On November 28, 2012, the Office of Civil Rights issued its every four year report on civil rights enforcement and educational rights. The report is entitled “Helping to Ensure Equal Access to Education.” The report includes a variety of important information on the subject of the work that OCR does and the quantity of complaints that it handles.
To read the rest of my Examiner.com article, click here.
Photo credit; jasonnelsonok.blogspot.com
The Oklahoma Supreme Court on Tuesday, November 20, decided that the Jenks and Union Public School Districts lack the standing to sue parents over their use of state educational vouchers that pay for their special education students to attend private K-12 religious schools. At issue was the Lindsey Nicole Henry Scholarship for Students with Disabilities Program (LNH) which allows the parent/guardian of a public school student with a disability to exercise their parental option and request to have an LNH Scholarship awarded for their child to enroll in and attend a private school, if the child is on an Individualized Education Program (IEP) prior to the request and has spent the previous school year in attendance at a public school in the state by being reported by a school district for funding purposes during that year.
The issue at hand is First Amendment separation of church and state issues, not special education law. The two districts believe that the LNH scholarships violate numerous principles of both the Oklahoma State Constitution and the federal United States Constitution. In relevant part, the Oklahoma Constitution reads
No public money or property shall ever be appropriated, applied, donated or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.
(Constitution of the State of Oklahoma; Article II, Section 5)
The Court’s decision does not address the constitutionality of the law but rather holds that the districts do not have the legal standing necessary to sue the parents of the children in the case. The basis for this ruling is that the districts are not suffering harm. In the decision, the Court states, “the funds at issue are not taxes from taxpayers in the districts’ county revenue streams that a county assessor is improperly reducing or disposing of, but part of the Legislature’s general grant to the districts, through the State Department of Education. Because the school districts are not the ones charged with the duty to provide free public education, the Legislature’s withholding of certain funds, even if it is unconstitutional, does not violate a constitutionally protected interest of the school districts themselves, because they are merely the Legislature’s vehicle.”
The decision came down 7-2. The two dissenting justices contended that the constitutional issues of the case had been fairly joined and should be considered. The ruling reverses a decision by a Tulsa district judge that ruled the program unconstitutional.
The districts are currently considering how to proceed in light of this decision.
Click here for a timeline of the legal battle. (Scroll to bottom of article.)
Robert Alan Lehmann, a divorced father of one, is facing double murder charges for the killing of his ex-wife. Emily Ford, and ex-father-in-law, Russell Ford. The murder occurred the same day the Lehmann lost custody of his ADHD/special needs daughter to his ex-wife. She had filed for full custody due to Lehmann’s inability to control his temper and the resultant fear for her safety that she was experiencing. At the core of their dispute was proper school placement for the seven year-old. Dad wanted expensive private placement while Mom preferred a public school placement.
For all the facts of the case, please read my Examiner.com article.
DMV photo of Emily Ford, 32. (credit to starfl.com)
The “OMB Report Pursuant to the Sequestration Transparency Act of 2012” paints a grim picture for the disabled in America. Unless something is done before sequestration begins in January, 2013, special education funding to the states will be slashed by more than a billion dollars and multiple other programs benefiting the disabled would similarly be slashed by millions of dollars. Sequestration went into effect when law makers failed to reach a budget agreement last year. At that point, the 8.2% slash to nearly all federal programs automatically kicked into gear and will apply to the 2013 budget unless something is done. All told the bill is expected to initiate 1.2 trillion dollars in cuts for the 2013 budget.
The long anticipated report on sequestration’s financial effects paints a grim picture not only for America’s disabled but also for the country as a whole. Multiple financial experts have cried out against the potentially disastrous effects that sequestration could have on the American economy, warning that the indiscriminate cuts would likely serve to plunge the country back into recession.
The report briefly touches on the enormous spending cuts that education faces if nothing is done to stave off the law’s effect.
Education grants to States and local school districts supporting smaller classes, afterschool programs, and children with disabilities would suffer.
Further medical research delving into developmental disabilities would similarly suffer a major slash as the National Institute of Health would suffer a 2.3 billion dollar cut.
Understanding limited in conservatorships in California requires knowledge of the fact that there are different types of conservatorships that may be obtained.
