Like so many special education terms, “bricks and mortar” has a unique meaning. Because this phrase is usually part of a Free Appropriate Public Education (“FAPE”) analysis, I always keep the factual context in mind. Just like the Committee on Special Education’s (“CSE”) responsibility to make an appropriate program, they also have the duty to ensure “implementation” of the Individualized Education Program (“IEP”).
A 2014 District Court ruling in favor of parent and student summarizes the law:
The ability of the DOE to assign students to particular schools is limited by two requirements.
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- First, “parents have a procedural right to evaluate the school assignment, i.e., the right to acquire relevant and timely information as to the proposed school.”
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- Second, the school must be capable of implementing the IEP. “The Department may select the specific school without the advice of the parents so long as it conforms to the program offered in the IEP.” [1]
Here is a way that the issue may arise: A parent files a detailed complaint notice asserting procedural and substantive violations, including a claim that the District cannot implement the IEP at the proposed school (the physical address (bricks and mortar). With respect to the issue of FAPE, the District would call a witness to testify about the propriety of the CSE meeting and the appropriateness of the resultant recommendation. In this scenario, a second witness would be called to explain that the ‘bricks-and-mortar’ institution where the Student was assigned would have been unable to implement his IEP.
Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself. [2] However, a district’s assignment of a student to a particular public school site must be made in conformance with the CSE’s educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP. [3] [4]
So, for example, if the IEP recommends a self-contained 12:1:1 class but the bricks and mortar, school of location has no classrooms with that configuration; only 6:1:1, then, the School District would have to answer to that shortcoming. Not to say that Parents have veto power in making placement decisions. To the contrary. [5] Likewise, if the IEP calls for significant mainstreaming, but the school of location only has self-contained classrooms, the IEP can not be implemented at that location. This is an issue that should be resolved.
This pronouncement came from a case where the parents claimed that the students at the target school had been historically underserved when it came to related services. Let’s say that a student is bilingual and the IEP provides for bi-lingual instruction. When the parents go to check out the school they learn that there is no bilingual teacher on staff. Do they have a claim? I would be careful about this situation and try to resolve it short of a hearing. After all, a bilingual teacher could be added to the staff before the mailman delivers your complaint.
I would anticipate a bricks and mortar issue in a very large school district with multiple elementary schools, each with different resources. It might also arise if the District sends a Student to a BOCES location when the CSE is not familiar with the BOCES resources and a representative is not at the CSE meeting. In a large municipal setting the bricks and mortar of the school of location is a matter for regular vigilance.
Remember, the Individuals with Disabilities Education Act (“IDEA”) does not confer rights to the parents to select the school site. But, IDEA does protect against the frustration of an otherwise appropriate IEP when the issue concerns the bricks and mortar of the proposed placement. By keeping aware of this issue and others like it you are in a better position to communicate with your CSE and avoid the controversy that miscommunication brings.
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[1] See Internal citations omitted. V.S., by his parent, D.S. v. NEW YORK CITY DEPARTMENT OF EDUCATION 25 F. Supp. 3d 295 (2014).
[2] See R.E. v. New York City Dep’t of Educ. , 694 F.3d 167 at 186-88 (2nd Cir. 2012).
[3] See M.O. v. New York City Dep’t of Educ., 793 F.3d 236, 244 (2d Cir. 2015).
[4] See T.Y., K.Y., on behalf of T.Y., v. NEW YORK CITY DEPARTMENT OF EDUCATION, 584 F.3d 412 (2nd Cir. 2009). “Educational placement” refers to the general educational program — such as the classes, individualized attention and additional services a child will receive — rather than the “bricks and mortar” of the specific school. Thus, while the failure to specify a school site may render an IEP substantively inadequate, it does not “constitute a per se procedural violation of the IDEA.” Id.
[5] See C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 79 [2d Cir. 2014]. While the IDEA acknowledges that the parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site. The Second Circuit has explained that “[s]peculation” that the district placement will not adequately adhere to the IEP is not an appropriate basis for unilateral placement” (R.E., 694 F.3d at 195). In other words, a prospective challenge that a school will not be able to deliver related services, is too speculative and that type of claim will not, by itself, support a reimbursement claim.the