My mission is to explore how other countries around the world are dealing with education and special education issues.
I would like to visit and observe different types of schools that have proven records of success, wherever those schools may be. I would like to meet with school directors and administrators, government officials, leaders in the business world, and others who are responsible for implementing education systems or otherwise connected to education to learn more about how education is being addressed in their communities.
If you know of any remarkable schools in other parts of the world (especially special needs schools), please let me know about them. If you know of any education experts who are engaged in remarkable work in this field, please introduce me to them.
Please do not hesitate to share your thoughts or ideas regarding the above. Read more about my mission here.
Friday, June 14, 2019
I continue to be amazed by my daughter's development. The way she has learned to put words together, for example, is fascinating ("Daddy, sit, floor" or "more...melon" or, on occasion, "some...pancakes"). She is attuned to the weather ("sunny day" or "windy"). When she has had a rough day and just wants to cuddle up and unwind, she asks for "cozy" and "book." She has learned how to tug on our heart strings, asking for "huggies," especially when we are putting her to sleep at night and she wants us to stick around longer. She has become fast friends with her gray plush dog and runs around our home asking "Gray, where are you?" Her problem solving abilities impress me too. Like when something fell underneath the couch out of our reach and she suggested "broom" to help us corral the item. When I came back from the gym sweaty one morning, she said "yucks" (admittedly, with some prompting from my wife) followed by "clean, head, shower." Every day is an adventure and the first 21 months have been quite a ride.
At the same time that my wife and I will be reflecting on the past, we will be looking to the future. In particular, we will be wondering what our lives will be like in just a few short weeks when my wife is expected to give birth to twins. I cannot imagine what life will be like then but were are very excited (and a little nervous) to find out.
To the other fathers out there, on behalf of my family and my firm, I would like to wish you a very special Father's Day. I hope it is a day filled with joy, togetherness, and quality time with your children and loved ones.
Happy Father's Day!
Thursday, May 23, 2019
While the faces below may look friendly, the competition was on and the stakes were high.
The sun was shining, the sky was clear, and the breeze was delightful as we made our way through the golf course. We challenged each other over 18 holes and, at the conclusion, a winner was crowned and a prize was awarded.
It was a great night and a fun time all around!
Monday, May 20, 2019
It was a beautiful evening with tasty dishes in a spacious room overlooking the Hudson River. Rain and fog obstructed the view at the start of the evening but eventually cleared to reveal captivating views of the river and skyline as boats scurried by and nighttime descended.
As always, it was nice to catch up with old friends and meet new people. The absolute highlight of the evening was bumping into a client and learning that she and her son would be featured in the evening's video. As is sometimes the case, Amled, Phil, and I hadn't met this child previously, even though our firm has been representing him for the last several years. We were filled with joy to see and hear how much he has grown and developed over his years at MCC. Following his progress through a multimedia lens in this unique setting was special, and, needless to say, quite different from our normal perspective based on progress reports and legal documents.
Watching the video, I was reminded of the beauty in the work that we do. It is an amazing feeling to observe the results of the special education supports we fight for on our clients' behalf.
Thank you to our client for her courage in sharing her experiences at the gala, and for the opportunity to represent her son and to play a role in his growth and development over the years.
Tuesday, April 23, 2019
MSA is a private special education school located on the Upper West Side of Manhattan that seeks to support and empower children with global developmental delays, autism spectrum disorders, speech and language delays, and neuro-developmental disabilities. MSA utilizes a comprehensive, tailored approach to meet the needs of children with a variety of skill sets. Academic curricula and classroom structure incorporate elements from Applied Behavioral Analysis/Verbal Behavior, TEACCH, and Floortime models.
I will be attending the Open House to field questions from parents regarding the special education legal process, including how to pursue tuition reimbursement.
If you think you might be interested in attending this event, please see below.
Tuesday, April 2, 2019
I first became aware of autism in the spring of 2005. I was completing my psychology major while abroad at Middlesex University in London. That experience altered the course of my life. Had it not been for a small section in a psychology textbook at a school in the UK that sparked my interest in autism I might not be where I am today.
