Special Education Today

25 February 2010

Who Votes for This Clown? Virginia Legislator Refers to Kids with Disabilities as a Curse.

450 mm by 450 mm (18 in by 18 in) Handicapped ...Image via Wikipedia



One has to wonder about our electoral system. Exactly how does a person get elected to public office? I have read a lot recently about the Supreme Court's extreme judicial activism in relation to its shredding of the campaign finance laws. Is the result that our elected representatives are now truly the finest that money can buy?

My current discontent with all things elected is attributable to a Virginia state legislator, Delegate Robert G. Marshall (R. Prince William). He recently made a speech against Planned Parenthood and during his address he said that subsequent children born to women who have abortions are more likely to be "handicapped" because of vengeance and punishment from God. Here is the Washington Post story.

The logic here is stunning. This guy apparently believes that kids with disabilities are a curse. Has he ever met a kid with a disability? How could he possibly think this? I'm not so interested in the gotcha moment as I am in the underlying, and truly dark, belief about people with disabilities that this argument reveals. This was not a casual misuse of the "R" word, it was an insight into a way of thinking about people with disabilities that I thought that we as a society had outgrown. I'm shocked.

The people who write the special education laws on the state level are, unfortunately, people like this guy? Am I right to be worried?


24 February 2010

Title I funds to be Tied to Higher Standards

Barack Obama delivering his electoral victory ...Image via Wikipedia



President Obama told the National Governor's Association this week that it is not acceptable that American eighth graders rank 9th in the world in math and 11th in science. He told them that states are going to have to up their games, and he informed them that Title I funds (part of the Elementary and Secondary Education Act, better known as No Child Left Behind) will be linked to states adopting higher standards, either as a part of the movement for common standards or on their own in conjunction with state universities. Here is a news article from the Los Angeles Times.

The proposal has already met with opposition. For example, the influential National School Boards Association has adopted a position criticizing the proposal as coercion. Here is their press release.

How would the President's proposal affect kids with disabilities? What do you think?


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9 February 2010

House committee Passes Seclusion & Restraints Bill

WASHINGTON - OCTOBER 13: Rep. George Miller (D...Image by Getty Images via Daylife




The Committee on Education and Labor of the House of Representatives approved a bill limiting the use of seclusion and restraints on students. Here is the official release. The official name of the bill is H.R. 4247. Here is website with additional resources concerning the bill. An article in Disability Scoop also discusses the legislation

Among other things, the bill limits the use of these techniques to cases of imminent danger; requires that staff using these techniques be properly trained; outlaws mechanical restraints; requires parental notification and establishes oversight mechanisms.

The legislative effort follows the GAO report last spring that detailed a ton of abuses of school children, most of whom were children with disabilities. The GAO study followed a similar report by the National Disability Rights Network entitled "School is Not Supposed to Hurt."

The bill now moves to the full House for a vote. If you care about this issue, please call or write or email your Representative in the House. This website will help you find and contact your Congressperson.


1 February 2010

Charters: Students With Disabilities Need Not Apply?

NEW YORK - MARCH 30:  Teacher Shawn Abernathy ...Image by Getty Images via Daylife


That is the title of a very good op-ed piece that recently appeared in Education Week by Professor Thomas Herir of the Harvard School of Education. Here is a link. I want to thank professor Herir for giving me permission to quote from his article in this blog.

Here is a quote:
"With the Obama administration and many state governors calling for more charter schools, it may be time for policymakers to address directly the issue of these schools’ imbalanced enrollment of students with disabilities.

The enthusiasm for charter schools, which was also high during the administrations of Bill Clinton and George W. Bush, reflects the desire of many parents to have choice within the public system. This desire has only been heightened by research showing superior results obtained by charters.

In a performance comparison of Boston charter school students with those not admitted, for example, Harvard University professor Thomas J. Kane found that the students attending charters outperformed their peers at traditional public schools. His research, however, was designed with the recognition that charter students are different along some critical, perhaps immeasurable, dimensions from students attending traditional schools. This is especially true in relation to students with disabilities: Traditional public schools are serving far greater numbers of them than charter schools, particularly those whose disabilities require significant special education services."


