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Let’s Not Talk “Comp Ed” Generally for COVID-19 Closure

Posted By Administration, Friday, April 24, 2020

By Andrew Feinstein, Esq.  

Let's not rely on compensatory education to remedy the damage done to our kids during the period of COVID-19 school closure.  “Comp Ed” are fighting words.  By talking that language, we are creating a confrontational posture with school districts and we are misleading our clients.  Compensatory education is not the right analytic framework for this situation.

 

School districts and courts generally regard compensatory education as a remedy for a denial of a free appropriate public education, either in the design of the educational program or in its implementation.  The term is freighted with notions of fault and wrongdoing.  Although the statutory basis for compensatory education does not support this connotation, it clearly exists.

 

Most attempts to argue or demonstrate that a school district was at fault for failing to provide certain services during the period of COVID-19 closure will almost certainly fail.  It is hard to imagine a hearing officer or a judge blaming a school district for not providing in-person services or for providing fewer hours of other services.  And, to the extent that negligence is the test, school districts will argue contributory negligence of the parents.  We certainly do not want the educational skills of parents to be subjected to school district scrutiny.  Only in extreme cases, such as where the district refuses to provide any education to students with a disability while providing distance learning to all other students, would a strong claim for compensatory education likely be successful.

 

This is really a matter of terminology.  When school reconvenes, the child's IEP Team will need to meet and determine present levels of performance as a prerequisite to designing a program and placement.  Parents, who have been carefully tracking performance during the period of distance learning, should have a significant voice in setting the current level of performance.  If the student's performance is below where it was on the day schools closed for the COVID-19 pandemic, the IEP Team will be obliged to provide more intense services than those provided in the prior IEP.

 

Not every student will need remedial services. Some students will progress appropriately in the at-home program.  Others will experience significant regression.  In each case, the IEP team must, after the closure ends, closely examine the student’s progress or regression, craft accurate present levels of performance, and provide services based on the needs established by the data.

 

Indeed, under Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005), the standard for compensatory education is not an hour for hour calculation.  Rather, "In every case, however, the inquiry must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place."  401 F.3d at 524.  It is a qualitative standard based on individual assessments of the student.

           

The approach we should be advocating in this case is exactly the one outlined in Reid.  The district needs to accurately assess the student and then design a program to provide the educational benefit that likely would have accrued from the services the district would have provided but for the closure.

           

picture of Andrew Feinstein, man with grey hair and wearing suit, smiling

 

Andy Feinstein has represented children with disabilities and their families pursuing appropriate educational programs for the past twenty years, and is currently the owner of Feinstein Education Law Group, LLC in Connecticut. He serves as co-chair of the Government Relations Committee for the Council of Parent Attorneys and Advocates (COPAA).

 

 

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The Least Restrictive Environment… Dispelling the Myth

Posted By Administration, Friday, January 31, 2020

Selene Almazan, Esq. - Legal Director and Denise Stile Marshall, M.S. - CEO

 

Of late we have been hearing confusing discussion regarding the Least Restrictive Environment (LRE). The sentence often begins with “the student’s LRE is…..” Sometimes the rest of that sentence indicates a placement that is the general education classroom alongside peers who do not have disabilities. Often, however, the speaker states a placement somewhere else on the continuum and goes on to try to justify why a more restrictive placement, such as a specialized school or segregated classroom is the LRE “for that student” because of his or her unique needs. An individualized LRE, unique to each student, is a myth. The fact is under the law, there is only one LRE – the general education classroom with access to peers without disabilities. If a more restrictive placement is needed for a child because of their unique situation, it’s then a Free Appropriate Public Education (FAPE) discussion. 

There has been longstanding development about the doctrine of LRE, developed by Congress (1) the Department of Education (2) , and the courts. In fact, courts have, per the statutory mandate found at 5 U.S.C. Section 706(2)(A-B), held as “unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Any attempt to revise the LRE therefore, may run afoul of the law.

 

IDEA Requires that School Districts Provide Both a Free Appropriate Public Education and in the Least Restrictive Environment

 

The most basic premises of the IDEA require that states receiving federal funds provide to all children with disabilities with not only a “Free Appropriate Public Education,” (FAPE), but also that said program be provided in the “Least Restrictive Environment” 20 U.S.C. § 1412(a)(1) and (5). The statute explains further that, “[t]o the maximum extent appropriate, children with disabilities... are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular education 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).  

In adopting the IDEA (3), Congress created a strong presumption for educating students with disabilities in general education classrooms. Basic to the IDEA and its precursor, the Education for All Handicapped Children Act, is the student’s Fourteenth Amendment right to avoid segregation and seclusion of students with disabilities. These protections emerged as statutory and regulatory obligations:

[T]he Act also contains a specific directive regarding the placement of handicapped children. The Act requires the state to establish procedures to assure that, to the maximum extent appropriate, handicapped children…are educated with children who are not handicapped. With this directive, which is often referred to as “mainstreaming” or placement in the “least restrictive environment,” Congress created a statutory preference for educating handicapped children with nonhandicapped children." (Footnote omitted citing to Rowley supra at 181 n.4) Greer v. Rome City School District, 950 F.2d 688, 695 (11th Cir. 1991). This right to be educated in the LRE with one’s nondisabled peers exists independent of, but equally important to the right to a FAPE. Id. at 695-696. 

