Weekly Question!

As we run our: an Introduction To Special Education Law, what do you think are the easiest ways for a school district or its staff to get into special ed legal trouble?

Special Education Law 101 - Part XI #Compensatory Education

 

This is another in our continuing series on the basics of special education law.    If the parents (or adult student) win a due process hearing, the two most common types of relief are compensatory education and reimbursement for a unilateral placement.  Today we will take a hard look at the former remedy.

Compensatory Education

Reid ex rel Reid v. District of Columbia 401 F.3d 516, 43 IDELR 32 (D.C. Cir. 3/25/05).  The D.C Circuit developed a qualitative standard for awards of compensatory education in order to place disabled students in the same position they would have occupied but for the school district’s violation of IDEA.  The court rejected the hearing officer’s calculation awarding one hour of compensatory education for each day of denial of FAPE.  The court also rejected the parents’ request of one hour of compensatory education for each hour of denial of FAPE.  Instead, the court adopted a more flexible approach based upon the needs of the child who has been denied FAPE.  For example some students might require only short intensive compensatory programs targeting specific deficiencies.    Other students may require more extended programs, perhaps requiring even more hours than the number of hours of FAPE denied.  Accordingly, the court remanded this matter for the submission of evidence as to the student’s deficiencies resulting from the denial of FAPE. 

The other standard method for calculating compensatory education is a more quantitative method providing an approximation of the lost number of days of FAPE and awarding tutoring (or other compensatory services) based upon that calculation minus the time it reasonably should have taken the school district to learn of the denial of FAPE. See the  Third Circuiot decision in MC v. Central Regional Sch Dist 81 F.3d 389, 21 IDELR 389  (3d Cir. April 17, 1997).

Another  important issue involves delegation.  Bd of Educ of Fayette County, KY v LM ex rel TD 478 F.3d 307, 47 IDELR 122 (6th Cir. 3/2/7) It is inappropriate for HO to delegate the type or amount of compensatory education to the IEP team.

 

Many fairly recent compensatory education awards have been creative:  Draper v. Atlanta Indep Sch System 518 F.3d 1275, 49 IDELR 211 (11th Cir. 3/6/8)  The Eleventh Circuit specifically approved of aprivate school placement as a form of compensatory education where the school district continued to use an ineffective reading program for three years despite the student’s failure to make progress. Park v. Anaheim Union High Sch. Dist. 106 LRP 23543 (9th Cir. 4/17/6).  The Ninth Circuit affirmed an award of compensatory education by a hearing officer in the form of requiring training of two of the teachers who implemented the student’s IEP.  The hearing officer phrased the award as compensatory education for the student in the form of training for his teachers in order to meet the student’s needs. P by Mr & Mrs P v. Newington Bd of Educ 546 F.3d 111, 51 IDELR 2 (2d Cir 10/9/8) The Second Circuit affirmed an award of compensatory ed by a HO that required the school district to hire an inclusion expert for a year and to permit him to participate in the development of an FBA for the student; District of Columbia Public Schs  111 LRP 71480 (SEA DC 5/22/11) Where violation was failure to update IEP and resulting behavioral issues HO awarded as comp ed school district funding of summer camp suited to address emotional issues; District of Columbia Public Schs  111 LRP 75901 (SEA DC 8/21/11) Where psychologist testified that student needed behavior therapy, HO awarded behavioral support services as comp ed;  District of Columbia Public Schs  111 LRP 25934 (SEA DC 3/18/11) HO awarded computer software and a speech/language evaluation in addition to tutoring as comp ed;   Horizon Instructional System Charter Schs 58 IDELR 145 (SEA Calif 1/3/12) After finding a transition violation, HO ordered a vocational assessment to be followed by an IEP using the results, a mobility guide and a job coach; Montgomery County Intermediate Unit  112 LRP 39052 (SEA Penna 7/3/12) HO awarded compensatory education plus a personal care assistant and an augmentative communication device; Pasadena Independent Sch Dist 58 IDELR 210 (SEA TX 2/6/12) HO required as comp ed and as equitable relief that the district provide staff training to all SpEd teaching staff on teaching human sexuality appropriately to students with disabilities; IT by Renee & Floyd T v Dept of Educ, State of Hawaii  113 LRP 51351 (D Haw 12/17/13) Court held that compensatory education or relief can take the form of reimbursement for private tuition. The purpose of compensatory education is to put the student back in the position that he would have occupied had the district not violated IDEA.

New Weekly Question!

As we run our: an Introduction To Special Education Law, what do you think are the easiest ways for a school district or its staff to get into special ed legal trouble?

