Tuesday, September 1, 2015

Does the IDEA Obligation to Prepare Students for "Independent Living" Include Preparation to Live in a Religious Community? by Maria Blaeuer

A special education case of note, M.L. ex rel. Leiman V. Starr, PWG-14-1679, was filed last month in Maryland.  It involves tuition reimbursement under the Individuals with Disabilities in Education Act. The parents' filed for a due process hearing after they unilaterally placed their child, who has Down Syndrome,  in an Orthodox Jewish special education school.  They lost the due process hearing and then filed a claim in federal district court, where they again lost, this time after cross-motions for summary judgment.   

The parents' essential argument is that because of their child's disability, he requires explicit instruction in the traditions and practices of Orthodox Judaism at school if he is to be able to live independently in his Orthodox community after his time in public school ends.  The parents argue that this instruction is not available in the public school and, therefore, the school district must pay for his education at an Orthodox special education school.  A straight forward and typical argument in these cases, except for the inclusion of the words "Orthodox Judaism".     

While this case sounds narrow, it could have a broader impact because of IDEA's mandate to prepare students for independent living, further education and employment.   It has the potential to speak to, and define, what obligations school districts have to meet the needs of students with disabilities regarding their participation in their community, and specifically who gets to define what that community is.

The parents have now filed notice of intent to appeal.  Their attorney took Schaffer v. Weast--a case dealing with the burden of proof in individual education plan cases--to the Supreme Court in 2005, so it may be one to watch.

September 1, 2015 in Special Education | Permalink | Comments (0)

Wednesday, August 5, 2015

Kentucky Elementary School Cuffs Special Needs Student's Arms Behind Back, ACLU Sues

The handcuffing and isolated restraint of a third grade special needs students in Covington, Kentucky, was caught on video. The video is particularly disturbing, as the child cries and pleads.  I did not watch the whole thing myself.  The ACLU filed a federal lawsuit on that and another student's behalf on Monday, alleging the handcuffing was an unreasonable seizure and included excessive force.  The complaint also alleges that the arrest amounted to discrimination and a failure to accommodate under the American's with Disabilities Act.  

More on the story here.

August 5, 2015 in Discipline, Special Education | Permalink | Comments (0)

Tuesday, August 4, 2015

New York Times Story on Special Education Got It All Wrong Says Dan Losen

Last month, the New York Times ran a piece by Paul Morgan and George Farkas in which they claim, based on their recent study, that the conventional wisdom that minorities are over-identified as having disabilities is wrong.  They argue they are under-identified.
 
Dan Losen, of the UCLA Civil Rights Project, says they got it all wrong:
 
There are loads of problems with the study itself and the blame they place with a specific special education policy which they seek to eliminate, but did not study, or even accurately represent.  Not to mention the fact that the concern about the overuse of special education identification first was noted when school districts sought illegitimate ways to avoid desegregating schools and classrooms. 

Continue reading

August 4, 2015 in Special Education | Permalink | Comments (0)

Thursday, July 30, 2015

Justice Dept. Scolds Georgia For Segregating Students With Disabilities, Some Placed in Dilapidated Former Jim Crow School Buildings

The Justice Department has warned Georgia in a July 15th letter that the state's practices of segregating students with behavior-related disabilities violates the Americans with Disabilities Act. The DOJ's letter comes after an investigation of the Georgia Network for Educational and Therapeutic Support (the GNETS Program), a state network of 24 centers that serves about 5,000 students with behavior-related disabilities. The DOJ noted that some of the schools that the GNET program uses are repurposed "poor-quality buildings" that formerly served as segregated schools during the Jim Crow era. The DOJ also criticized the GNETS program's severe restrictions on "interactions between students with disabilities and their peers in general education, depriving them of the opportunity to benefit from the stimulation and range of interactions that occur there, including opportunities to learn, observe, and be influenced by their non-disabled peers." Even when GNETS classrooms are located in general education school buildings, the DOJ investigation found that GNET students' classrooms "are often located in separate wings or isolated parts of school buildings, some of which are locked and/or fenced off from spaces used for general education programs." The level of education also needed reform, the DOJ's letter noted, as some of the instruction was online-only and students often had no access to electives or extracurricular activities. The DOJ's letter to the GNET program can be found here. Read more about the investigation at the Atlanta Journal Constitution here.

