Special Education Law Blog

Bullying of Kids With Disabilities - Part IV

2013-06-14T11:05:00.000-04:00

Some guys doing intimidation in Instituto Regional Federico Errázuriz, Santa Cruz, Chile (Photo credit: Wikipedia)

Bullying remains the hottest of hot button issues in special education law. In the first installment, I explained the early cases laying the conceptual groundwork for the proposition that failure to react to bullying can constitute a denial of FAPE under IDEA. In a later installment, I discussed the seminal decision of TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011). This case is important not just because it analyzes special education law principles involving bullying, but also because it provides a thorough review of the social science literature on bullying. You should read this case and you can do so here.

Today I provide more of the court's opinion. You really should read the whole thing. These are not my words:

1. What Constitutes Bullying

Bullying is not a new phenomenon; literature is blotted with bullies, and many people have had personal experience with a schoolyard antagonist. Dan Olweus, Bully at School: What We Know and What We Can Do 1 (1993). The bully-victim relationship is characterized by a real or perceived imbalance of power and encompasses a variety of negative acts that are carried out repeatedly over time. Id. at 9; Nels Ericson, U.S. Dep't of Justice Office of Juvenile Justice and Delinquency Prevention Fact Sheet,Addressing the Problem of Juvenile Bullying 1 (2001), available at http://www.ncjrs.gov/pdffiles1/ ojjdp/fs200127.pdf. Negative actions can broadly be described as inflicting or attempting to inflict discomfort upon another. Olweus, supra, at 9. Bullying takes three forms: physical (e.g. hitting); verbal (e.g. taunting); and psychological (e.g. engaging in social exclusion). Ericson, supra, at 1. Indirect, psychological bullying, in the form of exclusion and isolation is often less visible, but not less corrosive. Olweus, supra, at 10. "The consensus among physicians and social scientists, educators and youth development organizations, civil rights advocates and law enforcement is that bullying is neither inevitable nor normal. . . ." Julie Sacks and Robert S. Salem, Victims Without Legal Remedies: Why Kids Need Schools to Develop Comprehensive Anti-Bullying Policies, 72 Alb. L. Rev. 147, 147-48 (2009). Despite this consensus, bullying continues to occur at an alarming rate. A study by a group of psychologists provides an illustration. While observing groups of kindergarten and first grade students, researches noted an incident of bullying on the playground every three to six minutes. James Snyder et. al., Observed Peer Victimization During Early Elementary School: Continuity, Growth, and Relation to Risk for Child Antisocial Depressive Behavior, 74 Child Dev. 1881, 1885 (2003).

"(T)he highest prevalence of bullying is among elementary-school aged children." Gwen M. Glew et. al.,Bullying Psychological Adjustment, and Academic Performance in Elementary School, 159 Archives of Pediatric and Adolescent Med. 1026, 1026 (2005). Younger students of both sexes are the most likely to be singled out as victims. J.F. Devoe and S. Kaffenberger, U.S. Dep't of Educ., Student Reports on Bullying: Results from 2001 School Crime Supplement to the National Crime Victimization Survey 14 (2005), available at http://nces.ed.gov/pubs2005/2005310.pdf. Children who struggle academically are more likely to be victims or be both victim and aggressor. Glew, supra, at 1030. Bullying can be carried out by an individual or a group. Olweus, supra, at 9. The victim of school bullying is most often a single person. Id.

Initially, victimization is situational; "only over time does the field of children who are consistently victimized become narrowed on the basis of ongoing experience." Snyder, supra, at 1881; Macklem,supra, at 66 (finding that once a child is labeled a victim, his status within the peer group drops). This leads to a subset of children being caught up in a "vicious cycle in which victimization and maladjustment feed off one another." Snyder, supra, at 1881. In particular, girls who are unable to develop supportive peer relationships are at an increased risk for persistent ostracism and rejection. Id.at 1895.

"Youth who are victimized are likely marginalized from the mainstream peer group, lacking access to prosocial peers who provide role models of appropriate social skills, and also protection against bullying." Nansel, supra, at 735. The most common place for victimization in elementary school is the playground, followed by the classroom and gym class. Glew, supra, at 1029.

Dueling Children Left Behind? Major Parties Offer Different ESEA Reauthorization Bills

2013-06-12T18:58:00.000-04:00

English: President Lyndon B. Johnson signing the Elementary and Secondary Education Act (Photo credit: Wikipedia)

The Elementary and Secondary Education Act, better known as The Artist formerly known as No Child Left Behind, is way due for reauthorization. Although the Act was blended with IDEA in the NCLB incarnation, that may or may not change when ESEA is finally reauthorized.

In what can hardly be called breaking news, the two major political parties introduced one or two versions each of a reauthorization bill for ESEA last week. They did not agree!

Here is a statement by the Democrats on their ESEA bill. Here is an article about the bills introduced by House and Senate Republicans. Assuming that both houses pass the same bill or that a conference committee passes a final version, and assuming that the President signs the bill, ESEA will be reauthorized for the first time in ten years. But don't hold your breath. Any Questions?

Bullying of Kids With Disabilities - Part III

2013-06-05T16:05:00.001-04:00

Some states in the United States have implemented laws to address school bullying. Law prohibits bullying of students based on sexual orientation and gender identity Law prohibits bullying of students based on sexual orientation only School regulation or ethical code for teachers that address bullying of students based on sexual orientation Law prohibits bullying in school but lists no specific categories of protection No statewide law that specifically prohibits bullying in schools (Photo credit: Wikipedia)

Bullying remains the hottest of hot button issues in special education law. In an earlier installment, I explained the early cases laying the conceptual groundwork for the proposition that failure to react to bullying can constitute a denial of FAPE under IDEA. In the last installment, I discussed the seminal decision of TK & SK ex rel LK v. New York City Dept of Educ 779 F.Supp.2d 289, 56 IDELR 228 (E.D.N.Y. 4/25/2011). This case is important not just because it analyzes special education law principles involving bullying, but also because it provides a thorough review of the social science literature on bullying. You should read this case and you can do so here.

