Presence Of Special Education Teacher At IEP Meeting

In Mahoney v. Carlsbad Unified School District, the 9th circuit court of appeals considered the parents' allegations of procedural violations by the school district under the IDEA.  Among the points addressed by the court is the requirement under federal law that an IEP team must include "not less than one special education teacher, or where appropriate, not less than one special education provider of such child."  The obvious rationale behind this is to have someone knowledgeable about the student's special education issues and qualified to make recommendations.  The parents, whose child had a speech and language impairment, argued that the IEP team was improperly constituted becasue it did not include the child's current special education teacher.  Instead, the child's previous speech and language services provider was in attendance.  The court rejected the parents' argument stating that federal law does not require that it be the child's current teacher and that it was sufficient to have a provider who had at some point actually taught the student (which, the court determined, the speech provider had). 

This case is an example that not every procedural violation will be deemed a denial of FAPE.  The violation must be shown to have deprived the parents of meaningful participation in the special education process or interfered with the student's ability to benefit from the educational program.  If it were the case that the special education professional had not worked with the child in several years, or the child's needs had changed, or the provider never really understood the child's needs...that would be cause for concern.  But here, the court believed that the speech provider had worked wtih the child recently enough and was enough to fulfill the requirements under federal law.  Judges and impartial hearing officers can be picky about this type of thing - you have to be able to show more than just a technical error.

Giving Special Education Students The Option Of Applying Per-Pupil State Aid To Another Program Of Their Choosing

Wisconsin has been in the papers a lot lately and was recently highlighted for a bill affecting special education students that has been introduced into the Wisconsin State Assembly.  This bill if enacted into law would allow special education public school students to take the per-pupil state aid that their home school districts would normally receive and apply that money to a public school in a different district or a private school of their choosing.  This would be similar to voucher programs that we have seen in other places like Washington D.C. but in Wisconsin it would be called a "scholarship" and any special education student could qualify, not just low-income families. 

Does Bullying Deprive A Child Of The Right To A Free And Appropriate Education

In T.K. v. NYC Department of Edcuation, the U.S. District Court for the Eastern District of New York (EDNY) considered the following question: "If a child with a disability is bullied in school such that it interferes with academic progress, can that be construed as a denial of a free, appropriate education under the Individuals with Disabilities Education Act (IDEA)."  This issue was not conclusively decided previously in the 2nd Circuit and was therefore a case of first impression.  Oftentimes when we talk about a denial of FAPE, it is the school district that failed to provide this or that program or service.  The issue of bullying is slightly different because it involves the acts of one (or some) student(s) toward another student.  The school's potential liability here would be for its failure to prevent harm (or failure to provide a safe environment). 

Quick synoposis of the facts: 12 year old girl is classified by the CSE as having a disability.  The CSE recommends a collaborative team teaching program for the 2007-2008 school year with supports.  During that year, the girl complains to her parents constantly about being bullied at school.  The parents attempt to address the issue in person and in writing but those efforts were dismissed by the school.  After meeting to discuss the child's needs for the 2008-2009 school year, the CSE recommends the same program with fewer supports.  At this meeting, the parents attempted to discuss bullying of their daughter but the principal said it was not an appropriate time to discuss the matter.  No meeting was scheduled to address the issue and no investigation was ever conducted.  The persistent bullying and the school's lack of concern compels the parents to remove their daughter and place her in the Summit School, a private special education school.  The parents filed a claim asserting that the bullying resulted in a denial of FAPE and seeking reimbursement.  That claim was denied by the impartial hearing officer who determined that the bullying was separate from the issue of the appropriateness of the "program."  The SRO upheld that decision. 

The EDNY reviewed cases and standards from other circuits (including 1st Amendment cases showing a student's right to be free from attack by others) and attempted to articulate its own standard for determining whether bullying results in a denial of FAPE under the IDEA.  The court provided a 4-part test: (a) the plaintiff is an individual with a disability who was harassed; (b) the harassment was sufficiently severe that it substantially restricted his/her education; (c) the school knew about the harassment; and (d) the school was deliberately indifferent to the harassment.  The court made a significant distinction that "[t]he bullying need not be a reaction to or related to a particular disability" (presumably because children with disabilities are inherently more vulnerable to bullying and it shouldn't matter whether or not the harassment is because of that specific learning issue).  The court also noted that "[i]t is not necessary to show that the bullying prevent all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education."   

The court rejected the school district's argument that this would open the floodgates for litigation by anyone who has ever been bullied, stating that this only requires them to do what they were already obligated to do - i.e. address harassment incidents about which they know or reasonably should have known.

