Arizona SpEd Voucher Program Held Unconstitutional

The Arizona Supreme court held last week that the state program permitting parents of special education students to receive vouchers to spend at private or parochial schools is unconstitutional. The decision was unanimous. the state constitution specifically bans the use of taxpayer funds to assist private or parochial schools. This link has a news account. Here is another news article. Here is an unofficial copy of the opinion of the court. Because the decision was based upon a state-specific constitutional provision and not the U. S. constitution, the decision will not likely have much application to voucher programs in other states. This decision will, however, likely cause another round of discussion concerning the alleged link between the No Child Left Behind Act and the desire of some folks to allow vouchers for all parents. Stay tuned.

The relationship between private schools and special education law is very complex. Parents who place their children with disabilities in private schools(and I'm not talking about instances where FAPE is in issue) generally give up the right to FAPE under IDEA. Under the 1997 amendments, however, and even more so under IDEA'04, public school districts are required to do some things for private school students. There is a child find requirement. And based upon the child find results, a public school district must spend a portionate share of its federal funding on private school students. Private school parents have only very limited due process hearing rights. Needless to say the private school requirements are very controversial. Any opinions out there?

Decision Writing & Remedies in Special Ed Hearings - Part I

I may be exercising the blog writers privilege here, but do you realize how difficult it is for a due process hearing officer to write a decision? This post results from the convergence of two facts: I'm going to do a presentation on decision writing as a last minute replacement at the California SpEd ALJ Conference at UCLA next week and I am currently writing a decision.

If you have any tips as to the former, please let me know. Any good decision writers out there? Anybody ever receive a due process decision that they didn't like (other than just the result)?

I'm not at a complete loss. I have done some previous hearing officer trainings on the topic. Also, I have written my share of decisions. But I'm always looking for help.

One thing many new hos don't realize is that decision writing doesn't exist in a vacuum. You have to do your preliminary research to know what's relevant. You have to run a good hearing to make sure you have the evidence you need to rule. You have to have clearly identified the issues at the prehearing conference in order to decide all issues in the decision. Sitting down to write is still a task, but there are steps you can take before you get there to make it a bit easier. Being a good ho is an art! Portrait of the artist as a young ho...

Don't forget to vote on our poll about the case before the supreme court. For the parents has a razor thin lead over for the school district. Also on the techno-end, the Facebook group and the Ning group and the Twitter group continue to grow and my twitter mini-posts are on the left-hand side of the blog. How do you like these technical innovations so far?

Discipline Cases & Expedited Due Process Hearings

I just finished an expedited due process hearing. It seems like everything is on fast forward. Quite an experience.

In cases involving a change of placement of a child with a disability for disciplinary reasons, a request for due process hearing is an expedited hearing. IDEA Section 615(k)(4). In other words, the hearing must begin within twenty school days of the complaint being filed. If there is no intervening summer vacation or hunting season (local color joke - insert your local version here), or snow days, that can be very fast indeed.

Some of the states I work with wondered how the IDEA'04 requirement that there be a resolution meeting figured into the scheduling of an expedited hearing. See 34 C.F.R. Section 300.532(c)(3). So I wrote to OSEP, the federal agency that covers special education. OSEP confirmed my reading: the resolution period of fifteen calendar days runs concurrently with the twenty school days within which the hearing must be scheduled. Letter to Gerl 51 IDELR 166 (OSEP 5/1/8). So a hearing officer must schedule the hearing after the fifteen calendar day resolution period and before the twenty school day deadline. This is complicated by the fact that the parties must disclose their hearing evidence at least five business days before the hearing. Try working that out on a calendar and then work in the calendars of two lawyers and the parties. Fun stuff.

Note that this is the only place in IDEA where all three kinds of days (calendar days= the default type unless otherwise specified; school days and business days) converge. Why not make it extremely confusing ? Why not derf days or personal hygiene days while we are at it? Venting can be healthy!

Anyway, the lawyers did a very nice job, and now my decision is due within ten school days of the end of the hearing. IDEA Section 615(k)(4). Back to work!

The Role of Federal Government in Education - Part II

I need your help again!

In a recent post, I wondered what the role of the federal government in education should be. You can see my preliminary thoughts here.

Well I got interested in this topic and now I've agreed to present at a workshop on it. I need some input. So what do you think?

Should the local school board set all education policy? Would there even be special ed if they controlled all policy? How about federal school nutrition policies? Health policies like immunization and health screening? Compulsory attendance?

The big kahuna of disagreement in this area is probably the No Child Left Behind Act. To say that we have not yet come to a consensus in this area is an understatement.

The American Reinvestment and Recovery Act may be a vehicle for a much bigger role for the U. S. government in the field of education. How would you advise the Secretary of Education concerning this issue? I look forward to hearing from you.

