Wednesday, August 5, 2009

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.

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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?
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  1. Hi Jim! I think that there is already a provision within IDEA regs that somewhat speaks to this issue -- Part 300/D/300.324/a/2 (sorry, I'm sure I'm not rendering that citation correctly)

    (2) Consideration of special factors. The IEP Team must--

    (i) In the case of a child whose behavior impedes the child's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior;

    (ii) In the case of a child with limited English proficiency, consider the language needs of the child as those needs relate to the child's IEP;

    (iii) In the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;

    (iv) Consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode; and

    (v) Consider whether the child needs assistive technology devices and services.

    It seems like the UN treaty makes that a "must," though, as opposed to a "this would be best unless the IEP team deems otherwise."

    Are UN treaties enforceable in American courts?

  2. Very perceptive Christina,

    You're right. Most of that paragraph is covered. But I'd expect an argument that the last sentence of the paragraph creates a more potential-maximixing FAPE standard. At least that would be the argument.

    As to treaties over statutes, we really get into law review territory here, and I was obviously not affiliated with the law review, but I believe that treaties trump statutes but not the Constitution. I have no citations and this is based upon memory- always dangerous for me!

    I appreciate your thoughts.


  3. Jim,
    First, I have to quote Obama in his remarks on July 24, 2009 regarding the signing of the U.N. Treaty:

    “So I'm proud of the progress we've made. But I'm not satisfied, and I know you aren't either. Until every American with a disability can learn in their local public school in the manner best for them, until they can apply for a job without fear of discrimination, and live and work independently in their communities if that's what they choose, we've got more work to do.”

    The statement, “in their local public school in the manner best for them” entails more than Obama may realize. If broad statements such as these are in the treaty itself then yes, to answer your question, this will come up in special education hearings. As a special education teacher, it is comments similar to these that give parents false hope. I say false hope in the sense that as laws come down the ladder, parents expect their child to automatically get what they think works best for their child, and they may not always take into consideration how this is played out at the district level. We can only implement what is best, in their local school, if we have the funding to do so. I just hope more clarification is detailed in the treaty itself to prevent more due process hearings, not increase them.

    Just sharing my novice opinion.

  4. Thanks Allison,

    We appreciate your opinion.

    The President's statement is a higher goal than the Rowley standard. Usually the comments of elected officials don't get the same weight as the text of the law, but your point is well taken.


  5. Jim,

    Fantastic thought you've got there! Thanks for letting us know about this. I agree this seems to expand the FAPE standard. I suggest that you, as a HO, cite to the treaty in one of your decisions (only where appropriate, of course) and share it with us here. Someone has to get the ball rolling, after all. No reason why it can't be a thoughtful HO like yourself.

  6. LS,

    Thanks for your thoughts.

    Please note that I never discuss any actual cases here. As a HO I only deal with arguments made by the parties. Also, as some readers have pointed out, I'm not sure how treaties may be cited in individual cases.

  7. I came with a question, and this post only heightened my curiosity. Most of what I will disclose are hypotheses not facts, and I'm looking to validate, or revise them based on input.

    It seems to me that NCLB, IDEA, and FAPE seem to target students who have mild issues that lead to underperformance such as ADD or Dyslexia for example. What seems instead to happen is these students either:

    a.) perform at an average level so are denied testing, and are not given accomodations. I've even see this happen to students who have been tested outside of the school and are diagnosed with a learning disability.


    b.) A student is tested and placed on an IEP with either the Primary listed as ADD, Sensory, or "Other Impaired". I rarely see Dyslexia on IEP's or 504's, and yet according to recent research (Shaywitz 2002) 70% of reading disabilities are caused by Dyslexia.

    Why don't I see this reflected on IEP's or 5O4's very often? I have known it to be a struggle to get dyslexia as a primary disability on an IEP even with a "positive" test from an outside Neuro-Psychologist. Funding (outside of the initial evaluation) shouldn't be a huge issue. These disabilities are addressed with alternative instruction methods.

    This link tells an all too very familiar tale, and the solutions provided seem like they'd work, however... they do not. Can anyone address this conundrum (this, to me, is the holy grail of public education) My hypothesis is that it is linked to lack of teacher and administrator training (a gap in training at the University level) primarily, and possibly a gap in the law (I'm not sure that dyslexia is specifically named in FAPE, while other disabilities are).

    I also can't figure out why schools wouldn't want to address this issue as it might affect their ability to meet AYP (and test scores) later. Why all the resistance? I know there is a reason, I just don't know what it is.

    I am not naive enough to believe that schools should or can test EVERYONE. I understand why there is the wait to fail standard (though I despise it!!!), but we are specifically talking about parents who test their own children.