State Graduation Requirements vs. Special Education Law – Who Wins?

Before I answer the question in the title, let me share a true story.

I appeared before a special ed hearing officer on behalf of a child with a disability – let’s call the child Chris (changed to protect identity).  Chris has severe learning disabilities and is far behind age-equivalent peers.  Chris does not do well in English class.  Chris is forced take Spanish as a foreign language requirement.  I suggested to the hearing officer that Chris should be excused from the foreign language requirement.  The school district attorney said that can’t happen because there is a state requirement that must be fulfilled.  The hearing officer agreed and said that Chris could simply go to Spanish class and they could have parties and poke a pinata to meet the requirement. . . .

I paused, not quite sure that I heard the hearing officer correctly.  I said, “Really?” in a disgusted tone.  The fact that a hearing officer could be that ignorant, discriminatory towards children with disabilities, and racist was quite shocking to me.  But that’s not the entire point of the story.

State Graduation Requirements

Most states have mandatory requirements for graduation.  For example, in New Jersey, here is the list of subject areas and number of credits required to graduate high school:

  • Language arts literacy: 20
  • Math: 15
  • Science: 15
  • Social studies: 15
  • Financial, economic, business and entrepreneurial literacy: 2.5
  • Health, safety and physical education: 3.75 per year
  • Visual and performing arts: 5
  • Career-technical education: 5
  • World languages: 5

But what if your child has a disability that limits or prohibits his/her participation in gym class? Or if your child’s disability is dyslexia or other learning disability that makes participation in foreign language class an impossible task?  What if the disability clashes with these graduation requirements?

What IDEA Says

The Individuals with Disabilities Education Act (IDEA) does not directly address state graduation requirements.  However, IDEA does provide that an Individualized Education Program (IEP) must include “a statement of the program modifications or supports for school personnel that will be provided for the child.” 1

The IEP must also include “an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities” 2 and “a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and districtwide assessments.” 3 In other words, the school district can provide accommodations so the child can still meet standardized testing.  The last I checked, physical education and foreign language are not parts of state standardized tests.

Now we have a clash – state requirements mandate things that your child can’t do vs. IDEA says you can design an IEP to modify these requirements.  School districts must provide accommodations or modify the curriculum in an IEP so as to  “be appropriately ambitious in light of [the child’s] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” 4

Who Wins This Cage Match?

IDEA should win.  I say “should” because not all judges understand what we all learned in grade school civics class – that federal law is more powerful than state law. This is commonly referred to as the Supremacy Clause of the U.S. Constitution which reads:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

U.S. Constitution, Article VI, Paragraph 2.  The Supremacy Clause prohibits states from interfering with the federal government’s exercise of its constitutional powers and from making or altering any laws that are exclusively entrusted to the federal government

IDEA is federal law established by Congress.  States may not make laws or rules that conflict with the federal government’s law-making powers or laws established by Congress.

Six years ago a federal appeals court addressed this problem in the context of a special education case.  The U.S. Court of Appeals for the Third Circuit wrote:

Under the doctrine of federal preemption, which is rooted in the Supremacy Clause of the Constitution of the United States, state laws are invalid if they “’interfere with, or are contrary to, federal law.’” Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 242 (3rd Cir. 2008) (quoting Hillsborough Cnty. v. Automated Med. Labs., 471 U.S. 707, 712 (1985)). “There are three types of preemption: express preemption and two types of implied preemption, field preemption and conflict preemption.” Treasurer of N.J. v. U.S. Dep’t of Treasury, 684 F.3d 382, 406 (3rd Cir. 2012). Conflict preemption is found where “compliance with both federal and state regulations is a physical impossibility,” Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or where state law erects an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Farina v. Nokia Inc., 625 F.3d 97, 115 (3rd Cir. 2010) (internal quotation marks omitted).

R.B. v. Mastery Charter School, 532 Fed. Appx. 136 (3rd Cir. 2013).  That Court went on to hold that the ‘Stay Put’ Rule under IDEA prevailed over Pennsylvania state truancy law.  The state law said that if a student is absent for 10 or more consecutive days, then the student can be disenrolled. 5  The Court said that because R.B. had an IEP and had initiated a complaint against Mastery Charter School, federal ‘Stay Put’ won over the state disenrollment law and the school could not disenroll R.B.

A Final Word?

This is not likely the final word on this issue.  But it is an argument that parents should make if a state law – like a graduation requirement – conflicts with the rights of a child with a disability under federal IDEA law.  That also includes other federal laws, like the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (§504).  Hopefully, federal law wins and, more importantly, the children win!


1 20 U.S.C. §1414(d)(1)(A)(i)(IV).

2 20 U.S.C. §1414(d)(1)(A)(i)(V).

3 20 U.S.C. §1414(d)(1)(A)(i)(VI)(aa).

4 Endrew F. v. Douglas County School Dist., 137 S.Ct. 988, 1000, 580 U.S. ____, 197 L. Ed. 2d 335 (2017).

5 22 Pa. Code §11.24.

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