Articles in the Special Education category

Court rules private school student is not eligible for Section 504 services

The U.S. Court of Appeals for the Fourth Circuit has ruled that a disabled student unilaterally placed in a private school is not entitled to special education services under Section 504 of the Rehabilitation Act if he remains in the private school.

The National School Boards Association (NSBA), joined by its Maryland and Virginia state associations, filed an amicus brief in the case, D.L. v. Baltimore City Board of School Commissioners, asking the court not to expand the law, commonly known as Section 504, to require public schools to fund the education of students in private schools beyond the parameters of the Individuals with Disabilities Education Act (IDEA), the nation’s main special education law. The January 16 ruling will impact public schools in the Fourth Circuit, which includes Virginia, Maryland, West Virginia, North Carolina and South Carolina.

“The court recognized that Section 504 does not obligate school districts to pay for special education and related services for students enrolled unilaterally in private schools by their parents,” said NSBA General Counsel Francisco M. Negrón, Jr. “This decision supports Congress’ intent that federal funds for special education and related services be reserved primarily for students enrolled in public schools.”

The case centered on a student with ADHD whose parents requested an evaluation for special education services from the Baltimore City school district. The school officials determined the student would be eligible for Section 504 services based on his disabilities but only if he attended a public school.

The three-judge panel also upheld the school district’s requirement that private school students must enroll in a public school to obtain Section 504 services. The decision stated that the district’s rule “does not violate the Free Exercise Clause merely because it causes economic disadvantage on individuals who choose to practice their religion in a specific manner,” according to NSBA’s Legal Clips.

For more details on the case, read the article in Legal Clips.

 

Joetta Sack-Min|January 23rd, 2013|Categories: Council of School Attorneys, School Law, Special Education|Tags: , , |

NYSSBA applauds veto of special education placement bill

New York Gov. Andrew Cuomo has vetoed legislation that would have required school officials to consider a special education students’ home life and cultural backgrounds when making educational placements. The bill would have given parents more power to demand a publicly funded private education for their children with disabilities.

The New York State School Boards Association (NYSSBA), other education groups, and New York City Mayor Michael Bloomberg had opposed the bill, which likely would have resulted in more placements in religious schools.

NYSSBA Executive Director Timothy Kremer released a statement praising the veto:

“The bill would have made a child’s cultural and family background a factor in special education placements, thereby promoting religious segregation in special education placements at taxpayer expense.  This result is contrary to the pluralistic values upon which our public education system was established,” he said. “Although we respect the personal choices that parents make to raise their children in accordance with their faith and culture, it would have been wrong to obligate taxpayers to pay for these private choices.”

The National School Boards Association (NSBA) sent a letter to Cuomo urging him to veto the bill. NSBA noted that the Individuals with Disabilities Education Act (IDEA), the main federal special education law, includes provisions for addressing issues related to cultural and religious differences during the placement determination stage and it allows parents to petition school districts for private placements. Adding another legal layer to these proceedings would delay a placement and could increase legal costs for both parents and school districts, according to NSBA.

“This expansion of the educational placement process could create a situation where such decisions become subjective in nature rather than being based on educational outcomes, actual data reflecting a student’s present levels of performance, and the spirit and intent of the IDEA and Section 504,” wrote Michael A. Resnick, NSBA’s associate executive director for federal advocacy and public policy. “Further, such expansions could have the unintended consequences of promoting school vouchers, preferences toward certain private and parochial schools, and the promotion of segregated schools on the basis of economic status or family income – all irrelevant to appropriate special education placement determinations.”

According to The New York Times, Cuomo said in a memo that the bill “would have created ‘an overly broad and ambiguous mandate’ to send more students to private schools, burdening taxpayers with ‘incalculable significant additional costs.’”

 

 

Joetta Sack-Min|August 3rd, 2012|Categories: Diversity, Educational Finance, Educational Legislation, Federal Advocacy, Religion, School Vouchers, Special Education|Tags: , , |

NSBA: Fordham survey misses the mark on school funding

The National School Boards Association Executive Director Anne L. Bryant was asked to comment on a new survey by the Thomas B. Fordham Foundation that shows how members of the public would cut funding for public schools. The survey found that many would prefer to downsize the ranks of administrative staff rather than teachers, freeze teacher salaries, or lay off teachers based on factors other than seniority. Bryant’s response is below.

