By Miriam A. Nunberg, Esq.
As a parent advocate working in New York City, parents frequently tell me “My child was denied an IEP because her grades are too high.” Full stop. At least in the New York City public schools, there seems to be an across the board policy of denying services to students who are getting good grades, despite evidence that the child has a condition that meets the legal definition of disability.
So is this true? Can your ‘B’ or even ‘A’ student qualify for services in school? Under what legal standard? Answering this question requires a quick review of the legal landscape covering kids with disabilities in schools. As a parent or educator of these kids, it’s crucial that you have working familiarity with the basic outlines of three laws: the Individuals with Disabilities in Education Act (IDEA), the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). Don’t panic though! I am not going to get too wonky here, but will just try to arm you with some basic arguments for services under each of these laws.
This is the first of a two-part article. This piece covers the standards under the IDEA. The second article will review the standards for 504 plans.
The IDEA
Let’s start with the IDEA. This is the law that governs Individualized Education Plans, or IEPs. Most people are at least familiar with the term IEP, and know that it’s a way to get individualized educational services for kids with disabilities. But what does the IDEA really say about how and why kids qualify for services under an IEP?
The first thing to know is that the IDEA defines a child with a disability as one with any impairment that falls into a list of thirteen specified conditions.[i] You can see from the list of conditions that there are very few impairments that do not make the cut. To qualify for an IEP however, the impairment must also cause the child to need special education and related services. It’s this last piece that cinches the legal requirement – under the IDEA it’s not enough to have one of these conditions; the condition must impact the child enough to require special education and related services. Confusing and circular, right?
Let’s break that down a bit more. While it’s relatively easy to know if the child has one of the conditions, how do you know if your child requires special education and related services? Under the IDEA, the rule is that the condition must adversely impact a child’s educational performance. Defining “adverse impact” and “educational performance” however, is where you are going to start pulling your hair out.
The thing to note from the get-go is that each state[ii] can set its own definition of IEP eligibility (in other words, what it means to have an adverse impact on educational performance) as long as the definition is consistent with the IDEA itself.[iii] Strangely, only nine states have actually developed their own legal definition of these terms.[iv] Thus there is no uniform, nation-wide definition of how much a disability has to negatively affect a child’s educational performance in order to be eligible for an IEP in each state. There is also no clear definition of what “educational performance” means: is it simply grades, is it behavior in school, or can it include things like the degree of effort a child must put in to attain his or her grades?
As a result of this confusion, two questions lie at the heart of the legal argument you are going to have to make to try to get an IEP for a child with relatively good grades. How low do grades have to be as a result of the impairment to be adversely impacted? And does educational performance mean simply grades or something more?
Defining “Educational Performance”
Depending on where you live, you may have a hard time showing that a child with high grades but serious social or behavioral issues has a condition that adversely impacts her educational performance. The reason for this is that courts in some parts of the country define “educational performance” simply in terms of grades. Others define “educational performance” more broadly, and look at things like functional, social and behavioral performance impacted by the disabling condition. So one part of your argument for services despite high grades would be to identify non-academic aspects of your child’s educational performance, such as socialization or behavior, and try to make the case that these things are equally a part of educational performance as grades. Unfortunately, courts in some jurisdictions[v] have tended not to buy that argument and have held that academic performance (i.e., grades) are the extent of the analysis.
In other jurisdictions,[vi] courts have acknowledged that educational performance can include more than academics, and granted IEPs to children with above-average grades due to disabilities that cause social and communication deficits,[vii] or others (such as Crohn’s disease or depression) that interfere with the child’s school attendance.[viii] These courts acknowledge the importance of behavior or social interactions in a child’s experience in school. You can use these factors to make the argument that the IDEA’s requirement that the disability impacts the child’s educational, rather than solely academic, performance means that the analysis must go beyond simply grades.
Overall, the key to knowing whether high grades alone will bar a child with a disability from receiving an IEP begins with understanding the legal landscape of your state with respect to the definition of educational performance. The more holistically the courts and statutes define this term to include factors other than grades, the more likely you are to win the fight.
Adverse Impact
Defining the scope of educational performance is just the first part of the argument. You then have to show that the disability adversely impacts the child’s educational performance. This raises the question of how much of an impact the disability must have in order to qualify for an IEP.
To make things even more complicated, courts and state legislatures or departments of education have also differed on how to interpret the meaning of “adversely impacts.” Some consider any negative impact to be enough,[ix] while others[x] have required the much higher standard of demonstrating that the child’s disability has “significantly impeded” her educational performance; a standard that has been criticized for requiring the child to fail before qualifying for services.[xi] Again, the difficulty you will have in making this argument depends significantly on how your state has defined the meaning of the term “adverse.”
