LEGAL ISSUES Delivery of a FAPE
Because neither the IDEA nor its regulations defined “appropriate,” judicial intervention was neces- sary. In Rowley, the Supreme Court described “appropriate” as requiring school boards to provide students with floors of opportunities rather than as a means of maximizing their potential. In Rowley, parents of a kindergartener in New York who was hearing impaired chal- lenged their school board’s refusal to provide their daughter with a sign-language interpreter. After a hearing officer and lower fed- eral courts agreed that the child was entitled to an interpreter, the Supreme Court reversed in favor of the school board.
The Supreme Court clarified which party bears the burden of proof in disagreements
over the contents of student placements and IEPs in due process hearings
The Court—acknowledging that the student achieved passing grades and advanced academically without the sign-language interpreter— determined that an “appropriate” education was one “sufficient to confer some educational benefit” (Rowley 1982, 200) on her by pro- viding “a basic floor of opportunity” (Rowley 1982, 201) rather than one designed to maximize her potential. Convinced the student was advanc- ing without the sign-language inter- preter, the Court concluded that she was not entitled to an interpreter even though she might have achieved at a higher level had she received such assistance. Rowley’s Court
having viewed the IDEA as setting a minimum level of appropriateness did not prevent states from adopting higher standards.
Thirty-five years after Rowley, in Endrew F. v. Douglas County School District RE-1 (2017), the Supreme Court revisited the minimal stan- dard it set in Rowley. In Endrew F., the justices held that a school board in Colorado failed to meet its duty under the IDEA because it did not offer a child with autism an IEP that met his educational needs. The Court explained that to “meet its substantive 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 circumstances” (Endrew F. 2017, 999). On remand in Endrew F. (2018), the federal trial court in Colorado noted that because the IEP the school board offered did not allow the child to progress appropriately in light of his unique circumstances, his parents were entitled to tuition reim- bursement for the cost of sending him to a private school. Outside of the Third (Oberti v. Board of Educa- tion of the Borough of Clementon School District 1993) and Sixth Cir- cuits (Deal ex rel. Deal v. Hamilton County Department of Education 2004), which agreed that the IDEA entitled students to greater services, school boards are experiencing addi- tional litigation and increased educa- tional costs post Endrew F.
Related Services
In its first of two suits on related services—Irving Independent School District v. Tatro (1984), a case from Texas—the Supreme Court observed that because school nurses or trained laypeople can perform procedures such as catheterizations, educa- tion officials must provide these services in schools to students with disabilities.
Subsequently, in Cedar Rapids Community School District v. Garret F. (1999), the justices posited that
36 MAY 2022 | SCHOOL BUSINESS AFFAIRS
the IDEA obligated a board in Iowa to provide a full-time nurse while the plaintiff student was in school because he needed constant care and monitoring for his medical needs, regardless of cost.
Attorney and Expert Witness Fees
As litigation over the IDEA increased, the Supreme Court addressed the important issue of attorney fees in Smith v. Robinson (1984), a controversy from Rhode Island. In Smith, the justices refused to permit parents of children with disabilities to recover legal expenses from their school boards even if they prevailed. The Court rejected the parental claim that they achieved lit- tle even when they prevailed because they faced significant legal bills in safeguarding the rights of their chil- dren to FAPEs. Dissatisfied with Robinson, Con- gress amended the IDEA by adopt- ing the Handicapped Children’s Protection Act (20 U.S.C. §§ 1415[i] [3][B]–[C]) allowing parents who prevail in court to recover their attorney fees on the basis that in suc- ceeding, they are essentially ensuring the delivery of services their children should already have received. Congress later modified the IDEA to allow school boards to recover fees from attorneys, rather than parents, for claims courts deem frivolous, unreasonable, or without foundation (20 U.S.C. § 1415[i][3] [B][i][II]). Further, litigation has reached mixed results with the so-called cata- lyst theory, under which some courts awarded attorney fees if litigation, threats of litigation, or administra- tive actions motivated school board officials to grant parental requests. This approach is in doubt, though, following a nonschool case, Buck- hannon Board & Care Home v. West Virginia Department of Health and Human Resources (2001), which rejected the catalyst theory as a basis for recovering attorney fees.
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