Collier County Schools accused of refusing high school education to immigrant children

Federal District Court – Middle District of Florida – Fort Myers Division
LESLY METHELUS, ROSALBA ORTIZ, ZOILA LORENZO, ANGE MARIE
JOSEPH, EMILE ANTOINE and LUCENIE HILAIRE DUROSIER, on
behalf of Y.M., a minor, on behalf of themselves and all others similarly
situated
                                                                  Plaintiffs,
v.
                                                                                                 Case No: 2:16 – cv – 379 FtM – 38MRM
THE SCHOOL BOARD OF COLLIER
COUNTY, FLORIDA and KAMELA
PATTON,
                                                                    Defendants,

Okay, I know that this does not related to special education, but those who care about our educational system should be concerned about this.  According to the complaint Collier County refused enrollment in high school to several newly arrived immigrants from Haiti and Guatemala, aged 16, 17, and 18 years old.  “School officials gave like reasons for denying  enrollment – age, lack of English proficiency, insufficient academic credits, and/or ineligible to attend high school.” …  “[N]one of Plaintiff Children were assessed for English language proficiency or academic achievement before being denied enrollment.”  The court noted that these children were simply turned away and they were not directed to other educational programs or opportunities.  The parents based their legal challenge on the Equal Educational Opportunities Act of 1974.  The defendant school district then moved for dismissal of the complaint on the grounds that plaintiff’s complaint did not state or alleged grounds for which there is a remedy at law.  The order being discussed here is the court’s order denying the defendant’s motion for dismissal.

The school district apparently based its exclusion of these students on the basis of a school board policy which excluded young people who had attained the age of 19 years or who could not if younger earn sufficient credits to graduate before the year of their 19th birthday.

In its analysis, the court noted that “[t]he Florida Constitution guarantees a free public school education to all children residing within its borders. 4 Fla. Const. art. IX, § 1(a). It states that “[t]he education ofchildren is a fundamental value of the people of the State. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children in the State.” Id.; see also Scavella v. Sch. Bd. of Dade Cty., 363 So. 2d 1095, 1098 (Fla. 1978) (“The clear implication is that all Florida residents have the right to attend this public school system for free.”).”  Although the defendant school district tried to argue that the right to education ended at 16 (when a child may withdraw from school), the court held that when a child does not “withdraw” from school then the child has a right to an education up to graduation or at least to the age of majority.
Furthermore, the court noted that “Florida also guarantees free public education to all students regardless of their national origin.  See Fla. Stat. § 1000.05(2)(c). No person may be “excluded from participating in, denied the benefits of, or be subjected to discrimination under any public K – 20 education program” by a public school receiving federal or state financial assistance.  Florida Statutes § 1000.05(2)(a)  Additionally, Florida Statutes provided that “School officials must identify and assess suspected ELL students to determine whether, and to what extent, they require language support.  Id. §1003.56(1)(“Instruction in the English language shall be provided to limited English proficient students. Such instruction shall be designed to develop the student’s mastery of the four language skills, including listening, speaking, reading, and writing, as rapidly as possible.”). Each school board must implement procedures regardinglimited English

proficient students that include, among other things,
  • identifying limited English proficient students through assessment;
  • providing limited English proficient students ESOL instruction in English and ESOL instruction or home language instruction in the basic subject areas of reading, math, science, social studies, and computer literacy; and
  • providing equal access to other programs for eligible limited English proficient students based on need.
Fla. Stat. § 1003.56(3)
It appears that the district’s defense is based primarily upon what is known as the “Home rule” principal found in the Florida Constitution, which places the authority to create policies for the provision of education within the hands of local school districts.  That argument did not, however, find any favor with the Court.  The court held
“[i]n short, although school boards possess a variant of home rule powers that
provide them a broad grant of authority to act for educational purposes, that power is not limitless. The Florida Constitution and general laws like the FEEA, EEOA, and Title VI
limit it. See Fla. Sat. § 1001.32(2) (permitting school boards to “exercise any power except as expressly prohibited by the State Constitution or general law”); id. § 1001.32(1) (“[A]ctions of district school officials shall be consistent and in harmony with state laws Case 2:16-cv-00379-SPC-MRM Document 62 Filed 03/17/17 Page 11 of 29 Page ID 589

12 and with rules and minimum standards of the state board”).  Thus, home rule does not permit Defendants to promulgate policies inconsistent with federal and state law.
It is important to note that this decision is not a final ruling in the sense that it only relates to the school district’s motion to dismiss the complaint.  There must be a hearing/trial wherein the court will determine the pertinent facts of the case.  Still, after reading this decision, I would not want to be the school district going forward.  The court seems clear in its opinion that if the Plaintiffs (parents) are able to prove the essential facts of the case, the law very strongly supports their complaint.
This is a long opinion and the court goes on to discuss a number of other legal arguments on both sides of the issues.  It is worthwhile to read the entire decision.  I will place this decision of SELA’s website and will provide notice of when it is posted on Facebook and on this blog.
Even though this case does not relate specifically to special education, I feel that it is important that we have an understanding of the educational legal disputes arising around the state.  For those who are frustrated and even angry with school districts who will sometimes go to great lengths in order to avoid their responsibilities under the law, this case shows that these type of issues sometimes arise under regular education, as well.  If one thinks of the amount of money the school district must pay to legally defend its unconscionable behaviors, as well as the parent attorney fees that the school must reimburse when they lose this cause, imagine how much valuable education could have been provided to these innocent children.
Kudos to the Southern Poverty Legal Center for standing up for this kids!
Please comment or ask questions relative to this.

