Special Education Law Blog

COVID Requires Some Creativity from Schools

Many schools are and have not been creative in how they plan or deliver instruction for children with special needs. Under ordinary circumstances that is a problem. Today lacking in creativity is the difference between students with special needs getting something from their education and getting literally nothing. I have seen a wide gamut of responses to this pandemic. I have students in private programs that are getting almost a replica of their day through zoom or google or similar platforms. I think that is the exception and not the norm, and I am not sure why learning cannot occur this way for many students who can engage with video content. I have students who receive 1:1 lessons with their teacher in 20 minute blocks through video conferencing to cover special education content and videoconferencing for group work as well. This means of delivering content has worked well, and in the main the student is continuing to progress. Those are the exceptional cases.

Demonizing Parents: Orange County Special Education Alliance

That you can’t fight city hall is a time-honored truism, but how much harder does it become when different city halls join forces to fight you?  Parents in Orange County, California unfortunately are discovering just this fact as they advocate for services for their children with special needs.  Since 2005, 28 school districts plus the Orange County Department of Education have formed an alliance, which among other functions, contributes financially to school districts engaged in legal battles against parents. 

The Orange County Special Education Alliance was ostensibly formed to ally school districts in their ongoing campaign against parents. A single school district is a formidable opponent but fighting a coalition of districts that gives me a headache just to contemplate. Again lets remember they are not the victims of parents in the vast majority of cases.

Minority Students & Students with Disabilities Suspended at a Higher Rate

The Civil Rights Project (Proyecto Derechos Civiles) released a study in March demonstrating that minority students and students with disabilities are suspended at a far higher rate than their non-disabled or non-minority peers. At first blush, this is not news.  Other researchers have already documented these disproportionate rates, which have even been discussed in this blog.   But the new study, “Opportunities Suspended:  The Disparate Impact of Disciplinary Exclusion from School,” is different for two primary reasons. First, the authors, Daniel Losen and Jonathan Gillespie, use data from the Civil Rights Data Collection survey from the Department of Education, thereby providing the most comprehensive and exhaustive review of what is happening in our nation’s schools.  These DOE data are from 7000 schools districts and represent 85% of our nation’s students.  Second, the Civil Rights Project does not solely focus on the problem states or the problem districts that are suspending students at such horrific rates.  The study also provides the data for those states and districts that are not engaging in high suspension rates.  These districts have figured out how to keep students in school and engage them in learning.  These are the districts from which we need to learn. 

Retaliation Against Parents for Advocating: An Emerging Trend

Retaliation against parents for advocating on behalf of their special needs children with their school district is an unpleasant topic.  No one really knows how often retaliation occurs, but clearly it has happened frequently enough for parental advocacy to be protected by Federal statute.  Not only do Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) protect the disabled against discrimination, they also protect those acting on their behalf to ensure the rights of the disabled.  Specifically, Section 504, which references Title VI of the Civil Rights Act of 1964, states that recipients of Federal funds, which would include school districts, “shall not intimidate, threaten, coerce or discriminate against any individual for the purpose of interfering with any right or privilege secured by the Act, or because the individual has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part.”

Retaliation can be defined as “using official resources to ‘punish’ parents,” and it can take a wide range of forms from refusing to respond to emails or return phone calls, not allowing parents to view records, or continually canceling school meetings and conferences.  But sometimes the retaliation can be more sinister.  Anecdotally the internet is filled with stories of parents who claim their school districts have reported them to child protective services, filed truancy charges against them, or had restraining orders imposed on them, all as the result of their advocacy on behalf of their children. 

 

A New Bill Introduced in Congress Attempts to Combat Bullying

A congresswoman out of California introduced the Safe Schools Improvement Act during the week of April 11, the measure is meant to combat bullying. The Safe Schools Improvement Act (SSIA) would amend the Elementary and Secondary Education Act to require schools and districts receiving federal funds to adopt codes of conduct specifically prohibiting bullying and harassment, the bill would also require schools to collect data on incidents of bullying.  The SSIA would also require that states report data on bullying and harassment to the Department of Education.  Additionally, the SSIA would require that school districts establish and monitor performance indicators for the prevention of bullying and would have to inform parents of who in the district is designated to deal with reports of bullying. 

Bullying is an issue that we are seeing frequently in our office. Students have required hospitalization for the physical and mental health ramifications of bullying. It is an issue that schools are often ill-equipped or unwilling to handle. With the reason string of bullying-induced suicides this is a vital issue. The bullying seems to be occurring based on real or perceived differences including a disability. The SSIA would provide accountability for the schools who are often not doing enough to stem the tide of bullying. 