The key to making your argument is going to be a clear, detailed neuropsychological or psycho-educational evaluation that shows exactly how your child’s disability limits his or her educational performance, despite generally good grades. This requires clear information about not only your child’s level of academic achievement but also her social, emotional, behavioral and in certain cases, functional performance both in school and in school-related activities outside of school (such as when doing homework). Also, make sure to get reports from as many teachers as possible that give specific examples of how the disability interferes with classroom or school-related activities outside of grades. The IEP team is legally required to carefully consider all of the information that they receive.
Federal Guidance
In making your argument, it’s also a very good idea to have on hand various IDEA interpretations put forth by the US Department of Education (USDOE). These guidances are not legally binding but set out the reasoning applied by the USDOE. It can be very persuasive to show them to the IEP team and argue convincingly how they apply to the facts of your child’s case. Please see the endnotes for links to these documents.
These are the take-home messages from some key guidances:
Since an evaluation of a child must include consideration of both non-academic as well as academic areas, schools must look at more than grades in making an IEP eligibility decision.[xii] Students with high IQ’s are not automatically ineligible for IEPs. No one score or factor should be used in determining eligibility. So an IQ score that is well above average should not on its face be the reason to deny an IEP. Moreover, the school cannot require a severe discrepancy between intellectual ability and achievement in order for a child to qualify for services.[xiii]
Children must not be failing or retained in a course in order to qualify for an IEP, even if they are advancing from grade to grade.[xiv]
Schools must consider outside help, such as tutoring or parental support, that the child is receiving that allows them to earn high grades.[xv]
The Supreme Court
Most important of all, a recent Supreme Court case called Endrew F. v. Douglas County School District may offer a framework for arguing whether a child with a disability is eligible for an IEP. This case itself dealt with a child who already was classified and had an IEP, and the question was whether the IEP itself was able to provide him with a free appropriate public education (or “FAPE”). Although Endrew F. was not an IEP eligibility case, its holding was that for all students (including those performing at grade level and those unable to perform at grade level) a school must offer an IEP with “challenging goals . . . reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[xvi] While it remains to be seen if this decision will ultimately result in expanding overly strict IEP eligibility requirements in some parts of the country, it cannot hurt to quote this language to your IEP team. I would argue that a child’s circumstances must include the child’s ability as demonstrated by IQ scores, which would guide the measure of expected progress.
Your IDEA-based Argument in a Nutshell
Putting it all together, when you are arguing that a child with high grades should nonetheless qualify for an IEP, remember to present compelling evidence for each of these components of the legal standard:
the child has one of the 13 qualifying conditions
the condition requires special education and related services, because the condition
has an adverse impact on the child’s educational (not just academic) performance.
Remember to build each component of your argument on specific evidence from the child’s evaluation, teacher reports or even accounts from outside tutors or therapists.
The IEP team is not a hearing officer or a judge, so they are often working with a relatively superficial or outdated understanding of the legal standard. Sometimes it can be helpful to bring supporting legal documents to the meetings, such as the federal guidances referenced above. And quoting Endrew F. can never hurt!
If you don’t feel comfortable bringing a lawyer or advocate to the meeting itself (which has its pros and cons), you can also work with one behind the scenes to help you lay out the argument. One of the things I like to do for my clients is to help them write requests for the services they are seeking ahead of time, and include links to these documents to demonstrate the legal basis for any requests made.
What if the IEP is Rejected?
So, you brought in your evidence and the legal support, made your best argument, and nevertheless, the IEP is denied. What then? I often tell clients that they have three choices: 1) file for mediation; 2) file for an impartial hearing or 3) seek a Section 504 plan. Which route to pick is really dependent on the strength of your legal case, your child’s circumstances around the urgency of the need for help in school, and your individual resources.
What people often don’t realize is that in cases where your argument for an IEP is a pretty big stretch, you still might have luck getting a legally enforceable, individualized support plan for your child through Section 504.
Conclusion
Remember when I said that kids are often denied services simply because their grades are too high? I hope that you can see that in many cases, this denial is a gross oversimplification of the legal standard. Children with impairments that adversely impact their educational performance may certainly qualify for IEPs but you must make a good enough case that the impairment is negatively interfering with some aspect of a child’s schooling – which as we know is often more than simply grades. If that doesn’t work, either appeal through one of the channels I describe above, or immediately ask for a 504 plan, and insist the school use the proper 504 analysis.
Please make sure to familiarize yourself with the legal resource materials I have linked throughout this article, and always keep a record of all your correspondence with the school asking for support and arguing why it’s required. Don’t be afraid to work with an advocate behind the scenes, so that you can make the strongest case possible for your child. Of course. you can always seek legal assistance at any point in the process.
