Kass v. Western Dubuque Community School District, No. C21-1013-LTS-KEM, 2022 WL 16773360, 122 LRP 44304 (N.D. Iowa Nov. 3, 2022), appeal filed, No. 22-3506 (8th Cir. Dec. 5, 2022), involved a 20-year-old student with severely impaired vision, moderate intellectual disability, epilepsy, autism spectrum disorder, ADHD, and a brain injury. The case touched on the student’s IEPs for the 2018-2019, 2019-2020 and 2020-2021 school years. The plaintiffs challenged the reading goals and program for the first two school years.  For the 2020-21 IEP, the parents asserted as an alleged procedural violation, that the school district drafted the IEP before the IEP team received results of pending evaluations, as well as a denial of FAPE from lack of adequate transition activities and a reduction in the length of the school day. An ALJ ruled against the parents after a due process hearing, and the parents appealed to the district court.

Before getting to the merits, the district court considered an objection to a determination of the magistrate judge to which the case had been referred denying supplementation of the record with the ALJ’s resume to show that the ALJ was a lawyer rather than an educator. The plaintiffs said this related to the deference owed the ALJ’s decision. The court rejected that objection and affirmed the denial of the supplementation, noting that although hearing officers may have been educators at the time the duty of giving due weight to due process decisions was established, the ALJ met the minimum qualifications and the language from Board of Education v. Rowley, 458 U.S. 176, 206 (1982), that the plaintiffs relied on, did not support their position.

As to the reading instruction, the court quoted the ALJ’s decision stating that a program other than the ones used by the district may have been a better choice (Orton-Gillingham or Barton, rather than PCI and Next Step), but the evidence indicated that PCI and Next Step were appropriate in light of the student’s needs and allowed him to make some progress. The court said the ALJ did not over-defer to the school district. The court said the chosen programs comported with the middle path between the parents’ and the district’s positions about FAPE in Endrew F. v. Douglas County School District RE-1, 580 U.S. 386, 137 S. Ct. at 995 (2017). The court stressed that the student met goals established in his IEPs. The court also said that the student’s epilepsy made it difficult for him to retain information so as to make consistent progress.

On the procedural violation point, the court noted that the IEP team held five meetings in the spring of 2020, and that the student’s reevaluation was discussed at the second-to-last, but the team agreed it was necessary to conduct a functional behavior assessment, and concluded at the last meeting that still more information was needed. The district then sent out a draft IEP and offered to meet if the parents desired. The parents instead invoked due process and the stay-put provision came into effect. The court said the key information missing was the FBA, which could not be completed until fall when the student was back in school. The court found no procedural violation under the circumstances, at least none that resulted in a FAPE denial.

On transition, the court agreed with the ALJ that the IEP’s provision for supported employment experience and focus in instruction on practical skills was adequate for the student. The IEP goals as to transition were said to be adequate to meet his post-secondary needs as to living, learning, and working. The provision of less than a typical-length school day was justified, said the ALJ and the court, based on the fact that the student already had enough credits to meet graduation requirements and a half-day program of community work experience and in-school instruction was sufficient to meet his unique needs.

The court also dismissed the plaintiffs’ claims that the defendants violated Section 504 and the ADA, reasoning that claims under those statutes were subject to a more demanding standard than the IDEA claims and were intertwined with the rejected IDEA claims.

The court’s opinion is noteworthy for the level of detail it provides in evaluating the student’s program. It is one of the few decisions to consider whether the ALJ’s specific background in law rather than education ought to matter with regard to the deference the ALJ’s decision merits, and it provides thorough discussion of reading instruction options as well as transition services for a student with significant disabilities.