New Mission

New Mission


My idea is to explore how other countries around the world are dealing with education and special education issues. I’d like to see different successful schools, wherever they may be, up close. I’d like to sit down with directors and administrators. I’d like to speak with government officials who keep a pulse on the education affairs of their communities. I want to learn more about education around the globe through speaking with locals, seeing the schools, and shaking hands with the people responsible for implementing the systems. If you know of any outstanding (public or private) special needs schools in other parts of the world, I’d love to hear about them. If you know any education experts from around the world, I’d love to be introduced to them. Please do not hesitate to share your thoughts or ideas. Read more about my mission.

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Wednesday, March 29, 2017

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.

Tuesday, March 28, 2017

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.  

Sunday, March 26, 2017

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.  

Tuesday, March 14, 2017

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.  

Tuesday, March 7, 2017

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.