Tuesday, February 23, 2016
According to radio station KPCC, plaintiffs have filed a lawsuit against the Pasadena Unified School District, alleging that the district maintains a school called Focal Point Academy at which it concentrates students with serious mental health needs. The complaint claims that the students are separated from other children, receive inferior educational programs, and are subjected to improper discipline including isolation and restraint, arrests, and needless suspension. Disability Rights California, Mental Health Advocacy Services of Los Angeles, the Bazelon Center, and Morrison and Foerster are representing the plaintiffs.
The suit is a reminder that after forty years of special education law guaranteeing that children with disabilities receive aids and services to enable them to be educated to the maximum extent appropriate with children without disabilities, fully separate, segregated facilities still exist. Concentrating children who may have serious behavior problems into one institution looks more like a way to push the children out of sight than to give them tools to make educational and social progress. Giving poorer services to children with greater needs would be a further dysfunctional policy.
Using seclusion and restraint often reinforces negative behavior and has resulted in serious injury and death. Congress has not yet acted on the Keeping All Students Safe bill, H.R. 927, and the Ending Corporal Punishment in Schools bill, J.R. 2268, which would help end inappropriate physical interventions in school settings. Ample material on the misuse of isolation and restraint is collected by the U.S. Department of Education (see here) and discussed in sources such as a recent article in the Atlantic.
For additional information on the Pasadena suit, go to Disability Rights California.
Thursday, February 11, 2016
Report: Thousands of Wisconsin Students Continue to Be Placed In Seclusion Or Restraints Despite 2012 Ban on Such Practices
Disability Rights Wisconsin (DRW), along with two other community organizations, reports that seclusion and restraints continue to be used in Wisconsin’s public schools, despite the passage of a law in 2012 intended to reduce such measures. The report, called Seclusion & Restraint in Wisconsin Public School Districts 2013-2014: Miles to Go, "details how families continue to report instances in which children, even those as young as five, are being secluded and restrained repeatedly, sometimes daily," according to DRW. Eighty percent of the 3,585 Wisconsin students who were restrained or secluded were students with disabilities. Overall, Wisconsin's school districts reported 20,131 incidents of seclusion and restraint in the 2013/14 school year.
Tuesday, February 2, 2016
The Second Circuit issued a major decision on January 20 in T.K. v. New York City Department of Education, No. 14–3078–CV, 2016 WL 229842, --- F.3d --- (2d Cir. Jan. 20, 2016). The court ruled that the city school system denied a child free, appropriate public education (FAPE) by refusing to discuss severe bullying that she experienced at school, when her parents raised the issue in meetings in connection with her individualized education program (IEP). The child made academic progress and performed at close to grade level in a public school class that had both a special education and a general education teacher. But staff who assisted in the instruction testified that the child’s classmates constantly bullied her. She was tripped, had her toes stomped on, was pinched hard enough to cause bruising, and was routinely called ugly, stupid, and fat. She came home crying almost on a daily basis. The teachers did not intervene, nor did they punish the harassers. Writing for a unanimous court, Judge Lohier reasoned that the refusal to discuss the bullying and address it in the education program was a procedural violation of the Individuals with Disabilities Education Act (IDEA) that denied the child the right to appropriate education. Relying on a concession by the defendant, the court assumed without deciding that bullying is a proper consideration when it substantially restricts child’s learning opportunities. The court stated, “Here, Plaintiffs were reasonably concerned that bullying severely restricted L.K.'s educational opportunities, and that concern powerfully informed their decisions about her education. By refusing to discuss that bullying during the development of the IEP, the Department significantly impeded Plaintiffs' ability to assess the adequacy of the IEP and denied L.K. a FAPE.” (at *5). The court affirmed an award of tuition reimbursement for the private placement the parents made for the child when they did not succeed in having the public school address their concerns.
