Gerl « Special Education Today

6 September 2010

Happy Labor Day

Filed under: Arizona, Gerl, Labor Day, Special Education, disabilities, education, law, special education law — Jim Gerl @ 1:46 pm

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Labor day. It seems fitting that we have a holiday for people who work for a living.

Many people have jobs in the field of special education. Today we honor you. A participant at one of my sessions at the Arizona Conference last week made a great point. Nobody goes into special education for the money.

Sometimes we forget this point. I often deal with issues involving dispute resolution. The parents and the school personnel disagree. Many times emotion is involved. People get upset when they think that their kid's education is not going well.

But in the heat of battle, we forget that people do not go into special education to make money, or for the glamor. People go into special ed because they care about children with disabilities. There are easier and better ways to seek fame and fortune.

So please raise your glasses to all those who work in special education- Happy Labor Day!

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4 September 2010

The Perils of Air Travel & Gerls Rock Summer 2010 Special Education Law Tour

Filed under: Aviation, Education Law, Flight attendant, Gerl, Lawyers and Law Firms, Special Education, Travel, law, special education law — Jim Gerl @ 12:21 pm

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As I was returning from Phoenix for the third leg of the Gerls Rock Summer 2010 Special Education Law Tour, I had to once again endure the perils of modern travel. The flight to Atlanta went very well. Unfortunately, the flight out of Atlanta had issues.

The Airline monitor said plane at gate, which is always a good sign. Despite this bit of news, however, the flight was not called for boarding. About five minutes before takeoff, there was an announcement that the flight would be delayed because they could not locate the crew. The second delay announcement specified that it was the flight attendant who was missing. (Quick poll- how many think that they would have announced that it was the pilot who had vanished? I say probably not) Finally the plane boards an hour after takeoff time.

Then the captain announces that there will be another delay because the jet way attaching the gate to the plane would not move. This announcement brought audible laughter from the weary travelers.

After we finally land at my destination airport, the very tired passengers proceed to the baggage claim area where, of course, nothing happens. After a long delay, there is an announcement that there would be a delay because the conveyor belt was stuck. This announcement brought raucous laughter (we're talking belly laughs) from the by now very tired travelers. At ten after midnight, two and one-half hours after I was scheduled to land, I left the airport. (Ladies and Gentlemen - Jim Gerl has left the building.)

Really, I can't make this stuff up! I still love to travel, but sometimes it can be difficult! What stories can you share about fun at airports?

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30 August 2010

Big Changes to §504: Do They Affect Special Education – Part III

Filed under: 504, Americans with Disabilities Act of 1990, Gerl, Special Education, education, law, special education law — Jim Gerl @ 11:30 am

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In previous posts we have examined why Congress made changes to the Americans with Disabilities Act and §504. Now were ready to discuss some of the changes:

- The definition of major life activities has been expanded to include major bodily functions, sleeping, standing, lifting,bending, reading, concentrating, thinking and communicating.

- Impairments that are episodic or in remission is considered a disability if it would substantially limit a major life activity when active.

- The determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, ...low vision devices (not including ordinary eyeglasses or contact lenses), prosthetics, hearing aids, cochlear implants, ...the use of assertive technology, ... learned behavioral or adaptive neurological modifications... 42 USC §12102(4)(E).

- a relaxed definition of substantial limitation.

These are the big changes. In the next post on this series, we will review how theses changes might affect the education of children with disabilities.

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27 August 2010

Gerls Rock Tour Summer 2010 – We Have a Winner!

Filed under: Gerl, Individualized Education Program, Lawyer, Special Education, education, jim gerl tour, law, special education law — Jim Gerl @ 9:11 am

Image via Wikipedia Brajkovič - 2009 Tour of California. As ..." style="font-size: 0.8em; border: medium none;" width="300" height="201">

By now many of you know about my special education law summer 2010 speaking tour. I have been struggling with a name for the tour. A number of you have had some interesting suggestions. Thanks for all the ideas. One reader had a great suggestion: Gerls Rock Tour.

