Thursday, March 23, 2017
Supreme Court Requires Opportunity for Special Education Students to Make Progress, Not Just Receive Minimal Benefits by Mark Weber
On March 22, the Supreme Court decided Endrew F. v. Douglas County School District RE-1. The Court overturned a lower court decision that had applied a “merely more than de minimis” test to the duty to provide appropriate education to children with disabilities in public schools. The case involved a child with autism whose parents placed him in a private school because they were dissatisfied with the progress he was making under his fourth grade individualized education program (IEP) and thought he was unlikely to achieve much more under a similar IEP proposed for fifth grade. He continued to have severe behavior problems in his public school setting, including screaming in class, climbing over furniture and classmates, and running away, and manifested extreme fear of commonplace aspects of his environment. His parents believed his academic progress had stalled. In the private school, he made rapid progress with a behavioral intervention plan, and the improved behavior allowed him to make academic gains. His parents sought tuition reimbursement, as permitted under the Individuals with Disabilities Education Act (IDEA), which requires that states receiving federal funds for special education guarantee each child with a disability a free, appropriate public education. The administrative law judge, the district court, and the Tenth Circuit all ruled against the parents. The Tenth Circuit interpreted the Supreme Court’s sole case on the appropriate education standard, Board of Education v. Rowley, 458 U.S. 176 (1982), to require simply that the child be offered some educational benefit, interpreted as merely more than de minimis.
The Supreme Court vacated and remanded. In a unanimous opinion by Chief Justice Roberts, the Court read Rowley as steering a middle course between no enforceable appropriate education standard at all and the standard endorsed by the lower courts in that case, an education affording the child an opportunity to achieve her full potential commensurate with the opportunity provided children without disabilities. The Endrew Court stressed Rowley’s language requiring a substantively adequate education as well its proviso that its analysis was limited to the facts of that case and did not establish a universal test. Endrew said that Rowley pointed to a rule that the school has to offer an IEP reasonably calculated to enable the child to make progress in light of the child’s circumstances. Though this focuses on the reasonable, not the ideal, the standard keys into student progress; moreover, the program must be individualized to afford progress given the child’s unique needs. The Court reaffirmed Rowley's conclusion that for a child being educated in the general education classroom, passing marks and advancement from grade to grade through the general curriculum will ordinarily satisfy the IDEA standard (though the Court cautioned in a footnote that “This guidance should not be interpreted as an inflexible rule,” to be applied automatically). But it rejected the standard of the Tenth Circuit and courts like it that for children not in the regular classroom, offering merely de minimis progress is enough.
The Court rejected the parents’ position that in light of amendments to IDEA since Rowley, children are entitled to an education that affords opportunities to attain self-sufficiency and contribute to society substantially equal to opportunities afforded children without disabilities. The Court did not see the amendments to the Act over the years as adopting the proportional maximization standard that Rowley rejected. The Court also cited a need for deference to school authorities’ educational judgment. Nevertheless, parents, their advocates, and many other observers are likely to be pleased that the Court has rejected the low standard applied by the Tenth Circuit and many, many other courts and clarified that the law imposes a more demanding standard oriented towards the child’s progress and the child’s individual needs.
The decision is found at https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf
Friday, March 10, 2017
What Is an "Appropriate" Education for Students with Disabilities?; The Court Will Tell Us Soon by Jonathan D. Glater
Just how much must a school district do to support the educational opportunity of a disabled student? Just enough to enable that student to get something, anything, out of the education provided? Or enough to enable that student to thrive, to excel?
The question has confronted courts for years, as parents of disabled children have demanded that school districts do more to provide their children a “free appropriate public education.” But the meaning of this phrase, typically abbreviated as “FAPE,” has eluded precise definition. When the Supreme Court addressed the question, in Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), a majority concluded that
[A] “free appropriate public education” consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child "to benefit" from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State's educational standards, approximate the grade levels used in the State's regular education, and comport with the child's [individualized education program – more on that below]. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a "free appropriate public education" as defined by the Act.
The Court’s language suggests that any benefit is sufficient to satisfy the requirement that schools provide FAPE; Justice Rehnquist, who wrote the majority opinion, took a very literal and formal approach to the language of the law to reach this Court’s conclusion.
Congress imposed the FAPE mandate in the Education for all Handicapped Children Act of 1975, Public Law 94-142, subsequently re-enacted as the Individuals with Disabilities Education Act (“IDEA”). The meaning of FAPE is before the Court again this year.
The plaintiff in Endrew F. v. Douglas County School District RE 1 was diagnosed at age two with autism and attention deficit/hyperactivity disorder (“ADHD”). As a result of these conditions, he “struggles with the ability to communicate personal needs, emotions and initiations [sic], and does not engage or interact with others in social routines or play.” Endrew F. v. Douglas County School District RE 1, 2014 WL 4548439, *1.
During his fourth grade year, his parents removed him from his public school in Douglas County, Colo., and placed him in a private school specializing in education of children with autism. His parents sued, claiming that the school district in prior years had failed to provide the boy with a FAPE and demanding that the district reimburse them for the cost of attending the private school.
An administrative law judge ruled against Endrew F.’s parents, finding that he received a FAPE, and so concluded that his family was not entitled to reimbursement of expenses. The trial court judge, who reviewed Endrew F.’s progress in public school before he switched, concluded that Endrew F. had received some educational benefit under the individualized education program (“IEP”), the kind of plan called for under IDEA. The district had developed Endrew F.’s IEP in an effort to comply with the FAPE mandate.
A panel of the Tenth Circuit Court of Appeals affirmed the district court, and the Supreme Court granted certiorari. The precise question that the case presents to the Supreme Court, which heard oral argument in January, is this:
What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate education guaranteed by the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq.?