Tuesday, January 19, 2016
Allegations of Abuse of Students with Disabilities Not Enough to "Shock Conscience" of the Sixth Circuit, by Mark Weber
The Sixth Circuit recently decided Domingo v. Kowalski, No. 14–3957, 2016 WL 76213 (6th Cir. Jan. 7, 2016). The court affirmed a grant of summary judgment against parents of three special education students on their claims against a special education teacher, her employer, and several officials with supervisory responsibility over her. The parents of one child alleged that nearly every day the teacher removed the six-year-old’s pants, placed her on a training toilet and left her there for as long as a quarter of the school day. The toilet was separated from the classroom only by a partition that students could walk around to see the child on the toilet. The teacher was alleged to have bound one misbehaving nine-year-old student to a gurney in the hallway outside the classroom and gagged him with a bandana, and on several occasions to have restrained him in a chair. She was also alleged to have strapped an eleven-year-old girl to a toilet, alone in the bathroom, for 20 to 30 minutes at a time. The teacher was also said to have a practice of grabbing disruptive students by the face, squeezing their cheeks and turning their heads toward her, and to have a practice of making students who were inattentive fold their arms on their desks, at which point the teacher would force their heads onto their arms. The parents supported their allegations with the statements of a teacher’s aide, though the defendants contested the accuracy of the aide’s account at various points and noted that the aide did not report several of the events until she received a layoff notice near the end of the school year.
The parents said the conduct of the teacher and the failure of the other defendants to act violated the students’ substantive due process rights, and they relied on the cause of action under 42 U.S.C. § 1983. In affirming summary judgment against the parents, the court applied the “shocks the conscience” standard. The court adapted a framework from Gottlieb v. Laurel Highlands School District, 272 F.3d 168 (3d Cir. 2001), and asked whether there was a pedagogical justification for the teacher’s conduct, whether the force was excessive to meet a legitimate objective, whether the conduct was done maliciously for the purpose of causing harm, and whether there was serious injury. It made analogies to various cases on each of the factors and ruled that the factors weighed in the teacher’s favor. The court said that its rejection of the due process claim against the teacher eliminated any basis for holding the supervisors or the school district liable.
The case is one of a large number determining that no reasonable jury could find that school personnel conduct shocks the conscience so as to violate due process. There are, however, cases that come to the opposite result with regard to conduct that looks similar or even less outrageous, for example, Alexander v. Lawrence County Board of Developmental Disabilities, 2012 WL 831769 (E.D. Tex. 2011) (placing student in basket holds and prone restraints), and Covey v. Lexington Public Schools, 2010 WL 5092781 (W.D. Okla. 2010) (demeaning students with disabilities in front of others and making them run laps and do calisthenics). Moreover, some recent physical and psychological abuse cases brought under a Fourth Amendment theory have been successful on summary judgment or dismissal motions, including Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175 (9th Cir. 2007) (grabbing and slapping of student and forcing him into a chair), and Doe v. Hawaii Department of Education, 334 F.3d 906 (9th Cir. 2003) (taping of second-grader’s head to a tree). It remains to be seen just what conduct the panel of the Sixth Circuit thinks could shock a jury’s conscience. Notably, one panel member, Judge Boggs, argued in a partial dissent that the claim over the binding and gagging of the nine-year-old ought to have gone to the jury.
Wednesday, January 6, 2016
U.S. Attorney's Office Says New York City Rampant with Schools Inaccessible for Students with Disabilities
Just before the holiday break, the U.S. Attorney for the Southern District of New York sent a letter to New York City Schools demanding that they come into compliance with federal disability law. The U.S. Attorney's Office had found widespread and rampant violations of the Americans with Disabilities Act that made most of the city's schools inaccessible to students with disabilities. The letter included systemic data and individual stories, including "one family who went to extreme measures to keep their child enrolled in their zoned local school, rather than subject the child to a lengthy commute to the closest 'accessible' school. A parent of this elementary school child was forced to travel to the school multiple times a day, every school day, in order to carry her child up and down stairs to her classroom, to the cafeteria, and to other areas of the school in which classes and programs were held." The U.S. Attorney gave the district 30 days to respond with an outline and timetable for remedying the violations.
