The Special Ed Advocate Newsletter
March 16, 2000

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Issue - 65

ISSN: 1538-3202

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1. T.R. v. Kinswood Township (March 9, 2000)

On March 9, the U. S. Court of Appeals for the Third Circuit an important new decision in T. R. v. KINGWOOD TOWNSHIP (NJ).

This decision focuses on the special education needs of a preschool child with disabilities. The school district developed an IEP that placed the child in a "hybrid" preschool program. The parents rejected this IEP and placed their child in a regular private preschool program. 

The District Court concluded that the school districtís IEP provided FAPE. The parents appealed, and requested reimbursement for the private placement. 

On March 9, 2000, the Court of Appeals issued a split decision: 

"We affirm the holding of the District Court that the 1996-97 Kingwood IEP provided N.R. with an FAPE. We vacate the District Courtís holding that the Kingwood placement constituted the least restrictive environment, and remand for additional proceedings consistent with this opinion." 

In this decision, the Court grappled with several issues, and clarified "meaningful benefit", the requirement to offer a "continuum of placements," and the need to provide a "free appropriate education (FAPE)" in the "least restrictive environment." 


Many special education disputes involve questions about educational benefit -- "How much benefit is enough for the child to receive FAPE?" This decision offers guidance about factors that make up "educational benefit:"

"Specifically, we said that a satisfactory IEP must provide "significant learning" and confer "meaningful benefit."

"To fulfill this mandate a district court must Ďanalyze the type and amount of learningí of which the student is capable. 

Although the Court of Appeals concluded that the District Court did not apply the "correct Ďmeaningful benefití test," it also found that "the District Court's failure to enunciate the correct "meaningful benefit" test is not fatal to its determination that the 1996-97 IEP offered NR a free appropriate public education."


The IDEA includes two fundamental requirements: that the child receives a free appropriate public education (FAPE)in the least restrictive environment (LRE). The least restrictive environment" (LRE) requirement is often referred to as "mainstreaming." This decision attempts to clarify the LRE requirement:

"We have interpreted this mandate to require that a disabled child be placed in the least restrictive environment (hereinafter "LRE") that will provide him with a meaningful educational benefit."

"The least restrictive environment is the one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled."


Many school districts have developed "hybrid" programs to provide special education to young children with disabilities. 

A typical "hybrid" preschool program is designed to provide special education to children with disabilities in a class that may include some nondisabled or "typically developing" children. In our experience, these "hybrid classes" are similar (or identical) to "self contained" special education classes. 

The Third Circuit found that hybrid programs do not usually provide FAPE in the least restrictive environment: 

"We believe that, under the IDEA's strict mainstreaming requirement, a hybrid preschool program like Kingwood's would ordinarily provide the LRE only under two circumstances: first, where education in a regular classroom (with the use of supplementary aids and services) could not be achieved satisfactorily or, second, where a regular classroom is not available within a reasonable commuting distance of the child.


The amended IDEA and regulations emphasize the requirement to educate children with disabilities in regular classes with their nondisabled peers:

"While the Act and regulations recognize that IEP teams must make individualized decisions about the special education . . . . IDEAís strong preference that, to the maximum extent appropriate, children with disabilities be educated in regular classes with their nondisabled peers with appropriate supplementary aids and services." (WRIGHTSLAW: SPECIAL EDUCATION LAW, page 209)

The childís IEP must include "An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in extracurricular and other nonacademic areas." (WRIGHTSLAW: SPECIAL EDUCATION LAW, page 210)

" . . .the school district is required to take into account a continuum of possible alternative placement options when formulating an IEP, including "[p]lacing children with disabilities in private school programs for nondisabled preschool children."

Why didnít the school propose or attempt to educate NR in a regular classroom? 

The Court found that "the record contains no indication that NR could not have been educated satisfactorily in a regular classroom."


The Court concluded that both the school districtís program and the private preschool program provided FAPE. But the private preschool program went one step further -- it provided FAPE in the least restrictive environment. 

The Court vacated the District Courtís holding that the public school placement complied with the LRE requirement, and remanded the case back to that Court for "additional proceedings." 

In a discussion about "Florence County v. Shannon Carter" and their recent decision in "Warren G.", the court wrote:

"Both Florence and Warren G. involved disputes over the FAPE requirement. They did not address the situation we face in this case, where both the state-chosen (accredited) school and the parent-chosen (unaccredited) school would provide an FAPE, but where the unaccredited school would arguably provide a less restrictive environment." 

This new decision is available in the Wrightslaw Law Library in pdf and html format

The Court of Appeals for the Third Circuit includes these states:

* Delaware

* Pennsylvania

* New Jersey

* Virgin Islands

Do you know your Circuit? Use the Wrightslaw Circuit Finder to find out! 

2. Holmes V. Millcreek Township (February 24, 2000)

On February 24, 2000, the Third Circuit issued a new decision about prevailing parties and attorneys fees. 

In Holmes, the District Court had awarded attorneyís fees and costs to the parents after concluding that the parents had prevailed in a due process hearing about an independent educational evaluation and the qualifications of a sign language interpreter. 