In California, there are three types of conservatorships: general, limited, and Lanterman-Petris-Short (LPS) conservatorships. A general conservatorship is for a person who lacks the ability to care for herself or her finances. It is usually for elderly people but is sometime for a young person, for example where the individual suffers a serious brain trauma. A limited conservatorship is for disabled individuals who do not need the higher level of care a completely incapacitated person requires. An LPS conservatorship is initiated by the State for the care of an individual with a serious mental health condition for which special care is required. These are individuals who, due to the nature of their disabling condition, are resistant to treatment and who generally require a lock-down facility.
Limited conservatorships are called this because they offer the court the ability to narrowly tailor the conservatorship to match the needs of the individual. The goal is to allow the disabled individual to maintain as much control of their lives as they are able. There are six areas in which decision making can be granted to the conservator:
In understanding limited conservatorships in California, one should note that there are two different types, limited conservatorship of the person and limited conservatorship of the estate. In the former, the conservator cares for the disabled person’s daily needs and protects her. In the latter, the conservator manages the financial affairs of the disabled person, doing things such as paying bills and collecting the income of the disabled person. Generally, if the individual’s sole income is through public assistance, no conservatorship of the estate is necessary.
The decision to obtain a limited conservatorship is an important one. In general, when one obtains becomes a conservator, she takes over the decision-making power for another adult. Because the freedom to make choices concerning one’s own life is a basic civil liberty, this power can only be taken from one individual and granted to another by the courts.
When is a limited conservatorship necessary? In general, courts prefer alternatives to conservatorship where possible. Because of the deprivation of civil rights entailed, the courts encourage people to seek out alternatives. Such things as educational powers of attorney, court authorized medical treatment, informal personal care arrangements can sometimes stand in place of a conservatorship of the person. Rather than obtain a conservatorship of the estate, such things as living trusts, joint title to bank accounts, and substitute payees of public benefits are acceptable alternatives.
There are certainly good reasons to establish a conservatorship of the person if the individual is severely disabled. Following are some instance where a conservatorship would be a necessary or positive asset:
While it is possible to obtain a limited conservatorship on one’s own, it is usually advisable to obtain an attorney. There are numerous complicated forms to complete, mistakes can delay the process, and in some instances a limited conservatorship can be contested by either the public defender or the regional center.
If you are currently considering obtaining a limited conservatorship, please contact The Law Office of Gregory R. Branch for assistance. I may be reached at 714-856-1166 or at gregorybranch@edrightsadvocate.com.
Dr. Dave Madden (credit productionchange.com
(Oxford, Pennsylvania: a suburb of Philadelphia) Despite being caught texting and emailing comments that degraded a special education student at his school, the Oxford Area School District, a suburban Pennsylvania K-12 district, voted to reinstate the principal of Oxford Area High School on a 6-3 vote. Dr. David Madden had been placed on suspension due to written comments he made regarding a bipolar special education student. At the board meeting following the vote, parents reacted angrily to the decision. Parents discussing the issue had tears in their eyes as they described Dr. Madden’s comments as hurtful and insensitive.
The issue surfaced during a March IEP for the emotionally disturbed student. During the IEP, the student was represented by Lisa Lightner, a special education advocate employed at the Arc of Chester County, a program which provides services to disabled people. Ms. Lightner became bothered when she saw two administrators texting during the meeting. She stole a quick look at the Assistant Principal’s phone and saw that the text was from Dr. Madden, who was also seated at the table, and that it began, “F&!@ this manipulator.”
Ms. Lightner reported the incident to her supervisor. Based on the incidence, Arc instituted a Federal Educational Rights and Privacy Act (FERPA) request for all records related to the student. Unearthed in this material were other derogatory messages about the emotionally disturbed student specifically and special educations students in general; all the emails were written and distributed by Dr. Madden via his district email account. In these blasts, he called the student a “psychopath” and expressed concern that the student could be another “Hinkley, Booth, AND Oswald.” (emphasis mine). Regarding special education students generally, he wrote that special education students, who he referred to as “the guilty people,” have more rights than “the innocent.” He went on to state, “Amazing world we live in and equally amazing that people are afraid of lawsuits. I say bring them on.”
