Some Thoughts for the New Year

This week I was able to get away from the office for a family ski trip to Park City, Utah.  It was a welcome escape from the hustle and bustle of New York City and I was looking forward to spending time in a quiet and beautiful place that I knew would offer amazing natural beauty.

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.

Manhattan Children's Center Seeds Of Hope Gala

Last week I had the pleasure of attending the Manhattan Children's Center's (MCC) Seeds Of Hope gala at The Plaza Hotel in Manhattan.  For MCC, this year's celebrations marked ten years of educating children with autism.  I particularly enjoyed hearing remarks from Dr. Cecilia McCarton, founder of The McCarton Center for Developmental Pediatrics and the Keswell School, who was awarded the Distinguished Scientist Award, and Dr. Orrin Devinsky, a friend of Dr. Oliver Sacks, a pioneer in the research of individuals with autism and severe neurological disorders who was posthumously awarded the MCC Humanitarian Award.

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.

Tribeca Film Festival & Disability

I am a big fan of the Tribeca Film Festival and look forward to attending whenever the event rolls around.  At this year's festival, I had the pleasure of seeing a film called Keep The Change.  It is a beautiful film that explores a relationship between two individuals with special needs.  Written and directed by Rachel Israel, it is touching, funny, and very enjoyable.  It is also authentic in that the actors themselves have disabilities of their own.  After the screening, the audience was treated to a Q&A with some of the actors and Ms. Israel.  

If you are interested in seeing Keep The Change, there are still two screenings remaining on Tuesday, April 25 at 7:45 p.m. and Sunday, April 30 at 5:45 p.m., although tickets appear to be available on a rush basis only.  You can read more about the film here.

SCOTUS Decides Endrew F. Case And Establishes New Legal Standard

The U.S. Supreme Court recently decided the case of Endrew F. v. Douglas County School District (see 10/1/16 and 1/17/17 blog posts for further background).  In a unanimous decision penned by Chief Justice John Roberts, SCOTUS held that, to meet its obligations under the IDEA, a school district must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.

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.

Nosh & Knowledge at Cardozo Law School

Last week I had the pleasure of participating as the featured speaker in Cardozo Law School's Nosh & Knowledge program.  The program is intended as an informal dialogue between practitioners and law students to introduce students to different practice areas.

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 info@dayanlawfirm.com.  

Dear Evan Hansen

I've seen Dear Evan Hansen twice so far (off-Broadway when it debuted, and recently on Broadway).  Without giving anything away, the show revolves around a high school boy trying to find himself and deals with important issues concerning identity, self-esteem, and fitting in.  I enjoyed the show immensely both times but I have been struggling to put my finger on why the show has affected me so profoundly on both a personal and professional level.  

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.  

Fry v. Napoleon Community Schools

The U.S. Supreme Court (SCOTUS) recently decided the case of Fry v. Napoleon Community Schools, which has important implications for families of children with disabilities and whether they have a duty to exhaust Individual with Disabilities Education Act (IDEA) administrative proceedings before pursuing a claim under other laws that protect individuals with disabilities such as the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504).

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.  

COPAA 2017

This past weekend I had the opportunity to attend the Council of Parent Attorneys and Advocates' 2017 conference in Dallas, Texas (my eighth COPAA conference).

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.

Cardozo Law School Symposium on Personhood and Civic Engagement by People with Disabilities

This is a follow-up to my previous post about Cardozo's Symposium on Personhood and Civic Engagement by People with Disabilities.  Those who attended the symposium were rewarded with a fantastic event consisting of thought-provoking panels and highly esteemed panel members.  Some of the biggest highlights for me included: 

1) Rosemarie Garland-Thomson's discussion about personhood and the roles that government, science, and culture play in defining it.  She spoke captivatingly about the study of eugenics and the role it has played in influencing society's views toward and treatment of people with disabilities throughout history.  I was surprised to learn of a quote from U.S. Supreme Court Justice Oliver Wendell Holmes from Buck v. Bell, 274 U.S. 200 (May 2, 1927), a case which is considered to have legitimized the eugenics movement in the U.S., in which Justice Holmes stated "three generations of imbeciles are enough" in supporting a Virginia statute providing for the sexual sterilization of those deemed to be unfit to bear children.  That led me to do some further research.  If you'd like to read more about this case and its role in the eugenics movement, check out Buck v. Bell and HuffPo.

The eugenics movement in the U.S. and the aftermath from World War II and the Holocaust led to a series of declarations, agreements, and laws regarding personhood, including the Education for All Handicapped Children Act (EAHCA or EHA), which later evolved into the Individuals with Disabilities Education Act (IDEA), and the Americans with Disabilities Act (ADA).      

2) Eric Rosenthal's talk about his organization Disability Rights International (DRI), which is dedicated to the protection and full inclusion of children and adults with disabilities under international human rights law.  Learning about and fighting for the rights of people with disabilities on an international level is something that interests me deeply.  One of the points from Eric's talk that stayed with me was the importance of directing foreign aid in an appropriate manner so as to bring about positive and meaningful results instead of perpetuating organizations that may be harmful.  More information about the organization and its work can be found on DRI's website at http://www.driadvocacy.org/.

