Monday, September 30, 2013
Monday, September 23, 2013
Michael Argenyi, a deaf medical student, won a federal trial this month when the jury found that Creighton University failed to provide special equipment and interpreters for his education. Although the jury found that Creighton discriminated against him and violated federal disability laws by failing to make accommodations for his hearing impairment, it awarded no damages. Argenyi sued Creighton under § 504 of the Rehabilitation Act and under the Americans with Disabilities Act (ADA) after the medical school failed to provide equipment and accommodations such as “cued speech” interpreters to help him lip-read when speakers use sounds that look the same. While Argenyi attended Seattle University as an undergraduate student, the university provided Communication Access Real-time Transcription (CART), a system which transcribes spoken words into text on a computer screen and and a cued speech interpreter. Argenyi graduated from Seattle University with a 3.87 GPA. Upon entering Creighton’s School of Medicine in August 2009, he asked for similar accommodations. Creighton provided some assistance, but not the specific accommodations that Argenyi requested.
Friday, September 20, 2013
Section 504 of the Rehabilitation Act, a statute that requires accomodations and education plans for students with disabilities across the nation, turns 40 years old next week. The Department of Education is hosting an event to honor the day. The details are as follows:
Celebrating Forty Years of Learning Under Section 504
Please join the U.S. Department of Education for Section 504’s 40th anniversary event, “Forty Years of Learning Under Section 504,” on September 26, 2013. Experts, youth, and leaders in the disability communities of the past, present, and future will join senior Administration officials, including Secretary of Education Arne Duncan, to discuss the importance of Section 504 and help honor its 40th anniversary. The event will emphasize the importance of accommodations, specifically in education, and highlight today’s leaders in the youth disability communities and individuals who worked to help pass the law as youth in the 1970s.
The Illinois State Board of Education (ISBE) removed a proposal from its agenda yesterday that would have eliminated all state rules on special education class size. The ISBE move is not unusual, as similar measures have been proposed in D.C., New York, North Carolina, Philadelphia, and Rhode Island. Since the beginning of the year, the ISBE proposed repealing Sections 226.730 and 226.731 of the Illinois Administrative Code that limit class sizes for self-contained special education classrooms and place a 30 percent limit on students with IEPs in a general education classroom (called the 70/30 rule). ISBE administrators say that Illinois’ requirements exceed the requirements in the Individuals with Disabilities Act (IDEA) and “its implementing regulations and have resulted in several unintended consequences.” One of those consequences, State Superintendent of Education, Christopher Koch, said on Monday, was that Illinois’ current rules “interfere with decisions for students that would best be made at the local level.” Koch noted that “Illinois is no longer under the Corey H. settlement agreement and our data shows that these artificial limits are actually keeping students with disabilities out of general education classrooms.” Despite the ISBE’s arguments that eliminating class size requirements “will best ensure that each student with disabilities … has access to the broad array of coursework available to his or her nondisabled peers, particularly in the middle grades and high school,” parents and advocacy groups fiercely opposed the proposal. Bev Johns, Chair of the Illinois Special Education Coalition, said in a posted message that “[e]veryone else testifying, special ed groups, disability organizations, parents, the IEA, IFT and CTU, other teachers, etc.” opposed the ISBE proposal. The Illinois Special Education Coalition is a coalition of parent and educator organizations interested in the education of students with disabilities.
Thursday, September 19, 2013
For those who dug a little deeper on the special education case I posted yesterday, Horton v. Boone Cnty. Sch. Dist., 2013 WL 4875025 (E.D. Kentucky 2013), you may have noticed an oddity. The plaintiff's claim was about the failure to properly implement the student's Rehabilitation Act Section 504 plan, but the court dismissed the claim for failure to exhaust IDEA administrative remedies. This struck me as odd and irrelevant, but I did not address it in my post because I was not sure of the right answer and I did notice that the plaintiff had cited to some Kentucky regulations, which looked to be IDEA implementing regulations. In other words, maybe there was an IDEA claim there and I just did not see it.
