Who Votes for This Clown? Virginia Legislator Refers to Kids with Disabilities as a Curse.

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One has to wonder about our electoral system. Exactly how does a person get elected to public office? I have read a lot recently about the Supreme Court's extreme judicial activism in relation to its shredding of the campaign finance laws. Is the result that our elected representatives are now truly the finest that money can buy?

My current discontent with all things elected is attributable to a Virginia state legislator, Delegate Robert G. Marshall (R. Prince William). He recently made a speech against Planned Parenthood and during his address he said that subsequent children born to women who have abortions are more likely to be "handicapped" because of vengeance and punishment from God. Here is the Washington Post story.

The logic here is stunning. This guy apparently believes that kids with disabilities are a curse. Has he ever met a kid with a disability? How could he possibly think this? I'm not so interested in the gotcha moment as I am in the underlying, and truly dark, belief about people with disabilities that this argument reveals. This was not a casual misuse of the "R" word, it was an insight into a way of thinking about people with disabilities that I thought that we as a society had outgrown. I'm shocked.

The people who write the special education laws on the state level are, unfortunately, people like this guy? Am I right to be worried?

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Title I funds to be Tied to Higher Standards

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President Obama told the National Governor's Association this week that it is not acceptable that American eighth graders rank 9th in the world in math and 11th in science. He told them that states are going to have to up their games, and he informed them that Title I funds (part of the Elementary and Secondary Education Act, better known as No Child Left Behind) will be linked to states adopting higher standards, either as a part of the movement for common standards or on their own in conjunction with state universities. Here is a news article from the Los Angeles Times.

The proposal has already met with opposition. For example, the influential National School Boards Association has adopted a position criticizing the proposal as coercion. Here is their press release.

How would the President's proposal affect kids with disabilities? What do you think?

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On the Odd Way We Name Special Ed Cases and Why People Hate Lawyers - Revisited

You may have noticed my blog posts last week on the odd way we name special ed cases and why people hate lawyers. I have begun a new crusade to leave last names out of our case names in order to protect the privacy rights of children with disabilities.

My thinking in this respect was colored by my annual review of special ed cases. (Hey somebody has to do it!) I also criticized the lawyer who tried to get a pleading in a particular special ed case dismissed as an "anonymous pleading." As usual, I got carried away and suggested that these sorts of arguments are at least one factor explaining why people don't like lawyers.

Why would somebody make such an argument, I wondered? Well as I compared the 2009

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cases to 2008 versions, I found an answer. In another federal trial court in the same state as my offender, I found the decision in SR & MC ex rel MC v. Bd of Educ of New York City 49 IDELR 255 (S.D. NY 2/25/8). In this decision, the court held just the opposite. In other words, the court threatened dismissal of a special ed case unless the parents gave the full names of the parents and the child within a week. I now know why the lawyer made the argument. What I cannot explain is how the 2008 court could make this decision. This may be an example of why people don't like courts. The lawyer, however, had at least a basis for the argument.

What do you think?

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On the Odd Way We Name Special Ed Cases and Why People Hate Lawyers - Part II

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In the previous post in this series I discussed the law requiring protection of personally identifiable information concerning kids with disabilities. I stated my opinion that courts do terrible job of naming cases. I ended by trying to start a movement to take all last names out of the case names in special ed law!

I was reminded of this problem during my review of 2009 special ed law cases. (Yes I have nothing better to do!) The names of cases sometimes hide the identity of the child and sometimes not so much. Please see the last post in this series.

Here is the case relating to this topic that reminded me why people don't like lawyers: In CB ex rel EB v. Pittsford Central Sch Dist 53 IDELR 75 (W.D.NY 9/18/9), the parents lawyer did a good job of filing the case so as to protect the identity of the child. The bad part comes next; the attorney for the school district filed a motion to strike the complaint as an "anonymous" pleading. These kinds of things are why people don't like lawyers.

What was the lawyer thinking? Was this serving his client? I understand that lawyers have an ethical obligation to zealously represent their clients, but isn't this pretty clearly over the line? What legitimate purpose could be served by naming the child?

The court denied the motion citing the privacy protections contained in IDEA. No harm done, but really?

Now I realize that there are other reasons why people do not like lawyers, many of them our own fault. But this example really drives the point home I feel.

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On the Odd Way We Name Special Ed Cases and Why People Hate Lawyers - Part I

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As I made my way through the 2009 special ed law cases (I know it's an odd pilgrimage, but hey everybody likes something), I was reminded of the odd way that we name special ed cases. I have often wondered about this.

The premise is that we need to protect the identity of the children involved. I agree with that, and it is clearly supported by law. IDEA requires that public agencies preserve personally identifiable information related to children with disabilities. §617(c). See 34 C.F.R. § 300.625. FERPA has similar requirements. 20 U.S.C §1232, et seq and 34 C.F.R. Part 99.

So ok we need to have initials in case names, but sometimes the effort is really half-hearted. (NOTE: you probably get it, but to be sure: the following examples are purely fictional.) Some courts do it well: For example AG by JG v. Looney County Board of Education. In some places it may be JG ex rel AG v. Looney County Board of Education. ("ex rel" is Latin; I'm not sure of the precise translation, but it means "on behalf of") Both of these examples work. The identity of the child is preserved.

