Graduation and Diplomas for Students with Disabilities

Advocacy Center or Persons with Disabilities Position Paper

The Advocacy Center for Persons with Disabilities, Inc. (Advocacy Center) is committed to protecting the lawful rights of students with disabilities pursuant to their entitlement to a free appropriate public education in the most inclusive environment possible. The Florida Department of Education is mandated to create rules, policies and procedures which comply with federal statutory and regulatory law. The Florida Department of Education has the burden to ensure that each student with a disability receives a free appropriate public education in the most integrated setting and, where practicable, is provided with all appropriate supports and services, including assistive services and technology, necessary to achieve full inclusion. Most students with disabilities are fully capable of achieving a regular diploma, if provided with the appropriate accommodations.

The Florida Department of Education is attempting to revise the current rules regarding special diplomas. The piecemeal approach used throughout the promulgation process must be stopped. Rules regarding the appropriateness of individualized educational plans, provisions for assistive technology devices, and services, and testing all necessarily impact one another, as well as any revisions to graduation and special diplomas. The Advocacy Center has repeatedly requested that the Florida Department of Education institute a negotiated rule-making process. At this time, that process has not been invoked for any of the proposed rules. At a minimum, workshops should be held so that advocates, parents, and most importantly, students with disabilities, will be included in the rule-making process.

Currently, special diplomas are codified at Rule 6A-1.0096 F.A.C. wherein it states, in pertinent part, “each school board shall, pursuant to Section 232.247, Florida Statutes, prescribe special requirements for graduation for students who have been identified by the school system as meeting the requirements for specific programs that have performance standards less than the regular diploma.” Rule 6A-10096 also states that the school board shall make provisions for each student to use basic, vocational, and exceptional student education courses for meeting graduation requirements. Rule 6A-6.0312 requires “the school boards to modify basic courses, as necessary, to assure exceptional students the opportunity to meet the graduation requirements for a standard diploma.” Rule 6A-6.0195(3)(f) posits that nothing within the rule delineating graduation requirements for students who are deemed eligible for exceptional education “shall be construed to limit or restrict the right of an exceptional student solely to a Special Diploma for exceptional students.”

Thus, it is clear that these rules place the affirmative burden upon Florida’s Department of Education to provide standards which will proactively seek to implement appropriate educational supports and services, including assistive services and technology, based on the individual needs of the student, in the most integrated setting. The majority of students with disabilities can and will meet the requirements for a regular diploma if they are provided with an appropriate education. Currently, however, many do not. Whether the rationale used by the Florida Department of Education is an agenda to terminate students with disabilities educational services at the age of 21 or to purposefully and unlawfully segregate students based on archaic and discriminatory funding mechanisms, students who are capable of meeting the regular diploma requirements must be given the opportunity to do so. There is no rational basis for many of the students who receive a special diploma when a regular diploma is within their abilities. For example, the current rules provide separate requirements for special diplomas for students who have hearing impairments, speech impairments, or physical impairments. If the student has only one of these disabilities, or even all of these disabilities, there is no reason why that student, with appropriate modifications and assistive services and devices, to their educational services, should not be able to achieve a regular diploma. Therefore, the Advocacy Center advocates that each student with a disability be afforded the opportunity to achieve a regular diploma in compliance with the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 140C0et seq.

The term “graduation” as used in this position paper, means that the student is leaving high school, either by completing his IEP goals or by reaching the age when IDEA services end, but that the student has not completed or met the district or statewide requirements for a high school diploma. The term “diploma” as used in this position paper, means that the identified student has completed the district and statewide requirements for high school graduation and will leave the high school with a diploma. Identified students are entitled to procedural due process protection with regard to high school diplomas and graduation, which includes the requirement that they receive adequate prior notice of the requirements for each. The requirements must be incorporated, to the maximum extent appropriate, within each student’s IEP. Students with a disability have the right to object to graduation with a non-standard diploma if they did not receive adequate supports and services. This would necessarily include failure by the schools to provide transition services. Transition services must bridge the services a student with a disability receives while in school with the services needed to obtain a vocational goal after school services end. Transition services may include provisions for assistive services and technology, assistance in applying and enrolling into a higher educational system, and assistance in obtaining employment or vocational training.

