Thursday, April 27, 2017

How One Circuit Court Applied Fry #exhaustion #scotus #seclusion #restraints

One Circuit has applied the new rule regarding exhaustion of administrative remedies for special education cases announced by the Supreme Court in Fry v Napoleon Community Schs 69 IDELR 116, 137 S.Ct. 742, 580 U.S. _____ (2/22/17)  You can read our previous posts about the Supreme Court decision here, here and here.

The Eighth Circuit in JM by McCauley v Francis Howell Sch Dist, No 16-1756, 69 IDELR 146 (8th Cir 3/7/17) affirmed the district court decision dismissing the parent's ADA/§504/§1983 claims because the parent did not first exhaust administrative remedies. The parent contended that the district violated IDEA and the other statutes and constitutional provisions by placing the student repeatedly in seclusion and by improperly using restraints. The parent later amended her complaint to remove the IDEA and state common law claims.

The Eighth Circuit stated:
"The IDEA’s exhaustion requirement also applies to claims under the Constitution, the ADA, the Rehabilitation Act, and other federal laws protecting children with disabilities to the extent those claims seek relief “that is also available under [the IDEA].” 20 U.S.C. § 1415(l); Fry v. Napoleon Cmty. School, No. 15-497, 2017 WL 685533, at *8 (U.S. Feb. 22, 2017)...After argument in this case, the Supreme Court held that “‘relief that is also available’ under the IDEA” means “relief for the denial of a FAPE, because that is the only ‘relief’ the IDEA makes ‘available.’” Fry, 2017 WL 685533, at *8. Thus, “exhaustion is not necessary when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee—what the Act calls a ‘free appropriate public education.’” Id., at *3, quoting § 1412(a)(1)(A)." 

In analyzing whether the parent's complaint concerned FAPE, the Eighth Circuit reasoned as follows: "Considering “substance, not surface,” the district court did not err in finding the complaint seeks relief for denial of a FAPE under the IDEA. Id., at *11. The second amended complaint states, “At all times mentioned above, [J.M.] was entitled to the educational services and protections available under the Individuals with Disabilities Education Act of 1975” and “at all times[J.M. was] entitled to reasonable accommodations” for his disabilities. It alleges that “[b]etween February 2014 and September 5, 2014, J.M. was placed in physical restraints for half of the time he actually spent at Defendant’s schools.” It further states that J.M. was “denied . . . because of his disability, participation in and the benefits of a public education.” These allegations show that the complaint was based on the “denial of a FAPE” under the IDEA. See id., at *13 (determining the Fry’s complaint “alleges only disability based discrimination” and “contains no allegation . . accus[ing] the school even in general terms of refusing to provide the educational instruction and services that E.F. needs”)... The complaint here is not based on disability discrimination. Except for Count IV (the MHRA claim), the complaint does not use the word “discrimination.” Rather, the complaint is based on how the use of isolation and physical restraints failed to provide proper “sufficient ‘supportive services’ to permit [J.M.] to benefit from . . . instruction,” id., at *4, and ultimately “denied [J.M.] . . . the benefits of public education.” Finally, although McCauley did not “invoke[] the IDEA’s formal procedures to handle the dispute,” “the history of the -6- proceedings,” including her initial complaint and first amended complaint contained claims under the IDEA, which is “[a] further sign that the gravamen of [the] suit is the denial of a FAPE.” See id., at *13." (emphasis added).

After concluding that no exception to the exhaustion requirement was applicable, the Eighth Circuit dismissed the claim.

You can read the entire Eighth Circuit decision here.

So what do you think of this ruling?

Monday, April 24, 2017

Weekly Question!

Who won Endrew F? What do you think? #FAPE STANDARD #IDEA #SCOTUS

Friday, April 21, 2017

Special Education Law 101 - Part I #IDEA #specialeducationlaw

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 locked and 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.

Finally, another law that pertains specifically 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, April 17, 2017

Weekly Question!

Who won Endrew F? What do you think? #FAPE STANDARD #IDEA #SCOTUS

Thursday, April 13, 2017

Endrew F and The Metaphysics of Special Education Law #metaphysics #Hegel #Paul Simon

We have gotten a robust reaction to the post a while back concerning who won Endrew F? It seems that each side (parents and school officials) still thinks that they won. Why is that?

First, we should probably take a look at special education law.  We have long said here that special education law is closer to metaphysics than it is to contract law. Contract law, and other types of old law, have "hornbook" rules that have been settled for ages. Old lawyers can apply those settled rules to a fact pattern and predict an outcome with reasonable certainty. (Although as one very senior attorney once told me, "anybody who says they know what a jury will do is lying.")

Special ed law, though, is new law new law being roughly defined as what did not come over on the boat from England. The mid 1970's stuff is brand new law. Especially when you mix in equal parts of social policy and children's rights, the result is probably less predictable than other fields of law.  Pity the fool.

Add to this mix, the never-ending cycle of special education law and things become even less clear. IDEA must be periodically reauthorized by Congress, and we are once again overdue. Then the U. S. Department of Education must promulgate regulations (if that is still a thing in this age), upon which the public may comment before they are finalized. Then, states develop regs. Soon hearing officer decisions appear followed by court opinions. Just when we become comfortable with the current state of the law, Congress reauthorizes and the process begins again. Let's just say that our "rules" are a little fuzzy around the edges.

Is the slipperiness of special education law what is behind the fact that both sides embrace a unanimous Supreme Court decision as supporting their own position? Is the concept of FAPE so elusive that it cannot be defined? Is it like what Justice Potter Stewart said about pornography- I can't define it, but "...I know it when I see it." Jacobellis v Ohio, 378 U.S. 184 at 197 (Stewart, J concurring)?   Is it like my authority as a hearing officer- where I claim that "my powers are beyond your comprehension? Could this be the explanation? Or maybe it is something else?

