Transition

Transition, in the language of special education, concerns the efforts required of the school district to prepare the student for life after school. IDEA'04 changed the definition of transition services. The process is no longer "outcome" oriented; it is now "results" oriented. I pondered over this change for days - wondering why the busy U. S. Congress would change one word in a complex statute to another word that means exactly the same thing. I still haven't learned the reason. Section 602 (32).

IDEA now requires that beginning not later than the IEP in effect when the child is 16 years old that an IEP contain appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate independent living skills. Section 614 (d)(1)(A)(i)(VIII)(aa).

I became a lot more interested in the topic of transition when I saw a great poster session at the conference of the Council on Exceptional Children in Boston last year. The presenter conducted a study that showed that post-secondary "outcomes" for students with disabilities were, for the most part, not very good. (I may be simplifying some complex concepts, but that was the bottom line.) We spend all this money on special education for k-12 and then do very little after high school.

I just read a great article by Professor John Willis Lloyd that triggered this memory. He says that the focus on access isn't enough; that most kids with disabilities really need special education. You can read his excellent article here.

What do you think about the job the schools do in transitioning children with disabilities to the world? Are we asking too much of the schools? Are we not asking enough? I'm interested in your opinions.

Merry Christmas

It is that time of the year. To all of the many readers of this blog, I wish you a very Merry Christmas. Whatever holidays you celebrate, I hope you truly enjoy them. This is a good time to consider those who are less fortunate than you. In my admittedly limited experience, I find that giving is the best road to happiness.

So travel safely and try to stay warm and cozy. Watch out for the mistletoe, and have a fantastic Christmas.

Duncan Named Education Secretary

President-elect Obama has nominated Arne Duncan to be his Secretary of Education. As the current chief of the Chicago Public Schools, Duncan is known as a reformer, yet he gets along well with teacher unions. Here are some news accounts: http://www.washingtonpost.com/wp-dyn/content/article/2008/12/16/AR2008121601115.html?hpid=topnews
http://www.nytimes.com/2008/12/16/us/politics/16educ.html?_r=1

and an editorial
http://www.suntimes.com/news/commentary/1332922,CST-EDT-edit16d.article

As readers of this blog know, I am a bit concerned that we know very little regarding the President-elect's positions on special education. We know that he favors full funding of special education and increased early childhood intervention, but after that we are not sure. I was encouraged to hear Mr. Duncan in his speech link education to the economy and poverty. Here is the link to the Obama official press release.

Secretary-designate Duncan has a tough job ahead of him. I wish him luck.

News Widget: New Bells & Whistles

I keep experimenting with the gizmos on the left-hand side of the blog. My goal is to make it as useful as possible for the wide variety of stakeholders who read the blog. Please let me know if you have suggestions for other items that would be helpful, and don't be afraid to tell me what you do not like as well as what you do like.

One of the new gadgets is a special education news widget. It should be white in color with blue letters (I think.) Thanks to the Council for Exceptional Children for making it available. It is a collection of headlines about special education from around the country. If you are interested in one of the headlines, click on it in order to be taken to the whole story. Granted not many of the items relate directly to legal issues, but I know that readers are interested in non-legal issues as well.

Another new feature is the "get my blog as a widget" button. It should be orange in color (I hope) and right after the subscription options. If you have a blog or other website and you would like to have a widget for this special education law blog on your website, click on the button and follow the instructions. I believe that on your website, it would work and look something like the special ed news widget described in the last paragraph.

Also I have added a new poll. Just below the photos of me as a hearing officer, the new poll asks what trait is most important for a hearing officer. This new poll seeks further information in pursuit of my "what makes a good hearing officer" notion. I'll be interested in your answers.

Enjoy the new stuff!

Student Health Records: Feds Provide Guidance

The federal Departments of Health & Human Resources and Education have issued a joint document providing guidance on the applicability of the Family Education Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA) to student health records. Both laws deal with privacy rights of students and their families, as does the main federal special education law, IDEA.

Because a number of our readers deal with student health records in various respects, and because it is unusual to find two powerful agencies of the federal government agreeing upon a document, I bring this publication to your attention.

If you are interested in this topic or if you deal with student health records, please review this document:
http://www.hhs.gov/ocr/hipaa/HIPAAFERPAjointguide.pdf

Due Process Hearings: What Process is Due - Part II

In the previous installment in this series, I stated my doubts as to whether the adversarial and expensive due process hearing system is the best way to resolve special education disputes. I also described a thought-provoking session by Professor Rhoda Pierre Cato at the recent NAHO conference concerning due process in administrative hearings. This is what happens when one pays attention at a conference!

One source of confusion is that the term "due process hearing" is a term of art, usually suggesting a less adversarial system. "Due process" is also a constitutional right, and the amount of due process that must be provided in an administrative hearing is the subject of much litigation and many Supreme Court decisions. Once again, the law uses the same phrase in multiple ways.

Professor Cato interprets these Supreme Court decisions, especially the seminal Matthews v. Eldridge, 424 U.S. 319 (1972), to mean that what process is due is a flexible calculation that permits the hearing officer to utilize a very non-adversarial approach. Due process still requires notice and the opportunity to be heard, but the way in which a party is heard is more relaxed. She advocates an "Inquisitorial" method. (Those who know me have probably guessed that I couldn't help myself from asking if there was a relationship to the Spanish Inquisition, which nobody ever expects. There isn't.) In this system, the rules, especially evidentiary rules, are relaxed for all parties whether they have lawyers or not. The hearing officer asks many questions to ascertain the facts, and listens to both sides without advocating for either. The hearing officer is not an advocate but participates actively to ensure a record complete enough to write good decision. The system is not adversarial.

There is other support for the Inquisitorial method for administrative hearings. Another conference participant, hearing me discuss this concept, alerted me to a law review article recommending this method for unemployment hearings. See, Milligan, William M., "Essay: Torquemada and Unemployment Compensation Appeals'" 29 U. Mich. J. of Law Reform 389 (Fall 1995 - Winter 1996). His position is summarized here beginning at page two:
http://www.nauiab.org/adobe/winter2k.pdf

Like many stakeholders, I am very comfortable with the current more adversarial due process hearing system. I'm familiar with it. I'm too old to change now. Inertia is a powerful force. Fortunately, however, special education law isn't about me. It's about some great kids who have special needs.

My question for my readers is- should we adopt some version of the Inquisitorial model for special education disputes? At this point, I think Congress would need to amend IDEA, the special education law, to allow it, but is there merit in moving to a less adversarial hearing system of dispute resolution? What do you think.

Select Changes in Federal Regs Become Final

The federal Office of Special Education Programs has adopted final IDEA regulations that were proposed in May of this year. 73 Fed. Register No. 231 at page 73005 (OSEP 12/1/2008). Does it strike anybody else as odd that these new regs were made final just before the old administration leaves town?