Endrew F. v. Douglas County School District

We started off this year worried about this Supreme Court, fearing that it was not going to protect the right of children with disabilities.  So far, however, the Supreme Court has dealt with two educational disabilities cases and has, both times, come down on the side of students.  The Council of Parent Attorneys, and Advocates (COPAA) filed amicus briefs (friend of the court briefs) in both of these cases.

Wednesday, (03/22/17) the Supreme Court came down with its decision in the Endrew F. case.  We were all watching this case carefully, because the Court was reviewing the standard for determining what is a “Free and Appropriate Public Education (FAPE).  This case is vital to parents and advocates working to improve educational opportunities for children with disabilities.  Whenever we are litigating cases under the Individuals with Disabilities Education Act (IDEA), the judges are essentially trying to determine whether the school district has provided the child with FAPE.

This leads to the question:  “What is FAPE?”  Since the first edition of IDEA was passed, originally called the “Education of all Handicapped Children Act,” in 1975, the courts have been trying to define that question, what is FAPE?   Unfortunately, it sometimes seemed that the courts were trying to determine the “lowest common denominator.”  The least amount of education schools could get away with providing and still be considered to be providing FAPE.  They continually argued that they were required only to provide a basic threshold of education.

In its amicus brief, COPAA argued that courts could only determine whether a school district has met the FAPE requirements of the IDEA is to carefully analyze the fact to determine whether the school district has, indeed, complied with “all of the substantive obligations” found in the IDEA.  Particularly noted in the specifics of the Endrew F. case is the fact that an educational program, which might seem reasonable in its creation, may not in the analysis of the program actually be effective for the unique child.  When there is a lack of adequate progress, the school district has an obligation to make adjustments and, if necessary change the IEP goals and/or services in order to assure an IEP where the child is making meaningful progress.

Endrew F. v. Douglas County School District says that: “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Some children with disabilities will advance from grade to grade progressing smoothly through the general education curriculum. For those who cannot, their educational programs must be ‘appropriately ambitious.’ Their “goals may differ, but every child should have the chance to meet challenging objectives.”

So as to not be misunderstood as to what it considered to be adequate or meaningful progress, the Court noted that for children with disabilities who are being educated in the general education classroom in the regular education curriculum, the IDEA normally expects the student to be able to advance from grade to grade, with the class.  Recognizing that some students, due to their particular deficits or limitations, are being educated in a “modified” educational curriculum, the Court discussed the progress expected for these students.  The Court noted:

A child’s IEP need not aim for grade-level advancement if that is not a reasonable prospect. But that child’s educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.

In the past lower courts have pretty much stumbled around trying to determine some standard to apply in such cases.  Courts calling for a bare threshold of educational offering, played with the extremely vague concept of something more than “de minimis” progress. Some courts have been more daring using words like “meaningful,” “effective,” “reasonable,” but these concepts proved difficult to nail down.

The Endrew F. Court in its unanimous decision made it clear that for those educated in a modified general education curriculum, a school CANNOT meet its IDEA requirements by planning for “barely more than de minimis progress.”  As COPAA has noted, “That is because when all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.”

The Endrew F. case does not mean the end of litigation.  You can be sure that school districts will still try to prove that the child was simply unable to progress due to the child’s deficits.  The important thing is that schools can no longer hide behind a minimum threshold of educational opportunity standard.  We will have to see how this is sculpted in future cases, but I do not think it would be unreasonable to argue that once the parents have demonstrated a lack of meaningful progress against goals that were designed for the child’s unique needs, then the school district is going to be put in the spot of having to explain the lack of progress.

That said, the three rules of school district positions where a child fails to make adequate progress probably still apply.  (1) First, you blame the child; (2) Second, you blame the parents; (3) Third, you never, never, ever blame the school.

Resources in Social and Racial Equity

Folks,

One of the most glaring weaknesses in the special education advocacy field is the lack of social, ethnic, and racial diversity.  I do not believe that there is any wrong-meaning intent in this state of affairs, but it is the nature of our social and ethnic isolation in this society.  All this means, however, is that we must make a concerted and intentional effort to broaden our outreach, in order to touch all those in our society who need special education advocacy and information.