Special Education Law 101 - Part X #UnilateralPlacement

This is another installment in our continuing series on the basics of special education law.  Today we enter the mysterious world of unilateral placements.  If the parents (or adult student) win a due process hearing, the two most common types of relief are compensatory education and reimbursement for a unilateral placement.  Today we will take a hard look at the latter remedy.

Unilateral Placements

In the case of Burlington Sch. Comm. v. Dept. of Educ., et. al. 471 U.S. 359, 105 S.Ct. 1996, 556 IDELR 389 (1985), the Supreme Court was faced with the issue of whether theIDEA permitted courts to award reimbursement to parents when the IEP developed by the schools is not appropriate and the parent removes the student from public school and places him in a private school that does provide FAPE.  Noting that the statutory provisions of the IDEA confer broad equitable powers upon the courts to fashion an appropriate remedy, and the fact that judicial review of IDEA cases often takes years, the Supreme Court held that the IDEA does empower courts to award such reimbursement.  Burlington, supra.

In Florence County Sch. Dist. v. Shannon Carter, et. al. 510 U.S. 7, 114 S.Ct. 361, 20 IDELR 532 (1993), the Supreme Court was faced with a unilateral placement case in which the public schools provided an inappropriate education leading to a unilateral placement at a private school that provided an appropriate education for the student but that did not meet some of the requirements of the SEA (specifically state approval of the private school.)  The Supreme Court held that courts may award reimbursement in these cases. Carter, supra.

In Forrest Grove Sch Dist v. TA 129 S.Ct. 2484, 52 IDELR 151 (U.S.  6/22/9)   The Supreme Court held that it is not a prerequisite to reimbursement under IDEA that a child have been previously enrolled in and receive services from a public school. The Court noted that under its previous rulings in Burlington and Carter, courts have broad authority to grant appropriate relief when there has been a violation of IDEA.  The Court held that the 1997 amendments do not limit that authority. The ambiguous language of the provision at issue was not sufficient to effectuate a repeal by implication of Burlington and Carter.

     The IDEA now provides that a hearing officer or court may order an LEA to reimburse parents for a unilateral placement if the hearing officer or court finds that the LEA had not made FAPE available to the student in a timely manner prior to the enrollment in the private school.  IDEA, § 612 (a)(10)(C)(ii).  Such reimbursement may be reduced or denied if the parents failed at the last IEP meeting to reject the proposed placement and state their intent to enroll the child in private school at public expense, IDEA, §  612 (a)(10)(C)(iii)(I)(aa); or if they fail to give written notice to the LEA of their  rejection of the proposed placement and state their intent to enroll the child in private school at public expense 10 business days prior to removal, IDEA, §  612 (a)(10)(C)(iii)(I)(bb); or if the parents fail to make the student available for an evaluation, IDEA, §  612 (a)(10)(C)(iii)(II); or upon a judicial finding of unreasonableness with respect to the actions taken by the parents, IDEA, §  612 (a)(10)(C)(iii)(III).  Reimbursement shall not be reduced or denied for failure to give notice if the school prevented the parent from providing such notice, IDEA, §  612 (a)(10)(C)(iv)(I)(aa); or if the parents were not provided with written procedural safeguards stating this notice requirement, IDEA, §  612 (a)(10)(C)(iv)(I)(bb); or if compliance with the notice clause would likely result in physical harm to the child, IDEA, §  612 (a)(10)(C)(iv)(I)(cc).  Within the discretion of the hearing officer or court, reimbursement may or may not be reduced or denied if the parents are illiterate or cannot write in English, IDEA, §  612 (a)(10)(C)(iv)(II)(aa); or if compliance with this clause would likely result in serious emotional harm to the child, IDEA, §  612 (a)(10)(C)(iv)(II)(bb).  See also, 34 C.F.R. § 300.148. 

The general rule, then, is that reimbursement for a unilateral placement may be awarded where a parent/student proves the following:1) the school district denied FAPE to the student or otherwise violated IDEA; 2) the parent's private school placement for the student is appropriate; and 3) equitable factors do not preclude the relief.  Forrest Grove Sch Dist v. TA 557 U.S. 230, 129 S.Ct. 2484, 52 IDELR 151 (U.S.  6/22/9)

Some interesting recent circuit court decisions have involved the second and third prongs of the analysis. For example in Sumter County Sch Dist 17 v. Heffernan ex rel TH 672 F.3d 478, 56 IDELR 186 (4th Cir 4/27/11)  the Fourth Circuit noted that LRE concerns might not be weighted as heavily in the second prong of the unilateral placement reimbursement analysis; and in RL & SL ex rel OL v Miami-Dade County Sch Bd 757 F.3d 1173, 63 IDELR 182 (11^th Cir 7/2/14) the Eleventh Circuit ruled that where LEA had predetermined the child’s placement, it was  prevented from raising the third prong equities of the Burlington etc analysis in order to defeat claim for reimbursement.  