The judge concluded that the IHO erred in determining that the bullying had nothing to do with the adequacy of the program.  The IHO did not determine whether school personnel had notice of substantial bullying, whether they took reasonable steps to address the harassment, or whether the harassment rose to the level of depriving the child of an educational benefit.  Therefore, a new evidentiary hearing would be required (not exactly the conclusive determination the parents were hoping for).  Although the judge suggested that the case would be remanded for that purpose, he did not state so explicitly ("the issue requires a court evidentiary hearing, and, a possible remand to the state authorities for a rehearing").  The judge did, however, clearly leave the door open for recovery in this case ("The IDEA gives a court broad authority to grant appropriate relief") pending additional proceedings. 

8th Circuit Clarifies "Reasonably Calculated To Lead To Academic Progress" And "Least Restrivctive Enviornment"

A few days ago, the 8th Circuit Court of Appeals decided the case of C.B. v. Special School District No. 1, Minneapolis, Minnesota.  This case involved a child with a learning disability who had spent kindergarten through the fifth grade in the public school system.  He made very little, if any, academic progress during that time.  His parents therefore moved him to a private special education program for the sixth grade and filed a claim for reimbursement for the cost of the program.

At the conclusion of a due process hearing, the administrative law judge (ALJ) determined that the child was entitled to reimbursement for tuition because the school district had failed to provide an appropriate education and the private school was appropriate.  The case made its way up to the federal district court and the judge reversed the ALJ's decision on the grounds that, because all the students there had learning disabilities and received special education, it was not the least restrictive envioronment and was therefore not appropriate under federal law.  The judge also found that the district could offer an appropriate program (even though, in reality, it had not done so in a timely way). 

The 8th Circuit reversed the district court and explained that the student's minimal progress was not enough to show that the public school program was "reasonably calculated to lead to academic progress."  The record showed that the gap in reading skills between the child and his peers continued to widen.  When the child was in the sixth grade he was only reading on a first grade level - in spite of IQ tests reflecting that he was capable of a lot more.  Although a school district is not obligated to maximize a child's potential, it is obligated to provide individualized education and services that will provide real educational benefit.  It's still a case-by-case determination.  But, in this instance, this kind of slight, barely noticeable progress for a child with average intellectual ability and a positive attitude toward school/work is not sufficient.

The court also reminded the school district that a private school placement does not have to meet all of the strict requirements that a public school might.  Although federal law provides that children should be educated in the least restrictive environment, a private school does not have to satisfy this requirement in order to be appropriate.  The court explained that the concept of least restrictive envionment comes from Congress wanting to prevent "relegating handicapped children to private institutions or warehousing them in special classes."  But here, the private school was able to provide this child with an educational benefit and the decision to place him there was a result of the school district's failure to fulfill its obligation.  Therefore, the mere fact that the school contains mostly special education students and few mainstreaming opportunities is not necessarily an impediment to reimbursement.  Here it was not an impediment and the parents were awarded reimbursement. 

 

SRO Bates Decides That Parents Are Not Entitled To Reimbursement For 1:1 Paraprofessional

In Appeal No. 11-014, SRO Bates reversed an IHO's decision to reach the conclusion that the parents are not entitled to reimbursement for the cost of a 1:1 paraprofessional.  The parents in this case filed a claim for reimbursement for tuition at the Ha'or Beacon School, a private school tailored to meet the needs of children with behavioral and emotional issues.  In addition to seeking tuition, their claim also included a request for reimbursement for the cost of the child's 1:1 paraprofessional which the parents were paying for on their own.  The IHO determined that the school district had offered FAPE and the parents were therefore not entitled to reimbursement for the tuition.  However, the IHO awarded reimbursement for the paraprofessional from the time that the CSE recommended it (November 2009) until the end of the 2009-2010 school year. 

SRO Bates, however, took the position that "absent a determination by the impartial hearing officer that there was a denial of FAPE, no basis exists upon which to predicate an award of additional services."  If the CSE offered FAPE for that school year, the school district would not be liable for tuition reimbursement for the private school.  However, regardless of whether FAPE was offered, it is the parents' prerogative to send their child to a private school and if the parents choose to do so, the school district is still required to provide the related services recommended on the IEP.  Under New York law, a CSE must "assure that special education programs and services are made available to students with disabilities attention nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district."  NY Educ. Law 3602-c.  The SRO makes no mention of this provision and seems to have ignored it altogether.  As of the November 2009 IEP meeting, the CSE believed that this child required a 1:1 paraprofessional.  There is nothing in the record to suggest that the school district provided a para to the student at the private school and the parents therefore have a basis for reimbursement for the expense they incurred due to the district's failure to provide the service. 

SRO Takes Narrow Position On Independent Educational Evaluations (IEE's)

In Appeal No. 11-001, State Review Officer Bates adopts a narrow interpretation regarding Independent Educational Evaluations (IEE's).  Under the law, parents have the right to obtain a private evaluation at the school district's expense if the parent disagrees with an evaluation completed by the school district.  In this case, the parent had indicated at her IEP meeting that she disagreed with certain aspects of that IEP.  She orally requested an IEE and the district agreed but asked that the request be made in writing.  The district later indicated that it had a cap of $1,800 for this type of (neuropsychological) evaluation.  The evaluation was going to cost more than that and was never completed since the district would not cover the entire cost.

