Friday, April 5, 2013

When Rowley Doesn't Apply; New Law Review Article

Woodstock Music Festival/1969
Woodstock Music Festival/1969 (Photo credit: dbking)

If you are a fan of special education law, you should be familiar with Mark Weber, one of the leading academic authorities in this area of law. As a good impartial, I must admit to a bias, Mark is also the only person to have cited this blog in a law review article; therefore, everything he says is necessarily true and correct. (NOTE: in fairness, this only applies to law review articles.  Professor Mitchell Yell has cited the blog in his excellent book, and Barbara Bateman and Mary Anne Linden have cited the blog in a couple places in their bible on IEPs.  This blog has serious street cred!)

Anyway, I digress. Professor Weber has a new law review article. The title is "All Areas of Suspected Disability."  He was nice enough to share it with me.   I also discussed it with him, and heard him lecture about it, during a recent training in Missouri. In this article he notes the tendency of courts and hearing officers to strictly enforce the IDEA provisions requiring that students be evaluated in all areas of suspected disability and that their IEPs address their individual needs.  He suggests three possible explanations for this development: First courts and hearing officers may be reacting to the limited definition of FAPE penned by the Supreme Court in the 1982 Rowley decision.  Second, he notes that judicial and administrative decisions are placing an increasing emphasis on inclusion; or more technically the least restrictive environment requirement of IDEA.  Finally, he looks at whether the bad economy of recent years may be fueling the trend. Obviously I'm summarizing here and probably badly; you should read the article yourself.  It is available on SSRN at this link. You may need to register on the site to read the article.

We have wondered here before about the impact of the bad economy upon special education.  What are your thoughts?  Also Mark's article brings up a good point.  Rowley only concerns FAPE cases.  While that is the majority of cases, IDEA has other requirements, like LRE and evaluation and eligibility/child find and placement (a slippery term that means a lot of things like- LRE, stay put, discipline and maybe even location.)  

Also as we have noted here about the trend in bullying cases and seclusion/restraint cases, the old maxim that bad facts make bad law has some resonance. We see courts and hearing officers paying lip service to Rowley and then not really applying its standard in cases where the facts are egregious. The sniff test seems to be closer to the real standard.

So read Mark's article, and tell us what you think.

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  1. Since the beginning of the school year, my family has dealt with nearly every issue you mentioned in this post- and then some! My son is 9 years old, and I can't bare the thought of 10 more years like this one! Our school district has a very high powered attorney and an attitude that the 'law' doesn't apply to them- even in recorded IEP meetings. We have spent over $250k on therapy to prepare our son for school, only to watch it all be undone in a matter of months. We have been told that a due process hearing would probably cost us another $40k, even though we have a 'significant' amount of evidence. We tried Disibility Rights advocates only to receive a call from our advocates supervisor stating she had been removed from our case due to inappropriate communication' w/the sped director (trading info w/out our knowledge). In my opinion, parents need a way to request assistance from the state immediately &/or anonymously, to avoid retaliation against the family or child. The consequences should also be immediate and leave an impression that any deviation from the law will not be tolerated. No family should have to go through this, especially not a child who can not come home and explain whats happening to him!

    1. I went through due process with my son who has autism, down syndrome and apraxia. It was in Cody Wy Feb 2012. It lasted 7 8-11 hour days. We were alone. We lost of course. Senator Enzi's secretary in Cody (who is a beautiful person). Called the WDE on a conference call because she thought surly I was mistaken when I told her the special services director told me my print disabled son might get access to book share or a reader for the mac they provided, in the "future". My son is in the 9th grade. They told her I should go back through due process.

    2. Anon & Anon,

      Thanks for sharing your experiences.


  2. I cited your blog in a note, and I think I cited it in an article too.

  3. Anon,

    Thanks for the scholarly references. Can you give me the citations by email so that I can brag about them.