Today we continue our Education and Law mini-series with a show on the legal and policy issues surrounding special education. My guest is Janet Decker, an Associate Professor in the Educational Leadership and Policy Studies Department at Indiana University. Dr. Decker became interested in special education policy when she taught students with autism.

In our conversation, Dr. Decker talks about the legal term FAPE, which stands for Free and Appropriate Public Education. FAPE is legally guaranteed to children under the Individuals with Disabilities Education Act. It is one of the most important legal issues in special education, but also one of the most problematic. What is the definition of ‘Free’ and ‘Appropriate’ ‘Public’ ‘Education’?

Janet Decker’s latest co-written book with Martha McCarthy and Suzanne Eckes is Legal Rights of School Leaders, Teachers, and Students, published by Pearson.

This episode was put together in collaboration with the Education Law Association.

Citation: Decker, Janet, interview with Will Brehm, FreshEd, 151, podcast audio, April 21, 2019.

Transcript, translation, and resources:


Will Brehm  0:01
Janet Decker, welcome to FreshEd.

Janet Decker  0:55
Thank you. Thanks for the opportunity.

Will Brehm  1:33
So special education lawsuits are, what I’ve learned to be, the most common type of litigation filed against schools. Can you give an example of one such lawsuit?

Janet Decker  1:45
Absolutely. So recently in 2017, the US Supreme Court offered a decision in the case Andrew versus Douglas County School District. And this case was about a young boy Drew. He was a fifth-grade boy with autism and he wasn’t making progress after several years in a public school. So, because of this, his parents unilaterally decided to transfer him to a private school that was designed just for students with autism. And within months of being at this private school, Drew was making academic progress and his behavior had improved significantly. So, because of this progresses, his parents filed a lawsuit against the public school, claiming that the school had violated Drew’s legal rights. So specifically, the parents argued that under the federal law, the Individuals with Disabilities Education Act or IDEA, that the school was required to provide Drew with a free appropriate public education (FAPE). So that’s known as a FAPE and you’ve probably caught on there are a lot of acronyms in special education. So, the parents claimed that he wasn’t provided with education that he was legally entitled to receive. And because of this, the parents said that the public-school district needed to pay for the private school tuition. Now this scenario where parents are seeking private school tuition isn’t unusual in special education lawsuits and oftentimes the tuition for these specialized private schools or residential schools can be quite high. So, in this particular case, it’s pretty interesting because the private school tuition was approximately $78,000 a year. And as we know, school budgets are tight. And so, for one school district to be paying this type of tuition is quite extraordinary. So, in that case, it first went as special education lawsuits do it first went to the administrative law judge, and then the district court and then to the 10th Circuit Court of Appeals. All of those lower courts found that the school district had provided Drew with a FAPE, a free appropriate public education. In fact, the 10th circuit stated that Drew’s education plan and this is called an IEP or an Individualized Education Plan, that that IEP only needed to confer educational benefits that’s merely more than ‘de minims’. So, another way to phrase that is that the 10th circuit was saying that the IEP only needed to provide just above trivial educational benefit. But then when the case finally made its way to the US Supreme Court, which is really exciting when an education law case gets that high, the Supreme Court unanimously disagreed with all those lower courts and they said that applying that minimal standard, and here’s a quote from the Supreme Court, they said “it would be tantamount to sitting idly awaiting the time when students with disabilities were old enough to drop out”. So, the court didn’t alter the prior precedent that determining what was appropriate for students with a disability needed to be a case by case decision. But the court did alter that legal standard. So now the standard is: to decide whether a student’s education is appropriate that schools must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.

Will Brehm  5:04
So, in that case, did the Supreme Court overturn the rulings in the sense that the state had to pay Andrew’s tuition costs at this private school of $78,000 per year?

Janet Decker  5:19
Yeah. So, what happened was that the Supreme Court, you know, gave their decision about that the legal standard was incorrect. And then what they did what’s called “re-manned” the case down to the lower court. And so, when the lower courts made their decision about the tuition reimbursement in the end, and this is after, you know, years of litigation, but in the end, Drew’s parents prevailed. The public-school district had to pay that private school tuition as well as attorney’s fees and litigation costs and that was estimated to be over a million dollars.

