SPECIAL EDUCATION LAW For TEACHERS: Knowing How To Stay Out Of Trouble 3:40-4:30 PM

1. NYSATE/ NYACTE Spring Conference Gideon Putnam Resort, Saratoga, NY April 27-28, 2006 Presented by: Stuart Knapp, PhD Nyack College 845.358.1710 ext 762 SPECIAL EDUCATION LAW For TEACHERS: Knowing How To Stay Out Of Trouble 3:40-4:30 PM stuart.knapp@nyack.edu

2. Legal Issues in Special Educationfor P-12 Teachers • in Some Recent Developments(Indicators for Staying Out of Trouble) • Presented by: Dr. Stuart Knapp, Assoc. Professor • Nyack College, Director: Grad. Educ. • 845.358.1710 ext. 762 • stuart.knapp@nyack.edu 2

3. A Quick Primer on the State & Federal Court System

4. The Limit of The Law The US Supreme Ct. has ruled that: • IDEA provides a “basic floor of opportunity” for students with disabilities • IDEA does not require public “schools to maximize potential” for students with disabilities BOE v. Rowley, 458 US 176, 102 S.Ct. 3034 (1982)

5. 6 Basic Principles of IDEA • FAPE • Nondiscriminatory Evaluation • Procedural Due Process • Parent Involvement • IEP • LRE

6. Topics to be Covered I. Discipline of Students w/Disabilities (SwD) II. Evaluation (Nondiscrim), Eligib., & Placement 1. FAPE (free appropriate public education) 2. LRE (least restrictive environment) 3. Inclusion (SwD full participat. in Reg Ed) (IEP) III. Procedural Safeguards (due process) 1. Parent Rights IV. Section 504 5

7. Disciplining • Students • w/Disabilities

8. I. Disciplining Students w/Disabilities • boy w/learning disability, & a friend PROBLEM:Randy 13 yr. old tear off jog pants of female student • DISTRICT (IEP team) decides: • not a manifestation of disability • recommend suspension & • placement in alternative school

9. I. Disciplining Students w/Disabilities • PARENTS (Randy’s) • Initiate due process hearing to stop suspension. • HEARING OFFICER – Ruled for District • PARENTS – Appealed to federal district court

10. I. Disciplining Students w/Disabilities • FEDERAL DISTRICT COURT – Affirmed Hearing Officer’s decision, saying district acted appropriately in “taking stern & aggressive remedial action” – Noted that District had offered Parents opportunity to demonstrate that student’s behavior was linked to disability (nexus) Randy M. v. Texas City ISD, (SD Texas 2000)

11. Discussion/Conclusions re: Student Discipline • Teachers & their districts must be clear & current w/student behavioral assessments. • Program placement decisions based on test results must reflect student-centered needs. • Prior to a behavior-related change of placement for a student w/disabilities, a Nexus hearing must be conducted to determine if behavior related to disability. If not, regular ed. conditions apply. • Maintain professional posture w/parents.

12. Evaluation, • Eligibility & • Placement

13. II. Evaluation, Eligibility & Placement • PROBLEM # 1: (FAPE)Sadrach (S) 10 yr. old 4th grader w/multiple medical problems: seizures, ADHD w/aggression, psychomotor delays, asthma, speech delays. • PARENTSreferred for SpEd evaluation while boy was in 2nd grade. • DISTRICT rejected parent request, saying, average progress, & problems not a significant impact on overall achievement. • PARENTS when S in 4th gr., obtain independent medical eval., revealing severe learning disorders, e.g. Rdg.=2nd gr; Math problems=end 1st gr.

14. II. Evaluation, Eligibility & Placement • DISTRICTrejected evaluator’s recommend. for SpEd eligibility. District’s eval. was in boy’s native Spanish, revealing FSIQ=130, but maintained that ADHD & seizure disorders do not negatively impact on academic progress. • PARENTSinitiate a due process hearing • HEARING OFFICER (HO) rules for district. S ineligible for SpEd (district & HO deny FAPE). • PARENTS appeal to federal district ct.

