Arkansas District Excludes Kids from School Because They Might Have HIV

See this article, which begins:

Local disability rights advocates are accusing the Pea Ridge School District of kicking students out of school because of fear over HIV exposure. 

The Disability Rights Center of Arkansas sent out a statement Friday afternoon calling the school district’s refusal to allow three students to continue attending school“unlawful”, saying the students were being denied the right to attend school until documentation proves they are not HIV-positive.

This action, if it's being reported correctly, pretty clearly violates the ADA.  This was a big issue during the 1980s, and the Rehabilitation Act cases pretty solidly held that a school district can't exclude a kid just because s/he has HIV.  Some fights have to be engaged over and over, it seems.

Father Says YMCA After-School Program Refuses to Accept Son with Diabetes

This again?  See this article, which begins:

A Raleigh father says he has filed a complaint with the U.S. Department of Justice after a YMCA after-school program declined to accept his son, who has Type I diabetes. 

Bruce Hatcher, whose son is a kindergartner at Underwood GT Magnet Elementary School, says YMCA officials told him that they do not administer shots and would not give his son a shot if the boy’s blood sugar dropped too low. 

“It’s more than just a shot. It’s a life-saving shot,” said Hatcher, who asked that his son’s name not be included. “If you had a kid, or anyone had a kid in this situation, you would understand a little better.”

Ninth Circuit Holds Hawaii Must Provide FAPE to Kids Over 20

Last week, the Ninth Circuit issued an opinion in E.R.K. v. Hawaii Department of Education.  The case presented a challenge to a 2010 Hawaii statute, which barred students from attending public school after the last day of the school year in which they turned 20.  The plaintiffs, a class of Hawaiian students who were otherwise eligible for special education but over 20, challenged that statute as in conflict with the Individuals with Disabilities Education Act. The IDEA provides that states must provide a free appropriate public education (FAPE) to all children with disabilities through age 21. The IDEA does, however, contain a provision that allows a state not to provide special education to individuals age 18 through 21 if doing so "would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in those age ranges."  The state argued that its 2010 statute, which denied access to the public schools to all individuals who had turned 20 before the beginning of the school year, entitled it to the benefit of that exemption.  But the plaintiffs noted that, although the state denied students over 20 access to the public schools, it did provide them free access to the state-operated Community Schools for Adults, which provided GED and life-skills courses but did not provide special education.  The plaintiffs argued that if the state was going to provide this form of public education to students who had turned 20 before the beginning of the school year, that it must provide a FAPE, including special education and related services, to students with disabilities through age 21.  The Ninth Circuit agreed with that argument.

California Supreme Court Considers Insulin-in-Schools Case

See this coverage from the LA Times, which begins:

Several members of the California Supreme Court appeared wary Wednesday of requiring public schools to provide licensed nurses to administer insulin injections and other medications to schoolchildren.

The powerful California Nurses Assn. has argued that state law requires licensed nurses to provide insulin injections and other medicines, and two lower courts have agreed. The American Diabetes Assn. appealed. During a hearing, some justices on the state high court appeared skeptical of the nurses' arguments. 

Justice Ming W. Chin, noting that few schools have full-time nurses, questioned why districts should have to call in a licensed practitioner to administer a shot that a child's parents and physician have agreed could be given by an unlicensed but trained employee.

For full disclosure, I should note that when I was at DOJ I signed a brief in this case arguing that the state Nurse Practices Act, to the extent that it is construed to prevent unlicensed but trained school employees from administering insulin injections to students with diabetes, is preempted by the IDEA, Section 504, and the ADA.

Op-Ed on Disability Discrimination in Milwaukee School Voucher Program

See this piece.  Excerpts:

What do these children have in common? They all have disabilities, they all tried to participate in the Milwaukee Parental Choice Program and they all were denied admission, not served or pushed back into public schools by private voucher schools. These children have become part of a dual education system that segregates the overwhelming majority of children with disabilities in public schools, while providing them with fewer and fewer resources. 

Pro-voucher forces claim that private schools serve many children with disabilities, but they have no serious data to prove it. The schools told the state Department of Public Instruction that only 1.6% of their children were students with disabilities for testing purposes. A study they use to argue that 14% of voucher students have disabilities only says that 14.6% of children who attended both Milwaukee Public Schools and voucher schools were in special education in MPS. 