The deeper issue is the meaning of equality. A demand for equal treatment is not satisfied by providing light for the seeing and the blind student alike.
IDEA seeks to “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living,” 20 U.S.C. §1400(d)(1)(A). But how are we to know that a given level of support has leveled the playing field for a disabled student?
Answering will only grow more difficult as we recognize students’ incredible diversity; students’ ability to take advantage of educational offerings lies along a spectrum. So the assumption that a one type of education serves nearly all will become one type serves some, and then, one type serves a few. Whether schools’ offerings evolve in response will likely be a political question rather than a doctrinal one.
Still, depending on how broadly the Court rules, the decision in Endrew F. could have far-reaching consequences, imposing clearer obligations on school districts to support disabled students or putting another hurdle in the way of parents seeking the best for their children. By June we will know whether a majority of the justices prefer the limited and formalistic interpretation of the majority in Rowley or a more idealistic interpretation that may impose greater costs on schools and would afford appropriate benefits to students.
Thursday, February 23, 2017
On Wednesday, Feb. 22, 2017, the Supreme Court decided Fry v. Napoleon Community Schools, No. 15-497. The case concerned a student with cerebral palsy who was denied permission to bring her service dog, a goldendoodle named Wonder, to school. The dog aids her by retrieving objects, helping her balance when she uses her walker, and performing other tasks independently of assistance from adults or others. Although she eventually obtained permission to use the dog through an Office for Civil Rights complaint, the child’s parents thought that there might be resentment and difficulty with obtaining full cooperation from the school. They moved her a different school district and sued the original one under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, seeking declaratory relief and damages. The Sixth Circuit affirmed dismissal of the case on the ground that the family had not exhausted the due process hearing procedure available under the Individuals with Disabilities Education Act. The Supreme Court vacated the decision and remanded the case.
Section 1415(l) of 20 U.S.C. provides that IDEA procedures have to be exhausted when an action is filed under the ADA, Section 504, or other laws that “seek[s] relief that is also available” under IDEA. The Court, per Justice Kagan, said IDEA makes relief available for denials of free, appropriate public education (FAPE) and that in determining whether a lawsuit seeks relief for a denial of FAPE, courts should look to the substance (the “gravamen”) of the complaint. The gravamen depends on the framing of the complaint, rather than an inquiry whether the family could have sought relief under IDEA, but the use or failure to use a given label does not matter. The Court said there are possible clues about whether the gravamen is denial of FAPE: whether essentially the same claim could have been brought in a situation where there is no FAPE obligation, as with a suit for access to a public library that lacks ramps, or whether a suit similar to the one brought by the family could have brought by an adult visitor or employee (no exhaustion would be required in a similar case brought by a student against a school district). The opinion also suggested that if the parents initiated proceedings under IDEA, that is an indication that the gravamen of the complaint is a denial of FAPE. Justice Alito (with Justice Thomas) concurred in part and concurred in the judgment. He disagreed about the “clues,” arguing that they did not take full account of the overlap between the disability discrimination laws and IDEA. In particular, the initiation of proceedings under IDEA might be based on parental misunderstanding of the legal rule or a later-abandoned decision about what relief to seek.
I think a large number of observers will welcome what appears to be a thoughtful and more liberal approach to when cases that bypass administrative procedures should be heard by courts. The Court’s approach seems similar in some regards to the liberalization that the Ninth Circuit undertook in Payne v. Peninsula School District, 653 F. 3d 863, 874 (2011). I share the concerns of Justice Alito, though, that the clues that the majority opinion relies on are at best incomplete and may, in the instance of initial filing of proceedings under IDEA, be misleading. In a number of cases, courts have recognized that ADA and Section 504 require school districts to provide services that are greater than those entailed by IDEA’s duty to provide FAPE. The leading example is K.M. v. Tustin Unified School District, a case in which deaf students lost their IDEA claim for communication access real-time captioning but prevailed on their claim under the ADA. To require IDEA exhaustion in a case in which the school district argues and the family concedes that the relief is unavailable under IDEA seems nonsensical, even if the family thought at some point it might succeed under IDEA and filed (and later abandoned) a due process challenge.
The Court explicitly left undecided the issue whether exhaustion would be required when the complaint under the ADA or other laws concerns the denial of FAPE but the specific remedy asked for is compensatory damages beyond reimbursement for actual expenses, damages relief that courts generally agree is not relief available under IDEA. The literal terms of the statute would dictate that exhaustion is not required, but concerns have been raised that litigants should not be able to bypass exhaustion simply by adding an ADA or Section 504 damages claim for emotional distress to their suit.
Friday, January 27, 2017
A “Meaningful” Opportunity to Alleviate the School-to-Prison Pipeline for Students with Disabilities
Jason Langberg and Sarah Morris have published a new article, Endrew F. v. Douglas County School District: A “Meaningful” Opportunity to Alleviate the School-to-Prison Pipeline for Students with Disabilities, in the Denver Law Review. They offer this introduction:
Brandon and Tyler are both sixth grade students with individualized education programs (IEPs) for their serious emotional disabilities. Pursuant to his IEP, Brandon is in a behavioral support class that focuses on social and emotional learning for 60 minutes every day. He also receives psychological services twice a week and his parents receive counseling, twice a month, on how to work with Brandon. A behavioral intervention plan (BIP) that focuses on teaching replacement behaviors and reinforcing positive behaviors is part of Brandon's IEP. Finally, his IEP includes specific, measurable, and attainable behavioral goals. Tyler's IEP, on the other hand, mirrors the boilerplate IEP given to most middle school students with emotional disabilities in the district. It provides for 30 minutes of generic special education twice a month and no related services. Tyler has a BIP, but it focuses on punitive consequences.