If you arm yourself with the law from the get-go, you may be able to avoid having to pursue formal legal recourse later. You can be your child’s best advocate!
ENDNOTES
[i]These conditions are:
Intellectual disability
Hearing impairment
Deafness
Speech or language impairment
Visual impairment (including blindness)
Serious emotional disturbance
Orthopedic impairment
Autism spectrum disorder
Traumatic brain injury
Other health impairment (conditions that limit a child’s strength, energy or alertness, due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome, etc.);
Specific learning disability (such as Dyslexia, Dysgraphia, Dyscalculia, Auditory processing disorder, or a nonverbal learning disability);
Deaf-blindness; or
Multiple disabilities (meaning a combination of any of the above, which gives rise to educational needs that cannot be met in a program for any single condition).
[ii]Every state’s education department should have resources that help you understand the standard applied in your particular state. Some states are better than others in terms of explaining state legal requirements clearly, but the websites of many special education attorneys and advocacy groups in each state often include summaries and links to helpful resources that can help you find out your state’s standard.
[iii]For an extensive legal analysis of the approach to defining adverse impact on educational performance across the country, see Jamie Lynne Thomas, Decoding Eligibility Under the IDEA: Interpretations of “Adversely Affect Educational Performance”, 38 Campbell L. Rev. 73 (2016)
[iv]These states are Alabama, Alaska, Georgia, Indiana, Kentucky, Maine, Montana, Vermont, and West Virginia.
[v]New York is part of the 2nd Circuit, which covers Connecticut, New York, and Vermont. See, e.g., C.B. ex rel. Z.G. v. Dep’t of Educ., 322 F. App’x 20 (2d Cir. 2009).
[vi]Such as the 6th Circuit, which covers Michigan, Tennessee, Ohio, and Kentucky), See, e.g. Q.W. ex rel. M.W. v. Bd. of Educ., No. 15-5160, 2015 U.S. App. LEXIS 20108, at *5 (6th Cir. Nov. 17, 2015) (discussing 20 U.S.C. § 1414(b)(2) (2012), which requires the use of “a variety of assessment tools and strategies” and contemplates a holistic evaluation).
[vii]See, Mr. I. ex rel. L.I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 12 (1st Cir. 2007)
[viii]City of Bos. v. Bureau of Special Educ. Appeals, No. 06-11703-RWZ, 2008 U.S. Dist. LEXIS 39992, at *2 (D. Mass. Apr. 30, 2008).
[ix]E.g. West Virginia and Maine. See also Lisa M. v. LEANDER INDEPENDENT SCHOOL DIST.
924 F. 3d 205 – Court of Appeals, 5th Circuit, 2019, finding IEP eligibility for a fourth-grader described by his teachers as a “rock star” and “extreme;y bright,” but who had failed his benchmark tests, struggled with attention to task due to avoidance behaviors, had difficulty producing written work, and displayed excessively high/low activity level.
[x]E.g. Connecticut and Hawaii.
[xi]Note that New York State used to have a requirement that a child be 1.5 grades below standard to qualify for an IEP; this requirement was dropped and has not been replaced with a specific rule of thumb. The New York State Education Department issued an advisory in 2015 that acknowledges that students with high cognition may be eligible for IEPS; it affirms that no single criterion should be the basis of an IEP eligibility determination.
[xii]US Department of Education, OSEP Letter to Anonymous, (Jan. 13, 2010)
[xiii]US Department of Education, OSEP Letter to Delisle (2013)
[xiv]US Department of Education, OSEP Letter to Redacted (February 29, 2012). Note that this standard comes from the language of the IDEA regulations themselves, which hold that IDEA eligibility must be granted to a student with a disability “who needs special education and related services, even though that child has not been retained in a course or grade and is advancing from grade to grade.” 34 C.F.R. §300.101(c)(1).
[xv]US Department of Education, OSEP Letter to Anonymous, (Jan. 13, 2010)
[xvi]See the US Department of Education’s Q & A on Endrew F for more information.
By Miriam A. Nunberg, Esq.|July 31st, 2019|Advocacy|0 Comments
Share This!
FacebookTwitterRedditLinkedInWhatsAppTumblrPinterestEmail
About the Author: Miriam A. Nunberg, Esq.
Miriam A. Nunberg, Esq. is a former attorney with the U.S. Department of Education’s Office for Civil Rights and the co-founder of the Brooklyn Urban Garden Charter School. She currently runs a solo advocacy and consulting practice in Brooklyn, NY where she advises and advocates for parents navigating the system for getting school accommodations. Visit her website at https://studentequitysolutions.com.