Most of the buzz has been about the changes permitting parents the final word on removing children from special education. My concern, however, was with the changes to the due process hearing system making lay advocates ability to represent parties a matter of state law. I felt that it was not clear whether OSEP was saying that the matter could be regulated by the state departments of education or whether the issue was to be determined by reference to state law concerning the unauthorized practice of law. Here is OSEP's response to my comment:

Comment: One commenter requested that the final regulations clarify whether it is sufficient for an SEA to provide by regulation or procedural rule that a lay advocate may represent parties at due process hearings or whether the ability of a lay advocate to represent a party at a due process hearing instead is controlled by State law regarding the unauthorized practice of law...
Discussion: Whether an SEA may have a State regulation or procedural rule permitting non-attorney advocates to represent parties at due process hearings or whether that issue is controlled by State attorney practice laws is determined by State law. If State law is silent on the question of whether non-attorney advocates can represent parties in due process hearings, there is no prohibition under the Act or its implementing regulations on nonattorney advocates assuming a representational role in due process hearings. Changes: None.
73 Fed. Register No. 231 at p. 73017-73018 (OSEP 12/1/08)

There now - that's clear. Any questions? {Does one have to go to a special school of bureaucracy to learn how to use so many words without saying anything?} The only change made to this proposed regulation was to clarify that whether both sides could be represented by a nonattorney advocate is a matter of state law. The proposed regulation referred only to parents.

You can check out my previous posts on the proposed regs at:
http://specialeducationlawblog.blogspot.com/2008/07/deadline-for-public-comments-about-new.html and
http://www.blogger.com/post-edit.g?blogID=1691205078500083881&postID=4241349750325311151

You can see the complete analysis of comments by OSEP at:
http://frwebgate6.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=414449135907+0+2+0&WAISaction=retrieve

Do Court Decisions Shape Special Education? Part III

In the first two installments in this series I described a fascinating recent paper by Professor Samuel R. Bagenstos of the Washington University School of Law that concludes that courts do not have much of a role in shaping special education. The paper is available here: http://www.aei.org/docLib/20081010_Bagenstos3.15.08.pdf

His study finds that from 2000 to 2007, an average of only 374 federal lawsuits involving special education were filed per year in the United States. By contrast, the author states that during a one year period ending on March 31, 2007, nearly 14,000 employment discrimination cases were filed in federal courts. As a result, the author concludes that the courts have little effect upon special education.

Many of you have had the same reaction to this article that I had. Duh- yes court decisions shape the substantive area of law. In the second installment I challenged some of the conceptual math. The numbers are interesting, but slightly deceptive.

In this installment I want to challenge some of the logic underlying the argument. Some cases have had a dramatic impact on special education. Rowley, the seminal Supreme Court decision, defined the FAPE standard and determined how courts and hearing officers would review IEPs. The Burlington decision allowed reimbursement for unilateral placements as relief. Honig v. Doe found the stay put provision to have teeth. The Garret F decision said that cost is not a defense. Indeed, all of the substantive Supreme Court cases have had a major impact on special education. So do certain appeals court decisions. For example, the bullying and IEP implementation hot button cases can have a major impact upon special ed.

I think the real question involves who is asserting their procedural safeguards, including due process hearings and court appeals. If 80% of due process hearings happen in six states plus Washington DC, maybe justice is not widespread. If as many suspect procedural safeguards are accessed mostly by the wealthiest families, maybe justice is not widespread. So maybe the really interesting question is not do court decisions shape special education, but who is litigating the cases that do shape special education?

Happy Thanksgiving

To all who read the special education law blog, please have a great Thanksgiving.

It's one of my favorite holidays. First, I was born on a Thanksgiving day so the day has extra special meaning. The way my mother used to tell the story began with "it was a cold winter's night..." It gets worse from there.

Second, this holiday is about giving thanks and maybe thinking of those who are less fortunate. It's hard to argue with those noble goals. I know that times are tough for many, but I am an optimist and I firmly believe that things will get better for our economy soon.

So count your blessings, have some Turkey and enjoy the holiday.

Letter to Gerl; I'm Famous (Almost); Or When to Schedule an Expedited Hearing

Letter to Gerl, pretty cool, huh. Well it has finally appeared on the series of tubes, formerly known as, the internet. Back in early May, I received a policy clarification letter from the federal Office of Special Education Programs. Although these letters have no precedential value, they are entitled to some deference under principles of administrative law because OSEP is the federal agency charged with administering IDEA, the special education law. It was enjoyable seeing my name in a citation.

My question concerned the pesky new resolution meeting which has been required since the 2004 reauthorization. We knew that OSEP had determined that the 45 days for a hearing officer decision in an ordinary case does not begin until after the 30 day resolution period, subject to three exceptions (two of which are comprehensible.) I felt that it was a bit unclear in the context of expedited due process hearings that are held in certain cases alleging disciplinary changes of placement for students with disabilities. Under the expedited scenario, a due process hearing must be held within twenty school days of a due process hearing complaint being filed. It wouldn't really be "expedited" if the 15 calendar day resolution period had to expire before the twenty school days would begin being counted. So I asked for clarification.

In Letter to Gerl, OSEP agrees that the 15 calendar days runs concurrently with the 20 school days. The problem for due process hearing officers is that one must also permit five business days (isn't it fun how we use three different kinds of days) for disclosure of evidence prior to the actual hearing. If you are a hearing officer or you like math problems, take out a calendar and start with any Friday when we will pretend a complaint has been received, and you'll see how the scheduling of an expedited hearing can get hairy fast. Mark off 15 calendar days for the truncated resolution period- no hearing can be scheduled in that period. Then count off 20 school days to see the end of the period (assume for now that there are no holidays snow days or summer vacations to complicate this analysis.) That only leaves about ten weekdays to schedule a hearing, and remember to leave five business days for the disclosure of evidence. Then mark off ten school days for the decision deadline. Fun, no?

If you have access to the LRP online or print reporters, the cite is Letter to Gerl 108 LRP 65828 (OSEP 05/01/2008). Or you can go to the following OSEP website and scroll down to the 11th letter listed:

http://www.ed.gov/policy/speced/guid/idea/letters/2008-2/index.html

Reminder: Nov 21st Deadline for Comments on SPP Indicators

Tomorrow, Friday November 21st is the deadline for the public to comment on the revised State Performance Plan indicators developed by the Office of Special Education Programs to track state compliance with IDEA, the federal special education law. Please send them your comments; it is good for OSEP to know that all stakeholders are paying attention.

Please see the post on this blog from November 6, 2008 for details concerning how to comment as well as further discussion of the SPP indicators. There you will also find a preview of the comments that I submitted concerning the SPP indicators. I also want to thank blogger Christina Samuels of the On Special Education blog for picking up on some of my saucier comments in that post:

http://blogs.edweek.org/edweek/speced/2008/11/department_of_education_appear_1.html

Due Process Hearings: What Process is Due? Part I

As I mentioned, I just returned from a conference of the National Association of Hearing Officials. One of the great things about NAHO is the richness of diversity of the types of administrative hearings that are being done across the country.

