Tuesday, August 29, 2017

How Are The Circuits Interpreting Endrew F? Some Preliminary Indications # FAPE

We have written here a lot about the new Supreme Court decision in Endrew F that clarifies the FAPE standard. One reader expressed some uncertainty about the facts and ruling in Endrew F.  To ensure that we all have a handle this important decision, we will be repeating our previous posts about the new Supreme Court decision.

In the meantime, we have stated that the true meaning of Endrew F will be fleshed out by the courts and hearing officers below. Here are some preliminary published circuit decisions interpreting the Endrew F FAPE standard. I believe that the preliminary fig leaf readings indicate that the Circuits may read the supreme court clarification differently. Are you aware of other interpretations? So what do you about the way Endrew F is being applied so far?

                         a. Fourth Circuit: ML by Lieman v Montgomery County Board of Education 117 LRP 33077 (4th Cir 8/14/17) The Fourth Circuit ruled that a school district did not deny FAPE where a student’s IEP did not include instruction in the customs and practices of Orthodox Judaism. The Fourth Circuit notes that the FAPE standard that it had been applying prior to Endrew F was quite similar to the “merely more than de minimis” standard applied by the Tenth Circuit and rejected by the Supreme Court. The Fourth Circuit did not reach the question of the FAPE standard, however, because the court found that IDEA does not provide the relief sought by the parents under any standard. The Court ruled that IDEA does not require schools to provide religious instruction, and citing the language from Endrew F concerning “progress appropriate in light of the child’s circumstances,” the court found that the circumstances that are relevant involve the student’s disability and not his faith or culture.  Because IDEA does not guarantee any particular outcome, the Fourth Circuit held that FAPE had been offered and affirmed the denial of reimbursement.

                              b. Eighth Circuit: IZM v Roesmount-Apple Valley-Eagan Public Schs, Independent Sch Dist No 1 70 IDELR 86 (8th Cir 7/14/17) Eighth Circuit ruled that a state statute regarding Braille instruction did not raise the bar for FAPE. The Court noted that IDEA does not guarantee that a child make any progress. The court acknowledged the “progress appropriate in light of the child’s circumstances,” language from Endrew F, and noted that the new standard by the Supreme Court was consistent with its ruling that the school district had provided FAPE even though not all of the student’s instructional materials were provided in Braille despite reasonable efforts to do so.

c.  Ninth Circuit: MC ex rel MN v Antelope Valley Union High Sch Dist 858 F.3d 1189, 117 LRP 21748 (9th Cir 5/30/17) Although the Ninth Circuit did not apply the Endrew decision, remanding the question instead to the District Court, the Ninth Circuit gave some serious hints as to how it may interpret the high Court’s clarification: “Recently, the Supreme Court clarified Rowley and provided a more precise standard for evaluating whether a school district has complied substantively with the IDEA: "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F., ... In other words, the school must implement an IEP that is reasonably calculated to remediate and, if appropriate, accommodate the child's disabilities so that the child can "make progress in the general education curriculum," id. at 3 (citation omitted), taking into account the progress of his non-disabled peers, and the child's potential. We remand so the district court can consider plaintiffs' claims in light of this new guidance from the Supreme Court.” {emphasis added}

Monday, August 28, 2017

Weekly Question!

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

Wednesday, August 23, 2017

Breaking: NCES Issues Report On Public Schools in The United States #NCES

The National Center for Educational Statistics of the Institute of Education Sciences  issued a report yesterday. The report Characteristics of Public Elementary and Secondary Schools in the United States: Results From the 2015–16 National Teacher and Principal Survey.  The "First Look" examines descriptive statistics and basic information from the national survey. it provides a fresh look at public schools in the United States.

The report includes a wealth of information about public schools. You can read the entire 46 page report here.