Brandon graduated from high school and earned a scholarship to college. Tyler spent the next few years frequently suspended, referred to law enforcement, and failing classes. He eventually dropped out of school and became ensnared in the prison industrial complex.
The primary cause of the disparate outcomes for Brandon and Tyler was where they went to school. Under the current state of special education law, as eligible students with disabilities (SWD), both were entitled to a free appropriate public education (FAPE). However, Brandon was entitled to "meaningful" services in his state, whereas Tyler was entitled to services that were only "just above trivial" in his state.
The U.S. Supreme Court takes up this incongruity in its upcoming term, with implications well beyond the mere formulation of a consistent legal standard. Its decision in Endrew F. v. Douglas County School District will ultimately either worsen or alleviate the "school-to-prison pipeline" for SWD.
Get the full article here.
Wednesday, January 4, 2017
Identifying students with a disability is not an exact science. Scholars have long-since documented both the over- and under-identification of certain demographic groups with certain disabilities. As Theresa Glennon argued in Race, Education and the Construction of a Disabled Class, educational disabilities can be a proxy for the perception that a student diverges from the cultural norm. Thus, year-to-year variances in the number of students identified as having a disability that affects educational opportunity are to be expect. Minor upward and downward shifts are not necessarily an indicator of negligence or ulterior motives.
With that said, the Houston Chronicle has made the case that the state of Texas has systematically reduced its special education population for no legitimate reason. This chart shows that the state's special education population has shrunk by more than 25% in the past decade. The numbers are even more drastic when the state is broken down by region. A number have seen their special education population shrink by a third. See here.
The reason, cites the Chronicle, is clear: the state mandated a cap on the number of students in special education.
Over a decade ago, the officials arbitrarily decided what percentage of students should get special education services — 8.5 percent — and since then they have forced school districts to comply by strictly auditing those serving too many kids.
Their efforts, which started in 2004 but have never been publicly announced or explained, have saved the Texas Education Agency billions of dollars but denied vital supports to children with autism, attention deficit hyperactivity disorder, dyslexia, epilepsy, mental illnesses, speech impediments, traumatic brain injuries, even blindness and deafness, a Houston Chronicle investigation has found.
Once the message went out to districts, things moved quickly.
The Texas Education Agency had determined that they had too many students in special education, the administrators announced, and they had come up with a plan: Remove as many kids as possible.
The staffers did as they were told, and during that school year, the Laredo Independent School District purged its rolls, discharging nearly a third of its special education students, according to district data. More than 700 children were forced out of special education and moved back into regular education. Only 78 new students entered services.
"We basically just picked kids and weeded them out," said Maricela Gonzalez, an elementary school speech therapist. "We thought it was unfair, but we did it."
Gonzalez's account, confirmed by two coworkers and district documents, illustrates how some schools across Texas have ousted children with disabilities from needed services in order to comply with an agency decree that no more than 8.5 percent of students should get specialized education.
The Chronicle did a multiple series and data collection. See here.
Given the costs of special education, I suppose it does not entirely surprise me that the state might give such a ploy a shot. What does surprise me is that it was allowed to happen under the watch of the U.S. Department of Education or courts, if they were alerted. Yet, given the individual nature of special education determinations, courts and agencies can often demand a showing that each individual student has been denied their rights. As a result, larger trends can go unchecked until a number of individual cases are substantiated. In any event, the Department announced this past fall that it was sending officials to the state to investigate the matter.
Monday, November 14, 2016
Students in Flint, Michigan, recently filed suit in U.S. District Court against the Michigan Department of Education, the Flint and Genesee school districts. They allege that exposure to lead in the school system can exacerbate learning disabilities and warrants a response under the IDEA. Those who followed older research may recall a study a couple of decades ago in Maryland showing that racially disparate lead exposure in the state contributed to long term racially disparate educational outcomes. Kudos to the Education Law Center and the ACLU of Michigan for recognizing the issue in Flint and coming to these students' aid. Gregory Little of the White & Case has also stepped up to provide pro bono services in the case. The press release offers this:
The lawsuit demands that the Michigan Department of Education, Flint Community Schools and the Genesee Intermediate School District take immediate action to ensure that all students who require special education services are identified and provided with the programs and supports they require.
“We know that Flint schools are not currently meeting the needs of special education students, and we know that exposure to lead in drinking water can be highly toxic for children, potentially leading to or exacerbating disabilities” said Jessica Levin, ELC Staff Attorney. “It is imperative that the local district and the State of Michigan make sure students are evaluated and provided with appropriate programs and services, especially now that the number of affected students could grow significantly.”
The lawsuit amply documents the systemic violations of federal law, including the Individuals with Disabilities Education Improvement Act (IDEA), in Flint’s public school system. To remedy this situation and prepare for an expected increase in students requiring services, the plaintiffs ask for screenings and evaluations to identify all students in need of special education services and the provision of those services by sufficient and qualified personnel.
“The lead crisis in Flint has put all children at risk, and the state and local education authorities must take action to ensure the public schools meet their legal mandate of addressing students’ educational needs,” said David G. Sciarra, ELC Executive Director. “It is our privilege and our obligation to represent the families of Flint. We will do all we can to come to a speedy and appropriate resolution of this case.”
For more information about the Flint lawsuit, please read this joint ELC-ACLU of Michigan press release.