Special education "due process" hearings as they are now done across the country resemble mini-trials. The rules of evidence are generally relaxed, but the proceeding is adversary in nature and requires generally 1 1/2 to 3 days to complete, if all goes well. Many of the people I meet at NAHO, however, do high-volume hearings. 15 to 20 hearings per week per HO is not unusual. Many welfare-type hearings are called due process hearings or fair hearings.

I have often wondered whether by using the term "due process" hearing, that those who created the special education hearing system, intended a less adversarial method of dispute resolution than the one that has developed. One of the current criticisms of the special education hearing system of today is that parents and school districts need to lawyer up and pay expensive expert witnesses- resulting in a system of procedural safeguards accessed primarily by the wealthiest citizens, leaving the poorer parents and school systems without as much legal recourse.

Thus I was intrigued by a presentation at the NAHO conference by Professor Rhoda Pierre Cato of Florida A & M University College of law concerning "Due Process: Fundamental Concepts - Practical Applications." In her session she advocated a more relaxed "Inquisitorial Method." More on this in the next installment.

What Makes a Hearing Officer Good?

I have just returned from the annual conference of the National Association of Hearing Officials. As usual, the sessions were excellent and the networking opportunities were great. I was recertified as a Certified Hearing Official, and I also spent a lot time with the usual suspects, of course. The highlight of the conference for me was receiving the Bill Kane Board of Directors Award for service to the Association and its members. It is an excellent conference for hearing officers of all types, although the membership includes a growing number of special ed HOs.

One of the more thoughtful participants asked me what traits or characteristics made a person a good hearing officer (of any kind - not just special ed). The context of the question is how do you interview potential hearing officers and how do you train new ones. I've gotten similar questions specific to special ed hearing officers through previous blog comments, but I've never thought about the context of hiring and training HOs. My initial response was fairness, professional demeanor and common sense. What I didn't know the answer to was how you interview for these traits or how you train after a hire. I know that the hearing officer job is more like an art than a science, and maybe that is why it is so hard to hire and train them. I like the metaphor of a paratrooper being dropped behind enemy lines.

I'm interested in what you think about this question. I know that we have a diverse readership made up of a large sample of people interested in special education law. Your thoughts and comments would be appreciated. Thanks.

Do Court Decisions Shape Special Education? Part II

In the first installment in this series I described a fascinating recent paper by Professor Samuel R. Bagenstos of the Washington University School of Law that concludes that courts do not have much of a role in shaping special education. The paper is available here: http://www.aei.org/docLib/20081010_Bagenstos3.15.08.pdf

His study finds that from 2000 to 2007, an average of only 374 federal lawsuits involving special education were filed per year in the United States. Considering that there about 6.6 million children receiving special education nationwide, this number is remarkably low.
By way of contrast, the author states that during a one year period ending on March 31, 2007, nearly 14,000 employment discrimination cases were filed in federal courts. As a result, the author concludes that the courts have little effect upon special education. I'm not sure that the comparison holds even though the disparity is huge. Because I have been a hearing officer for both kinds of cases, I think there are some problems with the direct comparison. First, there are a lot more employees with jobs than there are kids eligible for special ed. All employees have a race and a gender and a national origin. Many others have a religion, are over 40 or have a disability. All of these folks can claim discrimination. It should be expected that there are more opportunities for employees to file a lawsuit. It would be good to see a comparison between the percentage of employees who file and the percentage of special ed parents who file.

Second, those who file an employment discrimination claim with the federal agency, the EEOC, there is an investigation followed by a probable cause finding. Every claimant, whether probable cause is found or not, then gets a letter entitled RIGHT TO SUE with very specific instructions as to how to pursue the claim further in federal court. Special ed parents get no similar notice. Thus the comparison may be flawed because of the instructions to the potential plaintiff after step one.

Despite these differences, however, the numbers found by Professor Bagenstos still are very fascinating. We will discuss further the issues raised by this thought provoking article in future installments.

Obama Wins - Will New Secretary of Education Make a Difference?

Well the election is over. I was truly amazed. Until about six months ago, I did not think that an African-American could be elected President in my lifetime. I gladly stand corrected. We have come a long way since the Constitution designated blacks as three-fifths of a person for purposes of determining representation in Congress. Once again America inspires, and yes overcomes.

So for special education law and policy what will this mean? The first question will be who shall be the new Secretary of Education. My teaser in the headline for this post concerns whether the appointment will make any difference. I suspect that it will. I welcome your comments.

A number of interesting names have been floated. Who do you think should get the job? Here is a column listing some of the prominent candidates:
http://chronicle.com/free/2008/11/6631n.htm

By the way as the Edjurist has pointed out, the Obama transition team already has a website up and going. Education positions are listed here, but not much concerning special education. Also if you feel that you should be the new Secretary of Education, fill out the apply for jobs form here:

http://change.gov/

OSEP Alters SPP Indicators - You Can Comment

The agency charged with making sure that states enforce the special education law, the Office of Special Education Programs has revised state performance plan (SPP) indicators. these are the data that states submit to demonstrate compliance with IDEA. You can read them here:
http://dataserver.lrp.com/DATA/servlet/DataServlet?fname=Part_B_meas_table_final_10-08-08rr.pdf

They have been published in the federal register and the federal OMB is receiving comments.
http://www.ed.gov/legislation/FedRegister/other/2008-4/102208a.pdf

I have always been amazed at the SPP indicators. I think that the current NCLB-inspired theory that everything can be reduced to data and measured or assessed has hit its odd high point here. I particularly don't like the SPP indicators as to dispute resolution. All that states are assessed on is the percentage of settlements in mediations and resolution sessions (indicators 18 and 19) and compliance with timelines for due process complaints and state complaint procedures(indicators 16 and 17). That's it. So a state could have the worst mediators, complaint investigators and hearing officers in the world, not trained to meet the IDEA requirements as to qualifications, never get a determination right, or worse even be in the pocket of one party or the other and still pass muster with the federal regulatory agency if timelines are met and settlement rates are high. There is also no attempt to measure the wealth/income level of those who access these and other procedural safeguards. (Many of us suspect that all procedural safeguards are accessed predominantly by wealthier parents.) The SPP indicators for dispute resolution seem absurd. The previous round of comments about SPP indicators resulted in 37 pages of analysis by OSEP, yet almost none of it related to the dispute resolution indicators.
http://dataserver.lrp.com/DATA/servlet/DataServlet?fname=10-22-08-Att_L12-1820-0624_Part_B_SPP-APR_Comments_Discussion_10-02-08.pdf

The deadline for comments is November 21, 2008. To comment, you send an email to: oira_submission@omb.eop.gov or you can send via fax to (202) 395-6974. If you wish to send written comments, they should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, Washington, DC 20503. Commenters should include the following subject line in their response "Comment: collection #3870, IDEA Part B State Performance Plan and Annual Performance Report."

