Baltimore Special-Ed Oversight Head Retires

See this interesting article in the Baltimore Sun. It begins:

Three years ago, amid great fanfare, a federal judge ordered a team of state managers to oversee special education in the Baltimore schools, a move that many viewed as a partial state takeover without the controversial title.

Today, the head of that management team, Harry Fogle, is retiring and, as the state scales back on its intervention, he is not being replaced.

The three parties in a quarter-century-old lawsuit agree that services to students with disabilities have improved since 2005, when the state and the city were openly sparring for control of Baltimore's schools amid a gubernatorial campaign.

But deep-seated problems in the city's special-education program remain, and the
system has a long way to go before it is freed from a quarter-century-old lawsuit. And, as state education officials reduce the number of managers in the city - there will be four full time next academic year, down from eight - they worry that the rapid pace of change under schools chief Andres Alonso might result in new problems with special education.

Disabled Kids: The Next Civil Rights Movement

See this interesting article by that title in a BusinessWeek blog.

Utah State Settles ADA Suit

See this article, which begins:

A discrimination lawsuit filed against Utah State University by deaf students who claimed the school was not providing adequate interpreting services has been settled.

Dale Boam, the attorney representing the students, said the lawsuit was settled in April with a promise by the school to have three full-time interpreters and keep deaf students involved and informed of interpretation issues.

"The biggest point of contention -- and it had gone on for years and years -- the students felt the school was not making an effort to provide adequate services," Boam said. "Having three full-time interpreters gives them a much stronger base to work from."

Twelve students filed the lawsuit in May 2006, contending the school was violating the Americans with Disabilities Act because it was not providing them with appropriate services.

The students would request an interpreter for a class and would arrive to find someone not qualified for the task or a stenographer would be there to take notes for the student but not be able to help them participate in discussion, Boam said.

"One of the points of the agreement was a philosophical agreement that these note takers are not an interpreter. They don't provide an equivalent service," he said.

Angie Olsen, Utah State University deaf services coordinator, said the goal is to have one staff interpreter for every two students using interpreter services. Currently, USU has seven deaf students using interpreters and about 25 deaf or partially deaf students using notetakers.

N.D.W.Va.: Title II Validly Abrogates Sovereign Immunity in Context of Medical Residency

New on Westlaw: Sarkissian v. West Virginia Univ. Bd. of Governors, 2007 WL 1308978 (N.D.W.Va., May 3, 2007). Dr. Sarkissian was discharged from a medical residency at the West Virginia School of Medicine. He sued under, inter alia, Title II; he claimed that the school had refused to accommodate his ADHD. The school moved to dismiss on sovereign immunity grounds, and the district court denied the motion to dismiss. The Fourth Circuit had earlier held that Title II validly abrogates state sovereign immunity in cases involving public higher education, and the Supreme Court held in the Garrett case that the ADA did not validly abrogate state sovereign immunity in cases involving employment. A medical residency is a bit of a hybrid of higher education and employment, but the court concluded that a residency is primarily educational rather than vocational. Accordingly, applying the Fourth Circuit's higher-education precedent, it held that Title II does validly abrogate state sovereign immunity in the medical residency context. Expect an appeal.

Bazelon Center on Virginia Tech Shootings

See this article from Inside Higher Ed. It begins:

There’s lots of talk in these post-Virginia Tech tragedy days of the need to better identify students who are disturbed, just as there are plenty of calls from politicians and others to find ways to quickly remove them from colleges. An advocacy group for people with mental illness thinks the talk has gone too far.

“It’s sad that in the wake of a tragedy like this, there’s the hunger for quick fixes and quick legislation,” said Robert Bernstein, executive director of the Bazelon Center for Mental Health Law, at a press conference Thursday.

Added Chris Koyanagi, the center’s policy director: “I’m disappointed that the conservation has been about what could have been done right before to prevent this [shooting spree]. What about earlier?”

Cho Seung-Hui, the Virginia Tech shooter, entered a mental health facility in late 2005. Several leaders of the Bazelon Center said the real story is that police didn’t know where to turn when alerted of Cho’s stalking and threat of suicide, and that professors who saw the student’s disturbing writing didn’t find the right resources in the public health system.

Center advocates say changes have to be made at colleges so that everyone is aware of protocol when dealing with a student who is deemed a threat. Leaders of the center are working on a best practices report that urges colleges to avoid blanket policies that limit a student’s likelihood of seeking help but that still allow officials to intervene when needed.

Bernstein said the larger issue is fixing what he calls large gaps in service availability. Too few counselors are available to students at many campuses, he said.

Jolly-Ryan on the Timed and Flagged LSAT

New on SSRN: Jennifer Jolly-Ryan, The Fable of the Timed and Flagged LSAT: Do Law School Admissions Committees Want the Tortoise or the Hare? The abstract:

This article questions whether the strict time limitations for taking the LSAT conflict with law school admissions committees' goals of measuring an applicant's aptitude and predicting who will be good law students or who will be good lawyers. Strictly timed tests, as gate keepers to the legal profession, emphasize test takers' speed, to the detriment of more valuable qualities such as perseverance, accuracy, and care.

The article also questions whether the practice of flagging LSAT test scores of law school applicants with disabilities, is discriminatory. The practice of flagging LSAT scores of test takers with disabilities should end, as it has ended for most standardized tests, including the SAT, ACT, GRE, GMAT, and TOEFL. Flagging LSAT scores of test takers with disabilities stigmatizes law school applicants in the
admissions process and is contrary to the goal of federal law in placing test takers with disabilities on equal footing by assessing their abilities, rather than their disabilities.

