Friday, July 21, 2017
Monday, July 17, 2017
Saturday, July 15, 2017
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.
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 in recent years have granted Honig v Doe injunctions restraining a dangerous student from attending school: Wayne-Westland Community Schs v VS & YS64 IDELR 139 (ED Mich 10/9/14); Seashore Charter Sch v EB by GB 64 IDELR 44 (SD Tex 9/3/14). Contrast, Troy Sch Dist v KM by Janice M & Warren M 64 IDELR 303 (ED Mich 1/16/15) Court denied Honig v Doe injunction where SD did not demonstrate that maintaining student’s placement was likely to result in injury to student or others. Incident occurred when SD did not implement IEP by providing a safe person.
Monday, July 10, 2017
Friday, July 7, 2017
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.
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.
Tuesday, July 4, 2017
Happy Independence Day.
The Fourth of July is a big holiday for our country, and these days we really need a big holiday. I have always loved this day; what other country believes in an inalienable right to pursue happiness! Independence Day is also a time to reflect on the concept of independence.
For people with disabilities, independence is an important goal. Congress has stated that encouraging independent living for people with disabilities is the policy of the United States government. IDEA, Section 601(c). Indeed, one of the purposes of special education is to prepare children with disabilities for independent living. IDEA, Section 601(d)(1)(A).
Before passage of the EHA, the predecessor of the IDEA, in 1975, education of children with disabilities, who were then called "handicapped," was iffy at best. According to the legislative history of the EHA, which is quoted in the seminal Rowley decision by the Supreme Court, millions of children with disabilities were then either totally excluded from school or were warehoused until they were old enough to drop out. Bd. of Education v. Rowley, 458 U.S. 176, 191, 103 LRP 31848 (1982). At the time, it was estimated that of the eight million children who required special education, only about 3.9 million were receiving an appropriate education. Bd. of Education v. Rowley, 458 U.S. 176, 191, 103 LRP 31848 (1982).
These numbers are shocking. 1975 was not long ago. Yet we have made real progress since then. Special education may have its detractors, but it is now pretty widely accepted. Very few children with disabilities are now excluded from school. Some still do not receive an appropriate education, but there are now remedies available when that happens. We have come a long way!
I realize that we are not finished. But as we look forward on this Independence Day to how we can do a better job of educating children with disabilities and preparing them to live independently, let us also look back for a moment and congratulate ourselves on the excellent progress we have made in what in public policy terms is truly a very short time.
Happy Independence Day.
Monday, July 3, 2017
Friday, June 30, 2017
This is another post in our current series introducing readers to special education law's key concepts. Today's post is about related services. This phrase is almost always preceded by "special education and..."
Let me know if you are enjoying this series. For some it is an introduction. For others it is a chance to brush up on the key concepts...
The IDEA defines related services as follows:
(A) IN GENERAL- The term ‘related services’ means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free and appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education…
(B) EXCEPTION—The term does not include a medical device that is surgically implanted, or the replacement of such device.
IDEA, § 602(26). See, 34 C.F.R. § 300.34.
The issue of related services has resulted in two decisions by the United States Supreme Court. The first decision was Irving Independent Sch. Dist. v. Tatro 468 U.S. 883, 104 S.Ct. 3371, 555 IDELR 511 (1984). The Court affirmed the Court of Appeals holding that a procedure known as clean intermittent catheterization was a related service because the student could not attend school without it and, therefore, without the procedure she could not benefit from special education. Tatro, supra. The Supreme Court also affirmed the holding of the Court of Appeals that clean intermittent catheterization is not exempted by the medical services provision because the procedure did not have to be performed by a doctor, it could be done by a layperson with an hour of training. Tatro, supra.
The second decision was Cedar Rapids Community Sch. Dist. v. Garret F. 526 U.S. 66, 119 S.Ct. 992, 29 IDELR 966 (1999). In this case, the Supreme Court held that urinary bladder catheterization and suctioning of tracheotomy plus various monitoring was a related service. Garret F., supra. Applying the “bright line” test of the Tatro decision, the Court held that because the related services did not have to be performed by a physician, the medical services exclusion did not apply and the schools were required to provide the services for the student. Garret F., supra. The Court specifically and emphatically rejected the argument raised by the schools that the cost of providing the services was a defense. Garret F., supra.
