Special Education Law Blog

Parental Guidelines for Access to Athletics, Field Trips and Extracurriculars

Parents frequently raise issues about schools denying access or failing to accomodate students who need support to participate in non-academic parts of the school experience including field trips. Frequently, children who require aides during the school day are told that staff is not available for after school activities, thus resulting in their exclusion from these school-sponsored events.  Similarly, parents of children with disabilities are often told that unless they accompany their child on field trips, the child cannot attend. (I have experienced this situation many times during my son's time in school) Some students who require nursing care during their school day as part of their IEP are also excluded from after school activities or field trips unless a parent accompanies the student or serves as the nurse.  In the event of a nurse's absence during the school day, some of these parents are even told that they are responsible for providing nursing care or the student will need to stay home that day.  These situations are predictable and schools need to make plans or they may be in violation of the law.  In fact, the Office of Civil Rights of the Department of Education (OCR), which oversees and investigates discrimination complaints involving the rights of students with special needs in schools, found that the above listed incidents were in fact 504 violations—either of failure to provide access or denial of FAPE.

Schools Must Ensure that Web-based Content is Accessible

The issue of accessibility of web-based content is fairly new, given that the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973 pre-date the internet boom and the growth of innumerable emerging technologies that school districts are rapidly incorporating into their educational programs today. But as more and more schools adopt online learning, as enrollment in virtual schools increases, and as complaints from students with disabilities escalate, it is becomingly increasingly clear that schools need to determine the accessibility of new technologies before their adoption. Accessibility should not be an afterthought.

Your Child's Right to Inclusion: LRE revisited

In an editorial that appeared in The Wall Street Journal a year ago, school district attorney Miriam Kurtzig Freedman  challenged the practice of inclusion of special needs students in regular education classrooms because of her belief that the presence of some of these students is compromising the education of their non-disabled peers.  More specifically, Ms. Freedman urges parents of children without disabilities to speak out about how children with special needs are “short changing” the education of their children.  The reasons for inclusion, according to Ms. Freedman are based more on “civil rights and social justice” and not on “best education practices.”  The practice of inclusion is “entrenched” and “politically correct.”  Ms. Freedman’s argument, if heeded, would set back the right of disabled children to a free appropriate public education by more than 30 years.

Programming for Twice Exceptional Students

Although it seems almost a contradiction, children can be both gifted and have special needs, such as learning disabilities.  Yet, because of their unique blend of talents and challenges, these students, known as “twice exceptional” or 2e students, can be difficult to identify and diagnose.  Often their combinations of intelligence and special needs mask each other, leaving the child performing at grade-level.  Other 2e children have been identified as learning disabled with teachers who may be unaware of the student’s high cognition.  Conversely, those students who are identified as gifted but not LD may fail to meet their potential, leaving them underperforming, frustrated, and often with significant emotional issues.  School districts may label these students lazy or unmotivated, and it can be difficult for parents to convince schools that the student has a disability that is affecting their performance in school. 

 “Giftedness” is not recognized as a disability under the Individuals with Disabilities Education Act (IDEA), and it can be difficult for some families to obtain special programming for gifted children.  Where families live can make a difference.  According to the National Association for Gifted Children, only about half of states (28 in 2008-2009) had a mandate to identify gifted children.  How many of these states go further to identify those students who are both gifted and have a disability is unclear.  Some states, such as Colorado and Idaho, have clear policies with accompanying guidelines on their websites.  The National Association for Gifted Children has an interesting web page that provides data on gifted education by state, which parents may find useful.

It's Time for Individuals with Disabilities to Vote

Given the current environment where the rights of a segments of society to vote is being limited and challenged, it is especially important to examine the rights of people with disabilities to vote. While often an overlooked and ignored segment of society, people with disabilities need to make their voices heard in the political process. As President Bill Clinton expressed in his nominating speech on September 5, 2012, this election will have a significant effect on the health care and educational rights of all citizens but especially the most vulnerable among us which obviously includes people with disabilities. Make no mistake voting for the Ryan budget and overall plan will have a permanent and regressively harmful effect on my clients, my son, families of children with disabilities and many people who I care about. It is time to register all people with disabilities and to in fact vote. We must be active  citizens in the political process.

ACLU files suit in Michigan

The Michigan ACLU has taken the unprecedented step of filing a class action lawsuit in July against the Highland Park School District, the state of Michigan, and other governmental entities for failing to teach the students in the Highland Park School District how to read.  Kary Moss, executive director of the Michigan ACLU, said “This is not a pro or anti-charter case. . . This is not a pro or anti-teacher case.  This is not a pro or anti-emergency manager case. This case, simply put, is about the right of children to read, a right guaranteed under the constitution and laws of this state.” 