Over the last 15 years I have seen autism awareness increase exponentially. Organizations like Autism Speaks have been instrumental in driving scientific research and educating the public. Schools dedicated to instructing students with autism have mushroomed. Legal battles have been fought and won. Fundraisers like Night Of Too Many Stars have utilized celebrity to promote the cause. Sesame Street has introduced Julia, a character with autism, to make children more aware of and sensitive to their peers.
I am proud to have represented numerous children with autism over the last 10 years of practice in the area of special education law. Oftentimes children with autism require the most intensive interventions. Our law firm is committed to fighting for the full array of services that they may require, both in school and at home, intensively and consistently, to ensure that they achieve meaningful progress in order to become independent, contributing members of society as much as possible.
I continue to be amazed by the strength of the parents we work with and the skills, expertise, and dedication of the professionals who work with our clients who have autism.
I look forward to continuing to spread awareness about autism and fight for those families who are affected by it.
Thursday, March 7, 2019
The conference is a great opportunity to review recent developments in special education law and catch up with colleagues who practice in this area.
I am especially looking forward to the following break-out sessions:
- The Markedly More Demanding Standard: Endrew F., Z.B., N.P. and the Promise of Special Education
- Beyond the Black Letter of the Law: Innovative Strategies to Rescue Drowning Students, Develop Appropriate Programs, and Police Their Implementation
Besides the conference, I am excited to be heading to New Orleans for the opportunity to catch up with some family, enjoy delicious food, and bask in the warm weather.
I also just want to take a moment to note how far our law firm has come since 2010 when I attended my first COPAA conference in Saint Louis and the firm was just a few months old. Over the last nine years, our law firm has become one of the premier boutique special education law practices in New York City. In 2018, the firm helped approximately 150 families secure appropriate placement and/or funding for their children in more than 30 schools. Our team grew to include a second associate attorney, a paralegal, and a full-time office administrator. The firm consists of a dynamic legal and administrative team that focuses on representing individuals with a wide range of special needs and we have earned a reputation for exceptional results and outstanding client service.
I am grateful for the families we have been able to help and the wonderful people I get to work with every day. And I am looking forward to continued growth and client service in the future.
Sunday, December 23, 2018
Prior to joining the Law Offices of Adam Dayan, Phillip spent three years as a litigation paralegal at a New York-based boutique law firm specializing in insurance law where he was responsible for all aspects of trial preparation. Prior to that, he worked as a personal injury law paralegal at a different New York law firm. Phillip is a graduate of CUNY Queens College where he attained a Bachelor of Arts in Economics. In his free time, he enjoys making music and exploring food in the city. He is also active as an event organizer and volunteer. In 2012, Phillip organized a fundraiser to benefit an organization dedicated to preventing malaria in third-world countries, and in 2007 he was a volunteer for Hurricane Katrina Disaster Relief.
Phillip has been a wonderful addition to our team and I know you will enjoy working with him and getting to know him over the coming months.
As 2018 comes to a close, our law firm is excited about starting fresh in the New Year with our enhanced team. On behalf of my family and our entire law firm, I want to wish you and your family happy holidays and a wonderful New Year!
Thursday, November 22, 2018
On behalf of my family and our entire law firm, I wanted to take this opportunity to wish you and your family a very Happy Thanksgiving! I hope your day is filled with delicious food, reflection, gratitude, and quality time with your loved ones.
Wishing you a Happy Thanksgiving and a wonderful start to the holiday season.
Wednesday, August 29, 2018
While John's article focuses on recent developments within the Texas educational system, it highlights a number of barriers that I think parents of children with special needs anywhere oftentimes encounter in pursuing appropriate special education programs and services for their children. Some of the barriers and issues highlighted in John's article include:
- Budgetary issues
- State reimbursement
- Federal funding
- The relationship between delinquent local school districts and federal government agencies (or federal courts) that are responsible for enforcing IDEA
- Tax implications
- Shortages of qualified teachers, psychologists, and therapists
- Certification and qualifications of teachers employed in the school district
- Possible cuts to other school spending
- Backlash from the general education community
In my experience in New York, clients and prospective clients frequently ask me, "Why won't the school district agree to provide the special education programs/services that my child clearly needs and is entitled to?" For instance, parents will go in to their school district meetings with evaluations, experts, and persuasive legal arguments carefully organized to support their position about their child's needs, only to be brushed aside by the school district team and brusquely told that their child does not meet the necessary criteria to obtain the services the parents are seeking. The team usually goes on to say that if the parents have a problem with the team's determination they can pursue their due process rights through the impartial hearing system, which may be effective in the long run but usually is not a quick fix.