3) Judge Kristin Booth Glen's, Robert Dinerstein's, and Leslie Salzman's lectures about exercising legal capacity.  Specifically, they addressed some of the problems with guardianship and the extent to which guardianship takes away decision-making power from the individual and deprives the individual of opportunities to interact meaningfully with others. They also explained the concept of Supported Decision Making, meant to provide individuals with disabilities more decision-making power through a series of contracts to make and communicate their decisions for various situations.  This raised a number of questions for me, such as: how would these agreements be written, what kinds of decisions would they address, how would they be implemented and enforced, what costs would be involved for the individual's family, and what kind of legislation would be necessary to make this possible. 

Other highlights from the symposium included watching a powerful video performance of "Gimp" by the Heidi Latsky Dance group, an organization dedicated to broadening exposure to disability and dance, and hearing from Bernard Carabello, a former inmate at the infamous Willowbrook State School in New York, who collaborated with Geraldo Rivera to expose Willowbrook's abuses, which led to the shuttering of the institution and the start of a movement to end institutionalization and promote inclusion. 

Cardozo will be publishing scholarly articles written by some of the panelists on some of these topics in an upcoming law review journal.  I will be looking out for it.   

I also want to note that it's been almost 9 years since I graduated from Cardozo.  Union Square is still young and cool.  The New School still dominates the corner of 14th Street and 5th Avenue albeit in its new honeycomb form.  NYU's presence continues to be felt (even more so now that they have taken over the old Forbes building directly across from Cardozo).  And as much as the area has stayed the same, I know I have not, and it was interesting to reflect upon that as I walked from the subway station to the school.   

Cardozo Law School Symposium on Personhood and Civic Engagement by People with Disabilities

I am excited to be returning tomorrow to Cardozo Law School, my alma mater, for a symposium on personhood and civic engagement by people with disabilities.  I hope to write a post later with some highlights from the event.  In the meantime, here is an overview of the program:

Personhood and Civic Engagement  by People with Disabilities:  A Conference to Explore the Legal Underpinnings of Personhood and the Barriers to Participation by Persons with Disabilities in Civic and Social Life A Cardozo Law Review Annual Symposium

The Symposium will feature Professor Rosemarie Garland-Thomson, as the Keynote Presenter, and Professor Samuel Bagenstos, as the Featured Lunchtime Speaker. Panels will focus on the topics of Personhood in Popular Culture, Exercising Legal Capacity, and the Uses of "Disability," as well as Strategies for Promoting Inclusion.

Thursday, February 23, 2017 9:00 a.m - 7:15 p.m. 8:30 am - 9:00 am - Registration and Breakfast (Lobby) 9:00 am - 10:00 am - Keynote Presentation by Professor Rosemarie Garland-Thomson (Moot Court Room) 10:00 am - 11:15 am - The Interplay Between Notions of Personhood in Popular Culture and Developments in the Law (Moot Court Room) Moderated by David Ferleger, Esq.  Panelists: Elizabeth Francis Emens, Columbia Law School Faye Ginsburg & Rayna Rapp, New York University  Jerron Herman, Heidi Latsky Dance Ruth Lowenkron, New York Lawyers for the Public INterest 11:30 am - 1:00 pm - Exercising Legal Capacity: Legal Barriers to the Actualization of Personhood (Moot Court Room) Moderated by Robert Fleischner, Center for Public Representation  Panelists: Robert Dinerstein, American University Washington College of Law  The Honorable Kristin Booth Glen, City University of New York School of Law Arlene S. Kanter, Syracuse University College of Law Danielle Lazzara, Quality Services for the Autism Community (QSAC) Leslie Salzman, Benjamin N. Cardozo School of Law 1:00 pm - 1:30 pm - Lunch (Lobby) 1:30 pm - 2:30 pm - Featured Lunchtime Presentation by Professor Samuel Bagenstos (Moot Court Room) 2:45 pm - 4:15 pm - On the Uses of "Disability" in Pursuing and Realizing Rights (Moot Court Room) Moderated by Professor Mark Weber, DePaul University College of Law  Panelists: Kevin Cremin, MFY Legal Services, Inc.  Rebekah Diller, Benjamin N. Cardozo School of Law Leslie Francis, University of Utah, & Anita Silvers, San Francisco State University Shira Grabelsky, New Mexico School for the Deaf The Honorable Robert M. Levy, Eastern District of New York 4:30 pm - 5:45 pm - Strategies for Promoting Inclusion (Moot Court Room) Moderated by Professor William Brooks, Touro College, Jacob D. Fuchsberg Law Center  Panelists: Ruth Colker, Mortiz College of Law Anne Emerman, Social Worker, Disability Rights Activist  Sagit Mor, University of Haifa Eric Rosenthal, Disability Rights International 5:45 pm - 7:15 pm - Reception & Dinner to honor the Keynote Presenter, Featured Lunchtime Presenter, Panelists and Moderators (Lobby)

Betsy DeVos Confirmed As U.S. Education Secretary

Betsy DeVos was confirmed as education secretary today by Vice President Mike Pence as a result of a 50-50 tie in the senate.

