Wednesday, December 17, 2014
Second Circuit Finds that District Court Erred in Not Giving Greater Deference to State Review Officer's Findings in IDEA Case
The Second Circuit Court of Appeals recently reversed a federal district court’s ruling granting private school reimbursement for an emotionally disabled student under the Individuals with Disabilities Education Act. The Second Circuit held that the district court should have shown greater deference to a State Review Officer's (SRO) determination that parents seeking reimbursement for the unilateral placement of their emotionally disabled child in a private school had not shown that their placement was appropriate. In doing so, the Second Circuit deferred to the SRO’s determination that the student did not improve academically at private school. The circuit court remanded the case for the district court to affirm the decision of the State Review Officer. The takeaway from the opinion is the Second Circuit will defer to the final decision of the state authorities over conflicting IHO and SRO opinions, particularly when no objective evidence contradicts the SRO’s decision.
The case is Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., No. 13-1594-CV, 2014 WL 6778755, (2d Cir. Dec. 3, 2014), and is also available here. More details of the case after the jump.
Thursday, December 4, 2014
ACLU and Community Legal Aid Society File Segregation Complaint Against Delaware Charters, Call for Moratorium
Yesterday, the ACLU of Delaware, ACLU Racial Justice Project and Community Legal Aid Society filed a complaint with the Office of Civil Rights asserting that Delaware’s charter school policies discriminate against students of color and students with disabilities. They also perpetuate segregation. “We hope that the Office of Civil Rights recognizes that any system of selection that has the effect of almost completely excluding children with disabilities from the ‘high-achieving’ charter schools is deeply disturbing and must constitute illegal discrimination,” says Dan Atkins, Legal Advocacy Director of the Disabilities Law Program of Community Legal Aid Society, Inc.
The complaint asserts that "over three-quarters of charter schools operating in Delaware are racially identifiable. High performing charter schools are almost entirely racially identifiable as White. Low income students and students with disabilities are disproportionately relegated to failing charter schools and charter schools that are racially identifiable as African American or Hispanic, none of which are high performing." They assert charter schools are also increasing segregation in traditional public schools.
They ask for the following solutions to the problem:
Thursday, November 20, 2014
As a followup to yesterday's post on isolation practices, the explanation another district for its isolation rooms is worth noting. The Center Consolidated School District, Colorado, has been using isolated study in 4 foot by 6 foot rooms as an alternative punishment to expulsion for ten years. The district reasons that isolation is preferable to classroom disruption or school exclusion. The former harms other students. The latter harms the disciplined student and the school, based on the likely effects on dropout rates. According to the superintendent, parents are given the choice between expulsion and isolation, in which students will be provided study materials. During the last 10 years, about 40 students have been placed in isolation and, over the last year alone, the dropout rate plummeted from 13% to less than 2%.
Wednesday, November 19, 2014
According to a four month investigation by local news sources, Mansfield Independent School District in Texas put elementary school students in isolation rooms on 800 different occasions last year. The district's documents refer to the rooms as “blue rooms,” “recovery rooms,” “calm rooms,” and “isolation centers.” The districts intends to no longer use the latter term. Records also indicate that some students are placed in the room "for the remainder of the day," which begs the question of how long students are kept in the rooms. Equally disturbing, state law does not require that the schools notify parents of the isolation and, thus, this may breaking news to some.
Monday, November 17, 2014
Acting at the direction of the state legislature, the Washington State Governor’s Office of Education Ombuds has produced a report titled On the Creation of a Statewide Special Education Task Force. The basic recommendation of the Office is that the state legislature, superintendent of public instruction, and governor should create a Blue Ribbon Commission to identify obstacles to learning and propose improvement strategies. The report recommends that the focus not be exclusively on special education. Instead, the goal should be an inclusive education system that improves education for students identified as having special education needs at the same time that it delivers supports to other students who need them. The commission would consist of: two co-chairs, one with a record of educational leadership and one who can represent children and parent interests; three educators; two parent representatives; four agency leaders, including representatives of the superintendent of public instruction, the secretary of social and health services, the department of early learning, and the state student achievement council; the director of the office of education ombuds; one expert in neuroscience research, neurodiversity, or diverse learning styles; and one expert in classroom design that promotes inclusive and differentiated instruction.
