Some parents of children with disabilities readily accept whatever the school’s IEP team members recommend. After all, they reason, these people are the professionals. They know best.

Many times they do. But many times they don’t. Many times they truly care about developing a highly effective IEP. Sometimes they don’t.

The Other Parents

Other parents believe it’s critical that they participate in every aspect of developing, implementing, and assessing their child’s IEP. They believe that they know a great deal about their child’s needs that school-IEP team members need to address but may not know or fully appreciate. They see much that school personnel don’t, like their child’s behavior at home, shopping in supermarkets, and losing a pick-up game of basketball.

Some of these situations go smoothly; others don’t: Both situations say a great deal about their child’s needs.

Some school administrators and IEP team members welcome such parent involvement, some silently resign themselves, and some stonewalled or built other roadblocks.

As a reading disabilities and special education professor and consultant, I was often called into situations where parents and schools were embroiled in conflict. Many schools handled these disagreements with sincere respect and concern for the parents and their children. They sought understanding. Some didn’t.

Those who didn’t were often immersed in building towering roadblocks. These school-IEP team members and special education directors tended to hit parents with different mixtures of comments like these: “We’re in charge. We’ve gathered information from teachers and other professionals. Tell us what you want, and we’ll see what we can do. We’ll answer some of your questions, draft the IEP, send it to you. You’ll have 15 days to sign or reject it. Before sending our draft to you, we’ll hold an IEP meeting. Here, we’ll ask you to briefly share your thoughts and then we’ll give you an opportunity to listen to our teachers and experts present their views. Once you get our draft, the process ends. By then, we’ll have spent plenty of time on this.”

Some school-IEP team members said the same things in more understated, nuanced, and skillful ways. Nevertheless, the message was the same: “We’re the professionals. We’ll develop the IEP. Your role is very limited.” Parents understood the message.

Time

Some school-IEP team members, such as case managers, exasperatingly stressed that they spent excessive time on the child’s IEP, that they won’t spend more time on it. Then, if parents request a follow-up meeting, the case managers send a denial letter.

Time, however, does not automatically equate to an IEP that’s “reasonably calculated” to help the child achieve meaningful, challenging goals that he (or she) can likely achieve. Sometimes, excessive time represents poor planning, poor data, poor understanding of the child’s needs

All this raises important questions, like these:

• To what extent can parents be involved in developing their child’s IEP?
• Can schools arbitrarily deny parents’ justifiable requests for an additional IEP meeting?
• Can an IEP Team deny a parent’s request that the school collect valid, objective data to monitor their child’s ongoing progress?

The Federal Circuit Courts of Appeal

Why discuss America’s 12 federal Circuit Courts of Appeal? For one simple reason: They frequently determine the meanings of the Individuals with Disabilities Education Act (IDEA), the act that governs special education.

If you don’t understand the Circuit Courts’ rulings — where, when, and how IDEA applies — you won’t understand the IDEA and how it applies to your child or students. As many people have said, ignorance is costly: “Sometimes, what you don’t know can hurt you very much.” (Margaret Atwood, “The Blind Assassin” — italics added).

These courts decide what the IDEA means and how it can or cannot be applied in the states and territories that comprise each court’s jurisdiction. Different states have different Circuit Courts.

A decision of one Circuit Court may influence other Circuit Courts, but it doesn’t bind them. For example, any decision made by the Third Circuit Court binds schools and residents in New Jersey, Pennsylvania, and nearby states, but not Illinois and Wisconsin. The Seventh Circuit Court that encompasses northern Illinois and parts of Wisconsin, however, might be swayed by a Third Circuit Court’s decision. In short, Circuit Courts have enormous power.

Their enormous power, however, is not final power. Only the Supreme Court of the United States has such power, and historically, it changed relatively few decisions.

Thus, in special education, you’re usually right to take the word of the Circuit Court for your state and to give heed to the well-reasoned, well-crafted decisions of other Circuit Courts. These decisions may influence the Circuit Court responsible for your state. Thus, for the sake of your child or students, if the language and reasoning of Circuit Courts for states other than yours are relevant to your needs, share this knowledge with your IEP Team.

