By Attorney Judith C. Saltzman
This is the time of year when parents of special needs children become alarmed by school district plans to graduate their child prior to age 22 – the last year of special education eligibility. The decision to graduate a child does not exclusively belong to the school district. Here are some points and pitfalls that parents must be aware of when the school district proposes to graduate the child prematurely.
- When a child turns 18, she becomes an adult, so all parental rights under the Individuals with Disabilities Education Act (“IDEA”) are transferred to the child unless a court has ordered otherwise. In Ohio, an order of guardianship from the probate court will preserve the parent in the decision making role. A child who is competent cannot be placed under guardianship, but can execute an “Educational Power of Attorney” in which she delegates to her agent, generally the parent, continuing responsibility for educational decision making. Unless the parent has either an order of guardianship or a power of attorney, the school district will discuss graduation directly with the child, who may not share the parents’ opinions about the benefits of staying in school until age 22.
- Graduation with a regular education diploma ends eligibility for special education.
- Graduation (with a regular diploma) of a child on an IEP is a change of placement. 34 CFR §300.102(a)(3)(iii). Ohio does not permit change of placement without parental consent. §300-51-05 (C)(4)(b). If the school district announces its intent to graduate the child despite parental opposition, the parent has the option of due process – the administrative remedy available to enforce special education rights. If due process is filed, this effectively blocks graduation pending resolution of the dispute.
- A child who has decided not to graduate may still be able to participate in the graduation ceremony with his same age peers – receiving a blank page instead of the actual diploma. “Social graduation,” is at the option of the school board. There is no federal or state law that requires school boards to allow social graduations, though there is a basic obligation to apply a consistent policy, i.e. if it’s available to some students, it should be available to all.
- Obtaining the required number of credits (20 credits is a state minimum) does not, of itself, mean that the child must graduate. Children with special needs are entitled to transition services – goals, objectives and services which must aid them in achieving their post-graduate goals in the areas of employment, independent living, and education. If transition goals are not met, social graduation should be considered. If transition goals have not been adequate, the parent can request a new IEP; here too, social graduation should be considered.
- Transition often consists of services that prepare the child for the world of work. The school district should involve other agencies that can provide vocational services in the child’s IEP team meetings, and parents should consider whether services from these other agencies are actually available – and more beneficial—than transition services available from the school district. The resulting analysis, which is going to vary from county to county, will help parents decide whether to accept – or reject – graduation prior to the age of 22.