The nomination, and now confirmation, of Ms. DeVos has been extremely controversial.

Critics of Ms. DeVos have pointed out that she is unaware of the Individuals with Disabilities Education Act (IDEA), the expansive federal law governing the rights of students with disabilities; that she has no experience with public school education and does not understand how the public education system works; and that her efforts relating to charter schools and voucher systems have not been effective.

Supporters of Ms. DeVos believe that an emphasis on charters and vouchers will give low-income families more choices as to where to send their children to school and force public schools to become more competitive.

Some other questions and concerns to note about DeVos's educational agenda:

• Where will the funding for charter schools/voucher programs come from? 
• What level of oversight/accountability will be imposed? 
• Will vouchers be available to all or means-based? 
• Can vouchers work with programs that follow a for-profit model? 

My personal thoughts will follow in a separate or updated post soon.

In the meantime here are some recent articles on the subject:

NY Times: Betsy DeVos Confirmed as Education Secretary; Pence Breaks Tie

The Atlantic: 5 Things to Know About Betsy DeVos, Trump's Pick for Education Secretary

UPDATE: Endrew F. v. Douglas County School District

In October, I posted about the Endrew F. case, which is currently before the U.S. Supreme Court concerning what level of educational benefit is required for a student with a disability under the Individuals with Disabilities Education Act (IDEA).  Since then there have been some important developments.

The federal government filed a brief in support of the child and his family, arguing that school districts should offer a program aimed at significant educational progress in light of the child's circumstances.  A number of groups submitted amicus briefs.  For instance, a group of 118 former and current members of Congress filed an amicus brief arguing that the IDEA intended to provide meaningful and material educational benefits so that students with disabilities could reach their potential and live independently.

Oral arguments happened last week on Wednesday, January 11.  The transcript of the oral arguments follows in the link below, as well as an article that provides a thorough analysis:

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-827_gfbh.pdf

http://www.scotusblog.com/2017/01/argument-analysis-justices-grapple-proper-standard-measuring-educational-benefits-children-disabilities/

From what I have gathered so far, the justices seem to be of the mind that students with disabilities are entitled to greater educational benefit than the bare minimum.  However, they seem to be grappling with how to articulate a clear standard capable of implementation.

Some justices have expressed concerns about what additional costs this would impose on school districts; whether it is appropriate for the justices, who lack expertise in education, to be the ones creating this standard; how to deal with students who, because of their disabilities, are unable to follow the general education curriculum at grade level; and whether articulating a new standard would create a flood of litigation and lead to the Supreme Court becoming involved in other education-related decisions in the future.

SCOTUS is expected to issue a decision by the end of June 2017.  Stay tuned.  

A.M. v. New York City Department of Education

I am excited to write about an important case that was just decided by the 2nd Circuit U.S. Court of Appeals -- A.M. v. New York City Department of Education (DOE).

This case involved a child with autism for whom there seemed to be a consensus that 1:1 ABA services were necessary based on private evaluative materials.  The school district had not conducted its own evaluations and did not have any materials suggesting that some other methodology should be used for this student.  The school district's IEP team, however, while it may have relied on the parent's private evaluations and professionals to better understand the child's needs, did not follow their recommendations.  This scenario may sound familiar to parents who have gone through the special education process expecting their team to follow the recommendations from the private professionals they have consulted.

One question presented in this case is, To what extent does an IEP team have to follow the recommendations of private evaluators and professionals with respect to the program and services that a child requires?  A related and broader question is, To what extent is a school district obligated to consider "methodology" in making recommendations for a child with special needs?  For example, in this case, where the child at issue was a child with autism for whom 1:1 ABA services were recommended, to what extent is a school district required to recommend the specific methodology of Applied Behavior Analysis, as opposed to a more eclectic instructional approach or a different one entirely?

A three-judge panel consisting of Judges Kearse, Wesley, and Droney agreed with the parent's argument that the IEP team's 6:1:1 classroom recommendation and its failure to guarantee any 1:1 ABA therapy in the IEP "went against the consensus of the evaluative materials present at the CSE meeting," which demonstrated that the child required ABA and a significant amount of 1:1 instruction.  The Court articulated the following principle:

[W]hen the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not "reasonably calculated to enable the child to receive educational benefits," and the state's determination to the contrary is thus entitled to no deference because it is unsupported by a preponderance of the evidence. . . .  This remains true whether the issue relates to the content, methodology, or delivery of instruction in a child's IEP. 

This is great language and parents should rely on this principle when advocating for specific programs and methodologies that have been recommended by private professionals.

Lots of good nuggets in this decision.  I want to highlight one more.

Parents familiar with the special education process who have had their children enrolled in private placements may have been told by their IEP team, "Well, your child is progressing so nicely at his/her private placement, it's time to transition him/her to a less restrictive setting."  The A.M. decision pointed out the flaws in this reasoning.  The Court stated that the logical inference that a child has made gains while attending a private placement "would suggest that the more restrictive academic setting in which he was learning adequately addressed his needs and should thus be continued; not that the program should be discontinued and that he should be transitioned to a less restrictive learning environment. . . ."

A great decision for parents of children with special needs.