The New Case Before the Supreme Court - Part IV
The case of TA v. Forrest Grove Sch Dist goes to oral argument before the U. S. Supreme Court next week. I found a very provocative article about the private school attended by the student in Time Magazine. Here is a link.
One comment in the article bothers me a little bit. It states that the validity of the practices of the residential school is not at issue- only whether under IDEA the school district must reimburse the parents for tuition. While it is true the the appropriateness of the program is not an issue in this case yet, the parents in every reimbursement case must prove three things before they may be awarded reimbursement; that the district denied FAPE; that the private placement is appropriate to the student's needs; and that the equities favor reimbursement. Doesn't the second prong cover what the article says is not relevant? Am I wrong?
The briefs for the case can be found here. One point in the district briefs causes me some concern. For example in their reply brief at p. 5-6 the district contends that only courts and not hearing officers have the power to award tuition reimbursement. Although I concede that some say I have an expansive view of the powers of a due process hearing officer (my powers are beyond your comprehension!), I believe that this is wrong. First, if we require exhaustion of administrative remedies for almost everybody, that is you must first have a due process hearing before going to court, it would be absurd to not permit hearing officers to award all appropriate relief. Granted the HO decision is subject to appeal and courts can reverse, but do we really want all cases appealed to court? Wouldn't that defeat the judicial economy philosophy underlying the exhaustion doctrine? Second, OSEP, whose opinions are entitled to some deference though not precedential value, has opined that HOs have such powers. Third, many courts have considered HO awards of reimbursement, and at least implicitly have approved of the authority to award such relief by being silent as to the issue. In short, I think that HOs must have this authority.
By the way there is still time to vote on the special education law blog poll on this case. If you were on the high court how would you vote? For the parents now have a 17 to 12 vote lead over for the district. Cast your vote on the left hand side of this blog.
Las Vegas Conference: If I Go, Do I have to Stay in Vegas?
I'm going to the LRP Institute on Special Education Law in Las Vegas next week. The annual festival is usually very heavily attended. I get to visit with a bunch of people I need to see all in the same place. (Please forgive the what happens in Vegas joke in the title. I couldn't help myself.)It promises to be a good conference.
For reasons that I cannot disclose, I am really looking forward to the JoLeta Reynolds Award luncheon this year. JoLeta is one of those great people who affect lots of people positively and the award in her honor promises to be an excellent decision this year.
For reasons that I cannot disclose, I am really looking forward to the JoLeta Reynolds Award luncheon this year. JoLeta is one of those great people who affect lots of people positively and the award in her honor promises to be an excellent decision this year.
Here is the conference agenda. If you are planning on attending the conference or if you will be in Vegas next week, please send me an email at the address on the top (green portion of the blog. I always enjoy meeting readers of this blog.
Overlegalization of Special Ed Disputes - Part III
Before I get to the possibility of changes to the due process system in a future post, a number of people responded to the most recent post with some good questions. Some are happy with the due process hearing system, many are not. One thing that is clear is that the system isn't working the way the folks who set it up meant it to work. There is a lot more court-like behavior than not in a hearing.
Even the name "due process" hearing supports the notion that those who designed the system envisioned something more like a welfare hearing than the IBM v. Xerox trial. Even where the hearing officer is managing the case carefully, the time involved is extreme. One of the reasons that the Supreme Court approved reimbursement for unilateral placements in the Burlington decision was the extraordinary length of time it takes to navigate the due process system and subsequent court appeals.
A number of readers have asked for the states that generate 80% of all due process cases. My numbers may be old, but I suspect that they are still valid. According to the GAO study, the key states are Washington, DC (by far the league leader in these stats), California, New York, New Jersey, Pennsylvania and Maryland. I believe the current statistics are comparable, although you have to be very patient to dig them out. Here's a link.
Thanks for the great questions and responses. In the next post in this series, I'll take a look at some possible changes in the due process hearing system.
A number of readers have asked for the states that generate 80% of all due process cases. My numbers may be old, but I suspect that they are still valid. According to the GAO study, the key states are Washington, DC (by far the league leader in these stats), California, New York, New Jersey, Pennsylvania and Maryland. I believe the current statistics are comparable, although you have to be very patient to dig them out. Here's a link.
Thanks for the great questions and responses. In the next post in this series, I'll take a look at some possible changes in the due process hearing system.
Overlegalization of Special EdDisputes - Part II
As I mentioned in a previous post, I recently heard an excellent presentation at the California Special Ed Law Conference by Perry Zirkel on the overlegalization of special education He cited some of his published articles and other studies. One simply counted the number of legal citations per decision and found an increase over the years. Others showed the increase in due process hearings.