The letter identified the following more specific problems:
- First, looking at the public elementary school system in its entirety, we have concluded that New York City elementary schools are not currently "readily accessible to and usable by individuals with disabilities." 28 C.F.R. §§ 35.149,35.150 & 35.151. Using the City's own figures and definition of"fully accessible" schools, only approximately 17% of public elementary schools are "fully accessible." Districts 3, 5, 8, 12, 16 and 21 do not have any "fully accessible" elementary schools. This abysmally low percentage of schools demonstrates that the City has failed to provide program accessibility to individuals with disabilities comparable to the program accessibility available to individuals without disabilities.
- As a result of the lack of accessible schools, students with mobility impairments are often excluded from their local zoned school, the school that their peers in their community all attend. These students may need to spend significant amounts of time traveling to a school that can accommodate their physical disabilities. Requiring elementary students with disabilities to travel extensively at the beginning and end of each school day-a condition which is not imposed upon their peers-can impose particularly onerous physical demands on these children.
- In every school visited by our architect, we identified alterations made after January 1992 that were not compliant with the ADA. Such alterations included, but were not limited to, fire alarm systems, door hardware, toilet partitions, cafeteria seating, main office counters, library furniture, and playground areas. See Exhibit A. The City's failure to make these altered components accessible constitutes an explicit violation of the implementing regulations of the ADA. "Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or pat1 of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992." 28 C.F.R. § 35.151(b)(l).
- Our investigation also revealed that the City has failed to undertake ongoing physical and programmatic changes to ensure that its elementary school program, when viewed in its entirety, is accessible and usable by people with disabilities. 28 C.F.R. § 35.150. In addition, the City has failed to consider requests by students with disabilities for reasonable modifications that would allow those students to attend their zoned school, 28 C.F.R. § 35.130(b)(7), including by failing to assess whether requested modifications would be reasonable in a particular case. Subsequent to the start of our investigation, the City made information regarding accessible schools easier to find on its website, implemented a complaint procedure for families encountering issues with physical accessibility, and assigned an individual to consider individual requests to make alterations at a particular school that could allow a disabled student greater access to school facilities. We appreciate the City's efforts to increase the information available to parents and to be more responsive to the needs of individuals with disabilities. However, these efforts fall far short.
Wednesday, December 16, 2015
Newark Settles Civil Rights Complaint Alleging School Closures Were Discriminatory, Reveals Lessons for Other Cases
The Advancement Project and Newark's Parents Unified for Local School Education filed a complaint with the the U.S. Department of Education challenging Newark's school closures. They alleged that the closures disproportionately affected minorities and students with disabilities and violated Title VI of the Civil Rights Act and Title II of the Americans with Disabilities Act. Newark had closed several traditional public schools during the recession, consolidating them with other traditional public schools and/or replacing them with charters. OCR found that the closures did, in fact, disproportionately affect minorities and students with disabilities and did not produce the benefits that the district claimed was the basis for the closures in the first instance. Last week, Newark agreed to take remedial action. The problem, however, is that school closures cannot reasonably be reversed and Newark still got what it wanted. The remedial steps Newark now promises are relatively mild:
- Identify whether any transferring students have suffered any academic deficiencies and take steps to remedy them.
- Determine whether transportation issues affected the ability of transferring students to participate in extracurricular activities.
- Investigate where disabled transferring students were provided with appropriate special education and related aids and services in the receiving school; and if not, whether compensatory or remedial services are necessary.
Nonetheless, advocates saw this as a victory, as they should. A similar and more aggressive and disproportionate set of closures occurred in D.C. in recent years, but the challenge to them failed. As my earlier blog post noted:
In DCPS schools as a whole, 68.4% of students are black; 13.8% are Hispanic; 3.7% are Asian, other, or unknown; and 9.2% are white. In the schools slated for closure, by contrast, 93.7% of students are black; 5.9% are Hispanic; 0.4% are Asian, other, or unknown; and less than 0.1% (2 out of 3053) are white. The figures skew similarly, if less starkly, for disabled students: 27.7% of students in the closing schools are in special education, versus 14.2% of students in DCPS overall."
