Outline

1. Legal & Policy Developments in Special EducationTeri CollinsUniversity at North Carolina at WilmingtonAntonisKatsiyannis (antonis@clemson.edu)Clemson UniversityMitchell Yell (myell@sc.edu)University of South Carolina

2. Outline • Discipline • Supreme Court Decisions • Response to Intervention cases

3. Discipline and Students with Disabilities: An Update on Litigation

4. IDEA 2004 • Simplified the discipline process • Emphasized the use of positive behavioral interventions and supports (IEP provisions-proactive) • Expanded the authority of school officials to consider unique circumstances on a case-by-case basis in placement decisions • Can remove a student for up to 45 days (school days, not calendar days) without regard to whether the behavior is a manifestation of the disability due to weapons, drugs, or infliction of bodily injury • Manifestation Determination – consider if the conduct is caused by, or had a direct relationship to the disability

5. Manifestation Determination– OCR Ruling Case name: Kansas City (MO) #33 Sch. Dist., 47 IDELR 233 (OCRVII, Kansas City (MO) 2006) • District violated Section 504 by failing to provide services during a 10 day suspension. • The student's multiple suspensions, which totaled 26 days over a five-month period, formed a "pattern of exclusion" that amounted to a significant change in placement.

6. MD Key Points • Three circumstances where school personnel can take disciplinary action without regard to the student’s disability: 1) Infliction of serious bodily injury; 2) Drugs; 3) Weapons – MD must still take place, and services must be provided to allow the student to participate in the general education curriculum • When a series of removals constitute a pattern, schools must count this towards the total days of suspension – after the tenth day of removal, MD must take place • If the infraction has a relationship to the disability, FBA & BIP must be implemented; revise current FBA & BIP

7. IAES – SEA Due Process Case name: Saddleback Valley Unified Sch Dist, 52 IDELR 56 (SEA CA 2009) • ALJ denied the district’s request to remove a student to an IAES for 45 days a second time after returning from a special day class (the student had been placed here due to self-injurious behavior and anger management issues). • The district failed to show that keeping the student in his current placement was likely to result in injury. His infractions were minor and did not warrant a second removal.

8. IAES – Key Points • School personnel may place a student in an alternative educational setting for up to 45 days for extreme circumstances. • If homebound services are the only option for the IAES, do not view this as a permanent placement. Plan for the student’s return to school. School personnel may place a student in an alternative educational setting for up to 45 days for extreme circumstances. • Stay-put during an appeal is the IAES. If the LEA believes current placement will result in harm to the student or others, an expedited hearing can be requested. The IHO may order a change in placement for 45 days to an IAES (Letter to Huefner, 107 LRP 13117 (OSERS 2007)). • Procedures may be repeated by IHO if there is information that returning to the original placement will likely result in injury.

9. FBA – Courts Case Name: Harris v. District of Columbia, 50 IDELR 194 (D.D.C. 2008) • The district court held that the parents’ right to an independent educational evaluation under IDEA includes the right to an independent FBA. • The LEA had not conducted an FBA in more than 2 years. The court rejected the LEA’s claim that an effective IEP makes an independent FBA unnecessary. The court reversed a due process decision in the district’s favor and ordered the district to pay for the independent FBA.

10. FBA – Key Points • Should be a problem-solving process to identify the purpose of a behavior – integrated throughout the process of developing, reviewing, and revising an IEP • Must be completed when a student is removed for serious offenses. May be completed if a child has been suspended for less than 10 days FBAs should be student specific – not “boilerplate” • Track patterns of behavior

11. Behavior Intervention Plan (BIP) (Courts) Case Name: Waukee Community Sch. Dist. V. Douglas and Eva L. ex rel. Isabel L., 51 IDELR 15 (S.D. Iowa 2008) • The school district failed to provide FAPE because staff relied excessively on inappropriate interventions that reinforced the child’s challenging behavior. • Time-outs and restraints can reward or exacerbate a child’s behavior. Time-outs and restraints may also reinforce aggressive behavior in an attention-seeking child.

12. BIPs – Key Points • Teach students alternative, acceptable replacement behaviors. • Districts must review BIPs when reviewing IEPs. • Districts must be proactive. • Behavior Plans must address individual student needs. • Include parents in the process.

13. Aversives – Courts Case Name: Doe ex rel. Preschooler v. State of Nevada, 50 IDELR 65 (D Nev. 2008) • 3 year old child with autism reportedly scratched a classmate • Teacher and aide allegedly flung the child onto a mat, forced him to hit himself, and slammed him into a chair • District Court ruled that the evidence was sufficient to support parents’ claim of violation of the child’s Fourth Amendment right to be free from “excessive force” • Judges must make case by case decisions on what constitutes excessive force

14. Aversives – Key Points • Utilize physical restraints as last resort. Train staff in de-escelation techniques. • Follow state guidelines for the use of restraints. • Train staff in procedures for the use of restraints.

