Breaking: US Department of Education Issues Guidance on How Schools Should Address Sexual Violence

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

Today the United States Department of Education issued guidance to school officials on how they should respond to sexual violence and other sex discrimination. The guidance focuses primarily upon Title IX, but it impacts upon several other statutes.You can read the DOE guidance here.

Although this issue is much broader than just a special ed issue, the Q & A document does address students with disabilities in part. Question B-3 is particularly relevant and the question and answer are set forth below:

B-3. What issues may arise with respect to students with disabilities who experience sexual 

violence? 

Answer: When students with disabilities experience sexual violence, federal civil rights 

laws other than Title IX may also be relevant to a school’s responsibility to investigate and 

address such incidents.   Certain students require additional assistance and support. For 

example, students with intellectual disabilities may need additional help in learning about 

sexual violence, including a school’s sexual violence education and prevention programs, 

what constitutes sexual violence and how students can report incidents of sexual 

violence. In addition, students with disabilities who experience sexual violence may 

require additional services and supports, including psychological services and counseling 

services. Postsecondary students who need these additional services and supports can 

seek assistance from the institution’s disability resource office. 

A student who has not been previously determined to have a disability may, as a result of 

experiencing sexual violence, develop a mental health-related disability that could cause 

the student to need special education and related services. At the elementary and 

secondary education level, this may trigger a school’s child find obligations under IDEA 

and the evaluation and placement requirements under Section 504, which together 

require a school to evaluate a student suspected of having a disability to determine if he 

or she has a disability that requires special education or related aids and services.

A school must also ensure that any school reporting forms, information, or training about 

sexual violence be provided in a manner that is accessible to students and employees with 

disabilities, for example, by providing electronically-accessible versions of paper forms to 

individuals with print disabilities, or by providing a sign language interpreter to a deaf 

individual attending a training. See question J-4 for more detailed information on student 

training. 

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Breaking: New Law Review Article by Professor Mark Weber Defending IDEA Due Process Hearings

Gavel (Photo credit: walknboston)

Due process hearings under IDEA, the primary special education law, are under attack on many fronts. I have to admit to a bias here.  I have been an IDEA due process hearing officer for five different jurisdictions since 1989.  In addition, I have trained hearing officers around the country at national, regional and state specific hearing officer trainings.  I clearly have an investment in the current special education hearing system. So bear that in mind, but I stand by the following:

In recent years the special ed hearing system has come under attack.  School district lawyers and a few academics have squared off against it.  Last year the AASA, the school superintendent's association, issued a report calling on Congress to do away with due process hearings.  We had two posts about the AASA report here and here. Even some parents don't like the hearing process. See this post.

In this context of attacks upon the due process hearing system, a new law review article provides some important insights. Professor Mark Weber  is a true scholar in the field of special education law, and he is a friend of this blog as well as a friend of mine.  Professor Weber has written  a new law review article that defends the IDEA due process hearing system. He writes that "...some criticisms of hearing rights are flat-out wrong and that others are badly overblown. The system is, on the whole, fair to the various classes of parents..." He goes on to propose some modest reforms to the due process hearing system while defending the system in general. He concludes with the phrase "Don't dis due process." This law review article is a must read for those involved in special ed law.

The article will soon be published in the Ohio State Journal On Dispute Resolution,  but in the meantime you can find it on SSRN here. Thanks to Professor Weber for sharing this fantastic article.  Please read it and tell us what you think.

Related articles

• Weber, In Defense of IDEA Due Process
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• When Rowley Doesn't Apply; New Law Review Article
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• Mark Weber on Class Certification Denial in Chicago Special Education Cases
• Section 504 and ADA - the Redheaded Stepchildren of Special Education Law

Weekly Question!

Dispute Resolution is at the heart of the Procedural safeguards provided by the Individuals With Disabilities Education Act. Which dispute resolution methods under IDEA have you had the most success with? Leave your story in the comments.

Procedural Safeguards The Series Part VIII

This is the eighth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful.

