Wednesday, November 5, 2014
Scholarship: Marking the "Four Corners" of the IEP to Mitigate Unequal Bargaining Power between Parent-Guardians and School Districts
The paper that received the George Jay Joseph Education Law Writing Award from the Education Law Association is available now on Lexis: Matthew Saleh, Public Policy, Parol Evidence and Contractual Equity Principles in Individualized Education Programs: Marking the "Four Corners" of the IEP to Mitigate Unequal Bargaining Power between Parent-Guardians and School Districts, 43 J.L. & Educ. 367 (2014). The Joseph award recognizes excellence in education law scholarship by law students or graduate students of education. Cribbed from the paper's introduction:
Under the Individuals with Disabilities Education Act, school districts are required by law to create Individualized Education Programs (IEPs) for qualifying students to help ensure these students receive a Free and Appropriate Public Education (FAPE). This paper makes the argument that courts should derive parties’ intended agreement from the text contained within the "four corners" of the written IEP and not from extrinsic evidence. Many districts and even state education departments openly favor vague litigable terminologies in IEPs, and most parents simply lack the sophistication to understand the legal problems they are creating for themselves down the line. Using the four corners rule to interpret IEPs would not be altogether different than the tack taken by courts towards construing boilerplate language in other types of contracts where: (a) one party has expertise in the technical language used; (b) the other party is unsophisticated as to the "obscure verbiage" utilized in the instrument; (c) the more sophisticated party played a disproportionate role in drafting the instrument; and (d) the court determines that the boilerplate terminologies do not adequately represent the "intent" of the less sophisticated party to the instrument. The applicability of such rules of interpretation to the IEP context, in conjunction with the four corners rule, would have a positive influence on the effectiveness of the IEP as a proactive means for agreeing to educational services without having to resort to costly, adversarial, and inefficient dispute resolution procedures.
Monday, November 3, 2014
Lisa Lukasik has organized a discussion group at the Southeastern Association of Law Schools conference. The exact date of the panel is not yet set. The conference is scheduled from July 27, 2015 to August 2, 2015 in Boca Raton, Flordia. She is still seeking additional discussants. I would also add that there are several nationally recognized special education scholars scheduled to participate. It is an excellent opportunity for younger scholars to build relationships and exchange ideas with them. Those interested in joining should contact Lisa at email@example.com. The discussion description is as follows:
The Education for All Handicapped Children Act, now the Individuals with Disabilities Education Act, has been the primary federal influence on the education of children with disabilities since its enactment. In its 40th anniversary year with a reauthorization long overdue, it is ripe for reassessment. This discussion group will examine this legislation, reflecting on what has worked, what hasn't, and what can be improved in an anticipated reauthorization. It will also consider the disconnect between the United States' domestic recognition of educational rights for children with disabilities and its minimal effort to ratify the Convention on the Rights of Persons with Disabilities.
Wednesday, October 29, 2014
Tuesday, October 28, 2014
A new Hechinger Report article offers a compelling narrative and social science review of the connection between emotional-behavioral disabilities and prison. We typically call this the pipeline, which is catchy, but often strikes me as vague or a rough characterization of a conglomeration of statistics (albeit an effective one). Jackie Mader and Sarah Butrymowicz's article, like others, discusses how children with special education needs are disproportionately involved in the juvenile justice system. Of the thousands of children caught up in the system every year, "[a]t least one in three of those arrested has a disability, ranging from emotional disability like bipolar disorder to learning disabilities like dyslexia, and some researchers estimate the figure may be as high as 70 percent." Moreover, students with emotional disabilities are three times as likely to be arrested before leaving high school than their peers. Beyond those numbers, however, this article struck me as doing something different--revealing more than just a pipeline from point A to B to C. Rather, it suggests a systematic approach to special needs and discipline that is ill-equipped to do anything other than drive a substantial portion of special needs students to incarceration.
