Wednesday, September 10, 2014
For students writing law journal comments or seminar papers on special education this fall (and maybe the spring), the writing competition below offers an opportunity for a cash prize and publication. It is open to disability papers outside of education, but special education surely fits nicely. Thanks to Professor Susan Bisom-Rapp for sharing it.
Thomas Jefferson School of law is pleased to announce the inaugural Jameson Crane III Disability and the Law Writing Competition. Made possible by the generous gift of Thomas Jefferson School of Law alumnus Jameson Crane III, the Crane Writing Competition seeks to encourage outstanding student scholarship at the intersection of law and medicine, or law and the social sciences. The competition promotes an understanding of these topics, furthers the development of legal rights and protections, and improves the lives of those with disabilities.
Monday, September 8, 2014
On September 4, the Sixth Circuit issued F.H. v. Memphis City Schs., --- F.3d ----, No. 13–6323, 2014 WL 4357559 (6th Cir. Sept. 4, 2014). The case involved allegations that a student with cerebral palsy and other disabilities that caused him to have limited use of his hands was frequently left unattended and unsupervised in the school washroom, though he was unable to clean himself after using the facilities. As a result he was left distraught and crying, and had a seizure on one occasion. In one instance, he returned to class with bloody underwear and on other occasions he had to return to class with soiled underwear. The complaint also alleged that he was subject to verbal and physical abuse from aides and other school personnel, and was sexually abused by an aide. At one point, the child’s parent demanded a due process hearing under IDEA, and settled the case with an agreement that resolved claims arising under IDEA and related provisions of state law. A year later, the parent and student filed suit for damages in federal court asserting claims under 42 U.S.C. § 1983, Section 504, the Americans with Disabilities Act, and contract law.
Monday, August 11, 2014
School districts have physical restraint and seclusion policies to protect students from harming themselves or others, but may have quite different standards for when restraint or seclusion is necessary. Last week, the Deparment of Education's Office for Civil Rights concluded that one district in Prince William County, VA, too often used restraint and seclusion as a strategy to control student behavior rather than employing alternative strategies. Responding to a complaint filed on behalf of students who were restrained or secluded while attending a Prince William County program for students with disabilities, OCR found that the program denied students with disabilities a free appropriate public education under the IDEA. The program's schools, called PACE (Positive Attitude and Commitment to Education) East and West, reportedly logged 115 instances of restraint and 147 instances of seclusion to control student behavior during 2011-12. As part of a resolution agreement, OCR recommended that PACE change its practices to offer students educational opportunities when they are restrained or secluded and consider different intervention approaches. OCR declined to find that PACE's restraint practices had a disparate impact on black and Hispanic students. Read OCR's letter, posted by the Legal Aid Justice Center, here.
Friday, August 8, 2014
New York Times Magazine ran an interesting story last week, focusing on two children with autism, one who was "cured" through "applied behavioral analysis" and the other who was not. It also offered a quick synopsis of recent research:
In the last 18 months, however, two research groups have released rigorous, systematic studies, providing the best evidence yet that in fact a small but reliable subset of children really do overcome autism. The first, led by Deborah Fein, a clinical neuropsychologist who teaches at the University of Connecticut, looked at 34 young people . . . . She confirmed that all had early medical records solidly documenting autism and that they now no longer met autism’s criteria, a trajectory she called “optimal outcome.” She compared them with 44 young people who still had autism and were evaluated as “high functioning,” as well as 34 typically developing peers.
Thursday, August 7, 2014
Monday, July 7, 2014
A class action suit recently filed in federal court alleges that students with mental health needs are being "warehoused" by the Springfield, MA school district without educational opportunities or therapeutic supports. The suit was filed by the Parent/Professional Advocacy League (PPAL), a grassroots organization that focuses on mental health issues, on behalf of students at Springfield's Public Day School. The suit charges that the school uses "behavior control using drastic methods including dangerous physical restraints, forced isolation in padded rooms and repeated arrests and suspensions for minor offenses." The plaintiffs claim that the Day School's students are being segregated in violation of the ADA and instead students could be educated in neighborhood schools with reasonable modifications and services. The Day School offers few of the extracurricular activities and vocational opportunities available to children in neighborhood schools, the plaintiffs also argue. The complaint further alleges that the effects of hyper-discipline and isolation on the students contributes to the Day School's high drop out rate of 41% in 2013-14 (compared to the overall 6.5% rate in Springfield's other schools). The PPAL and the students are being represented by attorneys from the Bazelon Center for Mental Health Law, the Center for Public Representation, and Boston law firm Bingham McCutchen. Read the complaint in S.S. v. City of Springfield here.
