CENTER FOR LAW AND EDUCATION

 

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Question:              Must notice of procedural safeguards under IDEA be written in plain English?

 

Answer: Yes. An often-overlooked provision of IDEA requires that the notice of procedural safeguards must be written in an "easily understandable manner."

 

Application:          Schools should not hand out the state rules and regulations as their official procedural safeguards notices. They must provide plain-language explanations of the parents' procedural rights under IDEA.

 

Procedural safeguards notices must be written in an "easily understandable manner." 20 U.S.C. §1415(d)(2). The regulatory standard for this requirement is that the notice must be "Written in language understandable to the general public." 34 C.F.R. §300.503(c)(1)(i), incorporated by reference by 34 C.F.R. §300.504(c). Such notices are required to be given (1) upon initial referral for evaluation, (2) upon each notification of an IEP meeting, (3) upon reevaluation of the child, and (4) upon receipt of a request for due process. 34 C.F.R. §300.504(a).  In addition, notice that is written in language understandable to the general public” must be given to parents of a child with a disability a reasonable time before the public agency proposes to initiate or change the identification, evaluation, or educational placement of the child or provision of FAPE to the child; or refuses to initiate or change the educational placement of the child or the provision of FAPE to the child. 34 C.F.R. 300.503(a).

 

While not frequently litigated, caselaw suggests that the plain language provision explicitly disqualifies "[t]he unembellished technical language of the Rules and Regulations" as adequate notice. Max M. v. Thompson,592 F.Supp. 1437, 1448. (N.D.Ill. 1984) (holding that such failure led to violation of the plaintiff's procedural rights under the EAHCA). But see Max M. v. Illinois State Bd. of Educ., 629 F.Supp. 1504 (holding the procedural error harmless because the policy intent of involving parents and obtaining consent was met). Thus, providing parents the state code or rules and regulations without an effort translating them into plain language would be a violation of the parents' procedural rights. See Thompson.

 

It may be that written notice, in plain English and meeting the aforementioned standards, is important but neither necessary nor sufficient to providing adequate notice of procedural rights. According to Illinois State Bd. of Educ., the appellate review of Thompson, the court found that the basic policy purposes of notice — involving parents in supervising and making decisions about the child's educational plan — were met in that case. Because "the parents were quite involved with assessing the educational and supportive services their child was to receive from the school district and had the professional advice of a psychiatrist familiar with the EAHCA," the procedural errors were harmless. Illinois State Bd. of Educ. at 1518.

 

However, Illinois State Bd. of Educ. did not overturn the finding that the written notice was inadequate; in fact it confirmed the District Court's conclusion. Because the specific facts of Thompson can be distinguished from most situations that lead to legal complaints — exclusion of parents from a meaningful role in deciding their children's educational placement and services — the harmless error defense offered by Illinois State Bd. of Educ. is unlikely to available to schools who do not provide plain English notice of procedural rights under IDEA.

 

While many cases addressing adequacy of notice likely involve notice falling short of the Thompson standard, few advocates are aware of, much less litigate, the requirement that notice be given in plain English. Thus, cases in which courts approve of the adequacy of notice despite their opacity or outright replication of statutory language should be distinguished because they do not reach the issue of plain language. See, e.g., Edmond Public Schools v. V.R., Ok. Dist. Ct. Civ-99-750-R (January 28, 2000) (finding that because parents refused to give school opportunity to clarify orally, notice was adequate[1]).


[1] The language in the notice included, in part, "During the pendency of any administrative or judicial proceeding regarding a complaint, unless the public agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her present educational placement." At 11.