Courts in Pennsylvania have been quick to respond to the “new” FAPE standard established by the Supreme Court in Endrew F. v. Douglas County School District, which was decided a mere two weeks ago. And, as predicted, the standard for a FAPE in the Third Circuit, at least for now, remains unchanged by Endrew F.
According to the courts in the Eastern District of Pennsylvania in the matters of E.D. v. Colonial School District (E.D.Pa. Mar. 31, 2017) and Brandywine Heights Area School District v. B.M. (E.D.Pa., Mar. 28, 2017), Endrew F. does not raise the previously applied standard in Pennsylvania. In addition, the E.D. case has a bonus about e-mails.
In both E.D. and B.M., the Court reviewed Hearing Officer decisions that were issued well before the ruling in Endrew F. and rejected the argument that Endrew F. heightens the standard above what was required under prior case law in the Third Circuit.
Both Courts found that the standard in Endrew F. is substantially similar to or in accord with previous cases decided that set the standard for a FAPE as an opportunity for meaningful educational progress.
Both Courts, however, did not reach the question of whether the appropriate progress standard set forth in Endrew F. could be met by a program that was something less than meaningful progress. That question remains for another day.
Emails and FERPA
In the E.D. case, there is a notation about another hotly debated issue of whether or not e-mails are considered FERPA records and the Court found that they are not automatically so.
More specifically, the Court explained “[u]nless [a school district] kept copies of e-mails related to [student] as part of its record filing system with the intention of maintaining them, we cannot reach the conclusion that every e-mail which mentions [student] is a bona fide educational record within the statutory definition.”
However, it is important to remember that just because e-mails are not FERPA records, does not mean that they cannot be obtained through other means, such as civil discovery, and staff should still continue to write emails with the expectation that they may be seen by others.
Bottom Line for Schools
At this point, school entities should continue to operate under the premise that a FAPE requires what it has in Pennsylvania for many years, namely an opportunity for meaningful progress, and review cases on the basis of that standard. In addition, school entities should review their procedures and practices as to the saving of emails to ensure there is consistency in what is saved and what is not and that this process is not simply a random one, but rather an intentional choice to save certain documents.
If you should have any questions, please contact your legal counsel of an attorney from KingSpry’s Education Law Practice group.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.