The federal regulations go further and highlight the thrust of the LRE mandate, clarifying that that unless the Individualized Education Program (IEP) of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled.” 34 C.F.R. §300.116(c). School districts may not unnecessarily segregate a child from his non-disabled peers if that child’s IEP can be implemented using supplementary aids and services in a regular education classroom in the student’s neighborhood school. Daniel R.R. v. State Bd. of Ed., 874 F.2d 1036, 1048 (5th Cir. 1989). (4) 

Additionally, the Supreme Court has recently made clear that the Individualized Education Programs (IEP) of each child with a disability must be “appropriately ambitious” to enable them to make progress in the general education curriculum in light of their unique abilities. Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1000 (2017). The Court explained that children with disabilities are to be challenged to reach their potential progress just as their non-disabled peers are challenged. For the vast majority of students with disabilities, this progress happens most effectively when children with disabilities are given access to the general education curriculum and included in the general education classrooms with their peers without disabilities. School districts are required to comply both with Endrew F.’s requirement that IEPs be “appropriately ambitious” and the statutory requirement that students receive their educational services in the children’s LRE. 

In its 2004 amending of the IDEA, Congress, in its findings, emphasized the importance of educating children with disabilities in the regular classroom:

Almost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by- (A) Having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible … (B) Coordinating this title with other local, educational service agency State, Federal school improvement efforts, including improvement efforts under the Elementary and Secondary Education Act of 1965, in order to ensure that such children benefit from such efforts and that special education can become a service for such children rather than a place where such children are sent; (C) Providing appropriate special education and related services, and aids and supports in the regular classroom, to such children, whenever appropriate .… 20 U.S.C. §1400(c)(5) (emphasis added). 

Congress recognized that “special education can become a service for such children rather that a place where such children are sent.” 20 U.S.C. §1400(c)(5)(C) (emphasis added). Accordingly, Congress has made involvement and progress in the “general curriculum” an overall priority and goal for students with disabilities, bolstering the overall dual premise of the special education to provide an appropriately ambitious program in provided in, to the maximum extent possible, the general education setting. 20 U.S.C. §1400(c)(5)(D). 

Several regulations ensure compliance with this LRE mandate. “The IEP must include supplementary aids and services in order to facilitate the provision of services to the student in the general education classroom.” 34 C.F.R. §300.320(a)(4). Further, a student cannot be removed from general education classes based solely on a need for curriculum modification. 34 C.F.R. §300.116(e). And if a student will not be participating in general education classes, justification for that exclusion must be provided in the IEP. 34 C.F.R. §300.320(a)(5). Additionally, as stated above, unless the IEP of a child with a disability requires some other arrangement, the child must be educated in the school that he or she would attend if nondisabled. 34 C.F.R. §300.116(c). 

The IDEA is fundamentally a civil rights law, designed to protect the right to education of students with disabilities. It achieves this through creating a contract between the federal government and the States. In exchange for federal dollars, the States voluntarily commit themselves to implementing the provisions of the IDEA. Districts in the States that have committed to implementing the provisions of the IDEA, have as a requirement and a priority to give students with disabilities access to the general education curriculum and education in the regular classroom to the maximum extent possible. This requirement has been strengthened in each subsequent amending of the IDEA, not for arbitrary reasons, but because the idea of an education in the LRE is based on values and on outcomes. 

Abundant quantitative and qualitative research demonstrates that students with disabilities can achieve considerable educational benefit from access to the general education curriculum and placement in general education classes with supplementary aids and services, such as modified curriculum, resource rooms and itinerant instruction. Further, the research also supports the finding that when students with and without disabilities spend time together, all students benefit; thus, there is a positive correlation between academic achievement and inclusion. 

In making a placement determination, priority must be given to placement in the regular classroom with any necessary supplemental aids and services to make that placement successful. Only after the LRE is considered should districts move to more restrictive placement options. 

We understand that some are concerned that LRE is somehow inconsistent with making individualized decisions about students and is seen as a quota. (5) The Department has already made clear in guidance, however, that is not the case: OSEP has found that “(t)he IDEA establishes a presumption that children with disabilities will be educated in classes and settings with their nondisabled peers unless the education of children with disabilities cannot be achieved satisfactorily in those classes and settings with the use of supplementary aids and services.” Letter to Wohle, 50 IDELR 138 (OSEP 2008) at 139 (emphasis added). OSEP has also, at the same time, made clear that the IDEA does not require a set percentage of students to be educated in a general education environment. Letter to Wohle, 50 IDELR 138 (OSEP 2008). (6) This concern is, at best, overclaimed. In practice, the consensus would more likely render an even harsher judgment of these concerns. Administrative convenience has never been a legitimate reason for placing a student in a more segregated setting—indeed the individualized nature of planning for FAPE and LRE under the IDEA have ensured as much. 