Mark Weber was nice enough to clarify the issue for me and point out what is another significant issue in cases of this sort. He offered the following:
Wednesday, September 18, 2013
Is Pursuing Administrative Relief Futile After Graduation for Special Education Students? Court Says No
Dakota Horton enrolled in a new school in the fall of 2008. In his prior school, he had received services pursuant to a Section 504 plan, but when he enrolled in Boone County Schools, his 504 plan was never reviewed, notwithstanding his parents requests. In his senior year, he encountered problems in math and requested an accommodation. He did not receive it, did not pass the course, and was unable to graduate with his class in May of 2012. He did, however, graduate that summer. Apparently, this delayed graduation and the course structure affected his subsequent college opportunities and requirements.
He filed a claim against the district under Section 504 of the Rehabilitation Act of 1973 and IDEA. The district court dismissed his case for failure to exhaust his administrative remedies. Horton asserted that his administrative remedies were futile because he had already graduated from high school, but the district court in Horton v. Boone Cnty. Sch. Dist., 2013 WL 4875025 (E.D. Kentucky 2013), disagreed, finding that he still could have sought compensatory services from the district after the fact.
Tuesday, September 17, 2013
Rob Garda offers the following:
The Third Circuit recently held that a student who is not an eligible “child with a disability” cannot seek redress under the IDEA for misplacement in special education. S.H. v. Lower Merion School District, 2013 WL 4752015 (May 23 2013). LaJuana Davis summarized the facts and the holding of the S.H. case on this blog here. The key holding - that the plain language of the IDEA permits only a “child with a disability” to bring claims under the statute – does not hold up under scrutiny. The Court relied on the general introductory language of Section 1415(a), requiring that states establish procedures to protect “children with disabilities,” to conclude all the remaining specific procedural safeguards in Section 1415 apply only to eligible children. But in identifying who may bring a due process claim, the IDEA allows “any party to present a complaint with respect to any matter relating to the identification, evaluation or educational placement of the child . . .” 20 U.S.C. 1415(b)(6) (emphasis mine). The Third Circuit’s presumption that the introductory language of subsection (a) limits the specific procedural rights listed under subsection (b) is wrong because many of the subsection (b) rights distinguish between “child with disabilities” and simply “child.” For example, only a “child with disability” may inspect records, 1415(b)(1), but any “child” is entitled to notice when the school proposes to initiate an identification or evaluation. 1415(b)(3). Many procedural rights are granted to children that are not eligible and the right to file for due process is one of them. Further, the mediation and due process subsections make no mention of being procedures available to only eligible children. 1415(e) and (f). While the Third Circuit purports to apply the plain language of the IDEA, it apparently ignores that “any party” may contest “any matter” relating to the evaluation and placement of a child, which is exactly what S.H. did in the case.
The Third Circuit’s conclusion that IDEA eligibility is a jurisdictional prerequisite to bringing a due process claim also ignores a long line of cases permitting students to contest eligibility determinations. Courts and hearing officers are often asked to determine whether evaluation procedures were followed in eligibility determinations or whether the substantive eligibility determinations were correct. For articles discussing the eligibility cases see here and here. Many of these courts and hearing officers conclude that the child is not eligible under the IDEA, but none of them question the child’s right to contest eligibility in a due process hearing.
Maybe a jurisdictional line can be drawn between parents contesting denial of eligibility, as occurs in most cases, and misplacement into special education, as happened in this case. But the Third Circuit did not draw such a line, nor should it. As counsel for S.H. pointed out, the IDEA is equally concerned with non-placement and misplacement into special education, particularly for minority students.
Monday, September 16, 2013
The district court in E.H. v. Mississippi Dept. of Educ., 2013 WL 4787354 (S.D. Mississippi 2013), issued its first opinion last week in a class action claim against the Mississippi Department of Education for its failure to force Jackson Public School District to comply with the IDEA's mandate of a Free Appropriate Public Education (FAPE). In September 2010, the first plaintiff filed an administrative complaint with the Mississippi Department of Education. The Department investigated the complaint and found that Jackson was, in fact, violating IDEA and ordered the district implementa a remedy. In follow up monitoring of the district, the Department found that Jackson had not remedied its violations of IDEA. The Department set November 1, 2012 as a deadline for compliance and indicated that failure to comply would result in the state stripping the district of its accreditation. But when November 1 arrived, the district was still non-compliant. Rather than take action against the district, the state extended the deadline (and did so again later). The deadline as it currently stands is February 28, 2014.
