Posted on May 24, 2011 by randychapman
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.
Filed under: Individuals with Disabilities Education Act, Special Education Law | Leave a Comment »
Posted on May 18, 2011 by randychapman
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Filed under: children with disabilities, Disability Law, Individuals with Disabilities Education Act, least restrictive environment, Section 504, Special Education Law, The Everyday Guide to Special Education Law | 1 Comment »
Posted on May 9, 2011 by randychapman
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.
Filed under: Individuals with Disabilities Education Act | Leave a Comment »
Posted on May 4, 2011 by randychapman
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.
Filed under: children with disabilities, Disability Law, Section 504 | Leave a Comment »