On October 9, 2018, the United States Supreme Court denied a Petition for a Writ of Certiorari filed by the parents of a West Hartford student eligible for special education and related services, thus concluding over four years of litigation surrounding the provision of a free appropriate public education (“FAPE”), and letting stand the 2018 decision of the Second Circuit Court of Appeals. The Petition, originally filed in June 2018, requested that the Supreme Court review the Second Circuit’s decision in Mr. P. v. West Hartford Bd. of Ed., 885 F.3d 735 (2d Cir. 2018), which held that the West Hartford school district appropriately educated a high school student with an Emotional Disturbance in an alternative high school program called STRIVE, which allowed him to satisfy the district’s high school graduation requirements, and also included various opportunities to develop his postsecondary education, employment, and independent living skills. The Second Circuit further determined that the district proposed an appropriate postsecondary transition program called ACHIEVE, which would also have provided the student with a FAPE. Finally, in affirming a September 2016 district court decision in favor of the school district, the Second Circuit held that its earlier “meaningful educational benefit” FAPE standard was consistent with the new FAPE standard articulated by the Supreme Court in Endrew F. v. Douglas Cnty. Sch. Dist., 137 S.Ct. 988 (2017), so the case did not require remand to the lower court for reconsideration under the newly articulated standard.
Despite the fact that the petition for certiorari was declined by the Supreme Court, the arguments advanced by the parents in this case are interesting and merit critical examination by those working in the field of special education. The language used by the petition is alarming in many respects, arguing that, while students with reading disabilities have been awarded specific evidence-based reading programs in order to address their reading disabilities, and students with Autism have been awarded ABA (Applied Behavioral Analysis) programs to address their disabilities, students with mental health disabilities are overlooked in developing and awarding them programs using specific evidence-based methodologies, leading, according to the plaintiffs in this matter, to increasing levels of suicidal and homicidal behavior, up to and including school shootings. The merits and causal connections between these disabilities and outcomes are, of course, matters of intense debate. However, we predict this will not be the last time that an argument is advanced that a student requires a higher level of intensity in special education programming to address severe mental health needs in order to avert a personal or public safety crisis.
In petitioning the Supreme Court for review, the parents “[sought] clarification that under the IDEA, students with mental health needs … are entitled to same standard of FAPE as other disability categories.” In other words, the parents asked the Court to clarify that students with emotional disturbances are entitled to “progress in their actual identified category of disability,” which would enable an assessment of whether the student made progress under the Endrew F. standard “in light of his unique needs.” Specifically, the parents asserted that the Second Circuit erred in relying upon the student’s adequate grades and standardized test scores as evidence of progress, while ignoring his alleged lack of progress toward his “mental health needs” and increasing social, emotional and behavioral issues. This, of course, raises the question as to what constitutes programming that “addresses” a child’s “mental health needs.” As pointed out by the West Hartford briefs in this case, there is no IDEA category for “mental health needs,” but rather, a child qualifies under the category of “Serious Emotional Disturbance.” And the FAPE standards applicable under IDEA require that the unique needs of the student be identified and goals and objectives written so as to allow the child, with appropriate supports and services, to make progress on the identified goals and objectives.
Some children will progress from grade to grade while meeting grade-level standards and will receive a regular high school diploma. Other children will receive special education services until they “age out” at age 21, but will not be able to meet the standards set for their age-appropriate peers. It is beyond dispute that children with disabilities often suffer from medical setbacks during the course of their educational careers that take many forms, from seizures and degenerative conditions, to stroke, to car accidents and traumatic brain injuries. Sometimes a child’s mental health deteriorates over time, through no fault of the school district. School districts are not equipped to “treat” physical or mental illnesses the way that doctors and hospitals do, so that cannot be the FAPE standard as applied to the IEP. This argument, however, asks that we examine where the boundaries are between “treating” mental health issues and providing appropriate educational services to a student with mental health issues, and seems to come down on the side that we should seek out the mental health equivalent of a Wilson Reading Program or ABA services for inclusion in the student’s IEP, rather than providing what the plaintiffs dismissively see as undifferentiated “school counseling” services. We defer to the educational experts on this. Are there such services and supports? What do they look like for students with mental illness? If we can’t “cure” the child’s mental illness through the IEP, what tools can we give the child to use in coping with the effects of the illness, and getting themselves back on track if they suffer an episode or a setback?
Stepping back from the legal analysis, we can all agree that the IDEA strives to improve outcomes for the futures of all students with all categories of disability. The question becomes, in each individual child’s case, what is a reasonable outcome to achieve by the time that their IDEA mandated services come to an end? What role does special education services play in achieving that outcome, as contrasted with mental health treatment provided outside of (and hopefully in collaboration with) school? What do we, as a society, provide for students leaving school at the end of their IDEA mandate in terms of access to mental health treatment that helps them to continue the gains achieved while they were in school, and also to catch them when they suffer setbacks after graduation?
Ultimately, the Supreme Court denied review of this case, allowing the Second Circuit decision in favor of the school district to stand. While the Supreme Court does not explain its reasoning, it might reasonably be inferred that it did not see the need to weigh in on this particular issue at this time, especially since the standard used in the Second Circuit pre-Endrew F. was already a higher standard of “meaningful educational progress”. One infers that the Supreme Court agreed with the Second Circuit’s assessment that no corrective action was required at this time. It might also be reasonable to assume that since the Supreme Court just recently issued the Endrew F. decision, it is content to wait and see how the implications of this decision play out for some period of time before again wading into IDEA jurisprudence with additional guidance in this complex legal area. While we wait for additional guidance from the Supreme Court, we might be well-advised to keep in mind the arguments advanced in this case and see that all students with disabilities have the benefit of evidence-based educational practices, including those with mental health diagnoses.
Attorneys at Berchem Moses PC are available to consult school districts regarding regular and special education matters in the State of Connecticut. For further information, please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com.