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Like most Civil Libertarians, we were thrilled when the US Supreme Court recently issued its Decision in the Obergefell v. Hodges case, which finally made marriage equality the law of the land.
As professionals who are in the Civil Rights advocacy business, we were especially savoring these words of Justice Kennedy: "(t)he nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning." Beautiful words, but we couldn’t help but wonder: when will the Civil Rights of individuals with disabilities be fully realized? Read more
So many of us are grieving the loss of Robin Williams this week. As an actor, he made us care about his characters by becoming them; and in so doing, he made us care about him. As a comedian, he was an unstoppable energy that was equal parts intelligence and irreverence.
I know you’re wondering what this has to do with special education advocacy, but give me a few minutes. I’m getting there.
When I was fresh out of high school, Dead Poets Society came out. I thought it was brilliant, and that Robin Williams' portrayal of Mr. Keating was stunning. Later, when the movie came out on tape (yes, tape. To watch on our VCR. Which was only slightly larger than our answering machine), we watched it incessantly at my house. The movie spoke to so much of what I was raised to believe in: questioning authority; the need for individuality; having courage to stand up for what’s right in the face of powerful forces which make doing so especially difficult.
In the iconic ending of the film, after being unfairly fired from his job as a teacher, Mr. Keating comes in to collect his things from his classroom. The students, who have been pressured by the school administration and their parents to acquiesce to the plan to scapegoat Mr. Keating, sit uncomfortably by while their beloved teacher quietly packs up. All the while, their class is being taught by one of the very administrators who orchestrated his removal.
As the pressure builds, it becomes too much for those in the class with integrity. One by one, the students decide to show their loyalty to Mr. Keating by standing up on their desks, saying “Captain, My Captain” (a loving tribute Mr. Keating created to Walt Whitman) while the administrator shouts at them to sit down. Robin Williams’ face as he watches this display is impossible to describe. It encapsulates the humanity that he was able to portray unlike any other actor. Somehow, when allowed few words, he was able to say it all with his sheer presence, energy, and reaction to others.
So what the Hell does any of this have to do with special education advocacy?
When we would watch our VCR tape of the movie in my house, my dad would say to me “Jenny, pay attention to this. Notice that not all of the boys stand up on their desks. That is very true to life. There will always be people who lack the courage to stand up to authority.” It stuck with me, and it stays with me to this day.
Almost every week I attend IEP meetings where good, honest, decent people who chose to become educators sit uncomfortably by as their administrators deny students services which those educators, in their heart of hearts, believe are necessary. I can see it on their faces. They want to shout out “YES, I AGREE,” but fear for their jobs. Every once in a while, one of them will be unable to stand the pressure, and will openly side with the family; but those examples are few and far between.
I wish they knew that if they had the courage to stand up on their desks, they would be protected. They have rights, including the right to not be fired or retaliated against for being honest about what a student requires under the IDEA. I wish they knew that teachers staying silent about what kids with disabilities need is probably the primary obstacle to those students getting that help. Administrators, faced with teachers who are willing to be honest "on the record," often have no other choice than to do the right thing.
I wish those good teachers could see what those teenagers in Dead Poets Society saw: that standing up for what is right, even shouting it from the top of your desk, is what makes them worthy of the profession to which they have been called.
Introduction by Jennifer Laviano
The IDEA provides for Extended School Year (ESY) services for many students with disabilities. The IDEA further requires that these summer services be individualized, and based on the unique needs of the student. Despite these requirements, the usual approach we hear at IEP meetings when ESY is offered is a statement along the following lines: "our ESY program starts on July 5 and goes through July 27th. All of our students go from 9:30-11:30, four days a week. We offer 1 and ½ hours of speech and ½ an hour of OT per week for our ESY students on Tuesdays and Thursdays."
Sounds really individualized, doesn't it?
In addition to the usual "cookie cutter" approach to summer services, many parents also struggle with a difficult choice: their child requires summer services, but also benefits from interaction with non-disabled peers. In such as situation, doesn't the IDEA's Least Restrictive Environment (LRE) provision apply? One would think so, but districts haven't operated that way for years. In order to receive ESY services, such parents are forced to accept "self-contained" summer programs with no opportunities to have their child practice social skills with "typical" peers, or to receive nothing at all. For these kids, neither option (self-contained program for the summer, or nothing) is an appropriate option.