In Marshall Joint Sch Dist No.2 v CD by Brian & Traci D 616 F. 3d 632, 54 IDELR 307 (7th Cir 8/2/10), the Seventh Circuit concluded that the student did not need specialized instruction. Any need for PT or OT, therefore, was not relevant.
In Doe ex rel Doe v East Lyme Bd of Educ 790 F.3d 440, 65 IDELR 255 (Second Cir 6/26/15) Parent argued that SD violated stay put by failing to provide the related services of speech therapy and OT. District court agreed but limited relief only to money that the parent had already paid out for the related services to avoid awarding money damages which are not available under IDEA. Second Circuit reversed holding that the parent was entitled to the full value of the related services provided for in the IEP not as money damages, but rather as a form of compensatory education. (Full value of services not yet paid for by the parent.)
Monday, June 26, 2017
Wednesday, June 21, 2017
Our series providing an introduction to special education law continues. Previous posts have introduced the two basic concepts underlying IDEA, free and appropriate education and least restrictive environment. Last week we discussed eligibility and identification. Today we will look at selected IEP issues.
The Individualized Educational Plan (hereafter sometimes referred to as “IEP”) is at the heart of the Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et seq (hereafter sometimes referred to as the “IDEA”.) In the seminal decision of in Board of Educ., Hendrick Hudson Central Sch. Dist. v. Rowley, 455 U.S. 175, 102 S.Ct. 3034, 3038, 553 IDELR 656 (1982), the U. S. Supreme Court noted that the function of the IEP is to tailor the free and appropriate education required by the IDEA to the unique needs of the student with a disability. Similar language is used by the high court in the recent Endrew F decision.
In a subsequent decision, the Supreme Court referred to the IEP as the “primary vehicle for implementing” the congressional goals underlying the IDEA. Honig v. Doe 484
305, 108 S.Ct. 594, 597, 559 IDELR 231 (1988). The Supreme Court has also described the IEP as “the modus operandi of the Act,” requiring a “comprehensive statement of the needs” of a student with a disability and the “specially designed instruction and related services to be employed to meet those needs.” U.S. Sch. Comm. v. Dept. of Educ. 471 Burlington 359, 105 S.Ct. 1996, 2002, 556 IDELR 389 (1985). Also, the Supreme Court called the IEP Team meeting process “the central vehicle” for collaboration in the cooperative process the Act establishes between parents and school districts. Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005). U.S.
Some IEP Issues
Issues pertaining to IEPS are among the most frequent to appear in due process hearings. Here are some fundamental points:
Issues pertaining to individualized education programs are governed by IDEA §§ 612(a)(4) and 614 (d)-(f). See, 34 C.F.R, §§ 300.320-300.323, 300.324 – 300.328.
D.F. & D.F. ex rel N.F. v. Ramapo Cent. Sch. Dist. 105 LRP 57524 (2d Cir. 11/23/05). The Court notes that the case raises an issue as to whether it is proper to utilize prospective or retrospective analysis of an IEP. The court stated that an IEP is a snapshot not a retrospective. In striving for appropriateness, an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, i.e., at the time the IEP was formulated. Contrast, MS by Simchick v. Fairfax County Sch Bd 553 F.3d 315, 51 IDELR 148 (4th Cir 1/14/09).
In a recent trend involving cases alleging failure to implement IEPs, courts have increasingly taken a stance that to be actionable, the failure to implement must have been "material." This trend follows the reasoning of the Ninth Circuit Court of Appeals in Van Duyn ex rel Van Duyn v. Baker Sch Dist 5J 481 F.3d 770, 47 IDELR 182 (9th Cir. 4/3/7)
Monday, June 19, 2017
Wednesday, June 14, 2017
The U S Census Bureau today released a report on how public schools in the United States are financed. It concludes that public schools across the nation spent over 60 percent of day-to-day expenditures on classroom instruction in fiscal year 2015.
The report contains a wealth of data pertaining to school finance, including numbers regarding how much is spent on special education.
The 65 page report Public Education Finances: 2015 is available here.
“School systems in all states and the District of Columbia spent $344.3 billion on classroom instruction,” said Stephen Wheeler, a project manager with the Census Bureau’s Educational Finance Branch. “This includes spending on salaries for teachers, instructional aides and substitute teachers.”
