understood, it is extremely important the required members actually be present for the meeting. It is helpful if a consistent and reliable person ensure that all attendees know the correct time and location of each meeting. Court cases have addressed the issues of full team participation. For example, in Deal v. Hamilton County Board of Educa- tion (2004), the U.S. Court of Appeals for the 6th Cir- cuit found that the Hamilton school district had committed a serious procedural violation of the IDEA because the district did not include a general educa- tion teacher on a student’s IEP team. The court noted that “The absence of the unique perspective that could have been provided by a regular education teacher therefore had a real impact on the decision-making process” (Deal, 2004, p. 591).

Substantive errors

We now turn to a description of substantive errors that school-based personnel need to avoid in IEP development as identified by Yell et al. (2016). It is likely that when these substantive errors are made by school-based personnel, the errors may violate the Endrew standard for providing FAPE (i.e., a student’s IEP must be reasonably calculated to enable a student to make progress in light of his or her circumstances).

Individualized assessment of student’s needs

Before the IEP can be developed it is important that the appropriate assessments have been scheduled and are successfully administered. This holds true regardless of whether it is a student’s initial IEP or the annual review to determine success on previous goals. The special edu- cation consultant, psychologist, or diagnostician assigned to the school will be helpful in determining which

294 M. A. COUVILLON ET AL.

assessments are needed as well as the scheduling of these assessments. Before any assessment is done, parents/guardians must provide written consent.

Student needs and the PLAAFP statement

The results of student assessment and performance data determine much of what makes up the goals and services written into the IEP. Failure to utilize this information is highly problematic and can lead to the denial of FAPE. Reviewing these statements with col- leagues is one way to ensure that PLAAFP statements are clear and sufficient. A final review of PLAAFP statements at the IEP meeting will also be a way to help make sure there is enough detail to write goals that can be developed.

Developing challenging, ambitious, and measurable goals

With the assessments completed and the PLAAFP state- ments written, the IEP team now has a baseline from which measurable goals can be written. Without mea- surable goals the IEP team cannot determine if progress is being made or what curricular adjustments may be necessary. To ensure a goal is measurable it is helpful to follow protocols such as the Specific, Measurable, Attainable, Relevant, and Time-Bound (SMART) approach to writing behavioral and learning objectives (Jung, 2007). For example, “In 32 weeks when given a 6th-grade reading passage probe from a curriculum- based measurement, Nicholas will improve reading skills by increasing the number of correct words read aloud in one minute from 120 to 166.”

Although this example may provide a reasonable goal for Nicholas, it is critical that a teacher actually collect data on the progress Nicholas is making. Jung (2007) advocated that SMART goals are helpful to both teachers and parents in creating successful strate- gies for students in academic settings.

Providing special education services

The law also requires that the IEP team define the fre- quency, duration, and location of all services to be provided to the student. Moreover, these services must be implemented as outlined in the IEP. For example, if the IEP team decides that a social skills curriculum will be taught to a student, the team must also decide who is responsible for delivering the

curriculum to be taught as well as when and where the teaching will occur.

Monitoring a student’s progress

Once the present levels of a student’s performance have been clearly identified and the IEP goals are writ- ten, IEP teams must determine a process for monitor- ing the progress and reporting on a student’s progress toward his or her goals. There are many teacher- friendly ways to collect meaningful and relevant data (e.g., curriculum-based measurement). Progress moni- toring is a systematic, formative assessment process of collecting data to inform instructional practices and determine whether a student has achieved his/her goals (Iowa Department of Education, 2017). Further, the Iowa Department of Education requires that the progress-monitoring section of the IEP address (a) how progress will be measured, (b) how often progress will be monitored, and (c) when changes in instruc- tion will be considered. The U.S. Supreme Court’s Endrew’s standard emphasizing student progress makes data collection and analysis particularly critical. For excellent examples and information on progress monitoring, see the webpage of the National Center on Intensive Intervention (https://intensiveinterven tion.org/).

Implementing a student’s IEP

Many of the issues discussed so far have addressed IEP development. Whereas a critical step in the special education process is developing an IEP, an IEP is only effective if it is implemented as written. One cannot expect positive outcomes without proper implementa- tion (Fixen, Naoom, Blas�e, Friedman, & Wallace, 2005). Proper implementation may involve contribu- tions from the IEP team as well as other school district staff. Jung, Gomez, Baird, and Keramidas (2008) advo- cated that the IEP program be evaluated to determine the fidelity of the strategy and to see if modifications to the IEP are being implemented as written.