Will Brehm  5:54
Wow. Wow. And it seems like it’s all over this idea of what is appropriate.

Janet Decker  6:00
Exactly that is the million-dollar question in this case, and a vexing question for a school, administrators and educators. It’s the whole reason I ended up going to law school was because of trying to figure out what appropriate meant to different people and how the law decides that when the law is supposed to be individualized for each different students’ disability.

Will Brehm  6:23
It also seems I mean, “free” -in this this acronym of FAPE, free appropriate public education- free seems pretty self-explanatory and it’s ultimately what that lawsuit was over. Appropriate, of course, is the big question mark. But then also this idea of public. I mean, obviously, this student was going to a private special needs school for autism. So, I’m not really sure how public squares with this. Is it publicly paid for? Is that the idea?

Janet Decker  6:51
Yes, publicly paid for and as education policy evolves, this question of public versus private is getting increasingly blurry. But sometimes public-school districts are in support of sending students to private schools, and they pay for that private school tuition because they cannot provide the appropriate education for that student. But many times, it’s not that this public-school district necessarily wants the student to go to that private school, and instead, the disagreement results in litigation between parents and school districts.

Will Brehm  7:26
So, using this case as sort of a jumping off point, you know, this student, Andrew was his name or Drew, who had autism. And you mentioned that there was this Individuals with Disabilities Education Act, that was the sort of legal issue at hand in that particular lawsuit. In terms of just other disabilities that children may have, what sort of legal protection do students with disabilities have? Like what other laws are people able to draw on and what do those laws say?

Janet Decker  7:59
Sure. There are three major federal disability laws. And then there’s state laws and there might be district policies that affect students with disabilities. But the three major laws are the one I mentioned already IDEA, and then also Section 504 of the Rehabilitation Act, which is commonly referred to as Section 504. And the Americans with Disabilities Act, or the ADA.

Will Brehm  8:25
What’s the difference between these three different laws?

Janet Decker  8:28
Well, the one that affects students with disabilities the most is the IDEA. We have seen more attention given to Section 504 in recent years, and I can explain more about that if you’d like. But the big difference between these -it’s really kind of grouped into two differences: so, IDEA is an education law and provides entitlements and protections for students with disabilities who are in public schools. Whereas Section 504 and the ADA are civil rights laws and so they prohibit disability-based discrimination. And so, they apply to individuals, you know from birth to death. They are lifelong applicable to, you know, student or adult. The other differences between 504 and ADA, Section 504 applies only to public and private schools that receive federal funding, whereas the ADA applies to almost every public and private school. And then how they define disability is different as well. So, with IDEA, how to decide if a student is eligible to receive special education and related services, there’s two different steps that have to incur. First, the student has to have a certain disability classification. So, within the law, there’s about 13 different disability classifications, such as autism, a learning disability or emotional disturbance. And then the second part of it is that the student must be in need of special education related services. So, there’s an evaluation that happens to decide if students are in need of that type of special supports. And that’s how the IDEA defines disability. Whereas Section 504 and the ADA use a definition and they’ve used the same definition, and that’s, “an individual with a disability is one who has a physical or mental impairment that substantially limits one or more major life activity, has a record of impairment, or is regarded as having an impairment.”.

Will Brehm  10:30
I’m not a lawyer but I find that very difficult to understand why there’s two different ways of understanding disability in the law.

Janet Decker  10:41
It is interesting, it’s also interesting that the disability classifications aren’t necessarily classifications that a physician has defined. So, it’s the school district that classifies the student as having certain disabilities. And so, we get into the subjective nature of how to define disability and then with some of these broad legal terms, there is confusion about what that means exactly. So, there are quite a few lawsuits just about whether an individual is eligible and whether the individual can be defined as having a disability.

Will Brehm  11:15
Who at the school district level actually decides what is the disability classification of a child?