Facebook Group at 200

The new Facebook special education law group now has 200 members. I am amazed at how rapidly the group has grown. It is an interesting place where all kinds of people who are interested in special education law meet and discuss topics of common interest. It is a good mix of stakeholders, parents, lawyers, teachers, related service providers, students of special education, school district officials, advocacy group representatives, students of law, state staff, professors of law and education, consultants and advocates, and others who care about children with disabilities. Oh yeah, and some mediators and hearing officers like me. Please join us if you are interested in this ever-changing and fascinating field of law. You can visit the group here.

The number of subscribers to this blog is also growing rapidly. Thanks you and please keep subscribing. There is power in numbers in the blogosphere, and I appreciate your support.

The other special education law groups are also growing quickly. The brand new Ning group already has ten members. The Twitter group and the BlogCatalog group are also getting known. If you utilize these tools, please join us there as well. When it comes to these tools, I'm still learning. But I hope I never stop learning!

The poll on the left hand side of the blog continues to receive votes. The question is: how would you vote on the case now before the Supreme Court. For the parents has jumped out to a lead. Who are these folks who are recusing themselves? Remember to vote.

California Here I Come

I enjoy networking at special education law conferences. I was just asked to pinch hit at a national conference for Special Ed Hearing Officers and Mediators sponsored by the California office of Administrative Hearings and the UCLA Extension. So I will be at UCLA on April 1st for a presentation on decision writing. Good decision writing is harder than you may think.

I love these types of conferences. I get to network with other special education hearing officers and mediators. the informal sharing of information at these gatherings is generally as useful as the session information. It should be a good education and some fun as well.

I don't know Southern California very well. I went to law school at the University of San Francisco, so I love the Bay Area. But California is a very big state, and I look forward to enjoying the sunny southern part on this trip.

If you are going to be in the area at that time, please let me know. I always enjoy meeting readers of this blog, and I'd love to hear from you.

The New Case Before the Supreme Court - Part III

The U. S. Supreme Court has accepted Forrest Grove School District v. T.A. 523 F.3d 1078, 50 IDELR 1 (9th Cir. 4/28/08) for review. The first post in this series discussed the facts of the case. The second post looked at the ruling by the Ninth Circuit and the lower decision-makers.

In this post, we will offer some speculation as to how the Supremes will rule. Please note, courts often surprise me even after I have witnessed the oral argument. My crystal ball is cloudy at best.

The parents have a few things going for them. As my evidence professor used to say, "win your case at the lower level". In this case, the parents prevailed in the Circuit court of appeals. It is generally easier to be affirmed than reversed. (NOTE however, there have already been three reversals and a dissenting opinion in this very case!)

More importantly, the school district has not appealed the finding that the student is eligible (or in special ed talk is a "child with a disability") or that the school district has failed to provide FAPE. Why did the district concede these issues? If the parents prevail, the district lawyer has some serious explaining to do. The school district chose to hang its hat solely upon the issue of the statutory provision requiring some special education in public school. To me this seems like a very risky strategy. This is especially true given the timing of the students marijuana abuse.

On the other hand, the Supreme Court seems to be really Jonesing for a decision on this issue. The 4 to 4 non-decision on the Tom F case with the same issue must have been a bit embarrassing. Yet here we go again. The key for both sides will be Justice Kennedy who recused himself and did not participate in the previous decision. There were four votes for each side then and the rule in this court is five wins. Kinda gives "one man, one vote" new meaning doesn't it?

The Supreme Court will hear oral arguments on this case on Tuesday April 28, 2009. How do you think that the court will rule? Be a Justice for a day; vote as you would on the high court (black robe optional.) Register your opinion on our unscientific but fun poll on the left-hand side of the blog. What we lack in scientific measurement skills, we make up in audacity.

Tech Update; Hearing Officers; Polls; Etc

I am trying to integrate technology into this blog in a number of ways. The Facebook Special Ed Law Group is now 178 members strong. It is an interesting group of people. Much like this blog, its members include parents, teachers, lawyers for both sides, state and local administrators, advocates, hearing officers, mediators, professors of law special education and related disciplines; and members of advocacy groups. The discussion groups are fascinating. And the resources that members share with each other are very useful. Check it out here.

You can also follow my twitter mini-posts on the left hand side of the blog. I'm still having some difficulty trimming my thoughts to the soundbite-style 140 characters allowed.

For those of you who use BlogCatalog, there is a new special education law group there. And those who like Ning should check out the new special education law group at this link.

Also on the left hand side of the blog, please vote in our ongoing poll. The current question is how would you vote on the case before the U. S. Supreme Court. At last check For the parents was leading For the school district 5 to 3, with 2 voters pulling a Justice Kennedy, as we say in the trade and recusing themselves. Please make your opinion known.

