Special Education Law

Kudos for Bookshare® Downloadable Audio and Braille Books for Students with Visual Impairments and Dyslexia

2012-02-28T10:59:00.000-08:00

Through an award from the U.S. Department of Education Office of Special Education Programs (OSEP), Bookshare offers free memberships to U.S. schools and qualifying U.S. students.

Bookshare® is an online library of digital books for people with print disabilities. It operates under an exception to U.S. copyright law which allows copyrighted digital books to be made available to people with qualifying disabilities. In addition, many publishers and authors have volunteered to provide Bookshare with access to their works. By requiring individuals to register as Members and provide a Proof of Disability, Bookshare ensures that only qualified individuals use the service.

Bookshare serves:
1. People with Visual Impairments: Members with visual impairments can listen to books with using a text-to-speech synthesized voice, read books in Braille, or access the material in large print. Members with low vision can read books in an enlarged font using either a screen magnifier or by opening the book in a software program that supports increased font size, color, contrast, etc.

2. People with Physical Disabilities: Members can read books on a computer or a variety of portable devices, either visually and with text-to-speech as desired. Bookshare books are as easy or easier to access than books on tape, and the Bookshare program is switch accessible.

3. People with Learning Disabilities: Members with severe dyslexia typically benefit from access to the full text of books in digital format, for multi-modal reading with both visual and audio (through synthetic text to speech). Many great software programs exist that provide a range of reading support specifically designed for individuals with learning disabilities, including highlighting of text as it is read aloud, changing margin, word, paragraph and line spacing, and setting custom background and print colors.

Bookshare books are available in the following accessible digital formats from the Bookshare website:

DAISY (Digital Accessible Information System)-a talking-book file format

DAISY books from Bookshare are DAISY 3 text files that work with screen readers, self-voicing synthetic-voice DAISY players, portable self-voicing DAISY players, and scan-and-read software such as Kurzweil K1000 and K3000, WYNN, and OpenBook.

BRF (Braille Refreshable Format)-digital Braille for use with Braille embossers and refreshable Braille devices.

Bookshare Members download books, textbooks and newspapers in a compressed, encrypted file. They then read the material using assistive technology, typically software that reads the book aloud (text-to-speech), Daisy audio file readers and or devices that display the text of the book on a computer screen, or Braille access devices, such as refreshable Braille displays.

Special Education, Section 504 and the Americans with Disabilities Act

2012-02-24T09:32:00.000-08:00

Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act of 1990 (ADA)(1) are broad civil rights statutes designed to promote equal access to and participation in programs and services. A school district that fails to provide comparable benefits and services in regard to its classes, services and other school programs violates Section 504 and ADA regulations.(2) These regulations require that students with disabilities receive benefits and services comparable to those given their nondisabled peers, and make it illegal for schools to discriminate on the basis of disability by:

∙ denying a student the opportunity to participate in or benefit from a benefit or service,
∙ providing an opportunity to participate or benefit that is unequal to that provided others,
∙ providing a benefit or service that is not as effective as that provided to others, or
∙ providing lower quality benefits, services or programs than those provided others.(3)

For benefits or services provided to be “equally effective,” they must afford students with disabilities an equal opportunity to obtain the same result, gain the same benefit, and reach the same level of achievement as other students.(4)

Section 504 regulations require public schools to provide a free appropriate public education (FAPE) to children with disabilities in accordance with its requirements. A FAPE under Section 504 means that the education and services provided to students with disabilities must meet those students’ needs as adequately as the needs of nondisabled students are met.(5) It is illegal under the Section 504 and ADA regulations for school districts to use policies, practices and procedures that, intentionally or not, result in discrimination. This ban includes those policies, practices, and procedures that have the effect of discriminating against students with disabilities, or have the effect of defeating or impairing the student's accomplishment of the objectives of the education program.(6)

In meeting their responsibilities to students with disabilities under Section 504 and Title II of the ADA, school districts must make all modifications and accommodations, and provide supplementary aids and services needed to ensure that students with disabilities can participate to the maximum extent possible in the school’s courses and programs.(7) If access is not provided, the student is deemed to be denied comparable benefits and services, in violation of Section 504 and the ADA.

(1) Section 504 of the Rehabilitation Act of 1973, as amended (Section 504), 29 U.S.C. 794 and Title II of the Americans with Disabilities Act of 1990 (Title II of the ADA), 42 U.S.C. 12131, protect persons with disabilities from discrimination on the basis of disability. The U.S Department of Education’s Office for Civil Rights (OCR) enforces Section 504 and Title II of the ADA, Under Section 504 and its implementing regulations at 34 CFR Part 104, children with disabilities in public elementary and secondary education programs operated by recipients of Federal financial assistance are entitled to a FAPE in accordance with the Section 504 regulations at 34 CFR 104.33-104.36. With respect to elementary and secondary education programs, OCR generally interprets Title II of the ADA and its prohibition against discrimination on the basis of disability in a manner consistent with Section 504 and its regulations.

