Breaking: New DOE Guidance On Equal Access to Extra-Curricular Sports Activities

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On Friday, the Office for Civil Rights of the U S Department of Education issued a Dear Colleague Letter providing guidance on the responsibility of school districts to provide equal access for children with disabilities to extra-curricular sports activities. 

You can read the letter clarifying student's rights under §504 here. A blog post by Secretary Duncan, a former professional basketball player, may be reviewed here. The action was prompted by a June 2010 study by the Government Accountability Office concerning obstacles to participation in sports by children with disabilities.  The GAO report is available here.

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Special Education Law 101 - Part XIV Expenses and Attorney's Fees

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This is another in our ongoing series on the basics of special education law.  These posts are meant to be an introduction for those new to the field and a refresher for the seasoned veterans.

Attorney's Fees

A prevailing parent can generally get their attorney's fees from a court. IDEA §615(i)(1)(3).  They are not awarded by hearing officers but are awarded by the court.  Since 2004, a prevailing school district may get attorney's fees from a parent or parent's attorney if the case was frivolous or filed for improper purposes. IDEA §615(i)(1)(3)(b)(ii)and(iii).

Expenses-Expert witness fees

                             In Arlington Cent. Sch. Dist Bd. of Educ v. Murphy   540 U.S. 291, 126 S.Ct. 2455, 45 IDELR 267 (6/16/06) the Supreme Court ruled that a parent who prevails in an IDEA case is not entitled to recover expert witness fees under the Act’s provision allowing recovery of reasonable attorney’s fees and costs. The parents cited the legislative history of the Act- including the joint statement of the House/Senate Conference Committee which stated that “The conferees intend the term ‘attorney’s fees as part of the costs’ to include reasonable expenses and fees of expert witnesses...”  The 6-3 majority of the Court, however, rejected the parents’ argument, holding that “costs” is a legal term of art which does not generally encompass expert witness fees.  Because Congress used the legal term of art “costs,” rather than “expenses,” the Court found that there is no need to review the legislative history.  Thus the Court held that a prevailing parent in an IDEA case is not entitled to be reimbursed for expert witness fess.

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Acronyms & Special Education - An Ethical Issue?

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It pays to read those footnotes!  I came across a doosey in a recent court decision. The topic involves acronyms.

In B.R. ex rel. K.O. v. New York City Department of Education 60 IDELR 102 (SDNY 01/26/2012) footnote number one was a real killer.  The court said as follows:

" Unfortunately, '[t]his opinion, dealing as it does with the IDEA and practices thereunder, is replete with acronyms.' M.H. v. N.Y.C. Dep't of Educ. (M.H. II), 685 F.3d 217, 223 n.l (2d Cir. 2012). One suspects that regulators and bureaucrats love such jargon because it makes even simple matters cognizable only to the cognoscenti and thus enhances their power at the expense of people who only know English. Nevertheless, acronyms have so invaded IDEA practice that this judge, like others before him, is pretty much stuck with having to use them."    OUCH!

This indictment of acronyms reminds me of a panel I saw at one of the fabulous CADRE conferences a few years back. The panel was a success story type of panel - young successful adults who had previously been special education students.  One criticism that was unanimous among  the panel members was that special ed professionals use too many acronyms.

You know what they mean.  IDEA requires that FAPE be provided in the LRE, using an IEP with a possible fba and a bip. Not to mention SLD, ODD, ED,ADHD, RtI, PT, OT...

But an interesting wrinkle on the topic acronyms involves an ethical dimension.  A speaker at last year's NAHO conference suggested that the use of legalese in public documents is an ethical issue. He posited that people should be able to understand public documents.  Is this also true of acronyms?  Should we avoid the acronym trap in hearing decisions and procedural safeguards booklets?  What are your thoughts?

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How Do U.S. Students Compare Internationally?

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Well I can't tell you.

But if you are interested, tune in to C-SPAN tomorrow, January 18th at 9:15 am.  On the "America by the Numbers" segment on its Washington Journal program, Jack Buckley, the commissioner for the National Center for Education Statistics will discuss a study of math, science and reading results for fourth and eighth graders from 50 countries.

You can learn more about the program on the website of the U S Census Bureau here.

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Special Education Law 101 - Part XIII Legal Representation

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This is another post in our ongoing series on the basics of special education law.  Please let us know how you are enjoying this series.  We feel that this is a good introduction for newbies and a good refresher for seasoned pros.  

The federal regulations implementing IDEA provide that parties to due process hearings have a right to be accompanied by legal counsel and by individuals with special knowledge or training with respect to the problems of kids with disabilities "...except that whether parties have the right to be represented by non-attorneys at due process hearings is determined under State law." 34 C.F.R. §300.512.  This regulation was changed recently to reverse a previous long standing policy of the department of Education that had permitted non-attorney advocates to fully represent parents in the past. To be clear a parent may still have an advocate present to advise her, but the advocate may not be able to represent the parent depending upon state law.

There is one US Supreme Court decision concerning legal representation: 

In Winkelman by Winkelman v. Parma City Sch. Dist  550 U.S. 516, 127 S.Ct 1994,  47 IDELR 281 (5/21/2007) the Supreme Court ruled by a 7 to 2 margin that the IDEA grants independent enforceable rights to parents as well as students.  Accordingly, the court concluded that parents may pursue IDEA appeals in federal court without being represented by an attorney.  NOTE: This decision applies only to federal court appeals of due process decisions.  All parties agreed that a parent may appear at a due process hearing without counsel.

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Crisis Averted - I Hope

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My last post was about difficulties my subscribers had in receiving my two posts before that.  I Understand that most or all of you received all three posts in an email or by delayed RSS delivery.  I assume that this means that Feedburner experienced a temporary problem, and that everything is now ok.

Many of you provided useful suggestions that I will look into going forward.  For now I hope for the best.

If in the future any subscriber doesn't receive a post for a while, please contact me.  I want to fix this if it becomes a problem.  I appreciate our subscribers and I want to make sure that you receive all posts.

By the way, it is really hard to contact The Google.  Try calling them on the phone or even emailing them sometime just for fun.  You'd think that email would be an option.  Yet I digress!

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HELP Needed: Feedburner NOT Delivering Posts to Subscribers

My last two blog posts were not delivered to my subscribers.  I use Feedburner, the Google feed delivery, but neither my email subscribers or my RSS feed subscribers seem to have received my last two posts.

I would appreciate any advice you can give me!