July 30, 2015 in Special Education | Permalink | Comments (0)

Tuesday, July 28, 2015

D.C. Circuit Holds That District Must Pay For Residential School Placement After Failing To Provide An Alternative

Leggett v. Dist. of Columbia, No. 14-7021 (D.C. Cir. July 10, 2015) - Short take: when a school district drags its feet in providing a free appropriate education required under the Individuals with Disabilities Education Act, the district may be on the hook for a more costly one. In Leggett, the D.C. Circuit held that the D.C. Public Schools (DCPS) was required to reimburse the costs of a private boarding school placement after DCPS failed to provide an individualized education program by the start of the school year. The IDEA requires school districts to reimburse parents for their private-school expenses if "(1) school officials failed to offer the child a free appropriate public education; (2) the private-school placement chosen by the parents was otherwise “proper under the Act”; and (3) the equities weigh in favor of reimbursement—that is, the parents did not otherwise act “unreasonabl[y].”" In Leggett, the parent requested an IEP under the Individuals with Disabilities Education Act after her child did not complete the eleventh grade. DCPS failed to develop an IEP in time for the school year. After being told that her child would benefit from residential placement, Leggett chose a private boarding school where her child thrived. She sought reimbursement from DCPS for the cost of the residential program. DCPS countered that the residential school placement—with activities such as an equestrian program—was unnecessary because the student could have succeeded in a non-residential program. Both the due process hearing officer and the D.C. District Court found that DCPS violated the IDEA by failing to have an IEP in place by the beginning of the school year, but denied reimbursement because, in their view, the student did not require a residential program. The D.C. Circuit reversed the denial of reimbursement, holding that under Bd. of Ed. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982), the student’s placement was proper because DCPS had offered no IEP, “identified no suitable alternative, and failed even to challenge Leggett’s claim that [the residential school] was the only available placement.” The circuit court held that on remand, DCPS could challenge the costs of extracurricular activities that were unnecessary for the student’s education. Read the opinion here.

July 28, 2015 in Cases, Special Education | Permalink | Comments (0)

Wednesday, July 15, 2015

Court Finds That D.C. District Neglected "Child Find" Duty for Preschoolers

The U.S. District Court for the District of Columbia again found last week that the D.C. school district failed to comply with their “Child Find” duty to locate disabled students in the birth-to-five population, as required by the Individuals with Disabilities Education Act. The court found in 2010 that the D.C. district neglected its duties for years to identify, evaluate, determine eligibility, and ensure a smooth transition for services for preschool disabled children covered by the IDEA and the Rehabilitation Act. Following Wal-Mart v. Dukes in 2011, the D.C. Circuit Court vacated the original plaintiff class certification of disabled children and remanded for the district court to determine whether the plaintiffs' claims had sufficient commonality to represent a class. On remand, the district court certified four subclasses. In last week's decision, the district court found no genuine dispute that the "District's attempts to identify, evaluate, determine eligibility of, and transition disabled children were inadequate through and including 2007, [which is] sufficient to establish the District's liability under the IDEA on each subclass's claim." The District had been cited by the Office for Special Education Programs (OSEP) in 2001 for failing to conduct timely evaluations under its program compliance agreement. The case is DL v. D.C., No. CV 05-1437, 2015 WL 3630688 (D.D.C. June 10, 2015).