The only situation that the Department has issued guidance stating that an LRE may be different was in response to the Deaf Community in 1992. The 1992 policy guidance, Deaf Policy Guidance, states: “Meeting the unique communication needs of a student who is deaf is a fundamental part of providing a free and appropriate public education (FAPE) to the child. Any setting, including a regular classroom that prevents a child who is deaf from receiving an appropriate education that meets his or her needs, including communication needs, is not the LRE for that individual child.” Deaf Students Education Services; Policy Guidance, Fed Reg., Vol. 57, No 211, (October 30, 1992) pp. 49274-75. Notably, the 1997 amendments to the IDEA codified this guidance and now requires that IEP teams : “consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child’s language and communication needs, opportunities for direct communication with peers and professional personnel in the child’s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child’s language and communication mode.” 20 U.S.C. §1414 (d)(3)(B). 

Lets look at some examples. Suzy is educated in her home school (the one she would attend if she did not have disabilities) in the general education classroom except for pull out for reading, and is making progress with individualized supplementary aides and services, modifications and accommodations. Larry is also in his neighborhood school, has a one-to-one aide, speech therapy, individualized accommodations and and is in the general education classroom all day. Lary and Suzy’s team agreed placement in the LRE was appropriate. Sherilynn was placed in a specialized school because the school was unable to keep her, or the other students safe because of Sherilynn’s behaviors. Sherilyn’s team agreed that her unique needs made the LRE an inappropriate placement for her at this time. All of the other students in the new school also have disabilities. Sherilynn’s team felt this more segregated placement would enable Sherilynn to receive FAPE. The question to whether a child’s placement will be in the general education classroom with peers without disabilities, centers then on whether the team agrees that the child can be provided a FAPE in the LRE; and, be reasonably be expected to make progress on challenging grade level objectives in that setting.

The law allows teams to make a determination to place a child in a more restrictive setting if the nature of their disability or current unique needs make such a placement necessary. It is a red herring to say that the more restricted setting is that child’s LRE. Doing so distracts from the real issue, which is that if the team rejects the LRE as the correct placement for a child, they must be cogent and responsive about why they have determined that the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. The discussion then becomes about a more restrictive placement on the continuum, one that the team feels will provide the child a FAPE.

 

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(1) Congress’ intention for what the LRE means can be found at 20 U.S.C. Section 1412(5)(B) and 20 U.S.C. Section 1414(a)(1)(C)(iv)), with language supporting what LRE was intended to refer to being found at 20 U.S.C. Section 1412(5)(B). (2) LRE was defined by the Department of Education at 34 C.F.R. § 300114: “General. (a) Each State educational agency shall insure that each public agency establishes and implements procedures which meet the requirements of §§ 300.115-300.120.

 

(2) Each public agency must ensure that: (i) to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled, and ii) 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 is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” Additional guidance about the weight and meaning of LRE is contained in the Continuum of Placement regulations found at 34 C.F.R. § 300.115: “Continuum of alternative placements. (a) Each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services. (b) The continuum required under paragraph (a) of this section must: (1) Include the alternative placements listed in the definition of special education under § 300.38 (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions), and (2) Make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement,” and § 300.116 (“Placements. Each public agency shall insure that: (a) Each child with a disability, including a preschool child with a disability, educational placement: (1) Is determined at least annually, (2) Is based on the child’s individualized education program, and (3) Is as close as possible to the child’s home; (c) Unless a individualized education program of the child with a disability requires some other arrangement, the child is educated in the school which he or she would attend if nondisabled; and (d) In selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of services which he or she needs.”)

 

(3) IDEA 1997 renewed and strengthened the LRE requirements. The considerations of inclusion and attending class with age appropriate peers and access to the general curriculum were expressly reinforced in IDEA 1997: The new focus is intended to produce attention to the accommodations and adjustments necessary for disabled children to access the general educational curriculum and the special services, which may be necessary for appropriate participation in the particular areas of the curriculum due to the nature of the disability. H. Rep. No. 105-95, reprinted in U.S. Cod. Cong. And Admin. News, 105th Congress, First Session, 97-98.

 

(4) In 1997 the LRE language was strengthened to add: A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum. 34 C.F.R. §300. 116 (e) 

 

(5) IDEA requires states to report annually to the public on the performance of each of its local education agencies using Part B State Performance Plan Results and Compliance Indicators. Indicator #5 measures the percent of children with IEPs ages 6-21 who are served inside the regular class 80% or more of the day; less than 40% of the day; or in separate schools, residential facilities or homebound/hospital placements. See https://www2.ed.gov/fund/data/report/idea/partbspap/allyears.html (6) Letter to Wohle also pointed out that the regular education environment may not be the appropriate placement option for each child with a disability, but districts cannot remove students with disabilities from the general education environment merely because they require modifications of the general education curriculum.