Here are some interesting selected findings of the report: 
• During the 2015–16 school year, there were an estimated 90,400 K–12 public schools in the United States, including 83,500 traditional public and 6,900 public charter schools. These schools served nearly 49.3 million students, with about 46.2 million in traditional public schools and another 3 million in public charter schools. Between the 2011–12 SASS and the 2015–16 NTPS, the number of public charter schools increased from 4,480 to 6,900 (Bitterman, Gray, & Goldring 2013) (table 1).
 • About 99 percent of public schools had at least one student with an Individual Education Plan (IEP) because of special needs. Additionally, 76 percent of public schools had instruction specifically designed to address the needs of English language learners or limited English proficient students (table 2).(emphasis added)
 • Nationwide, about 21 percent of public schools offered at least one course entirely online. This was more common among public charter schools (29 percent) than it was among traditional public schools (20 percent). Offering one or more classes that were entirely online was much more common among high (58 percent) or combined (64 percent) schools, and very small (45 percent) or very large (44 percent) schools than for all public schools (21 percent). Among schools offering online courses, relatively more public charter schools offered all of their classes online (14 percent) than traditional public schools (5 percent) (table 3). 
• Including full-time and part-time staff, public schools employed an estimated 124,420 school counselors, 66,320 psychologists, and 44,920 social workers. They also employed 96,440 speech therapists and 84,020 nurses, as well as 73,580 librarians/library media specialists and 80,920 instructional coordinators and supervisors. In addition, public schools employed a variety of full-time and part-time aides, such as 483,590 special education aides. These schools employed 400,830 food service personnel, 332,270 custodial and maintenance personnel, 66,110 technology specialists, and 260,310 secretaries and other clerical support staff (table 4). (emphasis added)
 • About two-thirds (66 percent) of public schools had teachers or staff with specialist or academic coaching assignments. 2 Among public schools, 78 percent of primary schools, 60 percent of middle schools, 45 percent of high schools, and 50 percent of combined schools had teachers or staff with these assignments. Relatively fewer small schools had such staff, including only 30 percent of schools with less than 100 students and 53 percent of schools with 100 to 199 students in comparison to all public schools (66 percent) (table 5). 
• Overall, 59 percent of public schools had instruction beyond the normal school day for students who need academic assistance. Relatively more charter schools (65 percent) provided this instruction than traditional public schools (59 percent). This type of instruction was most frequently provided in schools with 1,000 or more students (72 percent), middle schools (68 percent), and city schools (68 percent) than for all public schools (59 percent). Additionally, 43 percent of all public schools had instruction beyond the normal school day for students who seek academic advancement or enrichment. Again, relatively more charter schools (50 percent) provided this than traditional public schools (43 percent) (table 6).
 • The average start time for public schools was 8:10 a.m. Nationally, only about 4 percent of schools had start times before 7:30 a.m. This early start was more common among schools with 1,000 or more students (14 percent) than all public schools (4 percent). It was also substantially more common among high schools (10 percent) than among primary (2 percent), middle (7 percent), or combined (4 percent) schools (table 7).

Monday, August 21, 2017

Weekly Question!

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

Friday, August 18, 2017

Charlottesville, White Supremacy and Kids With Disabilities #Enough Already

Earlier this year we ran a post asking whether special education was in trouble? Perhaps this week it would be better to ask- Is America in trouble?

White supremacists and nazis marched on Charlottesville, Virginia last weekend. They carried lit torches and screamed at and terrorized local people. They murdered one counter-protester and two state troopers also died as a result of the event.  Nineteen other innocent people suffered injuries as a result of the Alt-right riot. The new and apparently emboldened white supremacists no longer feel that it is necessary to cover their faces with hoods. The accounts are disgusting and difficult to read. Here is one;  here is another. The television program Vice did a documentary on the organizers and the riot- available here.

White supremacists, nazis... really? I  thought that we as a country were past this kind of nonsense. As a country, we fought a war against nazis and white supremacists in World War II. Many of us have family members who were killed or wounded in WWII fighting white supremacists and nazis. How did we get to this point? This was terrorism by extremists. Indeed, the nation can only weep.

What we believe as a country- our core values- are summed up in the Declaration of Independence, the document written by Tomas Jefferson that justified our separating from the English empire. You know the words: "We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights- that among these the right to life, liberty and the pursuit of happiness." That's what makes us American. The very top of the list is that we are all created equal! There is no place for these extremists in this country. We must all loudly and clearly condemn and repudiate white supremacists and nazis. To be clear, I am not advocating that the government silence these groups; even these despicable jackasses have first amendment rights to free speech. But the rest of us also have free speech right to call out these extremists for what they are. This is truly a no-brainer.

Also this is clearly not a political issue with two sides. The one is is disgusting and Unamerican. The other side is one of the things that makes this country great.

OK so now comes the part about people with disabilities. Those who are blinded by hatred, based upon race or gender or ethnicity often also hate people with disabilities. Those who can only think in ugly stereotypes also discriminate against disabled people. The United States Congress passed a law in 1973, now known as section 504, that prohibits discrimination, including discrimination against people with disabilities. Because discrimination against people with disabilities continued to be a big problem, Congress passed the Americans with Disabilities Act in 1990. School children with disabilities are disciplined by their schools at a disproportionately higher rates. Kids with disabilities are frequently victimized by bullies because of their disabilities. If you care about kids with disabilities, you must take a position. We must fight against this rise of hatred and intolerance; the alternative is to tolerate hatred and discrimination, including hatred and discrimination  against people with disabilities. Enough already.

At this most trying time, we should all take a long look in the mirror and recall the words of Dr Martin Luther King, Jr. who said, 'It may well be that we will have to repent in this generation. Not merely for the vitriolic words and the violent actions of the bad people, but for the appalling silence and indifference of the good people who sit around and say, 'Wait on time.'"

And finally here are some resources we hope that you might be able to use:
If you are an educator, NPR has compiled some resources for teachers to use in the wake of Charlottesville. Education week has some additional resources for teachers concerning this topic.

For parents and grandparents, here are Nine tips for talking to children about traumatic events.

If your clergyperson is having a difficult time preparing a Charlottesville sermon, here are some ideas. Here are some other ideas on a similar topic.