The Council of Parent Advocates and Attorneys (COPAA) has been concerned about this issue for a while now and their committee for Social and Racial Equity (to which I belong) has developed an incredible resource page for those working within or reaching out to ethnically and racially diverse communities.  Please review these materials and use them in your advocacy.  Please share this link on your own social media.  It is pure gold!  http://www.copaa.org/page/SREC_Advocacy

 

 

 

 

 

 

 

Timely evaluations for unidentified disabilties

Folks, here at SELA we have recognized a new ploy used by school districts to delay evaluations, even where the evaluation is requested due to a suspected, but as yet unidentified disability. Frequently, district’s will only identify an obvious disability, such as Language Impaired, when the parents come to them with a private evaluation identifying autism (for example). When the parent comes back (usually because the child is floundering) and request an evaluation for autism, the district will treat the request as a “re-evaluation” and thus an evaluation without a time deadline.
It is our position, that an evaluation relative to an as yet, unidentified disability, should be treated as an “initial evaluation,” subject to the 60 calendar day timeline. We have asked the Florida Department of Education to provide a guidance on this issue.  Our letter and our arguments are posted below (In copying the formatting was somewhat undone):

March 10, 2017

 

Re:  Request for guidance in a systemic issueEvaluation Timelines

Dear Monica:
First, I would like to wish you, your family, and your staff a belated happy new year.  I am sure you join me in wishing that this be the best year yet for the education of children with disabilities.  I first drafted this letter to you on the 3rd of January and then … well other work got in the way.  In addition, we sought input from other attorneys and advocates around the state.

I want you to know that over the last few years, my respect for you and the Florida Department of Education (FDOE) has grown considerably.  Your position and responsibilities are not easy, but I have found that you truly take seriously the role of mediating between parents and school districts, with the goal of seeking appropriate education for the child taking precedence.

Request for Guidance 

I am writing this letter, first on the behalf of Special Education Law and Advocacy (SELA),and then more broadly on the behalf of all parents, advocates, and attorneys who may find themselves confronted with the same issue.  As you are aware, SELA has team members, attorneys and advocates, serving a majority of districts in Florida.  From that perspective, it is easy for us to identify important issues that appear to be systemic across the state.  In December, we had a firm meeting, and part of our discussion revolved around a consensus that our firm should seek solutions to common educational issues that we find are repetitive and wide-spread.  I advised the team that if presented properly, the FDOE may well be the best vehicle for addressing these matters.

While we are aware that we could challenge school districts individually in a state complaint format, and we are prepared to do that, it seemed to us that sometimes issues arise out of conflicting interpretations of the law and practice.  In such cases, it would seem to me that the FDOE could provide  guidance to clarify the state’s position on the issues.  We understand that such guidance would not be “law;” however, such direction or guidance on certain issues has the potential value of resolving such disputes, without the necessity of adversarial state complaints or due process litigation.

We are thus seeking FDOE’s clarification and guidance in a formal statement concerning the below-stated issue regarding evaluation timeline lines.

The issue:  Whether, when a parent of a child with an Individualized Education Plan (IEP) requests an evaluation for the purpose of identifying further suspected disabilities, such evaluation should be considered an initial evaluation relative to such suspected-but-unidentified disabilities, or it should be considered simply a re-evaluation?

Under the Individuals with Disabilities in Education Act (IDEA), specifically 20 U.S.C. 1414 a (1) (A, B and C), Evaluations, Eligibility Determinations, IEP, and Educational Placements:

(a) Evaluations, parental consent, and reevaluations

(1) Initial evaluations

(A) In general

A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation in accordance with this paragraph and subsection (b), before the initial provision of special education and related services to a child with a disability under this subchapter.

(B) Request for initial evaluation

Consistent with subparagraph (D), either a parent of a child, or a State educational agency, other State agency, or local educational agency may initiate a request for an initial evaluation to determine if the child is a child with a disability.

(C) Procedures

(i) In general  

Such initial evaluation shall consist of procedures—

(I)  to determine whether a child is a child with a disability (as defined in 1401 of this title) within 60 days of receiving parental consent for the evaluation, or, if the State establishes a timeframe within which the evaluation must be conducted, within such timeframe; and

(II) to determine the educational needs of such child.

The same statute [20 U.S.C. 1414 a (2) (A) (I)(ii)] relates to reevaluations, and, as school districts are now asserting has no time requirements, they are applying this statute to argue that they have as much time as they want to complete the evaluation, and often as long as a year to do so.

(2)  Reevaluations

(A)  In general

A local educational agency shall ensure that a reevaluation of each child with a disability is conducted in accordance with subsections (b) and (c)—

(iif the local educational agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or

(ii)  if the child’s parents or teacher requests a reevaluation.

Further under (20 U.S.C. 1414 b (3)(b)(B) there is a requirement that the child be evaluated “in all areas of suspected disability.”

