Special Education Today

The federal Department of Education has published another Notice of Proposed Rulemaking (or NPRM). These will become federal regulations unless the DOE is persuaded by public comments to make changes. This may sound esoteric, but it is very important in the realm of special education law. Federal regulations have the force and effect of law unless overturned by a court of competent jurisdiction. Moreover, under general principles of administrative law, the commentary surrounding the reasoning for the regs is also entitled to some deference.

The new regs relate to consent and lay representation of parties at due process hearings. There are also changes regarding monitoring and allocation, but I'm only going to discuss the two major topics. The consent regulations are being changed to permit parents whose child is already receiving special education and related services to revoke the consent. In this situation, the school district would no longer be able to invoke the procedural safeguards, eg. mediation or due process hearings, to override the lack of consent. Proposed 34 CFR Sections 300.9 and 300.300.

The lay representation reg also represents a change in the DOE's interpretation of the law. OSEP had previously taken the position that lay advocates may represent parents in due process hearings, including asking questions of witnesses, cross-examination, filing briefs, etc. The Department has now backed off that position. Instead, it repeats the statute to the effect that a parent may be accompanied and advised by an advocate at hearing, but that whether parents have the right to be represented by non-attorneys at due process hearings should be determined under state law. Proposed 34 CFR Section 300.512(a)(1).

The proposed regulations may be found at http://www.ed.gov/legislation/FedRegister/proprule/2007-2/050907a.html

You can, and really should, submit comments on the proposed regulations at http://www.ed.gov/legislation/FedRegister/proprule/2007-2/050907a.html

In the docket ID column on that website select ED-2007-OSERS-131. It is important that all concerned submit comments to the Department concerning the proposed changes. The comment period ends on July 28, 2008. Any comments must be received by that date.

We ran a post last week about disability discrimination involving a school inclusion choir. It is interesting how people watching the same event can see many different things.

We have heard from some folks this week who don't think that there was any discrimination at this event. They tell us that there were two choirs, one for grades 6 to 9 and one for grades 10-12, and that the vest was the uniform for one age group- not the uniform for nondisbaled peers. They also say that one whole choir sat down for the second song, not just the kids with disabilities. Moreover, they assert that many of the kids in both choirs had disabilities that may not be visible, such as LD or hearing impairment, so that it would be impossible to visually identify them.

I'm not sure I understand why one choir had to sit down during a performance, but this explanation would negate any discrimination. If there was no discrimination, I apologize for calling it such. Obviously, if I didn't miss discrimination, I wouldn't feel so bad.

I'd like to investigate this matter further. I'd like to hear from others who were at this event about what they observed. Was there disability discrimination? Maybe a dialogue about what happened at this event and how it is being perceived would be a the beginning of a larger dialogue about the treatment of people with disabilities in this country. The presidential campaign this year has opened dialogues on the issues of race, gender and religion. Maybe we should also think some about disabilities. What are your thoughts on this topic?

The federal Ninth Circuit Court of Appeals has issued a decision in Forest Grove School District v. T. A., No. 05-35641 (April 28,2008) that holds that a student need not first receive special education services before his parents may be awarded reimbursement for tuition for a unilateral placement. The court could have distingusihed this case as an eligibility case, but NO, instead it chose to align itself with the Second Circuit and its decision in Tom F. There is some very good language in the opinion about the equitable powers of courts, and presumably hearing officers, under the Burlington decision to remedy violations of denial of FAPE. You can follow the reasoning of the Ninth Circuit decision at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F83F9960BF554187882574390057E776/$file/0535641.pdf?openelement

You may remember the Board of Education of the City of New York v. Tom F. nondecision by the United States Supreme Court last October. The Court affirmed the decision of the Second Circuit by upholding the ruling that a parent of a student with a disability may seek reimbursement for a unilateral placement in a private school even though the student never received special education services from the public schools. The decision of the court has no precedential value outside the Second Circuit because Justice Kennedy recused himself and the remaining justices deadlocked 4 - 4. A copy of the one page decision may be found at http://www.supremecourtus.gov/opinions/07pdf/06-637.pdf

The First Circuit has reached the contrary conclusion. Some special ed law pundits have pointed out that one must periodically consult a map of the federal circuits to determine what the law is where they are. They decry the lack of consistency and certainty.

In the broader context though , special education law is new law. When lawyers talk about new law, we mean anything that didn't travel over on the boat from England. Special ed law began in the 1970's. It is brand new law. Like other kinds of new law, there is a certain amount of public policy mixed in with congressional mandates and judicial and administrative decisions. One won't find many hornbook rules as in, say, contract law. Because special ed law is new law, however, these sorts of stops and starts are to be expected. They may, in the long run, be good. While I sympathize with teachers and principals who are trying hard to implement rules that we cannot even get the federal circuits to agree upon, I, nonetheless, believe that these things are necessary as this new body of law grows. So fasten your seat belts and place your tray tables in their upright positions. Hopefully, the oxygen masks will not be necessary.