In my 10 years of practice in this field, these issues have always existed and I do not have any reason to believe that they will go away. The silver lining is that in New York City we have a robust impartial hearing system that gives parents a forum for formally addressing these issues and resolving their claims. Even in states where the impartial hearing system may not be as structured, parents have the right to pursue their rights under the IDEA in federal court. Parents always have the right to avail themselves of legal counsel to assist them with pursuing their claims. And if it is established that a school district has engaged in a persistent pattern of depriving students with disabilities of services to which they are entitled, a day of reckoning will eventually come, as it did in Texas.
Tuesday, August 21, 2018
It is always bittersweet leaving a place where you have experienced so much. 100 Church is where I started the firm back in December 2009. The firm has grown so much since then and I have grown immensely both personally and professionally.
At the same time, we are all feeling extremely energized and excited about our new beginnings. I myself have been on an absolute high since we moved in.
On behalf of our team let me say that we are thrilled about working with you in the new school year and we are looking forward to welcoming you to our amazing new space.
If you are an existing client and we have not met in person recently please contact our office administrator to schedule an appointment so we can touch base, review the status of your case, and go over any questions or concerns you may have.
Please also update your records to reflect our new office address. For now you can continue to contact our office using the phone numbers and email addresses that you have used in the past as they will remain active, and we will keep you informed regarding any updated contact information.
For your viewing pleasure, here are pictures of our new building and the view from my office (check out the castle-like building on the left side of the second picture):
Thursday, August 9, 2018
On the personal side, it has been a great summer for me and one of the best highlights was traveling with my wife and some friends to Iceland. We spent 5 days and split our time between the South Coast and Reykjavik. On the South Coast we visited a beautiful crater where we found a calm body of light blue water surrounded by red lava ash and green mossy hills. We visited impressive waterfalls of different sorts. At one waterfall, we were able to walk behind the towering stream of water through a cave; at another, we tiptoed oh so carefully on rocks that barely peaked out of the water trying not to slip into the water or bump into our neighbors in order to enter a cave where a hidden waterfall could be found. We marveled at a geyser bursting up from the earth. We hiked on a glacier, which was awe-inspiring in and of itself, but even more so because of the kaleidoscope of colors in the surrounding landscape consisting of black lava ash, green moss, white ice, and streaks of blue (from the ice that had only been exposed to the sun for a brief time). After some time on the coast, we made our way to Reykjavik. Reykjavik is a lovely city with friendly people and a fun vibe. We enjoyed exploring the city on foot, learning about the country's history and culture, horseback riding, and enjoying entertainment at the impressive Harpa concert hall.
On the professional side, summer also means that our law office is super busy helping our clients transition from one school year to the next. Our office has been:
- Speaking with parents regarding proposed program and placement options
- Advising parents regarding Individualized Education Program (IEP) meetings and school visits
- Filing Due Process Complaints (DPC's) for our 12-month clients
- Preparing Ten Day Notice Letters (TDN's) for our 10-month clients
- Filing pendency requests
- Referring parents to private professionals in order to obtain necessary evaluations
- Connecting parents with service providers
- Advising parents about busing-related issues
In addition, we are preparing to move offices over the next few weeks to accommodate our firm's changing needs. Our offices will still be located in downtown Manhattan just a few blocks from where we are located now, which means we will continue to be conveniently located next to many different train stations, and close to the impartial hearing office in Brooklyn so that our attorneys can commute there easily.
We are excited about continuing to achieve outstanding results for our clients in the 2018-2019 school year and continuing to build our team, innovate, and impress.
We hope you enjoy the rest of your summer. If you are an exiting client and we can assist with your case, or if you are not currently a client but have some questions or concerns, please do not hesitate to contact our office and will be happy to discuss your situation with you.
