What Does Marijuana Have To Do With Your Child's Public Education

What does "the war on pot" have to do with your child's public education?  Well, according to an Op-Ed in the New York Times, each year 750,000 Americans are arrested for possession of small amounts of marijuana.  That means that officers are being paid to arrest these individuals, those in the legal system are being paid to arraign and process these people, and when the case goes forward, government funds are being spent to prosecute these individuals and imprison them.  These facts have been used to support the position that marijuana should be legalized in order to save money for more important government purposes, like education.  Think about all the money that could be saved if marijuana were legal, and all the revenue that would be created if marijuana were taxed, or so the argument goes. 

Putting aside your beliefs about marijuana and whether it should be legal or illegal, there's no denying that our public schools would benefit from more money.  There's also sense in the idea that if we educate our children properly now, we won't have to pay for the ramifications of their criminal behavior later.  Without getting too scientific, studies have shown that people turn to crime when they believe that the cards are stacked against them and they have no hope of advancing in society.  Despair and desperation breed crime.  So invest more money in the public schools as a preemptive strike now and nip the problem in the bud.  The question is not whether to do it but how, and the government needs to make it a prirority and figure this out.

Closing Low-Performance Schools

The New York Times and New York Post have reported that 47 New York City public schools are headed for closure due to poor performance.  Nineteen of these schools were due to close last year but those closures were put on hold, 12 were identified as the lowest-performing 5% of schools in New York, and 16 were identifed by New York City as low-performing based on its own evaluation process.  Some of these schools had a very high percentage of special education students.  It makes you cringe to think of the students who spent time at these programs because if the schools are closing down now, there's a good chance that problems existed for quite some time before that.  There are a few different possibilities for the future of these schools: (1) Phasing out -- all existing grades will be given an opportunity to graduate but no new students will be accepted so that the school gradually ceases to exist; (2) Closure -- school is closed down immediately; and (3) Overhaul -- certain elements of the program are replaced in an attempt to turn things around.  Closure would be the most drastic of these options because where will all these students go?  Before any action is taken, a series of meetings will be held at each school to give parents, teachers, and school executives an opportunity to object if they believe that the school should be kept intact.  Mayor Bloomberg has suffered the brunt of the criticism for shutting things down instead of developing a workable plan for fixing what's broken. 

Tuition Reimbursement vs. Related Services

A hot issues these days is school districts telling parents that they are not entitled to related services if they are seeking tuition reimbursement for their child's special education private school.  The districts' position is, "If you are saying that this private school is appropriate for your child, then it should have all of the services your child needs.  If it is appropriate, there shouldn't be a need for you to obtain additional services."  Based on that line of reason, school districts have in some cases refused to provide related services to students enrolled in special education private schools, and in some cases have tried to argue that the private school must not be appropriate if the child needs additional services from elsewhere.  The issue is coming up more and more frequently. 

In M.H. v. New York City Department of Education, a May 2010 U.S. District Court case in the Southern District of New York, the judge upheld the impartial hearing officer's determination that the child's special education private school was appropriate even though the school did not provide Speech, OT, or PT.  The parents were neither seeking that the services be provided by the district nor were they receiving private services and looking for reimbursement.  The child in that case was autistic and, presumably, could have benefited from those services.  Nevertheless, it was evident that the child had made significant progress even without the services and the parents were awarded tuition reimbursement.   

In contrast to M.H., there's SRO 09-119 where the parents were seeking reimbursement for the private school tuition and related services from the district as per the child's IEP.  This is distinguishable from M.H. where the parents were seeking only tuition and not services.  In 09-119, The SRO completely denied tuition reimbursement because the child required services which the school did not offer.  The student received counseling, speech, and OT but those services were funded by the school district through Related Service Authorizations.  The parent did not at any point dispute the appropriateness of these services.  Based on this, the SRO ruled that that parent did not prove that the private school met the student's needs in the areas addressed by the related services of counseling, Speech, and OT.  Tuition reimbursement was denied in its entirety.    

The SRO decision was decided in December 2009 by Paul Kelly who we know has since resigned.  District courts have overruled a number of his decisions in recent weeks since his resignation.  SRO 09-119 is currently being appealed in federal court and a decision in that case should help clarify the picture. 

