UPDATE ON CHANGE IN CALENDAR CASE

Back in October, I reported on a case out of Hawaii where school districts changed the school calendar to have Furlough Fridays in a money saving effort.  Parents of a number of special education students filed suit claiming the change amounted to a change in programing under IDEA, without parental consent.  While not yet ruling on the merits, the U.S. District Court has at least hinted at what the answer might be on this question.  The Court has refused to issue a preliminary injunction to stop Furlough Fridays, finding that it believes the plaintiffs were unlikely to succeed on their claims.  Thus, we have a hint of where the Court may be going, but a final decision may be some way off. 

IS A CHANGE IN THE SCHOOL CALENDAR A CHANGE IN PROGRAMING?

In Hawaii, students will now be getting seventeen Fridays off this year and seventeen next year in an effort to save money through a furlough of teachers.  However, several lawyers representing a group of students who qualify for special education have filed a suit trying to stop the plan.  The argument is that by taking seventeen days out of the school year, this is a change in programs and services the disabled children receive.  Given that the parents of these students were not consulted prior to this change, the suit alleges it violates the rights of the parents under IDEA.  The suit seeks a temporary restraining order and the first furlough day is this Friday.  Thus, we may know very shortly if in fact such a change in scheduling is a change that requires parental consent under the IDEA. 

And the impact of the Winkelman decision is. . . .

The U.S. Supreme Court’s May 21, 2007 decision in Winkelman v. Parma City School District says parents are permitted to represent their own special education interests in federal court.  Parents, schools, and the courts will, of course, feel the impact of this decision; only the degree of impact, particularly the amount of litigation, remains uncertain.

The Court’s actual pronouncement is not very remarkable. That parents have certain special education rights has never really been in doubt. All the decision adds is that parents have the right to enforce IDEA’s “other mandates” such as the child’s right to FAPE. “Parents may seek,” the Court wrote at page 15, “to enforce this mandate through the federal courts, we conclude, because among the rights they enjoy is the right to a free appropriate public education for their child.” (Emphasis added.)  

In other words, parents have the right to “enforce” a right, that is, the child’s right to FAPE. 

In my view, this is a case where the dissent got it right:

the majority decision takes a fundamental common law rule, complete eviscerates it, and does so based on reading between the lines despite no clear statutory text intending to upset existing law. Be that as it may, the dissent is not now the law.

In the end, parent attorneys probably will use the Court’s broad words of substantive parental rights to drive new due process issues, Section 1983 Civil Rights litigation and money damages claims. Ultimately, this concern, too, will come before the Supreme Court as the Courts of Appeal are split on whether a simple violation of IDEA gives rise to money damages, either directly or via § 1983. More on that later when I discuss A.W. v. The Jersey City Public Schools in "Money damages, disabilities, and education."