An Update of Judicial Rulings Specific to FBAs or BIPs Under the IDEA and Corollary State Laws

Abstract

Exemplifying the insufficient treatment of legal issues in refereed journals in special education and related fields, the limited legal coverage of functional behavioral assessments (FBAs) and behavior intervention plans (BIPs) tends to view the applicable case law through normative lenses. This skewed view characterizes the case law as requiring FBAs and BIPs rather broadly in terms of entitlement and rather rigorously in terms of appropriateness. In stark contrast, this systematic analysis of 91 recent judicial rulings concerning FBAs and BIPs reveals that, aligned with the trajectory of previous court decisions, the outcomes favor the defendant districts on almost a 7:1 ratio and that the pronounced prodistrict trend applies to entitlement as well as appropriateness. Special education professionals need careful differentiation of legal requirements from professional norms to make informed choices about FBAs and BIPs that balance the individual interests and the competing priorities within limited resources of school districts.

A Case Study of Federal Leadership Perspectives on Special Education

“…Many publications outline persistent issues of equity for students with disabilities (e.g., Castro-Villarreal et al, 2016; Skiba et al, 2008), disproportionate (overrepresentation and underrepresentation) number of students of color in special education (e.g., Artiles et al, 2010; Zhang et al, 2014), impact of standardization and accountability on students with disabilities (e.g., McLaughlin & Thurlow, 2003), and implementation, promises, and pitfalls of RtI (e.g., Balu et al, 2015; Castro-Villarreal et al, 2016). The literature also provides varied perspectives of groups involved in implementation of special education policies (Vannest et al, 2009) and trends in special education litigation (e.g., Karanxha & Zirkel, 2014; Zirkel, 2017). Missing is the perspective of those who served in leadership positions at the federal level and ushered in the policies that reflect and represent special education today.…”

Toward a Systematic Review of Legal Cases: Secondary Transition and Students With Disabilities Over the Last 5 Years

“…In his commentary, Zirkel (2018) described his coding system in three parts: procedural or substantive characterization of FAPE, outcome of the ruling, and documentation notes. He further described a coding mechanism as the following: “the original draft of the spreadsheet included columns for subcategories of the framework, such as assessment and goals, and subcategories from the seemingly analogous IEP issue of FBAs-BIPs (Zirkel, 2017), which were entitlement, appropriateness, and implementation” (p. 140). However, this coding was not applied to this study, because “the decisions generally lacked sufficient detail to code these variables” (Zirkel, 2018, p. 140).…”

Commentary on Zirkel: Judicial Rulings Specific to FBAs or BIPs Under the IDEA and Corollary State Laws—An Update

“…It is both appropriate and helpful to review the specifics of federal law requirements, and the nuances provided by a growing body of case law. Zirkel ( IN PRESS ) provides both a perspective on and a professional summary of the existing law related to use of functional behavioral assessment (FBA) and behavior intervention plans (BIP). The core message is that while use of FBA as part of a comprehensive assessment that guides the design of a BIP remains best practice, it is not a federal mandate for students who engage in behavior that impedes learning unless there is a determination that the problem behavior is a manifestation of the student’s disability.…”