A Tribute to Senator Edward M. Kennedy

The recent death of Senator Edward M Kennedy has saddened us. He was a terrific fighter on behalf of children and adults with disabilities. His co-sponsorship of the Americans with Disabilities Act helped prohibit discrimination against people with disabilities. Here is an interesting blog post concerning Sen. Kennedy's championing of the rights of people with disabilities.

Senator Kennedy was also a cosponsor and a significant force behind the passage of the Education of all Handicapped Children Act, the predecessor of the Individuals with Disabilities Education Act, the federal statute governing special education. He was also a major force behind the passage of the No Child Left Behind Act. In addition, Senator Kennedy was Chairman of the Senate's HELP committee which has jurisdiction over education iss

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ues. His impact on the special education law in this country cannot be underestimated.

Here is the official position of Senator Kennedy on the issue of disability rights. His obituary in the Boston Globe can be found here.

Perhaps the best way to remember Senator Kennedy lies in his own frequently repeated and inspirational words, "For all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die."

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Follow-up (Corporal) Punishment: Are Children with Disabilities Disproportionatley Arrested at School?

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We recently ran a post on a study that shows that kids with disabilities are disproportionately singled out for corporal punishment. As a follow-up, another recent study claims that standards should be developed because research shows that children with disabilities are arrested at school by in-house police officers at a disproportionate rate. The study by the ACLU may be found here. A blog item discussing the study may be read here.





This makes me wonder what the heck is going on out there. The imagery of excessive physical punishment and of excessive criminalizing of children with disabilities is quite disturbing.

I think that most of us will likely agree that these days and in these times police officers presence in the school building is necessary. There have been too many outrageous tragedies to suggest otherwise. But maybe some standard training for school-based police concerning children with disabilities is a good idea. Have any of you had any experiences concerning this issue?

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New Hot Button Issue: Service Dogs

There are a growing number of cases involving service dogs. I have seen a few cases in the last couple years. An interesting example occurred last week. A school district in Illinois apparently refused to let a five year old boy with autism bring his service dog to school. The boy's parents filed a court action, and last Thursday the Judge entered an injunction against the school district. Like many states, Illinois by law permits service dogs in any public building. The Judge ordered the district to permit the service dog to accompany the boy to school. Some of the links in this paragraph will lead to the local news articles.

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I think that many people are not aware of service dogs other than those who work for the visually impaired. I was at a conference a few years ago, and I learned a lot about service dogs. They really do a lot for many people with disabilities. Here is a great short video showing a service dog in action.

Are any of you aware of other legal actions involving service dogs? I believe that this is another area of special education law that is about to see some serious activity.

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Expense as a Defense Poll Update; Tech News

Our current running poll concerns whether in these hard economic times, the expense of services should be considered a defense in an action alleging a violation of IDEA. We are starting to see some activity on the poll. So far those who have answered No cost is not a defense have a commanding lead with 14 votes. Yes has 5 votes and Maybe has 2. One respondent pleads that he or she is too poor to vote. Be sure to vote now; let you voice be heard. (We make no claims to any scientific value to our polls; they are for the fun of our readers only.)

We have also created some other venues to inform and stimulate discussion in the blogosphere. Fully embracing the spirit of the internetS, we have created a number of related special education law groups. Each of the following has a growing number of participants. On the following pages you will find interesting discussion boards; passionate arguments and comments that will make you think. Please take some time to explore them. Our first venture was the special education law group on the Facebook social networking site. We have since added groups on the Ning site; the Twitter site; the LinkedIn network; and on the Plaxo site. There are permanent links to each special education law group, as well as a number of other useful websites, on the lefthand side of this blog

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. In addition we have fixed it so that you can follow our Twitter mini-posts on the lefthand side of the blog.

The number of subscribers to this blog continues to grow. This really helps our credibility; thanks. If you would like to have a free subscription, you have three options all high on the lefthand side of the blog. You can receive the posts by email by clicking on that link. If you have an RSS reader or feed aggregator, some smartphones are equipped for such readers, you can subscribe by clicking on the feed link. Finally if you have your own blog or website, you can obtain a blidget- or blog widget- for this blog and insert it right into your blog or website. Again, thank you for subscribing, numbers help.

The "new" technology is somewhat frightening to many people, but it really is amazing in terms of its capacity to make information available to people. How did folks find out about special education law before the internet? How did people post to their blogs from conferences before there were cellphones and voice recognition software?

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New GAO Report on Teacher Preparation of General Ed Teachers for Teaching Children With Disabilities

The Unites States Government Accountability Office has just released a study on the preparation of general education teachers to teach students with disabilities and English language learners. The report is very interesting for a number of reasons.

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Because IDEA require that children with disabilities be educated in the least restrictive environment that is appropriate, it is crucial that general education teachers be trained to teach kids with disabilities as a part of their teacher training. The vast majority of special education children spend a significant portion of their day in the regular education classroom.

This study concludes that between 67 and 73% of teacher training programs require at least one course on educating children with disabilities. How can that number not approach 100%? More significantly, only 51 to 58% of teacher preparation programs require some field experience with children with disabilities. The types of field experiences required varied widely.