(3)Additional requirements

Each local educational agency shall ensure that—

(b) Evaluation procedures

(B) the child is assessed in all areas of suspected disability;1

Background:  Until recently, school districts across the state seemed to be making an effort to meet the 60-day requirement when parents requested evaluations for the purpose of identifying suspected, but previously unidentified, disabilities.  More recently, however, school districts have begun identifying any evaluation request made after the initial determination of eligibility for exceptional student education services, as a request for “reevaluation,” regardless of the fact that the request may be for the purpose of identifying an, as yet, non-identified disability  This classification of the request is made along with an assertion that there is no specific time requirement on reevaluations.2

 

Our position:  We believe that this unfortunate change of positions by school districts is a coordinated, concerted position across the districts.  Further we find that this “interpretation” of the law has been put forward primarily for the improper purpose of denying children with disabilities their right to a timely evaluation and prompt identification of their disabilities.

 

We have two basic arguments against the above interpretation being given to parents by school districts.  It maybe that the IDEA did not have fully contemplate the scenario of a student once identified as a child with disabilities, may need further evaluation to identify other disabilities, which should have been, but were not, in fact, identified during the initial evaluation.  We note, however, that the term “reevaluation” applies only to evaluations given for the purpose of determining ongoing need for services and NOT the identification of additional unidentified but important disabilities.3   There is much less urgency when conducting re-evaluations, than there is when one is attempting to evaluate for an unidentified disability, which is causing the child to lose educational opportunity.

The argument of school districts followed to its logical strict conclusion, means that IDEA students, with as yet unidentified disabilities may be left without right and without recourse for prolonged periods of time. That is exactly the loophole that school districts are attempting to exercise.  The Department surely must agree with us that there has to be a way to fairly protect the rights of such students.  This is the basis upon which we now appeal to the Department to provide guidance to parents and school districts, which will assure that these children are protected.

Above I noted that there are distinct differences between “initial evaluations” and “reevaluations.”  Below I cite to definitions sited by Special Education Connection (LRP) – SmartStart article on Evaluations. Such citations provide some definitions, which I believe we all, including school districts, can agree upon.

The IDEA defines “evaluation” to mean the procedures used to determine whether a child has a disability and the nature and extent of the child’s need for special education and related services. Those procedures must comport with the requirements set forth at 34 CFR 300.304 through 34 CFR 300.311.  34 CFR 300.15.

An evaluation under the IDEA serves two purposes: identifying students who need specialized instruction and related services because of an IDEA-eligible disability; and helping IEP teams identify the special education and related services the student requires. 71 Fed. Reg. 46,548 (2006). See, e.g., A.W. v. Middletown Area Sch. Dist., 115 LRP 4105 (M.D. Pa. 01/28/15) (holding that a student’s evaluation was inappropriate because it lacked information from which the district could develop a positive behavior plan, craft IEP goals, or rule out a specific learning disability).

The IDEA distinguishes between initial (or preplacement) evaluations (34 CFR 300.301 ) and reevaluations > of students who already are receiving special education and related services under the IDEA (34 CFR 300.303 ). The former refers to the first evaluation, while the latter refers to the follow-up or repeat evaluations that occur throughout the course of the student’s educational career.

Another citation to an LRP – Special Education Connection – on the purposes of reevaluation, expands on that issue in a meaningful way.

Pursuant to 34 CFR 300.305 (a)(2)(i)(B) in the case of a reevaluation of a child, the district must examine whether the child continues to have such a disability, and the educational needs of the child.

A district must also examine whether the child continues to need special education and related services. 34 CFR 300.305 (a)(2)(iii)(B).

34 CFR 300.305 (a)(2)(iii)(iv) provides that a district must examine whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP of the child and to participate, as appropriate, in the general education curriculum.

The essential purpose of the two very different types of evaluations.  We feel that any equitable examination of this issue must consider the essential purposes of the two types of evaluations.

First, the “initial evaluation” is for the declared purpose of identifying a child’s disability, determining whether the child is of need of specially-designed instruction, and “to determine the educational needs of such child.”  We acknowledge that since the child in our scenario has already been found to be a child with a disability and in need of specially-designed instruction, he has had an “initial evaluation.”  The issue is what if, after such initial evaluation and admission to an ESE program, it becomes apparent that the child has other, as yet, unidentified disabilities?  Too bad?  Can the school take its time in doing the appropriate evaluations, which should have been done to start with?  Can they take six months?  A year?  Under the districts’ position there is no framework or timeline.

Let me give some examples.  We frequently see high-functioning children with autism, where the parent has a private diagnosis of autism and has provided said to the school.  The school evaluates for the most obvious and evident language issues and finds the child eligible for an IEP under Language Impaired.  The child has social/emotional/ behavioral issues at school.  He is being severely disciplined because we all know that such behavior cannot logically be a manifestation of a language impairment.  Is it okay to tell the parent we will consider doing the evaluation, when we get around to it?  In the meantime the child is circling the drain.

The same things happens to children with autism, who may have first been identified with SLD, ADHD, ID, etc.  One might argue that this does not matter, because once the child is “in” ESE, the child can get anything that the child needs, and on a technical ground I might agree.  The reality, however, is very different.  Schools are not going to provide the same level of services to a child labeled ADHD as they would offer to a child with autism, unless there is evaluative data showing that the sensory, language, social skills, and sensory integration create additional needs for support due to autism.  It is exactly this type of evaluative data school districts are beginning to treat with such cavalier indifference, while parents are begging for these essential evaluations.