Wednesday, April 4, 2018
I am providing the relevant information below for all who may wish to attend. If you would like to attend, please make sure to RSVP to Patricia Paloma as indicated below, or to me directly at firstname.lastname@example.org, as your RSVP is required in order to be admitted.
Please feel free to forward this information to anyone else who might be interested.
Sunday, March 25, 2018
A few nights ago I had the opportunity to attend a CASP fundraising event at the Harvard Club in New York City and reunite with some members of the CASP family. The evening brought back fond memories of my visit to CASP, which, among other things, helped me to better understand the role that a school can play in the lives of individuals with special needs beyond the classroom as the students transition into adulthood and the workplace.
I enjoyed meeting new faces and catching up with people I had spoken with on the phone and corresponded with via email but had never met in person. One of the highlights of the evening for me was catching up with Dr. Liliana Mayo, the founder and director of the program, whose passion for helping "individuals with different abilities" and whose warmth, enthusiasm, and dedication are an inspiration to continue advocating for those with special needs.
Pictured above: Liliana Mayo, my wife, and yours truly.
Friday, March 9, 2018
Parents should be aware that, in addition to having rights under the IDEA, they also have responsibilities, including communicating their concerns to their school districts and cooperating throughout all stages of the special education process. The extent to which parents fulfill these responsibilities will affect how likely they are to obtain the supports and services that they are seeking for their children.
Please keep these points in mind as you make decisions about your child's special education needs and feel free to contact our office if we can assist with your planning or address any questions or concerns you may have.
Friday, January 26, 2018
Monday, January 15, 2018
U.S. Department of Education Issues Guidelines for Understanding and Implementing the Endrew F. Decision
The guidance memorandum is available at the following link:
Thursday, January 11, 2018
But we have to push on and our law firm is doing just that. Mid-way through the 2017-2018 school year, we are taking stock of the statuses of our clients' cases. We have litigated and prevailed in numerous impartial hearings of different kinds. We have successfully resolved transportation issues. We have negotiated substantial settlements with school districts. We are continuing to file due process complaints to move our clients' matters forward and we are confident about our ability to achieve positive outcomes.
At our law office, our team has been meeting on a weekly basis to discuss where cases stand and how to address our clients' needs. We have been thinking creatively and collaboratively about how to approach our clients' cases in order to achieve the results that our clients seek. Our team is working diligently to attend to our clients and guide them through NYC's special education gauntlet.
I am pleased that clients have been coming in to our office for in-person meetings to discuss the current school year, review their children's progress or lack thereof, and map out next steps. These face-to-face interactions have been energizing for our team. If you have not yet come in, please reach out about scheduling an appointment.
As we collectively trudge through the rest of winter, and the 2017-2018 school year, our law office would like to remind you about a few points concerning your child's education:
- Timing: It is not too early to start thinking about your child's program and placement for the 2018-2019 school year.
- Communication: Continue to speak with your child's teachers and providers to ensure that he/she is making progress. At any point between now and the end of the school year, you may learn that your child is struggling in the classroom and perhaps not receiving adequate programming, services, supports, or interventions. Updated testing may be necessary or your child's program may need to be modified. Keep an eye out for red flags, which could include poor grades, acting out, boredom/frustration, social/emotional withdrawal, etc.
- Testing and Applications: Psychological evaluations can take time and require planning. For instance, in some cases it can take 1-2 months to obtain an appointment, and several weeks more to complete testing and reporting. School admissions applications require planning too. Leave yourself enough time to complete these processes and adequately plan next steps.
- IEP Meetings: IEP meetings are being scheduled and will be held over the next few months leading up to the start of the 2018-2019 school year. Be prepared to attend them and make sure that the appropriate individuals from your child's current program are prepared to attend the meetings as well. Make sure that you have all your ducks in a row, including updated paperwork, to increase the likelihood that you will secure the supports that your child needs.
- Resources: We pride ourselves on being a one-stop-shop of sorts and we can put you in touch with the right professionals. These professionals will help you understand why your child is struggling and what kinds of supports your child needs in order to progress.
Please do not hesitate to reach out to us to discuss your situation and figure out what steps you should be taking. In the meantime, stay warm and safe. We look forward to speaking with you soon.
