Friday, September 28, 2012

Poverty and Education Reform

English: Number in Poverty and Poverty Rate: 1...
English: Number in Poverty and Poverty Rate: 1959 to 2009. United States. (Photo credit: Wikipedia)

One component of educational performance by our kids that rarely gets mentioned during discussion of education reform is poverty.  It seems obvious to me that poverty affects education.  Kids can't learn if they come to school hungry.  Poor kids hear fewer words said aloud and this makes reading more difficult.  The depressing effects of living a life in extreme poverty cannot be removed by curriculum adjustments.  Even if you accept standardized test scores as a measure, compare the scores of poor school districts to more affluent districts- guess who wins?

To really reform education in the United States, we need to address the problem of poverty.  The poverty rate in 2011 rose to 15.9% up from 15.3% the previous year.  The official report of the census bureau has these plus many other stats concerning states and metropolitan areas.  Your can read the new report here

School reform is not really a special education law issue, but it affects all of our children.What are your thoughts?

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Wednesday, September 26, 2012

Special Education Law 101 - Part III

Seal, United States Court of Appeals for the T...
Seal, United States Court of Appeals for the Third Circuit (Photo credit: Wikipedia)
In the previous posts in this series we have looked at the sources of special education law and discussed the critical concept of FAPE.  Today we look at some important decisions by U. S. Courts of Appeal taking FAPE in some Potentially  new directions:

In Deal v. Hamilton County 392 F.3d 840, 42 IDELR 109 (6th Cir. 1//16/04), the Sixth Circuit held that where the school district had already predetermined the student’s program and services before the IEP Team meeting, the parents were denied the opportunity to meaningfully participate in the IEP process.  Accordingly, the district denied FAPE for the student.   

          In Shore Regional High Sch. Bd. of Educ. v. P.S. 381 F.3d 194, 41 IDELR 234 (3d Cir. 8/30/04), the Third Circuit held that a school district’s failure to stop bullying may constitute a denial of FAPE.  Despite repeated complaints by the parents the bullying continued; the student became depressed and the school district developed an IEP.  The harassment continued and the student attempted suicide.  The Third Circuit agreed with the hearing officer that the unabated harassment and bullying made it impossible for the student to receive FAPE. (See our recent series on Bullying for a more detailed discussion.)

          In Lillbask ex rel Mauclaire v. State of Connecticut Dept. of Educ.  397 F.3d 77, 42 IDELR 230 (2d Cir. 2/2/05), the Second Circuit ruled that an IDEA hearing officer has the authority to review IEP safety concerns.  The court provided an expansive interpretation of the jurisdiction of the hearing officer, ruling that Congress intended the hearing officer to have authority over any subject matter that could involve a denial of or interference with a student’s
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Wednesday, September 19, 2012

Sequestration Will Hurt Kids With Disabilities

U.S. Congress. Joint Committee to Investigate ...U.S. Congress. Joint Committee to Investigate Dirigible Disasters, ca. 1933 (Photo credit: The U.S. National Archives)

This post is about the dark side of politics.  These days politics rarely seems to have a bright side!

Pursuant to previously passed legislation, if the U S Congress cannot compromise on deficit reductions, sequestration will apply and on January 1, 2013, 8.2% across the board cuts will be applied to all federal departments.  A report by the White House shows that $4.1 Billion will be cut from the Department of Education, resulting in an additional $1 Billion in cuts to special education and related programs.  These programs are already stretched thin because of cutbacks and layoffs prompted by the bad economy.  The report notes at page 4 that sequestration will hurt children with disabilities.

You can read the 394 page report by the White House here.  A summary by the Council for Exceptional Children is available here.

Sequestration is bad policy.  Some programs cannot be cut; many probably should.  Special education should not suffer because our elected leaders forgot how to compromise.  Are they really going to balance the budget on the backs of kids with disabilities?  Stay Tuned.
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Tuesday, September 18, 2012

Special Education Law 101 - Part II

English: United States Supreme CourtEnglish: United States Supreme Court (Photo credit: Wikipedia)

                              The Requirement of  FAPE (free and appropriate public education)

The basic requirement of the IDEA is that states and school districts must have in effect policies and procedures that ensure that children with a disability receive a free and appropriate public education, hereafter sometimes referred to as “FAPE.” IDEA, § 612(a)(1).