In my opinion, school districts need to be reminded that they have the ultimate obligation “to seek out and identify children with disabilities.”  Moreover, they have the obligation to evaluate children in every area of suspected disability.4  Whose fault is it that children are given perfunctory, limited evaluations, which entirely miss disabilities for which the student records contain ample evidence from which to suspect further disability?  Should parents have to go to educational attorneys or advocates to have someone review the records and carefully interview them in order to discover the likely causes of the child’s struggles at school?  Should they then have to wait an inordinate amount of time to obtain an appropriately comprehensive evaluation, due to the district’s failure to evaluate comprehensively in the first place?

Please do not presume that I am exaggerating for effect.  If necessary I could cull my files and find you an arm load of cases where this was in deed the dilemma parents have faced.  As I have said, in the past the need to go back to the district for evaluations they initially failed to do was simply a nuisance, because the districts generally stepped up in a responsible manner and performed the required evaluations.  Now districts are en masse refusing to do the evaluations with any sense of timeliness or responsibility.

Before moving on, let’s look at the purpose of the “re-evaluation.”  Primarily, the re-evaluation requirement was created because Congress was concerned that once children were placed in special education, they may never get out. It is very fair to say that the reevaluation requirement was created to determine whether the child still has the disabling condition and whether the child continues to require special education.  The statute also suggest that the reevaluation can be used to examine issues as to why a certain student is struggling and to better define the student’s educational program.

Neither rationale for “reevaluations” was for the purpose of identifying heretofore unidentified disabilities. For school districts to excuse their delay in the conduct of evaluations on the grounds that the needed evaluations are “reevaluations” and they, thus, have no requirement to conduct the evaluations on a timely basis, is simply not coherent and can in no way be fair or equitable.

The importance of timely evaluations.  Finally, we come to the issue of timeliness.  Regardless of the “type” of evaluation the district claims is appropriate (initial or reevaluation), school districts have an obligation to evaluate students within a reasonable time.  I believe the courts will define reasonableness far more in terms of the urgency of the circumstances, than the technicality of established timelines.  In fact, I do not read the statutes as saying that the districts can wait out their 30 days for consent and 60 days for evaluation, without regard for the urgency of the evaluation. Rather, I interpret it to mean that they may not, whatever the circumstance go beyond that timeline.  I do not believe that school districts are protected by the fact that there are no timelines established for “reevaluations.”  Relying upon that pretense may cause districts to be found to have denied appropriate evaluations and to have thus denied FAPE, when they arbitrarily think that they can wait six months to a year to do urgently required evaluations.

Our insistence on timeliness is not because we do not like to wait.  School districts have 101 ways to keep us waiting for a lot of matters.  This is about children, who are struggling and not simply not making it.  We have clients who are being suspended, who are failing to make progress,  or who are at risk of not graduating, and we are told to wait for six months.  Regularly our clients notify us that they cannot wait any longer and they grab the McKay or the Gardiner and flee the public schools.  Maybe that is acceptable to some school districts, but it seems shameful.  We are still a strong proponents of public schools over the alternatives, but it is getting harder and harder to be positive in this environment.

It is our hope that the above will open appropriate dialogue and encourage reasoned research and efforts at resolution of this thorny issue.  We are prepared to meet with any set of school board attorneys who would like to come up with a protocol for “identification” evaluations, so that we are not having to litigate these issues.

We feel that the best way for the FDOE to help would be to examine our arguments herein presented and to produce written guidance, which would be instructive to parents, parent representatives, and school boards.  We strongly feel FAPE is being denied to children with disabilities due to the prolonged evaluation timelines many of our clients have experienced.  Any sense of equity drive all of us to seek a solution.

We understand that it is going to take some time to review this matter and to consider the best course for your bureau.  At the same time, we would like a reasonably prompt response as to what you are thinking and what direction you may want to take.  While we are amenable to trying to work out some understanding with the various districts, we remain convinced that the only way to resolve these issues would be with a guidance from your bureau.

Again, I appreciate your time and support in building a collaborative working relationship for the benefit of students in the State of Florida.

Sincerely,

 

Mark Kamleiter, Esquire

Senior Attorney, SELA

cc:  Attorneys & Advocates within the firm

 

 

 

 

Have you used McKay Scholarship?

With the appointment of Betsy DeVos, as Secretary of Education, there has been a lot of interest around the country in Florida’s John McKay Scholarship.  COPAA is helping to gather information about a specific isssue.  They are looking for Florida parents who have tried the McKay Scholarship and who have returned to public school.  They want to speak to parents who fit in this category.  If you do and you are willing to talk to a researcher, please contact me at mkamleiter@flspedlaw.com.

In addition, read the following article.  The writer is also looking to interview people who have used the McKay.

What States Have Special Education Vouchers, And How Are They Working?