Because legal disputes over only summer programs are not common (let's face it, most families have much larger disputes than just the ESY program), we don't have a lot of case law on this subject. It was for this, and many other reasons, that we were thrilled to learn just last week of a victory for parents and children. The Second Circuit Court of Appeals ruled that summer programs must consider a district's LRE obligations, just like the regular school year program does, for students who benefit from inclusion.
I am honored to consider New York Attorneys Gary Mayerson and Tracey Walsh, who successfully represented the family in this case, colleagues and friends. We here at YSER are grateful for their advocacy on behalf of all families, and thrilled that they were kind enough to provide this guest post here on our blog, breaking down the case. Take a look at the summary, and never forget: one family CAN make a difference!
Impact of T.M. v. Cornwall
by Gary Mayerson, Esq.
The IDEA statute expressly provides that students with disabilities are to be educated and included with their non-disabled peers to the "maximum extent appropriate." This requirement is sometimes referred to as the "least restrictive environment" (LRE) mandate of the Act, and it is one of only two "maximizing" provisions in the entire statute.
On April 2, 2014, which ironically was World Autism Awareness Day, and even more ironically, was the very day that Gary Mayerson spoke at the United Nations on the subject of inclusive education, the Second Circuit rendered its decision in one of our cases, T.M. v. Cornwall CSD. In so doing, the Second Circuit defined the scope of Congress' inclusion (LRE) mandate as it is to be applied to the ESY (extended school year) portion of a student's educational program.
Factually, the student T.M., while diagnosed with autism, was succeeding with support in a mainstream preschool setting. In the development of the student's 2010-2011 school year IEP, the school district offered T.M. opportunities to continue being educated with non-disabled peers for the "regular" part of the school year; that is, September-June. However, for the Summer of 2010, the district offered T.M. placement only in its self-contained, special education classroom and offered T.M. his related services only as part of that self-contained classroom experience.
T.M.'s parents rejected Cornwall's IEP recommendation on the basis that its offered program was too restrictive. Represented by our firm, T.M.'s parents filed for a hearing. After an 8 day trial, the hearing officer (Hon. Mindy Wolman) ruled for T.M. and his parents. The hearing officer held that Cornwall's IEP was substantively defective because it was unduly restrictive.
The SRO reversed the IHO, finding that Cornwall's recommended program was not too restrictive for T.M. The federal district court then affirmed the SRO on this point. T.M.'s parents then took a further appeal to the Second Circuit Court of Appeals, the court that decides appeals taken by residents of New York, Connecticut and Vermont. The appeal was heard before a panel that included Chief Judge Katzmann.
The Second Circuit concluded that LRE does not take a summer vacation. The court held that " ... the least restrictive environment (LRE) requirement of [IDEA] applies to extended school year (ESY) placements as it does to regular school year placements. We therefore conclude that the district court erred in determining that Cornwall met the LRE requirement when it offered T.M. only an ESY placement in a self-contained, special education class." The Court went on to further explain its ruling:
The Second Circuit's ruling in T.M. v. Cornwall undoubtedly will go on to help thousands of children with autism and other disabilities who have been approved for a 12 month program, and who could benefit from an inclusive experience. As the Second Circuit has now made absolutely clear, the LRE mandate applies to ESY (Summer) programming just as it does during the "regular" portion of the school year.
Source: NEA Today
Workplace bullying is on the rise. About a third of American workers have been impacted by bullying in the workplace, either as a target or as witness to abusive behavior against a co-worker. Unfortunately, it’s even more prevalent in the field of education. In a recent survey of medium-sized school districts, 25 percent of employees reported that they had been bullied.
A teacher from Augusta, Maine, was so traumatized by her principal and superintendent that she didn’t want her name or school mentioned, but wanted to share her story because she believes the pervasive problem of workplace bullying has gone on unchecked for too long.
“I am sufficiently frightened enough by my former employers to fear that maybe they could still hurt me,” she says. “I need to get a new job but won’t be able to do so if I am unable to receive even one recommendation from an administrator. I know it and so do they.”
