Navigating the Landscape of Education Law

1. Navigating the Landscape of Education Law Professor Scott F. Johnson

2. Roadmap • Focus on special education & NCLB • Discuss briefly how the laws work • Discuss how the laws connect or work together • Discuss ways to utilize the laws to obtain necessary services for students

3. Laws that apply • Special Education • Federal – Individuals with Disabilities Education Act (IDEA) • State • Statutes and regulations • Section 504/ADA • NCLB

4. Specific SPED Laws • Federal Statute 20 USC s 1400 et seq. • Federal Regulations 34 CFR s 300.1 et seq. • States have adopted their own statutes and regulations. • May exceed federal requirements, but must be consistent and cannot go below. • NH Statutes RSA 186-C • NH regulations Ed 1100 et seq.

5. You need to know the laws • Obtain them from a variety of sources • NHEdLaw www.nhedlaw.com • NH Dept. of Education • United States Department of Education

6. Special Education Purposes of the federal law: • Remedy exclusion of students with disabilities • Ensure appropriate public services were provided to them at no charge • Provide students and parents rights in the decision making process

7. Special Education • To provide special education and related services designed to meet the student’s unique needs and provide access to the general curriculum. • To meet developmental goals and, to the maximum extent possible, the challenging expectations that have been established for all children • To prepare students for employment, future education, and independent living.

8. Core Requirements • Free – at no charge to parent - Even if at private school by public agency • Appropriate services - individual, unique needs • Notice • Participation • Hearing to resolve disagreements and challenge decisions

9. Four letter word to describe what school’s must provide special education students What is FAPE

10. FAPE • Standard the all services have to meet is a Free and Appropriate Public Education (called FAPE). • FAPE is meeting the student’s individual, unique needs, but it is not the “best” education possible or maximizing the student’s potential. • In Hendrick v. Rowley IDEA provides only a “basic floor of opportunity” • FAPE is also not a minimal education. It is something in the middle.

11. This is referred to as the Cadillac Versus Chevrolet argument

12. What does it mean? • Most courts have found that “meaningful progress” is required in order to provide FAPE. • The student’s abilities are considered when determining progress. • The student’s grades and passing from grade to grade also considered.

13. Special Education Process • Referral • Evaluation • Eligibility • IEP • Placement

14. Referral Child find obligations • school districts have an affirmative obligation to identify refer and evaluate students that reside in their district ages 3 to 21. • applies to all children “suspected of having a disability” • Must develop a “child find” policy • Must have in school and out of school procedures

15. Child Find • School district must ensure all referrals go to IEP team for disposition. • Some factors for referrals include, but are not limited to: • failing hearing or vision screening • Unsatisfactory performance on achievement tests or accountability measures – Link to NCLB • Multiple academic or behavioral warnings • Repeatedly failing subjects

16. Referral • Anyone can make it • If other than parent must notify parent referral was made • Must convene a team meeting to make a decision about whether to evaluate the student to see if the student has a disability and if the student requires special education services as a result of that disability. Ed 1107.02(c).

17. Evaluations • Must be “full and individual” • Must use a variety of assessment tools and strategies to gather information. • Must assess in all areas related to the suspected disability. • Evaluations must be comprehensive and identify all of the special education and related services needs.

18. Evaluations • Must be performed by qualified examiners as defined in Ed 1107.04 • Must answer three questions for initial evaluation: • Need any additional info? • Present levels of performance and educational needs • Another link to NCLB • Whether child needs special education and related services.

19. Eligibility To be eligible for services under the IDEA, a student must meet the two-part test set forth in regulations: (1) the student must be a "child with a disability;" (2) the student must require special education and related services as a result of the disability. 34 CFR 300.7.

20. Eligibility • There are 13 categories of disability under the IDEA. Ed 1102.09 • Each has its own definitional requirements. • Most of the 13 categories contain some requirement that the disability "adversely affect the child's educational performance."

21. Eligibility • When determining if a disability adversely affects education performance, courts have looked at whether the student would be able to do required classwork without specialized instruction. • Greenland Sch. Dist. v. Katie C. And Kevin T. v. Merrimack Valley Sch. Dist.; Yankton v. Schramm, 93 F.3d 1369 (8th Cir 1996).

22. Eligibility • School districts must consider more than academic progress when looking at whether or not a child's disability adversely affects educational performance. Social and emotional difficulties must also be considered.

23. IEPs • Cornerstone of the IDEA • An IEP is a package that must "target all the child's special needs whether they be academic, physical, emotional, or social." Lenn v. Portland School Committee, 998 F.2d. 1083, 1086 (1st Cir. 1993). • Changes in 2004 require IEP’s to address functional and developmental needs • IEP’s must also address “special factors” like assistive technology, communication needs, and positive behavior supports.

24. IEP Requirements • A number of very specific requirements in state and federal law. Ed 1119, 34 CFR § 300.347. Some include: • Levels of performance, strengths and weaknesses • Annual Goals (no more short term objectives) • Services provided • When, where and by whom • Transition • Assessment tests

25. IEP Must Include: The term individualized education program' or IEP' means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this section and that includes-- (I) a statement of the child's present levels of academic achievement and functional performance, including-- (aa) how the child's disability affects the child's involvement and progress in the general education curriculum; … (II) a statement of measurable annual goals, academic and functional goals, designed to-- (aa) meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum;

26. IEP Requirements • The focus for IEPs is enabling the student to be involved in and progress in the general education curriculum. • Another link to NCLB

27. General Curriculum • The general curriculum is the curriculum available to all students. • In New Hampshire it is the Curriculum Frameworks if your school has aligned its curriculum to the frameworks (which it should). See RSA 193.

