AASA, the Emperor's New Clothes, Special Education Mediations and Due Process Hearings

In Hans Christian Andersen's story, The Emperor's New Clothes, a vain king with an insatiable appetite for fine clothing, finds himself marching in a parade wearing nothing but his birthday suit. He is the victim of his obsession with sartorial splendor, and of a pair of swindlers who have told him that his "new clothing" is made from such wonderful stuff that it is invisible to anyone who is incompetent or stupid. After an elaborate charade in which the king is "dressed" in the new garments, his lord chamberlain, ministers and advisors who are fearful of losing their jobs, public recognition, and authority, heartily engage in the fraud proclaiming, "How beautiful the Emperor's new clothes are!" Notwithstanding their falderal, upon seeing the king walking naked in public, a small child says, "He doesn't have anything on!" Although the king knew the child was right, he decided that the parade would go on, and holding himself even more proudly, he continued the procession with the lord chamberlain walking along behind him carrying the train of his nonexistent coat.

This story came to mind when I read the 30 page paper issued on April 8, 2013, by the AASA (American Association of School Administrators). In it, the AASA recommends that Congress completely eliminate special education due process hearings and remove the provisions of the IDEA that make mediation agreements legally binding and allow attorneys to represent parents at those mediations. The AASA proposes to replace the procedures with state-approved IEP meeting facilitators, non-binding mediation, and provisions allowing parents to file law suits directly in federal court (think $$$ for the parents) without an opportunity to resolve disputes through state department of education administrative hearings.  Since due process hearings are less expensive than federal court proceedings, this would place an additional burden on parents who need to challenge school decisions.

What kind of thinking underlies proposals that would essentially place the fox in charge of the hen house? Are the AASA’s recommendations merely based on an arrogant and naive assumption that public education systems and their personnel are so highly expert and scrupulously thorough that they identify and accurately evaluate each and every child with a disability in every area of their suspected disabilities, write IEPs in a manner that will meet each child’s unique needs and conforms to the law, and that the school personnel who implement them are all equally competent and effective, and neither harbor prejudices nor have their hands tied by restrictions in regard to the assistance they are allowed to recommend or provide?

I don’t think so.

It seems more likely that like the king in the story above, the AASA and its members know when the education systems and personnel they represent aren’t appropriately garbed. But instead of acknowledging and taking responsibility for the nakedness of those systems and personnel, they prefer to advocate for the elimination of the mediation and due process hearing procedures that have an inconvenient tendency to reveal that public education agencies and school districts don’t always operate in compliance with the IDEA and its implementing regulations. By extension, the AASA would probably also support the elimination of studies, such as the one conducted by the federal Department of Education in 2009, which found that only twenty-eight states met the IDEA’s compliance standards.

If the AASA’s proposals demonstrate anything, they demonstrate the kind of overreaching on the part of public school agencies that Congress anticipated when it enacted the portions of the IDEA which afford procedural protections to the parents of children with disabilities.  I join with COPAA (Counsel of Parent Attorneys and Advocates) which has stated that the AASA document is nothing more than a shameful attack on parent and student civil rights.  See COPAA's statement at:  http://www.copaa.org/news/121292/AASA-Document-Nothing-More-Than-A-Shameful-Attack-on-Parent-and-Student-Civil-Rights-.htm

School Suspensions and Expulsions

Suspensions and Expulsions Generally

            In regard to students who are not receiving or eligible for special education services, the State of Iowa vests authority to expel a student from a public school in the school boards of each Iowa school districts.  Iowa Code § 282.4(1).  A school board may, by a majority vote, expel a student for a violation of the regulations or rules established by the board, or when the presence of the student is deemed to be detrimental to the best interests of the school.  The board may confer upon any teacher, principal, or superintendent the power temporarily to suspend a student, notice of the suspension being at once given in writing to the president of the board.

            Although students of mandatory school attendance age do not have a Constitutional right to a public education, in Goss v. Lopez, the U.S. Supreme Court held that state attendance laws provide them with a property right in receiving a public education.  On this basis, the Court ruled that a school district cannot expel a student without first providing “due process” to ensure the right isn’t taken away arbitrarily for more than ten days. 

