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The Ironclad IEP


Or is it? Special education law blogger Jim Gerl posted today about a September 2007 case decided in the U.S. Court of Appeals for the Ninth Circuit that says that districts do not violate the IDEA unless they have "materially failed" to implement a student's individualized education program.

(The Ninth Circuit covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.)

The case involves a middle school student, Christopher Van Duyn, with severe autism. He attended school in the 2,000-student Baker, Ore., district at the time the case was brought, and his parents complained that the school did not implement his behavioral management plan and did not give agreed-upon progress reports, among other issues. Part of the problem was that the middle school did not adhere to the IEP in the same way that the student's elementary school did, the decision said.

Judge Raymond C. Fisher, writing for the majority, wrote:

Van Duyn brings to us a detailed list of complaints about the District’s variances from his IEP, arguing that the [administrative law judge] and district court were much too forgiving of the District’s failures to provide him the special instructional and support services agreed to in the IEP. Accordingly, we must decide how much leeway a school district has in implementing an IEP as it translates the plan’s provisions into action at school and in the classroom.

We hold that when a school district does not perform exactly as called for by the IEP, the district does not violate the IDEA unless it is shown to have materially failed to implement the child’s IEP. A material failure occurs when there is more than a minor discrepancy between the services provided to a disabled child and those required by the IEP.

The late Warren J. Ferguson, writing in dissent, said that the "material" language devised by the court is "unworkably vague."

Instead of trying to understand how material a failure is, we must assume that the IEP team knew what it was doing when it settled on a specific educational service. Each IEP team chooses specific services with specific quantities and durations for the purpose of providing the student with [a free, appropriate public education.] If the IEP Team had thought another, lesser service would be sufficient to provide FAPE, it would have included that service in the IEP.

That makes sense to me. My first question is, who defines "minor discrepancy"? It seems to me that if an item is in an IEP, it is important enough to be implemented. This decision seems to provide an opening for more lawsuits. I look forward to seeing what else Gerl has to write about this.


I like what the late Judge Warren J. Ferguson wrote about the integrity of the decisions made by the IEP team standing. Behavioral IEP's can be particularly problematic if not explicitly defined. This requires not only a knowledgable IEP team, but also a team willing to allot the necessary time to explicitly define. In my experience, it also often requires going back to the table to check in and monitor progress. Annual meetings are seldom enough. Transition meetings, as apparently in this case, especially require particular forethought, communication, and progress monitoring.

It looks like it will be up to the court system to define "minor discrepancy" on a case by case basis (hardly an efficient system). In this case failing to implement the behavior plan or provide access to grade level materials was deemed "minor."

Ah, deciding on a case-by-case basis...that'll work. :-)

Call me crazy, but it seems simple enough to say if it's important enough to be in an IEP, then it's important enough to be implemented. Do any school folks who may be reading have a different POV on this?

"New law" is never settled, but if the high level judges are stumped by the question, I'd hate to be a teacher or building principal these days!

Good post Christina!

I do agree with Christina. As a Jr. High teacher for students with Autism, the campus and expectations are different than that on an elementary campus. Has anyone forgotten that not only is the IEP team present at the meeting but the parents/guardians too. If there is any discrepancies or questions regarding the goals and objectives or the behaviorial issues, this is a good time for the parents to speak up and ask questions! Don't forget that written progress reports and class work are sent home on a regular basis
Angeles - Special Ed - Autism - Jr. High


I think this is not so much an issue of parents not speaking up, but of teachers signing off on IEPs that they don't intend to follow. Because I am a parent who asks questions and has taken a whole lot of time to learn the rules, we generally have some pretty high level folks at our IEP meetings (just saves time--otherwise people will be telling me that they aren't allowed to do things and it will get escalated to folks at the top anyway). But I do find that teachers are not very likely, in this context, to say that something is unfeasible. They just sit and nod, the IEP is written, placed in the drawer and life goes on. The written progress reports, although required, are not publicized to parents as a requirement, or institutionalized in any way. So, basically, I get them if I ask for them (each and every grading period). Then I get a by gosh and by golly teacher estimate of whether the goals are being met (or are likely to be met). If I ask questions about any that are not being met, of course you know why--the student is not doing what they are supposed to. I can ask about whether the required services/supports are being implemented (oops, I'm sorry, I have to go back to my class, now), I can call an IEP meeting (which usually takes about a month to get on the calendar--and guess what, things are always much better by then--or they have gotten so much worse that we are looking at major behavioral ramifications in addition to the initial problem), I can call a lawyer. Of course, all this presupposes that I was able to get goals written in measurable terms with actual measures specified (as opposed to "teacher observation") in the first place (like, how many revisions do they offer before I give up, or until they just put an IEP in place without my signature).

I know that this is not always the case. I sometimes talk to people in the field who not only know what I am talking about, but also are engaged in fighting the same fights from within. This latest court decision just doesn't help any.

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