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.