Wednesday, March 30, 2016
The United States Census Bureau yesterday released Educational Attainment in the United States: 2015. The study provides a summary of the state of education in our nation. It provides a wealth of useful information. You can peruse the study here.
Concerning the educational attainment of people with disabilities, the study concluded " Adults who reported a disability had lower levels of educational attainment compared to those without a disability. Seventy-nine percent of adults who had a disability had at least a high school diploma while 90 percent of those without a disability had completed a high school education or more. In addition, the percentage of those who had completed a bachelor’s degree or more was about twice as large for those without a disability compared to those with a disability. Thirty-five percent of adults without a disability held at least a bachelor’s degree compared to 17 percent of adults with a disability."
In other words, we still have a long way to go!
The report also contains data on educational attainment by race, gender, Hispanic origin, and Nativity status. Your thoughts?
Monday, March 28, 2016
Thursday, March 24, 2016
President Obama has appointed Merrick Garland to the U S Supreme Court. Here is the White House press release and some biographical information about the nominee. Here is a PBS story on the nomination. Here is the CNN story on the nomination.
Although I am aware that the Senate still has to confirm the nominee and - amazingly - there is politics involved in the process, I began to wonder how Chief Judge Garland would vote on special education cases as a justice on the Supreme Court. There are only ten supreme court decisions concerning IDEA (and its predecessor EHA), but they are among the most important decisions in special education law. So I did a little research concerning his previous decisions. I'm not sure that I have much to show for my work, but I will share it with you.
By my count, Chief Judge Garland participated on eight D. C. Circuit panels (of three judges) issuing published decisions in which other judges issued an opinion. Here is a list: DL v Dist of Columbia 61 IDELR 2, 713 F.3d 120 (DC Cir 4/12/13); Petities by Martin v District of Columbia 55 IDELR 271, 662 F.3d 564 (DC Cir 12/2/11); Blackman v District of Columbia 46 IDELR 31, 456 F.3d 167 (DC Cir 7/12/06); Lesesne ex rel BF v District of Columbia 45 IDELR 208, 447 F.3d 828 (DC Cir 5/19/06); Whatley &; Williams ex rel Whatley v District of Columbia 45 IDELR 180, 447 F.3d 814 (DC Cir 5/5/06); Alegria ex rel Alegria v District of Columbia 42 IDELR 110, 391 F.3d 262 (DC Cir 12/3/04); Calloway v District of Columbia 32 IDELR 234, 216 F.3d 17 (DC Cir 6/30/00); Lemon by Trice v District of Columbia 22 IDELR 847, 124 F.3d 1309 (DC Cir 8/22/97). Chief Judge Garland did not write the opinion in any of these cases.
Unfortunately, I could find only one special education decision written by C.J. Garland, and it was a dissent. In Akinseye v District of Columbia 339 F.3d 970, 39 IDELR 212 (D.C. Cir. 8/15/2003) he dissented from the majority position that there was no subject matter jurisdiction and instead would have reached the same result as the majority by dismissing because the matter was not raised by the parties' briefs. This is a pretty technical procedural issue rather than a merits type decision, and in any event it is only a dissent.
Here is the entire dissenting opinion in blue type:
GARLAND, Circuit Judge, dissenting: The district court denied the plaintiffs’ claim to interest for late payment of attorney’s fees on the ground that the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., gave them no right to such fees in the first place. That issue — whether the plaintiffs had an underlying right to fees — was the only issue briefed to this court. My colleagues have instead presented a case for the proposition that, even if the plaintiffs were entitled to attorney’s fees, they do not have a claim for interest under the IDEA. But there is also a case to be made for the opposite proposition, that the IDEA itself provides a federal cause of action for such interest as ‘‘part of the costs’’ of the litigation, 20 U.S.C. § 1415(i)(3)(B). Cf. Missouri v. Jenkins, 491 U.S. 274, 284 (1989) (holding that ‘‘[a]n adjustment for delay in payment is TTT an appropriate factor in the determination of what constitutes a reasonable attorney’s fee under’’ 42 U.S.C. § 1988); Copeland v. Marshall, 641 F.2d 880, 892–93 (D.C. Cir. 1980) (en banc) (holding that ‘‘in Title VII and similar fee-setting cases,’’ a court may grant an ‘‘adjustment to reflect the delay in receipt of payment’’ because such delay ‘‘deprives the eventual recipient of the value of the use of the money in the meantime’’). Just how strong the plaintiffs’ claim for interest might be is hard to assess, since neither side has submitted briefs on the question. ‘‘Dismissal for lack of subject-matter jurisdiction,’’ however, ‘‘is proper only when the claim is so insubstantial, implausible, foreclosed by prior decisions TTT, or otherwise completely devoid of merit as not to involve a federal controversy.’’ Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (internal quotation marks omitted); see Bell v. Hood, 327 U.S. 678, 682–83 (1946). Whether or not the plaintiffs’ claim would ultimately prevail, it certainly does not fall into any of those categories. Because the question of the validity of the plaintiffs’ claim to interest therefore goes to the merits of the dispute and not to our subject-matter jurisdiction, I would follow our usual practice and decline to dispose of this appeal on a ground ‘‘not raised in the parties’ briefs.’’ Time Warner Entm’t Co. v. 2 FCC, 93 F.3d 957, 964 (D.C. Cir. 1996); see Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983). Accordingly, I respectfully dissent.
You can read the entire decision here.
I have not reached any conclusion from this research concerning how Chief Judge Garland might vote as a Supreme Court Justice. What do you think?