* * * 

Pro-voucher forces argue that the solution is to create a separate special needs voucher program, which will make things worse because no private school will have to accept those vouchers. Thus, private schools will continue to pick and choose which children with disabilities they want to serve. At the same time, children will lose their federally protected special education rights. And some special needs voucher supporters want to create segregated schools for children with disabilities, further undermining efforts to integrate these children into schools and communities.

LA Times on UC Berkeley Settlement

Nice article here.  It begins:

UC Berkeley is making its vast library collections and course textbooks more readily available to students with visual and other impairments under an agreement reached Tuesday that could set a precedent for universities nationwide.

The settlement with the nonprofit legal group Disability Rights Advocates was reached after more than a year of negotiations and will provide students with physical, developmental, learning and visual disabilities more timely access to printed materials in alternative formats such as Braille, large print and audio. 

The agreement is important because there are few standards required on such accessibility. The Americans with Disabilities Act, for example, doesn’t spell out what accommodations schools must make and includes a clause allowing schools not to make any concessions if costs create an undue burden, said Rebecca Williford, an attorney for the disability rights organization.

Important Settlement with UC Berkeley on Information Access for People with Print Disabilities

See this press release, which begins:

Disability Rights Advocates (DRA) and the University of California, Berkeley announced a settlement agreement today that will significantly improve information access for students with print related disabilities. The settlement puts in place a range of new policies and procedures to ensure that print disabled students have access to all of the written material students need to read to succeed in a university setting. The University’s Vice Chancellor for Equity and Inclusion Gibor Basri explained: “We live in the age of information. It is critical that students with print disabilities be able to take the same advantage of academic and employment opportunities as all Berkeley students.” 

DRA’s Executive Director Larry Paradis commented that “Disability Rights Advocates commends the University of California, Berkeley for implementing this new system to break down barriers to higher education. UC Berkeley has taken on an important leadership role in addressing the barriers that all too often cause difficulty for students with print disabilities. This settlement is a model plan that colleges and universities should consider adopting nationwide.”

Pleased with the experience of engaging in the one year structured negotiations process, Paul Hippolitus, Director, Disabled Students' Program remarked:“Throughout this process, I was especially proud of the University's leadership, as well as our students and their representatives, for holding the same values and principles of equity and inclusion for students with disabilities. As the birth place of the disability rights movement, UC Berkeley has had a long and illustrious history of supporting disability rights. With this agreement, a new chapter in this history has been written. This process has again reminded me of the value of disability advocacy efforts, such as those of DRA -- which help institutions reassess their position.”

Some key points of the settlement:

• Students who request course materials in alternative media can now expect to receive textbooks in 10 business days and course readers in 17 business days.
• The University has created and implemented a new Library print conversion system, the first of its kind in the nation, to enable students with print disabilities to request that a specific library book or journal be converted into an accessible digital format, with an average turnaround time of five business days.

Pergament on Choice in Prenatal Testing and Special Education

Just out: Deborah Pergament, What Does Choice Really Mean? Prenatal Testing, Disability, and Special Education Without Illusions, 23 Health Matrix 56 (2013).  From the introduction:

Debates over prenatal testing, disability, and public education are at the very center of my everyday work as an attorney. My legal practice focuses on representing children and families in complex special education and adoption law matters. Many of the children I represent are affected by genetic syndromes, chromosomal abnormalities, spina bifida and other neural tube defects, or disabilities caused by pregnancy, birth, and neonatal complications. I also advise several educational, medical, and social service organizations. This work involves counseling medical geneticists and genetic counselors who provide prenatal genetic testing services and develop new genetic technologies.

Through these experiences, I am uniquely able to observe and participate in the debates over the ethical and legal parameters that govern women’s choices about prenatal testing and the responsibilities of individual families and society in caring for the wellbeing of children with disabilities. This Article considers the experiences of families with children affected by genetic conditions and the issues raised by prenatal genetic testing technologies. It raises questions about the appropriateness of state involvement in the choices women make about prenatal testing, particularly under the Prenatally and Postnatally Diagnosed Conditions Awareness Act of 2008.