Looking at the new Thomas B. Fordham Foundation’s survey, “How Americans Would Slim Down Public Education,” it’s abundantly clear that Americans are interested, engaged and supportive of their local schools. There is also an overriding sense that many of these hard choices must be made at the local level with a community’s input–thus showing clear evidence for the need for local school boards.

The authors have created a scenario of choosing between critical programs and staff for public schools—choices such as laying off teachers, instructional leaders, arts and music classes and extracurricular activities. However, this survey is about four years late–many public schools are already operating on a bare-bones administration and have been forced to make tough choices to lay off teachers and cut academic programs. And with the federal government looking to implement sequestration this January, K-12 programs may see further across-the-board cuts.

While reducing the number of administrators seems like the obvious answer, as 69 percent of respondents chose, many of these officials play key roles in developing curriculum, managing services, and performing other duties that are directly tied to student achievement. Like any business, school districts need officials to manage budgets and operations to ensure that students are safe and teachers and principals can focus on their jobs.

The public sent a clear message that they prefer forgoing raises or slight salary cuts for teachers and other staff in lieu of layoffs. We’ve seen many examples of school boards, administrators and union representatives working together to navigate these budget choices. For instance, school board members and officials in the Boone County Public Schools in Florence, Ky., worked with their teachers union on a plan to forgo raises in lieu of layoffs, so that student/teacher ratios could be maintained. The labor-management relationship “is truly a relationship built on trust, accountability and respect,” as school board member and current President of the National School Boards Association (NSBA) C. Ed Massey recently told me, and the board has brought in coaches to help all teachers improve their skills. That’s an investment that has paid off in continuous improvement in student learning and college and career readiness, as evidenced by average ACT scores that have climbed from 19.5 in 2008 to 20.9 in 2012.

Fordham should not be at all surprised at the tepid response for full-time cyber schools, as too many at-risk students are performing poorly, or simply not logging in. The Center for Public Education found in its recent report, “Searching for the Reality of Virtual Schools,”  that emerging research shows dismal results for some schools and there is little accountability for public funds.

One aspect of the survey is particularly flawed. The questions related to support for special education services show that, among other findings, 71 percent say programs should be evaluated on their effectiveness and “replaced” if deemed not effective.

The survey questions ignore the landmark 1975 Individuals with Disabilities Education Act (IDEA)  law that mandates a “free appropriate public education” in “the least restrictive environment” for every student identified with a disability. This was a major victory for students with disabilities who previously had been denied an education or received inferior services. Since the law’s passage the numbers of students with disabilities have increased tremendously, largely because of better diagnoses of conditions such as autism and in part because better medical treatments have allowed some severely disabled students to live and attend mainstream schools. More recent reauthorizations of the law have instilled new accountability requirements onto school systems to ensure that students with disabilities are meeting high expectations.

Yet the federal government has never come close to funding the 40 percent of excess costs for educating these students as lawmakers had promised in 1975. Each year NSBA and thousands of school board members and educators lobby the U.S. Congress to request full funding; however, funding currently stands at $11.5 billion, or about 17 percent, and is in danger of being reduced by $900 million through sequestration. This program has been a priority of both parties, as it frees up state and local funding to be spent on programs that each community deems to be its priorities.

A strong public education system attracts and retains businesses that are essential to local economies. Public schools must have the resources to give our students the knowledge and skills needed for long-term global competitiveness. Our nation’s future economic success depends on how smartly and adequately all levels of government invest in public education today.

Erin Walsh|August 2nd, 2012|Categories: Educational Finance, NSBA Opinions and Analysis, School Boards, Special Education, Teachers|Tags: , , , , , |

More flexibility needed in bill regulating use of restraints on students, NSBA tells Senate

The National School Boards Association (NSBA) is asking for more flexibility for local school officials in a bill designed to prevent the improper use of restraints and seclusion to manage students with disabilities.