Maybe it really is metaphysics?  Could the reaction to Endrew F be an example of what Hegel described as "consciousness determines perception." See, G.F.W. Hegel, "The Phenomenonology of Mind." Does the side your on affect how you read the caselaw? This concept was stated somewhat more poetically by song writer Paul Simon in the lyrics to "The Boxer," "A man sees what he wants to see and disregards the rest." Is that what is going on with the interpretations of Endrew F? I'm not sure. We all have some biases that affect how we view the world. We try to control these biases, but the mind can be a difficult thing to know. Are we all seeing just what we want to see? Or not?

Could this be an example of the deep division in our society today? Culturally, politically, racially and by gender and region, we are divided. We now even work from differing "facts." Is the divide between parents and school officials, especially in the five states that have 90% of due process hearings, so strong that we see different court decisions on the same pages? This would be bad if IDEA is meant to be a collaborative process between parents and school officials. Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005). Or maybe not? We were able to unite all eight generally divided justices in one unanimous opinion so this cannot be a liberal-conservative thing, can it? 

So what explains the discrepancy? Once again, I have many questions and few answers. What do you think?

Monday, April 10, 2017

Weekly Question!

Who won Endrew F? What do you think? #FAPE STANDARD #IDEA #SCOTUS

Saturday, April 8, 2017

Back to the Future: Special Education Law 101 #SpEdLaw101 #disability

We periodically run a series here that is an introduction to special education law. Now seems like a good time to run an updated version of the series. So starting next week we will run the series.

We realize that many of you are new to the field, and we hope that this series will be very useful to you. We also realize that many of you have been in this field a long time, and we hope that this series is a useful refresher for you.

There are a lot of concepts and a bucket full of acronyms, but we find that it helps us ti keep sharp by periodically reviewing the basics. As the series progresses, please let us know what you think of it. Did we cover all important topics.  Did we explain the slippery concepts so that you could understand them?  As always, we love to hear from you.

While you are waiting for Special Education Law 101, here is Johnny Winter on Highway 101

Monday, April 3, 2017

Weekly Question!

Who won Endrew F? What do you think? #FAPE STANDARD #IDEA #SCOTUS

Wednesday, March 29, 2017

Who Won Endrew F? #FAPE #IEP #SCOTUS

I got an email from a reporter last week asking a fascinating question: did parents or school districts win in the Endrew F decision by the US Supreme Court? You can read the entire high court decision here.  Also our previous posts concerning the case are available here and here.

The reporter noted that it seems that parent groups are hailing the decision as a victory for them while at the same time school district groups are saying that they are already providing educational benefit at the level required by this decision. You can see the apparent discrepancy in this story by PBS on whether the decision is a game-changer for special ed.

So who won...well the answer is not very clear. I'm going to give you my analysis, but I'd love to hear your opinion as well. Who won and why?

For the parties to the actual case, the matter was remanded to the Tenth Circuit. This means that there will be further court proceedings before we know who prevailed in this case.

For purposes of special education law, however, the answer is a little foggy. School districts clearly won to the extent that the Supremes did not overturn Rowley. In fact the decision does not even mention the battle between some benefit vs. meaningful benefit that the earlier pleadings and argument seemed to involve. So Rowley is still good law.

On the other hand, parents clearly won to the extent that the high court required more benefit than the more than trivial or de minimis standard used by the Tenth Circuit Court of Appeals. To provide FAPE, a school district has to do better than that. The unanimous Supreme Court held that the standard is "markedly more demanding" than the standard used below.

However, school districts clearly won to the extent that the court rejected the potential maximizing standard that was previously rejected by Rowley. The Court refused to require an IEP that lead to self-sufficiency, academic success, and the ability to contribute to society. The Court rejected the argument that opportunity equal to that received by non-disabled students is necessary. In this regard, the Court mentioned that the Congress had amended IDEA a number of times since 1982 and yet never overruled Rowley so that it was good law still. Potential maximization arguments that had been rejected in Rowley continue to be rejected. So an IEP must be reasonable not ideal.

Nonetheless, parents clearly won to the extent that the court made FAPE turn on the individual circumstances of the child. The Court stated, "The goals may differ, but every child should have the chance to meet challenging objectives..." Rather than develop a bright line rule, the Court adopted an individualized fact specific approach.

OK so everybody won. Or at least you can see why they all believe that they won.

The real answer to the question will turn on how hearing officers and courts apply the new standard to actual fact patterns.  The new standard requires that an IEP must be reasonable given the unique circumstances of the child with a disability. In other words, the IEP must be reasonably calculated to enable a child to make progress in light of his own individual circumstances. Students fully integrated in general education classrooms will be expected to make passing grades and advance from grade to grade. Other special education students may not need to make grade level success to receive FAPE as the standard for them is somewhat lower. 

Hearing officers and courts will follow the Supreme Court's instruction and apply the revised standard on a case by case basis. They will engage in a fact-specific analysis involving the unique circumstances of the child with a disability. To some extent, what is "reasonable" is in the eye of the beholder.

So how will hearing officers and courts apply the newly clarified FAPE standard? Stay tuned.

Monday, March 27, 2017

Weekly Question!

We recently ran a post asking whether special education is in danger. What do you think? #IDEA #POTUS

Thursday, March 23, 2017

More On Endrew F Supreme Court Decision #FAPE #IEP #IDEA

We ran an analysis of the Supreme Court decision yesterday that clarifies the FAPE standard- the most important substantive requirement of IDEA. You can read the post here.

Some additional thoughts. First, the Court did not get to the some benefit vs. meaningful benefit debate which seemed to be the real question in the petition for certiorari. Instead, the court rephrased the FAPE standard without reversing the Rowley decision. So the new standard is that an IEP must be reasonable given the unique circumstances of the individual child with a disability.  The high court stated that although the standard does not require an ideal education or potential maximization, it clearly requires more than a trivial or de minimis educational benefit. So what do you think of this new FAPE standard?