Remember to Vote

Tuesday is election day - although you can vote early in many states. I voted yesterday and was encouraged to learn that I was voter number 1865 already- even in my small county. I hope that the pundits who claim that this may be a record voter turnout are correct.

We never did get answers to the ten questions that we sent to the Presidential candidates, but at least some information is available. Both the Democrat and the Republican tickets have pledged "full" funding for the federal special education law, the Individuals With Disabilities Education Act. (Remember in the bizarro world of special ed "full" means 40%; the amount paid by the feds today is below 17%. Can you say "unfunded mandate.")

Obama favors a large investment in Early Childhood Education. This would seem to impact kids with disabilities positively. McCain (via Palin) favors a voucher/choice concept for parents that would transfer government funds to private schools. That's about all we know about either one. Here's a link to a local news story about the candidates' positions on people with disabilities in general that was submitted by a thoughtful reader:

http://abclocal.go.com/wls/story?section=news/disability_issues&id=6469553

Here is the CEC election resources page which has previously been cited on this blog

http://www.cec.sped.org/AM/Template.cfm?Section=Home&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=10831

If you go through previous posts and the archives of this blog, you will find other resources regarding the candidate's positions on education.

Although we have tried to generate information relevant to the topic of this blog, we realize that few people who read this blog are single issue voters. Most folks look at the candidates' positions on many issues that concern them. They also look at temperament, character, background, and even personality. So do your duty as a citizen: study up and then be sure to vote.

There are many other exciting races further down the ballot. Maybe next we will develop ten questions for candidates for school board although some should vary by location. Remember when local bodies rather than the federal government set educational policy. The banking industry is not the only thing that has been nationalized!

Your vote counts. In four different elections in my county in the last few election cycles, elections were decided by fewer than ten votes; once the margin was only one vote! The right to decide who represents us at the ballot box wasn't free. Many have fought, many have been injured and many have died to ensure that we keep our freedoms- including the right to vote. Don't take it for granted. Regardless of which party you support, and regardless of who you are going to vote for, and regardless of the reasons for your decisions, please VOTE.

The nonpartisan League of Women voters has developed some great tools to help voters. If you don't know where your voting place is, use this helpful link: http://www.lwv.org/VOTE411/widget/VOTE411_Poll_LWV_200x250.swf

If you want to learn who is on the ballot in your state or if you have other questions about the rules concerning voting in your area, use this link:
http://www.lwv.org/VOTE411/widget/VOTE411_Info_LWV_200x350.swf

Do Court Decisions Shape Special Education? Part I

One of the big criticisms of special education law that I often hear from educators is that courts and hearing officers are too involved in the education of children with disabilities. IDEA, the argument goes, and in particular its reliance on procedural safeguards, especially the dread due process hearings, is resulting in judges and hearing officers having undue influence upon educational decisions.

A recent paper by Professor Samuel R. Bagenstos of the Washington University School of Law challenges this argument. Among his conclusions are what he calls an empirical finding that courts do not have much of a role in shaping special education. The paper is available here:
http://www.aei.org/docLib/20081010_Bagenstos3.15.08.pdf

The study finds that from 2000 to 2007, an average of only 374 federal lawsuits involving special education were filed in the United States. Considering that about 6.6 million children with disabilities receive special education nationwide. This number is remarkably low. By way of contrast, the author states that during a one year period ending on March 31, 2007, nearly 14,000 employment discrimination cases were filed in federal courts. As a result, the author concludes that the courts have little effect upon special education. He does mention the possibility of indirect effects, such as, the impact of school officials knowing that hearing officers and courts may be looking over their shoulders, but he concluded that the total effect is minimal.

I find this article fascinating for a number of reasons. I look forward to your response. This is the first of a series discussing some of the issues and concerns resulting from this article.

Gov. Palin on Special Needs Children

Gov. Palin gave a speech today on special needs children that mentions special education. Justin Bathon has a good summary at the Edjurist after learning that only MSNBC carried her speech:

http://www.edjurist.com/blog/palin-to-talk-policy-on-special-needs-issues.html

I don't understand how vouchers would work. I am very glad, however, that the Republican ticket is promising full funding of IDEA.

Other than the early childhood issue, the only special ed specific promise of the Democratic ticket is full funding for IDEA.

So I guess that federal spending for special ed will be increased under the new President, whomever it may be.

Debate Interesting - No Positions on Special Education

Well the big education policy advisor debate is over. Last night a debate occurred between Lisa Graham Keegan, education advisor to Republican nominee John McCain and Linda Darling-Hammond, education advisor to Democratic nominee Barack Obama, at the Teachers College at Columbia University.

I was deeply involved with reality tv at the time, but I watched the debate and the post-debate analysis today. It was very interesting from a policy standpoint, but there was no direct mention of special education, and sadly no new information on the candidates positions on this key issue. For those of you who don't regularly follow this blog, I have been hounding the Democrat and Republican to answer ten basic questions, compiled by me with help from the readers of this blog, about special education law and policy- without success. The details are set forth in previous posts, but I will repeat the ten questions at the end of this post.

The debate featured lots of skating around No Child Left Behind. This isn't surprising given the mood of the country. The Hoover Institution poll showed roughly equal support for keeping NCLB as it is, keeping it with minor changes, keeping it with drastic changes, and scrapping it. Given the lack of agreement, I find it understandable that the candidates are not tackling it too directly. Indeed, education is taking a back seat given the economy, the war, etc. One pretty clear difference is that McCain seems to like standardized testing whereas Obama prefers multiple measures and better tests.

One area very close to special education is Early Childhood Education. In this area Obama favors more money as an investment. I didn't sense that McCain would spend more, but I didn't otherwise hear a position on Early Childhood from his advisor.

You can register and view the debate and the post-debate analysis here:

http://www.edweek.org/ew/marketplace/webinars/webcast_ed_next_president.html

Here is our list of ten, so far, unanswered questions:

1. Please state your position regarding "full" funding of the individuals with Disabilities Education Act, "IDEA." School districts were originally promised federal funds in the amount of 40% of special ed costs when the predecessor to IDEA passed. IDEA funding is now less than 17%. Many people involved in education feel that it is the largest unfunded mandate. If you are elected, at what level will your first recommended budget fund special education? Please explain how you will pay for any increases in funding.

2. What is you position concerning the reauthorization of the No Child Left Behind Act, "NCLB" and IDEA.

3. What is you position concerning the reauthorization of IDEA.

4. In 1982, the U. S. Supreme Court decided 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). In that seminal case, the high court set the standard for the majority of special education cases by defining what a school district must do in order to provide a free and appropriate public education ("FAPE). Would you as President seek any changes in the Rowley standard?