Paradoxically, those political and social actors that most often seek to involve the state in reproductive choice also support the privatization of responsibility for the care and education of children with disabilities. As a result, the privacy right relating to intimate relationships, the family, and decisions about whether to have a child is becoming less absolute. I argue that this is not accidental, as the expansion of public surveillance and regulation of women’s reproductive decisions and the related demonizing of the exercise of reproductive choice has diverted attention from efforts to provide for the social welfare by developing the necessary response of a just society. Such a response should involve: (1) the promulgation of rational regulations governing the development, access, and use of existing and emerging prenatal genetic screening and diagnostic technologies; and (2) the development of policies that give all children, including ones affected by genetic disorders, access to meaningful educational opportunities and health care.

DOJ Issues Important Pronouncement on Application of the ADA to School Voucher Programs

A few weeks ago (but just publicized last week), the Civil Rights Division of the U.S. Department of Justice sent a letter to Wisconsin's state Superintendent of Public Instruction regarding the Division's ADA investigation of the Milwaukee school voucher program.  The letter contains a number of important pronouncements regarding the responsibilities of states that operate voucher programs to prevent discrimination by the schools -- public and private -- that receive vouchers under those programs.

The first important pronouncement is that, even when parents use vouchers to attend private schools, the state retains an obligation to prevent discrimination against students with disabilities by the schools participating in the voucher program:

DPI's obligation to eliminate discrimination against students with disabilities in its administration of the school choice program is not obviated by the fact that the schools participating in the program are private secular and religious schools.  Indeed, courts recognize that the agency administering a public program has the authority and obligation under Title II to take appropriate steps in its enforcement of program requirements to prohibit discrimination against individuals with disabilities, regardless of whether services are delivered directly by a public entity or provided through a third party.  [Many case cites omitted.]  In short, the State cannot, by delegating the education function to private voucher schools, place MPCP students beyond the reach of the federal laws that require Wisconsin to eliminate disability discrimination in its administration of public programs.

DOJ's letter also goes into some detail regarding the precise obligations of the state regarding students enrolled in the voucher program:

DPI is required under Title II to ensure that its polices, practices and procedures governing the program (1) empower students with disabilities and their parents to make informed decisions during the school selection process; (2) ensure that disability status has no unlawful adverse impact on admissions decisions[;] and (3) ensure that voucher schools do not discriminate against students with disabilities enrolled in the school, either by denying those students opportunities and benefits available to non-disabled students, or by failing to make reasonable modifications to school policies where ADA regulations apply to DPI or participating schools.

The letter goes on to state that "because DPI is charged with operating the school choice program, it is responsible for monitoring and supervising the manner in which participating schools serve students with disabilities."

This is a very big deal.

Ruth Colker's New Book on the IDEA

Ruth Colker just sent along a note that her new book, Disabled Education: A Critical Analysis of the Individuals with Disabilities Education Act, is just days from being released.  Here's the publisher's synopsis:

Enacted in 1975, the Individuals with Disabilities Education Act (IDEA) provides all children with the right to a free and appropriate public education. On the face of it, the IDEA is a shining example of law’s democratizing impulse. But is that really the case? In Disabled Education, Ruth Colker digs deep beneath the IDEA’s surface and reveals that the IDEA contains flaws that were evident at the time of its enactment that limit its effectiveness for poor and minority children. 

Through an examination of the evolution of the IDEA, the experiences of children who fought for their education in court, and social science literature on the meaning of “learning disability,” Colker reveals the IDEA’s shortcomings, but also suggests ways in which resources might be allocated more evenly along class lines.

Ruth is one of the most important and interesting scholars writing on the IDEA.  Though I don't always agree with her take on the issues, I often do, and I always benefit from reading her work.  Check her new book out!

Weber on All Areas of Suspected Disability

Disability law maven and IDEA expert Mark Weber has just posted this paper on SSRN: Mark C. Weber, All Areas of Suspected Disability, Loyola L. Rev. (forthcoming).  The abstract:

The Individuals with Disabilities Education Act (IDEA) requires school districts to assess children “in all areas of suspected disability.” It further provides that each child’s individualized education program (IEP) must contain measurable annual goals designed to “meet each of the child’s...educational needs that result from the child’s disability,” and a statement of special education and related services that will be provided for the child “to advance appropriately toward attaining annual goals.”