Thursday, June 26, 2014
Yesterday, Education Secretary Arne Duncan announced a "major shift" in the way that the ED measures how well states are educating the nation's 6.5 million special education students. In keeping with the administration's accountability focus, the shift is in how the Department measures state's compliance with the Individuals with Disabilities Education Act (IDEA) from focusing on whether states have met the IDEA's procedural requirements to charting the reading and math proficiency of students with disabilities. Michael Yudin, Acting Assistant Secretary for the Office of Special Education, wrote on ED.gov that while "the vast majority of students in special education do not have significant cognitive impairments that prohibit them from learning rigorous academic content, fewer than 10 percent of eighth graders with disabilities are proficient in reading and math on the National Assessment of Educational Progress (NAEP). Too often, students’ educational opportunities are limited by low expectations." Using the new yardstick of student performance, while 40 states are compliant with the IDEA's core procedural requirements, only 18 states would be compliant under the ED's new student reading and math proficiency standards. See the chart at IDEA State Determinations Under Results Driven Accountability: 2014.
Friday, June 20, 2014
Request for Information (RFI) on Significant Disproportionality
The U.S. Department of Education (Department) published an RFI in the June 19, 2014 Federal Register requesting public comment on the actions that the Department should take to address significant disproportionality based on race and ethnicity in special education.
The Department is requesting input from the public on actions the Department should take related to:
- significant disproportionality based on race and ethnicity in the:
- identification of children as children with disabilities, including identification by disability category;
- placement of children with disabilities in particular educational settings; and
- the incidence, duration, and type of disciplinary action taken with respect to children with disabilities; and
- ensuring that funds reserved for comprehensive, coordinated early intervening services under Part B of the IDEA are used to effectively address significant disproportionality.
The RFI includes information about how to submit public comments. Responses must be received by July 21, 2014.
Link to OSERS Page: http://www2.ed.gov/policy/speced/guid/idea/disproportionality.html
Wednesday, June 18, 2014
A western Pennsylvania newspaper did some number crunching on school funding, disability, and poverty levels in the area. The paper found that "[o]f the 117 school districts in southwestern Pennsylvania, 40 educated a higher-than-average population of both special education and low-income students during the 2012-13 school year." And "that districts that serve low-income families are more likely to have higher percentages of special-education students. All but 12 of the 52 districts that serve communities with more than 41 percent of students identified as low-income also have a higher than average percent of special-education students. Comparatively, of the 65 districts serving fewer low-income families than average, only 21 have more than 15.3 percent of students identified as special education."
The paper turned to experts to help explain the phenomenon. The response "districts serving poor families deal with several issues that can affect whether a student is identified as special education, . . . including inadequate prenatal care, poor nutrition, and a fetal drug and alcohol problems." Lump on top of that the fact that these poor communities tend to have low tax bases, which means their capacity to fund educational in general is limited. In short, these poor communities experience a perfect storm: student poverty, high levels of disability, and underfunded schools regardless of demographics.
The proposed solution was to make a district's socioeconomic status a factor in special education funding, rather than relying on flat amount. At first glance, that sounds like an appropriate response, although countermeasures are likely also necessary so as to ward of perverse incentives in the identification of disability, which may already exist to some extent and explain so overidentification. Regardless, raising these issues in the context of western Pennyslvania is particularly important because, other than Pittsburgh, the area is is largely rural and white, with significant percentages of poverty and undereducation. These demographics take race out of the picture. All too often, issues of poverty are equated with or clouded by issues of race, impeding a fair and objective look at and response to the problem. That does not, however, mean a solution will be forthcoming. My suspicion is that, as poor and rural districts, these Pennsylvania communities still have limited political sway.
As a side note, those interested in poverty and disability should read James Ryan's recent article discussing the relevance of poverty in the identification of individual students' disabilities.