One reader has suggested that parents may now fight harder for full inclusion because of the court's statement that generally students in the general education classroom receive FAPE where they make grade level progress and advance from grade to grade. Do you agree?

Here are some other analyses of the decision: The SCOTUS blog gave this analysis; as well as a roundup which included this blog's analysis. Here is the NPR story on the Endrew F decision.

More on this big decision next week.

Breaking News: Supreme Court Clarifies FAPE Standard #FAPE #Endrew F #IEP

OK big news. The United States Supreme Court issued a big decision on Wednesday. The high court clarified what FAPE means and how courts should apply the FAPE requirement.

The decision in Endrew F by Joseph F v. Douglas County Sch Dist RE-1, # 15-827,  580 U.S. ______ (2017) vacates and remands a previous decision by the Tenth Circuit. We have had a number of previous posts on this case which can be reviewed here, here, here, here and here.

First a few preliminary observations. First this was a unanimous decision, the second special ed unanimous decision by the Supremes this year. So we have a new slogan of this area of law: Special ed law...bringing people together!

Second this is not the case in which my outline was cited in an amicus brief to the Supreme Court by NASDSE, NSBA. AASA and other groups, you can read about my notoriety here.

Third, although this opinion clarifies how courts should apply the FAPE standard, the court's decision does not overrule the seminal Rowley decision. Instead, it clarifies Rowley and explains how courts have not been correctly interpreting the decision.

Now for some general analysis- the new gold standard for FAPE is: to meet its obligations under IDEA, a SD must offer an IEP reasonably calculated to enable a child to make progress in light of the child's circumstances. The court described this standard is a fact-intensive exercise. The question is what is reasonable not what is ideal.

The Supreme Court said today that the Rowley decision sheds light on what appropriate progress will look like in many cases- where a child is fully integrated in regular education classes, that is the IEP must be reasonably calculated to make progress and to make passing marks and advance from grade to grade. The court noted that the facts of Rowley fit this analysis. In footnote # 2, the court reiterated the language in Rowley that it was specifically declining to hold that every child advancing from grade to grade is automatically receiving FAPE. The Court also noted that the fact that the new standard is not a bright line is not in any way a suggestion that a court substitute its own notion of sound educational policy for that of professional educators.

But where a child is not fully integrated in regular education classes, the IEP need not aim for grade level advancement. Instead, the IEP must be appropriately ambitious in light of the child's circumstances. The goals may differ, but every child should have the chance to meet challenging objectives. 

The clarification, according to the Court, is a standard not a formula- but in any event it is "...markedly more demanding than the 'merely more than de minimis' test applied by the Tenth Circuit. It cannot be the case that the Act typically aims for grade level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot."

The Supreme Court decision also flatly rejected the parent's argument that FAPE requires an opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.  The court here noted that Congress has reauthorized IDEAa number of times without overruling the Rowley decision which had rejected a similar potential-maximizing FAPE standard, so it would not adopt the parent's proposed FAPE standard.

The court stated..."We will not attempt to elaborate on what “appropriate” progress will look like from case to case. It is in the nature of the Act and the standard we adopt to resist such an effort: The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created."

So what do you think about the new gold standard for FAPE? It is pretty clearly broader than the   FAPE standard of more than de minimis which many lower courts had interpreted Rowley to mean- but how much higher is the bar set for students with disabilities? We will have more on Endrew F in future posts.

You can and really should read the entire supreme court decision here.

Monday, March 20, 2017

Weekly Question!

We recently ran a post asking whether special education is in danger. What do you think? #IDEA #POTUS

Thursday, March 16, 2017

2017 CADRE Symposium #CADRE

CADRE, the National Center on Dispute Resolution in Special Education, will sponsor a Symposium this fall.  CADRE conferences are the best.  Right now, CADRE is seeking proposals to present at Restoring Focus on the Child: CADRE’s Seventh National Symposium on Dispute Resolution in Special Education. Keeping the theme in mind, CADRE is seeking proposals with a focus on child-centered dispute resolution processes emphasizing strategies which ultimately yield improved and successful outcomes for children with disabilities. Proposals must be received by email by April 21, 2017 to be considered.

 Objectives for this Symposium: Symposium participants will have the opportunity to:
  Examine collaborative dispute prevention and conflict management strategies within the expanding continuum of dispute resolution practices in special education and early intervention. 
 Learn about innovations, initiatives, and current research in the field of dispute resolution.
 Receive information, resources, and guidance related to the design, implementation, and improvement of dispute resolution processes and systems. 
 Enhance communities of practice, and connect dispute resolution coordinators, practitioners, educators, and parent leaders with each other and nationally renowned experts in the field. 
 Acquire advanced conflict management skills and knowledge critical to the effective resolution of disputes. 

You can access the rfp form at the CADRE website. Please let me know if you will be attending.

Monday, March 13, 2017

Weekly Question!

We recently ran a post asking whether special education is in danger. What do you think? #IDEA #POTUS

Monday, March 6, 2017

Weekly Question!

We recently ran a post asking whether special education is in danger. What do you think? #IDEA #POTUS

Friday, March 3, 2017

Procedural Safeguards - The Series Part XII #attorney's fees

This is the final 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 special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you thought about the series.