If like many others you are upset and don't know what to do: Here are six things that everybody can do in the wake of the Charlottesville nightmare. And some suggestions about what to do from the Nation. Four more things to do from PRI. And sixteen more things to do.

Monday, August 14, 2017

Weekly Question!

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

Thursday, August 10, 2017

Special Education Law 101 - Part XI #compensatory education

This is another in our continuing series on the basics of special education law.    If the parents (or adult student) win a due process hearing, the two most common types of relief are compensatory education and reimbursement for a unilateral placement.  Today we will take a hard look at the former remedy.

Compensatory Education

Reid ex rel Reid v. District of Columbia 401 F.3d 516, 43 IDELR 32 (D.C. Cir. 3/25/05).  The D.C Circuit developed a qualitative standard for awards of compensatory education in order to place disabled students in the same position they would have occupied but for the school district’s violation of IDEA.  The court rejected the hearing officer’s calculation awarding one hour of compensatory education for each day of denial of FAPE.  The court also rejected the parents’ request of one hour of compensatory education for each hour of denial of FAPE.  Instead, the court adopted a more flexible approach based upon the needs of the child who has been denied FAPE.  For example some students might require only short intensive compensatory programs targeting specific deficiencies.    Other students may require more extended programs, perhaps requiring even more hours than the number of hours of FAPE denied.  Accordingly, the court remanded this matter for the submission of evidence as to the student’s deficiencies resulting from the denial of FAPE. 

The other standard method for calculating compensatory education is a more quantitative method providing an approximation of the lost number of days of FAPE and awarding tutoring (or other compensatory services) based upon that calculation minus the time it reasonably should have taken the school district to learn of the denial of FAPE. See the  Third Circuit decision in MC v. Central Regional Sch Dist 81 F.3d 389, 21 IDELR 389  (3d Cir. April 17, 1997).

Another  important issue involves delegation.  Bd of Educ of Fayette County, KY v LM ex rel TD 478 F.3d 307, 47 IDELR 122 (6th Cir. 3/2/7) It is inappropriate for HO to delegate the type or amount of compensatory education to the IEP team.

Particularly in discipline and behavior cases, I look for hearing officers to award restorative relief, that is, compensatory education that includes staff training in restorative justice or restorative practices. See, by analogyLarimer County Sch Dist, Poudre (CH) No. 2015:510 (SEA Colo 7/14/15) A state complaint investigator issued a decision requiring the school district, that had failed to comply with IDEA discipline requirements, to provide training to its staff - including training on alternatives to traditional discipline- including restorative justice
Many fairly recent compensatory education awards have been creative:  Draper v. Atlanta Indep Sch System 518 F.3d 1275, 49 IDELR 211 (11th Cir. 3/6/8)  The Eleventh Circuit specifically approved of aprivate school placement as a form of compensatory education where the school district continued to use an ineffective reading program for three years despite the student’s failure to make progress. Park v. Anaheim Union High Sch. Dist. 106 LRP 23543 (9th Cir. 4/17/6).  The Ninth Circuit affirmed an award of compensatory education by a hearing officer in the form of requiring training of two of the teachers who implemented the student’s IEP.  The hearing officer phrased the award as compensatory education for the student in the form of training for his teachers in order to meet the student’s needs. P by Mr & Mrs P v. Newington Bd of Educ 546 F.3d 111, 51 IDELR 2 (2d Cir 10/9/8) The Second Circuit affirmed an award of compensatory ed by a HO that required the school district to hire an inclusion expert for a year and to permit him to participate in the development of an FBA for the student; District of Columbia Public Schs  111 LRP 71480 (SEA DC 5/22/11) Where violation was failure to update IEP and resulting behavioral issues HO awarded as comp ed school district funding of summer camp suited to address emotional issues; District of Columbia Public Schs  111 LRP 75901 (SEA DC 8/21/11) Where psychologist testified that student needed behavior therapy, HO awarded behavioral support services as comp ed;  District of Columbia Public Schs  111 LRP 25934 (SEA DC 3/18/11) HO awarded computer software and a speech/language evaluation in addition to tutoring as comp ed;   Horizon Instructional System Charter Schs 58 IDELR 145 (SEA Calif 1/3/12) After finding a transition violation, HO ordered a vocational assessment to be followed by an IEP using the results, a mobility guide and a job coachMontgomery County Intermediate Unit  112 LRP 39052 (SEA Penna 7/3/12) HO awarded compensatory education plus a personal care assistant and an augmentative communication devicePasadena Independent Sch Dist 58 IDELR 210 (SEA TX 2/6/12) HO required as comp ed and as equitable relief that the district provide staff training to all SpEd teaching staff on teaching human sexuality appropriately to students with disabilities; IT by Renee & Floyd T v Dept of Educ, State of Hawaii  113 LRP 51351 (D Haw 12/17/13) Court held that compensatory education or relief can take the form of reimbursement for private tuition. The purpose of compensatory education is to put the student back in the position that he would have occupied had the district not violated IDEA.

Monday, August 7, 2017

Weekly Question!

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