In this installment, I begin to review the literature on bullying. Please note the court provided these words in its opinion. I cannot take credit for the analysis:

E. Bullying in America

Were bullying characterized as a disease affecting America's youth, a team from the Center for Disease Control charged with investigating epidemics would have been called in to study it. Joseph L. Wright, Address at American Medical Association Educational Forum on Adolescent Health: Youth Bullying 23 (2002), available at http://www. ama-assn.org/amal/pub/upload/mm/39/youthbullying.pdf. ("If [bullying] were a medical issue, for example an infectious disease in my pediatrics practice, we would have the Epidemic Intelligence Service people from the Centers for Control and Prevention investigate it. The prevalence and epidemiology is striking."). The problem is pervasive; it is perceived by educators as serious, particularly in the middle school years. Michaela Gulemetova, Darrel Drury, and Catherine P. Bradshaw, Findings Form the National Education Association's Nationwide Study of Bullying: Teachers' and Education Support Professionals' Perspectives, in White House Conference on Bullying Prevention, at 11-12 (March 10, 2011), available at http://www. stopbullying.gov/references/white_house_conference/index.html. ("Over 40 percent of [teachers and support staff surveyed] indicated that bullying was a moderate or major problem in their school, with 62 percent indicating that they witnessed two or more incidents of bullying in the last month, while 41 percent witnessed bullying once a week or more."). It is the most common type of violence in our schools. Macklem, supra, at 7.

The issue first seized the attention of the American public after the 1999 shooting at Columbine High School that killed fifteen students and wounded two dozen more. Susan P. Limber, Addressing Youth Bullying Behaviors, in American Medical Association Educational Forum on

Adolescent Health: Youth Bullying 5 (2002), available at http://www.amaassn. org/amal/pub/upload/mm/39/youthbullying. pdf. As part of the investigation that followed the Columbine massacre, the Secret Service examined thirty-seven shooting incidents. They determined that in two-thirds of those cases, the shooter described feeling bullied, persecuted, or threatened at school. Bill Dedman, Secret Service Findings Overturn Stereotypes, Chicago Sun-Times Report, Oct. 15-16, 2000, at 9; Limber, supra, at 5. "I just remember life not being much fun, a shooter recalls. Reject, retard, loser.' I remember stick boy a lot cause I was so thin." Dedman, supra, at 9.

More recently, stories of bullied victims taking their own lives have become common. See, e.g., John Schwartz, Bullying, Suicide and Punishment, N.Y. Times, Oct. 3, 2010, at Al (discussing the suicides of three teens as a result of online bullying); Limber, supra, at 5 (noting that internationally the study of bullying was triggered by the suicides of three young boys in Norway in the 1980s). Some one third of students are engaging in aggressive behavior directed at their peers, oftentimes with the goal of increasing their popularity. Tara Parker-Pope, Web of Popularity, Achieved by Bullying, N.Y. Times blog, (Feb. 14, 2011, 5:03 p.m.), available at http://well.blogs.nytimes.com/2011/02/14/ web-of-popularity-weaved-bybullying/' scp=1&sq=Tara% 20ParkerPope% 20bully&st=cse.

National leaders and educators continue to work toward a solution. President Obama held a summit and announced new federal programs that aimed at "dispel[ing] the myth that bullying is just a harmless rite of passage or inevitable part of growing up." Jackie Calmes, Obama Focuses on Antibullying Efforts,N.Y. Times, March 10, 2011, at A18.

Presidential summits and school shootings achieve headlines, but the day-to-day adverse affects of bullying in damaging educational opportunities to students are as real as they are unnoticed. It is a problem that affects the school performance, emotional well-being, mental health, and social development of school children throughout the United States. Tonja R. Nansel et. al., Cross-national Consistency in the Relationship Between Bullying Behaviors and Psychosocial Adjustment, 158 Archive of Pediatric and Adolescent Med. 730, 733-35 (2004). Whether a child is the victim, aggressor, or merely a bystander, research shows that those in a close vicinity to bullying are adversely marked. Id. See also, Macklem, supra, at 44, 90-92.

Fun With Numbers: Annual NCES Report Released

2013-05-30T11:23:00.001-04:00

English: National Center for Education Statistics logo. (2010, U.S. Department of Education. Institute of Education Sciences, National Center for Education Statistic). (Photo credit: Wikipedia)

The National Center for Education Statistics, which is a division of the Institute of Education Sciences of the U. S. Department of Education, released its annual report this month. The title of the report is "The Condition of Education 2013." (NOTE: in government-talk, the 2013 annual report is for the 2010-2011 school year. Got that?)

Concerning special education, the report notes that by 2010-2011, the number of children and youth receiving services declined to 6.4 million, corresponding to 13 percent of total public school enrollment.

The report notes that 37% of the students receiving services were eligible under the category of specific learning disability. (NOTE I hate our emphasis upon the category of disability. Long time readers know that I believe that it promotes stereotypical thinking. Indeed the law requires analysis of a student's individual needs once she is eligible.)

About 95 percent of school-age children and youth ages 6–21 who were served under IDEA in school year 2010–11 were enrolled in regular schools. Three percent of children and youth ages 6–21 who were served under IDEA were enrolled in separate schools (public or private) for students with disabilities; 1 percent were placed by their parents in regular private schools; and less than 1 percent each were in separate residential facilities (public and private), homebound or in hospitals, or in correctional facilities.

You can read the entire report here. It contains a wealth of information on education. You may find it to be useful, please check it out.