In testimony submitted in anticipation of a hearing on July 12, NSBA is asking the U.S. Senate Committee on Health, Education, Labor, and Pensions to reconsider portions of the Keeping All Students Safe Act (S. 2020). The bill, which is supported by many special education and disability rights advocates, would ban certain types of restraints and require school districts to report incidents to the U.S. Department of Education.

“Local school boards want to be assured that federal legislation addressing the use of restraints and seclusion provides maximum flexibility and authority to states and local school boards in its implementation,” reads NSBA’s testimony.

NSBA asks that any requirements for teacher and staff training and certification “be structured in a manner that is reasonable, affordable and effective,” and that Congress ensures that data collecting and reporting requirements are minimized, given the limited capacity of school districts and the U.S. Department of Education to collect and analyze such data.

The testimony asks for specific changes to the bill, including:

  • Remove or rewrite the threshold for restraints, based on the definition of serious bodily injury adopted by IDEA in 2004, which is not feasible in emergencies and takes away other opportunities to train staff and prepare for its use;
  • Modify the requirement for a debriefing session within five days, as this is burdensome and costly to schools and would create conditions well beyond the control of the school. NSBA recommends that personnel should be allowed to submit information verbally, in writing and electronically since all parties may not be able to physically participate;
  • Ensure that the bill allows flexibility to address unanticipated threats to students’ safety;
  • Remove a stipulation that prohibits any reference to the use of physical restraints into a student’s education plan; and
  • Allow states that have successfully created policies dealing with restraints and seclusion to be exempt from new federal mandates.

The bill was introduced in December but its chance of passage seems unlikely, given its lack of progress in the House and the lack of time remaining in Congress in an election year.

Joetta Sack-Min|June 27th, 2012|Categories: Crisis Management, Discipline, Educational Legislation, Legislative advocacy, Policy Formation, School Climate, School Security, Special Education|Tags: , , , |

Response to Intervention program wins Kentucky’s PEAK Award

Kentucky’s Boone County school district received the Public Education Achieves in Kentucky (PEAK) Award on April 30 for its Response to Intervention (RTI) program. Boone County is the home district of NSBA President C. Ed Massey.

The PEAK Award, which is given twice a year by the Kentucky School Boards Association, honors outstanding programs that enhance students’ learning and promote the positive impact of public education.

Boone County’s RTI program, which began in 2007, focuses on keeping students in regular classrooms while using individualized, research-based instructions and interventions to help them overcome reading and math deficits. Students’ progress is monitored weekly and teachers use that data to make instruction decisions. Since the program has expanded to all of Boone County’s schools, the district reports that its special education referrals are down 99 percent.

“Intervention is very important as soon as a student’s needs are determined,” said PEAK judge Gene Allen, a member of the East Bernstadt Independent school board. “This helps at-risk children keep up in their studies, preventing them from being identified for special education services. This will save school systems a great deal of expense with their future education.”

Every six weeks, the grade-level professional learning teams meet and look at student progress. “If students continue to make progress, they continue with the same interventions,” said Karen Cheser, Boone County’s assistant superintendent for learning support services. “If they aren’t, the team does some data-driven decision making and says, ‘This student needs a different intervention or more time in intervention’ … always thinking we want the least restrictive environment.”

She added, “There are students with disabilities who need extreme special education services and they will continue to get them. The key difference with this program is the constant monitoring. We’re keeping a really close eye on if the intervention is working. We have a really tight list of research-based interventions. There has to be scientific evidence to support the use of that particular intervention with that particular type student.”

Boone County leaders used existing resources to build the program, as there was no new funding available.

KSBA accepts PEAK Award nominations from Kentucky’s public school systems twice a year and recognizes one outstanding program in the fall and in the spring.

 

Joetta Sack-Min|May 1st, 2012|Categories: Curriculum, Educational Research, School Boards, Special Education|

Annual conference preview: Attorney discusses special ed liability

As NSBA prepares for its 73rd Annual Conference in Boston, April 21-23, School Board News Today is featuring previews of major and noteworthy sessions, workshops, and other events. We’ll query some familiar names and introduce you to behind-the-scenes experts who can show how to best perform your duties.

