Before the presentation begins, please text your response:

Top 10 Special Education Mistakes

Made by Administrators

Janet R. Decker, J.D., Ph.D.janet.decker@uc.edu

DISCLAIMER!!!!Mistakes attorneys make

Mistakes parents make

Mistakes teachers make

Overview of Presentation

1. Special Education Litigation

2. 10 Mistakes

3. Q, A, & Discussion

Today’s presentation will only address public school law. It is informational & should not be construed as legal advice.

Special Education

• In 2007, almost 6 million students with disabilities received services under IDEA – Which equals only about 9% of total students

(Data Accountability Center, 2011)

Special Education Litigation

• In 2006-2007, 3,546 complaints, 2,870 mediation, & 3,263 due process hearings were requested (Data Accountability Center, 2011).

• Additionally, many federal and state court cases– Increase in U.S. Supreme Court spec. educ. cases:

• 1975-2005 (twenty years)= 7 cases• 2005-2011 (six years) = 5 cases

Special Education Litigation• May be the result of inadequate knowledge about

IDEA (Katsiyannis & Herbst, 2004).

• Dissatisfaction with due process hearings– inefficient, expensive, ineffective, inconsistent, and

“corrosive” to the relationship between parents and schools (Mueller, 2009; Edwards, 2005; D’Alo, 2003)

• Expensive– districts are spending more than $90 million per year to

resolve conflicts (CADRE, 2008)

Top 10 List Created From:• Special Educ. Case Law

• Special Educ. Litigation Research

• Special Educ. Administrators

• Personal Experience– Involvement in Litigation & Research– Communication with educators, school leaders,

& parents

1. Confusion about disciplining students with disabilities under IDEA

Example

• Since 2004 IDEA Reauthorization, there’s been over 120 discipline cases (court decisions, due process hearings, & Office of Civil Rights rulings) (Wagner & Katsiyannis, 2010)

What’s the problem?• Misconception that students with disabilities cannot be

disciplined

• Failure to follow procedure:– 10 Day Rule– Manifestation Determination– Stay Put– Interim Alternative Education Setting

• Failure to identify students with disabilities until discipline has been imposed (Richland School Dist. v. Thomas P., 2000)

2. Confusion about disciplining students with disabilities under Section 504

Example

• Of all discipline cases, districts have been challenged most frequently on cases involving students covered under Section 504 (Wagner & Katsiyannis, 2010)

What’s the problem?• Section 504 doesn’t explicitly require districts to conduct a

manifestation determination– However, Section 504 regulations state placement

decisions must be based on evaluative data & must be made by a group of people knowledgeable about the student (34 CFR 104.35(c)).

• Thus, some districts have failed to conduct a manifestation determination for Section 504 students when required – In other words, when there is a proposed change of

placement (Wagner & Katsiyannis, 2010)

3. Focusing primarily on federal statutes, but must stay abreast of the evolving case law and regulations

Example - FAPE

IDEA = students must be provided a “Free Appropriate Public Education” (FAPE)•Definition = special education & related services that are:

– provided at public expense, under public supervision, – meet the standards outlined by the SEA, – include PK-12 education as outlined by the state, & – conform with the student’s IEP (20 U.S.C. § 1401(8))

•Congress purposely has not provided more clarity because what is considered “appropriate” varies from student-to-student.

– lack of guidance has led to frequent disagreement & litigation– numerous court decisions provide additional guidance, however, only U.S.

Supreme Court precedent must be followed by every state (Yell & Drasgow, 2000)

Example - LREIDEA = students must be educated in the Least Restrictive Environment (LRE)•Definition =

– educated with children “who are not disabled” “to the maximum extent appropriate,” &

– “special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily” (20 U.S.C. § 1412 (a)(5)(A))

•Litigation has ensued

•Split in federal circuits about what test to use to determine if LRE was met (Bon, 2009)

What’s the problem?

• Applying FAPE & LRE to real situations– Is unclear

• need regulations & case law for further explanation

– Courts have different interpretations of LRE & FAPE• jurisdiction & specific facts matter

– Spec. Educ. Directors list FAPE & LRE as the most significant legal issues they face

4. Educating themselves about special education law, but fail to adequately educate their staff

Example & Problem

• Can’t erase mistakes after they are already made.

• Cases often hinge on mistakes made by teachers & paraprofessionals due to ignorance about the law.

