Tuesday, March 31, 2015

Special Education Law 101: Part II #fape

This is the second installment in our ongoing series which presents an Introduction to Special Ed Law.

                The Requirement of  FAPE (free and appropriate public education)

The basic requirement of the IDEA is that states and school districts must have in effect policies and procedures that ensure that children with a disability receive a free and appropriate public education, hereafter sometimes referred to as “FAPE.” IDEA, § 612(a)(1).

The IDEA defines “child with a disability” as a child:
(i)with a mental impairment, hearing impairments…, speech or language impairments, visual impairments…, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii)who by reason thereof, needs special education and related services.
              IDEA, § 602(3)

     The IDEA defines “FAPE” as:

special education and related services that:
(A)  have been provided at public expense, under public supervision and direction, and  without charge;
(B)  meet the standards of the State educational agency;
(C)  include an appropriate preschool, elementary school or secondary school education in the state involved; and
(D)  are provided in conformity with the individualized education program required (…hereunder.).
IDEA, § 602(9).  See also 34 C.F.R. §§ 300.101 to 300.113.

     The IDEA defines “special education” as:

Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including
(A)    instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B)    instruction in physical education.
IDEA, § 602(29).

          The Supreme Court of the United States issued the seminal decision interpreting the provisions of the IDEA in the case of  Board of Education of Hendrick Hudson Bd. of Ed. v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982).  The facts of the case were that the student had a hearing impairment.  The parents requested that the schools provide a sign language interpreter for all of the student’s academic classes.  Although the child was performing better than the average child in her class and easily advancing from grade to grade, she was not performing consistent with her academic potential. Rowleysupra, 102 S.Ct at 3039-3040.

          Holding that FAPE required a potential maximizing standard, the District Court ruled in favor of the student.  The U. S. Court of Appeals for the Second Circuit affirmed.  See, Rowley, 102 S.Ct. at 3040.

          The Supreme Court reversed.  Rowleysupra, 102 S.Ct at 3052.  After a review of the legislative history of the Act and the cases leading to Congressional passage of the Act, the Supreme Court held that the Congress did not intend to impose a potential-maximizing standard, but rather, intended to open the door of education to disabled students by requiring a basic floor of opportunity. Rowleysupra, 102 S.Ct at 3043-3051.

          The Supreme Court noted that the individualized Educational Program, hereafter sometimes referred to as the “IEP,” is the cornerstone of the Act’s requirement of FAPE.Rowleysupra, 102 S.Ct at 3038, 3049.  The Court also notes with approval the many procedural safeguards imposed upon the schools by the Act.  Rowleysupra, 102 S.Ct at 3050-3051.  The Court also cautioned the lower courts  that they are not to substitute their “…own notions of sound educational policy for those of the school authorities which they review.” Rowleysupra, 102 S.Ct at 3051.

          The Supreme Court held that instead of requiring a potential maximizing standard, FAPE is satisfied where the education is sufficient to confer some educational benefit to the student with a disability.  Rowleysupra, 102 S.Ct at 3048.  Accordingly, the Court concludes that the IDEA requires “…access to specialized instruction and related services which are individually designed to provide educational benefit to the …” child with a disability. Rowleysupra, 102 S.Ct at 3048.

          The Supreme Court instructed lower courts that the inquiry in cases alleging denial of FAPE should be twofold:  First, have the schools “…complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits.”  Rowleysupra, 102 S.Ct. at 3051.

            You can read the Rowley decision here.

Monday, March 30, 2015

Weekly Question!

We are about to run a new series which is an updated version of our previous series: An Introduction To Special Education Law. Are there any topics that we have not covered in the past that you would like to see in this Special Ed Law 101 Series?

Saturday, March 28, 2015

Good News: Problem Solved; Our LinkedIn Special Education Law Group Now Has More Than 20,000 members #SpEdLaw

Three cheers for LinkedIn.  Their customer service department likes the work that our LinkedIn Special Education Law Group is doing ( and the fact that we comply with their policies), and they have raised the maximum size limit for our group from 20,000 to 100,000!  Congratulations everybody!

