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.

Least Restrictive Environment vs. Mainstreaming

The federal special education law does not mention the words "mainstream" or "inclusion." IDEA does require that students with disabilities be educated in the "least restrictive environment." See the post on this blog from June 2, 2008 for more details on this requirement.

Despite the requirements of the law, many folks continue to believe that the law requires inclusion. A recent very good poll falls into this trap. The Hoover Institution survey of public attitudes on education provides a wealth of material. For example, the poll finds that with regard to the No Child Left Behind law, the country is strangely divided: 21% want NCLB renewed as is; 29% want it renewed with minor changes; 27% want it renewed with major changes and 24% don't want it renewed at all. Now that is a lack of consensus! You can read the whole poll report here: http://www.hoover.org/publications/ednext/26380034.html

Concerning children with disabilities, however, the poll is less enlightening. The following is a quote from the Hoover Institution report which implies that mainstreaming is required:

"Mainstreaming the Disabled Approximately 15 percent of the country’s elementary and secondary school population have been classified as needing special education, which is partially supported by federal funding under the Individuals with Disabilities Education Act (IDEA).Diagnoses can range from minor learning problems to autism and severe mental retardation to a range of emotional and behavioral disabilities. Whatever the disability, the law mandates that a disabled student be educated in the “least restrictive environment,” a phrase that implies differential treatment depending on the disability, but increasingly has come to mean the “mainstreaming” in standard classrooms of all but those with the most severe disabilities. According to the U.S. Department of Education, the share of disabled students considered to be “fully mainstreamed” has risen from a little more than 30 percent in 1989 to over 55 percent in 2005. Between 1995 and 2005, the share of “emotionally disturbed children” who spend more than 80 percent of their time in a regular classroom jumped from 17 to 35 percent. Neither teachers nor the public as a whole express much support for the practice of mainstreaming emotionally or behaviorally disabled children. When asked whether students “who have been diagnosed with emotional and behavioral disabilities should be taught in regular classrooms with other students,” only 25 percent of teachers, and 28 percent of the public, favor the idea. The rest say they should be “taught in separate settings instead” (Q. 15).

15. Some people say that students who have been diagnosed with emotional and behavioral disabilities should be taught in regular classrooms with other students. Other people say that these students should be taught in separate settings at the school. What do you think should be done with students with emotional and behavioral disabilities?"

In answer to this question, 28% of the nation said regular classroom to 72% separate settings. All racial and ethnic groups and teachers gave similar answers. My problem is the preface.

What not to Say to a Cabbie!

I have been trying to avoid blogging about the radio talk show host Michael Savage. He recently made some nasty comments to the effect that the rise in numbers of children with autism is attributable to something akin to permissive parenting. While his comments are outrageous, they have little to do with the "law" part of the special education law blog.

Well I guess it was inevitable that the law would collide with the infamous radio talk show host. After the excellent Education Law Conference, some of us decided to try to get some Maine lobster. It was raining, so we took a taxi. The driver has the radio on really loud and some classic windbag was yakking about tomatoes, NAFTA and Mexico.

So I ask the cabbie who he is listening to on the radio. (NOTE: My strengths do not include sitting quietly when talking is an option.) He says it is Savage. I mention that my work sometimes involves autistic kids and that I didn't appreciate his comments about them. (This is where the "what not to say to a cabbie" part comes in.) The cabbie then launches into a long rant about people not being legally able to spank their kids (aside- I don't think that this really is the law anywhere), and how Savage is a smart guy because he has written books (I've never heard that argument before; maybe he hasn't read some of the books that I have) and that the country is in deep trouble because liberals and terrorists are out to get truth-tellers like Savage.

Fortunately, Portland Maine is not a big city and we arrived at the restaurant about then. We paid the cabbie and got into the restaurant as quickly as we could. So much for my attempt at dialogue. Perhaps the taxi is not really the best forum for such a discussion. Yet I feel strongly that I will continue to have interesting conversations with cabbies about special ed topics. By the way the lobster was fantastic!