Classroom instruction is defined as activities dealing with the interaction between teachers and students in the classroom or other learning situations.
New York and the District of Columbia led the nation in total per student spending on instructional staff salaries at $8,758 and $9,112, respectively.
Per Student Spending
Nationally, per student spending was $11,392 in fiscal year 2015, a 3.5 percent increase from fiscal year 2014. This amount represents the largest increase in per student spending since 2008 when there was a 6.1 percent increase from the year prior. Total current expenditures per student include instruction, support services and noninstructional functions, including direct expenditure for salaries, employee benefits, student transportation, building maintenance and other services and supplies.
Per student spending increased for every state, with Alaska and California having the highest percentage increase (9.5 percent and 9.1 percent, respectively), except for Arizona (decreased 0.5 percent).
Overall, New York and Alaska spent more per student with a total of $21,206 and $20,172, respectively. States with the lowest per student expenditures were Idaho with $6,923 and Utah with $6,575.
Of the 100 largest school systems by enrollment, Maryland had four of the 10 public school districts with the highest spending per student. This marks the eighth year in a row Maryland has had four school districts in the top 10 in this category. Nationally, the top five school districts per student spending were New York City School District at $21,980; Boston City Schools at $21,552; Anchorage School District in Alaska at $17,046; Baltimore City Schools in Maryland at $15,818; and Howard County Schools in Maryland at $15,714.
Total expenditure by public school systems was $639.5 billion in fiscal year 2015, compared to $613.7 billion in fiscal year 2014. Of the total expenditures for elementary and secondary education, current spending made up $567.7 billion, or 88.8 percent, and capital outlay was $52.1 billion, or 8.2 percent.
Expenditures for instruction amounted to $344.3 billion, or 60.6 percent of total current spending. Instructional salaries and wages totaled $216.9 billion, while instructional employee benefits totaled $87.1 billion.
Support services expenditures included general and school administration expenditures at $40.9 billion, operation and maintenance of plant expenditures at $51.6 billion and student transportation expenditures at $24.2 billion.
Eight of the nine states in the Northeast ranked among the top 15 in spending per student, except for Maine, which was 16th. Out of the 20 states with the lowest per student spending, 17 were in the South or West. The remaining states were Kansas, Indiana and South Dakota, which are in the Midwest.
Total school district debt increased by 3.6 percent from the prior year, from $418.0 billion in fiscal year 2014 to $433.1 billion in fiscal year 2015.
Public Education Revenue
State governments contribute the greatest share of public school system funding at $302.6 billion, or 47.1 percent of total revenue.
Revenue raised from local sources, which includes revenues from county and municipal governments, amounted to $286.7 billion, or 44.6 percent of public elementary and secondary funding, while the federal government contributed $53.3 billion, or 8.3 percent of public elementary and secondary funding.
The $286.7 billion that schools received from local sources included $196.6 billion from property and other taxes.
Public school systems receiving the highest percentage of revenues from the federal government were Louisiana and Mississippi with 14.7 percent, South Dakota with 14.6 percent, Arizona with 13.4 percent and New Mexico with 13.2 percent.
Public school systems receiving the lowest percentage of revenues from the federal government were Connecticut and New Jersey with 4.1 percent, New York with 4.5 percent and Massachusetts with 4.6 percent.
Tuesday, June 13, 2017
Our series providing an introduction to special education law continues. Previous posts have introduced the two basic concepts underlying IDEA, free and appropriate education and least restrictive environment. Today's post concerns eligibility and identification.
Identification & Eligibility
Issues pertaining to identification and eligibility are governed by IDEA § 612(a)(3) and 614 (b)(4)-(6). See, 34 C.F.R, § 300.121- 300.125, 300.300, 300.306, 300.307 – 300.311.
In summary, to be eligible, a child must have one of the enumerated conditions(mental impairment, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities)(which adversely affects his education) and by reason thereof, he must need special education and related services. In addition as a third requirement for eligibility, most of the disabling conditions require that the condition adversely affects the child's educational performance.
Some important circuit court decisions:
Marshall Joint Sch Dist No 2 v. CD by Brian & Traci D 616 F.3d 632, 54 IDELR 307 (7th Cir 8/2/10) Seventh Circuit reversed HO who found student eligible solely upon physician’s opinion that the student could benefit from adaptive PE. The Seventh Circuit noted that a physician may not simply prescribe special education; IEPT must consider relevant factors.
