Developmental Disabilities & High School Graduation

What to do

What You Can Do
In your case, it sounds like your son may not have achieved sufficient skills to be employable. The issue of graduation should be discussed within the TEAM process and criteria established that are appropriate for him. If not, you and your son may reject the IEP and use your state's special education due process system to contest the lack of appropriate graduation standards. If the school system insists on graduating him, the due process system can also be used to contest that decision.

If the hearing officer in due process or a court finds that the school system violated the student's rights by awarding a diploma, the available remedies include, most typically, rescission of the diploma and/or the right to receive educational services for a period of time to make up for the services lost because of the violation. (This is called "compensatory services.") If the parents have arranged for appropriate continuing services on their own, the remedies can also include reimbursement for the cost of those services. In at least one case, Puffer v. Raynolds, 761 F. Supp. 838 (D.Mass. 1990), the court left the diploma in place because the student had achieved sufficient credits to graduate, but ordered remedial services to support the student for her first semester at a community college to make up for the school system's failure to provide an IEP and services during her senior year. Finally, as in any other case where parents prevail, the remedies would include the right to reimbursement for all, or a substantial part, of the attorneys' fees and related costs incurred in bringing the case.

The Age of 18
In your case there is at least one more legal issue to address: Your son is 18 and, unless he has been adjudicated as legally incompetent and placed under your guardianship, he is the only person authorized to respond to a proposed IEP or to accept or contest the award of a diploma. Depending on his cognitive abilities, his self-esteem, his self-awareness, and his social skills, he may be particularly vulnerable to the persuasion of school professionals who urge him to go ahead and graduate with his classmates. In that case you may need to work through a number of increasingly intense steps for his protection.

First, it is important to try to work with the school system, both through the TEAM process and informally, to try to persuade them to give up the notion of graduating your son. Use independent evaluators to develop alternative evidence of his status and continuing need for educational services. For his self-esteem, you might negotiate for him to participate in the graduation ceremony and be given a certificate other than a diploma to show that he is moving on with his peers to a new level of his life. You will want to explain to your son to the best of his understanding the reasons not to accept a diploma, and ask others who may have influence with him to do the same.

If your son's cognitive impairment prevents him from understanding what he is signing or agreeing to, you may be able to set aside his acceptance of an IEP or agreement to accept a diploma under your state's law pertaining to contracts, even without obtaining a guardianship. Ultimately, however, you may want to explore the legal standards and procedures for obtaining guardianship. In most states, if a person of legal age is unable for reasons of mental retardation or mental illness to make informed decisions about his personal and/or financial affairs and needs a guardian for his or her protection, a court will order the appointment of a guardian. This is obviously a complex process that will require consultation with an attorney. Sometimes state agencies which provide services to adults with retardation or other impairments can provide assistance with this process as well.

Robert K. Crabtree is a partner at Kotin, Crabtree, and Strong, LLP, a general practice law firm in Boston, Massachusetts. Among other areas of practice, Mr. Crabtree concentrates in special education and disability law.

Copyright ? 1998 Kotin, Crabtree, and Strong, LLP