The suggested name encompasses several layers of meaning. One is the Disney based Girlz Rock. I wasn't aware of it, but you can read about it here. In addition it is meant to be a general shout out to those of the female persuasion, as the suggesting reader called them.

I like it. What do you think?

Here is the remaining portion of the tour itinerary:

From August 30 - September 1, 2010, I will be at the Arizona Special Education Directors Institute in Litchfield Park, Arizona. I will do three presentations on the role of the non-attorney advocate in IEP team meetings and due process hearings. You can follow the links to register here.

I will for the sixth straight year be a part of the faculty at the National Association of Hearing Officials Annual Conference from September 26 - 29, 2010 in Music City, Nashville, Tennessee. I will be presenting on the prehearing process and on ruling on objections. The registration link trail begins here.

Disclaimer time (I am still a lawyer): None of the state agencies or private organizations mentioned above in any way endorse this blog or any statements made by me or readers and commenters. For purposes of things said here, I do not represent any organization or person. My statements are my own and only represent my own opinion.

Any way, please find me at these conferences and say hello. I always enjoy talking to those who read this blog.

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23 August 2010

Big Changes to §504: Do They Affect Special Education – Part II

Filed under: 504, Americans with Disabilities Act of 1990, Disability, Gerl, Special Education, Supreme Court of the United States, United States Congress, law, special education law — Jim Gerl @ 10:45 am

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In the previous post in this series, we discussed the buzz during my summer rock tour on special education law concerning the changes to §504 and the ADA. The big question seems to be how the changes will affect the education of children with disabilities.

Congress was very upset with two lines of court decisions stemming from two opinions by the U. S. Supreme Court. One line of cases began with Sutton v. United Airlines 527 US 471, 30 IDELR 681 (1999). There the Supremes ruled that in determining eligibility for employees with disabilities who have used mitigating measures, such as medication or contact lenses, the disability must be measured by taking the mitigating measures into account. (Under §504 and ADA to be eligible, a person must have a disability that substantially affects a major life activity.)

Another involved cases following the decision in Toyota Manufacturing v. Williams 534 U.S. 184, 102 LRP 6137 (2002). In that case, the Court held that people who have impairments that substantially limit a life activity are not protected where the limitation is one that would substantially affect the lives of most people. The Supremes ruled that this would not be a major life activity.

It was in reaction to these changes that Congress changed the laws. More on the changes in the next post in this series.

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20 August 2010

Update on Social Networks for Special Education Law

Filed under: Facebook, Gerl, LinkedIn, Plaxo, RSS, Social network, Special Education, Twitter, special education law — Jim Gerl @ 7:14 am

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The Facebook group is the most successful. At last count, we had some 830 members. The discussion boards sometimes reflect the emotion that comes with special education conflict, but the discussions are always interesting and generally very informative.

The LinkedIn group is also very active. A lot of special education types have connected through that group. Communication is a wonderful thing. The Plaxo group is still new, but we have great hopes for it.

The Ning group has meet its demise. Ning will no longer be free soon, and the internet really should be free. Chant in unison... Free Ning!

Don't forget that you can also sign up for our tweets on Twitter. Or you can use the mobile version of this blog to read the posts on your mobile phone.

Most important of all, if you haven't already signed up for a free subscription, please do so in order to avoid missing our posts. You can subscribe to receive our posts by email, or by RSS feed in a reader or aggregator, or if you have your own blog or website, you can get a blidget(=blog = widget) to insert directly into your website or blog.

Links for the free subscriptions, the social network groups, and the other services mentioned in this post are available on the lefthand side of the blog.

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18 August 2010

The Jim Gerl Tour (de France?) on Special Education Law Continues Later This Month

Filed under: Arizona, Gerl, Special Education, Tennessee, education, jim gerl tour, law, special education law — Jim Gerl @ 6:15 pm

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If you read this blog regularly, you know that I have a delusional belief that I am a rock star and that my special ed law presentations somehow constitute a rock and roll tour of the country. As the title indicate, I continue to struggle with a title for the tour. Suggestions by readers to date have not exactly been helpful.

