Special Education Law Blog

School Shootings and Students with ED by Charles Fox and Marilyn Green-Rebnord

COPAA, the Council of Parents, Attorneys and Advocates, released a statement after the Parkland shootings urging us not to use yet another school shooting tragedy as an impetus to marginalize students with emotional issues and mental illness but to remind us that school districts need to address these students’ issues.  School districts are mandated under the IDEA to both identify and provide services to students with mental health issues under the classification of Emotional Disturbance.  These students need help; they don’t need to be pushed out or excluded from school due to their occasionally very problematic behavioral issues. 

Will New Tax Bill Result in Education Cuts?

The dust has begun to settle since the passing of last month’s tax bill, which is informally known as The Tax Cuts and Jobs Act.  Being neither an accountant nor a tax specialist, It’s difficult to discern what remains in the final passed version of the bill, given that many of the Senators and Representatives who voted for the hastily passed legislation seem surprised by some of the contents. Yet, we must try to understand what the impact of the bill will be on educational matters. 

The Not So Neutral Effect of the End of Net Neutrality On Our Schools

The current round of tax "overhaul" legislation and repeal of net neutrality rules will have wide ranging and mostly negative effective on students with disabilities. This blog is the first in a series of blogs on the effects of these legal changes on students and others with disabilities. On December 14, 2017, the Federal Communications Commission (FCC) voted to repeal an Obama-era regulation that ensured net neutrality.  The Restoring Internet Freedom Order, which had been implemented in 2015 to prevent the blocking, throttling, or paid prioritization of content on the internet, was designed to ensure that use of the internet was a right and not a privilege. The effects of the net neutrality repeal have left many educators and advocates deeply concerned about its impact on education, both at the K-12 level as well as higher level education.  Shockingly, the FCC itself appeared to have not weighed these considerations.  Several senators noted by letter prior to the December 14^th vote that the 210-page proposal from the FCC never even mentioned the word “student” or “students.”

Ms. DeVos: Here Is The Trouble with Vouchers

According to the September 2015 47^th Annual PDK/Gallup Poll of the Public’s Attitudes toward the Public Schools, only 31% of Americans favor allowing vouchers to be used to pay for private and religious schools.  Numerous other polls show higher ratios supporting use of vouchers, particularly for low-income students in failing schools, for whom many existing voucher programs were initially designed.  Currently, 14 states have voucher programs, all of which are funded by the states.  Only schools in the District of Columbia use federal funds for voucher programs.  Regardless of whether you support or oppose the use of vouchers, with the advent of the educational policies of Betsy DeVos and a Trump administration, we are rapidly and inexorably slouching toward the use of public funds to pay for private and religious schools through the use of vouchers.  

Getting Informed for the Presidential Election 2016

I have always adhered to the adage that reasonable people can reasonably disagree, whether it is in the context of an IEP meeting or even our current political debate.  With this in mind, I discussed in a recent blog how some of the issues in the current political elections may affect persons with disabilities but did so without taking a position on specific candidates. This blog is not partisan.   I now want to go further and discuss how each candidate’s website, platform, or public statements (Democrat, Republican, or third party) details his or her proposals for how they will address issues related to disability.  My goal is not to persuade readers to vote for one specific candidate but to ensure that readers are informed about the various positions espoused by candidates.

I’m also a strong proponent of not re-inventing wheels, and I quickly discovered that this research has already been done well by other disability-related websites.  Complex Child, which is devoted to the needs of families of children with complex medical conditions or disabilities, culled from the websites of each candidate—Clinton, Johnson, Stein, and Trump—five different categories or issues:

• Disability rights
• Medicaid, insurance, and the healthcare system
• Special education
• Community living (including Medicaid waivers)
• Specific condition plans (such as autism)

Complex Child compares how the different campaigns address, or in a number of instances, don’t address the highlighted issue.