Special education law is one of the most complicated and confusing issues school boards must handle. On Saturday, April 21, Jim Walsh, an attorney with Walsh, Anderson, Gallegos, Green & Treviño, P.C., based in Texas, will present “Avoiding Liability in Special Education Disputes: Lessons for School Board Members,” which will analyze the most recent and relevant decisions pertaining to school boards and districts.

Walsh says school board members should attend his session because, “legal issues in the operation of your school’s special education program continue to multiply.  Litigation over special education issues has become common, raising costs and concerns for school board members. This session will outline the key features of special education law that school board members need to know about, with an emphasis on preventive steps to be taken.  The best way to keep costs and legal concerns under control is to operate a program that complies with the law.  This session will focus in what school board members can do to make sure that happens.”

Question: What has changed?  Are school board members being held liable in more cases?

Answer: Litigation over special education these days usually involves not only the Individuals with Disabilities Education Act, our special education law, but also Section 504 and the Americans with Disabilities Act.  These other laws open the door to damages that are not available under IDEA.  School board members as individuals are generally not sued personally or held liable over special education disputes, but there is a noticeable increase in litigation seeking to impose liability on individual administrators or teachers.

Q: What are some basic rules school boards should follow to avoid litigation?

A: The rules to be followed with regard to special education are no different than the rules that apply to other areas of school operations. Schools need to hire good people, train them well, follow the law, and get early and preventive legal advice.

Q: What are some major new decisions that could impact school board members’ work?

A: There are many cases over the past few years alleging that the school district harmed a child through the use of physical restraint, or that the school turned a blind eye to the bullying of a student with a disability.  These issues have generated considerable media attention and raised awareness of these issues.

If you haven’t already registered for NSBA’s 2012 Annual Conference, to be held April 21 to 23, go to the Conference website for more details.

 

 

Joetta Sack-Min|March 7th, 2012|Categories: NSBA Annual Conference 2012, Special Education|

Law gives schools flexibility on location of special services, NSBA says

Federal law requires school districts to provide students with disabilities a free appropriate public education, but it is up to the district to decide where that requirement can best be met, NSBA and the Kentucky School Boards Association (KSBA) said in a brief filed for R.K. v. Board of Education of Scott County, Kentucky recently in the 6th U.S. Circuit Court of Appeals.

The case was initiated in 2009, when “R.K,” a student with Type I diabetes, was in kindergartener in Scott County, Ky. Initially, R.K. needed insulin injections during the school day, but later he began using an insulin pump that required accurate input of certain dietary information.

The NSBA-KSBA brief noted that the Kentucky Board of Nursing had advised schools not to delegate the responsibility for monitoring insulin pumps to other staff. With this recommendation in mind, the district told R. K.’s parents that he could attend one of two elementary with onsite nurses. However, the parents said the district had an obligation to educate R.K. at his neighborhood school, and sued.

A district court judge ruled in June that R.K. had no “absolute right” to attend his neighborhood school, and the parents appealed the decision to the 6th Circuit.

The NBSA-KSBA brief says there is a fundamental difference between an “educational placement” decision, concerning the types of services and supports offered to a student, and the “physical location” where those services are provided.

Section 504 of the Rehabilitation Act of 1973 (Section 504) requires that students be educated in “the least restrictive environment,” the brief says. However, in the Kentucky case, NSBA and KSBA said, “the student does not allege he has been removed from education with his non-disabled peers; his sole allegation is that he was denied assignment to his neighborhood school.”

NSBA General Counsel Francisco M. Negrón Jr. said Section 504 does not require districts to educate children with disabilities in their neighborhood school.

“The court should not read into Section 504 a requirement that a school district be required to provide all disability-related services to students in their neighborhood schools,” Negrón said.

“In addition to minimizing the role of the individualized education program staffing process, such a ruling could needlessly increase costs by minimizing the flexibility of school districts in managing limited resources.”

NSBA Executive Director Anne L. Bryant said a decision against the school district threatens the “common practice of deploying the districts’ resources in a many that is both fiscally responsible and educationally sound.”