If you will be in any of the following places while I am in town, please stop me and say hello. I have met a bunch of readers this summer and I always enjoy meeting those who read these pages. Please continue telling me what you think.

I will for the sixth straight year be a part of the faculty at the National Association of Hearing Officials Annual Conference from September 26 - 29, 2010 in Music City, Nashville, Tennessee. I will be presenting on the prehearing process and on ruling on objections. The registration link trail begins here.

Disclaimer time (very different from hammer time) None of the state agencies or private organizations mentioned above in any way endorse this blog or any statements made by me or readers and commenters. For purposes of things said here, I do not represent any organization or person. My statements are my own and they really couldn't buy me if they tried, which so far they haven't

Any way, please find me at these conferences and say hey.

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16 August 2010

Big Changes to §504: Do They Affect Special Education – Part I

Filed under: Americans with Disabilities Act of 1990, Congress, Gerl, Special Education, United States Supreme Court, education, law, special education law, §504 — Jim Gerl @ 12:30 pm

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As my summer rock tour on special education law continues, one theme is emerging: there have been big changes to §504 (through the ADA amendments by Congress.) The big question is how much these changes will affect the education of kids with disabilities.

At least three speakers, and many of the hallway conversations, during these conferences have directly addressed the changes to §504. One frequently heard comment is that the main dissatisfaction of the Congress with decisions involving §504 and the ADA in the employment context. Congress felt that the U. S. Supreme Court was interpreting the laws too narrowly and blocking many employees from going to court to be heard on the question of reasonableness of accommodations that they were requesting.

In particular Congress took issue with two lines of cases by the Supreme Court. One involved cases following Sutton v. United Airlines 527 US 471, 30 IDELR 681 (1999). Another involved cases following Toyota Manufacturing v. Williams 534 U.S. 184, 102 LRP 6137 (2002).

In the next part in this series, we will look at these cases and why Congress was upset.

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13 August 2010

Disability Discrimination – Part I

Filed under: Disability, Ellis Island, Gerl, Immigration, Special Education, discrimination, education, law, special education law — Jim Gerl @ 3:20 pm

Ellis Island -Medical Exam Changes Over 30 Yea...

Image by Erica_Marshall via Flickr

A friend of mine has spent years bringing public attention to issues of disability discrimination and its history. She recently informed me of a practice at Ellis Island that shocked me.

When public health officials tested the potential immigrants, those suspected of having a "mental defect" would be stopped and an official would place an "X" on the persons shirt with chalk. This greatly offends me. Can you imagine being greeted in a new land by somebody who write on you with chalk? Here is an article that describes the practice. Here is a powerpoint about the practice.

I know that immigration is a big issue in today's news. What do you think about the big X written in chalk? Isn't this a harsh way to make the point? What would you do?

I am also intrigued by the fact that some of the immigrants were clever enough to remove the chalk marks or simply turned their shirts inside out! Some people were just destined to be Americans.

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11 August 2010

Tip of the Hat to CADRE – Part I

Filed under: Gerl, Special Education, dispute resolution, education, law, special education law — Jim Gerl @ 11:08 pm

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I had reason today to take a long look at the excellent work of CADRE.

If you are involved in dispute resolution in special education at all, you are likely already aware of CADRE, the OSEP funded technical assistance organization that specializes in dispute resolution. I have met many of you at the incredible CADRE conferences. If you want to learn about special ed mediation, IEP facilitation, and network with others involved in these disciplines, you need to attend one of the CADRE national symposia.

If you are interested in special education law, especially the dispute resolution end of the spectrum, you need to visit the CADRE website. There is a permanent link on the lefthand side of the blog, but you can also use this link. Mediators will find the mother load of resources there. IEP facilitators will find all materials from one of the big national conferences on the topic. Check out this valuable resource.

