Seclusion & Restraints Back in the News

Perhaps second only to bullying as a hot button issue in special education law, the topic of seclusion and restraints is back in the news. The ABC news magazine Nightline had an investigative piece on seclusion and restraints in the schools last night. The story focused on electric shock, restraint and a deadly "hold." Pretty scary stuff.

The House Committee on Education has a clip with the video on its website.  The story apparently got the attention of the ranking Democrat, Rep. George Miller.  Here is the link.

Congress really needs to act on this important issue!  Write your representative with your views.

Here are some of  the previous posts from this blog on the topic of seclusion and restraints:

You can also see the Nightline piece here:

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Breaking: OCR Issues Activity Report

Seal of the United States Department of Education
Seal of the United States Department of Education (Photo credit: Wikipedia)

The Office for Civil Rights of the U. S. Department of Education issued a report yesterday summarizing its activities and actions over the last four years.  OCR deals primarily with §504 and various other statutes.  Another division of the department of Education, the Office of Special Education Programs, oversees IDEA.  §504 is an anti-discrimination statute that pertains to employment and other arenas besides education.  IDEA is a funding/entitlement statute that pertains only to education.

As we have discussed here in previous posts, both statutes use the term "free and appropriate public education," but to make things interesting the definitions of FAPE are different. Fun at the old ballpark!

You can read the press release pertaining to the OCR report.  You can read the entire 76 page report here.

We will have more on the report in future posts.
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Special Education Law 101 - Part X

James A. Bennett's Private School, Butte, Mont...
James A. Bennett's Private School, Butte, Montana (1901) (Photo credit: Butte-Silver Bow Public Library)
This is another installment in our continuing series on the basics of special education law.  Today we enter the mysterious world of unilateral placements.  If the parents (or adult student) win a due process hearing, the two most common types of relief are compensatory education and reimbursement for a unilateral placement.  Today we will take a hard look at the latter remedy.

Unilateral Placements

In the case of Burlington Sch. Comm. v. Dept. of Educ., et. al. 471 U.S. 359, 105 S.Ct. 1996, 556 IDELR 389 (1985), the Supreme Court was faced with the issue of whether the IDEA permitted courts to award reimbursement to parents when the IEP developed by the schools is not appropriate and the parent removes the student from public school and places him in a private school that does provide FAPE.  Noting that the statutory provisions of the IDEA confer broad equitable powers upon the courts to fashion an appropriate remedy, and the fact that judicial review of IDEA cases often takes years, the Supreme Court held that the IDEA does empower courts to award such reimbursement.  Burlington, supra.

In Florence County Sch. Dist. v. Shannon Carter, et. al. 510 U.S. 7, 114 S.Ct. 361, 20 IDELR 532 (1993), the Supreme Court was faced with a unilateral placement case in which the public schools provided an inappropriate education leading to a unilateral placement at a private school that provided an appropriate education for the student but that did not meet some of the requirements of the SEA (specifically state approval of the private school.)  The Supreme Court held that courts may award reimbursement in these cases.  Carter, supra.

In Forrest Grove Sch Dist v. TA 129 S.Ct. 2484, 52 IDELR 151 (U.S.  6/22/9)   The Supreme Court held that it is not a prerequisite to reimbursement under IDEA that a child have been previously enrolled in and receive services from a public school. The Court noted that under its previous rulings in Burlington and Carter, courts have broad authority to grant appropriate relief when there has been a violation of IDEA.  The Court held that the 1997 amendments do not limit that authority. The ambiguous language of the provision at issue was not sufficient to effectuate a repeal by implication of Burlington and Carter.