Courts have strictly enforced these requirements in the last several years, remedying violations of IDEA when school districts fail to assess in all areas of suspected disability or do not establish goals and services to meet each of the child’s needs resulting from the disability. This Article offers three interpretations of this recent development. First, what the courts are doing may represent an effort to enforce provisions of IDEA that stand apart from the limited reading that a 1982 Supreme Court case placed on the requirement in the statute to provide a free, appropriate public education. Second, the development may signify a different way of looking at special education obligations under the law, one well adapted to the ever-increasing importance attached to providing services in settings that are less restrictive and maintain the greatest inclusion of students with disabilities with nondisabled students. Third, the cases might simply be a reaction to cutbacks on evaluations and services that school districts have imposed because of financial strains brought about by the Great Recession. This Article will not try to declare which of these interpretations is the correct one, and in fact all three may be true. But the Article will conclude that enforcement of these provisions furthers the underlying purposes Congress had in enacting IDEA.

Pasachoff on Federal Education Programs (Including IDEA) After NFIB v. Sebelius

Just out: Eloise Pasachoff, Conditional Spending After NFIB v. Sebelius: The Example of Federal Education Law, 62 Am. U. L. Rev. 577 (2013).  The abstract:

In NFIB v. Sebelius, the Supreme Court's recent case addressing the constitutionality of the Affordable Care Act, the Court concluded that the Act's expansion of Medicaid was unconstitutionally coercive and therefore exceeded the scope of Congress's authority under the Spending Clause. This was the first time that the Court treated coercion as an issue of more than theoretical possibility under the Spending Clause. In the wake of the Court's decision, commentators have expressed either the concern or the hope that NFIB's coercion analysis may lead to the undoing of much of the federal regulatory state, which substantially relies on the spending power. This Article argues that both this concern and this hope are misplaced. 

Taking federal education law as a test case for future coercion analysis--since federal funding given to the states for elementary and secondary education is second only to federal funding given to the states for Medicaid--this Article concludes that NFIB's coercion inquiry is unlikely to lead to much else being found unconstitutional. The major federal education laws, and by implication other conditional spending laws, will not likely find their demise under the Court's analysis. 

Nonetheless, NFIB will likely have some effect on the future of federal education law and other laws that rely on Congress's spending powers. It  should put a damper on calls to dramatically increase federal education funding; encourage the trend towards smaller grants of limited duration, especially those that bypass the states; result in some structural changes both in funding and enforcement; and, somewhat paradoxically for a decision that found the Medicaid enforcement regime coercive, may lead to greater federal enforcement of conditional spending laws.

Divided Fifth Circuit Panel Decides Section 504 Student-on-Student Abuse Case

On Friday, the United States Court of Appeals for the Fifth Circuit issued an opinion in Stewart v. Waco Independent School District, --- F.3d ----, 2013 WL 1091654 (5th Cir., Mar. 14, 2013).  The facts of the case (based on the complaint, which is all that is before the court at this point) are quite sad. Andricka Stewart has an intellectual disability, as well as speech and hearing impairments.  In 2006 to 2007, when the events at issue in the case took place, she was a student at a high school operated by the defendant school district.  Late in 2005, after what the court calls "an incident involving sexual contact between Stewart and another student," the district modified her IEP to limit her contact with male students and ensure that she remain under close supervision while at school.  But, her complaint alleged, she experienced a number of further incidents of sexual abuse by other students.  The Fifth Circuit's opinion describes those incidents, as alleged in the complaint:

In February 2006, a male student sexually abused Stewart in a school restroom. The District concluded that Stewart "was at least somewhat complicit" in the incident and suspended her for three days. In August 2006, school personnel allowed Stewart to go to the restroom unattended, and she was again sexually abused by a male classmate. Finally, in October 2007, a male student "exposed himself" to Stewart. The District suspended her again. In none of these instances, according to Stewart, did the District take any steps to further modify her IEP or to prevent future abuse.

Stewart sued under, among other statutes, Section 504 of the Rehabilitation Act.  The district court dismissed for failure to state a claim.

In a divided opinion, the Fifth Circuit reversed.  Judge Catharina Haynes wrote the majority opinion, for herself and Judge Jennifer Walker Elrod.  The majority first ruled that Stewart did not state a claim under a student-on-student harassment theory because the complaint did not allege sufficient facts to "plausibly state" that the school district was deliberately indifferent to known disability-based harassment.  

