REED MARTIN,
J.D.
SPECIAL EDUCATION LEGAL RIGHTS
JANUARY UPDATE
www.reedmartin.com
IN THIS
ISSUE:
CONFERENCE IN SARASOTA FLORIDA
REPORT FROM THE NATIONAL
COUNCIL ON DISABILITIES/
FEDERAL STATUTES AFFECTING SPECIAL
EDUCATION/
ADVOCACY TIP OF THE WEEK/
CONSIDERING SUSPENSION UP TO TEN
SCHOOL DAYS
PRODUCTS OF THE MONTH
SUCCESS IN THE REGULAR
EDUCATION
EXPERIENCE IS EVERYONE'S GOAL
OUTRAGE OF THE MONTH/SEVERE
DISCREPANCY FORMULAS
POWER ADVOCACY SERVICE
USING REED'S ARTICLES IN
YOUR ORGANIZATION NEWSLETTER
LINK TO OUR SITE - ADDING YOUR ORGANIZATION TO
OUR SITE/ASK REED
JANUARY 29, CONFERENCE IN SARASOTA, FLORIDA
Family
Network on Disabilities of Manatee/Sarasota, Sarasota, FL (941)755-7325 Don't
miss this conference! Space is almost filled for this conference! To date, 239
are registered only 41 spaces available. Be sure to register today!
REPORT FROM THE NATIONAL COUNCIL ON DISABILITIES: STUDY FINDS STATES ARE NOT
FOLLOWING SPECIAL-ED RULES:
WASHINGTON (AP) - Many children with
disabilities are getting substandard schooling because states are not complying
with federal rules on special education, an independent agency reports. U.S.
officials are not forcing compliance, and as a result, parents often must sue to
enforce the law, according to a review of more than two decades of enforcement
of the federal special education law. In too many cases, children with
disabilities are taught in separate classrooms and schools are not following
other regulations meant to protect these students from discrimination, the
National Council on Disability said in a reported to be released Tuesday. The
Associated Press obtained an advance copy.
The problems have persisted
for years in many locations, said the council, which makes recommendation to the
president and Congress.
"Federal efforts to enforce the law over several
administrations have been inconsistent, ineffective and lacking any real teeth,"
the report said.
Officials at the Department of Education, the federal
agency responsible for overseeing compliance with the 1975 Individuals with
Disabilities Education Act, said it has increased monitoring under the Clinton
administration.
"We concur that the responsibility of enforcement of this
law should not be borne on the backs of parents,'' said Judith Heumann,
assistant secretary of the office of special education and rehabilitative
service."Some states are not where we want them to be and are not implementing
the laws as they need to,'' Heumann said. "We've been spending significant time
increasing our monitoring, technical assistance and enforcement.'' Nearly 6
million American children receive special education instruction and services at
a cost of almost $40 billion, about $5.7 billion of which is federal money. The
special education law was meant to end discrimination against children with
disabilities. Many of these children had been excluded from public schools,
institutionalized or placed in programs that provided little or no learning. The
law was strengthened in 1997. Under the law, local education authorities that
receive federal money answer to state agencies, which in turn answer to the
federal Education Department. The department's monitoring division has 35
employees and budget of about $2.7 million. In its report, the disabilities
council said Education Secretary Richard Riley has been more aggressive in
seeking to improve monitoring and enforcement than the combined efforts of all
his predecessors. But the group said serious problems persist. According to
compliance reports covering 1994 through 1998:
-36 states failed to
ensure that children with disabilities are not segregated from regular
classrooms.
-44 states failed to follow rules requiring schools to help
students find jobs or continue their education.
-45 states failed to
ensure that local school authorities adhered to nondiscrimination laws.The
remainder of states did not provide information in the reports about monitoring
activities in these categories, so NCD could not determine whether they were in
compliance. States long have fought with local schools and the Education
Department over costs, saying they need more federal money for special
education.
Lilliam Rangel-Diaz, a council board member and parent of
children with disabilities, contended that children are not getting the
schooling they deserve because the government is not doing its job.
