Articles in the Special Education category

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, School Boards, Special Education, Educational Research|

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: Special Education, NSBA Annual Conference 2012|

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, Wellness, Student Achievement|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, 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: Governance, Curriculum, Teachers, Week in Blogs, Special Education, Educational Research, Urban Schools, Student Achievement, Dropout Prevention, Policy Formation, Budgeting, Assessment, Discipline, American School Board Journal|

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 Law, Special Education, School Board News|

The week in blogs

stockvault_4799_20070301Fall is coming: A new season awaits. The players are bigger, stronger, tougher than ever.  It all leads, inevitably, to a critically important question: To get an edge on the competition, should you consider redshirting ……your kindergartner?

I confess to being behind the times. Because while I was aware of parents keeping their just-kindergarten-age children at home for another year of maturing, I didn’t know there was a name for it — same as the name for a standard practice at Ohio State and the University of Georgia. But there is, and you can see it right here on that encyclopedia of record for the Internet age, Wikipedia.

I mention redshirting – kindergarten redshirting – because there was a lively discussion of it on the web after USA Today reported on new research showing that children who are the youngest in their class are 60 percent more likely to be diagnosed with ADHD than the oldest. In other words, it appears that mere immaturity is being misdiagnosed as a learning disability.

A lively debate about whether parents should “redshirt” boys is summarized on Joanne Jacobs’ blog, Linking and Thinking on Education.

Want more debates? How about one on whether President Obama has, in the words of Washington Post columnist Dana Milbank, “taken the worst aspects of Bush’s No Child Left Behind law – an obsession with testing – and amplified it.” That drew immediate fire from his colleague Jay Mathews, and by John Podesta, president of the Center for American Progress.

Nothing like a few good Internet debates to liven up the Dog Days of Summer.

Lawrence Hardy, Senior Editor

Lawrence Hardy|August 20th, 2010|Categories: Governance, Special Education, Educational Research, Student Achievement, Policy Formation, Assessment, American School Board Journal|

Teacher of the Year shares his streetwise view

In his 20 years as a New York City cop, some of it serving within the gang unit, Anthony Mullen crossed the paths of area youth many times. And what he saw worried him so much he decided to pursue a second career as a teacher so that he could be at the front end of these tragic cases and hopefully change the outcomes.

But as a husband and father of three, going to school and working full-time took its toll, and after a year of doing both, he was on the verge of quitting the masters program.

“I was physically and mentally exhausted and I told my wife I can’t do this and she said, ‘Don’t make any hasty decisions, why don’t you sleep on it,'” Mullen said. “And I’m glad she did because later that night [the police station] got a call.” 

A 15-year-old girl was perched at the top of a fire escape, screaming down to a gathering crowd. Mullen raced to the scene, climbed the stairs, and squeezed through the window to join the girl on the deck.

“I remember telling this young lady she was beautiful, and she had a whole life ahead of her, and I was just about to tell her something else when she jumped,” Mullen said, who dove to catch the girl. With quick work from Mullen and  his partner, she was safely rescued–though, in truth, she rescued him, too.

“I saw her later on the street, and she was with a group of her friends, listening to music, and I realized we had each given each other something special that night … she’d given me the energy to finish my degree because I knew that’s what teaching was all about,” said Mullen, who has taught special needs students for the past nine years and was named the 2009 National Teacher of the Year.

He shared his street-level perspective and success in working with young people in crisis with a packed crowd Sunday afternoon.

For the past seven years, Mullen has worked at an alternative school in Greenwich, Conn., a school where the kids arrive angry, bitter and intent on dropping out. In fact, according to statistics, a student leaves school every 26 seconds and by the end of his session, more than 150 students will have dropped out, Mullen said.

Reversing this trend requires a paradigm shift from teachers and administrators, he said. One of the most important changes is realizing that unless the social and emotional needs of children are addressed, academic achievement will be impeded, because they are all intertwined.

“When I first started at my school, I saw nothing but chaos and behavioral problems and yet I saw teachers just handing out worksheets and I remember one teacher telling me ‘This is what [the students] want,'” Mullen said. “So I said, ‘Do you have any other tips?’ and she said, ‘Yeah, if you want three back, assign five.”

Clearly, this was just busy work and not the kind of academic intervention these kids needed, he said. Not only has that changed, but students and their parents or guardian have a meeting with teachers every six weeks.

Yet, instead of this being view as a burden or onerous, students actually look forward to these conferences because they are not structured and are meant to be enlightening instead of confrontational.

“It’s a meeting about them, and you’d be surprised what they bring up at this meeting and what they let us know … because we’ve created a safe haven,” Mullen said. “Research has shown that students don’t say they drop out because it’s too academically challenging. They tell us time and time again, they left because nobody cared, nobody paid attention to whether they showed up or not. Whether that’s real or perceived is irrelevant.”

Naomi Dillon|April 11th, 2010|Categories: Teachers, NSBA Annual Conference 2010, Special Education, Wellness, Student Achievement, School Board News|

Hot law topics include two Supreme Court cases

Several recent Supreme Court cases and Circuit Court opinions will impact school districts, NSBA General Counsel Francisco Negron said in a session today on hot law topics.

