Saturday, August 31, 2013

First Grader in Ohio with Service Dog Required to Transfer Schools

Suzi service dog snow 065
Suzi service dog snow 065 (Photo credit: Wikipedia)

Last week a first grader with Autism was required to change schools by school district authorities in Ohio because she had a service dog.  The special education teacher assigned to her classroom had a severe allergy to dogs. My money is on the probability of  a lawsuit!

Here is a news article about the matter from the Columbus Dispatch.

Service Dogs remain a hot topic in Special Education Law.  I have a special fondness for these amazing dogs and we have featured them on these pages many times.  Here are some other posts we have done on this topic:

New Hot Button Issue: Service Dogs

New Hot Button Issue: Service Dogs - The Appeal

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Monday, August 26, 2013

Breaking: DOE Promulgates Proposed Regs Eliminating 2 % Rule

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

On  Friday, the U.S. Department of Education proposed regulations under ESEA and IDEA  to transition away from the so-called "2 percent rule," in order to hold all students to high standards that better prepare them for college and career. Under the existing regulations, States had previously been allowed to develop alternate assessments aligned to modified academic achievement standards (AA-MAAS) for some students with disabilities and use the results of those assessments for accountability purposes under Title I of the Elementary and Secondary Education Act and the Individuals with Disabilities Education Act.

Under the proposed regulations, a State already administering alternate assessments based on modified academic achievement standards could no longer administer such assessments after the 2013–14 school year.

The press release may be read here.

You can review the text of the proposed regulation (technically "Notice of Proposed Rulemaking" or  "NPRM") here.  The regulation does not take effect until after a period of public comment.  You can and should send your comments to the proposed regulation to DOE. Comments must be received by October 7, 2013. By far the best way is through the federal portal at:  

What are your thoughts about the proposed regulation?

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Saturday, August 24, 2013

Discipline of Children With Disabilities: More Fun With Numbers

Handicap sign
Handicap sign (Photo credit: MattGrommes)

According to a series of reports by UCLA's Civil Rights Project, there may be some serious issues pertaining to the discipline of children with disabilities. For example, about one in five secondary school students with disabilities was suspended, more than three times the rate for students without disabilities.  Also 36% of all African-American students with disabilities were suspended at least once. The information was compiled from  the 2009-2010 school year Civil Rights Data Collection by the DOE's Office of Civil Rights.

Our friends at the Council for Exceptional Children pointed out this problem, and they have called for changes in the way that the CRDC collects data. 

IDEA imposes special rules regarding discipline of students with disabilities.  The reason why disciplinary actions are regulated by the special education law is that before passage of the law's predecessor, it was common for school officials to exclude children with disabilities by expelling them and giving them long suspensions. This series of abuses was reflected in the legislative history of the law, and it is discussed in detail in the seminal Rowley decision.  We have discussed this matter in more detail in our previous series on Special Ed Law 101.

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Tuesday, August 20, 2013

Breaking: Dept of Ed Issues Guidance on Bullying of Kids With Disabilities

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

We interrupt our ongoing series on bullying of children with disabilities with this breaking news on the same topic:

On today's blog of the U S Department of Education, Michael Yudin, the Acting Assistant Secretary of OSERS notes that the Department has issued guidance on Bullying of Kids With Disabilities. 

The Dear Colleague letter dated August 20, 2013 notes that bullying can constitute a denial of FAPE under IDEA, but in any event bullying of children with disabilities cannot be tolerated. The letter specifically notes that students with disabilities are disproportionately affected by bullying and specifies actions that should be taken when bullying is suspected.  The letter encourages states to reevaluate their policies on problem behaviors, including bullying in light of the letter and other guidance by OSEP and OCR.  You can  and should read the letter here.