There, advocates filed suit in federal district court seeking an injunction, but the court denied their injunction and dismissed the case. Thus, by rough comparison, the Newark decision is enormous.
One analytical difference also bears emphasis. OCR evaluated the efficacy of the closures after the fact, which allowed it to find that the justifications for the closures had proven flawed. In D.C., plaintiffs sought to block the closures earlier and argued, based on social science and expert opinion, that the closures would harm students and not produce the benefits the district claimed to seek. The district court, however, ignored these prospective claims and assumed the District's goals to be valid. I have not seen any subsequent research confirming or rejecting plaintiffs factual allegations, but to the extent their factual allegations were not novel, it raises the question of whether courts should take social science and expert opinions more seriously in similar cases. Newark's experience suggests they should.
Friday, November 6, 2015
The New York Times reported yesterday that five students have sued Brooklyn's Achievement First Charter School, alleging that the charter school has failed to provide federally-mandated special education services to students with disabilities. One plaintiff, a mother of a special education student at the school, stated that her child had not received paraprofessional services to which he was entitled for a year. Achievement First is part of a network with schools in New York, Connecticut and Rhode Island. The suit also accuses Achievement First of improperly disciplining special education students, such as on one occasion, sending a third grader to a second grade classroom as punishment for misbehavior. Attorneys for the plaintiffs, the New York Legal Assistance Group, allege that the problems at Achievement First arise in part from the charter network's culture of strict discipline for even minor infractions, which can result in punishing special education students for behaviors related to their disabilities. The NY Times story is here.
Friday, October 30, 2015
Fourth Circuit: Congress' IDEA Amendments Did Not Abrogate Supreme Court's FAPE Definition in Rowley
The Fourth Circuit recently held in O.S. v. Fairfax Cnty. Sch. Bd., No. 14-1994, 2015 WL 6122986 (4th Cir. Oct. 19, 2015), that the standard for a free appropriate public education under the Individuals with Disabilities Education Act were not changed by Congress’ 2004 amendments to the IDEA. Thus, school districts are required to meet no higher standard for a FAPE than that set by the Supreme Court in Board of Education v. Rowley (1982). In the case, the parents of O.S., a second-grader, requested a one-on-one aide, extended school year services, and that Fairfax County, VA, school board assign a full-time nurse to O.S.’s school to address O.S.’s disabilities. The school’s representatives on O.S.’s individualized education program team did not adopt those requests, and O.S.’s parents did not agree to the new IEP. O.S. sued in federal district court, which found that the school board had provided a FAPE. On appeal of that decision, the Fourth Circuit rejected O.S.’s arguments that the preamble to Congress’ 2004 IDEA amendment stating its purpose to remedy “low expectations” of children with disabilities,” meant that the IDEA now requires “meaningful” educational benefit as distinct from “some” educational benefit. Following the Tenth Circuit on this issue (and rejecting a contrary Ninth Circuit case), the Fourth Circuit held that the standard for a FAPE remains the same: so long as a child receives some educational benefit, meaning a benefit that is more than minimal or trivial from special instruction and services, a school district has done enough.
Tuesday, October 27, 2015
This from the Education Law Center:
The Court-appointed Monitor overseeing a class action settlement to improve special education in the State-operated Newark Public Schools (NPS) has raised serious questions about the validity of a key record in the NPS files of children seeking special education services. The questionable records are uniformly written, undated letters containing the date for determining whether NPS has complied with a Court-imposed, 90-day deadline for providing services to children with disabilities. The letters were found only in those files taken from district schools to the NPS central office for purposes of the Monitor’s review.
In a semi-annual verification report issued this month, the Monitor, Priscilla Petrosky, questioned the “credibility” of the boilerplate letters because the dates for implementing special education services contradicted other information in the files. She also found no evidence that NPS actually provided the letter to parents, as required by law. The Monitor noted that if she excluded the questionable cases, “100% of [NPS] case files would have lacked agreement with the 90 day Annual Compliance Report.”
