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.
Monday, November 18, 2013
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.
Monday, November 11, 2013
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.
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).
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.
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.
Tuesday, November 5, 2013
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.
Wednesday, October 30, 2013
Monday, October 21, 2013
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.
Tuesday, October 15, 2013
In a surprise move this past Thursday, the U.S. District Court for DC found that a lawsuit challenging DC school closures had alleged fast sufficient to survive a motion to dismiss. The ruling was a surprise not because the plaintiffs claims lacked merit, but because the judge had been so dismissive of plaintiffs' claims at the preliminary injunction stage earlier this summer. Plaintiffs had alleged that the particular schools being closed would have a disparate impact on minority students and students with disabilities. In fact, plaintiffs' data showed that the only schools closed in recent years were minority schools. Moreover, the schools closed this summer enrolled 40% of the district's entire special education population. Plaintiffs had hoped to stop those closures before they occurred, as damage of this sort is nearly impossible to undo after the fact.
The court in its new opinion wrote: “The Court agrees with the District on the bulk of the Plaintiff’s claims. Nevertheless, the parents and guardians have alleged sufficient facts to state claims of discrimination under the three civil-rights provisions at the heart of their case: the Equal Protection Clause, Title VI, and the D.C. Human Rights Act.” Thus, while the court dismissed some of plaintiffs' claims, the heart of their case remains.
Tuesday, October 8, 2013
The South Carolina Department of Education (SCDE) has found that school district Florence County School District 1 failed to correct violations of federal disability law after three complaints were filed within a year involving the same family. On September 20, the SCDE sent a third resolution letter showing that Florence 1 violated the Individuals with Disabilities Education Act (IDEA) on eleven occasions and failed to follow through with corrective actions in previous SCDE directions. The SCDE had sent two prior resolution letters, one in November 2012, for a student in Florence 1, and another in July 2013, for a complaint involving the student’s younger brother because his academic resource class did not have a certified special education teacher. Relations between the students’ mother and Florence 1 became so heated that the mother was arrested following an argument at the school when she arrived to get her son and school staff could not tell her where he was. The family’s third complaint was filed in late July 2013, alleging that Florence 1 was still not complying with the IDEA. The school district’s officials told the Florence Morning News that they are puzzled that SCDE continued accepting their compliance plans without comment but then found them wanting after complaints were filed. Nevertheless, the principal of North Vista Elementary, where one of the brothers attends school, is taking the SCDE’s action as constructive criticism, saying, “We want to learn from [the decision] and want to improve for all students.” Disability law issues in Florence County are doubtless sensitive as the U.S. Supreme Court found that one of its districts violated the IDEA twenty years ago in Florence District Four v. Carter, 510 U.S. 7 (1993). Read more about the findings in Florence 1 District here.
Friday, October 4, 2013
This past spring, the Loyola Law Review hosted "Special Education in a New Era of Reform." It covered a wide spectrum of special education topics and included presentations by Paul Grossman, Chief Regional Civil Rights Attorney for the U.S. Department of Education, Dr. Marcia Arceneaux, former IDEA and NCLB Compliance Attorney for the Recovery School District, Professor Ruth Colker from The Ohio State University, Professor Wendy Hensel from Georgia State University, Professor Mark Weber from Depaul University, John Borkowski of Hogan Lovells, and Eden Heilman from the Southern Poverty Law Center. The articles from the symposium are now available on westlaw.
Mark C. Weber, ALL AREAS OF SUSPECTED DISABILITY, 59 Loy. L. Rev. 289 (2013).
Wendy F. Hensel, RECENT DEVELOPMENTS IN VOUCHER PROGRAMS FOR STUDENTS WITH DISABILITIES, 59 Loy. L. Rev. 323 (2013).
Eden B. Heilman, STRANGER THAN FICTION: THE EXPERIENCES OF STUDENTS WITH DISABILITIES IN THE POST-KATRINA NEW ORLEANS SCHOOL SYSTEM, 59 Loy. L. Rev. 355 (2013).
Marcia C. Arceneaux, THE IMPACT OF THE SPECIAL EDUCATION SYSTEM ON THE BLACK-WHITE ACHIEVEMENT GAP: SIGNS OF HOPE FOR A UNIFIED SYSTEM OF EDUCATION, 59 Loy. L. Rev. 381 (2013).
Lindsey H. Chopin, UNTANGLING PUBLIC SCHOOL GOVERNANCE: A PROPOSAL TO END MEANINGLESS FEDERAL REFORM AND STREAMLINE CONTROL IN STATE EDUCATION AGENCIES, 59 Loy. L. Rev. 399 (2013).
Wednesday, October 2, 2013
Connecticut Investigates Claims that School District Told Staff to "Exit Students from Special Education"
Darien, Connecticut is one of the richest zip codes in the United States, so one might think that its school district would have no problems delivering special education services. But Darien's problems with special education this year—including allegations that the district was told to steer special education students into general classrooms and then defied a FOIA request to cover up the evidence—shows that money does not solve everything. Prompted by a lawsuit filed by parents of special education students, last week the Connecticut’s Department of Education released a report confirming that the district’s delivery of special education services was “inconsistent” with the Individuals with Disabilities Education Act (IDEA). The State Board found that the Darien district’s former special education director, Dr. Deirdre Osypuk, gave staff “directives to exit students from special education.” The state report also confirmed that Individualized Education Plans (IEPs) were changed without notice to parents. The problems appear to have started in when the Darien School District hired Osypuk to be its new special education director in May 2012. More after the jump.
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.