Fighting for FAPE: The End of the Line

By J. Mark Bade

July, 2013

In 2009 we wrote about gifted student Per Hovem and his family’s struggle to remediate the indifference to IDEA that the Klein, Texas, Independent School District had shown with regard to Per’s learning challenges during high school. [See the article “Fighting for FAPE” at the 2e Newsletter website, at www.2enewsletter.com/article_fighting_fape.html.] That struggle has come to an end.

Signe Hovem’s blog at Tumblr is called “Every Day Beauty.” It’s a remarkable title for a blog in which she has recounted several times and in great detail the apparent utter indifference of a Texas school district to her twice-exceptional son’s educational needs, and then later her own crushing disappointment over losing any chance of educational justice through two upper-level U.S. court decisions. And, while the title may be testimony to Signe Hovem’s long-term optimism, her most recent post is not happy reading.

Signe’s son Per is a gifted young man with great receptive skills in reading and listening. In 2007, however, Per’s senior year of high school, it became apparent that his written expression skills were at a first-grade level. Yet Klein Collins High School sought to waive a graduation requirement dealing with writing and declare that he was eligible to graduate from high school.

Can’t write? No matter.

The Hovems removed Per from Klein ISD. He finished his high school education at Landmark School in Massachusetts.

In 2008 the Hovems filed a due process complaint alleging that Klein ISD had violated Per’s rights by denying him a free, appropriate public education (FAPE), as required by the U.S. Individuals with Disabilities Education Act (IDEA) of 2004. The due process hearing officer agreed, ordering the ISD to reimburse the Hovems for Per’s time at Landmark School.

Klein ISD appealed the due process decision in early 2009. A U.S. District Court in Texas ruled for the Hovems.

Klein ISD appealed again, this time to the U.S. Court of Appeals for the 5th Circuit. The Court heard the case in September, 2011. More than a year later, they ruled. This time, by a vote of 2-1, the court supported the school district. In its decision, the court ignored — or disregarded — a friend-of-the-court brief on behalf of the Hovems filed jointly by the U.S. Department of Education and Department of Justice. The brief expressed “a strong interest in the correct interpretation of the IDEA and its regulations.” No matter.

Signe Hovem had been warned that the 5th Circuit Court of Appeals seemed to always side with schools. But what she witnessed there during the oral arguments for her case seems extraordinary. She says in her blog that the Chief Judge of that court, Edith Jones, “declared it did not make sense to her that our son could comprehend at a post graduate level but nonetheless possessed primary school reading and writing abilities.” Hovem doubts the judge understood the nature of learning disability, and describes the Chief Judge as “lavishing praise on the school district’s attorney for their presumed devotion to our son’s education.”

According to coverage of the case in Education Week’s School Law Blog, the majority’s reasoning was that “because the student was in a position to graduate from high school, he did receive academic benefits that satisfied the district’s duty to provide a free, appropriate public education under the IDEA.” [Italics ours.] No matter that it could take Per days to write a single paragraph.

The same blog says that the dissenting judge on the 5th Circuit Court of Appeals wrote that the majority decision could mean that districts would have license to give “social promotions” when it would be too difficult to provide educational services to students like Per.

Special education attorney Peter Wright, of Wrightslaw, says that the dissent at the 5th Circuit was correct, calling the case “horrible.” He further observes that the case there contains no good “legal nugget” for parents and their attorneys; rather, “It is a convoluted decision that stands for the proposition that the Chief Judge wanted to rule for the school district and was able to get one additional vote on her side.”

The Hovems did not back down. Their last chance was to petition the United States Supreme Court to take up the case to review the decision of the lower court. They filed it on January 14, 2013, and Klein ISD filed its response a month later. On March 18th, the Court announced, without comment or explanation, that the Hovem’s petition for a hearing was denied. It was the end of the road.

Peter Wright explains that, unfortunately, the Hovem case did not meet the Court’s rules for reviewing specific cases. “Generally the U.S. Supreme Court will not hear a case unless there is a split among circuits, a significant issue of public policy that needs to be addressed by the Court, or a significant Constitutional issue on the table.” Wright saw no split in this case, and was not surprised the Court refused to hear it.