5. Feeling empowered that they do not need to provide the “best” education for students with disabilities

Example• “The parents want a Cadillac & I only need to give them a Chevy”

• U.S. Sup. Ct held in Hendrick Hudson Central School Dist. v. Rowley (1982) – FAPE is met when school provides

• instruction designed to meet the unique needs of the student• services that allow the student to benefit from the instruction

– Do not have right to the “best” possible education or an education that allows them to achieve their maximum potential

• entitled to education that is “reasonably calculated” to “confer some educational benefit.”

– Two-part test to determine whether FAPE obligations met:

1.whether the school has followed IDEA’s procedures?

2.whether the IEP was developed through IDEA’s “procedures reasonably calculated to enable the child to receive educational benefits?”

What’s the Problem?• Since 1982, many additional lower courts have interpreted

Rowley.

• Some believe courts have begun to interpret FAPE as requiring more than an education that “confers minimal benefit” (Yell &

Drasgow, 2000). FAPE must – “confer meaningful educational benefit...& an education that conferred

minimal or trivial progress was insufficient” – “provide the student with an educational program that will result in

meaningful & measurable advancement toward goals & objectives that are appropriate for the student given his or her ability.”

6. Failing to foster positive working relationships with parents of special education students

Example

• Polarization between schools & parents

• Adversarial relationships characterized by distrust, misunderstanding, & disrespect

What’s the Problem?• Many times, schools & parents are married

to one another

• Attention shifts from educating the student to personal animosities– Can fuel motivation to litigate

7. Overlooking the importance of quality programming, instruction, & highly qualified teachers

8. Missing documentation of data-based instruction

9. Problematic communication

10. Closed-mindedness about outside expertise and evaluation

Example

• Applied Behavior Analysis (ABA) experience & research

Q, A, & Discussion

?

References

• Amberger, K. & Shoop, R. (2006) Principal’s Guide to Manifestation Determination. Principal Leadership 6(9)16-21.• Bon, S.C. (2009) Confronting the Special Education Inclusion Debate: A Proposal to Adopt New State-wide LRE Guidelines, Educ. L.

Rep. 249,1.• Consortium for Appropriate Dispute Resolution in Special Education (CADRE) (2008) Part B – • Three Year Annual Report Summaries for Written Complaints, Mediations and Due Process. Retrieved from

http://www.directionservice.org/cadre/statecomrpts.cfm• Crabtree, R. K. (2006) Mistakes People Make in the Special Education Process. Part 2 – Mistakes Made by School Districts Retrieved

from http://www.adoptionarticlesdirectory.com/Article/Mistakes-People-Make-in-the-Special-Education-Process--Part-2---Mistakes-Made-by-School-Districts/1467

• D’Alo, G.E. (2003) Accountability in Special Education Mediation: Many a Slip ‘Twixt Vision and Practice? Harv. Negot. L. Rev., 8, 201.• Data Accountability Center (2011). Part B IDEA 618 Data Tables – Discipline. Retrieved from http://www.ideadata.org/PartBReport.asp • Decker, J. (2010) Reducing ABA Litigation through Autism-centric Charter Schools: Legally Viable or Vulnerable? Ph.D. Dissertation

available on ProQuest.• Edwards, D. (2005) New Amendments to Resolving Special Education Disputes: Any Good IDEAs?, 5 Pepp. Dispute Resolution L. J. 5,

137.• Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982).• Katsiyannis, A. & Herbst, M., (2004) 20 Ways to Minimize Litigation in Special Education, Intervention in Sch. & Clinic 40, 106.• Mueller, T. G. (2009) IEP Facilitation: A Promising Approach to Resolving Conflicts between Families and Schools. Exceptional

Children, 41, 60.• Richland School Dist. v. Thomas P. 2000 U.S.. Dist. LEXIS 15162 (W.D. Wisc. 2000).• Nashatker, J. (2010) Caught in the Middle: Disciplining Students with Disabilities Principal Leadership 11(2) 46-51.• Wagner, J. & Katsiyannis, A. (2010) Special Education Litigation Update: Implications for School Administrators NASSP Bulletin 94(1)

40-52.• Yell , M.L. & Drasgow, E. (2000) Litigating a Free Appropriate Public Education: The Lovaas Hearings and Cases, J. Special Educ. 33,

205.• Yell, M. L., Ryan, J. B., & Rozalski, M. E., (2009).The U.S. Supreme Court and Special Education: 2005-2007 Teaching Exceptional

Children, 41(3) 68-75.