Great Education Law Conference

The 15th annual Education Law Conference just wrapped up in Portland, Maine. I caught up with some friends, including regular reader of this blog, professor Mark Weber. I met a whole bunch of new people who are interested in education law. I also got to work with eighteen terrific hearing officers and seven great due process coordinators from the North Eastern region at the Hearing Officer Academy offered at the conference this year.

One surprise was that I was asked to present on Monday because many of the scheduled speakers failed to navigate the suddenly unfriendly skies when the weather took a bad turn on Sunday. It was a challenge to give a presentation without any preparation. (I find that the key to a good presentation lies is the preparation.) But the participants were informed that I had been "drafted," and they were very charitable. I also was given a couple of excellent copresenters from SEAs in the region who helped me answer the questions from the participants. It was, overall, an exhilarating experience.

I also learned a lot about education law which, indeed, includes a lot more than special education.

New Hot Button Issue: IEP Inplementation Part I

How much of an IEP does a school district have to implement?

You may be scratching your head at this point. We were all taught that the answer is they have to implement all of it. That may be the closest thing in special education law to a solid, "hornbook law," set-in stone proposition. We all learned early on that parents and school districts could go through extreme battles over what an appropriate IEP should look like and contain, but that once they agree about the contents of an IEP, the IEP then defines the contours of FAPE.

As we have noted on this blog before, special education law is "new" law. As a rule of thumb, 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 ...(and this process repeats itself over and over until the last comic is standing or there is nobody left to vote off the island...)(sorry the last bit of reality TV humor is not really part of the process).

So anyway, concerning the "rule" that a district must implement all of an IEP, guess what? IEP Implementation has recently become, in our opinion, the hottest of hot button issues in special education law. This is the first part in a series on this new hot button issue.

As usual, a court decision started the ball rolling. 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.

Interestingly, the one dissenting judge read the statute the same way that we did. He would have found that a school district's failure to comply with the specific measures in an IEP to which it has assented is, by definition, a denial of FAPE, and, hence, a violation of the IDEA. The dissenting judge argue that IEP Teams, rather than courts, were in the best position to determine what elements are material, and therefore, require placement in an IEP.

We will have more on the hot button issue of IEP Implementation in the next installment in this series.

Deadline for Public Comments About New Regs Approaching

The deadline is Monday, July 28, 2008. If you care about special education law you should review the new regulation changes proposed by OSEP. If you have any questions or concerns about the new regs you should file a comment.


The federal Department of Education published the Notice of Proposed Rulemaking (or NPRM) on May 13, 2008. These will become federal regulations unless the DOE is persuaded by public comments to make changes (or in the highly unlikely event that the Congress were to get involved). Federal regulations have the force and effect of law unless overturned by a court of competent jurisdiction. Moreover, under general principles of administrative law, the commentary surrounding the reasoning for the regs is also entitled to some deference. So these regs are a big deal.


The comments that I filed concerned proposed 34 CFR Section 300.512(a)(1). This section governs what lay advocates may do at a due process hearing. I asked for the specific reasons that OSEP is changing DOE's previous and long standing interpretation of the law. OSEP had since 1981 consistently taken the position that lay advocates may represent parents in due process hearings, including asking questions of witnesses, cross-examination, filing briefs, etc. The Department has now backed off that position. Instead, the proposed reg repeats the statute to the effect that a parent may be accompanied and advised by an advocate at hearing, but states that whether parents have the right to be represented by non-attorneys at due process hearings should be determined under state law. I also asked whether it was OSEP's view that a state Department of Education could permit lay advocates to represent parties at due process hearings by state regulation or procedural rule or whether, instead, the ability of an advocate to represent parties at due process hearings turns on state law concerning the unauthorized practice of law.


The new regs also relate to consent, monitoring and allocation. The consent regulations are being changed to permit parents whose child is already receiving special education and related services to revoke the consent. In this situation, the school district would no longer be able to invoke the procedural safeguards, e.g. mediation or due process hearings, to override the lack of consent. Proposed 34 CFR Sections 300.9 and 300.300.


The proposed regulations may be found at http://www.ed.gov/legislation/FedRegister/proprule/2007-2/050907a.html


You can submit comments on the proposed regulations at the Federal Rulemaking Portal
http://www.regulations.gov/
Follow the instructions under "How to use this Site" and look for docket ID No. ED-2008-OSERS-005. Although the website has to transfer the comments to DOE, there is still some time if you want to submit comments electronically. Comment on!

Obama vs. McCain on Special Education Law

Do you know where the major candidates for President stand on the issues involving special education law? We don't!

We were inspired to think of this question by a post a while ago on the Edjurist Accord. Our buddy Justin pointed out that we don't really know where they stand on IDEA issues. So we here at the Special Education Law Blog are about to enter the political sphere. We feel that our readers should know the detailed special education positions of the candidates, and so we are going to ask them. This seemed like a very good use of the blogosphere doesn't it?

We'll ask about full funding of IDEA. School districts were 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%. Talk about an unfunded mandate!

We'll ask about Reauthorization of NCLB and IDEA. We'll ask about whether they might change Rowley standard. We'll ask about whether they will propose changes to the law in light of Supreme Court decisions like Murphy (expert W fees); Weast (burden of persuasion); Winkleman (pro se parents in court); and Buckhannon (attorney's fees).

We're also open to suggestions. We need your help. What would you ask the candidates about special education, and especially changes in the law you'd like to see. We will put together the requests in the next week or so and send them off to the candidates. If we get responses, we'll publish them here and try to get others to publicize them. If we don't we'll publish that fact and publicize it as well.

Please submit your suggestions as early as possible. We look forward to hearing from you!

Conference Reminder

If you want to learn a lot about special education law, and just plain education law, all in one place in a short time, I recommend some of the high quality conferences that are offered around the country...

