American Journal of Trial Advocacy

Photo Credit: Mallory Gaines, The Board of Trustees Mission to Improve Education, (Nov. 30, 2023), E.TENN., https://easttennessean.com/2023/11/30/the-board-of-trustees-mission-to-improve-education/

Authored by Jacob Powell

In D.J. through O.W. v. Connecticut State Board of Education, D.J. was a 21-year-old student with a disability who was about to graduate high school and lose access to special education services. [1]After realizing that D.J. had matriculated from grade to grade without learning basic skills, such as knowing how to count money or use public transportation, D.J.’s parents sued school officials to stop them from terminating D.J.’s services.[2]  Under Connecticut state law, schools were not required to provide services to special education students once a student had reached the age of 21.[3]  At the same time, however, state law permitted schools to provide similar services to non-disabled students until the age of 22.[4]  D.J.’s parents filed a putative class action suit, arguing that D.J. – and other special education students between the ages of 21 and 22 – were entitled under the Individuals with Disabilities Act (“IDEA”) to postsecondary services until age 22, just like his non-disabled peers.[5]

In response, the Defendant filed a Motion for Summary Judgment, arguing that D.J. had no standing to bring the suit because he had already earned the requisite credits to be awarded a high school diploma, which terminated his right to a free and appropriate public education (“FAPE”) under the IDEA.[6]  The IDEA defines a FAPE as “special education and related services” that are “specially designed . . . to meet the unique needs of a child with a disability . . . .”[7] It is important to note that the awarding of a standard high school diploma terminates a student’s right to a FAPE under the IDEA.[8] Here, although the Plaintiffs eventually moved to substitute D.J. with a different class member to cure the potential standing defect,[9] the district court ordered an evidentiary hearing to determine whether D.J. had ever accepted a diploma in the first place. After the hearing, the court concluded that when D.J. was initially offered his diploma by school officials, his parents refused to accept it.[10]  And because they refused to allow the school to award D.J. his diploma, the court found that D.J.’s entitlement to a FAPE, including his entitlement to postsecondary services, remained intact.[11]

In part, the court relied on the exception found in 34 C.F.R. § 300.102 of the IDEA, which states that students who “have graduated from high school but have not been awarded a regular high school diploma” remain eligible for a FAPE.[12] In essence, the court’s ruling meant that a special education student’s right to a FAPE was extinguished not on the number of credits earned but rather upon the student’s physical receipt of the diploma.[13]  

Existing research shows that students who lack the necessary skills to be independent and self-sufficient after graduation generally exhibit poorer post-graduation employment outcomes when compared to their non-disabled peers.[14]  In fact, in February 2024, a survey report from the U.S. Department of Labor revealed that more than 65 percent of people without a disability were actively employed.[15]  But for people with a disability – only 22 percent reported employment.[16] Why is this important? Well, take, for example, D.J., who had completed the number of credits required to graduate but, at 21 years of age, could not count money and did not know how to use public transportation.[17]  It is evident that D.J. lacked the basic skills required for a simple visit to the grocery store, much less the skills necessary to gain and sustain full-time employment. The additional services at issue in this case were to increase D.J.’s ability to gain and sustain employment after graduation. Therefore, the additional services would have had not only a personal, social benefit for D.J., but also an economic benefit for the workforce writ large. 

Not only are postsecondary transition services necessary to prepare students like D.J. for the workforce, but they also help students transition into college, and, ideally, into independent living.[18]  But how are effective transition goals implemented and maintained? As a component of special education services, transition goals must be included in the student’s individualized education program (“IEP”).[19]  An IEP is a written statement detailing a student’s present level of academic performance, including short-term and long-term goals for improvement, as well as the services required to reach those goals.[20]  In 2017, the Supreme Court broadened the scope of the IEP in Endrew F. v. Douglas County School District, requiring schools to focus on more than just grade-level advancement as a metric for success.[21]  Instead, the Court unanimously held that an IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” because every child deserves the right to meet “challenging objectives.”[22]  Therefore, the requirement to provide “challenging objectives” would entail more than offering the bare minimum transition services for students. As the Court put it, “[w]hen all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.”[23]

