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The K.L. Case: There have been a number of bulletins about the K.L. matter[i], a recent Washington State case in the Federal District Court there. K.L. is seventeen years old, of average intelligence, and is challenged by severe learning disabilities in reading and writing (otherwise known as dyslexia). She was in public school through grade 3, private school through grade 5, and again in public school beginning in grade 6. Prior to her 10th grade year, the parents enrolled her at the Landmark School, a very well regarded school for learning disabled children in Pride's Crossing, MA. The parents, claim they were denied adequate IEP participation and further, that the IEPs were not IDEA compliant, thereby denying their daughter a Free Appropriate Public Education ("FAPE"). At the end of grade 8, K.L. scored in the second percentile on her Iowa tests and failed the Washington State Assessment in reading. A June 2003 report was prepared by the school district, reflected all of the girl's severe difficulties, and was never shared with the parents. This report said the girl accomplished none of her writing objectives and only two of four objectives in reading. Yet the 9th grade IEP was essentially unchanged from the 8th grade IEP. She accomplished none of her writing objectives, and her reluctance to learn increased while her self-esteem decreased. The 10th grade IEP proposed special education instruction in reading, writing, math, and study skills. However, there was no time allotted to each area and there were no instructional methodologies specified. At the IEP, there was no general education teacher present. The District then paid for an independent evaluation by a neuropsychologist. This psychologist found that there were severe phonological (sound to letter) and morphological (word families) deficits. These deficits, she recommended, required intensive instruction. The evaluator also said that the student had a "mood disorder." The recommendation in the independent evaluator's report was Landmark School and soon thereafter, the parents placed her there. In September of 2004, the IEP team met with the evaluator and agreed with some of her conclusions but not the Landmark recommendation. In November of 2004 the school district again funded an evaluation by a team from the local children's hospital. The psychologist from this new evaluation team said there was no language based learning disability and the psychiatrist said there was no mood disorder. In March 2005, the District held a "pre-meeting" prior to the IEP without the parents. Then the IEP was convened and that team adopted some of the recommendations of the parent's evaluator and all of the evaluative findings of the Children's Hospital team. Some "accommodations" were listed but again, no methodology or time allocation for each instructional area were specified. At this point, the parents requested an administrative special education hearing, which consisted of twelve hearing days. The parents lost on all points and appealed to the District Court. The court characterized the Administrative Law Judge's (hereafter "ALJ") findings as "thorough but not careful." The court observed that the ALJ "misunderstood the intention of IDEA, misapplied the statute and failed to uphold its requirements." The Judge then cited a 6th Circuit case, Deal v. Hamilton County,[ii] stating "the intent of Congress has been to require a program providing a meaningful educational benefit toward the goal of self sufficiency." The Judge's first holding in the K.L. case was that the IEPs that were drafted by the school district failed to focus on self-sufficiency and that this was therefore a denial of FAPE. In her analysis, the Judge stated that the Education for All Handicapped Children Act passed in 1975, and up to about ten years ago, was intended to provide mere "access" to special education. However, in 1997, Congress was "satisfied that the goal of 'access'" had been reached and restated a new intent of the law:[iii]
Since the Rowley[iv] case preceded the 1997 amendments, the ALJ's reliance on it was "misplaced." The court held that Rowley has been superseded by later legislation and further held that any citation to pre-1997 case law on special education is "suspect." The court went on to quote directly from the regulations:
Consequently, according to the judge, the ALJ has "completely missed the point." Amusingly, the court then quotes the dictionary definition of "meaningful: (emphasis is the Court's)"
The judge went on to hold that providing a "meaningful educational benefit" under IDEA required programs and results that reflect the act's emphasis on preparation for self-sufficiency. The court, in further dicta[vi] says the language from Rowley utilized by the ALJ is not the language or standard of the 1997 IDEA, which is not concerned with mere "access" that is "more than de minimis." The court says that the school district and the ALJ have "set the bar too low," and goes on to point out that it is not enough to simply "escort" a student through the school system without increasing skill levels. For example, as in this case, having someone read to the student does not fulfill the mandated self-sufficiency goal. In fact, the District had a dismal outlook for this young girl. They claimed (with no citation to expert authority) that so-called "accommodations" were a lifelong requirement for "incurable diseases" like dyslexia. The Federal judge rejected this claim and ordered that the ALJ write a corrected opinion and mandated that she must consider the progress the student at the Landmark School[vii] in assessing (a) whether the prior IEPs were adequately developed and implemented and (b) what an appropriate placement would be. The court also points out that some compensatory education is in order here, as well as an award of attorney fees. It should be noted that in a phone conversation with Howard Powers, the lawyer who brought this Washington case, he indicated that he was extremely careful not to ask the court to overrule the Rowley case. He wanted the analysis of Rowley to stay in place but he wanted the "floor of opportunity" raised. He felt that the district court judge accomplished this goal. The Judge, in assisting the ALJ on remand, further went on to hold that the IEPs did not comply with IDEA. Furthermore, the statute required the District to provide staff training in this case: "The language [of IDEA] speaks to attainment of goals set for each child, not merely progress toward them." Thus, IEPs must contain:
The conclusion, taken directly from the court case, is as follows:
There are certain logical questions that follow from a close reading of this case. However, it should also be noted that Mr. Powers, again in a recent conversation, advised that the court will soon issue an amended opinion, as the issue of reimbursement for the cost of Landmark was inadvertently omitted form the original decision. The parties are now awaiting the amended opinion and Mr. Powers states that it is likely the case will be appealed by the school district. Questions: 1. Do we still ask the two Rowley questions?
2. What is the extent of parental involvement?
3. How is "educational benefit" defined?
4. Do school districts have to provide the "best" educational setting?
5. Has K.L. changed the way at parents and educators must look at special education situation?
[i] K.L. and M.L. et. al. v. Washington Island, Washington School District, #C06-494P decided on 12-08-06 in the U.S. District Court of the Western District of Washington at Seattle. [ii] Deal v. Hamilton County Bd. of Educ., 392 F.3d 840(6th Cir. 2004) [iii] 20 U.S.C.§1400(c)1 [iv] Bd. of Educ. of the Hendrick Hudson Central School Dist., Westchester County v. Rowley, 458 U.S. 176 (1982) [v] 64 Federal Regulations 12470, 12474 [vi] This is a discussion by a court that is not necessarily part of the formal holding but supports the holding. [vii] Progress at the private school selected by parents is allowed to be considered in determining whether the recommendation of the school is appropriate. See, for example, Anne Marie Angevine v. Andrew Jenkins, 752 F. Supp. 24 (DDC 1990) |
