Thursday, April 23, 2015

Special Education Law 101 - Part IV #LRE

In the previous posts in this series, we have introduced you to the requirement of  FAPE.  In this installment, we discuss the separate but equally important requirement of LRE.


The Requirement of LRE (least restrictive environment)

 people are surprised to learn that IDEA does not mention the word "mainstreaming."  IDEA does require, however, that to the “…maximum extent appropriate, children with disabilities … are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”    IDEA, § 612(a)(5).  See, 34 C.F.R. §§ 300.114 to 300.119.

The Supreme Court has not yet ruled on the issue of LRE, but a number of Circuit Courts of appeal have provided some guidance.  For example, the Fifth Circuit has developed a two pronged analysis: the first question is whether education of the student with a disability in the regular classroom, with the use of supplemental aids and services, can be satisfactorily achieved, and if it cannot, whether the school district has provided the student with interaction with non-disabled peers to the maximum extent appropriate. Daniel RR v. State Board of Education 874 F.2d 1036,  441 IDELR 433 (5th Cir. 1989). 

     The Ninth Circuit has developed four factors which must be balanced to determine the LRE placement: (1) the educational benefits available to the student in a regular classroom, supplemented with appropriate aids and services, as compared with the educational benefits of a special education classroom; (2) the non-academic benefits of interaction with children who were not disabled; (3) the effect of the student's presence on the teacher and other children in the classroom; and (4) the cost of mainstreaming the student in a regular classroom. Sacramento City Sch Dist v. Rachel H by Holland 14 F.3d 1398, 20 IDELR 812 (9th Cir. 01/24/1994).

          The Fourth Circuit has stated the rule this way: “The Act's language obviously indicates a strong congressional preference for mainstreaming. Mainstreaming, however, is not appropriate for every handicapped child …The proper inquiry is whether a proposed placement is appropriate under the Act. In some cases, a placement which may be considered better for academic reasons may not be appropriate because of the failure to provide for mainstreaming… In a case where the segregated facility is considered superior, the court should determine whether the services which make that placement superior could be feasibly provided in a non-segregated setting. If they can, the placement in the segregated school would be inappropriate under the Act. Framing the issue in this manner accords the proper respect for the strong preference in favor of mainstreaming while still realizing the possibility that some handicapped children simply must be educated in segregated facilities either because the handicapped child would not benefit from mainstreaming, because any marginal benefits received from mainstreaming are far outweighed by the benefits gained from services which could not feasibly be provided in the non-segregated setting, or because the handicapped child is a disruptive force in the non-segregated setting.”  DeVries v. Fairfax County Sch Bd 882 F.2d 876, 441 IDELR 555 (Fourth Cir. 1989)

Recently the Second Circuit decided TM by AM & RM v Cornwall Central Sch Dist 752 F.3d 145, 63 IDELR 31 (2d Cir 4/2/14) and held that an LRE violation is a substantive (not procedural) violation of IDEA. The LRE requirement applies to Extended School Year programs in the same manner that it applies during the regular school year. Because ESY is necessary to prevent substantial regression, LRE fully applies even if the district does not offer a mainstream ESY program (can consider private programs).

LRE and FAPE are the twin towers of special education law.

Monday, April 20, 2015

Weekly Question!

We are now running a new series which is an updated version of our previous series: An Introduction To Special Education Law. Are there any topics that we have not covered in the past that you would like to see in this Special Ed Law 101 Series? Are you enjoying the series?

Friday, April 17, 2015

Special Ed Law 101 - Part III #SpecialEdLaw101

In the previous posts in this series we have looked at the sources of special education law and discussed the critical concept of FAPE.  Today we look at some important decisions by U. S. Courts of Appeal taking FAPE in some interesting directions:

In Deal v. Hamilton County 392 F.3d 840, 42 IDELR 109 (6th Cir. 1//16/04), the Sixth Circuit held that where the school district had already predetermined the student’s program and services before the IEP Team meeting, the parents were denied the opportunity to meaningfully participate in the IEP process.  Accordingly, the district denied FAPE for the student.   