(2) In addition, the IDEA requires states to develop “performance goals and indicators” for children with disabilities that are consistent, to the maximum extent appropriate, with the standards set by the state for all students. 20 U.S.C. §1412(a)(16).

(3) 34 C.F.R. §104.4(b)(1) (§ 504 regulation); 28 U.S.C. §35.130(b)(1) (ADA regulation).

(4) 34 C.F.R. §104.4(b)(2); 28 C.F.R. §35.130(b)(iii).

(5) 34 C.F.R. §104.33.

(6) 34 C.F.R. §104.4(b)(4); 28 C.F.R. §35.130(b)(3).

(7) See 42 U.S.C. 12131(2); 34 C.F.R. 104.4(b); 28 C.F.R. 35.130(b)(7); Alexander v. Choate, 469 U.S. 287, 300-01 (1985); Thomas v. Davidson Academy, 846 F. Supp. 611 (M.D. Tenn. 1994).

Special Education Rules of Engagement

2012-02-20T11:43:00.000-08:00

Yesterday, on the excellent Wrightslaw website (http://www.wrightslaw.com/blog/) Pat Howey, a paralegal advocate with Wrightslaw wrote that she had recently seen a t-shirt with the following rules of engagement. I agree with her that if you are the parent of a child with a disability, these rules will be helpful in your journey:

1. If the enemy is within range, so are you.
Everything you do has a lasting effect. Do not allow your actions to backfire on your child.

2. The cavalry doesn’t always come to the rescue.
In a pinch you may not be able to find or afford a good parent attorney. Use persuasion instead of threats of a due process hearing.

3. Bring the biggest gun you can handle, lots of ammo, and plenty of reinforcements.
Be prepared for IEP meetings. Give the school members of your child’s team all relevant information before IEP meetings. Bring extra copies of evaluations. Do your homework. Learn all you can about research-based instruction. Take a friend to the meeting. Bring refreshments.

4. Incoming fire always has the right of way.
The school is responsible for scheduling and holding IEP meetings. Thus, school staff has the right of way. Your greatest weapon is paper and a pen. Document everything, even if it seems unimportant at the time. Who fires the first shot is less important than who has the most strategic position after all the shots are fired.

5. Never forget that your weapon was made by the lowest bidder.
Be careful about using the law as a weapon. The IDEA is an important tool but your information about the law may be outdated. Quoting the law causes positions to become polarized. When positions are polarized, a peaceful solution is less likely.

6. Never draw fire; it irritates everyone around you.
It’s difficult to fire at a person who is kind and considerate. Focus on influencing people so they understand your position. Be polite. Treat others with respect — as you would like to be treated. When others are rude, take the high road. When you walk a straighter path, you’ll earn the respect of others.

7. If at first you don’t succeed, bomb disposal is not for you.
Know your strengths and your weaknesses. Not everyone can defuse difficult situations. If you have not learned this skill, you need to work with an experienced parent advocate who specializes in dispute resolution.

8. Any ship can be a minesweeper . . . once.
It’s easy to burn bridges. A good parent advocate also protects the child’s relationships with school personnel. Your child is likely to be in school for a long time.

9. If you see a bomb technician running, make sure to keep up with him.
Will the head special education bomb technician — the special education director or school attorney –be at your child’s IEP meeting? Pay attention. Either you should be worried or you have other members of the IEP team worried. Either way, you need to be prepared.

10. If at first you don’t succeed, call in an airstrike.
When your efforts to negotiate fail, don’t threaten to request a due process hearing. Contact a good parent attorney for advice.

Autism Spectrum Disorder, Inclusion, and Special Education Issues

2012-02-08T11:08:00.000-08:00

On the basis of the relatively high proportion of mediations and due process hearings brought under the Individuals with Disabilities Education Act (IDEA) filed by parents of children with Autism Spectrum Disorder (ASD), it's reasonable to conclude that school districts are having only a limited amount of success in addressing the needs of students with this complex disability.

The U.S. Centers for Disease Control (CDC) states that ASD is the second most common serious developmental disability after mental retardation. ASD is currently described in the Diagnostic and Statistical Manual, fourth edition (DSM-4 TR) as a group of developmental disabilities that cause significant social, communication and behavioral challenges, and encompass five subtypes: including autism, Asperger syndrome, Rett syndrome, childhood disintegrative disorder, and pervasive developmental disorder. According to the CDC approximately 1 in 110 children in the United States have ASD. Data compiled by the U.S. Department of Education indicate that in 2007 around 250,000 children with ASD, ages 6 through 21, were served under the IDEA.

Under the IDEA students with disabilities should have the opportunity to be educated with non-disabled peers, to the greatest extent appropriate ("least restrictive environment"). They should have access to the general education curriculum, or any other program that non-disabled peers would be able to access. The student should be provided with supplementary aids and services necessary to achieve educational goals if placed in a setting with non-disabled peers. Among reasons for educating students with ASD in inclusive educational settings is to provide them with opportunities to interact with nondisabled peers so they may learn and practice social and communication skills. However, many of these children manifest disability-related behaviors that cause them to be rejected by the same nondisabled peers with whom they need to interact.