Despite all this, the board voted not to fire Dr. Madden, but he has to meet certain stipulations. First, Dr. Madden is no longer be allowed to work with special needs kids. Second, he is being required to undergo a psychiatric evaluation. Third and finally, Dr. Madden is being required to undergo substance abuse testing. These measures have done little to soothe over harm caused by his comments. In the aftermath, the school’s special education director, Jenny LeSage, quit rather than continuing to work under Dr. Madden. Ms. LeSage was quoted by Philly.com saying,
Why would you have an administrator in a building where you basically say we don’t want you to have anything to do with 200 kids in the building? It’s the dumbest thing I ever heard in my life
In addition, many parents are outraged over the incident.
When concerned parents showed up to voice their disapproval, the board basically attempted to silence their opposition. Parents and concerned citizens were not allowed to mention the administrator by name. Further, questions brought about the board’s decision were left unaddressed. Ironically, because Dr. Madden degraded the special education student, the board had to meet to discuss paying out a settlement of between $200,000 and $250,000. It looks like the Dr.’s desire for lawsuits is going to come true.
credit: adpunch
In a recent study published in The Lancet and funded by WHO, the World Health Organization, it was discovered that children identified as disabled are nearly 4 times more likely to experience childhood violence than their typical peers. The methodology for the research was to examine all the previous research on the subject over a 20 year period and then determine for those studies the strength of the research methodology. Based on this, 17 studies were chosen from a pool of 10,663 possibilities. The results of those 17 studies were then pooled and analyzed to reach its conclusions.
Findings: According to the study, violence is a major problem for all children with disabilities. The highest levels of exposure to violence was among emotionally disturbed children, while the lowest rates were seen among children whose disabilities were labeled as non-specific.
The authors note that their study has some weaknesses, stating
However, the continued scarcity of robust evidence, due to a lack of well designed research studies, poor standards of measurement of disability and violence, and insufficient assessment of whether violence precedes the development of disability, leaves gaps in knowledge that need to be addressed.
A summary of the report is here and the full study can be found here.
As reported in the NY Times,Governor Cuomo of New York is deciding whether to sign a bill that would allow parents and schools to consider a child’s family background when making placement decisions for a special education child. The bill has already passed both branches of the legislature, and it is supported by religious groups which say many religious students are not prepared for the daily reality of life on our nation’s public school’s campuses. Opposing the bill is New York City’s Mayor Bloomberg, who argues that the language is too broad and could cover all kinds of considerations that are not important to a child’s education. Further, some critics feel the bill, if signed, will cut against the grain of the statutory intent of the IDEA, for which have students in the less restrictive environment and not segregated from their typical peers.
As is true of most federal law, states are free to offer greater protection to individuals than is offered by federal laws, they may not offer less though. If the bill passes, it could lead to other states putting into place such laws.
Mario Cuomo
At the end of a decision regarding whether nominal damages can be awarded under IDEA, the 9th Circuit held they cannot, the Court then went on to address a counter-claim brought by the parent. In this claim, she asserted that the district court improperly dismissed her Rehabilitation Act Section 504 and ADA monetary relief claims which were based upon the admissions policy of the school district’s magnet high schools. The Court upheld the district’s court decision, and that monetary relief was not appropriate here.
aIn Oman v. Portland Public Schools, the Court began be quoting the direct language of Section 504, “[n]o other-wise qualified individual with a disability . . . shall, solely by
reason of her or his disability, be excluded from the participation” in a program or activity receiving federal financial assistance, 29 U.S.C. § 794, or a public entity, 42 U.S.C. § 12132. These statutes provide a private cause of action in certain circumstances.The court went on to note that under very limited circumstances, ADA and Section 504 may provide a cause of action for failure of public school to provide a free and appropriate public education (FAPE).
In analyzing whether such a claim existed under the circumstances of this case, the Court quoted Se. Cmty. Coll. v. Davis,
“Section 504 by its terms does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate.”