“The Monitor’s findings that the records may not be authentic suggest the undated letters placed in students’ files may have been an attempt by an employee or employees of the State-operated NPS to improperly raise the district’s compliance rate,” said ELC Senior Attorney Elizabeth Athos. “As NPS’s self-reported progress in meeting court-imposed deadlines has inched forward over the last three years, the all-important rate at which that progress can be verified by the Monitor has sharply dropped.”
Taking the undated letters “at face value,” the Monitor found that Newark’s compliance rate dipped to a dismal 17% of all randomly reviewed cases, even including the cases with questionable records.
Monday, September 28, 2015
Court Limits Special Education Complaint Filing to Two Years from Date Parents Knew or Should Have Known of a Violation, But Leaves Measure of Compensatory Education Open by Mark Weber
Last week, the Third Circuit handed down a major special education law decision, G.L. v. Ligonier Valley School District Authority, No. 14-1387, 2015 WL 5559976 (3d Cir. Sept. 22, 2015). In brief, it holds that two oddly worded provisions in the Individuals with Disabilities Education Act establish a two year limitations period from the date the parent knew or should have known of an IDEA violation for the filing of a due process complaint, but the provisions do not limit the period that may be considered in fashioning a compensatory remedy for claims that are timely filed.
For those teaching education related seminars this fall, this may be a great opportunity for your current or past students to get their seminar papers published and/or win a cash prize. The announcement is as follows:
Thomas Jefferson School of law is pleased to announce the second 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.
Thursday, September 24, 2015
Class Action Suit Pending Against Philadelphia District for Failing to Provide Language Translation During IEP Process
Philadelphia parents filed a class action lawsuit against the School District of Philadelphia last month, alleging that the district violated special education law requirements by failing to translate documents and to provide sufficient interpretation services during Individualized Education Program meetings. The class alleges that the Philadelphia school district denied parents and students with limited English proficiency (LEP) an opportunity to participate IEPs on the same basis as their English-speaking counterparts. In 2013, the district reportedly received requests from 19,670 families of students who had requested documents in a language other than English; the district interpreted about 487 special education documents of any type that year. The plaintiffs received a due process hearing in May 2015 at which the Hearing Officer found violations of the parents' meaningful participation in the IEP process due to translation issues, required the district to translate IEPs and other documents for the plaintiffs in the future, and awarded compensatory education. However, the Hearing Officer declined to order that the district change its translation policies system-wide, concluding that the requested relief was outside of his powers. The plaintiffs are represented by the Education Law Center. T.R., by and through Barbara Galarza, v. The School District of Philadelphia, 2015 WL 5011332 (E.D.Pa. filed Aug. 21, 2015).
Tuesday, September 1, 2015
Does the IDEA Obligation to Prepare Students for "Independent Living" Include Preparation to Live in a Religious Community? by Maria Blaeuer
A special education case of note, M.L. ex rel. Leiman V. Starr, PWG-14-1679, was filed last month in Maryland. It involves tuition reimbursement under the Individuals with Disabilities in Education Act. The parents' filed for a due process hearing after they unilaterally placed their child, who has Down Syndrome, in an Orthodox Jewish special education school. They lost the due process hearing and then filed a claim in federal district court, where they again lost, this time after cross-motions for summary judgment.
The parents' essential argument is that because of their child's disability, he requires explicit instruction in the traditions and practices of Orthodox Judaism at school if he is to be able to live independently in his Orthodox community after his time in public school ends. The parents argue that this instruction is not available in the public school and, therefore, the school district must pay for his education at an Orthodox special education school. A straight forward and typical argument in these cases, except for the inclusion of the words "Orthodox Judaism".
Wednesday, August 5, 2015
The handcuffing and isolated restraint of a third grade special needs students in Covington, Kentucky, was caught on video. The video is particularly disturbing, as the child cries and pleads. I did not watch the whole thing myself. The ACLU filed a federal lawsuit on that and another student's behalf on Monday, alleging the handcuffing was an unreasonable seizure and included excessive force. The complaint also alleges that the arrest amounted to discrimination and a failure to accommodate under the American's with Disabilities Act.
More on the story here.
