Awards, Honors, Bells & Whistles: The definition of FAPE

We were very pleased to learn that this blog is now second in the voting for Best Educational Blog in the hotly contested Blogger's Choice awards. The exposure from being second has gotten us a bunch of new readers. Welcome. Thanks to all those who have voted for us. Those who haven't yet voted can click on the badge on the left side of this blog or you can vote at the following link (note- you must first register with some username and then confirm the registration by email) :

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

We are honored by your support. We also appreciate our recognition as a winner of the Blog of the Day Award. Our most recent honor is that this blog has been listed on the Alltop lists of top blogs in the areas or education and law. As the button on the left side of the blog notes, "we're kind of a big deal." Thanks to the folks at Alltop. You can check out their lists by clicking on the Alltop button.

Concerning the bells and whistles, you can, and you really should, subscribe to this blog by clicking on the links on the left-hand side of this blog just below my picture. You can subscribe by getting each post through an email, or by getting an RSS feed to a reader. That way you won't ever miss any new post when it is fresh off the presses. (For you digital natives, that expression refers to the days of newspapers.)

We've also changed some of the elements on the left side of the blog. we've removed some of the older polls and added a brand new one. The question in the new poll is "Has the definition of FAPE changed?" Some feel that the No Child Left Behind Act has changed the definition of FAPE because state standards are now higher. Some have always felt that the Rowley standard, ie that FAPE requires only that the child receive some meaningful educational benefit, sets the bar too low. Others like the current definition of FAPE, either because Rowley is just right or because it is too high but we're stuck with it. Or as one very cynical educator said to me once, special ed kids should get the same crappy education we give to everybody else. Anyway however you feel, please vote so that we can gauge the sentiment of our readership on this issue which is now being hotly debated in special education law circles.

Post concerning Hearing Officers

Apparently I haven't mastered this yet. I wrote a post that I thought would appear yesterday, but because I began work on a draft of the post, it appeared on the blog before last week's post. I even used the new bell and whistle of adding a photo right there inside the post.

If you missed it because of my error, I'm sorry. Any way, there is a great new post about what hearing officers really do and why they should get more respect. Unfortunately it showed up on the blog bearing the date of June 5, 2008. Please look for it. Thanks for reading.

15th Annual Education Law Conference

One of the best ways to learn about special education law is to attend conferences. This is also a good way to network with others who are interested in this ever-growing field of law.

I will be at the 15th Annual Education Law Conference in Portland, Maine July 28 to 31, 2008. The University of Southern Maine plus a number of cosponsors put the conference together. In addition to numerous excellent sessions on education law topics, there are strands on higher education, creative use of technology, law-themed education and a new Hearing Officer Training Academy. I will be the featured presenter for the Hearing Officer Academy, and a number of other distinguished faculty will participate. Further information about the conference may be found at:

http://www.usm.maine.edu/pdc/edlaw/

You can register for the Conference on the link on the left-hand side of this blog or at:

http://www.usm.maine.edu/pdc/edlaw/register.htm

If you will be attending the conference, please let me know or look for me there. I always enjoy meeting and talking to those who read this blog. I hope to see you there.

In Further Defense of the Hearing Officer

In a recent post, I mentioned the low level of respect accorded due process hearing officers in the world of special education law. I continue to believe that hearing officers are not properly valued, and I have decided to begin a campaign to increase the awareness of what hearing officers really do.

When parents and school districts disagree and cannot resolve their differences, they often end up in a due process hearing. If they try to skip the due process hearing and go directly to court, the court will generally dismiss the action for failure to "exhaust administrative remedies." See, Coleman v. Newburgh Enlarged City Sch Dist 503 F.3d 198, 48 IDELR 208 (2d Cir. 9/25/7). So the due process hearing is almost always the only "trial ." Either party has a right to appeal the hearing officer's decision to a court, but the court will generally not allow further factual development unless the hearing officer really messed up the hearing or new evidence is developed. So the hearing officer has a lot of responsibility.