As we noted yesterday, we had reached the maximum size limit for groups.  That problem has been solved!

If you haven't checked out the group yet, here is a link.  There are some active discussions; sometimes spirited discussions.  But participants usually behave quite well.  It is a good place to have special ed law conversations.

Thanks to all members.

Friday, March 27, 2015

Ruh Roh: Our LinkedIn Group Has Reached Maximum Size, 20,000 members! #OversizedSpecialEdLawGroup

OK so the good news is that our LinkedIn Special Education Law Group now has 20,000 members. That is not a typo; we have 20 thousand members. If you haven't checked it out, you should.  The discussions are excellent and lots of people are clearly enjoying it.  Here is a link to the group. The link is a permanent part of the resources listed on the lefthand side of the blog.

We started the group shortly after starting this blog, and it has grown with us.  NOTE: we also started a Facebook group, but when Facebook got all corporate in our faces and archived the group, we lost a bunch of members.  The group still exists, but it is much smaller.

Now for the bad news.  I got a message that our group has reached maximum size. I have sent a message to the LinkedIn customer service folks, but I'm wondering if any reader has any way around this problem?  If you have suggestions, please let me know.

Wednesday, March 25, 2015

Back to the Future; Special Ed Law 101 - The Series Part I #specialedlaw101

Special education law is complicated stuff.  I have said here before that Special Ed Law is a lot closer to metaphysics than it is to contract law.   If you hate ambiguity, Special Ed Law may not be your thing. (I still believe that there is a Jeff Foxworthy joke in there somewhere.)

Any way, inspired by a presentation that I gave at a national conference of the Council for Exceptional Children, we periodically run a series of posts on the nuts and bolts of special education law. The series is a good refresher for veterans and a solid introduction for folks new to special education law.  So are you ready for special ed law 101?

So please fasten your seat belts and ensure that your tray tables are in their upright positions... we are cleared for takeoff...  Get ready for a trip back to the basics ... starting now.

This is first of a multi-part series of posts on the basic nuts and bolts of special ed law. We will review the statute and regs, as well as the supreme court decisions and a few of the most important opinions of the circuit courts of appeal.  This is just an overview.  There is a LOT more stuff!

So we hope that you enjoy the introduction, but if you get into a problem, consult a lawyer, preferably one experienced in this complex area.  Here we go

A.   Sources of Special Education Law

The primary source of special education law is the federalIndividuals with Disabilities Education Act, 20 U.S.C. Section 1400, et. seq., hereafter sometimes referred to as “IDEA.”  (NOTE:  many people refer to the sections of the act as beginning with section 600.  Thus “Section 615” would be found at 20 U.S.C. Section 1415, etc.)  The regulations promulgated by the United States Department of Education to implement the IDEA are found at 34 C.F.R. Part 300.  Many state have adopted their own special education regulations.  

Court decisions that interpret the IDEA issued by the courts of your state, by the United States Supreme Court, and by the federal Circuit Court of Appeals and the federal District Courts that cover your state or District are binding.  Other court opinions and hearing officer decisions issued under the Act may be cited and used if you find their reasoning to be persuasive, but they are not binding precedent.  Similarly, opinions issued by the federal Department of Education interpreting the Act provide helpful guidance, but they are also not binding precedent.

Although the IDEA and the federal regulations, and corresponding state regulations and policies, and the relevant decisions interpreting them are by far the most important sources of special education law, other statutes do sometimes become involved.  The Rehabilitation Act of 1973, 29 U.S.C.  Section 794, et. seq., commonly referred to as “Section 504,” prohibits discrimination on the basis of disability in certain federally funded programs, including education.  The federal regulations that implement the statute are found at 34 C.F.R. Part 104.