Janet Decker  11:25
So, it all starts with referral for special education related services. So, this can come from a variety of people: It can be that the parents request this referral, it can be that the classroom teacher request this or perhaps there’s others who request this. And then it starts an entire process, where a team of individuals at the school district decide what happens next. And then the law outlines that many different steps of the process. Before a student can be evaluated for having a disability in a school setting the parents must provide consent for this. And so, some parents refuse to consent even for their child to be determined to have a disability.

Will Brehm  12:07
And the other part of that, I want to use the word “definition” of disability but I’m not sure if that’s how the IDEA talks about it. But the other part of how they discuss disability, is this “in need of services”. What does that mean? And what sort of services would they even be talking about when it came to children with disabilities in school?

Janet Decker  12:29
So, when the evaluation occurs, different individuals, so at schools it might be a school psychologist, but then also parents can get an independent evaluation to determine this, but the child’s current academic and functional levels of performance are measured. And they’re seeing if there’s some kind of need for services. So, if there’s some type of a deficit and this could be not only in academic skills, but it could also be and social, emotional skills, it could be, you know, in need of speech services, it could be a whole variety of services. The main types of services that students typically receive are things like transportation, psychological interventions, things like administering tests or interpreting information by psychologists also health services. But the Supreme Court’s been very clear that there’s a bright line rule that schools do not need to provide medical services. And then another common type of services extended school years or ESY, you’ll hear people say, and that means that in addition to the minimum requirements of school that’s determined by state law, then perhaps a student with a disability is entitled to receive even more school services perhaps in the summer.

Will Brehm  13:47
So, is a lot of litigation around special education lawsuits, are they mostly about the sort of disputes over related services?

Janet Decker  13:58
Many of them are. There’s a variety -I mean, special education is the most litigated area in school law. And so, there’s a whole host of different issues that cause litigation to happen. So, eligibility, whether a student’s eligible, there’s discipline issues, there’s the big question about what’s appropriate. But yeah, related services definitely come up. And as you can imagine, parents want what is best for their child, whereas the law doesn’t require school districts to provide the best intervention. So, these related services, sometimes parents want more related services than the school district “must” provide and there’s arguments about that. And then related to related services is a big issue in special education law, and that’s one of methodology or intervention. So, for certain children, so in particular, for children with dyslexia, or students with autism, there’s a variety of types of intervention that are considered the “gold standards” and they have scientific support behind them. And of course, as you can imagine, parents want these interventions. And these types of interventions require the school staff to have specialized training. And oftentimes these type of interventions are very expensive.

Will Brehm  15:16
And would these -I mean, because they’re so expensive, I would imagine school districts that receive so much money from local communities, local taxes, that the differences in what is even available in terms of services will be different by school district based on sort of socioeconomic status of that particular area. So, do we see big differences, across locations in America, across states across neighborhoods? Like I mean, these services must not be equal, I would imagine.

Janet Decker  15:48
Will, I’m so glad you asked me that because I mean, that’s the crux of why I went into the field of education policy is because of these inequities. So, I taught students with autism, and I was teaching at one of these private schools specialized for students with autism, providing this specialized intervention. So, it’s called applied behavior analysis or ABA. And there’s a lot of litigation surrounding this type of intervention. And what I witnessed as a teacher was that in this community -it was in Princeton, New Jersey, and on the East Coast- that many families were getting this type of intervention provided by the public-school districts, whereas when I went back to my home state in Indiana, it was a complete difference in what type of intervention parents of students with disabilities would receive. The other difference, not only the geographical inequities but also just based on you know, what family a child’s born into. Whether a child’s born into a family with wealth, who can afford attorneys versus a family who’s not, or a family who has the social capital, who understands how to navigate the system. Really in these times when there’s limited funding for these type of services, even though school districts are legally mandated to provide certain types of services, you see great inequities between people who can fight the system, or who don’t even understand what their legal rights are.

Will Brehm  17:17
Is some of the funding that’s provided for special education -like what’s the breakdown in terms of local taxes, versus state taxes, versus federal taxes, or federal government contributions?