The article then goes on to cite a number of studies that show that students with disabilities are under-represented in charter schools. This is disturbing and brings to mind the recent post on these pages about the law review by Professor Mark Weber regarding some issues with charter schools and kids with disabilities. As the political support for charters increases, we need to keep a vigilant eye on how charters are welcoming and educating kids with disabilities.

What has your experience with charters been like?


18 January 2010

Assistive Technology: The New Big Thing or Not?


I thought that when IDEA was amended to require assistive technology in the 1997 amendments that a large explosion in gadget litigation was on the horizon. I predicted cottage industries in specific gizmos. When I learned about interactive whiteboards, I thought that many children with disabilities would benefit. Here is an example of how whiteboards can be used. This is an eSchool News article on whiteboards. Better yet, here is a video of how whiteboards (a combination of chalkboards, the internet and some kind of Cajun magic) work. There is even a federally funded center on Technology and Disabilities.

As often is the case, however, my crystal ball was a bit,... er foggy. There have been some developments but very little caselaw. I'm not sure why.

No Technology in BrightonImage by Sammy0716 via Flickr


I just came across a study in the American Journal of Occupational Therapy that concludes that assistive technology is a more effective intervention than many others. An abstract of the study may be reviewed here. Unfortunately, one must "purchase" the entire study. If any of you do purchase it, please consider recycling it to me if that is not an intellectual property law violation. I'd like to read it.

In any event, what has been your experience with AT? Is it being used? Is it working? Am I just jonesing for a fight for no good reason? Has there been any litigation out there?


14 January 2010

Alexa Posny Interview – Part VIII





My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the eighth in a series of occasional posts concerning the interview over the next few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

In this post, Dr. Posny talks about the assessment of children with disabilities for NCLB purposes and related issues:

JG: Okay. That's interesting. Yeah, I didn't see the connection there to that before, but I think that's very interesting. Another thing they (the principals association) proposed was that for students with disabilities, for purposes of the AYP and NCLB-type data, that they be assessed at their instructional level rather than their grade level. How do you react to that?

AP: Well, okay, that would be all well and good, if the kids have really been taught at their instructional level to the best of their ability. The fear of some is that we're going to not expect as much from them again, if we don't do that. I think the idea is - - you know, I understand exactly what they're talking about because I'm the one who is the big proponent behind the 2%. Okay? What I refer to is the 2% assessment because I do think that they're a number of our kids who aren't at grade level, they're not. I mean, it's in the light of their disability. The issue and what the concern of the field is right now is, if we go back and open the Pandora's box again, are we going to have too many that aren't going to be pushed, you know, not to that level? And that's why I'm saying, if we can come up with a way of doing the growth model and being able to establish the potential growth for every child, really and truly do that, then I think we've go a model that would work and then, I agree with them. But we've gotta come up with that model.

JG: You're not satisfied with what's been proposed under the growth model so far is what I'm hearing.

AP: Well, no. I'm not disagreeing. It's the state of art and the research we have, it's so limited. That's all I'm saying. And I look at what the Fuchs have done out of Vanderbilt and I think that there's great merit in what they've got, but we need to expand this and just have more information. But I am all for student growth model, absolutely, as long as we know that it is honing kids to their highest potential possible and that's the key. How do we establish that trajectory and how do we know that it really is challenging for every student and that we're not low-balling it?

JG: And you mentioned the 2% and again, do you think that those exceptions for children with cognitive disabilities are big enough to cover the numbers - -

AP: Yes.

JG: Yes.

AP: Oh, absolutely.

JG: Okay.

AP: Oh, yes. And then that's because we put it in place in Kansas in 1998. So - - and I know people are saying, well, where'd that number come from? I mean, for us, that number has been more than sufficient.

JG: Okay.

AP: I do. But do we have enough research on it? Absolutely not.

JG: Okay.

