Special Education Law Blog

Department of Education Revokes Discipline Guidance

In an ongoing effort to role back more progressive and supportive guidance the current Department of Education under Secretary DeVos revoked prior guidance and policy documents designed to protect students including those with disabilities. The National Center for Learning Disabilities has issued a statement in opposition to this revocation. The following is a response from COPAA, a national recognized special education advocacy organization, that I am proud to be a member:

Today, the bar for supporting and protecting our children has dropped to a new low. With the rescission of the discipline guidance, Secretary DeVos has communicated to our nation’s children with disabilities and children of color that they are not valuable; and, that the negative, disparate experiences they face at school do not matter. While it is unequivocal that revoking the guidance does not change requirements under the law and the statutory and regulatory requirements of Title IV and Title VI remain intact, today’s action ignores the facts and fails our most at-risk children.

The guidance was created to promote equity in how our students experience disciplinary actions and provided resources for school administrators to inform decision making and to prevent disparity based on race and disability. It also included explanations from the U.S. Departments of Justice and Education about the well-defined processes they would use to investigate cases of discrimination under Titles IV and VI.

The guidance has helped school districts develop programs to incorporate a range of strategies that reduce challenging behaviors, maintain a safe learning environment, and keep kids in school. The guidance also provided a measure of accountability within federal jurisdiction.
 

Today, however, it’s clear the rescission is targeting the removal of both the guiding support for school districts as well as the public commitment from the federal government that would assure students civil rights are protected. The Administration is now choosing to hide how legal obligations will be fulfilled.
 

COPAA is aware there are many educators striving to implement policies and programs to positively support students and reduce disparity; soundly designed with the needs of students and school leaders in mind. We stand with and encourage all school and district leaders who are committed to systems based on mutual respect, grounded in evidence-based educational practices and whose focus is to create safe, inclusive and positive educational environments.”

Marshall concluded, “Unfortunately, the rescission is likely to foster the growth of racially discriminatory practices where implicit bias and other negative factors disproportionately impact students with disabilities and students of color, including the use of abusive practices such as seclusion and restraint. To mitigate the impact of the hardened action from Secretary DeVos, COPAA renews its commitment to stand up for children. We’ll do so by continuing to fulfill our mission; specifically, we’ll take every necessary step to hold the Office for Civil Rights and the Department of Justice accountable for the civil rights of the children we protect and serve.”

The Department of Justice and the Department of Education withdrew the following statements of policy and guidance:

• Dear Colleague Letter on Nondiscriminatory Administration of School Discipline dated January 8, 2014; and
• Overview of the Supportive School Discipline Initiative dated January 8, 2014.
  
  Additionally, the Department of Education is withdrawing the following related documents:
  

• Guiding Principles: A Resource Guide for Improving School Climate and Discipline,dated January 8, 2014;
• Appendix 1:S. Department of Education
• Directory of Federal School Climate and Discipline Resources, dated January 8, 2014;
• Appendix 2: Compendium of School Discipline Laws and Regulations for the 50 States, Washington D.C., and Puerto Rico, dated January 8, 2014; and
•  School Discipline Guidance Package FAQs, dated January 8, 2014.

 

Chicago Public School's Home Bound Policy Ordered to Be Changed

At our office we have had an ongoing battle with Chicago Public Schools creating its own set of rules for when they will provide home bound instruction. They frequently make up rules under the heading "that is not the way we do things here in Chicago." I have come to calling CPS the "Republic of Chicago," as it appears they do not believe they are still part of the federal system of laws including IDEA. Several months ago, my associate Julie Welsh, filed a complaint with the Illinois State Board of Education challenging CPS's refusal to provide home bound services for a Download 1834_0001 student with mental health services because an MD doctor signed off on the request (as required by law) but not his psychiatrist (not a requirement of the law). The attached is the decision from the state investigators not only finding in our favor on this specific case, but ordering CPS to make a systemic change in how they address requests for home bound services. CPS will need to draft new policies for delivery of home bound services, train staff of the new policies and document implementation of the new policy.  Santa came a little early this year and we could not be happier for the client and for they systemic changes that Julie was able to bring about for other families in Chicago.

Threat Assessment Plans and Students with Special Needs by Charles P. Fox and Marilyn Green-Rebnord

It has happened again--yet another school shooting in our country with multiple fatalities.  This shooting is the 16th school shooting this year, an average of about one every week.  Parents and teachers are terrified, students are marching, politicians are offering thoughts and prayers, and administrators are struggling with how to protect our nation’s students.  We can anticipate over the next few days that someone will proclaim that the latest violence is the result of a “sicko;” we could not, however, predict that incoming NRA president Oliver North would blame the shootings on a culture of violence and all of the boys who have been on Ritalin since “their early years.”  Comments such as this only serve to increase the stigmatization of students with mental health issues or special needs. We must not let this happen.  The purpose of this blog is not to address the need for commonsense gun laws.  Instead, it focusses on addressing other strategies that can help prevent school violence, such as threat assessment plans, and recognizes what does not work, such as profiling of students with special needs (a la Oliver North).  

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. 

Gender Identity and Special Needs

The Trump Administration’s February 2017 reversal of an earlier Obama decision ensuring that transgender students under Title IX should be allowed to use the school restrooms of the gender to which they identify has thrown school policies with regards to gender identify into flux. The February 22, 2017 “Dear Colleague Letter” stated that the earlier Obama position had wrested the primary responsibility of devising education policy from the states and local school districts. Despite its unhappy conclusion, the letter reiterated the need for protecting transgendered students from both bullying and harassment. It is highly questionable, however, if those words have any actionable meaning.

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.

School Choice Not Protective of Students with Special Needs

The following is a press release from COPAA regarding a recent study of school choice regarding students with special needs. It confirms what I have suspected for some time that school choice is largely ineffective for students with special needs and requires serious changes to provide meaningful benefit to all students, including those with special needs. In my view, school choice is thrown around like a political slogan without full consideration of the systemic effects of school choice and the effect on individual students especially those with special needs.

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.

Accommodating Migraines in a Student's Education

It seems that there is an increasing trend that more students are having trouble going to school and staying in class as a result of have migraine headaches. One of the unfortunate consequences for children and teenagers who suffer from chronic headaches, or more specifically migraines, is that they miss a lot of school days.  When this happens, the family and school need to work together, with help and support from the student’s medical team, to find a balance where the student can attend school as often as possible, plan for when he or she is unable to attend, and ultimately help the student make progress in his or her academic program. 

Unfortunately, this fine balancing act can become very contentious.  Although some school districts seem to recognize the medical validity of school absences due to migraines, in worst cases other school districts call truancy officers. There does seem to be an increas in district becoming more leary of medical notes for conditions that are not readily observable.  Even in those cases where school districts recognize that accommodations need to be made, where and how these students will be educated can become the subject of dispute.  A recent court case validates the efforts of a Pennsylvania school district to educate a high school student with refractory migraine headaches who had a 504 Plan by enrolling him in a “cyber school.”  The family argued that their son should have been on an IEP where he could have received additional supports and services to help him attend school.  Additionally, the family claimed that enrollment in a cyber school denied their son FAPE, or a free appropriate public education, because the cyber school was not the least restrictive environment. The family’s claims, however, were ultimately rejected by the court, which found that given the student’s inability to attend school and the school district's well-documented and numerous attempts to accommodate the student, the “cyber school” was his least restrictive environment and an appropriate placement.

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.