Sunday, December 31, 2017
I am not an avid skier and, frankly, there is nothing about skiing that comes naturally to me. At 6'3, I find that my height usually works against me because skiing demands keeping your body low to the ground. For that reason and others, I was definitely outside my comfort zone, but I was excited about hitting the slopes nevertheless.
Once I started skiing, I was awed by the natural beauty surrounding me. At the top of one of our ski trails, we took in a panoramic view of the Wasatch mountain range. What a beautiful sight! The mountain range stood beyond the ski trails, wide and vast, impossible to perceive all at once. The mountains were brownish/gray and streaked with snow. I followed the peaks and valleys with my eyes, thinking that they seemed solid and unified, peaceful and still. They were expressive, rugged, natural, ancient, impressive, and awe-inspiring. As I admired them, I felt free and calm. What was most memorable was where it took me: to a happy and peaceful place where I felt connected to nature and to others.
After skiing, I tried snowmobiling for the first time. I was nervous at first, unsure of what to expect. When I started out on the trail, I was tentative. After a few minutes, I became more comfortable in my vehicle. We were guided to the top of a mountain where I took in another breathtaking view. We then descended a steep cliff and roamed free across wide swaths of snowy terrain. It was fun and exhilarating. Eventually, when our time was up, we made our way back to our starting point. In the few minutes before we arrived there, I slipped into a sublime mental state. The snow surrounding me blended into a single whiteness. I became part of an enveloping white blanket and everything around me went silent. I came out of it feeling a profound serenity and clearheadedness.
Apart from the exciting activities described above, my trip was also special because it was my first trip with my daughter who just turned four months old. My wife and I weren't sure what to expect. Being in the mountains at high altitudes and in wholly unfamiliar environs could have presented many problems for our infant. By all accounts so far, she has been a superstar (red-eye flight home pending). She was well-behaved throughout the trip whether we were sitting in a restaurant, shopping, strolling outside, or traveling in a car. Together we've enjoyed exploring Park City and relaxing. Most of all, I enjoyed seeing all of the miraculous things she is doing (breathing, eating, smiling, interacting, and expressing her needs, albeit without words) and felt very grateful for them. It has been amazing getting to know her and watching her develop.
This New Year's, I would like to wish you and your family all the best in 2018. I hope you experience awe, new adventures, excitement, peace, happiness, and family togetherness. I hope your children continue to develop, grow, and succeed and I hope you continued to be amazed by their accomplishments.
Finally, I would like to wish you serenity, clearheadedness, and connectedness, which I was fortunate to experience in Park City this year.
Monday, May 1, 2017
Dr. McCarton spoke touchingly about her experience working with individuals with autism and also highlighted the collaboration she has observed between parents, educators, therapists, and professionals in the MCC community, which has facilitated effective instruction and meaningful progress. Dr. Devinsky spoke warmly about Dr. Sacks and painted a picture of a man whose love for his patients allowed him to understand his patients in a profound and personal way.
On this special 10 year anniversary, I would like to extend a heartfelt congratulations to MCC on the wonderful work they have done and wish them continued growth and success over the decades to come.
Monday, April 24, 2017
Wednesday, March 29, 2017
In considering the issue of what level of benefit is guaranteed to individuals with disabilities, the Supreme Court revisited Rowley, a 1982 Supreme Court case which first considered the FAPE requirement. Rowley involved a child with a disability who was placed in a regular education classroom environment and was making steady progress. The Supreme Court in Rowley decided that the school district had met its burden of providing the child at issue with a FAPE, and was unwilling to articulate a standard that would relate to all students with disabilities including those who were placed in special education classrooms. Although the Court in that case stated that its decision was limited to the particular facts of the case, the Rowley decision has been somewhat problematic for parents over the last 35 years because school districts have often cited Rowley as a basis for denying parents the additional supports and services that their children might need.
In articulating a more robust standard in Endrew F., the Supreme Court indicated that the new standard was necessary "to remedy the pervasive and tragic academic stagnation" that caused Congress to pass IDEA legislation in the first place. The Court made clear that the standard it was articulating was more demanding than the "merely more than de minimis" test proffered by the school district and applied by the 10th Circuit. (Interestingly, Supreme Court nominee Neil Gorsuch was responsible for that 10th Circuit decision.) The Court also noted that every student's program must be appropriately ambitious and every student should have the chance to meet challenging objectives.
