Special Education Law Blog

Finding the Appropriate Placement for Students with High Functioning Autism

The fundamental challenge in finding an appropriate placement for the student with higher-functioning autism or Asperger’s syndrome is meeting the child’s emotional or behavioral needs yet not short-changing him or her academically.  Notwithstanding the various challenges the student may have related to the disability, the student may likely be extremely bright.  Many day therapeutic day programs are well-equipped to help the student develop social skills and learn to maintain a sense of equilibrium, but many programs lack academic rigor for the student.

A recent due process case from Massachusetts recognized this placement tension for a student with Asperger’s whose parents had unilaterally placed him in an out-of-state private residential program that they believed better met his needs.  The hearing officer, in agreeing with the parents, stated that although the school district was not required to provide a program that would maximize the student’s potential to ensure FAPE, the school still needed to consider the student’s potential in order to determine whether or not he was receiving “meaningful benefit” from the IEP.  To be meaningful, the student must be able to progress, even when his potential is high. In this particular case, the student had challenges with reading fluency and poor social skills.  Additionally, he could be argumentative and withdraw socially.  Yet the student was very talented mathematically and desired to attend college where he would study math. The hearing officer stated that the placement proposed by the school failed to provide FAPE.  Although the program specialized in students with Asperger’s and could help with the social skills and learning issues, its three teachers, none of whom had content certification, could challenge the student academically.  The program, which was unable to offer students any science labs, had also not sent any students on to college. This relatively flexible view of the FAPE requirement is new twist and one that is not applied in all cases, making this case very interesting to see if it gets applied in other cases.

Senate Hearing on the School to Prison Pipleline

In December the U.S. Senate held hearings on ending the “School to Prison Pipeline.”  As discussed previously in this blog and elsewhere, the “school to prison pipeline” refers to exclusionary disciplinary practices (e.g., suspension, expulsions, or even arrests) resulting from blind adherence to zero tolerance policies, which critics harshly state criminalize otherwise normal behavior and are disproportionately used on minority and special needs students.  African American males are 3 ½ times more likely to be suspended or expelled than are their white peers, and students with special needs are twice as likely to be suspended or expelled than are their non-disabled peers. The Senate hearings, which were held before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights and chaired by Senator Dick Durbin, were the first ever held to address the overall question of school discipline and how it has gone so terribly wrong.  But perhaps more importantly, the hearings discussed what needs to happen to “plug” the pipeline.

So how many students are being suspended or expelled?  According to data collected by the Civil Rights Project and released last March, 3 million students were suspended from our nation’s schools in 2009-2010.  As graphically illustrated in the report, “Opportunities Suspended:  The Disparate Impact of Disciplinary Exclusion from School” and discussed in a previous blog, this is enough students to fill every seat at every major league ball park and NFL stadium in the country.  And for many of these students, suspensions or expulsions may be their entry into the school to prison pipeline.  According to a Texas study, students who are expelled or suspended are three times more likely to become involved with the juvenile justice system within the year.