     The IDEA now provides that a hearing officer or court may order an LEA to reimburse parents for a unilateral placement if the hearing officer or court finds that the LEA had not made FAPE available to the student in a timely manner prior to the enrollment in the private school.  IDEA, § 612 (a)(10)(C)(ii).  Such reimbursement may be reduced or denied if the parents failed at the last IEP meeting to reject the proposed placement and state their intent to enroll the child in private school at public expense, IDEA, §  612 (a)(10)(C)(iii)(I)(aa); or if they fail to give written notice to the LEA of their  rejection of the proposed placement and state their intent to enroll the child in private school at public expense 10 business days prior to removal, IDEA, §  612 (a)(10)(C)(iii)(I)(bb); or if the parents fail to make the student available for an evaluation, IDEA, §  612 (a)(10)(C)(iii)(II); or upon a judicial finding of unreasonableness with respect to the actions taken by the parents, IDEA, §  612 (a)(10)(C)(iii)(III).  Reimbursement shall not be reduced or denied for failure to give notice if the school prevented the parent from providing such notice, IDEA, §  612 (a)(10)(C)(iv)(I)(aa); or if the parents were not provided with written procedural safeguards stating this notice requirement, IDEA, §  612 (a)(10)(C)(iv)(I)(bb); or if compliance with the notice clause would likely result in physical harm to the child, IDEA, §  612 (a)(10)(C)(iv)(I)(cc).  Within the discretion of the hearing officer or court, reimbursement may or may not be reduced or denied if the parents are illiterate or cannot write in English, IDEA, §  612 (a)(10)(C)(iv)(II)(aa); or if compliance with this clause would likely result in serious emotional harm to the child, IDEA, §  612 (a)(10)(C)(iv)(II)(bb).  See also, 34 C.F.R. § 300.148. 

The general rule, then, is that reimbursement for a unilateral placement may be awarded where a parent/student proves the following:1) the school district denied FAPE to the student or otherwise violated IDEA; 2) the parent's private school placement for the student is appropriate; and 3) equitable factors do not preclude the relief.  Forrest Grove Sch Dist v. TA 557 U.S. 230, 129 S.Ct. 2484, 52 IDELR 151 (U.S.  6/22/9)
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Happy Thanksgiving

English: "The First Thanksgiving at Plymo...
English: "The First Thanksgiving at Plymouth" (1914) By Jennie A. Brownscombe (Photo credit: Wikipedia)

To all of our readers, please have a happy Thanksgiving!

Here are some fun facts concerning this holiday, which has always been one of my favorites, courtesy of the U S Census Bureau:

Thanksgiving Day: Nov. 22, 2012

In the fall of 1621, the Pilgrims, early settlers of Plymouth Colony, held a three-day feast to celebrate a bountiful harvest, an event many regard as the nation’s first Thanksgiving. Historians have also recorded ceremonies of thanks among other groups of European settlers in North America, including British colonists in Virginia in 1619. The legacy of thanks and the feast have survived the centuries, as the event became a national holiday in 1863 when President Abraham Lincoln proclaimed the last Thursday of November as a national day of thanksgiving. Later, President Franklin Roosevelt clarified that Thanksgiving should always be celebrated on the fourth Thursday of the month to encourage earlier holiday shopping, never on the occasional fifth Thursday.
 Where to Feast

114.7 million                      
Number of households across the nation — all potential gathering places for people to celebrate the holiday. Source: U.S. Census Bureau, Housing Vacancy Survey, Table 3

Number of places in the United States named after the holiday’s traditional main course. Turkey Creek, La., was the most populous in 2011, with 440 residents, followed by Turkey, Texas (424), Turkey, N.C. (295) and Turkey Creek, Ariz. (294). There are also 11 townships around the country with Turkey in their names, including three in Kansas. (Please note that the Turkey Creek, Ariz., population total pertains to the 2010 Census). Source: U.S. Census Bureau, 2011 Population Estimates and American FactFinder, Table DP-1

Number of places and townships in the United States that are named Cranberry or some spelling variation of the acidic red berry (e.g., Cranbury, N.J.), a popular side dish at Thanksgiving. Cranberry Township (Butler County), Pa., was the most populous of these places in 2010, with 28,251 residents. Cranberry township (Venango County), Pa., was next (6,647).
Source: U.S. Census Bureau, Population Estimates <

Number of places and townships in the United States named Plymouth, as in Plymouth Rock, the landing site of the first Pilgrims. Plymouth, Minn., is the most populous, with 71,561 residents in 2011; Plymouth, Mass., had 56,767. There is just one township in the United States named Pilgrim. Located in Dade County, Mo., its population was 131 in 2011. And then there is Mayflower, Ark., whose population was 2,298 in 2011, and Mayflower Village, Calif., whose population was 5,515 in 2010. Source: U.S. Census Bureau, Population Estimates