Weekly Question!

We are now running a new series which is an updated version of our previous series: An Introduction To Special Education Law. Based upon a question from a reader, what advice would you give a law student preparing for a career in special education law?

"Ghetto Awards;" and Disproportionality

We have a new winner for the Teacher Who Doesn't Get It Award. It seems that a middle school teacher in Northeast Texas issued a Ghetto Award (8th Annual!!!) to a special education student who expressed confusion in class. On how many different levels is this wrong?

Here is a photo of the Certificate; judge for yourself:

Here is a news article on the mess in the Houston Chronicle.  Here is a Huffington Post story on this debacle.

Oh and did I mention that the kid is an African American? So the double whammy rule is applicable; pretty insensitive, no?

And this also brings up the related issue of disproportionality. African American students end up in special education a lot more than Caucasian kids.  This has been a concern of the U S Department of Education. See, Request for Information (USDOE 6/14/14)   The U S Department of Education published a request for information in the Federal Register  seeking public comment on the steps it should take to address disproportionality based upon race and ethnicity in special education.  You can review the Federal Register posting here;  Dear Colleague Letter 114 LRP 42907 (OCR 10/1/14) OCR noted the widespread racial disparity in access to educational opportunity across the country and reminded school districts of their obligations under Title VI of the Civil Rights Act of 1964 which prohibits both intentional discrimination and disparate impact.

NOTE: African American kids with or without disabilities also tend to get disciplined more than Caucasian kids.  According to the Office for Civil Rights, African-American students without disabilities are more than three times as likely as their white peers without disabilities to be expelled or suspended. Although African-American students represent 15% of students in the CRDC, they make up 35% of students suspended once, 44% of those suspended more than once, and 36% of students expelled. Further, over 50% of students who were involved in school-related arrests or referred to law enforcement are Hispanic or African-American. See, Dear Colleague Letter 114 LRP 1091 (US DOE & DOJ 1/8/14)  The United States Departments of Education and Justice issued policy guidance for school districts and states to reduce unlawful discrimination in student discipline policies.  This seems to be a conscious decision by the Administration to attack the school-to-prison pipeline problem. Although the thrust of the guidance is obviously to reduce racial discrimination in school discipline, the Dear Colleague letter notes specifically that the contents of the guidance also fully apply to discipline that discriminates against children with disabilities and other protected groups.  (See footnote 4 on pages 2-3 of the Dear Colleague Letter).  You can read the DOE blog article here.  You can review the video by Secretary Duncan and the complete guidance package here. The Dear Colleague Letter is available here.

Note also that the mere fact that a significantly higher proportion of African American students are eligible for special ed is not in itself unlawful discrimination. For example, the Third Circuit recently held that a school district properly followed IDEA by individually evaluating students for special education. The fact that black students were classified as eligible for SpEd at a rate 5.7% to 6.6% higher than white students was not evidence of race discrimination.  Blunt v Lower Merion Sch Dist 767 F.3d 247, 64 IDELR 32 (3d Cir 9/12/14)

The problem of disporportionality is a serious issue in special education.  It needs to be addressed. What are your thoughts?

Special Education Law 101 - Part IX #discipline

This is the most recent post in the continuing series that is meant to be an introduction to special education law.  In today's post we will be discussing discipline of students with disabilities.  People often ask why disciplinary actions are regulated by the special education law.  The reason 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.  

 

Discipline is one area that seems to cause folks to develop stomach problems (sorta like the rule against perpetuities in law school), but it isn't really as hard as we seem to make it.  Let me know if this explanation helps.

                                                   Discipline Issues

The IDEA imposes special rules that govern the discipline of students with a disability. The basic rule is that a special education student may not have her placement changed (i.e., suspensions of more than 10 days or expulsion) for conduct that is a manifestation of her disability.  IDEA, § 615(k)(1)(F).  If the behavior is not a manifestation of the student’s disability, the student may be disciplined in the same manner and for the same duration as children without disabilities.  IDEA, § 615(k)(1)(C).

