IDEA doesn’t require a district to cover accommodations for postsecondary program

IDEA does not apply to postsecondary education and so, if a student with a disability attends a college program on a college campus, he’s beyond the IDEA’s domain.

If a high schooler with a disability takes classes offered through a college or university that result in both high school and college credit, does the IDEA require the student’s district to pay for accommodations involved in the student’s completing the dual-credit program?

According to the 6th U.S. Circuit Court of Appeals in Bradley v. Jefferson County Public School, No. 22-6091 (6th Cir. 12/21/23), the IDEA does not apply to postsecondary education and so, if a student with a disability attends a college program on a college campus, they are beyond the IDEA’s domain.

The student, who was intellectually gifted and had diagnoses of microcephaly, Tourette’s syndrome, autism, executive processing disorder and “other physical and cognitive conditions,” had an IEP that included “a residential college experience” as a possible step in his transition to postsecondary education.

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To that end, the student’s parents located a dual-credit, dual-enrollment school for 11th and 12th graders on the campus of a state university. In the program, students took courses for free with undergraduates, lived in a residence hall and received high school and college credit.

Although the district initially was open to the parents’ idea, the state department of education prevented the plan, reasoning that the IDEA did not apply to full-time students at postsecondary programs where the students wished to receive services at that postsecondary location rather than at the high school in which they were enrolled.

Despite learning that the district would not apply the student’s IEP at the postsecondary program, the parents enrolled the student anyway and paid for his support accommodations on their own. The parents sought reimbursement for the student’s accommodations along with other relief through the IDEA’s dispute resolution procedures.

The hearing officer dismissed the parents’ claims, and Kentucky’s Exceptional Children Appeals Board upheld the dismissal. On the parents’ challenge to the dismissal in federal court, the District Court dismissed the parents’ claim for failure to state a claim. The parents appealed to the 6th Circuit Court of Appeals.

To provide a free appropriate public education, under the IDEA, districts must provide special education and related services that include “an appropriate preschool, elementary school, or secondary school education.”

In ruling against the parents, the 6th Circuit held that the IDEA did not obligate the district to cover the program in question or “other college-level schools in Kentucky.” The court reasoned that, under the language of the IDEA, “secondary school” does not include any education beyond grade 12.

So, did it matter that the student was receiving high school credit in the program?
According to the 6th Circuit, no. Why? Because Kentucky law treated the program the student was in as a postsecondary school because it “delivered a college-level course of study.” The program described the service as allowing students to receive “high school and postsecondary institution” credit simultaneously.

Other features that confirmed the program’s postsecondary status included:

  • Its location on a college campus.
  • Students took classes with undergraduates pursuing postsecondary degrees.
  • Students in the program lived in a residential dormitory on the college campus.
  • The college, rather than the district, funded the program.

The 6th Circuit highlighted state and federal guidance to support its ruling. In a 2022 document, the Kentucky Department of Education explained that “dual credit courses are defined as college-level courses, which means students do not have a right to FAPE.” Under U.S. Education Department guidance released in 2019, districts may only “provide or pay for services … in postsecondary education settings” when the education at issue is considered secondary school education in the state.

Thus, the 6th Circuit affirmed the District Court’s decision.

Virginia’s top court holds pronoun-related termination violated teacher’s constitutional religious rights

If religious beliefs prevent a district employee from referring to a student by pronouns that the employee believes diverge from the student’s assigned-at-birth sex, the Virginia constitution’s free-exercise guarantees may provide protection.

According to the Virginia Supreme Court in Vlaming v. West Point School Board, No. 211061 (Va. 12/14/23), a teacher alleged viable claims against his district employer when he was terminated after refusing to use masculine pronouns to refer to a student who began identifying as a boy.

The high school French teacher was terminated by his Virginia district for, allegedly, refusing to the use “government-mandated” pronouns when referring to the student. The termination occurred after the “biologically female student,” expressed an intention to transition to a male identity and the teacher determined that referring to the student by masculine pronouns would violate his conscience.

The teacher used the student’s new preferred names in both French and English and avoided using third-person pronouns to refer to the student or his classmates. Following several meetings and an incident in which the teacher spontaneously used “her” to refer to the student, the teacher was terminated for violating district prohibitions on discrimination and harassment based on gender identity.

Following his termination, the teacher sued, claiming that the district violated his constitutional rights. The court dismissed his claims, concluding that the teacher did not state a legally viable cause of action, so the teacher appealed to the Virginia Supreme Court.

Virginia’s constitution declares that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.”

In overruling the lower court’s decision, the Virginia Supreme Court held that “the constitutional right to free exercise of religion is among the ‘natural and unalienable rights of mankind.’” As such, the court found that the teacher alleged a legally viable claim under Virginia’s constitution.

“The First Amendment’s free-exercise right ‘protects not only the right to harbor religious beliefs inwardly and secretly,’” the court wrote. “‘It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance of (or abstention from) physical acts.”’”

Oregon district’s ambiguity on English-learner forms raises discrimination concerns with OCR

While a district may provide services for English learners at a particular location, it may not, even if unintentionally, lead parents or legal guardians to believe that the only way an EL student will receive those services is by attending school at the particular location.

As an Oregon district learned in Letter to Curtis, No. 10231213 (OCR 08/24/23), ambiguity on materials allowing parents to opt-out of location-specific services while letting them know they are still eligible for EL-directed programs at the school where their students attend could amount to discrimination on the basis of national origin.

The district operated an English language development magnet program for elementary EL students at a school. District data showed that for the previous three school years, all elementary-age EL students in the district attended the magnet program at the school. Records also showed that 77% of the district’s EL elementary students resided in the attendance area for the program-hosting school, while 23% lived in the attendance area for another school, and none lived in the attendance zones for the district’s two other elementary schools.

In the complaint filed with OCR, the complainant alleged that the district required a parent or legal guardian to opt out of all EL services if the parent or guardian wanted their EL student to attend an elementary school other than the one at which the English language magnate program was housed.

Under Title VI regulations, districts that receive federal financial assistance may not, on the ground of national origin, exclude persons from participation in their programs, deny them a service or benefit of their programs, or provide a service or benefit that is different or provided in a different manner from that provided to others.

In its investigation, OCR found that the form the district provided to parents and guardians who wished to opt their EL students out of the magnet program at the hosting school was “ambiguous and could be construed by the parent or legal guardian as waiving all EL services.”

OCR also found that the district did not have a written policy or procedure describing how parents are informed of their options, including how a parent may have their student opt-out of all particular services, and how EL students would still receive some level of services if they did not attend the magnet program at the hosting school.

“Based on the foregoing, OCR has a concern that the District may not inform parents and legal guardians of their right to have their EL student opt-out of the [program], but still receive some EL services at another elementary school they are attending,” OCR attorney Lauren Boothe wrote.

As a result, OCR required the district to review and revise its policy and forms relating to elementary EL students option out of the program; provide notice to staff, parents, and legal guardians of the revisions; and train staff on the revised policies.

Frank Ferreri
Frank Ferreri
Frank Ferreri has written about education law and policy for over 13 years. His topics of focus have included special education, disability law, Title IX, the Elementary and Secondary Education Act, and related subjects. Frank holds a master's degree from the University of South Florida and a juris doctor degree from the University of Florida Levin College of Law.

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