"We
have created a segregated system of education, where kids are segregated with
other children with disabilities and don't acquire the skills they need to
function in society,'' she said. The Education Department can withhold money
from states that do not follow the rules but has punished only one state,
Virginia. Federal courts reversed that decision. Heumann said the Education
Department has begun cracking down on states by requiring that shortcomings be
corrected as a condition for continued federal payments. If they fail to fix a
problem within a year, the department can refer the case to the Justice
Department or withhold funding.
"The problems that exist in states
concern us very dearly,'' said Heumann, who uses a wheelchair. "Many have been
taking their responsibilities much more seriously.''
The council made
dozens of recommendations to strengthen federal enforcement. They include giving
the Justice Department independent authority to investigate cases and take
states to court; providing more money for enforcement and handling of
complaints; and creating a process for handling complaints at the federal
level.
The special education report is part of the council's multiyear
study for the president and Congress on the implementation and enforcement of
the Americans with Disabilities Act and other civil rights laws.
NATIONAL COUNCIL ON DISABILITIES - EXECUTIVE SUMMARY:
www.reedmartin.com/ncd_IDEA_report.html
You can also access the complete report: Back to School on Civil Rights:
Advancing the Federal Commitment to Leave No Child Behind National Council on
Disability - www.ncd.gov at:
http://www.ncd.gov/publications/backtoschool_1.html
FEDERAL STATUTES AFFECTING SPECIAL EDUCATION LAW:
We get a lot of
questions about federal statutes which affect special education and how long
they have been in effect. We hope this will show that your school has owed your
child an appropriate education, without discriminating on the basis of
disability, since long before your child even began attending
school.
1967
Congress adds Title VI to the Elementary and Secondary
Education Act of 1965, creating a Bureau of Education for the Handicapped (now
called OSEP) and creating and funding what is now called the Comprehensive
System of Personnel Development, by which school districts can acquire and
disseminate promising educational practices to teach students with disabilities.
Reed was legislative assistant to Senator Yarborough who chaired the education
committee at that time.
1973
Section 504 of the Rehabilitation Act is
enacted into statute, and affects any recipient of federal financial assistance
such as your school district and your state education agency.
1974
The
EHA (Education of the Handicapped Act -- grandparent of the IDEA) is enacted to
greatly expand Title VI.
1974
FERPA (the Family Educational Rights and
Privacy Act) is enacted, allowing parents to have access to all personally
identifiable information collected, maintained or used by your school district
in regard to your child.
1975
The EHA is amended by the Education for
All Handicapped Children Act (EAHCA) which is the parent of the
IDEA.
1977
Sec. 504 regulations are issued, to begin with 1977-78
school year, and include a requirement for a self-evaluation of all policies and
procedures of your school district and your state education agency so that
discriminatory policies would be stopped. (Congress notes in 1990 hearings that
school districts illegally ignored this requirement).
1977
Appendix A
to Section 504, which explains the Sec. 504 regulations, is
issued.
1977
The EAHCA regulations are issued to begin with the
1977-78 school year.
1981
The EAHCA Appendix C is issued with 60
Q&A's about the IEP process (this is considered part of the federal law by
federal courts but has been largely ignored by most school
districts).
1986
The EAHCA is amended with the addition of the
Handicapped Children's Protection Act (in which Congress overturns a Supreme
Court decision that said the EAHCA was "an exclusive remedy" and that parents
could not also use Section 504 to protect their child). The amendment makes
clear that students and parents have rights under the IDEA and Section 504 at
the same time.
1990
The Americans with Disabilities Act is enacted.
Congress finds that the failures of school districts over the past 15 years of
special education laws requires them to add the protection of the ADA to parents
and students with disabilities. The ADA also adopts the Section 504 regulations
as part of the ADA statute, so now the 504 regulations have the full weight of a
federal statute.
1990
The EAHCA is amended and is now called the IDEA
(Individuals with Disabilities Education Act), adding transition as a
requirement.
1991
The "Joint Policy Memorandum" from the U.S.
Department of Education is issued, at the specific request of Congress, to
explain what must be made available to your child under Section 504 in a regular
classroom (the memo is on our website) http://www.reedmartin.com/1991memo.html
1997
The
IDEA is amended with hundreds of changes that affect programming starting with
the 1998-99 school year.
