For the last five school years, the Virginia Department of Education (VDOE) has found your school division in noncompliance. The VDOE is known for its failure to ensure noncompliance is corrected, which means the noncompliance continues because 1) no one is holding the school division accountable; 2) school division staff aren’t properly trained; 3) carelessness; and 4) some division staff would rather fight you than remain in compliance.
The Office of Civil Rights just launched an investigation into your school division.
Add to the above that some teachers from your school division don’t tell the truth during due process hearings—and, although you’ve provided the school division proof of this, the school division continues to do nothing.
Should deference be given to such educators?
As a parent, I know that I don’t wouldn’t want to give deference to such educators. If they continue on the same noncompliant tract over and over, deference is not owed.
The school division’s lawyers will likely say “yes”. (See: “The Things School Division Lawyers Say: Deference to Educators“)
Due process hearing officers might split, with one saying “no”, while another says “yes”. (See: “The Things Hearing Officers Say: Deference to Educators“)
Let’s go to a Supreme Court to break the tie. The following is an excerpt from the opinion Chief Justice Roberts wrote, following the hearing for Endrew F. vs Douglas County School. Although Chief Justice Roberts did, indeed, confirm the principle of deference to educators, he included a caveat, too: “deference is based on the application of expertise and the exercise of judgment by school authorities.” Deference is not something to be given just for the sake of giving it. How the educators did or didn’t apply their expertise and how they exercised their judgement must be weigh when determining whether deference is due.
When all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to “sitting idly . . . awaiting the time when they were old enough to ‘drop out.’” Rowley, 458 U. S., at 179 (some internal quotation marks omitted). The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. . . .
We will not attempt to elaborate on what “appropriate” progress will look like from case to case. It is in the nature of the Act and the standard we adopt to resist such an effort: The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. This absence of a bright-line rule, however, should not be mistaken for “an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” Rowley, 458 U. S., at 206.
At the same time, deference is based on the application of expertise and the exercise of judgment by school authorities. The Act vests these officials with responsibility for decisions of critical importance to the life of a disabled child. The nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue. See §§1414, 1415; id., at 208–209. By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.
Yes, Rowley is a gift that just keeps giving, even today. We are still working on the book – and I’m deep in the Federal Rules of Civll Procedure, with a bypass into Rowley.
Thank you for your comment, Pam. I’m looking forward to the release of the new book (as I’m sure are many others). ~Callie