Inclusion is unlikely to be successful for many children with ASD unless their school districts provide them with a sufficient amount of appropriate and individualized specially designed instruction so they can learn and practice appropriate behavioral responses to the situations that challenge them. Even when this is provided, inclusion still may not be successful unless and their school districts also provide education for their nondisabled peers that encourages them to interact with their classmates who have ASD and discourages them from engaging in behavior that constitutes bullying and harassment. When schools fail to adequately meet the needs of students with ASD, and fail to engage nondisabled peers in supporting them, research demonstrates that they can expect the aberrant and undesirable behaviors on the part of both groups to increase.

Before nondisabled peers can be trained to understand and interact with their classmates who have ASD, the school personnel working with both groups must have the knowledge and skills needed to understand and appropriately explain the altered manner in which students with ASD experience school environments and interactions, the ASD-related differences in communication and social skills, and the kinds of matters that contribute to discrepant behaviors. Unfortunately for all students, a number of educators and school administrators don’t know enough about ASD and how to write IEPs setting out methods and techniques that are likely to assist individual students with ASD -- and/or they may not be very good at implementing them.

Parents filing actions under the IDEA appear to be telling school district administrators and teachers that rather than blaming their children for being "poorly behaved," educators need to do a much better job of providing effective evidence-based interventions and programs that meet individual needs. Given the apparent gap between educator preparation and the level of preparation needed to provide children with ASD with a free and appropriate education (FAPE), this further indicates that public education agencies need to step up the amount and quality of education programs for educators and school professionals in order to provide them with sufficient information and training in the use of the specific methodologies and techniques that are most effective in providing appropriate services and modifying curriculum based upon the unique needs of individual children with ASD.

Document, Document, Document: Maintaining Your Child’s Special Education File

2012-02-04T10:28:00.000-08:00

Parents may not expect to get into disagreement with their child’s school district about whether their child with a disability is receiving special education and related services in compliance with the Individuals with Disabilities Education Act (IDEA) that are sufficient to satisfy the child’s right to a “free and appropriate education” (FAPE).

Whether or not a parent asks an attorney to become involved in dealing with such a disagreement, it’s important for parents to retain ALL of the documents, communications, and records related to their child’s disability-related needs, including the following:

• Emails, memos, and letters to and from the parent and the school district and area education agency (AEA) concerning any matter related to the child’s disability and/or special education services.

• Records of all requests by the parent in regard to evaluations, reevaluations, changes in services, and educational placement.

• Prior Written Notices to the parent provided by the school district and/or AEA in regard to actions proposed or refused by the school district and/or AEA.

• Individualized Education Program (IEP) documents

• IEP Team meeting notices and a list of people who actually attended each IEP meeting.

• Copies of parental consents and releases of information.

• Reports and letters from private medical, psychological, and therapeutic evaluations, consultations and services related to the child’s disability, and social, emotional, and academic progress.

• Reports and letters from all educational, psychological, and functional assessments and evaluations performed by the school district and AEA related to the child’s disability, and social, emotional, and academic progress.

• Records of all disciplinary and attendance matters.

• All grade report cards and IEP report cards/progress reports;

• All reports from school-wide standardized testing (e.g., the Iowa Tests, DIBELS, MAP, NWEAE);

• Records of the names of all medications taken by the child in connection with a disability or that have a bearing on his or her functioning;

• Parent notes and audio recordings from all IEP meetings.

If at all possible, scan hard-copy documents to pdf format, save them on a hard drive and back them up to an external hard drive, and title them by the date and type of document (e.g., 1-20-2012 7th Grade Autism Clinic Evaluation, 2-20-2012 7th Grade Iowa Tests Report, 4-1-2012 7th OT Evaluation).

Other tips that parents have found helpful include:

• Emails: Retain ALL emails sent by you or sent to you from anyone from the school district or area education agency. Before you change email services, forward those emails to your new account.

• IEPs and other documents: Upon receiving an document, immediately write the date you received it in the upper right hand corner and write any notes about its significance on an attached sticky note. File in order by date.

Office of Civil Rights Focuses Public Schools’ Attention on Students’ Rights Under the Americans With Disabilities Act and Section 504

2012-02-02T07:29:00.000-08:00

On January 19, 2012, in a letter to public schools, the U.S. Department of Education (USDOE) announced that it is stepping up its efforts to ensure that public schools are complying with the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973.

On behalf of the USDOE, Russlynn Ali, Assistant Secretary for Civil Rights (OCR) wrote that although the 2008 amendments to the ADA took effect three years ago, the OCR has become aware that public schools need guidance in regard to their related responsibilities. She stated that the OCR will be working to eliminate disability discrimination in public elementary and secondary schools by investigating complaints, conducting compliance reviews, issuing policy guidance, providing technical assistance, and working closely with the Department of Justice. For additional information, she referred schools to the USDOE’s publication titled “Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools.” That publication addresses the broadened definition of disability and the changes made by the 2008 amendments, explains how the amendments affect Section 504, and explains the obligations of school districts under Section 504 and the AEA.