Parentally Placed

What does it mean when a CSE or CPSE indicates that your child is being "parentally placed" at a particular school?  Many parents fall into this hidden trap unwittingly.  Essentially this is a way for the committee to take an easy way out, a loophole, and avoid having to give you a program recommendation.  Under federal law, a free appropriate public education means special education instruction (i.e. the program recommendation) and related services.  When a parent says that she is keeping her child in a private school, the committee takes that to mean that you are not interested in a program and are only interested in related services.  The team sometimes tries to coerce those magical words out of parents' mouths.  They will indirectly ask you if your child is currently in such-and-such private school, and many parents innocently say yes, not knowing the ramifications of that kind of statement.  The CPSE/CSE has a vested interest in doing this because (a) it reduces their obligation to the parent since they don't have to provide a program, and (b) it reduces the likelihood of a parent receiving tuition reimbursement for the private school program.  In order to obtain tuition reimbursement, a parent has to show that the city failed to provide an appropriate public school program, and if the parent was always planning to keep her child in private school, it'll be difficult to argue convincingly that the parent was truly interested in something else.  Parents should be aware of the difference between an IEP (Individualized Education Program) and an IESP (Individualized Education Services Program) and know that stating that your child is parentally placed could have important ramifications. 

Expanding the Record with Additional Evidence

When is one party allowed to introduce on appeal evidence that was not presented during a previous administrative proceeding?  In Moorestown Township Board of Education v. S.D., a very recent decision by the U.S. District Court in Camden, New Jersey, the school district was appealing an administrative decision holding that the district had denied the child a free and appropriate education and ordering the district to reimburse the parents for the private school tuition.  At the administrative level, the judge would not allow testimony from one of the individuals that the district wanted to present as a witness (a special education attorney representing school boards).  On appeal to the U.S. District Court, the school district attempted to "expand the record" by having the same witness testify.  Under federal law, additional evidence can be heard at the request of a party.  So would it be proper for this court to hear this particular evidence that the adminstrative judge purposely kept out?  The district court said, under these circumstances, NO. 

The district court said that it has to determine whether the proposed evidence is relevant and useful in determining whether Congress' goal has been reached for the child involved.  This is a case-by-case, fact-based determination.  The statute's language says "shall hear additional evidence at the request of the party" -- which suggests that the court is obligated to do it.  But the court nimbly worked around this language and reasoned that additional evidence could still be kept out if the proposed witness has no knowledge of the facts and the testimony would not help the court in reaching its decision.  In this case, it seemed that the school district wanted to present an attorney as its witness to testify about what the law means, how the law is meant to be implemented, and whether the New Jersey school district was doing it right.  You can imagine that a judge might take offense to this since interpreting the law is generally a judge's role.  The judge made sure to convey this to the school district's attorney, saying that it is "well-settled that matters of statutory construction are not a proper subject for expert testimony, but rather, questions of law to be resolved by the Court."  Read between the lines. 

The court left itself a little wiggle room, explaining that experts can sometimes testify on the specific issue of how a government agency applies and enforces its regulations if the statutory structures is complex and requires this type of testimony.  BUT, in this case, since the school district never asserted this argument and never described the details of what this testimony would show, the evidence is excluded.  The "additional evidence" has to be limited to what is relevant, non-cumulative, and useful in determining whether an appropriate education has been provided to this child.  You have to make clear to the judge how the testimony is relevant and useful to this determination, and any vague or overly broad requests are going to be denied.

Section 504 Plans

Parents often want to know whether they should get a 504 plan and whether this differs from an IEP.  The first point to keep in mind is that any child with an IEP is automatically protected by Section 504 -- the IEP is a more far-reaching legal document.  For instance, Section 504 allows students with disabilities to obtain accommodations and modifications for their disabilities, but under the IDEA which governs IEP's, any child with an IEP would be entitled to the same accommodations and modifications.  Section 504, unlike the IDEA, does not guarantee an individualized educational program to meet the child's unique needs.  It is just meant to give students the same access to education and school programs/activities as students without disabilities.  Still, a Section 504 plan can serve an important role for individuals with disabilities who do not need special education and would not qualify for IEP's.  The standard for eligibility is that the individual must have a physical or mental impairment that substantially limits a major life activity which can mean any number of activities.  If your child has been unable to obtain an IEP, you should discuss the issue of a 504 plan with your child's school.      

Misrepresentation by Schools Regarding Child Progress

What is with schools misrepresenting that a child is making progress when all indicators suggest that child clearly is not?  This issue came up recently in a NYC case handled by this office where the school told the parents of a child with autism that the boy was making progress, not knowing that the boy's parents had spoken to the classroom teacher who said that the child was lost in the classroom and, actually, not doing well at all.  The progress reports (when the school bothered to fill them out) did not reflect progress nor was the school able to offer anything in support of their position, yet they maintained that the student was receiving the full level of support that he required.

In Pennsylvania, parents of a 12-year old child with autism recently filed a class action lawsuit against the Gateway School District, accusing the district of "pervasive misrepresentation of students' educational progress."  This type of problem comes up all the time where there's an issue of systemic wrongful conduct.  The parents in this case have requested that the Court order the district to retrain its personnel on progress monitoring, re-evaluate the IEP's, and provide independent evaluations of all the district's autistic students.  That's certainly a good start and seems to be a reasonable remedy but, unfortunately, courts have shown a reluctance to order this type of across-the-board action where there are allegations of systemic problems. 