AP: Yeah.

JG: Yeah. I have wondered where the number came from and I've heard parents of children with severe disabilities sort of claim that no child left behind has not been so good and I hear parents of children with relatively mild disabilities claiming it's the best thing they've ever seen.

AP: Yes.

JG: Do you think that's fairly true? Has it been better for kids with mild disabilities - -

AP: Well, I do because so many states did not develop the 2%. You know, they automatically have to be in general ed and they're putting a lot of time, effort and energy into making sure that happens. I think what we're hearing - - first of all, I think there's confusion in terms of the 1%, long before the 2%. I think there are a number of kids who are not significantly cognitively disabled who may have been put into the 1% or on the other hand, they were put into general and that's not appropriate and my typical example is a child who we have referred to as mentally retarded, in the past, who chronologically is a fifth grader but is really operating at a first grade level. That child does not belong in the 1%, not at all. That's the child I was trying to get at in terms of the 2%.

JG: Okay.

AP: Okay? But still, we need to push them. So, they'd be in grade level content. Yes, but it's going to look different. Okay? It's going to be at the lower end of the continuum when you think about the sequence of learning.


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7 December 2009

Nominate Somebody Special for the JoLeta Reynolds Award

education dept.Image via Wikipedia



Do you know a special educator or administrator who does a great job? If so, you should consider nominating her or him for the JoLeta Reynolds Award. JoLeta was a policy analyst for the federal Department of Education. She essentially rewrote IDEA in 1997, and she had a big impact upon the 2006 regs. She is also one of my favorite people, and she has generously helped my special education consulting career in countless ways.

In her honor, an award has been established. You can nominate people for the award here. All nominations must be received by January 18, 2010.

My nominee for this award won last year. Dee Ann Wilson runs the mediation and due process hearing systems in Iowa and she is a pioneer in the facilitated IEP movement.. She also has a JoLeta sized heart when it comes to kids with disabilities. I have been lucky enough to work with her. Congratulations again Dee Ann. I can't wait to learn who will win this year.

If you know a great special education hero, nominate her for this award.



4 December 2009

Big Interview Next Week: I’m Really Excited

interviewImage via Wikipedia



OK, I'm officially excited. I get to interview Dr. Alexa Posny, the Assistant Secretary of Education for Special Education and Rehabilitative Services, for this blog next week. This is a big deal! And you made it possible by reading and subscribing to the special education law blog. Thanks guys.

Although I probably have more questions than I can use in the allotted time, I still welcome your ideas and thoughts about the interview. One cannot be too prepared can one? Please keep sending me your input and suggestions.

For some more background on the new Assistant Secretary who was formerly the Kansas Education Commissioner, I have included a couple new links. Here is the official biography of Alexa Posny. Here is a newspaper piece on the new Secretary by the Topeka Capital Journal.

My plan is to run the interview over a number of posts in the blog. It may take a while to get the posts together and published, but they will be here. So stay tuned for more.


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12 November 2009

Changes to IDEA – Principals Weigh In; What Changes Would You Make?



It is time to begin thinking about what changes you would like to see in the special education laws. IDEA will be reauthorized soon. I know that Congress has been busy with a lot of other stuff, but it is eventually going to come up. In our great democracy, the laws should reflect the input of the people. Too often though, the special interests, who are organized and who have political action groups and paid lobbyists and big time financial contributions, are the only ones communicating with members of Congress and the Administration regarding changes they would like to see in the law. I'd like to change that pattern.

The readers of this blog are a diverse group of special education stakeholders. They include: special education teachers, regular education teachers, students who will become teachers, parents of kiddos with disabilities, special education directors, hearing officers, school administrators, advocacy group members, lawyers for school districts, lawyers for parents, children with disabilities, adults with disabilities, law professors, law students, related service providers (like school psychologists and speech/language pathologists), paraprofessionals (like aides), professors of special education, employees of the technical assistance network, feds (like OSEP staff), state education staff, mediators, ALJs, staff of policy makers, school district personnel, and policy wonks. (NOTE: every time I try to list the types of readers, I unfortunately forget some. I'm sorry if I omitted you; please let remind me if I did.)

