Wednesday, October 29, 2008

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

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:

Monday, October 27, 2008

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:

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.

Friday, October 24, 2008

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:

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.

Wednesday, October 22, 2008

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:

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?

Monday, October 20, 2008

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:

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):

If you'd prefer a summary of their response to the education debate question, the CEC policy folks did a nice job here:

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 & at and by the Teachers College at The Webcast is being supported by the National Association of Secondary School Principals (NASSP).
For more information on the debate, please see this link:

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

Friday, October 17, 2008

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:

Wednesday, October 15, 2008

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:
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!)

Monday, October 13, 2008

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 & at and by the Teachers College at The Webcast is being supported by the National Association of Secondary School Principals (NASSP).

For more information on the debate, please see this link:

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.

Wednesday, October 8, 2008

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.

Monday, October 6, 2008

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:

Friday, October 3, 2008

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:

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