The Teachers Union Needs to Examine Its Priorities

The New York Post reported today that the teachers union spent $6.3 million to lobby for traditional public schools and teachers tenure while fighting to limit charter schools, which I think raises some serious concerns about what the teachers unions have come to represent, what their priorities are, and how they are spending their money.  Teachers serve the important role of instructing and molding our children but politics seeems to get in the way of that mission, and the concept of doing what is best for our children has been eclipsed by the teachers unions' fight to protect their teachers.  Shouldn't tenure be a mechanism for rewarding the good teachers rather than a way to insulate the bad ones?  The recent abolishment of NYC's "rubber rooms," for instance, suggests that we will not insulate teachers who have committed serious errors just because they are teachers.  So why should tenure be used as a source of immunity for teachers who are doing a poor job.

And with respect to the public school vs. charter school debate, what would happen if it were established that charter schools really do correlate with increased student progress (more research needed): would the teachers unions continue its opposition because they have become accustomed to the benefits and security offered by the union?  What if the teachers union saved some of the millions of dollars being used to lobby for public schools and against charter schools, and instead utilized that money in a way that could improve the public school system?  Perhaps to incentivize and reward good performance of its good teachers.  The rights of children to receive an appropriate education should come first.

Educating Children with Autism

The inability of school districts to appropriately educate children with autism and provide the necessary services is certainly not just a New York problem.  Take Ohio, for example, where the number of children with autism is reported to have spiked from 1,046 in 1998 to 13,441 by December 2009.  The interesting thing about Ohio is the legislation that was passed to address this issue.  Realizing that suing school districts for appropriate services can mean a long, draining, and expensive legal fight, Ohio established what is known as the Ohio Autism Scholarship.  This allows parents to withdraw their children from public schools and buy private services with taxpayer money. 

A number of issues are unclear with respect to this program: (1) If the child is not enrolled in public school, does that mean that the child would be enrolled in a private school program or home schooled; (2) If the child is in a private school program, does the alotted money go toward the private school program or toward outside services; (3) If a child's program is expensive (and some autism programs can approach $100,000/per year, sometimes more), can the money be used toward part of the tuition balance and, if so, who pays for the rest of the money owed.  NOTE: One of the conditions for receiving this scholarship grant is that the parent agrees to waive its right to an impartial hearing, which raises a red flag as to how the balance of the money owed is going to be covered.  Normally, a parent could file a claim against the school district for reimbursement of the tuition.  If the parent is waiving his/her right to do so, how is the balance being paid?  In addition, the program has several definite flaws which are still being addressed.  These have to do with financial oversight of the program, quality of the services, and communication with the local public school districts regarding the child's progress (all of which have caused problems with the administration of the program thus far).  So the program still needs to be tweaked, but it is an interesting, novel approach to address a pervasive problem.

Paraprofessional Services for Students with Autism

When will the New York City public school system be capable of meeting the educational needs of children with autism?  The jury is still out but school districts have gotten creative in dealing with parents on this issue.  One school district in NYC recently said to a parent of a child with autism that: (a) a one-to-one paraprofessional is not available to a child in a classroom as small as a 6:1:1, and (b) a paraprofessional is available only for students suffering from "behavioral crises" and not a child who has difficulty with attention, focusing and staying on task.  Neither of these contentions is true.  What the school district isn't saying is that federal law guarantees every child the supportive services required to help that child benefit from special education instruction.  The DOE's own handbook states that special education instruction includes paraprofessional services and describes them as 'placement neutral' services because they can be provided in any type of classroom, including a 6:1:1.  And if the school district is unwilling to provide a full-time para to keep this child on-task and focused, it better be able to offer a more supportive type of classroom (and it is doubtful that it can).

Reimbursement of Payments Made by School Districts for Pendency

Under federal law, a student with a disability is allowed to stay at his/her "last agreed upon placement" while due process proceedings are pending.  If the last agreed upon placement is a private school, the school district must pay for the costs of the child's education at that private school for as long as the private school is the last agreed upon placement.  The question that comes up is this: Let's say the final decision in the case is in favor of the school district -- i.e., it's later determined that the district fulfilled its obligation to offer a free and appropriate public education to the child.  Can the school district be reimbursed for the money that it laid out for the private school?  The answer is no.

In NYC Department of Education v. S.S., the court pointed out "Congress' policy choice that all handicapped children, regardless of whether their case is meritorious or not, are to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved," and ruled that the district cannot be reimbursed.  This message was echoed in a recent federal court case in Georgia, Atlanta Independent School System v. S.F.  These cases reinforce the idea that the pendency provisions are intended as a built-in protection for children with special needs and their parents.  The only way to change this would be to persuade Congress to amend the law.  Until then, school districts cannot be reimbursed for payments made during pendency.