Similarly, the American Association of Persons with Disabilities (AAPD) and the National Council on Independent Living (NCIL) provided a written questionnaire (REV UP—Register! Educate! Vote! Use your Power!) to each of the presidential candidates, of whom only Secretary Clinton and Mr. Trump responded. The candidates were questioned on:

• Leadership
  • possible creation of National Office of Disability Coordination to be headed by a cabinet level official
  • inclusion of qualified persons with disabilities in your administration
• Employment of persons with disabilities
  • Rehabilitation Act
  • Fair wages
  • Entrepreneurship
  • Transition for youth with disabilities
  • Ensuring appropriate flexibility in pubic program to support people with disabilities in the workforce
  • Advancing the civil and constitutional right of Americans with disabilities to be integrated in society
• Transportation
  • Public transportation
  • Transportation networking companies
  • Autonomous vehicles
  • Air Travel
• Technology
  • Section 508 of the Rehabilitation Act
  • The Internet of Things
• Education
  • IDEA funding
  • Curriculum and transition
  • Eliminating bullying and the use of restraints and seclusion
  • Educational inclusion of people with disabilities
• Voting
• Affordable, integrated and accessible housing
• Health care
  • Discrimination in financing and provision of health care services to people with disabilities
  • Expanding access to affordable, comprehensive health care coverage
  • Improving the Medicaid program, including ensuring access to home and community based services and the elimination of bias toward institutional services in the Medicaid program

Please review the candidate responses to the REV UP survey to understand more fully the degree of substance and experience each candidate demonstrates.

If you are looking for a more partisan discussion of issues related to this election, my colleague Maureen Graves, a special education attorney in California and fellow member of COPAA (Council of Parents, Attorneys, and Advocates), has published Disability Advocates 2016.  Ms. Graves’ website espouses a specific agenda not only for the next presidential election (she only discusses Secretary Clinton and Mr. Trump and not the third party candidates) but also critiques candidates for Senate races.  Additionally, Ms. Graves rigorously argues how the outcome of the presidential election will affect our entire court system and not just the Supreme Court.  Ms. Graves highlights Clinton and Trump’s attitudes, often in their own words, on such issues related to disability as:

• Health care
• Rights vs. charity
• Special education
• Autism
• Employment
• Social security
• Environment
• Consumer protection
• Law enforcement

I personally think these websites provide reasoned and fascinating information that can help us not only view the election through the lens of disability but also educate us more fully on disability-related issues.   If you have a different and documented perspective on any of the candidate’s positions on these issues, I would greatly welcome reading it.  Please contact me and if appropriate, I will upload that information to my own blog.   

 

Best Cities for Persons with Disabilities

Where to live in future years is an issue never far from my mind especially living in Illinois that ranks close to the bottom for services for people with disabilities. Download Case-for-Inclusion-2016-FINAL-3. For families that do not have a loved one with a disability, it may be a matter of where we are raised or where our extended family remains.  Others locate their homes based upon where the job is. Weather or access to seasonal outdoors recreation is paramount to others.  But according to WalletHub, a personal finance social network, and as many of us know, families with members who have disabilities have a rather different set of criteria for determining where we want to live.  WalletHub attempted to quantify which of the nation’s most populous 150 cities is the most “Disability-Friendly” by looking at three chief areas:  economics, quality of life, and health care.  From here, an additional 25 specific criteria were weighted and considered.  And the winner is. . . . Overland Park, Kansas. 

Realistically, none of us is packing up and moving to Overland Park this week as the result of this survey.  But the survey does give each of us food for thought as we consider what is truly essential to us and our families.  In doing their calculations, WalletHub ascribed different weights to each of their 25 criteria.  Those criteria that were doubly weighted—employment rate for people with disabilities, percentage of persons with disabilities living below the poverty line, median earnings for people with disabilities, or cost of a doctor visit--are clearly important to all of us.  Surprisingly, only two of the criteria related to education—number of special education teachers per 1,000 school-aged population with disabilities (ascribed full weight) or graduation rate for students with disabilities (ascribed only half rate, which I would personally rate much higher).  Truthfully, each of us might measure the criteria differently based on our needs. 

