Wednesday, June 27, 2012

OSEP Rules re Mediation and Consent Revocation

Seal of the United States Department of Education
Seal of the United States Department of Education (Photo credit: Wikipedia)

I am a fan of mediation as a mechanism for resolving special education disputes. Unlike due process hearings or state complaints, mediation is well suited to deal with the relationship issues that arise in these conflicts.  We are talking about the education of a child, and as we know, it takes a village...

You can hear and actually see me address this topic and others as a part of "Voices From the Field," a collection of viewpoints from people in the special education dispute resolution field. The videos are located on the CADRE website.  You can find mine here.

The federal Office of Special Education Programs has reiterated that IDEA mediation cannot be used in the situation where a parent revokes consent for special education services.  The regs already say that, but I wondered whether mediation could be used if the goal was not to override the parent, but instead to insure that the revocation decision was based upon informed consent if the parents agreed.  OSEP said no, that IDEA mediation could not be used even if the parents agree.  Letter to Gerl (OSEP June 6, 2012).  By the way, this is the second Letter to Gerl so now I'm really famous! Autographs are available!
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Friday, June 22, 2012

Breaking News: New GAO Report Charter Schools & Kids With Disabilities

Seal of the General Accounting Office, from 19...
Seal of the General Accounting Office, from 1921 until being renamed in 2004. (Photo credit: Wikipedia)

In a new report, the federal Government Accountability Office, nee the General Accounting Office, has found that charter schools enroll a smaller percentage of children with disabilities than public schools do.  In school year 2009-2010, about 11% of children enrolled in public schools were children with disabilities.  During the same period, about 8% of children enrolled in charter schools had disabilities.

The authors of the report are unsure why the charter schools numbers were lower and do not attribute any conclusion, but critics have charged that some charters do not accept enough children with disabilities.  See, Weber, Mark C., Special Education from the (Damp) Ground Up: Children with Disabilities in a Charter School-Dependent Educational System (October 12, 2009). Loyola Journal of Public Interest Law, Forthcoming. Available at SSRN:, Students With Disabilities Need Not Apply,” by Prof. Thomas Herir, (op-ed piece) Education Week online January 25, 2010,

As always, you should read the report yourself.  You can read the entire GAO report here.  A summary is available here.

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Thursday, June 21, 2012

Mediation and Consent Revocation - Revisited

Mediation Headquarters
Mediation Headquarters (Photo credit: Aaron Landry)

I am a shameless advocate of mediation.  I know that it has its detractors, even among some groups of lawyers. I remember that certain groups of plaintiffs lawyers considered mediation, as well as arbitration and anything else that was a part of ADR (alternative dispute resolution)  was  bad.

But the more I see of dispute resolution in special education, and I have seen a lot, the more I am convinced that mediation is better than the alternatives.  Mediation is best suited to help fix the long term relationship between a family and school personnel.

When the new consent revocation rules were adopted by OSEP on the last day of the previous presidential administration, I was surprised that mediation was removed as an option when consent is being revoked.OSEP has recently reaffirmed that mediation is not an option under those circumstances.  More on that next week.

For today let me just say- too bad.
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Friday, June 15, 2012

Boise is Beautiful

Greetings from beautiful Boise, Idaho.

I'm here for a training. Great town.

PS: this post was made from my phone. JG
Sent from my BlackBerry® wireless device from U.S. Cellular

Wednesday, June 13, 2012

Procedural Safeguards The Series: Part XI

Old gavel and court minutes displayed at the M...
Old gavel and court minutes displayed at the Minnesota Judicial Center (Photo credit: Wikipedia)
This is the eleventh installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful.

Procedural Violations

Section 615 (f)(3)(E) provides that the decision of the hearing officer must be on substantive grounds. Moreover, this section also provides that in matters alleging a procedural violation, a hearing officer may only find a denial of FAPE if the procedural inadequacies impede FAPE; or significantly impede the parents’ opportunity to participate; or cause a deprivation of educational benefits. Many courts had already read the old IDEA to the same effect. For example, see, D. L. ex. rel. J. L. v. Unified Sch. Dist. 42 IDELR 139 (Tenth Cir. 2004); M. L. v. Federal Way Sch. Dist. 39 IDELR 236 (Ninth Cir. 2003); and Gadsby v. Grasmick 25 IDELR 621 (Fourth Cir. 1997). These rulings are now codified in the statute.

During the hearing in cases alleging a procedural violation, the hearing officer will have to carefully rule on evidentiary objections to ensure that evidence connecting the procedural violation to one of the specified grounds is forthcoming. In cases in which a party is not represented by counsel, the matter is complicated by the hearing officer’s duty to make a complete record. In such cases, the hearing officer will likely ask a number of questions of the unrepresented party to determine the result of the alleged procedural violations or the effect of said procedural violations upon FAPE, the opportunity of the parents to participate in the process, or the deprivation of educational benefit.

OSEP has clarified that the requirement that a hearing officer base his decision on substantive grounds applies only to cases alleging denial of FAPE; a hearing officer still has jurisdiction over LRE cases and other matters alleging issues involving identification, evaluation and placement. 71 Fed. Register No. 156 at pages 46705-06 (August 14, 2006). The new amendment does not affect these types of cases.

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Friday, June 8, 2012

More From GAO Bulling Report

Logo of the United States Government Accountab...
Logo of the United States Government Accountability Office. (Photo credit: Wikipedia)

The brand new Government Accountability Office report on school bullying is loaded with information. You should take a look at it.  Here are some of the items from the report.