Wednesday, November 5, 2014
Scholarship: Marking the "Four Corners" of the IEP to Mitigate Unequal Bargaining Power between Parent-Guardians and School Districts
The paper that received the George Jay Joseph Education Law Writing Award from the Education Law Association is available now on Lexis: Matthew Saleh, Public Policy, Parol Evidence and Contractual Equity Principles in Individualized Education Programs: Marking the "Four Corners" of the IEP to Mitigate Unequal Bargaining Power between Parent-Guardians and School Districts, 43 J.L. & Educ. 367 (2014). The Joseph award recognizes excellence in education law scholarship by law students or graduate students of education. Cribbed from the paper's introduction:
Under the Individuals with Disabilities Education Act, school districts are required by law to create Individualized Education Programs (IEPs) for qualifying students to help ensure these students receive a Free and Appropriate Public Education (FAPE). This paper makes the argument that courts should derive parties’ intended agreement from the text contained within the "four corners" of the written IEP and not from extrinsic evidence. Many districts and even state education departments openly favor vague litigable terminologies in IEPs, and most parents simply lack the sophistication to understand the legal problems they are creating for themselves down the line. Using the four corners rule to interpret IEPs would not be altogether different than the tack taken by courts towards construing boilerplate language in other types of contracts where: (a) one party has expertise in the technical language used; (b) the other party is unsophisticated as to the "obscure verbiage" utilized in the instrument; (c) the more sophisticated party played a disproportionate role in drafting the instrument; and (d) the court determines that the boilerplate terminologies do not adequately represent the "intent" of the less sophisticated party to the instrument. The applicability of such rules of interpretation to the IEP context, in conjunction with the four corners rule, would have a positive influence on the effectiveness of the IEP as a proactive means for agreeing to educational services without having to resort to costly, adversarial, and inefficient dispute resolution procedures.
Monday, November 3, 2014
Lisa Lukasik has organized a discussion group at the Southeastern Association of Law Schools conference. The exact date of the panel is not yet set. The conference is scheduled from July 27, 2015 to August 2, 2015 in Boca Raton, Flordia. She is still seeking additional discussants. I would also add that there are several nationally recognized special education scholars scheduled to participate. It is an excellent opportunity for younger scholars to build relationships and exchange ideas with them. Those interested in joining should contact Lisa at firstname.lastname@example.org. The discussion description is as follows:
The Education for All Handicapped Children Act, now the Individuals with Disabilities Education Act, has been the primary federal influence on the education of children with disabilities since its enactment. In its 40th anniversary year with a reauthorization long overdue, it is ripe for reassessment. This discussion group will examine this legislation, reflecting on what has worked, what hasn't, and what can be improved in an anticipated reauthorization. It will also consider the disconnect between the United States' domestic recognition of educational rights for children with disabilities and its minimal effort to ratify the Convention on the Rights of Persons with Disabilities.
Wednesday, October 29, 2014
Tuesday, October 28, 2014
A new Hechinger Report article offers a compelling narrative and social science review of the connection between emotional-behavioral disabilities and prison. We typically call this the pipeline, which is catchy, but often strikes me as vague or a rough characterization of a conglomeration of statistics (albeit an effective one). Jackie Mader and Sarah Butrymowicz's article, like others, discusses how children with special education needs are disproportionately involved in the juvenile justice system. Of the thousands of children caught up in the system every year, "[a]t least one in three of those arrested has a disability, ranging from emotional disability like bipolar disorder to learning disabilities like dyslexia, and some researchers estimate the figure may be as high as 70 percent." Moreover, students with emotional disabilities are three times as likely to be arrested before leaving high school than their peers. Beyond those numbers, however, this article struck me as doing something different--revealing more than just a pipeline from point A to B to C. Rather, it suggests a systematic approach to special needs and discipline that is ill-equipped to do anything other than drive a substantial portion of special needs students to incarceration.
