Special Education Today

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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22 April 2010

Justice Stevens and Special Education Law – Part II

Filed under: Chicago Cubs, Gerl, John Paul Stevens, Justice Stevens, Special Education, Supreme Court, United States Supreme Court, education, special education law — Jim Gerl @ 7:45 pm

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Justice John Paul Stevens has announced his retirement from the United States Supreme Court. Although originally considered a moderate by most, he has drifted to the liberal wing as the court added more and more very conservative justices. In addition to being a loyal fan of the Chicago Cubs, Justice Stevens left his mark on special education law.

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!


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7 October 2009

U S Supreme Court Declines Review of Two Special Ed Cases

Filed under: Gerl, Judicial Branch, Special Education, United States Supreme Court, education, law, special education law — Jim Gerl @ 8:44 am
The United states Supreme Court has declined review of two special education cases. The order denying "certiorari," or review, of the lower court decision may be found on pages 8 and 9 of this link.

In LM, et al v. Capistrano Unified Sch Dist 538 F.3d 1261, 50 IDELR 181 (9th Cir. 8/19/2008), the Ninth Circuit held that the school district violated state law by limiting the time that a psychologist could observe the student's placement to 20 minute increments, the parents were not thereby deprived of a meaningful opportunity to participate in the IEP review process. Therefore FAPE was provided by the district. The Supremes let the Ninth Circuit decision stand.

The other case was Stancourt ex rel Stancourt v. Worthington City Sch Dist 51 IDELR 19 (Ohio Ct App 9/9/2008). In this decision, the Ohio appellate court ruled that the stay put clause did not prohibit a school district from modifying a student's behavior plan while a due process hearing was pending because a behavior plan is not a part of an "educational placement,"where evidence supported that the behavior plan would not have been effective without modification. The Supremes also decided not to hear this case.

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Unfortunately for us special ed law junkies, there will be no supreme court action this term. I'm going to go out on a limb though and suggest that there will be a special education decision by the high court next term. What do you think? Am I right?


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15 August 2009

Reflections on My IDEA Remedies Tour – Part I

Filed under: Gerl, IDEA, Special Education, United States Supreme Court, conference. Portland, education, law, remedies, special education law, tour — Jim Gerl @ 9:59 am


As some of you have noticed, I've had some fun describing my two speaking engagements last month as the IDEA Remedies Tour. I spoke in early July at the Seattle University Academy for IDEA Hearing Officers on the topic of compensatory education. Lotsa changes going on in the law as to the remedy of compensatory education. By the way, I'm not talking about the Title I definition of compensatory education for poor and culturally deprived children. (Why do we so often use the same phrases to mean different things? Are we trying to confuse people?) Instead, my session was on the changes in the law of compensatory education, meaning the remedy when a parent/student prevails in a special education case.

In late July, I presented two sessions at the 16th annual Education Law Conference in Portland, Maine. One of my topics was the remedy of reimbursement for a unilateral placement. I was lucky enough to have a recent United States Supreme Court decision on that very t


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opic in time for my presentation.

In the coming installments in this series, I'll be sharing some of the substantive "meat "of my presentations, and some new hot button issues that I discovered by attending these conferences. Today, I want to make a few general comments and observations.

First, I love these conferences. In addition to presenting, I learn a lot. Presentations by other experienced hearing officers and special ed law experts, like my friend Professor Mark Weber, are invaluable. The exchange of information and the high level discussion of the issues really helps me to stay on top of the difficult and ever-changing body of special education law.

Second, the networking opportunities are excellent. I get to visit with many old friends, and I invariably make a bunch of new friends. Thanks to all of you. I know that many readers of this blog could not attend these conferences this year, although a number of you were there. For those who couldn't make it, the next posts in this series will concern some of the substance of my presentations. As always, I would appreciate the responses and reactions of our many readers.



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11 August 2009

9th Circuit Rules: Rowley Still Good Law

Filed under: FAPE, FAPE standard, Gerl, Ninth Circuit, Rowley, Special Education, Supreme Court, United States Court of Appeals for the Ninth Circuit, United States Supreme Court, education, special education law — Jim Gerl @ 5:41 pm


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?



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29 July 2009

CORRECTION: The Bad Economy and the Law

Filed under: Gerl, Special Education, Supreme Court, United States Supreme Court, cost, law, poll, special education law — Jim Gerl @ 12:08 am
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.
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22 July 2009

The Bad Economy and the Law: Should Cost/Money Be a Defense in a Special Ed Case?

Filed under: Milwaukee, Special Education, United States Supreme Court, cost, economy, recession, school, sexpnse, special education law, sped — Jim Gerl @ 11:48 am



Could cost become a hot button issue? An article recently caught my eye about the ongoing litigation in Wisconsin concerning the finding that the school districts there , and eventually the state Department of Education, have run afoul of IDEA by violating its child find provisions. The article claims that the Milwaukee school district is appealing a federal court ruling in part because compliance with the order would be too expensive. Here is the article.

Now I know that the intricacies of the law are very difficult for reporters to grasp, and that sometimes news articles garble the law part of the story. However, in general, monetary cost does not constitute a defense to a violation of the special education law. The U. S. Supreme Court emphatically declared in its decision in Cedar Rapids Community Sch. Dist. v. Garret F. 119 S.Ct. 992, 29 IDELR 966 (1999) that the cost of services could be a defense to a violation of IDEA. See recently Washoe County NV Sch Dist 51 IDELR 52 (OCR 2008) (Note this decision holds that cost is not a defense to a section 504 violation.) The only exceptions are cases where the cost of compliance do not impact FAPE, such as where more than one program is appropriate or where a district has a center for low incidence populations. I have also seen expense mentioned by the courts in some least restrictive environment decisions but I do not recall expense ever being the deciding factor.

This issue could become more important as the recession continues. The extra money from the stimulus package helps, but at a special ed law conference two weeks ago a speaker quoted the special ed director of a large urban school district as saying "this is going to get ugly." Cash strapped school districts may be tempted to avoid expensive solutions. I expect that the number of due process hearings where cost or expense is an issue will rise. Be on the lookout for money issues. Please let me know if you see similar cases where you live and work.

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2 July 2009

New Supreme Court Decision- Part IV (Hearing Officer Authority)

Filed under: Supreme Court, United States Supreme Court, due process, education, hearing officer, law, reimbursement, school special education, special education law, unilateral placement — Jim Gerl @ 11:32 am


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.





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