Standard for Non-FAPE Cases

English: The Supreme Court of the United States. Washington, D.C.
 (Photo credit: Wikipedia)

This post was inspired by a discussion during a presentation by Professor Mark Weber at the recent conference at Seattle University at the Academy for IDEA hearing officers.  It was also inspired by a law review article by Professor Weber: Mark C Weber, “Common-Law Interpretation of Appropriate Education: The Road Not Taken in Rowley,” 41 Journal of Law & Education 95 (January 2012); also available at the SSRN. Professor Weber has a lot to answer for!

The standard for FAPE was articulated by the seminal  Rowley decision of the Supreme Court.  At least 75% of the IDEA cases involve FAPE.  But IDEA cases can involve four issues: FAPE; placement (LRE, discipline; etc); evaluation, and identification (child find, eligibility, etc.) IDEA, § 615(b)(6).  Hearing officers and judges tend to generically refer to all violations of IDEA as a denial of FAPE.  For example, you may see an issue stated as - did the district deny FAPE to the student by improperly evaluating him on...    An evaluation violation is not a FAPE question, but we lump everything into FAPE sometimes and that is not accurate.

So does the Rowley basic floor standard apply in these other kinds of cases? The circuit courts of appeal have addressed standards for some of the elements of the other three violations (eg, LRE or child find), and my view is that the Rowley analysis is inapplicable.  I'm not sure that the legal standard gets a lot of analysis in these other cases though. What do you think?

Related articles

• The Rowley Standard for FAPE - Are the Bullying Cases Changing the Standard? Part II
• More on Professor Weber Law Review Article on Special Ed Hearings
• Special Education Law and Academia: New Law Review Article
• The Rowley Standard for FAPE - Are the Bullying Cases Changing the Standard? Part II
• When Rowley Doesn't Apply; New Law Review Article

Weekly Question!

Procedural violations of IDEA are only actionable if they adversely impact the child's education or significantly impair the parents' participation rights. Which procedural violations are most likely to result in an adverse finding against a school district?

ADA Is 24 Years Old

This is the internationally recognized symbol for accessibility (Photo credit: Wikipedia)

The Americans With Disabilities Act was signed into law twenty-four years ago this Saturday. If you are interested in suggestions on how to celebrate, here is an ADA Anniversary Toolkit. For more information about the ADA, see this post in the blog of the Council of Exceptional Children.

Our friends at the U. S. Census Bureau have assembled some interesting numbers in honor of the data.  Here they are:

On July 26, 1990, President George H.W. Bush signed the Americans with Disabilities Act, which prohibits discrimination against people with disabilities in employment, transportation, public accommodations, commercial facilities, telecommunications, and state and local government services. Population Distribution 56.7 million Number of people in the United States in 2010 with a disability. People with disabilities  represented 19 percent of the civilian noninstitutionalized population. Persons with a disability have a physical or mental impairment that affects one or more major life activities, such as walking, bathing, dressing, eating, preparing meals, going outside the home, or doing housework. A disability can occur at birth or at any point in a person’s life. By age — • 8 percent of children under 15 had a disability. • 21 percent of people 15 and older had a disability. • 17 percent of people 21 to 64 had a disability. • 50 percent of adults 65 and older had a disability. Source: Americans with Disabilities: 2010  2012pubs/p70-131.pdf > 20% Percentage of females with a disability, compared with 17 percent of males. Source: Americans with Disabilities: 2010  <http://www.census.gov/prod/2012pubs/p70-131.pdf > Where They Live 19% Percent of the civilian noninstitutionalized population in West Virginia with a disability ─ the highest rate of any state in the nation. Utah, at 9 percent, had the lowest rate. Source: 2012 American Community Survey, Table R1810 <http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_12_1YR_R1810.US01PRF&prodType=table > 30% Percent of the civilian noninstitutionalized population in Pike County, Ky., with a disability ─ the highest rate in the nation among counties with populations of 65,000 or more. Arlington County, Va., at 5 percent, had among the lowest rates. Source: 2012 American Community Survey, Table GCT1810 http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_12_1YR_GCT1810.US05PR&prodType=table 23% Percent of the civilian noninstitutionalized population in Lorain, Ohio, with a disability ─ among the highest rates in the nation among places with populations of 65,000 or more. Weston, Fla., at 3 percent, had among the lowest rates. Source: 2012 American Community Survey, Table GCT1810 <http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_12_1YR_GCT1810.US13PR&prodType=table > Specific Disabilities 7.6 million Number of people 15 and older who had a hearing impairment. Among people 65 and older, 4 million had hearing impairments. Source: Americans with Disabilities: 2010  <http://www.census.gov/prod/2012pubs/p70-131.pdf > 8.1 million Number of people 15 and older with a vision impairment.  Source: Americans with Disabilities: 2010  <http://www.census.gov/prod/2012pubs/p70-131.pdf > 30.6 million Number of people 15 and older who had movement impairment, such as walking or climbing stairs. Source: Americans with Disabilities: 2010  <http://www.census.gov/prod/2012pubs/p70-131.pdf > 3.6 million Number of people 15 and older who used a wheelchair. This compares with 11.6 million people who used canes, crutches or walkers. Source: Americans with Disabilities: 2010  <http://www.census.gov/prod/2012pubs/p70-131.pdf > 2.4 million Number of people 15 and older who had Alzheimer’s disease, senility or any form of neurocognitive disorders. Source: Americans with Disabilities: 2010  <http://www.census.gov/prod/2012pubs/p70-131.pdf > 12.0 million Number of people 15 and older who required the assistance of others in order to perform one or more basic or instrumental activities of daily living, such as bathing, dressing, doing housework and preparing meals. Source: Americans with Disabilities: 2010  <http://www.census.gov/prod/2012pubs/p70-131.pdf > Earnings and Poverty $20,184 Median earnings in the past 12 months for people with a disability. This is 66 percent of the median earnings, $30,660, for those without a disability. Source: 2012 American Community Survey, Table B18140 <http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_12_1YR_B18140&prodType=table > 323,000 Number of employed people with disabilities earning $100,000 or more annually. This amounts to 4 percent of all people with disabilities who were employed. In comparison, 8 percent of all people without a disability who were employed earned $100,000 or more annually. Source: Disability Employment Tabulation, from 2008-2010 American Community Survey, Table Set 7A <http://www.census.gov/people/disabilityemptab/data /> 23% Percentage of people with a disability who were in poverty. By comparison, those without a disability had a poverty rate of 15 percent. Source: 2012 American Community Survey, Table B18130 <http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_12_1YR_B18130&prodType=table > Government Assistance 30% Percentage of people who received income-based government assistance and have a disability; 18 percent of assistance recipients had difficulty walking or climbing stairs. Source: Disability Characteristics of Income-Based Government Assistance Recipients in the United States: 2011 (from American Community Survey)  <http://www.census.gov/prod/2013pubs/acsbr11-12.pdf > 42% The percentage of income-based assistance recipients in West Virginia with a disability, which led all states. Arizona ranked the lowest, at 25 percent. Source: Disability Characteristics of Income-Based Government Assistance Recipients in the United States: 2011 (from American Community Survey) <http://www.census.gov/prod/2013pubs/acsbr11-12.pdf > Health Insurance 10% Percentage of people with a disability who lacked health insurance. Those without a disability were more likely to be without coverage (15 percent). Source: 2012 American Community Survey, Table B18135 <http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_12_1YR_B18135&prodType=table >

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Seattle Academy A Big Success

Pike Place Market in Seattle (Photo credit: Wikipedia)

Last week was the annual Seattle U. Academy for IDEA hearing officers and administrative law judges. It was especially good this year. All those special ed hearing officers in one place is always good- a chance to compare notes, think about what works and get some validation. It is nice to see old friends and make some new ones.  

My panel on decision writing led things off.  It easily filled three hours and it went very well. The participants were very involved and they gave helpful input.  Two colleagues offered sample decisions for discussion.  It was one of those sessions where we all learned from each other.  It was a decision-writing clinic. Great session.

Other highlights included learning about behavior in children from Jerry Sattler and getting a copy of his authoritative treatise on the subject.  Also an interesting session on neuroscience and decision making biases finished off the training. 

Thanks again to those who made this training a success.

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Weekly Question!

Procedural violations of IDEA are only actionable if they adversely impact the child's education or significantly impair the parents' participation rights. Which procedural violations are most likely to result in an adverse finding against a school district?

Weekly Question!

Procedural violations of IDEA are only actionable if they adversely impact the child's education or significantly impair the parents' participation rights. Which procedural violations are most likely to result in an adverse finding against a school district?

More Thoughts on Ermini v. Vittori

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

Our last post discussed the breaking second circuit decision in Ermini v. Vittori.  You can read that post here. It is a big case.

The case is interesting for a number of reasons.  First there is the international aspect.  The case involves a treaty- pretty unusual and different than the usual statutes, regs and caselaw.  And yes, as alert readers have informed me, the child involved, Danielle, is in fact a boy.