Bullying of Kids With Disabilities - Part II

2013-05-28T12:00:00.002-04:00

Some states of the United States have implemented laws to address school bullying. Law prohibits bullying of students based on sexual orientation and gender identity Law prohibits bullying of students based on sexual orientation School regulation or ethical code for teachers that address bullying of students based on sexual orientation Law prohibits bullying in school but lists no categories of protection No statewide law that specifically prohibits bullying in schools (Photo credit: Wikipedia)

Bullying remains a hot button issue in special education law. This is the second post in the current series on this topic. In the last post, I discussed some of the key cases finding that bullying of children with disabilities can be a violation of the Individuals with Disabilities Education Act (or IDEA as we often refer to it here.) With that analytical basis, we now turn to a more recent court decision.

The opinion in TK & SK ex rel LK v. New York City Dept of Educ 56 IDELR 228 (E.D.N.Y. 4/25/2011) is a must read.The case involves a twelve year old girl with a specific learning disability. Her peers ostracized her, pushed her and ridiculed her daily. They refused to touch any item that she had touched. Yes kids can be very cruel.

The Court held that when facing a situation in which a child with a disability is allegedly being bullied, a school district must take prompt and appropriate action including making an investigation and taking steps to prevent future abuse. In this case, the Court found that the district did nothing despite parent requests to discuss the problem. The Court held that where the educational benefit to the student was adversely affected by the bullying, FAPE had been denied. The Court awarded reimbursement to the parents for the tuition of the private school in which they had unilaterally placed the student.

In the next posts on this issue, I will quote some of the literature on bullying in America that was relied upon by the court in this case. You can review the entire opinion here.

Breaking: Public Education Spending Down For First Time in Forty Years

2013-05-22T01:00:00.000-04:00

U.S. Census Bureau map of Wallington, New Jersey (Photo credit: Wikipedia)

According to a report by the US Census Bureau, fiscal year 2011 marked the first decrease in per student public education spending since the U.S. Census Bureau began collecting data on an annual basis in 1977, according to new statistics released today (dollars not adjusted for inflation). You can read the entire report as well as state level tables and other resources here.

The 50 states and the District of Columbia spent $10,560 per student in 2011, down 0.4 percent from 2010. The top spenders were New York ($19,076), the District of Columbia ($18,475), Alaska ($16,674), New Jersey ($15,968) and Vermont ($15,925).

Total expenditures by public elementary and secondary school systems totaled $595.1 billion in 2011, down 1.1 percent from 2010. This is the second time total expenditures have shown a year-to-year decrease, the first time being 2010.

Of the $595.1 billion in total expenditures for public school systems, $522.1 billion is comprised of current spending (i.e. operational expenditures, not including long-term debt). Expenditure for instruction amounted to $316.3 billion (60.6 percent) of the total current spending, while costs for support services amounted to $178.7 billion (34.2 percent). Instructional salaries were the largest expenditure category for public elementary and secondary education, accounting for $208.8 billion in 2011.

On the revenue side, public schools received $599.1 billion in total revenue for 2011, an increase of 1.1 percent from 2010. The largest source of revenue is from state governments at $265.9 billion (44.4 percent of total revenue), followed by local governments at $259.5 billion (43.3 percent) and the federal government providing $73.7 billion (12.3 percent).

States that had the highest percentage of their total public school revenue coming from federal funding included Mississippi (22.3 percent of the statewide education revenue), South Dakota (20.3 percent), Louisiana (18.7 percent), Alaska (17.8 percent), Florida (17.8 percent) and New Mexico (17.7 percent).

Conversely, states that had the lowest percentage of their total school revenue coming from federal funding were New Jersey (5.1 percent), New Hampshire (6.5 percent), Vermont (7.1 percent), Massachusetts (7.8 percent), Minnesota (7.8 percent) and Connecticut (8.3 percent).

Other highlights:

--Property taxes accounted for 65.6 percent of revenue from local sources for public school systems.

--Of the 100 largest school systems by enrollment in the U.S., New York City School District ($19,770) in New York had the highest current spending per student in 2011, followed by Baltimore City Public Schools in Maryland ($15,483), Montgomery County Public Schools in Maryland ($15,421), Milwaukee Public School in Wisconsin ($14,244) and Prince George's County Public Schools in Maryland ($13,775).

--States spending the least per student were Mississippi ($7,928), Arizona ($7,666), Oklahoma ($7,587), Idaho ($6,824) and Utah ($6,212).

--Eight out of nine states in the Northeast region of the U.S. were ranked among the top 15 in current spending per student in 2011. The remaining state in the northeast, Maine, was ranked 17th. Out of the 16 states with the lowest per student spending, 15 were in the South and West regions. The remaining state, South Dakota, was in the Midwest.

Bullying of Kids With Disabilities - Part I

2013-05-18T10:36:00.000-04:00

English: this is my own version of what bullying looks like (Photo credit: Wikipedia)

We are repeating our very popular series on bullying of children with disabilities. This was one of our best received series, and bullying remains the hot button issue in special education law. We will include some updates and news. Please enjoy the series and send us any feedback!

Bullying is a real problem in our society. Bullies often take advantage of those whom they perceive as weaker. The Columbine tragedy brought the problem to a higher level of public awareness, but the problem persists.

Kids with disabilities are often singled out by bullies. This has become one of the hottest of hot button issues in special education law. Several laws could be implicated, but my focus here will be upon whether bullying can constitute a violation of IDEA.

In the next installments, I'll discuss a well-reasoned recent decision, but first some background on the legal foundations for this analysis:

In the seminal decision by the Third Circuit in Shore Regional High Sch. Bd. of Educ. v. P.S. 381 F.3d 194, 41 IDELR 234 (3d Cir. 8/30/2004) recognized that bullying could prevent educational benefit, and a school district’s failure to respond could constitute a denial of FAPE. See also, Gagliardo v. Arlington Central Sch Dist 489 F.3d 105, 48 IDELR 1 (2d Cir. 5/30/2007).