An attachment to the Dear Colleague letter specifies a number of effective evidence based practices for preventing and addressing bullying.  You can read the seven page attachment here.
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Bullying of Kids With Disabilities - Part IX

English: A Bully Free Zone sign - School in Be...
English: A Bully Free Zone sign - School in Berea, Ohio (Photo credit: Wikipedia)

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 sohere.
Here is more from the court...these are not my words:

F. Effects on Children

If nothing is done to rectify the situation, a bully is likely to continue bullying and victimization continues. Olweus, supra, at 27. Thus, without a change in the dynamic, a child who suffers at the hands of a tormentor, is unlikely to be able to escape. And the effects of bullying are likely to continue unabated. Id. at 28. Each child can be bully, victim, or bystander. And with each of those labels comes different, but often related consequences.

1. Victim

The typical victim of bullying is more anxious and insecure than her peers. Olweus, supra, at 32. She is more likely to be quiet, sensitive, and have low self-esteem. Id. It is important to note, however, that not all victims react in the same way. Macklem, supra, at 63.
"Students who are bullied in schools have no escape from bullying other than feigning illness and staying home which is a very temporary reprieve." Id. at 61. Not surprisingly, being a victim is most strongly associated with a feeling that one did not belong at school and an increase in the classroom days missed. Id. at 70; Glew, supra, at 1030. "Feeling as though one did not belong at school was most strongly associated with being the victim; the odds of members of this group being a victim were 4.1 times higher than those who felt they belonged at school" Glew, supra, at 1030. "For students who felt sad most days, their odds of being a victim were 1.8 times higher than the odds of being a victim among those who did not feel sad most days." Id. Being sad most days is known to be a precursor to diagnoses of major depressionId.
"The take-home message is that elementary school-aged children ... who struggle academically are more likely to be victims or bully-victims." Id. (defining a "bully-victim" as one who both is the victim of bullying and the bully at different times). Bullying brings with it a whole host of other issues. It impairs concentration and leads to poorer academic performance. Id. Additionally, victims are more likely to engage in antisocial behavior, have increased health problems, and struggle to adjust emotionally. SeeMacklem, supra, at 68 ("Being the victim of bullying is related to sliding grades, absenteeism, poor academic achievement, being lonely, exhibiting withdrawal behaviors, difficulty acting assertively, or being aggressive."); Snyder, supra, at 1881, 1887; Nansel, supra, at 733-34 ("Youth involved in bullying —as bully, victim, or both—consistently reported significantly higher levels of health problems, poorer emotional adjustment, and poorer school adjustment than non-involved youth. Victims and bully victims also consistently reported significantly poorer relationships with classmates than uninvolved youth.")
[ 779 F.Supp.2d 305 ]

Victims who are friends of a non-victim peer are less likely to internalize problems such as feelings of depression and sadness. Rodkin, supra, at 36. Even children as young as those in first grade who have one friend and do not suffer in isolation, have fewer problems than children who have no peer to rely upon. Id. "The victims are lonely and abandoned at school. As a rule, they do not have a single good friend in their class." Olweus, supra, at 32. This solitude perpetuates feelings of shame and unattractiveness, and a belief that the victim is stupid. Id.
Children with feelings of rejection and loneliness, withdraw and have trouble making new friends. Macklem, supra, at 68. "Withdrawal because a child is rejected by peers places the child at a greater risk [of isolation] than is the case for children who prefer to play alone or who are socially anxious." Id.Victims have lower self-esteem and begin blaming themselves for what is happening. Id. at 69 ("Self-esteem drops once a child becomes a victim.... They blame themselves for being victimized, and give in quickly or respond in a disorganized manner when they are teased or bullied."). "Self-views are unlikely to change for the better, unless the child who has been victimized becomes more accepted in the group." Id.
The end of school does not bring an end to the damage done by years of harassment. As a result of this trapped setting, where harassment is a repeated occurrence, victims carry lasting emotional and psychological scars into adulthood. Id. at 68 (citing Olweus study that found those who were bullied for at least three years in grades six through nine had higher rates of depressive symptoms and lower self-esteem when they were twenty-three years old.)
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Wednesday, August 14, 2013

Breaking: Our LinkedIn Group Now Has 9000 members; Tech Update

Image representing LinkedIn as depicted in Cru...
Image via CrunchBase

One of our goals in creating this blog was to provide both discussion of special education law topics from an impartial perspective and to provide resources where interested persons can find more information.

