Wyoming Conference Was Outstanding

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Well the first leg of my summer tour has begun, I participated in the Wyoming Special Education Leadership Symposium. It was a great conference,

On the first day of the conference, the inspirational Mike May gave the keynote address. Later in the morning, I participated on a panel with six other lawyers concerning the current trends in least restrictive environment cases. The panel made a number of excellent observations.

After lunch, I co-presented with the very well respected Julie Weatherly on the topic of meaningful educational benefit. We tried something new. I first read some hypothetical fact situations, Then Julie presented some key caselaw. I then led some discussion on applying the law to our hypos. The session was packed and it went very well.

Then for the last session, participants could choose among six breakout sessions. My session was on dispute resolution. The participants were very interested and participated a lot, which I always like.

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Mike May: A Truly Inspirational Person

At the first stop on my summer tour, I heard a truly inspirational speaker. Mike May is an entrepreneur. He has set speed records for skiers and he has crashed the winter Olympics. He has pioneered a device that assists visually impaired people like a pda with GPS technology included.

Mike, who was blind, had successful surgery to partially restore his sight. He is a risk taker.

His philosophy is summed up as follows:
seek challenges;
use work-arounds;
really use alternative tools and techniques;
with tenacity; and
there is always a way.

Here is his website.

More on Mike May in future posts.

An Apology to Stepchildren

The title of a post last week referred to Section 504 and the Americans with Disabilities Act as the "red-headed stepchildren" of special education law.

I have received a few complaints from stepchildren saying that this language was offensive. I'm sorry.

I thought the phrase. Was a good metaphor for the forgotten and neglected. My operating premise was that step kids are discriminated against as a group. I must admit that my research consisted only of my faint memory of the Cinderella story.

In any event, I apologize if I hurt anybody's feelings.

Oh, by the way ... I also really love redheads!
Sent from my BlackBerry wireless device from U.S. Cellular

Jim Gerl's Magical Mystery Tour Begins Next Week

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While I continue to work on the name of my 2010 special education law summer tour, it is imminent. You may already know about the tour, but if you read this blog and you will be in any of these places while I am there, please let me know or come by and say hello. I always enjoy meeting readers of the blog. These are only the conferences that are open to the public although in some instances, my presentation may not be open to the public. Please check the registration sites for more specifics.

(I kinda like the Magical Mystery Tour metaphor though- what do you think?)

I have made a semi-permanent gadget on the left-hand side of the blog which states where I will be and includes registration links where available. PLEASE NOTE: none of the state departments of education or other agencies or sponsors of these conferences in any way endorse this blog. My comments, here and elsewhere, are my own and should not be taken to represent the views of the sponsoring organizations or any other entity. (That was what we call a disclaimer; there is a purpose for lawyers.)

From July 27 - 29, 2010, I will be at the Wyoming Special Education Leadership Symposium in Lander, Wyoming. I will be part of a panel discussing least restrictive environment issues; I will give a paired presentation with the highly regarded Julie Weatherly (a big honor for me) on educational benefit and I will be doing a solo session discussing dispute resolution options.

I will attend the Utah Institute on Special Education Law on August 2 - 3, 2010 at the Eccles Center in Ogden, Utah, and I will do a (non-public) hearing officer/mediator training the next day.

From August 30 - September 1, 2010, I will be at the Arizona Special Education Directors Institute in Litchfield Park, Arizona. I will do repeat presentations on the role of the non-attorney advocate in IEP team meetings and due process hearings.

I will for the sixth straight year be a part of the faculty at the National Association of Hearing Officials Annual Conference from September 26 - 29, 2010 in Music City, Nashville Tennessee. I will be presenting on the prehearing process and on ruling on objections.

So there it is, please stop and say hello if you will be nearby. Again the name challenge- if you have a better name for my tour than Magical Mystery Tour, please leave a comment or send an email. Time is running out.

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Section 504 and ADA - the Redheaded Stepchildren of Special Education Law

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Almost all discussion of special education law concerns IDEA, the Individuals with Disabilities Education Act. This is the key statute and the basis for at least 95 % of all special education cases. there are other sources of special education law but we rarely talk about them.

In particular, section 504 of the Rehabilitation Act and the Americans with Disabilities Act are other candidates. These other statutes really live in the shadows of special education law. I must confess that I tend to not give these laws as much thought as I probably should, yet they are important laws that could affect special education.

My friend and regular reader of this blog, Professor Mark Weber has written a new article on this topic. You can read the article here. In this article, Professor Weber addresses whether 504 and ADA could provide alternatives to IDEA given the recent expansion of theses two laws by Congress. The article also discusses the obligations to students under these laws; the exhaustion doctrine; and remedies available under 504 and ADA. I recommend that you take a look at this important review of these alternative sources of special education law.

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When Politics and Disability Laws Collide

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Here's a question: Do you think that disability laws and political activism are compatible?

