POLICY LETTER: August 19, 2003 to Children’s Advocacy Network of Florida Founder Beth Davis-Wellington

Dated August 19, 2003Ms. Beth Davis-WellingtonChildren's Advocacy NetworkP.O. Box 831325Miami, Florida 44283-1325Dear Ms. Davis-Wellington:Thank you for your letter on behalf of the Children's Advocacy Network of Florida regarding concerns over the education of children in Florida. Specifically you raised several questions that related to the Florida Statutes, F.S. 1008,2002 as follows:Can the State take the decision of whether to promote a child with a disability out of the hands of the IEP [individualized education program] team?Part B of the Individuals with Disabilities Education Act (IDEA) does not specifically address standards for retention or promotion of students with disabilities. Rather, the establishment of standards for promotion and retention for all students, including students with disabilities, is a State and/or local function. Generally, the IDEA would not require that the IEP team make decisions regarding promotion or retention of a child with a disability. However, the IDEA does not prevent a State or local educational agency from assigning this decision-making responsibility to the IEP team. It is also important to note that a retention or promotion decision is not synonymous with a placement decision for IDEA purposes.For students with or without disabilities, does the use of one measure, the FCAT, in determining whether a student will graduate with a regular diploma violate these students' right to a free appropriate public education (FAPE) under IDEA? Does the use of the FCAT to determine graduation violate any other provision of IDEA?Florida's requirement mandating that students pass the FCAT in order to graduate with the standard high school diploma is not inconsistent with the IDEA. Neither Part B of the IDEA nor its implementing regulations specifically address the establishment of proficiency standards for a regular high school diploma. However, the IDEA does address factors that are directly related to a student's ability to pass the State-wide assessment. These primarily include: 1) individual accommodations needed for the child to participate in State-wide assessments of student achievement, consistent with appropriate State guidelines; and 2) supplementary aids and services and appropriate supports to allow the student's involvement and progress in the general curriculum. If there has been a denial of FAPE with regard to the provision of accommodations in assessments, then the student must be given the opportunity to retake the assessment with appropriate accommodations, in order to determine whether he or she can pass and receive a regular high school diploma. If there has been a denial of FAPE with regard to the provision of supplementary aids and services and appropriate supports to allow involvement and progress in the general curriculum, then the student may be entitled to appropriate compensatory services that allow for involvement and progress in the general curriculum. Because States are responsible for ensuring that appropriate accommodations are provided in the administration of State-wide assessments, it is crucial to ensure that guidelines for these assessments offer the widest possible ranIt is our understanding that the Department's OCR Atlanta Office is currently investigating several allegations involving the FCAT and students with disabilities pursuant to Section 504 and Title II. If you have any questions with respect to Section 504 and Title II or the OCR FCAT cases, please contact the OCR Atlanta office at the following address and telephone number:Mr. Gary S. Walker, DirectorOffice For Civil Rights, Atlanta OfficeU.S. Department of Education61 Forsyth Street, S.W., Suite 19T70Atlanta, Georgia 30303-3104Phone: (404) 562-6350Fax: (404) 562-6455TDD: (404) 331-7236We hope that this information will be helpful. If you have further questions regarding Part B requirements, please do not hesitate to contact Ms. Sheila Friedman, the Florida State Contact, at (202) 205-9055.Sincerely, /s/ Patricia J. Guard forStephanie Smith LeeDirectorOffice of Special Education Programscc:Ms. Shan GoffFlorida Department of EducationMr. Gary S. Walker