Friday, October 24, 2014
In a case that Derek previously posted about here, a federal district court has administratively closed a class-action suit filed by special-needs students against the Mississippi Department of Education. The district court’s order allows either party to reopen the suit for noncompliance with the terms of a September 2014 settlement agreement. Corrie Cockrell, an attorney with the Southern Poverty Law Center that represents the students, told the Jackson Clarion-Ledger yesterday, "We reached an agreement with the state because we felt it was in the best interest of our clients." In the case, E.H. v. Mississippi Dept. of Educ., 2013 WL 4787354 (S.D. Miss. 2013), special-needs students sued the Mississippi Dept. of Education for its failure to force Jackson Public School District (JPS) to comply with the IDEA's mandate of a Free Appropriate Public Education. The Department investigated the complaint against JPS and, after finding IDEA violations, ordered the school district to remedy the violations or risk losing its accreditation. JPS missed two deadlines for compliance, prompting the plaintiffs to sue in federal court. The Department eventually found that JPS corrected the IDEA violations, but the student-plaintiffs found that it was difficult to verify the Department’s findings. The students thus asked for quarterly progress reports in the settlement, Cockrell said, to ensure that JPS is “moving in the right direction.” According to the Clarion-Ledger article, the state set a goal for 71% of children with disabilities to graduate, but just 12% of those in JPS did as of 2012. The state's average graduation rate for students with disabilities is 23%. Read the settlement agreement in E.H. v. Mississippi Dept. of Educ. here.
Wednesday, October 22, 2014
The guidance letter on bullying and harassment of students with disabilities that was issued this week by the Office for Civil Rights of the U.S. Department of Education is noteworthy for a number of reasons. First, it reinforces the point made in other Department of Education communications that bullying of these students, if not adequately addressed by school districts, amounts to a violation of the law even if the conduct is not directly tied to the students’ disabilities. Although unaddressed bullying that is related to the disability is a clear violation of the protection against hostile environments established by the law, there is a separate violation when bullying, of any kind or for any reason, interferes with a disabled child’s receipt of an appropriate education. Second, with regard to hostile environment violations, the letter stresses that even if the conduct of the school officials does not rise to the level of deliberate indifference to known deprivation of rights, a violation of the disability discrimination laws still occurs when, as OCR puts it: “(1) a student is bullied based on a disability; (2) the bullying is sufficiently serious to create a hostile environment; (3) school officials know or should know about the bullying; and (4) the school does not respond appropriately.” There are reasons to be skeptical of the use of a deliberate-indifference standard copied without any modification from Title VI and Title IX in Section 504 and ADA damages cases. As Derek Black pointed out in his illuminating article at 15 Wm. & Mary Bill of Rts. J. 533 (2006), even in equal protection cases courts should apply a standard that is lower than the Title VI-Title IX deliberate-indifference standard. But in any case a deliberate-indifference standard does not limit when OCR should act to stop and prevent violations of the law. Third, OCR provides a helpful set of examples of hostile-environment violations, non-disability-based bullying that nevertheless leads to violation of the discrimination laws, and an appropriate response to bullying that avoids violating the law. The letter should make a strong contribution to remedying disability discrimination.
Tuesday, October 21, 2014
Below is OCR's dear colleague letter, released today:
As part of National Bullying Prevention Awareness Month, the U.S. Education Department’s Office for Civil Rights (OCR) today issued guidance to schools reminding them that bullying is wrong and must not be tolerated – including against America’s 6.5 million students with disabilities. The Department issued guidance in the form of a letter to educators detailing public schools’ responsibilities under Section 504 of the Rehabilitation Act and Title II of Americans with Disabilities Act regarding the bullying of students with disabilities. If a student with a disability is being bullied, federal law requires schools to take immediate and appropriate action to investigate the issue and, as necessary, take steps to stop the bullying and prevent it from recurring.
Today’s guidance builds upon anti-bullying guidance the Department has issued in recent years concerning schools’ legal obligations to fix the problem, including:
- A 2013 dear colleague letter and enclosure by the Office of Special Education and Rehabilitative Services (OSERS) clarifying that when bullying of a student with a disability results in the student not receiving meaningful educational benefit under IDEA, the school must remedy the problem, regardless of whether the bullying was based on the student’s disability.
- A 2010 dear colleague letter by OCR which elaborated on potential violations when bullying and harassment is based on race, color, national origin, sex, or disability.
- A 2000 dear colleague letter by the OCR and OSERS, which explained that bullying based on disability may violate civil rights laws enforced by OCR as well as interfere with a student’s receipt of special education under the Individuals with Disabilities Education Act (IDEA).