More on CADRE in the next post in this series.

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9 August 2010

The Metaphysics of Special Education Law

Filed under: England, Gerl, Special Education, education, law, metaphysics, special education law — Jim Gerl @ 2:34 pm

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I pointed out a few times during my presentations at the recent Wyoming and Utah Special Education Conferences that special education law is a lot closer to metaphysics than it is to, say contract law.

Contract law, and other types of old law, have "hornbook" rules that have been settled for ages. Old lawyers can apply those settled rules to a fact pattern and predict an outcome with reasonable certainty. (Although as one very senior attorney once told me, "anybody who says they know what a jury will do is lying.")

Special ed law, though, is new law. New law being roughly defined as what did not come over on the boat from England. The mid 1970's stuff is brand new law. Especially when you mix in equal parts of social policy and children's rights, the result is less predictable than other fields of law. Pity the fool.

Add to this mix, the never-ending cycle of special education law and things become even less clear. IDEA must be periodically reauthorized by Congress, we are again overdue. Then the feds must promulgate regulations, upon which the public may comment before they are finalized. Then, states develop regs. Soon hearing officer decisions appear followed by court opinions. Just when we become comfortable with the current state of the law, Congress reauthorizes and the process begins again.

So if a lack of ambiguity appeals to you, special education law may not be your cup of tea. (I still think that there must be a Jeff Foxworthy joke in that line, but I cannot find one I can use in a public forum. Any ideas that are fit to print?)

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6 August 2010

Utah Conference Was Outstanding

Filed under: Education Law, Gerl, Special Education, Utah, Utah Institute, education, law, special education law — Jim Gerl @ 5:57 pm

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The 2010 Utah Institute on Special Education Law was another outstanding conference. The second leg of my summer tour was a big success. For one thing, I got to renew a bunch of old acquaintances. For another, I met some readers of this blog for the first time. Thanks again for introducing yourselves.

I also really enjoyed working with the Utah hearing officers and mediators. I got to do the training of these folks this year and, as always, I really enjoyed working with them. My fellow hearing officers and mediators see the world from a perspective that is a bit different from the advocates for either side. I'm glad that I got to spend some time with them.

The sessions were packed full of information and the conference materials should be a valuable resource. As usual, some of my favorite moments involved conversations with my colleagues in more informal settings. You know who you are.

I'll have more on the substantive sessions from the Utah and Wyoming conferences in coming weeks.

The Utah Institute is a great conference. If you ever get a chance, please attend it.

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2 August 2010

2010 Utah Institute on Special Education Law Begins: Washington Update

Filed under: Education Law, Gerl, Special Education, law, restraints, seclusion, special education law — Jim Gerl @ 6:14 pm

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I am attending the 2010 Utah Institute on Special Education Law. I will be presenting at the Post Institute trainings for hearing officers and mediators. I have already met a few readers of this blog here. Thanks for saying hello.

There are a number of highly regarded national speakers here. I am always amazed by how much is going on in special education law.

The first keynote was by Nancy Reder, the Director of Government Services for the well-respected National Association of State Directors of Special Education. She spoke on What's Happening in Washington. The short answer was that given the domination of health care reform, banking regulation, the BP oil spill and the impending elections- not very much.

ESEA, formerly known as No Child Left Behind, will eventually be reauthorized- maybe early next year, but don't hold your breath. IDEA will be reauthorized after that.

The seclusion and restraints bill has passed the House. The Senate has not yet acted, and once again do not hold your breath. One controversy that has popped up involves whether the law should prohibit IEPs from including mention of seclusion and restraints. The House agrees with advocacy groups that the law should not allow theses aversive techniques in any IEP. The Senate apparently does not agree and this major policy difference prevents this issue from being resolved.

The Congress seems to be paralyzed at this point, but seclusion and restraints continues to be a major hot button issue. Thanks to Nancy Reder and the Utah Institute for this useful information.