Wednesday, March 23, 2016
As the weekly question has hinted, this blog is interested in the current hot button topic of incarcerated students and special education. This is an area that has seen an explosion of cases in the last year or so. It is coming up a lot these days.
So what rights do students with disabilities have if they commit a crime or if they are accused of a crime? What is the relationship between an arrest or a trip to juvenile hall and a school district's child find obligation? Which public agency is responsible for providing FAPE? What about the school to prison pipeline?
Finally that pesky weekly question can a student who is convicted of a crime be too bad to be entitled to FAPE? Believe it or not I even have a case about that topic.
As always, we are interested in what you think. Have you heard of cases on this topic in your area? What are your thoughts? What comments would you share?
More on this series is coming soon.
Monday, March 21, 2016
Saturday, March 19, 2016
One of our goals in creating this blog was to provide both discussion of special education law topics from an impartial perspective and to provide resources where interested persons can find more information.
The impartial perspective is very important. I have never represented or advised parents or school personnel on a special ed matter. I am a hearing officer, mediator and complaint investigator for a number of states. I also advise states and train their personnel. I frequently present at conferences on special education law from an impartial perspective. That is why when parents or school personnel contact me, I cannot help them. They generally understand. The disclaimer on the blog explains this point in more detail.
Our breaking news involves another milestone for one of the resources that we created: the Special Education Law Group that we started through this blog over on LinkedIn. The Special Education Law Group now has over 25,000 members. (The number is not a typo!) You should go to the group's site and take a look. There are always good discussions- sometimes even heated disagreements. If you lose this post, there is always a link to our LinkedIn group on the lefthand side of the blog. It is a part of our effort to use social media to spread good impartial information about special education law. We appreciate your support.
We also have a Facebook group. At some point the Facebook overlords went all corporate in our face and "archived" our group because we were not constantly issuing nonsensical posts about what we had eaten for breakfast, etc. The group still exists, but it is cumbersome. We also started a Ning group, but they have since disappeared from the internet. (Technology is great except when it isn't!)
We also offer a lot of resources for parents, teachers (both regular ed and special ed), principals, school psychologists, hearing officers, mediators, complaint investigators, monitors, special ed directors, academics, advocates, SEA personnel, LEA personnel, paraprofessionals, lawyers (both parent and school district) as well as other special ed law junkies of all types.
On the left-hand side of the blog, you can sign up for a free subscription to our blog. You can choose between receiving posts by email or in a reader by RSS feed. You can also get a widget to insert this blog directly into your own website or blog. Subscriptions are important because numbers have meaning in the blogosphere. Please sign up for a free subscription.
Also on the left hand side are a series of embedded YouTube videos of interviews of me on dispute resolution topics by CADRE. (Many other videos and resources pertaining to special ed dispute resolution are available on the CADRE website - there is a link under resources.)
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There are many links to websites and other important blogs on the lefthand side of the blog. Also the search bar is just for this blog. So if you are interested in one topic, say bullying, just type it into the search bar and you can find all of our posts on that topic.
There are many more valuable resources on the blog. Please explore it and take advantage of these other sites. Also, we are always looking to improve. If you know of other impartial resources, please suggest them.
In the meantime, we appreciate your support. Please keep reading.
Thursday, March 17, 2016
A study released yesterday by the Civil Rights Project reveals that charter schools are suspending blacks students and children with disabilities at a disproportionate rate. As many of our readers are aware, IDEA (including its discipline provisions) fully applies to all public charter schools.
The study finds that lower suspending charter schools are more numerous than high suspending charter schools. Some of the conclusions of the report, however, are quite alarming. For example of interest to our readers, the study finds that of more than 5,250 charter schools,
- 1,093 charter schools suspended students with disabilities at a rate that was 10 or more percentage points higher than for students without disabilities.
- Perhaps the most alarming finding is that 235 charter schools suspended more than 50% of their enrolled students with disabilities.
If you have an interest in charter schools and children with disabilities, you should review this study. You can read the 34 page study here. A summary is available here.
Monday, March 14, 2016
Wednesday, March 9, 2016
The blog of the U S Department of Education has reposted an article concerning the use of Restorative Justice Principles and Stop Bullying concepts in order to prevent bullying as well as to deal with incidents of bullying.
To quote the post:
What are Restorative Justice Practices?
What is Bullying Prevention?
You can read the article here.
Monday, March 7, 2016
Sunday, March 6, 2016
Our friends at CADRE are hiring a special education dispute resolution specialist. They asked if we could help spread the word, and because we love CADRE, we are happy to do so.
If you have the following skills and abilities, you should consider applying by the March 31st deadline:
Required Skills, Knowledge, Abilities:
Knowledge of dispute resolution (DR) practices, especially collaborative approaches
Knowledge of special education and the needs of students with disabilities and their families
Strong writing skills and experience authoring and editing publications and/or resource materials
Experience with training and/or presenting for small and large groups in communication, mediation, negotiation, facilitation, and/or collaborative problem-solving skills
A strong work ethic with excellent communication, collaboration, and teamwork skills
Some travel throughout the country
Strong computer skills and comfort operating in a Windows environment
Desired Skills, Knowledge, Abilities:
Understanding of and experience with culturally appropriate dispute resolution practices
Understanding of evaluation activities including logic models, performance measures, data collection, data analysis and reporting, and use of evaluation for systems improvement
Experience with planning small and large meetings, including national or state-level conferences
Familiarity with using content management systems, the use of online platforms for knowledge transfer and/or other emerging technologies
Experience working with a wide variety of stakeholders including educators and parent leaders
Familiarity with virtual meeting/webinar platforms
You can read the whole job announcement including instructions on how to apply here.