Category Archives: Special Education

Expulsion for Possession of a Dangerous Object

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Your child is facing an expulsion hearing for possessing a dangerous object. What can you do?

EXPULSION IS SERIOUS

Expulsion is serious business. A full expulsion lasts for one year. If expelled, your child faces attending a county school filled with other young adults expelled from around your area. It is not an ideal learning situation, obviously. Also, the long-term effects of an expulsion are not promising. Therefore, it is important that you take this seriously. Thus, you must do everything in your power to try to either prevail in the expulsion hearing or negotiate another outcome before the hearing.

POSSESSION OF A DANGEROUS OBJECT

Per 48900(b), a child can be suspended and recommended for expulsion if it can be shown that the student…

(b) Possessed, sold, or otherwise furnished a firearm, knife, explosive, or other dangerous object, unless, in the case of possession of an object of this type, the pupil had obtained written permission to possess the item from a certificated school employee, which is concurred in by the principal or the designee of the principal.

SPECIAL EDUCATION/504 EXPULSION PROTECTIONS

As in any school discipline case, you must determine if the law provides your child with special rights due to a disability. If your child is currently attending school with either a 504 or an IEP, they have rights. These rights are applicable to a defense for possession of dangerous object. Any defense here must show that their possession was related to their disability. Especially relevant are such things as impulse control problems, failure to understand right versus wrong, and paranoia. These things can show that the student’s actions were caused by their disability.

VICTIMIZATION

While not technically a defense, it can be important mitigating evidence to show that your child felt genuinely threatened by another person. Often times, when students bring weapons to school, they are doing so because they believe their safety is truly at risk. Remember that administrative panels are made of educators. They are truly concerned for student safety. If a genuine question of victimization can be raised, panel members are more likely to show compassion for your child.

MISTAKE

Once again, while not a defense, a genuine mistake can persuade panel members to show mercy on a student. I once had a child who took his school backpack on a fishing trip. When he came back, he forgot to take the filet blade out of the front pocket. Through photographs, we were able to show that the student had no ill intent in having the blade on campus, it was there by genuine mistake. In this case, the panel decided against expulsion.

PROBABLE CAUSE TO SEARCH

While certainly a lower standard than that which the police are held to, school personnel still need to have had some cause to search a student. Any thorough defense will explore whether the administrator had such cause. Absent that, the expulsion must be dropped.

PROCEDURAL REQUIREMENTS

Additionally, procedural deadlines and requirements are sometimes unmet. The outcome is important. Have an individual knowledgeable in school expulsions review the paperwork, and determine whether all these important procedural requirements were met.

Finally, please do not minimize the importance of avoiding a school expulsion for your child. Keep in mind, you have a legal right to bring a lawyer to the expulsion hearing, 48918(5). Relevantly, I offer relatively inexpensive flat fee rates. Therefore, you will never be surprised by a big bill if you retain my firm to represent your child.

Finally, if you are unable to afford an attorney, review this  helpful guide.

Orange County special education attorney opposes AASA proposal

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DueProcessLaw

As an Orange County special education attorney, California, I am writing here to explain my opposition to the School Superintendent’s Association’s (AASA) recently released policy proposal Rethinking Special Education Due Process (RSEDP). I have a number of concerns with this document which I would like to address. First though, let me give a brief overview of the document’s purpose and policy proposals.

IDEA is the major law governing special education

law in school. It currently is past due for reauthorization, but to borrow a line from another special education blogger, Jim Gerl, “Congress is too busy ignoring other important issues at this time.” Since it stands to reason that Congress will indeed decide at some point to address this important piece of legislation, AASA produced RSEDP for the purpose of influencing the conversation around what sort of changes should be included when that gets done.

In a nutshell (for a longer discussion of what RSEDP contains, read my article on 

Examiner.com), AASA is proposing a complete overhaul of the dispute resolution section of IDEA. Under its proposal, due process hearings (DPH) would be eliminated, mediation would no longer be binding, and parents would no longer be allowed to be represented by attorneys or advocates during mediation. In place of DPHs, AASA recommends two alternative procedures, facilitated IEPs and a “consultant IEP process.”

