Special Education Law: Practical Tips to Guide Decision-making

1. Special Education Law:Practical Tips to Guide Decision-making Council for Exceptional Children 36th Louisiana Super Conference on Special Education, January 31, 2017

2. Background • History • Training • Education Law Association • This is not legal advice, just a frameworkto help with decision-making

3. Future Policies – A look in the crystal ball • Justice Scalia’s absence • President Trump’s agenda • Secretary of Education Devos

4. Justice Scalia’s Conservative Approach to Education • 1. No to consideration of race in higher education and K-12 schools • Backed a low wall of separation between church and state • Favored school administrators over students and their rights

5. President Trump’s Agenda • 1. Immediately add an additional federal investment of $20 billion towards school choice. This will be done by reprioritizing existing federal dollars. • 2. Give states the option to allow these funds to follow the student to the public or private school they attend. Distribution of this grant will favor states that have private school choice, magnet schools and charter laws, encouraging them to participate. • 3. Rather than sending federal education dollars to schools, as the existing system does, Mr. Trump proposed giving block grants to states, which would have the option of letting the dollars follow students to whichever school they choose, including a charter, private or online school.

6. Education Secretary Devos’ agenda • 1. Leave many decisions to the States • 2. Support of Vouchers to enhance school choice • Support of Charter Schools to enhance school choice • Privatization of schools

7. Endrew F. v. Douglas County School District RE-1 • Biggest Issue/Case --What level of “Benefit” is required in Special Education? • Rowley – “Meaningful educational benefit” or “some educational benefit” • Child with autism – 10th Circuit decision from Colorado • Merely more than de minimis?

8. *Bullying • Plan to address • Plan to review and modify • Plan to education others • Record Keeping

9. *Doe v. Cape Elizabeth Sch. Dist. (1st. Cir. 2016) • Services based on her deficiency in reading fluency. • 6 years later Hearing Officer found Doe no longer eligible and District court affirmed • 1st Circuit reversed holding the lower court erred in relying on evidence of Doe’s overall academic performance without regard to how it reflected her reading fluency skills; and • District Court did not make an independent judgment as to the additional evidence submitted by Doe’s parents and afforded excessive deference to the Hearing Officer’s determinations in weighing the relevant reading fluency measures. • What does this mean for you?

10. *Baquerizo v. Garden Grove USD (9th Cir. 2016) • Alleged failure to comply with procedural requirements and thus did not provide FAPE in LRE. • Court said any failure to comply with procedural issues was Guardians fault and IEP did provide FAPE. • IDEA does not require the district to conduct all assessments possible. • What does this mean for you? Remember case from last year.

11. *L.O. v. N.Y.C. Dep’t of Educ. (2d Cir. 2016) • Pattern of procedural violations of IDEA • Issue – did the violations in formulating IEP taken together deprive the student of FAPE? Considerations? • Pattern of indifference to procedural requirements and carelessness in formulating IEPs over the years violated IDEA and deprived L.O. of educational benefits. • What does this mean for you?

12. *EvaluationTimothy O. v. Paso Robles (9th Cir. 2016) • Initial evaluation knew student displayed signs of autistic behavior and autism was suspected disability for which it was required to assess him • Paso Robles chose not to formally assess because a member of it staff opined, after an informal, unscientific observation that the student merely had an expressive language delay, not a disorder on the autism spectrum. • Court said this violated procedural due process and therefore they could not design an educational plan that addressed the student’s unique needs. • What does this mean for you?

13. *Stay Put • Tina M. v. St. Tammany Parish Sch. Bd. (5th Cir. 2016) • Sought attorney fees for obtaining “stay-put” order. • Court said not prevailing party by virtue of invoking IDEA’s stay-put provision. Stay-put is not a ruling on the merits. • Must achieve relief on the merits for purposes of determining prevailing party status.

14. $1 Million dollar verdict • 5th Circuit decision Rideau v. Keller Independent School District • Mistreatment by special education teacher including physical abuse. Sued under Americans with Disabilities Act and the Rehabilitation Act including mental pain and anguish • What does this mean for Special Education?

15. Beauchamp v. Anaheim Union High School Dist. (9th Cir. 2016) • Attorney Fee Awards • Sought $66,420 (hourly rate of $400) • Court awarded $7,780, why? • Outcome not more favorable to petitioner than the District’s settlement offer and petitioner was not substantially justified in rejecting the settlement offer. • Implications?

16. Confidentiality • Supreme Court of Alabama (504 case) • Updated report for 12th grader with medical condition requiring special accomodations • Report placed in sealed envelopes and student worker was to deliver to each teacher but read report before doing so and told others • Plaintiff alleged ridicule, harassment and bullying resulted. Claimed negligent hiring, training and supervision.

17. A.G. V. Paradise Valley Unified Sch. Dist., No. 13-16239 (9th Cir. 2016) • Multiple claims under 504, ADA and tort including IDEA • Alleged District physically escorted and restrained AG when she was not a danger to herself or others despite knowing of her tactile sensitivity. • Assault, battery, false imprisonment and infliction of emotional distress.

19. Contact Information • Nathan M. Roberts, J.D., Ph.D. • Dean, College of Education • University of Louisiana at Lafayette • (337) 482-1026 • nroberts@louisiana.edu