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?
I was giving a presentation last month and one of the participants yelled out, "but we still don't have an answer." This took me by surprise inasmuch as there is rarely an "answer" in special education law. To explain my point, I told the unhappy participant that special education law is more like metaphysics than it is like contract law. This may not have satisfied the participant, but it is true and I like the analogy.
Special ed law is new law as we have said here before. For me, "new law" is roughly defined as whatever didn't come over on the boat from England. Because special ed law is of a mid-1970's vintage, it is very new law. Older lawyers don't like new law, especially law that combines social policy. They like property and contracts- areas of the law where you can look at a set of facts and provide reasonably reliable advice to a client. Special ed law is not like that.
Special education law is a lot like the weather in Urbana, it changes frequently. In fact I have often commented on these pages about the "cycle" of special ed law. The statute was enacted, followed by federal regulations, followed by state regulations, followed by hearing officer decisions followed by court decisions, (both trial and appellate court opinions)(we even have ten by the Supremes). Then the statute, IDEA, is reauthorized and changed and the whole cycle repeats until we are pretty comfortable with the law, then the process repeats itself again. As I have said before, if certainty or red letter, hornbook law is your thing, you may not like special ed law. (I still think that there must be a Jeff Foxworthy joke in there somewhere, but I can't quite grasp of it!)
The ever-changing nature of it makes teachers, parents, administrators and many others hate special education law. It's slippery, and it's hard to get a handle on. How many cases, like the recent Supreme Court case of Forest Grove, have we seen where several of the decision makers disagree as to the result based upon the same set of facts? The answer my friend is in the eye of the beholder.
Only those who enjoy metaphysics, a shrinking number indeed, refuse to hate special ed law, or the "player" as we call it. We do have some guiding principles, but the rule of law model of applying a clearly established legal standard to any given set of facts doesn't really work here. Don't hate the player!
Beginning last week, I have been running a repeat series I wrote a few years ago on the basics of special education law, with a few updates as appropriate. This is part two.
Today's post is on the requirement of the least restrictive environment, which along with FAPE is one of the twin towers required by IDEA. People are often amazed when I tell them that the word "inclusion" is not contained in IDEA. Instead the requirement is that a child with a disability be educated in the "LRE." Sometimes our fascination with FAPE overshadows the LRE analysis, but it is one of the key components of the law.
Special Ed Law 101- Part II
The Requirement of LRE (least restrictive environment)
In addition to the requirement of FAPE, which was discussed in a previous post, the IDEA also requires that to the “…maximum extent appropriate, children with disabilities … are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. IDEA, § 612(a)(5). See, 34 C.F.R. §§ 300.114 to 300.119. This is known as "LRE."
The Supreme Court has not yet ruled on the issue of LRE, but a number of Circuit Courts of appeal have provided some guidance. For example, the Fifth Circuit has developed a two pronged analysis: the first question is whether the education of the student with a disability in the regular classroom, with the use of supplemental aids and services, can be satisfactorily achieved, and if it cannot, whether the school district has provided the student with interaction with non-disabled peers to the maximum extent appropriate. Daniel RR v. State Board of Education 874 F.2d 1036, 441 IDELR 433 (5th Cir. 1989). (See decisions in your circuit.)
The special education law, then, requires that a child with a disability be provided a FAPE (free and appropriate public education) and that it be provided in the LRE (least restrictive environment that is appropriate for the child). These are the key legal requirements of special education law.
In a recent post, I mentioned that I wanted to rerun a previous series on the basics of special ed law, with a handful of updates . Here goes:
People often ask me what "FAPE" and "IEP" mean. This is a good question. At a conference I attended a few years ago, a success story former special education student told the group, "You all speak in alphabet soup." It is a tough habit to break, but the criticism is valid.
As a result I decided to post a series of Special Ed Law 101 articles to foster a better understanding of the key concepts.
Special Ed Law 101- Part I
The primary source of special education law is the federal Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et. seq., hereafter sometimes referred to as “IDEA.” (NOTE: many people refer to the sections of the act as beginning with section 600. Thus “Section 615” would be found at 20 U.S.C. Section 1415, etc.) The regulations promulgated by the United StatesDepartment of Education to implement the IDEA are found at 34 C.F.R. Part 300.
The basic requirement of the IDEA is that states must have in effect policies and procedures that ensure that children with a disability receive a free and appropriate public education, hereafter sometimes referred to as “FAPE.” IDEA, Section 612(a)(1).
The IDEA defines “child with a disability” as a child:
(i)with mental retardation, hearing impairments…, speech or language impairments, visual impairments…, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii)who by reason thereof, needs special education and related services. IDEA, Section 602(3)
The IDEA defines “FAPE” as: special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school or secondary school education in the state involved; and
(D) are provided in conformity with the individualized education program required (…hereunder.).
IDEA, Section 602(9). See also 34 C.F.R. Sections 300.101 to 300.113.