1999
The new IDEA Regulations are issued with
many changes.
1999
The IDEA old Appendix C has been mostly included in
the amendments to the IDEA statute so a new Appendix (now called Appendix A) is
issued with 40 new Q&A's about the IEP process. The IDEA App. A is not to be
confused with the Sec. 504 App A which was issued in 1977.
You can access
this list at:
www.reedmartin.com/specialeducationstatutes.html
ADVOCACY TIP OF THE WEEK
How To Get Ahead Of Your School
Before They
Suspend Or Expel
Your Child With A Disability
We keep seeing special
education cases reported on suspension and expulsion of students with
disabilities. And we keep getting emails, phone calls, faxes, and letters from
parents saying that their children are being treated as discipline cases, not
students with special needs. They note that the "discipline" is always negative
and punitive rather than positive. We hear that the child is being punished
again, and again, and again for the same behavior, and that the behavior is
simply something that a child with their disability does.
Some of the
parents give up and so do some of the students. This writer was approached,
after a special education rights presentation, by a 17 year old student who said
he knew he was being targeted by the principal and figured one more "long term"
suspension and he would just drop out of school for good.
You have to
"get ahead of the curve" before your child becomes the victim of your school's
ineffective and illegal discipline policies.
Check out the entire
Advocacy Tip:
www.reedmartin.com/advocacytipoftheweek.html
We have received many emails regarding your child's rights when the school
issues a supsension:
CONSIDERING SUSPENSION UP TO TEN SCHOOL
DAYS---
(Taken from Reed's publication: Behavioral Problems and the
Positive Behavior Interventions Plan Required by Law Manual) www.reedmartin.com/manuals.html
The
U.S. Supreme Court in Goss v. Lopez established that a removal of a student from
school for more than ten school days requires formal due process. The Goss
standard requires that for sanctions of less than ten days there is still
rudimentary due process. The misbehavior must have violated a clear written rule
that the student was aware of and the student must be given an opportunity to
explain his side of the story.
The 1997 IDEA amendments now allow school
personnel to propose several alternatives as long as they are no more than ten
school days and the disabled student is not subject to more severe penalties
than a nondisabled student would face.
20 U.S.C. 1415(k)(1)(A) provides
that "School personnel under this section may order a change in the placement of
a child with a disability - (i) to an appropriate interim alternative
educational setting, another setting, or suspension, for not more than 10 school
days (to the extent such alternatives would be applied to children with
disabilities)."
This step would trigger five procedural
safeguards:
(1) notice to parents of their rights which includes the duty
of the school to continue to provide a free appropriate public
education;
(2) notice of Section 504 rights, which may include the duty
of the school to conduct an independent evaluation;
(3) specific "Prior
Written Notice" to the parent of the proposed action;
(4) a functional
behavioral assessment which must include the parent; and
(5) a positive
behavioral intervention plan, which must include the parent.
20 U.S.C.
1412(a)(1)(A) assures that during this time a free, appropriate public education
must continue.
Notice must be given to parents on the date of the
decision to take action, with a statement of procedural
safeguards.
Immediately if possible, but in no way more than ten days
after the school proposal, there must be a review, which must include the
parent, of the relationship between the disability and the misbehavior. 20
U.S.C. 1415(k)(1)(B)(i).
If the school district has not conducted a
functional behavioral assessment and implemented a behavioral intervention plan
before the behavior that resulted in the suspension, the school district must
convene an IEP meeting to develop an assessment plan to address that behavior,
or if the student already has a behavioral intervention plan, the IEP team will
review the plan and modify it, as necessary, to address the
behavior.
***A school district may not go cumulatively over ten days in
the year on these "removals."***
Equally important, the cumulative impact
of some shorter-than-ten-day removals can reach the same effect as a ten day
removal and trigger safeguards. "A series of suspensions that are each of ten
days or fewer in duration can create a pattern of exclusions that constitutes a
significant change in placement." ["Long-term Suspension or Expulsion of
Handicapped Students," U.S. Dept. of Educ, Office for Civil Rights, October 28,
1988].