Tuesday, November 1, 2016
Yesterday, the Supreme Court heard oral arguments regarding the dispute over whether Ehlena Fry, a 12-year-old Michigan girl with cerebral palsy, can bring her service dog to school. The school had prevented her from doing so and she brought suit. The central issue, however, is narrower than the facts of the case suggest. It is a procedural question regarding whether the student must first exhaust administrative process or could immediately sue the district. The Asociated Press reports that the Court was sympathetic to her case:
Chief Justice John Roberts said it "would be kind of a charade" to force the family through administrative proceedings if they can't ultimately get the relief they want. He noted that the Frys are seeking money damages for the emotional harm Ehlena suffered, not trying to work out a compromise with school officials.
Justice Stephen Breyer said he was concerned about gutting the less formal administrative process prescribed by Congress, but seemed to agree that allowing the lawsuit made sense if exhausting administrative remedies "would be futile."
But Justice Sonia Sotomayor said she was "horribly confused" by Katyal's position because the family could no longer get anything by going through the administrative process, since Ehlena is no longer at the school.
Interestingly, Samuel Bagenstos, a former official in the Justice Department and nationally regarded civil rights and disability scholar, is representing Fry. He argued that the school is demanding a time-consuming administrative process that would have the effect of denying his client the relief she seeks. He also adds that her case involves emotional damages resulting from the way the school handled the issue. On the other side, the district claims that allowing the suit would give the family an "end run" around the statutory process that is designed to encourage parents and educators to resolve their differences outside of court.
Thursday, September 29, 2016
At Education Week's School Law Blog, Mark Walsh covers the U.S. Supreme Court's cert grant today in Endrew F. v. Douglas County School District RE-1 (No. 15-827), in which the Court may resolve a circuit split on the issue of what level of educational benefit must a child receive under his or her individualized education program, or IEP, for a school district to have provided a free appropriate public education under the Individuals with Disabilities Education Act? Walsh's article is below:
The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled last year in the case of a Colorado child with autism that because the child's public school IEP had provided him with "some educational benefit," the Douglas County district had provided a "free, appropriate public education" under the IDEA. The 10th Circuit court thus rejected a private school reimbursement for the parents of the boy identified as Endrew F. after the parents had pulled him from public school amid the dispute over his 5th grade IEP.
In an August 2015 decision, the 10th Circuit court panel acknowledged that several other federal courts of appeals have adopted a higher standard that requires an IEP to result in a "meaningful educational benefit." But the 10th Circuit, agreeing with a lower court in Endrew F.'s case, said that a key 1982 Supreme Court precedent on special education, Board of Education of the Hendrick Hudson Central School District v. Rowley, merely requires an IEP to provide "some educational benefit."
"The courts of appeals are in disarray over the level of educational benefit that school districts must confer on children with disabilities to provide them with a free appropriate public education under the IDEA," says the appeal filed on behalf of Endrew F. and his parents by his Denver lawyers and the Supreme Court Litigation Clinic at Stanford Law School. "This court should use this case—which cleanly presents the legal issue on a well-developed set of facts—to resolve the conflict over this important question."
In May, the Supreme Court invited the U.S. solicitor general to file a brief expressing the views of the Obama administration. On Aug. 18, Acting Solicitor General Ian H. Gershengorn filed a brief that urged the justices to take up the appeal.
"This court should grant certiorari and overturn the 10th Circuit's erroneous holding that states must provide children with disabilities educational benefits that are 'merely ... more than de minimis' in order to comply with the IDEA," the brief states. "The 10th Circuit's approach is not consistent with the text, structure, or purpose of the IDEA; it conflicts with important aspects of this court's decision in ... Rowley, and it has the effect of depriving children with disabilities of the benefits Congress has granted them by law."
Lawyers for the Douglas County district argued in briefs, including one filed in response to the solicitor general's recommendation to grant review, that the asserted split among the federal appeals courts is "shallow" and that only the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, "has consistently applied a purportedly more demanding 'meaningful benefit' standard."
"The government contends that the IDEA demands something 'more robust'" than the "some benefit" standard, says the school district brief. "The question is whether a state has satisfied its substantive obligations if the IEP it offers provides a child more than a de minimis educational benefit. Under Rowley the answer is yes."
Despite the district's arguments, the Supreme Court on Sept. 29 granted review, one of eight cases the justices added to their docket just before the formal start of their new term on Oct. 3.
The Endrew F. case is likely to be argued sometime early next year.
Thursday, August 25, 2016
On Tuesday, the U.S. Department of Justice filed a lawsuit against the state of Georgia alleging it unlawfully discriminates against students with disabilities through its GNETS program. GNETS stands for Georgia Network for Educational and Therapeutic Supports. The program, which is over forty years old, consists primarily of separate facilities designated for providing education and supports to students with behavioral disabilities. DOJ contends that the program violates Title II of the Americans with Disabilities Act, which prohibits unnecessary segregation on the basis of disability in the public schools. Tuesday’s filing represents the culmination of both years of investigation by DOJ and over a year of negotiations attempting to settle the matter with the state.
DOJ first put Georgia on notice of the potential for such a suit in July 2015, when it sent a Letter of Findings to Governor Nathan Deal and Attorney General Sam Olens. In that letter, DOJ alleged that the GNETS program created incentives for the placement of students with behavioral disabilities in segregated facilities and that those facilities provide opportunities and services that are not equal to those provided in regular education facilities. DOJ found that approximately two-thirds of students in the GNETS program are educated in separate facilities even though the students would benefit from inclusion in the general education environment. It also found that students in these facilities do not have access to art, music, physical education or other non-core classes, unlike students in non-GNETS programs. In addition, DOJ found many stand-alone GNETS program buildings lacked playgrounds, cafeterias, and central or sufficient air conditioning. Some of the stand-alone GNETS programs are housed in the buildings used to educate black students during Jim Crow era segregation.