Shortly, thereafter the Second Circuit ruled that a student with a disability cannot receive educational benefit or FAPE if he is not in a safe environment. Lillbask ex rel Mauclaire v. State of Connecticut Dept. of Educ. 397 F.3d 77, 42 IDELR 230 (2d Cir. 2/2/2005).

These cases provide the analytical foundation.

Seclusion & Restraints Bill Reintroduced in Congress

2013-05-15T19:05:00.000-04:00

, U.S. Congressman. (Photo credit: Wikipedia)

Representative George Miller, the ranking member of the House Education Committee reintroduced the Keep All Children Safe Act in the Congress on Thursday of last week. The bill had passed the House of Representatives last year with bipartisan support, but it died in the Senate.

The law would regulate the abuses and misuses of the seclusion and restraint techniques on schoolchildren. Abuses have been well documented including, but are by no means limited to, abuses involving children with disabilities. A GAO report in 2009 confirmed a previous study by the National Disability Rights Network entitled "School is Not Supposed to Hurt."

The Keeping All Students Safe Act would direct the Secretary of Education to establish minimum standards that would:

prohibit elementary and secondary school personnel from managing any student behavior by using any mechanical or chemical restraint, physical restraint or escort that restricts breathing, or aversive behavioral intervention that compromises student health and safety;
prohibit school personnel from using physical restraint or seclusion, unless such measures are required to eliminate an imminent danger of physical injury to the student or others and certain precautions are taken;
require states and local educational agencies to ensure that a sufficient number of school personnel receive state-approved crisis intervention training and certification in first aid and certain safe and effective student management techniques; and
require schools to establish procedures to notify parents in a timely manner if physical restraint or seclusion is imposed on their child.

You can view the press release here.A You-tube video of the introduction of the bill is available here. You can read the entire bill here.

Our Series On Bullying Rides Again

2013-05-11T17:15:00.000-04:00

Bullying of children with disabilities remains the hottest of hot button issues in special education law. Unfortunately bullying remains a huge problem.

We have had many requests to repeat the series on Bullying that we ran on these pages last year. The series is an in depth review of the law in this ever-changing field. NOTE special education law is a lot closer to metaphysics than it is to contract law. It is new law (ie, it didn't come over on the boat from England.) If you like hornbook rules and certainty, this may not be your field of law! Beware.

In addition to the law, our series with its posts and postscripts and updates, also provides a lot of resources that are useful to those working in this field including studies on the prevalence and effects of bullying.

So starting next week, we will be repeating the bullying series, with some relevant updates and tweaks. Please make sure that your tray tables are secure and that your seats are in their upright position...

The Intersection of Foster Care and Mental Health

2013-05-07T10:41:00.001-04:00

Seal of the United States National Council on Disability. (Photo credit: Wikipedia)

Our friends over at the National Council On Disability recently posted an interesting op ed piece on their blog concerning the issue of kids with mental disabilities in foster care. You can review their post here. I found it interesting, but please note the following is not my work but that of the authors:

The Intersection of Foster Care and Mental Health

By Stephanie Orlando, Member, National Council on Disability (NCD) with the assistance of Robyn Powell, NCD Attorney Advisor

May is recognized as both National Foster Care Awareness Month and Mental Health Awareness Month. What most people do not realize is the overlap that often comes with membership in these populations.

In the United States, there are more than 400,000 children and teens in foster care. Research reveals that children and teens in the foster care system have disproportionately high rates of psychiatric disability.

One study by the National Institute of Mental Health found that nearly half (47.9 percent) of youth in foster care were determined to have clinically significant emotional or behavioral problems. Likewise, researchers at the Casey Family Programs estimate that between one-half and three-fourths of children entering foster care exhibit behavioral or social competency problems that warrant mental health services.

Youth who have “aged out” of foster care also show high rates of psychiatric disability. According to a study by the Casey Family Programs and Harvard Medical School, a high number of former foster children have psychiatric disabilities as adults. Over half of foster care alumni had diagnoses compared to 22 percent of the comparison group.

The disproportionate level of diagnoses is perhaps most evident with post-traumatic stress disorder (PTSD). Thirty percent of foster alumni are diagnosed with PTSD, which is about twice the rate of U.S. combat veterans.

In 2008, the National Council on Disability (NCD), an independent federal agency that advises the President, Congress, and other federal agencies on disability policy, issued a comprehensive report Youth with Disabilities in the Foster Care System: Barriers to Success and Proposed Policy Solutions.

In that report, NCD found: “While the federal investment in the multiple systems with which these youth come in contact is significant, the disconnectedness and lack of coordination across programs and agencies call into question the effectiveness of government efforts.”

Five years later, the problems remain. The mental health needs of children and teens in foster care continue to be overlooked and inadequately addressed, often with detrimental consequences.

A significant number of the estimated 20,000 young people who leave foster care each year face inordinately bleak futures. According to researchers, just over half of these young people – 54 percent – earn a high-school diploma and a quarter of them become homeless. On average youth aging out of the foster care system with psychiatric disabilities fare even worse.

In 2003, researchers at Georgetown University estimated that only 42 percent of students with mental health diagnoses graduate from high school. As such, foster care youth with psychiatric disabilities find themselves at a double disadvantage.

As we acknowledge both National Foster Care Awareness Month and Mental Health Awareness Month, NCD renews its call to action. We urge legislators, policymakers, and service providers to direct significant attention to the needs of children and teens with psychiatric disabilities in the foster care system by making these recommendations:

• Increased flexibility to states and communities so programs and services can be most effectively structured to meet the needs of children and teens with disabilities in foster care;
• More federal support for research and demonstrations to identify effective policies and practices that lead to positive outcomes for children and teens with disabilities in foster care;
• Improvements in the quality, availability, and affordability of mental health services and supports;
• Better training for foster care parents and increased recruitment of individuals willing to foster children and teens with disabilities;
• Greater access to individualized, comprehensive transition services, including mental health care, for children and teens with disabilities aging out of foster care; and increased collaboration among the education, juvenile justice, child welfare, labor, dependency court, health, and mental health systems.