Another problem unfortunately too common in government found by the study was that there are multiple agencies with responsibility over teacher preparation. The report concludes that better coordination among the six agencies that oversee this topic should be required.

You can read the report here. A one page summary of the report may be found here.

This study raises some serious questions. It will be interesting to see the reaction of the federal Department of Education.

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Reflections on the IDEA Remedies Tour: The Nature of Compensatory Education

This is the second in a multiple part series of posts on my IDEA Remedies Tour, the joking name I gave to my presentations this summer on the major remedies available when the parent/student prevails in an IDEA due process hearing or appeal. I really love the people part of these conferences, but the next several installments involve the legal aspects of these remedies.

The main purpose of this blog is to educate people about the rapidly changing field of special education law. The next posts in this series may be somewhat technical

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, but hey, that's the law baby! (Note, some font changes here seem to be beyond my control. I plead ignorance.)
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The Nature of Compensatory Education

Compensatory education is a form of relief that may be awarded by a hearing officer or court after finding a violation of IDEA. It constitutes an award of services to be provided prospectively in order to compensate for a deficient educational program provided in the past. G ex rel RG v. Fort Bragg Dependent Schools 40 IDELR 4, (4th Cir 8/6/03).

Although the U. S. Supreme Court has not specifically recognized the availability of compensatory education, it has declared that courts, and presumably hearing officers, have broad equitable powers to fashion appropriate relief where there has been a violation of IDEA. Burlington Sch. Comm. v. Dept. of Educ., et. al. 105 S.Ct. 1996, 556 IDELR 389 (1985). In the same decision, the high court recognized that reimbursement for a unilateral placement was among the appropriate relief that could be granted for such a violation. Burlington, supra.

Since Burlington courts and hearing officers have reasoned that because reimbursement is a viable remedy for an IDEA violation, compensatory education must also be among the relief that may be granted for such a violation. The logic is that if reimbursement for obtaining compensatory services may be granted, failure to recognize the ability to award compensatory services themselves would make the child’s ability to obtain relief dependent upon the resources of his parents to effectuate a unilateral placement. Such a result would not be consistent with IDEA’s purpose of ensuring that every child with a disability have available to him a free and appropriate public education. See, Reid ex rel Reid v. District of Columbia 43 IDELR 32 (D.C. Cir. 3/25/05).

Reflections on My IDEA Remedies Tour - Part I

As some of you have noticed, I've had some fun describing my two speaking engagements last month as the IDEA Remedies Tour. I spoke in early July at the Seattle University Academy for IDEA Hearing Officers on the topic of compensatory education. Lotsa changes going on in the law as to the remedy of compensatory education. By the way, I'm not talking about the Title I definition of compensatory education for poor and culturally deprived children. (Why do we so often use the same phrases to mean different things? Are we trying to confuse people?) Instead, my session was on the changes in the law of compensatory education, meaning the remedy when a parent/student prevails in a special education case.

In late July, I presented two sessions at the 16th annual Education Law Conference in Portland, Maine. One of my topics was the remedy of reimbursement for a unilateral placement. I was lucky enough to have a recent United States Supreme Court decision on that very t

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opic in time for my presentation.

In the coming installments in this series, I'll be sharing some of the substantive "meat "of my presentations, and some new hot button issues that I discovered by attending these conferences. Today, I want to make a few general comments and observations.

First, I love these conferences. In addition to presenting, I learn a lot. Presentations by other experienced hearing officers and special ed law experts, like my friend Professor Mark Weber, are invaluable. The exchange of information and the high level discussion of the issues really helps me to stay on top of the difficult and ever-changing body of special education law.

Second, the networking opportunities are excellent. I get to visit with many old friends, and I invariably make a bunch of new friends. Thanks to all of you. I know that many readers of this blog could not attend these conferences this year, although a number of you were there. For those who couldn't make it, the next posts in this series will concern some of the substance of my presentations. As always, I would appreciate the responses and reactions of our many readers.

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Are Children With Disabilities Singled Out for Corporal Punishment?

A recent study shows that children with disabilities are disproportionately the subject of corporal punishment. Most states no longer permit corporal punishment, but where it is permitted, kids with disabilities are all to frequently the recipients of the punishment. whether children should be spanked at all is probably beyond the scope of this blog.

The entire study may be read here.

When coupled with the recent revelations about the abuses concerning seclusion and restraints, particularly concerning children with disabilities, this new study is certainly a cause for concern.

The discipline provisions of IDEA only deal with a disciplinary change of placement. Could paddling of a child on an IEP ever be considered a change of placement? If yes, must there first be a manifestation determination? If not, should the law be amended given this new study? As usual I have more questions than answers. What do you think?

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9th Circuit Rules: Rowley Still Good Law

The United States Court of Appeal for the Ninth Circuit has confirmed what most of us had expected: the U. S Supreme Court decision in Rowley, et al v. Board of Education 553 ID

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ELR 656, is still good law.

