PDED 505 Special Education Legislation & Litigation

1. PDED 505Special Education Legislation & Litigation FERPA & Ethical Issues in Special Education

2. FERPA • Family Educational Rights & Privacy Act of 1974, 20 U.S.C.A. Section 1232g, (a.k.a., the Buckley Amendment)

3. FERPA • Federal funds are not made available to SEAs or institutions that fail to comply with FERPA • Parents have the right to: • Inspect, review & copy their child’s educational records • Challenge the accuracy of their child’s educational records

4. FERPA • Educational records may not be released to 3rd parties without written parental content…except for release to: • school officials with a legitimate educational interest in the student • officials of other school systems where student wants to enroll • authorized officers of state & federal government • certain judicial & law enforcement agencies

5. FERPA • When a student reaches 18 years of age, or is attending a post-secondary institution, FERPA rights to parents become the rights of the student

6. FERPA • When an educational agency no longer needs to maintain a student’s records, the agency must notify the parents (or student if over 18) • Parents/students may request that records are destroyed • But, the educational agency may permanently retain “basic information” (e.g., name, contact info, attendance, grades, final grade of school completed)

7. FERPA Owasso ISD No. 1-011 v. Falvo • Did the practice of “peer grading” violate FERPA? • Mother objected to the practice stating that it “severely embarrassed her children by allowing others to learn their grades.”

8. FERPA • The district refused to change its practice • Mother filed a class action lawsuit under federal law, including FERPA, seeking court orders to prohibit “peer grading” • The Supreme Court unanimously ruled in the district’s favor

9. FERPA • The court stated that though student papers do contain information directly related to the student, they were not “FERPA records” because they were not maintained as such by the educational institution • The court stated that the mother’s interpretation of FERPA would force teachers to abandon other customary practices such as group grading of team assignments

10. FERPA • What are “educational records” under FERPA? • records, files, documents & other materials that: • Contain information directly related to a student that are maintained by an educational agency or institution or by a person acting for the agency/institution • The term “educational records” does not include records of instructional, supervisory, or administrative personnel which are in the sole possession of the maker

11. Ethics & Special Education • Each profession has a devised “code of ethics” typically disseminated through the professional organization that represents that discipline • The Council for Exceptional Children (CEC) is THE special education organization

12. Ethics & Special Education • CEC’s Code of Ethics • Special Educators: • Are committed to developing the highest educational & quality of life potential of individuals with exceptionalities • Promote & maintain a high level of competence & integrity in practicing their profession • Engage in professional activities which benefit individuals with exceptionalities, their families, other colleagues, students, or research subjects • Exercise objective professional judgment in the practice of their profession

13. Ethics & Special Education • CEC’s Code of Ethics • Special Educators: • Strive to advance their knowledge and skills regarding the education of individuals with exceptionalities • Work within the standards and policies of their profession • Seek to uphold and improve where necessary the laws, regulations, and policies governing the delivery of special education and related services and the practice of their profession • Do not condone or participate in unethical or illegal acts, nor violate professional standards adopted by the Delegate Assembly of CEC. (CEC, 1998, p. 1)

14. Ethics & Special Education • Implementing these ethical principles has become increasingly difficult in a profession regulated by state & federal legislation • Traditionally, ethics were seen as actions based upon principles • Ethics are now frequently seen as context sensitive/dependent • Context becomes important when ethical behavior is questioned because the law established the boundaries for our behavior • A conflict may exist between legal principles & ethical behavior • In most cases, the legal thing to do will also be the ethical thing to do…but not always…

15. Ethics & Special Education • “Behaving ethically is more than a matter of following the rules or not breaking the law-it means acting in a way that promotes the learning & growth of students & helps them realize their potential.” (Parkay, 2004, p. 195)

16. Ethics & Special Education • IDEIA & Ethical Practice • The belief in a free public education for all children based on the principle of zero reject • The belief that a separate education is inherently unequal, thus the principle of LRE • The belief that appropriate education services are a requisite right through the development of an IEP • The belief that full participation of parents in the education of their child is essential to the development of an appropriate education • The belief that due process protection for children with disabilities & their parents is essential to protect individual constitutional right of access to an appropriate educational program

17. Ethics & Special Education • Mrs. Michaels has been a fourth-grade elementary education teacher for 5 years. She has just attended a meeting about one of her students with a parent, a special education teacher, and a special education coordinator. This student had been diagnosed years ago by a medical doctor as having several childhood illnesses & frequent ear infections. Mrs. Michaels is concerned that this student may also have a learning disability that affects her success in the fourth-grade classroom. She has spoken to this student’s parents a number of times, & the parent agrees that her child may need further testing. At this meeting, the special education coordinator informs the parent that while her child may in fact be having difficulty with school, she is not the lowest-achieving student in her class. She tells the parent that if she wants her child to be tested her best course of action would be to take the child to a private psychologist & pay for the testing herself. This would expedite the process. Additionally, the administrator informed the parent that if she elected to wait to have her daughter tested by the school district, they could not tell her when they could complete the testing & make an eligibility decision. Furthermore, the delay in testing could be as long as one year. Mrs. Michaels is aware of the laws & regulations supporting special education & the timelines that are to be followed. She knows that this is wrong.

18. Ethics & Special Education • What should Mrs. Michaels do? • What would you do? • What is the basis for your decision based upon CEC’s ethical principles? • What is the basis for your decision based upon IDEIA Regulations? • What is the basis for your decision based upon your personal convictions?

19. Ethics & Special Education • Mr. Edwards & Mr. Marcus are special education teachers who work with 3rd, 4th, & 5th grade students. Their school is preparing to take the state’s annual standardized achievement tests. This year, students in Mr. Edwards’ & Mr. Marcus’ classes have been identified as having difficulty in reading & are at risk for failure on the standardized test. The principal has made it very clear that he expects the school’s scores on this year’s standardized test to be an improvement over last year’s scores. The day before testing is scheduled to begin, the principal has a meeting with Mr. Edwards & Mr. Marcus. At the meeting he tells them to do whatever is necessary to ensure positive test results. While administering the test, Mr. Edwards realizes that Mr. Marcus is reading parts of the reading comprehension passages to the students. This violates the validity of the test & could result in a false learning profile of his students. Mr. Edwards shares this knowledge with Mr. Marcus, who responds by saying that this is simply doing what the principal instructed him to do.

20. Ethics & Special Education • What should Mr. Edwards do? • What would you do? • What is the basis for your decision based upon CEC’s ethical principles? • What is the basis for your decision based upon IDEIA Regulations? • What is the basis for your decision based upon your personal convictions?