Attorneys’ Fees

IDEA’04 changed the section on attorneys’ fees to provide that a school district or SEA may now recover their attorneys’ fees from the parent’s attorney who files a complaint that is frivolous, unreasonable, or without foundation or who continues to litigate after the litigation clearly becomes frivolous, unreasonable, or without foundation. Section 615 (i)(3)(B)(i)(II). Also, the statute now provides that a school district or SEA may now recover their attorneys’ fees from the parent or the parent’s attorney where the claim was presented for an improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation. Section 615 (i)(3)(B)(i)(III). The standard for an award against a parent’s attorney or a parent is very high, and it is unlikely that many awards of attorneys’ fees will be made against parent’s attorneys, and especially against parents without attorneys. These new provisions, however, may cause counsel who represent parents to decline borderline cases. There could also be awards in those rare cases in which parents clearly abuse the system. OSEP declined to clarify the standard for an award of attorney’s fees against a parent stating that judicial interpretations would likely vary on a case-by-case basis and should be left to the discretion of the court. 34 CFR Section 300.517(c)(2)(ii); 71 Fed. Register No. 156 at page 46708 (August 14, 2006).

The provision permitting an award of attorneys’ fees to parents who prevail in a due process or court proceeding remained unchanged in IDEA’04. The regulations provide that attorney’s fees may not be awarded for attending IEP team meetings, except where they are convened as a result of judicial action, an administrative proceeding, or in the discretion of the state, for a mediation. 71 Fed. Register No. 156 at pages 46708-09 (August 14, 2006).

In Arlington Cent. Sch. Dist Bd. of Educ v. Murphy   548  U.S. 291,     126 S.Ct. 2455, 45 IDELR 267 (6/16/06) the Supreme Court ruled that a parent who prevails in an IDEA case is not entitled to recover expert witness fees under the Act’s provision allowing recovery of reasonable attorney’s fees and costs.

A parent's right to attorney's fees may be cut off if the parent declines a settlement offer and then receives less relief after hearing. See, TB by Brenneise v San Diego Sch Dist 795 F.3d 1067, 66 IDELR 2 (Ninth Cir 7/31/15){see corrected opinion at 115 LRP 54544 (9th Cir 11/19/15)} 

ADDITIONAL RESOURCES: OSEP has also published a Question and Answer document, Questions and Answers On Procedural Safeguards and Due Process Procedures For Parents and Children With Disabilities (OSEP Revised June 2009). The Q & A document is available at the OSEP IDEA website

Monday, February 27, 2017

Weekly Question!

We recently ran a post asking whether special education is in danger. What do you think? #IDEA #POTUS

Thursday, February 23, 2017

New Supreme Court Special Education Decision Has Flawed Reasoning #scotus #exhaustion

Yesterday, the U. S. Supreme Court ruled in Fry v Napoleon Community Schools Docket No. 15-497, 580 U. S. ____ (2017). The decision by Justice Kagan was unanimous 8-0, although two justices issued a separate concurring decision. How about that special education, bringing people together! Yay!

I cannot believe that I am about to provide an argument below that the reasoning of the court is flawed! The facts are as follows:  The student in this case has a severe form of cerebral palsy that significantly limits her motor skills and mobility. Her parents obtained a service dog, a goldendoodle named Wonder who aids the student by retrieving dropped items, helping her balance on her walker, opening and closing doors, turning on and off lights, etc. The elementary school attended by the student refused to allow her to bring the service dog, claiming that her needs were met by the human aide provided by her IEP. (I love service dogs!)(Photo below by Amy Howe of the SCOTUS blog.)

The parents removed the student from school and began homeschooling her. After an OCR complaint, the elementary school offered to allow the dog to attend with the student, but the parents felt that the principal would resent the student and make her return difficult, so the student was enrolled in a different public school in a different district. (NB because the case was originally decided on a motion to dismiss all facts plead in the parents complaint were accepted as true.)

The parents then filed suit in federal court alleging violations of the Americans with Disabilities Act and §504 of the Rehabilitation Act. The district court granted the school district's motion to dismiss holding that exhaustion of administrative remedies require the parents to first have a due process hearing before an IDEA hearing officer. The Sixth Circuit Court of Appeals agreed with the District Court. The Supremes granted certiorari.  

The Supreme Court's holding has two parts. First it ruled that exhaustion of IDEA hearing procedures is only required where parents seek relief for a denial of a free and appropriate public education. Second it held that courts must look to the gravamen of a complaint to determine whether it seeks such relief.

The reasoning of the court really troubles me. The basis for the ruling is the court's conclusion that the only relief that a hearing officer can give is relief for a denial of FAPE. Apparently the parties stipulated to this fact, but unfortunately it is wrong.  The court's standard is fine for the 85%+ of IDEA cases that involve a denial of FAPE, but how about the other cases? There are four specific areas that can give rise to a due process complaint for an IDEA violation. Denial of  FAPE is one of the four areas; the others are evaluation, identification (including child find and eligibility) and placement (including allegations of least restrictive placement violations, disciplinary changes of placement, etc). IDEA §615(b)(6)(A); 34 CFR § 300.507(a)(1). What about those cases? Does this opinion authorize parents who are alleging an LRE violation or a child find violation or an independent educational evaluation at public expense the right to go directly to court without first exhausting administrative remedies because the gravamen of their complaint is not a denial of FAPE? Will parent lawyers test this new ruling by avoiding FAPE but challenging the other three categories of IDEA violations? I cannot believe that this is the result the high court is anticipating.

The court's confusion, as well as the parties, seems to stem from the changes made to IDEA in 2004 concerning procedural violations. Specifically, the Act was amended to include a provision that procedural violations only constitute a denial of FAPE where there was something more, like an adverse effect on the student's education or a substantial impeding of the parent's participation rights. IDEA § 615(f)(3)(E). The section also includes a requirement that the decision of a hearing officer be based upon substantive grounds. The Office of Special Education Programs, specifically because of these considerations, wrote the federal regulation to clarify that only a hearing officer's decision concerning whether FAPE was provided must be on substantive grounds. 34 C.F.R. §300.513(a). In an attempt to allay fears that the provision might limit hearing officers to ruling ony on FAPE issues, OSEP in its analysis of comments to the proposed federal regulations specifically stated that despite this new provision in IDEA "...(h)earing officers continue to have the discretion to dismiss complaints and make rulings  on matters in addition to those concerning the provision of FAPE, such as the other matters mentioned in §300.507(a)(1)." 71 Fed. Register No. 156 at page 46707 (OSEP August 14, 2016). The other matters in the quoted regulation are placement, identification and evaluation. 