15. Still an issue… • Schools are failing to be proactive • School are failing to conduct individualized FBAs needed to create effective BIPs. BIPs must be reviewed when the IEP is reviewed. • In some cases, schools are not conducting manifestation determination hearings when needed (Expedited hearings). • IAES may not be appropriate for the student (e.g., 5 hours of homebound service) • Disproportionate numbers of students of certain race/ethnicity groups are being suspended out of school • Disproportionate number of students with E/BD are being suspended out of school

16. Emerging trends… • Increase in OCR complaints due to schools failing to conduct manifestation determination reviews • Increase in cases involving physical restraints/aversives • Exclusion of students with disabilities without provision of services - denial of FAPE • FBAs/BIPs that are not specific and and/or individualized • Limited emphasis on reintegration strategies • Parents are filing retaliation claims with OCR

17. The Supreme Court & Special Education-2005 to 2009-

18. The Supreme Court • Burden of Proof • Expert Fees • Pro se Representation • Unilateral Placements

19. Court-Burden of Proof Schaffer v. Weast(2005) • The Court directly addressed the issue of who bears the responsibility of providing the “burden of proof” in administrative due process hearings. • The burden of proof should be placed upon which ever party is seeking relief, be it the parent or school district, since both are permitted to do so.

20. Court- Expert Fees • Arlington Central School District Board of Education v. Murphy (2006) • Parents who prevail in due process hearings are not eligible to recover fees for services rendered by expert witnesses in IDEA actions. • Expert witnesses are the only individuals permitted to provide opinions rather than facts while providing testimony. As a result, services rendered by expert witnesses have often played a critical role in many proceedings.

21. Court-Representation Wilkelmanv. Parma (2007) • In this case, the Court addressed the issue of whether parents are entitled to prosecute claims on their own behalf under the Individuals with Disabilities Education Act. • A petitioner in federal court has a right to act as his or her own counsel. However, a petitioner has no authority to appear as an attorney for others than himself (the legal term used is “pro se’) • In the case of minors (or someone deemed incompetent), these individuals are entitled to trained legal assistance so their rights may be fully protected. • Minors do not have the choice to appear pro se as state laws specifies that they are incapable of determining their own legal actions

22. Rationale • Parents are “parties aggrieved” not only for aspects of the hearing officer’s findings and decision relating to certain procedures and reimbursements, but also in judicial proceedings. Being an aggrieved party entitles parents to represent their children in courts.

23. In New York City Bd of Ed. v. Tom F., the father of a child with a disability requested tuition for a private school placement HO-ruled in favor of parents-school’s IEP did not provide FAPE District Court-ruled in favor of school.. IDEA clearly states the parents can enroll a child in a private school and seek reimbursement for “a child with a disability, who previously received special education and related services under the authority of a public agency” 20 USC § 1412(a)(10)(C)(ii). 2nd Circuit-vacated the district court decision and remanded the case to the U.S. Supreme Court. The Second Circuit reasoned that IDEA was not intended to require parents to enroll a student in an inappropriate public school program before they were eligible for private school reimbursement. Court-Unilateral Placements (Tom F.)

24. Supreme Court -With a 4-4 vote (Justice Kennedy taking no part), the Supreme Court simply affirmed the ruling of the Second Circuit Court of Appeals. Because the tie vote affirms the Second Circuit Court ruling, rather than establishing a national precedent, the decision is only binding in New York, Connecticut and Vermont, the jurisdiction of the Second Circuit Parents will still be required to show that the district's proposed program was inappropriate and that the private special education program they chose is appropriate, consistent with the established tuition reimbursement remedy authorized by the IDEA and the Supreme Court's decisions in Florence County School District Four v. Shannon Carter, 510 U.S. 7 (1993) and School Committee of Burlington, Mass v. Department of Education, 471 U.S. 359 (1985). Tom F.-Ruling

25. T.A. attended kindergarten through eighth grade at Forest Grove Public Schools with teachers observing problems associated with paying attention and completing his assignments. When T.A. entered high school, his difficulties increased and prompted the mother to visit with a school counselor to discuss school related problems Court-Unilateral Placements (Forest Grove)

26. Parents discussed different options with the school district, consulted with a specialist who diagnosed T.A. as having ADHD and other related learning disabilities, and upon the specialist recommendations, enrolled T.A. in a structured, residential learning environment at a private academy. Following the evaluation process, the multidisciplinary team determined that the T. A. as not eligible for special education services and declined to develop an IEP. Forest Grove-Facts