July 15, 2015 in Cases, Special Education | Permalink | Comments (0)

Tuesday, June 30, 2015

Texas to Put Video-cameras in Special Education Rooms, But Why Not All Rooms? by Mark Weber

On June 19, Texas enacted a law, S.B. No. 507, calling for video surveillance of special education classrooms. The law applies to all public schools, including open-enrollment charter schools, that receive a request from a parent, trustee, or staff member, and within those schools to all self-contained special education classrooms and classrooms in which a majority of the students in regular attendance are provided special education and assigned to a self-contained class or other special education setting for at least half of the instructional day. The schools have to retain video recordings for six months. The video is not to be regularly or continually monitored, and the video is not to be used for teacher evaluation or any uses other than promotion of student safety. But the otherwise confidential recordings must be released for viewing on request by school district employees or parents of students involved in an incident for which a complaint has been reported to the district. It must also be released to Department of Family and Protective Services personnel conducting investigations, police, human resources staff members, and several other designated categories of individuals.

Supporters of the law cited physical injuries and abuse of students with disabilities, particularly students who are nonverbal or uniquely vulnerable in other ways, and said video monitoring will deter the incidents. Opponents were preoccupied with costs – the new law does not create a state funding stream for the equipment, its installation, and operation. Given the pervasiveness of video monitoring in modern society, privacy concerns do not appear to have been paramount, though the singling out of special education is troubling. A better solution surely would be video monitoring in all classrooms. After all, video cameras are now found in vast numbers of stores, public transit facilities, and other public places, and students without disabilities are vulnerable to abuse and mistreatment.

Video monitoring has appeared in the special education caselaw in recent years. In Phipps v. Clark Cnty. Sch. Dist., No. 2:13:00002-GMN-PAL (D. Nev. Apr. 23, 2014), the court refused to dismiss constitutional claims brought by a nonverbal child with autism who alleged that he was abused in a classroom in which the school district had installed surveillance cameras and the video showed abuse of the child by teachers, but no school personnel witnessing events live or on video intervened. In B.A. v. Missouri, No. 4:09CV1269, 2010 WL 1254655 (E.D. Mo. Mar. 24, 2010), the court denied a motion to dismiss an action brought under the Individuals with Disabilities Education Act in which a student alleged serious physical and verbal abuse and asked as a remedy that the school install audiovisual monitoring of all classrooms and hallways.

June 30, 2015 in Special Education | Permalink | Comments (0)

Monday, June 29, 2015

Racial Bias in Special Education: It's a Little More Complicated by Mark Weber

On June 24, the New York Times published an op-ed piece by Paul Morgan and George Farkas with the headline Is Special Education Racist? in which the authors argue that although children who are African American are 1.4 times more likely to be placed in special education than other races and ethnicities combined, the high number is not caused by racial bias. Instead, they contend, black children are underrepresented in special education classes when compared to white children who have comparable levels of academic achievement, behavior, and economic resources. They believe a federal standard for overrepresentation would be a bad move, one that would cause children who need special education to miss out on valuable services.

Overrepresentation has been a major topic among writers on special education law in recent years. I tried to take on the topic in a paper called The IDEA Eligibility Mess, which appeared in the Buffalo Law Review in 2009. My view has something in common with that of Morgan and Farkas. I am very concerned that if artificial limits on eligibility under the Individuals with Disabilities Education Act are imposed on the basis of racial disparities, that step will harm children who need both services and the procedural protections the law provides against suspension and other school discipline when the students’ misconduct results from their disabilities. But the critics who emphasize the statistical disparity have an important point: special education in some instances does not represent extra benefits, but rather means being shunted into isolated programs and placements in which services are of poor quality and the expectations for the students are low. African American children are particularly likely to be in special education settings that are self-contained or have low levels of integration into the mainstream. Schools need to act on the premise that special education is a bundle of extra services to help the child succeed, rather than a place to put the child. If they do not, special education will not provide the benefits that it ought to, and the racial overrepresentation will remain a problem to be addressed.

