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- Buckminster Fuller

Thursday, February 9, 2012

Rowley, Reasonable Accommodations, and FAPE: Why Montgomery County was justified in refusing unreasonable parental demands


In 1997, Brian Schaffer’s parents’ sued Montgomery County Public Schools because the school system had refused to pay for out-of-system services after reasonable accommodations within a county school had been offered. The family’s lawyers challenged the substance of his IEP, i.e., teaching methodologies, not the IEP process, itself. The “burden of proof” for legal fees should have been on the parents, not the school system for two main reasons. First, the school system remained in compliance throughout the IEP process. Second, professional opinions, particularly regarding the substance of an IEP, given the professional licensure process, should generally enjoy protected status in the case of legal disputes involving non-professional opinions. These two considerations were the basis for the majority ruling of the Court of Appeals in Weast vs. Schaffer (2004), which overturned an earlier finding by a lower court in favor of the Schaffers. (Wright, P., and Wright, P., 2011).
The Supreme Court, in its 1992 Rowley decision, held that schools must offer reasonable accommodations to meet the educational needs of “handicapped children.” (Turnbull, H., Stowe, M., & Heurta, N., p. 154, 2007).  Implicit in that ruling was that, if schools offered reasonable accommodations, parents had no right to unilaterally withdraw their student, enroll their child in the most expensive available program and force taxpayers to pay the added expense. Brian Schaffer’s parents refused two placement options and accommodations considered to be appropriate and reasonable by the county.
Sufficient legal precedent had already been established by the Supreme Court in Board of Education v. Rowley (1982) to justify Montgomery County’s position. Montgomery County had proposed offering Brian 15.3 hours of special education plus 45 minutes of speech therapy every week. The county had even offered to resolve parental concerns about group size, offering to send Brian to an alternative school with smaller class sizes. Since Montgomery County had complied with all legal requirements, the court found no reason to side with the family against the county.
The Education for all Handicapped Children Act, P.L. 94-142 (1975) articulated six principles that regulate the special education process (Turnbull, H., Stowe, M., & Heurta, N., p. 20, 2007), including FAPE:
·      Free and Appropriate Public Education (FAPE)
·      Students should be educated in the Least Restrictive Environment (LRE)
·      Individualized Education Plans (IEPs)
·      Procedural Due Process
·      Nondiscriminatory Assessment
·      Parental Participation
FAPE was never intended to imply unlimited educational spending for guaranteed educational outcomes. The original intent was to guarantee equal access to education, not guarantee educational results. (Turnbull, H., Stowe, M., & Heurta, N., p. 154, 2007). The 2004 reauthorization of IDEA, in fact, filled many of the holes in the IEP Process that had divided schools and parents, which were at the heart of the legal showdown between Brian Schaeffer’s parents and the school system.
As the author noted in Special Ed Battles, in 2005, the cost of providing special instruction outside of Montgomery County Public Schools far exceeded the costs of early intervention programs. IDEA 2004 was a brilliantly constructed attempt to change that equation. The Schaffers expressed concerns that a public education might not be on par with private schooling. The problem with their argument was in seeking a guaranteed outcome with a specific methodology, which caused their argument to swim against a tide of special education legal precedents. The Schaffer’s concerns about the quality of a public school education vis-à-vis a private education were addressed in the reauthorization of IDEA (2004). IDEA (2004) offered many elements for improving special education, including monitoring, compliance, and procedural safeguards, but these improvements were not in place when the Schaffers filed their complaint. On the other hand, had the Shaffers been given more direct control over their educational dollars, they might have been willing to pay a little more for a higher quality education.
Turnbull, H., Stowe, M., & Heurta, N. (2007). Free appropriate education: The law and children with disabilities, 7th edition. Denver: Love Publishing Company.
P.L. 94-142, 20 U.S.C. Sec. 1400 (d). P.L. 94-142 (1975)
Special ED Battles. (2005). http://www.washingtonpost.com