At the trial level, the U. S. District court had held that the 1997 amendments to the IDEA had changed the definition of FAPE, the IDEA's primary guarantee that a child with a disability receive a free and appropriate public education. Given new language in the goals of the 1997 amendments, the district court held that the Rowley decision, requiring only that and Individualized Educational Plan be reasonably calculated to confer some academic benefit, set the bar too low. JL & ML ex rel KL v. Mercer Island School District 46 IDELR 273 (W. D. Wash 12/8/6)

On appeal, the Ninth Circuit rejected the reasoning of the district court. The appelate panel found that Congress did not intend by the 1997 amendments to overrule the Rowley standard. The Ninth Circuit cited three reasons for disagreeing with the trial court's analysis. First, Congress did not amend the statutory definition of FAPE. Second, Congress did not require attainment of transition goals in order to rceeive FAPE. Third, Congress did not express dissatisfaction with the educational benefit standard or express an intention of overturning the standard. JL, et al v. Mercer Island School District 109 LRP 48649 (Ninth Cir. 8/6/9). You can read the entire court opinion here.

It is interesting that most school district lawyers say that the Ninth Circuit is the most anti-school district circuit. Despite that reputation, this decision is very pro district. I do believe that most special education lawyers will agree with the result, however. So what do you think? Did the Ninth Circuit get it right?

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Facebook group now over 500

The Facebook special education law group now has more than 500 members. It is amazing how fast it has grown. It is a fun place to share resources and to discuss current issues. One can even make friends there. Check it out here. Congratulations to the group members. It was only July 11th, when we crossed the 400 member milestone. Talk about a hot ticket.

There is also a new Plaxo special education law group. For those who use the Plaxo service, it may be found here.This complements the special ed law groups on Ning (here), LinkedIn (here) and Twitter (here.) These social networking sites provide nice mechanisms for spreading the word or for arguing the policy underlying the law. See if you like them. There are also permanent links to these sites on the left-hand side of the blog.

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The number of subscribers to the blog is also growing quickly. Remember that there are three ways to get a free subscription. Email right to your inbox; through a reader or aggregator by RSS feed; and as a widget, or blidget, appearing right on your blog or website. The big numbers really help the credibility of a blog. Thank you subscribers.

Don't forget to vote on our current poll. The Question is given the economy, should cost or expense be a defense in special ed cases? Right now No with seven votes is beating both yes and maybe with two votes each. One slacker claims to be too poor to answer. Exercise your right to be heard: vote in the poll.

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Seclusion and Restraints - Part II

On Monday, Arne Duncan, the secretary of the U. S. Department of Education sent a letter to the heads of the state Departments of Education instructing them to review their state policies on seclusion and restraint in view of the alarming May 19th GAO report and the subsequent Congressional hearings. The letter also favorably mentions the use of Posit

Image by House Committee on Education and Labor via Flickr

ive Behavior Interventions and Supports as a strategy. In addition, the letter advises the state heads that they will be contacted by August 15th by federal Department of Education staff and that they

should be ready to discuss their state policies on these topics. The press release accompanying the Secretary's letter may be found here. The letter itself can be found here.

It will be interesting to see if this inquiry by the Secretary will lead to additional legislation concerning the abuse of seclusion and restraints, which are often employed for students with disabilities. These changes, if they occur, could involve the Individuals with Disabilities Education Act or other possibly new statutes.

At present the IDEA only requires functional behavioral assessments and behavior intervention plans where there has been a manifestation determination resulting in a finding that the student's misbehavior is a manifestation of his disability. Section 615(k)(1)(F). The only reference to positive behavior supports is in the section on IEP development and requires the use of positive behavior interventions and supports, and other strategies, when the student's behavior impedes his own learning or the learning of others. Section 614(d)(3)(B)(i).

What do you think, will the provisions of IDEA be beefed up, or will there be another statute, or will nothing happen? Dust off those crystal balls, and get me your predictions.

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Obama Administration Signs UN Treaty on Disabilities

The United States signed the United Nations Convention on the Rights of Persons With Disabilities on Friday. This was a change of policy position from the previous administration. The treaty prohibits discrimination against the more than estimated 650 people with disabilities. 142 countries have now signed the treaty.

President's Obama's remarks noted that one in five American's live with a disability. He noted FDR's disability and the fact the most American's were unaware if it. He also briefly reviewed the Americans With Disabilities Act and the Individuals With Disabilities Education Act.

Franklin D. Roosevelt via last.fm

You can read the entire treaty here. Other helpful information concerning the convention can be found at this United Nations website.

I am wondering whether this treaty might be argued as additional authority in special education due process hearings in the U.S. This proves two things: I am very thoughtful and I have too much time on my hands. The answer is probably not, but there are two provisions that might be argued.

Article 23 deals with separation of parent and child because of the disability of either.

Article 24 deals more directly with education and states that countries "... are to ensure equal access to primary and secondary education, vocational training, adult education and lifelong learning. Education is to employ the appropriate materials, techniques and forms of communication. Pupils with support needs are to receive support measures, and pupils who are blind, deaf and deaf-blind are to receive their education in the most appropriate modes of communication from teachers who are fluent in sign language and Braille. Education of persons with disabilities must foster their participation in society, their sense of dignity and self worth and the development of their personality, abilities and creativity"

What do you think. Will this come up in special ed hearings?