Culinary Delights
The number of grocery stores in the United States in 2010. These establishments are expected to be extremely busy around Thanksgiving, as people prepare for their delightful meals.
Source: U.S. Census Bureau, County Business Patterns, NAICS Code 44511
The number of baked goods stores in the United States in 2010 – a potential place to visit to purchase refreshing desserts. Source: U.S. Census Bureau, County Business Patterns, NAICS Code 445291<
The number of fruit and vegetable markets in the United States in 2010 – a great place to find those holiday side dishes. Source: U.S. Census Bureau, County Business Patterns, NAICS Code 445230 <
$12.1 million
The value of U.S. imports of live turkeys from January through July of 2012, with 99.8 percent of them coming from Canada. When it comes to sweet potatoes, the Dominican Republic was the source of 45.3 percent (2.5 million) of total imports ($5.6 million). The United States ran a $9.1 million trade deficit in live turkeys during the period but had a surplus of $40.6 million in sweet potatoes.
Source: U.S. Census Bureau, Foreign Trade Statistics
768 million pounds
The forecast for U.S. cranberry production in 2012. Wisconsin is estimated to lead all states in the production of cranberries, with 450 million pounds, followed by Massachusetts (estimated at 210 million).

New Jersey, Oregon and Washington are also estimated to have substantial production, ranging from 14 to 54 million pounds.
Source: USDA National Agricultural Statistics Service,
2.7 billion pounds
The total weight of sweet potatoes — another popular Thanksgiving side dish — produced by major sweet potato producing states in 2011. North Carolina (1.3 billion pounds) produced more sweet potatoes than any other state. Source: USDA National Agricultural Statistics Service, <
> Page 58
1.1 billion pounds
Total production of pumpkins in the major pumpkin-producing states in 2011. Illinois led the country by producing an estimated 520 million pounds of the vined orange gourd. Pumpkin patches in California, Pennsylvania and Ohio also provided lots of pumpkins: Each state produced at least 100 million pounds. The value of all pumpkins produced in the United States was $113 million. Source: USDA National Agricultural Statistics Service,
> <
If you prefer cherry pie, you will be pleased to learn that the nation’s forecasted tart cherry production for 2012 totals 73.1 million pounds, down 68 percent from the 2011 production. Of this 2012 total, Pennsylvania led the country, producing an estimated 34 million pounds.
Source:  USDA National Agricultural Statistics Service,
> Page 1
2.27 billion bushels
The forecasted total volume of wheat — the essential ingredient of bread, rolls and pie crust — produced in the United States in 2012. Kansas, Montana and North Dakota accounted for an estimated 40 percent of the nation’s wheat production. Source: USDA National Agricultural Statistics Service, The following data can be accessed through this website.
672,370 tons
The 2012 contracted production of snap (green) beans in the United States. Of this total, Wisconsin led all states (309,010 tons). Many Americans consider green bean casserole a traditional Thanksgiving dish. Source: USDA National Agricultural Statistics Service,
> Page 16
254 million
The number of turkeys expected to be raised in the United States in 2012. That is up 2 percent from the number raised during 2011. Source: USDA National Agricultural Statistics Service, <
46 million
The estimate of turkeys Minnesota expects to raise in 2012. The Gopher State was tops in turkey production, followed by North Carolina (36 million), Arkansas (29 million), Missouri (18 million), Virginia (17 million) and Indiana (17 million). These six states together account for about two-thirds of U.S. turkeys produced in 2012.
Source: USDA National Agricultural Statistics Service,
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Beware Unpublished Decisions!

Appeal Request from Lenny Bruce v. Hon. John M...
Appeal Request from Lenny Bruce v. Hon. John M. Murtagh, Criminal Court of the City of New York: Special Sessions: County of New York: Part 2B: Frank S. Hogan, The District Attorney of the County of New York, 12/15/1964 (Photo credit: The U.S. National Archives)

OK this is a pet peeve of mine.  People continue to cite unpublished decisions.  When a court designates an decision as "unpublished," it designates that it does not mean for the opinion to have precedential value. When a court says this, they mean it.

The appellate rules permit citing unpublished decisions, but one had better be careful to label such a decision as unpublished because they are not precedent.  They resolve the pending individual case and a lawyer can argue that the reasoning is persuasive, but they do not settle the law for future cases.