OK so the basis for the court's holding is wrong! I find myself in the awkward position of disagreeing with counsel for the parties, and all eight justices. I am out on a limb, but I believe that this decision causes more problems than it solves!

From there the high court provides guidance to lower courts in interpreting this test. The Supreme Court ruled that the lower courts must look at the substance or gravamen of the complaint- to prevent parties from avoiding the exhaustion requirement by artful pleading. 

The court then suggests some specific questions for lower courts to consider. This is where the concurring justices (Alito and Thomas) get off; they find the suggested questions which begin on page 15 to be not so good.  The six justice opinion offers three questions. First could a plaintiff have brought essentially the same claim for a public facility that is not a school- a theater or library for example. Second could an adult at the school- an employee or visitor for example-  have brought essentially the same grievance? If the answer to these questions is yes, exhaustion would not be required because the gravamen of the complaint would not be a FAPE case. Another line of inquiry for lower courts suggested by the high court  involves the parent's prior history with IDEA proceedings. A plaintiff that began seeking relief in a due process hearing may possibly be after relief for a denial of FAPE.

One issue that the Supreme Court specifically did not reach was whether exhaustion of IDEA remedies is required where the plaintiff complains of a denial of FAPE, but seeks a remedy that an IDEA hearing officer cannot give such as money damages. Because the parents argued that their complaint was not about a denial of FAPE, the Court specifically ducked the issue as unnecessary to the resolution of this case. See footnotes 4 and 8, and the surrounding text. So this decision does not provide guidance in that situation.

So there you have it- a special education decision by the Supreme Court. You can read the opinion and the concurring opinion here. What do you think? What are the implications for the application of IDEA exhaustion to §504, ADA and other causes of action? Do the lower courts have clear guidance?

Wednesday, February 22, 2017

Breaking: Supreme Court Rules Exhaustion Only Required Where FAPE Is In Issue #scotus #exhaustion

The United States Supreme Court Ruled today in Fry v Napoleon Community Schools that IDEA exhaustion is required only when IDEA FAPE is at issue. This decision reverses the Sixth Circuit decision that held that a parent must exhaust IDEA remedies before pursuing a §504 action for the failure of a school district to allow a student with a disability to have a service dog.

Get this the decision was 8-0, with six justices joining Justice Kagan's majority opinion and two others concurring.

You can read the entire decision and concurrence here. More to come on this unanimous special ed decision.

Tuesday, February 21, 2017

Almost Famous: My Outline Quoted to U. S. Supreme Court #scotus #gerl

Part of my job involves training hearing officers, mediators, complaint investigators, lawyers and other special education staff. I really enjoy this work. Many of those who read this blog have been involved in these trainings and have seen my outlines, the written materials that I prepare for participants in these presentations.

As you know from our previous posts here, here and here, one of two special education cases pending before the U. S. Supreme Court is Fry v Napoleon Community Schools, a case involving exhaustion of administrative remedies. 

When a case is argued before the Supreme Court, various groups request leave to file friend of the court, or amicus, briefs stating their positions. Well in the Fry case, the NSBA, NASDSE, AASA and others filed an amicus brief, and the brief cites me and one of my outlines concerning the duty and power of a hearing officer to make a complete record.  (Interesting aside- my spell check wants to change "amicus" to amigos! Too many punchlines...must stop!)

You can read the amicus brief here. Check out footnote 18 on page 24 for the reference to my outline and the complete record discussion. 

I am once again almost famous! Can the big time be far away?

Monday, February 20, 2017

Weekly Question!

We recently ran a post asking whether special education is in danger. What do you think? #IDEA #POTUS

Tuesday, February 14, 2017

Is Special Education In Trouble? #IDEA #special education #POTUS

OK it is time for a serious question, is special education in trouble? This blog is not partisan; we do not endorse candidates or tell you how to vote. Indeed, I take great comfort in the fact that historically, special education has received widespread and solid support from both political parties. My intention here is not to get political, yet there may well be cause for concern by recent political developments.

I began to worry when Donald Trump, a candidate for the highest office in the land, mocked a reporter with a disability on national television. You can see it in the video below

When I saw this on television, I felt sick.  If you read this blog regularly, you know that bullying of children with disabilities is a big problem in this country. We have done many posts on this topic. What sort of signal does it send to children when one of out leaders bullies a person with a disability? Will this encourage others to do so?

OK so the backdrop is extremely disturbing. Recently Disability Scoop reported that references to disabilities disappeared from the White House website after the new administration took over. Also a very bad sign. Another recent development was the disappearance of the idea website - a site developed for special ed stakeholders to find information. The site is again active, but it has been replaced by a referral to the generic OSEP website. More bad signs?

So what are the President's views on special education?  During the general election campaign, I emailed both the Trump and Clinton campaigns concerning their views on special education. Neither responded. So I am not sure what the President's views are concerning special education. 

I then looked at the people whom he announced that he had selected for his cabinet. His pick for secretary of Education is Betsy DeVos. She has been a champion of vouchers for parents to send children to private schools. The Council for Exceptional Children have questioned the policy wisdom of vouchers.  Her testimony during her confirmation hearing seemed to indicate that she was not familiar with IDEA, the special education law, and she thought that IDEA compliance should be up to the states.  The Secretary of Education has responsibilities that relate directly to the enforcement of the special education law and regulations. So some a lot more red flags have been raised, but I still don't know what she thinks about special education..