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Tags:  Least Restrictive Environment  LRE 

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Guest Blog: 40 years of Research Shows Positive Correlation Between Time in General Education and Student Performance on Multiple Measures

Posted By Administration, Tuesday, July 12, 2016

In a recent blog for the American Association of School Administrators titled “Reclaiming the LRE Debate from the Courts” Associate Professor Susan C. Bon suggests a number of remedies for what she terms the “increasingly destructive and contentious disagreements over interpretation and implementation of the IDEA in public schools.” We take issue with those proposed remedies and offer our combined 100 plus years of teaching, research, teacher education, systems change, large-scale assessment, policy, and advocacy work as evidence of the experience we bring to bear on this issue.

 

Professor Bon’s remedies – which imply that more students with intellectual and other significant disabilities would be kept out of general education classes – ignore the 40 years of research on students with disabilities that show a positive correlation between time spent in a general education classroom and performance on standardized measures of reading and math, communication skills, social skills, engagement, breadth of social networks, pro-social behavior, fewer suspensions and expulsions, and enhanced adult outcomes in the areas of independent living, employment, and participation in inclusive community activities when compared to students educated in segregated environments (Beukelman & Mirenda, 2005; Cosier, Causton-Theoharis, & Theoharis, 2013; Guralnick, Connor, Hammond, Gottman, & Kinnish, 1996; Helmstetter, Curry, Brennan, & Sampson-Saul, 1998; Hunt, Farron-Davis, Beckstead, Curtis, & Goetz, 1994; White & Weiner, 2004). In fact, these research findings are encoded in the introductory paragraphs in IDEA 2004, where Congress finds “Almost 30 years of research and experience has demonstrated that the education of 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.”

 

Professor Bon calls for giving precedence to the potential academic benefit of various educational placements when students’ IEPs are being written and to downplay the potential non-academic benefits. We argue that separating academic from non-academic benefits is contrary to the last 100 years of public education in the U.S. It has long been recognized that successful adulthood requires much more than proficiency in “the 3 R’s.” All students need to demonstrate proficiency in communication, collaboration, use of technology, social skills, self-determination, problem-solving and the like. To suggest that educational teams might be able to quantify the educational versus non-educational benefits to students with disabilities ignores our understanding of how children learn and what really matters when it comes to being a successful adult.

 

The example of the student with an IQ of 46 who is “mentally retarded” represents not only outdated and prejudicial terminology, but overestimates the importance of IQ in predicting educational achievement. A rationale for extreme caution in using a number like a student’s IQ score to guide his education program is supported by research on how well IQ scores predict student achievement. McGrew and Evans (2004) concluded:

 

Given the best available, theoretically and psychometrically sound, nationally standardized, individually administered intelligence test batteries, three statements hold true.

 

·         IQ test scores, under optimal test conditions, account for 40% to 50% of current expected achievement.

·         Thus, 50% to 60% of student achievement is related to variables “beyond intelligence.”

·         For any given IQ test score, half of the students will obtain achievement scores at or below their IQ score. Conversely, and frequently not recognized, is that for any given IQ test score, half of the students will obtain achievement scores at or above their IQ score. (p. 6)

 

Micah Fialka-Feldman, a subject of the trailer of a soon to be released documentary called Intelligent Lives by Dan Habib (producer of Including Samuel), was asked how he felt when he learned that he had a 40 IQ. He responded “Well, I didn’t know what it meant so I Googled it. It said that people with 40 IQs could never live alone, go to college, or be employed. And I thought “Well, I am doing all those things!” (Habib, 2016).

 

Another flawed remedy is Professor Bon’s recommendation that students with disabilities who need to have “assignments modified more than 70%” would not be able to obtain educational benefit from a general education class. Even with all of our years of experience we don’t understand what Professor Bon means here. Does she mean that 70% of the general education standards are modified?

 

Perhaps Professor Bon’s reference to modified assignments means that the number of math problems given for homework is reduced for a student with a disability. We all have known students with cerebral palsy, for example, for whom manipulation of a pencil or computer to do 30 problems is prohibitively laborious. Yet this student could demonstrate her knowledge of the concepts of the assignment by only doing five problems. Can that student not benefit from being in general education?

 

Maybe Professor Bon’s standard of 70% modified means that the complexity of an assigned reading is modified to a lower reading level? We know many students with significant reading disabilities whose skills are 70% below grade level, yet they are clearly able to benefit from being in general education when they are provided with supplementary aids and services in the form of assistive technology.   Nor is there typically a debate or inquiry about whether it is appropriate to educate in the general education classroom other struggling learners, e.g., immigrant students whose formal education may have been interrupted, and who may or may not be English learners, or students who are educationally disadvantaged attending Title I schools.  