But I have seen many examples last year where the name of the case hides very little. For example this tells me too much: AG by Gerl v. Looney County Board of Education. When we spell out the last name in the case name, do we not tell everybody exactly who we are talking about. Especially where the county is rural, we are personally identifying the kid, aren't we? Even if Looney were a large urban school district, how many special ed kids named Gerl could there be?

I want to start a movement right here and now to stop using last names in pleadings involving special ed kids. Are you with me people?


In the next post in this series, I'll give you an example illustrating things lawyers do that causes people not to like them.

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The Recession & Special Ed Revisited - Part II

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Ok so now you know that I am still worried about the economy. those who know, raise your hands!

My review of the IDEA cases for 2009 raised a few red flags about the economy, but not so many as I had feared. In a previous post, I discussed the issue of furloughs in some states. This seems like a bad public policy on so many levels! Also, one state is threatening to stop contracting with related service providers. Once again, this is bad news for students, parents, not to mention OTs, PTs, speech therapists, and psychologists.

The 2009 cases had one other potentially disturbing trend- courts are talking openly in some cases about the cost or expense of services. Once again, at this point, these are red flags not even really alarms just yet. But we should pay attention.

I believe that the current state of the law is that expense or cost of a service is not an excuse for not providing the service if a child with a disability needs it in order to receive meaningful ( or some) educational benefit. I can even cite a Supreme Court decision for that proposition: Cedar Rapids Community Sch. Dist. v. Garret F. 526 U.S. 66, 119 S.Ct. 992, 29 IDELR 966 (1999).

But two recent and fairly high profile cases talk about expense. The decisions are: Ashland Sch Dist v. Parents of Student EA 587 F.3d 1175, 53 IDELR 177 (9th Cir. 12/7/9); and Forest Grove v. TA 53 IDELR 213 (D.Oregon 12/8/9) .
Now it should be noted that these were both cases involving reimbursement for a residential placement and the decision in each case turned on other factors. The portions of the opinion I am concerned with are "dicta" (lawyer talk for language in a decision that is not critical to the reasoning of the outcome).

Nonetheless, in EA, the Ninth Circuit found that the District Court had not abused its discretion by considering the alleged excessive cost of a residential placement where the court concluded that the placement was for medical and not educational needs. And in TA, the Oregon District court weighed several equitable factors including the fact that the parents chose arguably the most expensive placement available.
So what do you think? Are these red flags that the economy is affecting special ed law? How many think I'm overreacting, raise your hands!

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Breaking News: Facebook Group Now has 700 Members!

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The Facebook Special Education Law group which we started in conjunction with this blog now has over 700 members. congratulations on passing another milestone group. It is a great resource and the home of many lively discussions about topics related to those we talk about here. If you haven't checked it out yet, try it here. New members are welcome.

You can find a permanent link to the group on the lefthand side of the blog. Also there are links to special ed law groups on Ning, LinkedIn, Plaxo and Twitter. The groups vary, but the level of knowledge and the passion for kids with disabilities among many diverse types of stakeholders remains constant.

Also on the lefthand side of the blog is a place where you can register for a free subscription to this blog. You have three options, you can receive the posts by email, or by RSS feed in an reader or aggregator, or if you have your own blog or website, you can get a blidget (or blog widget) to insert directly into your website. It helps us if you subscribe. In the blogosphere, there is credibility in numbers. Our number of subscribers plus the Facebook and other social media membership plus our Twitter followers and the other followers and readers that consist of our posse, gives us a ton of credibility. It explains why we got the first big exclusive interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS. Thanks for subscribing and reading!

While you are checking out the other resources on the lefthand side of the blog, like the links to IDEA and the federal regs or the links to other blogs or the CEC widget (it's a blidget), don't to forget in our ongoing poll. The polls are not meant to be "scientific" measurements, but they are fun. The current topic is what would you like to see when they amend the special ed law when IDEA is reauthorized? Currently further regulation of seclusion and restraints is leading with a razor thin margin. Be sure to vote.

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The Recession & Special Ed Revisited - Part I

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Like everybody else, I am obsessed with the bad economy. For those who have seen me do presentations, you know that I ask a lot of questions. Lately during a series of questions that are supposed to make people think, I have taken to asking, "how many are too worried about the recession to answer my questions." At that point almost everybody raises their hand.

I recently asked on the blog poll question- given the economy, should cost/expense be a defense. The answer was overwhelmingly no. And I believe that this is consistent with Supreme Court precedent.

However, some of our astute readers suggested that maybe the economy is coming in the back door. We have posted here before, for example, that the hearing officers who hear due process hearings in California have been forced to take days off without pay. Apparently they are not alone, teachers in Hawaii, including special ed teachers, have been forced to take 17 furlough Fridays throughout the school year. The federal trial court has rejected two challenges to the new policy as an alleged violation of IDEA. ND v. State of Hawaii, Department of Educ 53 IDELR 186 (D. Haw. 10/21/9) and DK & AK by Kellet v. State of Hawaii, Department of Educ 53 IDELR 187 (D. Haw. 10/22/9).

