NSBA, [October 2007]The U.S. Court of Appeals for the Fourth Circuit, in a two to one split, has ruled that a Virginia school district failed to provide a special education student with a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA) because the district’s individualized education plan (IEP) did not identify a particular school at which it anticipated the student would be educated. A.K., a special education student, attended Alexandria City Public Schools (ACPS) until eighth grade, at which time his parents enrolled him at a private residential school. Pursuant to a settlement between the parents and ACPS, the school district agreed to fund the portion of Riverview tuition that was equivalent to private day school placement that it had initially proposed. The following school year A.K.’s IEP team proposed private day school placement. However, the IEP did not identify any particular school but simply listed A.K.’s placement as "Level II — Private Day School placement." Based on their objection to that placement, the parents refused to sign the IEP. Eventually, the IEP team whittled the choices down to two schools. However, the parents found both the choices unacceptable and requested a due process hearing to determine if ACPS had offered A.K. a FAPE. The hearing officer denied the parents’ claim. Addressing the issue of ACPS’ failure to specify a particular private day school in the IEP, he concluded that "the fact that [the parents] found none of the possibilities attractive does not mean that the ACPS approach was not in accordance with the FAPE mandates." He found, therefore. that the private school placement offered provided a FAPE. The parents then brought suit in federal district court to overturn the hearing officer’s ruling. The district court upheld the hearing officer’s decision. Regarding the issue of whether there was substantive compliance with IDEA’s requirements, the court concluded that ACPS’s mentioning of the two schools during the final IEP meeting constituted a "placement offer" in accordance with FAPE’s mandates.
The Fourth Circuit reversed and remanded. It held that "as a matter of law that because [ACPS] failed to identify a particular school, the IEP was not reasonably calculated to enable A.K. to receive educational benefits." It found that the lower court had erroneously relied on the premise that ACPS had made a placement offer at both schools when the schools were mentioned by name during the IEP meeting. The appeals court stated: "Expanding the scope of a district’s offer to include a comment made during the IEP development process would undermine the important policies served by the requirement of a formal written offer, namely, ‘creating a clear record of the educational placement and other services offered to the parents’ and ‘assist[ing] parents in presenting complaints with respect to any matter relating to the educational placement of the child.’" It emphasized that it was not holding that a school district "could never offer a FAPE without identifying a particular location at which the special education services are expected to be provided." However, the Fourth Circuit found, based on the facts of the instant case, that when "parents express doubt concerning the existence of a particular school that can satisfactorily provide the level of services that the IEP describes, the IEP must identify such a school to offer a FAPE."
The dissent in essence took the majority to task for creating a mountain out of a molehill by "mistakenly conclud[ing] that an inconsequential procedural error denied a disabled student of the opportunity for a FAPE." While conceding A.K.’s IEP failed to comply with IDEA’s requirements, it found that the failure to identify the "location" at which A.K. would receive his educational services was nothing more than a procedural error. The dissent pointed out that "[m]ore than once the majority acknowledges that the failure to identify the location of the provision of special
education services on a student’s IEP need not always result in the denial of a FAPE. As a result, it contended that "[t]his concession supports the conclusion that the requirement that a school district give an anticipated location on the IEP is only procedural." The dissent also took issue with the majority’s failure to give the hearing officer’s findings the presumption of correctness to which it is entitled.
A.K. v. Alexandria City Sch. Bd., No. 06-1130
[Editor’s Note: ACPS filed a petition with the Fourth Circuit seeking rehearing and rehearing en banc. The petition was denied, with only Judge Gregory, who filed the dissent in the 2-1 panel decision, filing an opinion dissenting from the rejection of the petition. Judge Gregory stated: "The IDEA was written to ensure the fair treatment of disabled students by the educational system, a noble goal that is worthy of our vigilance, but not to punish a school district’s good faith efforts to comply with the statute, even if those efforts sometimes entail technical but harmless errors." To view his dissent to denial of the petition for rehearing, see below.]
A.K. v. Alexandria City Sch. Bd. denial of petition for rehearing