5. Would you as President seek any legislative changes to reverse or modify the decisions by the Supreme Court in recent cases, including Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005); Arlington Cent. Sch. Dist Bd. of Educ v. Murphy 548 U.S. 291, 126 S.Ct. 2455, 45 IDELR 267 (6/16/06); or Winkelman by Winkelman v. Parma City Sch. Dist 550 U.S.____, 127 S.Ct 1994, 47 IDELR 281 (5/21/2007) .

6. Would you support any changes in the provisions regarding the awarding of attorney's fees in special education cases?

7. In general, would you likely support the positions of parents or school districts in cases alleging a violation of the special education laws?

8. What are your feelings about the Response to Intervention evaluation process? Should it be expanded beyond eligibility for specific learning disabilities?

9. Concerning NCLB, what are your thoughts concerning the principles of accountability and school sanctions. Would you propose any changes to the exceptions for students with severe cognitive disabilities or other students with disabilities for purposes of assessment?

10. What should be the role of the Office of Special Education of the federal Department of Education in interpreting and in enforcing the special education laws?

Pig Lipstick, etc - Part III

Still no answer from the candidates to my ten questions on special education law and policy.

Justin at the Edjurist has an interesting article showing that even NBC has noticed that the candidates have failed to address special education. Here's a link:

http://www.edjurist.com/blog/jim-gerl-is-smiling.html

The final candidate debate featured one question about education. Here is the transcript of the debate. (If you're looking for the education question, start at the end and work backwards through the closing arguments):

http://www.presidency.ucsb.edu/ws/index.php?pid=84526



If you'd prefer a summary of their response to the education debate question, the CEC policy folks did a nice job here:
http://www.cec.sped.org/AM/Template.cfm?Section=Home&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=11057

Also remember that tomorrow night, October 21st, at 7 pm, there will be a debate between Linda Darling-Hammond, education advisor to Democratic nominee Barack Obama, and Lisa Graham Keegan, education advisor to Republican nominee John McCain. The event will be live-streamed by Education Week & edweek.org at http://www.edweek.org/go/tcdebate and by the Teachers College at www.tc.edu/edadvisorsdebate. The Webcast is being supported by the National Association of Secondary School Principals (NASSP).
For more information on the debate, please see this link: http://www.tc.columbia.edu/news/article.htm?id=6695

If any of you hear anything else about the candidates positions on special education, please let me know.

Breaking News: We Win First Place for Best Education Blog

The Special Education Law Blog has won first place in the Best Education Blog category in the prestigious Bloggers Choice Awards. I am honored. We were in second place going into the last couple weeks, so it is a surprise to finish first.

Thanks to the 329 people who voted for this blog. It is quite a wonderful feeling to be appreciated by so many folks. When I started this blog I thought that there was a need for a source of information from a neutral source about the new and rapidly-growing field of special education law. I have tried (with only partial success) to avoid legalese and double talk. I'm happy to find that a wide group of different types of special education stakeholders (parents, special ed teachers, students, administrators, state department staff, lawyers, professors, and children and adults with disabilities, among others) are tuning us in. Please subscribe, if you haven't, and keep reading.

You can view the Bloggers Choice Awards results here:

http://bloggerschoiceawards.com/main/winners?page=2

Presidential Candidates Positions on ASDs

For those of you interested in Autism Spectrum Disorders, the candidates have issued position papers. Thanks to one of our readers for pointing this out. Although the information appears in the comments, I wanted to include it in a post so that all interested could review them.

Here are the links:

Obama: http://www.barackobama.com/pdf/AutismSpectrumDisorders.pdf

McCain: http://www.johnmccain.com/content/?guid=24dc9c37-e739-4aa3-8a88-ebae650a2f11

This is kinda like working on a jigsaw puzzle. If we get enough pieces, maybe we can make a forest out of the trees. (You really thought I was going for that easy "pig lipstick" line again, didn't you!)

ALERT: Pig Lipstick vs Education?

I wanted to alert you that on Tuesday, October 21st, at 7 pm, the Teachers College at Columbia University will host "Education and the Next President," a debate between Linda Darling-Hammond, education advisor to Democratic nominee Barack Obama, and Lisa Graham Keegan, education advisor to Republican nominee John McCain. Susan Fuhrman, President of the College, will moderate the debate which will take place in the Cowin Conference Center.

The event will be live-streamed by Education Week & edweek.org at http://www.edweek.org/go/tcdebate and by the Teachers College at www.tc.edu/edadvisorsdebate. The Webcast is being supported by the National Association of Secondary School Principals (NASSP).

For more information on the debate, please see this link:
http://www.tc.columbia.edu/news/article.htm?id=6695

Thanks to one of our readers for the heads up on this information. As regular readers probably have guessed, I have already sent my list of ten questions on special education law and policy to the moderator as a suggestion. You can find the ten questions in previous posts. If any of you learn of further policy positions on special ed by the candidates (there are two on Obama's website that were not mentioned in their "response" to our questions), please let me know.

Hot Button Issue: IEP Implementation - Addendum

When I do caselaw updates at conferences, I often include a topic on Hot Button Issues. IEP
Implementation is now in that category. I asked a group of special ed administrators recently, "how much of an IEP do you have to implement?" I was reassured when about all couple hundred of them said "all of it!" (I am purposefully omitting any expletives.) I'm glad that I was not the only one reading the law this way.

I then explained the Van Duyn decision. In a two to one decision, the U. S. Circuit Court of Appeals for the Ninth Circuit held that a school district’s failure to implement an IEP must be material to constitute a violation of IDEA. Van Duyn ex rel Van Duyn v. Baker Sch Dist 5J 481 F.3d 770, 47 IDELR 182 (9th Cir. 4/3/7). The Ninth Circuit found that minor discrepancies between the services actually provided and those specified in the IEP do not constitute a violation. A material failure occurs, the Court said, "...when the services a school provides to a disabled child fall significantly short of the services required by the child's IEP. Minor discrepancies between the services provided and the services called for by the IEP do not give rise to an IDEA violation." The majority found that failures to implement the student's behavior management plan and to present material at his level, among other allegations, were not "material failures" to implement, and therefore, there was no violation of IDEA. (For the record, and believe me there is ALWAYS a record, I strongly disagree with this holding and I believe that it misstates the law.)

Then I reminded them that special education law is new law. New law may be defined as anything that did not come over on the boat from England. Because the federal special education law came into existence in the 1970's, it qualifies as very new law. Most lawyers do not like new law. They like contracts and property law where there are clear-cut answers and they can give advice to their clients with some degree of certainty concerning what the law is. New law, on the other hand, is very unsettled. There is even a built in cycle of uncertainty with brand new laws: the statute is enacted; federal regulations are promulgated; state regs are promulgated; hearing officer decisions emerge, court decisions are handed down; the statute is reauthorized, usually with amendments to the law; new federal regs are issued. It is tempting to use the phrase ad naseum, but Latin isn't really my thing.