The meat of the survey comes not from the 25 different criteria, but the five indicators that each of a panel of experts identified as essential in determining how favorable a city is for persons with disabilities.  Not surprising, many suggestions overlap with one another.  Experts cite the need for:

• Medical care provided by professionals knowledgeable and sensitive to the needs of the disabled
• High level of personal care providers
• Community integration
• Private agencies to provide expert supervision of housing and day programs
• Strong advocacy organizations
• Accessible and affordable housing
• Employment First state
• State expanded Medicaid accessibility under Affordable Health Care Act
• Direct support work force
• Transportation
• Accessibility, accessibility, and accessibility
• And my personal favorite--well supported state and local public schools

It’s fun to know that Pembroke Pines, FL has the lowest percentage of persons with disabilities living below the poverty level or that Boise, ID can boast (or not boast) of having the lowest employment rate for persons with disabilities.  But moving forward, and for determining policy, WalletHub has assisted in identifying discrete policy areas that need improvement.  So, I need not leave my home town of Chicago, which rated 78 of 150 cities, nor should residents of Providence, RI (148), Anchorage, AK (149), or Worcester, MA (150) start packing.  We simply are now clearer as to where to begin our community advocacy.  These are serious issues for many of us that are not easily resolved, and may involve significant relocation especially, as we face ultimate issues like parental mortality and what location will help insure high quality of life for our loved ones with a disability.

 

It is Time for People with Disabilities to Show Their Collective Power Through Their Votes

Persons with disabilities now represent the single largest minority group in our country’s electorate. According to a report from the Rutgers School of Management, 35.4 million people with disabilities, which represents one sixth of the US electorate, are eligible to vote.  When family members of the disabled are included, the number of Americans affected by disability swells to 62.7 million.  The disabled community needs to identify as a voting bloc they can wield huge power in the electoral process, but to date that has not necessarily been the case. 

It’s scary to contemplate the disabled community not exercising its right to vote.  Given that one fifth of Americans overall have disabilities, we need to ensure that entitlement programs such as Medicaid and Social Security Disability remain protected.  We also need to strengthen the educational rights of the 2.8 million school children in our country who require special education services.  Persons who have disabilities are twice as likely to be victims of violence compared to persons without disabilities.  Additionally, one-third to one-half of persons who die at the hands of the police have mental health issues or other disabilities.  For all these reasons plus many more, persons with disabilities must vote to protect their interests.

By authorizing the Help America Vote Act (HAVA) of 2002, the federal government has made efforts to ensure the accessibility of polling places. More than 45 technological and administrative solutions have been developed to assist with voter access.   Should a polling place be physically inaccessible, election judges can bring a ballot to the voter curbside as long as the voter is within 50 feet of the polling place.  Voters who are blind and visually impaired must have non-visual accessibility.  At least one direct responding electronic (DRE) voting system, which provides a touchscreen, along with at least one election judge familiar with its use, must also be available in each polling place.   Here in Illinois, Equip for Equality has federal funding to assist those with disabilities have access to the voting process.

It has been an ugly and brutal presidential election cycle.  It is time for all voters who have disabilities to take a good hard look at the candidates, as we are in the home stretch. I purposefully do not express my political views in this blog or in other social media. Suffice it to say, that viewing the websites and conduct of each candidate, should readily inform voters with disabilities and their loved ones with all they need to vote with knowledge of who will support their interests. Register, vote and let our power as a community be felt.

 

 

Top Jobs for the Disabled

This post is the third in the series related to employment for people with disabilities. All too many of the students I represent have unrealistic career goals.  Students who have never been on a Little League baseball team think they are going to play in the major leagues, and students obsessed with their electronics blithely think they will be video game designers although they have no idea of how competitive and challenging the field is.  No one wants to torpedo a child’s hopes, but we need to help them develop realistic and attainable goals that will lead to a meaningful life and hopefully self sufficiency.  But what are the jobs that will help them achieve these goals?     

We’ve already established in other blogs that persons with disabilities are either frequently unemployed or underemployed.  We also know that disabled workers earn less money than their non-disabled counterparts.  (According to the 2006 American Community Survey the median income for persons with disabilities was $17,000 versus $28,000 for workers without disabilities.)  The US Bureau of Labor Statistics (BLS) has identified the 10 largest occupations in which 21% of the labor force work as well as the mean incomes in these fields:

• Retail salespersons--$25,760
• Cashiers--$20,640
• Combined food preparation and serving workers, including fast food--$19,110
• Office clerks, general--$30,820
• Registered nurses--$69,790
• Customer service representatives--$33,890
• Waiters and waitresses--$21,640
• Laborers and freight, stock, and material movers, hand--$27,180
• Secretaries and administrative assistants, except legal, medical, and executive--$34,500
• Janitors and cleaners, except maids and housekeeping cleaners--$25,460

Excluding registered nurses, the mean annual wage for these occupations ranges from $19,110 for combined food preparation and serving workers to $34,500 for secretaries and administrative assistants, except legal, medical and executive.  Compare this average salary to the mean average salary for all occupations of $47,230.  

