Beware of the Goldilocks Conundrum

Beware of the ‘Goldilocks Conundrum’

Miriam Kurtzig Freedman, M.A., J.D.

2011

Getting it ‘just right’ –

Not doing too little or too much on IEPs and Section 504 plans

The information provided herein is intended to be used for general information only and not as legal advice. In the event that legal advice is required, the services of an attorney should be sought.

Doing too little; doing too much; and doing it JUST RIGHT!

The “side effects” of offering too many accommodations or providing inappropriate modifications? The courts are catching on to this issue and coming down rather hard on schools that overuse “accommodations.”

An accommodation may, in fact, be contra-indicated….like side effects of medicines about which we are warned.

Extended time.

Axelrod v. Phillips Academy, (D. C. MA 1999). Interesting discussion of the side effects of “extra time” for a student with ADHD. Case decided under Section 504 and the ADA.

…[T]the court accepts the testimony of Dr. Klein that giving an extension to a person who procrastinates is not an effective solution because the problem is not that the student needs more time--rather, it is that he is not organizing his time. Giving such student more time is akin to giving somebody who is chronically late for appointments a later appointment--that person would still be late for his later appointment.

1:1 aide.

A.C. v. Board of Education of the Chappaqua Central School District, (2nd Cir. 2009). Discussion of use of a 1:1 aide for a 12-year-old, and need to teach independence, not “learned helplessness.” Flagler County School District (SEA FL 2007). Parents’ request for more one-to-one assistance denied. Child had made dramatic progress without that. I would impede his progress in expanding interactions with more people.

Grade inflation/academic adaptations.

Fisher v. Board of Education of Christina School District, (Del. 2004). A district argued that the 15-year-old student with SLD passed his courses and received a FAPE. He received many accommodations in the inclusion setting, including a tape recorder, rereading instructions, extended time, allowing him to complete tests over several sessions, reading test passages to him, and someone to record his answers. The court found inclusion inappropriate and ordered two years of private school as compensatory services. His ‘passing’ scores did not demonstrate that he had progressed in the basic components of reading.

His ‘progress’ in areas such as spelling and writing was more a function of the School District’s accommodations than any real improvement in mastering the subject.

Montgomery Township Board of Education (3rd C. 2005) involves a 4th grader. The district argued that its IEP was appropriate and the student had made progress, evidenced by passing grades. The Court was not persuaded. It found his IEP “overstated his actual progress:”

…evidence that, in order to boost D.C.’s self-esteem, his previous grades were based largely on his effort, rather than his achievements… D.C.’s third-grade teacher also allowed a high degree of informal accommodation of his disabilities,… substantial assistance by his parents (amounting, at times to outright completion by them of their child’s assignments), as well as extra time to complete assignments. D.C.'s "successful" completion of classroom tasks does not appear probative of a "meaningful educational benefit”…

Technology.

Sherman and Nishanian v. Mamaroneck Union Free School District, (2nd Cir. 2003). The parents of an 11th grader with a math SLD sought an advanced calculator to pass math. District provided an earlier model that required the student to work through problems. District prevailed.

If a school district simply provided the assistive devices requested, even if unneeded, and awarded passing grades, it would in fact deny the appropriate educational benefits the IDEA requires.

Teacher assistance.

Somoza v. New York City Department of Education, (D. S. N. Y. 2007). Student denied a FAPE for many reasons, including apparent focus by school personnel on having the student “pass.” E.g., teacher testified that he/she did most of the student’s work on a project.

Inappropriate inclusion.

Klein Independent School District v. Hovem, 55 IDELR 92 (D.C. SO TX 2010). A district failed to provide a FAPE to a highly intelligent high schooler with a learning disability in writing. It passed the student, and ‘successfully mainstreamed’ him, even though “testimony repeatedly showed that he was not actually held to the same standards as his regular-education classmates; his teachers often excused him from requirements they imposed on his classmates… the IEP team (called the ARD in Texas) waived him from the KISD written TAKS test as a graduation requirement ‘rather than make an individualized effort to help him pass.”

And see Cohasset and Westford above. Too many accommodations covered up a lack of progress in the students’ areas of disability.

Educators need to keep their eyes on the “prize.” A FAPE is about providing an educational benefit; it’s not about “passing” or getting “through” school. It’s about learning in school. See Wall Street Journal front-page story about the overuse of accommodations, August 21, 2007.

Cautionary tales, indeed. The LRE and the IEP FAPE MUST PROVIDE A MEANINGFUL BENEFIT! The IEP FAPE requirement is learning—not just good grades or “passing.”

See the following cases, where the districts demonstrated that grades were valid.

Appropriate policies and practices that won the day.

J.A. v. Mountain Lakes Board of Education, 46 IDELR 164 (DC NJ 2006). Case dealt with a high school student with a mild learning disability who performed well in honors and advanced placement classes. Parents alleged that his grades were “gifts.”

The court credited the teachers, who testified that he was functioning “in conformity with the grade they each gave him.” The court found no evidence supported the parents’ allegation that the high school student’s passing grades and performance in honors and advanced placement courses were “the result of grade inflation…or falsification.” [T]here is simply no credible evidence in the record to support such a contention.”

Leighty v. Laurel School District, 46 IDELR 214 (D.C. W. PA 2006). Case involved a teenager with learning disabilities whose parents had placed her in a private school for which they were seeking public funding. The district prevailed.

Among the evidence demonstrating progress were

The special education teacher’s testimony about Amy’s progress “was based on very detailed information about the steps used in the SRA program.” These involved prereading skills, letter sounds, word attack skill, and a final focus on skills application. The teacher compared Amy’s skills at the beginning of the program and later and found a “remarkable improvement.”

The speech therapist testified about periodic adjustments in Amy’s program as she mastered certain skills.

Beware the ‘Goldilocks Conundrum!’