 The ACLU has carefully jockeyed to buttress its argument that the right to read is a civil right for the students in Michigan. Although the ACLU acknowledges that state courts have not recognized education as a fundamental right granted by the Constitution, the ACLU points out that the Supreme Court has referred to education as “not merely some governmental benefit which is indistinguishable from other forms of social welfare legislation.”   Additionally, the Michigan Supreme Court has declared that “education is perhaps the most important function of state and local governments,” and the Michigan Constitution “imposes an obligation” on the state to offer a free public elementary and high school education. 

Lack of Consideration of Inclusive Preschools a Persistent Issue

Despite the fact that there has been much litigation with parents prevailing on the issue of inclusive preschools and much guidance from the Department of Education, this issue continues to be very prevalent. Schools persist in their lack of understanding that simply offering an self-contained early chldhood placement does not discharge their LRE obligations. More than 700,000 preschool children in this country, or 6.4% of the preschool population, have been identified as having special needs.  And research has made it clear that many of these children will benefit from inclusive preschool placements where they can learn with and from their non-disabled peers.  Four reviews of the literature undertaken since 1980 indicate that children with special needs placed in inclusive settings make at least as much progress on standardized measures of cognitive, language, motor, and social development as children in self-contained special education settings. According to researchers, inclusive placements afford preschool children with special needs learning opportunities that they will not have in a non-inclusive setting.  In addition, some researchers feel that placement in non-special education settings is simply the right and ethical thing to do for these children and their families.

Bullying: The Sad Reality

Back in 2010, Education Secretary Arne Duncan convened a “bullying summit” in which he characterized bullying as a “gateway to hate,” which when left unchecked, could escalate into further violence and abuse.  The Department of Education was announcing a shift in its approach to this issue by reframing bullying as a civil rights issue in which the federal government would take a more proactive role in investigating, enforcing, and monitoring compliance of school districts. To that end, the Office of Civil Rights expanded its data collection and for the first time gathered data on bullying related to racial, sexual, or disability harassment.  The OCR recently released data on the 2009-2010 school year.  The data, which were gathered from 85% of the nation’s schools, or 7000 school districts, revealed some surprising results.  Of the 20 largest school districts in the country, 14, including the public school systems of New York City and Los Angeles, had absolutely no reports of bullying or harassment. 

Restraint and Seclusion, Opposing Viewpoints

The Department of Education recently released the new Civil Rights Data Collection that analyzed equities and disparities in educational opportunities in our nation’s schools during the 2009-2010 school year.  Data were gathered from 72,000 schools, or roughly 85% of students.  Among the data examined was the frequency with which students were secluded or restrained.  Almost 70% of the 38,792 students who were restrained during the past calendar year had disabilities, although students with disabilities comprise only about 12% of the student population.  African-American males, who make up only 21% of the student population with disabilities, represented 44% of those students restrained.  And finally, although approximately half of students with disabilities are male, 70% of students with disabilities who were restrained were male.  According to TASH and other disability groups, the data are sobering.  TASH characterizes the use of restraint and seclusion as an issue of “national significance,” which leads to “traumatic physical and emotional harm, and even death.”  In a press release, Barb Trader, the executive director of TASH, states, “Our students need equitable access to education and protection for their personal safety under the law, and clearly that’s not happening for students with disabilities or those from diverse backgrounds.  It is a national tragedy that any child, especially the most vulnerable, is not safe in school.”  

Documentaries Accurately Portray Disability-Related Issues

Although there have been recent complaints that both actors and characters with disabilities are underrepresented on television, two excellent documentaries about disabilities have aired in the past year.  Journey into Dyslexia, which appeared on HBO in May of 2011, profiles students and adults who have dyslexia.  According to the HBO web page, many of the adult professionals who struggled to learn in school now consider their dyslexia a gift and a defining reason for their successes.   Critics called the straightforward interviews with the persons with dyslexia, including children, the most powerful part of the documentary, which was made by Academy-award winning filmmakers Alan and Susan Raymond.  Among those interviewed are a professor at Johns Hopkins University, inventors, entrepreneurs, and consumer advocate Erin Brockovich.  Additionally, the HBO website accompanying this documentary is rich with information on dyslexia. Another documentary from the Sundance film festival on dyslexia is called The D Word.