On top of that, I just came across an article on KHON2.com explaining how the special ed teachers are trying to make up the time. It was interesting that the Hawaii state superintendent also seems to indicate that outside contracts will be substantially limited. I'm going to go out on the limb once again and predict that this statement will lead to lots of hearings and lawsuits.

What is the relationship between appropriate education for kids with disabilities and the recession? What do you think? Are the back door effects of the recession serious?

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House committee Passes Seclusion & Restraints Bill

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The Committee on Education and Labor of the House of Representatives approved a bill limiting the use of seclusion and restraints on students. Here is the official release. The official name of the bill is H.R. 4247. Here is website with additional resources concerning the bill. An article in Disability Scoop also discusses the legislation

Among other things, the bill limits the use of these techniques to cases of imminent danger; requires that staff using these techniques be properly trained; outlaws mechanical restraints; requires parental notification and establishes oversight mechanisms.

The legislative effort follows the GAO report last spring that detailed a ton of abuses of school children, most of whom were children with disabilities. The GAO study followed a similar report by the National Disability Rights Network entitled "School is Not Supposed to Hurt."

The bill now moves to the full House for a vote. If you care about this issue, please call or write or email your Representative in the House. This website will help you find and contact your Congressperson.

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2011 Federal Education Budget: What's in it for Special Ed?

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The 2011 budget proposed by the Obama Administration provides 12.8 Billion Dollars for Special Education Programs. Here is the analysis by the U. S Department of Education. I tend to get overwhelmed by big numbers, perhaps inspired by former Senator Dirksen who used to say, "... a million dollars here, a million dollars there, and pretty soon you're talking about a lot of money." Maybe modernly we should change "million" to "billion" or even "trillion," yet I digress.

When the Congress passed IDEA, the federal special education law, in 1975, it promised full funding of IDEA which was supposed to be 40% of the excess cost of special education. The proposed budget continues the 17% funding level. Many groups have commented that this is not in keeping with the full funding campaign pledge. For example, here is an article by the Council for Exceptional Children.

Another issue will be the hole created by the disappearance of stimulus funds. The Recovery Act poured a lot of money into education, including special ed. The 2011 budget provides no help for school districts who will no longer have access to these funds.

I am aware that the economy is not doing well. I also am not among those who necessarily equate the number of dollars budgeted to the quality of services received. Nonetheless, this budget is disappointing. Special education remains the biggest unfunded mandate in the federal system. I was hoping for more funding!

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Is Special Ed Too Litigious or Not Litigious Enough?

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The number of due process hearings in special ed disputes has increased nationwide over the last two decades. This link is to a pennlive.com article discussing the topic. The article quotes Professor Perry Zirkel for some of the reasons for the increase, including the recognition of autism and ADHD as disabilities for purposes of eligibility.

I have great respect for Professor Zirkel and I generally agree with him. One area where we differ, though is whether the special ed hearing system is overlegalized, as he contends. I contend that in the ten busiest jurisdictions, the system probably is overlegalized. In other places, especially in rural or isolated areas of the country, however, I think that the system is underlegalized. I am active in ACRES, the rural special education organization, and many of their members agree with me on this point. There are many places where parents, and sometimes even school districts, cannot find a lawyer familiar with special ed law. As the article above suggests, the income of the parents may be the best indicator of whether they can assert their rights under the procedural safeguards.

I don't think that increasing the number of due process hearings is a goal, but if the problem is that there are parts of the country where legal representation is unavailable, that is not healthy. Similarly, if there are people not assessing procedural safeguards because they are not wealthy, maybe we should design a new and different system.

What has been your experience? What do you think?

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Charters: Students With Disabilities Need Not Apply?

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That is the title of a very good op-ed piece that recently appeared in Education Week by Professor Thomas Herir of the Harvard School of Education. Here is a link. I want to thank professor Herir for giving me permission to quote from his article in this blog.

Here is a quote:

"With the Obama administration and many state governors calling for more charter schools, it may be time for policymakers to address directly the issue of these schools’ imbalanced enrollment of students with disabilities.

The enthusiasm for charter schools, which was also high during the administrations of Bill Clinton and George W. Bush, reflects the desire of many parents to have choice within the public system. This desire has only been heightened by research showing superior results obtained by charters.

In a performance comparison of Boston charter school students with those not admitted, for example, Harvard University professor Thomas J. Kane found that the students attending charters outperformed their peers at traditional public schools. His research, however, was designed with the recognition that charter students are different along some critical, perhaps immeasurable, dimensions from students attending traditional schools. This is especially true in relation to students with disabilities: Traditional public schools are serving far greater numbers of them than charter schools, particularly those whose disabilities require significant special education services."

The article then goes on to cite a number of studies that show that students with disabilities are under-represented in charter schools. This is disturbing and brings to mind the recent post on these pages about the law review by Professor Mark Weber regarding some issues with charter schools and kids with disabilities. As the political support for charters increases, we need to keep a vigilant eye on how charters are welcoming and educating kids with disabilities.

What has your experience with charters been like?

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