Lawrence Hardy|October 20th, 2011|Categories: School Law, Special Education, Student Achievement, Wellness|Tags: , , , , , , , , , |

Analysis: NBC learned its lesson with this Education Nation

Glenn Cook, American School Board Journal’s editor-in-chief, attended NBC’s Education Nation summit in New York for the second straight year. Here are his observations.

You can’t blame traditional public school advocates if they were filled with dread when NBC announced that Education Nation would return this fall. Last year the network bought into the hype surrounding the documentary “Waiting for Superman,” inexplicably tying the event to a flawed film that exhorted charters as the pancea for public education’s ills.

Thankfully, NBC has learned its lesson. This year’s event took pains to correct past wrongs as it recognized the complexities school leaders face in managing a public system that is open to all.

Starting with a screening of “American Teacher,” a documentary that helped erase some of the “bad teachers” taste left by “Superman,” and ending with an appearance by former President Bill Clinton, Education Nation featured a strong balance of heavy hitters from education, philanthropy, and politics.

You also had a touch of celebrity — basketball player Lebron James, actress Jennifer Garner, and what amounted to a family reunion with former Gov. Jeb Bush and First Lady Laura Bush participating in sessions — but in this case, it fit the overall tone.

The key word here is balance. Last year’s programming was flawed because it exhorted simple antidotes to complex problems. This year, silver bullets were nowhere to be found, but calls for more effective teaching and improvements to early education were.

You can watch many of the sessions online at www.educationnation.com, but here is my list of highlights:

• Start with “Brain Power: Why Early Learning Matters,” a fascinating hour-long session featuring Nancy Snyderman, NBC’s chief medical editor, and three university professors. Held on Monday morning, it was the best, most concise presentation I’ve seen yet on why we need to reach children much, much earlier than we do.

• The dramatic rise in poverty rates was a focus throughout, especially in the session “What’s in a Zip Code?” moderated by Brian Williams. Poverty is reality for many people in today’s economy — Clinton was eloquent on this topic in the closing session — and communities must come together to do more.

• Education Secretary Arne Duncan was everywhere this year, participating in interviews with Tom Brokaw and responding to questions during various panels (a nice touch).

• We saw an entertaining back and forth between Geoffrey Canada, founder of the Harlem Children’s Zone and Diane Ravitch, author and professor of education at New York University. Their approaches are so different, but both made excellent points. Canada and Sal Khan, another Education Nation speaker, are scheduled to keynote NSBA’s 2012 Annual Conference.

• Teacher and student accountability, as you might expect, was a recurring theme. Michelle Shearer, the current National Teacher of the Year from Maryland’s Urbana High School, said teachers “want to be evaluated on things that really matter.”

“There are all sorts of different ways of looking at student growth,” she said. “Whatever evaluation looks like in the end, it has to be a system of multiple measures, because often what’s most important are those intangibles … that are tough to put on a check list.”

• At the same session, Khaatim El, a former member of the Atlanta school board, addressed the cheating scandal that has plagued the district he served for almost a decade. “We wanted to be the hype,” he said of the allegations, which are based on the state assessments. “We wanted to be the first to get it right so bad.”

But El noted the district also made huge gains in NAEP scores during that time, an achievement untouched but overshadowed by the scandal. “I would be remiss if I didn’t point to the hard work that many educators put in,” he said. “We focused on the basics. Literacy instruction in elementary school. Autonomy for principals. We invested in professional development. Those things were overshadowed by the cheating scandal. And they were good things for kids.”

The setting for Education Nation was not perfect — the big tent in Rockefeller Plaza is a good idea in theory, but the humidity and poor audio were ever-present distractions. And while this year’s session was far more substantive, future years should stop belaboring the problems and focus instead on how to solve them. Panels featuring districts that have been successful at “what works,” with ideas and content that are easily imitated and replicated, would be a valuable start.

Chances are good that will happen. The National School Boards Association (NSBA) had a strong presence in the planning and execution of the meeting. Anne L. Bryant, our executive director, met with NBC officials about the content and answered audience questions in a video Q&A format prior to the event. Mary Broderick, NSBA’s president, was featured in a panel session with the mayors of Albuquerque, Baltimore, and Newark.