Friday, April 25, 2014
Mark Weber's new article, In Defense of IDEA Due Process, is now available here on ssrn. The abstract indicates:
Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker.
This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and that others are overstated. The system is generally fair to the various classes of parents, even if some parents are better able than others to use it effectively. Costs are remarkably low given the number of children receiving special education, and hearings and hearing requests have been in decline for years. Far from being futile, the due process hearing system is one in which parents win a significant percentage of cases. And far from being out of control, hearings are generally being managed effectively. The system could be rendered still more efficient with a few modest reforms of the special education statute and its interpretation.
The call for minimizing IDEA process has been around for a while, but I suspect it will only gain more steam in coming years, as it fits "nicely" with the overarching theme of flexibility and deregulation that has driven charter school and voucher growth. Whatever one thinks of charter schools and vouchers, Mark offers the rationale for why the current rules in IDEA work.
Tuesday, April 22, 2014
Special Education Degrees asked me to share their new infographic with you this morning. It breaks down the cost of delivering education to students with special needs and what the government is and is not doing to address it. It is also followed by a list of resources for parents and advocates. The full infographic is available here. I must note that while my reading of their materials and links is that it intends to be supportive of families of students with special needs, some of the language used (along with the title) could be read to frame the cost of special education in a negative light. It labels it a "burden" on the federal government, states, and families. I hope it was not their intent to suggest these children are burdens. To the extent it does, this post is not an endorsement.
Thursday, April 10, 2014
Second Circuit Rules that IDEA's Least Restrictive Environment Requirement Applies to Extended-Year Placements
The Second Circuit held last week that the Individuals with Disabilities Education Act's least restrictive enviroment requirement applies to extended-year placements (ESY) just as it does to school-year placements. New York's Cornwall Central School District placed a kindergarten student, T.M., in a 12-month educational program that included ESY services over the summer. The Cornwall school district determined that T.M., a student with autisim, needed an ESY placement to prevent substantial regression. The district did so under the IDEA's requirement that school districts “ensure that extended school year services are available as necessary" to provide a free and public education for students with disabilities. However, T.M.'s parents and the school district were unable to agree on T.M.'s IEP, as the parents objected to the school's offer to place T.M. in a summer program in a self-contained special education classroom rather than provide support services in a general education classroom integrated with non-disabled students. T.M.'s parents sued, alleging that Cornwall failed to offer T.M. the least restrictive ESY placement under the IDEA. Cornwall responded that the LRE requirement applies only where the state already operates a mainstream classroom in which the student can be placed. Because Cornall does not offer an ESY mainstream program, the district argued, the LRE requirement does not apply to T.M.'s ESY placement. The district court granted summary judgment in favor of the district, ruling that Cornwall had met its obligations under the IDEA. Overturning the district court, the Second Circuit held that "[i]f a disabled child needs ESY services in order to prevent substantial regression, that child's ESY placement is an integral part of his or her twelve-month educational program." The circuit court noted that the IDEA requires education to be provided in "the least restrictive educational setting consistent with that student's needs, not the least restrictive setting that the school district chooses to make available." The circuit court then turned to whether Cornwall had to pay the full cost of T.M.'s pendency services through private providers even though Cornwall had offered to provide the same services itself at a lower cost. During the pendency of the suit, T.M.'s parents enrolled him in a developmental kindergarten program at another school and arranged for additional special education services at their own expense. The Second Circuit held that "[a]lthough Cornwall was wrong to deny T.M. pendency services in the first place, it nevertheless is not required to pay for T.M. to remain with the same pendency services providers throughout this entire litigation." Read T.M. v. Cornwall Central School District, No. Nos. 12–4301, 12–4484 (2d Cir. Apr. 2, 2014) here.
Thursday, March 20, 2014
The IDEA and Section 504: Current Trends and Challenges for Leading Practitioners in Education and Law
Lehigh University's College of Education is hosting a one-week intensive training on special education law. The program is designed for special education coordinators, teachers, principals, pyschologists, parents, attorneys and hearing officers. The program will include presentations by Michael Yudin, nominee for Assistant Secretary of Special Education and Rehabilitative Services, U.S. Dept. of Education, and Melody Musgrove, Director of Office of Special Education Programs, U.S. Dept. of Education. The program flyer is here: Download Lehigh Sp Ed Law Symposium 2014.