But the majority concluded that "Stewart may nonetheless state a § 504 claim based on the District's alleged refusal to make reasonable accommodations for her disabilities."  In so holding, the court put a helpful gloss on the "bad faith or gross misjudgment" standard that some circuits apply to Section 504 claims in the school context.  The majority explained that "bad faith or gross misjudgment" is not a requirement for 504 claims in this context but is instead simply an "alternative way[] to plead the refusal to provide reasonable accommodations."  In particular, the bad faith or gross misjudgment standard makes clear that a district has failed in its accommodation obligation not only when it explicitly refuses a requested accommodation but also "when it fails to exercise professional judgment in response to changing circumstances or new information, even if the district has already provided an accommodation based on an initial exercise of such judgment."  The majority explained that a plaintiff can establish a violation of the reasonable accommodation requirement -- including under the bad faith or gross misjudgment standard -- without showing that the defendant school district's actions rose to the level of the deliberate indifference that is required to make a district liable for student-on-student harassment.  

Applying those standards to the facts as alleged in the complaint, the majority held that Stewart had plausibly alleged a violation of the school district's accommodation obligations.  The majority explained:

She alleges that she was sexually abused on campus on three separate occasions after the District initially modified her IEP. Regardless of what role Stewart allegedly played in facilitating this misconduct, her IEP was designed to prevent such encounters, and Stewart can plausibly argue at this stage that its effective implementation would have obviated any need for discipline. The complaint also contains allegations that the District knew of specific aspects of the alleged abuse that could have given rise to further modifications. For example, the first two additional instances both involved Stewart's use of the restroom and effectively occurred only three months apart, assuming an intervening three-month summer break, supporting a plausible argument that the District could have modified Stewart's IEP to prohibit her from going to the restroom unattended. It is plausible that failing to further modify an IEP in such circumstances grossly departs from standard educational practice.

The majority nonetheless "emphasize[d] that courts generally should give deference to the judgments of educational professionals in the operation of their schools."  And it reaffirmed that "[i]solated mistakes made by harried teachers and random bad acts committed by students and other third-parties generally will not support gross-misjudgment claims."  But it concluded that the complaint plausibly alleged something more than that.

Finally, the majority held that Stewart was not required to exhaust administrative remedies under the IDEA before bringing her Section 504 suit -- an issue that the school district had not raised before the Fifth Circuit, but that was the centerpiece of the dissent.  The majority noted, first, that the school district had "arguably forfeited administrative-exhaustion arguments" by failing "to raise the issue on appeal or in its motion-to-dismiss briefing before the district court."  As the majority observed, the circuits are split on the question whether IDEA exhaustion is jurisdictional.  The Fifth Circuit has not yet weighed in on that conflict.  And the majority saw no need to weigh in on it here, because it concluded that Stewart's was not the sort of case under which exhaustion was required under 20 U.S.C. § 1415(l):  "In short, Stewart's gross-misjudgment theory of liability—premised on sexual abuse fostered by the district's alleged disability discrimination—does not appear to seek damages 'as a substitute for relief under the IDEA'"(citing the Ninth Circuit's relatively recent decision in Payne v. Peninsula School District).

Judge Higginbotham dissented.  He argued that exhaustion of IDEA's administrative remedies was required because "at the heart of Ms. Stewart's lawsuit is a dispute over the content and implementation of her IEP, a matter that clearly falls within the purview of the IDEA and is capable of resolution through its administrative processes."  "Exhaustion aside," Judge Higginbotham argued that "when an IEP is in place, its shortcomings must find their answer within the detailed remedial scheme under the IDEA unless those shortcomings are somehow of a meaningfully distinct character."  To support this point, he relied on the Supreme Court's statement in Smith v. Robinson that "Congress did not intend a handicapped child to be able to circumvent [the IDEA's] requirements or supplement [its] remedies . . . by resort to the general antidiscrimination provision of § 504."  Judge Higginbotham failed to note, however, that Congress overturned Smith in Section 1415(l) -- the very statutory provision on which he relied for his exhaustion argument.  Section 1415(l) provides that, so long as the applicable exhaustion requirement is satisfied, the IDEA does not restrict the substantive rights accorded to kids with disabilities under Section 504 "or other Federal laws protecting the rights of children with disabilities."