Then there is the new Attorney General, Jeff Sessions. Although the AG does not directly enforce the special education laws, his department does have enforcement responsibilities for the Americans with Disabilities Act which does have some requirements for school children with disabilities. Also the Solicitor General who works for the AG argues the administration's position on certain special education cases that come before the Supreme Court. So the AG can play an important role in this field.

But Jeff Sessions, the incoming AG is not a fan of special education. In a speech he gave on the floor of the Senate in 2000, he attacked the Individuals With Disabilities in Education Act, known as IDEA, saying, “In fact, it may be the single most irritating problem for teachers throughout America today,” He blamed IDEA for the lack of civility in our country. He said in part:
"We have created a complex system of federal regulations and  laws that have created lawsuit after lawsuit, special treatment for certain children, and that are a big factor in accelerating the decline in civility and discipline in classrooms all over America. I say that very sincerely." (emphasis added.)
Later he stated
               "There is no telling how many instructional hours are lost by teachers in dealing with behavior problems. In times of an increasingly competitive global society it is no wonder American students fall short. Certain children are allowed to remain in the classroom robbing the other children of hours that can never be replaced...
            It is even more frustrating when it is a special education child who knows and boasts “they can’t do anything to me” and he is placed back in the classroom to disrupt it day after day, week after week.
            It is clear that IDEA ’97 not only undermines the educational process it also undermines the authority of educators. In a time when our profession is being called upon to protect our children from increasingly dangerous sources our credibility is being stripped from us.
         I am sure you have heard the saying: The teachers are scared of the principals, the principals are scared of the superintendents, the superintendents are scared of the parents, the parents are scared of the children, and the children are scared of no one. And why should they be?
         I have experienced the ramifications of the 'new and improved' law firsthand. I had one child attempt to assault me — he had been successful with two other teachers. He was suspended for one day. I had another child make sexual gestures to me in front of the entire class. Despite the fact that every child in my class and a majority of the children in the school knew of it, I was told by my assistant principal that nothing could be done because 'these special ed kids have rights.' " (emphasis added.)

Yikes. You can read Mr. Sessions entire speech here. Lotsa stuff going on, no?

OK so what is your opinion- is special education in trouble? Tell us what you think: am I overreacting or is it possible that special ed will become a thing of the past? Is it time to call your congressional representatives?

Monday, February 13, 2017

Weekly Question!

We are running a Series on Procedural Safeguards. Which of the procedural safeguards under IDEA are most effective in protecting the educational rights of children with disabilities? #SpEdProcedures

Tuesday, February 7, 2017

Procedural Safeguards - The Series Part XII #procedural violations

This is the thirteenth 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 you find the information in this series helpful. Be sure to tell me what you think.

Procedural Violations

Section 615 (f)(3)(E) provides that the decision of the hearing officer must be on substantive grounds. Moreover, this section also provides that in matters alleging a procedural violation, a hearing officer may only find a denial of FAPE if the procedural inadequacies impede FAPE; or significantly impede the parents’ opportunity to participate; or cause a deprivation of educational benefits. Many courts had already read the old IDEA to the same effect. For example, see, D. L. ex. rel. J. L. v. Unified Sch. Dist. 42 IDELR 139 (Tenth Cir. 2004); M. L. v. Federal Way Sch. Dist. 39 IDELR 236 (Ninth Cir. 2003); and Gadsby v. Grasmick 25 IDELR 621 (Fourth Cir. 1997). These rulings are now codified in the statute.

During the hearing in cases alleging a procedural violation, the hearing officer has to carefully rule on evidentiary objections to ensure that evidence connecting the procedural violation to one of the specified grounds is forthcoming. In cases in which a party is not represented by counsel, the matter is complicated by the hearing officer’s duty to make a complete record. In such cases, the hearing officer will likely ask a number of questions of the unrepresented party to determine the result of the alleged procedural violations or the effect of said procedural violations upon FAPE, the opportunity of the parents to participate in the process, or the deprivation of educational benefit.

OSEP has clarified that the requirement that a hearing officer base his decision on substantive grounds applies only to cases alleging denial of FAPE; a hearing officer still has jurisdiction over LRE cases and other matters alleging issues involving identification, evaluation and placement. 71 Fed. Register No. 156 at pages 46705-06 (August 14, 2006). The new amendment does not affect these types of cases. 

Monday, February 6, 2017

Weekly Question!

We are running a Series on Procedural Safeguards. Which of the procedural safeguards under IDEA are most effective in protecting the educational rights of children with disabilities? #SpEdProcedures

Thursday, February 2, 2017

Procedural Safeguards - The Series Part XII #due process hearing #dph

This is the twelfth 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.

Due Process Hearings

A due process hearing resembles a court trial. Increasingly, parties are represented by lawyers. Opening statements are made. Testimony is provided by parents, teachers, related service providers, administrators, and many others- often by expert witnesses. Although the formal rules of evidence are generally not applied, exhibits, or documentary evidence, are offered and admitted. The tone is increasingly adversarial. Either closing arguments are made or written briefs are submitted. Hearing officer decisions are generally lengthy and legalistic in tone. The decision of the hearing officer may be appealed to one or more courts.

Parents and local education agencies may file a due process complaint for any matter related to the identification, evaluation, educational placement or the provision of a free and appropriate public education to a child with a disability. IDEA §§ 615(f);615(b)(6). 

IDEA imposes a two-year statute of limitations on due process complaints. Unless state law imposes a contrary limitations period, a party must request a due process hearing within two years of the date that the party knew or reasonably should have known about the alleged action that forms the basis of the complaint. § 615 (f)(3)(C). The statute of limitations recognizes two exceptions – cases in which the parent was prevented from requesting the hearing due either to specific misrepresentations by the LEA that it had resolved the problem or to the LEA’s withholding of information that the IDEA requires it to provide. § 615 (f)(3)(D). OSEP has clarified that a state may adopt a statute of limitations either shorter or longer than two years by statute or regulation, but not by common law, subject to the notification provisions of IDEA. 71 Fed. Register No. 156 at pages 46696-97 (August 14, 2006). It is the province of the hearing officer to determine whether a specific complaint has been filed within the statute of limitations and whether an amended complaint relates to a previous complaint. 71 Fed. Register No. 156 at pages 46698 (August 14, 2006). 