 

 

Special Education Administrators Polled about the Impact of the Economy on Special Ed

While it is not secret that the economic decline has affected all areas of the education system. A new poll recently showed how special education administrators are blaming the economy on problems that have been happening for years. It is apparent from our increasing call volume that the special education system is suffering. Special educators were polled in a national survey and pointed to budget cuts which force larger class sizes, layoffs and other changes that compromise their ability to serve students with disabilities. 

In the poll of 701 special education administrators from 45 states, nearly all reported that they are experiencing or expect to see an “increased strain on the availability of services” for students with disabilities, according to the Council for Exceptional Children, a professional organization for special educators, which conducted the survey.

The budget squeeze in most districts is inevitably challenging the special education departments, however it is not a reason to limit services, evaluations or to remove eligibility. This is what we are seeing in our office. School districts are using new techniques to remove services and supports or in the worst case scenarios, eligibility. The school districts are also using RtI as a long-term alternative despite the intention of RtI which is meant to be a short-term intervention/identification tool. This is a ploy by the school districts to limit the number of students who are eligible for special education services. OSEP recently came out with a memo directly contradicting this practice and cautioning school districts against overusing RtI and failing to evaluate students properly. Evaluations and standardized tests cannot be replaced by CBMs and classroom observations. The economy is a consideration but it should not be used as an excuse to not provide students with disabilities a FAPE. 

 

Death of Child in School Leads to Possible Liability

Imposing money damages on schools for violations of IDEA rights and other violations is far from easy. Parents are often dismayed to learn that very blatant and egregious violations of their rights will not support an action for damages.  Failing to provide services, prompt evaluation or implementation of the IEP are all bad, and can result in a hearing officer ordering compensatory education and reimbursement to the parents for relevant out of pocket expenses, but not damages. To reach the level where a court will allow a case for monetary damages to go forward the facts must be  "shocking to the conscience."

A tragic recent case from Detroit Michigan unfortunately helps illustrate what facts are shocking to the conscience. (See Shinn v. Detroit Public Schools, 09-13799, February 2, 2011 Download 4924_0001) A paraprofessional working with a student with CP and a seizure disorder berated the child, caused her to fall and have a seizure.  A witness stated that as the paraprofessional pushed the child she yelled "you know I don't like you." The child died a few days later following the incident.

Usually there are no witnesses who are willing to step up and testify, and the facts of these cases are not so lopsided. Too often there is an element of "he/she had it coming" when a student is injured at the hands of a staff member.  Cases where the court allows the case to go ahead are infrequent, albeit the number of students being injured in school unfortunately is not.

Illegal Holds, Restraint and Seclusion by Nicole T. Jorwic

Here is a message to school personnel "take your hands off the students!" I was recently at a school for a meeting for one of my clients. The meeting had gone well and I was exiting the building ready to get back to the office, when I was stopped in my tracks. I saw a young and small elementary student, who appeared to be a student with special needs, being "lead" by staff with his arms held behind his back. I also heard the offending staff saying to him "come on it's time to use the bathroom."

Seeing this sight caused my blood to boil, this student was much smaller then the staff that was manhandling him, and he was obviously in distress. I immediately said something to the staff, asking why they had their hands on the student, she retorted "who are you?" and I answered "a lawyer." The mention of the "lawyer" word (which I invoke sparingly), at least in the immediate instant, got the staff to unhand the student. I quickly explained that I was trained in the techniques that I assumed she was attempting to use and that the hold she was using was not one of the approved holds, but before she could answer I saw another, even smaller student being pulled even harder by the arm to go to the bus. At this point I was feeling like if I didn't get out of this school someone was going to have to restrain me! I calmly walked over to the new offending staff member and had a similar exchange. 

New Federal Hate Crimes Law Includes Disability

The Federal Hate Crimes Bill has been revised and signed into law. Among important changes to the law is that crimes that are related to a person's disability can be considered hate crimes.  It will be interested to see if this new law will act as deterrent to repeated acts of bullying, harassment and violence directed at individuals with disabilities. Given the the recent round of staff on student violence that has been reported in the press, this law is very timely.

Teacher Reassigned For Revealing IDEIA Violations

I always give enormous credit to courageous teachers who take positions against their interests, in favor or children, even at risk of their jobs or job assignments. Here is a recent article regarding a Brooklyn teacher who was apparently reassigned  to the "rubber room" (a term of art in New York Public Schools) for speaking out against violations of IDEIA in her school.