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.

April 10, 2014 in Cases, Special Education | Permalink | Comments (0)

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.



March 20, 2014 in Conferences, Special Education | Permalink | Comments (0)

Wednesday, March 19, 2014

The ADHD Explosion: Is NCLB to Blame?

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.

March 19, 2014 in Special Education | Permalink | Comments (1)

Monday, March 17, 2014

Zirkel Finds Special Education Claims and Lawsuits on Downward Trend Since 2005

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.

March 17, 2014 in Special Education | Permalink | Comments (0)

Tuesday, March 11, 2014

Reconsidering Effective Legal Protections for Bullied Special Education Students

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 ignore 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.

March 11, 2014 in Special Education | Permalink | Comments (0)

Tuesday, February 25, 2014

NJ DOE Settles Lawsuit Challenging Segregation of Special Education Students

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

February 25, 2014 in Cases, Special Education | Permalink | Comments (0)

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

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January 15, 2014 in Special Education | Permalink | Comments (0)

Friday, January 10, 2014

Second Circuit Affirms Expiration of Connecticut's Special Education Consent Decree by Mark Weber

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.

January 10, 2014 in Special Education | Permalink | Comments (0)

Tuesday, December 17, 2013

Courts Continue to Enforce Special Education Rights Beyond High School

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.” 

December 17, 2013 in Special Education | Permalink | Comments (0)

Monday, December 16, 2013

KIPP's Padded Cell for Kindergartners: Is it Legal?

The New York Daily News reports that KIPP Star Washington Elementary Charter School has repeatedly used a padded cell to hold a kindergarten and a first grade boy in time out for 15 to 20 minute stretches.  The boys' parents say their children have subsequently experienced anxiety attacks.  One boy's anxiety reaction to being in the cell was reportedly so severe that that he was removed from the room and taken to the hospital.

Although the notion of putting children in a padded cell--particularly  ones so young--is shocking to most, the question of whether it is legal is not as clear cut.  Some states, like Washington, for instance, specifically include isolation rooms in the list of the state's permissible disciplinary measures. See, e.g., Wash. Admin. Code § 180–40–235.  In the context of special education, several parents have brought suit against school districts for their use of isolation cells.  The results have been mixed.  Most courts appear willing to sanction the use of isolation in theory, as a means of allowing kids to cool off and not hurt themselves or others.  See, e.g., Melissa S. v. School Dist. of Pittsburgh, 183 Fed.Appx. 184 (3rd Cir. 2006); Payne v. Peninsula School Dist., 653 F.3d 863 (9th Cir. 2011).  But when the isolation rooms have been used purely as punishment devices, some courts have been willing to intercede. See, e.g., CJN v. Minneapolis Public Schools, 323 F.3d 630, (8th Cir. 2003).  In short, the limited use of isolation to allow a student to cool off is probably legal, even if it is in a closed room, but the use of isolation as a means of punishment may cross the line. We will have to wait for more facts to determine which way KIPP uses its rooms.

December 16, 2013 in Discipline, Special Education | Permalink | Comments (0)

Friday, December 6, 2013

Special Education Services and Compliance as Cost Savings

Joy Resmovits of Huffington Post recently ran an in-depth story on students with severe autism and one family's fight for their son's education.  The fight is over whether a 6 year old boy, Max Masucci,  can learn to say his name.  The school's specialists say he can't.  His parents say he can, but the time window for him to learn "how" to learn is closing.  They point to researchers who say there is a "window of opportunity [in which] the brain is still developing and very malleable until age eight or nine. . . If, at that point, you utilize some of the evidence-based best practices like behavioral intervention strategy, you really are rewiring the brain."   In other words, if the district doesn't act soon, its prophesy may be self fulfilling for Max.

A key legal and policy issue is embedded in this debate.  The cost of special education services, particularly for individuals with severe disabilities, can be enormous.  As a result, some schools feel incentivized to deny or delay services.  Even if parents challenge schools through special education due process hearings, schools can end up saving money if they can win a portion of these hearings.  Of course, many families will not challenge the school.  The problem is that this calculus ignores long term and broader societal costs.  The Autism Society emphasizes, for instance, that if autistic students do not learn the skills they need to eventually live an independent life, the societal cost of care only increases over time: $3.2 million over the course of each person's life.  The total national cost would be between $200 billion and $400 billion annually.   Early investments in education, however, are said to give these students a 60 percent chance of independent living.  If those numbers are correct, special education services and legal compliance are not burdens on society that we ought to avoid, but a cost savings we should embrace.  Of course, this is the same point advocates have pressed in recent months regarding implementing universal pre-k and ending the school-to-prison pipeline.  Either our propensity to live in the moment or the growing lack of faith in the education system keep getting in the way of rationale thought.