          In Shore Regional High Sch. Bd. of Educ. v. P.S. 381 F.3d 194, 41 IDELR 234 (3d Cir. 8/30/04), the Third Circuit held that a school district’s failure to stop bullying may constitute a denial of FAPE.  Despite repeated complaints by the parents the bullying continued; the student became depressed and the school district developed an IEP.  The harassment continued and the student attempted suicide.  The Third Circuit agreed with the hearing officer that the unabated harassment and bullying made it impossible for the student to receive FAPE. (See our recent series on Bullying for a more detailed discussion.)

          In Lillbask ex rel Mauclaire v. State of Connecticut Dept. of Educ.  397 F.3d 77, 42 IDELR 230 (2d Cir. 2/2/05), the Second Circuit ruled that an IDEA hearing officer has the authority to review IEP safety concerns.  The court provided an expansive interpretation of the jurisdiction of the hearing officer, ruling that Congress intended the hearing officer to have authority over any subject matter that could involve a denial of or interference with a student’s

Monday, April 13, 2015

Weekly Question!

We are now running a new series which is an updated version of our previous series: An Introduction To Special Education Law. Are there any topics that we have not covered in the past that you would like to see in this Special Ed Law 101 Series? Are you enjoying the series?

Tuesday, April 7, 2015

Mediators Beware! Full Disclosure Required #MediationEthics





I have had this discussion with mediators a number of times.  Most good mediators realize that they must make the same recusals and disclosures of real or apparent conflicts of interest as a hearing officer/court judge. Invariably, however, when I do a mediator training, I run into one person who feels that mediators are not required to make the same level of disclosures because they will not be deciding a case; they are merely there to help the parties come up with their own settlement. Blah, blah, blah...

Well a big federal appellate decision last year may shed some light on this topic.  PLEASE NOTE: this is not a special education case, but it is a decision by the Federal Circuit Court of Appeals and it has ramifications for all mediators! 

The decision came in the case of CEATS, Inc v. Continental Airlines, Inc, et al ___ F. 3d _____(Fed. Cir. 6/24/2014). The United States Supreme Court denied certiorari for this case, Docket # 14-681, on March 23, 2015.

In this case, a mediator failed to fully disclose his prior relationships with counsel for one of the parties.  Here is what the court said about mediator neutrality with regard to recusal/disclosure:

"Although we recognize that mediators perform different functions than judges and arbitrators, mediators still serve a vital role in our litigation process. Courts depend heavily on the availability of the mediation process to help resolve disputes. Courts must feel confident that they are referring parties to a fair and effective process when they refer parties to mediation. And parties must be confident in the mediation process if they are to be willing to participate openly in it. Because parties arguably have a more intimate relationship with mediators than with judges, it is critical that potential mediators not project any reasonable hint of bias or partiality. Indeed, all mediation standards require the mediator to disclose any facts or circumstances that even reasonably create a presumption of bias. E.g., Am. Bar Ass’n Model Standards of Conduct for Mediators (“ABA Standards for Mediators”) § III.C (2005) (“A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality.” (emphasis added)). This duty to disclose is similar to the recusal requirements imposed on judges. Compare ABA Standards for Mediators § III.C (“A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality.” (emphasis added)) with 28 U.S.C. § 455(a) (“Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” (emphasis added)). While mediators do not have the power to issue judgments or awards, because parties are encouraged to share confidential information with mediators, those parties must have absolute trust that their confidential disclosures will be preserved. ... Indeed, mediation is not effective unless parties are completely honest with the mediator. ... Just as a judge is required to recuse himself under § 455(a) whenever “his impartiality might reasonably be questioned,” mediators are required to disclose a potential conflict whenever there are facts and circumstances that “could reasonably be seen as raising a question about the mediator’s impartiality.” ABA Standards for Mediators § III.C (emphasis added)."

The court then went on to find a breach of the duty to disclose by the mediator. Although the court refused to grant relief from the ensuing judgment against CEATS, the court expressly disagreed with the lower court's finding that the mediator had no duty to disclose his previous dealings  with one of the law firms involved in the litigation. (hat tip to Mary Kate Coleman for "Full Disclosure," The WV Lawyer Jan-March 2015 at p.36)

I strongly urge all mediators to study this decision and review their ethical obligations, including the duty to disclose/recuse.  You can read the entire decision here.  Here is a summary of the decision.  