27. The Court held that IDEA authorizes reimbursement for private placement when a public school fails to provide FAPE and the private school placement is appropriate, regardless of the child’s prior enrollment in special education. IDEA does not impose a categorical bar to reimbursement based on prior enrollment (or state approval of the facility as presented in Carter), but rather IDEA ensures FAPE trough special education and related services designed to meet the child’s unique needs. Forest Grove-Ruling

28. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost if LEA failed to provide FAPE 20 U. S. C. §1412(a)(10)(C) (ii)

29. ADA Amendments Act of 2008 • To carry out the ADA's objectives of providing `a clear and comprehensive national mandate for the elimination of discrimination' and `clear, strong, consistent, enforceable standards addressing discrimination' by reinstating a broad scope of protection to be available under the ADA; • To reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures

30. Definition-Mitigating Factors • The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as— • `(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; • `(II) use of assistive technology; • `(III) reasonable accommodations or auxiliary aids or services; or • `(IV) learned behavioral or adaptive neurological modifications. • `(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity

31. Response to Intervention:The Law & the Courts

32. Where does RTI come from? • ESEA requires that schools are held accountable for the achievement of all students • IDEIA allows school districts to use 15% of their Part B funds for “early intervening services” for students who have not been identified as needing SPED services but need academic and behavioral support to succeed in general education • IDEIA encourages LEAs to adopt RTI systems as an alternative to the ability-achievement discrepancy as a mean to identify students with LD

33. Features of RTI Models • The IDEIA regulations did not specify what RTI should look like but rather left design up to LEAs • Common features: • Struggling learners move through a series on tiered interventions that increase in intensity • Use of scientifically based interventions • Ongoing progress monitoring

34. Judicial Decisions Important to RTI • Appellate Court -1 • Federal District Courts - 4 • Hearing officers at the SEA level - 1 • Decisions: • Child Find • Evaluations • Eligibility

35. Marshall Joint School District #2 v. C.D. (2009) • 51 IDELR 242 (W.D. WI 2009) • Ruling: Despite the fact that a third-grade student performed on the same level as his peers after receiving modifications in the general education classroom did not relieve an LEA from its responsibility to conduct a special education evaluation to determine eligibility

36. El Paso ISD v. Richard R. (2008) • 56 F. Supp. 2d 918 (W.D. TX 2008) • The El Paso ISD repeatedly referred a student with ADHD and learning problems for interventions in the general education classroom rather than evaluating the student for special education • IHO’s Ruling: School district had violated Child Find requirement of the IDEA • According to the IHO the LEA turned a system meant to provide support and intervention to a system into “an obstacle to parents who want to access special education referrals” • Court affirmed the IHO’s ruling

37. El Paso ISD con’t • Two pronged process should be used to determine an LEAs compliance with Child find • Did the LEA have reason to expect the existence of a disability and if special education services may be required • Did the LEA evaluate a student within a reasonable time after receiving notice • Possible LEA defense is if RTI data show that a student had received positive academic benefit • In this case there was clear evidence that the RTI interventions were not working

38. Baltimore Public Schools (SEA, 2007) • IHO wrote that an RTI system which addressed student needs prior to referral is appropriate as long as the system does not delay or deny a student’s access to special education services

39. A.P. by Powers v. Woodstock Bd. of Ed. (2008) • 572 F. Supp. 2d 221 (D. CT, 2008) • Court: The IDEA’s Child Find requirement applies to students who are suspected of having a qualifying disability and are in need of special education services • The LEA had evidence that the student (with an LD) was benefiting from the RTI interventions • LEA personnel communicating frequently and regularly with the student’s parents

40. Compton Unified School District v. Addison. (3/22/2010) • U.S. Circuit Court for the Ninth Circuit (http://www.ca9.uscourts.gov/opinions/view_subpage.php?pk_id=0000010380) • Facts: Addison was a ninth grade student, she scored in the 1st percentile in standardized tests, was reading on a 4th grade level, and failing all her classes. The school knew this but failed to assess her for SPED eligibility (despite a counselor’s recommendation). • Addison’s mother requested a sped evaluation, Addison was determined eligible. Her mother sued for compensatory education for failure to evaluate, identify, and serve Addison. • Parents upheld the ALJ and district court’s ruling, thus the parent prevailed on IDEA claims (child find), awarded attorney’s fees & compensatory education

41. Lessons-So Far • Avoid RTI neverland • Don’t use RTI to delay special education referral • Don’t use RTI to delay special education evaluation

42. Implications • RTI systems should use scientifically based interventions • RTI systems need to include meaningful progress monitoring components • The final tier of an RTI system should either be special education or referral to special education • RTI systems that include too many tiers may be problematic (e.g., 3 is good, 5 may be too many) • A parents right to request a special education evaluation overrides school district policy • LEA personnel need to consider how many days students will spend in a tier prior to moving

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