The 2008 amendments broadened the definition of disability that schools must honor and asked districts to simplify the special education evaluation process. Specifically, they guaranteed that students may qualify for disability services even if they have a condition that affects them intermittently. In addition, they make it clear that a student may be eligible for special education services even if they are already performing well in school so long as they have an impairment that “substantially limits a major life activity,” according to documentation included in the Education Department correspondence. In effect, the amendments broaden the scope of students who school districts are required to evaluate for special education services. Additionally, the amendments state that the ameliorating effects of mitigating measures (other than ordinary eyeglasses or contact lenses) may not be considered in determining whether an individual has a disability; expands the scope of “major life activities” by providing nonexhaustive lists of general activities and major bodily functions, clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and clarifies how the ADA applies to individuals who are “regarded as” having a disability.

Parents May Be “Outvoted” at IEP Team Meetings, But Still Have Rights

2012-01-31T12:00:00.000-08:00

The U.S. Department of Education’s Office of Special Education Programs (OSEP) responded to a parent’s letter inquiring about IEP Team decision making in its Letter to Richards, 55 IDELR 107 (OSEP 2010). In the letter, OSEP stated that it is not appropriate for an IEP to make decisions about a child’s IEP by majority vote. OSEP also noted that while the IEP team should try to reach general agreement, the school district has the final responsibility for determining the appropriate services.

When parents and school districts disagree about a child’s IEP, parents commonly have the feeling that they have been, in effect, outvoted by the school district and area education agency (AEA) personnel at the meeting. While the law assigns school districts the final responsibility for determining appropriate services, it also requires that the district provide “prior written notice” of the school district’s decision regarding the child’s educational program and the parents’ right to request a due process hearing.

“Prior Written Notice” is notice given in writing to parents in regard to an action proposed or refused by the school district with respect to a child’s special education program. School districts are required to provide it whenever the district or AEA refuses to implement a parent’s proposal, or proposes to change a child's identification, evaluation, or placement. The proposal or refusal must be in regard to a matter over which the IEP team decision making authority.

The written notice must be provided to the parent after the district or AEA has made the decision to refuse or propose, but within a reasonable time before the district or AEA implements the proposed action. Before the action is implemented, the parent, district, or AEA has the right to request mediation or an impartial due process hearing on any proposed or refused action.

Prior written notice MUST contain the following:

∙ A description of the action proposed or refused.
∙ An explanation of why the district or AEA proposes or refuses to take the action.
∙ A description of the options the district or AEA considered and the reasons why those options were rejected.
∙ A description of each evaluation procedure, test, record, or report the district or AEA used as a basis for the proposed or refused action.
∙ A description of any other factors that are relevant to the district or AEA’s proposal or refusal.
∙ If the proposed action a change in the child’s identification, evaluation, or placement, when that action will be implemented
∙ The name and contact information about the person to whom the parent may address questions regarding the notice
∙ A statement that parents have the right to challenge the decision by invoking their rights under the IDEA’s procedural safeguards.

School districts MUST provide parents with prior written notice when they refuse or propose to do any of the following:

∙ Conduct or deny an initial evaluation
∙ Change or refuse to change a child’s services or placement
∙ Add, refuse to add, or terminate a service, support, or related service
∙ Change or refuse to change the means through which the child’s services are delivered
∙ Provide, deny, delete, or change a child’s access to Extended School Year services
∙ Add, change, or delete an IEP goal
∙ Whenever discipline results in a change of placement

Educating Children and School Personnel about Disabilities

2012-01-28T12:00:00.000-08:00

There has never been a greater need to familiarize school personnel and other students about the ways in which various disabilities affect the students who have them. The days when most students with disabilities were educated apart from their peers are long past. Today, as a result of the Individuals with Disabilities Education Act (IDEA) most children with disabilities spend at least part of the school day in general education classrooms with their nondisabled peers.

However, as experience continues to demonstrate, this increased proximity does not always translate into increased understanding on the part of teachers and nondisabled peers. Instead, research has shown that children with disabilities, whether visible or nonvisible, are more frequently bullied than their nondisabled peers. Those who have significant social skills and communication challenges as a core trait of their disability are at the greatest risk for bullying and marginalization. They are also the most likely to be rejected by their mainstream peers and struggle more with loneliness.

Educators who don’t understand the ways in which specific disabilities affect behavior are more likely to perceive children who have those disabilities as being poorly behaved and needing more discipline, are more likely to get into inappropriate power struggles with them. While children with autism spectrum disorder, psychiatric disorders, and other disabilities may at times willfully choose to engage in inappropriate behaviors, there is great risk when a teacher or administrator acts on an assumption that such a child’ behavior is willful. A history of being punished for behavior that arises from a disability is likely to result in low self-esteem, hopelessness, depression, and a lack of opportunities to learn alternative behaviors.