Another statute that will impact upon special education law is the No Child Left Behind Act, or ESEA, 20 U.S.C. Section 6301, et. seq., hereafter sometimes referred to as “NCLB.”  The regulations implementing NCLB are located at 34 C.F.R. Part 200.

Finally, another law that pertains to educational records is the Family Educational Rights and Privacy Act, 20 U.S.C. Section 1232g, et. seq., hereafter sometimes referred to as “FERPA.”  The regulations implementing FERPA are found at 34 C.F.R. Part 99.

Monday, March 23, 2015

Weekly Question!

We are about to run a new series which is an updated version of our previous series: An Introduction To Special Education Law. Are there any topics that we have not covered in the past that you would like to see in this Special Ed Law 101 Series?

Wednesday, March 18, 2015

Breaking: Children With Visual or Hearing Disabilities Can Now Access TV Programming #visual hearing disability

The U S Department of Education yesterday announced that thousands of children with visual or hearing disabilities may now access free on-demand children's television programming.

Dozens of children’s and family TV episodes may now be viewed online featuring closed captioning and descriptions through our Accessible Television Portal project. Among the shows: “Ocean Mysteries,” “Magic School Bus,” “Bill Nye the Science Guy,” “Daniel Tiger’s Neighborhood,” “Expedition Wild” and “Peg + Cat.”
The portal is part of the Department-funded Described and Captioned Media Program (DCMP). It includes video-on-demand content provided at no cost by the major television networks, as well as producers and distributors like PBS Kids, Sesame Workshop, Cartoon Network, Sprout (NBC), the Fred Rogers Company, Scholastic Media, Litton Entertainment, Out of the Blue and Fremantle Television.
“In the digital age, the capability exists to deliver a higher level of personalized programming for students who were underserved in the past,” said Secretary Arne Duncan. “This type of large-scale collaboration between the Education Department and so many major television networks, producers and program distributors will allow greater access to television programming for all students.” 
To view the content, teachers and school personnel, parents, and other professionals working with qualified students can visit www.dcmp.org  and apply for access to the portal. 
Once approved, accessible content can be used with, and by, students in the classroom and at home via the Web, mobile phones and tablets, mobile apps, and set-top boxes. The portal itself is fully accessible to those with sensory impairments. Children with disabilities can locate any featured program without difficulty.

You can read the DOE blog post about this announcement here.

Tuesday, March 17, 2015

Happy St Patrick's Day #irish

Happy St. Patrick's Day!

To help us celebrate here are some fun facts from our friends at the U S Census Bureau:

Congress proclaimed March as Irish-American Heritage Month in 1991, and the President issues a proclamation commemorating the occasion each year.
Originally, a religious holiday to honor St. Patrick, who introduced Christianity to Ireland in the fifth century, St. Patrick’s Day has evolved into a celebration for all things Irish. The world’s first St. Patrick’s Day parade occurred on MMarc1762, in New York City, featuring Irish soldiers serving in the English military. This parade became an annual event, with President Truman attending in 1948.

Population Distribution

33.3 million
Number of U.S. residents who claimed Irish ancestry in 2013. This number was more than seven times the population of Ireland itself (4.6 million). Irish was the nation’s second-most frequently reported European ancestry, trailing German. Sources: 2013 American Community Survey


Ireland Central Statistics Office

Percentage of the population in Massachusetts that claimed Irish ancestry, which is among the highest in the nation. California has 2.5 million people claiming Irish ancestry, which is the highest of any state. Source: 2013 American Community Survey  http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/13_1YR/DP02/0100000US.04000

Number of foreign-born U.S. residents with Irish ancestry in 2013. Of these, 150,256 had become naturalized citizens. Source: 2013 American Community Survey  http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/13_1YR/S0201/0100000US/popgroup~541

39.7 years old
Median age of those who claimed Irish ancestry, which is higher than U.S. residents as a whole at 37.5 years. Source: 2013 American Community Survey