The most recent post on hearing office pay is having a bigger reaction than I thought it would. As I said in that post, I admit my biases on this topic, but I can't see how the system can work without well paid hearing officers. Please continue to give me your thoughts.

Job Opportunity Chief Hearing Officer; & Correction

Here is an interesting job opportunity. The Washington DC Office of the State Superintendent of Education has advertised the position of Chief Hearing Officer. The job involves management and supervision of the special education hearing officers in DC as well as other specified duties. The position is contractual but it pays very well at $225,000. You can read the request for quotation here.

This is part of an encouraging trend that due process hearing officers are being paid better. IDEA'04 imposed more stringent qualifications and training requirements upon the persons who become special ed hearing officers. Given the concern of Congress, as reflected in the amendments it made to the law, it seems only fair that the increased experience and training requirements should be paired with better pay.

I freely admit that I have multiple biases here. I am a hearing officer for a growing number of states and I train hearing officers from many other states. I also advise states on hearing and other dispute resolution systems. OK so I have a conflict, but the pay question is related to my previous posts about the need for a higher level of respect for special ed hearing officers. I suspect that part of the reason for lower pay for hearing officers in some places is a lack of respect, if not outright contempt, for these important folks.

On an unrelated matter, there was an unfortunate typo in my most recent blog post. It was unintentional and I apologize for it. It has since been corrected, but not before many of you read it. Thanks to those who reported it to me so that I could fix it. I'll try to proofread more carefully. Again, sorry.

The New Case Before the Supreme Court - Part II

The U. S. Supreme Court has accepted Forrest Grove School District v. TA, 50 IDELR 1 (9th Cir. 4/28/08) for review. (I haven't figured out how or why but the Jureeka automatic links to court citations are messing up my blog if you need citations, please email me or leave a comment with an address.) The last post in this series discussed the facts of the case.

If the issue in this case seems like deja vu all over again, it is! Just as in the Tom F case recently not decided by the Supreme Court, the issue once again is whether a student must first be enrolled in a public school and be receiving special education services before the parents may be awarded reimbursement for a unilateral private placement.

The due process hearing officer ruled that the school district denied FAPE to the student by not finding him to be eligible and not providing services. He ordered the district to reimburse the parents for the tuition of the student at the Bachelor Academy, but not the Wilderness Expedition. The monthly tuition at the Bachelor Academy was $5,200.

The U S. District Court reversed stating that the statutory provision requiring that a student attend public school before his parents may seek reimbursement precluded reimbursement in this case. (If you feel like special ed law is confusing, you are not alone. Just note the number of reversals in this case as an example. "New law" is confusing even for judges and hearing officers!)

The Ninth Circuit reversed the District Court by a vote of 2 to 1. The Court adopted the reasoning of the Second Circuit in Frank G v. Bd of Educ (2d Cir 2006), cert den 128 S.Ct 436 (2007).

The Ninth Circuit majority found that the equitable power of courts and hearing officers to fashion appropriate relief when their has been a violation of IDEA, including reimbursement for unilateral placements, exists under the Supreme Court decisions in Burlington and Carter independently of the power to order reimbursement now codified in IDEA. The decision also held that the statutory provision in question is ambiguous. The opinion points out that the school district argument would lead to an absurd result inasmuch as parents would have to wait, sometime for long periods of time, for the child to receive special education in the public school, no matter how uncooperative the school district and no matter how inappropriate the education the child received. The Court also notes that in cases, like the one being decided, the student would never receive special education in the public school because he would never be found eligible, and therefore, would never be entitled to reimbursement regardless of the validity or invalidity of the eligibility decision.

We will ponder how the high court might rule on this case in our next post.

Please take note in the meantime of the new poll on the left hand-side of the blog.concerning how you would vote on this case if you were on the U S Supreme Court. Remember our polls may be fun but they are not science! Vote your position.

Great Resource: National Dissemination Center (NICHCY)

If you are looking for information about special education and related topics, a good place to start is the National Dissemination Center, also known as NICHCY. It is a veritable warehouse of valuable information in a user-friendly format. You can get to NICHCY's website by clicking on the link on the left-hand side of the blog labeled special Ed Information Clearinghouse.

NICHCY has recently joined the tech revolution. You can now find it on Facebook here, and you can find it on Twitter here.

Speaking of the tech revolution, please sign up for a free subscription if you enjoy this blog. The numbers really help. The Facebook special education law group continues to grow and to be another great source of special education information. Check it out here . My twitter mini-posts are now automatically found on the left-hand side of the blog, and you can sign up for my"tweets" there.

If you have other great websites or blogs or sources of non-commercial special ed related information, please let us know.