Facilitated IEP: A facilitated IEP would be used to resolve disputes before a formal due process complaint has been filed by bringing in an outside contracted “state-approved, trained IEP facilitator” who would be a “neutral, state-provided, trained facilitator.” The facilitator would attempt to help the district and parents reach agreement before legal paperwork is filed. Personally, I do not have any issue with the addition a facilitated IEP when an IEP between the district and the parent fails to reach agreement. Such a system can help solve problems before they become larger and more personal.

Consultant IEP Process: If a formal due process complaint has been filed and mediation failed or if one of the parties believed that mediation would be fruitless, the parties would be required to select “an independent, neutral special education consultant designated by the state to review evidence of the child’s disability and advise the parties on how to devise a suitable IEP.” The consultant would have 21 days to collect all the necessary information and design an IEP to be given to the parties. Both parties would agree to honor the IEP for an agreed upon period of time. If at the conclusion of that time period either party was dissatisfied with the consultant’s IEP, that party could litigate their claim in court.

As a special education attorney here in Orange County, Calfornia, following are some of the major objections I have to AASA’s proposal.

This is a Civil Rights Issue

The reason why IDEA was enacted over thirty years ago was to protect the civil rights of disabled students. AASA argues that these protection can now be watered down because of increased government oversight of special education programs due to mechanism within IDEA 2004 and No Child Left Behind (NCLB). I strongly disagree. Yes, these measures have increased oversight on the overall special education system. Under NCLB, districts are required to report on the overall academic achievement of their disabled students and schools and districts can face sanctions for not meeting nation-wide standards on these measures. It is also true that IDEA 2004 requires districts to report on numerous performance and compliance measures. Failure to comply with these rules can lead to a loss of significant federal dollars.

Yes, these things are true. However, these are macro measures not micro measures. They ensure the system is working as a whole; these laws do nothing to ensure that a district is meeting the needs of an individual child. It is not enough to say to a parent that district children are advancing, but sorry, the IEP for your child does not ensure a free and adequate public education. Each parent and child count, so to undermine the system supporting their right to challenge a district premised on the notion that the overall system as a whole now has greater accountability simply is insufficient. Civil rights are there for the individual. It is not enough to argue that we are meeting the needs for some percentage of individuals; the system is there to protect each individuals right to an education.

Unfairly Tilting the Balance of Power

After reading AASA’a RSEDP, I walked away with the strong suspicion that AASA was trying to place its thumb heavily upon the balance of power that currently exists between parents and districts. The proposal seeks to strip parents of the right to representation during mediation. While I know lawyer-bashing is an American past-time, lawyers and advocates serve an important role in special education mediation. Keep in mind what such a mediation would often look like. During mediation, a highly-trained district office administrator, many of whom who hold doctorate degrees in education or more specifically special education, would be facing a parent who is generally lacking in knowledge about education in general and also special education law. There is a gross mismatch in terms of understanding of the system and its rules and regulations. Such a situation literally invites district overreaching.

The AASA report states the use of attorneys has limited the effectiveness of mediation because their presence “complicates and compromises the outcome of mediation.” I was interested in following up on this quote and the context in which it was given but was unable to do so because the footnote is incorrect. It states the author of the quote is Mueller and states she is cited at 58. She is not. She is cited several times in the report, but the articles as cited are not accessible unless one is a subscriber to a service. That said, what attorneys provide is knowledge of their client’s rights. If advocating for their client “complicates and compromises the outcome of mediation,” then I would argue the suggested outcome was not a fair one for the parent or, more importantly, the child.

Given the above, it appears that AASA basic proposal is that its members should enter mediation with knowledge and authority while parents should not. They believe that when parents have knowledge of their rights through advocacy that it only complicates the process. Our disabled children deserve a better philosophical approach then AASA is offering here.

A Solution in Search of a Problem

A final issue of mine with the proposal is that it is a solution for a non-existent problem. While the proposal attempts to paint due process hearings as a major source of problems for school districts, the report’s statistics clearly show that DPHs are not. The statistics given here were collected by AASA for use in this proposal. 200 randomly selected school superintendents were surveyed about the impact of the due process hearing system on their respective districts. Of those 200 superintendents, 99 reported that their district had not been engaged in a single due process hearing during the last 5 years. 29 reported having one due process hearing in the last five years, 44 reported having between 2 and 5, 14 reported between 6 and 10, and 6 had 11 or more.

