April 20, 2021- Ask an Attorney

MUST THE RETENTION OF A STUDENT WITH AN IEP BE DECIDED IN AN IEP MEETING?             Franczek P.C.: Dana Fattore Crumley  & Kendra Yoch

Several laws and considerations come into play when considering whether a student with an IEP should be promoted or retained.

The Illinois School Code: The Illinois School Code requires each board to determine its promotion criteria. The statute also provides that students must not be promoted based on age or other social reasons unrelated to academic performance. Instead, promotion must be based on successful completion of the curriculum, attendance, performance on State assessments, and other criteria established by the board.

IDEA: The Office of Special Education Programs (OSEP) has advised that a decision to retain or promote a student is not synonymous with the IDEA educational placement decision. While grade-level assignment and educational placement are separate determinations, the least restrictive environment (LRE) obligation does include the requirement not to remove a student from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum.

Section 504: Section 504 prohibits discrimination on the basis of disability and requires that districts provide students with disabilities an equal opportunity to participate in or benefit from the educational program.

So, what’s the answer? Look first to your board’s policy and any procedures related to promotion and retention. In most districts, this is an administrative decision rather than an IEP team decision. Some districts, however, do have IEP teams determine if a student needs any modifications to the district’s promotion criteria. While grade placement and educational placement are separate concepts, they can impact each other, so even if the retention decision is made by an administrator, consultation with the IEP team is advisable. A retention decision made without consideration of a student’s free and appropriate public education (FAPE) and LRE could open the door to a due process claim.

Given the LRE requirements, IEP teams should seek to provide students with the services and accommodations needed to progress from grade to grade with age-appropriate peers. Proposing to retain a student with an IEP can send a message that the student’s programming has not been appropriate and that the student has not made expected progress. Teams and administrators should also consider whether the student is best served by repeating content or by receiving different or more intensive supports and interventions. And, looking through the Section 504 lens, whether retaining the student could be considered discriminatory.

Given the challenges of the last year, some parents may be advocating for their students to repeat the grade, feeling that remote or hybrid instruction was not effective for their student. Consider these requests individually (automatic or one-size-fits-all responses spell trouble in special education), looking at the student’s progress over the last year as well as examining the appropriateness of the goals, services, and accommodations in the student’s IEP given their current needs. In addition to considering the pros and cons of retention, think through other supports that might meet the student’s needs, such as ESY, changed services or accommodations, or compensatory or “recovery” services.   While a “do over” may seem like a simple solution, it is not always the best one for a student with an IEP, and school staff members should consider the FAPE and LRE implications before making retention decisions.

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