After the Augusta educator resisted being transferred to a new school and new grade level, she began to be scrutinized by her administrators. First, they began examining her test scores, her communications with parents, and her relationships with colleagues. Then, with no explanation and no warning, the principal began interrupting her class to pull out students one-by-one to talk to them. When the educator asked the students why they were being pulled out, they told her they were instructed not to tell.
She was accused of not using technology in her class, even though each student had a laptop. She was criticized for relying on a literacy mentor, even though some of her students were struggling with reading. She was put on a behavior modification plan and was told to submit her lesson plans a week in advance for review by administrators. Her peers warned her that she was being targeted, and she began to believe it. Finally, she left her job after her health began to deteriorate.
It’s not just administrators bullying teachers, says Carv Wilson, a geography teacher at Legacy Junior High in Layton, Utah. He’s been an educator for 18 years, and has seen teachers bullying each other to get their way, as well as aggressive parents who fly off the handle and threaten and intimidate their child’s educators. But he says the worst case of ongoing workplace bullying he witnessed was by a principal.
“I was heavily involved in school leadership both as a Davis Education Association Rep and on the school representative counsel, and I heard about or witnessed first-hand the abuse of other teachers, staff, and students by this principal,” he says. “She specifically targeted individual teachers and the only thing that seemed to offer any protection was membership in our local association.”
Wilson says more than 60 percent of the educators were NEA members, and the other 30 percent “suffered dramatically at her hands.” The number of transfers out of the school was higher than 50 percent each year of the eight years that she was principal of the school.
“She seemed to revel in people being driven out of education or to another school,” he says. “The memories of that time still haunt me from time to time, but it solidified my belief that having representation both in school and in the local community through the association is critical. It’s the only defense against unfair and even punitive measures that are sometimes solely prompted by personality conflicts.”
Denise Mirandola is a union representative for the Pennsylvania State Education Association who holds trainings for members called “Bullying in the Workplace.”
“I presented it at an Education Support Professionals meeting and was surprised to see so many heads nodding,” she says. “I believe that the phenomenon has been overlooked far too long and should be brought to the surface quickly.”
Like Wilson from Utah, she says association representation is vital if you’re being targeted by a workplace bully. The first thing you should do, in fact, is contact your union representative. Then, document, document, document – save emails, letters, memos, notes from conversations, or anything that shows the mistreatment. She also recommends confronting the bully with a supportive ally, like a union rep – and to describe the offensive behavior you’re experiencing, and the change in behavior you’d like to see.
According to Dr. Matt Spencer of the Workplace Bullying in Schools Project, “the bully steals the dignity, self-esteem, confidence, joy, happiness, and quality of life of the targeted victim”. And when the target is an educator, it is a great “injustice” because the bully deprives students of a caring adult who is crucial to their education.
Source: Your Special Education Lawyer
These days, I find myself constantly reminding people of the civil rights origins of federal special education law. The first federal law to attempt to address comprehensively the educational rights of students with disabilities followed two landmark 1970′s civil rights cases from Pennsylvania and the District of Columbia. Those cases, relying upon Brown v. Board of Education, declared that the Constitution required equal access to education for all students, including students with disabilities.
Looking at the legislative history of the Individuals with Disabilities Education Act (“IDEA”), there is no question that members of Congress knew they were enacting a law protecting important civil rights of students with disabilities. The procedures in the law exist for a reason. Complying with the procedural requirements as a condition of receiving federal funds is necessary to protect the rights of students with disabilities. Lately, I hear people who advocate watering down, or even eliminating, those procedural protections.
I refuse to accept the proposition that our children’s civil rights are not worth the effort required to comply with IDEA.
Why are some people determined to ignore the civil rights origins of IDEA? Because if you just look at IDEA as legislation that requires school district personnel to fill out paperwork to get money, it is easier to argue that the law is merely an annoying administrative obstacle. When you acknowledge the civil rights origins of the law, and view children with disabilities as individuals worthy of protection of their rights, it is much more difficult to justify removal of the safeguards created by IDEA.