Tuesday, August 4, 2015
Thursday, July 30, 2015
Justice Dept. Scolds Georgia For Segregating Students With Disabilities, Some Placed in Dilapidated Former Jim Crow School Buildings
The Justice Department has warned Georgia in a July 15th letter that the state's practices of segregating students with behavior-related disabilities violates the Americans with Disabilities Act. The DOJ's letter comes after an investigation of the Georgia Network for Educational and Therapeutic Support (the GNETS Program), a state network of 24 centers that serves about 5,000 students with behavior-related disabilities. The DOJ noted that some of the schools that the GNET program uses are repurposed "poor-quality buildings" that formerly served as segregated schools during the Jim Crow era. The DOJ also criticized the GNETS program's severe restrictions on "interactions between students with disabilities and their peers in general education, depriving them of the opportunity to benefit from the stimulation and range of interactions that occur there, including opportunities to learn, observe, and be influenced by their non-disabled peers." Even when GNETS classrooms are located in general education school buildings, the DOJ investigation found that GNET students' classrooms "are often located in separate wings or isolated parts of school buildings, some of which are locked and/or fenced off from spaces used for general education programs." The level of education also needed reform, the DOJ's letter noted, as some of the instruction was online-only and students often had no access to electives or extracurricular activities. The DOJ's letter to the GNET program can be found here. Read more about the investigation at the Atlanta Journal Constitution here.
Tuesday, July 28, 2015
D.C. Circuit Holds That District Must Pay For Residential School Placement After Failing To Provide An Alternative
Leggett v. Dist. of Columbia, No. 14-7021 (D.C. Cir. July 10, 2015) - Short take: when a school district drags its feet in providing a free appropriate education required under the Individuals with Disabilities Education Act, the district may be on the hook for a more costly one. In Leggett, the D.C. Circuit held that the D.C. Public Schools (DCPS) was required to reimburse the costs of a private boarding school placement after DCPS failed to provide an individualized education program by the start of the school year. The IDEA requires school districts to reimburse parents for their private-school expenses if "(1) school officials failed to offer the child a free appropriate public education; (2) the private-school placement chosen by the parents was otherwise “proper under the Act”; and (3) the equities weigh in favor of reimbursement—that is, the parents did not otherwise act “unreasonabl[y].”" In Leggett, the parent requested an IEP under the Individuals with Disabilities Education Act after her child did not complete the eleventh grade. DCPS failed to develop an IEP in time for the school year. After being told that her child would benefit from residential placement, Leggett chose a private boarding school where her child thrived. She sought reimbursement from DCPS for the cost of the residential program. DCPS countered that the residential school placement—with activities such as an equestrian program—was unnecessary because the student could have succeeded in a non-residential program. Both the due process hearing officer and the D.C. District Court found that DCPS violated the IDEA by failing to have an IEP in place by the beginning of the school year, but denied reimbursement because, in their view, the student did not require a residential program. The D.C. Circuit reversed the denial of reimbursement, holding that under Bd. of Ed. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982), the student’s placement was proper because DCPS had offered no IEP, “identified no suitable alternative, and failed even to challenge Leggett’s claim that [the residential school] was the only available placement.” The circuit court held that on remand, DCPS could challenge the costs of extracurricular activities that were unnecessary for the student’s education. Read the opinion here.
Wednesday, July 15, 2015
The U.S. District Court for the District of Columbia again found last week that the D.C. school district failed to comply with their “Child Find” duty to locate disabled students in the birth-to-five population, as required by the Individuals with Disabilities Education Act. The court found in 2010 that the D.C. district neglected its duties for years to identify, evaluate, determine eligibility, and ensure a smooth transition for services for preschool disabled children covered by the IDEA and the Rehabilitation Act. Following Wal-Mart v. Dukes in 2011, the D.C. Circuit Court vacated the original plaintiff class certification of disabled children and remanded for the district court to determine whether the plaintiffs' claims had sufficient commonality to represent a class. On remand, the district court certified four subclasses. In last week's decision, the district court found no genuine dispute that the "District's attempts to identify, evaluate, determine eligibility of, and transition disabled children were inadequate through and including 2007, [which is] sufficient to establish the District's liability under the IDEA on each subclass's claim." The District had been cited by the Office for Special Education Programs (OSEP) in 2001 for failing to conduct timely evaluations under its program compliance agreement. The case is DL v. D.C., No. CV 05-1437, 2015 WL 3630688 (D.D.C. June 10, 2015).