Friday, October 24, 2014
In a case that Derek previously posted about here, a federal district court has administratively closed a class-action suit filed by special-needs students against the Mississippi Department of Education. The district court’s order allows either party to reopen the suit for noncompliance with the terms of a September 2014 settlement agreement. Corrie Cockrell, an attorney with the Southern Poverty Law Center that represents the students, told the Jackson Clarion-Ledger yesterday, "We reached an agreement with the state because we felt it was in the best interest of our clients." In the case, E.H. v. Mississippi Dept. of Educ., 2013 WL 4787354 (S.D. Miss. 2013), special-needs students sued the Mississippi Dept. of Education for its failure to force Jackson Public School District (JPS) to comply with the IDEA's mandate of a Free Appropriate Public Education. The Department investigated the complaint against JPS and, after finding IDEA violations, ordered the school district to remedy the violations or risk losing its accreditation. JPS missed two deadlines for compliance, prompting the plaintiffs to sue in federal court. The Department eventually found that JPS corrected the IDEA violations, but the student-plaintiffs found that it was difficult to verify the Department’s findings. The students thus asked for quarterly progress reports in the settlement, Cockrell said, to ensure that JPS is “moving in the right direction.” According to the Clarion-Ledger article, the state set a goal for 71% of children with disabilities to graduate, but just 12% of those in JPS did as of 2012. The state's average graduation rate for students with disabilities is 23%. Read the settlement agreement in E.H. v. Mississippi Dept. of Educ. here.
Wednesday, October 22, 2014
The guidance letter on bullying and harassment of students with disabilities that was issued this week by the Office for Civil Rights of the U.S. Department of Education is noteworthy for a number of reasons. First, it reinforces the point made in other Department of Education communications that bullying of these students, if not adequately addressed by school districts, amounts to a violation of the law even if the conduct is not directly tied to the students’ disabilities. Although unaddressed bullying that is related to the disability is a clear violation of the protection against hostile environments established by the law, there is a separate violation when bullying, of any kind or for any reason, interferes with a disabled child’s receipt of an appropriate education. Second, with regard to hostile environment violations, the letter stresses that even if the conduct of the school officials does not rise to the level of deliberate indifference to known deprivation of rights, a violation of the disability discrimination laws still occurs when, as OCR puts it: “(1) a student is bullied based on a disability; (2) the bullying is sufficiently serious to create a hostile environment; (3) school officials know or should know about the bullying; and (4) the school does not respond appropriately.” There are reasons to be skeptical of the use of a deliberate-indifference standard copied without any modification from Title VI and Title IX in Section 504 and ADA damages cases. As Derek Black pointed out in his illuminating article at 15 Wm. & Mary Bill of Rts. J. 533 (2006), even in equal protection cases courts should apply a standard that is lower than the Title VI-Title IX deliberate-indifference standard. But in any case a deliberate-indifference standard does not limit when OCR should act to stop and prevent violations of the law. Third, OCR provides a helpful set of examples of hostile-environment violations, non-disability-based bullying that nevertheless leads to violation of the discrimination laws, and an appropriate response to bullying that avoids violating the law. The letter should make a strong contribution to remedying disability discrimination.
Tuesday, October 21, 2014
Below is OCR's dear colleague letter, released today:
As part of National Bullying Prevention Awareness Month, the U.S. Education Department’s Office for Civil Rights (OCR) today issued guidance to schools reminding them that bullying is wrong and must not be tolerated – including against America’s 6.5 million students with disabilities. The Department issued guidance in the form of a letter to educators detailing public schools’ responsibilities under Section 504 of the Rehabilitation Act and Title II of Americans with Disabilities Act regarding the bullying of students with disabilities. If a student with a disability is being bullied, federal law requires schools to take immediate and appropriate action to investigate the issue and, as necessary, take steps to stop the bullying and prevent it from recurring.
Today’s guidance builds upon anti-bullying guidance the Department has issued in recent years concerning schools’ legal obligations to fix the problem, including:
- A 2013 dear colleague letter and enclosure by the Office of Special Education and Rehabilitative Services (OSERS) clarifying that when bullying of a student with a disability results in the student not receiving meaningful educational benefit under IDEA, the school must remedy the problem, regardless of whether the bullying was based on the student’s disability.
- A 2010 dear colleague letter by OCR which elaborated on potential violations when bullying and harassment is based on race, color, national origin, sex, or disability.
- A 2000 dear colleague letter by the OCR and OSERS, which explained that bullying based on disability may violate civil rights laws enforced by OCR as well as interfere with a student’s receipt of special education under the Individuals with Disabilities Education Act (IDEA).
