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Natick First Circuit Success

FIRST CIRCUIT RULES IN FAVOR OF NATICK PUBLIC SCHOOLS’ ACCESS PROGRAM

On May 22, 2019, the First Circuit Court of Appeals, upheld the determination of the Bureau of Special Education Appeals (“BSEA”) and the District Court that the Natick Public Schools’ (“District” or “Natick”) ACCESS program, a substantially separate program, for students with cognitive and communication deficits, was the least restrictive program that could provide a free and appropriate public education (“FAPE”) to the student, C.D.  The ACCESS program offers a significantly modified curriculum, two to three grades below grade level.  Murphy, Hesse, Toomey & Lehane, a firm that represents over one hundred school districts across Massachusetts, represented Natick in the litigation.

The Parents argued that pursuant to the 2017 Supreme Court decision, Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, in determining whether a student was offered FAPE, the BSEA or a court must separately consider whether the IEP is “ambitious,” or contains “challenging goals” from whether the IEP was individually designed and reasonably calculated to offer a meaningful educational benefit.  The First Circuit disagreed, stating that “Endrew F. used terms like ‘demanding,’ ‘challenging,’ and ‘ambitious’ to define ‘progress appropriate in light of the child’s circumstances,’ not to announce a separate dimension of the FAPE requirement.”  Given the student’s diagnosed intellectual disability and serious language deficits, she could be expected to make meaningful progress in the ACCESS program, not in the general education classroom that the Parents desired.

The Parents also argued that the IEPs violated the requirement to place C.D. in the least restrictive environment and asked the First Circuit to adopt a multi-step test that the Second, Third, Fifth, and Tenth Circuits have adopted.  The First Circuit, joined the Seventh Circuit, and refused as the Individuals with Disabilities Education Act provided an adequate framework.  The First Circuit explained that the test from the other circuits took away the respect and deference owed to school officials and the BSEA.

Finally, the Parents argued that Natick erred in not conducting a formal transition assessment when the student turned fourteen.  The First Circuit disagreed, explaining “there is no restriction on the means of gathering information about a student’s interests or abilities that may be relevant to the development of postsecondary transition goals.”  The transition planning was based on extensive educational and psychological evaluations.  Additionally, the IEP outlined educational goals and services that would have helped the student make progress towards her goal of graduating and provided for vocational services.

 

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Massachusetts Legislature Passes Post-Janus Bill Over Governor’s Veto

On September 19th, the Massachusetts Legislature overwhelmingly overrode Governor Charlie Baker’s veto of a union-friendly law. The bill was passed in response to the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME which relieved bargaining unit employees who were not members of the union of the obligation to pay dues to public sector unions. The Massachusetts bill allows unions to charge non-members certain fees, relieves unions of some of their obligations to those non-union employees, and expands unions’ access to public employees.

 

 

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