Actually, We Can't Just All Get Along—Cooperation and Individualization under IDEA Commentary
Actually, We Can't Just All Get Along—Cooperation and Individualization under IDEA
Edited by: Krista Grobelny

JURIST Guest Columnist Karen Czapanskiy of the University of Maryland Francis King Cary School of Law discusses the road not taken in the recent Supreme Court case on in-school service dogs for special needs children… In Fry v. Napoleon Community Schools argued before the Supreme Court on October 31, 2016, the question is whether parents must exhaust administrative remedies under the Individuals with Disabilities Education Act (IDEA) before suing a school district for damages suffered as the result of discrimination against their child under the Americans with Disabilities Act (ADA). The US Court of Appeals for the Sixth Circuit ruled for the school district. The result likely would have been the same in other circuits except for the Ninth.

The Frys’ daughter EF was born with cerebral palsy that limits her motor skills and mobility. A Goldendoodle named Wonder was trained to help EF, but the Napoleon Community Schools refused to allow Wonder to accompany EF to school. EF’s Individualized Education Program (IEP) provided for a human aide to support EF during school hours. After meeting with a lawyer representing the Frys, the school district allowed Wonder to be with EF on a limited basis for about two months. The school district refused to allow Wonder thereafter. The Frys filed a complaint with the US Department of Education Office of Civil Rights. During the two years until the department ruled in favor of EF, the parents educated EF at home. Then EF’s father and the school principal met to discuss EF’s return to school. EF’s father concluded that the principal remained unwilling to cooperate fully about Wonder, and the Frys enrolled EF in a different school system.

In the Supreme Court, the Frys, the school district and the Solicitor General all agreed on a predicate point: where parents seek remedies available under IDEA, exhaustion is required except in rare circumstances. That means, as several Justices and the lawyers before them discussed during the argument, a child’s parents must engage in a cooperative process with the school to devise an individualized plan for the child’s education. Only after that cooperative and individualized process is completed must a court consider a suit against the school system for discriminating against the child on the basis of disability. Some students, however, like EF, are not asking for an IEP or otherwise seeking relief available under IDEA, so her case seems to be one where exhaustion should not be necessary. The Justices posed numerous questions, however, on the limits of a ruling for EF, particularly on whether a decision for EF would open the floodgates for parents who want to avoid the administrative process.

The question nobody asked was why parents might want to avoid the IDEA administrative process, a process touted as cooperative and focused on the needs of their child. Nor did anyone ask whether schools might agree that the administrative process no longer works in many cases. It’s past time, in my view, for that conversation to be joined.

Based on their experiences with school systems, many parents have concluded that the administrative process is neither individualized nor cooperative. At the same time, schools are not irrational in concluding that the individualized and cooperative system is not always the best way to deliver a suitable education to children with special needs. Frankly, continuing to pretend that special education is always individualized and cooperative belies how often the process is generalized, litigious, aggravating, unnecessary and discriminatory.

For my article Kids and Rules: Challenging Individualization in Special Education, I examined 32 special education cases involving children on the autism spectrum. The cases were heard by courts in the Southern District of New York from 2010 to 2014. In each case, the plan proposed by the school in the IEP meeting was nearly identical to the plans offered in the other meetings. Even where parents objected and suggested alternatives, the plan adopted after the IEP meeting rarely differed much from the school’s original plan. In nearly every case federal courts accepted the school system’s conclusion that its plan satisfied the substantive requirements of the IDEA. Exceptions were cases with procedural flaws.

I see no “cooperative” or “individualized” process here. Instead, plainly, the school system adopted a routine plan of services for children who share certain characteristics. The school system invested resources in an organization through which the routine plan is followed by trained teachers and aides. Uniformity and, perhaps, accountability, are the hallmarks of the system, not “individualization,” “cooperation” or even negotiation.

In special education jargon the New York cases could be illegitimate because IEPs are “predetermined” rather than individualized for each child. The predetermination label overlooks, however, what school systems have learned over the 40 years since the original version of today’s IDEA: some children share similar issues and can benefit from similar services. When that’s true why not create and stick to a routine?

The Frys faced exactly what the New York parents faced: a school system that had a routine, and Wonder didn’t fit. While a blind child with a service dog can have the dog at school, a child using a service dog for a different purpose cannot. As the Frys saw no amount of “cooperative” conversation would produce a different outcome.

What the Frys faced that the New York parents did not face was an illegal rule. The routine IEPs in New York survived the scrutiny of multiple federal courts which found the plans to be substantively adequate. The routine IEP excluding Wonder could not survive scrutiny. In both cases, however, it would have been better for all concerned to be transparent. Where the school system believes that children in similar circumstances should receive similar services, the school should let the public know.

Like the New York parents, the Fry family was subjected to a privaterule or policy. The Frys (and the friends and neighbors who helped them buy Wonder) could not know in advance that the school system would exclude Wonder. If the rule or policy had been considered in public, the school board could have learned from the community about their experience and concerns. After public consultation, a rule or policy could have been adopted that protected children with service dogs against discrimination without, at the same time, causing undue worry about service dogs distracting children, scaring people, causing allergic reactions or requiring substantial staff attention. Transparency lets parents like the Frys predict whether Wonder will be welcomed, given Wonder’s characteristics, functions and training. Parents in New York could know whether fighting the proposed plan is worth time and resources. Keeping the rule or policy secret precludes public input, problem-solving and predictability. The Frys like many other parents, get blindsided. The school loses the trust of parents and children while wasting time seeking parental agreement to a predetermined IEP which may, in fact, be educationally sound.

No wonder the Frys withdrew their child from school, home-schooled the child for 2 years, and rejected conditions for welcoming their child and Wonder back to school. No wonder they changed schools and sued for discrimination rather than seeking a new IEP. They already knew that the cooperation and individualization values of the IDEA are suspect.

Transparent rules and policies can guide people to behave legally and predictably. School personnel want to obey the law and to deliver sound education to all children. Devising individualized education programs is not a hallmark of general education, where we want all children to achieve proficiency at certain levels by predictable times. Individualized special education is plainly a necessity for children whose issues or combination of issues are not shared by many other children. For children with more common issues, however, individualization and cooperation do not always result in sound or legal educational programs.

Parents have an unusual role under the IDEA because of concerns that children with disabilities face discrimination. The system works best when parents trust the school system to do what it can for the child, so a cooperative process makes sense. But process—whether cooperative or adversarial—takes time, and parents with special needs children are often short in that department, particularly where parents are also short of money. Another route to trust may be found in publicly adopted rules and policies which tell the school system and the parents what to expect when a child has issues that are shared by other children.

Fry v. Napoleon School District will not resolve these problems. If the Court rejects the highly restrictive rule of the Sixth Circuit, however, some parents will have a shorter route to a conclusion. What will help more parents and more schools is a reconsideration of individualization and cooperation as the keys to special education.

Karen Czapanskiy is a Professor of Law at the University of Maryland Francis King Carey School of Law. Her work focuses on the law and policy that affect families raising children with special needs. She also teaches courses in family law, property, civil procedure, and a seminar on families raising special needs children.

Suggested citation: Karen Czapanskiy, Actually, We Can’t Just All Get Along—Cooperation and Individualization under IDEA, JURIST – Academic Commentary, Dec. 13, 2016,

This article was prepared for publication by Krista Grobelny, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at

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