June 29, 2015 in Special Education | Permalink | Comments (0)

Thursday, June 25, 2015

Study: No Empirical Support for Common Belief that Minorities are Overrepresented in Special Education

A UC-Irvine-Penn State study released this week refutes some conventional wisdom that minority students are overrepresented in special education classes. The federal government currently requires school districts to allocate funds for early-intervention efforts that are designed to minimize overidentification of minorities in special education programs. The recent study, Minorities Are Disproportionately Underrepresented in Special Education: Longitudinal Evidence Across Five Disability Conditions, suggests that the government's special education policy may be misdirected. The study's researchers found that "minority children were consistently less likely than otherwise similar white, English-speaking children to be identified as having (a) learning disabilities, (b) speech or language impairments, (c) intellectual disabilities, (d) health impairments, or (e) emotional disturbances. Language-minority children were less likely to be identified as having (a) learning disabilities or (b) speech or language impairments." The study's authors explain that the seemingly conflicting empirical studies about disproportionate minority representation in special education is often tied to what disability is being measured. The authors partly attribute this contradictory findings to previous studies failing "to account for potential confounding factors prior to estimating minority children’s risk of being identified as disabled," such as low birth weight, poverty, and state of residence. Other significant factors were  obstacles resulting in minority families being less likely than White families to make use of special education services; an aversion by minority families to the stigma associated with disability identification; and less health care access. Instead, the authors' conclude that "federal legislation and policies may be inadvertently exacerbating educational inequities by reducing access to special education services for schoolchildren who are racial, ethnic, or language minorities."

June 25, 2015 in Special Education, Studies and Reports | Permalink | Comments (0)

Friday, May 22, 2015

Recent Special Education Decisions

Supreme Court Declines Review of Case Presenting Circuit Split on IDEA's Stay-Put Provision

As covered by SCOTUSBlog, the Supreme Court declined certiorari this week in a special education case, Ridley School District v. M.R. The case presented a circuit split on the statutory definition of “proceedings” in the Individuals with Disabilities Education Act’s (IDEA) stay-put provision, which determines how long a school district must pay for a student’s current educational placement during a legal dispute. The "stay put" rule safeguards students from having their education disrupted during litigation. The D.C. and Sixth Circuits have held that schools’ stay-put obligation ends upon entry of a final judgment by a trial court in favor of the school district; the Third and Ninth Circuits have held that school districts must continue to pay the costs of private school placements until the exhaustion of all proceedings, including appeals. Several school board associations joined in filing an amicus brief asking the Supreme Court to overturn the Third Circuit’s definition of “proceedings.” The school boards argued that the Third Circuit’s interpretation creates “an incentive for parents to engage in protracted litigation rather than working collaboratively with educators to resolve disputes without delay,” by placing the burden on a school district to continue to pay for alternative education after a district court’s determination that the district has provided sufficient education services.

Second Circuit Allows Amendment of Hearing-Impaired Child's Claim that Girl Scouts Organization Provides Education Services

The Second Circuit reversed a district court’s dismissal of a Section 504 claim brought against the Chicago area chapter of the Girl Scouts for failing to provide a sign language interpreter to a hearing impaired girl. The circuit court found that the plaintiffs’ claim that the Scouts were “principally engaged” in education services was not futile, and thus they should have been allowed to amend their complaint. The plaintiffs, the girl and her mother as next friend, sued the Girl Scouts under the Rehabilitation Act after it stopped providing sign language interpreter services and then, when her mother objected, allegedly retaliated by disbanding the girl’s local troop. The Scouts responded that as a private organization, it was exempt from the Act’s coverage. The Second Circuit found that the Girl Scouts organization was subject to the Act as a private organization that is “principally engaged” in the business of providing education as defined under 29 U.S.C. § 794(b). The Second Circuit interpreted the statutory coverage of the term “education” beyond that provided by a traditional school system. Education, the circuit court reasoned, includes social and education services if they, in the aggregate, make up the primary activities of the private organization. The court noted that Girl Scouts’ literature touts the educational purposes of many of its activities, even in selling cookies. The court therefore reversed the dismissal to allow the plaintiffs to amend their complaint. The decision is Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, No. 14-1729, 2015 WL 2151851 (7th Cir. May 8, 2015).

