Thursday, February 26, 2015

Breaking: Feds Issue Guidance on Protecting Student Privacy #StudentPrivacy

The United States Department of Education announced on its blog today that it has issued new guidance on protecting student privacy while school districts use online educational services and apps.  The guidance was issued in the form of a You-Tube video.

OK I am at serious risk for sounding like the cantankerous old-timer here, but I remember when the feds did not have a blog and couldn't find You-Tube to save their lives.  Ah, the times they are a changin'. (Please tell me that you know who Bob Dylan is young-un's.) 

You can read the blog post here.  The guidance on You-Tube may be found here.  I'll also try to embed the video:

OK - if you work for a school district, check out this guidance and tell us what you think.

Tuesday, February 24, 2015

State Complaint Procedures - The Other White Meat

I recently became a state complaint investigator for two state education agencies: the South Dakota Department of Education and the New Mexico Public Education Department.  I don't think we talk enough about state complaints here.  Most of the caselaw in this fast-growing field of law deals with due process hearings, but state complaints remain an important procedural safeguard for parents and non-parents, and the only sure way to test systemic issues.  Time for a refresher course on state complaints.  So this post provides some basic information about state complaints.

State Complaint Procedures (NOTE these are different from due process complaints which lead to due process hearings; these are complaints investigated by the state department of education.)

Each state education agency must maintain a state complaint procedure. 34 C.F.R. §§300.151-300.153. OSEP has stated that the state complaint system is required even though Congress has not specifically provided or addressed a state complaint system in the IDEA. 71 Fed. Register No. 156 at page 46606 (August 14, 2006).

Within one year of an alleged violation of the Act, any entity (including a parent or an advocacy group) may file a state complaint. 34 C.F.R. §§300.151-300.153. A ruling is required within 60 days subject to extension for exceptional circumstances or an agreement to mediate. 34 C.F.R. §300.152. Only agreement, and not consent, is required to extend the 60 day time limit for processing complaints. 71 Fed. Register No. 156 at page 46604 (August 14, 2006). Here is an analysis by the former Regional Resource Centers concerning how the exceptional circumstances exception should be applied. Where a state complaint and a due process hearing are requested on the same topic, the complaint investigator must set aside the portion of the complaint being addressed by due process until the hearing officer issues a decision. 34 C.F.R. §300.152(c). 71 Fed. Register No. 156 at page 46606 (August 14, 2006).

Where a state complaint investigator finds that IDEA has been violated, a corrective action is ordered. The relief that may be awarded includes compensatory education and reimbursement. 34 C.F.R. § 300.151(b). The purpose of this change to the federal regulations in 2006 was to make it clear that states have broad flexibility in awarding an appropriate remedy in resolving state complaints. 71 Fed. Register No. 156 at page  46602 (August 14, 2006).

When a state has finished processing a state complaint, a party who disagrees with the result may file a due process hearing complaint on the same issue if the statute of limitations has not passed. 71 Fed. Register No. 156 at page 46607 (August 14, 2006).

Here is the OSEP Topic Brief on State Complaint Procedures. 

See also, the  Memo to Chief Sch Officers Re Dispute Resolution Procedures Under Part B of IDEA 61 IDELR. 232 (OSEP 7/23/13) The 64 page Q & A attachment includes a detailed Q & A section on state complaints. You can review the memo and Q & A document here.

Monday, February 23, 2015

Weekly Question!

As we wind down our series on bullying of kids with disabilities, have you found the series to be helpful? What other series would you like to see in future posts?

Wednesday, February 18, 2015

Tech Issue Revisiter; Zemanta,R.I.P #SpecialEdLawBlog



So I tried just not using the Zemanta images/photographs, but a couple readers said that the problem persisted. Apparently some readers, especially those who open their subscription emails with MS Outlook, suffered through excruciating delays and redirection to Zemanta or other websites. You can read more about the issue here.  

Some readers had suggestions, but nothing worked. So I contacted Zemanta and requested technical support, but they ignored my request.  So I stopped using the images, but that didn't work.  

So OK now I have removed the Zemanta extension from my browser; uninstalled the program from my computer; removed all vestiges of Zemanta from my life; and dashed off a nasty note to them for ignoring my previous request for help.

So good readers, please know that I have killed Zemanta, at least insofar as it relates to me and this blog.  The result will be fewer images and links and related articles,  but our readers will not be going crazy- or at least not because of Zemanta related do loops. We cherish our readers and do not want them flipping out!

In other and unrelated tech news: occasionally people ask me what is the best way to read the blog?  Well the answer is which ever way is best for you.  I recommend that you take a free subscription on the lefthand side of the blog. You can subscribe by email or have the posts appear via RSS feed in a reader or aggregator. Other folks follow our posts on Facebook or read the headlines via Twitter.  Some follow our microblog on Tumblr. Some people just bookmark or follow this blog directly. Others read the posts on LinkedIn. You should also check out our Special Education Law Group on LinkedIn which now has over 19,000 members.  Lots of good discussions and activities.  Links to all of these things are available on the lefthand side of the blog.

Also available on the lefthand side of the blog are all sorts of useful resources.  There are YouTube videos of me being interviewed by CADRE.  There are links to the federal law and regulations, an information clearing house, CADRE, our LinkedIn group and many other sites that special ed stakeholders may find useful. Please check it out and let me know what you think. There is a wealth of good information there.

If you know of other resources that you'd like to see mentioned here, please let me know.  We do not promote websites that favor one side or the other; we are impartial here, but otherwise we are interested in promoting helpful resources.  Let me know.  

Tuesday, February 17, 2015

Bullying of Kids With Disabilities - P.S. VI: TK-II

The TK decision which we featured in our recent series on bullying is the leading case on bullying and which I think articulates a new FAPE BULLYING standard came back to the District Court  The case came back to the District Court after having been remanded to the State Review Officer, and the court issued its decision in late July, 2014. For clarity, I'm calling the remand decision TK II.

 On remand, the SRO found that the parents had not shown that the bullying substantially affected the student’s educational performance and denied reimbursement for a unilateral placement, but the district court reversed. The court held that the FAPE bullying standard is as follows: A disabled student is deprived of a FAPE when school personnel are deliberately indifferent to or fail to take reasonable steps to prevent bullying that substantially restricts a child with learning disabilities in her educational opportunities.  The conduct does not need to be outrageous in order to be considered a deprivation of rights of a disabled student. It must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment. When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if the harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination.  The rule does not require that the bullying would have prevented all opportunity for an appropriate education, only that it was likely to affect the opportunity of the student for an appropriate education. Applying this standard, the court ruled that the student’s educational opportunities were substantially restricted by bullying and that the IEP team substantively denied FAPE by failing to address bullying. TK & SK ex rel LK v. New York City Dept of Educ   63 IDELR 256 (EDNY 7/24/14)

Wow that's a lot to digest.  What do you think about the standard articulated by the court? You can read the second  district court opinion here.

Monday, February 16, 2015

New Weekly Question!

As we wind down our series on bullying of kids with disabilities, have you found the series to be helpful? What other series would you like to see in future posts?

Friday, February 13, 2015

Jury Duty #juryduty

This does not really relate to special education law, but I have been called to jury duty.  So as a heads up if posts die down all of a sudden, it  will likely be because i am doing my civic duty.

It is very unlikely that I will ever serve on a jury for a number of reasons. Rather than weasel out of it, however, I am making myself available to be rejected numerous times by a wide variety of lawyers.  It would be fun and no doubt enlightening to see the other side of the justice system in action.  I fear, however, that  although willing, I won't be impaneled.

Anyway if I get quiet suddenly, this is most likely the cause.