Wednesday, May 24, 2017

Special Education Law 101 - Part IV #LRE

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)

 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

Weekly Question!

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

Wednesday, May 17, 2017

Breaking: NCES Report on Indicators of School Crime and Safety: 2016 #school safety

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

Weekly Question!

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

Saturday, May 13, 2017

Happy Mother's Day #mother's day

Happy Mother's Day!

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 Sunday in May as Mother’s Day.
How Many Mothers
43.5 million
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

3.9 million
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

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 S1301

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

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

Characteristics of Women With a Recent Birth
3.98 million
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

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

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

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

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

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

Mothers Celebrated
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)

The number of employees of greeting-card publishers in 2015. Source: County Business Patterns: 2015 (NAICS 511191)

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)

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)

Stay-at-Home Moms
5.0 million
The number of stay-at-home moms in married-couple family groups in 2016. Source: America’s Families and Living Arrangements: 2016, Table FG8

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)

Nonemployer Statistics: 2014

Note: New statistics will be available at the end of May for Nonemployer Statistics.
Single Moms
9.8 million
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


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

Friday, May 12, 2017

Special Education Law 101 - Part III #FAPE

This is another post in our series which is an introduction to special education law.  In the previous posts in this series we have looked at the sources of special education law and discussed the critical concept of FAPE.  Today we look at some important decisions by U. S. Courts of Appeal taking FAPE in some interesting directions:

In Deal v. Hamilton County 392 F.3d 840, 42 IDELR 109 (6th Cir. 1//16/04), the Sixth Circuit held that where the school district had already predetermined the student’s program and services before the IEP Team meeting, the parents were denied the opportunity to meaningfully participate in the IEP process.  Accordingly, the district denied FAPE for the student.   

 In Shore Regional High Sch. Bd. of Educ. v. P.S. 381 F.3d 194, 41 IDELR 234 (3d Cir. 8/30/04), the Third Circuit held that a school district’s failure to stop bullying may constitute a denial of FAPE.  Despite repeated complaints by the parents the bullying continued; the student became depressed and the school district developed an IEP.  The harassment continued and the student attempted suicide.  The Third Circuit agreed with the hearing officer that the unabated harassment and bullying made it impossible for the student to receive FAPE. (See our recent series on Bullying for a more detailed discussion.)

  In Lillbask ex rel Mauclaire v. State of Connecticut Dept. of Educ.  397 F.3d 77, 42 IDELR 230 (2d Cir. 2/2/05), the Second Circuit ruled that an IDEA hearing officer has the authority to review IEP safety concerns.  The court provided an expansive interpretation of the jurisdiction of the hearing officer, ruling that Congress intended the hearing officer to have authority over any subject matter that could involve a denial of or interference with a student’s

 In CF by RF & GF v New York City Dept of Educ 746 F.3d 68, 62 IDELR 281 (2d Cir 3/4/14) The Second Circuit held that a procedural violation is only actionable as a denial of FAPE under IDEA if it results in a loss of educational opportunity for the student or it seriously impairs the parent’s participation in the IEP process. However, in LO ex rel KT v NYC Dept of Educ 822 F.3d 95, 67 IDELR 225 (2d Cir 5/20/16) the Second Circuit clarified that the cumulative effect of multiple procedural violations (even if harmless themselves) constituted a denial of FAPE as in this case.

Monday, May 8, 2017

Weekly Question!

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

Saturday, May 6, 2017

Special Education Law 101 - Part II #FAPE

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

                The Requirement of  FAPE (free and appropriate public education)

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

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

     The IDEA defines “FAPE” as:

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

     The IDEA defines “special education” as:

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

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

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

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

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

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

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

            You can read the Rowley decision here.

              Recently, the Supreme Court clarified the FAPE standard in Endrew F by Joseph F v. Douglas County Sch Dist RE-1, # 15-827, 69 IDELR 174, 137 S. Ct. 988, 580 U.S. ______ (2017).  The Court held that 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.

             You can read our posts about Endrew F here, here, here and here.

Thursday, May 4, 2017

Breaking: GAO Suggests Transition At Age 14 For ASD Students #transition #ASD

The federal Government Accountability Office issued a report today concerning transition services for special education students with Autism Spectrum Disorders. Among the recommendations of the GAO is that the Department of Education consider reducing the age for transition services to age 14.

Here are some excerpts from the report:

"Students with disabilities are less likely than their peers to successfully transition to postsecondary education or the workforce, and youth with autism are even less likely to successfully transition than youth with other disabilities, according to recent research. When young adults with disabilities do not successfully transition out of high school, they may face a lifetime of continued reliance on public assistance, potentially leading to substantial costs to their families, the government, and society. Commonly known as autism, Autism Spectrum Disorder (ASD) is a group of complex developmental disorders characterized by difficulties with social interactions and communication, highly focused interests, or repetitive or ritualized behaviors... This report, which builds upon our recent work identifying this population’s needs examines (1) the types of services and supports provided at the local level to assist youth with ASD in transitioning to adult life, (2) the key challenges for youth with ASD in successfully transitioning to adult life, and (3) the extent to which key federal agencies have collaborated to assist youth with ASD in successfully transitioning to adult life...

According to the Centers for Disease Control and Prevention (CDC), about 1 in 68 children were identified as having ASD in 2012 (about 1.5 percent of 8-year-olds). ASD is a complex developmental disorder with characteristics that can range from mild to more pronounced (see fig. 1). Each autism characteristic may vary in type and degree from person to person and can fluctuate over time. The combination of characteristics results in a highly individualized condition, as illustrated in figure 2. To successfully transition into adulthood, youth with ASD need to be able to access services that are individualized, timely, equitable, and community- and evidence-based, among other things, according to a roundtable panel we convened in 2016 to examine the needs of transitioning youth with ASD. The panel also identified 14 key services and supports that may help youth with ASD attain the goals of education, employment, health and safety, independent living, and community integration as they transition to adulthood (see table 1).

Recent research analyzing the outcomes of youth with ASD suggests that they encounter obstacles to attaining their goals for adulthood. According to analysis of data from Education’s National Longitudinal Transition Study-2 (NLTS2), in 2009: • 36 percent of young adults with ASD had attended some type of postsecondary education institution. Of those youth, 32 percent had attended a 4-year college; 70 percent had attended a 2-year college; and 33 percent had attended a vocational, business, or technical school. • 19 percent of autistic adults in their early 20s had lived independently at some point, either with or without supports. Fourteen percent had lived in a supervised setting, such as a group home or medical facility, which may have provided services such as life skills education or vocational supports. The analysis further indicates that young adults with autism are less likely to live independently than youth with other disabilities, including intellectual disabilities and emotional disturbances. • About one-third of young adults with autism did not participate in any community activities, and one-quarter had not had any contact with friends for at least a year."

Among the recommendations of the GAO was: "To determine whether IDEA’s current transition age requirement allows youth with disabilities, including those with ASD, the time needed to plan and prepare for the transition to adult life, the Secretary of Education should examine outcomes for students when transition services begin at age 16 and the merits and implications of amending IDEA to lower the age at which school districts are to begin providing transition services to students with disabilities, such as 14." 

If you are involved with children with autism, you should read this report which includes a wealth of information. You can review the entire 70 page report here. A summary of highlights is also available.