- Federal special education law defines "educational performance" broadly to include social, behavioral, and emotional domains.
- Parents and professionals can advocate for services by providing clear examples of social and emotional impact in the classroom.
- Advocating for the right testing tools to assess your child, and appropriate and realistic goals for progress, are keys to success.
Many parents have been in the unfortunate position of having participated in multiple meetings with their public school district, only to be told their child is not eligible for special education services. This can be disheartening for many who had appropriate expectations that their schools would provide a free appropriate public education (FAPE) to their child with a disability.
Why do some children with clearly defined disabilities not receive specialized support from the public school system? Michael Eig and Paula Rosenstock, two special education attorneys in the Washington, D.C. metro area, have seen this issue arise in various ways. A child with severe anxiety who has not spoken to a teacher or peer for many years in school is denied special education services. An adolescent with high-functioning autism spectrum disorder who cannot carry on a reciprocal conversation is also denied services, as is a gifted child with an emotional disability who displays aggression and disruptive behavior in the classroom. In many situations in which a school denies the need for formalized support, the child maintains good grades and solid standardized test scores despite apparent deficits in social and emotional functioning and life skills.
Defining “Educational Impact”
In these cases, the disagreement between parents, professionals, and the school often revolves around whether there is an “educational impact” on the child. A significant criterion for establishing the need for special education services, or what is commonly referred to as an Individualized Education Program (IEP), is the determination that the identified disability adversely affects educational performance.
It is important for parents and professionals to understand that federal special education law distinguishes between “educational performance” and “academic performance” and broadly defines educational performance. Schools must consider how a child’s emotional functioning, health, or other conditions adversely affect his non-academic performance in social, behavioral, and other domains, in addition to grades and standardized test scores.
"When we talk about educational impact, it’s not just that traditional reading, writing, and math,” Rosenstock says. "It is more than that. It is social-emotional functioning. It is the ability to communicate. And so even when we do have stronger report card grades, the argument then becomes well what about the social-emotional skills. What about the ability to have an interaction with a peer or communicate with a teacher."
In this context, courts have generally supported these regulations and have required that schools consider social, emotional, and communicative needs. And two landmark Supreme Court decisions (Rowley and Endrew F) have warned that grades are only one relevant measure of progress and do not automatically imply that a child is receiving a free appropriate public education.
Eig says that if it is an appropriate education, we expect to see progress in both academics and functioning: “And functioning means behavior. Functioning means socialization. You can’t have IEPs for kids that talk about peer interactions and taking risks and executive functioning… and be able to argue that the only impact we are looking for is did he get an A, B, or C and did his standardized test scores go up. No. Education is supposed to be much, much more broadly defined, and the Supreme Court recognized that."
School Level Response
In practice, however, schools vary in their understanding of the interpretation and meaning behind these laws. Traditionally, schools have focused on educational impact as assessed through grades and scores from standardized tests, as well as other academic indicators such as assignment completion and school attendance.
This can pose a significant obstacle for many students with disabilities, including children with anxiety disorders such as selective mutism (SM), who struggle to speak in school. These children often receive accommodations, such as alternative methods for demonstrating learning and progress (e.g., the use of gestures and written responses). As a result, the school may perceive there is no educational impact because the child has good grades, despite the child being graded without the expectation to demonstrate or make progress in fundamental communication skills.
“Schools love to look at things like grades and data,” says Rosenstock. Regarding children with SM, she says, “they are accommodating around it, and so they are not opening up their minds to that this [speech] is a life skill… there are ways to work on this.”
To be sure, grades, test scores, and school attendance are critical and important measures of educational progress. But this does not justify neglecting social and emotional impairment. Using grades and standardized test scores as the sole indicator of adverse educational impact does a massive disservice to children with social and emotional impairment in the classroom.
Without their needs met, these children may make minimal to no progress on these critical life skills during essential developmental years. Falling further behind in these life skills sets them up for significant disadvantage when they attempt to meet societal expectations as adults, including effective functioning in life, family, and career.
How can we support school systems in understanding and preserving the broad view of the educational impact that both the courts and law require? Here are four key strategies to help parents and professionals advocate for the child/client in special education screening and determination meetings:
1. Educate the team on the disability and evidence of educational impact. Parents and professionals should highlight all evidence of educational impact and remind the school that these factors must be considered. Rosenstock recommends bringing a specialist to the meeting who understands your child’s disorder and can explain to the school how the disorder impacts not just academic functioning but social and emotional functioning as well.
Expect that there may be disagreements around this issue, and be prepared to advocate for your child. For example, a school may argue there is no impact on the child’s relationships at school because a child will communicate through written responses.
In this situation, a reasonable question might be: is that relationship effective and appropriate given developmental expectations for a child that age? The inability to verbally answer or ask a question, carry on a conversation, advocate for needs, or engage in group work, are all behavioral indicators of impairment in the development of age-appropriate relationships and oral communication skills.
2. Educate the team on appropriate goals and reasonable expectations for progress. Rosenstock also pointed out that schools may resist an IEP because of a lack of knowledge regarding how to make progress on the behavior or impairment in question. For example, the IEP team may not know what goals would be relevant to target given the child’s condition or what to expect regarding outcomes.
Mental health specialists can be of tremendous service in educating the school on how they can make progress given the child’s specific disability, including writing appropriate and feasible goals and determining time-related expectations for improvement.
3. Advocate for evaluation tools that effectively assess non-academic performance. IDEA regulations instruct districts to “use a variety of assessment tools and strategies to gather functional, developmental, and academic information.” For example, behavioral rating scales and classroom observations are essential sources of information that can uncover areas of social and emotional need.
If the IEP team is only considering certain tests, ask them to explain their reasoning. If a suspected area of need is not being assessed, be prepared to request testing that is specific to that area of concern.
4. Know your rights and the special education process. IDEA Regulations explain that each state must ensure a free appropriate public education (FAPE) is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade. This includes addressing life skills.
Understand the law and your rights. You have the right to appeal a decision (due process rights). You have the right to bring a special education advocate, attorney, or mental health specialist to the meeting. If you disagree with the school’s evaluation, you have the right to ask the school system to pay for an independent evaluation. Your awareness of the law will help you be more persuasive in your approach.