Then I told them not to worry because they do not live in the Ninth Circuit. Then I ask them again, "how much of an IEP do you have to implement?" and again they all said "all of it!" At least for now, they are right. Look for a flurry of new cases on this topic.

NCD to Meet Today in Kansas City

The National Council on Disability will conduct its quarterly meeting at the Hyatt Regency Crown Center, 2345 McGee Street, Kansas City, Missouri, beginning at 8:30 a.m. C.D.T. today Monday, October 6 and ending at 11:00 a.m. C.D.T. on Wednesday, October 8, 2008. The meeting is open to the public.

NCD is an independent federal agency and is composed of 15 members appointed by the President, with the advice and consent of the Senate. NCD provides advice to the President, Congress, and executive branch agencies to promote policies, programs, practices, and procedures that guarantee equal opportunity for all individuals with disabilities, regardless of the nature or severity of the disability; and empower individuals with disabilities to achieve economic self-sufficiency, independent living, and inclusion and integration into all aspects of society.

In carrying out its mission, NCD believes it is vital to hear from communities around the country on what works and what does not for people with disabilities. The agenda will include sessions on emergency preparedness, health care, employment, and several other subjects of interest to the disability community.

Public comment sessions will be held Monday, October 6 from 9:00 a.m. until 9:30 a.m. C.D.T. and on Tuesday, October 7 from 4:30 p.m. until 5:00 p.m. C.D.T. A reception will be held at the hotel for meeting participants, audience members, and stakeholders from the disability community on Tuesday, October 7 immediately following the day’s session.

To learn more about NCD, see their website at:
http://www.ncd.gov/index.html

I Approve This Message

Thank you to all the loyal readers of this blog.

As many of you know this blog has been nominated for the Blogger's Choice Awards in the education category. We are currently in second place, about thirty votes behind the first place blog. Voting ends after the second week of this month and winners will be announced on October 16th.

If you enjoy reading the posts of this blog, you should subscribe and vote for us for the Blogger's Choice Awards. As Mayor Daley used to say, please vote early and often. There is a button on the left side of the blog and a link below. You have to register and respond to an email. Some folks have had trouble registering lately. If you run into any difficulty, please tell me or the Blogger's Choice people directly. Here's the voting link:

http://www.bloggerschoiceawards.com/blogs/show/21620

I'm Jim Gerl, and I approve this message.

Dear Candidate - Part III

Those of you who follow this blog know that I am somewhat frustrated by the failure of Sen. Obama and Sen. McCain to answer a series of special education law issue questions. I submitted the questions in early August. So far there has been a form letter education response from the Obama campaign which does not mention special education. I have not gotten a response from the McCain campaign.

I am aware that these campaigns get bombarded with requests, but I remain shocked by this apparent lack of interest in the growing community of special education stakeholders. (I like the word "stakeholder." In some of my cases, they are literally holding stakes!) To ensure that there was not some miscommunication, I have again sent off the questions to the candidates. Any answers that are received will be shared here. To refresh your memory, the ten questions follow:

Dear Candidate: ...Please provide your answers regarding these questions pertaining to special education as well as any other positions on special education that you have. We will share all relevant answers we receive with our readers:
1. Please state your position regarding "full" funding of the individuals with Disabilities Education Act, "IDEA." School districts were originally promised federal funds in the amount of 40% of special ed costs when the predecessor to IDEA passed. IDEA funding is now less than 17%. Many people involved in education feel that it is the largest unfunded mandate. If you are elected, at what level will your first recommended budget fund special education? Please explain how you will pay for any increases in funding.
2. What is you position concerning the reauthorization of the No Child Left Behind Act, "NCLB" and IDEA.
3. What is you position concerning the reauthorization of IDEA.
4. In 1982, the U. S. Supreme Court decided 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). In that seminal case, the high court set the standard for the majority of special education cases by defining what a school district must do in order to provide a free and appropriate public education ("FAPE). Would you as President seek any changes in the Rowley standard?
5. Would you as President seek any legislative changes to reverse or modify the decisions by the Supreme Court in recent cases, including Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005); Arlington Cent. Sch. Dist Bd. of Educ v. Murphy 548 U.S. 291, 126 S.Ct. 2455, 45 IDELR 267 (6/16/06); or Winkelman by Winkelman v. Parma City Sch. Dist 550 U.S.____, 127 S.Ct 1994, 47 IDELR 281 (5/21/2007) .
6. Would you support any changes in the provisions regarding the awarding of attorney's fees in special education cases?
7. In general, would you likely support the positions of parents or school districts in cases alleging a violation of the special education laws?
8. What are your feelings about the Response to Intervention evaluation process? Should it be expanded beyond eligibility for specific learning disabilities?
9. Concerning NCLB, what are your thoughts concerning the principles of accountability and school sanctions. Would you propose any changes to the exceptions for students with severe cognitive disabilities or other students with disabilities for purposes of assessment?
10. What should be the role of the Office of Special Education of the federal Department of Education in interpreting and in enforcing the special education laws?

Conference Follow Up

I love speaking at conferences for a number of reasons. First Special Education Law is fascinating. (I know that's pathetic. There is likely a DSM-IV category for people who like SpEd Law.) It changes, it's not often clear and it requires the ability to make an argument as well as to float like a butterfly and sting like a bee.

Also conferences are a good way to meet people who actually work with kids with disabilities or who are parents of kids with disabilities. Those kids and how they are educated are what this area of law is really all about. Networking with them is always fun.

Equally important is that the folks in the audience generally participate and what they say as well as how they react help me improve my presentations for the future. For example, the other day I was getting pretty deep into the fine print about the rules of discipline for special education students. I was concentrating upon the interface of the juvenile justice system and special education law. Somebody asked a question starting with a preface about a kid shooting a gun. I noted that in any emergency situation, you first get the kids to safety and call 911. The special ed discipline rules can wait until everybody is safe and secure. I cannot cite a case for this proposition, yet I feel comfortable that it sound.

West Virginia Law Conference

I am honored to be one of the featured speakers at the West Virginia Law Conference this week. I'll be speaking on Thursday about basic special ed law and I'll give an update on caselaw. I'm looking forward to my presentation.

Whenever I prepare a SpEdLaw 101 type presentation, I'm reminded about the progress we have made. Special Ed Law is "new law." In lawyer talk, that means that it didn't come over on the boat from England.

Since 1975, when this field of law was born, much has happened. Before IDEA, only about 3.9 million of 8 million kids who needed special education were receiving an appropriate education. Disciplinary expulsions and warehousing in most states caused miserable conditions for children with disabilities. Courts generally made matters worse- like the infamous decision by the Wisconsin Supreme Court in 1919 upholding the exclusion of a child with cerebral palsy from school because “his physical condition and ailment produce[d] a depressing and nauseating effect upon the teachers and school children.”