Seventh Circuit Finds Parent’s IDEA Claim as Preserved, But Pro Se Parent Cannot Represent the Child

The Seventh Circuit recently allowed a pro se mother of a special education student to pursue her parental rights to relief under the Individuals with Disabilities Act. The circuit court vacated the district court’s finding below that the mother did not specifically request reimbursement at a hearing before the Illinois State Board of Education to be reimbursed for the cost of her daughter's speech and language sessions, and thus was not aggrieved by the hearing officer's decision. The Seventh Circuit found that the hearing officer understood that the mother was requesting compensatory relief for speech and language services, and thus the officer ordered the Board of Education to pay for more speech sessions with the same pathologist that the mother had retained. However, the circuit court upheld the district court’s decision to deny the daughter’s claims because of the circuit’s holdings that a nonlawyer parent cannot represent her minor child pro se, a question left open in Winkelman ex rel. Winkelman v. Parma City School District, 550 U.S. 516 (2007). The decision is Foster v. Bd. of Educ. of City of Chicago, No. 14-3035, 2015 WL 2214152 (7th Cir. May 11, 2015). 

May 22, 2015 in Cases, Special Education | Permalink | Comments (0)

Friday, May 1, 2015

Office for Civil Rights Releases Report to Congress: This Time It Is a Must Read

The Office for Civil Rights has released its 2013-2014 report to Congress and the President.  From my perspective, past reports have been dense and un-illuminating.  This current one strikes a very different approach.  First, it is very well written.  Second, it is very well framed and organized. Third, and maybe most important, it is incredibly informative.  Fourth, it is analytical.  Fifth, it is visually appealing.  Sixth, it implicitly suggests courses of action or concern.  Overall, it presents as a study in the state of civil rights and equity in our nation's schools, rather than a bureaucratic account of the beans counted in the past two years.  

Continue reading

May 1, 2015 in Bullying and Harassment, Discipline, Discrimination, English Language Learners, Equity in education, Federal policy, Gender, Racial Integration and Diversity, Special Education | Permalink | Comments (0)

Thursday, April 30, 2015

Department of Education's New Special Education Funding Rule by Mark Weber

On Tuesday, April 28, the Department of Education issued a final rule covering maintenance of effort (sometimes called “nonsupplanting”) by school districts and other local education agencies in connection with Individuals with Disabilities Education Act funding. As is the case with many other federal programs, IDEA aims to supplement, not supplant, what states and localities would be doing on their own. Accordingly, LEAs are not permitted to reduce the level of expenditures from local funds below the level for the preceding fiscal year, except in specific circumstances, such as decreases in special education enrollment, the termination of services to a child with a particularly costly program, and the completion of construction or other expensive long-term projects. 

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April 30, 2015 in School Funding, Special Education | Permalink | Comments (0)

Thursday, April 23, 2015

Mississippi and Tennessee Pass Special Education Voucher Bills

Last week, Mississippi enacted a special education voucher law (the Equal Opportunity for Students with Special Needs Act), and in Tennessee this week another special education voucher bill, the Individualized Education Act, is headed for Gov. Bill Haslam’s signature. Both bills are roughly modeled on Florida’s McKay Scholarship special education voucher program, which started under then-Gov. Jeb Bush. Mississippi’s pilot program provides $6,500 to parents for special needs services and private school tutoring and tuition when parents feel that the local public school cannot meet their child’s needs. In Tennessee, parents would receive $6,000 per student for special education expenses such as physical therapy, private schooling, home schooling, and textbooks. Tennessee’s state comptroller acknowledged that the special education voucher bill would be inaccessible for most special education students. The proposed voucher would not replace public school special education services unless students’ families were affluent enough to cover the additional cost of private school tuition or can homeschool their children. In both states, some legislators and special education advocates unsuccessfully opposed the bills, pointing out the financial limitations, the risk of segregating special education students from mainstream classrooms, and private schools’ lack of accountability under the Individuals with Disabilities Education Act. Public education funding is also at issue, considering that public schools will still  have to provide special educational services with less money after students leave the public school system. Because of fixed costs such as such as facilities and special education  personnel, public schools' special education costs do not balance out simply because some students leave public schools, Professor Ron Zimmer (Vanderbilt) told Chalkbeat Tennessee.