My thought is that now that we have a large number of subscribers (thanks for that) and legions of folks joining the related social networking groups, we ought to compile our own list of changes we want to suggest for IDEA and present them to the Administration and the congressional committees. So what changes would you like to see? If you could make any changes in the special education laws, what would they be?

One group is already in high gear. On November 3, 2009, The National Association of Secondary School Principals issued their list of recommendations for changes to the main special education law, IDEA. You can read their entire report here. They recommend some good changes including assessing children with disabilities for AYP/NCLB purposes at their instructional level rather than at their grade level, earlier transition planning, expanded professional development, assistance with teacher recruitment and fully funding IDEA. One of their suggestions, though, troubles me some. The principals organization suggests that standards of care be developed for each disability category recognized under IDEA. This suggestion seems to imply that there should be a standard autism program or a standard hearing impairment program. The cate

Keyser's 1898 Bas Relief For State Nor..." style="border: medium none ; display: block;" width="180" height="240">Image by takomabibelot via Flickr

gory of disability under IDEA is only legally relevant for purposes of the eligibility determination. Once a student is eligible, the only question is what are the child's educational needs. That is the function of the IEP. See eg, 34 C.F.R. § 300.320. Indeed, IEP stands for individualized education program. To have standardized programs would defeat one of the key policies and themes underlying the Act.









So what changes would you make? I'm making a list!


19 August 2009

New GAO Report on Teacher Preparation of General Ed Teachers for Teaching Children With Disabilities



The Unites States Government Accountability Office has just released a study on the preparation of general education teachers to teach students with disabilities and English language learners. The report is very interesting for a number of reasons.

Logo of the United States Government Accountab...Image via Wikipedia


Because IDEA require that children with disabilities be educated in the least restrictive environment that is appropriate, it is crucial that general education teachers be trained to teach kids with disabilities as a part of their teacher training. The vast majority of special education children spend a significant portion of their day in the regular education classroom.

This study concludes that between 67 and 73% of teacher training programs require at least one course on educating children with disabilities. How can that number not approach 100%? More significantly, only 51 to 58% of teacher preparation programs require some field experience with children with disabilities. The types of field experiences required varied widely.

Another problem unfortunately too common in government found by the study was that there are multiple agencies with responsibility over teacher preparation. The report concludes that better coordination among the six agencies that oversee this topic should be required.

You can read the report here. A one page summary of the report may be found here.

This study raises some serious questions. It will be interesting to see the reaction of the federal Department of Education.
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18 August 2009

Reflections on the IDEA Remedies Tour: The Nature of Compensatory Education

This is the second in a multiple part series of posts on my IDEA Remedies Tour, the joking name I gave to my presentations this summer on the major remedies available when the parent/student prevails in an IDEA due process hearing or appeal. I really love the people part of these conferences, but the next several installments involve the legal aspects of these remedies.

The main purpose of this blog is to educate people about the rapidly changing field of special education law. The next posts in this series may be somewhat technical

WASHINGTON - AUGUST 07:  The statue of 'Author...Image by Getty Images via Daylife

, but hey, that's the law baby! (Note, some font changes here seem to be beyond my control. I plead ignorance.)
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The Nature of Compensatory Education

Compensatory education is a form of relief that may be awarded by a hearing officer or court after finding a violation of IDEA. It constitutes an award of services to be provided prospectively in order to compensate for a deficient educational program provided in the past. G ex rel RG v. Fort Bragg Dependent Schools 40 IDELR 4, (4th Cir 8/6/03).

Although the U. S. Supreme Court has not specifically recognized the availability of compensatory education, it has declared that courts, and presumably hearing officers, have broad equitable powers to fashion appropriate relief where there has been a violation of IDEA. Burlington Sch. Comm. v. Dept. of Educ., et. al. 105 S.Ct. 1996, 556 IDELR 389 (1985). In the same decision, the high court recognized that reimbursement for a unilateral placement was among the appropriate relief that could be granted for such a violation. Burlington, supra.