Wednesday, October 15, 2014
Process versus Substance in Affording Students with Behavioral Disabilities a Free Appropriate Public Education
Susan C. Bon and Allan G. Osborne's new article, Does the Failure to Conduct an FBA or Develop a BIP Result in a Denial of a FAPE Under the IDEA?, 307 Ed. Law Rep. 581 (October 5, 2014), is now available on westlaw. The article analyzes a number of recent cases "decided in the federal trial courts in New York over the question of whether school boards' failure to conduct [functional behavioral assessments (FBAs)] or implement [behavioral intervention plans (BIPs)] denied children the free appropriate public educations (FAPEs) guaranteed by the IDEA." Currently, the IDEA requires that school administrators ensure that FIPs are completed and that BIPs are implemented whenever students with disabilities are removed from their programs for more than 10 days due to disciplinary measures. A number of states, however, including New York, have expanded on these federal requirements and "[e]ven though these cases were primarily concerned with state requirements, which are more comprehensive and specific than the IDEA, there are important implications that can be garnered from this litigation."
Wednesday, October 8, 2014
Supreme Court Requests Brief from Solicitor General on School Districts' Financial "Stay Put" Obligations
Hat tip to the Disability Scoop blog, which posted this news from the U.S. Supreme Court: On Monday, the Supreme Court asked the Solicitor General to address a pending certiorari petition on the issue of school districts' responsibility to pay private school tuition while special education disputes are litigated on appeal. Under the Individuals with Disabilities Education Act’s “stay-put” provision, school districts are responsible for paying for a student to remain in an existing educational placement while disputes related to the child’s special education services are resolved. At issue in the petition before the Court, M.R. v. Ridley School District, is whether a school district's financial responsibility dissolves if the parents do not request reimbursement for their out-of-pocket private school costs until after an administrative decision in their favor has been reversed by a court upon further review. The Third Circuit held this February in the case that the Ridley School District (Philadelphia area) had to pay private school tuition for the student while the child’s family continued to appeal their dispute, even though a lower court found in favor of the district -- that the public school provided an appropriate education. A circuit split has developed about whether the stay-put provision applies during the pendency of appeals, with the D.C. Circuit, Sixth Circuit, and district courts in Delaware and the Eastern District of Pennsylvania holding that a school district "need not continue to fund a student's pendent placement beyond district court review," and the Ninth Circuit and a N.J. district court allowing reimbursement through appeal. The National Association of State Directors of Special Education, the National School Boards Association and the Pennsylvania School Boards Association have filed amicus briefs at the Supreme Court arguing that schools should be relieved of the responsibility to pay for private school placements once a court finds in a district’s favor. The Third Circuit decision is M.R. v. Ridley Sch. Dist., 744 F.3d 112, 119 (3d Cir. 2014).
Tuesday, October 7, 2014
Federal Court Orders Hawaii to Provide Compensatory Special Education Services After Age Eligibility Law Found to Violate the IDEA
Last month, a U.S. District Court ruled that Hawaii must provide compensatory educational services to all students with disabilities who were barred under a 2010 state law from remaining in school after the age of 20. The district court’s decision implements E.R.K. ex rel. R.K. v. Hawaii Dep't of Educ., 728 F.3d 982 (9th Cir. 2013), that we discussed on the blog here and here. The federal district court’s latest ruling requires the state to provide “compensatory services to make up for the services missed as a result of that improper determination of eligibility.” R.P.-K, et al. v. Dep’t of Educ., State of Hawaii, Civ. No. 10-00436, slip op. at 2-3 (D. Haw. Aug. 22, 2014). To do this, the district court ordered the parties to determine the members of plaintiffs’ class, including the names and contact information for the students who might have been affected by the Hawaii DOE’s “age out” rule.
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. 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 a state law barred students from attending public school after the last day of the school year in which they turned 20. The Ninth Circuit held that the Hawaii law setting the age limit on public education violated the IDEA 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. The Ninth Circuit had previously ruled that when a child is denied the Free Appropriate Public Education under the IDEA, a court may provide additional services to “make up for lost time” to remedy the violation. R.P ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1125-26 (9 Cir. 2011).
Wednesday, September 10, 2014
For students writing law journal comments or seminar papers on special education this fall (and maybe the spring), the writing competition below offers an opportunity for a cash prize and publication. It is open to disability papers outside of education, but special education surely fits nicely. Thanks to Professor Susan Bisom-Rapp for sharing it.