Alvin Indep Sch Dist v. AD by Patricia F 503 F.3d 378, 48 IDELR 240 (5th Cir. 10/4/7) The fifth Circuit affirmed a holding that despite a fifth grader’s ADHD, he was not eligible for special education. The student consistently received passing grades, he succeeded on statewide tests and he was achieving in social situations. Accordingly, he did not by reason thereof “need special education and related services,” and, therefore, he was not a child with a disability as defined by the IDEA
Hood v. Encinitas Union Sch Dist 47 IDELR 213 (9th Cir. 4/9/7) The Ninth Circuit applied the Rowley standard to an eligibility issue. Where the student consistently received above average grades despite her disability, she received educational benefit, and therefore, was not eligible for SpEd. NOTE: One legal scholar has questioned whether theRowley test is too restrictive for eligibility purposes, Weber, Mark "The IDEA Eligibility Mess," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1206202
CJ by Hudson v Pittsburg Unified Sch Dist 835 F.3d 1168, 68 IDELR 121 (9th Cir 9/5/16) Ninth Circuit held that SD erred by ruling that student was no longer eligible for special ed services where his educational progress was a result of the specialized services that he received including mental health services, a 1:1 behavioral aide and other accommodations. Fact that he received services in general ed setting did not change result;
IDEA also places a child find duty upon school districts. A district has an affirmative duty to identify and evaluate children with disabilities. District of Columbia Public Schs (JG) 111 LRP 25934 (SEA DC 3/18/11) The standard for child find is suspicion of a disability rather than actual knowledge. District of Columbia Public Schs (JG) 111 LRP 25934 (SEA DC 3/18/11).
Compton Unified Sch Dist v. Addison 598 F.3d 1181, 54 IDELR 71 (9th Cir. 3/22/10) By a 2-1 vote, Ninth Circuit rejected school district argument that there is no child find duty because of language pertaining to prior written notice. The district argued that only an action or refusal is a violation. The Ninth Circuit held that a parent could file a dpc on any matter related to identification, evaluation, FAPE or placement, so, therefore, child find violations are actionable.
Ridley Sch Dist v. MR & JR ex rel ER 680 F.3d 260, 58 IDELR 271 (3d Cir 3/19/12) Third circuit conducted a detailed review of the law concerning Child Find, and concluded that the HO erred by failing to allow the school district a reasonable time to identify the student as disabled.
Monday, June 12, 2017
Wednesday, June 7, 2017
Secretary of Education Betsy DeVoss has announced the appointment of Kimberly Richey as Assistant Secretary for Special Education and Rehabilitative Services. The press release is available here.
According to the Council for Exceptional Children, Richey is currently the interim chief advocacy officer at the National School Board Association (NSBA). She is an attorney who specializes in education law and previously served as Counsel of the Oklahoma State Department of Education, according to her bio on the NSBA site.
Monday, June 5, 2017
Sunday, June 4, 2017
Friday, June 2, 2017
Remember the very useful website that OSEP had developed with tons of resources for parents and other education stakeholders. We previously reported here that the website had mysteriously disappeared.
The website was lost...and now it's found.
Monday, May 29, 2017
Thursday, May 25, 2017
The National Center for Education Statistics of the Institute of Education Sciences has released "The Condition of Education : 2017." The report contains a wealth of information about education in the United States.
The following are some interesting findings of the report
About 16 percent of 25- to 64-year-olds who had not completed high school had one or more disabilities in 2015, compared to 11 percent of those who had completed high school, 10 percent of those who had completed some college, 8 percent of those who had completed an associate’s degree, 4 percent of those who had completed a bachelor’s degree, and 3 percent of those who had completed a master’s or higher degree. Differences in the employment and not-in-laborforce percentages between persons with and without disabilities were substantial, amounting to about 50 percentage points each. Among those who had obtained higher levels of education, the differences were smaller...
In 2014–15, the number of children and youth ages 3–21 receiving special education services was 6.6 million, or 13 percent of all public school students. Among children and youth receiving special education services, 35 percent had specific learning disabilities...
