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(3.28) Several special education eligibility categories require that a student’s condition or disability “adversely affect educational performance.” What does that phrase mean?

(3.28) Several special education eligibility categories require that a student’s condition or disability “adversely affect educational performance.” What does that phrase mean?

Neither federal nor state law defines the term “adversely affect educational performance.”  Therefore, a review of the court cases interpreting this phrase is necessary to understand how it has been applied.  Courts have interpreted the phrase to mean that education is adversely affected if, without certain services, the child’s condition would prevent her from performing academic and nonacademic tasks and/or from being educated with non-disabled peers.  [Yankton School District v. Schramm, 93 F.3d 1369 (8th Cir. 1996).]  For example, for a child with an orthopedic impairment, the Court in Schramm identified many services (help moving between classes, getting on and off the bus, going up and down stairs, carrying a lunch tray, setting up the child’s saxophone for band, extra sets of books for home and school so that carrying them back and forth was unnecessary, shorter written assignments, instruction in typing with one hand, photocopies of teachers’ notes, and computers in certain classes) that if not provided would have resulted in the orthopedic condition having an adverse effect on educational performance.  The court found this to be true because without these services the student would have had difficulty taking notes, completing assignments, getting to class on time, and getting to class with her books.  The same court found that because the student was college-bound, the absence of these services, as well as special education transition services (driver’s education, self-advocacy, and independent living skills), would have allowed her orthopedic impairment to adversely affect her educational objective of post-secondary education.

In California, the administrative hearing office has found poor grades to be a primary indicator of an adverse effect on educational performance.  [Lodi Unified Sch. Dist., SN 371-00; Capistrano Unified Sch. Dist., SN 686-99, 33 IDELR 51; Ventura Unified Sch. Dist., SN 1943-99A; Murrieta Valley Unified Sch. Dist., SN 180-95, 23 IDELR 997.]  The hearing office has also found that a condition adversely affects educational performance if it causes poor school attendance. [Sequoia Union High School District, SN 1092-95.]  Poor grades and falling behind academically are also examples of adverse effect on educational performance.  [Enterprise Elem. Sch. Dist., SN 1055-89.]  In addition, a student’s condition, which caused declining grades and conduct at school, resulted in an adverse effect on educational performance.  [Sierra Sands Unified Sch. Dist., SN 1367-97, 30 IDELR 306.]

Many schools evaluate whether a child’s condition has an adverse effect on her educational performance strictly on the basis of grades or the child’s scores on standardized tests.  Although grades and, perhaps, standardized test scores may be one measure of educational performance, the law and the courts take a broader view.  When determining whether a child’s educational performance was adversely affected by the child’s emotional condition, the federal appellate court governing California requires that consideration also be given to a student’s need for behavioral and emotional growth.  [County of San Diego v. California Special Education Hearing Office, et al., 93 F.3d 1458, 1467 (9th Cir. 1996).]  Although some students test well when taking standardized tests, the law does not require poor standardized test scores in order to find an adverse effect on educational performance.  The courts have established that a child’s educational needs include academic, social, health, emotional, communicative, physical, and vocational needs.  [Seattle School Dist. No. 1 v. B.S., 82 F.3d 1493, 1500 (9th Cir. 1996).]

Federal special education law also distinguishes between “educational” performance and “academic” performance and establishes that “educational” performance is a broad concept.  For example, children must be assessed by schools in all areas of suspected disability.  [20 U.S.C. Sec. 1414(b)(3)(B).]  Those areas are defined by federal regulations to include: health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.  [34 C.F.R. Sec. 300.304(c)(4).]  Academic performance is only one of the areas in which children must be assessed.  Congress and the California Legislature could have used the narrower term “academic performance” when writing the definitions of conditions which would qualify a child under eligibility categories such as Emotional Disturbance, Other Health Impaired, Orthopedic Impairment, Intellectual Disability, Speech or Language Impairment, Visual Impairment, Hearing Impairment, Deafness.  However, they did not.  Congress and the California Legislature used the broader term “educational performance” in these eligibility definitions.  In addition to grades and standardized tests scores, schools must consider how a child’s emotional, health or other conditions adversely affect her non-academic performance in social, behavioral and other domains as well.