IDEA requires that states, as a condition of accepting federal financial assistance, ensure a “free appropriate public education” to all students with disabilities. 20 U.S.C. §§ 1400(c), 1412(1). All of the states accept the federal funding and therefore are required to implement the requirements of IDEA. IDEA imposes extensive procedural requirements on participating state and local agencies to safeguard a student with a disability’s right to a free appropriate public education. 20 U.S.C. § § 1401(a)(20); 1412 (2, 4, 5, 7); 1415 (a, b); Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 182-184, 102 S.Ct. 3034, 3038-39 (1982). In Rowley, the Supreme Court sets out a two-part inquiry for determining whether the school system has complied with IDEA: ‘First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits?” Id. at 458 U.S. at 206-07.

In Greer v. Rome City School District, 950 F.2d. 688 (11th Cir. 1991), case precedent binding upon Florida, the court determined that the test for compliance with IDEA, 20 U.S.C. §§ 1400-1485, 1412(5)(B)’s, mainstreaming requirement, is whether education in a typical classroom, with the use of supplemental aids and services, can be achieved satisfactorily; if it cannot and the school intends to provide special education or remove the student from the typical classroom, the standard for review is whether the school has mainstreamed the student to the maximum extent appropriate. The Eleventh Circuit further clarifies that before a school district may conclude that the student should be educated outside the typical classroom, it must consider whether supplemental aids and services would permit satisfactory education in the school classroom. This ruling would certainly encompass the ultimate goal of graduation with a diploma received from the State of Florida. This consideration must include the whole range of supplemental aids and services, including assistive services and technology, resource rooms and itinerant instructions, for which it is obligated to make provisions under IDEA. This must occur prior to and during the development of the student’s Individualized Educational Plan (IEP).

For some students who have been provided an appropriate education with the full realm of supports and services, including assistive services and technology, in the most integrated setting, a regular diploma may not be a viable option. Also, there may be students with disabilities who want to graduate from high school with their same-age peers and move on to vocational services or even college education.’ For example, one individual with a learning disability and artistic talent failed a competency test and could not receive a regular high school diploma. However, he was accepted by an art school and chose to go to art school rather than Continue with high school. Opportunities and choices, such as those available to the art student, must be safeguarded. Procedural safeguards entitle a student with a disability to have an appropriate education in the most integrated setting.

Procedural safeguards “guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.” Honig v. Doe, 484 U.S. 305, 311-312, 108 S.Ct. 592, 598, 98 L..Ed.2d (1987). The IEP is the primary safeguard. j4. at 484 U.S. at 311, 108 S.Ct. at 597-98; 20 U.S.C. § 140 1(a)(20); 34 C.F.R. Sec. 300.346 (1992). Parents have the right to an “impartial due process hearing” to resolve any complaints about a student’s IEP, including a change in placement. 20 U.S.C. § 1415(b)(2). Graduation is a change in placement. Therefore, if a parent or student believes that graduation is not appropriate and should be postponed, the parent or student has the right to request a due process hearing. “Stay-put” provisions govern in these issues and will require the state and school district to continue providing educational services until the legal proceedings have terminated.

IDEA requires that states provide students with a free appropriate public education through age 21 in states like Florida where students without disabilities may attend public school through age 21. Florida may require more than the minimum requirements of IDEA, but may not provide for less. The federal law is clear that states are not required to provide education beyond a regular high school diploma. Thus, if a student with a disability has met all of the requirements for a regular academic high school diploma, that student is no longer entitled to further special education through the public school system unless the student has a claim for compensatory education services.