We don’t actually know what percentage of workers in these particular 10 job areas is disabled.  But we do know from other BLS data that persons with disabilities are more likely to work in production, transportation, and material moving occupations than workers without disabilities (15% compared with 12%).  Workers with disabilities are less likely to work in management, professional, and related occupations than workers without disabilities (31% compared with 39%). 

So which career paths will help our family members achieve economic security and independence?  Tony Lee, who publishes the online job listing and advice site CareerCast, did the research for us and provided a list of well paid jobs with strong growth outlooks that would be appropriate for employees with disabilities.  Mr. Lee started by scrutinizing the top 200 of the most populated jobs as compiled by the Bureau of Labor Statistics.  From there, these jobs were examined for not only for income and growth potential, but also for other factors that could represent either positives or negatives for job seekers with disabilities.  For instance, how competitive the job or field is, the degree of physical demands required by the position, or other such stressors as amount of required travel, deadlines, physical risks, or degree of social contact were all considered from the perspective a disabled job seeker. 

In no particular order, Mr. Lee arrived at the following list of Best Jobs for Persons with Disabilities along with their average salaries, which were published in Forbes and on CareerCastDisability (Best Jobs for Candidates with Physical Disabilities) (the lists and salaries are slightly different in the two publications):

Accountant/auditor                         $64,000

Management consultant                   $78,600

Market research analyst                   $60,300

Pharmaceutical sales                       $56,620

Vocational counselor                        $53,610

Pharmacy technician                        $29,300

Physician assistant                          $90,930

Software engineer                           $85,430

Wholesale sales rep                         $74,970

Financial analyst                              $76,950

Pharmacy technician                        $29,300

Computer support specialist             $49,000

According to Mr. Lee, some of these jobs may be appropriate for disabled workers because they may place few demands on social skills, such as software engineers.  Other positions may benefit greatly when filled by an employee with a disability.  For instance, a vocational counselor with a disability may be uniquely qualified to counsel other clients with disabilities.  This list, though clearly not encompassing of all potential careers, provides guidance for vocational planning for students with disabilities.

Now that we have identified a number of well-paying positions that may be appropriate for persons with disabilities, we need to discuss next what skills are needed for persons with disabilities who are looking at these positions, which will be a subject of a different blog.  It is not enough to possess technical competence to get a job.  Unfortunately many qualified workers with special needs find that their disabilities interfere with both their job searches and ability to keep a job despite their qualifications.  Thus, we need to create a different game plan.

 

 

Miranda Rights and Your Child

Although I am a special education attorney and not a criminal defense attorney, occasionally I receive phone calls from parents who are angry and concerned because their child has been questioned or searched by school officials for disciplinary infractions or worse. Occasionally these incidents involve school resource officers or police, particularly when drugs or alcohol are involved. Fundamentally, these parents want to know:  were my child’s legal rights violated?  Can my child be questioned by the school or police without my knowledge or consent?  Can my child or his or her possessions be searched? This issue comes up a lot and all too often with serious consequences for the student. Schools play on their authority and make false promises to induce "confessions" even from student with language-based disabilities. Criminalization of school students especially those with special needs is large issue that has not been effectively addressed.

The Debate on Reauthorizing NCLB

With a Republican controlled Senate and a Republican controlled House, it appears likely that the Elementary and Secondary Education Act (ESEA), first enacted in 1965 and re-authorized as the No Child Left Behind Act (NCLB) in 2001, may finally again be re-authorized.  Sen. Lamar Alexander, chairman of the Senate Health, Education, Labor and Pensions Committee (HELP) and Representative John Kline of the House Education and the Workforce Committee have both released new versions of the bill for consideration in this Congress.  But because these bills appear to be watering down many of the accountability provisions of NCLB and lowering expectations for students, civil rights groups and advocacy groups are very concerned about the effect of these bills on disadvantaged students or those with special needs.