Check out Reed's manual, Behavioral Problems and the Positive
Behavioral Intervention Plans -
http://www.reedmartin.com/manuals.html
PRODUCTS OF THE MONTH:
BEHAVIOR PROBLEMS AND THE POSITIVE BEHAVIORAL
INTERVENTIONS PLANS REQUIRED BY LAW MANUAL
In regard to discipline, the
IDEA is not the only federal law: School districts must obey Section 504 as
well, The first federal Circuit Court of Appeals case in the nation to deal with
special education discipline recognized that students were covered under both
the IDEA and Section 504.
This sixteen page manual covers The
Constitutional Rights Which Are Affected by Consideration of Discipline; The
Basic Issues; The School Duty To Program Positively For Behavior Change;
Considering Suspension Up To Ten School Days; Manifestation Review; Considering
A Removal Of Up To 45 Days; Dangerousness To Self Or Others; Referral To Law
Enforcement; Students Not Ever Considered "Special Ed"; Compensatory Education
and Damages. (Including Court Cases and Federal Codes)
Regularly
$9.95
SPECIAL: $5.95 ($2 S/H)
Click to order the PRODUCT OF THE
MONTH
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POSITIVE
BEHAVIOR INTERVENTIONS REQUIRED BY LAW AUDIOTAPE:
Before the school can
attempt negative punishment, the 1997 Amendments require positive behavioral
interventions. Learn about the behavior intervention plan, manifestation review
and more and your role in the process!
Regularly $13.95
SPECIAL: $9.95 ($2
S/H)
ORDER THE PRODUCT(S) OF THE MONTH BY EMAIL:
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FAX: (304) 598-3512 - PHONE (304) 598-3406
or On-Line
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For More Information:
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SUCCESS IN THE REGULAR EDUCATION EXPERIENCE IS EVERYONE'S GOAL
Congress
made very clear in the 1997 IDEA Amendments that we must involve the regular ed
teacher at the IEP meeting, and that we must focus in that meeting on how this
one student will meet the regular ed goals expected of every student, and how
they will have access to regular education curriculum, access to regular
extracurricular programs, and access to regular non- academic
activities.
The IDEA statute, at 20 U.S.C. 1414(d)(1)(B)(ii), the IDEA
Regulations, at 34 C.F.R. 300.344(a)(2), and the extensive discussion in
Appendix A of the IDEA Regulations at Questions and Answers 23, 24,25 and 26,
all make clear the regular education teachers are the primary instructional
personnel who must be at the IEP meeting.
Further, the IEP will direct
all of the regular education teachers who will interact with this student as to
what they are to do. "Each regular education teacher ... is informed of his or
her specific responsibilities related to implementing the IEP, and of the
specific accommodations, modifications and supports that must be provided to the
child in accordance with the IEP." (See App A., Q&A 23).
Taken from
Reed's newest manual: Getting Your Child's Regular Education Teachers To Do What
The Law Requires Them To Be Doing For Your Child, which includes twenty
strategies for getting your school into compliance with the IDEA
Amendments.
$12.95 ($2 s/h)
http://www.reedmartin.com/regulareducationteachers.html
_____________________________________________________ OUTRAGE OF THE
MONTH:
School Board Attorneys Plot To Destroy Parent Advocacy
We owe a
long overdue congratulations and thanks to a nationally known parent advocate,
Marilyn Arons, of New Jersey. She began her work in this field in 1963 while
this writer was still in law school trying to get the university to create a
course in civil rights law. Arons was already addressing the civil rights of our
kids and had helped found the Parent Information Center of New Jersey. She has
provided consultation services to many disabled children and their families, and
participated in IEP and 504 meetings and mediation.
She has also
participated in many IDEA hearings for parents. Anytime a parent advocate
becomes effective, school boards are going to retaliate because school boards
who intentionally violate parent and student rights cannot tolerate effective
parent advocacy in their districts.
Arons has recently been under attack
by school board attorneys who apparently cannot beat her in a hearing. They are
trying to go behind her back and claim that her advocacy in hearings is "the
unauthorized practice of law."