In response Georgia closed some GNETS facilities and offered to improve others and review each GNETS student’s individualized education plan, which is the special education plan required for every student receiving special education services. However, as DOJ pointed out in its letter of intent to sue earlier this month, the state and school districts already have a legal obligation to review students’ IEPs. DOJ further concluded that improving segregated facilities demonstrates the state’s apparent unwillingness to dismantle a program of segregation.
Time of course will tell whether DOJ can succeed in largely dismantling the GNETS program. Even if the effort does succeed, the victory will be truly won only if students who would have otherwise found themselves in a segregated GNETS program are not simply segregated into separate classrooms within non-GNETS schools. Georgia’s general and special education funding scheme, as the DOJ suit suggests, incentivizes segregation. Being educated in buildings with playgrounds and adequate air conditioning is a vast improvement over being educated in settings without those basic services, but until the system no longer incentivizes segregation, the risk that students with disabilities will be segregated will remain.
Monday, August 8, 2016
First Circuit: Good Academic Performance Is Relevant But Not Determinative For Special Education Eligibility
The First Circuit published an opinion last week dealing with the ambiguity of the "need" provision in the Individuals with Disabilities Education Act. The parents of a seventh-grader, called Jane Doe in the opinion, sued the local school district after it decided that Jane did not require special education in reading fluency because she was doing well in school. Jane had received special education services for years to improve her reading skills. Jane's parents argued that the "need inquiry" under the IDEA should determine whether a child needs special education to remediate the underlying disability. The school district argued that the need inquiry should determine whether a child needs special education to benefit from the school curriculum. If the child is doing well academically, the district argued, the child no long qualified for special education services. The case centers around the text of Section 1401(3)(A)(ii) of the IDEA that provides that a child determined to have one of the qualifying disorders under the first prong must also, “by reason thereof,” “need[ ] special education and related services” to be eligible for special education. 20 U.S.C. § 1401(3)(A)(ii). The First Circuit found that "Jane's overall academic performance could potentially be relevant in determining whether she has a reading fluency deficit, the district court erred in relying on such evidence without regard to how it reflects her reading fluency skills." The circuit court vacated and remanded the judgment in favor of the district, holding that the district court weighed Jane's overall academic achievement too heavily when the child's deficiency in reading fluency was sufficient by itself to support eligibility and that the district court afforded excessive deference to the hearing officer's determinations. In a concurrence, Circuit Judge Lipez offered guidance cautioning courts to not solely look at "an absolute standard of educational performance, the satisfaction of which would automatically disqualify a child from eligibility under the need prong." The case is Doe, v. Cape Elizabeth Sch. Dist., No. 15-1155, 2016 WL 4151377 (1st Cir. Aug. 5, 2016).
Monday, July 11, 2016
Baquerizo v. Garden Grove Unified Sch. Dist., No. 14-56464, 2016 WL 3435270 (9th Cir. June 22, 2016) - The Ninth Circuit Court of Appeals recently held in that a school district's offers to place an autistic student in a small classroom rather than a mainstream one did not deny the student a free appropriate public education (FAPE). Baquerizo v. Garden Grove Unified Sch. Dist., No. 14-56464, 2016 WL 3435270 (9th Cir. June 22, 2016). The student and his guardian sued the school district under the Individuals with Disabilities Education Act (IDEA) after the district determined that he would benefit from a small class for students with mild to moderate disabilities rather than a mainstream classroom and refused to reimburse the cost of the student's private education during the following two school years. The plaintiffs had previously sued the district for failing to provide a FAPE and won; the Ninth Circuit affirmed in 2011 holding that the student was entitled to full reimbursement of his private tuition costs because the public school did not meet his educational needs. In this most recent decision, the Ninth Circuit deferred to the school district's decision that the smaller classroom would be better for the student's academic needs even though he may have benefited socially from a typical classroom setting.
James v. D.C., No. 14-CV-02147 (APM), 2016 WL 3461185 (D.D.C. June 21, 2016) -- The federal district court found that the District of Columbia Public School (DCPS) system did not comply with an intellectually disabled student's individualized education program (IEP) requiring her to receive specialized instruction, even though the school did not have a special education teacher to provide it. The district court found the student's guardian, her grandmother, was apparently unaware that the school was not carrying out student's IEP, and thus allowed her to remain enrolled in the school throughout the school year even though the school was not able to implement the IEP. The district court remanded the issue of whether the student had a speech and language disability to the Hearing Officer to determine whether DCPS failed to provide a timely speech-language evaluation as required by the IDEA.
