It is a timeless and eternal verity that we all cherish our children and seek to ensure their overall well-being in every facet of their lives and stage of development. No sacrifice is too great to achieve that paramount aim. In the context of family law and the dissolution of marriage where children are involved, the summum bonum of all such cases is to arrive at a resolution that serves the best interest of the child, as that legal lodestar is defined in Tex. Fam. Code § 153.002: “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”
This legal standard is more poignant and urgent when children with disabilities are seeking educational opportunities under the federally mandated law of the Individuals with Disabilities Education Act, or IDEA (IDEA was formerly the Education for All Handicapped Children Act, or EHA). This article will examine Texas court opinions related to the overarching themes of this broad, expansive, comprehensive, and “subjectively inclined to interpretation” law. The central themes upon which Texas courts have opined range from what constitutes a Free Appropriate Public Education, or FAPE; interpretations of a Least Restrictive Environment, or LRE, (20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114); due process rights of parents of children with disabilities; judicial deference to school boards and educators when crafting Individualized Educational Plans or Programs, or IEPs, for students who have been assessed as having learning disabilities; and placement issues. Any detailed explanation into other IDEA-related themes is beyond the scope of this article.
History
On a national level, prior to 1975, courts rarely mentioned children with disabilities and their right to public education. Pre-1975, educators would make unilateral decisions often without any input or consultation with the parents of children suspected of having learning and other disabilities in determining the manner in which children with disabilities would best be served educationally.
In 1975, Congress passed IDEA (20 U.S.C. §§ 1400-1482). Influenced by the language of the landmark decision of Brown v. Board of Education, (347 U.S. 483, 74 S. Ct. 686 (1954)) the momentous words of the Supreme Court would serve as the backdrop to the passage of IDEA: “[E]ducation is perhaps the most important function of state and local governments,” (Id. at 493). The unanimous Supreme Court further stated that: “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms,” (Id.). Notably, this language has been cited in innumerable cases nationwide, including cases involving students with disabilities demanding equal educational opportunities. After enactment and passage of IDEA, every state had to abide by IDEA’s mandate to evaluate, test, and place any suspected students with disabilities in educational settings that provided a FAPE in an LRE. Moreover, post determination that a student had learning disabilities, an IEP had to be established by the school board and the child’s educators, in collaboration with the child’s parents and other professionals to serve the best interest of the student based on his or her specific educational needs.
Under IDEA, “[T]he schoolchild and his or her parents are entitled to be involved in the process of developing an IEP,” ((20 U.S.C. § 1401(a)(20) (Under 20 U.S.C. § 1415, the statute mandates collaboration between educators and parents/guardians when developing the IEP via numerous, well-defined, procedural safeguards. The IEP must be reviewed at least annually (20 U.S.C. § 1414(a)(5); Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 129 n.3 (5th Cir. 1993)). Additionally, 20 U.S.C. § 1414 mandates that the IEP be created by an “individualized education program team” comprised of parents, educators, and disability professionals.
Congress, in enacting IDEA, was unequivocal in its purport that collaboration between the parents of the child with disabilities and various school officials was an indispensably pivotal and crucial element in crafting an IEP that would best serve his or her specific needs as well as deliver optimal results (20 U.S.C. §§ 1400-1482).
As broad and complex as the law of IDEA may be, nowhere is this collaborative process more compelling or in demand than the crafting of an IEP that specifically addresses the learning needs of a child with disabilities and how to successfully approach those unique learning challenges. The crafting of the IEP must ensure in its substance, content, and application that a FAPE in an LRE has been accomplished. In this regard, the author contends that it is an unforgiving, unwelcome, and harsh reality that Congress’ generalizations of the terms “appropriate” and “least restrictive” lends itself to multiple, subjective, and disparate interpretations that frequently give rise to differing opinions and conflict between the educators and the parents of children with disabilities.
