The Third Circuit Court of Appeals recently ruled in D.S. v. Bayonne Board of Education that a learning disabled student’s individualized educational program (IEP) failed to provide him with a free appropriate public education (FAPE). Despite the student having received high marks in his classes, the court upheld the hearing officer’s finding that a New Jersey public school district failed to create an IEP sufficient to address the student’s needs, and that a private school would be a more appropriate placement.

D.S., a ninth grader with severely limited cognitive abilities, was placed in self-contained classes with other special education students in accordance with his IEP. D.S. received high marks in most of his courses, and favorable progress reports from his teachers. Still, his standardized tests scores revealed a decrease in his grade-level proficiency. After obtaining multiple evaluations from several outside professionals that found D.S. to be struggling academically and socially, D.S.’s parents filed a due process complaint seeking an order directing the school district to pay for an out-of-district placement. The hearing officer ruled in favor of the parents, concluding that D.S.’s IEP failed to include appropriate goals and to account for the deficiencies revealed by the evaluators and standardized test scores. On appeal, the federal district court overturned the hearing officer’s decision, basing much of its decision on D.S.’s high grades to find that the District had provided D.S. with an appropriate education.

The Third Circuit overturned the district court’s decision, finding fault in the weight the lower court gave to D.S.’s grades. In particular, the court distinguished between the weight that should be given to the grades of students in special education courses versus students in regular education courses. The court agreed that a student’s academic progress should be considered when evaluating the appropriateness of his IEP, and acknowledged that a special education student who is performing well enough in a regular education classroom to advance from grade to grade will generally be considered to be receiving a meaningful educational benefit. D.S., however, received all of his academic instruction in classes composed entirely of special education students. Focusing on this distinction, the court stated that when high grades are achieved in classes with only special education students, grades are of less significance than grades obtained in regular education classrooms. In this case, the court found that because of the significant disconnect between the school’s assessment of D.S. and his standardized test scores, the hearing officer was in the best position to weigh the factual evidence, and thus the court should have given greater deference to the hearing officer’s decision.

Although Third Circuit decisions are not binding on courts in Illinois, this case nevertheless provides important guidance to all school districts. In particular, school districts should not rely solely upon a student’s grades when determining the appropriateness of an IEP when the student is being educated in a special education setting and the standardized test scores indicate a lack of progress.