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31 July 2010

Wyoming Conference Was Outstanding

Filed under: Education Law, Gerl, Special Education, Wyoming Special Education Leadership Symposium, dispute resolution, education, law, special education law — Jim Gerl @ 2:53 am

Well the first leg of my summer tour has begun, I participated in the Wyoming Special Education Leadership Symposium. It was a great conference,

On the first day of the conference, the inspirational Mike May gave the keynote address. Later in the morning, I participated on a panel with six other lawyers concerning the current trends in least restrictive environment cases. The panel made a number of excellent observations.

After lunch, I co-presented with the very well respected Julie Weatherly on the topic of meaningful educational benefit. We tried something new. I first read some hypothetical fact situations, Then Julie presented some key caselaw. I then led some discussion on applying the law to our hypos. The session was packed and it went very well.

Then for the last session, participants could choose among six breakout sessions. My session was on dispute resolution. The participants were very interested and participated a lot, which I always like.

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23 July 2010

Jim Gerl’s Magical Mystery Tour Begins Next Week

Filed under: Gerl, Magical Mystery Tour, Special Education, education, law, special education law — Jim Gerl @ 3:33 pm

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While I continue to work on the name of my 2010 special education law summer tour, it is imminent. You may already know about the tour, but if you read this blog and you will be in any of these places while I am there, please let me know or come by and say hello. I always enjoy meeting readers of the blog. These are only the conferences that are open to the public although in some instances, my presentation may not be open to the public. Please check the registration sites for more specifics.

(I kinda like the Magical Mystery Tour metaphor though- what do you think?)

I have made a semi-permanent gadget on the left-hand side of the blog which states where I will be and includes registration links where available. PLEASE NOTE: none of the state departments of education or other agencies or sponsors of these conferences in any way endorse this blog. My comments, here and elsewhere, are my own and should not be taken to represent the views of the sponsoring organizations or any other entity. (That was what we call a disclaimer; there is a purpose for lawyers.)

From July 27 - 29, 2010, I will be at the Wyoming Special Education Leadership Symposium in Lander, Wyoming. I will be part of a panel discussing least restrictive environment issues; I will give a paired presentation with the highly regarded Julie Weatherly (a big honor for me) on educational benefit and I will be doing a solo session discussing dispute resolution options.

I will attend the Utah Institute on Special Education Law on August 2 - 3, 2010 at the Eccles Center in Ogden, Utah, and I will do a (non-public) hearing officer/mediator training the next day.

From August 30 - September 1, 2010, I will be at the Arizona Special Education Directors Institute in Litchfield Park, Arizona. I will do repeat presentations on the role of the non-attorney advocate in IEP team meetings and due process hearings.

I will for the sixth straight year be a part of the faculty at the National Association of Hearing Officials Annual Conference from September 26 - 29, 2010 in Music City, Nashville Tennessee. I will be presenting on the prehearing process and on ruling on objections.

So there it is, please stop and say hello if you will be nearby. Again the name challenge- if you have a better name for my tour than Magical Mystery Tour, please leave a comment or send an email. Time is running out.

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22 July 2010

Section 504 and ADA – the Redheaded Stepchildren of Special Education Law

Filed under: Americans with Disabilities Act of 1990, Gerl, Rehabilitation Act of 1973, Special Education, comparative law, education, special education law — Jim Gerl @ 4:30 pm

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Almost all discussion of special education law concerns IDEA, the Individuals with Disabilities Education Act. This is the key statute and the basis for at least 95 % of all special education cases. there are other sources of special education law but we rarely talk about them.

In particular, section 504 of the Rehabilitation Act and the Americans with Disabilities Act are other candidates. These other statutes really live in the shadows of special education law. I must confess that I tend to not give these laws as much thought as I probably should, yet they are important laws that could affect special education.