Monday, March 21, 2016
Securing legal representation is critical for private enforcement of constitutional and statutory rights, and thus rulings that restrict attorneys' fees in such cases will impact rights enforcement. The Fifth Circuit recently released a decision holding that obtaining a stay-put order under the Individuals with Disabilities Education Act (IDEA) is not sufficient to qualify a litigant as a “prevailing party" who is entitled to attorneys' fees. The Fifth Circuit now joins the Third and Seventh Circuits in holding that stay-put orders are interim in nature and because such orders do not address the merits, they do not entitle plaintiffs to attorney fee awards. In the case, Tina M. v. St. Tammany Parish School Board, the plaintiff's son, S.M., a student with a disability under the IDEA, was involved in an off-campus incident that prompted his school to propose an Individualized Education Program in which S.M. would receive at-home tutoring. S. M.’s mother disagreed with this proposal and refused to consent to the IEP change. At a due process proceeding, the Administrative Law Judge granted a stay-put order for S.M. to remain in school pending a decision on the merits. After that order, the parties reached a settlement through mediation, and the plaintiffs moved to terminate the pending administrative hearing on the merits. The ALJ terminated the matter and never reached the merits of the plaintiffs’ claims. The plaintiffs then sought attorneys' fees in the Eastern District of Louisiana under the IDEA's fee shifting provision, 20 U.S.C. § 1415(i)(3). Analogizing the ALJ's stay-put order to a successful preliminary injunction, the district court found that the plaintiffs were the prevailing party for purposes of obtaining attorneys’ fees under the IDEA. The Fifth Circuit reversed. Under section 1415(j) of the IDEA, the circuit court noted, a court deciding a stay-put request simply determines a child’s placement and enters an order maintaining that placement. The IDEA requires an automatic stay in such cases with no merits component to the finding, unlike a preliminary injunction. The stay-put order also did not permanently alter the legal relationship of the parties so that the plaintiffs could be found to have prevailed. “Rather,” the court stated, “it merely provided that S. M. could continue with his prior educational program until a decision on the merits was made.” While the court nodded to the importance of maintaining a child’s placement during due process proceedings, the interim relief of the stay-put order was not merits-based, and thus ineligible for attorneys’ fees. The case can be found at Tina M. v. St. Tammany Parish School Board, No. 1530220 (5th Cir. Feb. 23, 2015).
Tuesday, March 1, 2016
Last year, Texas passed legislation requiring video surveillance of time-out or "calm" rooms used in special education classrooms to discipline students displaying behavioral problems. The law was passed after a Texas television news station broadcast a video of an eight-year-old autistic child being forced into a calm room. Several schools in the Dallas-Forth Worth schools acknowledged having similar rooms, which are about the size of a parking space. The law, intended to protect special-needs students from overaggressive teachers and staff, requires schools to install cameras and videotape interactions in every eligible special education classroom at a parent's request. Currently the law is an unfunded mandate (implementing the law could cost millions--about $3,000 per camera and related equipment--that Texas does not have), but even more troubling for some parents is that one parent could override other parents' objections to having their child videotaped daily. The law currently has no opt-out provision for parents concerned about their children's privacy, particularly as there are no guidelines on where or how long video will be stored. Read more at San Antonio ABC-News here.
Friday, February 26, 2016
The U.S. Department of Education is taking steps to address widespread racial disparities in special education. The Department is proposing a new regulation to better guide districts in their programs and set clear standards by which the Department can enforce non-discrimination in the context of disability disparities. The proposed regulation would
amend regulations under Part B of the Individuals with Disabilities Education Act (IDEA) governing the Assistance to States for the Education of Children with Disabilities program and the Preschool Grants for Children with Disabilities program. With the goal of promoting equity in IDEA, the regulations would (1) establish a standard methodology States must use to determine whether significant disproportionality based on race and ethnicity is occurring in the State and in its local educational agencies (LEAs); (2) clarify that States must address significant disproportionality in the incidence, duration, and type of disciplinary actions, Note: The official version of this document is the document published in the Federal Register. This document has been sent to the Office of the Federal Register but has not yet been scheduled for publication. 2 including suspensions and expulsions, using the same statutory remedies required to address significant disproportionality in the identification and placement of children with disabilities; (3) clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found; and (4) require that LEAs identify and address the factors contributing to significant disproportionality as part of comprehensive coordinated early intervening services (comprehensive CEIS) and allow such services for children from age 3 through grade 12, with and without disabilities.
After a lot of strong words for the Department over the past several years and initial skepticism of Secretary King, he has taken positions and steps over the past month that cannot help but win him a warm spot in the hearts of civil rights advocates and disadvantaged students. Eight years ago, at the very beginning of the Obama Administration, I published an article on racial disparities in education. I argued that if there was a single place in education in which additional federal guidance was needed and on which the Department of Education would find the surest footing for enforcing and specifying disparate impact standards, it would have been in special education. Secretary King is now attempting to do exactly that. This is, of course, on top of his stance to help fund local efforts to reduce racial and socio-economic isolation just two weeks ago.
The full proposed special education regulation and request for comments is here.
My argument for why the Department should take these steps here on pages 419-423.
The Department's Press release is after the jump.
Tuesday, February 23, 2016
According to radio station KPCC, plaintiffs have filed a lawsuit against the Pasadena Unified School District, alleging that the district maintains a school called Focal Point Academy at which it concentrates students with serious mental health needs. The complaint claims that the students are separated from other children, receive inferior educational programs, and are subjected to improper discipline including isolation and restraint, arrests, and needless suspension. Disability Rights California, Mental Health Advocacy Services of Los Angeles, the Bazelon Center, and Morrison and Foerster are representing the plaintiffs.
The suit is a reminder that after forty years of special education law guaranteeing that children with disabilities receive aids and services to enable them to be educated to the maximum extent appropriate with children without disabilities, fully separate, segregated facilities still exist. Concentrating children who may have serious behavior problems into one institution looks more like a way to push the children out of sight than to give them tools to make educational and social progress. Giving poorer services to children with greater needs would be a further dysfunctional policy.
Using seclusion and restraint often reinforces negative behavior and has resulted in serious injury and death. Congress has not yet acted on the Keeping All Students Safe bill, H.R. 927, and the Ending Corporal Punishment in Schools bill, J.R. 2268, which would help end inappropriate physical interventions in school settings. Ample material on the misuse of isolation and restraint is collected by the U.S. Department of Education (see here) and discussed in sources such as a recent article in the Atlantic.
For additional information on the Pasadena suit, go to Disability Rights California.