Indisputably, the crafting of the proper IEP for children with disabilities is paramount and potentially outcome determinative in whether the student’s IEP will confer sufficient educational benefit to allow him or her to make academic and educational progress.
For example, in Teague, the 5th Circuit was tasked with opining the sufficiency of an IEP that was challenged as to its merits by the parents of the child in question. The court held that the IEP was sufficiently substantive and the student “received significant benefit from his public school placement.” (In Teague, the 5th Circuit noted: “As a condition of federal funding, IDEA requires states to provide all children with a “free appropriate public education,” 20 U.S.C. § 1412(1), with the statutory term “appropriate” designating education from which the schoolchild obtains some degree of benefit. (See Board of Educ. v. Rowley, 458 U.S. 176, 200, 102 S. Ct. 3034, 3047, 73 L. Ed. 2d 690 (1982). See 20 U.S.C. § 1412(5); Rowley, 458 U.S. at 202, 102 S. Ct. at 3049; Sherri A.D. v. Kirby, 975 F. 2d 193, 206 (5th Cir. 1992)). The 5th Circuit explained the underlying rationale for IDEA, reflecting the best interest of the child as it is also reflected within Brown:
“IDEA was intended to redress a long history of discrimination by public schools against disabled children. Isolation of a schoolchild or reduction of the quality or amount of a child’s educational programming solely for the convenience of staff violates IDEA.” See, e.g., Rowley, 458 U.S. at 179, 189, 102 S. Ct. at 3037, 3042 (Congress’ intent, in passing EHA, was to prohibit schools which receive federal funds from discriminating against disabled children) (Teague, 999 F.2d 127, 129 n.4 (5th Cir. 1993)).
To reiterate, Texas courts, in evaluating IDEA-related cases, have applied the “best interest of the child” legal standard in delivering its opinions. In Christopher M. v. Corpus Christi Indep. Sch. Dist., the court was tasked to opine whether a shortened school day due to the nature of the child’s disability was a violation of the FAPE portion of IDEA. The court in applying the “best interest of the child” legal barometer, stated: The board was not required to provide a full day of educational programming for the student with multiple disabilities whose educational programming consisted of basic sensory stimulation, since it was not in his best interest (933 F.2d 1285 (5th Cir. 1991)).
Further, in discussing the original mandate of EHA the precursor to IDEA, the court reiterated that it was instituted in order:
“[t]o create an educational program tailored to the unique needs of each child. The drafters of EHA were guided by the principle that “each child must receive access to a free public program of education and training appropriate to his learning capabilities.” Rowley imposes an obligation on the states that the IEP must be “reasonably calculated to enable the child to receive educational benefits,” and “In reviewing the appropriateness of an IEP, [the] court has previously considered these very factors: “our analysis is an individualized, fact-specific inquiry that requires us to examine carefully the nature and severity of the child’s handicapping condition, his needs and abilities, and the school’s response to the child’s needs.” (See Rowley, 458 U.S. 176, 189, 102 S. Ct. 3034, 3042, 73 L. Ed. 2d 690 (1982); and Christopher M., 933 F.2d 1285, 1289 n.7 (5th Cir. 1991)).
In sum, despite Congress’ intent to serve the educational needs of children who qualify for special education services, this area of the law, due to its broad mandates, continues to be fertile ground for litigation, which arguably does not serve the best interest of the child due to its emotionally charged, protracted, combustible, and costly process.
Ultimately, it is this author’s opinion that in the context of meeting the educational needs of children with disabilities, it is imperative that parents and educators set aside any animus, pre-conditioned biases they may harbor and work together in a spirit of compromise, compassion, equanimity, and reasonableness with the singular and ennobling aim of serving the best interest of the child.
Kamran Mashayekh is a partner in Mashayekh & Chargois in Houston. He has practiced law for nearly 30 years in Texas in the area of civil litigation. Mashayekh received his law degree from South Texas College of Law and has testified before state legislatures in assisting them in crafting anti-predatory lending laws.