December 6, 2013 in Special Education | Permalink | Comments (0)

Thursday, November 21, 2013

Court Finds That Sub-classes Cure Flaws in D.C.'s Special Education Class Action Litigation, By Mark Weber

Ever since the Supreme Court’s decision in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011), narrowly reading the “common question of law or fact” requirement of Fed. R. Civ. P. 23 so as to overturn a class certification in a Title VII case, there has been concern that class actions in education law cases might be more difficult to certify. The concern is particularly acute in special education cases, because so much of the enforcement of legal rights, both before and after congressional passage of the Individuals with Disabilities Education Act, has been through class actions. Jamie S. v. Milwaukee Public Schools, 668 F.3d 481 (7th Cir. 2012), confirmed the fears of some advocates by relying on Wal-Mart to overturn a class decree in a case alleging that the school system failed to identify, locate and evaluate children who are potentially eligible for special education services, and failed to design and implement educational programs for them. In a rather similar case challenging the failure to follow IDEA child-find obligations requiring the school system to identify, evaluate, determine eligibility for children with disabilities, and provide transition from services from infant program services to school services, the D.C. Circuit vacated a class action decree against the D.C. public schools, relying in part on Wal-Mart and on Jamie S. DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013). The DL case read much differently from Jamie S., however. The court said that the large, combined class of all children affected by the child-find deficiencies of the public schools failed the Wal-Mart standard, but pointed out that smaller subclasses composed of children harmed by more narrowly defined practices could be permissible.

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November 21, 2013 in Special Education | Permalink | Comments (0)

Monday, November 18, 2013

New York State to Settle Its Special Education Tuition Reimbursement Lawsuit

Last week, the Wall Street Journal reported that the state had reached a proposed settlement with parents who have placed their special needs children in private schools  and are seeking tuition reimbursement.  The settlement would still need to be approved by the district court.  To be clear, however, the settlement is more procedural that substantive.  Currently, state law requires that a state agency approve settlements/serve as the appeals agency for those families who are denied a settlement by the school district.  The problem is that so many parents have placed their children in private settings, and so many appeals are before the state agency, that there is a huge backlog. As a result, the state is simply failing to process all the claims before it.  This settlement would eliminate the appellate process and defer to local school district decisions, which would drastically speed up the process.

November 18, 2013 in Special Education | Permalink | Comments (0)

Monday, November 11, 2013

OCR Reaches Another Settlement Agreement Regarding Racial Disparities in Special Education

Just last week, I posted on the special education settlement agreement in Schenectady City School District regarding racial disparities, and posited it was unlikely to have ripple effects.  Now comes another settlement agreement from Sun Prairie Area School District in Wisconsin regarding racial disparties.  I would not call the agreement in Sun Prarire a ripple effect, as it has the relatively high racial disparities that were not present in Schenectady.  These higher disparities make Sun Prarie an easier case for inferring bias, whereas I posited that the procedural failures were the linchpin in Schenectady. Regardless, this new settlement agreement is further evidence that OCR is agressively enforcing racial disparities, not just in special education, but across mutliple areas.  See also here.

 OCR's press release follows the jump.


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November 11, 2013 in Federal policy, Special Education | Permalink | Comments (0)

Local School Board Sues Kentucky Ed Department in Special Education Case

In what a school board attorney acknowledges is an unusual move, a Kentucky school board filed suit in federal court last week against the Kentucky Department of Education in a special education case. The KDE is named as a defendant in the suit filed by the Board of Education of Fayette County, Kentucky under the Individuals With Disabilities Education Act (IDEA). The complaint notes that KDE “is not called upon to answer the substance of the Complaint, but is made a party in order to give full effect to any final order or judgment of this Court and make such order or judgment binding on KDE[.]” The school board is appealing an adverse due process hearing decision by Kentucky’s Exceptional Children Appeals Board (ECAB). The ECAB found that the district denied a student a free and appropriate education during the 2011-12 school year and ordered the school board to provide 540 minutes of compensatory psychological services. Details are not yet available about the grounds for the ECAB’s decision, but are likely to be unsealed soon. The complaint is Board of Education of Fayette County, Kentucky v. Z.B. et al, No. 5:13-cv-00376-KKC (filed Nov. 4, 2013).