Further, NCD applauds the President’s new budget proposal to fund mental health initiatives. The proposed $205 million to help identify mental health problems, improve access to mental health services, and support safer school environments, if adopted, will fill an important void for many children and teens in foster care with psychiatric disabilities.

The goal for America’s foster youth to live healthy, happy lives and to become self-sufficient, contributing members of society is achievable, but we should not –and cannot – forget those young people who face significant barriers to reaching these goals.

Our nation must make a strong commitment to support children and teens with psychiatric disabilities throughout their time in foster care and take the steps necessary to ensure that a safe, healthy and positive transition to adulthood is planned for as the end goal.

This can only happen if we include youth with psychiatric disabilities in the planning process and in our communities going forward. The foundation we, as a society, build for children and teens in foster care during their formative years will likely become the basis for the future they create. Let’s build it on solid ground.

Tech Update: Our Linkedin Group Now Has Over 7,500 Members!

2013-05-03T14:31:00.000-04:00

This is icon for social networking website. This is part of Open Icon Library's webpage icon package. (Photo credit: Wikipedia)

If you have not yet checked it out, the Special Education Law Group that we started through this blog over on LinkedIn now has over 7,500 members. (That is not a typo!) You should go to the group's site and take a look. There are always good discussions- sometimes even heated disagreements. If you lose this post, there is always a link to our LinkedIn group on the lefthand side of the blog. It is a part of our effort to use social media to spread good impartial information about special education law.

For history buffs, we also used to have a Facebook group. At some point Facebook got all corporate in our face and "archived" our group because we were not constantly issuing nonsensical posts about what we ate for breakfast, etc. The group still exists, but it is cumbersome.

There are also many other resources available on the lefthand side of the blog. You can sign up for a free subscription to the blog (three kinds of them.) You can view the CADRE interview videos of me. (If the written word is not enough!)

You can also finds links to all sorts of other helpful websites, including CADRE, the IDEA statute and federal regulations, NICHCY - the information clearinghouse, and OSERS- the federal agency. We also have links to some other great blogs.

We are always looking for new impartial resources to share. We don't recommend sites that favor either parents or school districts, even though there are some good ones. We try to be impartial here. Let us know if you have any recommendations.

Sometimes My Job Is Pretty Cool

2013-04-27T15:36:00.000-04:00

I am blessed. I get to travel a lot as a part of my job, and I frequently get to see stuff like this

Pretty cool, no?

Superintendents Want to Eliminate Due Process: Part II

2013-04-25T10:03:00.001-04:00

Chapel of St. Ignatius - Steven Holl - Seattle University (Photo credit: ScottLarsen)

Last week we ran a post on the proposal by AASA, the superintendent's group, to kill off due process hearings and mediation. We got a lot of reaction to the post.

In the process of reviewing the reactions, I learned that our friend Jim Rosenfeld at the Seattle University Academy had a reaction to his being quoted in the article. The following is his response that is posted on the Academy's website(the remainder of this post are Jim's response):

In early April 2013, the American Association of School Administrators (AASA) released Part I of its IDEA Re-Authorization Proposals titled "Rethinking Special Education Due Process." In its own words, the Report "contends modifications to the current due process system could greatly reduce, if not eliminate, the burdensome and often costly litigation that does not necessarily ensure measureable educational gains for special education students. At the same time, AASA's proposal preserves the right for parents to move forward with litigation against a district and maintains other effective dispute resolution models that were put in place in the prior re-authorizations."

I was asked to review and comment upon a January 2013 draft of the Report, probably because it cited quotes from my article "It's Time for an Alternative Dispute Resolution Procedure," 32-2 NAALJ 544-567 (Fall 2012) that were critical of many aspects of special education due process hearings. Those references were included in the final Report, which also listed me in acknowledging "the many people who have been involved in the development of this report."

My concern is that readers of the Report, looking simply at the quotes from my NAALJ article and the statement "acknowledging" my "involvement" in development of the report, may conclude that I support the AASA's recommendations. That is incorrect. While I have many concerns about due process, most of them could be ameliorated by assuring that parents have competent counsel. I have never suggested or advocated that a litigation option be removed from IDEA. Moreover, I never saw the recommendations included in the final report.

Most importantly, I fundamentally disagreed then and now with the Report's assessment of the place of children with disabilities in the public education system. Reproduced below is virtually the entire body of my comments provided to AASA following my review of the draft I was provided.

"My apology for taking so long in getting back to you on this. I hope you are still open to additional comments, but if not, I completely understand. Moreover, I suspect you will not be happy with what I have to say, but you did ask and I would not feel comfortable being other than completely honest. Finally, I hope and expect that you will not share the following with anyone without my prior consent.

"To be candid, I find the article surprisingly insensitive to the needs and concerns of children with disabilities and their parents - with one surprising exception. That is the first paragraph of the section titled "Reconsidering a due process framework for IDEA," which sounds like it was written by a different author. I understand, obviously, that the article is written from and designed to explain the school administrators' perspective, and it does that well. The statistical information, particularly, is quite useful.

