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NORTHWESTERN OHIO EDUCATIONAL RESEARCH COUNCIL
Findlay, Ohio
March 13, 2002
"Evolving Graduation Issues of
Special Education Students"
Presented by Cheryl T. Maimona, Esq.
I. Introduction
A. IDEA rights cease.
B. ADA/504 are "reasonable accommodation" statutes after
high school graduation.
C. Examples
1. No specially designed instruction
2. No related services
3. No modified curriculum
4. No behavioral plans
5. No more "free" evaluations
II. Graduation is supposed to end legal responsibilities to student
under IDEA.
A. Graduation under IDEA with a regular education diploma ceases
IDEA obligations.
B. Statute, regulations, and commentary never mention impact of
GED.
C. Legal decisions
1. Hearing officer rules that receipt of a regular education diploma
does not necessarily prove a valid graduation. Independent Sch.
Dist. No. 281, 32 IDELR 277 (SEA M.N. 1999).
2. "A school can exclude disabled children through a variety
of methods, such as by ignoring them, expelling them, suspending
them, or graduating them. Because graduation entails the transmission
of a diploma and some measure of pomp and circumstance does not
inoculate graduation from the possibility that it is simply another
form of illegal exclusion. In fact, graduation is probably the most
dire form of exclusion because it potentially renders a person ineligible
for future education aid under the IDEA." Bell v. Education
in Organized Territories, 2000 WL 1855096 (D.Me. 2000).
D. Legal Requirements for Graduation
1. Graduation is a change of placement. 34
CFR '300.122(a)(3).
2. Notice a reasonable period of time prior to graduation. 34
CFR 300.503(a)(1).
3. Ohio Model Policies and Procedures requires that PS-401 (Parent
Notice) be given before graduation. The IEP can serve as prior written
notice.
III. Aging out ceases IDEA eligibility. 34 CFR '300.122(a)(1).
A. State law controls age.
B. In Ohio, person under age 22.
IV. Courts do not agree on what effect graduation has upon IDEA
claims.
A. If a student has graduated from high school and does not contest
his graduation, the case is moot. T.S.
v. Independent Sch. Dist. No. 54, 265 F.3d 1090, 35 IDELR 128(10th
Cir. 2001). (Student attending college with 3.5 grade point
average in first year.)
Student claimed that the District violated the IDEA because they
did not give him written notice of his graduation and he was deprived
of an exit meeting. The student did not claim that the lack of notice
or meeting rendered the graduation invalid.
The student was deemed eligible to graduate from high school. On
the last day of school, the student filed a due process request
claiming that his IEP was insufficient. The District concluded that
the student graduated before the request for due process was received
and the request was denied.
The crux of the student's argument was that graduation constituted
a change in placement under the IDEA, and the District should have
given him formal notification of the impending graduation, an exit
IEP meeting, and notice of his available options related to the
proposed change in placement.
The court found that the case was moot because nowhere did the student
contest his graduation, therefore the claims of procedural violations
of the IDEA were not applicable.
B. If parents can state some claim for relief, such as compensatory
education services, Courts will find that graduation has not made
the case procedurally moot.
1. Brett v. Goshen Comm. Sch. Corp., 161 F.Supp.2d 930 (N.D. Ind.
2001). Twenty-four year old student attempted to prove that graduation
was a "sham." Case was not moot because student was challenging
graduation and seeking compensatory education services.
2. Maine
Sch. Admin. Dist. No. 35 v. Mr. and Mrs. R., 176 F.Supp.2d, 15
2001 Westlaw 1621327 (D.Me. 2001). Case not procedurally moot even
where graduation and 20th birthday occurred after the action was
filed because parents validly asserted a claim for compensatory
education. However, case is substantially moot where there were
no circumstances under which compensatory education might be available
where stay-put order and passage of time provided services sought
by student in the first place.(Parents received no attorney fees
because never got to substantive claim because received relief in
the interim due to stay put.)
V. Can Compensatory Education Ever Be Services at Post-secondary
Level?
A. Post-secondary relief disfavored. Court calls it "extraordinary."
Chuhran v. Walled Lake Consolidated Sch., 839 F.Supp. 465 (E.D.
Mich. 1993), aff'd, 51 F.3d 271 (6th Cir. 1995).
B. Post-secondary relief authorized when school district had never
identified student. Puffer v. Raynolds, 761 F.Supp. 838 (D. Mass.
1988).
C. Post-secondary relief rejected in Gorski v. Lynchburg School
Board, 441 IDELR 415 (4th Cir. 1989) (unpublished opinion).
D. Post-secondary relief is not authorized by the IDEA according
to the Office of Special Education Programs, U.S. Department of
Education. Letter
to Riffel, 34 IDELR 292 (OSEP 2000).
". . . Part B does not authorize a school district to provide
a student with compensatory education, through the provision of
instruction or services, at the post-secondary level. See 34 CFR
'300.25."
The type of relief that is to be awarded for compensatory education
to cure the denial of FAPE during the period when the student was
entitled to FAPE, must be the type of educational and related services
that are part of elementary and secondary school education offered
by the state.
VI. Procedural Issues
A. Failure to include regular education teacher at final IEP meeting
where graduation was discussed was not a violation of IDEA since
the purpose of the meeting was not revision of IEP itself. Daugherty
v. Hamilton County Schs., 21 F.Supp.2d 765 (E.D. Tenn. 1998).
VII. What is Graduation?
A. Is it meeting the academic requirements for receipt of diploma
or meeting IEP goals and objectives?
1. Could student challenge graduation for failing to meet, for example,
social/emotional goals?
B. Compensatory Education Claim Will Survive a Student's Graduation
The Office of Special Education Programs, U.S. Department of Education
has given an opinion that a student's graduation does not automatically
relieve a district of its responsibility to provide compensatory
education-related services previously awarded to the student for
a denial of FAPE. Letter to Riffel, 34 IDELR 292 (OSEP 2000).
The purposes of a compensatory education award is to remedy the
failure to provide services a student should have received in high
school when he or she was entitled to FAPE. Compensatory services
are often appropriate as a remedy even after the period when the
student is otherwise entitled to FAPE because, like FAPE, compensatory
education can assist the student in the broader educational purposes
of the IDEA including obtaining a job or living independently. OSEP
said though that a district is not required to provide compensatory
services to a graduated student once the student enters college
or junior college, unless such a level of education is considered
"elementary and secondary education" under state law.
C. Daugherty v. Hamilton County Schs., 21 F.Supp.2d 765 (E.D. Tenn.
1998). Court says focus is on academics. Issue of transition service
failure not raised on appeal. (The decision issued prior to 1999
regulations.)
D. Although IEP team had agreed that student met graduation requirements,
she received additional compensatory services of transition services.
Appleton Area Sch. Dist. v. Benson, 32 IDELR 91 (E.D. WI 2000).
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