Special Education Law Blog

Supreme Court Grants Review in Fry v. Napoleon

In what could be a very significant break though in the law, the Supreme Court agreed to review the 6th Circuit decision in Fry v. Napoleon. Fry was a case involving allowing a service dog in school and whether parents need to exhaust administrative remedies before going to court. Exhaustion means that parents need to pursue a case through the hearing process before bringing a case to court. Obviously having to litigate before an administrative tribunal that often has limited jurisdiction before being able to litigate issues in court creates a significant hurdle to  full adjudication. Here is the Justice Department's brief seeking review in the Supreme Court. Fry if decided for the parents may allow greater access to court for cases under ADA, 504 and IDEA. Stay tuned it is going to be interesting.

Is Google Illegally Spying On Your Student?

I am reprinting the following article that came to by way of google feed, ironic.

 

Is Google Illegally Spying On Your Students? New FTC Complaint Says It Is Posted: 08 Dec 2015 12:35 PM PST Google Apps for Education has recently come under fire with a Federal Trade Commission complaint filed by a nonprofit organization, Electronic Frontier Foundation. In a press release issued last week, EFF claims that Google’s “Chrome Sync” function allows it to mine student data in violation the Student Privacy Pledge signed by Google earlier this year. If true, EFF’s claims could establish not only a violation of FTC rules, but also a violation of federal and some state laws. Google denies that the claims have any merit, claiming that it strips all identifying information from Sync data before using it for non-school purposes, and that it does not improperly advertise or market to students. At this time, there has been no finding that Google’s actions violate its Pledge or any other state or federal law. Understanding the issues at play in this case is essential for school leaders, however, who are tasked with ensuring that school-supplied electronic devices, software, apps, and services comply with relevant state and federal student data privacy laws.

COPAA Statement on ESSA--Congratulations on Developing a Reasonable Compromise

WASHINGTON, DC – Denise Marshall, executive director of The Council of Parent Attorneys and Advocates, Inc. (COPAA) released the following statement regarding the Every Student Succeeds Act (ESSA) amending the Elementary and Secondary Education Act (ESEA).

“COPAA appreciates the bipartisan approach which Chairman Alexander, Ranking Member Murray, Chairman Kline and Ranking Member Scott led in order to complete reauthorization of the ESEA. COPAA has worked diligently – as an independent voice as well as in key coalitions with business, disability and civil rights organizations – to inform and support the legislative process to help ensure that every child continues to have equal access to a high-quality education as well as equal opportunity to achieve his or her full academic potential. We congratulate you on developing a reasonable compromise. Although we have concerns about certain provisions of S. 1177, we write to let you know that we support the conference report and urge its adoption.

COPAA believes the ESSA is stronger than ESEA waivers. It maintains a focus on student academic achievement with requirements to focus Title I dollars on the annual measurement, reporting and basic accountability for the achievement of all students. In particular, COPAA appreciates the emphasis on promoting access to the general curriculum for students with the most significant cognitive disabilities. Key provisions seek to prevent the overuse and abuse of applying alternate standards and utilizing alternate assessments through a required state-level participation cap on these tests. The cap will help states work with districts to ensure that only the students for whom it is appropriate are placed on a state’s alternate academic achievement standard and therefore tested via an alternate assessment.

COPAA also appreciates the new requirement for states to articulate a framework to support districts and improve school conditions by reducing bullying and the overuse of disciplinary practices and aversive practices (e.g. seclusion and restraint)--all of which national data show have a disproportionate impact on students with disabilities. We view this addition as an enormous step toward creating a positive school climate for all students.

We are concerned about the flexibility provided to states and districts regarding subgroup accountability.Without federally defined timeframes to guide the implementation of intervention, schools and districts now have to ensure the timely provision of evidence-based support. We worry that the long-held biases against students with disabilities will prevent quick action. Best practice has shown that, when held to high expectations and provided evidence-based instruction and intervention, the vast majority of students with disabilities can work at grade level alongside their peers. Student subgroups who struggle to meet state standards must be closely monitored, and teachers must receive the training and support necessary so that students can make adequate gains.”