Also the case raises issues of domestic violence. Awareness of this problem is higher than ever and that is good.  But the problem for society is still a huge one.  There is a tie in to special ed law.  I believe that there is a connection between domestic violence and the bullying problem which continues to be a hot button.  The Ermini decision places domestic violence issue front and center.

But the big question from our perspective is how this case will affect the IDEA analysis of ABA-based therapy.  I predict (and my crystal ball is sometimes cloudy!) that hearing officers and courts in special education cases will soon be hearing arguments on just what this second circuit decision means for purposes of IDEA.  It was not an IDEA case, but I am already imagining the arguments that clever lawyers on both sides will be making.

What are your thoughts on the IDEA significance of Ermini v. Vittori?

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Breaking: Second Circuit Decision on ABA Therapy

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

OK this was not a special education decision, but it is a significant decision about a nine year old boy with autism. Her Italian parents moved to the United States to obtain ABA therapy for Danielle, their son.

After some domestic violence, the marriage ended in divorce. The father sued under the Hague Convention  as implemented in the United States by the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. to have his daughter returned to Italy. The Hague Convention is a treaty that provides for the return of children wrongfully removed from their country of habitual residence. The U. S. District Court in New York found that the student had benefited immensely from her ABA-based program, especially in the areas of communication, vocabulary, self-care and general cognition. The court found further that any hope that the child might lead an independent and productive life required a continued ABA program like the one offered by his school in the United States.  The Court found it very likely that the child would not be able to have a similar educational program in Italy.  The court ruled that the child could remain in the US because return to Italy posed a grave risk of harm to the child, one of the exceptions spelled out by the treaty

The Second Circuit affirmed noting that both the domestic violence history and the harm caused by the loss of the child's educational ABA-based program would pose a grave risk of harm to the child.

You can read the entire Second Circuit decision here.

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• ABA therapy benefits cut off for some autistic children in California
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Weekly Question!

Procedural violations of IDEA are only actionable if they adversely impact the child's education or significantly impair the parents' participation rights. Which procedural violations are most likely to result in an adverse finding against a school district?

Sometimes My Job Is Pretty Cool

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Independence Day

English: This is a high-resolution image of the United States Declaration of Independence (article (Photo credit: Wikipedia)

Happy Independence Day!


We have had many requests to restate a post from our archives that expresses our feelings on this holiday. Here goes:

 The Fourth of July is a big holiday for our country, and these days we really need a big holiday. I have always loved this day; what other country believes in an inalienable right to pursue happiness! Independence Day is also a time to reflect on the concept of independence. Independence Day is also a time to reflect on the concept of independence. 

 

For people with disabilities, independence is an important goal. Congresshas stated that encouraging independent living for people with disabilities is the policy of the United States government. IDEA, Section 601(c). Indeed, one of the purposes of special education is to prepare children with disabilities for independent living. IDEA, Section 601(d)(1)(A). 

 

Before passage of the EHA, the predecessor of the IDEA, in 1975, education of children with disabilities, who were then called "handicapped," was iffy at best. According to the legislative history of the EHA, which is quoted in the seminal Rowley decision by the Supreme Court, millions of children with disabilities were then either totally excluded from school or were warehoused until they were old enough to drop out. Bd. of Education v. Rowley, 458 U.S. 176, 191, 103 LRP 31848 (1982). At the time, it was estimated that of the eight million children who required special education, only about 3.9 million were receiving an appropriate education. Bd. of Education v. Rowley, 458 U.S. 176, 191, 103 LRP 31848 (1982). 

 

These numbers are shocking. 1975 was not long ago. Yet we have made real progress since then. Special education may have its detractors, but it is now widely accepted. Very few children with disabilities are now excluded from school. Some still do not receive an appropriate education, but there are now remedies available when that happens. We have come a long way!

 

I realize that we are not finished. I do not advocate the display of a banner reading "mission accomplished." But as we look forward on this Independence Day to how we can do a better job of educating children with disabilities and preparing them to live independently, let us also look back for a moment and congratulate ourselves on the excellent progress we have made in what in public policy terms is truly a very short time. 

 

Happy Independence Day.