The IDEA defines “child with a disability” as a child:
(i)with a mental impairment, hearing impairments…, speech or language impairments, visual impairments…, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii)who by reason thereof, needs special education and related services.
              IDEA, § 602(3)

     The IDEA defines “FAPE” as:

special education and related services that:
(A)  have been provided at public expense, under public supervision and direction, and  without charge;
(B)  meet the standards of the State educational agency;
(C)  include an appropriate preschool, elementary school or secondary school education in the state involved; and
(D)  are provided in conformity with the individualized education program required (…hereunder.).
IDEA, § 602(9).  See also 34 C.F.R. §§ 300.101 to 300.113.

     The IDEA defines “special education” as:

Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including
(A)    instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B)    instruction in physical education.
IDEA, § 602(29).

          The Supreme Court of the United States issued the seminal decision interpreting the provisions of the IDEA in the case of  Board of Education of Hendrick Hudson Bd. of Ed. v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982).  The facts of the case were that the student had a hearing impairment.  The parents requested that the schools provide a sign language interpreter for all of the student’s academic classes.  Although the child was performing better than the average child in her class and easily advancing from grade to grade, she was not performing consistent with her academic potential. Rowley, supra, 102 S.Ct at 3039-3040.

          Holding that FAPE required a potential maximizing standard, the District Court ruled in favor of the student.  The U. S. Court of Appeals for the Second Circuit affirmed.  See, Rowley, 102 S.Ct. at 3040.

          The Supreme Court reversed.  Rowley, supra, 102 S.Ct at 3052.  After a review of the legislative history of the Act and the cases leading to Congressional passage of the Act, the Supreme Court held that the Congress did not intend to impose a potential-maximizing standard, but rather, intended to open the door of education to disabled students by requiring a basic floor of opportunity. Rowley, supra, 102 S.Ct at 3043-3051.

          The Supreme Court noted that the individualized Educational Program, hereafter sometimes referred to as the “IEP,” is the cornerstone of the Act’s requirement of FAPE. Rowley, supra, 102 S.Ct at 3038, 3049.  The Court also notes with approval the many procedural safeguards imposed upon the schools by the Act.  Rowley, supra, 102 S.Ct at 3050-3051.  The Court also cautioned the lower courts  that they are not to substitute their “…own notions of sound educational policy for those of the school authorities which they review.” Rowley, supra, 102 S.Ct at 3051.

          The Supreme Court held that instead of requiring a potential maximizing standard, FAPE is satisfied where the education is sufficient to confer some educational benefit to the student with a disability.  Rowley, supra, 102 S.Ct at 3048.  Accordingly, the Court concludes that the IDEA requires “…access to specialized instruction and related services which are individually designed to provide educational benefit to the …” child with a disability. Rowley, supra, 102 S.Ct at 3048.

          The Supreme Court instructed lower courts that the inquiry in cases alleging denial of FAPE should be twofold:  First, have the schools “…complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits.”  Rowley, supra, 102 S.Ct. at 3051.

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Monday, September 10, 2012

Special Education Law 101 - Part I

"No Child Left Behind" sculpture (pa... (Photo credit: StrangeInterlude)
This is first of a multi-part series of posts on the basic nuts and bolts of special ed law. We will review the statute and regs, as well as the supreme court decisions and a few of the most important opinions of the circuit courts of appeal.  This is just an overview.  There is a LOT more!!!!!  

So we hope that you enjoy the introduction, but if you get into a problem, consult a lawyer, preferably one experienced in this complex area.

A.   Sources of Special Education Law

The primary source of special education law is the federal Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et. seq., hereafter sometimes referred to as “IDEA.”  (NOTE:  many people refer to the sections of the act as beginning with section 600.  Thus “Section 615” would be found at 20 U.S.C. Section 1415, etc.)  The regulations promulgated by the United States Department of Education to implement the IDEA are found at 34 C.F.R. Part 300.  Many state have adopted their own special education regulations.  