Thursday, February 11, 2016
Report: Thousands of Wisconsin Students Continue to Be Placed In Seclusion Or Restraints Despite 2012 Ban on Such Practices
Disability Rights Wisconsin (DRW), along with two other community organizations, reports that seclusion and restraints continue to be used in Wisconsin’s public schools, despite the passage of a law in 2012 intended to reduce such measures. The report, called Seclusion & Restraint in Wisconsin Public School Districts 2013-2014: Miles to Go, "details how families continue to report instances in which children, even those as young as five, are being secluded and restrained repeatedly, sometimes daily," according to DRW. Eighty percent of the 3,585 Wisconsin students who were restrained or secluded were students with disabilities. Overall, Wisconsin's school districts reported 20,131 incidents of seclusion and restraint in the 2013/14 school year.
Tuesday, February 2, 2016
The Second Circuit issued a major decision on January 20 in T.K. v. New York City Department of Education, No. 14–3078–CV, 2016 WL 229842, --- F.3d --- (2d Cir. Jan. 20, 2016). The court ruled that the city school system denied a child free, appropriate public education (FAPE) by refusing to discuss severe bullying that she experienced at school, when her parents raised the issue in meetings in connection with her individualized education program (IEP). The child made academic progress and performed at close to grade level in a public school class that had both a special education and a general education teacher. But staff who assisted in the instruction testified that the child’s classmates constantly bullied her. She was tripped, had her toes stomped on, was pinched hard enough to cause bruising, and was routinely called ugly, stupid, and fat. She came home crying almost on a daily basis. The teachers did not intervene, nor did they punish the harassers. Writing for a unanimous court, Judge Lohier reasoned that the refusal to discuss the bullying and address it in the education program was a procedural violation of the Individuals with Disabilities Education Act (IDEA) that denied the child the right to appropriate education. Relying on a concession by the defendant, the court assumed without deciding that bullying is a proper consideration when it substantially restricts child’s learning opportunities. The court stated, “Here, Plaintiffs were reasonably concerned that bullying severely restricted L.K.'s educational opportunities, and that concern powerfully informed their decisions about her education. By refusing to discuss that bullying during the development of the IEP, the Department significantly impeded Plaintiffs' ability to assess the adequacy of the IEP and denied L.K. a FAPE.” (at *5). The court affirmed an award of tuition reimbursement for the private placement the parents made for the child when they did not succeed in having the public school address their concerns.
Tuesday, January 19, 2016
Allegations of Abuse of Students with Disabilities Not Enough to "Shock Conscience" of the Sixth Circuit, by Mark Weber
The Sixth Circuit recently decided Domingo v. Kowalski, No. 14–3957, 2016 WL 76213 (6th Cir. Jan. 7, 2016). The court affirmed a grant of summary judgment against parents of three special education students on their claims against a special education teacher, her employer, and several officials with supervisory responsibility over her. The parents of one child alleged that nearly every day the teacher removed the six-year-old’s pants, placed her on a training toilet and left her there for as long as a quarter of the school day. The toilet was separated from the classroom only by a partition that students could walk around to see the child on the toilet. The teacher was alleged to have bound one misbehaving nine-year-old student to a gurney in the hallway outside the classroom and gagged him with a bandana, and on several occasions to have restrained him in a chair. She was also alleged to have strapped an eleven-year-old girl to a toilet, alone in the bathroom, for 20 to 30 minutes at a time. The teacher was also said to have a practice of grabbing disruptive students by the face, squeezing their cheeks and turning their heads toward her, and to have a practice of making students who were inattentive fold their arms on their desks, at which point the teacher would force their heads onto their arms. The parents supported their allegations with the statements of a teacher’s aide, though the defendants contested the accuracy of the aide’s account at various points and noted that the aide did not report several of the events until she received a layoff notice near the end of the school year.
The parents said the conduct of the teacher and the failure of the other defendants to act violated the students’ substantive due process rights, and they relied on the cause of action under 42 U.S.C. § 1983. In affirming summary judgment against the parents, the court applied the “shocks the conscience” standard. The court adapted a framework from Gottlieb v. Laurel Highlands School District, 272 F.3d 168 (3d Cir. 2001), and asked whether there was a pedagogical justification for the teacher’s conduct, whether the force was excessive to meet a legitimate objective, whether the conduct was done maliciously for the purpose of causing harm, and whether there was serious injury. It made analogies to various cases on each of the factors and ruled that the factors weighed in the teacher’s favor. The court said that its rejection of the due process claim against the teacher eliminated any basis for holding the supervisors or the school district liable.
The case is one of a large number determining that no reasonable jury could find that school personnel conduct shocks the conscience so as to violate due process. There are, however, cases that come to the opposite result with regard to conduct that looks similar or even less outrageous, for example, Alexander v. Lawrence County Board of Developmental Disabilities, 2012 WL 831769 (E.D. Tex. 2011) (placing student in basket holds and prone restraints), and Covey v. Lexington Public Schools, 2010 WL 5092781 (W.D. Okla. 2010) (demeaning students with disabilities in front of others and making them run laps and do calisthenics). Moreover, some recent physical and psychological abuse cases brought under a Fourth Amendment theory have been successful on summary judgment or dismissal motions, including Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175 (9th Cir. 2007) (grabbing and slapping of student and forcing him into a chair), and Doe v. Hawaii Department of Education, 334 F.3d 906 (9th Cir. 2003) (taping of second-grader’s head to a tree). It remains to be seen just what conduct the panel of the Sixth Circuit thinks could shock a jury’s conscience. Notably, one panel member, Judge Boggs, argued in a partial dissent that the claim over the binding and gagging of the nine-year-old ought to have gone to the jury.
