Monday, September 24, 2007

U. S. Supreme Court to Hear Another Special Education Case

The U. S. Supreme Court will hear oral arguments in yet another special education case on opening day of the new term, October 1st- the first Monday in October. The case is BOARD OF EDUCATION OF CITY OF NEW YORK V. TOM F., Docket No. 06-637 .

The issue presented is whether the parents of a child with a disability who has never received special education from a public school district may receive reimbursement for a unilateral placement of the child in a private school after denial of FAPE by the public school district. The case is an appeal from the decision of the US Circuit Court of Appeals for the Second Circuit holding that such reimbursement was an appropriate remedy, 106 LRP 48499 (2d Cir. August, 2006).

The Solicitor General, acting for the Justice Department, has filed a brief on behalf of the parent/student. Numerous groups have filed amicus briefs on behalf of both parties. Among the amicus briefs for the school district were those filed by the National School Boards Association, the National Association of State Directors of Special Education. The parents amici included the Council of Parent Attorneys and Advocates and Autism Speaks.

This will be only the tenth special education decision by the supremes. The recent flurry of activity, this will be the fourth opinion in the last three years, definitely indicates an increased level of interest in this now hot area of law. Although it would be more helpful if the Court provided guidance on a less tangential issue, like least restrictive environment for example, it is still exciting for special education law junkies.

After all what other area of law could bring Scalia and Ginsburg together?

Thanks For Your Blogger's Choice Award Votes

I thank the many of you who have voted for this blog as best education blog and best business blog for the blogger's choice awards. We are now tenth and tied for tenth in these two categories for these prestigious awards.

If you'd like to vote for this blog please register at
They'll send you an email and you can then vote.

While you are there, you'll also find a number of other categories full of interesting blogs.

Tuesday, September 11, 2007

Beware the Resolution Session- Part II

In a previous post, I described the new requirement of a resolution session where a parent files a due process hearing complaint and the anticipated problems in the area of the apparent lack of confidentiality. This post discusses some other odd angles of the new resolution session.
Interestingly the “buyer’s remorse” provision that provides the parties with three days to void a settlement agreement that results from a resolution session has no counterpart in the section concerning mediation. A situation will likely arise in which a party who has voided, or attempted to void, a mediation agreement within three days after it is signed by calling it a “resolution session agreement.” OSEP, the Office of Special Education Programs- the part of the federal Department of Education that oversees special education, refused to enact a regulation requested by commenters that would require parents to be notified orally and in writing that either party has the right to void a resolution agreement within three business days. 71 Fed. Register No. 156 at page 46703-04 (8/14/06). Because of the existing requirement that parents be provided written notice of their procedural safeguards in general, OSEP felt that such additional notice would be overly burdensome. 71 Fed. Register No. 156 at page 46704 (8/14/06).
The new federal regulations retain the general rule set forth in the proposed regulations that the 45 day deadline for the hearing officer’s decision begins after the thirty day resolution period ends. 34 C.F.R. Section 300.510(b)(2). Unlike the proposed regulations, however, the new regulations provide the following three exceptions in which the 45 day period begins the day after one of the following events: 1) the parties agree in writing to waive the resolution period; 2) after beginning mediation or the resolution meeting, the parties agree in writing that no agreement is possible; and 3) the parties agree in writing to continue mediation at the end of the 30 day period, but later, either party withdraws from the mediation process. 34 C.F.R. Section 300.510(c).
OSEP adopted the exceptions to the decision deadline timelines because of the concerns of commenters that it was not appropriate to wait for the end of the thirty day period in these situations. 71 Federal Register No. 156 at page 46702-03 (8/14/06). OSEP also agreed with commenters requesting that the proposed regulations be changed so that the hearing “may” occur (rather than the proposed “must” occur) after the thirty day resolution period because the parties might agree to extend the resolution period or they might settle the matter after the resolution period. 71 Federal Register No. 156 at page 46701 (8/14/06).
The federal regulations provide that where a parent does not participate in the resolution meeting, the timelines for both the resolution process and the hearing will be delayed. 34 C.F.R. Section 300.510(b)(3). To avoid the potential perpetual stay-put problem caused by the proposed regulations, the final federal regulations add a provision that if the LEA is unable to obtain the participation of the parent after reasonable efforts (which now must be documented in the same manner as IEP Team meeting participation), the LEA may, at the conclusion of the 30 day period, request that the hearing officer dismiss the due process complaint. 34 C.F.R. Section 300.510(b)(4).
In the analysis of comments section of the new regulations, OSEP declined to provide guidance as to the level of participation that is required. OSEP noted that if a parent fails to participate in the resolution process, the LEA would need to continue to make diligent efforts to convince the parent to participate throughout the remainder of the 30-day resolution period. 71 Federal Register No. 156 at page 46702 (8/14/06). OSEP agreed with commenters who requested a regulation requiring efforts to convince the parent to participate be documented in the same manner as efforts to obtain participation of a parent in the IEP Team meeting process, and, accordingly, it adopted Section 300.510(b)(4). 71 Federal Register No. 156 at page 46703 (8/14/06).
The participation provision could cause numerous headaches for the special education community. What level of participation is required? Are parents required just to show up, or are they required to bargain in good faith, or is the standard somewhere in between? The decision to provide no guidance on the level of participation likely will create another new battleground for litigation.
Another issue concerns what happens when there is a dispute as to whether the parent “participated.” Will it be necessary to convene preliminary mini-hearings to resolve factual disputes concerning issues of parent participation? A hearing officer is unlikely to resolve contested factual issues without some kind of an evidentiary hearing. Because evidentiary hearings will be needed, the idea of reducing “costly and unnecessary lawsuits” by using the resolution process will likely be thwarted.
OSEP declined the request of some commenters who wanted the parents to be required to notify the school district in advance as to whether the parents would be bringing a lawyer to the resolution meeting. 71 Fed. Register No. 156 at page 46701 (8/14/06). OSEP also opined that because an advocate for a parent/child may be a member of an IEP Team, it was unnecessary to provide in the regulations that an advocate may attend the resolution meeting. 71 Fed, Register No. 156 at page 46700-01 (8/14/06).
The IDEA requires that the parents and the “relevant member or members of the IEP team who have specific knowledge of the facts identified in the complaint” must attend the resolution meeting. Section 615(f)(1)(B)(i). The federal regulations provide that the parents and the LEA determine which team members attend the resolution session. 34 C.F.R. Section 300.510(a)(4). Thus, it seems that either party can designate team members who must then attend the resolution meeting. In addition to disputes as to who has knowledge, this system invites additional problems with notice and scheduling.
OSEP has urged parties to act cooperatively in naming the relevant IEP Team members who will attend because “…a resolution meeting is unlikely to result in any resolution of the dispute if the parties cannot even agree on who should attend.” 71 Fed. Register No. 156 at page 46701 (8/14/06). However, OSEP clarified that either party may designate any IEP Team member as a participant in the resolution meeting. 71 Fed. Register No. 156 at page 46700-01 (8/14/06).
Until there is guidance from the courts, we won’t know the answers to these problems. By then of course, it will be time for a new reauthorization or amendment of IDEA. The ever-growing body of special education law marches on.