 

Professor Bon suggests that greater weight be given to the effect that a student with a disability has on a general education classroom. Here we agree with Professor Bon if she is talking about the “value-added” benefits that students with disabilities provide to a general education class. Those added benefits have been shown to occur in the realms of improved academic skills of all students (Choi, Meisenheimer, McCart, & Sailor, 2016; Theoharis & Causton-Theoharis, 2010); improved decision-making skills (Zhang et al., 2016); and improved attitudes towards diversity (Finke, McNaughton, & Drager, 2009).

 

Finally, Professor Bon suggests that the current LRE mandate in IDEA be preserved in future reauthorizations – not based on the plain language of the statute but on a selective review of case law. We join with a growing number of colleagues who believe that the actual mandate – “to the maximum extent appropriate, children with disabilities ….are educated with children who are not disabled, and 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 the regular classes with the use of supplementary aids and services cannot be achieved satisfactorily” [20 U.S.C. §1412(a)(5)(A)] – has not been fairly and consistently applied for thousands of students with disabilities who are systematically kept out of general education classes, as evidenced by the huge geographic disparities in the mis-application of the statutory presumption to placement decision-making.

 

According to the 36th Annual Report to Congress on the Implementation of IDEA (U.S. Department of Education, 2014), the percent of students with intellectual disability educated at least 80 percent of the day in general education classes ranged from lows of 4.4 in Washington, 4.8 in New Jersey, and 5.5 in Nevada, to highs of 64 in Iowa, 48.6 in Puerto Rico, and 45.5 in Alabama.

 

For students taking their respective state alternate assessments, Kleinert et al. (2015) found that students with the most significant cognitive disabilities face even greater segregation.  In a study involving 15 states and nearly 40,000 students, these researchers found that the vast majority (93%) of students with significant cognitive disabilities were served in self-contained classrooms, separate schools, or home settings, while only 7% were served in general education or resource room placements. Most importantly, these authors found a positive correlation between expressive communication, reading, and math skill levels with increasingly inclusive classroom settings.  Being educated in the general education classroom does make a difference!

 

In summary, too many students are “still caught in the continuum” (Sauer & Jorgensen, 2016).  The time is long overdue to implement and enforce the plain language of the statute and for the U.S. Department of Education to eliminate those regulatory provisions that create straw men that serve only to undermine the statutory mandate, weaken the legal presumption, and camouflage continued discrimination on the basis of disability.

 

We agree with Professor Bon that the time and energy spent in litigation between parents and educators might be better spent on teaching students. Our recommendations for making that happen, however, are radically different from hers. We support efforts to scale-up the use of universal design for learning principles to all classrooms. We support efforts to expand access to communication and assistive technology to all students who need it. And we support school improvement and restructuring efforts that align with those funded by the U.S. Department of Education to the University of Kansas SWIFT project, including greater family and community engagement, strong administrative leadership, multi-tiered systems of supports used with fidelity, values- and evidence-based inclusive policy and practice, and integration of all support services for the benefit of all students.

 

These remedies won’t widen the gap between parents and schools but rather unite them in a common purpose founded on a belief that “inclusion is not about disability, nor is it only about schools. Inclusion demands that we ask, what kind of world do we want to create? What kinds of skills and commitment do people need to thrive in diverse society? By embracing inclusion as a model of social justice, we can create a world fit for all of us (Sapon-Shevin, 2003).”

 

Sincerely,

 

Cheryl M. Jorgensen, Ph.D., Inclusive Education Consultant, Author, Researcher

Kathleen B. Boundy, Co-Director, Center for Law and Education

Harold Kleinert, Ed. D., Director Emeritus, Institute for Human Development, University of Kentucky

Ricki Sabia, Senior Education Policy Advisor, National Down Syndrome Congress

Candace Cortiella, Director, The Advocacy Institute

 

References

Beukelman, D., & Mirenda, P. (2005). Augmentative and alternative communication: Supporting children and adults with complex communication needs (3rd ed.) Baltimore: Paul H. Brookes.

Choi, J. H., Meisenheimer, J. M., McCart, A. B., & Sailor, W. (2016). Improving learning for all students through equity-based inclusive reform practices: effectiveness of a fully integrated schoolwide model on student reading and math achievement. Remedial and Special Education [online], 1-14. doi: 10.1177/0741932516644054

Cosier, M., Causton-Theoharis, J., & Theoharis, G. (2013). Does access matter? Time in

general education and achievement for students with disabilities. Remedial and Special Education, 34(6), 323-332.

Finke, E.H., McNaughton, D.B., & Drager, K.D. (2998). ‘All children can and should have the opportunity to learn”: General education teachers' perspectives on including children with autism spectrum disorder who require AAC. Augmentative and Alternative Communication, 25(2), 110-122.

Guralnick, M. J., Connor, R., Hammond, M., Gottman, J. M., & Kinnish, K. (1996). Immediate effects of mainstreamed settings on the social interactions and social integration of preschool children. American Journal on Mental Retardation, 100, 359-377.

Habib, D. (Producer). (2016). Intelligent lives [Motion Picture Trailer] Durham, NH: University of New Hampshire, Institute on Disability.

