Wrightslaw l No Child Left Behind l IDEA 2004 l Fetaweb l Yellow Pages for Kids l Harbor House Law Press
 Home > Topics > Advocacy > Developmental Disabilities & High School Graduation by Robert K. Crabtree


The Special Ed Advocate
It's Unique ... and Free!

Enter your email address below:

 

2014 - 2015 Training Programs

Nov 21 - Temecula, CA

Dec 4 - OKC, OK

Jan 16 - Shreveport, LA

Jan 24 - Corpus Christi, TX

Jan 24 - Pensacola, FL

Jan 31 - Champaign, IL

Feb 19 - Lincroft, NJ

Full Schedule

Be a Hero ...

 Jason at Ft. Benning
... to a Hero
Learn more

Wrightslaw

Home
Topics from A-Z
Free Newsletter
Seminars & Training
Consultations
Yellow Pages for Kids
Press Room
FAQs
Sitemap

Books & Training

Wrightslaw Books & DVDs
Wrightslaw Storesecure store lock
  Advocate's Store
  Student Bookstore
  Exam Copies
Training Center
Bulk Discounts
New! Military Discounts
Mail & Fax Orders

Advocacy Library

Articles
Doing Your Homework
Ask the Advocate
FAQs
Newsletter Archives
Summer School Series
Success Stories
Tips

Law Library

Articles
Caselaw
IDEA 2004
No Child Left Behind
McKinney-Vento Homeless
FERPA
Section 504
Fed Court Complaints

Topics

Advocacy
ADD/ADHD
Allergy/Anaphylaxis
Assistive Technology
Autism Spectrum
Behavior & Discipline
Bullying
College/Continuing Ed
Damages
Discrimination
Due Process
Early Intervention (Part C)
Eligibility
ESY
Evaluations
FAPE
Flyers
Future Planning
Harassment
High-Stakes Tests
Homeless Children
IDEA 2004
Identification & Child Find
IEPs
ISEA
Juvenile Justice
Law School & Clinics
Letters & Paper Trails
LRE/Inclusion
Mediation
Military / DOD
No Child Left Behind
NCLB Directories
NCLB Law & Regs
Parental Protections
PE and Adapted PE
Privacy & Records
Procedural Safeguards
Progress Monitoring
Reading
Related Services
Research Based Instruction
Response to Intervention (RTI)
Restraints/Abuse
Retention
Retaliation
School Report Cards
Section 504
Self-Advocacy
Teachers & Principals
Transition
Twice Exceptional (2e)
VA Special Education

Resources & Directories

Advocate's Bookstore
Advocacy Resources
Directories
  Disability Groups
  International
  State DOEs
  State PTIs
Free Flyers
Free Pubs
Free Newsletters
Legal & Advocacy
Glossaries
   Legal Terms
   Assessment Terms
Best School Websites

 

Developmental Disabilities & High School Graduation
by Robert K. Crabtree

Print this page

Question:

The school system told us that our son will graduate from high school this June. He is developmentally disabled and has been on IEP's since kindergarten. He is now 18 and far from ready to enter the work force or live independently, though people have said he has the potential. We understand that once he graduates he will not receive any more special education services, but the school system says he has achieved all the goals of his IEP and is now ready to go. Can they force him to graduate? (They have been talking to him directly, too, and urging him to take his diploma so he can graduate with his classmates.)

Answer:

There are really three questions here: one concerning the circumstances under which a student with special education needs can be graduated; another concerning what procedures and legal remedies are available to parents and/or students when a student has been graduated prematurely; and a third concerning who can act for the student once s/he reaches the age of majority.

IDEA

Under IDEA, whenever a school system proposes to change "the identification, evaluation, or educational placement of [a child with special education needs] or the provision of a free appropriate public education to the child," the school must provide "written prior notice to the parents." [20 U.S.C. §1415(b)-(1)(C)] Under current federal regulations that notice must include a description of other options considered, a description of the evaluations which justify the action, and a statement of reasons why the other options were rejected. [34 C.F.R. §300.505 (This appears in §300.503 of the proposed new regulations under IDEA 1997.)]

A student's eligibility to receive special education services ends either when s/he reaches age 21 (or 22 in some states) or graduates from high school. Thus in most cases the granting of a high school diploma will terminate services. Because of this, graduation is treated as a change of placement under special education law, and parents are therefore entitled to receive notice of their right to dispute the award of a diploma and to use the due process system to try to prevent loss of services. In one leading case, Stock v. Massachusetts Hospital School, 392 Mass. 205 (1984), the court ordered rescission of a high school diploma declaring that it would be "insidious if graduation proceedings were employed as a device to circumvent the Federal mandate by prematurely terminating special education services."

This is not to say that, for example, a student with a mild learning disability, who requires only minor classroom modifications cannot be expected to earn the same credits toward graduation as a non-disabled peer and graduate upon completing those credits. But students with more severe disabilities typically need to be measured on a different scale. For such a student the TEAM needs to establish criteria for graduation that are based on IEP goals and objectives specific to that student. Criteria for the delivery of a diploma, or the termination of special education services before the student "ages out," should in good sense be based on achievement of functional living skills and employability as well as meeting academic standards.