“What we’ve heard from the last two days of this conference is that we need to come together around a sense of urgency,” Broderick said during her session, noting that it takes a shared vision between the school board, the mayor’s office, and the community. “The vision needs to be of excellence. If that cohesive message can be carried through our schools … there’s nothing off the table.”

The week in blogs

This week, education researcher Richard Rothstein takes Bill Gates to task for claiming in a recent Washington Post column on teacher development that student achievement has remained “virtually flat” in recent decades while per-student costs have “more than doubled.”

 Looking at NAEP tests since 1980 and 1990, Rothstein concludes that “American students have improved substantially, in some cases phenomenally.” As far as a doubling of K12 funding is concerned, yes that’s true, he adds, but the statistic begs to be qualified.

“The biggest single recipient of new money has been special education for children with disabilities,” Rothstein writes. “Four decades ago, special education consumed less than 4 percent of all K12 spending. It now consumes 21 percent.”

What can high schools do to help community colleges and their astronomical drop-out rates? Blogger Dana Goldstein offers a thoughtful analysis.

 ”Why are people dropping out of community colleges en masse?” Goldstein asks. “In part, it’s the frustration of being academically under-prepared and thus being forced to pay tuition for credit-less remediation classes. But national surveys of community college drop-outs find that the most cited reasons for leaving school are work and family responsibilities.”

(Thanks to Joanne Jacobs for leading us to Goldstein’s commentary.)

Recent stories in the Washington Post have questioned zero tolerance policies in the Fairfax County (Va.) Public Schools. Read a sobering post by the Post’s Valerie Strauss on common myths about zero tolerance’s effectiveness.

 Lawrence Hardy, Senior Editor

Lawrence Hardy|March 11th, 2011|Categories: American School Board Journal, Assessment, Budgeting, Curriculum, Discipline, Dropout Prevention, Educational Research, Governance, Policy Formation, Special Education, Student Achievement, Teachers, Urban Schools, Week in Blogs|

NSBA asks court to support IDEA hearing process

NSBA has filed an amicus brief asking the 9th U.S. Circuit Court of Appeals to ensure that parents of students with disabilities should try to resolve disputes about educational issues through a hearing process established by the  main federal special education law before filing a lawsuit.

The case, Payne v. Peninsula School District, involves a student with autism whose individualized education program, or IEP, included the use of a “safe room” to address some of his behavioral difficulties. The child’s mother accused a teacher at his school of mistreating her son by improperly utilizing this behavioral intervention method. Rather than first using the hearing process outlined in the Individuals with Disabilities Education Act to resolve her dispute, the mother filed a federal lawsuit claiming the teacher’s use of the “safe room” caused her son psychological damage and violated his rights under the IDEA and the U.S. Constitution.

A lower court ruled, and a three-judge panel agreed, that the mother did not have the right to bring her claim to court because she had failed to exhaust her administrative remedies under IDEA. The 9th Circuit is scheduled to review the case in December.

“Since IDEA’s passage, some parents have preferred to prematurely litigate cases involving students with disabilities instead of first following the IDEA requirements before going to court,” said NSBA’s General Counsel Francisco M. Negrón Jr. “School districts nationally have an interest in seeing that educational matters are resolved as early and as quickly as possible. This avoids costly and prolonged litigation that drains resources away from the classroom and unnecessarily delays delivery of appropriate services to students with disabilities.”

The use of seclusion to discipline or calm students with disabilities has been a point of controversy in the education community in recent years, and Rep. George Miller, chairman of the House Education and Labor Committee, has pushed for a new law requiring states to strictly monitor and limit the use of seclusion and restraints for students with disabilities. Although that issue has been a factor in the case, NSBA’s brief notes that, first, the mother agreed to the safe room provision in the IEP, and second, she did not follow the IDEA’s intent to avoid lengthy and costly lawsuits stemming from disagreements on a behavioral intervention plan.

Joetta Sack-Min|October 15th, 2010|Categories: School Board News, School Law, Special Education|
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