Under the new standard, for a child who is fully integrated into a regular education classroom, appropriate progress will typically mean passing marks and advancement from grade to grade (discussed further below). For a child who is not fully integrated into a regular education classroom, however, the amount of progress that a child should be making according to his/her IEP will depend on the child's unique circumstances.
The Court was unwilling, however, to adopt the "equal opportunity" standard proposed by Endrew F.'s parents. That is, the Court was unwilling to define FAPE as "an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities." Although the legislative intent of the IDEA makes clear that Congress did mean for students with disabilities to have opportunities to achieve academic success, attain self-sufficiency, and contribute to society, the Court was unwilling to require those opportunities to be substantially equal to the opportunities afforded children without disabilities.
The Court refused to establish a bright-line rule or elaborate on what appropriate program would look like in each case. As a result, the definition of "appropriate" will likely continue to be the source of much litigation between parents and school districts.
Finally, as I alluded to above, the Court specifically noted that there may be instances where a child is enrolled in a regular education environment, obtaining passing marks, and advancing from grade to grade, but still not be receiving FAPE (see footnote on page 14 of the decision). Take, for instance, the case of a twice exceptional (2E) student who is intellectually gifted, obtaining passing marks with little effort, and being promoted from grade to grade. If that 2E student's curriculum is not appropriately ambitious in light of his/her exceptional needs and abilities, it could be that the school district is not providing that student with FAPE. Time will tell how administrative law judges and courts are going to deal with this kind of situation.
In light of the foregoing, the 10th Circuit's decision was vacated, and the case was remanded for further consideration consistent with the Supreme Court's decision.
Tuesday, March 28, 2017
I met with 1L's, 2L's, and 3L's and spoke with them about the field of special education law. I provided an overview of the field and described the nature of our legal practice. We also discussed recent trends and developments, and opportunities for aspiring special education lawyers. The students were engaged and enthusiastic, and asked thoughtful questions.
For those at Cardozo who may be interested in special education law, I would strongly encourage you to look into Cardozo's special education field clinic, which gives students the opportunity to complete an externship program at Advocates For Children.
Additionally, we are accepting applications for summer and fall internships at our law firm. Interested candidates can forward their cover letters and resumes to email@example.com.
Sunday, March 26, 2017
On a personal level, I think it conjures up memories of teenage angst. I wince sometimes when I think about how much "fitting in" mattered in high school. How much your identity was wrapped up in who your friends were and how they perceived you. I remember my own angst and anxiety and feeling a sense of helplessness in figuring out how to cope with them.
Most people are able to emerge from that place of teenage angst. They strengthen their sense of self, learn how to self-advocate and cope, and find themselves eventually. But some don't. And sometimes the feeling of being overwhelmed by angst, anxiety, disconnection, and despair can be so crippling that it results in tragedy. Dear Evan Hansen confronts that fact.
On a professional level, I think the show reinforced my commitment to my work. As an attorney who represents individuals with special needs, I am fortunate to be in a position to be able to help people who struggle with the kinds of emotional and social issues that are central to Dear Evan Hansen by assisting them in obtaining the kinds of supports/services that can help them address their challenges and learn how to move forward.
Dear Evan Hansen connected with my childhood self as well as my adult self. The result was a powerful experience that has left a lasting impression. Thank you Ben Platt and the rest of the incredible Dear Evan Hansen cast for bringing this story to the stage.
Tuesday, March 14, 2017
This case involved a young girl with a severe form of cerebral palsy who required the assistance of a service dog to assist her with various daily life activities. The school district refused to allow the girl to bring her service dog to school because it believed that the 1:1 aid the district had recommended on her IEP obviated the need for a service dog. The Frys believed that the school district had violated their daughter's rights under the ADA and Section 504, and they filed a lawsuit in federal court seeking declaratory relief and monetary damages for emotional distress under those statutes. They did not include IDEA claims in their federal lawsuit.