Helmstetter, E., Curry, C. A., Brennan, M., & Sampson-Saul, M. (1998). Comparison of general and special education classrooms of students with severe disabilities. Education and Training in Mental Retardation and Developmental Disabilities, 33, 216-227.

Hunt, P., Farron-Davis, F., Beckstead, S., Curtis, D., & Goetz, L. (1994). Evaluating the effects of placement of students with severe disabilities in general education versus special classes. Journal of the Association for Persons with Severe Handicaps, 19, 200-214.

Individuals with Disabilities Education Improvement Act, PL108-446, 20 U.S.C. §§1400 et seq. (2004).

Kleinert et al., (2015). Where students with the most significant cognitive disabilities are taught: Implications for general curriculum access.  Exceptional Children, 81(3), 312-328.

McGrew, K. S., Evans, J. (2004). Expectations for students with cognitive disabilities: Is the cup half empty or half full? Can the cup overflow? (Synthesis Report 54). Minneapolis: University of Minnesota, National Center on Educational Outcomes.

Sapon-Shevin, M. (2003). Inclusion as a matter of social justice. Educational Leadership, 61(2), 25-28.

Theoharis, G., & Causton-Theoharis, J. (2010) Include, belong, learn. Educational Leadership, 68(2). Retrieved from http://www.ascd.org/publications/educational-leadership/oct10/vol68/num02/Include,-Belong,-Learn.aspx

U.S. Department of Education. (2014). Thirty-sixth annual report to Congress on the

implementation of the Individuals with Disabilities Education Act, 2013. Retrieved from http://www2.ed.gov/about/reports/annual/osep/2013/parts-b-c/index.html

White, J., & Weiner, J. S. (2004). Influence of least restrictive environment and community based training on integrated employment outcomes for transitioning students with severe disabilities. Journal of Vocational Rehabilitation, 21(3), 149-156.

Zhang, X., et al. (2016). Improving children’s competence as decision makers: Contrasting effects of collaborative interaction and direct instruction. American Educational Research Journal, 53, 194-223. doi: 10:3102/0002831215618663

 

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Tags:  Least Restrictive Environment  Students with Disabilities 

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Evidence Bears Out Congressional Intent for Students to be Educated with Peers in Least Restrictive Environment (LRE)

Posted By Administration, Tuesday, July 5, 2016

The AASA, American Association of School Administrators, has again taken aim at students with disabilities in its blog post, Reclaiming the LRE Debate from the Courts.  The Individuals with Disabilities Education Act (IDEA) requires students with disabilities to be educated in the least restrictive environment (LRE) which enables students with disabilities to be educated alongside their peers to the maximum extent appropriate.  The AASA proposes that schools more frequently segregate students by limiting a student’s right to LRE and turning back the clock 40 years to the time when students with disabilities were routinely segregated from their peers and educated in separate classrooms, which were often “babysitting” programs that provided minimal to no educational benefit. 

The AASA implies that segregation is to the benefit of the student with disabilities, but abundant quantitative and qualitative research demonstrates that students with disabilities do achieve considerable educational benefit from placement in general education classes with supplementary aids and services.  Further, including students with disabilities in general education benefits students without disabilities.  Research shows that time spent with non-disabled peers not only benefits students socially and connects them with their community but also enhances academic achievement for students with disabilities. 

Two landmark cases, Mills v. Board of Education of the District of Columbia, 348 F.Supp. 866 (D.D.C. 1972) and Pennsylvania Ass’n for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (E.D. Pa. 1971) and 343 F. Supp. 279 (1972) (PARC), set forth the foundational understanding of the Fourteenth Amendment principles on which the IDEA ultimately rests.  These foundational cases were specifically referenced in the legislative history of, and played a significant role in the passage of, the Education for All Handicapped Children Act of 1975, which is the predecessor of IDEA.  Honig, 484 U.S. at 309, 108 S.Ct. at 596 (citing S. REP. 94-168 (1975), 6, 1975 U.S.C.C.A.N. 1425, 1430).  These principles are so deeply embedded in present case law that many courts often overlook the need to  make specific reference to them in reaching decisions over more recent controversies.  The principles, however, bear restating as they provide the necessary context and foundation on which to view LRE protections.

First, “the right to an education, once given, is a fundamental right; therefore, the defendants must show a compelling state interest in order to lawfully exclude [disabled] children.” PARC, 343 F.Supp. at 283, n.8. Second, “[s]uch an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” Mills, 348 F.Supp. at 874 (quoting Brown v. Board of Education, 347 US. 483, 74 S.Ct. 686, 691 (1954)).  

When Congress amended the IDEA in 1997, it continued to link its authority and intent to the Fourteenth Amendment noting its desire to “restate that the ‘right to equal educational opportunities’ is inherent in the equal protection clause of the 14th Amendment of the U.S. Constitution,” and that the IDEA is founded in and secured by the 14th Amendment.” S. Rep. No. 104-275, at 31 (1996). Clearly, the IDEA is a civil rights act, implementing the equal protection clause of the Fourteenth Amendment and it places an affirmative obligation upon the States to provide children with disabilities a free and appropriate education. 