The impartial perspective is very important.  I have never represented or advised parents or school personnel on a special ed matter.  I am a hearing officer and mediator for a number of states.  I also advise states and train their personnel.  That is why when parents or school personnel contact me, I cannot help them.  They generally understand.  The disclaimer on the blog explains this point in more detail.

The breaking news involves is this: the Special Education Law Group that we started through this blog over on LinkedIn now has over 9,000 members.  (That is not a typo!) That is  an increase of more than 1,500 since May. You should go to the group's site and take a look. There are always good discussions- sometimes even heated disagreements. If you lose this post, there is always a link to our LinkedIn group on the lefthand side of the blog. It is a part of our effort to use social media to spread good impartial information about special education law.

For those with long memories, we also used to have a Facebook group.  At some point the Facebook overlords went all corporate in our face and "archived" our group because we were not constantly issuing nonsensical posts about what we ate for breakfast, etc. The group still exists, but it is cumbersome.  We also started a Ning group, but they have since disappeared from the internet.

We also offer a lot of resources for parents, teachers (both regular ed and special ed), principals, school psychologists, hearing officers, mediators, complaint investigators, monitors, special ed directors, academics, advocates, SEA personnel, LEA personnel, paraprofessionals, lawyers (both parent and school district) as well as other special ed law junkies of all types.

On the left-hand side of the blog, you can sign up for a free subscription to our blog.  You can choose between receiving posts by email or in a reader by RSS feed.  You can also get a widget to insert this blog directly into your own website or blog. Subscriptions are important because numbers have meaning in the blogosphere.  Please sign up for a subscription.  Thanks.

Also on the left hand side are a series of embedded YouTube videos of interviews of me on dispute resolution topics by Marshall Peter, Director of CADRE. (Many other videos and resources pertaining to special ed dispute resolution are available on the CADRE website - there is a link under resources.)

Many readers follow our headlines on twitter.  Check out our twitter activity here. Other readers follow our headlines on our Tumblr mini-blog here.

There are many links to websites and other important blogs on the lefthand side of the blog.  Also the search bar is just for this blog. So if you are interested in one topic, say bullying, just type it into the search bar and you can find all of our posts on that topic.

There are many more valuable resources on the blog.  Please explore it and take advantage of these other sites. Also, we are always looking to improve. If you know of other impartial resources, please suggest them.  

In the meantime, we appreciate your support.

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Sunday, August 11, 2013

Dispute Resolution in Special Education

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

The subfield of special ed law that I work in the most is dispute resolution.  This involves disagreements between parents and school districts over the education of a child with a disability.  It can involve mediation, due process hearings and subsequent court cases, state complaints- more options than are usually available. The web of options and the subtle differences often make dispute resolution systems difficult to navigate. The amount of caselaw and regulatory guidance in this area is very large.

I had the opportunity to have a meeting with the two top dispute resolution experts at the federal Office of Special Education Programs last week during the IDEA Leadership Conference.  It was very productive and useful for me.  It really helps me to advise states and hearing officers and mediators to know what they are thinking. I thank them for the meeting.

Also at the Leadership Conference, OSEP explained in detail the new Questions & Answers regulatory document on Dispute Resolution during a concurrent session.  It is quite clear that both dispute resolution in specific and compliance in general will continue to be very important as OSEP transitions to its new results driven accountability monitoring system.  You can (and probably should) read the new Q & A document here.

Speaking of dispute resolution, I'll be expanding my horizons this week by attending a training in IEP Facilitation.  (Insert your own joke about my needing other training here). The idea is to solve disputes further upstream by having an impartial person facilitate a potentially difficult IEP team meeting before all the litigation stuff happens.  You can learn a lot more about IEP Facilitation and dispute resolution on the excellent CADRE website.

