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.

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.

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!

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.

Eleventh Circuit Upholds Right to Independent Educational Evaluation at Public Expense

A couple of weeks ago, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Phillip C. v. Jefferson County Board of Education.  In this case under the Individuals with Disabilities Education Act, the parents disagreed with the school district's assessment of their child's educational needs.  They obtained an independent educational evaluation (IEE).  Pursuant to the relevant Department of Education regulation, 34 C.F.R. 300.502, which provides that such an IEE will be performed at "public expense," the parents sought reimbursement for the evaluation from the school district.  The school district refused on the ground that the statute provides only that the parents shall be entitled to obtain an IEE, not that it shall be performed at public expense.  According to the state, the regulation thus went beyond the Department's authority under the statute.

The Eleventh Circuit rejected that argument:

As the Board notes, 20 U.S.C. § 1415(b) does not expressly state that agencies must pay for a parent’s IEE. See 20 U.S.C. § 1415(b) (stating only that a parent must “have an opportunity . . . to obtain an [IEE] of the child”). However, another section of the IDEA, 20 U.S.C. § 1406(b)(2), expressly requires the Secretary of Education to preserve any IDEA regulation that existed as of July 20, 1983 and provided protection for children:

The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this chapter that . . . procedurally or substantively lessens the protections provided to children with disabilities under this chapter, as embodied in regulations in effect on July 20, 1983 (particularly as such protections related to parental consent to initial evaluation or initial placement in special education, least restrictive environment, related services, timelines, attendance of evaluation personnel at [IEP] meetings, or qualifications of personnel), except to the extent that such regulation reflects the clear and unequivocal intent of Congress in legislation.

Id. § 1406(b)(2). One of the regulations in effect on July 20, 1983 expressly provided to parents “the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.”

By enacting 20 U.S.C. § 1406(b), Congress sought to “reaffirm support for the program and its existing regulations,” which included a parent’s right to an IEE at public expense. 129 Cong. Rec. 33,316 (1983) (statement of Rep. Biaggi); see also H.R. Rep. No. 98-410, at 21 (Oct. 6, 1983) (“[T]he current regulations which govern programs under [the IDEA] have received the strong support of Congress.”). Significantly, this reaffirmation was in response to proposed regulations that, in part, would have significantly curtailed a parent’s right to a publicly financed IEE by requiring public reimbursement “only where a hearing or reviewing officer determines that such an evaluation is necessary to resolve the issues in dispute in a hearing or review.” Assistance to States for Education of Handicapped Children, 47 Fed. Reg. 33836-01, 33841 (proposed Aug. 4, 1982) (emphasis added). Congress “remain[ed] strongly opposed to any attempts to alter current regulatory requirements which would result in diminished rights and protections for handicapped children under the [IDEA].” H.R. Rep. No. 98-410, at 21. It is clear that Congress enacted 20 U.S.C. § 1406(b) to ensure that the “Secretary cannot propose any regulations which . . . have the direct or indirect effect of weakening the protections for handicapped children under existing law and regulation.” 129 Cong. Rec. 33,316 (1983) (statement of Rep. Biaggi).

Moreover, subsequent to 1983, Congress reauthorized the IDEA in 1990, 1997, and 2004 without altering a parent’s right to a publicly financed IEE.  Under the re-enactment doctrine, “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S. 575, 580 (1978). This doctrine is particularly applicable here, where a parent’s right to a publicly financed IEE has endured since the Department of Education first implemented the IDEA. See United States v. Baxter Int’l, 345 F.3d 866, 887 (11th Cir. 2003).8 Accordingly, Congress has clearly evinced its intent that parents have the right to obtain an IEE at public expense. See 34 C.F.R. § 300.502.

N.D. Cal. Declines to Extend Supreme Court's Douglas Decision in an IDEA Case

On Monday, Judge Thelton E. Henderson of the United States District Court for the Northern District of California issued an order in the ongoing Emma C.  litigation.  (The case is Emma C. v. Eastin, 2012 WL 5904750 (N.D. Cal., Nov. 26, 2012).)  The issue before the court concerned the obligations of the California Department of Education, under a consent decree between the parties, to monitor and ensure that students in the Ravenswood school district receive a free appropriate public education under the Individuals with Disabilities Education Act.