Thomas Jefferson School of law is pleased to announce the inaugural 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.
Monday, September 8, 2014
On September 4, the Sixth Circuit issued F.H. v. Memphis City Schs., --- F.3d ----, No. 13–6323, 2014 WL 4357559 (6th Cir. Sept. 4, 2014). The case involved allegations that a student with cerebral palsy and other disabilities that caused him to have limited use of his hands was frequently left unattended and unsupervised in the school washroom, though he was unable to clean himself after using the facilities. As a result he was left distraught and crying, and had a seizure on one occasion. In one instance, he returned to class with bloody underwear and on other occasions he had to return to class with soiled underwear. The complaint also alleged that he was subject to verbal and physical abuse from aides and other school personnel, and was sexually abused by an aide. At one point, the child’s parent demanded a due process hearing under IDEA, and settled the case with an agreement that resolved claims arising under IDEA and related provisions of state law. A year later, the parent and student filed suit for damages in federal court asserting claims under 42 U.S.C. § 1983, Section 504, the Americans with Disabilities Act, and contract law.
Monday, August 11, 2014
School districts have physical restraint and seclusion policies to protect students from harming themselves or others, but may have quite different standards for when restraint or seclusion is necessary. Last week, the Deparment of Education's Office for Civil Rights concluded that one district in Prince William County, VA, too often used restraint and seclusion as a strategy to control student behavior rather than employing alternative strategies. Responding to a complaint filed on behalf of students who were restrained or secluded while attending a Prince William County program for students with disabilities, OCR found that the program denied students with disabilities a free appropriate public education under the IDEA. The program's schools, called PACE (Positive Attitude and Commitment to Education) East and West, reportedly logged 115 instances of restraint and 147 instances of seclusion to control student behavior during 2011-12. As part of a resolution agreement, OCR recommended that PACE change its practices to offer students educational opportunities when they are restrained or secluded and consider different intervention approaches. OCR declined to find that PACE's restraint practices had a disparate impact on black and Hispanic students. Read OCR's letter, posted by the Legal Aid Justice Center, here.
Friday, August 8, 2014
New York Times Magazine ran an interesting story last week, focusing on two children with autism, one who was "cured" through "applied behavioral analysis" and the other who was not. It also offered a quick synopsis of recent research:
In the last 18 months, however, two research groups have released rigorous, systematic studies, providing the best evidence yet that in fact a small but reliable subset of children really do overcome autism. The first, led by Deborah Fein, a clinical neuropsychologist who teaches at the University of Connecticut, looked at 34 young people . . . . She confirmed that all had early medical records solidly documenting autism and that they now no longer met autism’s criteria, a trajectory she called “optimal outcome.” She compared them with 44 young people who still had autism and were evaluated as “high functioning,” as well as 34 typically developing peers.
Thursday, August 7, 2014
Monday, July 7, 2014
A class action suit recently filed in federal court alleges that students with mental health needs are being "warehoused" by the Springfield, MA school district without educational opportunities or therapeutic supports. The suit was filed by the Parent/Professional Advocacy League (PPAL), a grassroots organization that focuses on mental health issues, on behalf of students at Springfield's Public Day School. The suit charges that the school uses "behavior control using drastic methods including dangerous physical restraints, forced isolation in padded rooms and repeated arrests and suspensions for minor offenses." The plaintiffs claim that the Day School's students are being segregated in violation of the ADA and instead students could be educated in neighborhood schools with reasonable modifications and services. The Day School offers few of the extracurricular activities and vocational opportunities available to children in neighborhood schools, the plaintiffs also argue. The complaint further alleges that the effects of hyper-discipline and isolation on the students contributes to the Day School's high drop out rate of 41% in 2013-14 (compared to the overall 6.5% rate in Springfield's other schools). The PPAL and the students are being represented by attorneys from the Bazelon Center for Mental Health Law, the Center for Public Representation, and Boston law firm Bingham McCutchen. Read the complaint in S.S. v. City of Springfield here.