"However, there appears to me to be a tone throughout the article that children with disabilities are being uniquely and unfairly entitled to privileges not available to other children, when in fact the IDEA mandate was enacted (as I'm sure you know) to provide them with the same access to education routinely provided to children without disabilities. (Or as an old friend of mine put it many years ago: "Kids with disabilities are entitled to the same lousy education as kids without disabilities.") Moreover, there does not appear to be much tolerance or understanding of the need for a litigation alternative in the event that other dispute resolution procedures fail, even though most of us agree about the many serious flaws surrounding litigation (e.g., cost, length, access to representation, etc.), virtually all of which are found in other, non-education settings. Finally, I see no recognition that, to put it bluntly, schools are sometimes responsible for generating litigation, for example by poorly implementing the law, failing to train personnel adequately, refusing to identify children or provide them with necessary programs/services for fear of "setting a bad example," etc. To put it another way, no one has clean hands here, even if the system was perfect, which it obviously isn't. Finally, in my opinion, taking away the litigation alternative, particularly given how infrequently it is used, will inevitably be viewed by the parent community as a major threat and, I suspect, undermine the chances of realizing other important improvements."

I concluded my comments with the suggestion that a good, data-driven study of the due process system be conducted, suggesting that it is much needed and long-overdue. There was no response to this suggestion.

Superintendents Want To Eliminate Due Process Hearings And Mediation

2013-04-19T13:53:00.001-04:00

Administrative Review Board hearings room (Photo credit: Wikipedia)

One doesn't ordinarily use the words radical and superintendents in the same sentence, but I may be about to do so! AASA, the school superintendents association, has issued a recommendation for reauthorization of the federal special ed law, IDEA. (As we have mentioned here before, IDEA is overdue for reauthorization, but Congress is too busy ignoring other important issues at this time.)

The paper issued by AASA is described here on their website. You can, and really should, read the entire 30 page paper here. In fairness, the report has some good ideas. For example, it would require the availability of IEP facilitators. IEP facilitation is a great way to resolve special ed disagreements before they become full blown disputes. Also, they propose the availability of an education consultant to rewrite a student's IEP; this would seem to be a great idea if the parties still have the option of a due process hearing.

The radical part of the superintendents' proposal is the complete elimination of due process hearings. (I admit to a bias here. I am a hearing officer and mediator, and I train hos and mediators as well as advise states on dispute resolution systems.) But I think that this is crazy. As the report states, due process hearings are really only a problem in the seven or eight states that have 80% of all the hearings. In many other parts of the country, a parent cannot find a lawyer to take a special education case. To be clear, the goal is not more hearings but rather to make sure that in fairness parents know their rights.

The report calls for the elimination of due process hearings with the right to a lawsuit in federal court instead. If this were implemented, the federal court proceeding would have to be a trial de novo to ensure procedural due process requirements were met after removing the option of an administrative hearing. This would explode the dockets of the federal courts. Scores of new judges would have to be hired. The expense of litigating a trial in federal court will greatly increase the money being spent both by parents and school districts. This hardly seems like a good idea or a fix to the problem. I believe that although the current system has problems, eliminating administrative hearings is a bad idea.

The report seems to approve of mediation in some places. Tellingly, however, on page 19 of the report, the superintendents call for a key change: making mediation agreements be not legally binding. This change would completely gut mediation. No party would agree to mediation if a binding agreement is not possible. Why go through the process if the "agreement" is optional? This change is inserted without fanfare into the always popular criticism of lawyers. If it is a serious proposal, it should be fully discussed and explained- not slipped in through the back door..

So please read the report and let us know what you think.

Sometimes My Job Is Very Cool

2013-04-10T13:34:00.001-04:00

When Rowley Doesn't Apply; New Law Review Article

2013-04-05T18:59:00.001-04:00

Woodstock Music Festival/1969 (Photo credit: dbking)

If you are a fan of special education law, you should be familiar with Mark Weber, one of the leading academic authorities in this area of law. As a good impartial, I must admit to a bias, Mark is also the only person to have cited this blog in a law review article; therefore, everything he says is necessarily true and correct. (NOTE: in fairness, this only applies to law review articles. Professor Mitchell Yell has cited the blog in his excellent book, and Barbara Bateman and Mary Anne Linden have cited the blog in a couple places in their bible on IEPs. This blog has serious street cred!)

Anyway, I digress. Professor Weber has a new law review article. The title is "All Areas of Suspected Disability." He was nice enough to share it with me. I also discussed it with him, and heard him lecture about it, during a recent training in Missouri. In this article he notes the tendency of courts and hearing officers to strictly enforce the IDEA provisions requiring that students be evaluated in all areas of suspected disability and that their IEPs address their individual needs. He suggests three possible explanations for this development: First courts and hearing officers may be reacting to the limited definition of FAPE penned by the Supreme Court in the 1982 Rowley decision. Second, he notes that judicial and administrative decisions are placing an increasing emphasis on inclusion; or more technically the least restrictive environment requirement of IDEA. Finally, he looks at whether the bad economy of recent years may be fueling the trend. Obviously I'm summarizing here and probably badly; you should read the article yourself. It is available on SSRN at this link. You may need to register on the site to read the article.

We have wondered here before about the impact of the bad economy upon special education. What are your thoughts? Also Mark's article brings up a good point. Rowley only concerns FAPE cases. While that is the majority of cases, IDEA has other requirements, like LRE and evaluation and eligibility/child find and placement (a slippery term that means a lot of things like- LRE, stay put, discipline and maybe even location.)

Also as we have noted here about the trend in bullying cases and seclusion/restraint cases, the old maxim that bad facts make bad law has some resonance. We see courts and hearing officers paying lip service to Rowley and then not really applying its standard in cases where the facts are egregious. The sniff test seems to be closer to the real standard.

So read Mark's article, and tell us what you think.

Sometimes My Job Is Pretty Cool!

2013-04-02T14:30:00.000-04:00

In the spirit of Where in The World is Jim Gerl, who can name this location? (Note: the white stuff is snow!)