The state argued, among other things, that the Supreme Court's decision earlier this year in Douglas v. Independent Living Center (blogged about here) deprived the district court of jurisdiction to assess the state's system for monitoring local school districts' provision of FAPE, because the United States Department of Education approves the state's plan for implementing the IDEA.  The court rejected that argument:

CDE argues that, since Congress has vested the USDOE with jurisdiction to evaluate the adequacy of CDE's statewide system for monitoring the provision of FAPE, this Court should defer to the USDOE's OSEP and decline to exercise its own jurisdiction. CDE purports to base this argument on the Supreme Court's recent decision in Douglas v. Independent Living Center of Southern California, ––– U.S. ––––, 132 S.Ct. 1204, 182 L.Ed.2d 101 (2012), but Douglas is inapposite. In Douglas, the Court considered whether a Supremacy Clause challenge to a state statute could be maintained after the federal agency tasked with administering the relevant federal statute determined that the state statute was a valid implementation of the federal statute. Id. at 1211. Suggesting that deference might be due to the federal agency's intervening interpretation of the statute, and that the case should perhaps proceed under the Administrative Procedure Act rather than the Supremacy Clause, the Court remanded the case for further proceedings. Id. at 1210–11. CDE's attempt to draw an analogy between the agency decision in Douglas and OSEP's approval of CDE's monitoring system in the present case falls flat. CDE has not presented any evidence that OSEP has issued a ruling on the question presented in this case—whether CDE's monitoring system is “capable of ensuring continued compliance with the law and the provision of FAPE to children with disabilities in Ravenswood.” FACD § 13.0. And even if OSEP had ruled on that precise question, Douglas at most suggests that OSEP's decision would be entitled to some level of deference—it in no way implies that the Court should decline to exercise its jurisdiction. See id. at 1210 (“All parties agree that the agency's approval . . . does not make these cases moot.”).

This is likely to be an important decision, as I expect that other states will try to use Douglas in this way, both in the IDEA context and elsewhere.

Georgia Department of Education Says Georgia Cyber Academy Violates IDEA

See this article from the Atlanta Journal-Constitution.  It begins:

The Georgia Department of Education has told the Georgia Cyber Academy that it will begin proceedings in April to shut down the online charter school if it fails to address numerous issues in its handling of special education students. 

Those concerns, spelled out in a report delivered to GCA on Tuesday, include failure to obtain individualized education plans special education students are taught from, problems in resolving parental complaints and failure to offer the individualized instruction special education students are eligible to receive under federal law. 

With 12,000 students, GCA is the largest public school in the state. The report says GCA’s special education problems stretch back to 2009, when the scores of its special needs students were among the lowest in the state.

Interesting Study on Charter Schools and People with Disabilities in New York State

The Center on Reinventing Public Education yesterday put out this report evaluating the enrollment of students with disabilities in charter schools in New York State.  It's well known that on average charter schools in New York enroll fewer students with disabilities than do district-run public schools.  This report attempts to disaggregate the data a bit to try to figure out what is going on.  The results are interesting, though more suggestive of areas for future research than conclusive of anything.  Here are the study's findings (the second and third findings are the key ones):

• The statewide difference in charter and district enrollment is too simplistic of a comparison: Looking across New York State, charter schools on average serve a smaller share of special education students than do the state’s district-run schools, but the distribution and range of enrollment are not far off what we see in the district-run schools. 

• Charter middle and high school enrollments are indistinguishable from district enrollments: At the middle and high school levels, the distribution of special education enrollment in charter schools looks very similar to the distribution of special education enrollment in district-run schools. This is true statewide and—in most cases—when charter schools are compared to their host districts. 

• Charter elementary schools show underenrollment: Unlike charter middle and high schools, fewer students with disabilities enroll in charter elementary schools as compared to district- run elementary schools statewide and—in many cases—relative to the charters’ host districts. 