Hearing Officers must be well trained. In addition to the requirement that a hearing officer not have a personal or professional interest that would conflict with objectivity, three more qualifications for due process hearing officers were added in 2004. The following new qualities are required in a hearing officer: the knowledge and ability to conduct hearings in accordance with standard legal practice; the knowledge and ability to write decisions in accordance with standard legal practice; knowledge of and ability to understand special education law. § 615 (f)(3)(A)(ii)-(iv). The changes in the qualifications for hearing officers are significant. The fact that the Congress amended this section signals at least some concern about hearing officers. SEA personnel who train and select hearing officers need to be mindful of these changes to the law. Those who train hearing officers should be people with experience in conducting due process hearings and in writing decisions thereafter. New hearing officers should be able to cite prior experience concerning these qualifications. OSEP has noted that pursuant to its general supervisory responsibility, each SEA must ensure that its hearing officers are sufficiently trained to meet the new qualifications established by IDEA. 71 Fed. Register No. 156 at page 46705 (August 14, 2006). 

IDEA provides that the party requesting the due process hearing “…shall not be allowed to raise issues at the due process hearing that were not raised in the (due process hearing) notice…,” unless the other party agrees. § 615 (f)(3)(B). see, 34 CFR §300.511(d); 71 Fed. Register No. 156 at pages 46705 -06 (August 14, 2006). However, note that IDEA § 615 (o) provides that nothing in § 615 “… shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed.”

OSEP noted that states have considerable latitude in developing procedural rules for due process hearings and that determinations upon procedural matters not specifically addressed by IDEA are within the sound discretion of the hearing officer so long as the parties’ right to a timely hearing is not denied. 71 Fed. Register No. 156 at page 46704 (August 14, 2006). Other items left to the discretion of the hearing officer include the following: decisions concerning appropriate expert witness testimony. 71 Fed. Register No. 156 at page 46691 (August 14, 2006); ruling upon compliance with timelines and the statute of limitations. 71 Fed. Register No. 156 at page 46705 (August 14, 2006); determining when dismissals are appropriate. 71 Fed. Register No. 156 at page 46699 (August 14, 2006); whether the non-complaining party may raise other issues at the hearing that were not raised in the due process complaint. 71 Fed. Register No. 156 at page 46706 (August 14, 2006); the meaning of the word “misrepresentation” for purposes of the exception to the statute of limitations for filing a due process complaint. 71 Fed. Register No. 156 at page 46706 (August 14, 2006); and providing proper latitude for pro se parties. 71 Fed. Register No. 156 at page 46699 (August 14, 2006).

Concerning the five business day rule for disclosure of evidence prior to a due process hearing, OSEP commented that nothing prevents parties from agreeing to a shorter period of time. 71 Fed. Register No. 156 at page 46706 (August 14, 2006).

As to the location and time of due process hearings, OSEP resisted the suggestion that they be conducted in a “mutually convenient” time and place, fearing that the large number of participants to a hearing would necessitate long delays if mutually convenient times and locations were required. The regulations retain the requirement that hearings be conducted at a time and place that is reasonably convenient to the parents and student. 34 CFR § 300.515(d); 71 Fed. Register No. 156 at page 46707 (August 14, 2006).

Representation by Non-Attorneys in Due Process Hearings
Changes to the federal IDEA regulations effective on December 31, 2008 made an important change to the policy interpretation by OSEP regarding the representation of parties (primarily parents) by non-lawyers in due process hearings. Prior to the change, it had been the long-standing interpretation of OSEP that a non-lawyer could represent parents at a due process hearing in much the same way that a lawyer could represent a party. After certain lower courts declared such a practice to be a violation of “unauthorized practice” statutes, OSEP changed 34 C.F.R. Section 300.512 (a)(1) to specify that whether a party has the right to be represented by a non-lawyer at a due process hearing shall be determined by state law.  Some commenters, including this author, asked OSEP to clarify whether it was sufficient for a state by rule or regulation to specify that parties could be represented by non-lawyers or whether the ability of a lay advocate to represent parents is instead controlled by state law regarding the unauthorized practice of law. OSEP’s “response” was as follows:  Discussion: Whether an SEA may have a State regulation or procedural rule permitting non-attorney advocates to represent parties at due process hearings or whether that issue is controlled by State attorney practice laws is determined by State law. If State law is silent on the question of whether non-attorney advocates can represent parties in due process hearings, there is no prohibition under the Act or its implementing regulations on nonattorney advocates assuming a representational role in due process hearings. 73 Fed Register No. 231 at page 73018 (12/1/2008)

 Here is the OSEP Questions and Answers On Procedural Safeguards and Due Process Procedures For Parents and Children With Disabilities. See also,  Memo to Chief Sch Officers Re Dispute Resolution Procedures Under Part B of IDEA 61 IDELR. 232 (OSEP 7/23/13) (Q and A document with a section on due process hearings.)

Monday, January 30, 2017

New ESEA Resources for Parents #ESEA #Parent Involvement

The Center for Parent Information has published a new Guide to the Every Student Succeeds Act, the new name for the Elementary and Secondary Schools Act, fka No Child Left Behind. Lotsa names- one law. the Guide provides a wealth of information about the law, including the requirement of stakeholder engagement.

You can review the new guide here.

The Center also has a link to a webinar on ESSA and the Assessment of Children With Disabilities. You can review the webinar here.

Weekly Question!