We may not be where we want to go yet, but here's a big thank you to all the teachers, providers, paraprofessionals, administrators, parents and students who have helped make special education one of the most successful government programs! Please keep up the good work.

Hearing Officer On The Bench

People often ask me what it looks like to be a hearing officer.
Well here it is:
(I'm starting to really like technology)

Sometimes, like here, it looks sort of like a judge. Other times, it looks more like a meeting coordinator. On rare occasions, it looks more like pure chaos.

But pretty or not, the hearing officer is a vital part of the special education dispute resolution system. I kid hearing officers, but as I have written previously we are vitally important to the special education system established in this country. Despite our important role, our patron saint is Rodney Dangerfield because we don't get any respect. No respect at all. This note is just a quick keep up the good work and keep looking good!

Eligibility for Special Education - Part II

Last week, I noted that there have been a lot of decisions by courts and hearing officers in the last year and a half concerning special education eligibility. After explaining the two part legal definition of a "child with a disability," I mentioned that my friend Professor Mark Weber had written a new law review article concerning eligibility. The excellent article is very long, but I wanted to talk about Mark's persuasive argument that some courts seem to be being very

restrictive in interpreting the second (needs SpEd) prong of the eligibility standard for special education.

Two decisions illustrate his point. In Hood v. Encinitas Union School District 486 F.3d 1099, 47 IDELR 213 (9th Cir. 4/9/7), the Ninth Circuit Court of Appeals held that the Rowley "some benefit" standard should be used in determining the second prong of the eligibility standard. Professor Weber points out that the Rowley standard applies only to whether services are appropriate. The analysis of whether a disability causes a child to need special education should be a much lower bar. Using the elevated standard, the Court held that a child with specific learning disabilities who made good grades but who had difficulty completing assignments, staying organized and submitting assignments to be not eligible.

The second opinion is Alvin Independent School District v. A.D. by Patricia F 503 F.3d 378, 48 IDELR 240 (5th Cir. 10/4/7). In that case, the Fifth Circuit Court of Appeals also used the Rowley standard (good grades and test scores) as well as the testimony of teachers that the student could succeed without special education to conclude that the student was not eligible. Accordingly the court ruled that a student with ADHD and a number of behavior issues was not eligible for special education.

You can find Mark's entire law review article "The IDEA Eligibility Mess," at this link:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1206202

Still Waiting - Is Pig Lipstick More Important than Special Education?

I still have not received a serious response to my ten questions to the candidates about their positions on special education law. There was a form response from Obama, which is surprising because the CEC Guide shows that he supports full funding of IDEA. Nothing from McCain. This is sad. Have we reached a point in our history where silly slogans, like say lipstick on a pig, have more meaning than positions on serious issues, like say special education? Is there still hope for democracy?

Next week, I'll be resending the message to the candidates for a third try. To refresh your memory, the ten questions are listed below.


Dear Candidate: ...
Please provide your answers regarding these questions pertaining to special education as well as any other positions on special education that you have. We will share all relevant answers we receive with our readers:
1. Please state your position regarding "full" funding of the individuals with Disabilities Education Act, "IDEA." School districts were originally promised federal funds in the amount of 40% of special ed costs when the predecessor to IDEA passed. IDEA funding is now less than 17%. Many people involved in education feel that it is the largest unfunded mandate. If you are elected, at what level will your first recommended budget fund special education? Please explain how you will pay for any increases in funding.
2. What is you position concerning the reauthorization of the No Child Left Behind Act, "NCLB" and IDEA.
3. What is you position concerning the reauthorization of IDEA.
4. In 1982, the U. S. Supreme Court decided 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). In that seminal case, the high court set the standard for the majority of special education cases by defining what a school district must do in order to provide a free and appropriate public education ("FAPE). Would you as President seek any changes in the Rowley standard?
5. Would you as President seek any legislative changes to reverse or modify the decisions by the Supreme Court in recent cases, including Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005); Arlington Cent. Sch. Dist Bd. of Educ v. Murphy 548 U.S. 291, 126 S.Ct. 2455, 45 IDELR 267 (6/16/06); or Winkelman by Winkelman v. Parma City Sch. Dist 550 U.S.____, 127 S.Ct 1994, 47 IDELR 281 (5/21/2007) .
6. Would you support any changes in the provisions regarding the awarding of attorney's fees in special education cases?
7. In general, would you likely support the positions of parents or school districts in cases alleging a violation of the special education laws?
8. What are your feelings about the Response to Intervention evaluation process? Should it be expanded beyond eligibility for specific learning disabilities?
9. Concerning NCLB, what are your thoughts concerning the principles of accountability and school sanctions. Would you propose any changes to the exceptions for students with severe cognitive disabilities or other students with disabilities for purposes of assessment?
10. What should be the role of the Office of Special Education of the federal Department of Education in interpreting and in enforcing the special education laws?

Eligibility for Special Education - Part I

There have been a bunch of decisions by courts and hearing officers in the last year and a half concerning special education eligibility. If I hadn't already seriously overused the term, I might call it a "hot button issue." Like just about everything else in the ever-changing field of special education law, eligibility certainly is a confusing minefield.

Many people are surprised to learn that in order to be eligible for special education, you need more than a disability. You must also by reason of your disability, need special education and related services. The IDEA defines “child with a disability,” i.e., one who is eligible for special education, 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)

If you have a disability but don't need special education, you might still have legal protection. For example, Section 504 and the ADA both cover a lot more kids, but IDEA is the special ed statute, and its definitions govern eligibility. If you are already confused, please raise your hand.

My friend Mark Weber, who teaches special education law and other good stuff at DePaul University College of Law, recently shared some of thoughts as to how the law is out of whack on this very important issue. His law review article on this topic, to my knowledge, is the first to quote this blog in a footnote, but that's not the reason I'm citing it.

The article also discusses the problems involving the new response to Intervention eligibility criterion for kids with learning disabilities and the over representation of African-American kids in special education. The portion of his article that I want to focus upon in the next part of this series of posts involves his persuasive argument that the courts and hearing officers are being too exclusive about the second prong of the IDEA eligibility criteria.

You can find Mark's whole article "The IDEA Eligibility Mess," here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1206202

Staying Currrent on the Law

How Important is Staying Current on Sp Ed Law? When I mention the name of this blog to people, they sometimes give me that look of impending boredom. "You blog about what?"I have been arguing the importance of special education law for years, but I found a more articulate statement of the case.