This is a reminder that 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 other cool cosponsors organized this conference. 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, but I will also attend the whole conference to further advance my understanding of education law.

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 are going to be there, please find me and introduce yourself to me. By looking at the photos of me on this blog, you can see that I'm pretty easy to find. I always enjoy meeting people who read this blog and getting their feedback. I hope to see you there!

Two Tier Due Process Systems

A recent comment to this blog inspired me to write this post.

In my recent posts on Due Process Hearing Officers, and the defense thereof, I have been referring primarily to the hearing officers in one-tier systems. In those systems, the hearing officer writes the final administrative decision. The decision may be appealed to court, but there is no review by the State Department of Education.

To be clear, there are also some two-tier due process systems. Although the national trend clearly is to one tier systems, a number of states still have two tier systems. In these states either party may ask a State Review Officer to review the decision of the Hearing Officer. The SRO then makes the final agency decision. Some of the states that still use two tier due process systems are: New York, which accounts for more hearings than any other state and has more than 100 first level hearing officers, Oklahoma, which I sometime have the honor of working with, and Nevada, which has one of the fastest growing school districts. Pennsylvania which recently switched from a two tier to a one tier system, and which I also do occasional work for, also accounts for a large number of due process decisions.

The trend nationally in one tier systems is definitely toward more lawyer hearing officers. I believe that fewer first level two tier hearing officers are lawyers although I believe that most state review officers are lawyers. With the increasing complexity of special ed law, I think that a law degree is more important than ever. Moreover the 2004 amendments to IDEA require that all hearing officers must have knowledge of and ability to understand special education law. Section 615 (f)(3)(A)(ii)-(iv). I have known some good non-lawyer hearing officers, but I believe that the job is increasingly becoming more difficult for non-lawyers.

The commenter stated that a minimum of eight years of law practice should be required. I'm not sure that I would go that far, but the comment does point out that for a due process system to do its job correctly, the hearing officers must be competent. They must also be well paid, well supported and well trained. The hearing officers, in both one tier and two tier systems, are vital to the health and success of the due process hearing system which lies at the very heart of the procedural safeguards that the Supreme Court has pointed out are vital to the success of the special education policy established by the Congress. A. See, Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005).

The Checkered History of Special Education Law

My blogosphere friend Mitchell Rubinstein who writes the Adjunct Law Prof Blog has published a new law review article "Parents As Quasi-Therapists Under The Individuals With Disabilities Act", 76 Univ. Cinn. L. Rev. 899 (July 2008). The article addresses the challenging issue of whether parents should be reimbursed under IDEA when they serve as quasi-therapists for their own children. Due process hearing officers and courts sometimes face this and similar issues regarding relief that should be awarded to prevailing parents and students. You can link to the entire article here:

http://lawprofessors.typepad.com/adjunctprofs/2008/07/rubinstein-law.html

As usual, we found a wealth of other useful information in this law review article, especially in the footnotes. I really enjoyed the portion of Mitch's article that talks about the early days of special education law. This topic relates to my last post "Independence Day" in which I argue that we have come a long way baby. For example, in the law review article, there is a citation to a 1919 Wisconsin decision which upholds the exclusion of a student with paralysis from public school because his condition and ailment produced "... a depressing and nauseating effect upon the teachers and school children." Although the article credits the many states that did provide an appropriate education to students with disabilities, there is also a quote by a journalist who in the year that IDEA was passed observed a public school with “rows and rows of children and adults strapped to their chairs in a dimly lit room, a cacophony of moans and screams.” Although special education law has a checkered history, we have come a long way.

Today, the article notes, nearly seven million children receive special education because of IDEA. The article also notes the link between poverty and disability stating that 36% of those seven million kids live in households with an income below $25,000 and another 32 % between $25,000 and $50,000. We have previously commented at this blog on the link between poverty and the ability to learn as well as our strong impression that the IDEA procedural safeguards, especially the dispute resolution mechanisms, are primarily the province of wealthier parents and students. The article also notes the racial disparity, a disproportionate number of African-American children receive special education. We still have a way to go.

I highly recommend Mitch's law review article.

Independence Day

Friday is Independence Day. The Fourth of July is a big holiday for our country, and these days we really need a big holiday. Independence Day is also a time to reflect on the concept of independence.

For people with disabilities, independence is an important goal. Congress has stated that encouraging independent living for people with disabilities is the policy of the United States government. IDEA, Section 601(c). Indeed, one of the purposes of special education is to prepare children with disabilities for independent living. IDEA, Section 601(d)(1)(A).

Before passage of the EHA, the predecessor of the IDEA, in 1975, education of children with disabilities, who were then called "handicapped," was iffy at best. According to the legislative history of the EHA, which is quoted in the seminal Rowley decision by the Supreme Court, millions of children with disabilities were then either totally excluded from school or were warehoused until they were old enough to drop out. Bd. of Education v. Rowley, 458 U.S. 176, 191, 103 LRP 31848 (1982). At the time, it was estimated that of the eight million children who required special education, only about 3.9 million were receiving an appropriate education. Bd. of Education v. Rowley, 458 U.S. 176, 191, 103 LRP 31848 (1982).

These numbers are shocking. 1975 was not long ago. Yet we have made real progress since then. Special education may have its detractors, but it is now widely accepted. Very few children with disabilities are now excluded from school. Some still do not receive an appropriate education, but there are now remedies available when that happens. We have come a long way!

I realize that we are not finished. I do not advocate the display of a banner reading "mission accomplished." But as we look forward on this Independence Day to how we can do a better job of educating children with disabilities, let us also look back for a moment and congratulate ourselves on the excellent progress we have made in what in public policy terms is a very short time.

Happy Independence Day.