Since Burlington courts and hearing officers have reasoned that because reimbursement is a viable remedy for an IDEA violation, compensatory education must also be among the relief that may be granted for such a violation. The logic is that if reimbursement for obtaining compensatory services may be granted, failure to recognize the ability to award compensatory services themselves would make the child’s ability to obtain relief dependent upon the resources of his parents to effectuate a unilateral placement. Such a result would not be consistent with IDEA’s purpose of ensuring that every child with a disability have available to him a free and appropriate public education. See, Reid ex rel Reid v. District of Columbia 43 IDELR 32 (D.C. Cir. 3/25/05).




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11 August 2009

Are Children With Disabilities Singled Out for Corporal Punishment?



A recent study shows that children with disabilities are disproportionately the subject of corporal punishment. Most states no longer permit corporal punishment, but where it is permitted, kids with disabilities are all to frequently the recipients of the punishment. whether children should be spanked at all is probably beyond the scope of this blog.

The entire study may be read here.

When coupled with the recent revelations about the abuses concerning seclusion and restraints, particularly concerning children with disabilities, this new study is certainly a cause for concern.

The discipline provisions of IDEA only deal with a disciplinary change of placement. Could paddling of a child on an IEP ever be considered a change of placement? If yes, must there first be a manifestation determination? If not, should the law be amended given this new study? As usual I have more questions than answers. What do you think?


7 August 2009

Seclusion and Restraints – Part II



On Monday,
Arne Duncan, the secretary of the U. S. Department of Education sent a letter to the heads of the state Departments of Education instructing them to review their state policies on seclusion and restraint in view of the alarming May 19th GAO report and the subsequent Congressional hearings. The letter also favorably mentions the use of Posit

George Miller and Arne Duncan talkImage by House Committee on Education and Labor via Flickr

ive Behavior Interventions and Supports as a strategy. In addition, the letter advises the state heads that they will be contacted by August 15th by federal Department of Education staff and that they

should be ready to discuss their state policies on these topics. The press release accompanying the Secretary's letter may be found here. The letter itself can be found here.

It will be interesting to see if this inquiry by the Secretary will lead to additional legislation concerning the abuse of seclusion and restraints, which are often employed for students with disabilities. These changes, if they occur, could involve the Individuals with Disabilities Education Act or other possibly new statutes.

At present the IDEA only requires functional behavioral assessments and behavior intervention plans where there has been a manifestation determination resulting in a finding that the student's misbehavior is a manifestation of his disability. Section 615(k)(1)(F). The only reference to positive behavior supports is in the section on IEP development and requires the use of positive behavior interventions and supports, and other strategies, when the student's behavior impedes his own learning or the learning of others. Section 614(d)(3)(B)(i).


What do you think, will the provisions of IDEA be beefed up, or will there be another statute, or will nothing happen? Dust off those crystal balls, and get me your predictions.


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5 August 2009

Obama Administration Signs UN Treaty on Disabilities

The United States signed the United Nations Convention on the Rights of Persons With Disabilities on Friday. This was a change of policy position from the previous administration. The treaty prohibits discrimination against the more than estimated 650 people with disabilities. 142 countries have now signed the treaty.

President's Obama's remarks noted that one in five American's live with a disability. He noted FDR's disability and the fact the most American's were unaware if it. He also briefly reviewed the Americans With Disabilities Act and the Individuals With Disabilities Education Act.

Franklin D. RooseveltFranklin D. Roosevelt via last.fm



You can read the entire treaty here. Other helpful information concerning the convention can be found at this United Nations website.

I am wondering whether this treaty might be argued as additional authority in special education due process hearings in the U.S. This proves two things: I am very thoughtful and I have too much time on my hands. The answer is probably not, but there are two provisions that might be argued.

Article 23 deals with separation of parent and child because of the disability of either.