Apparently a new Disability Power and Pride Political Action Committee has been formed. Here is an article on the topic from Disability Scoop. Here is the group's website.

We know that all laws are written by legislative bodies and that money is the mother's milk of politics. Should disability advocates organize and raise funds for candidates? The U S Supreme Court has recently ruled that throwing huge amounts at politicians is both protected free speech and and a necessary ingredient in apple pie.

IDEA and NCLB will both be reauthorized, maybe soon. What do you think? Should those who have opinions about changes to be made in the law organize? What about raising money for those who support their changes?

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Education Research Priorities: Future Fun with Numbers

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We have a wide variety of special education stakeholders who regularly read this blog. Many are professors or academic researchers in the field of education. This group will be very interested to know that the National Board for Education Sciences of the Institute of Education Sciences has announced its new priorities. You can view them here. The Institute of Education Sciences is a part of the Office of Special Education and Rehabilitative Services (OSERS) of the U. S. department of Education. The other subparts are the Office of Special Education Programs (OSEP) and Rehabilitation Services Administration (RSA)

The public can comment by September 7, 2010. You may comment by mail, by commercial delivery or over the internet. Internet comments can be made here. Pony Express comments go to: Elizabeth Payer, U.S. Department of Education, 555 New Jersey Avenue, NW., room 602c, Washington, DC 20208.

Why should the rest of us care? Well inasmuch as this is a representative democracy, our taxpayer dollars are being spent on some of these projects. As good citizens, we have a say in how the funds are spent. So, even if like me you have occasional arithmetic issues, take a look at the priorities. If you have a reaction, then let the feds know what you think. Democracy at work!

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Breaking News: Facebook Special Education Law Group Now Has Over 800 Members

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Just last week we mentioned the awesome Facebook special education law group. Well guess what? The group now has over 800 members.

Talk about street cred; we are becoming a force to be reckoned with! Combined with the large number of subscribers to this blog and the related groups, like Facebook and LinkedIn, plus those who follow our related tweets, our posse is pretty impressive indeed.

Seriously, this is why we are credible in the special education community. It also explains why we win awards and get exclusive interviews, like the Alexa Posny interview shortly after she was named Assistant Secretary of OSERS. So first of all - thank you. Your patronage is appreciated. It is good to know that you are listening.

If you haven't visited the Facebook group, please do so. The discussions are always interesting, and the membership mirrors the readers of this blog. It includes a wide variety of special education stakeholders, Here is a link, check it out!

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Georgia Public Schools Ban Seclusion & Place Limits on Restraints

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The Georgia State Board of Education last week enacted a broad policy on seclusion and restraints in the public schools of the state. The new state rules prohibit seclusion; the use of chemical restraints (like prescription psychotic drugs); mechanical restraints (like handcuffs); and prone restraints. The bill also regulates other restraints and requires parental notification when the restraints are used on a student. Here is a news article from the Atlanta Journal-Constitution.

Federal legislation has been passed by the House of representatives, but the Senate has not yet acted. Georgia is one of the first to pass its own state law on the topic. Look for more state to act given the senate's reluctance to take up such an important issue in an election year.

New Jersey families who oppose the use of seclusion and restraint have their own website. Missouri has required local school districts to develop written policies on seclusion and restraint. What is happening with regard to the regulation and control of seclusion and restraints in your state?

As I had predicted on these pages, seclusion and restraints is the hot button issue of this decade in special education law. Stay tuned.

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Social Network Groups for Special Education Law - Update

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In addition to this incredible blog, we have also sponsored a number of special education law groups on various social networks. These groups, we hope, utilize some of the new technologies to encourage further discussion of topics that interest some or all special education stakeholders (as you may have noticed, I love that word; do stakeholders generally have stakes in their hands? The imagery is fantastic!)

The Facebook group is the most successful. At last count, we had some 783 members. The discussion boards sometimes reflect the emotion that comes with special education conflict, but the discussions are always interesting and generally very informative.

The LinkedIn group is also very active. A lot of special education types have connected through that group. Communication is a wonderful thing. The Plaxo group is still new, but we have great hopes for it.

The Ning group will likely soon meet its demise. Ning will no longer be free soon, and the internet really should be free. Free Ning!

Don't forget that you can also sign up for our tweets on Twitter. Or you can use the mobile version of this blog to read the posts on your mobile phone.

Most important of all, if you haven't already signed up for a free subscription, please do so in order to avoid missing our posts. You can subscribe to receive our posts by email, or by RSS feed in a reader or aggregator, or if you have your own blog or website, you can get a blidget(=blog = widget) to insert directly into your website or blog.

Links for the free subscriptions, the social network groups, and the other services mentioned in this post are available on the lefthand side of the blog.

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So Misunderstood: Category of Disability - Part II

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Last week we ran the first post in this series. There we discussed that one of the few clear rules of law in special education is that the category of disability for a child is irrelevant for all purposes other than eligibility. Particularly offensive is the use of the category of disability to determine services. This type of stereotyping is the false assumption underlying most types of discrimination.