The process of teaching kids about disabilities can have a profound impact on the ways in which mainstreamed students interact with their special education peers. Rather than waiting until misunderstanding has resulted in harm to children with disabilities, the provision of information to teachers and students may help them understand why a child learns or behaves differently, and encourage them to avoid engaging in behavior that is hurtful. It may also help students who don’t know how to interact with children with disabilities, to learn how to do so, and open the door to peer relationships.

Before presenting disability information, teachers and parents should determine whether children with disabilities want to be included in the presentation, or whether this would make them uncomfortable. Some children may not want to participate, while others may be willing to engage in a question and answer session. Some presentations for young children include the use of picture books, while presentations for older students may reference various fiction and nonfiction books and resources available on the Internet.

Tuition Reimbursement is Not Automatically Barred When Placement is a School that Primaily Serves Students with Disabilities

2012-01-25T12:00:00.000-08:00

As an attorney practicing in Iowa, I take particular note of the special education opinions issued by the U.S. Eighth Circuit Court of Appeals, which has appellate jurisdiction over the federal district courts of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. Only the U.S. Supreme Court has greater authority than the Eighth Circuit to interpret the law that must be followed by those courts.

Last year, the Eighth Circuit decided a case that may be important to some parents of children with disabilities who are living in within its jurisdiction. In C.B. v. Special Sch. Dist. No. 1 (636 F.3d 981 (8th Cir. Minn. 2011), the Court reviewed a matter in which parents who believed a school district had violated their child’s right to a free and appropriate public education (FAPE) over a two year period, had placed their child in a private school, and requested that the school district reimburse them for the tuition expenses. In countering the parents’ request, the school district contended that among the reasons it had no duty to reimburse C.B.’s tuition was that his placement in a private school that primarily served students with disabilities did not accord with the IDEA’s least restrictive environment provision.

For the first time, in C.B., the Eighth Circuit joined the Third and Sixth Circuits in holding that a child’s placement in a school that primarily serves students with disabilities does not need to satisfy the IDEA’s preference that children with disabilities be educated in the least-restrictive environment. In finding that the placement was proper, the Court ordered the school district to reimburse the parents for the cost of C.B.’s tuition on the basis that: (1) the record in the case supported the conclusion that C.B.’s individualized education program (IEP) was not reasonably calculated to provide him with some educational benefit because year after year the district had failed to help C.B. achieve even trifling goals, and (2) the IDEA’s preference for mainstreaming does not automatically make placement in a private school that primarily educates children with disabilities an inappropriate private placement under the circumstances in C.B.’s case.

This decision doesn’t mean that parents who think their child isn't receiving a FAPE can enroll their child in a private school and assume that the school district will be required to pay the child’s tuition. However, it does set a precedent for the courts in the Eighth Circuit, which provides that in the Eighth Circuit, the IDEA’s “least restrictive environment” preference does not bar a court from ordering a school district to reimburse tuition on the basis that a private school is one that primarily serves students with disabilities.

Special Education Mediation

2012-01-22T12:00:00.000-08:00

The Individuals with Disabilities Education Act (IDEA) requires that state departments of education provide a process through which parents of children with disabilities have the opportunity to request a mediation conference to settle disagreements the assistance of trained neutral mediator, between the parent, school district, and area education agency. [20 U.S.C. 1415(e); 34 CFR 300.506] More specifically, the IDEA requires state departments to maintain a list of qualified mediators who are knowledgeable about special education law and trained in mediation techniques, compensate the mediators so that the process is free to both parents and school districts, and establish and implement procedures for facilitating mediation.

Unlike due process hearings, the law requires that mediation be voluntary on both sides. This means that if a school district opposes a parent’s request for mediation, a mediation will not be held. However, school districts and AEAs often prefer mediation to due process since there is little down-side to them other than their attorney fee expenses, which in some states, are covered by the school district’s and AEA’s insurer.

Other than the prospect of attorney fees, there is also little down-side for parents. Before thinking about filing a request and going it alone at a mediation, parents who think they cannot afford an attorney’s services should first speak with an attorney who represents parents in special education matters, and inquire how the attorney charges in regard to mediation proceedings.

Mediation does not delay a parent’s right to go forward in filing a due process complaint, if that is what the parent chooses. Filing a request for and engaging in mediation also does not delay the expiration of the two year statute of limitations on filing due process. After the mediation has been filed, unless the parents, school district and area education agency agree otherwise, the child involved in the mediation remains in his or her present educational placement pending the outcome of the mediation.

It is important to note that what people say during mediation is confidential, and may not be used as evidence in a later due process hearing or civil court proceeding. If the parties come to a verbal agreement In the course of mediation, then that agreement must be put in writing and signed the parents and a representative of the school district. The written agreement is enforceable in court, which is important because neither the parent nor school district are required to go through a due process hearing in order to enforce its terms.