The IDEA defines “special education” as:
Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including
(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B) instruction in physical education. IDEA, Section 602(29).
The Supreme Court of the United States issued the seminal decision interpreting the provisions of the IDEA in the case of Board of Education of Hendrick Hudson v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982). The facts of the case were that the student had a hearing impairment. The parents requested that the schools provide a sign language interpreter for all of the student’s academic classes. Although the child was performing better than the average child in her class and easily advancing from grade to grade, she was not performing consistent with her academic potential. Rowley, supra, 102 S.Ct at 3039-3040.
Holding that FAPE required a potential maximizing standard, the District Court ruled in favor of the student. The U. S. Court of Appeals for the Second Circuit affirmed. See, Rowley, 102 S.Ct. at 3040.
The Supreme Court reversed. Rowley, supra, 102 S.Ct at 3052. After a review of the legislative history of the Act and the cases leading to Congressional passage of the Act, the Supreme Court held that the Congress did not intend to impose a potential-maximizing standard, but rather, intended to open the door of education to disabled students by requiring a basic floor of opportunity. Rowley, supra, 102 S.Ct at 3043-3051.
The Supreme Court noted that the individualized educational program, hereafter sometimes referred to as the “IEP,” is the cornerstone of the Act’s requirement of FAPE. Rowley, supra, 102 S.Ct at 3038, 3049. The Court also notes with approval the many procedural safeguards imposed upon the schools by the Act. Rowley, supra, 102 S.Ct at 3050-3051. The Court also cautioned the lower courts (and by implication, due process hearing officers) that they are not to substitute their “…own notions of sound educational policy for those of the school authorities which they review.” Rowley, supra, 102 S.Ct at 3051.
The Supreme Court held that instead of requiring a potential maximizing standard, FAPE is satisfied where the education is sufficient to confer some educational benefit to the student with a disability. Rowley, supra, 102 S.Ct at 3048. Accordingly, the Court concludes that the IDEA requires “…access to specialized instruction and related services which are individually designed to provide educational benefit to the …” child with a disability. Rowley, supra, 102 S.Ct at 3048.
The Supreme Court instructed lower courts (and again by implication, due process hearing officers) that the inquiry in cases alleging denial of FAPE should be twofold: First, have the schools “…complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits.” Rowley, supra, 102 S.Ct. at 3051.
That completes the first installment of Special Education Law 101. In the next installment we'll explain least restrictive environment, or "LRE."
Last week we reviewed his opinions in the big ten decisions by the Supremes in this area of the law. We also discussed in detail, the opinion he authored in Forest Grove v. TA. This week we will take a look at the other major opinion in this area authored by Justice Stevens.
In the case of Cedar Rapids Community School Dist v. Garret F 526U.S. 66, 119 S.Ct 992, 29 IDELR 966 (3/3/1999), Justice Stevens wrote the opinion for the seven justices who formed the majority. Near the beginning of the opinion, Justice Stevens notes that the student "... is a friendly, creative and intelligent young man." It was refreshing to see this emphasis upon the student whose education is being litigated.
The main issue in the case was whether the school district was required to provide urinary bladder catheterization, suctioning of a tracheotomy and various monitoring functions for the student. IDEA, the federal special education law requires a school district to provide as related services to students with a disability those related services that are necessary for the student to receive a free and appropriate education. There is an exception for "medical services" and the district argued that the exception applied. Justice Stevens reaffirmed the "bright line" test from the previous Tatro decision, holding that the medical services exception only applies to services that must be performed by a physician. Accordingly, the opinion requires the district to provide the related services at issue.
More important, in my opinion, is the manner in which Justice Stevens handled the school district's argument that the expense of the services should be a defense. The majority opinion squarely rejects the argument that the cost of providing services can be a defense in special education cases. This ruling has importance way beyond the facts of the particular case. I believe that this portion of the decision is Justice Stevens' true legacy concerning the body of law involving special education.
Note the President is a known fan of the dreaded Chicago White Sox. I fear that the chances of another Cubs fan being appointed to the Supreme Court are indeed very slim!
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
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?
As some alert readers have pointed out. My recent post on the bad economy and the law contained a serious typographical error. I left out the word "not." Yes, that is a very bad error.
In my discussion of the decision by the United States Supreme Court in Cedar Rapids Community Sch. Dist. v. Garret F. 119 S.Ct. 992, 29 IDELR 966 (1999) I mistakenly said that the cost of services could be a defense to a violation of IDEA. In fact the ruling of the high court was just the opposite. The supremes emphatically rejected the argument that cost could be a defense.
I apologize for the error. I hope that my proofreading error has not caused any inconvenience.
I remain interested in your opinions concerning expense or cost as a possible defense to an IDEA violation. Also I'd really like to hear about any cases in which cost is raised as a defense or where you suspect that cost is a factor in the decision-making.
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.
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. ofEducation 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.
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
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.
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.
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