Embracing the Ambiguity in Special Education Law
October 29, 2017 by bmc85
by Josette Barsano
Children living in poverty are more likely to be exposed to risk factors that hinder functional development and thus have a heightened need for special education services. As a special education teacher in a low-income school district, one of the greatest challenges I faced was navigating the gray areas that govern the right of every student to receive, as the law stipulates, the “appropriate” educational and related services that are essential for them to progress academically. In my experience, the ambiguity surrounding what “appropriate” really means and how it should apply to each unique student was the source of heated debate. After sharing my concern of this opaqueness in the law with my Assistant Principal, she surprisingly advised that instead of bemoaning the lack of concrete definitions and processes, I should embrace the ambiguity. In her wisdom, she explained that there is much opportunity to effectuate meaningful change in the veil of vagueness. In contrast, stringent guidelines can lead to cookie-cutter outcomes that may not always serve the best interests of individual students with special needs. Time and again this approach led me to find consensus in situations where I thought it might not be possible, and it was instrumental in my success in collaborating with parents, teachers and administrators.
Given this experience, I was pleasantly surprised when I read the Supreme Court’s recent unanimous decision in Endrew v. Douglas County School District. In essence, the Court agreed that stringent blanket guidelines are not in the best interests of students with disabilities. The advocacy community has applauded the decision as promoting high standards and expectations for students with special needs. In Endrew, the Court rejected the argument that a child making minimal—or de minimis—progress in school has been receiving an “appropriate” education as required by the Individuals with Disabilities in Education Act (“the Act” or “IDEA”). Rather, the Court clarified that, to be compliant with the Act, a student’s Individualized Education Plan (“IEP”) must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” By declining to articulate a bright-line rule to measure student achievement, the Court recognized the need for a gray area. The Court reasoned that States are required “to educate a wide spectrum of handicapped children,” and acknowledged that “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between.” Instead of articulating a cookie-cutter rule that would apply to each student, the Court emphasized that the IEP process is designed so that parents, teachers, related service providers, and school officials are empowered to create observable, measurable, and ambitious goals that are uniquely tailored to each student’s documented present levels of academic achievement and functioning.
The Endrew decision is undoubtedly a significant victory for parents, teachers, and students with special needs. However, there is an undeniable tension between the outcome of this case and existing regulations. In 2015, the United States Department of Education (“DOE”) promulgated a rule amending the IDEA to increase the utilization of the one-size-fits-all approach to standardized testing. Under the new rule, states may only administer alternate assessments based on modified academic achievement standards, in lieu of standardized tests, to “students with the most significant cognitive disabilities.” States are required to give all other students with disabilities the same grade-level district and state-wide assessments as their same-age peers, or an alternate assessment based on grade-level academic achievement standards. The stated rationale behind the rule is that “students with disabilities who struggle in reading and mathematics can successfully learn grade-level content and make significant academic progress when appropriate instruction, services, and supports are provided.”
I wholeheartedly agree that students with disabilities can learn grade-level content and progress academically. However, the real question is: Are all students at the point yet when they should be tested on grade-level content? Do all students have the necessary skills to show what they know on grade-level exams testing grade-level standards? For the majority of students with disabilities receiving instruction in the general education classroom, testing on grade-level content is appropriate. Nonetheless, it should be an independent inquiry for each student, based on whether their present levels of academic achievement suggest they will be able to demonstrate their knowledge on the assessment.
Consider this unfortunately common scenario: An eighth-grade student with a specific learning disability transfers into a school with an already documented IEP that states he is presently reading at a third-grade level. Under the 2015 rule, this student would be forced to take the same eighth-grade level reading exam as his same age peers, or an alternate assessment based on eighth-grade level reading standards. Even if that student progresses to a sixth-grade reading level by the time he needs to take the required assessment, the question begs, will any IEP testing accommodations be enough to allow the student to show what he knows on an eighth-grade test? Will the results of that reading exam inform his teachers’ instruction, or have any value at all? Or, as is more often the case, will the student become visibly frustrated, unmotivated, and develop avoidance behaviors because he is being tested at a reading level he has not yet reached?
While the DOE states that the regulation does not change the authority of IEP teams to make decisions in the best interest of their students, it may in effect do exactly that. Under the 2015 rule, IEP teams are forced into a cookie-cutter, predetermined choice between only three assessments: an alternate assessment for students with the most significant cognitive disabilities; an alternate assessment based on grade-level standards; or the standard grade-level assessment taken by same aged peers. The latter two options fail to consider what individual students’ present levels of academic achievement are and whether they are going to be able to show what they know on the assessments. Prior to this rule, there could be other, more flexible, options from which IEP teams could choose. Several states permitted the use of out-of-level testing as an accommodation or modification on an IEP, which allowed students who were behind grade level in the tested subject to take an assessment at the level that more accurately reflects their present levels of achievement. The behind grade-level student, through his IEP, is likely receiving modified class assignments at the instructional level that meets his needs, as opposed to the level for other students his age. So why make that student take district and state-wide assessments at a grade level above where he is actually performing?
In the Endrew decision, Chief Justice Roberts wrote that “focus on the particular child is at the core of the IDEA” and “every child should have the chance to meet challenging objectives.” Thus, the Court clarified that an inquiry into whether a student is making “appropriate” progress, as required by the IDEA, should focus on whether the student is making academic or functional progress commensurate with the unique circumstances of his disability. In light of this recent decision, maybe it is time for the DOE to reevaluate its inflexible, cookie-cutter approach to standardized assessments and give IEP teams the flexibility to ensure that a student’s Individualized Education Program is, in fact, individualized.
 Carla A. Peterson, et al., Identification of Disabilities and Service Receipt Among Preschool Children Living in Poverty, 47 J. Special Educ. 28, 36 (2011)
 See 20 U.S.C.A. § 1401(9)(C) (West 2016).
 Endrew v. Douglas Cty. Sch. Dist., 137 S.Ct. 988 (2017).
 See Andrew M. Lee, Court Rules on How Much Benefit IEPs Must Provide, Understood (Mar. 22, 2017), https://www.understood.org/en/community-events/blogs/in-the-news/2017/ 03/22/endrew-f-case-decided-supreme-court-rules-on-how-much-benefit-ieps-must-provide.
 Endrew, 137 S.Ct. at 1000.
 Id. at 1001.
 See id.
 Id. at 999 (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 202).
 See Endrew, 137 S.Ct. at 994, 999, 1001.
 See Title I–Improving the Academic Achievement of the Disadvantaged; Assistance to States for the Education of Children with Disabilities, Fed. Reg. 50773–50785 (Aug. 21, 2015) (to be codified at 34 C.F.R. pt. 200, 300).
 See 34 C.F.R. §§ 200.1, 200.6 (2015).
 See id.
 See Title I–Improving the Academic Achievement of the Disadvantaged, Fed. Reg. at 50774.
 See id.
 See Martha Thurlow & Jane Minnema, States’ Out-of-Level Testing Policies Report 4, in Nat’l Ctr. on Educ. Outcomes, Out-of-Level Testing Project Reports (Michael Moore ed., 2001), http://education.umn.edu/NCEO/OnlinePubs/OOLT4.html; Valerie Strauss, U.S. Education Department Bars States from Offering Alternative Tests to Most Students with Disabilities, Wash. Post (Aug. 27, 2015), https://www.washingtonpost.com/news/answer-sheet/wp/2015/08/27/u-s-education-department-bars-states-from-offering-alternative-tests-to-most-students-with-disabilities.
 See Endrew, 137 S.Ct. 988, 999–1000.
 See id. at 1001.