The reality is that when almost half the respondents do not report a single DPH and of the remainder, 3/4 had been involved in less than 5, this is not a significant issue. Also, keep in mind when reading these statistics that AASA did not ask whether the district had prevailed, lost, or had a mixed ruling of losing on some and winning on some of the issues. While it is true that districts prevail more than they lose, a large number of these DPH cases were cases where the parents prevailed because the district involved was not doing its job.

Based on this reasoning, districts are facing a very small number of cases in which the parents do not have a legitimate issue of contention with the district’s proposed IEP or implementation of an actual agreed upon IEP. Also, just because the district won (or the parent for that matter), does not mean that there was not a legitimate question that needed to be resolved. Thus, doing away with DPHs when there are so few of them across the nation is a solution for a problem that does not exist.

Conclusion:

I could go on with other arguments, (effect on the court system, the idea that stress on school personnel is a valid reason to lessen disabled children’s civil right, etc…) but the above should be sufficient to show that AASA’s proposal is flawed and should not be followed. Our disabled children need protection. One only needs look back to the system that existed prior to IDEA where only 20% of our disabled children were even being educated to know that IDEA and its protections serve an important purpose. IDEA is an important civil rights tools and should not be watered down based on the flawed reasoning displayed in RSDEP.

For another thoughtful criticism of this proposal by Mary Richard, a special education attorney, click here.

Gregory R. Branch is an Orange County attorney who practices in the area of special education. If you are having a dispute with your local school district, please call him at (714) 856-1166 or email him at gregorybranch@edrightsadvocate.com.

 

 

 

District special education litigation costs become more transparent in California

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The California Supreme Court recently upheld and certified for publication a non-special education case that has important ramifications for special education across the state. For years, the special education litigation costs for districts have been a closely guarded secret. In fact, when I interned with a special education attorney representing districts some years ago. I was handed a document that listed costs per district and was expressly told to never release the information (which I will not) and told that districts never want the information to get out to the public.

Now though, everyone who is interested should be able to gain access to this information. In County of Los Angeles vs. Anderson-Barker, California’s Supreme Court has published that the main legal basis given by districts does not hold water and such information will have to be released if districts are presented with a proper request for the information. In the case, an attorney sought litigation cost expense in an on-going civil rights matter currently being heard in the courts.

Requests for information from state public agencies are covered under the California Public Records Act, (CPRA). This law was enacted in 1968 and modeled after the federal Freedom of Information Act (FOIA). The purpose of the CPRA is to increase “freedom of information by giving members of the public access to information in the possession of public agencies.” Like the FOIA, this law creates specific exemptions which public agencies can cite in order to avoid revealing information considered sensitive. When parents or attorneys request that districts and or Special Education Local Plan Agencies (SELPAs) turn over litigation expense information, district have blocked such requests using three specific exemptions from CPRA: 1) attorney-client privilege; 2) attorney work product doctrine; and 3) the pending litigation exemption.

In this decision, which focused on the pending litigation exemption, the court made quick work of the County’s arguments not to disclose the information. According to the court, under CPRA, the pending litigation exemption applies to documents prepared specifically for litigation. Billing statements and the like, while related to the litigation, are not covered because the information was not compiled for litigation but rather for billing purposes related to getting paid. The court stated, “this is true even though the requested records relate to pending litigation and, indeed, would not have existed but for the pending litigation.” Based on this decision, school district special education litigation costs will become more transparent, because districts have long used this same argument to block requests for litigation expense information.

For a more thorough explanation of the decision, read my Examiner.com article on the same issue.

Calif. special education teachers sue their school district over workload

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As reported at appealdemorcrat.com, a group of four California teachers have sued the Yuba City Unified School District (YCUSD) over their high caseloads of special education students.

The teachers allege that their current assignments violate state law with regard to maximum caseloads for California’s Resource Specialist Program (RSP) teachers. At the heart of the issue is whether other at-risk students who are not in special education count in the teachers’ case loads. Yuba City is using a blended services model, and the outcome of this case could have impacts around the state.