            Under Iowa law, if a student breaks a school rule punishable by expulsion or a suspension of more than ten days, due process procedures are required, which culminate in a hearing before the school board.  In making its decision about whether to suspend the student for more than ten days, or to expel him or her for a year, the board is charged with considering “the best interests of the school district” and “what is best to protect and ensure the safety of the school employees and students from the student committing the assault.”

            When a student is alleged to have committed an action that is punishable by expulsion, due process under Goss requires that prior to the hearing, the school district must provide written notice by regular U.S. mail to the parents and student.  According to the School Administrators of Iowa, the notice should state the specific school rule that the student is accused of violating AND specifically state that expulsion is being considered or recommended.  The school district must schedule a an expulsion hearing before its school district board of directors, within ten days from the date the student was excluded from school.  

            The purpose of the written notice is to allow the student to prepare a meaningful defense.  When a school district fails to provide this notice, it violates the student’s due process rights. See In re Guthrie, 19 D.o.E. App. Dec. 306 (2001).  The School Administrators of Iowa recommend that if the school district plans to introduce evidence of the student’s past disciplinary history, this should be stated in the notice.  In addition, the notice should provide:

·         The date, time, and place of hearing

·         A recital of the rights of the parents and student

·         The names of witnesses who the school expects to give evidence and testimony

·         The parent and student’s right to counsel of his or her choice at their own expense

·         The right to cross-examine witnesses against the student

·         The right of the parent and student to produce witnesses to testify on the student’s behalf

·         The right of the parent and student to copies of documents supplied to board members

·         The right to a closed hearing unless an open hearing is specifically requested

            The student is entitled to a decision by an impartial decision maker. This notwithstanding, it is notable that Iowa law does not require a school board member who is biased in favor of or against the student, to recuse him or herself.  Nonetheless, if such a board member fails to do so, this issue may be raised on a later appeal by the student to the Iowa Department of Education. See generally, 281 IAC 6.1(290).

            At the hearing, after the student and school district have presented their witnesses and evidence, the school board goes into closed session to decide the case.  According to the School Administrators of Iowa closed sessions are always taped.  After the board has announced its decision at the hearing, the student and parents are entitled to receive written "findings of fact and conclusions of law."  See In re Shinn (14 D.o.E. App. Dec. 185 (1997)) which states that the due process rights of an expelled student include written findings and conclusions as to the charges and penalty.  The Findings of Fact section should summarize the testimony of those who testified about the guilt or innocence of the student.  The "Conclusions of Law" part of the written decision should set out the penalty the board has chosen.

            A parent who disagrees with the school board’s decision may appeal an expulsion decision to the Iowa Department of Education by filing a complaint requesting a due process hearing before an administrative law judge. 

Suspensions and Expulsions under the IDEA

            The above-described procedures apply to students who are not receiving special education services under the Individuals with Disabilities Education Act (IDEA). 20 USC § 1400 et seq.  Under the IDEA and its implementing regulations, a school district may suspend or move a student with a disability to an interim alternative educational setting for not more than 10 school days (consecutively or per school year) if under the circumstances a nondisabled student would be treated in the same manner for the same violation.

Change of Placement

            However, with respect to disciplinary removals of a student covered by the IDEA from the student’s current educational placement, a “change of placement” occurs if a student is removed for more than than ten consecutive school days; or the student has been subjected to a series of disciplinary removals totaling more than ten school days within a school year.  See 34 CFR 300.530 through 300.535.

Manifestation Determination

            If a student covered by the IDEA will be excluded from school for disciplinary reasons for over ten days (consecutively or within one school year), the IDEA requires the IEP team to make a decision within ten days of that exclusion to determine whether or not the offending behaviors were a "manifestation" of the student’s disability. 20 USC §1415(k)(4)(B),(C);  20 U.S.C. 1415(k)(1)(A) and (E).  This process, referred to as a “manifestation determination.” 34 CFR § 300.530(a) and (e). 

            The behavior must be determined to be a manifestation of the child’s disability if the parent and relevant members of the child’s IEP Team determine that:

·         the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

·         the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.

If Behavior is Determined to be a “Manifestation”

            If the IEP team determines that either of the above conditions applies, except for the following exception and the 45-day provisions described below, the school district cannot legally suspend the student beyond ten days, and the IEP team must conduct a functional behavior assessment and implement a behavior improvement plan for the student.  If a behavior improvement plan has already been developed, it must be reviewed and modified it as necessary to address the behavior.  