Strategies and suggestions to increase student success are always welcomed during IEP meetings, but once the meeting is over it is important to remember that all the suggestions written into the IEP must be implemented. All teachers and staff who are involved in IEP implementation must have a clear understanding of who is responsible for the various aspects of the IEP and how they are to

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ensure they are executed as written. Before leaving the meeting, all IEP team members should be clear about the resources, supports, and responsibilities required in a student’s program of special educa- tion. Moreover, teachers and staff not on the IEP team must be informed about their responsibilities, if any, in the student’s IEP. Table 2 provides resources and references to help teachers with the development and implementation of the IEP.

Least restrictive environment (LRE)

After a student’s IEP team develops his or her pro- gram of special education, the team determines the placement in which the student can receive an appro- priate education. This reflects the IDEA’s primary mandate, which is to develop a program that confers FAPE, and recognition that LRE is a secondary man- date. Thus, only when FAPE is determined can the team turn to considering placement in the LRE. In making the placement decision, a team of knowledge- able persons (usually the IEP team) and the student’s parents need to make the placement decision based on the following three factors. First, a student’s placement must be based on his or her IEP. Thus, a student’s pro- gram must be determined before a placement decision is made so that the team has a basis for deciding where the student’s needs can best be met. Second, the place- ment must be individually determined based on a stu- dent’s unique educational needs. Placement cannot be decided solely based on factors such as severity or type of disability. Third, a student’s placement must be made in accordance with the least restrictive environ- ment (LRE) principle of the IDEA. The “IDEA is built

on the foundational premise that a (student’s) place- ment must be an individualized determination and made in compliance with the LRE mandate” (Lake, 2007, p. 60).

The LRE mandate requires that to the maximum extent appropriate students with disabilities should be educated with children who are not disabled. The LRE mandate requires that IEP teams make good-faith efforts to place and maintain students with disabilities in less restrictive settings. For some students, however, more restrictive or segre- gated settings may be appropriate when these set- ting are necessary for a student to receive a FAPE. To ensure that schools make good-faith efforts to educate students in less restrictive settings, the IDEA also requires that before students with dis- abilities are placed in more restrictive settings, efforts must first be made to maintain a student in less restrictive settings with the use of supplemen- tary aids and services. Specifically, IDEA requires that the IEP must include “an explanation of the extent, if any, to which the child will not partici- pate with nondisabled children in the regular class and in (extracurricular and nonacademic) activities …” (Individuals with Disabilities Education Act, 20 U.S.C. 1414(d)(1)(A)(iv)(2006). The presumption in favor of placements in integrated settings is further underscored in the regulations. Specifically, “a student with a disability may not be removed from an age- appropriate general education classroom solely because of modifications needed to the general curric- ulum” (34 CFRx300.116(e)(2006).

When considering LRE requirements, the prece- dents from influential case law can help in the deci- sion-making process (e.g., Daniel R. R. v. State Board of Education, 1989; Roncker v. Walter, 1983; Sacra- mento City Unified School District Board of Educa- tion v. Rachel H., 1994). Guidelines from these cases examined specific variables and the factors that the courts used in their rulings are frequently seen as guideposts to the LRE requirements: (a) Will the stu- dent benefit from being in a general education class? (b) Could the benefits of mainstreaming be equally obtained in a separate instructional setting? (c) Would the placement cause disruptions in the general educa- tion settings? (d) Are there nonacademic benefits to the student participating in the general education classroom? And (e) if the student cannot be accom- modated in the regular classroom, has the school

Table 2. IEP resources.

Guide to the IEP https://www2.ed.gov/parents/needs/ speced/iepguide/index.html?exp D 0

Writing S.M.A.R.T IEP goals https://adayinourshoes.com/iep-goal- banks-develop-smart-goals/

IEP team guidelines http://www.parentcenterhub.org/ repository/iep-team/

The IEP cycle https://dredf.org/special-education/ special-education-resources/the- iep-cycle/

Running effective IEP meetings http://www.teachhub.com/iep-meet ing-tips

Parents’ guide to IEPs https://www.understood.org/en/ school-learning/special-services/ ieps/playing-a-role-in-the-iep-pro cess

Progress monitoring procedures https://www.educateiowa.gov/pk-12/ special-education/iowas-guid ance-quality-individualized-educa tion-programs-ieps/progress

296 M. A. COUVILLON ET AL.

enabled the student to participate in academic and nonacademic activities with same-age peers to the maximum extent appropriate? Additional resources for LRE can be found in Table 3.