The New Case Before the Supreme Court - Part I

The U. S. Supreme Court has accepted Forrest Grove School District v. T.A. The issue once again is whether a student must first be enrolled in a public school and be receiving special education services before the parents may be awarded reimbursement for a unilateral private placement.

The facts of the case are as follows: The student had been enrolled in the public school from kindergarten until he was a junior in high school. He had difficulty paying attention in class, but he successfully passed from grade to grade. He never received special education and related services from the school district.

He was evaluated for special education by the district only once when his guidance counselor suspected in 2001 that he might have a learning disability. During the evaluation process, the district staff noted that they suspected that the student may have ADHD, but they never informed his parents of the suspicion. The evaluation team found that the student did not have a learning disability and found him to be ineligible for special education.

In 2002, the student began using marijuana. In 2003 he ran away from home. The parents then took him to see a psychologist who diagnosed ADHD, depression, math disorder and cannabis abuse.

The parents then withdrew the student from public school in March 2003 and enrolled him in a Wilderness Therapy Expedition for a few weeks. (I don't think that they had widlerness therapy when I was in school!) Thereafter, he was enrolled in Mount Bachelor Academy. a private residential school for children with academic, behavioral or motivational problems.

After a month, the parents filed for due process, but the hearing officer continued the matter to permit the school district to again evaluate the student. In July 2003, the multi-disciplinary team determined that the student had ADHD and depression, but was nonetheless not eligible for special education because his disabilities did not have a severe effect upon his educational performance.

More on the court rulings and our analysis as to what the Supremes may do with this case in subsequent posts.

Please take note of the new poll on the left hand-side of the blog. Cast your vote for how this case should be decided by the U S Supreme Court. Remember our polls may be fun but they are not science! here's your chance to vote.

Latest Federal Regulations - Parental Consent: Part II

The federal Office of Special Education Programs made several changes to the federal IDEA regulations effective on December 31, 2008. In a recent post about the regulatory change to parental consent to continue special education, I pointed out my skepticism of changes made by a federal agency when a resident has one foot out of the door.

You can review the analysis of comments to the proposed regulations by OSEP at this link.

Here are some more of the key items discussed by OSEP concerning the changes to the consent regulations:

Other commenters argued that the change was inappropriate because the right to FAPE belongs to the child and not to the parents and the change could undermine that right. OSEP responded as follows:

Discussion: We do not agree with the commenters that § 300.300(b)(4) undermines a child's right to FAPE. Section 300.101 requires that FAPE must be available to all children with disabilities residing in a State between the ages of 3 and 21, inclusive, except that public agencies are not required to serve children aged 3 through 5 and aged 18 through 21 if serving such children is inconsistent with State law, practice or the order of any court with respect to the provision of public education to children of those ages. The child's parents, under the Act, are afforded rights regarding the provision of FAPE to their child, including the right to determine whether their child will receive special education and related services. Specifically, under section 614(a)(1)(D)(i)(II) and (ii)(II) of the Act, a parent has the authority to determine whether a public agency may begin to provide special education and related services to their child. As discussed previously, it is the Department's position that a parent also should have the authority to revoke consent to the continued provision of special education and related services to their child. The Act presumes that parents act in the best interest of their child. Therefore, affording a parent the right to consent to the initial provision of special education and related services or the right to revoke consent, in writing, to the continued provision of special education and related services is consistent with the Act and does not undermine a child's right to FAPE under § 300.101.

73 Fed Register No. 231 at page 73010 (12/1/2008)

Some commenters argued that the change in the consent regulation was a lessening of the rights of a child with a disability which is specifically forbidden by Section 607 of the Act. OSEP responded as follows:

We also disagree that allowing a parent to revoke consent for the provision of special education and related services under § 300.300(b)(4) procedurally or substantively lessens protections provided to children with disabilities as embodied in regulations in effect on July 20, 1983. As previously stated in response to other comments, a parent is recognized under the Act as the party responsible for protecting the child's interest in obtaining appropriate educational services. It is the Department's position that the protections provided to children with disabilities are enlarged rather than lessened by amending the regulations to provide that a parent's decision to revoke consent for the continued provision of special education and related services cannot be challenged by the public agency. Furthermore, the change reflected in § 300.300(b)(4) is consistent with the legislative changes made to the Act in 2004, which included adding to section 614(a)(1)(D)(ii)(II) of the Act the requirement that parental consent be obtained before the public agency begins to provide special education and related services to their child. In our view, the better reading of the Act, especially in light of the Department's long-standing regulatory definition of ''consent,'' which has included the concept that consent can be revoked at any time, is that a parent's revocation of consent for the continued provision of services cannot be challenged by a public agency any more than a parent's refusal to provide consent for the initial provision of special education and related services can be.

73 Fed Register No. 231 at page 73015 (12/1/2008)

What do you think of these changes to the federal regulations?