April 23, 2015 in Charters and Vouchers, News, Special Education | Permalink | Comments (0)

Thursday, April 16, 2015

Legitimate Security Concerns Cannot Override Prisons' Obligation to Provide Special Education Services

The Middle District of Pennsylvania recently held that while special education services can be modified for an incarcerated student who presents security concerns, an institution cannot restrict the student’s access to the extent that it denies his right to a free appropriate public education. The plaintiff, Stephen Buckley, was incarcerated at a restricted housing unit (RHU) at a young adult offender institution. Before his move to the RHU, Buckley was receiving special education services under the IDEA. While in the RHU, Buckley committed assaults and other rule infractions and thus was not permitted to attend the classrooms in the institution. The Individuals with Disabilities Education Act (IDEA) allows incarcerated students' Individualized Education Programs (IEPs) to be modified where the state proves a bona fide security interest that cannot otherwise be accommodated. In keeping with that provision, the prison provided Buckley a teacher at his cell and “self study packets” provided through the tray opening in his cell door. Buckley sued, alleging that that he was being denied a free appropriate public education and requested compensatory education. Buckley argued that the change from his previous IEP to the new arrangement at the RHU essentially eliminated his special education services. The in-cell study was inadequate because the self-study packets were not individualized to him, Buckley claimed, the teachers were only available once or twice per week, and the cellblock was too loud for instruction. The district court agreed, awarding compensatory education and finding that Buckley's “IEP contained no meaningful academic or functional goals, and the record is clear that the cell study program, as implemented, offered no more than a de minimis educational benefit.” The court rejected the institution’s suggestion that Buckley did not show any interest in interacting with the teacher or the self-study packets, noting that “appropriate education under the IDEA [is a right], not a privilege to be taken away.” The court hoped that restoring incarcerated students' opportunity for an education would interrupt “the vicious circle of incarceration for this at-risk population.” The case is Buckley v. State Corr. Inst.-Pine Grove, No. 1:13-CV-2022, 2015 WL 1610446 (M.D. Pa. Apr. 13, 2015).

April 16, 2015 in Cases, Special Education | Permalink | Comments (0)

Wednesday, April 1, 2015

Ninth Circuit Upholds in Part Attorney's Fees Against Parent for Frivolous Claim

In C.W. v. Capistrano School District, No. 12-57315 (9th Cir. Mar. 2, 2015), the Ninth Circuit affirmed in part and reversed in part a district court's award of attorney's fees to a school district as the prevailing defendant in special education services case. Cribbed from the court's summary: School districts are rarely awarded attorney's fees, but can receive such fees when a complaint is either "frivolous" or "pursued for an improper purpose." The Ninth Circuit concluded that the complainant's ADA and § 1983 claims were frivolous, but reversed the district court's award of attorney’s fees and costs related to the complainant's claims under Section 504 and the IDEA. In the case, a mother sued the Capistrano, CA, School District to challenge the denial of an independent educational evaluation for occupational therapy for her child, who had special education needs. While litigating her IDEA claim, the mother alleged that her child’s school district violated the IDEA, Section 504, the ADA and § 1983 by improperly threatening to seek sanctions against her and her counsel if they appealed the administrative denial of the child’s IDEA claims. In a letter to the mother's counsel, the district wrote, "the District reserves the right to seek[] sanctions against you and your client if the most recent administrative decision is appealed." The Ninth Circuit noted the mother and her counsel did not file a frivolous complaint under the IDEA by doing what the law permits them to do, which is appeal from a denial of occupational therapy that the mother felt that the child deserved. The circuit court found that the outcome of the ADA intimidation claim and the § 1983 claim were more obvious as lacking any legal foundation, however. The circuit court noted that "[b]y its own terms, protection under the ADA against intimidation does not extend to a plaintiff’s attempts to exercise rights granted or protected by the IDEA," and once the district court told the plaintiff that her claim was meritless under the statute's terms, she and her counsel should not have appealed it on the same grounds. Read C.W. v. Capistrano School District here.

