DISABLED EDUCATION

N E W YO R K U

N I VE R S I T

Y PR E S S ( 2 0 1 3 )

Ruth ColkerDistinguished University ProfessorThe Ohio State UniversityMoritz College of Law

SCOPE OF RESEARCHRead complete

legislative historyRead background to

all major Supreme Court cases

Read about 100 hearing officer decisions from

California, Florida, New Jersey, Ohio, and the District of Columbia

DISABILITY CLASSIFICATION DATA (2010)African-American (14 % of population)

Hispanic (22 % of population)

White(55 % of population)

Mental Retardation

32.5 % 12.8 % 51.4 %Speech or Language Impairment

16.5 % 18.1 % 61.6 %

Visual Impairment 16.3 % 26.7 % 52.3 %Emotional Disturbance

28.5 % 11.9 % 56.7 %Orthopedic 14.2 % 20.6 % 61.4 %Other Health Impairment

18.9 % 9.8 % 68.4 %Specific Learning Disability

21.2 % 23.8 % 52.1 %Multiple Disabilities

18.8 % 12.6 % 64.8 %Hearing Impairment

16.2 % 24.9 % 52.9 %Autism 14.0 % 11.3 % 69.7 %Developmental Delay

23.7 % 9.6 % 59.4 %

SUSPENSION DATAAfrican-American

White

1998-99 0.36 % 0.2 %2002-03 2.38 % 0.74 %2005-06 2.78 % 0.67 %2007-08 4.11 % 1.09 %

THEMES IN STATES

OHIO

Large number of sufficiency determinations under 2004 ActMany cases involved issue of whether child was even eligible for special education; not a lot of cases about adequacy of IEPParents won 32.7 % of first-level hearing officer

decision in a 2-tier system

FLORIDA

Half of cases involved children with autismParents prevailed in 15.1% of cases but very high rate of settlementPattern of substantive violations without effective remedies

NEW JERSEY

School district has burden of proof, except for emergent petitions, but seemed to have little impact on outcome

Overall, parents prevailed in 13 % of cases

DISTRICT OF COLUMBIA

Learning disability was most common disability; few cases involving autism

Nearly all parents were represented by legal counsel

Most students were in high school

Parents prevailed in 57

% of cases

CALIFORNIAParents prevailed in 34.6 % in

cases• Parents prevailed in 11.5 %

of cases in which school district had BOP

• Parents prevailed in 11.1 % of cases in which school district challenged parents’ right to an IEE

Autism was most frequent disability

More situations where:

• Foreign language interpreter

• Challenge to IEE request

RECURRING PROBLEMS• Burden of Proof: Schaffer

v. Weast• Adequacy of IEP: Rowley v. Board of Education• Procedural Errors Causing Harm

BURDEN OF PERSUASION

SCHAFFER V. WEAST7th grade boy, Brian

Schaffer, who was seeking to enroll in public school for first time in 8th grade

Parents rejected two possible public school placements, initiated a due process hearing, and sought reimbursement for unilaterally sending Brian to private school

HOLDING

Burden of proof is on parent when they are the moving party seeking reliefCase was in “equipoise” so allocation of BOP was determinative to outcome

BURDEN OF PROOFThe Schaffer Court noted

that the term “burden of proof” encompasses two burdens

• the burden of persuasion and

• burden of production The Schaffer case only

involved the “burden of persuasion”

• who wins if the evidence

is closely balanced.

FAIRNESS PREDICATE: FLEXIBLE, INFORMAL HEARINGS“IDEA hearings are

deliberately informal and intended to give ALJs the flexibility that they need to ensure that each side can fairly present its evidence. IDEA, in fact, requires state authorities to organize hearings in a way that

guarantees parents and children the procedural protections of the Act.”

FAIRNESS PREDICATE: RECORD REVIEWS“[P]arents have the right to

review all records that the school possesses in relation to their child.”

FAIRNESS PREDICATE: INDEPENDENT EDUCATIONAL EVALUATION“[Parents] also have the right to an

‘independent educational evaluation of the[ir] child.’ The regulations clarify this entitlement by providing that a ‘parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.’ IDEA thus ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion.

They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.”

INDEPENDENT EDUCATIONAL EVALUATIONS34 C.F.R. § 300.502(b) Parent right to evaluation at public expense.