            Even if the IEP team determines that the behavior was a manifestation of the student’s disability, the school district may file for a due process hearing and ask the administrative law judge to order that the student receive services in an interim alternative educational placement for up to 45 days, on the basis that maintaining the student in his or her current placement "is substantially likely to result in injury to the child or to others." 20 USC § 1415(k)(3)(A). 

If Behavior is Not Determined to be a “Manifestation”

            If the team finds that the behavior was not a manifestation of the student’s disability, the school can suspend the student for the same amount of time that it would suspend a student without a disability for the same violation, but it must still provide ongoing education under the student’s IEP during the suspension.

The 45-day Rule

            Whether or not the IEP team determines that the behavior was a manifestation of the student’s disability, the IDEA specifically authorizes school districts to unilaterally (i.e., without the parent's consent) remove a student to an interim alternative educational setting for not more than 45 school days if the student carries a dangerous weapon to school or a school function, knowingly possesses, uses, sells or attempts to sell illegal drugs at school or at a school function, or inflicts serious bodily injury upon another person while at school or at a school. 20 U.S.C.S. § 1415(k)(1)(G)(i); 34 C.F.R. § 300.530(g).  The placement must include services to address the behavior for which the student is being suspended in the first place.     

            The IDEA provides that the interim alternative educational setting shall be determined by the IEP team and not the school district or AEA.  Doe v. Todd Co. Sch. Dist., 625 F.3d 459 (8th Cir. 2010), cert. den., 132 S. Ct. 367 (2011); 20 U.S.C.S. § 1415(k)(2); 34 C.F.R. §§ 300.530(d)(5), 300.531. 

Student who Might Be Deemed to Have a Disability

            A child who has not been identified as eligible for special education, who has engaged in behavior that violated a school rule, may assert any of the protections provided for in the IDEA if the school district had knowledge that the student had a disability before the behavior that precipitated the disciplinary action occurred. 

            The IDEA deems a school district to know that a student has a disability if, before the behavior that precipitated the disciplinary action occurred:

·         The parent of the child expressed concern in writing to the school district or AEA that the student is in need of special education;

·         The parent of the student requested an evaluation of the student pursuant to 34 CFR 300.300 through 300.311; or

·         A teacher of the student, or other personnel of the LEA, expressed specific concerns about a pattern of behavior demonstrated by the student to the director of special education of the school district or AEA, or to other supervisory personnel of the school district or AEA. 34 CFR 300.534(a) and (b); 20 U.S.C. 1415(k)(5)(A) and (B).

            A school district is not be deemed to have knowledge that a student has a disability if the student’s parent has not allowed an evaluation of the student pursuant to 34 CFR 300.300 through 300.311, has refused special education services; or the student has been evaluated in accordance with 34 CFR 300.300 through 300.311 and determined to not be a child with a disability under the IDEA. 34 CFR 300.534 (c); 20 U.S.C. 1415(k)(5)(C).

 

Appeals

            The parent of a child with a disability who disagrees with any decision regarding placement under 34 CRF 300.530 and 300.531, or the manifestation determination under 34 CFR 300.530(e), or a school district that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting an expedited due process hearing.  34 CFR 300.532(a); 20 U.S.C. 1415(k)(3)(A).  When an appeal is filed by either the parent or the school district, the child must remain in the interim alternative educational setting pending the decision of the ALJ or until the expiration of the time period specified in 34 CFR 300.530(c) or (g), whichever occurs first, unless the parent and the state department of education or school district  agree otherwise.  34 CFR 300.533; 20 U.S.C. 1415(k)(4)(A).

            After hearing the appeal, the administrative law judge (ALJ) may sustain the placement decision, or may:

·        Return the child with a disability to the placement from which the child was removed if the ALJ determines that the removal was a violation of 34 CFR 300.530 or that the child’s behavior was a manifestation of the child’s disability; or

·         Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

            The Iowa Department of Education is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed.  After the hearing is completed, the ALJ must make a determination within ten school days after the hearing. 

            Unless prior to the due process hearing, the parents and school district agree in writing to waive the resolution meeting described in 34 CFR 300.532(c)(3)(i), or agree to use the mediation process described in 34 CFR 300.506:

·         A resolution meeting must occur within seven days of receiving notice of the due process complaint; and

·         The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the due process complaint.

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

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.

Bullying, Harassment, and Children with Disabilities

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.