A Critical Ruling of the Supreme Court of the United States (SCOTUS)

In its 2017 decision, Endrew F. v. Douglas County School District, SCOTUS unanimously ruled that:

Parents … will fully air their … opinions: "The nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child's IEP should pursue.

De minimis' progress … can hardly be … an education: “The IEP must aim to enable the child to make progress.... When all is said and done, a student offered an educational program providing 'merely more than de minimis' [trivial or minor] progress from year to year can hardly be said to have been offered an education at all.... Every child should have the chance to meet challenging objectives."

A cogent and responsive explanation: “A reviewing court may fairly expect [school] authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”

The chance to meet challenging objectives: “The goals may differ, but every child should have the chance to meet challenging objectives.”

Authorities to be able to offer a cogent and responsive explanation for their decisions: A reviewing court may fairly expect [school] authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”

A Critical Ruling of the Ninth Court

In 2017, the Ninth Circuit Court ruled that:

A large measure of participation at every stage: Congress gave “parents and guardians a large measure of participation at every stage of the administrative process as it did upon the measurement of the resulting IEP against a substantive standard.”

Monitor and enforce the services: “Parents must be able to use the IEP to monitor and enforce the services that their child is to receive.”

Meaningful parent participation: “Procedures which provide for meaningful parent participation are particularly important.”

Adequate support services: “For [the student] to have received a FAPE [Free Appropriate Public Education], the IEP must have … provide[d] adequate support services so [the student] can take advantage of the educational opportunities.”

Guidance of The U.S. Department of Education (DOE)

The DOE also plays an important role in assuring rights. As such, it often interprets court rulings, such as Endrew F.’s ruling on progress monitoring — knowing, at virtually any moment, how well a child has mastered his goals. Consistent with this, the Department announced:

Not making expected progress: “If a child is not making expected progress toward his or her annual goals, the IEP Team must revise, as appropriate, the IEP to address the lack of progress.”

An Educator’s Interpretation

To me, the two court rulings and the DOE’s guidance strongly suggest that:

Schools need to (a) provide parents with abundant and “meaningful parent participation,” which includes opportunities to comment on and influence all decisions that affect their children; (b) give parents whatever time is needed to rectify a draft IEP that fails to meet FAPE standards; (c) give serious, logical, and impartial consideration to all suggestions made by parents; (d) ensure that the Team fully and specifically enacts all of IDEA’s notification requirements for schools. These include “a description of other options considered by the IEP Team and the reason why those options were rejected” and “a description of each evaluation procedure, assessment, record, or report the school used as a basis for its decision.”

If parents request a follow-up IEP meeting to revise a draft IEP that ignores or inadequately addresses several of their child’s pressing educational needs, such as his inability to make friends, focus on tasks, or write a cogent paragraph, schools must convene the meeting.

If the school refuses, arguing that is has already spent too much time on the IEP, they’ll have major problems presenting “a cogent and responsive explanation” to the courts. Time, by itself, is insufficient justification.

In reliable and valid ways, schools must closely monitor students’ progress. If they don’t, neither they nor parents will accurately gauge the degree to which the students are achieving their IEP’s “challenging” goals. Consequently, if a student’s regressing or stagnating, if his progress is “merely more than de minimis,” he may well remain stuck in a program that’s failing him, academically, functionally, and emotionally.

But valid, ongoing progress monitoring, gives his parents and school an opportunity to identify and rectify the impeding barriers. Together, they can determine if and how his program needs tuning, revising, or replacing.

Schools should honor parent requests to schedule reviews (e.g., bimonthly) of their child’s ongoing progress monitoring data with his IEP Team. This helps parents “monitor and enforce the services that their child … receive[s].” It also helps the IEP team meet its responsibility to “revise, as appropriate, the IEP to address the lack of progress.” Quickly doing this can improve student progress as well as parent-school relationships.

A Hope

As you consider these rulings and interpretations, keep in mind that I’m not an attorney and that virtually anything can be challenged. Look for substantial reasons for disagreeing with my interpretations.

Afterward, if you think that they make sense, share them with the IEP team. Maybe the quotes and my interpretations will help create a more collaborative mindset that produces a FAPE, an education that effectively meets your child or students’ needs.