NSBA’s Office of General Counsel is following two Supreme Court cases this session—both of which will be argued on April 19.

NSBA has filed a brief in City of Ontario v. Quon, which is not a school-law case but could impact school officials’ rights on monitoring employee communications, particularly in the emerging area of electronic communications. The case centers on a city’s action to search employees’ pagers for text messages, where a search of one employee’s device showed numerous sexually explicit and personal messages.

District officials need the authority to search work-issued electronic devices in certain cases, given that the information could impact students’ education environments and safety.

“We want the Court to understand the realities of the school district workplace,” Negron said.

NSBA also is supporting Hastings College of Law, in San Francisco, which withheld recognition to a Christian student group that denies full voting membership to homosexuals, nonbelievers, and others whom the group says follow “a sexually immoral lifestyle.” NSBA’s brief states that Hastings’ law school did not violate the group’s First Amendment rights.

The case impacts school districts because they need the authority to regulate student groups and extracurricular activities, as those are integral to K-12 education, NSBA says.

The 5th U.S. Circuit Court of Appeals recently reversed a lower court decision on the topic of special education attorney fees. In El Paso Independent School District v. Richard R., the school district agreed to provide a student with Attention Deficit/Hyperactivity Disorder additional services to end a lawsuit brought by the student and his family. However, the student continued the lawsuit to obtain a court judgment for the services and wanted the school district to pay his attorney fees.

After an initial ruling that said the student’s demand was acceptable because a “private settlement” would not be enforceable in state and federal courts, the 5th Circuit ruled that the student had violated the Individuals with Disabilities Education Act, which favors cooperative and early resolution of disputes, by prolonging the lawsuit.

“This was a good decision,” Negron said.

Another decision by the 9th U.S. Circuit Court of Appeals reaffirmed a Washington school district’s rights to ban religious songs during school ceremonies after a student asked to perform Ave Maria at a high school graduation. The decision concluded that the school’s prohibition against the performance as part of its effort to keep all musical performances at graduation entirely secular was reasonable and did not violate the Establishment Clause.

Negron also spoke on the recently announced retirement of Supreme Court Justice John Paul Stevens. The Obama administration will certainly replace Stevens with a like-minded, liberal leaning justice, who would not significantly alter composition of the court, he said.

But what’s more likely to impact the court is the fact that Stevens, who was appointed by President Ford in 1975, was the most senior-level justice and was instrumental in writing opinions or choosing the justice to write the opinion.

Joetta Sack-Min|April 10th, 2010|Categories: School Law, NSBA Annual Conference 2010, Special Education, School Board News|

Use of restraint and seclusion questioned

It’s not an easy topic to discuss, but the use of physical restraints or seclusion to control or discipline violent students with disabilities is an issue that school districts and their legal staff must plan proactively.

That was the advice of a panel of lawyers and special education experts who presented a workshop for members of NSBA’s Council of School Attorneys today.

“This is increasingly a very important and timely issue—there are incidents every day throughout the country,” said Edward Sullivan, a partner with the Baker & Daniels law firm in South Bend, Ind. He added, “There are high costs to failing to do it right, certainly the costs on students and families, their relationships with schools, public relations with the community, staff morale, and the costs of litigation.”

Last year, a report by the federal General Accounting Office found hundreds of cases where students with disabilities were injured, emotionally traumatized, or in a handful of instances, killed while being improperly restrained by teachers or other school staff. The report provoked U.S. Secretary of Education Arne Duncan and federal lawmakers to call for more monitoring of these incidents.

Sullivan noted that research and data show that intensive restraint holds and seclusion rooms do not work. Instead, teachers and staff should focus on using restraints only in emergency situations, if the student or classmates and staff may be injured.

Legislation passed in the U.S. House of Representatives and under consideration in the Senate would alter school officials’ rights to prescribe a restraint within a students’ individualized education plan. Currently, courts have tended to protect school officials from legal actions by parents and students if the IEP includes such means.

With an IEP, schools have assurance that the parent or guardian would allow the disciplinary actions and that the teacher would have training in performing a restraint, added Mary Jo Dare, a senior advisor at B&D Consulting and former special education director.

The bill, which passed the House after several emotionally charged hearings, would state that restraints can be used only if a student or peers were in imminent danger of physical injury and if less intrusive means would not work. It also would ban mechanical devices and require school staff to be trained in proper methods of restraint and prevention. Although NSBA is supporting the bill, which also has been endorsed by a long list of education, civil rights, and disability groups, there are concerns about the IEP provisions as well as funding for the new data and training requirements.

One issue, Dare said, is that currently “99 percent of training is on how to avoid the need for restraints.” Instead, school officials should look at positive behavioral supports that impact the entire school culture.

Such supports “help eliminate a large percentage of discipline issues,” she said. Those make sure schools know how to analyze behavior, and will be better to understand the root of the problem and respond with a less intrusive support.

Read more on the issue of restraints and seclusion in special education in the March issue of American School Board Journal.

Joetta Sack-Min|April 9th, 2010|Categories: School Law, NSBA Annual Conference 2010, Special Education, Student Achievement, School Board News|
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