Wednesday, March 19, 2014
A new book, The ADHD Explosion, by health economists Stephen Hinshaw and Richard Scheffler finds a recent explosion in cases of ADHD among children. In 2003, 7.8 percent of students were diagnosed with ADHD. The number has steadily increased since then, reaching 11 percent in 2011. They attribute the cause to high stakes testing. Prior to NCLB, there were individual states with high identification rates for ADHD. Those states tended to be ones with high stakes testing and accountability systems. After the passage of NCLB, those states with formerly low rates of identification saw their numbers climb as well.
If their conclusion is accurate, this may be one of the most eye-opening and important studies with education implications we have seen in some time. Toward that end, I am going to try to rope some of our special education experts into commenting on it. Until then, I will leave you with the book's synopsis:
Attention-deficit/hyperactivity disorder (ADHD) is one of the most controversial and misunderstood medical conditions today. With skyrocketing rates of diagnosis and medication treatment, it has generated a firestorm of controversy. Alarming questions have been raised about ADHD in recent years, including:
- Why are one in nine children and adolescents in the U.S. now diagnosed with ADHD, with projected rates still rising?
- Why are nearly 70% of those diagnosed with ADHD prescribed medication?
- What is causing the fast-rising diagnosis and medication of adults? And why are over a quarter of all college students using stimulants for academic performance?
- In some southern states, why are boys over 9 years old diagnosed at rates of almost one in three?
- Can we trust the stories we read and hear about ADHD, even in major media outlets?
- What is driving the current ADHD explosion–is it parents, doctors, schools, culture, the healthcare system, or Big Pharma? And will it end?
Stephen Hinshaw, a distinguished psychologist, and Richard Scheffler, an eminent health economist, uniquely blend clinical wisdom, current science, medical and school policy, and global trends to debunk myths and set the record straight in The ADHD Explosion. They describe the origins of ADHD and its huge costs to society; the science behind its causes as well as medication and behavioral treatment; and the variation in diagnosis and treatment across the U.S. Dealing directly with stimulants as “smart pills,” they describe the epidemic of medicalization, arguing that accurate diagnosis and well-monitored care could ease the staggering economic burden linked to ADHD.
Monday, March 17, 2014
Perry Zirkel is publishing a follow-up to her and Karen Gischlar's prior longitudinal study of IDEA administrative filings and court adjudications. The prior study "found a steady increase in the volume of decisions during the period 1991 to 1996, followed by a 'relatively high, albeit uneven, plateau' from 1997 to 2005." In the six year period following this prior study, the new study found a "clearly downward longitudinal trend for adjudicated [due process hearings] . . . , ending at a seemingly relatively stable level less than half that of the start of the period."
The study also attempts to identify the cause of this shift, positing that "the reduction would seem to be attributable to the nationally systemic emphases 1) initiated in the 2004 amendments and 2006 regulations of the IDEA, including extending the option of mediation to the period before filing for a [due process hearing] and—more notably—adding the innovation of a resolution session as a prerequisite to the DPH; and 2) supplemented by the continuing alternative dispute resolution (ADR) activities of the OSEP-funded National Center on Dispute Resolution in Special Education, such as IEP facilitation." Zirkel, however, reasons that neither of those explanations are a primary cause because the number of filings declined much less than adjudications, and the declines were largely isolated to just a few jurisdictions, rather than nationally.
The full paper is here Download Zirkel DPH Trends.
Tuesday, March 11, 2014
Paul Secunda's new article, Overcoming Deliberate Indifference: Reconsidering Effective Legal Protections for Bullied Special Education Students, is up on ssrn. The abstract offers this summary:
Ten years ago, in response to an epidemic of bullying and harassment of special education students in our nation’s schools, I put forward two new legal proposals based on legal protections that these students uniquely have under the Individual with Disabilities in Education (IDEA). Although these proposals have gained some traction in the ensuing time period, most courts continue to analyze these cases under the same series of largely ineffectual constitutional and statutory laws. What many of these laws have in common with my previous proposals is reliance on a deliberate indifference standard, which requires schools and responsible school officials to essentially ignore the bullying behavior before being held legally accountable for their actions. Not surprisingly, there has been a remarkable lack of case success in even the most severe instances of special education student bullying.
