By John Worthington, Esq., Coordinator of Special Education Law, Foundation for Educational Administration
In accordance with the Individuals with Disabilities Education Act (IDEA), students with disabilities are entitled to a free, appropriate public education from their local public school district. Eligibility for special education and related services can end for one of three reasons. Students lose eligibility if they exceed the age of eligibility in the state (21 in New Jersey), they are declassified, or if they graduate. The third basis for losing eligibility for special education and related services, graduating with a high school diploma, was the subject of a recent decision of the New Jersey Supreme Court and provides clarification of when a student with disabilities is considered to have graduated in accordance with New Jersey law and the requirements of IDEA.
State-Issued v. State Endorsed Diplomas and FAPE
On August 7, 2024, the New Jersey Supreme Court, in M.N. o/b/o A.D. v. Board of Education of the Township of Sparta, addressed the questions of whether receipt of a high school diploma through the GED process constitutes graduating for purposes of losing entitlement to a FAPE under the IDEA in accordance with New Jersey laws. The court answered the question in the negative.
The court in Sparta noted that the implementing regulations for IDEA provide that a student with disabilities is entitled to a FAPE unless the student has graduated with “a regular high school diploma.” See, Supreme Court decision at page 17, citing 34 C.F.R. § 300.102(a)(3)(i). The court then notes that a regular high school diploma is defined in the federal regulations as:
… the standard high school diploma awarded to the preponderance of students in the State that is fully aligned with State standards, or a higher diploma, except that a regular high school diploma shall not be aligned to the alternate academic achievement standards described in section 1111(b)(1)(E) of the [Elementary and Secondary Education Act,] ESEA. A regular high school diploma does not include a recognized equivalent of a diploma, such as a general equivalency diploma, certificate of completion, certificate of attendance, or similar lesser credential. (IBID. Emphasis added)
The court then notes that, in New Jersey, there are State-endorsed high school diplomas and State-issued diplomas. The court notes that:
A “State-endorsed high school diploma” is awarded by “[d]istrict boards of education.” N.J.A.C. 6A:8-5.2(a). “All students who meet State and local graduation requirements shall receive a State endorsed diploma . . . .” N.J.S.A. 18A:7C-4. “[S]tudents not meeting these standards” may not receive a State endorsed diploma. Ibid. The DOE thus defines a “State-endorsed diploma” as “a locally-issued document awarded to an exiting student indicating successful completion of high school graduation requirements.” N.J.A.C. 6A:8-1.3. (ID at 18)
In contrast, as to State-issued diplomas, the court noted:
State-issued diplomas, on the other hand, are issued not by local school districts, but by the Commissioner, and they do not require students to meet these same graduation requirements. Pursuant to N.J.S.A. 18A:50A-1, [a] State-issued high school diploma shall be provided by the New Jersey Department of Education to persons 16 years of age or older and no longer enrolled in school to document the attainment of academic skills and knowledge equivalent to a high school education. Demonstration of the appropriate level of academic competency for receipt of the State-issued high school diploma shall include, but need not be limited to, passage of the Tests of General Educational Development (GED) of the American Council on Education. 6 (Id. At 19, emphasis added)
The distinction between the diplomas is considered significant by the court, as one requires that student meet the graduation requirements in State laws and regulations, and the other does not. Rather, the court concluded that a State-issued diploma is not a “regular high school diploma” as required by IDEA, and thus its receipt does not end a student’s entitlement to a FAPE from their local school district. Instead, students who receive a GED can return at any time prior to the end of the school year in which they turn age 21 and seek to reenroll and once again receive a FAPE from the district. This conclusion is consistent with IDEA’s requirement in 34 C.F.R. § 300.102(a)(3)(i) that students must graduate with a high school diploma that is fully aligned with state standards and is issued to the preponderance of students in the state.
Future Implications for Disenrolled and Declassified Students?
While the decision in Sparta answers the question of whether receiving a GED constitutes graduating for purposes of retaining eligibility for special education and related services, the decision raises further questions. On such question is whether a student with disabilities who withdraws (or disenrolls) from school can return at any time prior to the completion of the school year in which they turn age 21? Another question raised is what is the status of a student with disabilities who has been declassified prior to turning age 21? Based on the Sparta decision and applicable law, and as discussed below, in both instances students with disabilities may be entitled to return to their district of residence and seek an IEP providing them a FAPE, if they remain eligible for special education and related services.
With respect to a student who withdraws, or disenrolls, from school, both IDEA and New Jersey regulations provide that they may re-enroll at any time and seek special education and related services. N.J.A.C. 6A:14-2.1 provides that:
- Prior to receiving a high school diploma, a student with a disability age 16 through 21 who voluntarily leaves a public school program may reenroll at any time up to and including the school year of his or her 21st birthday.
This provision affords student with disabilities the ability to return to school at any time prior to age 21 unless they have graduated. In accordance with the Sparta decision, graduating means receiving a state endorsed diploma fully aligned with state standards, which does not include the GED. Thus, while a district can and should remove a student with disabilities from its rolls after they disenroll, districts should remain prepared to serve these students should they return prior to, or during, the school year in which they turn age 21. This does not mean that the district would reinstitute the IEP that the student had when they left the system, but rather, that the district must again serve the student if they remain eligible for special education and related services. It is suggested that a district treat all such students as transfer students in these cases and provide services comparable to those in the prior IEP until a new IEP is developed or the student is determined to not be eligible for special education and related services in accordance with IDEA and State regulations. However, districts should consult their attorney for advice on how they should proceed in these cases.
With respect to students who are declassified and leave school prior to graduating with a state endorsed diploma, the law is not clear on how to treat them should they return prior to age 21. The Sparta decision leads one to conclude that they may be entitled to seek special education and related services from their district should they return prior to age 21. This does not mean that a student would necessarily be determined eligible, but it appears a student would be able to return at any time and seek an evaluation for eligibility for special education and related services prior to the conclusion of the school year in which they turn age 21. This is because in a case such as this, the student never received a state-endorsed diploma, but rather, was declassified. While it can be reasonably argued that such students need not be evaluated if they return prior to age 21, the Sparta decision calls into question whether that is an appropriate course of action. As noted with respect to students who disenroll while eligible, districts should consult their board attorney if faced with this question and proceed in accordance with their advice.
In sum, while the Sparta decision clarifies what it means to graduate and lose eligibility for special education and related services, students who drop-out or disenroll, and students who are declassified, fall into a gray area, and districts should proceed in accordance with their attorney’s advice when determining how to proceed if they return and seek services prior to the end of the school year when they turn age 21.