Friday, May 22, 2015
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).
Friday, May 1, 2015
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.
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
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.
Thursday, April 23, 2015
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.
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).
Wednesday, April 1, 2015
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.
Thursday, March 19, 2015
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 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.
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.
Tuesday, February 24, 2015
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.
Tuesday, February 17, 2015
"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?
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.
Wednesday, January 28, 2015
Suzanna E. Eckes, Aaron N. Butler, and Natasha M. Wilson's article, Brown v. Board of Education's 60th Anniversary: Still No Cause For a Celebration, 311 Ed. Law Rep. 1 (Jan. 15, 2015), is now on westlaw. The article discusses how far the United States has come in integrating students and how far it has have left to go to achieve the goal of Brown v. Board. The article begins by presenting a history of "civil rights legislation, constitutional protections, and Supreme Court decisions related to racial integration." Next, the authors turn to more recent court decisions signifying the end, or at least the slowing, of integration in schools. The last two sections discuss other types of segregation and the importance of broad diversity in public schools.
Regarding other types of segregation, the authors cite to cases in which schools had segregated students based on "gender, ability, language, religion, and sexual orientation." Since the 2006 amendments to the Title IX regulations "mak[ing] public single-sex educational programs more accessible in public school[,]" the number of single-sex classrooms and schools has been on the rise. As compared to only three single-sex public education programs in 1995, "[t]oday there are approximately 500 schools in 40 states that offer single-sex classes and 90 single-sex public schools in the U.S." In addition to the spread of single-sex schools across the country, public schools have opened to cater to LGBT students. "These schools are designed to serve as safe havens for LGBT students who have been bullied or harassed in their traditional public schools." However, some have argued that, while sparing LGBT students hurtful and damaging harassment, these separate schools may result in unnecessary segregation.
Finally, some school systems also separate students based on disabilities. An investigation conducted by the Office of Civil Rights recently found that one New Jersey school district had placed over 60% of its students with disabilities into "self-contained classrooms." And these instances of segregation are not limited to traditional public schools. Charter school and voucher programs face similar challenges, from "enthocentric or culturally-oriented niche charter schools" leading to greater racial segregation, to private/religious voucher-receiving schools discriminating against LGBT students, students with disabilities, or religious minorities. The authors conclude by presenting evidence of the harms segregation can cause and the need for integration in schools.
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 email@example.com. 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