What questions do you have about dispute resolution in special ed?
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Tuesday, August 6, 2013

Bullying of Kids With Disabilities - Part VIII

English: A collection of pictograms. Three of ...
English: A collection of pictograms. Three of them used by the United States National Park Service. A package containing those three and all NPS symbols is available at the Open Icon Library (Photo credit: Wikipedia)
Bullying remains the hottest of hot button issues in special education law.  We interrupted the series for my thoughts on the Rowley standard as applied to bullying cases.  Now we are back
 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 sohere.

Here is more from the court...these are not my words:

5. Bullying and Students With Disabilities

The United States Department of Education has defined disability harassment as "intimidation or abusive behavior based on 
[ 779 F.Supp.2d 303 ]

disability that creates a hostile environment." U.S. Dep't of Educ., Reminder of Responsibility Under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act July, 25 2000, available at (hereinafter DOE Reminder of Responsibilities Letter). Studies have shown that students with a disability, whether it is visible or non-visible, are subject to increased bullying that is often directed at the disability. John Young, Ari Ne'eman, and Sara Gelser, Bullying and Students With Disabilities, in White House Conference on Bullying Prevention, at 74 (March 10, 2011), available at These students are also at more risk for bullying directed at factors other than their disability. Id. at 77. Harassing conduct may take many forms, including verbal acts and name-calling, as well as nonverbal behavior, such as graphic written statements, or conduct that is physically threatening, harmful, or humiliating. DOE Reminder of Responsibilities Letter, supra.
Overall, students with disabilities are less popular, have fewer friends, and struggle more with loneliness and peer rejection, increasing the likelihood they will become the victim of bullying. Carter,supra, at 12-21 (noting a study that indicated child with even mild learning disorder had fewer friends and another that indicated those who are bullied are more likely to be alone at play time); Young,supra, at 74 ("Many students with disabilities have significant social skills challenges, either as a core trait of their disability or as a result of social isolation due to segregated environments and/or peer rejection. Such students may be at particular risk for bullying and victimization."). Students who suffer from learning disabilities and emotional disorders often lack social awareness, which makes them more vulnerable. Carter, supra, at 12. Other research concludes that disabled students themselves are more likely to perpetuate bullying behavior in response to being bullied. Swearer, supra, at 4.
Despite an increased focus in recent years on instructing special education students in general education classrooms, there has not been a corresponding concern about the way these children integrate socially in the classroom. Carter, supra, at 11. Without healthy social interaction, students with disabilities become targets of harassment.
One study found that four factors were predictive of a student being bullied: 1) receiving extra help in school; 2) being alone at playtime; 3) having fewer than two friends; and 4) being male. Id. at 14. While disabled students often receive extra help, they sometimes struggle to make friends. In one study, learning disabled children reported that they were threatened, assaulted, or had their possessions taken away from them with greater frequency than non-learning disabled students. Id. at 18.
Some states have recognized that students who suffer from a learning disability are at a greater risk for bullying than their non-disabled peers and that IEPs should take this into account. In passing a comprehensive law dealing with school bullying, Massachusetts recently adopted the following requirement:
Whenever the evaluation of the Individualized Education Program team indicates that the child has a disability that affects social skills development or that the child is vulnerable to bullying, harassment or teasing because of the child's disability, the Individualized Education Program shall address the skills 
[ 779 F.Supp.2d 304 ]

and proficiencies needed to avoid and respond to bullying, harassment or teasing.
Mass. Senate No. 2404 (2010) (emphasis added).
Massachusetts Advocates for Children sought to determine how often children along the autism spectrum are harassed at school. Eighty-eight percent of those parents who responded indicated their child was bullied while at school. Massachusetts Advocates for Children, Targeted, Taunted, Tormented: the Bullying of Children with Autism Spectrum Disorder 2 (2009), available at (finding that verbal harassment was the most common form reported at 88.7 percent).
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