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