Given the active circuit splits over the IDEA exhaustion requirement, which I've noted before, this may not be the last we hear of this case.  But Friday's opinion certainly makes me want to renew my membership in the Catharina Haynes fan club.

Czapanskiy on Parents and the IDEA

New on SSRN: Karen Czapanskiy, Special Kids, Special Parents, Special Education, 46 U. Mich. J. L. Reform ___ (forthcoming 2013).  The abstract:

Many parents are raising children whose mental, physical, cognitive, emotional, or developmental issues diminish their capacity to be educated in the same ways as other children. Over six million of these children receive special education services under mandates of the Individuals with Disabilities Education Act, called the IDEA. Once largely excluded from public education, these children are now entitled to a free appropriate education. In this article, I argue that the special education system must begin to pay attention to the needs of parents if it is going to fully serve the children. In particular, the system needs to support parental competence and pay attention to conserving parental resources. I propose three significant reforms to the special education system that, I argue, will improve the chances that children in need of special education will receive it. The three reforms are: 1) putting parents in touch with each other, 2) requiring school systems to commit to common special educational plans through a public process, and 3) adopting universal design pedagogies in general education when practicable. While the most expensive of the three proposals is the adoption of universal design pedagogies, the most controversial is requiring school systems to commit to common special educational plans for similarly-situated children. None is cost-free, however, so I conclude by demonstrating that the costs of parent-oriented reforms are justified for reasons of pragmatism, to comply with congressional expectations, and to achieve social justice for parents with special needs children as compared with other parents and with each other.

Journal of the National Association of the Administrative Law Judiciary Symposium on the IDEA

Just out in the Journal of the National Association of the Administrative Law Judiciary: a symposium on the IDEA.  It contains the following pieces:

Debra Chopp, School Districts and Families Under the IDEA: Collaborative in Theory and Adversarial in Fact, 32 J. Nat'l Ass'n Admin. L. Judiciary 423 (2012);

Ruth Colker, California Hearing Officer Decisions, 32 J. Nat'l Ass'n Admin. L. Judiciary 461 (2012);

Robert A. Garda, Jr., Disabled Students' Rights of Access to Charter Schools Under the IDEA, Section 504 and the ADA, 32 J. Nat'l Ass'n Admin. L. Judiciary 516 (2012);

S. James Rosenfeld, It's Time for an Alternative Dispute Resolution Procedure, 32 J. Nat'l Ass'n Admin. L. Judiciary 544 (2012);

Torin D. Togut & Jennifer E. Nix, The Helter-Skelter World of IDEA Eligibility for Specific Learning Disability: The Clash of Response-to-Intervention and Child Find Requirements, 32 J. Nat'l Ass'n Admin. L. Judiciary 568 (2012); and

Mark C. Weber, Procedures and Remedies Under Section 504 and the ADA for Public School Children with Disabilities, 32 J. Nat'l Ass'n Admin. L. Judiciary 611 (2012).

Check it out!

Fenton on Race and Disability Labeling

Just out: Zanita E. Fenton, Disabling Racial Repetition, 31 Law & Ineq. 77 (2012).  From the introduction:

Because of institutionalized racism, combined with institutionalized ableism, extreme numbers of Black boys receive inadequate education. Black children, especially boys, are disciplined, suspended, and expelled when it is least likely that their parents will challenge the outcome; this most often is the case when their parents are in poverty.  When the parents of a Black child are more affluent and generally more engaged in the educational welfare of their child -- often by challenging disciplinary measures -- there is an increased likelihood that their child will be diagnosed as intellectually disabled (formerly known as mental retardation) or emotionally disturbed. The effect of this dynamic is that Black children are expelled whenever feasible. When it is less than practicable, as when the parents are more affluent, the child is placed in an educational category that permits segregation from the general population, and is thereby placed in a position to receive inferior services and education. 

* * * 

Comprehension of the reoccurring, yet indefensible, disproportionate labeling of Black boys as intellectually disabled may be found in the labyrinth of structures perpetuated by laws, policies, and institutions that operate to ensure the continued subordinated status of groups based on race and disability, each used to reinforce the other. The repetition of disproportionate labeling of Black boys in the categories of intellectual disability and emotional disturbance is only symptomatic in a range of social repetitions related to education that operate to continue subordination of certain groups, most often defined by race, class, and disability status. Punishment for marginalized students is too often preferred over inclusion and needs-based education, preconditioning entry into the criminal justice system.  There are also repetitions in the differential delivery and inferior quality of education. Racial segregation continues both between school districts and within single schools.  