Irish-Americans Today

Percentage of people of Irish ancestry, 25 or older, who had a bachelor’s degree or higher. In addition, 93.6 percent of Irish-Americans in this age group had at least a high school diploma. For the nation as a whole, the corresponding rates were 29.6 percent and 86.6 percent, respectively. Source: 2013 American Community Survey  http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/13_1YR/S0201/0100000US/popgroup~001|541

Median income for households headed by an Irish-American, higher than the median household income of $52,250 for all households. In addition, 7.3 percent of family households of Irish ancestry were in poverty, lower than the rate of 11.6 percent for all Americans. Source: 2013 American Community Survey http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/13_1YR/S0201/0100000US/popgroup~001|541

Percentage of employed civilian Irish-Americans 16 or older who worked in management, business, science and arts occupations. Additionally, 25.5 percent worked in sales and office occupations; 15.6 percent in service occupations; 9.4 percent in production, transportation and material moving occupations; and 7.6 percent in natural resources, construction and maintenance occupations.Source: 2013 American Community Survey  http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/13_1YR/S0201/0100000US/popgroup~001|541

Percentage of householders of Irish ancestry who owned the home in which they live, with the remainder renting. For the nation as a whole, the homeownership rate was 63.5 percent. Source: 2013 American Community Survey http://factfinder2.census.gov/bkmk/table/1.0/en/ACS/13_1YR/S0201/0100000US/popgroup~001|541

Sports Celebration of Irish Heritage

Population of South Bend, Ind., home to the Fighting Irish of the University of Notre Dame. About 11.0 percent of South Bend’s population claims Irish ancestry. Source: 2013 American Community Surveyhttp://factfinder2.census.gov/bkmk/table/1.0/en/ACS/13_1YR/DP02/1600000US1871000

Percentage of the Boston metropolitan area population that claims Irish ancestry, one of the highest percentages for the top 50 metro areas by population. Boston is home to the Celtics of the National Basketball Association. Source: 2013 American Community Survey http://factfinder.census.gov/bkmk/table/1.0/en/ACS/13_1YR/DP02/0100000US.31000.005

79,446 and 16,771
Population of New Rochelle, N.Y., and Moraga, Calif., home to the Gaels of Iona University and St. Mary’s College of California, respectively. About 9.5 percent of the New Rochelle population and 13.3 percent of the Moraga population claim Irish ancestry. Sources: 2013 Population Estimates and 2013 American Community Survey http://www.census.gov/popest/data/cities/totals/2013/SUB-EST2013.html

Places to Spend the Day

Number of places (incorporated places and census designated places) or county subdivisions in the United States that share the name of Ireland’s capital, Dublin. The most populous of the places named Dublin in 2013 was Dublin, Calif., at 52,105. Source: 2013 Population Estimateshttp://factfinder2.census.gov/bkmk/table/1.0/en/PEP/2013/PEPANNRES/0400000US06.16200

            If you’re still not into the spirit of St. Paddy’s Day, then you might consider paying a visit to Emerald Isle, N.C., with 3,714 residents. Source: 2013 Population Estimates http://factfinder2.census.gov/bkmk/table/1.0/en/PEP/2013/PEPANNRES/0400000US37.16200

            Other appropriate places in which to spend the day: the township of Irishtown, Ill., several places or county subdivisions named Clover (in South Carolina, Illinois, Minnesota, Pennsylvania, Virginia, West Virginia, and Wisconsin) or one of the six places that are named Shamrock (in Oklahoma, Texas (2), Minnesota, Missouri and Nebraska). Source: http://www.census.gov/geo/maps-data/data/gazetteer.html

Here is a census bureau map of the US with percentages of Irish ancestry.

Monday, March 16, 2015

New Weekly Question!

We are about to run a new series which is an updated version of our previous series: An Introduction To Special Education Law. Are there any topics that we have not covered in the past that you would like to see in this Special Ed Law 101 Series?