November 11, 2013 in News, Special Education | Permalink | Comments (0)

Common Core Inspiring Reexamination of IEP Standards

Education Week writer Christina A. Samuels asked teachers and education scholars to evaluate states’ plans to align Common Core academic standards with Individualized Education Plans (IEP) for students with disabilities. An emerging theme is that Common Core is prompting educators to reexamine underlying assumptions about acceptable IEP goals. Margaret J. McLaughlin, a professor in the department of special education at the University of Maryland College Park, said that “the reality of standard-based IEPs has not measured up to [the] promise” because teachers have insufficient time to craft IEPs and measure their effectiveness. Diane M. Browder, a professor of special education at the University of North Carolina at Charlotte questions a common IEP emphasis: that special education students show master life skills before academic subjects. Professor Browder said that such IEP life skills goals can impose a double standard—reading instruction, for example, is not delayed for general education students to learn life skills but academic instruction can be stayed for special education students. Prof. Browder said, "Why would we take a whole class of citizens and say you don't get to learn the standards that we say are most important for everyone?" Read more here.

November 11, 2013 in Special Education | Permalink | Comments (0)

Mark Weber on Pennsylvania's Special Education Funding Case

C.G. v. Pennsylvania Dept. of Educ. 2013 WL 5912054 (3d Cir. 2013) is an intriguing case with an ambitious theory. The plaintiffs challenged the Pennsylvania special education funding formula, which takes the total amount of state supplementary money for special education and divides it up on the basis of the membership of each school district, acting on the assumption that 16% of the students of each district have disabilities. The plaintiff class consisted of students with disabilities attending schools with a 17% or greater enrollment of children with disabilities and limited taxing capacity. The average per-special education student state subsidy amounted to $3327 for children in the class, but $4108 for children with disabilities not in the class. Originally, plaintiffs said the formula violated the Individuals with Disabilities Education Act, the Rehabilitation Act, and the ADA. They lost at trial, and appealed the decision regarding the Rehab Act and the ADA claims.


The court of appeals accepted the proposition that there could be a violation of the Rehab Act and the ADA even if there is no violation of IDEA, and it agreed that discrimination against a subgroup of people with disabilities could violate the Rehab Act and the ADA. But the court said the plaintiffs did not show that, on the basis of their disability, they were deprived of a benefit or opportunity given to non-disabled students or a group of students with some other category of disability. The court assumed that the funding formula had an adverse impact on the class, but said not all adverse impacts are prohibited by the Rehab Act and the ADA. Instead, drawing an analogy to Alexander v. Choate, 469 U.S. 287 (1985), the court looked to whether the class members had been denied meaningful access to a benefit to which they were entitled. Although the students in the class were in districts where students with disabilities scored more poorly on standardized tests and had lower graduation rates than in other districts, the court said evidence was lacking about a relationship between funding levels and special education student performance, and it said there was no showing any student was deprived of any given service because of the funding formula.


That outcome is not entirely surprising. Michael Stein and Michael Waterstone have written about the difficulty in persuading courts to apply disparate impact reasoning in ADA cases, even in employment cases where it is explicitly provided for in the statute, and Cheryl Anderson has provided a telling critique of the barriers plaintiffs may face in establishing causation in disability cases. As a general matter, the ADA’s legislative history shows an intention to codify Alexander v. Choate. Choate says some negative impacts, but not all, violate the Rehab Act. Although education may be an area where an impact could violate the Rehab Act and the ADA, Choate itself, which upheld Medicaid cuts that it assumed disproportionately harmed people with disabilities, displays a reluctance to cause a major reordering of public resource allocation decisions.


With regard to special education, there are a variety of methods that states use to distribute state – as opposed to federal – special education money. Some authorities express concern that special-education-headcount-based formulas provide an incentive to find too many children eligible for special education. Systems similar to Pennsylvania’s try to avoid this problem, but do so by treating districts alike, even when districts may simply have high concentrations of children with disabling conditions. In some ways, Pennsylvania mimics the way the federal government distributes special education money for increases over the base amount after passage of IDEA 1997 – a headcount of all students in the district, disabled and not, with a modest upward tick for the fraction of students in poverty. The 1997 change was intended to diminish incentives to over-identify. It is true that over-identifying children may cause harm. Labels can hurt, and it’s hardly unusual for expectations to sink once a child is considered a special education student. However, I would rather see the attention focused on getting services to all students who need them, and addressing stigma, separation from the mainstream, and low expectations directly, rather than imposing arbitrary disincentives to designating students as IDEA-eligible when they may really need the help.