Discussion

Just as drivers need to be aware of changes and regulations to traffic laws and motor vehicle guide- lines (e.g., child seats, hands-free driving), adminis- trators and teachers should also be aware of legal updates related to special education and how best practices can be affected. It may seem beyond the scope of teaching, which may emphasize curricu- lum and behavioral issues, but keeping current with special education legal developments will help in the development and implementation of best practices. Taking a proactive approach can help educators discover and explore potential special education legal issues. If teachers have questions or suspect an issue, begin to investigate right away. For example, if a state or school district has new guidelines on tracking the use of time-outs or pol- icy changes on the usage of out-of-school suspen- sions, take the time to evaluate practices and seek out more information.

Incorporating a few simple habits into a teacher’s routine can also help keep them stay current with legal developments in special education. Such developments occur with some regularity (e.g., court cases, legislative and regulatory developments on the state or federal level) and teachers, administrators, and related services personnel must keep abreast of these changes. Because legal developments in special education are so impor-

tant, it is crucial that the information be accurate. Per- haps the best way to ensure that information is current and accurate is to attend in-services, workshops, webi- nars, and conferences that are developed or sponsored by a school district, state educational agency, or profes- sional organization (e.g., Council for Exceptional Children).

Another helpful option is to maintain a phone log, e-mails or texts between parents, co-workers or dis- trict administrators. At the time, messages may seem trivial or you may believe it is something that you won’t forget, but these details can be missed or forgot- ten if not noted. Such details can be especially helpful when trying to ensure that requirements of the IDEA are followed. E-mail threads and even texts can be easy to record and file for future use. Phone logs with basic details such as time, date, and a few notes can be more time consuming but will be very helpful if ques- tions are raised. Creating and maintaining a basic phone log can be done in a computer file or using a dedicated notebook.

There are also other web-based resources that can pro- vide up-to-date information. The special education offi- ces in state educational agencies often maintain websites that provide legal updates. Additionally, the U.S. Depart- ment of Education’s website contains useful information, including policy guidance on issues in special education. There are also a number of blogs that specifically address legal developments in special education. Table 4 includes information on accessing this information and Table 5 contains blogs on special education law.

Conclusion

The pedagogy surrounding teaching and learning is often challenging to implement in a manner that

Table 3. LRE guidelines.

LRE considerations http://www.parentcenterhub.org/ repository/placement-lre/

Common questions about LRE http://www.wrightslaw.com/info/lre. osers.memo.idea.htm

Does federal law mandate inclusion?

http://weac.org/articles/specialedinc/

Table 4. Special education law resources.

Center for Parent Information and Resources

http://www.parentcenterhub. org/

Council for Exceptional Children https://www.cec.sped.org Council for Administrators of Special

Education http://www.casecec.org/

U.S. Department of Education http://www.ed.gov U.S. Department of Education’s IDEA

Website https://sites.ed.gov/idea/

Wrightslaw http://www.wrightslaw.com/

Table 5. Special education law blogs.

Council for Exceptional Children—Policy Insider

http://www.policyinsider.org/

Developments in Special Education Law (Written by H. Jeffrey Marcus)

http://blog.jeffmarcuslaw.com/

Office of Special Education and Rehabilitative Services (OSERS) Blog

https://sites.ed.gov/osers/

Special Education Law Blog (Written by Charles Fox)

specialedlaw.blogs.com

Special Education Law Blog (Written by Jim Gerl)

Specialeducationlawblog.blog spot.com

SpedLawBlog (Written by Mitchell Yell)

http://spedlawblog.com

The Wrightslaw Way http://www.wrightslaw.com/blog/ home/

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maximizes learning outcomes. Whereas good peda- gogy should remain the focus of teaching, additional aspects of education also require more attention and understanding, including special education law. This paper has provided an introduction into the main topics surrounding special education law. Discussions about major tenants of IDEA and examples of recent cases and policy changes show that the law set to pro- tect students with disabilities can be difficult to imple- ment and that the interpretation of this law evolves over time. The resources provided should serve as a way to explore these topics in greater detail and as a means to keep current with future changes.

Disclaimer

The information and websites given in this article are intended to provide general information and not advice on special edu- cation law and policy. Please consult with your school district attorney for specific legal advice.

Notes on contributors

Michael A. Couvillon is an associate professor at Drake Univer- sity. His current research interests include legal issues in spe- cial education, special education teacher preparation, policy programming on the use of restraint and seclusion, and FBA and BIP implementation.

Mitchell L. Yell is the Fred and Francis Lester Chaired professor of Teacher Education at the University of South Carolina. His current research interests include legal issues in special education, IEP development, classroom management, progress monitoring, and evidence-based practices in special education.

Antonis Katsiyannis is an Alumni Distinguished professor at Clemson University. His current research interests include legal and policy issues in special education, delinquency, and emotional and behavioral disorders.

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