Bullying at school is pervasive.  After reviewing the research on school bullying, the report notes that between 20 an 28 percent of student report that they have been bullied.  That number is way high!

Bullying is costly. Among the results of peer bullying are the following: suicide; violent actions against others; depression; loneliness; low self-esteem; anxiety and higher risk for physical health consequences; and increased behavioral issues.

From a special education law perspective, the report notes that the literature finds that victims of bullying often have academic difficulties.

49 states currently have bullying statutes, but the protections, and even the definition of bullying, vary widely from state to state.

The GAO applauds some of the collaborative efforts of the Department of Education and other federal agencies, such as the joint website Stop Bullying. But the GAO felt that the agencies could coordinate their efforts better and develop an assessment of the protections afforded by the various state civil rights laws.

Here is a summary of the GAO report.
You can read the entire 64 page GAO report here.
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Thursday, June 7, 2012

Breaking News: GAO Issues Report on School Bullying

David M. Walker (U.S. Comptroller General)
David M. Walker (U.S. Comptroller General) (Photo credit: Wikipedia)

The federal Government Accountability Office has issued a report today pertaining to school bullying.  The title of the report is "SCHOOL BULLYING:  Extent of Legal Protections for Vulnerable Groups Needs to Be More Fully Assessed." This relates to the current hot button issue in special education law although bullying affects more than just special education students. The GAO reviewed research on the prevalence and effects on victims; and analyzed state bullying laws, and school district bullying policies.

After looking into the school bullying problem, the GAO made several recommendations. The recommendations included: that the Department of Education compile information about state civil rights laws and procedures that relate to bullying, and inform complainants about state legal options; that the Departments of Education, HHS, and Justice develop information about bullied demographic groups in their surveys; and assess whether legal protections are adequate for these groups.  Here is a summary of the GAO report.

You can read the entire 64 page GAO report here.
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Tuesday, June 5, 2012

Bullying of Children with Disabilities - Part XI

SWINDON, ENGLAND - FEBRUARY 23:   A reporter s...
SWINDON, ENGLAND - FEBRUARY 23: A reporter stands outside office of The National Bullying Helpline on February 23, 2010 in Swindon, England. Founder of the National Bullying Helpline Christine Pratt is coming under increasing pressure after revealing that some Downing Street staff have contacted the helpline. Prime Minister Gordon Brown has been accused of bullying tactics in a new book serialised in newspapers last weekend. (Image credit: Getty Images via @daylife)
Bullying remains the hottest of hot button issues in special education law. 
In the first installment of this series, I explained the early cases laying the conceptual groundwork for the proposition that failure to react to bullying can constitute a denial of FAPE under IDEA.  In later installments, I have discussed the seminal decision of TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011).  This case is important not just because it analyzes special education law principles involving bullying, but also because it provides a thorough review of the social science literature on bullying. You should read this case and you can do so here.
Here is more from the court...these are not my words:

F. Effects on Children

2. Bully

Not surprisingly, a bully is likely to have an aggressive attitude. Olweus, supra, at 34. He will probably have a positive attitude toward violence and a strong self-image. Id. Typically, he will be of average popularity and often will be surrounded by a small group of friends who support him. Id. at 35.
"The bullies don't do well later on." Macklem, supra, at 42. Despite his center position in the school social hierarchy, the impact of being the bully will leave a lasting adverse mark. Perpetrators of bullying report being sad most days, and have somewhat the same depressive symptoms as victims. Glew, supra, at 1030 ("Students who felt unsafe and sad most days had 2.5 and 1.5 times the odds of being a bully ..."). Bullies themselves typically have more health problems and a poorer emotional adjustment than students not involved in bullying. Nansel, supra, at 733-34; Macklem, supra, at 43; Glew, supra, at 1031.
Females who bully are more likely to have hostile inter-personal interactions in their adulthood. Macklem, supra, at 43. They also may have more trouble adjusting to the role of parent than students who were not bullies. Id.
Bullying behavior may simply be the beginning of an antisocial behavioral pattern that will endure during the tormentor's entire life. Id. at 42. Those students who start bullying early on in their academic lives are more likely to assault or sexually harass their classmates in high school. Id. As young people continue to grow up, bullying may be a precursor to violence in dating. Id. at 43.
"Bullies and bully-victims [but not victims] consistently reported significantly more frequent alcohol use." Nansel, supra, at 734; Olweus, supra, at 35-36
[ 779 F.Supp.2d 306 ]

("Bullying can also be viewed as a component of a more generally antisocial and rule-breaking (conduct disordered') behavior pattern. From this perspective, it is natural to predict that youngsters who are aggressive and bully others, run a clearly increased risk of later engaging in other problem behaviors such as criminality and alcohol abuse. A number of recent studies confirm their general prediction.") Additionally, bullies are more likely than non-bullies to commit a felony in the future. Olweus, supra, at 36; Macklem, supra, at 44 (finding in one longitudinal study that "[b]ullying was clearly a precursor to later violent behavior for this group, although, of course, not all bullies would persist along this pathway toward violence"). In one study, 60 percent of boys identified as bullies in grades six to nine had at least one conviction by age 24, and 35 to 40 percent of them had three or more convictions. Olweus, supra, at 36. This is a four-fold increase in the level of criminality over that of non-bullies. Victims had an average or below-average chance of engaging in future criminality. Id.
"Chronic bullying has a cost for society as well as for the individual and, of course, the victim." Macklem, supra, at 43. The children who they harass are left to try to move on after years of uncontroverted harassment. The bullies themselves, through their own actions, are then more likely to require social services, educational services, and criminal justice services. Id.


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