Mediation

Mediation is a highly flexible way to resolve disagreements between school systems and parents of children with disabilities. An impartial person, called a mediator, helps parents and school district personnel to communicate more effectively and develop a written document that contains the details of their agreement. The mediator has been trained in effective mediation techniques.

Participation in mediation is completely voluntary; parents and school districts only have to participate if they choose to. The mediation process is also confidential; discussions cannot be used in any future due process hearing or court proceeding. 34 CFR § 300.506(b)(8); 71 Fed. Register No. 156 at pages 46695-96 (August 14, 2006).

IDEA requires state education agencies to provide a mediation system at no cost to the parties; mediation is free for both parents and school districts. Mediation must be available at any point in the process, including disputes arising before a due process complaint has been filed. IDEA §615(e).

A mediation agreement must state that mediation discussions are confidential and may not be used in a subsequent due process hearing or court proceeding. § 615(e)(2)(F)(i). IDEA specifically provides that mediation agreements are enforceable in court. § 615(e)(2)(F)(iii). OSEP has noted that nothing prevents parties to a mediation from agreeing to have the mediator facilitate an IEP team meeting. 71 Fed. Register No. 156 at page 46695 (August 14, 2006).

Mediators must be selected on a random, rotational or other impartial basis, and one such impartial basis would be agreement by the parties. 71 Fed. Register No. 156 at page 46695 (August 14, 2006). Because mediators are not selected by the parents, states are not required to provide a list of their mediators or their qualifications to the parents or the public in general. 71 Fed. Register No. 156 at page 46695 (August 14, 2006).


 Letter to Gerl 59 IDELR 200 (OSEP 6/6/12) OSEP opined that a school district may not use mediation as a means to inform a parent of his options after a parent revokes consent for special education. Despite the requirement under IDEA that parental decisions under IDEA be made with “informed consent,” and despite the policy favoring mediation under the reauthorization amendments, a school district may not use mediation or the other dispute resolution mechanisms under subpart E of the federal regulation, even if a parent voluntarily agrees to do so, after revocation of consent.           
Memo to Chief Sch Officers Re Dispute Resolution Procedures Under Part B of IDEA 61 IDELR. 232 (OSEP 7/23/13) The 64 page Q & A attachment includes a section on mediation.
JD by Davis v. Kanawha County Bd of Educ 571 F.3d 381, 52 IDELR 182 (4th Cir. 7/9/9) Fourth Circuit held that mediation discussions under IDEA are confidential.  Accordingly where the school district offered a settlement stating that the terms would be the same terms as a failed mediation, district could not use the settlement offer to prove that it had made a more favorable settlement offer than the relief obtained by the parent at the due process hearing;     

ADDITIONAL RESOURCES for MEDIATORS: In addition to the general IDEA resources, mediators should frequently visit the CADRE website. The Consortium for Appropriate Dispute Resolution in Special Education is an OSEP funded group that encourages mediation, IEP facilitation and other means of special education dispute resolution that are less formal and legalistic than due process hearings. Their website is loaded with helpful articles, materials and other information.  

Here is the OSEP Topic Brief on Mediation:

Blog Issues on Google Chrome??? Tech stuff.

When I view this blog on my Google Chrome browser, the settings are off. 


Funny ads that I have not approved are in the banner under the name of the blog and on the lefthand side of the blog.  Also it does not let me sign in or otherwise manage the blog.


Oddly, these aberrations do not appear on other browsers, specifically Internet Explorer and Mozilla Firefox. 


Any ideas on how to fix this techies?


While I am on the topic of technology, please check out our LinkedIn Special Education Law Blog.  There are now close to 14,000 members and the discussions can be very interesting.  There is a link of the lefthand side of the blog.


Also please take one of the free subscriptions to the blog also available on the lefthand side of the blog. We appreciate your support.

Weekly Question!

Dispute Resolution is at the heart of the Procedural safeguards provided by the Individuals With Disabilities Education Act. Which dispute resolution methods under IDEA have you had the most success with? Leave your story in the comments.

Sometimes My Job Is Pretty Cool

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Weekly Question!