The number of U.S. public elementary and secondary students reported as homeless increased from 910,000 in 2009–10 to 1.3 million in 2014–15.6 During this time, the percentage of public school students who were reported as homeless increased from 1.8 percent in 2009–10 to 2.5 percent in 2014–15... Seventeen percent of homeless students were identified as students with disabilities under the Individuals with Disabilities Education Act (IDEA), compared to 13 percent of all public school students...
From school years 1990–91 through 2004–05, the number of children and youth ages 3–21 who received special education services increased from 4.7 million, or 11 percent of total public school enrollment, to 6.7 million, or 14 percent of total public school enrollment.1 Both the number and percentage of children and youth served under IDEA declined from 2004–05 through 2011–12. The number and percentage of children and youth served appeared to level off between 2012–13 and 2014–15. By 2014–15, the number of children and youth served under IDEA was 6.6 million, or 13 percent of total public school enrollment. In school year 2014–15, a higher percentage of children and youth ages 3–21 received special education services under IDEA for specific learning disabilities than for any other type of disability. A specific learning disability is a disorder in one or more of the basic psychological processes involved in understanding or using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. In 2014–15, some 35 percent of all children and youth receiving special education services had specific learning disabilities, 20 percent had speech or language impairments, and 13 percent had other health impairments (including having limited strength, vitality, or alertness due to chronic or acute health problems such as a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, or diabetes). Children and youth with autism, intellectual disabilities, developmental delays, and emotional disturbances each accounted for between 5 and 9 percent of children and youth served under IDEA. Children and youth with multiple disabilities, hearing impairments, orthopedic impairments, visual impairments, traumatic brain injuries, and deaf-blindness each accounted for 2 percent or less of those served under IDEA. In school year 2014–15, the percentage (out of total public school enrollment) of children and youth ages 3–21 served under IDEA differed by race/ethnicity. The percentage of children and youth served under IDEA was highest for those who were American Indian/Alaska Native (17 percent), followed by Black (15 percent), White and of Two or more races (both at 13 percent), Hispanic and Pacific Islander (both at 12 percent), and Asian (7 percent). In each racial/ethnic group except for Asian, the percentage of children and youth receiving services for specific learning disabilities combined with the percentage receiving services for speech or language impairments accounted for over 50 percent of children and youth served under IDEA. The percentage distribution of various types of special education services received by children and youth ages 3–21 in 2014–15 differed by race/ethnicity. For example, the percentage of children and youth with disabilities receiving services under IDEA for specific learning disabilities was lower among Asian children and youth (22 percent), children and youth of Two or more races (30 percent), and White children and youth (31 percent) than among children and youth overall (35 percent). However, the percentage of children and youth with disabilities receiving services under IDEA for autism was higher among Asian children and youth (20 percent), children and youth of Two or more races (10 percent), and White children and youth (10 percent) than among children and youth overall (9 percent). Additionally, of children and youth who were served under IDEA, 7 percent of Black children and youth and children and youth ages 3–21 in 2014–15 differed by race/ethnicity. For example, the percentage of children and youth with disabilities receiving services under IDEA for specific learning disabilities was lower among Asian children and youth (22 percent), children and youth of Two or more races (30 percent), and White children and youth (31 percent) than among children and youth overall (35 percent). However, the percentage of children and youth with disabilities receiving services under IDEA for autism was higher among Asian children and youth (20 percent), children and youth of Two or more races (10 percent), and White children and youth (10 percent) than among children and youth overall (9 percent). Additionally, of children and youth who were served under IDEA, 7 percent of Black children and youth and 7 percent of children and youth of Two or more races received services for emotional disturbances, compared with 5 percent of children and youth served under IDEA overall. Among children and youth who received services under IDEA, each racial/ethnic group other than Hispanic had a higher percentage of children and youth receiving services for developmental delays than the overall percentage of children and youth receiving services for developmental delays (6 percent)."
Wednesday, May 24, 2017
In the previous posts in this series, we have introduced you to the requirement of FAPE. In this installment, we discuss the distinct but equally important requirement of LRE.
The Requirement of LRE (least restrictive environment)
The Requirement of LRE (least restrictive environment)
People are surprised to learn that IDEA does not mention the word "mainstreaming." IDEA does require, however, that to the “…maximum extent appropriate, children with disabilities … are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” IDEA, § 612(a)(5). See, 34 C.F.R. §§ 300.114 to 300.119.
