Legal Issues in Special Education

1. Principal Leadership for Special Education Legal Issues in Special Education Carl Lashley, Ed.D., Associate Professor Educational Leadership and Cultural Foundations University of North Carolina Greensboro 342 SOEB Greensboro, NC 27402 Cell (336) 549-9163 Web: http://www.clashley.com Twitter: flashpoints48 PTLA July 17, 2012

2. APA on Person First Language Person First Language People First Language People-First Language by anthromike Students deserve better than to be reduced to labels, particularly when labels become acronyms or initials. Students are human beings who have characteristics. They are NOT their characteristics. Characteristics are not deficiencies. Nor are they abundances. They just are. How we name what is around us speaks to our moral conceptions of worth, purpose, and possibility.

3. PTLA: The LABEL What does it mean to say “he’s PTLA”?

4. Person First Language • Students (or people or children) with disabilities • Students (or people or children) who are learning English • Students who use wheel chairs • People who are deaf • Students who have learning disabilities • A parent who uses a walker • Children with Attention Deficit Disorder • Students who have immigrated • Children with intellectual disabilities • A student with emotional disabilities • Students who receive special education • Students who are learning English • Children who scored at Level 2 • Children who come from families in poverty • Students who require reasonable accommodations • A student who is academically gifted • Students who are musically talented • Students who are high achievers

5. EC

6. Legal Issues in Special Education What’s Missing? Strategic Leadership Instructional Leadership Cultural Leadership Human Resource Leadership Managerial Leadership External Development Leadership Micropolitical Leadership

7. Major Principles of Special Education Law • Equal Protection of the Law (U.S. Constitution V & XIV) • Due Process of Law (U.S. Constitution V & XIV) • Free Appropriate Public Education (EHA, 1975; IDEA, 2004; Section 504; state laws)

8. Major Principles of Special Education Law • Equal Protection of the Law • Students with disabilities must have access to an education as all other students do. • PARC v. Pennsylvania (1968) • Mills v. Board of Education of Washington, DC (1968) • NCARC v. North Carolina (1973) • Permissive Legislation • Right to Education statutes

9. Major Principles of Special Education Law • Due Process of Law • If a school district proposes to change the education of a student with a disability or a student who may be thought to have a disability, the decision must be made through due process of law. • Notice of the nature of the decision • Opportunity for Response • Fair Hearing • DEC forms • IEP Team deliberations • Facilitated IEPs/Mediation • Due Process Hearing/SEA Appeal/Litigation

10. Major Principles of Special Education Law • Free Appropriate Public Education • Free—at public expense • Appropriate—compliant and designed to provide educational benefit • Public—under the supervision of the public school system • Education—a program the student needs to learn and adapt to his/her environment the standard a district must meet to comply with IDEA and/or Section 504

11. Major Principles of Special Education Law Right to an Education Educational Entitlement $$$$$$$$$ Non-discrimination Protection Civil Rights Enforcement Equal Protection of the Law Due Process of Law Free Appropriate Public Education EHA, 1975; IDEA, 2004; state laws Section 504

12. What About Bob? Bob is a 15 year old eighth grade student at Bourne Middle School. He reads, writes, and does math well below grade level. He will transition to high school in the Fall. As Bob’s IEP Team, what would be your perspective on an appropriate education for Bob?

13. Untangling IDEA, Section 504, and NCLB

14. Section 504 purposes Access to facilities, programs, services, and educational opportunities Access to general education curriculum and the general education classroom Access to standardized assessment systems Reasonable accommodations

15. IDEA purposes Identification and categorization Nondiscriminatory assessment Appropriate education Individualized educational planning Least restrictive environment Parental involvement in decision making

18. Are these reasonable accommodations? A parent requests that her son who has autism be permitted to have his service dog with him at all times at school A parents requests that the school be a peanut-free environment because her daughter has peanut allergies A student who uses a wheelchair requests that the marching band take an accessible bus on every band trip A psychiatrist writes a prescription that requires that a student with Attention Deficit Disorder be permitted to have his service ferret with him at all times in school A student with a learning disability requests unlimited time to take EOCs A student with intellectual disabilities objects because she was cut during dance team tryouts

19. Disability Categories • To be eligible for services under IDEA, a student must meet the criteria at 34 C.F.R. §300.8 for one of 14 categories: Autism, Child Aged Three Through Nine Experiencing Developmental Delays, Deaf-Blindness, Deafness, Emotional Disturbance, Hearing Impairment, Intellectual Disability, Multiple Disabilities, Orthopedic Impairment, Other Health Impairment, Specific Learning Disability, Speech or Language Impairment, Traumatic Brain Injury, Visual Impairment

