March 14, 2007
Analysis by Ronald Lospennato, Esq., Legal Director, Disabilities Rights Center
This Maine case concerns eligibility for special education and addresses common problems students in New Hampshire encounter. The Maine School District had found the student, who has Asperger’s Syndrome and a depressive disorder, ineligible for special education. The First Circuit Court ruled against the District, finding the student eligible, ruling that:
• "Adverse effect" of the student’s disability on her educational performance was enough to find her eligible for special education. The District had argued it only had to provide special education to children whose conditions "significantly impact educational performance".
• Education is about more than just academics, and includes physical, emotional, and social needs as well, since special education is designed to prepare students for further education, employment, and independent living.
• Certain kinds of services, such as social skills and pragmatic-language instruction, are “specially designed instruction”, not merely “related services”. The District had argued that the student only required related services and not special education, and was therefore not eligible.
In the past, many school districts in New Hampshire have refused to find children eligible for special education and related services. These decisions have been supported by a very restrictive interpretation of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400. However, the First Circuit Court of Appeals has recently issued a decision which goes a long way in undermining the central tenants of this interpretation. In Mr. I. ex. rel. L.I. v. Maine School Admin. Dist. No. 55, 2007 WL 641988 (1st Cir. Mar. 5, 2007), the court addressed the issue of whether a student with Asperger's Syndrome and a depressive disorder qualified for special education and related services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400. Although the student's academic work was acceptable, she had trouble relating with her peers due to a “serious lack of awareness” of their social and emotional states, which bordered on “hostility.” According to one evaluator, the student “experiences significant limitations in many areas of adaptive skills” and executive skills, “which likely contribute[s] to her behavioral and emotional difficulties.”
Despite these findings, the school district had refused to find that the student qualified for special education. Taking a narrow view of the terms “adverse impact” and educational performance, the school district took the position that a student qualifies for special education “only if the student's condition imposes a significant negative impact on the child's educational performance ... limited to those areas of performance actually being measured and assessed by the local unit, in accordance with law.” A state hearing officer upheld the school district’s decision. The hearing officer recognized that both the IDEA and Maine's implementing regulations define “educational performance” to include more than just academic proficiency, but concluded that the IDEA does not call for services “to address social and emotional needs when there are no academic needs.”
Based on the clear language of the IDEA and state law, the First Circuit rejected the school district’s argument that the IDEA limited the school's duty to children whose conditions "significantly impact educational performance" and held, instead, that an "adverse effect" was sufficient and the child was entitled to services. In reaching that decision, the court rejected the district's attempt to equate the word “adversely” with “calamitously” or “perniciously.” The court found that the definition of "disability" in the IDEA did not include the qualifying language sought by the school district. As the court stated:
We think it considerably more likely that federal regulators used “adverse” in its ordinary sense, namely “against.” Black's Law Dictionary 58 (8th ed.2004); see also Webster's Third New International Dictionary of the English Language (Unabridged) 31 (1993) (giving primary definition of “adverse” as “acting against or in a contrary direction”). In this way, the regulation sensibly demands that a disability cannot qualify a child for IDEA benefits unless it has a negative effect on educational performance; no effect, or a positive one, will not do. The regulation does not, however, put any quantitative limit, “significant” or otherwise, on the disability.
In order to buttress its argument for a narrow view of the eligibility requirements of the IDEA, the school district professed concern that a broad interpretation of the eligibility requirements would open the floodgates and lead to many more children being identified as needing special education. The court, however, rejected this argument as well. In reviewing the legislative history of the IDEA, the court noted that in 1997, Congress voiced concern about over-identifying children as disabled and, as a result, changed the formula for calculating the funds due each state. The legislative history included the statement that the change in the funding formula "should in no way be construed to modify the obligation of educational agencies to identify and serve students with disabilities." The court stated: "although the district and its amici argue that an over-identification problem persists, we cannot tighten the standard for IDEA eligibility when Congress itself has chosen not to do so."
Responding to the school district’s effort to compare the term disability in the IDEA with how that term is used in the Americans with Disabilities Act (ADA), the court found that the definition of "disability" in the IDEA did not include the qualifying language sought by the school district. The court stated that the more restrictive meaning of the word "disability" in Title II of the Americans with Disabilities Act and the Rehabilitation Act "is of little moment." As the court went on to note:
Putting aside the difference between the legislative goals of the IDEA and these other acts, then, the IDEA simply defines “disability” differently than they do. Compare 20 U.S.C. § 1401(3)(A) with 29 U.S.C. § 705(9)(B) and 42 U.S.C. § 12102(2)(A) (defining “disability” as “physical or mental impairment that substantially limits one or more major life activities”). This clear disparity in text puts the district's suggestion that we look to those other acts in construing the term “disability” here on par with comparing “plums and pomegranates.”
The also resoundingly rejected the school district narrow view of the term “educational performance.” Instead, the court recognized that “educational performance in Maine (as it is in New Hampshire) is more than just about academics. As the court found:
Maine's broad definition of “educational performance” squares with the broad purpose behind the IDEA: “to ensure that all children with disabilities have available to them a free and 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.” 20 U.S.C. § 1400(d)(1)(A) (emphases added). We have likewise held that the IDEA entitles qualifying children to services that “target ‘ all of [their] special needs,’ whether they be academic, physical, emotional, or social.”
Finally, in its effort to advocate for a narrow application of the eligibility requirements of the IDEA, the district offered an argument that is frequently used in New Hampshire; that the student did not qualify under 20 U.S.C. § 1401(3)(A)(ii), which requires that a child “need[ ] special education and related services” as a result of his or her disability in order to qualify for them under the IDEA. In rejecting this argument, however, the court affirmed the lower court’s reasoning that “extra instructional offerings such as social-skills and pragmatic-language instruction are ‘specially designed instruction’ to ensure [LI's] ‘access ... to the general curriculum.’ “ Id. (quoting 34 C.F.R. § 300.39(b)(3)). Responding to the school district’s argument that “social pragmatics instruction” offered to the student “was aimed more at counseling LI at how she could better interact with others” than at traditional “speech services,” and, thus, qualifies as a “related service,” not “special education,” under the IDEA, the court noted that while “speech-language pathology services” comprise a category of “related services,” 20 U.S.C. § 1401(26)(A), directly teaching social skills and pragmatic language to LI amounts to adapting the content of the usual instruction to address her unique needs and to ensure that she meets state educational standards, viz., those defining educational performance to include “communication” and requiring progress in “career preparation.”
The only downside to this decision is that the court also ruled that the parents were not entitled to reimbursement because the private placement did not provide the child with special education services described above and therefore was not “reasonably calculated to provide educational benefit.” The Court also determined that there were not enough facts in the record to determine the parameters of the compensatory education claim, permitting the parties to meet to discuss compensatory education issues.