April 1, 2015 in Cases, Special Education | Permalink | Comments (0)

Thursday, March 19, 2015

Accidentally on Purpose: Intent in Disability Discrimination Law

Mark Weber's new article, Accidentally on Purpose: Intent in Disability Discrimination Law, is now available on ssrn here and forthcoming in Boston College Law Review.  For those interested in intentional discrimination standards in general (race, gender, etc.) or disability discrimination in particular, the article is a must read.  It takes very complex and intersecting statutory concepts of intent and brings them together in a coherent way.  Moreover, it points out where some courts have just gotten precedent wrong and should self-correct.  His abstract offers this summary:

American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent before they will remedy disability discrimination. These intent requirements have come into the law almost by accident: through a statutory analogy that appears apt but is in fact false; by continued repetition of language pulled from an obsolete judicial opinion; and by doctrine developed to avoid a conflict with another law when the conflict does not actually exist. Demanding that section 504 and Americans with Disabilities Act claimants show intentional discrimination imposes a burden found nowhere on the face of those statutes or their interpretive regulations.

This Article spells out the reasons not to impose any intent requirement either for liability or for monetary relief in section 504 and ADA cases concerning reasonable accommodations. It makes the uncontroversial point that no intent requirement applies to ADA employment cases, then explains that the same conclusion ought to apply to cases under the ADA’s state and local government provisions and section 504. It rebuts an analogy to caselaw under Title VI and Title IX of the Civil Rights Act that some courts use to support an intent requirement. It then identifies and corrects the reasoning of cases relying on the inappropriate analogy, those that rest on the obsolete precedent, and those that refuse to apply a full range of remedies for fear of conflict with the federal special education law.

This Article breaks new ground in the scholarly discussion of the disability discrimination laws by placing into context and critiquing the infiltration of intent requirements into cases brought under the provisions that bind state and local government and federal grantees. It relies on a contextual reading of the decisions of the Supreme Court, on the history of the ADA, and on policy considerations that ought to determine liability and remedies for unintentional disability discrimination.

March 19, 2015 in Discrimination, Special Education | Permalink | Comments (0)

Court Rejects School District Attempt to Sue State in IDEA Case by Mark Weber

In Fairfield-Suisun Unified School District v. California Department of Education, Nos. 12-6665, 12-16818, 2015 WL 1136449 (9th Cir. Mar. 16, 2015), the court of appeals ruled that school districts lack a right of action to pursue claims that the state department of education violated applicable procedures when deciding parental complaints filed pursuant to the federal special education law’s Complaint Resolution Process established under 34 C.F.R. sec. 300.151 (CRP). In one case, a school districts alleged that the department allowed two reconsiderations of a decision and took into account conduct outside the one-year statute of limitations set out in 34 C.F.R. sec. 300.153(c). In the other, a school district alleged that the department improperly put the burden of proof on the district rather than the complainant. Both districts sought injunctive relief forbidding similar conduct in future complaint resolution proceedings. The court observed that the cause of action established by the Individuals with Disabilities Education Act (IDEA) in 20 U.S.C. sec. 1415(i) provides for appeals from due process hearing decisions, but does not include appeals from CRP decisions. Accordingly, the court rejected the argument that IDEA’s express terms allow school districts to sue, and further rejected any implied right of action by which school districts can sue for the alleged violations of the statute.