Parents have the right to file mediation request to resolve special education disputes with their child’s school district and the area education agency pertaining to matters including the following:

Eligibility for special education services
Evaluations
Educational placement
Implementation of the IEP
Need for more/different special education and/or related services
Compensatory services
Outcome of a manifestation determination review
Provision of free, appropriate public education.

Due Process in Special Education Hearings

2012-01-19T08:15:00.000-08:00

When parents of children with disabilities ask why a due process is not simply called a trial, they are asking an important question that goes directly to their rights under the U.S. Constitution. The Fifth Amendment guarantees due process, stating that ""No person shall . . . be deprived of life, liberty, or property, without due process of law." This federal right is applied to state governments by the 14th Amendment, which provides that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Due process of law is a fundamental, constitutional guarantee. It means that when the government acts to take away life, liberty, or property, all legal proceedings will be fair and the people affected will be given notice of those proceedings and an opportunity to be heard. When the U.S. Supreme Court decided Goss v. Lopez (419 U.S. 565) in 1975, it held that state compulsory school attendance laws create a property right in education, and on that basis, public schools may not deprive a school aged child of the right to an education without ensuring that a fair process is available.

Under the Individuals with Disabilities Education Act (IDEA), parents and schools may request a “due process hearing” to resolve a dispute. Due process complaints are not filed in a state or federal district court, but rather through the state’s system for enforcing educational rights under the IDEA. In Iowa, a due process complaint is filed with the Iowa Department of Education, and heard by an administrative law judge in a formal proceeding that is much like a trial. At the hearing, both the parents and the school district present arguments and evidence.

When parents file a due process complaint, they are, in effect, suing the school district to enforce their child’s legal right to a free, appropriate, public education. Among the specific kinds matters they may ask the judge to address are:

The current IEP is not meeting the child’s needs
The IEP is not being implemented as written
The school’s refusal to evaluate the child
The school’s refusal or proposal to initiate or change the child’s identification
The school’s proposal or refusal in regard to the child’s educational placement
Disagreements with IEP Team decisions

United States Department of Education Submits Its Annual IDEA Report to Congress

2012-01-17T12:00:00.000-08:00

In December of 2011, the US Doe sent its annual report on the Individuals With Disabilities Education Act to Congress. This “annual” report is actually for the year 2008 and most of the data is from 2005-2006 school year. Nonetheless, it contains some interesting information. For example, among its key findings are:

• In 2006, a total of 6,081,890 students ages 6 through 21 were served under IDEA, Part B. Of these students, 5,986,644 were served in the 50 states, the District of Columbia and Bureau of Indian Education schools. This number represented 9.1% of the general population ages 6 through 21.

• In 2006, the largest disability category among students ages 6 through 21 served under IDEA, Part B, was specific learning disabilities (44.6%). The next most common disability category was speech or language impairments (19.1%), followed by other health impairments (9.9%), intellectual disabilities (8.6%) and emotional disturbance (7.5%).

• In 2005, 88.4% of full-time equivalent personnel (other than special education teachers) who provided special education and related services for children and students ages 3 through 21 served under IDEA, Part B, were fully certified.

• Children and students ages 3 through 21 who were served under IDEA, Part B, under the category of emotional disturbance had the highest rates of removal to an interim alternative educational setting by school personnel for drug or weapon offenses (0.49%) and by a hearing officer for likely injury to themselves or others (0.08%) in school year 2005–06, compared to children and students in all other disability categories.

You may read the report in its entirety at: http://www2.ed.gov/about/reports/annual/osep/2008/parts-b-c/30th-idea-arc.pdf

IEP Goals Must Be Comprehensive, Specific and Measurable

2012-01-16T12:00:00.000-08:00

Under the Individuals with Disabilities Education Act (IDEA), an IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the child’s needs resulting from his or her disability so that the child can be involved in and make progress in the general education curriculum and meet each of the child's other educational needs that result from the child's disability. 20 U.S.C. § 1414(d)(1)(A)(i)(II). As this indicates, IEP goals may NOT be merely broad statements about what the team thinks that a child will accomplish in a year. Instead, a child’s (IEP) must specifically identify ALL of the child’s needs, detail how the school will meet them, and make objective measurements of his or her progress on each goal.

Goals that are not specific and measurable and do not include academic and functional goals, then IEP is defective and open to a challenge that it denies the child a FAPE. A student receives FAPE if the education (1) addresses the student's unique needs, (2) provides adequate support services to allow the student to take advantage of the educational opportunities, and (3) is in accord with the individualized education program. See Bd. of Educ. v. Rowley, 458 U.S. 176, 188-189 (U.S. 1982) (defining FAPE as "educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child 'to benefit' from the instruction . . . [and] such instruction and services . . . comport with the child's IEP").

It is also important to note that schools must revise an IEP to address any lack of expected progress toward goals and/or in the general education curriculum, the results of new evaluation, or new information about the child provided by the child’s parents. 20 U.S.C. § 414(d)(4)(A)(11).