According to the suit, YCUSD assigned the teachers to teach classes to groups of students containing both regular and special education children. In counting the teachers caseloads, which by law cannot exceed 28 students, the district decided that the non-special education children taught by these RSP teachers do not count as part of their case load. The four teachers also contend that assigning their services to both regular and special education students simultaneously is also a violation of state law.

According to the associatedemocrat article, the Superintendent, Nancy Aaberg, stated that many districts around California are looking for the best way to provide services to students on IEPs. In the past, special education students often were sent to special education classrooms to receive specialized educational services. More recently, districts are experimenting with having RSP enter classrooms in which RSP students sit side-by-side their typical peers and receive assistance within a regular education class.

In the legal filing, the teachers’ attorney states that she sent two letter to YCUSD and met with school officials to resolve the matter prior to filing the lawsuit.

 

OCR offers districts guidelines on inclusion for disabled students

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Athletics are an important of an overall educational program. School athletic programs, both inter-mural and intramural offer students health and social benefits of great value. These benefits include socialization, improved teamwork and leadership skills. These benefits apply just as much to disabled student as typical students, if not more so. Unfortunately though, the United States Government Accountability Office found that students with disabilities are not being afforded an equal opportunity to participate in extracurricular athletics in public elementary and secondary schools.

Based on these findings, the GAO recommended that the Office of Civil Rights clarify and communicate school district responsibilities under Section 504 regarding the provision of extracurricular activities. In it January 25, 2013, report, OCR undertook to do exactly that.

In what’s known as a Dear Colleague Letter, OCR laid out districts basic responsibilities under Section 504 and then applied those rights to the area of extracurricular activities.

Under this law, districts may not discriminate against individuals attempting to engage in extracurricular activities so long as they are “otherwise qualified.” Essentially, this means that a district must make reasonable accommodations to allow a disabled student to participate, but they need not alter the game or the skill requirements expected. For example, modifications that would give a disabled student a fundamental advantage are not required, but modifications to allow a student to participate are.

The letter lays out several scenarios and then analyzes whether the district response in the hypothetical scenario was appropriate. In the most informative example, a high school competitive swimmer was born with only one hand. Her times are competitive but she cannot meet the requirement of performing a two-hand wall touch. She petitions the league to allow her to use a one-hand touch during interscholastic meets. Under the OCR’s analysis, the district would be required to perform an individualized analysis to determine whether the requested modification was necessary for the student’s participation, and determine whether permitting it would fundamentally alter the nature of the activity. Her, modification is necessary for the student to participate.

An appropriate analysis would determine whether the requested modification alters an essential aspect of the sport or would give the student an unfair advantage over other swimmers. The analysis does not end there though. If the district determined the modification failed either prong, it would need to assess if other modifications existed that would allow the student to participate.

The report concludes that while districts cannot offer separate services that are unnecessarily separate, districts are encouraged to work with their community and athletic associations to develop broad opportunities to include students with disabilities in all extracurricular athletic activities. When the interests and abilities of some students with disabilities cannot be as fully and effectively met by the school district’s existing extracurricular athletic program, the school district should create additional opportunities for those students with disabilities. The letter goes on to mention the creation of disability-specific team sports such as wheelchair basketball or wheelchair tennis.

If you feel that your child has been unfairly discriminated against in attempting to participate in extracurricular activities, please contact The Law Office of Gregory R. Branch for a consultation.

Portland schools accused of only helping students whose “parents are litigious”

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A former occupational therapist for the Portland Public School system filed a whistle-blower suit which alleges that school district officials forced her to resign as retaliation for bringing to light negative practices of the school district in their handling of special education students.

Specifically, Christine Van Osdol alleges that the district retaliation was due to her complaining to the district officials that she and her coworkers were overworked and lacked the time and resources to provide the attention required by special education law to their students. For her complaints, Van Osdol alleges that district officials forced her to resign.

Her suit names the district and special education administrator Linda Moon as defendants. She is seeking $900,000 in damages from each defendant. While the district acknowledges the lawsuit, it refuses to comment further.