Rather, schools may not exclude a person who is “otherwise qualified” based upon their disability. For a student to be qualified, an applicant must be able to “meet all of a program’s requirements in spite of his handicap.” In it’s holding the Court stated,
we do not read this to give schools leave to adopt requirements that are not reasonably related to the program at issue, we extend judicial deference to an educational institution’s academic decisions in ADA and Rehabilitation Act cases.
Noting that here the requirement which was keeping the plaintiff’s son from attending the school was a threshold that to be admitted students had to be able to write at a minimum of an eighth grade level.
It has come to be my belief that IEPs are used far too infrequently. We have limited ourselves by only applying IEP’s to children. There are so many other places in life where they might be appropriate. I would like to suggest that some schools might benefit from having an IEP that sets in place goals that assist them in helping special needs children. I’m not suggesting that all schools need such a document, solely the ones who present some significant processing disorder that inhibits their ability to correctly and adequately teach the special education children that are a part of their community.
While the more angry and embittered in advocacy circles might argue that such schools could be qualified under the emotional disturbance category; I believe the correct qualifying condition would be to place such schools under the visually impaired category. The federal definition of “Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child’s educational performance. The term includes both partial sight and blindness.” 34 CFR 300.7 (c)(13). If a student is found to have an impairment, the Individualized Education Program (IEP) team must also determine whether the student has a need for special education.
It is fairly clear that while many schools have a vision that includes proper educational services for special education, other schools seem to have a disability that prevents them from seeing that these children, given proper support, can receive an excellent education and go on to lead productive lives. Given this, as a society, we need to address these issues by providing these vision impaired schools a proper IEP.
Following are some suggestions for goals. The list is not inclusive, and I encourage readers to suggest additional goals. Since an IEP is a living document, as such proper goals are determined, we can revisit our IEP and add them.
ARTICULATION GOALS
Long Term Goal for Articulation/Intelligibility: Given a structured or unstructured educational setting, School will increase meaningful communication interactions by articulating a clear vision of inclusion for special education student within its educational setting to 100 % over 4 consecutive trials as measured by parent/advocate observation, other informal assessments and data collection.
Short term: School will use appropriate phrasing (pitch, volume, rate, stress) during IEP inclusion meetings or conversation in all trials.
FLUENCY GOALS
Long Term Goal for Fluency Awareness/Self-monitoring: Given a structured or unstructured classroom setting, School will increase awareness of own speech production by describing characteristics of fluent and dysfluent speech by school personnel with 100% accuracy over 175 consecutive trials.
Short term objectives/benchmarks: Evaluate speech of self and others as it regards the rights of special education students.
MATHEMATICS GOALS
Long Term Mathematics Goal: School will develop number sense sufficient to understand that funding special education is not encroachment,; it is dispensing dollars to help student have access to the curriculum that is offered.
Short Term Goal: As observed by parent/advocate, School will provide sufficient resources to fund an educational program meeting the needs of special education children.
SOCIAL SKILLS/PRAGMATICS GOALS
Long Term Goal for Social Skills: School will demonstrate appropriate use of conversational manners.
Short term objectives / benchmarks:
1. School will demonstrate understanding and use of appropriate tone of voice and volume with 90% accuracy given situational cues.
2. School will formulate single or multiple sentences on a given special education topic with appropriate and clear meaning and increasing accuracy.
ORGANIZATION SKILL GOALS
Long Term Goal for Organization: School: School will demonstrate ability to complete work by delivering the items agreed to in IEP’s.
Short Term Goal: Through observation by parent/advocate, all areas of IEP’s will be fully delivered without exception.
TECHNOLOGY GOALS:
Long Term Technology Goals: School will proactively ensure that all special education students have access to the technology necessary to benefit from their educational experience.
Short Term Goal: As observed by parent/advocate, School will provide modern technology and software that is designed to meet student instructional needs in 100% of cases.
TRANSITION GOALS
Long Term Goals for Transition: School will transition from an adversarial role in dealing with parents to one in which parents are equal partners at the table with a wide range of experience in helping their children.
Short Term Goals/Benchmarks: School will receive training to better understand the role parents within the IEP process. As measured by parents/advocates, School will demonstrate increased cooperation in IEP meetings during 5 out of 5 meetings.
Once again, I encourage readers to suggest their own goals. I hope to garner enough to create a second blog posting with the entries.