A recent case from the Eleventh Circuit takes up the recurring question of when the failure to implement an IEP violates the Individuals with Disabilities Education Act and entitles parents to a remedy for their child. L.J. v. School Board of Broward County, 927 F.3d 1203, 119 LRP 24771 (11th Cir. June 26, 2019), concludes that only a material failure of implementation will carry the day for the parents; the court found no material failure in the case before it. The case involved the stay-put IEP of a now-26-year-old with autism and a speech-language impairment. The student’s third-grade IEP remained in place for several years during elementary school, but when the student was to enter middle school, the defendant proposed a new IEP. The student exhibited significant behavior problems in middle school, and frequently refused to attend. The parent home-schooled the student for most of sixth grade, then filed a due process hearing request challenging the proposed middle school IEP. She invoked the IDEA stay-put provision to continue operation of the elementary school IEP. The case involved the school system’s alleged failure to implement the elementary school IEP in the student’s seventh grade year, during which the student missed over 100 school days on account of illness and refusal to attend, and in the first part of eighth grade before the parent withdrew him from public school. The ALJ determined that there was an actionable failure to implement the stay-put IEP. The school board appealed to district court, and mother also sued, asking for enforcement of the decision and additional relief. The district court reversed the ALJ decision and ruled in favor of the school board.
The court of appeals affirmed. The court distinguished claims alleging failure to implement an IEP from those alleging that the IEP as written fails to offer appropriate education, what it termed “content” claims that should be evaluated under the standards of Board of Education v. Rowley, 458 U.S. 176 (1982) and Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). It said that for cases alleging failure to implement an IEP, “the plaintiff must prove more than a minor or technical gap between the plan and reality; de minimis shortfalls are not enough. A material implementation failure occurs only when a school has failed to implement substantial or significant provisions of a child’s IEP.” L.J., 927 F.3d at 1211. The court rejected what it called a perfect-implementation requirement, saying that the language of 20 U.S.C. § 1401(9), requiring education “in conformity with” the IEP does not require perfect adherence, but rather general agreement or congruence, and further reasoning that an IEP is a plan rather than a contract. It noted that a case from the Ninth Circuit, Van Duyn v. Baker School District, 502 F.3d 811 (9th Cir. 2007), proceeded from the same arguments to a similar conclusion. The fact that the stay-put IEP in a case such as L.J. may become impossible to implement fully as the child and site of the education change over the years further supported a flexible approach.
The court offered guidance on what constitutes material failure, saying the emphasis should be on the proportion of services provided in light of the importance of the relevant services; the student’s actual progress or lack of it (though the court said that would not be dispositive); the context of the IEP’s implementation, such as the implementation of an elementary school IEP in middle school; and the IEP’s overall goals. The court cautioned, “This is not to say that a school may unilaterally reject or revise a child’s stay-put IEP—that would defang the stay-put requirement entirely.” L.J., 927 F.3d at 1215.
The court’s application of the standard led to a finding that there was no material failure to implement in the case before it. It stated that many failings identified by the ALJ either lacked support in evidence or were not connected to the stay-put IEP. The court deemed shortfalls in speech and occupational therapy hours to be relatively minor, and said that some failures identified by the parent were simple disagreements about how to provide IEP-required services. Moreover, said the court, many services that the student missed were due to the failure to attend school or other behavior problems. The court adopted the view of the district court that the attendance and behavior problems did not result from failure to implement the IEP, though the court emphasized that “a child’s absence from school neither relieves the school of its duties under the IDEA nor absolves the school from liability when it fails to satisfy those duties. Where a child’s school refusal is attributable to the school’s own failures to implement an IEP, the school cannot rely on that refusal as a hall pass to escape responsibility or as a license to give up.” Id. at 1219.
Judge Jordan filed an opinion concurring in part and dissenting in part. The judge contended that a case as unusual as this one is not an ideal vehicle for broad pronouncements about handling challenges to implementation of an IEP, and said it would make more sense to let the material-failure standard to develop on a case by case basis. But the judge noted that cases from the Fifth, Eighth, Ninth, and Fourth Circuits employed a materiality standard of one type or another, and said the parent in this case was not arguing for perfect compliance. The judge preferred the Van Duyn language: “A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child’s IEP.” Van Duyn, 502 F.3d at 822. This language “appropriately tilts slightly in favor of the child.” L.J., 927 F.3d at 1221 (concurring and dissenting opinion). On the merits, Judge Jordan concluded that the defendant materially failed to implement the IEP, even considering the difficulties that implementation presented. He cited the example of the failure to provide lesson plans seven days in advance, as specifically required by the IEP, and noted that during a six-week period, the defendant provided 25 out of 30 plans late, which deprived the parent of enough time to review the upcoming lessons and go over them with the student.
The takeaway for impartial hearing officers is that in cases challenging IEP implementation, requiring a material failure is supported by the consensus of the case law. In fact, in an unpublished decision from 2010, the Second Circuit relied on Van Duyn and other cases to support a material-failure standard. A.P. v. Woodstock Bd. of Educ., 370 F. App’x 202 (2d Cir. 2010) (L.J. cited A.P. in a footnote, 927 F.3d at 1213 n.6). An IHO may find attractive the analysis of the L.J. majority, which looks to the proportion of services provided (or not provided) and the importance of the services, while considering as well the student’s progress and the practical difficulties of implementing an IEP, at least when the case involves a stay-put IEP designed for a younger version of the student. Even so, it is likely that there will continue to be disputes over what constitutes a material failure.