• There is also variation among charter authorizers: While certain charter school authorizers oversee schools with special education enrollments that closely track those of nearby district-run schools, other authorizers oversee groups of schools that don’t mirror their local district-run schools’ special education enrollments.

It's an interesting study, and one that should advance the discussion, but there's a lot more you'd want to know here.  I'd particularly want to look at three questions:

1. Whether there is a correlation between performance measures and the disability population of the school.  That is, are the "successful" charter schools, measured by high test scores, ones with disproportionately few students with disabilities?
2. Whether the same proportion of students with disabilities attend charter middle and high schools in each year of schooling.  That is, do charter middle and high schools start out with a large number of students with disabilities who leave those schools before graduating?
3. Whether different charter operators (not authorizers) have different percentages of students with disabilities.

One finding I will note from the study that seems quite interesting:  To the extent that charter defenders argue that charter schools can be beneficial by allowing students with disabilities to attend schools that are geared specifically to their disabilities -- and to the extent that folks like me say that sounds like the segregation the disability rights movement has been fighting against -- the study suggests that the facts don't support the defenders' argument or my worry.  The study finds only two charter schools in the state in which more than 35% of the students have disabilities -- and only one in which more than 50% do.

Much more to come I'm sure.

EdWeek's Shah Reflects on the IDEA

Nirvi Shah, over at EdWeek's On Special Education blog, has this post reflecting on the current state of the IDEA, prompted by a talk she gave to visitors from Kazakhstan.  An excerpt:

And here are a few things that have crossed my computer screen lately: 

• In Seattle, formal complaints on behalf of the school district's 7,000 students with disabilities have doubled over the past two years, the Seattle Times reports. 

• In San Francisco, the state education department is investigating whether the school district violated federal regulations by improperly denying summer school services to special education students to cut costs, the Bay Citizen writes. 

• In Clinton, Tenn., the school district is accused of isolating and secluding special education students in ways that violate state laws, the Knoxville News Sentinel says. 

• In Jackson, Miss., the school board actually wrestled with a decision to keep its accreditation and lose some of its autonomy in working with students with disabilities. Already, Jackson has been found not to be complying with IDEA for nearly two years. The state education department is giving it another eight months to do so, the Clarion Ledger reports.

 And I could keep going.

Ryan on Poverty and the IDEA

New on SSRN: James E. Ryan, Poverty as Disability and the Future of Special Education Law, 101 Geo. L.J. ___ (forthcoming 2013).  The abstract:

Special education law relies on certain assumptions regarding brain development, function, and dysfunction. Recent neuroscience research suggests that some of those assumptions are open to serious question. This Article, which is part of a broader project that uses neuroscience research to critique special education law, focuses on one of those assumptions: that learning disabilities are innate. The definition of learning disabilities in special education law thus excludes from eligibility students whose learning problems are due to “economic disadvantage,” reflecting the belief that poverty is purely an external factor that diminishes the motivation or opportunity of poor students to learn. 

Neuroscience research, however, suggests that the conditions associated with poverty can have internal, physical effects on the brain. Growing up in poverty, in short, can alter how a child’s brain develops and functions. The sharp distinction in the law between internal disorders and external circumstances thus appears increasingly untenable. The Article goes on to explore the implications of this and other findings from neuroscience for the future of special education law.

Interesting paper and thesis.  My initial take (consistent with my general views on such questions) is that the neuroscience isn't really doing the work here.  What the neuroscience is doing is highlighting a fundamental normative question that has existed for the learning disability category from the beginning.  As Jim's paper notes, the IDEA, though an incredibly important disability rights statute, has always raised concerns by applying a much more medical approach to disability than do the ADA and the Rehabilitation Act.  Jim's focus on neuroscience might, alas, continue to trap us in a medicalized discourse here, when (as he recognizes) the real questions here are normative: What resources should we devote to education?  By what criteria should we distribute those resources among children and groups of children?  And why?  Anyway, this is likely to be an important paper (and project) for people thinking about the IDEA.