Thursday, September 12, 2013
Across the country, advocates for children with disabilities are grappling with the impact of sequestration, the automatic budget cuts that kicked in when Congress failed to reach an agreement to reduce the federal budget. Although the cuts took effect March 1, the impact did not reach schools until the start of the current school year because of the way many education programs are funded.
The National Education Association estimates that if states and local school systems did not replace any of the funds lost through sequestration, nearly 300,000 students receiving special education services would be affected. The union estimated up to 7,800 jobs could be lost as a result of the federal budget cuts. It is unknown how many states or schools districts will replace some or all of that money from other sources, such as new tax revenues or cuts to other programs. But they may hesitate to replace federal funding even if they have the resources. That’s because by law, states and school districts that raise their funding for special education and then later reduce it, after adjusting for enrollment and other factors, can see their funding from the federal government cut. That requirement, known as maintenance of effort, means that even if the federal government eventually replaces the money cut through the sequester, school districts will be on the hook to spend more than they did before the automatic federal budget cuts.
Read more here.
Wednesday, September 11, 2013
The over-identification of low-income and students of color in special education classes has been a problem for decades. But do children who are misidentified and placed in special education have a cause of action under the Individuals with Disabilities Education Act? No, according to the Third Circuit in a decision released last week in S.H. v. Lower Merion School District. S.H. is an African-American student who received Title I remedial instruction services from first grade to her sophomore year in high school. After testing in high school, several experts and the school district concluded that S.H. had been misdiagnosed as disabled. The experts found that while S.H. had underperformed on proficiency tests in her early education, earlier assessments that S.H. was learning disabled may have failed to consider the impact of a family tragedy that deeply affected S.H. in third-grade, when a murder-suicide took the lives of five of her relatives, and of the accidental death of one of S.H.’s best friends four years later. S.H. told her teachers that she did not think that she belonged in special education and protested her placement by refusing to attend speech therapy. In the 5th grade, her reading scores showed proficiency, and she made the honor roll in 7th and 8th grades. While S.H. was in special education, there was not time in her schedule to take some core courses such as eighth-grade science and Spanish. When S.H. was reevaluated in high school, evaluators concluded that she was not, and likely never was disabled. S.H. was removed from special education in her last two years of high school. She sued the school district for compensatory education and damages under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA). The district court dismissed the IDEA claim outright for failing to state a claim and granted the school district’s summary judgment motion on the § 504 and ADA claims.
The Third Circuit found that the protections and remedies of the IDEA extend do not extend beyond children with disabilities. The Court interpreted the plain language of the IDEA to apply only to “children with disabilities and their parents” that does not include “children who are mistakenly identified as disabled, but who are, in fact, not disabled.” But S.H.’s § 504 and ADA claims were not barred by the statutes’ plain language because those laws protect disabled persons and persons who who are “regarded as” having a disability. The Third Circuit then turned to another issue of first impression: which standard of intentional discrimination to apply to S.H.’s claims. The court adopted the majority of circuits’ view that the deliberate indifference standard “is better suited to the remedial goals of [Section 504] and the ADA than is the discriminatory animus alternative.” However, the circuit court upheld the district court’s grant of summary judgment, finding that S.H. could not show that the school district knew of or was deliberately indifferent to her misdiagnosis before S.H.'s evaluation in 2010. Read the opinion in S.H. v. Lower Merion School District here.
Thursday, September 5, 2013
District Court Allows Unique Special Education and Negligence Claims to Proceed in Student Suicide Case
Like so many cases I have posted on recently, Moore v. Hamilton Southeastern Sch. Dist., 2013 WL 4607228 (S.D. Ind. 2013), involves an incredibly tragic set of facts. During his sixth grade year, the plaintiff, Jamarcus Bell, began experiencing disciplinary problems at school, which continued for the next two years. “[H]e was cited for 36 separate disciplinary infractions in less than two years. His misbehavior usually consisted of inappropriate physical contact with other students, such as slapping, spitting, punching, kicking, or placing gum in another student's hair.” On several occasions, however, it appears “Jamarcus was punished for acts of retaliation he perpetrated against other students who had provoked him,” although the school gave his parents the impression that he was the instigator.