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50th Anniversary of the Civil Rights Act

English: Final roll call vote in the U.S. House of Representatives on H.R. 7152 (the Civil Rights Act of 1964). Page 1 of voting record. (Photo credit: Wikipedia)

President Lyndon B. Johnson signs the 1964 Civil Rights Act as Martin Luther King, Jr., and others, look on. (Photo credit: Wikipedia)

Fifty years ago today President Johnson signed the Civil Rights Act of 1964. This was truly a landmark law, and it was one of the biggest victories of the civil rights movement. Congratulations to those brave people who made this law possible.

As Secretary Duncan has said, education is one of the basic civil rights so we are claiming that is anniversary is relevant to our topic in this blog.  Thanks to our friends at the U. S.  census bureau, we have some numbers for you: If like me you enjoy crunching the numbers, crunch away.

*Special Edition*

50th Anniversary of the Civil Rights Act: July 2

On July 2, 1964, President Lyndon Johnson signed the Civil Rights Act of 1964 into law. This landmark law prohibits discrimination on the basis of race in public accommodations, in publicly owned or operated facilities, in employment and union membership and in the registration of voters. To mark the anniversary, the U.S. Census Bureau has gathered key statistics that measure changes in some characteristics of different race groups to date.

Note: This analysis uses the closest available year for each race/ethnic group to the historic act. Analysis is limited because of limited historical data for all racial and ethnic groups.

Population

1964	2013
20,671,914 The total estimated black population in the United States.	41,623,897 The total estimated black population in the United States.
10.8% The estimated percentage of the U.S. population that was black.	13.2% The estimated percentage of the U.S. population that was black.

1970	2013
9.6 million The total estimated Hispanic population in the United States.	54.1 million The total estimated Hispanic population in the United States.
4.7% The estimated percentage of the U.S. population that was Hispanic.	17.1% The estimated percentage of the U.S. population that was Hispanic.

1960	2013
980,337 The total Asian and Pacific Islander population in the United States.	16,632,553 The total estimated Asian population in the United States.
0.5% The percentage of the U.S. population that was Asian and Pacific Islander.	5.3% The estimated percentage of the U.S. population that was Asian.

1960	2013
551,669 The total American Indian, Eskimo and Aleut population in the United States.	3,910,028 The total estimated American Indian and Alaska Native population in the United States.
0.3% The estimated percentage of the U.S. population that was American Indian, Eskimo and Aleut.	1.2% The estimated percentage of the U.S. population that was American Indian and Alaska Native.

Sources: http://www.census.gov/popest/data/national/asrh/pre-1980/tables/PE-11-1964.pdf

 (1964)

Source: http://www.census.gov/population/www/documentation/twps0056/twps0056.pdf

(1960)

Source: http://factfinder2.census.gov/bkmk/table/1.0/en/PEP/2013/PEPALL6N?slice=year~est72013

(2013)

Geographic Distribution

1960	2010
59.9% The percent of the black population living in the South.	56.5% The percent of the black population living in the South. The South continues to have the largest concentration of African-Americans.
81.4% The percent of the Asian population living in the West. The West had the largest concentration of Asians.	45.5% The percent of the single-race Asian population living in the West. The West continues to have the largest concentration of Asians.
54.2% The percent of the American Indian and Alaska Native population living in the West. The West had the largest concentration of the American Indian and Alaska Native population	45.6% The percent of the single-race American Indian and Alaska Native population living in the West.

Sources: http://www.census.gov/population/www/documentation/twps0056/twps0056.pdf

 (Tables 1 and 4)

http://www.census.gov/prod/cen2010/briefs/c2010br-06.pdf

 (Black, Page 7.)

http://www.census.gov/content/dam/Census/library/publications/2012/demo/c2010br-11.pdf

 (Asian, Page 6)

http://www.census.gov/content/dam/Census/library/publications/2012/demo/c2010br-10.pdf

 (AIAN, Page 7)

1970	2010
41.0% The percent of the Hispanic population living in the West. The West had the largest concentration of Hispanics.	40.8% The percent of the Hispanic population living in the West.

Sources:

1970: http://www.census.gov/population/www/documentation/twps0056/twps0056.pdf

 (Tables 1 and 4)

2010: http://www.census.gov/content/dam/Census/library/publications/2011/demo/c2010br-04.pdf

 (Page 6)

School Enrollment

1964	2012
4.6 million Number of blacks enrolled in elementary school. In addition, 312,000 were enrolled in kindergarten.	4.9 million Number of blacks enrolled in elementary school. In addition, 646,000 were enrolled in kindergarten.
1.6 million Number of blacks enrolled in high school.	2.7 million The number of blacks enrolled in high school. That is a 41.7 percent increase from 1964.
306,000 Number of blacks enrolled in college.	3 million Number of blacks enrolled in college.