Here is a link to an article about a special education teacher with 36 years of experience. http://www.timesleader.com/news/special/Special_ed_teacher_has_seen_changes_08-24-2008.htmlIn discussing her longevity as a special education teacher she concisely and compellingly highlighted the importance of understanding the changes in the law. Here's a quote:

"The trick, she believes, is to get solid training and to keep up-to-date with the law, then implement the training with patience and respect.“ 'To attain a good working relationship, there has to be mutual respect, and you have to try to do that over the years, respect the students and the families and the situations they come from. I’ve always tried to remember that, whether working one-on-one, or in a large classroom.' ”

New Hot Button Issue - IEP Implementation Part III

I've gotten a bit of flack for my previous posts concerning my reading of IDEA that an IEP should be implemented. End of discussion.

The recent caselaw requiring a material failure to implement is, in my opinion, a significant change in the law. It has always been true that a de minimis failure to implement (eg. PT provider is sick for a few weeks) generally is not a denial of FAPE. (This is where all the lawyers say, "bad facts make bad law." There is often a kernel of truth behind cliches; indeed, why would one go through a due process hearing and layers of court appeals over a few hours of PT?)

For the most part, however, courts and hearing officers have required full implementation. For the doubters, here is a sampling of some recent cases: Roxanne J v. Nevada County Human Services Agency 46 IDELR 280 (E.D.Calif 11/28/6) (Court upheld HO who found a denial of FAPE where the district failed to provide psychological services called for by an IEP) Chicago Public Sch.s Dist. No. 299 (SEA IL 2/15/6) (here the school district provided only 50% of the services required by an IEP for the student’s fourth grade year, the student was denied FAPE) Bd of Educ of New York City 46 IDELR 299 (SEA NY 11/9/6) (District denied FAPE by failing to provide a climate controlled classroom as required by the IEP); Guntersville City Bd of Educ 47 IDELR 84 (SEA Ala. 8/18/6) (Where district inconsistently implemented the student’s BIP in her IEP, FAPE was denied); Sanford Sch Dist 107 LRP 8794 (SEA Maine 10/31/6) (failure to provided reading services required by IEP is denial of FAPE); Indiana Area Sch. Dist. 45 IDELR 25 (SEA Pa. 1/19/6)(The treatment of the student by her teacher is part and parcel of an appropriate education).

It will be interesting to see where this new line of material IEP Implementation cases takes us. Let me know what you think.

No Legal Advice - The Meaning of the Disclaimer

Occasionally people call me or post comments seeking legal advice about a specific special education case. I'm sorry to say that this blog is not set up to accomplish that function. As the disclaimer on the side of this blog states "(t)his Special Education Law Blog is intended for educational purposes only. Nothing said in the posts, comments or elsewhere in this blog should be construed as legal advice."

I don't like to do anything unless I can do it right. In order to give solid legal advice, I would first have to have a lengthy discussion of the often complex facts in order to make sure that I fully understand the situation. Only then would I be able to apply the rapidly changing law of special education to the facts of the case and give advice regarding legal options and discuss potential strategy. Otherwise, I might give bad advice, and that would impair my professional reputation.

Also I have a number of conflicts of interest to consider. I work for a number of states, either as a special education hearing officer and mediator, or else as a consultant on special education law. In those states I cannot and will not represent parents or school districts. If you are not in one of those states, you can hire me to represent your child or school district, but only if you are willing to put in the time to fully discuss the controversy. Blogs are great as a means of disseminating information on a topic, but they cannot yet replace the old fashioned yet very important lawyer-client interview process. I hope you understand why I must take this position. It is not that I am not interested in your situation; the blog just isn't the appropriate forum for such advice.

Preliminary "Response" from Obama Campaign

We have received a response from the Obama campaign that at least discusses education policy. Unfortunately it doesn't really address SPECIAL education, but hey at least they aren't ignoring us. By the way thanks to a tip from our buddy Justin, we have also attempted to leave our ten questions to the candidates as a comment on the Eduwonk website which is permitting the candidates to discuss education issues the next few weeks at http://www.eduwonk.com/2008/08/editors-note.html

The following is the verbatim response of the Obama campaign:

Dear Friend,
Thank you for contacting me about the critical importance of reforming America’s schools. I appreciate hearing from you on this issue, and I agree that we must do more to ensure that every child has the opportunity to succeed.Too often our leaders present this issue as an either-or debate, divided between giving our schools more funding and demanding more accountability. We should do both.Our kids deserve a better chance at every level – from preschool and summer school, to high school and college. Last year, I introduced the Innovation Districts for School Improvement Act, which provides grants to school systems that draft detailed plans for broad reforms at the district level. In addition, I have introduced a bill to promote summer learning opportunities for disadvantaged children, supported increased funding for the Head Start program to help provide preschoolers with critically important learning skills, and co-authored a bipartisan bill to help exceptional high school students enroll in college-level courses elsewhere if their school does not offer them.We can’t stop there. The demands of the modern global economy have made higher education more necessary than ever, even as the costs of college continue to soar. To address this, my first proposal as a U.S. senator was a bill to make college more affordable by increasing the maximum Pell Grant to $5100. I also cosponsored the Student Debt Relief Act, which encourages colleges to participate in the Direct Loan program, increases need-based aid, and decreases fees and interest rates for student loansFinally, the teacher is the most important factor in successfully educating our children, and we need to give our teachers everything they need to succeed. That means changing the certification process so that qualified applicants can avoid expensive additional coursework to become teachers; pairing up new recruits with master teachers; and giving proven teachers more control over what goes on in their classrooms. It also means paying teachers what they’re worth.
To learn more about my plans to revitalize education, please click here: http://www.barackobama.com/issues/education/
To read a major speech I gave on education, please click here: http://www.barackobama.com/2007/11/20/remarks_of_senator_barack_obam_34.phpI encourage you to share your own thoughts and policy ideas about education through the My Policy tool on the first web page linked above. Thank you again for contacting me about this important issue.
Sincerely,Barack Obama-------------------------------------Paid for by Obama for America

Silence from Obama and McCain

Maybe we're a bit impatient, but we haven't yet received a response from the major candidates for President concerning our questions about their positions on special education law. Perhaps two weeks is not sufficient time to respond, but we are beginning to wonder if we will receive any official response. Our fear is that we are being ignored. After all, we're Special Ed and WE VOTE!

The blogosphere is well suited for this sort of in-depth candidate issue inquiry. We hope that the candidates agree. We will also send them a copy of this impatient blog post.

Some of you have pointed out various education positions of the candidates. My favorite is this examination of the education positions on the candidates websites by the Council for Exceptional Children which appears to be both fair and informative: http://www.cec.sped.org/AM/Template.cfm?Section=Home&Template=/CM/ContentDisplay.cfm&ContentID=10450

Please let us know if you have additional information about the candidates positions on special education issues. We appreciate all the support and suggestions we have received on this topic, especially the big boost from the Edjurist blog at http://www.edjurist.com/ and all the suggestions from individuals and groups. Thank you. We will keep you posted.