In his seventh grade year, Jamarcus wrote in an essay “that he had ‘cut himself,’ run away from home, and attempted to overdose on pills.” That same year, he made an apparent suicide attempt in a closet at school. After the suicide attempt, Jamarcus was treated at a hospital and by a psychiatrist, who diagnosed him with attention deficit hyperactivity disorder (ADHD), major depressive disorder, and oppositional defiant disorder. The school subsequently evaluated him for special education but determined he was not eligible for services, largely due to the fact that his C grades showed he could be “’successful’ in the normal environment and was not suffering an adverse educational impact from his behavioral problems.” Jamarcus’s disciplinary problems, however, continued, as did harassment of him, including harassing racial and sexual orientation comments, theft and physical violence. He ultimately committed suicide at his parents' home on October 20, 2010, during the school's fall break.
The legal claims against the school in regard to negligence and the IDEA, however, are of particular interest for their novelty (at least to me).
Tuesday, September 3, 2013
A state court has ruled that the Grandview, WA school district violated federal law when it failed to provide an appropriate education for a deaf student. Last Friday, Yakima County Superior Court Judge Robert Lawrence-Berrey ordered the school district to pay for four years of private education for the student, José Garcia. The Individuals with Disabilities Act (IDEA) requires schools develop an Individualized Education Plan (IEP) for students with special needs, but that appears to have happened only intermittently for Garcia. Garcia was educated in the Grandview, WA district from pre-school to 12th grade. Garcia is profoundly deaf but the school district failed to assign him an interpreter or an amplification system, so he missed much of what was going on in class. The district decided not to provide a sign language interpreter because of concerns that it would make Garcia self-conscious. When later teachers realized Garcia had a severe hearing impairment, he was cycled between general education, "resource rooms," and self-contained special education classes. The IDEA also requires that students' parents have meaningful access to information about their children's education. The state superior court found that the district failed to meet IDEA's requirements by conducting Garcia's IEP meetings in English, which left his mother, who cannot speak or read English, with little understanding about her son’s education. His mother, Maria Sanchez, thought that her son was doing well because he brought home A’s and B’s on his report cards. She did not realize that he was attaining those grades in special education classes. When Garcia reached the 12th grade at Grandview High School, he could not graduate because he was barely literate and his math skills were at a third grade level.
With supports, a federal court concluded in 2011, Garcia could function at his age level. Now that he is 20 years old, Garcia will get that opportunity, as the Grandview district must provide him with four years of private education at an estimated cost of nearly $1 million. The 2011 federal court decision is Sanchez, et al. v. Grandview School District No. 200, No. CV-10-3118-EFS, 2011 WL 10649281 (E.D. Wash. February 28, 2011) (granting plaintiffs’ motion for injunctive relief).
A panel of the Ninth Circuit ruled on August 28 that Hawaii violated the Individuals with Disabilities Education Act by eliminating special education eligibility for 20 and 21 year olds when general education students of those ages could attend free GED and competency based education programs. E.R.K. v. Hawaii Department of Education reversed a decision of the district court that had upheld a Hawaii statute, Act 163, barring students from attending public school after the last day of the school year in which they turn twenty. The statute applies to all students, whether covered by IDEA or not. The Hawaii Department of Education, however, operates a network of adult education schools called the Community Schools for Adults. These schools offer free programs by which general education students can earn a high school diploma either under a GED program or a competency based programs, and are open to students eighteen or older who do not have a high school diploma. They do not offer IDEA services to students with disabilities.
Monday, September 2, 2013
Earlier this summer, we covered three cases before the 9th Circuit that would decide if a Hawaii law ending special education services for students at age 20 violated federal disability laws, when general education students could attend state-funded community schools up to age 22. On August 28, the 9th Circuit ruled that Hawaii’s state-funded high school diploma programs for adults is free public education, so the state must provide the same opportunity for students who need special education services up to age 22. The Individuals with Disabilities Act restricts the power of states to establish age limits on special education eligibility until age 22, but exempts states that do not provide general education services after age 18 from that restriction. A Hawaii statute, Act 163, barred students from attending public school after the last day of the school year in which they turned 20. Hawaii provided education for students older than 20 to earn a high school equivalency diploma by enrolling in one of the state’s ten Community Schools for Adults, but it did not provide special education services for students over 20. Four plaintiffs sued alleging that Act 163 violated federal law by denying public education to special-needs students aged 20 to 21 while offering it, in the form of the Community Schools for Adults, to students without special needs. The Ninth Circuit held that the Hawaii law setting the age limit on public education violated the IDEA and reversed in part the district court’s entry of judgment in favor of the state. Read the court’s opinion in E.R.K. v. Hawaii Dep’t of Education here.
