Monday, July 17, 2017

Weekly Question!

How will courts and hearing officers interpret Endrew F? #FAPE

Saturday, July 15, 2017

Special Education Law 101 - Part IX #discipline

This is the most recent post in the continuing series that is meant to be an introduction to special education law.  In today's post we will be discussing discipline of students with disabilities.  People often ask why disciplinary actions are regulated by the special education law.  The reason is that before passage of the law's predecessor, it was common for school officials to exclude children with disabilities by expelling them and giving them long suspensions. This series of abuses was reflected in the legislative history of the law.  
Discipline is one area that seems to cause folks to develop stomach problems (sorta like the rule against perpetuities in law school), but it isn't really as hard as we seem to make it.  Let me know if this explanation helps.

                                                   Discipline Issues

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

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

              Another cardinal rule in the discipline area is that regardless of whether the conduct of a student was a manifestation of the student’s disability, where a student with a disability is removed from his current placement, the schools must continue to provide educational services to ensure FAPE for the student and to enable the student to continue to participate in the general curriculum although in another setting.  IDEA, § 615(k)(1)(D). See generally regarding discipline issues, 34 C.F.R. §§ 300.530 – 300.537. 
                The Supreme Court dealt with discipline issues and endorsed the stay put provision in the case of Honig v. Doe 484 U.S. 305, 108 S.Ct. 594, 559 IDELR 231 (1988). In that decision, the Supreme Court, noting the Congressional intent in preventing the exclusion of disabled students and reiterating the importance of the procedural safeguards under the IDEA, refused to read a dangerousness exception into the stay put provision. The high Court outlines the history of abuses of the discipline of kids with disabilities in that decision.
 In District of Columbia v. Doe ex rel Doe 611 F.3d 888, 54 IDELR 275 (DC Cir 7/6/10) DC Circuit ruled that HO did not exceed his authority where he reduced a disciplinary suspension. HO reduced a 45 day suspension to an 11 day suspension noting the trivial nature of the infraction and finding that the more lengthy suspension denied FAPE to the student.

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

In an interesting development, two district courts 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

Weekly Question!

How will courts and hearing officers interpret Endrew F? #FAPE

Friday, July 7, 2017

Special Education Law 101 - Part VIII #transition

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


              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

Independence Day #independence

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

Weekly Question!

How will courts and hearing officers interpret Endrew F? #FAPE