 The holding is not a surprise. The court previously held that school districts lack the ability to sue the state education department for violations of IDEA procedures connected with due process hearings (specifically, routinely failing to comply with the time limits set out in federal regulations), Lake Washington School District No. 414 v. Office of Superintendent of Public Instruction, 634 F.3d  1065 (9th Cir. 2011). Moreover, courts have generally not permitted school districts to sue for violations of IDEA outside the context of an appeal of a due process hearing decision. I collect the cases in Special Education Law and Litigation Treatise (LRP 3d ed. & supp. 2015) at sec. 21.5. There are a few outliers, but given the trend against recognizing implied statutory causes of action exemplified by Alexander v. Sandoval, 532 U.S. 275 (2001), the likelihood of courts allowing school districts broad rights to sue for violations of IDEA in situations other than due process appeals looks slim. On the other hand, parents may have more extensive rights of action under section 1415, an implied IDEA cause of action, or 42 U.S.C. sec. 1983.

March 19, 2015 in Special Education | Permalink | Comments (0)

Tuesday, February 24, 2015

New Jersey DOE Cites Paterson School District for Special Education Violations

The Paterson (NJ) Public Schools reportedly has had problems for years in delivering special education services, and the New Jersey Department of Education has again cited the district. The NJDOE's latest action was prompted by a lawsuit filed by a school psychologist who alleged that her supervisors directed special education staff members  to change students’ Individualized Education Programs (IEPs) without their parents' approval. The NJDOE previously cited the Paterson Public Schools in 2011 and 2013 for failing to provide adequate special education services, prompted by lawsuits by the Education Law Center. Read more here.

February 24, 2015 in Special Education | Permalink | Comments (0)

Tuesday, February 17, 2015

New Study Examines How School Accountability Affects the Delivery of Special Education

"As part of its work to conduct a congressionally mandated national assessment of how well the IDEA is achieving its purposes, the U.S. Department of Education's Institute of Education Sciences (IES) contracted with American Institutes for Research (AIR) to investigate variation in school practices through the Study of School Accountability for Students with Disabilities."  That study is now available here.  The study provides "policy-relevant" information on how students with disabilities are being educated "by examining their inclusion in school accountability systems, and the use of school practices that may relate to their educational outcomes, in both schools that are accountable and schools that are not accountable for the performance of the SWD subgroup." The study aims to answer the following questions: 

- How do school characteristics and staffing differ between SWD-accountable and non-SWD-accountable school?

- How do school programs and student support strategies differ between SWD-accountable and non-SWD-accountable schools?

- How do instructional time and settings differ between SWD-accountable and non-SWD-accountable schools?

- How do teacher collaboration and professional development differ between SWD-accountable and non-SWD-accountable school? ​

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February 17, 2015 in Special Education | Permalink | Comments (0)

Tuesday, February 10, 2015

Judge Will Appoint Independent Monitor in Class Action Settlement of IDEA Claims Against Louisiana Education Board

Yesterday, U.S. District Court Judge Jay Zainey (Eastern District of Louisiana) officially approved of a settlement of the disability class action suit in P.B., et al., v. John White (the Louisiana superintendent of education). The judge's ruling, which approves of the parties' December agreement, resolved a complaint brought by parents that charters in New Orleans' Recovery School District discriminated against disabled children, violating the Individuals with Disabilities Education Act (IDEA), Section 504, and Title II. Judge Zainey assured worried parents at yesterday's hearing that he would appoint an independent monitor to ensure that the Louisiana Board of Education met the needs of students with disabilities as outlined in the settlement. The original complaint alleged that the state and the Orleans Parish School Board failed to oversee the delivery of special education services of New Orleans' schools, and because of that lack of oversight, students with disabilities were asked not to leave school or discouraged from enrolling. The settlement requires the state and the school board to develop a plan to identify and evaluate children suspected of having a disability and to describe plans for offering services to students with disabilities.  The Notice of Settlement is here.

February 10, 2015 in Cases, Special Education | Permalink | Comments (0)