We are running a Series on Procedural Safeguards. Which of the procedural safeguards under IDEA are most effective in protecting the educational rights of children with disabilities? #SpEdProcedures

Monday, January 23, 2017

Weekly Question!

We are running a Series on Procedural Safeguards. Which of the procedural safeguards under IDEA are most effective in protecting the educational rights of children with disabilities? #SpEdProcedures

Wednesday, January 18, 2017

New GAO Report on School Bus Safety #GAO #school bus safety

The Government Accountability Office issued a report last week on school bus safety. This topic is important to all who work in education. Some special education students are entitled to transportation as a related service. 34 CFR § 300.34.

The report found that based on GAO’s analysis of data for 2000 to 2014, 115 fatal crashes involved a school bus on average each year—which is 0.3 percent of the 34,835 total fatal motor-vehicle crashes on average each year. The school bus driver and school bus vehicle (e.g., a defect) were cited as contributing factors in 27 percent and less than 1 percent of fatal school-bus crashes, respectively. Seventy-two percent of fatal crashes occurred during home-to-school and school-to-home travel times.

Concerning the safety of special needs buses: Seven percent of buses involved in fatal crashes during this time were classified as special needs school buses

Concerning the training of special needs bus drivers: All eight selected states required school bus drivers to receive training on transporting students with special needs. "Drivers in these states typically receive training on transporting special needs students as part of the training curriculum for entry-level or refresher training for school bus drivers. For example, in New York, under state law, entry-level school bus drivers are required to take a minimum of two hours of instruction related to transporting special needs students during the first year of employment, and all school bus drivers are required to take one hour of annual training related to transporting special needs students.54 5367 PA. CODE § 71.5 (2016). 54N.Y. COMP. CODES R. & REGS. tit. 8, § 156.3(b)(5)(ii)(a) and (b) (2016). Page 28 GAO-17-209 School Bus Safety State officials in a few of our selected states said additional training on special needs transportation is provided to drivers at the local level. A Washington state official told us that the state trains all instructors on special needs transportation topics so the instructors can in turn provide more targeted training to drivers, such as how to secure wheelchairs on a particular bus model."

You can review a highlight sheet here. The full 51 page report is available here.

Tuesday, January 17, 2017

More Coverage on Endrew F Oral Argument #scotus #rowley standard

We had an extensive post analyzing the oral argument before the U. S, Supreme Court last week in the case involving the FAPE standard. You can read our post here.

Here is the analysis of the argument by the prestigious SCOTUS blog.  Here is an analysis of the argument by our friends at the Council for Exceptional Children. Here is a round up by the SCOTUS blog which mentions several stories on the oral argument, including our post!

Also you can listen to the oral argument here at Oyez. Technology is sometimes pretty cool, no?

Monday, January 16, 2017

Weekly Question!

We are running a Series on Procedural Safeguards. Which of the procedural safeguards under IDEA are most effective in protecting the educational rights of children with disabilities? #SpEdProcedures

Wednesday, January 11, 2017

Breaking: Supreme Court Hears Oral Argument on FAPE Standard #rowley standard #FAPE #scotus

The United States Supreme Court heard oral argument today on the case of Endrew F v Douglas County Sch Dist, #RE-1, Case No. 15-827.  The issue in this case concerns the standard for how much a school district must do to provide a free and appropriate public education to a student with a disability the current "some benefit" standard vs. a "meaningful benefit" standard. Please see our previous posts on this case here, here, here and here.

It is of course difficult to read the justices, in terms of how they may rule, based upon their questions. Sometimes they dhow their hand, but other times they play devil's advocate to try to help them flesh out a response to another justice when crafting their position or opinion. That said, Chief Justice Roberts seemed  to be concerned about whether changing the standard might violate the Spending Clause by changing the conditions of receipt of federal funds after the funds have been accepted. He later noted that ambiguity in the current Rowley standard might affect that argument.

Justice Kennedy brought up the cost of services a number of times, but counsel for both sides noted that the Garret F case had resolved that issue. Justice Alito referred to IDEA as a "blizzard of words." He suggested that to have a benefit, you are making progress; that "significant" and "meaningful" are synonymous; and that if something is significant, it is more than "de minimis."Alito's concern was regardless of the words used, how were the lower courts applying the standard. Counsel for the school district said with some bite. Counsel for the parents said that the lower courts need a kick.

Justice Ginsburg stated that a standard with bite and more than de minimis  were not equivalent; and Justice Kagan said that "Well, again, if somebody said to you, write a stature with -- write a standard with bite, I doubt you would come up with the words 'more than merely de minimis'." Justice Kagan noted the many procedural safeguards in IDEA, but noted that the procedures are used to achieve a substantive result, or FAPE. 

The argument took an unusual turn early on when the lawyer for the parent veered away from the meaningful benefit vs some benefit standard which had previously been the issue in the case. He argued instead that the standard for FAPE should involve an analysis of grade level. Counsel for the parent stated that the standard should be "... the IEP should be tailored to achieve in a general educational curriculum at grade level for most kids. And when that is not possible, you would go to the alternate achievement standards." The Solicitor General, arguing on behalf of the United States, argued for a different standard: "It's grade-level competence for students who are in the regular classroom or in the general curriculum...And so that is where we have a slight area of disagreement. (for more severely disabled students)We would say significant progress towards grade-level standards, not as close as possible to grade-level standards." The Solicitor General stated that upon judicial review, the role of the courts should be limited to ensuring that an IEP was appropriate for progress based upon reasonable educational judgment. Counsel for the school district advocated keeping the current Rowley (some benefit) standard. 

Please recall that there are still only eight justices on the Supreme Court. If the court ties 4-4, then the lower court decision is affirmed for the parties to this case but without precedential value for other parties. If the result is not a tie, this could be a very important decision for those who are involved in special education.

The briefs of the parties and many of the amicus briefs are available on the SCOTUS blog here.

The transcript of the oral arguments is available here.