A special education hearing officer who fell asleep as he presided over a family’s due-process hearing has resigned, the Fort Worth Star-Telegram reported. See rest of the story here.
See video of sleeping judge at this link. Judge falls asleep during special education trial.
When a young man who has not graduated from high school and requires special education services is incarcerated in a county jail, who should bear the cost of that child’s education if the individual is between 18 to 22 years? This is the novel question recently certified to the California Supreme Court by the 9th Circuit. Read the rest of my Examiner.com article here.
Canadahas decided to make special education services more readily available to its ADHD students. Read the story here.
To often, special needs children are bullied in our schools. Check out my latest Examiner.com article here on what you can do as a parent to help deal with this sad truth.
Two Seattle, Washington, special education teachers have lost in their appeal of a ten-day without pay suspension from work for insubordination in the wake of their 2008 refusal to administer state-mandated testing. In a decision handed down December 27, the Washington State Court of Appeals upheld the teacher’s suspension holding that the district’s disciplining of the teacher was not arbitrary or capricious.
FACTS:
The two elementary school teachers, Juli Griffith and Lenora Stahl-Quarto, were described in court documents as “dedicated and good at their jobs.” Both teachers taught severely disabled students. In 2008 the teachers had six state testing eligible students in their classrooms whom they refused to test. In a letter prior to their suspension, one teacher argued that testing her children would be “inauthentic” and “ridiculous” based on the severity of the disabilities. In court documents, the students in question were described as being some of the most challenged students in the Seattlepublic school environment. According to court documents, the teacher went on to characterize giving the test as “jumping through the golden WAAS (Washington Alternate Assessment System) hoop just so it appears that our school is making ‘adequate yearly progress.’” The teachers persisted in their refusal to administer the test in the face of multiple meetings and communications that informed them that their action would be regarded as insubordination.
A central question in the decision that was appealed was whether the teachers were acting on principle or based on direct requests by the parents of the students in their rooms. While in the earlier trial the teachers presented evidence that the parents did not wish their children tested, the lower court made a determination that the teachers were acting on principle. This decision was based on the fact that in all the communications with the district prior to their suspension, parent requests were never mentioned as a motive for their refusal to test.
DECISION:
In upholding the lower court’s allowance of suspension, the court began be review the holding that the teachers acted on principle rather than at parent direction. The court noted that “eventually, parents of the six students submitted written refusals. But, the misconduct occurred between the fall of 2008 and the beginning of January 2009. The first letter did not arrive until January 27. Four more arrived in February, and one came in May. None of the six letters included any indication that the parents expressed their refusal to the teachers in the fall of 2008.” Based on these facts, the court refused to disturb the lower court’s findings.
Next, the court looked at whether the teacher’s acts amounted to insubordination. According toWashingtonlaw,
a teacher is insubordinate if she willfully refuses to obey a reasonable regulation governing her conduct.
Here, because the teachers were notified in advance of their actions on numerous occasions by the district that their refusal to administer the test would be insubordination, and further, aWashingtonstate employee in charge of alternate assessments informed Quarto that the test was federally mandated, the court determined that the teachers’ actions were insubordinate.
According to Levi Pulkkinen, the SeattlePi.com writer whose article brought this matter to my attention, it is unclear whether the teachers plan to appeal this decision toWashingtonState’s Supreme Court. The teachers’ attorney did not return a request for comment on the decision.
If as a parent you have concerns about your child being required to take part in state or federally mandated testing, please contact The Law Office of Gregory R. Branch through its website, through email at gregorybranch@edrightsadvocate.com, or by phone at (714) 856-1166.
A phrase that strikes concern and apprehension into the hearts of school district personnel is “due process hearing.” When parents feel their child’s right to a free and appropriate public education is being denied, they have the legal right to file for a due process hearing, which means they are suing the school district to attain educational rights for their child.
Due process is essentially the guarantee of fairness provided to us by the United States Constitution. The 5th Amendment, which only applies to actions by the federal government, states in relevant part that a citizen cannot “be deprived of life, liberty, or property, without due process of law.” It was not until after the Civil War that this protection was extended to citizens aggrieved by actions of state and local governments.
