Happy New Year.

English: Population Change 1960-2000 by state PD map by US Census Bureau, scanned (Photo credit: Wikipedia)

Happy New Year Everybody.

I can't believe that 2013 is history.  Time for those resolutions.

In the meantime, here are some population facts from  the Census Bureau:

Population Clock

Census Bureau Projects U.S. Population of 317.3 Million on New Year’s Day ─ As our nation prepares to begin the new year, the U.S. Census Bureau today projected that on Jan. 1, 2014, the United States population will be 317,297,938. This represents an increase of 2,218,622, or 0.7 percent, from New Year’s Day 2013.

In January 2014, one birth is expected to occur every 8 seconds in the United States and one death every 12 seconds.

The projected world population on Jan. 1, 2014, is 7,137,577,750, an increase of 77,630,563, or 1.1 percent from New Year’s Day 2013. In January 2014, 4.3 births and 1.8 deaths are expected worldwide every second. India added 15.6 million people over the one-year period, which led all countries, followed by China, Nigeria, Pakistan and Ethiopia.

Related articles

• U.S. Census Bureau Daily Feature for December 31

Weekly Question!

It's time for the Monday question. Each state department of education must have state complaint procedures. In your state how effective are state complaint procedures for resolving systemic issues? We are collecting information on this topic; what have you got?

"Prior Written Notice" - Another Badly Named Special Education Law Concept!

Seal of the United States Court of Appeals for the Eleventh Circuit. (Photo credit: Wikipedia)

Many of the concepts that we use in special education law are mislabeled.  Why is that? Don't even get me started on the different meanings of the term "placement!"  As an Eleventh Circuit decision from last week shows prior written notice is another minefield.

A school district must provide prior written notice to the parents whenever it proposes to, or refuses to, initiate or change the: identification, evaluation, placement, or FAPE. IDEA Section 615(b)(3).  See 34 CFR Section 300.503(a).  The notice must contain the following: a description of the action; an explanation of why the district proposes or refuses the action; a description of each evaluation procedure, assessment, record or report relied upon; a statement that the parents have protections under the procedural safeguards; sources for the parents to contact to obtain assistance; a description of other options considered and why they were rejected; and a description of the factors that are relevant to the district’s proposal or refusal.  IDEA Section 615(c)(1). See 34 CFR Section 300.503(b).

“Prior” written notice is an unfortunate choice of words.  This does not mean that the notice must be given before the decision is made.  Indeed, OSEP has pointed out that the notice must be given a reasonable amount of time before the school district implements the proposal, or refusal, described in the notice. The proposal may trigger an obligation to convene an IEP team meeting, but providing prior written notice before the meeting could suggest that the district’s action was made without parent input and participation.  71 Fed. Register No. 156 at page 46690 (August 14, 2006).

OSEP has published a model form for prior written notice consistent with current statutory and regulatory requirements.  The model form is available on the website: http://idea.ed.gov/. 

But in KA v Fulton County Sch Dist 113 LRP 2083 (11th Cir. 12/20/2013) the parents argued that the school district should have filed for a due process hearing when the parents refused to consent to changes to the student's educational program at an IEP team meeting.  IDEA does not require that, however.  As the Eleventh Circuit pointed out in its decision, a school district must provide prior written notice, and in this case it did so even if the notice was not up to snuff.   The parents' remedy was to file for due process or invoke other procedural safeguards after receiving the prior written notice. Because there are so few published circuit court of appeal decisions, you should read it, and you can do so here.

Related articles

• Is Washington DC Out Of Whack- Part II
• Special education teacher's Facebook post calls autistic child a 'hot mess' and parents 'crazy'
• Is Washington DC Out Of Whack? Part I

Merry Christmas

Christmas tree (Photo credit: Wikipedia)

To all of our readers, please have a wonderful Christmas!

For your enjoyment, here are some fun facts from our friends at the Census Bureau:

Christmas Trees and Decorations           

$1.0 billion

The value of U.S. imports of Christmas tree ornaments from China between January and September 2013. China was the leading country of origin for such items. Similarly, China was the leading foreign source of artificial Christmas trees shipped to the United States ($93.0 million worth) during the same period.

Source: U.S. Census Bureau, Foreign Trade Statistics

https://usatrade.census.gov/

Where the Toys are ... Made

70           

Number of establishments around the country that primarily manufactured dolls and stuffed toys in 2011. California led the nation with 10 locations.

Source: U.S. Census Bureau, County Business Patterns, NAICS code 339931,

http://www.census.gov/econ/cbp/

http://factfinder2.census.gov/bkmk/table/1.0/en/BP/2011/00A1//naics~339931

http://factfinder2.census.gov/bkmk/table/1.0/en/BP/2011/00A1/0100000US.04000.003/naics~339931

524

The number of locations that primarily produced games, toys and children’s vehicles in 2011; they employed 7,187 workers. California led the nation with 88 establishments.

Source: U.S. Census Bureau, County Business Patterns, NAICS code 339932,

http://factfinder2.census.gov/bkmk/table/1.0/en/BP/2011/00A1//naics~339932

http://factfinder2.census.gov/bkmk/table/1.0/en/BP/2011/00A1/0100000US.04000.003/naics~339932

Nearly 15 billion

Pieces of mail the U.S. Postal Service expects to deliver between Thanksgiving and New Year’s Eve. The busiest mailing day is set for Dec.16, and Dec. 18 will be the busiest delivery day.

Source: U.S. Postal Service

http://about.usps.com/news/national-releases/2013/pr13_083.htm

51.6%

Estimated proportion of the nation’s potatoes produced in Idaho and Washington during the fall of 2012. Potato latkes are always a crowd pleaser during Hanukkah.  