See our Tumblr mini-special education law blog here for more photos of the scene of the crime

BREAKING: New GAO Report on Racial/Ethnic Overrepresentation in Special Education

2013-03-29T15:33:00.000-04:00

Government Accountability Office (Photo credit: dcdan)

In breaking news, the Government Accountability Office has issued a report critical of the definitions states are allowed to use in determining whether racial or ethnic groups are overrepresented in special education. It has long been the contention of certain racial and ethnic groups that their kids are included in special ed in disproportionate numbers.

In 2010, states required about 2 percent of all districts to use Individuals with Disabilities Education Act (IDEA) funds for early intervening services to address the overrepresentation of racial and ethnic groups in special education. Based on definitions states individually developed to measure this overrepresentation-- referred to in IDEA as significant disproportionality--356 districts were required to provide services. Half of these districts were clustered in five states and 73 were in Louisiana alone. States have used flexibility provided by Education to develop their own definitions of significant disproportionality and GAO's analysis of 16 selected states found wide variation in definitions. Further, GAO found that the way some states defined overrepresentation made it unlikely that any districts would be identified and thus required to provide early intervening services. Nebraska and Louisiana illustrate differing outcomes that can result from different state definitions. In Nebraska, one of 21 states that did not require any districts to provide services in 2010-11, racial and ethnic groups must be identified for special education at a rate three times higher than for other groups for 2 consecutive years. In contrast, racial and ethnic groups in Louisiana districts must be identified for special education at twice the rate of other students in any year. GAO's analysis found if Nebraska had used Louisiana's definition, Nebraska districts may have been required to provide services and, conversely, Louisiana might have identified fewer districts under Nebraska's definition.

The GAO recommends that states be required by the federal Department of Education to use a uniform definition.

You can see a summary of the report here. You can read the entire 44 page report here.

Trainings of Dispute Resolution Professionals

2013-03-23T14:01:00.001-04:00

The Supreme Administrative Court of Sweden in Stockholm is the highest administrative court in Sweden. (Photo credit: Wikipedia)

I love my job. Because of it, I frequently get to speak at conferences and do trainings. Special education law is a great field because it is constantly changing. As we have said here before special ed law is a lot closer to metaphysics than it is to contract law.

I really enjoyed a training that I did last week. It was for a state education agency and their administrative law judges,mediators and complaint investigators. I'm doing another ALJ training next week. (In some states, we are called hearing officers. In others we are called ALJs.) Although I am referred to as the "trainer," I always learn something from the participants. The participants often are active during the session- asking questions and offering solutions that work for them. Last week was no exception.

When I work with my fellow hearing officers, I am always impressed by the quality of their work and their dedication to their craft. It is rewarding.

There have been many suggestions that the special education due process hearing system be gutted, or substantially changed. What do you think?

Is Special Ed Creating Independent Adults - Part II

2013-03-18T15:51:00.000-04:00

English: U.S. Census Bureau Regions, Partnership and Data Services Program. A map of the US Census Bureau Regions. (Photo credit: Wikipedia)

In a recent post we noted that about a third of adults receiving government assistance had disabilities of some type. This caused us to question whether transition in specific and special education in general were succeeding with respect to the goal of creating independent adults.

Well last week our friends at the U S Census Bureau provided more numbers to cause us to repeat these questions. They have released the Disability Employment Tabulation which has a wealth of statistical information about people with disabilities in the workforce. You can review the deep well of information on the Disability Employment Tabulation through this link.

Here is a small sample of the in formation available:

Between 2008 and 2010, individuals without disabilities were about three times more likely to be employed than individuals with disabilities. Overall, individuals with disabilities accounted for 9.4 million, or 6.0 percent, of the 155.9 million civilian labor force.

More than half of all workers with a disability were concentrated in four general occupation groups: service workers (except protective services) with 18.2 percent, followed by administrative support (15.1 percent), sales workers (10.4 percent) and management, business and finance (8.9 percent).

Among specific occupations, janitors and building cleaners had the highest number of employees with a disability at 315,000, or 11.8 percent of all workers in that field, followed by drivers/sales workers and truck drivers with 263,000 people, cashiers with 256,000 and retail salespeople with 223,000.

Among occupations with 100,000 or more people, dishwashers had the highest disability rate at 14.3 percent, followed by refuse and recyclable material collectors (12.7 percent), personal care aides (11.9 percent), and janitors and building cleaners (11.8 percent). The rates for refuse and recyclable material collectors, personal care aides, and janitors and building cleaners were not statistically different from one another.

More than half of workers with disabilities (52 percent) earned less than $25,000 in the previous year, compared with just 38 percent of workers with no disabilities. This translates into an earnings gap where individuals with disabilities earn about 75 percent of what workers without disabilities earn.

Overall, janitors and building cleaners were among the most common occupations for individuals with a disability for non-Hispanic whites (184,000 people), non-Hispanic blacks (60,000) and Hispanics (54,000).

Individuals with disabilities accounted for 6.3 percent of the male civilian labor force and 5.7 percent of the female civilian labor force.

The three most common occupations for men with disabilities were drivers/sales workers and truck drivers (246,000); janitors and building cleaners (217,000); and laborers and freight, stock, and material movers (171,000). For women, they were cashiers (195,000); secretaries and administrative assistants (189,000); and nursing, psychiatric and home health aides (172,000). The number of male laborers and freight, stock, and material movers was not significantly different from the number of female nursing, psychiatric and home health aides.

Any thoughts?

Harkin Amendment Would Blunt Sequester Cuts to Special Ed

2013-03-13T21:26:00.001-04:00

Senator Tom Harkin of Iowa (Photo credit: Wikipedia)

Senator Tom Harkin has introduced an amendment to HR 933 that would mitigate the effects of the sequester in special education. Here is a summary of the amendment.

If you are concerned about the sequester and its effect upon the education of children with disabilities, you should contact your Senators and representatives and ask them to vote for the amendment. Our friends at the Council for Exceptional Children have established this tool to make it very easy to effectively contact your senators about this issue. You should personalize your message to reflect your feelings.