Donald-Trump-Betsy-DeVos-Florida-School-story-blog.jpgThis week I wrote an article about the idea of using federal special education money as vouchers for students with disabilities, which is currently seeing some high-placed support, including from U.S. Secretary of Education Betsy DeVos.

To be sure, any sort of funding shift to a voucher would require a top-to-bottom Congressional overhaul of the 42-year-old Individuals with Disabilities Education Act. And the current federal contribution for special education averages out to only about $1,800 per student ages 3-21 with disabilities.

But both DeVos and President Donald Trump are strong supporters of school choice, with Trump specifically calling for a choice program for “disadvantaged” children during his address to a joint session of Congress. (It’s unclear whether students with disabilities would be included under the “disadvantaged” umbrella.)

State School Choice Programs for Students With Disabilities

Federal red tape, however, has not stopped individual states from offering their own choice programs, including vouchers and educational savings accounts. Twelve of 26 voucher programs nationwide are aimed specifically at students with disabilities, as are 3 of 5 educational savings account programs,  2 of 21 tax-credit scholarship programs, and 1 of 9 individual tax credits or deductions. (Also, nothing prevents a student with an individualized education program from taking advantage of any other choice program out there.)

Vouchers

Educational Savings Accounts

Tax-Credit Scholarships

Individual Tax Credit/Deductions

Thanks to Jason Bedrick, the director of policy at EdChoice, and EdChoice’s 2017 edition of The ABCs of School Choice for this information. 

How Well is School Choice Working for Students With Disabilities?

This is where you, the reader, come in. I can find out how many families are taking advantage of these programs. But what I don’t know is how well the programs are working for families. Are you able to access educational options that would have been unavailable to you otherwise? Has waiving your due process rights under the IDEA been a concern, or ultimately irrelevant? Is procuring a voucher easy or a bureaucratic hassle? And, most importantly‐do you feel that your children are learning more because these options are available?

I’d like to hear from parents for an article—I’d like to shift this discussion away from high-level Washington policymakers and down to the family level. Please email me at csamuels@epe.org if you’re willing to share your experiences, and share this request with others who might like to talk about their own situations. I’m looking forward to hearing from you!

Photo: President Donald Trump, Sen. Marco Rubio, R-Fla., left, and Secretary of Education Betsy DeVos hold cards received from the children in a 4th-grade class during a tour of St. Andrew Catholic School on March 3, in Orlando, Fla. Trump’s daughter, Ivanka, and her husband, senior White House adviser Jared Kushner, are at rear.—Alex Brandon/AP

Action Needed

 I am passing on an important announcement from COPAA.  We live in political times, where we have to be united and ready to act, to push back.  Please read the following and take the action (Contacting your Senates).

COPAA Logo

Protecting the Legal and Civil Rights of Students with Disabilities and their Families


Dear Mark:


Please contact your Senators TODAY and tell them to vote NO on Resolution to Rollback ESSA Accountability Regulations this week!

ISSUE:  Congress passed the Every Student Succeeds Act (ESSA) with broad bipartisan support in late 2015. Implementation is not yet underway as states were given time to develop their plans. Unfortunately, last week, the U.S. House of Representatives voted to overturn important regulations made final in late 2016 that assure state accountability systems under the ESSA include key components advocated for by COPAA. If the Senate also votes to overturn the regulations and that bill is signed by President Trump, states will then only be held to ESSA’s statutory language which could result in reduced accountability for all students, including students with disabilities.

 

Senators need to hear from you TODAY!

 

BACKGROUND

COPAA worked intently on the ESSA reauthorization as a partner with business, civil rights, disability organizations and many members of the Senate on the bipartisan passage of the law in 2015. Our goal was to help create a new law that both provided greater flexibility to states and also assured states would develop and implement meaningful accountability systems so that schools and districts will help all students achieve substantive outcomes. The outcomes that we know predict future success and that ESSA supports are: grade level proficiency in reading and math; graduation from high school; matriculation into college and becoming employed. The ESSA statute and the accountability regulations provide the perfect conditions for states to accomplish this.

 

COPAA testified before the House and the Senate in February and May 2016 about the importance of the U.S. Department of Education’s (ED) role in issuing regulations to implement the ESSA. In the House Subcommittee on Early Childhood and Elementary Education COPAA’s Legal Director, Selene Almazan stated: “…via Chevron v. Natural Resources Defense Council the role of the US Department of Education is vital in the implementation of the ESSA and its provisions. The Supreme Court addressed the issue of whether to grant deference to a government agency’s interpretation of a statute that it administers. In this case the ESSA.”

 

With the Republican Congressional leaders’ desire to further limit the authority of the U.S. Department of Education on February 9, the House passed House Joint Resolution 57 (HJ Res 57) which invokes a little used mechanism under the Congressional Review Act (CRA) allowing Congress to revoke regulations made within about a six-month window. The ESSA accountability regulations fall into this timeframe which has made them a Congressional target. In the Senate, Chairman Alexander has introduced S.J. Res. 25 which mirrors the House resolution. The Senate will vote tomorrow on this issue. If passed and signed by the President, ED is then prohibited from issuing any further regulations on the specified parts of the law until Congress takes further legislative action.