The Supreme Court has not yet ruled on the issue of LRE, but a number of Circuit Courts of appeal have provided some guidance. For example, the Fifth Circuit has developed a two pronged analysis: the first question is whether education of the student with a disability in the regular classroom, with the use of supplemental aids and services, can be satisfactorily achieved, and if it cannot, whether the school district has provided the student with interaction with non-disabled peers to the maximum extent appropriate. Daniel RR v. State Board of Education 874 F.2d 1036, 441 IDELR 433 (5th Cir. 1989).
The Ninth Circuit has developed four factors which must be balanced to determine the LRE placement: (1) the educational benefits available to the student in a regular classroom, supplemented with appropriate aids and services, as compared with the educational benefits of a special education classroom; (2) the non-academic benefits of interaction with children who were not disabled; (3) the effect of the student's presence on the teacher and other children in the classroom; and (4) the cost of mainstreaming the student in a regular classroom. Sacramento City Sch Dist v. Rachel H by Holland 14 F.3d 1398, 20 IDELR 812 (9th Cir. 01/24/1994).
The Fourth Circuit has stated the rule this way: “The Act's language obviously indicates a strong congressional preference for mainstreaming. Mainstreaming, however, is not appropriate for every handicapped child …The proper inquiry is whether a proposed placement is appropriate under the Act. In some cases, a placement which may be considered better for academic reasons may not be appropriate because of the failure to provide for mainstreaming… In a case where the segregated facility is considered superior, the court should determine whether the services which make that placement superior could be feasibly provided in a non-segregated setting. If they can, the placement in the segregated school would be inappropriate under the Act. Framing the issue in this manner accords the proper respect for the strong preference in favor of mainstreaming while still realizing the possibility that some handicapped children simply must be educated in segregated facilities either because the handicapped child would not benefit from mainstreaming, because any marginal benefits received from mainstreaming are far outweighed by the benefits gained from services which could not feasibly be provided in the non-segregated setting, or because the handicapped child is a disruptive force in the non-segregated setting.” DeVries v. Fairfax County Sch Bd 882 F.2d 876, 441 IDELR 555 (Fourth Cir. 1989) See, In re Student With a Disability (JG) 116 LRP 25097 (SEA WV 6/18/15)
Recently the Second Circuit decided TM by AM & RM v Cornwall Central Sch Dist 752 F.3d 145, 63 IDELR 31 (2d Cir 4/2/14) and held that an LRE violation is a substantive (not procedural) violation of IDEA. The LRE requirement applies to Extended School Year programs in the same manner that it applies during the regular school year. Because ESY is necessary to prevent substantial regression, LRE fully applies even if the district does not offer a mainstream ESY program (can consider private programs).
LRE and FAPE are the twin towers of special education law.
Monday, May 22, 2017
Wednesday, May 17, 2017
The National Center on Education Statistics of the Institute of Education Sciences released a report yesterday concerning school crime and safety.
The report addresses the numbers concerning crime, bullying, hate crimes and speech, school discipline and other related topics.
Concerning bullying, the report notes "Between 2005 and 2015, the percentage of students ages 12–18 who reported being bullied at school during the school year decreased from 28 to 21 percent. A higher percentage of female than of male students reported being bullied at school during the school year in 2015 (23 vs. 19 percent)..."
Tables 19-1 and 19-2 compares disciplinary statistics and it shows that children with disabilities were about twice as likely to receive out-of-school suspensions as their non-disabled counterparts in school year 2011-2012. The same tables show that students with disabilities involved in disciplinary incidents in the same year were about twice as non-disabled students likely to be referred to law enforcement authorities.
You can read the entire 261 page report here.
Monday, May 15, 2017
Saturday, May 13, 2017
Happy Mother's Day!
To help us celebrate, here are some fun facts from our friends at the U. S. Census Bureau:
To help us celebrate, here are some fun facts from our friends at the U. S. Census Bureau:
Anna Jarvis organized the first Mother’s Day observances in Grafton, W.Va., and Philadelphia, Pa., on May 10, 1908. As the annual celebration became popular around the country, Jarvis became the driving force behind Mother’s Day and asked members of Congress to set aside a day to honor mothers. She succeeded in 1914, when Congress designated the second in May as Mother’s Day.
