It Usually Doesn’t Help if Parents Appear Uncooperative in the IEP Process

     Parents may sometimes feel it is pointless to continue meeting with the school to work out IEP issues. But my experience has been that it is usually better to meet to resolve issues than not to meet.  For example, in Upper Freehold Regional Board of Education v T.W. 56 IDELR 215 (D. Ct N.J. 2011) the court believed that the parents of a kindergartener refused to cooperate with the school district in developing an IEP before placing their child in a private school. (for information on unilateral placements and private school tuition reimbursement please see Looking at the Trees in the Forest Grove Decision).

Thus, the court denied the parents tuition reimbursement for the private school placement. The court found that “the parents conduct in delaying, canceling, or refusing to set up additional meetings with the IEP team substantially precluded any possibility that the district could timely develop an appropriate IEP for [the child] and provide the necessary services to him, or that the parties could resolve the dispute without litigation.”

     The District Court here relied on  Hayes v. Cape Henlopen School District 606 F. 3d 59, 54 IDELR 212 (3rd Cir. 2010) where the court believed a parent did not cooperate in scheduling the continuation of an IEP meeting. Because of scheduling conflicts the student’s IEP was not finalized at the end of a particular IEP meeting in August 2006. The district offered to schedule a date to complete the IEP, but the student’s mother said her travel schedule prevented her from meeting until after the start of the 2006-2007 school year. She, however, agreed to schedule the meeting for September 11, 2006. In the mean time, the mother unilaterally enrolled her son in a private school. She did not notify the school she had enrolled him in the private school nor did she notify the school she intended to seek tuition reimbursement for the private  placement. On September 7 the parents filed a request for a due process hearing. The next day the school district sent a letter inviting a representative of the private school to the IEP  meeting. However, on the morning of September 11, one hour before the IEP meeting, the private school representative called the district saying he would not attend the meeting because the child’s mother had said she was not attending. The parents later told the district they would not attend any further IEP meetings and refused permission  to conduct a speech language evaluation of the child. The 3rd Circuit Court of Appeals determined that the parents lack of cooperation was a reason to deny reimbursement for private school tuition.

     Similarly, in the more recent district court case, despite the school district’s willingness to develop an IEP, the parents cancelled or postponed IEP meetings before unilaterally enrolling their child in a private program. Thus, the court determined that it was the parents and not the school district who delayed continuing the IEP meeting and ultimately terminated the process when they requested due process.

     As I stated above, generally, my experience has been that parents and school districts are better off meeting to resolve issues than not. There may be times when parents are justified in not continuing to meet, but  courts may consider the fact that parents appear uncooperative. In these two examples the result may have been different if the school districts had not appeared so cooperative and willing to continue the IEP process.

The Everyday Guide and Preventing Litigation in Special Education Workbook Judged Finalists at Autism Conference

     I am proud to announce that my book The Everyday Guide to Special Education Law and the Preventing Litigation in Special Education Workbook, by Dr. Jacque Phillips and myself, were both judged as finalists in the book competition at the 2011  Reliability Gives Voice to Autism Conference in Rosemont, Illinois. Additionally, The Everyday Guide was declared a winner in the legal book category at the 2011 Greenbook Festival in San Francisco.

     The Legal Center publishes these books to provide legal information about special education law that is in clear everyday language for parents and educators.  Additionally, since the Legal Center is a private non-profit agency, the sales of our books help support our work, including my writing this blog. Our books are not written in legalese or academic educator speak and provide accurate information in a friendly easy-to-read format.

     We believe if parents, teachers, and students understand the special education process, legal disputes may be avoided or more quickly resolved. Less time in conflict means more time working together for kids. The Everyday Guide provides clear information about obtaining a free appropriate public education, the evaluation process, IEPs, extended school year, discipline, dispute resolution, least restrictive environment, private schools, early childhood services, and section 504. The Preventing Litigation in Special Education Workbook supplements The Everyday Guide by providing legal information about actual cases in a story telling format. Parents and teachers are asked to use the Workbook to predict the likely outcome of the dispute so that parents and school districts can avoid unnecessary legal entanglments in special education.