 

COPAA believes this resolution is extremely harmful because:

1.      Use of the CRA to revoke regulations that fall within the authority of ED sets a damaging precedent of undermining the agency’s authority to regulate; and,

2.      The ESSA regulations and the substance therein are essential to assuring that every state develop meaningful accountability systems so that all students have every opportunity to achieve college and career ready standards, schools are identified for support and intervention is provided when student subgroups need it.

 

ACT TODAY! 

Call or Email your Senators:

·         Call the Capitol Switchboard at 202-224-3121 and ask for the office of your Senators

·         Identify yourself as a constituent and the organization that you represent (if any)

·         Find your Senator’s email address:  https://www.congress.gov/members

 

Suggested email or phone call comments could include:

I’m connecting with you to urge a NO vote on the resolution coming forward under the Congressional Review Act that would eliminate the accountability regulations for the Every Student Succeeds Act (ESSA). Students with disabilities are at great risk of being made invisible in state accountability systems without essential regulations that assure every group of students will matter when schools are identified as in need of intervention and support. My child/children with a disability deserve to attend a school that is held to the same high expectations as all others in my state and the ESSA regulations will help guide states in the design of a rigorous and meaningful accountability system.

 

SHARE A LITTLE ABOUT YOUR CHILD/A CHILD WITH A DISABILITY AND WHY ACCOUNTABILITY FOR THE OUTCOMES OF ALL STUDENTS  MATTERS.

 

ESSA was passed on a strong bi-partisan vote. Please support the implementation of ESSA and vote NO on the resolution that will revoke the accountability rules that support all students. Our children are depending on strong state accountability systems so they can succeed no matter where they attend school.

 

Sincerely,

 Your name

Thank you for taking 5 minutes to raise your voice on this important issue!  Please share with your networks. 



If you wish to stop receiving email from us, you can simply remove yourself by visiting: http://www.copaa.org/members/EmailOptPreferences.aspx?id=16558680&e=mkamleiter@flspedlaw.com&h=dd288f61a7bf68c0a39ddd8d877204d35ded5188

Protecting Rights. Creating Opportunities. Changing Lives.

The Council of Parent Attorneys and Advocates, Inc. (COPAA) is an independent, nonprofit unparalleled peer-to-peer network of attorneys, advocates, parents and related professionals dedicated to protecting and enforcing legal and civil rights of students with disabilities and their families at the national, state and local levels.

COPAA is premised on the belief that every child has the right to high-quality education and an equal opportunity to achieve his or her full academic potential. States, school districts and schools have an obligations under federal and state law to ensure that each student receives an individualized education that prepares them for work, college, and participation in his or her chosen community.

 

We work to increase the quality and quantity of advocate and attorney representation. We believe the key to accessing individualized, effective educational programs is assuring that students with disabilities and their parents are equal members of the educational team. 

www.copaa.org

Supreme Court is deciding FAPE case

The supreme Court is in the process of deciding an important FAPE case, wherein they are examining the standard that must be met by schools to be determined that they are providing a free and appropriate education to a child with disabilities.  The courts have struggled with this since the first edition of IDEA was passed in 1975.  They are gone from “more than de minimis  (trivial)” to “a threshold of education.”  This has been a disgraceful standard, when schools are proclaiming “An Excellent Education for All.”  That’s “for all,” except children with disabilities, who only have to receive some mysterious “threshold of education.”

This is the issue of the case before the supreme court, the Endrew F. v. Douglas County case.  While the justices are not likely to agree to the arguments of the parents’ attorneys, that FAPE requires, they seem favorable to a much stronger FAPE definition than is presently current in many federal court jurisdictions in the country.  The parents are arguing for a standard, which holds that the student should receive “a program that is “reasonably calculated to provide” him with educational opportunities that are “substantially equal” to those offered to other students.”  It appears likely that the court will go with something like the government’s proposed language, that the child deserves “a program ‘aimed at significant educational progress in light of the child’s circumstances.’”

My analysis has been strongly informed by the following blog article.

 
Provided by:  SCOTUSblog Case Updates
 
Date: January 11, 2017 at 6:12:47 PM EST
To: <Laurenpeterson11@gmail.com>
Subject: Case Update: Endrew F. v. Douglas County School District
Reply-To: SCOTUSblog Case Updates <caseupdates@scotusblog.com>
 
Case Update: Endrew F. v. Douglas County School District
 
Argument analysis: Justices grapple with proper standard for measuring educational benefits for children with disabilities
At today’s oral argument in the case of a Colorado student with autism, one thing seemed relatively clear: The justices were dissatisfied with the U.S. Court of Appeals for the 10th Circuit’s ruling that school districts can satisfy federal education law as long as they offer a student with a disability an educational program that provides him or her with a benefit that is more than merely de minimis, or non-trivial. It was less clear exactly what standard (if any) the justices might substitute for the “more than merely de minimis” standard, but a standard “with bite” – as Justices Ruth Bader Ginsburg and Elena Kagan put it – would be a welcome development for children with disabilities and their parents.
 