He also talks about the reaction to overjudicialization of special ed: distrust, the development of cottage industries and the scapegoating of the neutrals. The distrust is apparent at hearings. By the time parents and districts get to a due process hearing, there is generally a lot of venom. It's hard to believe that IDEA's "collaborative" model can succeed after a hearing is over.
The cottage industries development is interesting. I suppose we should never count out the possibility of entrepreneurs finding a market. I guess that this category now includes me. Cool, I always wanted to have a cottage!
The scapegoating of the neutrals happens throughout society. At baseball games, we always boo as the umpires take the field. But the reaction to due process hearing officers is extreme, even for umps. At some conferences, I have actually seen people spit on the ground when they learn that they are in the presence of hearing officers.
I generally agree with this diagnosis. I have previously mentioned the possibility of adapting the Inquisitorial method of fact-finding to these special ed disputes- although as you will see in the next post in this series, I haven't exactly refined my thinking in that regard.
But one critique that I expressed at the conference, is that I think one has to distinguish between the 8 to 10 states that have over 80% of the due process hearings and the rest of the country. In the other states, I generally hear from people that there are no lawyers who will represent parents. Now mid you, I'm not advocating more hearings, but I do think that if there are never any hearings or only rare ones, the system isn't working properly. Maybe in some places the system is underlegalized.
What do you think?
He also talks about the reaction to overjudicialization of special ed: distrust, the development of cottage industries and the scapegoating of the neutrals. The distrust is apparent at hearings. By the time parents and districts get to a due process hearing, there is generally a lot of venom. It's hard to believe that IDEA's "collaborative" model can succeed after a hearing is over.
The cottage industries development is interesting. I suppose we should never count out the possibility of entrepreneurs finding a market. I guess that this category now includes me. Cool, I always wanted to have a cottage!
The scapegoating of the neutrals happens throughout society. At baseball games, we always boo as the umpires take the field. But the reaction to due process hearing officers is extreme, even for umps. At some conferences, I have actually seen people spit on the ground when they learn that they are in the presence of hearing officers.
I generally agree with this diagnosis. I have previously mentioned the possibility of adapting the Inquisitorial method of fact-finding to these special ed disputes- although as you will see in the next post in this series, I haven't exactly refined my thinking in that regard.
But one critique that I expressed at the conference, is that I think one has to distinguish between the 8 to 10 states that have over 80% of the due process hearings and the rest of the country. In the other states, I generally hear from people that there are no lawyers who will represent parents. Now mid you, I'm not advocating more hearings, but I do think that if there are never any hearings or only rare ones, the system isn't working properly. Maybe in some places the system is underlegalized.
What do you think?
Birthday Ideas??
On May 9, 2009 this blog will celebrate its second birthday. I need some good ideas for how to celebrate this momentous occasion. What do you think?
If anybody wants to donate a prize to give away to an essay winner, please let me know. If you can think of other ways to celebrate the occasion, I'm listening. This is an important milestone; let's see what you can come up with.
The blog continues to draw many readers. Many take advantage of the free subscriptions and receive posts by email or through an rss reader. The wide variety of special education stakeholders is impressive. Some of you also are active in the Facebook Special Education Law Group or the Ning group. Others follow my tweets on Twitter- see the twitter section on the lefthand side of the blog.
I'm always looking for topics for future posts. As you likely know, I already have a whole bunch of ideas, but I'm always thankful for feedback about ideas. Let me know what you think.
I'm always looking for topics for future posts. As you likely know, I already have a whole bunch of ideas, but I'm always thankful for feedback about ideas. Let me know what you think.
Poll Tied; Facebook; Twitter
The poll we are conducting is tied. The question is if you were on the U. S. Supreme Court how would you vote on the pending special education case. Right now it is dead even at 10 for the parents to 10 for the school district with two of our pretend justices recusing themselves like Justice Kennedy did in the last case with a similar issue. This is not a scientific poll; this is a fun exercise only. Nonetheless, we encourage you to make your voice heard.
Semi-Breaking News: The Obama Administration, through the Solicitor General, has filed a brief supporting the parents in the special ed case pending before the U S Supreme Court, Forrest Grove School District v. TA. You can view the federal government's brief here. This is important for a number of reasons. first, it could persuade one or more justices. Also, it signals that Congress will likely seek to change the result through the reauthorization process if the high court rules for the district.
Our other blog-related activities continue to be successful. The Facebook special ed law group now has 252 members. You can join here. There are some great resources there as well as here.
The Ning special ed law group now boasts a dozen members and some interesting discussion boards. Check it out here.
Our twitter posts are listed on the left hand side of the blog. I'm still working on reducing my "grand" thoughts to soundbite. Not quite there yet. Many of you enjoyed listening to my voice on the recent voice recognition post. Again, I'm a work in progress.