November 11, 2013 in Special Education | Permalink | Comments (0)

Tuesday, November 5, 2013

OCR Finds Special Education Discrimination in New York School District, But Ripple Effects Unlikely

The Office for Civil Rights has reached a settlement agreement with the Schenectady City School District in regard to its special education program.  OCR found that the district was enrolling a disproportionate number of black and Latino students enrolled in special education.  For instance, 49 percent of the students classified as emotionally disturbed were African American, while African Americans were only 35 percent of the overall student population. Twenty-three percent of students classified as learning disabled were Latino, while Latinos were only 16 percent of the overall student population.

OCR found that the disparity stemmed from the lack of standardized criteria for referring students to special education.   For instance, the district did not even have Spanish language materials with which to evaluate English Language Learners, which is specifically required by federal law.  OCR also found that the approach to special education identification differed from teacher to teacher and school to school.  One of the more obvious problems was in regard to racially diverse classrooms, where it was often the case that teachers only referred minority students for special education.  Finally, the district did not have monitoring system in place to gauge whether its special education system was working appropriately.

The settlement agreement--which OCR credited the district for actively collaborating on--calls for the district to hire an outside expert, to develop a uniform screening process, to create building level teams that manage the process, to offer continuing professional development, and to review its existing special education evaluations.  The full agreement is available here.

Those familiar with special education disparities might wonder why this district drew OCR’s attention.  In comparison to many other districts, the disparities are not that high.  The question then is, if this district is in violation, are hundreds or thousands of others as well?  Will OCR take action against them?  The answer is probably not.  The disparities do not appear to be the legal primary trigger here.  Rather, the district’s failure to have basic procedures in place made this an easy case for OCR.  The lack of procedures, of course, helps create the disparity and, thus, gives OCR a firm ground upon which to act.  But when a district has the correct procedures in place, making the case for a violation becomes more difficult.  Disparities alone rarely amount to a violation.  In short, big win for special education students in Schenectady, but this one is unlikely to have ripple effects.

November 5, 2013 in Special Education | Permalink | Comments (0)

Wednesday, October 30, 2013

Poverty as Disability and the Future of Special Education Law

For those who did not catch James Ryan's article, Poverty as Disability and the Future of Special Education Law, when it went up on ssrn or for those who need a citation, the final version is now available on westlaw at 101 Geo. L. J. 1455 (2013).  The article is pretty remarkable in its analysis and conclusion.  Ryan's primary argument is that new findings in neuroscience indicate that poverty affects the brain and learning in much the same way that some disabilities do.  "To oversimplify, growing up in poverty can physically affect how a child's brain develops and functions."  Disability law, however, distinguishes between internal conditions that impede learning--such a dyslexia--and external ones-such as poverty.  For those looking for a thought provoking education article, including those who do not focus on special education, this one is a must read.  The introduction to his article follows the jump.

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October 30, 2013 in Special Education | Permalink | Comments (0)

Monday, October 21, 2013

Philadelphia’s Cost/Benefit Analysis in Providing Special Education Services

Philadelphia’s school budget crisis means nearly every area is understaffed, as Derek noted last week, and services to the city’s 20,000 special education students have not been exempt. (The Philadelphia school district lost 3,000 employees this school year, ofwhich about 800 have been recalled so far.) The school district says that it made special education services a priority by not eliminating any positions or funding, but acknowledges that because state funding for special ed has been flat for six years, some vacant positions have not been filled. Kenneth Cooper, who was an assistant general counsel in the Philadelphia district's special-education law department for eight years, talked to NPR last week about the challenges that the city’s budget crisis will create this year in special education. Cooper left his position over his concerns about the quality of special ed services. Cooper said that it is nearly impossible for Philadelphia to provide the services required by the Individuals with Disabilities Act (IDEA) with its available resources. Cooper said that the problem was not getting the district to acknowledge problems in special education services, it was getting someone to respond to them. Instead, the district seemed resigned to defending itself against lawsuits. When the district is found to have violated federal disability laws like the IDEA, it can lose big—last year the district budgeted $6.2 million for losses and judgments in special education cases, which contributed to an $8.7 million overrun in all losses in judgments that year. That $6.2 million did not include the cost of support services or school tuition that the district may be ordered to pay for. So how does the district benefit with this approach? Cooper says that the district counts on a “dirty little secret”—that kids will not use all of the support services after they are ordered, so the district will not have to pay for them. Read more here.

October 21, 2013 in Special Education | Permalink | Comments (0)