The early cases requiring access to education for students with disabilities exist because of the determination and dedication of parents who refused to give in to societal prejudice and preconceptions. That is why federal courts repeatedly acknowledge the central role of parental participation in the process of appropriately educating students with disabilities. Make no mistake – taking procedural protections away from parents and students with disabilities will not “streamline” the educational process. It will, instead, erode the civil rights of children with disabilities.
As a society, do we want to start down that path?
If you suspect that your child has a learning disability (LD), identification through a formal evaluation will help you know for sure. An evaluation will allow you to better understand your child’s strengths and weaknesses in learning, and may help to qualify your child for special education services. The evaluation process can be complicated, but NCLD is here for you with the top ten things parents need to know about LD evaluation.
1. The Individuals with Disabilities Education Act (IDEA) grants parents the right to request a formal evaluation of their child at no cost. If you choose to make a formal request for evaluation, make sure you make your request in writing. (See a sample request letter.) If your child is enrolled in private school or home school, your local school district is still responsible for IDEA-mandated evaluation. Contact your local school district to start the process.
2. Some students may be referred for evaluation by their school. As a parent, you will receive written notice of this referral and must give your consent for the evaluation to proceed.
3. Parents can choose to have their child evaluated privately as opposed to asking the school to do an evaluation. If you choose to go this route, the school is not responsible for the cost of the evaluation. You can decide whether or not to share the results of a private evaluation with your child’s school.
4. Once it has been established that your child will be evaluated by the school district, the law requires that you be given a copy of the "Procedural Safeguards Notice," a written document outlining your legal rights to make sure your child receives the services he needs. Read this document carefully and become familiar with your rights—an informed parent is a powerful parent!
5. School districts are required by state and federal law to complete the evaluation in an established period of time. IDEA requires that an evaluation be conducted within 60 calendar days of receiving parental consent. Your state may operate on a different timeline—contact your local Parent Training and Information Center for more information.
6. IDEA sets specific requirements for evaluations. Your child’s evaluation must use a variety of different, scientifically proven procedures, tools, and strategies to examine all areas in which a disability is suspected. The evaluation cannot use any single measure or test as the sole basis for determining if your child has a disability. Existing data on your child—including data collected during pre-referral interventions or a Response-to-Intervention process—must be considered.
7. Your records play an important role in the evaluation process. Schools must also review evaluations and information provided by parents. You can provide prior teacher and parent reports, results from private screening or testing, information from private tutors or therapists, samples of school performance, and other documents. You may also be asked to fill out checklists and report observations of your child, and your own records can help you do this as accurately as possible. As the parent, you know your child best, and the information you provide is extremely important in the evaluation process.
8. The school’s plan for your child’s evaluation must be presented to you before the evaluation begins. As a parent, you have the right to object to certain tests or assessments and/or to request that additional tests or assessments be added to the plan. Use NCLD’s “Questions to Ask About Evaluation Plans” worksheet to help you better understand the evaluation plan for your child.
9. The school district is required by IDEA to provide you with a copy of the evaluation report. Make sure to request in writing a copy of the full evaluation report prior to any meeting so that you’ll have time to prepare your questions and recommendations.
10. Following the evaluation, your child’s school will set up an eligibility meeting (sometimes called an “Initial IEP Meeting”) where you and a team of qualified professionals will review the evaluation results and determine if your child is eligible for special education services.
There is a system in place to develop IEPs (individualized education plans) for special needs children in schools, but that system isn't serving kids or families. Watch this segment from Huffpost Live detailing the issue, hosted by Janet Varney, and including:
By Michelle Diament
Federal education officials are handling a record number of disability-related civil rights complaints in the nation’s schools.
In a report out this week [October 3, 2012], the U.S. Department of Education says that more than 11,700 complaints alleging violations of disability rights were filed with its Office of Civil Rights between 2009 and 2011. That’s the highest number ever received in a three-year period, the agency said.
The vast majority of concerns — more than 4,600 — hinged on the rights of students with disabilities to a free and appropriate public education, or FAPE.
Other commonly cited problems related to retaliation, exclusion/denial of benefits, academic adjustments and disability harassment, the report indicates.