This crisis in education is situated at the juncture of social bias, inertial education policy, and malleable legislation. This essay seeks to illuminate the interaction of some relevant variables which routinely return to the original status. Part I engages in basic logic and light economic analyses to understand how, despite the fact that realization of universal education would maximize individual potential to the benefit of society, education has become a focus of social competition. Part I also describes the role of Brown I in both promising educational reform while simultaneously allowing restoration of the original predicament. Part II examines the exploitation of the interaction between socially subordinated categories to perpetuate those forms of subordination. It first focuses on the role of case law and legislation in this ecosystem. It then discusses forms of social bias that serve as the basis for the discretion of relevant actors in the administration and delivery of education. Part III focuses on the No Child Left Behind Act and the manner in which it has intensified mis-education of all children and deepened levels of inequality in education. To conclude, Part IV laments the inadequacy of reform efforts that are sometimes more harmful than the subject of those reforms. It also ties mis-education to the other prevalent social disproportions for both persons of color as well as individuals with intellectual disabilities. It ends with a plea that future reform efforts struggle more intensely and effectively to accomplish the goal of equality in education.

Zirkel on Public Schools' Impartial-Hearing Obligations Under Section 504

Just out: Perry A. Zirkel, The Public Schools' Obligation for Impartial Hearings Under Section 504, 22 Widener L.J. 135 (2012).  The abstract:

This article provides an in-depth examination of the legal sources and current practices specific to impartial hearings under Section 504 of the Rehabilitation Act for students in the K-12 public school context. In contrast to the Individuals with Disabilities Education Act (IDEA), this broader and overlapping statute and its regulations has received insufficient attention, particularly in terms of its impartial hearing mechanism and in light of its foreseeably increasing utilization. Part II of the article examines the Section 504 statute, regulations, and resolution avenues available under Section 504 other than the impartial hearing route. Part IV canvasses hearing officer decisions and available judicial case law, with special attention to jurisdiction. Part V provides a summary of (a) state laws and (b) state education agency policies and practices specific to the jurisdiction of IDEA impartial hearing officers for Section 504 student issues. The final part proposes a more clear and coherent framework for impartial hearings under Section 504 in relation to those under the IDEA.

Black on Civil Rights and Charter Schools

New on SSRN: Derek W. Black, Civil Rights, Charter Schools, and Lessons to Be Learned, 64 Fla. L. Rev. 1723 (2012).  The abstract:

Two major structural shifts have occurred in education reform in the past two decades: the decline of civil rights reforms and the rise of charter schools. Courts and policy makers have relegated traditional civil rights reforms that address segregation, poverty, disability, and language barriers to near irrelevance, while charter schools and policies supporting their creation and expansion have rapidly increased and now dominate federal policy. Advocates of traditional civil rights reforms interpret the success of charter schools as a threat to their cause, and, consequently, have fought the expansion of charter schools. This Article argues that the civil rights community has misinterpreted both its own decline and the rise of charter schools. Rather than look for external explanations, civil rights advocates should turn their scrutiny inward. And, rather than attack charter schools, they should learn from them.

Eighth Circuit Issues Important Communications Access Decision

Yesterday, the United States Court of Appeals for the Eighth Circuit issued an opinion in Argenyi v. Creighton University.  I've blogged about this case before.  Argenyi was a student at Creighton's medical school, which (according to the summary judgment record) refused various requests to accommodate his hearing impairment.  In particular, the school refused to provide computer-assisted real-time transcription (though it allowed Argenyi to provide it himself at his own substantial expense) or to provide an interpreter (or even permit Argenyi to use one at his own expense in clinical courses).  Although he succeeded in passing his courses during his first two years of medical school, Argenyi withdrew from school because he did not believe he was learning what he needed to, particularly in clinical courses.  Argenyi sued under Title III of the ADA and Section 504 of the Rehabilitation Act.  The United States District Court for the District of Nebraska granted summary judgment to the university, but the Eighth Circuit yesterday reversed.