Lukasik on Asperger Syndrome and the IDEA

Just out: Lisa Lukasik, Asperger's Syndrome and Eligibility Under the IDEA: Eliminating the Emerging "Failure First" Requirement to Prevent a Good IDEA From Going Bad, 19 Va. J. Soc. Pol'y & L. 252 (2011).  The abstract:

Establishing a child's eligibility for services and protections under the Individuals with Disabilities Education Act (IDEA) requires “a difficult and sensitive analysis.” This is particularly true when a child's family and her school agree that she has a disability that could qualify her for special educational benefits under the Act, but disagree about whether that disability in fact renders her eligible for those benefits. Such disagreements highlight a gap in the federal law that several circuit courts of appeal recently filled with a requirement that children with disabilities who also receive passing grades in school, like many children with Asperger's Syndrome, “fail first” academically before they may qualify as “a child with a disability” eligible for services and protections under the Act. 

This Article is among the first to consider the Asperger's Syndrome example in the context of these decisions. It argues that recent restrictive constructions of regulatory definitions of IDEA-eligible disabling conditions frustrate the purpose of the IDEA, create an unnecessary constitutional vulnerability in the Act, and fly in the face of public policy supporting preparation of “all children with disabilities” not only to get good grades in school, but also for “employment[] and independent living” as productive citizens in their communities. It also proposes a more inclusive understanding of the phrase “child with a disability” under the IDEA to better serve the statute's expressed educational and societal goals.

Second Circuit: School District Can't Rehabilitate Inadequate IEP with Testimony that Services Beyond the IEP Would Have Been Provided

Last week, the Second Circuit decided a technical but important case about the Individuals with Disabilities Education Act and private school reimbursement.  The case, R.E. v. New York City Department of Education, involved the legal rules that apply to the following fact pattern: A school district offers a child with a disability an individualized education plan, but the child's parents reject the proposed IEP as inadequate, place the child in private school, and seek tuition reimbursement.  In the reimbursement proceeding, the parents argue that the IEP was, within its four corners, inadequate.  But the district argues that if the parents had allowed them to implement the IEP the district would have rectified the inadequacies that the plan had on paper.

The court addressed the question whether a school district can offer this sort of hypothetical or counterfactual testimony (which the court confusingly called "retrospective testimony") to rehabilitate an inadequate IEP.  The court answered that question in the negative.  The court reasoned that the IDEA gives parents a choice when presented with the IEP: accept the IEP and keep their child in public school, or unilaterally place their child in private school and seek reimbursement.  And the only way that this system can work is if parents can rely on what is in the written IEP:

In order for this system to function properly, parents must have sufficient information about the IEP to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. Under the Department’s view, a school district could create an IEP that was materially defective, causing the parents to justifiably effect a private placement, and then defeat the parents’ reimbursement claim at a Burlington/Carter hearing with evidence that effectively amends or fixes the IEP by showing that the child would, in practice, have received the missing services.

The court did say, though, that a reimbursement hearing need not be limited to the four corners of the IEP.  A school district can provide testimony "that explains or justifies the services listed in the IEP," but the court held that it cannot provide testimony "that materially alters the written plan."

Today in Misleading Headlines, Special Education Funding Edition

The headline on this story reads, "Academic success in special education not linked to spending, study finds."  But the Fordham Institute study to which the story refers finds nothing of the kind.  The study actually makes three findings:

1.  There is a great deal of variation in special education spending and staffing across school districts in the United States.

2.  In two pairs of school districts in each of five states (so ten pairs of districts total) -- pairs "chosen to illustrate the inverse relationship between special education inputs (spending) and outcomes (achievement)" (p. 11, emphasis added) -- the district with higher test scores for kids with special needs spent the same amount as or (usually) less than the district with lower test scores.

3.  If school districts across the country with above-average staffing instead staffed at the national median, they would collectively save billions of dollars.

Based on these findings, the author recommends that the federal government should end maintenance-of-effort requirements that in many circumstances prevent states and school districts from cutting special education spending. The author also recommends that Congress should preserve and strengthen the subgroup accountability provisions of No Child Left Behind, and that it should give states more flexibility in using IDEA funds. And the author recommends that local districts should employ "better teachers, not more teachers or non-teachers" (p. 34) and should better manage special education caseloads.

