Does a school’s FAPE obligations end when my son graduates?
Believe it or not, the answer is not always Yes. It’s true that generally, once a student reaches 21 (or 22 depending upon the state) or graduates, whichever comes first, the School District is no longer obligated to offer the Student a Free Appropriate Public Education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA). However, that’s not always the case. Though there is a higher threshold, School Districts MAY still be responsible for violations after a student graduates (at least those violations that occurred before graduation). I’ll be discussing what the law is in New York, but other states will have similar requirements and you should consult with local attorneys if you have specific questions.
A colleague just brought up this issue and I realized that many (most?) parents are not aware of their rights regarding graduation and FAPE. Here’s the scenario:
A student with an IEP "graduated" last year even though he never passed an end-of-year exam and had the same IEP goals year after year. The school is now claiming that the parents knew their rights and failed to take action when they saw their child floundering. The school also stated that once the child graduates, they are not responsible for any past violations. Most parents would accept this and move on. But there’s more to this analysis than you may think, and the clock is ticking.
What are the Rights of Students with Disabilities who are graduating?
School Districts are required to include a statement of transition services in the Student’s IEP which must include appropriate measurable post-secondary goals and the transition services needed to assist the child in reaching those goals. These goals must address post-secondary education, training, employment, and independent living skills, if appropriate. Districts are not required to conduct reevaluations before students graduate high school or age out (though you can ask for an Independent Educational Evaluation). However, they are required to provide students with a summary of their academic achievement and functional performance which must include recommendations on how to assist the Student in meeting her postsecondary goals. Committees on Special Education (CSE) MUST inform parents that graduation from high school shall terminate their child’s right to a FAPE and therefore their eligibility for special education services. They MUST provide written notice to the parents or guardian of the actual date that their child will no longer be entitled to services.
What if you don’t think your child’s school should graduate her?
The best thing to do is to say so at a CSE meeting before your child actually graduates. Explain your concerns and why you think your child shouldn’t graduate yet. It isn’t enough that your child may have the credits to graduate. Has your child met his IEP goals? Does he have goals for independent living skills? Are there sufficient transition goals and did the student attain them? Did the District provide advance notice of their intent to graduate your child? Was your child given the chance to earn a standard high school diploma which is awarded to the preponderance of students in the state and that is fully aligned with state standards, or a higher diploma?
What can I do if my child’s school insists on graduating him?
This will depend a lot on the individual case, therefore it’s important to seek the advice of an education attorney. If you disagree with the school’s decision to graduate your child, you do still have the right to file for Due Process to contest this decision. And until that case is resolved, your child will be able to remain in his last educational placement. But remember, you only have two years to file for Due Process. And as an aside, even if your child doesn’t actually graduate on time, he still may be allowed to walk down the aisle with his peers.
What can I hope to Achieve?
Well, Impartial Hearing Officers have a great deal of power to fashion awards once they determine the School District violated the child’s rights. They can rescind the diploma and allow the child to continue to receive special education services. They can order compensatory education to remedy past violations. Sometimes they will even order a financial award to be used toward future services. It should be noted that in New York, in order to get compensatory education (e.g. Speech and Language, academic services, vocational services, etc.) after a child graduates, there is a higher threshold. It isn’t enough that there is a FAPE violation, there needs to be a “gross” FAPE violation “which resulted in the denial of, or exclusion from, educational services for a substantial period of time.”
So what's the moral of the story? You should contact an attorney ASAP if you have concerns about your child graduating.
If you have more questions about this topic, please contact me.