Janet Decker  17:30
Yeah, so funding is extremely complicated and varies across the states. You know, so each state has a different funding formula. And when it comes to special education, we have these federal legal requirements, but the federal government doesn’t provide the majority of funding for local school districts to provide this type of intervention. So, the big elephant in the room when you’re talking about special education lawsuits is that the Individuals with Disabilities Education Act is an incredibly underfunded mandate. So, this law has been around for my entire life. So, for 44 years, and back when Congress enacted this law, it promised to cover 40% of the extra costs of special education. So, in other words, the federal government was supposed to pay about half of the additional costs required to educate students with disabilities. But Congress has never even come close to fulfilling that promise. And the number of students with disabilities served under IDEA has increased by 25% in the past two decades. It’s continually increasing and certain disability categories such as autism are increasing. But the state grant program funded through the federal government has only funded a small percentage of that. So somewhere around 14% of that additional cost.

Will Brehm  18:54
Why aren’t they meeting their obligation?

Janet Decker  18:56
Well, I mean, I think it reflects societal values. I think there’s many attempts for increases in funding for education in general and then specifically for students with disabilities. But students with disabilities aren’t the majority of the students, they’re a minority in the public-school districts. And so, you know, there’s been different bills. There’s currently a bill in Congress called the IDEA Full Funding Act. It was introduced in March, and oftentimes it’s introduced during Disability Awareness Month, but it’s died in session. So, there’s a number of issues to protect students with disabilities, but also to support schools in meeting their legal obligations. But as a society, we haven’t we haven’t prioritized that over other issues that get funding in the federal government.

Will Brehm  19:48
So, I want to go back to this 2017 case that you mentioned in the beginning of our conversation and ask a little bit about the Supreme Court. It seems like the Supreme Court, you know, overturned what lower courts were saying. And that’s not unusual, necessarily. But as you said, it seemed a bit surprising in this particular case. So, I guess the question I have is with this relatively new makeup of the court in the last few years, we have Gorsuch and Kavanaugh being nominated and confirmed to the court lately. Do you think this is going to impact the courts stance on special education law in the future?

Janet Decker  20:27
Interesting question. One thing I should mention about the Andrew case is that in some ways that it was an outlier. One, that the Supreme Court even decided to take up an education law case, we don’t see a lot of cases go all the way to the Supreme Court. And then, two, that it was ultimately decided in the parents favor. That’s extremely unlikely when cases go to litigation. Some researchers have suggested that about 90% of the time that the school districts prevail in special education lawsuits. And since the Andrew decision, there’s been research to document that school districts are continuing to prevail. So, one thing that is important to talk about when it comes to Andrew, is that, you know, it’s not that school districts are being sued all the time and that parents are prevailing all the time. But what Andrew did and what’s evolved with special education law is that the attention has gone necessarily from just access into public school districts where students with disabilities were segregated and not provided a public education. The attention has shifted on the quality of education, and I like that, whether it’s symbolic or not, the Andrew case caused school districts to really attend to progress and goal setting and their legal requirements. But when it comes to the current makeup of the case, I don’t know what will happen with the two most recent Supreme Court justices. One of them Gorsuch was the judge in the 10th circuit on the Andrew case. And he, like the lower courts before him, decided that that minimal standard for what is appropriate, what students are entitled to, he had decided that that was okay. So, his decision was the decision that was overruled by the previous Supreme Court, and it was a unanimous eight to zero decision at that time based on the Supreme Court’s makeup.

Will Brehm  22:26
Interesting. I mean, so it sounds like the school districts prevail most of the time. But are there any cases that you have identified that you think could make their way up to the Supreme Court? Like, are there any big cases on the horizon, in other words?