I have sympathy for some, though not all, of these recommendations. But the crucial point is that the study does not advance the case for them. Much less does it show that academic success in special education isn't linked to spending. The only achievement comparison the study draws is the comparison among ten pairs of districts that were specifically chosen because they were pairs of districts in which the higher-achieving district wasn't higher spending. This is a pretty blatant case of selecting on the dependent variable, and it eliminates any possibility of drawing a causal inference (e.g., that higher spending doesn't lead to higher achievement).

The study plays cute with this point. It includes a parenthetical statement that "[w]e do not imply that these relationships are causal," and that, given that the district pairs "were chosen to illustrate the inverse relationship between special education inputs (spending) and outcomes (achievement)," it's "not surprising that they did, in fact, illustrate that relationship" (p. 11). But if the study results have anything whatsoever to do with the recommendations included at the end, it must be because there is a causal relationship. Unless the study has shown that there is no connection between high spending and high achievement, it can provide no justification for policy recommendations that say districts should spend less. So the authors at least trade on the suggestion that they have shown a causal inference -- a suggestion that the Washington Post's copy desk elevated into a headline.

A real study would compare a broad portfolio of demographically diverse districts, a portfolio chosen for its representativeness of districts across the country. It would not look at 20 districts chosen precisely because they illustrate the point the author wanted to make. And, unlike the Fordham Institute study, it would attempt to control not just for differences in socioeconomic characteristics of the districts it studied but also for differences in the types and extent of the disabilities in the children served by those districts.

Read This IDEA Opinion From The Fifth Circuit

United States Circuit Judge Catharina Haynes has a terrific, must-read partial concurrence/partial dissent in an unpublished opinion her court issued last week in S.H. v. Plano Independent School District.  The case is an IDEA case that presented a very technical issue.  Basically, the parents succeeded in administrative proceedings in obtaining reimbursement for a private school placement.  But the school district had made a settlement offer before the administrative hearing.  That settlement would have awarded the parents $15,500 in reimbursement, but the parents rejected it.  The administrative hearing officer awarded $20,475 in reimbursement.  The district court, however, reduced that award to $14,625.  And because the parents ultimately recovered less than the settlement offer they had rejected, the district court denied them attorneys' fees.

A few provisions of the IDEA are relevant to the attorneys' fees question.  Title 20 U.S.C. 1415(i)(3)(D) prohibits the award of attorneys' fees "for services performed subsequent to the time of a written offer of settlement" if the relief the parents finally obtain is not as favorable as what they would have received had they accepted the offer.  But 20 U.S.C. 1414(i)(3)(E) makes an exception to that fee bar in cases in which the parent was the prevailing party (as the parents were here) and "was substantially justified in rejecting the settlement offer."  All three judges concluded that the parents had not shown that they were substantially justified in rejecting the school district's settlement offer here.  Thus, all three judges held that the district court appropriately denied attorneys' fees for work done after the offer of settlement.

As for work done before the settlement offer, the judges divided.  The majority (Judges Carolyn Dineen King and Edward Prado) concluded that the parents' rejection of the settlement offer unreasonably protracted the final resolution of the case, and thus was a basis for denying even pre-offer fees.  See 20 U.S.C. 1415(i)(3)(F)(i) (court shall reduce attorneys' fees "accordingly" when "the parent, or the parent’s attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy").  Judge Haynes argued that this was essentially double counting:

Certainly, rejecting a reasonable settlement offer is one factor that can be considered in analyzing unreasonable protraction.  But—other than in a * * * situation where the school district offers everything asked for and then some—it is not the sole factor.  * * *.  Instead, the district court should analyze unreasonable protraction in the context of the overall conduct of the litigation, including the parents' good faith, the reasonableness of the legal position taken and arguments made, participation in efforts to resolve the litigation, the issues prevailed upon, and the type and amount of relief ultimately obtained. No such analysis was conducted here.

Judge Haynes also argued that the majority improperly put the burden on the parents to show that they did not unreasonably protract the proceedings, and that even if the parents' pre-offer fees should be reduced under 1415(i)(3)(F)(i), there was no basis for denying them fees entirely.