Scientifically Based Instructional Practices and Research Based Interventions

2012-01-14T12:00:00.000-08:00

In enacting the 2004 amendments to the Individuals with Disabilities Education Act (IDEA 2004), Congress found that the provision of effective special education and related services “has been impeded by the failure of schools to apply replicable research on proven methods of teaching and learning.” On that basis, in the amendments Congress required that schools use scientific research-based instructional practices and interventions based on accepted, peer-reviewed research, when such research exists, and made references to “scientifically based instructional practices” and “research based interventions.” For example:

• a child’s IEP must include “a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable to be provided to the child.” (Section 1414(d)(1)(A)(i)(IV)

• in determining whether a child has a specific learning disability, IDEA 2004 describes a process by which the IEP team “may use a process that determines if the child responds to scientific, research based intervention as a part of the evaluation process.” (Section §1414(b)(6)(B))

Although nearly eight years have passed since the 2004 amendments were enacted, it's still not unusual to find IEPs that set out plans which are not peer-reviewed or supported by scientific research. This is surprising given the wealth of resources available on Internet that may be accessed using browsers such as Google and Google Scholar. In addition to online journals, Among the many websites that provide information for teachers working with children with disabilities are online journals, and federally sponsored sites that include: http://ies.ed.gov/ncee/wwc/, http://www.osepideasthatwork.org/index.asp, http://www2.ed.gov/rschstat/research/pubs/rigorousevid/index.html.

Bullying, Harassment, and Children with Disabilities

2012-01-13T12:00:00.000-08:00

While both Section 504 of the Rehabilitation Act (section 504) and the Americans with Disability Act (ADA) prohibit discrimination on the basis of disability, children with disabilities are bullied at public schools more frequently than their nondisabled peers. In view of this, schools should take note that three United States circuit courts of appeals have directly held that bullying of students with disabilities may amount to a failure to provide a free and appropriate education [see T.K v. New York City Department of Education, 779 F.Supp.2d 289 (E.D.N.Y, 2011)].

The Office of Civil Rights enforces Section 504 and the ADA. In a “Dear Colleague Letter” dated October 26, 2010, Assistant Secretary for Civil Rights Russlynn Ali reminded schools that student misconduct that falls under a school’s anti bullying policy also may trigger the school’s responsibilities under these federal anti-discrimination laws and that these laws may be violated when peer harassment creates a hostile environment and the harassment is tolerated, not adequately addressed, or ignored by school employees. This was followed by missive dated December 16, 2010, from Secretary of Education, Arne Duncan,titled the “Secretary of Education Bullying Law and Policy Memo.”

The U.S. Department of Education defines disability harassment as “intimidation or abusive behavior based on disability that creates a hostile environment.” Children who have deficits in the areas of social and communication skills are at the greatest risk for bullying and victimization. When harassed or bullied, they experience peer rejection, are marginalized from their schoolmates, have fewer opportunities to learn from peers who model appropriate social skills, and are more likely to struggle with loneliness. After the Columbine massacre, it was not surprising to learn that a study of thirty-seven school shootings found that in two-thirds of of those incidents, the shooters described themselves as feeling bullied, persecuted, or threatened at school.

Bullying and harassment take many forms, including verbal and nonverbal behavior, and conduct that is physically threatening, harmful, and humiliating. Reports of incidents in which children with disabilities have been bullied and harassed at school are legion. They include situations in which elementary school bullies bait children with significant social skills deficits until they strike out or have a full-blown meltdowns, and play cooties-type "games" in children who have been touched by the child with a disability are declared to have that child's “germs.” They also include situations in which bullies use the school's Bully Reporting Procedures to falsely report inappropriate conduct on the part of a child with a disability.

No Liability for Teachers? Think Again.

2012-01-12T12:00:00.000-08:00

Every so often, a teacher or administrator claims that he or she has no personal liability for acts performed in the course of his or her job. Not so, said the Eighth Circuit Court of Appeals in a 2011 case that involved a public teacher who singled out a student with a disability for mistreatment. Mathers v. Wright, 636 F.3d 396, 397-398 (8th Cir. Mo. 2011).

The child, J.S.J., was a fifth grade student with disabilities. The Eighth Circuit accepted as true, for the purposes of the ruling, the allegations by J.S.J.’s mother, who said that her daughter’s classroom teacher had singled J.S.J. out for mistreatment on the basis of her disability, and that the mistreatment continued throughout the school year. Specifically, she claimed that the teacher (1) refused to teach J.S.J., and allowed her to play instead; (2) kept J.S.J. in from recesses and mandatory fire drills and assigned a classmate to watch her while the rest of the class had recess; and (3) forced J.S.J. to crawl on the floor.

