BEST INTEREST OF THE CHILD UNDER IDEA (Individuals with Disability and Education Act)

It is a timeless and eternal verity that we all cherish our children and seek to ensure their overall well-being in every facet of their lives and stage of their development. No sacrifice is too great to achieve that paramount aim. In the context of family law and the dissolution of marriage where children are involved, the summum bonum of all such cases is to arrive at a resolution that serves the best interest of the child, as that legal lodestar is defined in Tex. Fam. Code § 153.002: “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”1

This legal standard is more poignant and urgent when children with disabilities are seeking educational opportunities under the federally mandated law of the Individuals with Disabilities and Education Act (“IDEA”)2. This article will examine the Texas Court's opinions related to the overarching themes of this broad, expansive, comprehensive and "subjectively inclined to interpretation" law. The central themes upon which the Texas courts have opined, range from what constitutes a Free Appropriate Public Education, (“FAPE”), interpretations of a Least Restrictive Environment (“LRE”)3, Due Process Rights of Parents of children with disabilities, Judicial deference to school boards and educators when crafting Individualized Educational Plans or Programs (“IEPs”) for students who have been assessed as having learning disabilities, and placement issues. Any detailed explanation into other IDEA related themes is beyond the scope of this article.

HISTORY:

Prior to 1975, nationally, there was scant mention by the courts, regarding children with disabilities and their right to seek a public education. Pre-1975, educators would make unilateral decisions often without any input or consultation with the parents of children suspected of learning and other disabilities in determining the manner in which children with disabilities would best be served educationally.

Fortunately, in 1975, Congress passed the Individuals with Disabilities and Education Act4.

Influenced by the language of the landmark decision of Brown v. Board of Education5, the

momentous words of the Supreme Court would serve as the backdrop to the passage of IDEA: "Education is perhaps the most important function of state and local governments."6 The unanimous Supreme Court further stated that: "in these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the State has undertaken to provide it, is a right that must be made available in equal terms."7 Notably, this language has been cited in innumerable cases nationwide, including cases involving students with disabilities demanding equal educational opportunities. Post enactment and passage of IDEA, every state now had to abide by IDEA's mandate to evaluate, test, and place any suspected students with disabilities in educational settings that provided a FAPE in a LRE. Moreover, post determination that a student possessed learning disabilities, an IEP had to be established by the school board and the child’s educators, in collaboration with the child's

parents and other professionals, and in order to serve the best interest of the student based on his or her specific educational needs. Under the IDEA“[T]he schoolchild and his or her parents are entitled to be involved in the process of developing an IEP. 20 U.S.C. § 1401(a)(20).8 The IEP is required to be reviewed at least annually. 20 U.S.C. § 1414(a)(5).”9 Additionally, 20 U.S.C.S. § 1414, specifically mandates that the Individualized Education Plan (IEP) be created by an “individualized education program team” comprised of parents, educators, and disability professionals .10

Congress, in enacting IDEA, was unequivocal in its purport that collaboration between the parents of the child with disabilities and various school officials was an indispensably pivotal and crucial element in crafting an IEP that would best serve his or her specific needs as well as deliver optimal results.11 As broad and complex the law of IDEA may be, nowhere is this collaborative process more compelling or in demand than the crafting of an IEP that specifically addresses the learning needs of a child with disabilities and how to successfully approach those unique learning challenges. The crafting of the IEP must ensure in its substance, content, and application that a FAPE in a LRE has been accomplished. In this regard, the author contends that it is an unforgiving, unwelcome and harsh reality that Congress’ generalizations of the terms "appropriate" and "least restrictive" lends

itself to multiple, subjective, and disparate interpretations which frequently give rise to differing opinions and conflict between the educators and the parents of children with disabilities. Indisputably, the crafting of the proper IEP for children with disabilities is paramount and potentially outcome determinative in whether the student's IEP will confer sufficient educational benefit to allow him or her to make academic and educational progress. For example, in Teague Independent School District v. Todd D., 999 F.2d 127 (5th Cir. 1993), the 5th Circuit was tasked with opining the sufficiency of an IEP which was challenged as to its merits by the parents of the child in question. The Court held that the IEP was sufficiently substantive and the student "received significant benefit from his special education program."12 The 5th Circuit explained the underlying needs of children with disabilities; (II) is knowledgeable about the general education curriculum; and (III) is knowledgeable about the availability of resources of the local educational agency; (v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (vi); (vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and (vii) whenever appropriate, the child with a disability.”

Indisputably, the crafting of the proper IEP for children with disabilities is paramount and potentially outcome determinative in whether the student's IEP will confer sufficient educational benefit to allow him or her to make academic and educational progress.

For example, in Teague Independent School District v. Todd D., 999 F.2d 127 (5th Cir. 1993), the 5th Circuit was tasked with opining the sufficiency of an IEP which was challenged as to its merits by the parents of the child in question. The Court held that the IEP was sufficiently substantive and the student "received significant benefit from his special education program."12 The 5th Circuit explained the underlying rationale for IDEA, reflecting the Best Interest of the Child as it is also reflected within Brown v. Board of Education:

“IDEA was intended to redress a long history of discrimination by public schools against disabled children. Isolation of a schoolchild or reduction of the quality or amount of a child's educational programming solely for the convenience of staff violates IDEA.” See, e.g. Rowley, 458 U.S. at 179, 189, 102 S. Ct. at 3037, 3042 (Congress' intent, in passing EHA, was to prohibit schools which receive federal funds from discriminating against disabled children). Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 129 n.4 (5th Cir. 1993)

To reiterate, the Texas Courts, in evaluating IDEA-related cases, have applied the "Best Interest of the Child" legal standard in delivering its opinions.13 In Christopher M. v. Corpus Christi Independent School District, 933 F.2d 1285 (5th Cir.1991), the Court was tasked to opine whether a shortened school day due to the nature of the child’s disability was a violation of the FAPE portion of IDEA. The Court in applying the "Best Interest of the Child" legal barometer, stated: "[T]he board was not required to provide a full day of educational programming for the student with multiple disabilities whose educational programming consisted of basic sensory stimulation, since it was not in his best interest."Christopher M. v. Corpus Christi Independent School District, 933 F.2d 1285 (5th Cir.1991).

Further, in discussing the original mandate of EHA the precursor to IDEA, the Court reiterated that it was instituted in order:

“[t]o create an educational program tailored to the unique needs of each child. The drafters of EHA were guided by the principle that "each child must receive access to a free public program of education and training appropriate to his learning capabilities.’ Rowley imposes an obligation on the states that the IEP must be "reasonably calculated to enable the child to receive educational benefits...(And) In reviewing the appropriateness of an IEP, (the) court has previously considered these very factors: ‘our analysis is an individualized, fact-specific inquiry that requires us to examine carefully the nature and severity of the child's handicapping condition, his needs and abilities, and the school's response to the child's needs."

In sum, despite Congresses intent to serve the educational needs of children who qualify for special education services, this area of the law, due to its broad mandates, continues to be fertile ground for litigation, which arguably does not serve the best interest of the child due to its emotionally charged, protracted, combustible and costly process.

Ultimately, it is this author's opinion that in the context of meeting the educational needs of children with disabilities, it is imperative that parents and educators set aside any animus, pre-conditioned biases they may harbor and work together in a spirit of compromise, compassion, equanimity, and reasonableness with the singular and ennobling aim of serving the best interest of the child.

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