This is particularly important in the area of special education law.  By my count there have been approximately 60 unpublished decisions in IDEA cases by U. S. Courts of Appeal in calendar years 2010 and 2011, and many more this year. For circuit level decisions, a published decision generally has a citation including the federal reporter, currently in its third series.  So the citation to "F.3d" with numbers before and after indicates that it has been published.  Other citations, such as "F.Appndx" are dubious.

Yet I continue to hear special ed law experts citing unpublished decisions as "the law."   Some publications of special ed law clearly mark unpublished cases, others are somewhat less careful. 

Here is an example of how you can get into trouble by relying on an unpublished decision:  The Third Circuit Court of Appeals recently took a hearing officer and a district court judge to task for deciding a case with only an unpublished decision as their authority.  The decision in DF by AC v. Collingswood Borough Bd of Educ 694 F.3d 488, 59 IDELR 211 (3d Cir 12/12/12)is illuminating.

So try to weed out these unpublished decisions from the law!  Do not rely upon unpublished decisions when arguing or stating "the law."  We already have a big problem in that special education law is closer to metaphysics than property law.  Let's not aggravate it by blurring these lines. 

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Special Education Law 101 - Part IX

English: Seal of the Supreme Court of the Unit...
(Photo credit: Wikipedia)
This is the most recent post in the continuing series that is meant to be an introduction to special education law.  In today's post we will be discussing discipline of students with disabilities.  People often ask why disciplinary actions are regulated by the special education law.  The reason is that before passage of the law's predecessor, it was common for school officials to exclude children with disabilities by expelling them and giving them long suspensions. This series of abuses was reflected in the legislative history of the law.  
Discipline is one area that seems to cause folks to develop stomach problems (sorta like the rule against perpetuities in law school), but it isn't really as hard as we seem to make it.  Let me know if this explanation helps.

                                                   Discipline Issues

The IDEA imposes special rules that govern the discipline of students with a disability.  The basic rule is that a special education student may not have her placement changed (i.e., suspensions of more than 10 days or expulsion) for conduct that is a manifestation of her disability.  IDEA, § 615(k)(1)(F).  If the behavior is not a manifestation of the student’s disability, the student may be disciplined in the same manner and for the same duration as children without disabilities.  IDEA, § 615(k)(1)(C).

One exception is that, regardless of manifestation, the schools may remove a student to an interim alternative educational setting,  sometimes referred to as “IAES,” for up to 45 school days if (1) the student possesses a weapon at school; or (2) the student possesses or uses or sells illegal drugs at school; or (3) the student has inflicted “serious bodily injury” upon another person while at school.  IDEA, § 615(k)(1)(G).  The schools may also ask a hearing officer to change the placement of a student with a disability to an IAES if remaining in the current placement is substantially likely to result in injury to the student or others.  IDEA, § 615(k)(3)(A) and (B).

              Another cardinal rule in the discipline area is that regardless of whether the conduct of a student was a manifestation of the student’s disability, where a student with a disability is removed from his current placement, the schools must continue to provide educational services to ensure FAPE for the student and to enable the student to continue to participate in the general curriculum although in another setting.  IDEA, § 615(k)(1)(D).  See generally regarding discipline issues, 34 C.F.R. §§ 300.530 – 300.537. 
                The Supreme Court dealt with discipline issues and endorsed the stay put provision in the case of Honig v. Doe 484 U.S. 305, 108 S.Ct. 594, 559 IDELR 231 (1988).  In that decision, the Supreme Court, noting the Congressional intent in preventing the exclusion of disabled students and reiterating the importance of the procedural safeguards under the IDEA, refused to read a dangerousness exception into the stay put provision. The high Court outlines the history of abuses of the discipline of kids with disabilities in that decision.
 In District of Columbia v. Doe ex rel Doe 611 F.3d 888, 54 IDELR 275 (DC Cir 7/6/10) DC Circuit ruled that HO did not exceed his authority where he reduced a disciplinary suspension. HO reduced a 45 day suspension to an 11 day suspension noting the trivial nature of the infraction and finding that the more lengthy suspension denied FAPE to the student.

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