What you can do

In your case, it sounds like your son may not have achieved sufficient skills to be employable. The issue of graduation should be discussed within the TEAM process and criteria established that are appropriate for him. If not, you and your son may reject the IEP and use your state's special education due process system to contest the lack of appropriate graduation standards. If the school system insists on graduating him, the due process system can also be used to contest that decision.

If the hearing officer in due process or a court finds that the school system violated the student's rights by awarding a diploma, the available remedies include, most typically, rescission of the diploma and/or the right to receive educational services for a period of time to make up for the services lost because of the violation. (This is called "compensatory services.") If the parents have arranged for appropriate continuing services on their own, the remedies can also include reimbursement for the cost of those services. In at least one case, Puffer v. Raynolds, 761 F. Supp. 838 (D.Mass. 1990), the court left the diploma in place because the student had achieved sufficient credits to graduate, but ordered remedial services to support the student for her first semester at a community college to make up for the school system's failure to provide an IEP and services during her senior year. Finally, as in any other case where parents prevail, the remedies would include the right to reimbursement for all, or a substantial part, of the attorneys' fees and related costs incurred in bringing the case.

The age of 18

In your case there is at least one more legal issue to address: Your son is 18 and, unless he has been adjudicated as legally incompetent and placed under your guardianship, he is the only person authorized to respond to a proposed IEP or to accept or contest the award of a diploma. Depending on his cognitive abilities, his self-esteem, his self-awareness, and his social skills, he may be particularly vulnerable to the persuasion of school professionals who urge him to go ahead and graduate with his classmates. In that case you may need to work through a number of increasingly intense steps for his protection.

First, it is important to try to work with the school system, both through the TEAM process and informally, to try to persuade them to give up the notion of graduating your son. Use independent evaluators to develop alternative evidence of his status and continuing need for educational services. For his self-esteem, you might negotiate for him to participate in the graduation ceremony and be given a certificate other than a diploma to show that he is moving on with his peers to a new level of his life. You will want to explain to your son to the best of his understanding the reasons not to accept a diploma, and ask others who may have influence with him to do the same.

If your son's cognitive impairment prevents him from understanding what he is signing or agreeing to, you may be able to set aside his acceptance of an IEP or agreement to accept a diploma under your state's law pertaining to contracts, even without obtaining a guardianship. Ultimately, however, you may want to explore the legal standards and procedures for obtaining guardianship. In most states, if a person of legal age is unable for reasons of mental retardation or mental illness to make informed decisions about his personal and/or financial affairs and needs a guardian for his or her protection, a court will order the appointment of a guardian. This is obviously a complex process that will require consultation with an attorney. Sometimes state agencies which provide services to adults with retardation or other impairments can provide assistance with this process as well.


More Articles by Bob Crabtree
ADD LINKS

The Paper Chase: Managing Your Child's Documents. "If you have kids with special educational needs, you can be overwhelmed with paperwork in no time at all . . ."

Discipline: Suspension, Expulsions and IEPs. Read this article by parent attorney Robert Crabtree to learn about functional behavioral assessments, behavior intervention plans, long-term suspensions and expulsions, the child's rights, and what parents can do to protect these rights. Learn how to request a behavior assessment, an expedited hearing, and how to invoke "stay put."

What You Should Know About Evaluations. LINK

As a parent, you must make sure that all areas of possible need are assessed as quickly as possible. While some parents would rather not allow their school system to evaluate their child, a refusal to cooperate at this stage of the process can backfire . . . "

Mistakes People Make: Parents

Mistakes People Make: School Districts

Mistakes People Make: Independent Evaluators

Mistakes People Make: Advocates


Meet Robert Crabtree

Bob Crabtree is a partner at Kotin, Crabtree, and Strong, LLP, a general practice law firm in Boston, MA. Among other areas of practice, Bob concentrates in special education and disability law. This article was originally published by the Family Education site at www.familyeducation.com

Contact Info
Robert K. Crabtree
Kotin, Crabtree & Strong, LLP
One Bowdoin Square
Boston, MA 02114-2925

Phone: 617/227-7031
Facsimile: 617/367-2988
Email: rcrabtree@kcslegal.com
Website: www.kcslegal.com

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon The Special Ed Advocate: It's Free!

 

Wrightslaw: Special Education Law, 2nd Edition, by Pam and Pete Wright
About the Book

Wrightslaw: All About IEPs
About the Book

Wrightslaw: All About Tests and Assessments
About the Book

Surviving Due Process: Stephen Jeffers v. School Board
About the DVD Video

 

Copyright 1998-2014, Peter W. D. Wright and Pamela Darr Wright. All rights reserved.

Contact Us | Press Mission l Our Awards l Privacy Policy l Disclaimer l Site Map