Dispute Resolution is at the heart of the Procedural safeguards provided by the Individuals With Disabilities Education Act. Which dispute resolution methods under IDEA have you had the most success with? Leave your story in the comments.

Procedural Safeguards - The Series Part VII

Meetings are sometimes held around conference tables. (Photo credit: Wikipedia)

This is the seventh installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you think about the series.

Facilitated IEPs


In order to help IEP teams reach agreements, several states and districts have been experimenting with facilitatedIndividualized Education Program (IEP) meetings. The use of externally facilitated IEP meetings is a growing national trend. When relationships between parents and schools are difficult, facilitated meetings may be helpful.

While a facilitator does not chair the IEP team meeting, he helps keep members of the team focused on the development of the IEP while at the same time defusing conflicts and disagreements that may arise during the meeting. At the meeting, the facilitator uses a number of communication and other skills that create an environment in which the IEP team members can listen to and consider each other’s suggestions and work together to complete the development of an IEP that will provide FAPE for the child.

The type of person who facilitates the meeting varies. Sometimes, a member of the team will facilitate the meeting. In some cases, a district representative with expert facilitation skills may be called in to help the team complete the IEP process. In other cases, another parent, a trained parent advocate, or support person may facilitate the meeting. Occasionally a student may lead his own IEP meetings. 

When IEP teams reach an impasse or meetings are expected to be extremely contentious, however, an independent, trained facilitator not affiliated with the team or school district may be able to help guide the process. The presence of the trained facilitator helps keep the team members on task. The facilitator also is trained in using techniques to help prevent miscommunications and disagreements from derailing the IEP process.

I recently took a training on IEP facilitation at the University of Delaware.  The training was very intensive and required a lot of practice.  IEP facilitation requires skill and empathy.  I admire the folks who are rally good at this!

A helpful guide to IEP Facilitation by the TAA Alliance and CADRE may be found here: 
All of the materials from the presentations at the National Conference on IEP Facilitation sponsored by CADRE are available here. 

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Weekly Question!

Procedural safeguards are at the heart of the Individuals With Disabilities Education Act. As we conduct a new informational series on procedural safeguards, what would you change about IDEA's scheme for protecting parent/student rights?

Procedural Safeguards - The Series Part VI

U.S. Supreme Court building. (Photo credit: Wikipedia)

This is the sixth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you think about the series.

There are four dispute resolution mechanisms provided by theIndividuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq, (hereafter sometimes referred to as “IDEA”) and the accompanying federal regulations: mediation, state complaints, resolution sessions, and due process hearings. In addition, some states and districts are experimenting with fifth method-facilitated IEP meetings.

Special education disputes may be resolved through any of the five methods or by any combination of the methods. It is highly unusual under the law for an aggrieved party to be permitted to invoke more than one resolution option. Although mediation is often used in combination with litigation, it is rare for other formal methods to be combined. An unhappy party could file a state complaint wait for the results and then file a due process hearing over the same dispute. The same dispute can be submitted at any time in the process to mediation. A resolution session occurs in every due process filed by a parent unless waived or submitted to mediation in lieu thereof. It is true that if the complaint and due process are filed at the same time, the portions of the state complaint duplicating the due process complaint are held in abeyance until resolution of the due process, but if they are not filed at the same time, there is no prohibition upon the utilization of multiple methods. 

Adding to the frustration of this lack of finality is the fact that the result of most of the options may also be appealed to one or more levels of the court system. The U. S. Supreme Court has noted that the judicial review process for special education cases takes a long time, referring to the appellate process as “ponderous.” Town of Burlington v. Dept of Educ 471 U.S. 358, 105 S.Ct. 1996, 556 IDELR 389 (1985).

A wealth of resources about dispute resolution in special education are available on the CADRE website.

This link is to the NICHCY Training Program – Module 18: Options for Dispute Resolution:

Last year, OSEP issued a 64 page Q & A document concerning dispute resolution. You can read our blog post on the disputr resolution Q & A document, which includes a link to the document, here.

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