Congress expressed a strong preference in favor of educating children with disabilities in an inclusive setting and requires States accepting IDEA funds to educate children in the LRE to the maximum extent appropriate.  Appropriate in this context means the least restrictive setting available that will provide the student with FAPE.  Simply put, States that accept IDEA funding do not face the question of whether a student should be educated in the least restrictive environment.  Rather, Congress has required States and school districts to determine how a child can be educated in the LRE. Thus, school districts must, as a preliminary matter in every case, determine whether the child can be provided with an appropriate education in the regular education classroom with supplementary aids and services. See Department of Education v. Katherine D., 727 F.2d 809, 815 (9th Cir. 1983). Furthermore, the United States Supreme Court in Olmstead v. L.C. requires states to eliminate unnecessary segregation of persons with disabilities and to ensure that persons with disabilities receive services in the most integrated setting appropriate to their needs.  The Court said,  "Unjustified isolation, we hold, is properly regarded as discrimination based on disability. " 527 U.S. 581, 596 (1999). 

Ms. Bon’s reference to an unpublished, non-precedential case J.H. ex rel. A.H. and S.H. v. Fort Bend Indep. Sch. Dist. 482 F. App'x 915, 919 (5th Cir. 2012) reveals the depths to which she strives to make her assertions appear to have value.  In fact, not only do her assertions lack value, the case referenced by Ms. Bon confirms that a student may derive nonacademic benefit from interacting with [nondisabled] peers in mainstream classes, contrary to her assertion.

The IDEA is not an expiring authorization and therefore Congress does not need to reauthorize the statute.   If Congress decides to amend the IDEA, however, efforts need to focus on strengthening parent and student rights and strategies to ensure states are fulfilling obligations under the law.   Policy dialogue must be based on evidence based strategy proven to improve student outcomes; not on misguided opinions of individuals trying to allow administrators to shirk responsibility for providing meaningful education to all students under their care.   There are ample school administrators whose efforts embody the spirt of the IDEA and we encourage AASA to stop attacking parent and student rights and spend their time and resources towards amplifying successful and positive examples of supporting students with disabilities to succeed and prosper.

Susan Bon’s AASA Blog Post this week is offensive to parents and students and utterly fails to provide clarity on one of the most important procedural and substantive due process right contained in the IDEA since its inception in 1975.  In fact, Ms. Bon’s use of the offensive term “mentally retarded” indicates both her insensitivity to the community served by the IDEA and her failure to provide insightful commentary on LRE.

For over 40 years Congress has consistently made it an overall priority that a student with a disability is to be educated in the regular classroom to the maximum extent possible. 

Tags:  Individualized Education Program  Least Restrictive Environment  Students with Disabilities 

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Trauma-Informed Care: Child Safety Without Seclusion and Restraint

Posted By Denise Marshall, COPAA, Wednesday, December 9, 2015

Guest Blog By:      

Fathia Muridi Ahmed,
Intern, JBS International

Jessica Dembe, Research Assistant, JBS International

Eileen Elias, Senior Policy Advisor, JBS International

Anne Leopold, Research Analyst/Project Manager, JBS International

 

Traumatizing experiences, which include the use of seclusion and restraint, can affect children’s brain development and behavior. Children with intellectual and/or developmental disabilities (IDDs) are at greater risk than the general population for experiencing abuse, neglect, and the associated trauma. Behaviors resulting from trauma can create challenging and sometimes dangerous situations for the child, providers, and educators. To help those working with children understand and create a trauma-informed environment, JBS International in partnership with the Georgetown University National Technical Assistance Center for Children’s Mental Health have created the web-based tool Trauma-Informed Care: Perspectives and Resources (available at http://trauma.jbsinternational.com/traumatool and http://gucchdtacenter.georgetown.edu/TraumaInformedCare.html). The tool aims to educate child-serving providers and educators about the impact of trauma, including trauma resulting from the use of seclusion and restraint, and how to become trauma informed. It provides information about best practices from experts in the counseling, social services, and education fields. This publicly available tool includes videos and resources to assist users in understanding and staying current on all aspects of trauma-informed care.

 

In 2015, two videos were added to the trauma tool—“Intellectual/Developmental Disabilities and Trauma” and “Safety Without Seclusion and Restraint.” Both videos can be found at http://bit.ly/1jHswEt. The seclusion and restraint video provides timely information on practices and lessons learned to eliminate seclusion and restraint for all children.

Historically, seclusion and restraint have been used to control the behavior challenges of children with mental health conditions[1] in psychiatric hospitals, treatment facilities, and schools. For decades, it was frequently thought that, without effective seclusion and restraint practices, children, youth, and adults were in danger of injuring themselves and others[2]. Children continue to be subjected to seclusion and restraint interventions at high rates and are at risk of injury from these practices[3]. The controversial practice of secluding or restraining children when they are agitated continues to be used in public schools. Even if no physical injury is sustained, children, especially those with an IDD, are at risk of traumatization and re-traumatization during and after use of seclusion and restraint. A child does not learn meaningful lessons on alternative ways to communicate or interact when a teacher or treatment staff member responds to the child’s challenging behavior with seclusion and restraint. For decades, policymakers, clinicians, teachers, school principals, and direct care providers in child-serving systems have been challenged with not just reducing but eliminating seclusion and restraint as control and safety interventions. Teachers must know how to replace these practices with effective, non-traumatizing practices.