15. Evaluation, Eligibility & Placement Fed. District Ct.reversed hearing officer decision, saying: 1. S eligible for SpEd & related services under OHI, LD & Speech. 2. S has continuing uncontrolled seizure disorder which affects alertness in class. 3. District’s own testing revealed marked range between ability & achievement. 4. Disabilities adversely impact educ. performance. 5. District must develop & implement IEP for S Corchado v. BOE, Rochester CSD, NY 2000 14

16. II. Placement in LRE & Inclusion PROBLEM # 2: (LRE & Inclusion)Due Process Hearing (DPH) : Guardian-inclusion in home school District-placement in special school DPH officer places Student w/ multiple disabilities in a special development center. Guardian appealed to federal ct. Federal Court affirmed hearing officer’s decision, finding special dvpmt. ctr. highly specialized & able to provide wide range of services for child. Court also reasoned that extent of child’s disabilities would make benefit to child in home school unlikely. Court refused to hear district’s plea of guardian’s hostility, saying IDEA advocates for children through parents, even hostile parents. 15

17. Discussion/Conclusions re:Evaluation, Eligibility & Placement Financial benefit of “Best Practice” relations • An ounce of student-centered, district-initiated early intervention can avoid a pound (or more) of student-centered court-initiated litigation later on. Non-Financial benefit of “Best Practice” relations • Reputations are won, based on pro-active decisions made in CST meetings, annual reviews & IEP meetings,or they are lost in re-active newspaper headlines, newscasts & courtrooms. 16

18. III. Procedural Safeguards

19. III. Procedural Safeguardscase #1 • Student (S) diagnosed w/ADHD, Oppositional Defiant Disorder (ODD), & Depression in private school until 5th grade. • District (D) eval. team finds S eligible for “severe behavior handicap” services • IEP mtg. scheduled, but never held (no IEP) • District proposed internal placement • Parents (P) reject, locating independent residential “psychiatrically oriented” school. 18

20. D faxes draft IEP proposing placement already rejected by P, & further obligates D to pay only those costs beyond P’s insurance coverage. • P enroll S in residential school independently, & request due process hearing during S’s 7th grade to recover tuition costs. • Hearing Officer (HO) finds that although D prepared no IEP, it could provide FAPE, ergo not liable for tuition reimbursement. • Review Officer dismissed case & P appealed to Fed. District Court. 19

21. D moved to dismiss, as P didn’t request hearing prior to independent placement. Fed. Ct. ruled for HO’s decision. Both P & D appealed to U.S. Ct. of Appeals of 6th circuit. • 6th Circuit Ct. ruled: • D violated IDEA which requires convened IEP mtg. within 30 calendar days of eligibility determination • D violated Ohio regs requiring IEP conference ASAP following referral. • to reject D’s defense for failure to provide IEP due to parents’ lack of cooperation.

22. IDEA regs. do not require parents to agree to proposed placement prior to IEP mtg. • IDEA regs. do require dvpmt. of IEP without involvement of P if they refuse to cooperate • P were denied meaningful opportunity to participate in IEP mtg. process • district had not even offered a FAPE • residential placement was most appropriate • D obligated to reimburse P for tuition expense because D had defaulted on its IDEA obligation Knable ex rel Knable v. Bexley City School District, 238 F.3d 755 (6th Cir. 2001)

23. III. Procedural Safeguards case #2 • P of S w/learning disability in Rdg. resolved a DPH w/HO ordering D to provide S w/tutoring for 5 hrs./wk. • After a time, D provided 40 min./day, 5 days/wk. • P sought (unsuccessfully) to obtain required amt. for 2 yrs, then initiated a DPH. • HO held that he had no jurisdiction to enforce settlement agreements.