The suit additionally alleges that when Van Osdol filed a union grievance concerning working conditions that district officials told her to limit her work to those students whose “parents are litigious.” The also claims that Portland Public Schools are not meeting legal special education requirements for nearly half of their special needs children.

Such lawsuits are becoming the norm in this Pacific Northwest town. Last year, an arbitrator agreed with the teachers’ union in a suit wherein the teachers complained that the district had unfairly increased their workload due to a newly implemented schedule. The district was ordered to pay 1.4 million out to affected workers.

The year before that, a special education principal also filed a whistle-blower suit. She claimed she was demoted in retaliation for standing up to officials about staff and child safety issues that existed. After a lengthy trial, the jury ruled in favor the school district.

If you feel that your child is not getting the services they deserve because you have not stood up to your district, please call The Law Office of Gregory R. Branch at 714-856-1166.

Bourbon Street to host 4th annual “Mardi Gras for Autism” event

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A crowd of more than 2,000 people is expected to attend  the 4th annual “Mardi Gras for Autism” event on Saturday, February 9, 2013, for 10 A.M. to 4:30 P.M. The free, family-fun event is scheduled to occur at Bourbon Street Bar and Grill and outside in the adjacent Fullerton Train Depot parking lot located at 110. E. Commonwealth Ave.

Larry Houser, the co-owner of Bourbon Street and the founder of Fullerton Cares, an organization founded to raise money, awareness and acceptance for autism in the Fullerton community, is hosting and sponsoring the event. Speaking about the event, Mr. Houser says, “The way we’ve designed Mardi Gras for Autism, families can come out and enjoy a good time together, whether they have children on the spectrum or not.” Houser became involved with autism and special education after his four year-old son Boyd was diagnosed with autism at age two.

The family-friendly free event is designed to encourage families to enjoy the fun of Mardi Gras while raising money for Fullerton special education programs and will feature many activities appropriate for children of all ages and abilities, including:

Aquarium of the Pacific — Joining Mardi Gras for Autism for the first time is the Aquarium of the Pacific and their “Aquarium on Wheels.” Some of the creatures that can be seen include sea stars, sea cucumbers, anemones, and sharks.

Medieval Times — Buena Park’s own Medieval Times Dinner and Tournament will join Mardi Gras for Autism for a second year to bring out some Knights and Kings, some freebies for the kids, and the Knights will be doing a mini-show.

MMA Demonstrations by BullyFight.com — a national fitness outreach program for kids, partnering with gyms across the country and supporting physical fitness, Bullyfight.com will offer MMA demonstrations for attendees.

Custom Hats by “Artists Against Bullying” — The local tattoo community will volunteer time to create custom artwork on trucker-style hats donated by Liberty Board Shop. Participating tattoo shops will include Beyond Kreations, All Hallow’s Ink, Action Tattoo, Good Fellas Tattoo and Platinum Ink.

Face Painting by Gymboree — In addition to handing out Gymboree play items and blowing bubbles, Gymboree will provide two face painters who are volunteering their time for the cause.

Swipe4theKids — Bourbon Street exclusively uses S4TK to process their credit cards, and the funds are given to Fullerton Cares in order to further autism programs throughout Fullerton.

Autism Speaks U-CSUF — The Cal State Fullerton chapter of Autism Speaks U is designed for college students to promote awareness and advocacy and raise funds for Autism Speaks.

Information Booth by Talk About Curing Autism –TACA will be on hand at Mardi Gras for Autism to offer an information booth and answer questions that visitors may have about autism.

A.Skate — A.skate Foundation encourages the social interaction of children with autism through skateboarding. A.skate will be conducting skate demos throughout the Mardi Gras for Autism event.

The Complete Package –The Complete Package is the official printing partner of Mardi Gras for Autism and was created to give the daughter of the owner, who has autism, an opportunity to work, be productive, and give her a sense of purpose.

The Dixiedelics — A fixture in the Downtown Fullerton music scene, the Dixiedelics are the featured musical guest of Mardi Gras for Autism.

DMA Insurance — The title sponsor for Fullerton Cares’ annual charity golf tournament, DMA Insurance Services, Inc. is a full service insurance agency with three branches located in Southern California.

