Do IEP teams have the authority to retain a student to repeat a grade level, or promote a student eligible for special education to the next grade level?
Arizona law invests in teachers the duty to make the decision to promote a pupil from grade to grade or retain a pupil, and to pass or fail a pupil in a course in high school. [See A.R.S. § § 15-701(E) and 15-701.01(E)] The teacher’s decision may be overturned by the public education agency’s governing board. [A.R.S. § 15-342(11)] However, a statute commonly referred to as Move on When Reading prohibits a pupil from being promoted from the third grade if the pupil obtains a score on the reading portion of the AIMS test (Arizona’s Instrument to Measure Standards), or a successor test, that demonstrates that the pupil’s reading falls far below the third grade reading level. [A.R.S. § 15-701(A)(2)(a)] However, it is important to note that a child with a disability may be promoted from the third grade even if he or she falls far below the third grade reading standards “if the pupil’s individualized education program [IEP] team and the pupil’s parent or guardian agrees that promotion is appropriate based on the pupil’s individualized education program.” [A.R.S. § 15-701(A)(2)(b)(ii)]
Can a student eligible for special education receive a failing grade in a special education class or a general education class?
A student eligible for special education is entitled to certain protections outlined in the IDEA (in disciplinary matters, for example), but the right to obtain a particular grade is not enumerated anywhere in these protections. The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, independent living.” The United States Supreme Court has articulated that “. . . the intent of the [IDEA] was more to open the doors of public education to [children with disabilities] on appropriate terms than to guarantee any particular level of education once inside.” [Board of Education of the Hendrick Hudson Central School District v. Rowley, 455 U.S. 175, 102 S.Ct. 3034, (1982)] Thus, an IEP is not a contract, and a school cannot be held liable if a student does not perform at a certain level. Arizona law is clear that teachers “make the decision to promote or retain a pupil in grade in a common school or to pass or fail a pupil in a course in high school.” [See A.R.S. § § 15-701(E) and 15-701.01(E)] (There is, however, a specific exception pertaining to the promotion from third grade under A.R.S. § 15-701). Accordingly, the assignment of grades is not something that can be determined by an IEP team and included in a child’s IEP.
Can the IEP team or parents decide which staff people will work with a student eligible to receive special education?
Placement decisions must be made by a group of individuals, including the parents, and others knowledgeable about the child, the meaning of the evaluation data, and the placement options, and must be based on the child’s IEP. [34 C.F.R. § 300.116] However, a placement decision is not the determination of a particular classroom within a school or the identification of a particular teacher or school personnel who will be providing services to the child. The United States Department of Education/Office of Special Education Programs (OSEP) provides guidance in this regard by explaining that schools are permitted to make determinations about specific classrooms, teachers, and support personnel as a matter of administrative concern and prerogative. [Letter to Wessels, 16 IDELR 735 (OSEP 1990)]
Does a related service provider determine the amount of services that are to be provided to a student?
No. Decisions regarding the special education and related services an eligible child needs in order to receive a FAPE are made by the child’s IEP team. Related service providers can provide input to the team and offer suggestions for the team’s consideration, but they are not the sole decision-maker when it comes to that particular related service. Although IEP teams should work toward achieving consensus, when that is not possible (either between the parent and the school or between school members of the IEP team) the public education agency representative is charged with making the final decision regarding the appropriate services because “it is the district that is finally accountable for the contents of the program.” [Letter to Richards, 55 IDELR 107 (OSEP 2010)] If parents disagree with any IEP team decision, their recourse is to request mediation or to file a due process complaint against the public education agency. [34 C.F.R. §§ 300.506(a) and 300.507(a), respectively]
Does the IEP team determine whether a pattern of disciplinary removals in excess of ten school days constitutes a change in educational placement?
No. The regulations that implement the IDEA state that it is the school that “determines on a case-by-case basis whether a pattern of [disciplinary] removals constitutes a change of placement.” [34 C.F.R. § 300.536(b)(1)] Parents may, however, challenge this determination through due process and judicial proceedings. [Id. at (b)(2)]
