Special Education Law 101 - Part IX

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This is the most recent post in the continuing series that is meant to be an introduction to special education law.  In today's post we will be discussing discipline of students with disabilities.  People often ask why disciplinary actions are regulated by the special education law.  The reason is that before passage of the law's predecessor, it was common for school officials to exclude children with disabilities by expelling them and giving them long suspensions. This series of abuses was reflected in the legislative history of the law.  

 

Discipline is one area that seems to cause folks to develop stomach problems (sorta like the rule against perpetuities in law school), but it isn't really as hard as we seem to make it.  Let me know if this explanation helps.

                                                   Discipline Issues

The IDEA imposes special rules that govern the discipline of students with a disability.  The basic rule is that a special education student may not have her placement changed (i.e., suspensions of more than 10 days or expulsion) for conduct that is a manifestation of her disability.  IDEA, § 615(k)(1)(F).  If the behavior is not a manifestation of the student’s disability, the student may be disciplined in the same manner and for the same duration as children without disabilities.  IDEA, § 615(k)(1)(C).

One exception is that, regardless of manifestation, the schools may remove a student to an interim alternative educational setting,  sometimes referred to as “IAES,” for up to 45 school days if (1) the student possesses a weapon at school; or (2) the student possesses or uses or sells illegal drugs at school; or (3) the student has inflicted “serious bodily injury” upon another person while at school.  IDEA, § 615(k)(1)(G).  The schools may also ask a hearing officer to change the placement of a student with a disability to an IAES if remaining in the current placement is substantially likely to result in injury to the student or others.  IDEA, § 615(k)(3)(A) and (B).

              Another cardinal rule in the discipline area is that regardless of whether the conduct of a student was a manifestation of the student’s disability, where a student with a disability is removed from his current placement, the schools must continue to provide educational services to ensure FAPE for the student and to enable the student to continue to participate in the general curriculum although in another setting.  IDEA, § 615(k)(1)(D).  See generally regarding discipline issues, 34 C.F.R. §§ 300.530 – 300.537. 

 

                The Supreme Court dealt with discipline issues and endorsed the stay put provision in the case of Honig v. Doe 484 U.S. 305, 108 S.Ct. 594, 559 IDELR 231 (1988).  In that decision, the Supreme Court, noting the Congressional intent in preventing the exclusion of disabled students and reiterating the importance of the procedural safeguards under the IDEA, refused to read a dangerousness exception into the stay put provision. The high Court outlines the history of abuses of the discipline of kids with disabilities in that decision.

 

 In District of Columbia v. Doe ex rel Doe 611 F.3d 888, 54 IDELR 275 (DC Cir 7/6/10) DC Circuit ruled that HO did not exceed his authority where he reduced a disciplinary suspension. HO reduced a 45 day suspension to an 11 day suspension noting the trivial nature of the infraction and finding that the more lengthy suspension denied FAPE to the student.

Related articles

• Special Education Law 101 - Part II
• Special Education Law 101 - Part III
• Special Education Law 101 - Part IV
• Special Education Law 101 - Part V
• Special Education Law 101 - Part VII
• Special Education Law 101 - Part VI
• Special Education Law 101 - Part VIII
• Big Decision: Statute of Limitations

Special Education Law 101 - Part VIII

Seal of the United States Court of Appeals for the Eighth Circuit. (Photo credit: Wikipedia)

 

 

 

 

 

 

 

 

 

 

 

 

 

This is the most recent post in the continuing series on  an introduction to special education law.  The series is meant to be a solid introduction for newbies as well as a good review for seasoned special ed law vets. In today's post we will be discussing the transition services that must be given when a special education student nears graduation.

  Transition

              The IDEA defines transition services as a coordinated set of activities designed to be a results oriented process that focuses upon the individual child’s needs, strengths and preferences.  IDEA, § 602 (34).  Not later than the first IEP to be in effect when the child is 16 years old and each year thereafter, the IDEA requires that the IEP contain measurable post secondary goals; the transition services needed to achieve those goals; and beginning at one year before the child reaches the age of majority, a statement that the student has been informed regarding transfer of rights.  IDEA § 614 (d)(1)(A)(i)(VIII).  34 C.F.R. § 300.43, 300.320(b) Policy 2419, Ch. 5, § 2(F).

 

 

Note: When IDEA was reauthorized in 2004 the definition of transition was changed by Congress from an "outcome" oriented process to a "results" oriented process.  Don't these two words mean exactly the same thing?  Any thoughts? 

See, Questions and Answers on Secondary Transition 57 IDELR 231 (OSERS 9/1/11); In Park Hill Sch Dist v. Dass ex rel DD & KD 655 F.3d 762, 57 IDELR 121 (8th Cir. 9/9/11), the Eighth Circuit ruled that a transition plan is required by IDEA only for 16+ students regarding life after school, but not for students returning to public school.

Related articles

• Special Education Law 101 - Part VII
• Special Education Law 101 - Part VI
• Special Education Law 101 - Part V
• Special Education Law 101 - Part IV
• Special Education Law 101 - Part III
• Special Education Law 101 - Part II
• Special Education Law 101 - Part I
• Back to the Future: Special Ed Law 101

Special Education Law 101 - Part VI

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Our series providing an introduction to special education law continues.  Previous posts have introduced the two basic concepts underlying IDEA, free and appropriate education and least restrictive environment.  Last week we discussed eligibility and identification.  Today we will look at selected IEP issues.