Wednesday, September 5, 2007

Special Education Law 101 - Part I

A recent comment asked what "FAPE" and "IEP" mean. This is a good question. At a recent conference a success story former special education student told the group, "You all speak in alphabet soup." It is a tough habit to break, but the criticism is valid.
As a result I decided to post a series of Special Ed Law 101 articles to give those outside the SpEd (special education) circle a better chance of understanding what we mean.
Special Ed Law 101- Part I
The primary source of special education law is the federal Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et. seq., hereafter sometimes referred to as “IDEA.” (NOTE: many people refer to the sections of the act as beginning with section 600. Thus “Section 615” would be found at 20 U.S.C. Section 1415, etc.) The regulations promulgated by the United States Department of Education to implement the IDEA are found at 34 C.F.R. Part 300.
The basic requirement of the IDEA is that states 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, Section 612(a)(1).

The IDEA defines “child with a disability” as a child:
(i)with mental retardation, 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, Section 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, Section 602(9). See also 34 C.F.R. Sections 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, Section 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 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. Rowley, supra, 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. Rowley, supra, 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. Rowley, supra, 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. Rowley, supra, 102 S.Ct at 3038, 3049. The Court also notes with approval the many procedural safeguards imposed upon the schools by the Act. Rowley, supra, 102 S.Ct at 3050-3051. The Court also cautioned the lower courts (and by implication, due process hearing officers) that they are not to substitute their “…own notions of sound educational policy for those of the school authorities which they review.” Rowley, supra, 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. Rowley, supra, 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. Rowley, supra, 102 S.Ct at 3048.

The Supreme Court instructed lower courts (and again by implication, due process hearing officers) 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.” Rowley, supra, 102 S.Ct. at 3051.

That completes the first installment of Special Education Law 101. In the next installment we'll explain least restrictive environment, or "LRE."

Monday, September 3, 2007

Bullying- New Hot Button Issue

(In response to a request, I am repeating this post which originally appeared on July 24, 2007.)

Bullying is the hottest of hot button issues in special education law.
Generally the claim of the parent is that the student cannot receive the benefit of his IEP if he is being bullied. Bullying is a growing problem that is starting in earlier grades and lasting longer. (San Diego Tribune, 7/9/07). Courts and hearing officers are beginning to hold that disability-based harassment may result in a denial of FAPE. In Shore Regional High Sch Bd. of Educ v. P.S. 41 IDELR 234, 381 F.3d 194, (3d Cir. 8/30/04), the Third Circuit held that the school district’s failure to stop bullying may constitute a denial of FAPE. Bullies constantly called the student names, threw rocks and hit him with a padlock. Despite repeated complaints, the bullying continued and the student eventually attempted suicide. See also, Preschooler II v. Clark County Sch Bd of Trustees 47 IDELR 151, 479 F.3d 1175 (9th Cir. 3/21/7); Stringer v. St. James R-1 Sch. Dist. 45 IDELR 179, 466 F.3d 799 (8th Cir. 5/3/6); Scruggs v. Meriden Bd. of Educ. 44 IDELR 59 (D.Conn. 8/22/05); RP & MP ex rel KP v. Springdale Sch Dist 107 LRP 9778(W.D. Ark 2/21/7); Walden v. Moffett 46 IDELR 159(E.D.Calif 8/28/6).
Other courts have ruled that in certain cases involving bullying, the parent need not exhaust administrative remedies before proceeding to court to pursue possible money damages. See, Blanchard v. Morton Sch. Dist. 420 F.3d 918, 44 IDELR 29 (9th Cir. 8/19/05); Walden v. Moffett 46 IDELR 159 (E.D. Calif 8/28/6); Scruggs v. Meriden 44 IDELR 59 (D.Conn 8/22/05). These issues may well transcend special education. The Columbine tragedy raised our national consciousness concerning bullying and harassment of all kinds in the schools. The issue, however, has a big impact upon special education. Many children with disabilities report that they have been bullied. In one study, the number of disabled children enduring bullies approached 80% (Education Guardian 6/18/07).
Hearing officers and courts should anticipate more cases alleging bullying.