Saturday, March 14, 2015

Coming Next Week: New Series - Special Ed Law 101 #SpecialEdLaw101

Beginning next week we will provide an updated version of our former series introducing the basic concepts of special education law. We will look at all the important stuff: an analysis of all supreme court decisions and the seminal circuit court opinions, as well as IDEA (the statute) and the federal regs.

The series should serve as a solid introduction for newbies and a good refresher course for seasoned veterans.

If there is anything that you want to see included that we have not covered in previous versions of this series, please let us know.

Monday, March 9, 2015

Weekly Question!

As we wind down our series on bullying of kids with disabilities, have you found the series to be helpful? What other series would you like to see in future posts?

Thursday, March 5, 2015

Breaking: Police and People With Disabilities- New Task Force Report

More and more these days, the special education caselaw is full of examples where police are called into schools to deal with kids with disabilities.  This seems to be a trend.

A report this week by the President's Task Force on Twenty First Century Policing addresses several issues including how police should deal with persons with disabilities. I believe that racial issues prompted this report, but it is good to see that interaction with persons with disabilities is on the radar.

You can review the report here. A story about the report in Disability Scoop is available here. Please check it out.

Have any of you had experience with police and kids with disabilities?  My impression is that most police are sensitive to the needs of persons with disabilities when interacting.  The counter-examples unfortunately tend to show up in court decisions.  Readers what do you think?

Wednesday, March 4, 2015

My Powers Are Beyond Your Comprehension: My New Favorite Case #power

OK so I have a new favorite case.  As many of you know, I train special ed hearing officers (and mediators, complaint investigators and other state staff) around the country. In preparation for that work as well as my other gigs (including speaking on special ed law and serving as a hearing officer, mediator and investigator), I read a lot of hearing officer and court decisions. A new favorite has emerged.

As background, I tell hearing officers that they have broad authority to run and control a hearing. Some of my fellow Pennsylvania hearing officers quote what they call the "Gerl rule" which is MY POWERS ARE BEYOND YOUR COMPREHENSION! This authority stems from the inherent authority of the hearing officer to do all that is necessary to conduct a quasi-judicial hearing and exists regardless of whether agency regulations explicitly outline these powers. See this old post. And see this old post.

So along comes a case last year: Edward S & Virginia S ex rel TS v West Noble Sch Corporation 63 IDELR 34 (ND Ind. 3/31/14) After noting that dismissal with prejudice is an especially harsh sanction that should be used only as a last resort, the U. S. District Court for the Northern District of Indiana upheld an IDEA hearing officer's dismissal with prejudice of a due process hearing complaint. The Court held that, unlike a hearing, a party has no right to record a prehearing conference. Despite this, the grandparents' attorney disregarded the hearing officers directive that a prehearing conference not be recorded on four separate occasions.

Although the court was "troubled" by the disrespect showed by the hearing officer toward the grandparents' attorney at first, the hearing officer's edginess subsided after about fifteen minutes. Because the grandparents' attorney acted in direct contravention of the hearing officers orders four times, however, the Court ruled that the hearing officer did not abuse his discretion in dismissing the complaint with prejudice. The Court noted that although IDEA and relevant state law gives a party a right to a due process hearing, they can forfeit that right.

In footnote # 1 (always read those all-important footnotes) the Court states that the dismissal in this case was akin to a sanction pursuant to the inherent power of a court. (Significantly, this means that an IDEA hearing officer also has inherent authority.)

You can read the court's decision (unfortunately minus the all important footnotes) here.

I think we can agree that this hearing officer may need to work on his demeanor some and that perhaps a lesser sanction may have been appropriate on these facts, but this decision is an important one for hearing officers and their authority to control the hearing.

What do you think?

Monday, March 2, 2015

Weekly Question!

As we wind down our series on bullying of kids with disabilities, have you found the series to be helpful? What other series would you like to see in future posts?