The Next Wave
of Special Education Litigation
Peter W. D. Wright, Esq.
this page in PDF
education law and litigation is on the verge of a major shift in direction.
Within the next five years, I believe the educational landscape will begin
to change for all children.
and advocates remember when tuition reimbursement cases surged after the
U. S. Supreme Court issued the decision in Burlington.
Another surge of reimbursement cases came after the U. S. Supreme Court's
decision in Florence
County v. Shannon Carter in 1993.
helped to open the doors to reimbursement for the ABA /Lovaas / DTT therapy
that is used to educate young children with autism.
reauthorized the Individuals with Disabilities Act in 1997, we saw an
increase in discipline cases. This was due in part to the incredibly confusing
language of the IDEA
discipline statute of 1415(k), coupled with an overzealous application
of "zero tolerance" policies by school administrators and school
boards who abdicated their responsibility to use logic and discretion.
As more states
require students to pass high-stakes tests before they can receive high
school diplomas, we are seeing a new kind of case. We are being asked
to represent children who cannot pass high-stakes tests because their
schools did not teach them the information and skills they needed to pass
these tests, or because their district or state refused to provide them
with accommodations or adaptations.
The most recent high-stakes testing case was Noon v. Alaska State Board
of Education and Anchorage School District, a class action lawsuit
challenging Alaska's High School Graduation Qualifying Examination. The
filed in the U. S. District Court is available at https://www.harborhouselaw.com/law/plead/ak.highstakes.complaint.pdf
In Noon, plaintiffs asserted that "the High School Exit Exam
discriminates against students with disabilities because, among other
problems, (1) there is no meaningful access to an alternate assessment,
(2) the accommodations policies illegally burden students rights
to use the tools necessary to demonstrate their skills, and (3) the Exam
unfairly tests disabled students on material they have never been taught."
to Teach Knowledge and Skills
The plaintiffs in Noon charged that the exit exam discriminated
against students with disabilities because "these students have not
been prepared by the Alaska public school system to take the [high-stakes
test] and that the "exit exam unlawfully and unfairly tests these
children on material that they have never been taught."
First" Policy Discriminated Against Students with Disabilities
The lawsuit also charged that students were required to fail the high-stakes
test before they were allowed reasonable accommodations. Plaintiffs asserted
that the defendants arbitrarily made some accommodations unavailable,
claimed that accommodations would invalidate a student's score, and made
these determinations "without acceptable psychometric or legal justification."
On August 2, 2004, the parties in the Noon v. Alaska lawsuit announced
that they had reached a settlement.
& NCLB Requirements about Accommodations on High-Stakes Tests
retain or refuse to graduate children often claim that the No Child Left
Behind Act requires them to take these actions. This is simply not true.
The Individuals with Disabilities Education Act of 1997, the federal special
education regulations, Appendix A to the special education regulations,
and the No Child Left Behind Act of 2001 are consistent about the requirements
to provide reasonable accommodations and adaptations on high-stakes tests.
in Assessments -
General - children with disabilities are included in general State and
district-wide assessment programs, with appropriate accommodations,
where necessary. 20 U.S.C. 1412(a)(17) (Wrightslaw:
Special Education Law, page 48-9)
Sec. 300.138. Participation in Assessments.
must have on file with the Secretary information to demonstrate that
(a) Children with disabilities are included in general State and district-wide
assessment programs, with appropriate accommodations and modifications
in administration, if necessary (Wrightslaw:
Special Education Law, page 151)
A to the IDEA Regulations
Appendix A to the IDEA Regulations is a Q & A document about IEPs,
parental role, transition, and other issues. An Appendix to the Regulations
has the same power as the regulation. The following text is copied directly
from Appendix A.