Thursday, June 26, 2014
Yesterday, Education Secretary Arne Duncan announced a "major shift" in the way that the ED measures how well states are educating the nation's 6.5 million special education students. In keeping with the administration's accountability focus, the shift is in how the Department measures state's compliance with the Individuals with Disabilities Education Act (IDEA) from focusing on whether states have met the IDEA's procedural requirements to charting the reading and math proficiency of students with disabilities. Michael Yudin, Acting Assistant Secretary for the Office of Special Education, wrote on ED.gov that while "the vast majority of students in special education do not have significant cognitive impairments that prohibit them from learning rigorous academic content, fewer than 10 percent of eighth graders with disabilities are proficient in reading and math on the National Assessment of Educational Progress (NAEP). Too often, students’ educational opportunities are limited by low expectations." Using the new yardstick of student performance, while 40 states are compliant with the IDEA's core procedural requirements, only 18 states would be compliant under the ED's new student reading and math proficiency standards. See the chart at IDEA State Determinations Under Results Driven Accountability: 2014.
Friday, June 20, 2014
Request for Information (RFI) on Significant Disproportionality
The U.S. Department of Education (Department) published an RFI in the June 19, 2014 Federal Register requesting public comment on the actions that the Department should take to address significant disproportionality based on race and ethnicity in special education.
The Department is requesting input from the public on actions the Department should take related to:
- significant disproportionality based on race and ethnicity in the:
- identification of children as children with disabilities, including identification by disability category;
- placement of children with disabilities in particular educational settings; and
- the incidence, duration, and type of disciplinary action taken with respect to children with disabilities; and
- ensuring that funds reserved for comprehensive, coordinated early intervening services under Part B of the IDEA are used to effectively address significant disproportionality.
The RFI includes information about how to submit public comments. Responses must be received by July 21, 2014.
Link to OSERS Page: http://www2.ed.gov/policy/speced/guid/idea/disproportionality.html
Wednesday, June 18, 2014
A western Pennsylvania newspaper did some number crunching on school funding, disability, and poverty levels in the area. The paper found that "[o]f the 117 school districts in southwestern Pennsylvania, 40 educated a higher-than-average population of both special education and low-income students during the 2012-13 school year." And "that districts that serve low-income families are more likely to have higher percentages of special-education students. All but 12 of the 52 districts that serve communities with more than 41 percent of students identified as low-income also have a higher than average percent of special-education students. Comparatively, of the 65 districts serving fewer low-income families than average, only 21 have more than 15.3 percent of students identified as special education."
The paper turned to experts to help explain the phenomenon. The response "districts serving poor families deal with several issues that can affect whether a student is identified as special education, . . . including inadequate prenatal care, poor nutrition, and a fetal drug and alcohol problems." Lump on top of that the fact that these poor communities tend to have low tax bases, which means their capacity to fund educational in general is limited. In short, these poor communities experience a perfect storm: student poverty, high levels of disability, and underfunded schools regardless of demographics.
The proposed solution was to make a district's socioeconomic status a factor in special education funding, rather than relying on flat amount. At first glance, that sounds like an appropriate response, although countermeasures are likely also necessary so as to ward of perverse incentives in the identification of disability, which may already exist to some extent and explain so overidentification. Regardless, raising these issues in the context of western Pennyslvania is particularly important because, other than Pittsburgh, the area is is largely rural and white, with significant percentages of poverty and undereducation. These demographics take race out of the picture. All too often, issues of poverty are equated with or clouded by issues of race, impeding a fair and objective look at and response to the problem. That does not, however, mean a solution will be forthcoming. My suspicion is that, as poor and rural districts, these Pennsylvania communities still have limited political sway.
As a side note, those interested in poverty and disability should read James Ryan's recent article discussing the relevance of poverty in the identification of individual students' disabilities.
Friday, April 25, 2014
Mark Weber's new article, In Defense of IDEA Due Process, is now available here on ssrn. The abstract indicates:
Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker.
This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and that others are overstated. The system is generally fair to the various classes of parents, even if some parents are better able than others to use it effectively. Costs are remarkably low given the number of children receiving special education, and hearings and hearing requests have been in decline for years. Far from being futile, the due process hearing system is one in which parents win a significant percentage of cases. And far from being out of control, hearings are generally being managed effectively. The system could be rendered still more efficient with a few modest reforms of the special education statute and its interpretation.
The call for minimizing IDEA process has been around for a while, but I suspect it will only gain more steam in coming years, as it fits "nicely" with the overarching theme of flexibility and deregulation that has driven charter school and voucher growth. Whatever one thinks of charter schools and vouchers, Mark offers the rationale for why the current rules in IDEA work.