Compensatory education requires that a school district belatedly provide the services it should have provided earlier. Compensatory education services are awarded when it is established that a student has not received appropriate services during any time in which the student was entitled to them. Burlington School Committee v. Mass. Dept. of Ed., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1984). Without a remedy of compensatory education beyond age 21, a school district could evade its responsibilities under IDEA by offering a student age 19 or 20 an inappropriate program, then stalling the conclusion of appeals until the student reaches age 21. Courts of appeal in the Second, Third, Sixth, Eighth, and Eleventh circuits have extended the Supreme Court’s rationale in Burlington to support the award of compensatory education as “appropriate relief” under IDE~. See Burr v. Ambach~ 863 F.2d 1071, 1078 (2d Cir. 1988), vacated and remanded sub nom. Sobol v. Burr, 492 U.S. 902, 109 S.Ct. 3209 (1989), reaff’d on reconsideration. Burr v. Sobol, S88 F.2d 258 (1989); Lester H. v. Gilhool. 916 F.2d 865, 872-873 (3d Cir. 1990); Hall v. Knott County Bd. of Education, 941 F.2d 402, 407 (6th Cir. 1991); Miener v. State of Missouri, 800 F.2d 749, 753 (8th Cir. 1986); Jefferson County Bd. of Educ. v. Breen. 853 F.2d 853, 857-58 (11th Cir. 1988).

Diploma requirements, such as requirements contained within statewide or districtwide assessment tools, may be waived or modified for students with disabilities if such provisions are made on the student’s LEP.’ Every student’s IEP must include a statement of any individual modifications in the administration of State or districtwide assessments of student achievement needed in order for the student to participate in such assessment; and, if the IEP team determines that the student will not participate in a particular statewide or districtwide assessment of student achievement (or part of such an assessment), a statement of why that assessment is not appropriate for that student; and how the student will be assessed. 20 U.S.C. S 1414(d).

In order to provide services for identified students without discriminating against them on the basis of disability, districts are required to make modifications, when appropriate. Accommodations generally are defined as changes in a district’s program or in the way things are customarily done so that a student with a disability can have an equal opportunity to participate. The goal of reasonable modifications is to provide identified students with an equal opportunity to participate. The goal is not to guarantee results or success; rather, it is to open the door for identified students.

IDEA now contains provisions which require that by July 1, 1998, students with disabilities are to be “included in general state and districtwide assessment programs, with appropriate accommodations, where necessary,” with the proviso that some identified students with lEPs should not be included in such assessments. Instead, these students are to be assessed by “alternative assessments,” in effect by July 1, 2000. In other words, districts are now required to develop assessment measures for all students, either through the regular testing procedure with appropriate modifications for identified students, or through alternative assessments. 20 U.S.C. ~ 1412(a)(17). On May 11, 1998, Commissioner Brogan released the results of the first statewide assessment for Florida. Within the Commissioner’s FCAT Press Release, he commits the Florida Department of Education to make the “Florida Comprehensive Assessment Test (FCAT) a high stakes test that can ultimately be used as criteria for graduation, accountability for school performance, and a condition for earning a college-ready diploma and a Bright Futures Scholarship.”

While higher standards for students within the State of Florida are certainly a laudable goal, students with disabilities must not be compromised by being excluded from the opportunity to achieve the same goals expected of typical students. The State of Florida’s attempt to document improvement of educational services by using statistical scores must refocus to raising the quality of educational services provided to all students.

Low expectations of all of Florida’s students, including students with disabilities, are inexcusable. For students with disabilities, accommodations must be provided, when appropriate, even if the statistical results of including students with disabilities may skew the desired goals. The quality provision of educational services, including provisions for assistive services and technology, must be the goal of Florida’s school system, not merely an ambitious raising of expectations of the performance of all Florida’s students.

In summary, if a student with an IEP completes the districts’s regular education requirements, does the student graduate with a diploma? Yes. If a student with an LEP completes the IEP requirements, does he graduate with a diploma? It depends on whether the student meets the districts’s diploma and graduation requirements. In all these cases, adequate prior notice is required.

Florida’s Department of Education must foster developmental, academic, and social growth in such a way that each student with disabilities can, within the student’s individual capacity, become an independent and productive citizen. Each student with a disability, to the maximum extent possible, must be accommodated with adequate supports and services, including assistive services and technology, during each phase of the academic experience, with the ultimate goal of graduation. Florida’s students with disabilities must be provided an opportunity to have the same experiences as typical students, including the pride, dignity, and excitement each student should have with the achievement of a diploma.

Notice: This Position Piper is not a substitute for legal advice.