Disability-related complaints accounted for over 55 percent of those received by the Education Department during the three-year period. The nearly 600 staffers in the agency’s Office of Civil Rights also investigate concerns based on race, color, national origin, sex and age.
Source: Disability Scoop
One of the more controversial posts I’ve written is this one, encouraging public school teachers and service providers to speak out against violations of the civil rights of children with disabilities when they see it.
Of course, I didn’t think it was controversial when I wrote it; I thought it was common sense.
My goal was to let educators know that they, too, have rights, including the right to be free from retaliation if they are honest with parents and colleagues about what those children need. It was, and is, my belief that the vast majority of special educators genuinely care about kids with special needs, and that they feel intimidated, coerced, and generally pressured to “tow the party line” and either side with the administration openly, or stay silent when they see the IDEA, Section 504, and the ADA being violated.
I caught a lot of flack for that piece, both “on the record” and off, by those who were offended by it.
I received emails and other communications from public school employees (interestingly, mostly special education administrators) who expressed shock, dismay and outrage I could even suggest such a thing. Not surprisingly, the most violent reactions tended to come from those most likely to violate the IDEA, who vehemently denied not just participating in any such conduct, but also having ever witnessed anything like it ever in decades of service.
Right. Because all of the teachers I’ve met over the years who’ve told me horrible stories about pressure they receive to misrepresent how a child is doing were just making it all up.
School district employees who work with children with disabilities face these tough choices every day.
Well, last week I returned from a family vacation to learn that an excellent Decision just was issued on October 23rd by the United States Court of Appeals for the Ninth Circuit. As a reminder, the US Courts of Appeal are those federal courts just below the United States Supreme Court, so their rulings are extremely important and of strong precedential value. In Barker v. Riverside County Office of Education, the Ninth Circuit held that Ms. Barker, a veteran special education teacher, had standing to sue under Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act for being retaliated against by her school district employer.
What did Ms. Barker do to invoke the wrath of her bosses?
She filed a Complaint with the United States Department of Education’s Office for Civil Rights (OCR) because she felt that the special education students in her charge were being denied free and appropriate public educations by the school district. In response, she was intimidated, excluded from staff meetings and email communications, assigned jobs farther away, and was denied work opportunities and benefits.
The conditions became so extreme that Ms. Barker was forced to leave her job entirely.
The school district’s legal argument for consideration by the Court was, basically, that Mrs. Barker did not have “standing” to sue under these statutes because she, herself, is not disabled.
In finding in her favor, the Ninth Circuit wrote as follows:
"While Congress could have limited the remedial provisions of the Rehabilitation Act to claims brought by or on behalf of disabled individuals, it did not do so in apparent recognition of the fact that disabled individuals may need assistance in vindicating their rights…’ Weber 212 F. 3d at 49. Indeed, empathetic people who teach and interact frequently with the disabled are those most likely to recognize their mistreatment and to advocate on their behalf.”
I love that language: “empathetic people who teach and interact frequently with the disabled are those most likely to recognize their mistreatment and to advocate on their behalf.”
How very true. If you are one of those “empathetic people,” or you know one…perhaps you want to share this important Ruling with them today. You may never know how many children you might help by doing so, but I assure you, it will be worth the effort if you help even one.
By Ashley Post - September 7, 2012
The federal government is supporting a discrimination lawsuit against the organization that administers the Law School Admission Test (LSAT).
Yesterday, lawyers for the Department of Justice (DOJ) filed a motion to intervene in a class action in which a group of law school hopefuls accuses the Law School Admission Council (LSAC), which administers the LSAT, of violating the Americans with Disabilities Act by failing to accommodate test takers with disabilities.
In its motion, the DOJ claims the LSAC improperly flags tests completed with accommodations, thus identifying disabled test takers and implying “that examinees who exercise their civil right to the testing accommodation of extended time may not deserve the scores they received.”
The LSAC denies the accusations and is moving to dismiss the lawsuit.
This isn’t the first time that LSAT takers have claimed the test discriminates against individuals with disabilities. In June, a blind law school candidate sued the American Bar Association, claiming the LSAT violates the ADA, and last December, a New York woman with a cognitive disability sued the LSAC for not giving her an extension to take the exam.
Source: Inside Counsel
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