Although the Third Circuit found that the parents had prevailed, the Court also concluded that "the amount of the award was excessive" and cut the award of attorneys fees by 75%. 


In support of this reduction, the Court expressed the belief that the parents and their counsel had "contributed to" the needlessly "protracted proceedings." 

The Court noted that the parents "bear the burden of establishing the reasonableness of the requested fees and are required to submit evidence to support their claims for hours expended in performing specific tasks." 

This new decision is available in the Wrightslaw Law Library in pdf and html formats.

After you read this decision, we strongly suggest that you read the Third Circuitís decision in the "Warren G. v. Cumberland" case about "vigorous advocacy" by parents. 

3. IDEA Compliance Report Update

Special Ed Advocate subscribers remember the recent bombshell delivered by the National Council on Disability. On January 25, the NCD released the IDEA COMPLIANCE REPORT entitled "Back to School on Civil Rights." 

When we read the IDEA COMPLIANCE REPORT, we got mad. 

Because the contents of the IDEA COMPLIANCE REPORT are so important, we decided to publicize the REPORT and put the Report up on the Wrightslaw site. 

Pam spent several days on the computer and reformatted the IDEA COMPLIANCE REPORT into several files that track the Report. She created hundreds of links within the Report. You can use these links in the Table of Contents or Index page to jump to different sections of this very long (nearly 400 pages) Report. 

We are investigating other ways to make the contents of this report available and easy accessed.

The IDEA COMPLIANCE REPORT included an indictment of the U. S. Department of Education for their failure to enforce the law. How did the U. S. Department of Education respond to the Report? What can be done to ensure that the IDEA is enforced? 

4. NCD Member Is Keynote Speaker At COPAA

Lilliam Rangel-Diaz, a member of the National Council on Disability, was the Keynote Speaker at the COPAA Conference. We were excited! She would be able to answer our questions. 

Ms. Rangel-Diaz spoke to a packed house of parent attorneys and advocates. Here are some highlights from her speech (a link to the full text of her Keynote speech follows):


The Report provides "a tool for parents and advocates who for years have received the brush off from school officials, legislators and policy-makers who want "evidence not anecdotes" that widespread problems exist." 

"For the first time, we have data demonstrating that noncompliance is a nationwide problem." 


"We have also caught the attention of the media in unprecedented news coverage -- we have had over 900 radio broadcasts, reaching over 17 million listeners and over 600 news clips reaching millions of readers. 


"OSEP makes extensive use of technical assistance to help states assess and correct noncompliance. The problem is that technical assistance is NOT enough. Corrective action plans and timetables are NOT enough. Compliance plans are NOT enough when there are NO CONSEQUENCES for not following through and making good on a commitment to fix the problems."


"Federal efforts . . . to enforce IDEA have been inconsistent and lacking any real teeth. There have been no consequences for states that have disregarded the law and devastating consequences for the students with disabilities and their families who have been denied the protections of the law."


To address these non-enforcement problems, NCD recommends that responsibility for enforcement actions be shifted to the Department of Justice.

NCDís recommendations include: 

(1) independent litigation authority for DOJ, and

(2) establishing a mechanism at DOJ for investigating and hearing complaints filed by individuals involving state pattern and practice violations. 

"We believe that a shift in responsibility from DOE to DOJ will be an important first step toward minimizing the chilling effect of political pressure on enforcement."


"At the state level, fundamental changes to complaint handling and due process systems that are frustratingly ineffective and unresponsive are desperately needed."

"Strong political obstacles to implementing fully effective systems exist at the state level, as they do at the federal level." 


"This leads to a question, what will work -- what can make a difference? NCD is unable to organize the grassroots. Other grassroots advocacy organizations . . . the National Parent Network on Disabilities and COPAA, are able to do it. 

"It is your job to take this report and use it as a tool to effect change."


"Litigation continues to be the staple of enforcement. Until the playing field is leveled between parents and local school districts, parent training on IDEA alone will not get students access to the services they need." 

Other recommendations by NCD include:

* free and low-cost legal advocacy though public and private legal services providers

* creation of strong legal advocacy networks in each state

* creation of a national center to provide legal materials, training and other supports for attorneys who work on IDEA cases

* training programs for parents to increase their effectiveness in implementing, monitoring and enforcing IDEA

* training programs for teachers about the requirements of IDEA and how to respond effectively to the special needs children in their classrooms

* training for students with disabilities in self advocacy skills 

Get the full text of the Keynote Speech by Lilliam Rangel-Diaz at the NCD site

5. Resource: NCD Publications Library 

Spend time browsing through the Publications page at the National Council of Disability site. NCD is a great source of excellent information about disability policy and how to effect change. 

You can order NCD reports by faxing a request to Stacey Brown at 202-272-2022 or by e-mail at sbrown@ncd.gov

6. Resource: Legal Newswire 

If you are interested in legal news and issues, you may want to subscribe to the LEGAL NEWSWIRE.

LEGAL NEWSWIRE is a free internet newsletter published by Law News Network and American Lawyer Media. Click here for information about LEGAL NEWSWIRE.

Check out the Law News Network


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