     The Everyday Guide sells for $24.95 and the Workbook is only $19.95. The two books can be purchased together for $35.00. The books are also available in e book format for only $9.95. For more information or to order these award-winning books and help support our work, please visit our website or call 800-288-1376.

OCR Clarifies that Federal Law Prohibits Practices that Discourage Student Enrollment Based on the Student’s Immigration Status or the Student’s Parents Immigration Status

     Last Friday the Office for Civil Rights and the Justice Department jointly issued a  “Dear Colleague” letter to school administrators clarifying that student enrollment practices that chill or discourage the participation, or lead to the exclusion of students based on their or their parents’ citizenship or immigration status violate federal law. Under federal law State and local education agencies are required to provide equal access to public education in elementary and secondary schools. Specifically, Title IV of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin by public elementary and secondary schools. Additionally, Title VI prohibits discrimination by recipients of federal financial assistance on the basis of race, color, or national origin. Moreover, the regulations enforcing Title VI prohibit school districts from using criteria that have the effect of subjecting individuals to discrimination because of their race, color, or national origin.

     The Dear Colleague letter  points out that the Supreme Court ruled in Plyler v. Doe that a state may not deny access to a basic public education to any child residing in the state, whether the child is in the United States legally or otherwise. The Court noted that denying “innocent children” access to public education “imposes a lifetime of hardship on a discrete class of children not accountable for their disabling status…By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.”

     The letter provides examples of permissible and impermissible enrollment practices. A district may require that students or their parents provide proof of residency within the school district. For example, a district may require copies of phone and water bills or lease arrangements. But asking about a student’s citizenship or immigration status, or their parent’s immigration status is not relevant. A district may require a birth certificate to ensure the student falls within the district’s minimum and maximum age requirements. The district, however, may not bar a student from enrolling based on a foreign birth certificate. Moreover, while a district can request a student’s social security number for use as a student identification number, districts may not deny enrollment to a student if the student does not provide the social security number.

     The Dear Colleague letter closes by suggesting that school administrators take two steps immediately. First, they should review the documents their districts require for enrollment to ensure the documents do not have a chilling effect on the student’s enrollment in school. Second, they should look at their enrollment data. Precipitous drops in the enrollment of any group of students may mean there are barriers to that groups attendance that should be further investigated. Finally, for further clarification, the Office for Civil Rights provides information in a Question and Answer format and a Fact Sheet. 

Placing Student on Homebound for Most of His Senior Year Violated 504

     In Logan County(WV) School, 55 IDELR 297 (OCR 2010), the Office for Civil Rights found that the school district violated Section 504 when it placed a student with disabilities on homebound instruction most of his senior year of high school. The student with Fabry disease, a genetic condition that affects bodily functions, was placed on homebound instruction from October through the end of his senior year. As a result, he was also not able to attend his class senior party because school district policy categorically denied students on homebound instruction the opportunity to participate in extracurricular activities. After graduating, the student filed a complaint with OCR alleging the school district had discriminated against him on the basis of disability.

     During the investigation  OCR found that the student had the same 504 plan throughout his four years of high school. Moreover, the 504 plan did NOT address homebound instruction.  OCR found that the school district violated Section 504. 

     Section 504 requires that the district evaluate a student with a disability before making a significant change in placement. Here, the district significantly changed this student’s placement when it placed him on homebound instruction during most of his senior year. But the district did not reevaluate the student before the change in placement. The district had also not reevaluated him for his entire four years of high school. Once he was on homebound instruction district policy denied him access to extracurricular activities. Section 504 requires that students with disabilities have equal access to nonacademic and extracurricular activities. Thus, the district also violated Section 504 by categorically denying access to extracurricular activities to students with disabilities on homebound instruction.

     To resolve the complaint the school district agreed to revise its policies: (1)  to ensure that students with disabilities who receive homebound instruction or are unable to be in school during regular school hours are able to participate in extracurricular activities and (2) to ensure students with disabilities are reevaluated before being placed on homebound instruction. Moreover, the district agreed to evaluate the student(who had now graduated) to determine if  any educational loss  had occurred over his four years of instruction without a reevaluation and his loss of access to extracurricular activities. If there was an educational loss, the district must develop a plan to provide compensatory education services to make up for that loss. Obviously, since the student has graduated, the compensatory services will need to be provided post graduation.

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