Both the federal district court and the U.S. Court of Appeals for the 6th Circuit held that the Frys had an obligation to pursue their claims through the IDEA administrative process before filing their ADA and Section 504 claims in federal court. The 6th Circuit's reasoning was that a plaintiff must exhaust the IDEA's administrative procedures whenever a plaintiff's alleged harms are educational in nature. That language sounds pretty broad...
In light of the above, a central question before SCOTUS on appeal was, When must a plaintiff exhaust the IDEA's administrative proceedings before bringing claims under other statutes?
From our law firm's perspective and for others who practice in this field, the Court's consideration of this issue is very welcomed. Requiring parents who are not challenging FAPE and cannot obtain the remedies they are seeking under the IDEA to exhaust their IDEA remedies before proceeding to federal court is a waste of time and resources. Additionally, there has been a significant amount of uncertainty relating to what claims can or cannot be heard in IDEA administrative proceedings, how the pleading of non-IDEA claims affects the parties' respective burdens of proof, and how non-IDEA claims should be pled or handled in IDEA proceedings in order to preserve one's rights under the ADA and Section 504 for future litigation in federal court. Fortunately, the Supreme Court has chimed in.
SCOTUS held that exhaustion of the IDEA's administrative procedures is unnecessary where the gravamen of the plaintiff's suit is something other than the denial of a free appropriate public education (FAPE), the core right under the IDEA.
So how do you determine whether or not the core issue in a lawsuit is a denial of FAPE? First, pursuant to the Supreme Court's ruling in Fry, courts will need to look carefully at the substance of a party's legal papers to determine what the case is about. A party, for example, would not be able to escape the exhaustion rule simply by omitting the term "IDEA" from its legal papers (a technique referred to as "artful pleading"). But if, for instance, a plaintiff is seeking something other than relief for the denial of a FAPE, such as damages as a result of having been denied equal access to a public facility or having been otherwise discriminated against, then the exhaustion rule may not apply. Courts will also look at the history of the proceedings to inform their determination. That is, if a party has pursued administrative procedures under the IDEA in the past, that could be an indication that the substance of the party's claims relates to the IDEA.
It is interesting to note that the Court specifically did not answer the question of whether exhaustion is required when he plaintiff complains of the denial of a FAPE but the specific remedy requested is not one that an IDEA hearing officer may award.
Justice Kagan wrote the Court's opinion, 5 other justices joined in, and 2 justices concurred in part; there were no dissenters. SCOTUS remanded the case to the 6th Circuit for further consideration as to whether the gravamen of the Frys' complaint relates to a denial of FAPE, and whether the Frys previously availed themselves of the IDEA's administrative procedures.
Tuesday, March 7, 2017
Some of the highlights of this year's conference included:
- General session and town hall with an esteemed panel that discussed shaping COPAA's mission, maximizing its impact, and humanizing the idea of disability.
- Selena Almazan and Denise Marshall's session titled School Vouchers and Students with Disabilities: Examining Impact in the Name of Choice. This topic is particularly relevant now in light of U.S. Secretary of Education Betsy DeVos's school choice movement. During the session, data was presented and questions were raised concerning the effectiveness of school choice programs. The group debated whether students with disabilities will benefit or be harmed by school vouchers. And we considered some of the challenges that threaten the success of school voucher programs and how those challenges might be addressed.
- Judith Gran's Analysis of Educational Benefit Standards, which addressed what level of educational benefit is required under current case law for a student with a disability in order for the student's program to be considered appropriate. This topic is very timely in light of the Endrew F. litigation pending before the U.S. Supreme Court (see 10/1 blog post for a discussion of the case).
- Keynote presentation by Gary Guller, a disabled man who defied his physical limitations by climbing to the top of Mount Everest and, during the course of his journey, led Team Everest, a group of disabled individuals on an expedition to basecamp.
COPAA is a wonderful organization with an important mission. To learn more about its work or about how you can become involved, visit the website at www.copaa.org.
On a lighter note, Dallas is full of interesting things to see and do. It is worth exploring the Dallas Museum of Art, the Katy Trail, and the city's excellent restaurants. Dallas is also the city where JFK was shot so those wanting to learn more about that dark moment in American history can visit Dealey Plaza where a museum is now located.