In reviewing the matter, the Eighth Circuit considered: (1) whether the teacher’s conduct went beyond the scope of professionally acceptable choices and thereby violated J.S.J's equal protection rights; and (2) whether a reasonable teacher in her position would understand that such conduct violates a student’s right to equal protection. Mathers v. Wright, 636 F.3d at 399). It found the allegations regarding the teacher’s mistreatment of J.S.J. stated an equal protection violation on the basis that a reasonable teacher in her position would have recognized as much, and that the teacher was not entitled to qualified immunity at that stage of the proceeding. Id. at 402.

A teacher or school official who is sued in his or her individual capacity is entitled to qualified immunity so long as her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, (1982). In Heidemann v. Rother, the Eighth Circuit held that school officials who, on the advice of a licensed school therapist used a blanket as a binding restraint on a disabled student did not violate the student's rights because the restraint technique was not "beyond the scope of professionally acceptable choices." 84 F.3d 1021, 1031 (8th Cir. 1996). In Heidemann, the Court noted that even if the conduct had violated the student's rights, the school personnel would be entitled to qualified immunity unless a reasonable official would have recognized that the conduct constituted a violation. Id. at 1029.

Rowley and Why it is a Mistake for a School District to Declare that a Child is Ineligible for Special Education On the Basis that He or She is Receiving Passing Grades

2012-01-10T09:54:00.000-08:00

Recently I reviewed the facts of another case in which a school and area education agency decided that they did not suspect that a child has a disability because the child has passing grades and is not subject to grade retention. Like other schools and AEAs who have made the same claim, they cite Board of Education v. Rowley in support of that decision. Those agencies might be surprised to learn that in Rowley, the U.S. Supreme Court held that while passage from grade to grade is one important indicator of whether an educational benefit has been conferred, it is not the sole criterion but should be "in the mix" of other considerations. Board of Education v. Rowley, 458 U. S. 176 (1982).

Rowley Briefly: The Rowley case was brought on behalf of, Amy Rowley, a public school student who had a severe hearing disability. The individualized education program (IEP) for her first grade year stated that she would be educated in a regular classroom, use the FM device, and receive instruction from a tutor for the deaf for one hour daily and from a speech therapist for three hours per week. In addition, the Rowleys asked that Amy be provided a qualified sign language interpreter in all her academic classes. When their request was denied, they requested an administrative hearing. After the evidence was presented, the hearing officer decided that an interpreter was not necessary because "Amy was achieving educationally, academically, and socially" without an interpreter. The Rowleys brought a subsequent action in the United State District Court for the Southern District of New York, claiming that the school’s denial of the interpreter was a denial of the "free appropriate public education" guaranteed by the Act, which affirmed the hearing officer’s decision. When the case reached the U.S. Supreme Court, the Court saw things differently. In ruling that Amy’s good grades did not make her ineligible for an interpreter, it stated that while passing from grade to grade is one important indicator of whether an educational benefit has been conferred, it is not the sole criterion but should be "in the mix" of other considerations.

What Is The IDEA? An Overview.

2012-01-09T15:12:00.000-08:00

For my first blog post, I'm going to quickly cover a few IDEA basics.

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C.S. § 1400 et seq.) is the federal statute that requires states receiving federal education funds to provide each child with a disability between the ages of 3 and 21 with a free and appropriate public education (FAPE) designed to meet the child’s unique needs. The IDEA defines a FAPE as special education and related services that are provided at public expense and meet federal and state standards, and requires that each child be educated in the least restrictive environment and that, to the maximum extent appropriate.

The IDEA requires that public schools and area education agencies (AEAs) to provide the special education and related services according to the plan set out in an individualized education program (IEP), that has been developed by an IEP Team. Iowa’s schools and AEAs must ensure that IEP team meetings are attended by: the child’s parent(s) or guardian(s); at least one of the child’s general education teachers if the child is, or may be, participating in the general education environment; at least one of the child’s special education teachers; a representative who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities and who is knowledgeable about the Iowa Core Curriculum and the availability of resources of the public agency; an individual who can interpret the instructional implications of evaluation results; at the discretion of the parent, AEA, or school, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and when appropriate the child with a disability. The school and AEA must document attempts to set a mutually agreed upon time and place for an IEP meeting with parents, and if a parent can’t attend in person, he or she may participate through the Iowa Communication Network, video conferencing, web cam, or conference call.

In writing the IEP, the IEP Team must consider the child’s strengths, the parent’s concerns, and the results of the child's most recent evaluation. The IEP must include, among other things, a statement of the child’s present levels of performance; a statement of measurable annual goals, including benchmarks or short-term objectives; and a statement of the special education and related services and supplementary aids and services to be provided to the child.

In addition to preparing an IEP, the IDEA requires schools and area education agencies to comply with various procedural safeguards that are designed to ensure, among other things, that the child's parents or guardians have a meaningful opportunity to participate in the process. Those safeguards include requirements that the parents be afforded an opportunity to inspect relevant records; obtain an independent educational evaluation; and to present complaints regarding their child's education and placement.

DISCLAIMER: This blog is not intended as legal advice. If you need legal advice in regard to special education matters, you are encourage to contact an attorney who practices in this area.