In the next two posts, we're going to look at some of the caselaw supporting this proposition.

In Re Student With a Disability 108 LRP 25080 (SEA WV 11/12/7) One of the fundamental concepts of the IDEA is that each child with a disability should receive an IEP that is individualized to his individual needs. The IDEA does not concern itself with labels but whether a student with a disability is receiving a free and appropriate public education. A disabled child's IEP must be tailored to the unique needs of that particular child. The child's identified needs, not the child's disability category, determine the services that must be provided to the child; In re Student with a Disability 108 LRP 26467 (SEA WV 12/19/7) The category of eligibility is not relevant once a student is determined eligible; services are determined by the individual needs of the student and not her categories of eligibility; In Re Student With A Disability 52 IDELR 239 (SEA WV 4/8/9) (same);

Pohorecki v. Anthony Wayne Local Sch Dist 637 F.Supp.2d 547, 53 IDELR 22 (N.D. Ohio 7/23/9) Court held that IDEA does not require that children be classified by disability. IDEA requires that a child who needs special education and related services receives an appropriate education. Court specifically rejected an alleged denial of FAPE based upon refusal to add another category of eligibility.

Seladoki v. Bellaire Local Sch Dist Bd of Educ 53 IDELR 153 (S.D. Ohio 8/28/9) Court ruled that choice of methodology by school district must be based upon the individual needs of a student. Court rejected parent’s argument that all children with autism require 30-40 hours per week of ABA services.

Anoka-Hennepin Indep Sch Dist 50 IDELR 147 (SEA Minn 4/28/8) District provided FAPE where its IEP met the child’s needs; fact that child not found eligible in a particular category that parent wanted is not relevant because services are not to be determined on a categorical basis.

Letter To Brumbaugh 108 LRP 33562 (OSEP 1/15/8) IEP services must be based upon the student’s unique needs and not his disability category.

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Independence Day - Part Two

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The following is a post I ran last year about Independence Day. I really like it, so here it is again:

Today is Independence Day. The Fourth of July is a big holiday for our country, and these days we really need a big holiday. I have always loved this day; what other country believes in an inalienable right to pursue happiness! Independence Day is also a time to reflect on the concept of independence.

For people with disabilities, independence is an important goal. Congress has stated that encouraging independent living for people with disabilities is the policy of the United States government. IDEA, Section 601(c). Indeed, one of the purposes of special education is to prepare children with disabilities for independent living. IDEA, Section 601(d)(1)(A).

Before passage of the EHA, the predecessor of the IDEA, in 1975, education of children with disabilities, who were then called "handicapped," was iffy at best. According to the legislative history of the EHA, which is quoted in the seminal Rowley decision by the Supreme Court, millions of children with disabilities were then either totally excluded from school or were warehoused until they were old enough to drop out. Bd. of Education v. Rowley 478 us 176, 191, 103 LRP 31848 (1982). At the time, it was estimated that of the eight million children who required special education, only about 3.9 million were receiving an appropriate education. Bd. of Education v. Rowley, 478 US 176, 191, 103 LRP 31848 (1982).

These numbers are shocking. 1975 was not long ago. Yet we have made real progress since then. Special education may have its detractors, but it is now widely accepted. Very few children with disabilities are now excluded from school. Some still do not receive an appropriate education, but there are now remedies available when that happens. We have come a long way!

One other important indicator of independence is very encouraging. In the 2008 presidential election over 14.7 million people with disabilities cast a vote. This is a record number and more than 3.8 million more people with disabilities voted last year than in 2000. Here is a blog post from Disability Scoop about this excellent story.

I realize that we are not finished. I do not advocate the display of a banner reading "mission accomplished." But as we look forward on this Independence Day to how we can do a better job of educating children with disabilities, let us also look back for a moment and congratulate ourselves on the excellent progress we have made in what in public policy terms is a very short time.

Happy Independence Day.

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Special Ed Funding: Is the Bad Economy a Hot Button Issue?

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We have suggested here before that the bad economy is a hot button issue in special education law. We are still not seeing many cases that deal with the cost of services directly, but a few have appeared.

Readers have suggested that we are more likely to see a back door effect. Perhaps the economy will play a role in decisions without being a topic of discussion - many have suggested.

We have seen layoffs- sometimes given the more suitable red-tape name "Furlough Fridays." Layoffs have hit teachers in many states and even administrative law judges in some.

Here is another case in which I'll bet the economy plays some role. A coalition of school districts in Washington state has filed a legal action complaining that the state does not adequately fund special education in violation of the state constitution. Here is a brief history of the lawsuit by the Alliance for Adequate Funding of Special Education. The Alliance got the trial court to rule that a cap on the number of special education kids the state would pay for to be unconstitutional, but upheld the overall funding formula. The appellate level court affirmed. On June 22nd, the state supreme court heard oral arguments. Here is a news account by the Issaquah Press.

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