The 14th Amendment, passed in 1868, states that no State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
So, since what the Constitution guarantees is that the government will not deprive its citizens of life, liberty, or property, without due process of law, which of these rights is a student being deprived of when a school district does not offer him an appropriate education?
Interestingly, the argument being advanced in a due process hearing is that the child is being deprived of a property right. In Goss v. Lopez, the Supreme Court held that State compulsory attendance laws created a property right in education and thus, in order to be deprived of the right to attend, the State must provide due process, essentially some sort of legal process for ensuring the right is not being taken away arbitrarily.
Thus, when parents file for a due process hearing, they are utilizing the state-mandated system for enforcing their child’s property rights to an education, a right founded under the Individuals with Disabilities Education Act, a national law which similarly to compulsory attendance laws creates a property interest in attending school.
You may download a Request for Due Process form at www.oah.dgs.ca.gov.
If you feel that your child is being deprived of due process, please contact my law firm through its website, via email at gregorybranch@edrightsadvocate.com, or by phone at (714) 856-1166.
On December 12, Adam Goldstein, writing for the Huffington Post, took a stab at the judiciary’s belief that it should give deference to the educational decisions of school administrators. (Read article here) While I fully support his belief that when administrators make mistakes, these mistakes should not be overlooked by the courts, I find his take on what judicial deference means to be misleading and his belief that such deference should stop to be flawed.
While it is certainly true that one definition for deference is submission, this is not its only definition, nor is it the one the court intends through the use of this word. Deference has a secondary definition of giving respect to another person. It is this secondary definition which best seems to fit how courts have applied deference to school administrative decision.
Goldstein states in his article
it is time to end this bizarre practice that assumes judges who are competent to decide whether a man lives of dies for his crimes are incompetent to decide whether a school administrator crossed a line in a strip search.
I have never read a case where a judge implied that they were incompetent to decide an education issue. Rather, when judges use the term “deference,” they seem to be using it to state that the decision made was a sound one based on the administrator’s training and experience and, therefore, that the judge is not going to overrule it.
Goldstein also states that his reason for writing this article was
because schools, including colleges, and graduate programs, are still whining for ‘substantial deference’ for their wrongdoing, and judges are often far too often willing to give it to them.
At this point in his article, it would have served Goldstein well to point to examples of decisions where judges too willingly (and wrongfully) gave school administrators substantial deference but he disappointingly leaves this statement as a bald accusation, bereft of any support.
Instead, Goldstein goes on to cite four cases where administrators have made egregious errors in judgment, cases such as the Penn State/Sandusky debacle where administrative complacency appears to have allowed a monster to continue to victimize young boys. While the administrators in the cases mentioned certainly do not deserve deference for their decisions, neither have they been granted any. Of the four incidents mentioned by Goldstein, three have not been to trial, and the fourth decision, where a court supported a school‘s decision to discipline a cheerleader for not cheering for a basketball player who sexually assaulted her, did not even mention deference for school administrator decisions.
What Goldstein also fails to mention is that education is not the only area of the law where judges believe in respecting the professional judgment of the individuals entrusted with running our public institutions. Another well documented area of administrative deference is for prison administrators. Both of these facilities involve the housing of unique individuals possessing unique concerns. Despite Mr. Goldstein’s tirade, the fact is that these individuals’ decisions deserve our respect. Where they are flawed though, respect should not translate into the other type of deference, “a yielding of judgement.”
Gregory Branch is a teacher, former school administrator, and attorney. His practice focuses on assisting families of special education children secure their educational rights. He can be reached at gregorybranch@edrightsadvocate.com.
California’s disabled children and those with special health care needs (CSHCN) are less than half as likely as students nation-wide to have health care options that meet a minimum quality of care index according to a just released, original federal report.
See my full Examiner.com article here.
New data from the U.S. Census show that as of 2010, about 5 percent of all school children have a disability.
The American Community Survey finds that of the nation’s 53.9 million schoolchildren ages 5 to 17, about 2.8 million were reported to have a disability in 2010. (This data excludes children in institutions such as juvenile correctional facilities, group homes for juveniles, and residential schools for people with disabilities.)
Check out the rest of Nirvi Shah’s article Education Week here.