How Many Mothers
The number of mothers between the ages of 15 and 50 in 2014. These mothers gave birth to 95.8 million children. Source: Current Population Survey, June 2014 Fertility of Women in the United States: 2014, Detailed Tables, Table 2 www.census.gov/hhes/fertility/
The number of women between the ages of 15 and 50 in 2015 who had given birth in the past 12 months. Source: 2015 American Community Survey, Table B13002 https://factfinder.census.gov/
The percentage of unmarried women ages 15 to 50 in 2015 who had a birth in the past 12 months. About 64.3 percent of women ages 15 to 50 who had a birth in the past 12 months were married. Source: 2015 American Community Survey, Table S1301https://factfinder.census.gov/
How Many Children
The number of births per 1,000 women ages 15 to 44 in 2015, down 1 percent from 2014. Source: National Center for Health Statistics, National Vital Statistics Reports, Page 4 www.cdc.gov/nchs/data/nvsr/
The percentage of women ages 15 to 50 in 2014 who had given birth to two children. About 42.4 percent had no children, 17 percent had one, 11.7 percent had three, and about 6.8 percent had four or more. Source: Current Population Survey, June 2014, Detailed Tables, Table 1 www.census.gov/hhes/fertility/
Characteristics of Women With a Recent Birth
The number of registered births in 2015, down less than 1 percent from 2014. Of this number, 229,715 were to teens ages 15 to 19. Sources: National Center for Health Statistics, National Vital Statistics Reports, Table 1 and Table 2 www.cdc.gov/nchs/data/nvsr/
The percentage of women ages 16 to 50 in the labor force in 2015 who had a birth in the past 12 months. Source: 2015 American Community Survey, Table S1301 https://factfinder.census.gov/
The percentage of women with a bachelor’s degree or higher who had given birth in the past 12 months. Source: 2015 American Community Survey, Table S1301 https://factfinder.census.gov/
The percentage of women ages 15 to 50 with at least a high school diploma or equivalent who gave birth in the past year. Source: 2015 American Community Survey, Table S1301 https://factfinder.census.gov/
The number of births in the past year per 1,000 women ages 15 to 50 with a graduate or professional degree. The number was 53 per 1,000 for women whose highest level of education was a bachelor’s degree. Source: 2015 American Community Survey, Table S1301 https://factfinder.census.gov/
Noah and Emma
The most popular baby names for boys and girls, respectively, in 2015. Source: Social Security Administration, Top 10 Baby Names of 2015 www.ssa.gov/OACT/babynames/
The number of florists nationwide in 2015. Since 2005, the number of florist establishments decreased from 21,135 to 13,419, a decline of 36.5 percent. The number of employees in floral shops also declined from 101,861 to 60,076 employees in 2015, a decline of 41.0 percent. Source: County Business Patterns: 2015 (NAICS 45311) https://factfinder.census.gov/
The number of employees of greeting-card publishers in 2015. Source: County Business Patterns: 2015 (NAICS 511191) https://factfinder.census.gov/
The number of cosmetics, beauty supplies and perfume stores nationwide in 2015. Perfume is a popular gift given on Mother’s Day. Source: County Business Patterns: 2015 (NAICS 44612) https://factfinder.census.gov/
The number of jewelry stores in the United States in 2015—the place to purchase necklaces, earrings and other timeless pieces for mom. Source: County Business Patterns: 2015 (NAICS 44831) https://factfinder.census.gov/
The number of stay-at-home moms in married-couple family groups in 2016. Source: America’s Families and Living Arrangements: 2016, Table FG8 www.census.gov/data/tables/
Taking Care of the Kids
The number of people employed at one of the 74,589, child day care services across the country in 2015. In addition, there were 670,887 child day care services without paid employees in 2014. Many mothers turn to these centers to help juggle motherhood and careers. Sources: County Business Patterns: 2015 (NAICS 6244) https://factfinder.census.gov/
Nonemployer Statistics: 2014
Note: New statistics will be available at the end of May for Nonemployer Statistics.
The number of single mothers living with children younger than age 18 in 2016, up from 7.7 million in 1985. Source: America’s Families and Living Arrangements: 2016, Table FG6 www.census.gov/data/tables/
The number of women ages 15 to 50 living with a cohabiting partner in 2015 who had given birth in the past 12 months. Source: 2015 American Community Survey, Table B13004 https://factfinder.census.gov/