Education groups urge Supreme Court to hear case on whether IEP must identify school
NSBA, along with the American Association of School Administrators and the National Association of State Directors of Special Education, has filed an amicus brief supporting the petition for certiorari to the U.S. Supreme Court by Virginia’s Alexandria City School Board in the case of Alexandria City Sch. Bd. v. A.K., Docket No. 07-541. The school board is asking the Court to review a decision by the U.S. Court of Appeals for the Fourth Circuit (VA, MD, NC, SC), 484 F.3d 672 (4th Cir. 2007), summarized at the second link below, that the school district failed to provide a student with the free appropriate public education (FAPE) required by the federal Individuals with Disabilities Education Act (IDEA) by failing in the student’s Individualized Educational Program (IEP) to identify the specific private day school at which he would receive services. The Fourth Circuit’s refusal to reconsider its three-judge panel ruling en banc—with all judges participating—prompted a vigorous dissent by Judge Roger Gregory, unusual in a decision over whether to consider a case en banc.
The NSBA brief argues that the Fourth Circuit’s decision ignores practical realities underlying the development of IEPs for children with disabilities, including the fact that the IEP is developed before the IEP team knows whether the private school in question will accept the student or, for that matter, even has any available space, and that the private school, in fact, relies on the IEP to determine the appropriateness of the proposed placement. In addition, the brief argues, the U.S. Department of Education has consistently instructed that the word “location” in IDEA refers not to a specific school or classroom but to the type of educational setting in which services will be provided. Finally, the brief argues that the Fourth Circuit ignores the distinction in IDEA between a de minimis procedural violation—in this case, failure to identify an anticipated private school—and a substantive violation that rises to the level of a denial of FAPE. Principal authors on the brief were NSBA Council of School Attorneys members Leslie R. Stellman and Edmund J. O’Meally of Hodes, Pessin & Katz, P.A. in Towson, Maryland, whose services were pro bono.
NSBA et al. brief in Alexandria City Sch. Bd. v. A.K.
NSBA School Law pages on Alexandria City Sch. Bd. v. A.K.