Miss Fullerton Scholarship Program — A 100% volunteer, not-for-profit organization, the Miss Fullerton Scholarship Program prides itself on representing the Fullerton community with service, style, scholarship, and success.

CF Dance Academy — Returning for their fourth year with Mardi Gras for Autism, CF Dance Academy has been a fixture in Orange County for 28 years.

Fullerton Union High School Circus Club — Joining Mardi Gras for Autism for the fourth consecutive year, the FUHS Circus Club provides the perfect entertainment for the evening.

ONEHOPE Winery — ONEHOPE Wine donates half of its profits donated to benefit a variety of causes, and is pleased to support the fight against autism.

Bourbon Street — Pleased to be the presenting sponsor of the fourth annual Mardi Gras for Autism, Bourbon Street has a close tie with not only the City of Fullerton, but also those directly affected by autism.

Chef Cody Storts — Chef Cody Storts is returning for his second year with Mardi Gras for Autism. With past endeavors including many creations with The Lime Truck and Bourbon Streets California Cajun cuisine, Storts will be serving up Pulled Pork Sandwiches, Cajun Dogs, Chicken Gumbo, and Biegnets on behalf of Bourbon Street.

Heroes Bar & Grill — A proud supporter of Mardi Gras for Autism, Heroes will be serving hot dogs and chips for the kids.

The Olde Ship British Pub — Serving up British pancakes as part of the traditional way to honor the British holiday of “Shrove” or “Pancake Tuesday,” as the day before lent is known in the United Kingdom.

Fullerton Cares — Founded in order to raise money, awareness, and acceptance of students with Autism within the Fullerton community, Fullerton Cares works tirelessly to promote and fund programs for students with autism within the Fullerton School District.

Please come out and join the festivities. You will be sure to have fun and also help support special education students in Fullerton.

 

District not required to serve ADHD student attending private school

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(January 16, 2013) A school district does not have an obligation to provide services to an ADHD child enrolled in a private religious school under current federal disability-rights law.

The United States Court of Appeals for the Fourth Circuit held that Baltimore City Public Schools had no obligation to provided special education services under Section 504 to an 8th grade ADHD student who attended a private Jewish school in Maryland.

D.L., the student around whom the law suit swirled, was diagnosed with ADHD and anxiety as a fifth grade student in 2007. Two years later, Baltimore City Board of School Commissioners (BCBSC) determined that while D.L. did not qualify for services under the Individuals with Disabilities Educational Act (IDEA), he was eligible under Section 504. Upon making this determination though, BCBSC notified D.L.’s parents that it could not provide the student services unless D.L. was enrolled in one of its schools. Since Maryland is a state that does not allow dual enrollment in a private and public school, D.L. would have to withdraw from his Yeshiva and enroll at the local public school.

D.L.’s parents challenged this decision, arguing that Section 504 creates an affirmative duty for school districts to provide services to eligible students enrolled in private schools. The parents’ arguments failed before a hearing officer so they filed suit in the United States District Court of Maryland. BCBSC filed a motion for summary judgment (a motion which basically says that even if D.L.’s parents were to prove all the facts they assert, they would still lose the case as a matter of law) and the parents filed a motion for partial summary judgment. The lower court granted BCBSC’s summary judgment motion and denied the parent’s partial summary judgment motion. The parents filed an appealed that decision to the U.S. Court of Appeals.

In the case, D.L. v. Baltimore City Board of School Commissioners, the parents argued two main points: 1) that Section 504 regulation mandate that BCBSC provide D.L. with a free and appropriate education (FAPE), and 2) that BCBSC’s requirement that the family enroll D.L. in a public school violates their constitutional rights under the First Amendment’s Freedom of Religion clause.

With regard to the first contention, the court recognized that the plain language of Section 504 leaves unclear whether public schools are required to provide services to students enrolled in private schools. 34 C.F.R. § 104.33(a) states in relevant part that districts must “provide each Section 504 eligible student within its jurisdiction with a [FAPE].” The parents contend this language means that public schools have a greater obligation that simply making such education available.