Janet Decker  22:41
I am not sure of that. There are legal trends that are shifting. So, for instance, well, I mentioned those two laws, Section 504 and the ADA. We’re seeing an increase in Section 504 litigation, and part of the reason is that parents can bring Section 504 lawsuits more readily perhaps than their IDEA lawsuit. So, they don’t have to exhaust their administrative remedies all the time, which means they don’t have to spend as much time in the administrative courts before filing a lawsuit in federal or state court. And so, we’re seeing more issues. And the other thing is, with section 504 lawsuits, they can win damages, monetary damages, whereas with the IDEA, it’s not necessarily the same. And so, with the Section 504 cases that we’re seeing, we’re seeing issues involving disability discrimination. So, students with disabilities being harassed or bullied, we’re seeing litigation with service animals and where to draw the line when service animals are permitted or not permitted in public schools. We’re seeing more students, and parents of students, realize and identify that their child’s issue could qualify or be defined as a disability under those broad terms of Section 504. So, for instance, students who might need mental health services, and the parents want those provided for by the public-school district, or students who have allergies and need to have accommodations for that, or students with other medical needs. So those are some of the hot topics that we might see go up to the Supreme Court but there’s not like one specific case that I’m watching that I think is going to make its way up.

Will Brehm  24:24
It’s interesting to see how you’re seeing more litigation under this 504 statute. You know, as I said, I’m not a lawyer, and special education law is fairly new to me. And it makes me realize how complicated it is and how complex it can be. And, you know, if I were a teacher in a public school trying to understand how these laws would actually impact my everyday life might actually be quite challenging. So, what do we know about sort of legal literacy inside schools.

Janet Decker  25:03
Yeah, you’re absolutely right. You know, and like I’ve mentioned already, the reason I went to law school and then continued on was because I was one of those teachers who was trying to understand my legal requirements, was trying to understand special education law, and found it to be incredibly complicated. And so, I feel strongly that teachers who are on the front lines, teachers who, if they make a mistake, the mistake can’t be rectified. Teachers need to have legal training and feel legally literate, so that they can spot legal issues and that they can make decisions on the spot that protects students with disabilities. But what we know about legal literacy, first of all, there’s not a lot of research in the area. There’s only a few national studies about legal literacy. And what we do know from those studies is that both teachers and administrators are woefully underprepared and basically legally illiterate. And that teachers and administrators wish they knew more about the law and are seeking more training in the law.

Will Brehm  26:15
And so, is their training available, say in Master of Education programs, which many teachers go to?

Janet Decker  26:21
There is. And so, the university I currently teach at, Indiana University, we have a number of education law courses. We’re an outlier but many programs might have one education law class – an introductory level education law class. It’s typically required for principal certification or in superintendent coursework, but it’s not required for teachers. And if teachers are getting a master’s in something that’s not in administration, then it’s very unlikely that it would be anything but an elective for them.

Will Brehm  26:59
And what about parents? I mean, is this something like self-taught? You know, if you have a child that needs special education, then you sort of self-teach yourself what the law says? Like, Is there any training available for legal literacy for parents?

Janet Decker  27:15
There is. there is. And what teachers find is that many times the parents know a lot more about disability and a lot more about the law than they do. So, I always tell my undergraduate students, my pre-service teachers, I ask them if they’re going to be special education teachers or general education teachers, and many times the majority raise their hand that they’re going to be general education teachers. But the truth of the matter is that every teacher in public school districts are special education teachers, they all are teaching students with disabilities and they all have a legal responsibility to follow the law. And so, what oftentimes teachers will find is that a parent will come to them and can run circles around them understanding the law, as it relates to their child. And so, parents have a variety of resources across the country, whether its parent groups or advocacy groups so that they receive training about this. And oftentimes, for good reason parents are motivated to really understand the law and their entitlement so that they can try to get the best education for their child.

Will Brehm  28:27
Well, it’s a very fascinating field of study. And it’s rather complex in my mind, and you know, I mean, I’m going to be watching it closely now and seeing and trying to follow any of these cases that may come up. Janet Decker, thank you so much for joining FreshEd, it really was a pleasure of talking and learning from you today.

Janet Decker  28:48
Thank you, Will. I feel very passionate about this subject, and I’m very appreciative to have the opportunity to tell others about it.

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