Update to a problematic placement decision

Two previous entries (here and here) addressed a problematic decision from the Fourth Circuit  arising out of Virginia.  The school district sought further review by the U.S. Supreme Court.  Recently, the U.S. Supreme Court denied further review.  The decision is now final, but not the ramifications.

Update to: special education placement and the problematic decision out of Virginia

Previously, I commented on the a problematic placement decision from the U.S. Fourth Circuit Court of Appeals, A.K. v. Alexandria City School Board.  In that case, the appeals court majority really got it wrong on a technical, but important, meaning about the "location" of a special education placement.

The school district has since filed for review by the Supreme Court.  Alexandria City Sch. Bd. v. A.K., No. 07-541.  The National Boards Association has filed a brief supporting such review and seeking permission to participate in the case. 

The Supreme Court is not likely to grant review.  But it should.  Well, only if it would fix the problem.

Special education placement: a problematic decision out of Virginia

“Location” and “educational placement (or setting):” in special education, what does each mean? Location in an IEP is commonly taken to mean the place where a service occurs, such as “learning support classroom” or “counselor’s office,” within a physical setting. Educational placement is an pedagogic term of art for a program service, such as “learning support,” “emotional support,” “Approved Private School,” and “autistic support.”  The public agency usually selects the location, while the IEP Team decides the placement.

Except for a dissenting opinion that understands the distinction, the Fourth Circuit’s decision in A.K. v. Alexandria City School Board, slip op. C.A. 06-1130, 484 F.3d 672, 2007 WL 1218204 (4th Cir.), conflates the concepts.  The majority ruled the school district did not provide FAPE because the IEP identified “Level II--Private Day School placement” rather than a specific private school. 

The distinction between “location” and “placement” and how each is decided upon is not a lawyer’s fiction, but is, for example, found in the federal regulatory comments. See 71 Fed. Reg. 46719 (Aug. 14, 2006).  In discussing public comments to the proposed regulations regarding changes in placement for disciplinary reasons, the U.S. Department of Education stated “We interpret ‘setting’ in this context [the IAES] to be the environment in which the child will receive services, such as an alternative school, alternative classroom, or home setting. In many instances, the location and the setting or environment in which the child will receive services are the same. It is possible, however, that a school may have available more than one location that meets the criteria of the setting chosen by the IEP Team. For example, an LEA may have available two alternative schools that meet the criteria of the [IAES] chosen by the IEP Team. In those cases school personnel would be able to assign the child to either of these locations, if the IEP Team has not specified a particular one.”  

So not only does this A.K. go against prevailing understanding, it requires a public agency to identify a specific school and hope the private school will actually accept the child. This essentially requires public school officials to divine state of mind of private school personnel regarding their belief of whether the private school is appropriate for the child. And, let’s not forget, that the IEP is a “guarantee” and a “contract” promising that the child will go to that specific school, an argument parents disappointed by a subsequent rejection will surely make. Alternatively, the public agency will have to secure a spot in the private school in advance of the IEP, which in many cases requires significant advanced financial obligations. In that case, there is no guarantee that parents will ever permit the child to attend the private school as well as the very real risk of being accused of “predetermining” the placement.    

The decision will prove unworkable in practice and detrimental to already stressed public education agencies. Public schools should, if not able to follow this new outcome, document every step of the placement decision – including the downside of the various options along the way. 

The best solution to problematic law, as always, is to create and maintain a healthy and cooperative relationship with student families. This should be the top priority to both serve the student appropriately and possibly avoid problematic situations. In most cases, the school and parents are able to work through the process successfully. But for those unfortunate cases that go to litigation, A.K. is a real problem.