Court decisions that interpret the IDEA issued by the courts of your state, by the United States Supreme Court, and by the federal Circuit Court of Appeals and the federal District Courts that cover your state or District are binding.  Other court opinions and hearing officer decisions issued under the Act may be cited and used if you find their reasoning to be persuasive, but they are not binding precedent.  Similarly, opinions issued by the federal Department of Education interpreting the Act provide helpful guidance, but they are also not binding precedent.

Although the IDEA and the federal regulations, and corresponding state regulations and policies, and the relevant decisions interpreting them are by far the most important sources of special education law, other statutes do sometimes become involved.  The Rehabilitation Act of 1973, 29 U.S.C.  Section 794, et. seq., commonly referred to as “Section 504,” prohibits discrimination on the basis of disability in certain federally funded programs, including education.  The federal regulations that implement the statute are found at 34 C.F.R. Part 104.

Another statute that will impact upon special education law is the No Child Left Behind Act, or ESEA, 20 U.S.C. Section 6301, et. seq., hereafter sometimes referred to as “NCLB.”  The regulations implementing NCLB are located at 34 C.F.R. Part 200.

Finally, another law that pertains to educational records is the Family Educational Rights and Privacy Act, 20 U.S.C. Section 1232g, et. seq., hereafter sometimes referred to as “FERPA.”  The regulations implementing FERPA are found at 34 C.F.R. Part 99.

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Friday, September 7, 2012

Back to the Future: Special Ed Law 101

San Diego Comic-Con 2011 - Back to the Future ...San Diego Comic-Con 2011 - Back to the Future II hoverboards (Profiles in History booth) (Photo credit: Pop Culture Geek)

Why do we love the title "Back to the Future?"
Special education law is complicated stuff.  I have said here before that Special Ed Law is a lot closer to metaphysics than it is to contract law.   If you hate ambiguity, Special Ed Law may not be your thing. (I still think that there is a Foxworthy joke in there somewhere.)

Any way, inspired bu a presentation that I gave at a recent conference of the Council for Exceptional Children, at National Harbor, Maryland, we periodically run a series of posts on the nuts and bolts of special education law. This may be old hat to you veterans, but it is always good to review the basics.  So are you ready for special ed law 101?

So please fasten your seat belts and ensure that your tray tables are in their upright positions... we are cleared for takeoff...  Get ready for a trip back to the basics ... starting next week right here.
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Tuesday, September 4, 2012

Grandparents Day - Fun With Numbers

GrandparentsGrandparents (Photo credit: rubberpaw)

September 9th is Grandparents Day.

Here are some fun numbers courtesy of our friends at the U S Census Bureau:

2.7 million -The number of grandparents responsible for the basic needs of one or more grandchildren under 18 living with them in 2010. Of these caregivers, 1.7 million were grandmothers and 1.0 million were grandfathers.
670,000 -The number of grandparents who had a disability and were responsible for their grandchildren.

You can peruse a lot more data regarding grandparents at the U.S. Census Bureau, 2010 American Community Survey.  You can find it here
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Monday, September 3, 2012

Happy Labor Day

DETROIT, MI - SEPTEMBER 05:  Secretary of Labo...DETROIT, MI - SEPTEMBER 05: Secretary of Labor, Hilda Solis and National AFL-CIO President Richard Trumka waves to the crowd during a Labor Day event sponsored by the Metro Detroit Central Labor Council on September 5, 2011 in Detroit, Michigan. They awaited President Barack Obama's Labor Day address. (Image credit: Getty Images via @daylife)
Labor day. It seems fitting that we have a holiday for people who work for a living.

Many people have jobs in the field of special educationor education in general. Today we honor you. A participant at one of my sessions a while ago made a great point. Nobody goes into special education for the money.

Sometimes we forget this point. I often deal with issues involving dispute resolution. The parents and the school personnel disagree. Many times emotion is involved. People get upset when they think that their kid's education is not going well.

But in the heat of battle, we forget that people do not go into special education to make money, or for the glamor. People go into special ed because they care about children with disabilities. There are far easier and better ways to seek fame and fortune.

So please raise your glasses to all those who work in special education- Happy Labor Day!
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