24. HO counseled P to file complaint w/ SED • P initiated law suit w/Fed. Trial Ct. to enforce settlement agreement. • Fed trial Ct. upheld HO’s decision • P appealed to U.S. Ct. of Appeals 9th Cir. • Appeals Ct. affirmed lower ct. & HO, that jurisdiction to enforce compliance issues resides w/the SED compliance officer to pursue enforcement actions. Wyner v. Manhatten Beach Unified School District, 33 IDELR (9th Cir. 2000) 23

25. Discussion/Conclusions re:Procedural Safeguards (IDEA) Parents’ Rights • opportunity to participate • expect integrity of district • Parents must be invited, but not required to attend • P can deny D permission to test District Obligations • provide P opportunity • continue terms of agreement until changed by another mutual agreement (IEP) • IEP mtg. held not later than 30 days following eligibility determination • IEP conf. Within 5 days of referral 24

26. IV. § 504 of Rehabilitation Act (1973)

27. IV. § 504 of Rehabilitation Act (1973) • What the law provides: • Prohibits discrimination against persons w/disabilities • Requires schools & employees to make reasonable accommodations for qualified individuals w/disabilities • Does not require schools to lower their standards in order to do so. • Prohibits exclusion of S’s w/contagious diseases (including HIV) if qualified to attend & don’t present a risk of harm to themselves or others 26

28. IV. § 504 of Rehabilitation Act (1973)Case #1: secondary student & athletics • 17 yr. old student (S) in jr. yr. diagnosed w/clinical depression, determined to be disabled & eligible for § 504 services, including 12 intervention strategies. • (S) earned some incomplete grades in his courses. HS counselor sends note home to parent (P), proposing another § 504 mtg. to pursue homebound instruction.

29. Case #1: secondary student & athletics • § 504 mtg. was not held • S tried out for basket-ball team but was not chosen for either varsity or jv teams. • P brought suit against school alleging suggestion of homebound instruction was threat & that S was • excluded from • basketball team as • discriminatory result • of his disability • HO ruled for district • P appealed to Fed. Ct. • Fed. Ct. dismissed all claims against district

30. Discussion/Conclusions re: Case #1: secondary student & athletics • Letter to P by counselor was alert to P & S of school’s continuing concern for S’s welfare, progress & success. • Coach’s decision not to place S on team was based on lack of competitive ability, not any disability • prior 7th Circuit precedent has refused to define athletics as a major life activity • Doe v. Eagle-Union Community Sch. Corp. 32 IDELR 117 (S.D. Ind. 2000)

31. Case #2: HS student, alcohol & eligibility • HS athletic code calls for partial loss of athletic eligibility after 1 alcohol-related violation, & loss of eligibility for 1 yr., after a 2nd incident • school revoked S’s eligibility after an alcohol-related auto accident-his 2nd policy violation in 1 mo. • S diagnosed as alcoholic & sought reinstatement to sports eligibility • Supt. & BOE denied S’s request.

32. Case #2: HS student, alcohol & eligibility • P sued in Trial Ct. under ADA & § 504 • BOE moved for dismissal, noting that neither S nor BOE were aware of his alcoholism at time of violations, so discrimination could not have played role in revocation of eligibility. Ct. agreed. • Ct also rejected S’s claim of school’s refusal to grant “reasonable” accommodation to his disability, i.e. reinstatement • Stearns v. BOE for Warren Twp HS District #121, (N.D. Ill. 1999)

33. Case #2: HS student, alcohol & eligibility • Ct held that S’s request not reasonable, since it was at odds w/no alcohol rule. • Discussion/Conclusions re: Case #2*If school had been aware of alcoholism, it would have committed no violation of ADA or § 504, since Rehabilitation Act authorizes schools to punish students for alcohol use, with or w/o disabilities, to the same extent of the law. *The school’s rule was intended to establish ideals of good sportsmanship and respect for rules & authority.

34. DISCIPLINE•Determine if Behavior related to (slides 6-10) disability EVALUATION•D integrity-comply w/duty/time-lines ELIGIBILITY•Decisions must be student-centered PLACEMENT• Pro-active relations w/parents & (slides 11-16) • Early intervention decisions • S “stays put” until IEP team decision PROCEDURAL• IEP mtg  5 days after referral SAFEGUARDS• IEP mtg  30 days after eligibility slides 17-24) (IEP must be prepared for implementation) § 504• athletics NOT major life activity (slides 25-32) • S use of alcohol prohibited w/ or w/o disability SUMMARY & GUIDELINES SUMMARY & GUIDELINES 33

35. Discussion ! Questions! Comments! Concerns!

36. On behalf of your presenter: STUART KNAPP THANK YOU for joining me