Is advocacy the unauthorized practice of
law?
Read the entire article on our website: www.reedmartin.com www.reedmartin.com/outrageofthemonth.html
SEVERE DISCREPANCY FORMULAS
The law forbids decisions to be made on the basis
of one sole criterion, particularly one numerical quotient. [IDEA at 20 U.S.C.
1414(b)(2)(B) and 34 C.F.R. 300.532(d), and Section 504 at 34 C.F.R.
104.35(b)].
Check out Reed's new 22-page manual Attention Deficit
Disorders, Learning Disabilities, And How Schools Misuse "Severe Discrepancy"
Formulas To Deny Our Children The Services They Need.
This manual
describes eight typical violations of your rights as schools attempt to use
"Severe Discrepancy" formulas for students with AD/HD and Learning Disabilities
and gives twenty strategies for how to protect your child.
$12.95 ($2
s/h) Order by email: connie@westco.net
Purchase On-Line shopping cart: http://www.reedmartin.com/shoppingcart.html
We accept purchase orders. We will invoice you.
POWER ADVOCACY SERVICE:
We have had a huge response to our POWER Advocacy. If
you have requested a brochure and have not received it, please email me again
and let me know.
If you would like more information on this service and
the cost, email us your name and address and we will get a brochure out to you
right away.
POWER Advocacy Service is a critique of your current IEP
using our 111 question checklist, and for each violation we will provide
specific strategies in writing to help you attempt to get what you and your
child are actually entitled to under the new IDEA requirements.
For more
information:
www.reedmartin.com/poweradvocacyservice.html
USING OUR ARTICLES IN YOUR ORGANIZATION NEWSLETTER:
We have had many
requests to use Reed's articles in your organization newsletter.
Please
feel free to download any article, Advocacy Tip of the Week, ASK REED or Outrage
of the Month and use it in your newsletter. We request you add the following tag
at the bottom of the article:
The information in this article is
educational and not intended to be legal advice. Reed Martin is an attorney with
30 years experience in special education law. He has litigated under Section
504, the ADA and the IDEA. He can be reached through email at connie@westco.net
or www.reedmartin.com We also ask you to
send us a copy of your newsletter
LINK TO YOUR SITE:
We have also had requests to add our link to your
organization website. We would be honored to have you add our site.
www.reedmartin.com Reed Martin,
J.D.
Special Education Legal Rights
In return, we will be happy to add
your organization website to our Special Education Resource page.
If you
would like to be listed on our resource page, please contact us with your
request.
ASK REED:
How Can I Tell If My Child Is Getting What They Are Supposed To
Be Getting In Their 1999-2000 IEP?
Some of our most desperate questions
come from parents who are learning that their school districts are intentionally
ignoring and violating the amendments we fought so hard to get in the 1997 IDEA.
Some of our angriest moments over the past year and a half have come from
repeatedly seeing that states had not even begun to respond to the 1997 IDEA.
The parents' revenge is that schools have violated so many procedural safeguards
that they give parents very strong weapons to use for their children.
Why
are schools so openly defying the law? Other than their attitude that they are
above the law, the lazy answer by many school bureaucrats has been that their
state was waiting for the final IDEA Regulations, and then their state was going
to propose their changes in their own state rules, and then those proposed
changes would sit for 60 days for comments and then they would look at the
comments and then, and then, and then --- with the result that the vast majority
of students who went to school on 1998-99 and 1999-2000 IEPs have not yet
received ANY benefit from the 1997 IDEA changes.
How can you tell if you
and your child are getting the IEP you are entitled to under current
law?
First, Your IEP Form Must Have Been Radically Changed Check out the
complete article:
www.reedmartin.com/askreed.html
Hope
your enjoy the newsletter. If you have questions or comments, please email us
at: connie@westco.net
Connie Matthews
Reed Martin Conferences And
Publications
P. O. Box 487
Morgantown, WV 26507
(304) 598-3406
(P)
(304) 598-3512
(F)
connie@westco.net
http://www.reedmartin.com
Our Mission is
Lessening Discrimination
Against Children with Disabilities by
Providing
Parents and School Personnel
Tools for Advocacy