The court reasoned that while the plain language is ambiguous, that further clarification in Appendix A of the regulations where it states in relevant part, “[i]f . . . a recipient offers adequate services and if alternate placement is chosen by a student’s parent or guardian, the recipient need not assume the cost of the outside services.” In looking at this, the court noted that while this shows that a district need not pay for services obtained outside the public school, it leaves open the question of whether such services can be obtained from the school.

Here, the court relied upon a clarification letter by the Department of Education entitled OCR Response to Veir Inquire Re: Various Matters which offers a direct clarification of the disputed regulation. The court noted that where a regulation is ambiguous, courts must grant deference to an agency’s interpretation of its own regulation. In the Vier letter, the DOE stated that “[w]here a district has offered an appropriate education, a district is not responsible under Section 504, for the provision of educational services to students not enrolled in the public education program based on the personal choice of the parent or guardian.” The court applied this language to hold that BCBSC had no responsibility to provide services to D.L. in his private school placement.

In reaching its holding, the court also rejected the parents’ arguments that Section 504’s language should be interpreted broadly since it is a remedial statute. While noting that turth of the parent’s contention that remedial statutes should be broadly construed, the court noted,

“The purpose of Section 504 does not, however, extend as far as Appellants [parents] assert that it should. Section 504 and its implementing regulations prohibit discrimination on the basis of disability, not on the basis of school choice.”

The court next tackled the First Amendment issues raised by the suit. The parents’ suit tried to persuade the court that the Supreme Court’s rulings in Pierce, 268 U.S. 510, and Yoder, 406 U.S. 205, show that requiring D.L. to attend Baltimore public schools was a violation of his First Amendment rights.

The court easily distinguished these cases in that both involved parents being charged under criminal statutes for failure to educate their children in public schools. Here, the parents face no such sanctions and retain free choice as to where their child go to school. The issue was one of payment of services. While it is true that the parents would need to pay additional services that would be free were they to attend public schools, such increased economic burden does not meet the standard of a First Amendment violation. The court noted, “The Supreme Court has explained that a statute does not violate the Free Exercise Clause [First Amendment] merely because it causes economic disadvantage on individuals who choose to practice their religion in a specific manner.

 

 

The types of special education services provided in California

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California spends, on average, $12,700 more per year educating our students with disabilities than regular education students. What types of services does that money pay for?

A new report from California’s Office of Legislative Analyst’s sheds light on to the answer to this question. The report, Overview of Special Education in California, shows that far and away the biggest service provided is specialized academic instruction. Specialized Academic Instruction (SAI) is defined as: “ Adapting, as appropriate to the needs of the child with a disability the content, methodology, or delivery of instruction to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.” (34 CFR 300.26(b)(3)). Examples of this are one-to-one tutoring, specialized instruction is a separate classroom, or modified assignments. Roughly 550,000 CA students benefit from these services.

The second largest area of services provided is speech and language therapy, with over 300,000 students receiving this type of assistance. Speech and language services are defined as:

i. Identification of children with speech or language impairments;
ii. Diagnosis and appraisal of specific speech and language impairments;
iii. Referral for medical or other professional attention necessary for the habilitation of
speech or language impairments;
iv. Provision of speech and language services for the habilitation or prevention of
communicative impairments; and
v. Counseling and guidance of parents, children, and teachers regarding speech and
language impairments. (34 C.F.R. 300.24 [14].

No other provided service reaches the 100,000 mark in terms of students receiving that service. On the list of lesser provided services, in order from highest to lowest, are occupational therapy, college awareness, career awareness, adapted physical education, vocational assessment, behavior treatment services, and individual therapy.

The report also notes that at the age of 16, children begin to receive assistance in order to ease their transition into adulthood. School districts are required to develop IEP services to  aid students in this difficult transition. Types of services that are provided include vocational and career readiness activities, college counseling, and training in independent living skills.

$1M judgment for racially bullied special education student

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In a victory for bullied school students that was aided in part by the Obama administration, a federal court of appeals has upheld a million dollar verdict that had been appealed by a New York state school district. It must now pay for the deliberate indifference that it exhibited as one of its students endured years of racial harassment. The Obama administration contributed to the case by filing a friend of the court brief, arguing on behalf of the lower court’s decision and that school districts can be found financially liable when they fail to take action reasonable efforts to end known student-to-student harassment.

Read the rest of my article here.