Not much caselaw exists concerning how a hearing should be run. This is likely a result of the standard generally applied to the judicial review of administrative hearing officer decisions. Courts will likely overturn a decision for procedural reasons only where the hearing officer has "abused his discretion." Ex parte Medical Licensure Comm'n of Alabama 897 So. 2d 1093,
1096-97 (Ala. 2004). This is a vague standard, but it implies at least some deference to the rulings and orders made by the administrative hearing officer. The reason why the administrative hearing officer is vested with substantial discretion in determining hearing procedures is that discretion “… is indispensable whenever individuality is needed…The administrative process allows discretion in order to take care of the need for individualized justice…” Old Abe Co. v. New Mexico Mining Comm. 908 P.2d 776, 121 N.M. 83 (NM S.Ct. 12/11/95).

I'm an advocate for extensive training of hearing officers concerning how to apply these discretionary procedures in a fair manner. I'll admit a bias here: some of my work involves training hearing officers, for special education hearings and for other types of hearings. Nonetheless, I strongly believe that high quality skills training is essential for hearing officers. That is why I will be giving skills-based trainings at the Hearing Officer Academy next month.

In any event, the work of the special education hearing officer is very important. The hearing officer is essential to the proper working of the due process system. I recognize that due process is only one dispute resolution mechanism, and, indeed, I advocate mediation as the mechanism most likely to restore the relationship of parents and school personnel. Hearings, however, remain an essential procedural safeguard that is absolutely necessary to the guarantee of FAPE to children with disabilities. Accordingly, hearing officers should be respected. They also should receive sufficient training and support from the state department of education to be able to do their jobs well. Their independence and freedom to make their own decisions should never be challenged.

As you can see, to further signal my solidarity with the brotherhood of hearing officers, I have added one permanent photo of me being a hearing officer to the left side of this blog. Also, I am experimenting with adding a new element, including a photo inside this post. Once again, I am presiding over a hearing.

Survivor: Special Education Edition

My recent posts concerning disability discrimination were meant to drive home the point that even discrimination which should be readily apparent can sometimes be missed. On the other hand, sometimes it is just too ridicules to be believed.

In case you missed it, newspaper reports indicate that a Florida kindergarten teacher was recently removed by the school board after she had the class vote on whether a five year old, who had been diagnosed with autism spectrum disorder and ADHD, should be removed from the classroom. Apparently the class first discussed how it felt about the student's inappropriate behaviors, and then voted him out by a margin of 14 to 2. If the board finds the allegations to be true, the teacher will likely be fired.

Here are some of the press accounts:

http://www.tcpalm.com/news/2008/may/27/school-district-reassigns-teacher-after/

http://www.palmbeachpost.com/treasurecoast/content/tcoast/epaper/2008/05/31/m1b_slteacher_0601.html

http://www.abajournal.com/news/mom_considers_suit_after_class_voted_to_expel_her_autistic_son/

http://www.palmbeachpost.com/treasurecoast/content/tcoast/epaper/2008/05/31/m1b_slteacher_0601.html

This is just sad. How humiliating for a little guy to be kicked out of kindergarten by his classmates at the invitation of his teacher. I anticipate that a lawsuit will follow, and with good reason. The discrimination is unfortunately very clear here.

This sad situation raises some serious legal questions. The first and most obvious is: what the heck was this teacher thinking and how could she do this to a young child. After the first question, however, there are other issues. For example, what kind of behavior intervention plan was in place to appropriately deal with any behavior problems. One also must wonder what appropriate supports, modifications and aids were in place to ensure that this mainstream placement would be successful. Many people are surprised to learn that the words "inclusion" and "mainstream" are not found anywhere in IDEA. The law does require, however, that each student with a disability be placed in the least restrictive environment (LRE) that is appropriate for that student. Those who work for LRE placements in IEPs should consider all factors that might help the child to succeed, including appropriate supports, modifications and aids.

In this case, the possible absence of supports by no means justifies the appalling incident of child abuse in this case. The key point here is that this teacher acted in a most outrageous manner. Discrimination is not always subtle.