Involvement and Progress
of Each Child With a Disability in the General Curriculum
many cases, children with disabilities will need appropriate supports
in order to successfully progress in the general curriculum, participate
in State and district-wide assessment programs, achieve the measurable
goals in their IEPs, and be educated together with their nondisabled
peers. Accordingly, the Act requires the IEP team to determine, and
the public agency to provide, the accommodations, modifications, supports,
and supplementary aids and services, needed by each child with a disability
to successfully be involved in and progress in the general curriculum
achieve the goals of the IEP, and successfully demonstrate
his or her competencies in State and district-wide assessments."
Special Education Law, page 209)
in State or District-Wide Assessments of Student Achievement
with Sec. 300.138(a), which sets forth a presumption that children with
disabilities will be included in general State and district-wide assessment
programs, and provided with appropriate accommodations if necessary,
Sec. 300.347(a)(5) requires that the IEP for each student with
a disability include: (i) a statement of any individual modifications
in the administration of State or district-wide assessments of student
achievement that are needed in order for the child to participate
in the assessment . . ."
Special Education Law, page 211)
Policy Memorandum: Questions and Answers about State and District-wide
Assessment Requirements under the IDEA
the U. S. Department of Education Office of Special Education Programs
published a Policy
Memorandum: Questions and Answers about State and Districtwide Assessment
Requirements Under the IDEA.
Note: This Memorandum is available at https://www.harborhouselaw.com/law/osep.memo.assess.2000.pdf
The first paragraph of the Memorandum states that policies that limit
disabled children from participating in assessments or deny benefits from
participating in assessments (i.e., promotion, graduation) are discriminatory
and violate the law. "Because of the benefits that accrue as the
result of assessment, exclusion from assessments on the basis on disability
generally would violate Section 504 and ADA."
Child Left Behind Act of 2001
The No Child Left Behind Act of 2001 is consistent with the Individuals
with Disabilities Act on requirements that schools shall provide "reasonable
accommodations and adaptations."
(C) Requirements - Such assessments shall -
(ix) provide for --
(I) the participation in such assessments of all students;
(II) the reasonable adaptations and accommodations for students with
disabilities (as defined under section 602(3) of the Individuals
with Disabilities Act) necessary to measure the academic achievement
of such students relative to State academic content and State student
academic achievement standards . . . (Wrightslaw:
No Child Left Behind, page 150)
Retention & Graduation
No Child Left Behind does not require schools to retain students nor to
withhold diplomas. In fact, subsection 6311(l) states, "Nothing in
this part shall be construed to prescribe the use of the academic assessments
. . . for student promotion or graduation purposes." (Wrightslaw:
No Child Left Behind, page 160)
next five years, I believe we will see more lawsuits by special education
and general education students who sue their states and school districts
because they were not taught the necessary skills to pass high-stakes
tests or because they could not pass high-stakes tests because their state
or school district refused to provide them with "reasonable adaptations
and accommodations" to measure their academic achievement.
Fortunately, the Individuals with Disabilities Act of 1997 and the No
Child Left Behind Act of 2001 provides tools we need to prevail.
Peter Wright, Esq.
is an attorney who represents children with disabilities. He speaks at
national conferences about "How To Secure an Appropriate Special
Education for Your Child and Avoid Due Process" and presents at continuing
legal education seminars about representing special education children.
Pete and his wife Pam do legal and advocacy training programs around the
6, 1993, Pete gave oral argument before the United States Supreme Court
County School District Four v. Shannon Carter, 510 U.S. 7 (1993) .
Thirty-four days later, the Court found for his client, Shannon Carter,
in a unanimous decision.
and his wife are the authors of several best-selling books, including
Special Education Law and Wrightslaw:
From Emotions to Advocacy. The Wright's new book, Wrightslaw:
No Child Left Behind, was co-authored by Suzanne Heath.
The Wrights provide information and advice about educational law and advocacy
at Wrightslaw, the #1 ranked special
education website in the world.
Copyright © 1999-2021, Peter W.
D. Wright and Pamela Darr Wright.
All rights reserved.