Wednesday, January 6, 2016
U.S. Attorney's Office Says New York City Rampant with Schools Inaccessible for Students with Disabilities
Just before the holiday break, the U.S. Attorney for the Southern District of New York sent a letter to New York City Schools demanding that they come into compliance with federal disability law. The U.S. Attorney's Office had found widespread and rampant violations of the Americans with Disabilities Act that made most of the city's schools inaccessible to students with disabilities. The letter included systemic data and individual stories, including "one family who went to extreme measures to keep their child enrolled in their zoned local school, rather than subject the child to a lengthy commute to the closest 'accessible' school. A parent of this elementary school child was forced to travel to the school multiple times a day, every school day, in order to carry her child up and down stairs to her classroom, to the cafeteria, and to other areas of the school in which classes and programs were held." The U.S. Attorney gave the district 30 days to respond with an outline and timetable for remedying the violations.
The letter identified the following more specific problems:
- First, looking at the public elementary school system in its entirety, we have concluded that New York City elementary schools are not currently "readily accessible to and usable by individuals with disabilities." 28 C.F.R. §§ 35.149,35.150 & 35.151. Using the City's own figures and definition of"fully accessible" schools, only approximately 17% of public elementary schools are "fully accessible." Districts 3, 5, 8, 12, 16 and 21 do not have any "fully accessible" elementary schools. This abysmally low percentage of schools demonstrates that the City has failed to provide program accessibility to individuals with disabilities comparable to the program accessibility available to individuals without disabilities.
- As a result of the lack of accessible schools, students with mobility impairments are often excluded from their local zoned school, the school that their peers in their community all attend. These students may need to spend significant amounts of time traveling to a school that can accommodate their physical disabilities. Requiring elementary students with disabilities to travel extensively at the beginning and end of each school day-a condition which is not imposed upon their peers-can impose particularly onerous physical demands on these children.
- In every school visited by our architect, we identified alterations made after January 1992 that were not compliant with the ADA. Such alterations included, but were not limited to, fire alarm systems, door hardware, toilet partitions, cafeteria seating, main office counters, library furniture, and playground areas. See Exhibit A. The City's failure to make these altered components accessible constitutes an explicit violation of the implementing regulations of the ADA. "Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or pat1 of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992." 28 C.F.R. § 35.151(b)(l).
- Our investigation also revealed that the City has failed to undertake ongoing physical and programmatic changes to ensure that its elementary school program, when viewed in its entirety, is accessible and usable by people with disabilities. 28 C.F.R. § 35.150. In addition, the City has failed to consider requests by students with disabilities for reasonable modifications that would allow those students to attend their zoned school, 28 C.F.R. § 35.130(b)(7), including by failing to assess whether requested modifications would be reasonable in a particular case. Subsequent to the start of our investigation, the City made information regarding accessible schools easier to find on its website, implemented a complaint procedure for families encountering issues with physical accessibility, and assigned an individual to consider individual requests to make alterations at a particular school that could allow a disabled student greater access to school facilities. We appreciate the City's efforts to increase the information available to parents and to be more responsive to the needs of individuals with disabilities. However, these efforts fall far short.
Wednesday, December 16, 2015
Newark Settles Civil Rights Complaint Alleging School Closures Were Discriminatory, Reveals Lessons for Other Cases
The Advancement Project and Newark's Parents Unified for Local School Education filed a complaint with the the U.S. Department of Education challenging Newark's school closures. They alleged that the closures disproportionately affected minorities and students with disabilities and violated Title VI of the Civil Rights Act and Title II of the Americans with Disabilities Act. Newark had closed several traditional public schools during the recession, consolidating them with other traditional public schools and/or replacing them with charters. OCR found that the closures did, in fact, disproportionately affect minorities and students with disabilities and did not produce the benefits that the district claimed was the basis for the closures in the first instance. Last week, Newark agreed to take remedial action. The problem, however, is that school closures cannot reasonably be reversed and Newark still got what it wanted. The remedial steps Newark now promises are relatively mild:
- Identify whether any transferring students have suffered any academic deficiencies and take steps to remedy them.
- Determine whether transportation issues affected the ability of transferring students to participate in extracurricular activities.
- Investigate where disabled transferring students were provided with appropriate special education and related aids and services in the receiving school; and if not, whether compensatory or remedial services are necessary.
Nonetheless, advocates saw this as a victory, as they should. A similar and more aggressive and disproportionate set of closures occurred in D.C. in recent years, but the challenge to them failed. As my earlier blog post noted:
In DCPS schools as a whole, 68.4% of students are black; 13.8% are Hispanic; 3.7% are Asian, other, or unknown; and 9.2% are white. In the schools slated for closure, by contrast, 93.7% of students are black; 5.9% are Hispanic; 0.4% are Asian, other, or unknown; and less than 0.1% (2 out of 3053) are white. The figures skew similarly, if less starkly, for disabled students: 27.7% of students in the closing schools are in special education, versus 14.2% of students in DCPS overall."
There, advocates filed suit in federal district court seeking an injunction, but the court denied their injunction and dismissed the case. Thus, by rough comparison, the Newark decision is enormous.
One analytical difference also bears emphasis. OCR evaluated the efficacy of the closures after the fact, which allowed it to find that the justifications for the closures had proven flawed. In D.C., plaintiffs sought to block the closures earlier and argued, based on social science and expert opinion, that the closures would harm students and not produce the benefits the district claimed to seek. The district court, however, ignored these prospective claims and assumed the District's goals to be valid. I have not seen any subsequent research confirming or rejecting plaintiffs factual allegations, but to the extent their factual allegations were not novel, it raises the question of whether courts should take social science and expert opinions more seriously in similar cases. Newark's experience suggests they should.