Students’ good grades tilt IEP lawsuit in favor of district

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.

While a student’s getting good grades is not the sole determinant of whether he has received free appropriate public education through an adequate IEP, it can be a sign that the district is doing its part to ensure that the student makes meaningful progress.

Although the parents of a student with ADHD in Zachary J. v. Colonia School District, No. 22-1509 (3d Cir. 01/31/24), an elementary school student with ADHD believed that his Pennsylvania district should have done more to incorporate an IEE into the IEP, that concern was not enough to raise FAPE challenges.

Before entering the second grade, the student was provided with an IEP that aimed to address his difficulties in focusing and to provide speech and language support. By the time the student finished his fourth-grade year, he met the expectations set in his IEP but still needed assistance to meet the writing goals set by his special education teacher.

The parents filed a due process complaint against the district seeking compensatory education and reimbursement for the payment of a private IEE, arguing that the district failed to provide the student with FAPE. The hearing officer and District Court agreed with the district and ruled against the parents, prompting the parents to appeal to the Third U.S. Circuit Court of Appeals.

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To comply with the IDEA, IEPs do not need to maximize the potential of a student with special needs; instead, IEPs must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential.

In affirming the District Court’s order, the Third Circuit concluded that the district provided the student with FAPE and did not violate the IDEA. In reaching its ruling, the Third Circuit explained:

  • The district considered the student’s IEE, since, at an IEP meeting, the district and parents discussed the IEE’s recommendations, how the district could address some of the concerns, and ways in which other concerns were already being addressed in the IEP.
  • A modified version of the IEP added additional supports.
  • The parents were not denied participation rights and were “intimately involved” in developing the IEP.

The Third Circuit also reasoned that the student’s grades and progress showed that the district provided FAPE.

“There is every indication that by utilizing multiple tools and programs, and by giving [the student] personalized instruction, the [d]istrict was exercising the proper judgment in implementing [the student’s] IEPs,” the court wrote. Thus, the Third Circuit affirmed the District Court’s ruling.

Back-to-back poor performance reviews don’t support New Jersey teachers’ age discrimination claim

While pushing an employee out the door to bring in someone younger could be considered age discrimination, before a claim can be made in court the employee must show that she experienced an adverse employment action.

According to the Third U.S. Circuit Court of Appeals in Goode v. Camden City School District, No. 22-3044 (3d Cir. 01/10/24), in the case of teachers who quit after receiving negative feedback a couple of less-than-stellar performance evaluations are not enough to constitute an adverse action.

The teachers ultimately resigned after receiving their poor performance evaluations two years in a row. They chalked it up to age discrimination because, in their view, once they received two consecutive years of poor performance evaluations, it was only a matter of time before they would have been terminated.

The District Court ruled in the district’s favor, finding that there was not enough evidence to show that the teachers suffered adverse employment actions. According to the court, none of the teachers was dismissed, but instead, they opted to resign due to fears that their poor performance reviews would eventually lead to discharge. The teachers appealed to the Third U.S. Circuit Court of Appeals.

Under New Jersey law, it is illegal to discharge or require retirement from employment or to discriminate on the basis of age. To establish age discrimination, a New Jersey plaintiff must show that she:

  • Was over the age of 40
  • Was qualified for the position held
  • Suffered an adverse employment action
  • Was replaced by someone “sufficiently younger to permit an inference of age discrimination”

What counts as an “adverse employment action” in New Jersey? An adverse employment action is an action by an employer that is serious and tangible enough to alter an employee’s compensation, terms, conditions or privileges of employment. Examples include:

  • Hiring
  • Firing
  • Failing to promote
  • Reassignment with significantly different responsibilities
  • A decision that causes a significant change in benefits

In the Third Circuit’s view, the District Court correctly determined that receiving consecutive poor performance evaluations did not automatically result in termination and that there was no evidence from which a fact finder could conclude that the teachers’ termination was certain.

“No plaintiff was actually dismissed due to the tenure charges, as they all chose to resign rather than face them,” the Third Circuit wrote. “And unfortunately for Plaintiffs, that choice makes all the difference.”

Connecticut student-athletes establish Title IX standing to sue over transgender athletics policy

Many of the headlines surrounding the participation of transgender students in interscholastic athletics have been about the merits of whether such students should be allowed to participate; however, the legal questions involved sometimes concern more mundane matters, such as whether a court can take a case.

For example, in Soule v. Connecticut Association of Schools, Inc., 90 F.4th 34 (2d Cir. 2023), the Second U.S. Circuit Court of Appeals had to decide whether student-athletes could sue under Title IX.

The Soule case arose when non-transgender female student-athletes challenged a 10-year-old Connecticut policy that permitted high school students to participate in school-sponsored athletics consistent with the gender identity established in their school records. These athletes alleged that they each competed in at least one race in which they competed against and lost to transgender runners.

The student-athletes sued, seeking monetary damages from the state athletic conference as well as an injunction that would require the conference to alter certain athletic records by removing times of transgender girls and reranking titles and placements of non-transgender girls.

Before a court can decide a case on the merits, the question of standing must be addressed. The District Court concluded that the student-athletes failed to establish the redressability element of standing for that form of relief. On appeal, the Second Circuit took up the issues of injury in fact and redressability.

Part of establishing standing requires a plaintiff to show injury in fact and that the injury is likely to be redressed by a favorable judicial ruling. Under the redressability element, a plaintiff must show that it is likely as opposed to merely speculative, that the alleged injury will be redressed by a favorable decision.

The Second Circuit explained that the athletes alleged a concrete injury in the form of the denial of “equal athletic opportunities” and loss of publicly recognized titles and placements in track and field competitions in violation of Title IX.

“[The athletes] allege that they were denied equal opportunities in track and field competitions and, as a result, they were also denied the publicly recognized titles and placements that would have flowed from those opportunities,” the Second Circuit wrote. “[The athletes’] claim is not that they might have won placements and titles if [transgender athletes] had not competed, but rather that they certainly would have.”

Additionally, the 2d Circuit found that the alleged injury was particularized because the students were athletes who competed in events and not just bystanders who wanted to challenge the policy because they disagreed with it on principles.

Regarding redressability, the 2d Circuit explained that the athletes met the requirement because:

  1. Their claim was based on a complete violation of a legal right, which was their Title IX right to equal athletic opportunity and related loss of publicly recognized titles and placements so that nominal damages would provide at least some “necessary redress.”
  2. Their request for an injunction could plausibly redress the injury that allegedly resulted in the athletes’ loss of publicly recognized titles and placements in specific races at which they competed against and finished behind transgender athletes.

As a result, the 2d Circuit concluded that the athletes had standing to sue under Title IX.


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