New Hot Button Issue: IEP Implementation Part II

In the previous installment in this series, we discussed Van Duyn ex rel Van Duyn v. Baker Sch Dist 5J 481 F.3d 770, 47 IDELR 182 (9th Cir. 4/3/2007). In that decision, the Ninth Circuit majority found that minor discrepancies between the services actually provided and those specified in the IEP do not constitute a violation of IDEA. To constitute a violation, a school district’s failure to implement an IEP must be material, the court ruled. 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."

This came as pretty big news to many of us, including the dissenting judge on the Ninth Circuit Court of Appeals panel, who thought that the "rule" was that a district pretty much had to implement all of an IEP. We also pointed out that "rules' in special education law generally must be written in pencil and on scratch paper and placed in a looseleaf binder.

Special education law, it seems, is new law. We don't have "hornbooks." It isn't like the lawyer's best friends- contracts and property law. Things keep changing. Nobody knows how a court is going to rule until the court rules, and occasionally, not even then.

Well, as one might well expect, Van Duyn is probably not going to be the last word here. That's where the hot button status comes in. Other courts have reached the opposite conclusion

For example, in DD by VD v. New York City Bd of Educ 465 F.3d 503, 46 IDELR 181 (2d Cir. 10/12/2006), the United States Court of Appeals for the Second Circuit was presented with the school district’s argument that partial implementation of IEPs constituted the necessary ”substantial compliance” required by IDEA. The Court rejected that argument and held that substantial compliance in IDEA pertains only to a district’s right to receive funding. The Court concluded that FAPE obligation as defined in part by the child's IEP, on the other hand, requires “compliance.” End of discussion.

If the Second Circuit opinion sounds a bit different to you than the holding of the Ninth Circuit, welcome to the uncertain world of special education law! If you prefer clarity of rules and centuries of precedent, you just might be a property lawyer. Forget lawyers, imagine the looks I get when I try to reconcile these types of disparate outcomes to teachers and building principals or to parents. It must be a tough time to be a professional educator or to be a parent of a child with a disability.

We will discuss the new hot button issue of IEP implementation further in a future installment in this series.

How to Find Material On This Blog

A number of newer readers have asked us how to find material on the special education law blog. There are a number of ways to find stuff. The best way, of course, is to subscribe so that you always receive our posts. You can subscribe by email or get our posts in an rss or other reader. Just click on the links below my picture on the left hand side of the blog. Our subscribers are now 154 in number and growing! Welcome new readers!

The seven most recent posts appear when you go to the blog. In addition older articles are contained in the archives which are about half way down the left hand side.

Just below the archives is the search bar. There you can search the entire blog if you are interested in a particular subject. By searching, you'll be able to find the posts in our seven part series on dispute resolution mechanisms and our five part series on other procedural safeguards. You'll also find our thoughts on rural special education, various proposed regulations, the tribulations of the due process hearing officer, my observations of the United States Supreme Court in action (twice), hot button issues - like bullying and IEP Implementation, and other current issues in special education law.

Please also note that concerning finding information outside this blog, we have added two other education blogs to our blogroll. The First is Special Education Today which summarizes many sources of material on special education everyday. The other is On Special Education which is the blog of the thoughtful Christina Samuels at Education Week. We have been very hesitant to expand the blogroll to be sure that we include only trusted sources of material for our readers. We believe that these two blogs meet that test. Your feedback about these new blogs would be appreciated.

McCain vs Obama on Special Education - Dear Candidate

We announced recently that we would be sending the presumptive nominees of the two major political parties for President some questions on special education law. We feel strongly that the two have said very little about special education, and we feel that there is a need for our readers to have some information. Thanks to all who have made suggestions.

We will be sending and email to the candidates web addresses that will include the following content after a brief explanation as to who we are:

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?