The Eighth Circuit held that the ADA and the Rehabilitation Act apply an "equal opportunity" standard to determine what communications aids will be required under the statutes.  Those statutes, the court concluded, " each require Creighton to provide reasonable auxiliary aids and services to afford Argenyi 'meaningful access' or an equal opportunity to gain the same benefit as his nondisabled peers."  And the court summarized the elements of the record that, in its view, "provide[d] strong evidence that Creighton's accommodations were inadequate and that the University was not entitled to summary judgment:

In clinical courses Argenyi and his patients frequently failed to communicate effectively. He described in his affidavit a "consult with the parents of a two month old, with communication limited such that [he] did not know . . . why the infant was hospitalized," as well as his struggle to communicate with "emotional family members, patients with accents, and . . . a patient with a history of a broken jaw." Argenyi stated that Creighton had done "nothing to remedy [his] inability to understand what was happening in the clinic" and eventually advised him to "refrain from making requests for additional auxiliary aids and services."

After a careful review of the record, we cannot agree with the district court's conclusion that Argenyi's allegations were "unsupported." The record contains five letters from Argenyi's doctors to Creighton confirming his need for additional auxiliary aids and services. Dr. Backous wrote to Creighton during Argenyi's first month of medical school that "[i]t is imperative that [Argenyi] have access to visual cues for everyday communication and education," including "but . . . not limited to" closed captioning, CART, and a cued speech interpreter. He urged Creighton to consider Argenyi's specific requests, explaining that Argenyi "is the best person to judge what [assistance may be necessary] since no one else can really understand what he is hearing through his cochlear implant systems."

Creighton also received a report from Dr. Thedinger prior to Argenyi's second year, stating that the FM system actually worsened Argenyi's speech discrimination ability to 38 percent comprehension. In addition the record contains correspondence between Argenyi and Creighton in which he repeated requests for an interpreter in clinical courses, which were all denied. During his first two years of medical school, Argenyi borrowed more than $100,000 to pay for the auxiliary aids and services he needed to obtain the medical education he sought, and which Creighton declined to provide.

The district court had concluded that Argenyi's requested accommodations were not "necessary," largely because Argenyi was capable of attending school and passing his classes without them.  But the Eighth Circuit concluded that the district court applied the wrong legal standard.  In so holding, the Eighth Circuit relied on the Eleventh Circuit's recent ruling in Liese v. Indian River Hospital District (blogged about here) and the Ninth Circuit's recent ruling in Baughman v. Walt Disney World Company (blogged about here):

In Title III of the ADA and § 504 of the Rehabilitation Act, Congress required public accommodations and entities which receive public funding to furnish reasonable auxiliary aids and services so that all individuals have an equal opportunity to gain "a like" or "equal" benefit. Baughman, 685 F.3d at 1135; Liese, 710 F.3d at 343. Rather than merely ensure that Argenyi is not "effectively excluded" from its medical school, the ADA and the Rehabilitation Act require Creighton to "start by considering how [its educational programs] are used by non-disabled [medical school students] and then take reasonable steps to provide [Argenyi] with a like experience." Baughman, 685 F.3d at 1135.

This is a big win for Mary Vargas and Michael Stein of Stein & Vargas, Marc Charmatz of the National Association of the Deaf, and Dianne DeLair of Disability Rights Nebraska.

NPR on DOJ Settlement with Lesley University Over Meal Plans for Students with Food Allergies

See this story, which begins:

Many a college student lives off of microwavable meals – but some do it not by choice but because they're worried school food might make them sick. 

They may have celiac disease, a digestive ailment caused by gluten, or life-threatening allergies to foods like peanuts — both are on the rise. But even as more people become aware of the issues, schools and institutions may lag behind. 

Now some food allergy advocates are celebrating what they see as a shifting legal trend: schools and other institutions required to treat food allergies as a disability. They've found an ally in the Department of Justice. 

DOJ's Civil Rights Division announced last month that the Americans With Disabilities Act applies to students at Lesley University in Cambridge, Ma., who claimed that the school's food services and meal plans were inadequate for their needs. It was the first food allergy-related settlement under ADA in higher education, says a DOJ spokeswoman.

As the story notes, this sort of settlement likely wouldn't have been possible before the ADA Amendments Act.