Article 24 deals more directly with education and states that countries "... are to ensure equal access to primary and secondary education, vocational training, adult education and lifelong learning. Education is to employ the appropriate materials, techniques and forms of communication. Pupils with support needs are to receive support measures, and pupils who are blind, deaf and deaf-blind are to receive their education in the most appropriate modes of communication from teachers who are fluent in sign language and Braille. Education of persons with disabilities must foster their participation in society, their sense of dignity and self worth and the development of their personality, abilities and creativity"

What do you think. Will this come up in special ed hearings?
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9 July 2009

New OSEP Guidance: Discipline for SpEd Students

This kind of got lost in the buzz over the new Supreme Court decision, but the federal Office of Special Education Programs recently published new guidance concerning discipline of students with disabilities. Discipline has always been an important area and it was one of the key reasons that the federal special ed law was created in the first place. Expulsion and long term suspensions were among the mechanisms used to prevent children with disabilities from attending public school. As a result, the predecessor of IDEA contained specific protections against disciplinary changes of placement for special ed students.

Unfortunately, the field of discipline gives many teachers, parents, administrators, principals, and regulators stomach aches. The discipline rules have become fairly complex. When understood in context, however, they are not so hard to apply.

The new OSEP guidance includes OSEP's take on whether disciplinary rules apply when the parent revokes consent for services tat had been being received; that home instruction cannot be the sole IAES option; and clarification regarding the behavior requirements. You can review the new policy guidance here.


3 July 2009

Independence Day

Tomorrow is Independence Day. The Fourth of July is a big holiday for our country, and these days we really need a big holiday. I have always loved this day; what other country believes in an inalienable right to pursue happiness! Independence Day is also a time to reflect on the concept of independence.

Invitation to an Independence Day celebration ...Image via Wikipedia

For people with disabilities, independence is an important goal. Congress has stated that encouraging independent living for people with disabilities is the policy of the United States government. IDEA, Section 601(c). Indeed, one of the purposes of special education is to prepare children with disabilities for independent living. IDEA, Section 601(d)(1)(A).

Before passage of the EHA, the predecessor of the IDEA, in 1975, education of children with disabilities, who were then called "handicapped," was iffy at best. According to the legislative history of the EHA, which is quoted in the seminal Rowley decision by the Supreme Court, millions of children with disabilities were then either totally excluded from school or were warehoused until they were old enough to drop out. Bd. of Education v. Rowley 478 us 176, 191, 103 LRP 31848 (1982). At the time, it was estimated that of the eight million children who required special education, only about 3.9 million were receiving an appropriate education. Bd. of Education v. Rowley, 478 US 176, 191, 103 LRP 31848 (1982).

These numbers are shocking. 1975 was not long ago. Yet we have made real progress since then. Special education may have its detractors, but it is now widely accepted. Very few children with disabilities are now excluded from school. Some still do not receive an appropriate education, but there are now remedies available when that happens. We have come a long way!

One other important indicator of independence is very encouraging. In the 2008 presidential election over 14.7 million people with disabilities cast a vote. This is a record number and more than 3.8 million more people with disabilities voted last year than in 2000. Here is a blog post about this excellent story.

I realize that we are not finished. I do not advocate the display of a banner reading "mission accomplished." But as we look forward on this Independence Day to how we can do a better job of educating children with disabilities, let us also look back for a moment and congratulate ourselves on the excellent progress we have made in what in public policy terms is a very short time.

Fireworks over Miami, Florida, USA on American...Image via Wikipedia


Happy Independence Day.

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20 January 2009

New Stimulus Proposal to Benefit Children with Disabilities

Filed under: disabilities, education, teachers — Shane @ 9:09 am

15 July 2008

Unrestrained management

In “Calm Down or Else,” (15 July 2008) Benedict Carey reports about a possible increase in the use of restraints, seclusion, and other physically coercive methods to manage disruptive behavior. For more than a decade, parents of children with developmental and psychiatric problems have pushed to gain more access to mainstream schools and classrooms for [...]

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