So what do you think about this Amendment?

Is Special Ed Making Independent Adults? New Study By Census Bureau

2013-03-06T14:56:00.001-05:00

English: Seal of the United States Census Bureau. (Photo credit: Wikipedia)

According to the Census Bureau, among the 46.0 million adults who received income-based government assistance in 2011, 30.4 percent of them had a disability. The report issued last month is entitled Disability Characteristics of Income-Based Government Assistance Recipients in the United States: 2011

“On average, people with disabilities have lower employment and earnings; therefore, understanding what assistance people with disabilities receive may help governments better coordinate and administer their programs,” said Bernice Boursiquot, a Census Bureau statistician and co-author of the report.

States west of the Appalachian Mountains had higher rates of disability among recipients of income-based assistance. In comparison, states in the Southwest and along the Eastern Seaboard had lower rates. West Virginia, Kentucky and Arkansas were three of the top five states for disability prevalence in the total population, as well as in the total population receiving government assistance. In West Virginia, 26.8 percent of people with disabilities reported having ambulatory difficulty, defined as severe difficulties walking or climbing stairs.

You can view the entire report here.

One question for special education: how does this reflect on IDEA transition programs? Is special education succeeding in making people with disabilities more independent? Your thoughts?

Sequestration Will Hurt Kids With Disabilities

2013-03-01T10:19:00.002-05:00

English: View of Capitol Hill from the U.S. Supreme Court Česky: Pohled na Kapitol z budovy Nejvyššího soudu Spojených států (Photo credit: Wikipedia)

Sequestration starts today unless the Congress acts. It will hurt the education of children with disabilities!

How will IDEA be affected? Under sequestration, federal funding for the Individuals with Disabilities Education Act will be reduced by $1,053,600,000 in 2013, or 28 percent of the total reduction to education programs.

You can view an analysis and explanation by our friends at IDEA money watch here.

You can see the amount of money that your state and the projected number of special ed staff will lose on this chart.

Now would be a good time to call your congressmen and senators and tell them to fix this.

Breaking: New 20 Year Study on Effects of Bullying

2013-02-25T10:25:00.001-05:00

English: Image for mental health stubs, uses two psych images - psychiatry (medicine) and psychology (Photo credit: Wikipedia)

Bullying of children with disabilities continues to be the hot button issue in special education law. The Special Education Law Blog has previously run an in depth series of posts on bullying of children with disabilities. Here is the index to that series.

Recent news concerning the effects of bullying on children in general provides more insight into the harmful effects of this nasty phenomenon. The effects may be worse than previously suspected.

In breaking news, a study was released last week that followed children who were bullied or were bullies or both for a period of twenty years. The study by William E. Copeland, PhD; Dieter Wolke, PhD; Adrian Angold, MRCPsych; E. Jane Costello, PhD was published in the JAMA Psychiatry Journal and can be reviewed here. A summary by DukeHealth.org can be read here.

The study found that bullied children grow into adults who are at increased risk of developing anxiety disorders, depression and suicidal thoughts. Those who were both bullies and victims had higher levels of all anxiety and depressive disorders, plus the highest levels of suicidal thoughts, depressive disorders, generalized anxiety and panic disorder. Bullies were also at increased risk for antisocial personality disorder.

What are your thoughts?

Special Education Law 101 - Index to Series

2013-02-22T10:36:00.002-05:00

Index to Special Education 101 Series

Image via Wikipedia

A reader once suggested that I provide an index wen I run a series. I agreed that this is an excellent idea, and I try to add one at the end of our series. Here is the index for the Special Education Law 101 series which recently concluded. Clicking on the name of a particular post in the series will bring you to the actual post.

Special Education Law Blog

Bullying of Kids With Disabilities - Part IV

1. What Constitutes Bullying

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Dueling Children Left Behind? Major Parties Offer Different ESEA Reauthorization Bills

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Bullying of Kids With Disabilities - Part III

E. Bullying in America

Fun With Numbers: Annual NCES Report Released

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Bullying of Kids With Disabilities - Part II

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Breaking: Public Education Spending Down For First Time in Forty Years

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Bullying of Kids With Disabilities - Part I

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Seclusion & Restraints Bill Reintroduced in Congress

Our Series On Bullying Rides Again

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The Intersection of Foster Care and Mental Health

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Sometimes My Job Is Pretty Cool

Superintendents Want to Eliminate Due Process: Part II

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Superintendents Want To Eliminate Due Process Hearings And Mediation

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Sometimes My Job Is Very Cool

When Rowley Doesn't Apply; New Law Review Article

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BREAKING: New GAO Report on Racial/Ethnic Overrepresentation in Special Education

Trainings of Dispute Resolution Professionals

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Is Special Ed Creating Independent Adults - Part II

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Harkin Amendment Would Blunt Sequester Cuts to Special Ed

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Special Education Law 101 - Index to Series

Index to Special Education 101 Series

Part I Sources of Law September 10, 2012

Part II FAPE September 18, 2012

Part III FAPE continued September 26, 2012

Part IV Least Restrictive Environment October 3, 2012

Part V Identification and Eligibility October 10, 2012

Part VI IEP Issues October 20, 2012

Part VII Related Services October 26, 2012

Part VIII Transition November 2, 2012

Part IX Discipline November 16, 2012

Part X Unilateral Placements November 6, 2012

Part XI Compensatory Education December 6, 2012

Part XII Stay Put December 12, 2012

Part XIII Legal Representation January 14, 2013

Part XIV Expenses and Attorney's Fees January 25, 2013

Part XV Burden of Persuasion February 1, 2013

Part XVI: Hearing Procedures I February 6, 2013

Part XVII Hearing Procedures II February 13, 2013

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