Tuesday, June 30, 2015
On June 19, Texas enacted a law, S.B. No. 507, calling for video surveillance of special education classrooms. The law applies to all public schools, including open-enrollment charter schools, that receive a request from a parent, trustee, or staff member, and within those schools to all self-contained special education classrooms and classrooms in which a majority of the students in regular attendance are provided special education and assigned to a self-contained class or other special education setting for at least half of the instructional day. The schools have to retain video recordings for six months. The video is not to be regularly or continually monitored, and the video is not to be used for teacher evaluation or any uses other than promotion of student safety. But the otherwise confidential recordings must be released for viewing on request by school district employees or parents of students involved in an incident for which a complaint has been reported to the district. It must also be released to Department of Family and Protective Services personnel conducting investigations, police, human resources staff members, and several other designated categories of individuals.
Supporters of the law cited physical injuries and abuse of students with disabilities, particularly students who are nonverbal or uniquely vulnerable in other ways, and said video monitoring will deter the incidents. Opponents were preoccupied with costs – the new law does not create a state funding stream for the equipment, its installation, and operation. Given the pervasiveness of video monitoring in modern society, privacy concerns do not appear to have been paramount, though the singling out of special education is troubling. A better solution surely would be video monitoring in all classrooms. After all, video cameras are now found in vast numbers of stores, public transit facilities, and other public places, and students without disabilities are vulnerable to abuse and mistreatment.
Video monitoring has appeared in the special education caselaw in recent years. In Phipps v. Clark Cnty. Sch. Dist., No. 2:13:00002-GMN-PAL (D. Nev. Apr. 23, 2014), the court refused to dismiss constitutional claims brought by a nonverbal child with autism who alleged that he was abused in a classroom in which the school district had installed surveillance cameras and the video showed abuse of the child by teachers, but no school personnel witnessing events live or on video intervened. In B.A. v. Missouri, No. 4:09CV1269, 2010 WL 1254655 (E.D. Mo. Mar. 24, 2010), the court denied a motion to dismiss an action brought under the Individuals with Disabilities Education Act in which a student alleged serious physical and verbal abuse and asked as a remedy that the school install audiovisual monitoring of all classrooms and hallways.
Monday, June 29, 2015
On June 24, the New York Times published an op-ed piece by Paul Morgan and George Farkas with the headline Is Special Education Racist? in which the authors argue that although children who are African American are 1.4 times more likely to be placed in special education than other races and ethnicities combined, the high number is not caused by racial bias. Instead, they contend, black children are underrepresented in special education classes when compared to white children who have comparable levels of academic achievement, behavior, and economic resources. They believe a federal standard for overrepresentation would be a bad move, one that would cause children who need special education to miss out on valuable services.
Overrepresentation has been a major topic among writers on special education law in recent years. I tried to take on the topic in a paper called The IDEA Eligibility Mess, which appeared in the Buffalo Law Review in 2009. My view has something in common with that of Morgan and Farkas. I am very concerned that if artificial limits on eligibility under the Individuals with Disabilities Education Act are imposed on the basis of racial disparities, that step will harm children who need both services and the procedural protections the law provides against suspension and other school discipline when the students’ misconduct results from their disabilities. But the critics who emphasize the statistical disparity have an important point: special education in some instances does not represent extra benefits, but rather means being shunted into isolated programs and placements in which services are of poor quality and the expectations for the students are low. African American children are particularly likely to be in special education settings that are self-contained or have low levels of integration into the mainstream. Schools need to act on the premise that special education is a bundle of extra services to help the child succeed, rather than a place to put the child. If they do not, special education will not provide the benefits that it ought to, and the racial overrepresentation will remain a problem to be addressed.