Some IEP Issuies

Issues pertaining to IEPS are among the most frequent to appear in due process hearings.  Here are some fundamental points:

Issues pertaining to individualized education programs are governed by IDEA §§ 612(a)(4) and 614 (d)-(f).  See, 34 C.F.R, §§ 300.320-300.323,  300.324 – 300.328.

L.B. & J.B. on behalf of K.B. v. Nebo Sch. Dist., Bd. of Educ., et al, 379 F.3d 966, 41 IDELR 206 (10^th Cir. 8/11/2004).  The IEP is the basic mechanism through which each child’s individual goals are achieved. 

D.F. & D.F. ex rel N.F. v. Ramapo Cent. Sch. Dist. 105 LRP 57524 (2d Cir. 11/23/05).  The Court notes that the case raises an issue as to whether it is proper to utilize prospective or retrospective analysis of an IEP.  The court stated that an IEP is a snapshot not a retrospective. In striving for appropriateness, an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, i.e., at the time the IEP was formulated.  Contrast,  MS by Simchick v. Fairfax County Sch Bd 553 F.3d 315, 51 IDELR 148 (4th Cir 1/14/09).

 

In a recent trend involving cases alleging failure to implement IEPs, courts have increasingly taken a stance that to be actionable, the failure to implement must have been "material." This trend follows the reasoning of the Ninth Circuit Court of Appeals in  Van Duyn ex rel Van Duyn v. Baker Sch Dist 5J 481 F.3d 770, 47 IDELR 182 (9th Cir. 4/3/7) 

Related articles

• Special Education Law 101 - Part V
• Special Education Law 101 - Part IV
• Special Education Law 101 - Part III
• Special Education Law 101 - Part II
• Back to the Future: Special Ed Law 101
• School District Tries To Switch IEPs For Girl With Angelmans Syndrome
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Special Education Law 101 - Part V

English: A special education teacher assists one of her students. (Photo credit: Wikipedia)

Our series providing an introduction to special education law continues.  Previous posts have introduced the two basic concepts underlying IDEA, free and appropriate education and least restrictive environment.  Today's post concerns eligibility and identification.

Identification & Eligibility

Issues pertaining to identification and eligibility are governed by IDEA § 612(a)(3) and 614 (b)(4)-(6).  See, 34 C.F.R, § 300.121- 300.125, 300.300, 300.306, 300.307 – 300.311.  

In summary, to be eligible, a child must have one of the enumerated conditions(mental impairment, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities)(which adversely affects his education) and by reason thereof, he must need special education and related services.  In addition as a third requirement for eligibility, most of the disabling conditions require that the condition adversely affects the child's educational performance.

Some important circuit court decisions:

Marshall Joint Sch Dist No 2 v. CD by Brian & Traci D    616 F.3d 632, 54 IDELR 307 (7^th Cir 8/2/10) Seventh Circuit reversed HO who found student eligible solely upon physician’s opinion that the student could benefit from adaptive PE.  The Seventh Circuit noted that a physician may not simply prescribe special education; IEPT must consider relevant factors.

Alvin Indep Sch Dist v. AD by Patricia F 503 F.3d 378, 48 IDELR 240 (5th Cir. 10/4/7)  The fifth Circuit affirmed a holding that despite a fifth grader’s ADHD, he was not eligible for  special education.  The student consistently received passing grades, he succeeded on statewide tests and he was achieving in social situations.  Accordingly, he did not by reason thereof “need special education and related services,” and, therefore, he was not a child with a disability as defined by the IDEA

Hood v. Encinitas Union Sch Dist 47 IDELR 213 (9th Cir. 4/9/7)  The Ninth Circuit applied the Rowley standard to an eligibility issue.  Where the student consistently received above average grades despite her disability, she received educational benefit, and therefore, was not eligible for SpEd.  NOTE:  One legal scholars has questioned whether the Rowley test is too restrictive for eligibility purposes, Weber, Mark "The IDEA Eligibility Mess," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1206202

IDEA also places a child find duty upon school districts.  A district has an affirmative duty to identify and evaluate children with disabilities.  District of Columbia Public Schs (JG) 111 LRP 25934 (SEA DC 3/18/11) The standard for child find is suspicion of a disability rather than actual knowledge. District of Columbia Public Schs (JG) 111 LRP 25934 (SEA DC 3/18/11).

Compton Unified Sch Dist v. Addison 598 F.3d 1181, 54 IDELR 71 (9th Cir. 3/22/10) By a 2-1 vote, Ninth Circuit rejected school district argument  that there is no child find duty because of language pertaining to prior written notice. The district argued that only an action or refusal is a violation. The Ninth Circuit held that a parent could file a dpc on any matter related to identification, evaluation, FAPE or placement, so, therefore, child find violations are actionable.  

Ridley Sch Dist v. MR & JR ex rel ER 680 F.3d 260, 58 IDELR 271 (3d Cir 3/19/12) Third circuit conducted a detailed review of the law concerning Child Find, and concluded that the HO erred by failing to allow the school district a reasonable time to identify the student as disabled.  

Related articles

• Special Education Law 101 - Part IV
• Special Education Law 101 - Part III
• Special Education Law 101 - Part II
• Special Education Law 101 - Part I
• Back to the Future: Special Ed Law 101
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