Children’s Law Clinic files amicus brief in Fifth Circuit special education case

June 12, 2019Duke Law News

The Children’s Law Clinic filed an amicus brief in the U.S. Court of Appeals for the Fifth Circuit in a special education case in April.

The issue the brief covered concerned the special education services students with disabilities should receive immediately when they move across state lines. Federal law requires that after an interstate move, a student who has received special education services in one school district through an Individualized Education Plan (IEP) is entitled to “comparable services” from the new school district to minimize disruption in the child’s education. However, the statute does not further define “comparable services.” 

In the case, Michael Bruno, et al. v. Northside Independent School District, a pre-school child whose family moved from Florida to Texas had his services cut by half, from a full-day to half-day. The family sued in federal court, but the trial judge found the half-day program was comparable to the full-day program. The case was appealed to the Fifth Circuit.

In its brief, prepared by students with supervision from Clinic Director Jane Wettach, William B. McGuire Clinical Professor of Law, the clinic argued that the starting place for “comparable” should be the same, unless the new district is unable to provide the same services.

“Comparable services should be defined as the same services as those included as part of the child’s previous IEP unless provision of the same services is not feasible,” the brief states. “When the same services — in type, amount, duration, and frequency — cannot be feasibly provided, the new district should take reasonable steps to replicate the services as closely as possible.”

Larry Hong ’20, one of the students who worked on the brief, said he was disturbed by the facts of the case and shocked by the trial judge’s ruling.

“I worried that if halving education services still passes the ‘comparable services’ muster, this requirement would be rendered essentially meaningless,” he said. “Because our clinic deals with many clients whose families have to frequently move across state lines, this statutory requirement is important in ensuring that the child’s education is minimally disrupted during the transitions.”

Alexandra Farrell ’19 said that preparing the brief was a challenging experience, but ultimately a gratifying one.

“Working on this assignment gave me a lot of appreciation for the strengths of the other team members,” she said. “Every part of the experience was collaborative, from coordinating in the early stages of research and drafting to putting the finishing touches on the brief. I had never before contributed to the preparation of an amicus brief, and the amount of time and effort required would have seemed overwhelming if our team hadn’t worked so well together.”