I think Judge Haynes has the better of this argument.  But what makes this opinion a must-read is Judge Haynes's appreciation of the importance of attorneys' fees in ensuring that students with disabilities and their parents can actually realize the rights guaranteed by the IDEA.  Here are key excerpts (I've omitted a bunch of footnotes):

Faced with the challenges of raising a child with a disability, parents often depend on public educational authorities for assistance in “ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for” their child. 20 U.S.C. § 1400(c)(1). Congress intended for the IDEA to promote these outcomes, id. § 1400(d) (listing the IDEA’s purposes), and added the attorneys’ fees and related costs provisions now found in 20 U.S.C. § 1415 to increase parents’ participation in and access to the IDEA’s remedial scheme. See Handicapped Children’s Protection Act of 1986, Pub. L. No. 99-372, 100 Stat. 796 (1986) (enacting, inter alia, attorneys’ fees award provision), abrogating Smith v. Robinson, 468 U.S. 992 (1984) (holding that, because the IDEA’s predecessor statute lacked an attorneys’ fees provision, such awards could not be obtained by enforcing education-related rights through other civil rights statutes that permitted awards); cf. R. Shep Melnick, Taking Remedies Seriously: Can Courts Control Public Schools?, in From Schoolhouse to Courthouse 40 (Joshua M. Dunn & Martin R. West eds., 2009) (“Schoolhouse”) (observing that the “combination of attorneys’ fees and monetary damages significantly increased incentives for private parties to file suits” under federal civil rights statutes, fostered the development of “a private bar . . . to litigate [such] cases,” and “had the effect not just of increasing the number of cases filed but also of augmenting the political support for this enforcement mechanism”). 

As many parents unfortunately discover, the quest to procure a free appropriate public education for their child is anything but free, and it certainly is not easy. The IDEA’s complex procedural requirements and opaque, jargon- laden provisions easily could discourage even the most dedicated parents from “going it alone.” Although the IDEA provides parents a right to use attorneys or other specialized individuals in resolving special education disputes, 20 U.S.C. § 1415(h)(1), it is difficult to find—let alone afford—attorneys to take these cases, especially in those areas where such help is most needed. See Lynn M. Daggett, Special Education Attorney’s Fees, 8 U.C. Davis J. of Juvenile L. & Pol’y 1, 24-29 (2004) (noting disparity in number of IDEA disputes brought in different states, in urban vs. rural districts, and by socioeconomic status). 

Some of the children who qualify for services under the IDEA come from underprivileged families lacking in resources to pursue a complex process. See, e.g., Kelly D. Thomason, Note, The Costs of a “Free” Education, 57 Duke L.J. 457, 483-84 (2007). It nonetheless falls to such families to prove the inadequacy of a school district’s actions and to bear the cost of the experts inevitably required to make such a case. See Arlington Cent. Sch. Dist. v. Murphy, 548 U.S. 291, 293-94 (2006) (expert costs); Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 51 (2005) (IEP burden). On top of all this, although Congress intended for the IDEA to provide relatively quick resolution to special education disputes, this more than six year-old case exemplifies the tragic reality that such controversies have a tendency to mature more slowly than the children at issue. See, e.g., Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 484 (7th Cir. 2012) (ending eleven-year-old dispute over school district’s alleged systemic violations of IDEA’s “child-find” provision by decertifying class).

* * *

However inadvertently, the attorneys’ fee ruling here only further steepens an already-uphill climb parents face in this area by turning every settlement offer into a game of high-stakes poker between school districts and the parents of special-needs children. See Thomason, supra, at 484-85 (discussing the rarity of IDEA due process hearings and the minute amount of special education funds (0.3%) actually spent on IDEA disputes). In addition to cash, experts, and perseverance, parents with legitimate arguments for more benefits for their special-needs child apparently must also arm themselves with a crystal ball accurate within mere percentage points of what a “final” adjudicator might actually award. If they are wrong, either the lawyer does not get paid or the parents get saddled with a bill they likely cannot afford—providing disincentives for lawyers to take these types of cases and for parents to exercise their IDEA-given right to disagree with the school district’s provision of services in the future.