The amazing CADRE website has many excellent resources for special education mediators.  The CADRE link is a permanent part of the lefthand side of this blog. Special education mediators and others involved in dispute resolution should visit it frequently.

What do you think? Should ethical considerations such as these be a required part of mediator training? Are special ed mediators doing a good job?  Is mediation the best way to resolve a special ed dispute? If IDEA is eventually reauthorized, should there be changes to the mediation provisions?

Monday, April 6, 2015

Weekly Question!

We are now running a new series which is an updated version of our previous series: An Introduction To Special Education Law. Are there any topics that we have not covered in the past that you would like to see in this Special Ed Law 101 Series? Are you enjoying the series?

Tuesday, March 31, 2015

Special Education Law 101: Part II #fape




This is the second installment in our ongoing series which presents an Introduction to Special Ed Law.

                The Requirement of  FAPE (free and appropriate public education)

The basic requirement of the IDEA is that states and school districts must have in effect policies and procedures that ensure that children with a disability receive a free and appropriate public education, hereafter sometimes referred to as “FAPE.” IDEA, § 612(a)(1).

The IDEA defines “child with a disability” as a child:
(i)with a mental impairment, hearing impairments…, speech or language impairments, visual impairments…, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii)who by reason thereof, needs special education and related services.
              IDEA, § 602(3)


     The IDEA defines “FAPE” as:

special education and related services that:
(A)  have been provided at public expense, under public supervision and direction, and  without charge;
(B)  meet the standards of the State educational agency;
(C)  include an appropriate preschool, elementary school or secondary school education in the state involved; and
(D)  are provided in conformity with the individualized education program required (…hereunder.).
IDEA, § 602(9).  See also 34 C.F.R. §§ 300.101 to 300.113.


     The IDEA defines “special education” as:

Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including
(A)    instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B)    instruction in physical education.
IDEA, § 602(29).


          The Supreme Court of the United States issued the seminal decision interpreting the provisions of the IDEA in the case of  Board of Education of Hendrick Hudson Bd. of Ed. v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982).  The facts of the case were that the student had a hearing impairment.  The parents requested that the schools provide a sign language interpreter for all of the student’s academic classes.  Although the child was performing better than the average child in her class and easily advancing from grade to grade, she was not performing consistent with her academic potential. Rowleysupra, 102 S.Ct at 3039-3040.

          Holding that FAPE required a potential maximizing standard, the District Court ruled in favor of the student.  The U. S. Court of Appeals for the Second Circuit affirmed.  See, Rowley, 102 S.Ct. at 3040.

          The Supreme Court reversed.  Rowleysupra, 102 S.Ct at 3052.  After a review of the legislative history of the Act and the cases leading to Congressional passage of the Act, the Supreme Court held that the Congress did not intend to impose a potential-maximizing standard, but rather, intended to open the door of education to disabled students by requiring a basic floor of opportunity. Rowleysupra, 102 S.Ct at 3043-3051.

          The Supreme Court noted that the individualized Educational Program, hereafter sometimes referred to as the “IEP,” is the cornerstone of the Act’s requirement of FAPE.Rowleysupra, 102 S.Ct at 3038, 3049.  The Court also notes with approval the many procedural safeguards imposed upon the schools by the Act.  Rowleysupra, 102 S.Ct at 3050-3051.  The Court also cautioned the lower courts  that they are not to substitute their “…own notions of sound educational policy for those of the school authorities which they review.” Rowleysupra, 102 S.Ct at 3051.

          The Supreme Court held that instead of requiring a potential maximizing standard, FAPE is satisfied where the education is sufficient to confer some educational benefit to the student with a disability.  Rowleysupra, 102 S.Ct at 3048.  Accordingly, the Court concludes that the IDEA requires “…access to specialized instruction and related services which are individually designed to provide educational benefit to the …” child with a disability. Rowleysupra, 102 S.Ct at 3048.

          The Supreme Court instructed lower courts that the inquiry in cases alleging denial of FAPE should be twofold:  First, have the schools “…complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits.”  Rowleysupra, 102 S.Ct. at 3051.

            You can read the Rowley decision here.