Supreme Court Denies Cert. in Univ. of Puerto Rico v. Toledo

In Monday's orders list, the Supreme Court denied cert. in University of Puerto Rico v. Toledo. The University of Puerto Rico sought cert. to review a decision of the First Circuit, which held that Title II of the ADA validly abrogates state sovereign immunity in the context of public education. Four circuits have so held; none has come out the other way since the Supreme Court's decision in Tennessee v. Lane.

Tenth Circuit on IDEA Exhaustion, and IDEA's Relationship with the ADA and Rehabilitation Act

Yesterday, the Tenth Circuit issued its opinion in Ellenberg v. New Mexico Military Institute. The case involved a teenager who applied to the New Mexico Military Institute (a state secondary school) and was rejected because of a psychiatric disability. She brought suit under the IDEA, the ADA, and the Rehabilitation Act. The Tenth Circuit held that, because she had not challenged the NMMI's decision through the IEP process, her IDEA claim had to be dismissed on exhaustion grounds. Along the way, the court made the following tangential observation, which is sure to be quoted a lot by states and school districts:

The Ellenbergs misunderstand the IDEA. In their brief, which relies heavily on anti-discrimination hyperbole, they view the IDEA as a virtual treasure trove providing disabled children with a limitless number of substantive rights. The IDEA, however, is not so broad. It is a spending statute that imposes obligations on the states to provide certain benefits in exchange for federal funds. See Rowley, 458 U.S. at 204 n. 26. Although “Congress has broad power to set the terms on which it disburses federal money to the States, ... when Congress attaches conditions to a State's acceptance of federal funds, the conditions must be set out ‘unambiguously.’ “ Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S.Ct. 2455, 2459 (2006) (internal citation omitted). Courts engage in a two-step inquiry to determine if a state has satisfied its substantive IDEA obligations. “First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?” Rowley, 458 U.S. at 206-07. If the answer to both is yes, “the State has complied with the obligations imposed by Congress and the courts can require no more.” Id. at 207.

Citing the IDEA's 30-year old requirement that states “establish[ ] a goal of providing full educational opportunity to all children with disabilities,” see 20 U.S.C. § 1412(a)(2), plaintiffs argue that the IDEA requires absolute educational equality. In support, they point to language contained in Congress' recent reauthorization of the IDEA, specifically Congress' finding that it is in the “national interest that the Federal Government have a supporting role in assisting State and local efforts to educate children with disabilities in order to improve results for such children and to ensure equal protection of the law.” 20 U.S.C. § 1400(c)(6) (2005). Plaintiffs, however, have not presented us with a single case from any court recognizing a legally cognizable anti-discrimination claim brought under the IDEA.^FN10 Moreover, the Supreme Court has explicitly rejected a similar attempt to transform the IDEA into an anti-discrimination vehicle in a 30-year old case, the very case cited by plaintiffs in support of their view. See Rowley, 458 U.S. at 198 (noting that in passing the IDEA Congress did not intend “to achieve strict equality of opportunity or services” and further holding “the requirement that a state provide specialized educational services to handicapped children generates no additional requirement that the services so provided be sufficient to maximize each child's potential ‘commensurate with the opportunity provided other children.’ ”); see also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 623 n. 6 (1999) (Thomas, J., dissenting) (noting that the IDEA is not a general anti-discrimination statute).

But that observation wasn't all bad for the Ellenberg's: Because their ADA and Rehabilitation Act claims were purely antidiscrimination claims, the court concluded that those claims could proceed, notwithstanding the failure to exhaust the IDEA claim. The court's language on this point is sure to be quoted a lot by parents:

[E]xempting plaintiffs from exhaustion in this circumstance prevents inefficiency and waste of judicial resources. Limited obligations are imposed on states under the IDEA. Educational experts who develop IEPs must identify the students' LRE and select an educational placement, but they do not decide which schools a student is otherwise qualified to attend. Administrative officers reviewing plaintiffs' IDEA claims must consider the same limited questions that we ask: (1) Has the student been given a FAPE?; and (2) Was the student given a FAPE in the least restrictive environment? Rowley, 450 U.S. at 206-07. At no point would the administrative process offer insight into the merits of a discrimination claim. Requiring exhaustion before the Ellenbergs could pursue their claims under the ADA and RA would create an anomalous result: Plaintiffs who concede a students' IDEA rights have not been violated, or have settled the IDEA claims, would be required to craft an IDEA claim and proceed through the state administrative process to determine if the students' IDEA rights have been violated. See W.B. v. Matula, 67 F.3d 484, 496 (3d Cir.1995) (recognizing that plaintiffs would not be required to use the IDEA's administrative framework when they have settled their IDEA claims).

Turning to the merits of the RA and ADA claims, contrary to NMMI's suggestion, our precedent does not hold that a party's discrimination claims under the RA and the ADA must automatically be dismissed if an IDEA claim fails.^FN22 Any other interpretation of our caselaw would mean that a state educational institution that receives public funding could openly discriminate against applicants with disabilities so long as the state offered the student a FAPE in the least restrictive environment. Thus, even if plaintiffs conceded that New Mexico fully satisfied its IDEA obligations with respect to S.E., they could pursue claims under the ADA and the RA on the grounds that S.E. was precluded from receiving a state benefit-military-style education-provided to her non-disabled peers.