Thursday, August 29, 2013
NY's Success Academy Charter Network Accused of Using Zero Tolerance Policies to Push Out Special Needs Students
Success Academy charter schools in New York suspended nearly twice the number of students suspended by public schools in the same districts during the 2010-11 school year. In an article today in the New York Daily News, parents allege that the Success Academy's zero tolerance policies are pushing out special needs children who commit minor infractions. At Success Academy Harlem, 22% of students were suspended at least once, and the average suspension rate in Success Academy schools was 14%. Over the same period, only two of the traditional elementary schools in the same districts had suspension rates over 9%; the other schools had 7% and 6% rates. Earlier this year, the organization that evaluates and monitors New York’s charter schools, SUNY’s Charter Institute, noted inconsistencies in the Success Academy network’s providing instruction to students with discipline problems. The Success Academy network operates several K-5 charter schools in Harlem and the Bronx and is recognized for outperforming city schools on proficiency tests. This year, 82% of Success’ students met state proficiency standards in math and 58% in English. New York City’s school test scores this year were otherwise dismal with fewer than 30% of city school students showing proficiency in math and 26% in English. Read more about Success Academy and its suspension rates here.
Over the summer, I posted a few times on the willingness of some courts to extend the reasoning of Wal-Mart v. Dukes--the Supreme Court case rejecting the nationwide gender discrimination class based on commonality--to special education class actions. Interestingly, most of these cases have arisen out of Chicago and the Seventh Circuit. The most important was Jamie S. v. Milwaukee Public Schools, 688 F.3d 481 (7th Cir. 2012), which rejected class certification based on Wal-Mart's reasoning. Although I didn't want to highlight the point, my lurking fear was that districts under existing court orders--some dating back over a decade--would attempt to use Wal-Mart and Jamie S. to decertify their class and get out from under the obligations. This post facto procedural tactic could completely unravel plaintiffs' hard won substantive victories.
Well, that is exactly what the school district attempted in Corey H. v. Chicago Board of Education. In an interesting turn, the Seventh Circuit (in an unpublished opinion) was not receptive to the decertification argument. As an initial matter, the court said the claim was moot, but wrote:
Even if this case were not moot, we would not grant the relief CPS seeks. As the district court noted, over the past twenty-one years, during which the parties invested thousands of hours and spent tens of millions of dollars in an effort to reform the CPS special education system for the benefit of disabled children, no one—not the plaintiffs, ISBE, or CPS—has ever complained about the class certification definition. Why, at this late date, the CPS would try to obliterate two decades’ worth of effort is mystifying to us. The CPS just reaffirmed its commitment to the decree in 2010, and nothing has occurred since then to suggest that complying with the terms of the decree had changed in any meaningful way. Even if circumstances had changed, however, CPS is no longer under any burden, substantial or otherwise, to comply with any obligations it assumed under the expired decree. As we noted above, the only remaining obligation is for the Monitor, who will file her report at some point presumably in the near future. Thus, even if this case were not moot, no justification exists for vacating the decree.
Thanks to Mark Weber for alerting us to the case.
Wednesday, August 28, 2013
Thursday, August 22, 2013
DOE Guidance Letter: Schools’ Failure to Protect Students with Disabilities from Bullying Violates IDEA
The Department of Education's Office of Special Education and Rehabilitative Services sent a guidance letter to schools yesterday reminding them of their obligation to prevent and address bullying of students with disabilities. The letter states that any “bullying of a student with a disability that results in the student not receiving meaningful educational benefit” violates the Individuals with Disabilities Education Act. The letter also notes that changing an educational program of a student with a disability (e.g., placement in a more restricted “protected” setting to avoid bullying behavior) may constitute a denial of a free and appropriate education in the least restrictive environment possible. The letter also suggests that schools include a reminder in their antibullying policies that harassment against a student on the basis of disability and retaliation against any person are also prohibited under Section 504, Title II, and other Federal civil rights laws. Read the letter here.