My friend and regular reader of this blog, Professor Mark Weber has written a new article on this topic. You can read the article here. In this article, Professor Weber addresses whether 504 and ADA could provide alternatives to IDEA given the recent expansion of theses two laws by Congress. The article also discusses the obligations to students under these laws; the exhaustion doctrine; and remedies available under 504 and ADA. I recommend that you take a look at this important review of these alternative sources of special education law.

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20 July 2010

When Politics and Disability Laws Collide

Filed under: Disability, Gerl, IDEA, No Child Left Behind Act, Special Education, Supreme Court, education, law, political action committee, special education law — Jim Gerl @ 4:55 pm

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Here's a question: Do you think that disability laws and political activism are compatible?

Apparently a new Disability Power and Pride Political Action Committee has been formed. Here is an article on the topic from Disability Scoop. Here is the group's website.

We know that all laws are written by legislative bodies and that money is the mother's milk of politics. Should disability advocates organize and raise funds for candidates? The U S Supreme Court has recently ruled that throwing huge amounts at politicians is both protected free speech and and a necessary ingredient in apple pie.

IDEA and NCLB will both be reauthorized, maybe soon. What do you think? Should those who have opinions about changes to be made in the law organize? What about raising money for those who support their changes?

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16 July 2010

Education Research Priorities: Future Fun with Numbers

Filed under: Gerl, Institute of education Sciences, Pony Express, Special Education, United States Department of Education, education, special education law — Jim Gerl @ 7:19 pm

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We have a wide variety of special education stakeholders who regularly read this blog. Many are professors or academic researchers in the field of education. This group will be very interested to know that the National Board for Education Sciences of the Institute of Education Sciences has announced its new priorities. You can view them here. The Institute of Education Sciences is a part of the Office of Special Education and Rehabilitative Services (OSERS) of the U. S. department of Education. The other subparts are the Office of Special Education Programs (OSEP) and Rehabilitation Services Administration (RSA)

The public can comment by September 7, 2010. You may comment by mail, by commercial delivery or over the internet. Internet comments can be made here. Pony Express comments go to: Elizabeth Payer, U.S. Department of Education, 555 New Jersey Avenue, NW., room 602c, Washington, DC 20208.

Why should the rest of us care? Well inasmuch as this is a representative democracy, our taxpayer dollars are being spent on some of these projects. As good citizens, we have a say in how the funds are spent. So, even if like me you have occasional arithmetic issues, take a look at the priorities. If you have a reaction, then let the feds know what you think. Democracy at work!

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14 July 2010

8 July 2010

Social Network Groups for Special Education Law – Update

Filed under: Facebook, Gerl, LinkedIn, Ning, Plaxo, Social network, Special Education, Twitter, law, special education law — Jim Gerl @ 10:29 am

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In addition to this incredible blog, we have also sponsored a number of special education law groups on various social networks. These groups, we hope, utilize some of the new technologies to encourage further discussion of topics that interest some or all special education stakeholders (as you may have noticed, I love that word; do stakeholders generally have stakes in their hands? The imagery is fantastic!)

The Facebook group is the most successful. At last count, we had some 783 members. The discussion boards sometimes reflect the emotion that comes with special education conflict, but the discussions are always interesting and generally very informative.

The LinkedIn group is also very active. A lot of special education types have connected through that group. Communication is a wonderful thing. The Plaxo group is still new, but we have great hopes for it.

The Ning group will likely soon meet its demise. Ning will no longer be free soon, and the internet really should be free. Free Ning!

Don't forget that you can also sign up for our tweets on Twitter. Or you can use the mobile version of this blog to read the posts on your mobile phone.

Most important of all, if you haven't already signed up for a free subscription, please do so in order to avoid missing our posts. You can subscribe to receive our posts by email, or by RSS feed in a reader or aggregator, or if you have your own blog or website, you can get a blidget(=blog = widget) to insert directly into your website or blog.

Links for the free subscriptions, the social network groups, and the other services mentioned in this post are available on the lefthand side of the blog.

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