Marshall concluded, “Thank you for your bipartisan leadership and partnership to complete the work on ESSA. We will strive to promote every tenet of ESSA that will fully support students in their journey to obtain a quality public education and achieve high standards with their peers.”

Employment and the Disabled: Extent of the Problem

I am publishing a series of blogs on employment related to people with disabilities. This is the first of 4 posts. The Code of Federal Regulations states that the purpose of the Individuals with Disabilities Education Act of 2004 is to prepare students with disabilities for further education, employment, and independent living (CFR 300.1[a]). So what happens for students with disabilities once they either receive high school diplomas or complete their transition programs?  Are they employed?  Are they under-employed?  What kind of incomes are they earning?  We, and our children with disabilities or those students for whom we have advocated, have all worked too hard, exerted too much energy, and shed too many tears to have everything we’ve struggled for end when the school bus no longer picks up our children.  We need to look at what we are preparing our loved ones for once they no longer receive special education services.  With these thoughts in mind, we are exploring in different blogs what the employment outcomes are for persons with disabilities.  Although some of the data is extremely discouraging, there are bright spots that we can all hope will translate to rewarding careers/work lives for our loved ones with special needs.

Abuse of the Developmentally Delayed

A sad story came out of California in 2012 regarding developmentally delayed adults living in residential centers. Over a four-year period, 36 patients at California’s “board-and-care centers” for the developmentally disabled had claimed they had been raped by caretakers.  And yet, their reports were ignored by the Office of Protective Services--the state police force tasked with protecting residents of group homes--and were never referred to the local police for investigation. Officers failed to order even a single rape examination, which is critical for successful prosecution of alleged offenders.  At least one alleged offender was accused of later raping yet another patient.  Additionally, hundreds of cases of abuse and unexplained injuries among the state’s 1500 patients who live at the five developmental centers have been reported, but few arrests have been made. This report highlighted a particularly ugly truth:  individuals with disabilities, both children and adults, are at a far greater risk of physical or sexual abuse and neglect than are non-disabled persons.

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.

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.

Teaching Critical Skills to Become a Learner Not Just a Student

That standardized test scores can accurately predict whether a student will attend college, be gainfully employed, and be successful in life have become the bulwark of educational policy in this country.  How kids “measure up” on tests are linked not only to teacher performance evaluations, but also to determinations of whether or not a school is considered successful or a failure under No Child Left Behind. But standardized tests don’t tell the whole story about a student.   In fact, some researchers now argue that a student’s grades are better predictors of overall success in life than standardized scores.  Those seemingly intangible factors which keep a student in school and persevering—resilience, self-control, and grit--may be far more important in the long run than short-term mastery of course content.  

Romney’s Educational Vouchers a Disaster for Special Education Students

Schools are not like private corporations. Governor Romney’s goal to privatize, voucherize, and let the market determine winners and losers is simplistic. The reality is we do not have to wait to project that under his system special education students will be losers. To be clear, I advocate on a regular basis in appropriate cases for students to be tuitioned out to private schools with their IEPs intact, even if that school is more restrictive because it has what the child needs to receive a FAPE.

 As a primary part of his education platform, Republican presidential candidate Mitt Romney is proposing a pro-choice, pro-voucher system that will allow parents to choose which schools their children can attend.  Romney is arguing that market forces and competition will force improvements in public schools.  Additionally, Romney is proposing to allow federal Title I and IDEA funds (which will also likely be cut) to become “portable” for low income and special needs students.  These funds would follow the students to any district or public charter school, private school where permitted by state law, or toward tutoring or online courses. In theory, these proposals sound wonderful.  Who wouldn’t want their children, both regular and special education, to go to the best possible schools?  These proposals, however, could be disastrous for special education students.