20. IDEA/NCLB Re-grouping • Students with Academic Disabilities • Specific Learning Disabilities • Speech-Impairment • Behavior-Emotional Disabilities • Other Health Impairment • Autism Spectrum Disorder • Mild Intellectual Disabilities • Students with Sensory Disabilities • Hearing Impaired • Visually Impaired • Orthopedically Impaired • Students with Significant Disabilities • Traumatic Brain Injury • Moderate to Severe Intellectual Disabilities • Multiple Disabilities • Deaf-Blind

21. General Legal Principles from IDEA and 504 in an NCLB framework • Appropriate education • Access to the general education curriculum • Accommodations that provide access to curriculum, instruction, and assessment • Accountability for student performance • Parent involvement in decision making

22. Legal Expectations for Educating Students with Disabilities IEP/Sec 504 Plan APPROPRIATE Access to General Education Reasonable accommodations in Curriculum Reasonable accommodations in Instruction Reasonable accommodations in Assessment Passing statewide assessments Meeting state academic standards High school graduation College and Career Ready

24. A Continuum of Services Scenario Children come to school with varying abilities, experiences, and motivation. When these internal factors cause them to fail in school, it is the school district’s responsibility to provide a continuum of special curriculum and instructional services to meet their needs. Some students (those with disabilities) have such extraordinary needs that it is sometimes necessary to separate them from their peers to meet those needs. In order to generate the resources necessary to support the additional services these students require to benefit from education, schools must identify and label them within the boundaries of due process of law. The professions of psychology and special education have developed tools and strategies which, when properly used, enable school personnel to identify, place, and plan instructional programs for particular students based on comparisons of their characteristics with those of their normal peers. Specially trained personnel are available to provide services for these students in special settings, when the program of general education is unable to meet their needs. Although students should only be separated from their peers when separation is necessary for progress to occur, working with students in special settings is sometimes necessary and justifiable. With the proper mixture of expertise and compassion, schools can meet the educational needs of these special students.

25. Oberti v. Board of Education of the Borough of Clementon (1993) School districts have an affirmative obligation to rebut the IDEA’s strong preference for placement in general education settings before they consider other more restrictive settings. • Are the student’s disabilities so severe that s/he will receive little or no benefit from an inclusive placement? • Is the child so disruptive that the education of other students will be significantly impaired? • Is the cost of the inclusive placement so great that the education of other students will be negatively affected?

26. What about LRE? When an IEP Team meets at Bourne Middle School, the members struggle with making LRE determinations. As the principal, what guidance would you give them?

27. Disciplinary Procedures

28. Honig v. Doe (1988) • Students with disabilities cannot be expelled for behavior related to their disabilities. • Students with disabilities may be suspended for up to ten days, if they pose an immediate threat to others.

29. Unilateral Cessation of Services • The courts have been clear that school districts cannot act unilaterally to stop providing students with disabilities FAPE. • When is a disciplinary action a change of placement?

30. Expulsion and Students With Disabilities • For behavior that is not a manifestation of the disability • Special education and related services must be provided.

31. Suspension and Students With Disabilities • Up to ten days in succession • More than ten days cumulative--a pattern • Similarity • Length • Proximity

32. Interim Alternative Educational Placement • Weapons, drugs, inflicting serious bodily injury • 45 school days

33. Functional Behavioral Assessment • Functional--an inquiry into the cause of a behavior • Assessing functional behavior: “(a) interviews and rating scales, (b) direct and systematic observation of the person's behavior, and (c) manipulating different environmental events to see how behavior changes” Starin, 2007, http://www.wrightslaw.com/info/discipl.fab.starin.htm

34. Behavioral Intervention Plans • “A plan of positive behavioral interventions in the IEP of a child whose behaviors interfere with his/her learning or that of others.” http://www.wrightslaw.com/links/glossary.sped.legal.htm

35. Manifestation Determination • “If (a) child with disability engages in behavior or breaks a rule or code of conduct that applies to nondisabled children and the school proposes to remove the child, the school must hold a hearing to determine if the child’s behavior was caused by the disability.” • http://www.fetaweb.com/06/glossary.sped.legal.htm

36. Disciplinary procedures should be: • Equitable • Educative • Empowering • Discipline should be a teaching and learning process.

37. Principal Leadership for Special Education Legal Issues in Special Education Carl Lashley, Ed.D., Associate Professor Educational Leadership and Cultural Foundations University of North Carolina Greensboro 342 SOEB Greensboro, NC 27402 Cell (336) 549-9163 Web: http://www.clashley.com Twitter: flashpoints48 PTLA July 17, 2012