To provide meaningful legal protections for bullied special education children, this article seeks to overcome the deliberate indifference standard by relying on a combination of reasonable accommodation principles under federal disability law and legal protections that children with disabilities already have under IDEA. More specifically, this article argues for adoption of the gross mismanagement standard under Section 504 of the Rehabilitation Act and an expansion of existing state anti-bullying laws to provide special education children with various forms of private rights of action to combat the most severe forms of bullying. These new legal proposals will add to the arsenal that bullied special education children have at their disposal to fight back against both their tormentors and their institutional and individual enablers.
Download the full article here. I have blogged on deliberate indifference in sexual and racial harassment several times. I have to admit my ignoring regarding the intracies in special education students, but Paul's article would seem to be an important contribution. Because schools owe special education students affirmative education rights (whereas they owe no affirmative rights based on race or sex), allowing them too much deference in terms of harassment strikes me as inconsistent with IDEA.
Tuesday, February 25, 2014
The New Jersey Department of Education agreed to settle a disability rights lawsuit last week involving claims that special education students were assigned to educational settings that were not the least restrictive environments required under the Individuals with Disabilities Education Act (IDEA) and Section 504. The plaintiffs, a collection of statewide advocacy agencies acting on behalf of children with disabilities, sued the NJDOE in 2007, charging that the state placed special education students in restrictive settings at a rate that was twice as high as twenty-six other states. Data from NJDOE also showed that while 3.8% of the nation’s students receiving special education services were in New Jersey, the state had 9% of students nationally in restrictive placements. NJDOE agreed in the settlement to conduct a least restrictive needs assessment for about 75 school districts and to train, monitor, and support those districts for compliance with special education laws. View the settlement in Disability Rights v. NJ Dept. of Ed., No. 3:07-cv-02978 (D. N.J.) here.
Wednesday, January 15, 2014
Appellate Court Holds That Parents of Special Education Student Are Entitled to Tuition Reimbursement: School's After-the-Fact Promises to Afford Better Services Not Good Enough by Mark Weber
The Illinois Appellate Court issued a noteworthy special education decision on December 31, 2013. Jenna R.P. v. City of Chicago School District No. 299, No. 1-11-2247, 2013 WL 6869027 (Ill. App. Dec. 31, 2013), reversed a trial court decision that had denied a parent reimbursement for a private residential placement. The student had a history of social and emotional difficulties. In March of her first year in high school, the Chicago Public Schools found her eligible for special education with a designation of emotional disturbance and learning disability. Her Individualized Education Program called for a decreased course load and some resource room services, but she racked up many absences and failed five subjects. The district modified her IEP during sophomore year, intensifying the accommodations and assistance; nevertheless the absenteeism continued and she ran away from home the Spring of that year. Her father ultimately located her and placed her in an inpatient psychiatric hospital, then in a wilderness-based residential school in Utah. In June, the father contacted the person responsible for special education services at the public school to arrange a long-term plan to educate the student, but was told that the IEP team could not convene due to the end of the school year. In July, the father sent a ten-day notice to the district advising it of his plan to place his daughter at Elan School in Maine and obtain reimbursement. In late July, the director of due process wrote the father to say the district would not fund the placement. The student stayed there for three school years, ultimately obtaining a Maine high school diploma and admission to several colleges. During the time the student remained at Elan, the district and the father agreed to an additional evaluation, and during her last year at Elan, the school system revised her IEP to offer instructional accommodations, 30 minutes per week of social work consultation, and special education supportive services for 20 percent of the school day, all at a Chicago public school.
In response, the father requested a due process hearing. The hearing officer ruled that the public schools had denied the student free, appropriate public education, relying on overwhelming evidence she needed a small teacher-pupil ratio in a highly structured setting. The officer denied tuition reimbursement, however, pointing out that the student’s problems stemmed from parental management issues and runaway behavior, but arguing principally that the parent failed to place the student in the least restrictive environment, and that the public school had the capacity to place the student in a small, self-contained classroom or a private day school. The state trial court affirmed on the basis of the administrative record.