Jeffrey Fisher argued on behalf of the child, known in the litigation as Drew, and his parents, who withdrew their son from public school and enrolled him in a private school after his individualized education program (IEP) proposed goals for fifth grade that closely resembled goals for earlier years. Fisher told the justices that the federal Individuals with Disabilities Education Act required the school district to offer Drew a program that is “reasonably calculated to provide” him with educational opportunities that are “substantially equal” to those offered to other students. Such a standard, Fisher assured the justices, follows directly from the text of the IDEA.
 
Jeffrey L. Fisher for petitioners
Jeffrey L. Fisher for petitioners (Art Lien)
But despite Fisher’s efforts to focus the justices on the text of the statute, they remained skeptical. Justice Anthony Kennedy expressed concern about what new costs Fisher’s proposed standard might impose on school districts, by requiring them to provide additional services, while Justice Stephen Breyer worried aloud about the propriety of the justices – who, he suggested, “don’t know much about” education – creating a standard that could then be interpreted differently by “judges and lawyers and people” all over the country.
 
Chief Justice John Roberts flagged a different potential problem, echoed by Kagan: How would Fisher’s proposed standard work for students who, because of their disabilities, may not be able to follow the general educational curriculum? Suggesting that there is some “flexibility” in the IDEA, Fisher advanced a slightly different version of his proposed standard: A student’s IEP should generally “be tailored to achieve a general educational curriculum at grade level”; if that is not possible, the IEP should use alternative benchmarks that are “the highest possible achievable by the student.”
 
Fisher’s modifications to his proposed standard brought it even closer to the one advanced by the federal government, which filed a brief supporting Drew and his family. Irv Gornstein, who argued today for the United States, emphasized that the IDEA requires a program that is “aimed at significant educational progress in light of the child’s circumstances.”
 
Irving Gornstein, Counselor to the Solicitor General
Irv Gornstein, Counselor to the Solicitor General (Art Lien)
Justice Sonia Sotomayor seemed to summarize the dilemma facing the court neatly, telling Gornstein that “I do think the” IDEA “provides enough to set a clear standard.” But the problem, she continued, is trying to come up with the right words, which will “be less confusing to everyone.” Roberts also pressed Gornstein on this point, telling him that “maybe you have a lot of different adjectives to describe the standard,” but “there’s really nothing concrete there” for courts to review.
 
Gornstein sought to reassure the justices that the steps that the government’s standard would require are “just what most school boards are already doing.” And although he acknowledged the justices’ concerns that a more stringent standard would entangle the courts in educational decisions, he countered that “the response to that is not to adopt a barely more than de minimis standard.”
 
Gornstein’s point seemed to resonate with the justices, who pressed attorney Neal Katyal – arguing for the school district – on his efforts to equate the requirement that the IEP provide “some benefit” with the “more than merely de minimis” standard that he was advocating. Roberts pointedly told Katyal that the “some benefit” requirement was “problematic for you” because the court’s cases specifically indicate that the IEP must provide “enough benefit to keep track with grade progress.” “And if that’s what the standard is,” Roberts continued, “that’s certainly more than de minimis.”
 
Neal K. Katyal for respondent
Neal K. Katyal for respondent (Art Lien)
Breyer seemed to agree with Roberts. Even if the phrase “some benefit” is “ambiguous,” he posited, the IDEA has been amended. When you look at the requirements for an IEP, he observed, “you do see in at least two and maybe more places that the IEP is designed” to allow the child to “make progress in the general education.” The combination of “some benefit” and “make progress,” he concluded, results in a more stringent standard than “more than merely de minimis,” much along the lines of what the federal government has proposed.
 
Katyal appeared to get a little more traction from his repeated reminders that the “more than merely de minimis” standard has been in place, and has worked, for many years, without the courts actually applying “some really low standard.” To require a new standard now, he suggested, would “invite massive amounts of litigation” that would create a “huge morass” for “federal generalist courts.” But some justices were still dubious about the provenance of the “more than merely de minimis” standard, hinting that the standard has no basis in the court’s precedent and was (as Ginsburg put it) instead “invented” – which could make it easier for the justices to replace it with a more stringent standard (like the government’s) that they regard as based on the text of the IDEA.
 
Today’s argument ended with the justices on the horns of a dilemma, as they so often are. Despite excellent advocacy from all three lawyers, there is no clear and easy answer. But they seemed sufficiently unhappy with the “more than merely de minimis” standard that they are likely to strike it down. The standard proposed by the federal government – which would require the school district to offer a program “aimed at significant educational progress in light of the child’s circumstances” – seems to be the most likely replacement, both because the justices regard it as most consistent with existing law and because it comes from the Department of Education, which – as Breyer noted – has expertise in issues related to education and the IDEA. And even if it’s not the standard that Drew and his family are advocating, they would no doubt nonetheless regard it as a significant victory. A decision in the case is expected by summer.
 
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