In the friend-of-the-court brief filed with the 5th Circuit, the U.S. Department of Justice and Department of Education said that the appeal by Klein ISD “raises important questions involving the interpretation and policy goals of [IDEA].” Evidently those issues of public policy didn’t matter enough to the Supreme Court.

Not even a bad legal decision by a lower court requires the Supreme Court to hear a case, says Wright. “Court of Appeals cases are sustained regularly (by the U.S. Supreme Court not hearing the case), even though they might be bad law.”

That is not likely to be of solace to Signe Hovem. It took her almost three months after the petition was denied to gather the words to express her reaction to the Supreme Court’s decision.

“The Supreme Court’s dismissal of our petition without review or commentary is among the most frustrating and disappointing elements of this emotional and financial roller coaster,” she writes. “Had they taken the time to comment that the 5th Circuit had in fact got it right, or wrong, it would be easier to digest and accept the verdict… but instead we must process an indifference by the highest court that just adds to the effect of dysfunction spreading throughout American governance.”

Her experience with the American legal system has led Signe Hovem to some suggestions for changes in education and education law. Find them at her blog, http://smhovem.tumblr.com/.

Did the Hovem case matter? In the short run, it will have a chilling effect on parents’ efforts to challenge schools. In the long term, the case may have exposed a basic inequity in the American education system, an inequity that — when the time is right for the U.S. Supreme Court to revisit the issue — may be resolved. That would matter.

So while the Hovems will never recover the hundreds of thousands of dollars or the lost months and years they invested in the case, some day — perhaps — they might have the satisfaction of seeing educational justice brought to bear in cases like theirs. Because they saw injustice and were not afraid to confront it. Because, as the family said about their issue with Klein ISD years ago, “We could not walk away from it. It was one of those things you’d think about for the rest of your life.”

You Be the Judge

5th Circuit Court of Appeals Dissent

Selected comments by 5th Circuit Court of Appeals Judge Carl E. Stewart, who dissented from the two-judge majority in this case:

…there is abundant persuasive evidence in the record establishing that Per’s academic program was not tailored in order to produce meaningful educational benefit, that Per’s academic program was not individualized according to his distinct needs, and that KISD failed to devote significant and serious effort to collaborate with Per and his parents in the development of his academic plan. (Page 21 of the court’s decision)

The record itself is replete with acknowledgments, many from KISD’s own employees, of KISD’s failure to adequately and appropriately respond to the particularized nature of Per’s writing deficit. Instead, Per was thrust into the general curriculum and consistently promoted, all the while his weaknesses were effectively ignored. (Page 22 of the court’s decision)

Promotion from grade to grade is less indicative of a disabled student’s receipt of a FAPE where it appears that the student was promoted pursuant to a school policy rather than his achievement, where good grades are traceable to exemptions from standard expectations intended to circumvent rather than address his area of disability, and when independent evaluations contradict the amount of progress otherwise to be inferred from class promotion. (Page 29 of the court’s decision)

5th Circuit Court of Appeals Majority

Selected comments by 5th Circuit Court of Appeals Chief Judge Edith H. Jones, writing for the majority in this case:

KISD contends that it met its statutory obligation to provide Per Hovem with a FAPE, as evidenced in part by his better-than-average grades in mainstream general education classes and his continuous, timely progress toward high school graduation. (Page 10 of the court’s decision)

Viewed from the holistic Rowley [a case the majority referred to numerous times] perspective, rather than the district court’s narrow perspective of disability remediation [i.e, that 2e students should actually be served —Ed], Per obtained a high school level education that would have been sufficient for graduation. (Indeed, Per is in college now.) [After two intensive, remedial years at Landmark School —Ed.] As Rowley notes, when a learning disabled student “is being educated in the regular classrooms of the public education system, [an IEP] should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” (Page 15 of the court’s decision)

It is regrettable that the sources of Per’s disability of written expression, having been early exposed, were not attacked earlier in his educational career. [Isn’t this the point of the whole case?! —Ed] The school district, however, did not fail to comply with IDEA when the means it used facilitated Per’s substantial achievements in secondary school. [So the district can take full responsibility for Per’s achievements, but is excluded from any responsibility for his lack of performance relative to his potential or his unaddressed impediments? —Ed.] (Page 16 of the court’s decision)

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