Since Endrew F., schools have an obligation to create IEPs that are holistically tailored to the needs of the student, addressing not only a student’s academic progress, but social, emotional, and behavioral progress, too.[24]  The cessation of services – i.e., a FAPE – therefore should not hinge on whether a student has successfully advanced from grade to grade, or like in D.J.’s situation, whether the student has completed enough credits, but instead, whether the student has made appropriate progress toward his stated IEP goals.[25]  In other words, school officials should strive to provide services that not only promote graduation but also prepare the student to participate in post-graduation employment or educational experiences.[26]

In the context of transition services, the ruling in D.J.’s case comports with the decision in Endrew F. because D.J. had not made appropriate progress before graduation. Ultimately D.J. was given additional time to master important life skills because the court relied on the implicit right to diploma deferral carved out in in § 300.102 of the IDEA. If transition goals contained in the IEP have not been met, then parents, disability advocates, and attorneys are empowered by § 300.102 to argue for diploma deferral and extend the right to special education services. This is true especially when a school is attempting to graduate a student who has advanced from grade to grade and has completed the required credits for graduation.

In all, D.J.’s case highlights why transition services are important: because they teach skills and “promote successful post-school employment or education” opportunities for students with disabilities.[27]  And in most cases, students with disabilities are not asking for extraordinary accommodations from school officials. In fact, like D.J., they may simply want to learn how to count money or ride a bus.

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[1] D.J. through O.W. v. Conn. State Bd. of Educ., No. 3:16-CV-01197 (CSH), 2019 WL 1499377 (D. Conn. Apr. 5, 2019), aff’d sub nom. A.R. v. Conn. State Bd. of Educ., 5 F.4th 155, 160 (2d Cir. 2021).

[2]Id.

[3]Id. at 158.

[4]Id.

[5]Id. at 158-59.

[6]Id.

[7]20 U.S.C. § 1401(29). 

[8]34 C.F.R. § 300.102(a)(3)(i).

[9]A.R., 5 F.4th at 158-59.

[10]Id. at 161-62.

[11]Id. at 162-63.

[12]34 C.F.R. § 300.102(a)(3)(ii).

[13]See id.; A.R., 5 F.4th at 162.

[14]Inst. of Educ. Scis., NCSER 2011-3005, The Post-High School Outcomes of Young Adults With Disabilities (2011), https://ies.ed.gov/ncser/pubs/20113005/pdf/20113005.pdf.

[15]Bureau of Labor Stats., U.S. Dep’t of Lab., USDL-24-0349, Persons with a disability: labor force characteristics – 2023 (Feb. 23, 2024), https://www.bls.gov/news.release/pdf/disabl.pdf.

[16] Id.

[17]See A.R., 5 F.4th at 162.

[18]34 C.F.R. § 300.320(b)(1) (Transition services are “[a]ppropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills . . . .”).

[19]Id. § 300.320.

[20]Id. § 300.320(a)(1)-(b)(1) (“IEP means a written statement for each child . . . that includes present levels of academic achievement and functional performance . . . [and] appropriate measurable postsecondary goals . . . .”).

[21]580 U.S. 386, 400 (2017).

[22]Endrew F., 580 U.S. at 388, 399.

[23] Id. at 402–03.

[24]See id. at 403–04; see alsoH.W. by & through Jennie W v. Comal Indep. Sch. Dist., 32 F.4th 454, 468 (5th Cir. 2022) (holding that Endrew F. favors an “overall academic record-based review . . . that should be conducted in a fact-intensive, individualized, [and] holistic manner”); L.J. by N.N.J. v. Sch. Bd. of Broward Cnty., 927 F.3d 1203, 1214 (11th Cir. 2019) (“[R]eviewing courts should not rely too heavily on actual educational progress . . . [i]t is merely one piece of evidence courts may use in assessing whether a school failed to implement substantial or significant provisions of the IEP.”).

[25] See Endrew F., 580 U.S. at 388, 399.

[26] See id.

[27]20 U.S.C. § 1400(c)(14).