Source: http://www.census.gov/hhes/school/data/cps/historical/TableA-1.xls

1972	2012
1.9 million Number of Hispanics enrolled in elementary school. In addition,241,000 were enrolled in kindergarten.	7.8 million Number of Hispanics enrolled in elementary school. In addition, 1.1 million were enrolled in kindergarten.
834,000 Number of Hispanics enrolled in high school.	3.8 million The number of Hispanics enrolled in high school.
242,000 Number of Hispanics s enrolled in college.	3.4 million Number of Hispanics enrolled in college.

Source: http://www.census.gov/hhes/school/data/cps/historical/TableA-1.xls

High School Graduates  

1964	2012
25.7%  Percentage of blacks age 25 and over who completed at least four years of high school.	85.0% Percentage of blacks age 25 and over who completed at least four years of high school.
2.4 million  Number of blacks 25 and over with at least four years of high school.	20.3 million Number of blacks 25 and over with at least a high school diploma.

1974	2012
36.5%  Percentage of Hispanics age 25 and over who completed at least four years of high school.	65.0% Percentage of Hispanics age 25 and over who completed at least four years of high school.

Note: The 2012 information in this section refers to the single-race black population.

Sources: http://www.census.gov/hhes/socdemo/education/data/cps/1964/tab-01.pdf

http://www.census.gov/hhes/socdemo/education/data/cps/historical/tabA-2.xls

http://www.census.gov/hhes/socdemo/education/data/cps/2012/tables.html

, Table 1 

Higher Education

1964	2012
3.9%   Percent of blacks age 25 and over who completed at least four years of college.	21.2%  Percent of blacks age 25 and over who completed at least four years of college.
365,000 Number of blacks age 25 and over who had at least a bachelor’s degree.	5.1 million Number of blacks age 25 and over who had at least a bachelor’s degree.

1974	2012
5.5%   Percent of Hispanics age 25 and over who completed at least four years of college.	14.5%  Percent of Hispanics age 25 and over who completed at least four years of college.

Sources:

http://www.census.gov/hhes/socdemo/education/data/cps/historical/tabA-2.xls

 http://www.census.gov/hhes/socdemo/education/data/cps/1964/tab-01.pdf

, page 12.
http://www.census.gov/hhes/socdemo/education/data/cps/2012/Table1-04.xls

http://www.census.gov/hhes/socdemo/education/data/cps/2012/tables.html

, Table 1.

 Income 

1964	2012
$24,840 (in 2012 dollars) The median family income for blacks.	$40,517 The median family income for the single-race black population.
$27,403 and $17,235 (in 2012 dollars) Median income of black men and black women who worked full time, year-round.	$39,816 and $35,090 Median income of single-race black men and black women who worked full time, year-round.

1976	2012
$37,642 (in 2012 dollars) The median family income for Hispanics.	$ 40,764 The median family income for the Hispanic population.
$38,240 and $26,158 (in 2012 dollars) Median income of Hispanic men and Hispanic women who worked full time, year-round.	$32,516 and $29,508  Median income of Hispanic men and Hispanic women who worked full time, year-round.

Sources: http://www.census.gov/hhes/www/income/data/historical/families/2012/F05_2012.xls

 http://www.census.gov/hhes/www/income/data/historical/people/2012/P36B_2012.xls

 http://www.census.gov/hhes/www/income/data/historical/people/2012/P36H_2012.xls

  

Poverty 

1966	2012
41.8%  Poverty rate for blacks. Nationally, the poverty rate for all races was 14.7 percent.	27.2%Poverty rate for single-race blacks. Nationally, the poverty rate for all races was 15 percent.

1972	2012
22.8% Poverty rate for Hispanics.	25.6%Poverty rate for Hispanics.

Source: http://www.census.gov/hhes/www/poverty/data/historical/hstpov2.xls

Voting

1964	2012
58.5% The percent of the total black population 18 years and older who voted in the 1964 presidential election.	62.0% The percent of the total black population 18 years and older who voted in the 2012 presidential election.
69.3% The percent of the total U.S. population 18 and older that voted in the 1964 presidential election.	56.5% The percent of the total U.S. population 18 and older that voted in the 2012 presidential election.

1972	2012
37.5% The percent of the total Hispanic population 18 years and older who voted in the 1972 presidential election.	31.8% The percent of the total Hispanic population 18 years and older who voted in the 2012 presidential election.

Sources: http://www.census.gov/hhes/www/socdemo/voting/publications/historical/A1.xls

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