I encourage you to take advantage of the free subscription on the left hand side of the blog. You can get the posts delivered directly to your email or by rss feed. Higher numbers of subscribers bring credibility in the blogosphere, so please subscribe. It's also good to bookmark the blog and look at the actual blog sometimes to take advantage of the polls, links, education news sources, and other bells and whistles. I appreciate your support.
Reform: Bad Teachers vs. Other Problems
In response to a question from a teacher recently, President Obama said that some people just aren't cut out to teach. The President had asked the teacher if she had personally seen any teachers so bad that she would not want her children in that classroom. The teacher looked away and didn't respond. Here's a link to a news account.
I know that there are bad teachers; I'm a product of an urban public school system. I've had some terrible teachers. The problem is that the whole NCLB-type reform movement seems to blame most of the problems with public schools on the teachers. If only they were "highly qualified," then everything would be fine...
The problem with this view is twofold- Firstly, some teachers are good. My concern with merit pay is - who defines the good teachers. If the principal decides, some principals may favor the brown noses regardless of whether they can actually teach. Test scores pose other problems, especially single session high - stakes tests.
Secondly, there are other factors, intervening variables, at play here. One example is poverty. In some schools, the students show up hungry; cannot concentrate and have to negotiate halls full of drug dealers. They go home to a family more focused on feeding everybody than on reading to the kids or checking homework. Then we are shocked when many of these kids don't do well in school and a disproportionate amount of them end up in special education. What is more shocking really is that some of them do succeed. We should study those kids and their families to get a handle on what reforms should look like.
Don't misunderstand, I'm all for reforming our schools to make them better. Our kids deserve the best. But the reforms will have a better chance of success if they are reality based.
I know that there are bad teachers; I'm a product of an urban public school system. I've had some terrible teachers. The problem is that the whole NCLB-type reform movement seems to blame most of the problems with public schools on the teachers. If only they were "highly qualified," then everything would be fine...
The problem with this view is twofold- Firstly, some teachers are good. My concern with merit pay is - who defines the good teachers. If the principal decides, some principals may favor the brown noses regardless of whether they can actually teach. Test scores pose other problems, especially single session high - stakes tests.
Secondly, there are other factors, intervening variables, at play here. One example is poverty. In some schools, the students show up hungry; cannot concentrate and have to negotiate halls full of drug dealers. They go home to a family more focused on feeding everybody than on reading to the kids or checking homework. Then we are shocked when many of these kids don't do well in school and a disproportionate amount of them end up in special education. What is more shocking really is that some of them do succeed. We should study those kids and their families to get a handle on what reforms should look like.
Don't misunderstand, I'm all for reforming our schools to make them better. Our kids deserve the best. But the reforms will have a better chance of success if they are reality based.
I Use Your Comments; Voice Posting - Kinks
Thank you to all who posted comments or emailed me regarding decision writing. I used many of your comments in my presentation at UCLA. The hearing officers present enjoyed hearing comments from various stakeholders. This blogging thing really comes in handy.
The California conference was extremely good. There were about 75 ALJs from California. Attendance was down but there were also ALJs/HOs from Maryland, Florida, Wisconsin, Utah, Pennsylvania, and West Virginia. It was a very good group. My presentation on Friday seemed to be well received, and the participants were very interactive during my session.
I also attended on Thursday. One topic was whether special education disputes have been overlegalized. This has caused me to do some serious thinking, and will be the subject of a future post. My preliminary thought is that the dispute resolution process is overlegalized in those seven to ten states that generate about 85% of all hearings. I think, however, that it is underlegalized everywhere else. In many places, parents and advocates tell me that parents cannot find experienced special education lawyers to represent them. I'm not advocating more due process hearings in the other states, but I do think that having a lawyer is very important the way the system currently stands. More on this later.
I also attended on Thursday. One topic was whether special education disputes have been overlegalized. This has caused me to do some serious thinking, and will be the subject of a future post. My preliminary thought is that the dispute resolution process is overlegalized in those seven to ten states that generate about 85% of all hearings. I think, however, that it is underlegalized everywhere else. In many places, parents and advocates tell me that parents cannot find experienced special education lawyers to represent them. I'm not advocating more due process hearings in the other states, but I do think that having a lawyer is very important the way the system currently stands. More on this later.
The technical problem is really pretty small. I'm learning how to work the voice recognition system that allows me to post by cell phone. I have to learn to speak more clearly. The first post on the overlegalization presentation was made at the conference, but was too garbled to take. On the way home, I tried again. The second one heard "special ed" as "special as"... kinda takes the steam out of it, eh? The third try was the charm; I was able to post a conference happening by cellphone! If you click on "listen" on the most recent blog post, you can hear my voice carefully articulating the words. I'm learning.
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