Wednesday, October 15, 2014
Process versus Substance in Affording Students with Behavioral Disabilities a Free Appropriate Public Education
Susan C. Bon and Allan G. Osborne's new article, Does the Failure to Conduct an FBA or Develop a BIP Result in a Denial of a FAPE Under the IDEA?, 307 Ed. Law Rep. 581 (October 5, 2014), is now available on westlaw. The article analyzes a number of recent cases "decided in the federal trial courts in New York over the question of whether school boards' failure to conduct [functional behavioral assessments (FBAs)] or implement [behavioral intervention plans (BIPs)] denied children the free appropriate public educations (FAPEs) guaranteed by the IDEA." Currently, the IDEA requires that school administrators ensure that FIPs are completed and that BIPs are implemented whenever students with disabilities are removed from their programs for more than 10 days due to disciplinary measures. A number of states, however, including New York, have expanded on these federal requirements and "[e]ven though these cases were primarily concerned with state requirements, which are more comprehensive and specific than the IDEA, there are important implications that can be garnered from this litigation."
Wednesday, October 8, 2014
Supreme Court Requests Brief from Solicitor General on School Districts' Financial "Stay Put" Obligations
Hat tip to the Disability Scoop blog, which posted this news from the U.S. Supreme Court: On Monday, the Supreme Court asked the Solicitor General to address a pending certiorari petition on the issue of school districts' responsibility to pay private school tuition while special education disputes are litigated on appeal. Under the Individuals with Disabilities Education Act’s “stay-put” provision, school districts are responsible for paying for a student to remain in an existing educational placement while disputes related to the child’s special education services are resolved. At issue in the petition before the Court, M.R. v. Ridley School District, is whether a school district's financial responsibility dissolves if the parents do not request reimbursement for their out-of-pocket private school costs until after an administrative decision in their favor has been reversed by a court upon further review. The Third Circuit held this February in the case that the Ridley School District (Philadelphia area) had to pay private school tuition for the student while the child’s family continued to appeal their dispute, even though a lower court found in favor of the district -- that the public school provided an appropriate education. A circuit split has developed about whether the stay-put provision applies during the pendency of appeals, with the D.C. Circuit, Sixth Circuit, and district courts in Delaware and the Eastern District of Pennsylvania holding that a school district "need not continue to fund a student's pendent placement beyond district court review," and the Ninth Circuit and a N.J. district court allowing reimbursement through appeal. The National Association of State Directors of Special Education, the National School Boards Association and the Pennsylvania School Boards Association have filed amicus briefs at the Supreme Court arguing that schools should be relieved of the responsibility to pay for private school placements once a court finds in a district’s favor. The Third Circuit decision is M.R. v. Ridley Sch. Dist., 744 F.3d 112, 119 (3d Cir. 2014).
Tuesday, October 7, 2014
Federal Court Orders Hawaii to Provide Compensatory Special Education Services After Age Eligibility Law Found to Violate the IDEA
Last month, a U.S. District Court ruled that Hawaii must provide compensatory educational services to all students with disabilities who were barred under a 2010 state law from remaining in school after the age of 20. The district court’s decision implements E.R.K. ex rel. R.K. v. Hawaii Dep't of Educ., 728 F.3d 982 (9th Cir. 2013), that we discussed on the blog here and here. The federal district court’s latest ruling requires the state to provide “compensatory services to make up for the services missed as a result of that improper determination of eligibility.” R.P.-K, et al. v. Dep’t of Educ., State of Hawaii, Civ. No. 10-00436, slip op. at 2-3 (D. Haw. Aug. 22, 2014). To do this, the district court ordered the parties to determine the members of plaintiffs’ class, including the names and contact information for the students who might have been affected by the Hawaii DOE’s “age out” rule.
The Individuals with Disabilities Act restricts the power of states to establish age limits on special education eligibility until age 22, but exempts states that do not provide general education services after age 18 from that restriction. Hawaii provided education for students older than 20 to earn a high school equivalency diploma by enrolling in one of the state’s ten Community Schools for Adults, but a state law barred students from attending public school after the last day of the school year in which they turned 20. The Ninth Circuit held that the Hawaii law setting the age limit on public education violated the IDEA by eliminating special education eligibility for 20 and 21 year olds when general education students of those ages could attend free GED and competency based education programs. The Ninth Circuit had previously ruled that when a child is denied the Free Appropriate Public Education under the IDEA, a court may provide additional services to “make up for lost time” to remedy the violation. R.P ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1125-26 (9 Cir. 2011).
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