The appellate court reversed in an opinion by Justice Gordon, holding that the hearing officer made errors of law by relying on what the small, self-contained class the district could have provided, rather than what the school system actually offered in the IEP. The court adopted the view of the Second Circuit in R.E. v. New York City Department of Education, 694 F.3d 167 (2d Cir. 2012), limiting the public school to the IEP and evidence describing what it would provide, but not allowing reliance on services not actually offered by the school system in the IEP. It reasoned that the school system is not allowed to create a defective IEP, let the parent obtain a private
Friday, January 10, 2014
A recent case of interest with regard to special education is P.J. ex rel. W.J. v. Katz, No. 10-3586-CV, 2013 WL 6726948 (2d Cir. Dec. 23, 2013). P.J. is an unpublished, nonprecedential ruling from the Second Circuit Court of Appeals. It concerned a consent decree entered in 2002 by a district court in Connecticut regarding education of children with intellectual disabilities (a term that has come to replace mental retardation). The defendants included the Connecticut Board of Education and Department of Education. The goals of the agreement as stated in its text were to increase the percent of students with intellectual disabilities in regular classes, decrease discriminatory identification of children as having intellectual disabilities, increase the portion of the school day children with intellectual disabilities spent with nondisabled students, raise the percent of students with intellectual disabilities attending the school they would attend if not disabled, and increase the percent of students with intellectual disabilities participating in extracurriculars with nondisabled students. Monitoring, outreach, and establishment of an advisory panel were required. The district court retained jurisdiction for enforcement of the agreement for five years, but the agreement restricted the jurisdiction to reviewing motions for substantial noncompliance in the subsequent three years. The court’s jurisdiction ended after eight years. The plaintiffs made a motion asserting substantial noncompliance in 2009, one year before the jurisdiction was to expire.
The Second Circuit affirmed orders from the district court that first denied a motion to compel discovery on the plaintiffs‘ 2009 motion and then denied the underlying noncompliance motion. The appellate court noted that the agreement required the defendants to provide nothing more than existing data to the plaintiffs for the final three years, and it upheld the district court’s finding that the defendants had not frustrated the essential purposes of the agreement. The essential purposes were limited to the goals enumerated in the decree; less consequential breaches did not matter, in the court’s estimation. The goals were numerical in nature, and the defendants showed numerical progress, even though progress slowed as time went on and easy gains were realized.
The case illustrates the reluctance of the courts of appeals to overturn district court decisions in the conduct of long-running litigation over systemic educational discrimination issues. In that respect, the case bears some similarity to Corey H. v. Chicago Bd. of Educ., 528 F. App’x 666 (7th Cir. 2013), a plaintiff-favorable decision that refused to decertify a class and vacate a 1998 consent decree that dealt with some of the same concerns of educating children with disabilities in the least restrictive environment. P.J. also demonstrates a somewhat inconsistent approach by the court as to how literally to read a consent decree. On the one hand, the restrictions on discovery and limits on jurisdiction were read quite strictly; on the other, provisions of the decree in aid of the basic goals, which plaintiffs said were violated, were read as not consequential enough to support relief.
The plaintiffs may well have achieved a great overall success from the litigation, even if the final result of the compliance effort was disappointing to them. With the expiration of the decree, new litigation could be filed to address continuing violations of the law.
Tuesday, December 17, 2013
Late in the summer, Mark Weber posted on the 9th Circuit's holding in E.R.K. v. Hawaii Department of Education that 20 and 21 year old individuals with special education needs were entitled to services if the state was also providing free GED and competency based education to other students. Now comes a new decision from the California Supreme Court in Los Angeles Unified School Dist. v. Garcia, 2013 6501267 (2013), holding that special education students between the ages of 18 and 22 are entitled to special education and related services even when incarcerated. Although California Education Code section 56041 "does not by its terms specifically address county jail inmates, the statutory language is broad enough to encompass special education programs for eligible county jail inmates between the ages of 18 and 22 years, and no other statute explicitly assigns responsibility for the provision of special education to such individuals. Applying the terms of section 56041 to assign responsibility in this setting is consistent with the purposes of the statute and the special education scheme as a whole, and does not create absurd or unworkable results.”