Friday, August 16, 2013
Derek has provided Education Law Professor blog readers with updates on the school closing litigation in Chicago. In two cases, plaintiffs argue that the planned closing of 49 public schools will harm children with disabilities and violate of the Americans with Disabilities Act. The court denied motions to dismiss the cases, but last week also denied motions to certify the cases as class actions. Much of the early right-to-education litigation that led to the adoption of the Individuals with Disabilities Education Act. such as Mills and PARC, consisted of class actions, and class actions have been instrumental in developing special education law since adoption of the Act. But Wal-Mart v. Dukes, 131 S. Ct. 2541 (7th Cir. 2011), appeared to narrow the application of the federal class action rule, and courts since that time have struggled with whether class actions will be permitted in cases that address the identification, evaluation, and placement of children with disabilities and other special education issues. Important decisions include the Seventh Circuit’s Jamie S. v. Milwaukee Public Schools, 668 F.3d 481 (7th Cir. 2012), vacating a class action decree, and DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013), also vacating a class judgment, but suggesting that a revised class or set of subclasses could satisfy the requirements of the federal rule.
The two school closing cases, McDaniel v. Board of Educ. of City of Chicago, 2013 WL 4047989 (N.D. Ill. 2013), and Swan v. Board of Education of City of Chicago, 2013 WL 4047734 (N.D. Ill. 2013), place their greatest stress on the conclusion that the plaintiffs failed to show that the school closings worked a common harm on the members of the class, affecting them in a uniform way. It is not clear that all members of a class must always be harmed in the same way, or even in a way that can be determined at the outset of the litigation, see, e.g., McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, 672 F.3d 482 (7th Cir. 2012) (upholding class status in an employment discrimination action on behalf of African-American stockbrokers all affected by a staffing policy, but potentially affected in different ways and degrees), but the prospects for success seem much greater in the post-Wal-Mart environment when the proponents of class certification can identify a specific policy that caused the harm they suffer. The court in the school closing cases did not deem the decision to close the schools or the rubric under which schools were selected for closure as policies that could support class action treatment under the facts of the case. The next big news expected on the class action topic is the Seventh Circuit’s decision on the appeal of the decision not to decertify the class in Corey H. v. Board of Education of City of Chicago, 2012 WL 2953217 (N.D. Ill. 2012), which has been pending since argument was held in February. For further commentary from me on the Jamie S. decision in specific and special education class actions in general, presented from something of a plaintiff’s perspective, take a look at this video of a presentation from a program of the Illinois Protection and Advocacy Agency, Equip for Equality, in 2012.
Thursday, August 15, 2013
Earlier this summer I posted on the special education lawsuits challenging the Chicago public school closures. The district court has moved the cases along pretty quickly and, last week, denied class certification in both McDaniel v. Board of Educ. of City of Chicago, 2013 WL 4047989 (N.D. Ill. 2013), and Swan ex rel I.O. v. Board of Education of City of Chicago, 2013 WL 4047734 (N.D. Illinois 2013). These decisions have an immediate impact on Chicago schools and the students who attend them, but the court's reasoning relates to the general issue of class certification in education cases.
While the Supreme Court's 2011 decision in Wal-Mart v. Dukes denying class certification to a nationwide group of women is argueably limited to its unique facts or employment litigation, courts have increasingly seen fit to rely on Dukes as a basis for denying special education classes. These district court decisions are but another example. To their defense, they may not have had much choice, as the Seventh Circuit, in which Chicago sits, had already extended Dukes to a special education case in Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481 (7th Cir. 2012).
I am relatively comfortable with the notion that these courts are overextending Dukes, but I not clear on whether these courts might have denied certification anyway. Either way, decisions like these are likely to have a chilling effect in jurisdictions relying on an expansive interpretation of Dukes. A few courts, however, have refused to treat Dukes as imposing any additional hurdles to class certification in special education cases.
I know Mark Weber has been following and thinking about this issue for a while and has already presented on it, at least, once. Stay on the lookout for his upcoming presentations and scholarship on the topic.