One exception is that, regardless of manifestation, the schools may remove a student to an interim alternative educational setting,  sometimes referred to as “IAES,” for up to 45 school days if (1) the student possesses a weapon at school; or (2) the student possesses or uses or sells illegal drugs at school; or (3) the student has inflicted “serious bodily injury” upon another person while at school.  IDEA, § 615(k)(1)(G).  The schools may also ask a hearing officer to change the placement of a student with a disability to an IAES if remaining in the current placement is substantially likely to result in injury to the student or others.  IDEA, § 615(k)(3)(A) and (B).

              Another cardinal rule in the discipline area is that regardless of whether the conduct of a student was a manifestation of the student’s disability, where a student with a disability is removed from his current placement, the schools must continue to provide educational services to ensure FAPE for the student and to enable the student to continue to participate in the general curriculum although in another setting.  IDEA, § 615(k)(1)(D). See generally regarding discipline issues, 34 C.F.R. §§ 300.530 – 300.537. 

 

                The Supreme Court dealt with discipline issues and endorsed the stay put provision in the case of Honig v. Doe 484 U.S. 305, 108 S.Ct. 594, 559 IDELR 231 (1988). In that decision, the Supreme Court, noting the Congressional intent in preventing the exclusion of disabled students and reiterating the importance of the procedural safeguards under the IDEA, refused to read a dangerousness exception into the stay put provision. The high Court outlines the history of abuses of the discipline of kids with disabilities in that decision.

 

 In District of Columbia v. Doe ex rel Doe 611 F.3d 888, 54 IDELR 275 (DC Cir 7/6/10) DC Circuit ruled that HO did not exceed his authority where he reduced a disciplinary suspension. HO reduced a 45 day suspension to an 11 day suspension noting the trivial nature of the infraction and finding that the more lengthy suspension denied FAPE to the student.

Dear Colleague Letter 114 LRP 1091 (US DOE & DOJ 1/8/14)  The United States Departments of Education and Justice issued policy guidance for school districts and states to reduce unlawful discrimination in student discipline policies.  This seems to be a conscious decision by the Administration to attack the school-to-prison pipeline problem. Although the thrust of the guidance is obviously to reduce racial discrimination in school discipline, the Dear Colleague letter notes specifically that the contents of the guidance also fully apply to discipline that discriminates against children with disabilities and other protected groups.  (See footnote 4 on pages 2-3 of the Dear Colleague Letter).  You can read the DOE blog article here.  You can review the video by Secretary Duncan and the complete guidance package here. The Dear Colleague Letter is available here.

In an interesting development, two district courts last year granted Honig v Doe injunctions restraining a dangerous student from attending school: Wayne-Westland Community Schs v VS & YS 64 IDELR 139 (ED Mich 10/9/14);  Seashore Charter Sch v EB by GB 64 IDELR 44 (SD Tex 9/3/14)

 

Weekly Question!

We are now running a new series which is an updated version of our previous series: An Introduction To Special Education Law. Based upon a question from a reader, what advice would you give a law student preparing for a career in special education law?

Special Education Law 101 - Part VIII #transition

This is the most recent post in the continuing series on  an introduction to special education law.  The series is meant to be a solid introduction for newbies as well as a good review for seasoned special ed law vets. In today's post we will be discussing the transition services that must be given when a special education student nears graduation.

  Transition

              The IDEA defines transition services as a coordinated set of activities designed to be a results oriented process that focuses upon the individual child’s needs, strengths and preferences.  IDEA, § 602 (34).  Not later than the first IEP to be in effect when the child is 16 years old and each year thereafter, the IDEA requires that the IEP contain measurable post secondary goals; the transition services needed to achieve those goals; and beginning at one year before the child reaches the age of majority, a statement that the student has been informed regarding transfer of rights.  IDEA § 614 (d)(1)(A)(i)(VIII).  34 C.F.R. § 300.43, 300.320(b) Policy 2419, Ch. 5, § 2(F).

Note: When IDEA was reauthorized in 2004 the definition of transition was changed byCongress from an "outcome" oriented process to a "results" oriented process.  Don't these two words mean exactly the same thing?  Any thoughts? 

See, Questions and Answers on Secondary Transition 57 IDELR 231 (OSERS 9/1/11); In Park Hill Sch Dist v. Dass ex rel DD & KD 655 F.3d 762, 57 IDELR 121 (8th Cir. 9/9/11), the Eighth Circuit ruled that a transition plan is required by IDEA only for 16+ students regarding life after school, but not for students returning to public school.

Weekly Question!

We are now running a new series which is an updated version of our previous series: An Introduction To Special Education Law. Based upon a question from a reader, what advice would you give a law student preparing for a career in special education law?