It seems unfortunate that the parent completely missed out on the opportunity to do a private evaluation.  It's unclear why the parent did not accept the $1,800 for the evaluation, personally pay the difference, and then seek reimbursement for the amount paid out of pocket.  When this case was heard after the parent's attorney requested an impartial hearing, the impartial hearing officer (IHO) determined that the school district had no obligation to cover the cost of the evaluation (even though it had agreed to it!).  The main issue here was whether a parent needs to disagree with an actual evaluation completed by the district, or it is sufficient for the parent to disagree with the IEP.  In a sense, the IEP does reflect the district's evaluation of what the child's needs and issues are so that argument is not far-fetched...but you would need a friendly IHO or SRO to see it that way.  Neither of those individuals saw it that way in this case.

The SRO upheld the IHO's decision and took the position that "evaluation" means a test or assessment and not an IEP.  Therefore, because the parents never actually disagreed with an evaluation that was completed by the district, they did not meet the necessary criteria.

School Vouchers To Be Revived In D.C.

School vouchers are back, at least in D.C., adding fuel to the fire in the debate about parental choice when it comes to sending one's children to school.  The voucher program had experienced trouble in the past in light of studies showing that it did not lead to higher student achievement and was not effective.  For the next 5 years $20 million will be allocated annually to offer vouchers to low-income students (and perhaps middle-income students) toward private school tuition.  What effect will this have on public schools?  How will this impact special education?

The argument is the same as with charter schools - the more money allocated to benefit these programs, the less money the public schools receive.  Special education often takes a big hit when money is tight because schools are then unable to afford the providers needed to deliver services.  Those providers who are on payroll are stretched thin among a number of schools and are assigned more students than they can handle.  Like charter schools, the voucher program threatens public school education.  The theory is that public schools will be forced to compete and improve in response but the reality is that schools become paralyzed due to a lack of funds.  Schools will have a much tougher time improving their programs when there is even less money coming in.

The intentions behind the voucher program are good but it's not clear what the voucher program can do for the lowest-income families.  Low-income parents wishing to send their children to private schools likely will still have to contribute the difference between the value of the voucher and the total cost of the program.  The poorest families would not be able to take full advantage of the voucher opportunity and would be stuck in public school.  The end result is that the public school population becomes poorer and poorer and studies have shown the positive correlation between poverty and low academic performance - the poorer the students, the lower the academic performance.

D.C. Cheating Scandal

The recent spotlight on Washington D.C. has been mostly about the threat of the government shutdown.  Prior to that, the focus was on then-chancellor Michelle Rhee and the education reform she spread.  Now the focus is back on education and recent allegations of a cheating scandal in D.C. public schools.  A national study conducted by USA today targeted the Crosby S. Noyes school whose math proficiency scores have been consistently high and have indicated astounding increases over the last few years.  That raised a red flag of sorts as other schools in D.C. continue to struggle mightily.  Teachers and principals are accused of erasing students' wrong answers and replacing them with correct answers presumably to obtain bonuses which they were awarded if student performance reached a certain level.  If the allegations are true, this story has important implications nationally as the debate continues regarding how to evaluate, score, reward, promote, and fire teachers and what role student performance/achievement is to have in that mix.  The more pressure we place on teachers to increase student performance, the more temptation (theoretically) for a teacher to cook the books.  The D.C. Board of Education is conducting its own investigation into the matter.  However, the broader question of how to improve teaching and student performance and prevent cheating and fraud is not a quick fix but rather something that needs to be looked at and considered carefully. 

You also find the full USA Today article at: http://www.usatoday.com/news/education/2011-03-28-1Aschooltesting28_CV_N.htm

New York State Education Department Commissioner David Steiner To Resign

Shaking things up a little more in the wake of Cathie Black's resignation, New York State Education Department Commissioner David Steiner has announced that he too will be stepping down.  Commissioner Steiner was responsible for granting the waiver that overlooked Cathie Black's lack of credentials and allowed her to become chancellor.  Commissioner Steiner intends to be out sometime before August 2011.  He and Ms. Black are joined by several other education officials from the NYSED and the NYCDOE who recently announced plans to move on. 

Chancellor Cathie Black To Step Down?

The New York Times reports this morning that Chancellor Cathie Black is to step down from her position as chancellor of the NYC public schools after a tumultuous appointment and start in office.  Chancellor Black's appointment by Mayor Bloomberg was hotly conteseted because of her lack of educational experience but a waiver from the Commissioner of Education allowed her to assume the role.  The controversy continued during her short time in office and it now seems that she is on her way out. 

Read more at:  http://cityroom.blogs.nytimes.com/2011/04/07/cathie-black-is-out-as-chancellor/?emc=na