Source: National Agriculture Statistics Service, Crop Production, Page 57

http://usda01.library.cornell.edu/usda/current/CropProdSu/CropProdSu-01-11-2013.pdf

$1.4 billion

The estimated value of product shipments of candles in 2011 by U.S. manufacturers. Many of these candles are lit during Diwali, Hanukkah and Kwanzaa celebrations.

Source: U.S. Census Bureau, Annual Survey of Manufacturers,

http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ASM_2011_31VS101&prodType=table

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Weekly Question!

It's time for the Monday question. Each state department of education must have state complaint procedures. In your state how effective are state complaint procedures for resolving systemic issues? We are collecting information on this topic; what have you got?

Is Washington DC Out Of Whack- Part II

(Photo credit: Wikipedia)

As we introduced in the previous post on this topic something seems awry in the nation's capitol.  Since our last post, Congress compromised on a budget so maybe we should take the credit!

But the topic here is that the relief in special ed cases in DC is light on analysis. Particularly in the area of prospective placements.

In most other states relief for a parent showing a denial of FAPE only rarely includes an award of prospective relief.  For example, in Sch Dist of Philadelphia (LV) 112 LRP 57850 (SEA Penna 11/18/12) the hearing officer found a denial of FAPE and awarded compensatory education, but the HO denied the parent request for a prospective private school placement. The HO ruled that parent’s evidence did not show that the school district could not provide an appropriate educational program in the future or that the student required that level of restrictiveness of a public school.  Contrast some DC cases from the same year in which the hearing officer awarded prospective private placement upon finding denial of FAPE with little or no analysis, District of Columbia Public Schs  112 LRP 47403 (SEA DC 6/12/12); District of Columbia Public Schs 112 LRP 36627 (SEA DC 5/1/12); District of Columbia Public Schs 112 LRP 30088 (SEA DC 3/28/12).

I'm wondering why the relief awarded in DC seems to be out of whack? Any theories?

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New Weekly Question!

It's time for the Monday question. Each state department of education must have state complaint procedures. In your state how effective are state complaint procedures for resolving systemic issues?

Systemic Relief and IDEA Class Actions

 (Photo credit: Wikipedia)

Our good friend Professor Mark Weber has a new law review article.  He is one of the true thinkers in the area of special ed law, and his articles are always a good read.

This time he tackles class actions, specifically the effect of the recent Supreme Court decision in Wal Mart upon IDEA class actions. The Wal Mart case involved employment discrimination and placed higher barriers to class certification.  His article tracks the somewhat different approaches of the Seventh and DC Circuits in applying Wal Mart to IDEA class actions.

To me though the most interesting part of the article involves how to redress systemic violations of IDEA. Class actions may still be a viable method as Professor Weber points out, but if courts erect more barriers to class actions, what will be the remedy for systemic violations of IDEA? 

Most states do not allow systemic issues to be raised in due process hearings.  But as Professor Weber points out states are required to have state administrative complaint procedures. 34 C.F.R. §§300.151-300.153. These procedures are supposed to be available for challenges to systemic issues.  Independent Sch Dist No 281 v Minnesota Dept of Educ 48 IDELR 222 (Minn Ct App 2007) See, Letter to Douglas 35 IDELR 278 (OSEP 4/19/2001); OSEP Q & A Document on Dispute Resolution Procedures 61 IDELR 232 (OSEP 7/23/2013) (See Question B-9) 

I'm wondering how well the state complaint procedures address these systemic issues in the states.  Look for a new weekly Monday question on this topic as we seek to gather some data.  More on this later.

In the meantime, be sure to read Professor Weber's thought-provoking article.  If you like special education law, you can and should read it here.

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Weekly Question!

It's time for the Monday question. How would you change the Rowley FAPE standard if at all? We will later do a post featuring some of your ideas. This post will repeat every week until we have a number of responses to report. Thanks for your input.

Is Washington DC Out Of Whack? Part I

Washington DC (Photo credit: eGuide Travel)

OK that seems like a cheap shot title.  Everything about Washington DC is out of whack- starting with the federal government's inability to compromise, or even to govern for that matter. 

But that's not what I'm talking about here.  I'm talking about special education due process hearings, and more specifically the relief that is awarded when a parent wins a due process hearing. As readers likely already know when parents and school districts disagree about the education of a child with a disability, and other procedural safeguards are not successful, the dispute often winds up in a due process hearing.  The doctrine of exhaustion of administrative remedies requires parents to generally try the due process system before jumping to court in almost all cases.

I think that maybe the Washington DC cases are sometimes a bit weak on analysis of the relief awarded.  

Let me back up a step.  It is clear as a matter of law that due process hearing officers have broad equitable authority to fashion an appropriate remedy when they find a violation of IDEA.  Forrest Grove Sch Dist v. TA 557 U.S. 230, 129 S.Ct. 2484, 52 IDELR 151 (U.S.  2009).   This includes the ability to award prospective relief in a case where the facts are extreme. See, Draper v. Atlanta Indep Sch System 518 F.3d 1275, 49 IDELR 211 (11th Cir. 2008). But in general there is a preference under IDEA for a student to be placed in public school. RH by Emily H & Matther H v. Plano Independent Sch Dist 54 IDELR 211 (5th Cir 2010).

More on how DC applies this concept this in the next installment.

Related articles

• Weekly Question!

Weekly Question!

It's time for the Monday question. How would you change the Rowley FAPE standard if at all? We will later do a post featuring some of your ideas. This post will repeat every week until we have a number of responses to report. Thanks for your input.