Special Education Today

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?

The United States Court of Appeal for the Ninth Circuit has confirmed what most of us had expected: the U. S Supreme Court decision in Rowley, et al v. Board of Education 553 ID

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ELR 656, is still good law.

At the trial level, the U. S. District court had held that the 1997 amendments to the IDEA had changed the definition of FAPE, the IDEA's primary guarantee that a child with a disability receive a free and appropriate public education. Given new language in the goals of the 1997 amendments, the district court held that the Rowley decision, requiring only that and Individualized Educational Plan be reasonably calculated to confer some academic benefit, set the bar too low. JL & ML ex rel KL v. Mercer Island School District 46 IDELR 273 (W. D. Wash 12/8/6)

On appeal, the Ninth Circuit rejected the reasoning of the district court. The appelate panel found that Congress did not intend by the 1997 amendments to overrule the Rowley standard. The Ninth Circuit cited three reasons for disagreeing with the trial court's analysis. First, Congress did not amend the statutory definition of FAPE. Second, Congress did not require attainment of transition goals in order to rceeive FAPE. Third, Congress did not express dissatisfaction with the educational benefit standard or express an intention of overturning the standard. JL, et al v. Mercer Island School District 109 LRP 48649 (Ninth Cir. 8/6/9). You can read the entire court opinion here.

It is interesting that most school district lawyers say that the Ninth Circuit is the most anti-school district circuit. Despite that reputation, this decision is very pro district. I do believe that most special education lawyers will agree with the result, however. So what do you think? Did the Ninth Circuit get it right?

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).

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.

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Those of you who follow this blog know that I was concerned about the school district's argument that hearing officers lacked authority to grant reimbursement. I had never heard this argument made before. NOTE: I have a bias here, I am a due process hearing officer for a growing number of states and I train hearing officers across the country. A few commentators have dismissed this issue as a "nonstarter," but at least three justices asked questions concerning the argument at the oral argument. Maybe others gave this argument little attention, but believe me, hearing officers were taking it seriously.

As my preliminary analysis noted the supremes specifically noted at page 17 of the slip opinion that both hearing officers and courts have the authority to grant reimbursement for un

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unilateral placements in proper circumstances. The Court explained its reasoning in footnote 11 on page 13 of the majority opinion.

Specifically, the Court ruled that the district's argument concerning hearing authority ignores the Burlington decision. The high court stated that the Burlington decision interpreted IDEA "... to authorize hearing officers as well as courts to award reimbursement notwithstanding ...(Section 615's) silence with regard to haring officers." n. 11, Slip Op at p. 13. The opinion goes on to state that by amending IDEA without altering the text of the section, Congress implicitly adopted the Supreme Court's construction of the statute regarding hearing officer authority to award reimbursement.

Forest Grove Sch Dist v TA 557 U.S. ____, 109 LRP 36046 (6/22/2009) is an important decision for hearing officers to cite in their decisions. It is clear that this decision reiterates the ruling of Burlington that hearing officers ,like courts, have broad equitable discretion to award an appropriate remedy where there has been a violation of IDEA.

here are some additional resources: First, a couple editorials applauding the ruling: St. Louis Dispatch and Boston Globe. The SCOTUS blog resource page concerning this case includes analysis, briefs by the parties, amicus briefs and a transcript of the oral argument at the high court. A law review article written before the decision discusses some policy concerns can be found here. This link has three perspectives on the ruling.

The recent decision by the supremes in Forest Grove Sch Dist v. TA 557 U.S. _____, 109 LRP 36046(6/22/2009) has been cited by both the parents bar and the school district bar as a major development. We will have to wait and see whether the number of unilateral placements grow as a result.

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Before we get to the reasoning of the high court, we should review what the court did not decide. In the all important footnotes to the Court of Appeals decision, it was revealed that the school district had waived the key issues of eligibility and denial of FAPE. Many people had questioned how a student with serious cannabis abuse issues could be eligible. But that issue was not properly before the court. The only issue was whether the 1997 amendments provision {Section 612(a)(10)(C)(iii)} prohibited reimbursement for unilateral private school placements by parents whose child never received special education from a public school.

The court first reviewed its decisions in Burlington and Carter and renewed their holdings that where a school district denies FAPE and a parent's private placement is appropriate and the equities so permit, a court has broad equitable authority to award appropriate relief including reimbursement for private placements. It is interesting that both Burlington and Carter were unanimous decisions by the high court.

The issue then was whether the 1997 amendments required a different result in this case. the Supreme Court rejected the school district's reading of the statutory provision. The Court found that Section 612(a)(10)(C) did not prohibit reimbursement in other circumstances but rather just permits it in the common circumstance where a child is receiving special education in public school. The Court ruled that these statutory provisions were "elucidative rather than exhaustive." Slip Op at p. 11. (Justice Souter's dissent has some fun with this phrase noting that "When a mother tells a boy that he may go out and play after his homework is done, he knows what she means.")

The majority opinion goes on to note that the 1997 amendments do not impliedly repeal the Burlington and Carter decisions. The opinion notes that it would take more than Congress' failure to comment on previous decisions by the Supreme Court to effect a repeal by implication, which is a doctrine that is not highly favored in the law.

The court then notes that the school district position is inconsistent with the remedial purpose of IDEA and the 1997 amendments thereto. The strong purpose of providing children with a disability with a free and appropriate public education was paramount in the reasoning of the court in Burlington, Carter and this case.

In perhaps the strongest statement in the majority opinion, the Court states that immunizing a school district's refusal to find a child eligible "... no matter how compelling the child's need... would produce a rule bordering on the irrational." The court noted the anomalous result of the school district's position in that it would permit reimbursement where a district offered inadequate services but would leave parents without the remedy in the more egregious situation in which a district unreasonably denies a child access to such services altogether. In rejecting the availability of procedural safeguards provided by IDEA other than reimbursement as an alternative, the court once again noted that the "review process is ponderous."

Finally the majority rejected arguments concerning the spending clause and financial burden. The Court noted that school districts have been on notice concerning the remedy of reimbursement at least since the Burlington decision. The argument that the result would encourage less cooperation and more expense was rejected as unfounded because reimbursement is only permitted where the district violates IDEA, the parents' placement is appropriate and the equities do not favor denial or reduction of the reimbursement.