(1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency(2) Parent is entitled to evaluation at public expense unless agency demonstrates at a due process hearing that its evaluation is appropriate …(4) The public agency may ask for the parent’s reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay …(5) A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.

WHEN IS SCHOOL’S EVALUATION “APPROPRIATE”?20 U.S.C. § 1414(b):• Variety of assessment tools and strategies to gather relevant

functional, developmental, and academic information, including information provided by the parent

• Not use any single measure or assessment as the sole criterion • Use technically sound instruments that may assess the relative

contribution of cognitive and behavioral factors, in addition to physical or developmental factors

• Provided and administered in the language and form most likely to yield accurate information

• The child must be assessed in all areas of suspected disability• Special rules for assessing specific learning disabilities, including

use of scientific, research-based intervention

STAY PUT CONTEXTBurden of proof is on

the school district when it is seeking to challenge an existing IEP.

Those same considerations also exist when a parent seeks to

retain an existing placement or service.

CHILD FIND CONSIDERATIONSChild Find obligation is an

“affirmative duty” of the State or LEA

• “the threshold for ‘suspicion’ is relatively low, and … the inquiry was not whether or not she actually qualifies for services, but rather, … whether she should be referred for an evaluation”

• Obligation helps neutralize what Schaffer Court called

the school’s “natural advantage”

• In other jurisdictions, Child Find cases have been important and successful

ADEQUACY OF INDIVIDUALIZED EDUCATIONAL PLANS

ROWLEY V. BOARD OF EDUCATION:AMY’S STORYFirst grade IEP:• Tutor for deaf for one hour

per day• Speech therapist for three

hours per week• FM amplification deviceIssue:• Whether Amy would also

receive a sign language interpreter

FACTUAL BACKGROUNDThree week trial with

interpreter scheduled in kindergarten

• Ended after two weeks• Amy resisted using his

services• Interpreter’s Report: “I

would say that as far as interpretive services are concerned, they are not needed at this time. However, this does not rule out the fact that an interpreter will not be needed at a future date

when the classroom work becomes more involved and large group discussion becomes the rule.”

Moved to new school district in 5th grade where she received interpreter

EDUCATIONAL BENEFITS STANDARDSupreme Court repeatedly

focuses on the importance of “access to specialized instruction and related services”

• State satisfies its FAPE requirement by “providing personalized instruction with sufficient support services to permit the child to benefit educationally”

• The “basic floor of opportunity” consists of

“access to specialized instruction and related services which are individually designed to provide educational benefits”

MEANINGFUL EDUCATION STANDARDThird and Sixth Circuits support

a “meaningful educational benefit standard” under which one would measure educational benefit “in relation to the potential of the child at issue”

Ninth Circuit in Mercer Island says that “educational benefit,” “some educational benefit,” and “meaningful” educational benefit standards all “refer to the

same standard”

APPLIED TO AMY ROWLEYAmy was receiving “substantial

specialized instruction”“We do not hold today that

every handicapped child who is advancing from grade to grade in a regular public school is automatically receiving a ‘free appropriate public education.’ In this case, however, we find Amy’s academic progress, when considered with the special services and

professional consideration accorded by the Furnace Woods school administrators, to be dispositive.”

CODIFIEDIDEA Findings: education for

children with disabilities can be made more effective by “having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible”

Department of Education regulations: Children can be classified as disabled and

therefore entitled to a FAPE “even though they are advancing from grade to grade”

RELIEF

PROCEDURAL ERRORS THAT CAUSE HARM

IMPEDED THE CHILD’S RIGHT TO A FAPE

SIGNIFICANTLY IMPEDED THE PARENT’S OPPORTUNITY TO PARTICIPATE IN THE DECISIONMAKING PROCESS REGARDING THE PROVISION OF A FAPE TO THE PARENT’S CHILD

CAUSED A DEPRIVATION OF EDUCATIONAL BENEFIT

THE FUTURECongress amended the

Americans with Disabilities Act in 2008 to broaden the definition of disability

• Learning disabilities clearly covered

• ADHD clearly coveredMore and more parents filing

Section 504 complaints• Hearing officers do not have

power to hear Section 504 claims but parents often

required to exhaust their IDEA rights before bringing Section 504 claims

Quite a mess is ahead of us.