28. Hybrid Curriculum Frameworks contain a mixture of content and proficiently standards.

29. Content standards Set forth broad descriptions of the knowledge and skills students should learn. Define the overall goals of student learning. Proficiency standards Set forth concrete examples of what students should know and be able to do at certain stages. Describes how well student must perform to demonstrate achievement of content standards. Provides a link between content standards and assessment. Standards Include

30. Impact of Standards 1. They set high expectations for all students. This seems at odds with the Rowley’s “floor of opportunity.” • Standards can provide clear, definable, and measurable goals that students must obtain. • In New Hampshire we have the frameworks that provide these for 3rd 6th and 10th grade and we have new Grade Level Equivalencies up to 8th grade.

31. New Hampshire’s Curriculum Frameworks for Language Arts • These goal statements establish general expectations of what New Hampshire students shouldknow and be able to do in English language arts at the end-of-grade twelve. • They will be attained as students acquire the facts, concepts, skills, and processes enumerated under each of the five organizing strands--reading; writing; speaking, listening, and viewing; literature; and English language uses--presented in this curriculum framework.

32. Students will read fluently, with understanding and appreciation. Students will write effectively for a variety of purposes and audiences. Students will speak purposefully and articulately. Students will listen and view attentively and critically. Students will use reading, writing, speaking, listening, and viewing to: 1.gather and organize information; 2. communicate effectively; and 3. succeed in educational, occupational, civic, social, and everyday settings. Broad Goals

33. Content Standard Reading: • Students will demonstrate the interest and ability to read age-appropriate materials fluently, with understanding and appreciation.

34. Proficiency Standards Grade 3 Students will be able to: • Determine the pronunciation and meaning of words by using phonics matching letters and combinations of letters with sounds), semantics (language sense and meaning), syntactics (sentence structure), graphics, pictures, and context as well as knowledge of roots, prefixes, and suffixes. • Understand and use the format and conventions of written language to help them read texts (for example, left to right, top to bottom, typeface). • Identify a specific purpose for their reading such as learning, locating information, or enjoyment. • Form an initial understanding of stories and other materials they read by identifying major elements presented in the text including characters, setting, conflict and resolution, plot, theme, main idea, and supporting details.

35. Assessment measures: • Part of standards based reform includes assessment measures to determine if students have met the standards. • NCLB requires testing in reading and math every year in grades 3-8 and once in grades 10-12. Science testing requirements 2007-2008: Science once in grade span 3-5, 6-8, and 10-12. • NCLB requires Adequate Yearly Progress for students with disabilities as a sub-group.

36. Assessment • IDEA requiresthatchildren with disabilities be included in general State and district-wide assessment programs like those required under NCLB. • IEP’s must include a statement of any appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and districtwide assessments • These assessments are one component in measuring progress towards meeting state educational standards and IEP goals.

37. HOW? • Use the IEP process to determine how to apply standards on an individual basis • Develop Goals for “Access Skills” • Decide if need to alter or modify standards for specific students • Develop “Linking Standards”

38. Access Skills • Access skills are the skills students need to access and progress in the general curriculum. • Reading, writing, math skills, problem solving skills, etc.

39. Linking Standards • Linking standards are standards that bridge or link the student from where they currently are to the actual standard. • Appropriate when the student is not quite able to meet the actual standard yet. • Should be on target to meet the actual standard. • May get some help from looking at a state’s alternate standards if they have any for their alternate assessments.

40. Individualization • Simply putting the standard in the IEP is not enough. • Must assess each students needs and abilities. • Develop access skills and linking standards.

41. Placement • After IEP completed • Placement must be able to implement IEP • Decision made by Team with Parents • Least Restrictive Environment

42. Parental Rights • Procedural and substantive • At each step of the process • Notice, participation and consent • Transfer to student at age of majority

43. Enforcement • Due process • Complaint • Mediation/Neutral case evaluation • Court

44. Section 504/ADA

45. 504/ADA Eligible if have a physical or mental impairment that substantially limits a major life activity. Could be learning but does not have to be. Others include caring forone's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working IDEA Must be a child with a disability whose impairment affects education and who requires special education Eligible

46. All with disabilities 504/ADA IDEA

47. 504/ADA Generally modifications or accommodations Can also be special education or related services 504 plan does not have to be in writing but usually is and should be for best practice IDEA Specially designed instruction to meet child’s unique needs IEP Services

48. Accommodations • Modify assignments, and tests. • Provide an extra set of textbooks for home. • Adjust student seating. • Use study guides, organizing tools. • Provide a peer tutor/helper. • Counseling. • Have the student use an organizer-train in organizational skills. • Preferential seating. • Modify recess/PE/transportation.

49. NCLB • Requires testing • Each school and school district must make adequate yearly progress in each sub-group • Goal to have 100% at “proficient” by 2013-2014. • Grade level equivalencies developed for the NCLB test in NH called the NECAP • State must produce an individual student reports and scores

50. NECAP Scores