Eliminating seclusion and restraint is a trauma-informed practice. Being trauma informed requires a paradigm shift for educators and other child-serving providers in addressing behavioral challenges. A trauma-informed approach requires providers to change the question from “What is wrong with you?” to “What happened to you?”[4] Trauma-informed practices help children, teachers, and providers feel safe, protected, and valued.

The elimination of seclusion and restraint is a recognized priority by federal agencies including the U.S. Departments of Education and Health and Human Services and the Government Accountability Office. In 2012, the Department of Education’s Office for Civil Rights revealed that at least 70,000 children were subjected to physical restraint and 37,000 experienced isolated seclusion. In addition, students with disabilities were restrained and secluded more often than their non-disabled peers[5]

To provide nationwide protection from seclusion and restraint use, Congress introduced several legislative bills between 2009 and 2014. Although these bills did not become laws, they served as catalysts for the enactment of many state laws that address a range of requirement to reduce the use of seclusion and restraint. Protecting students from seclusion and restraint practices is currently a state responsibility. Progress has been made, but children are still not protected from use of restraint and seclusion in all states[6].

Research confirms that seclusion and restraint practices re-traumatize children, increase rather than decrease challenging behaviors, and do not calm the child10. As discussed in the “Safety Without Seclusion and Restraint” video, the use of seclusion and restraint practices can decrease a child’s ability to learn self-control[7], destroys relationships between the child and provider, and can cause the child to resent the provider[8]. When used in a school setting, seclusion and restraint practices can have a negative impact on the child’s educational learning. Although challenging behaviors might lessen for a short period, the resulting re-traumatization can remain with the child over the long term. Challenging behaviors may intensify months after the use of seclusion and restraint if the child does not feel safe[9].

Increased public education and outreach are needed to inform all stakeholders—teachers, providers, consumers, family members, advocates, policymakers, and elected officials—on the importance of preventing the use of seclusion and restraint and on using appropriate trauma-informed alternatives[10]. A workplace that employs trauma-informed staff is critical for ensuring that children and staff are safe and cared for. Every child deserves to be treated with dignity, be free from abuse, and be treated as an individual with unique needs, strengths, and circumstances (e.g., age, developmental level, responses to life issues, medical needs)[11]. These principles are part of the 15 principles specified in the U.S Department of Education’s Restraint and Seclusion: Resource Document, a 2012 report on seclusion and restraint. To ensure these principles are consistently and effectively carried out, nationwide attention must become a matter of importance. Schools are behind in understanding their responsibility in eliminating seclusion and restraint. Through federal laws, supporting regulations, and state and county laws, the elimination of seclusion and restraint can foster safety and security for children and workers in all child-serving systems, which must include our nation’s schools.

Special thanks to Georgetown University’s Sherry Peters, Senior Policy Associate, and Diane Jacobstein, Senior Policy Associate, for their assistance in editing this article. They can be contacted at: Sherry Peters: slp45@georgetown.edu or Diane Jacobstein: jacobstd@georgetown.edu




[1] Haimowitz, S., Urff, J., & Huckshorn, K. A. (2006, September). Restraint and seclusion: A risk management guide. Retrieved from http://www.power2u.org/downloads/R-S%20Risk%20Manag%20Guide%20Oct%2006.pdf

[2] American Nurses Association. (2012, March 2). Reduction of patient restraint and seclusion in health care settings. Retrieved from http://www.nursingworld.org/MainMenuCategories/EthicsStandards/Ethics-Position-Statements/Reduction-of-Patient-Restraint-and-Seclusion-in-Health-Care-Settings.pdf

[3] Alliance to Prevent Restraint, Aversive Interventions, and Seclusion. (2008). In the name of treatment: A parent’s guide to protecting your child from the use of restraint, aversive interventions, and seclusion (2nd ed.). Retrieved from http://stophurtingkids.com/wp-content/uploads/2013/05/In-the-Name-of-Treatment_Second-Edition.pdf

[4] Alameda County Behavioral Healthcare Services. (2013. Trauma informed care vs. trauma specific treatment. Retrieved from http://alamedacountytraumainformedcare.org/trauma-informed-care/trauma-informed-care-vs-trauma-specific-treatment-2/

[5] U.S. Department of Education, Office for Civil Rights. (2014, March). Civil rights data collection—Data snapshot: School discipline (Issue Brief 1). Retrieved from http://www2.ed.gov/about/offices/list/ocr/docs/crdc-discipline-snapshot.pdf

[6] Butler, J. (2015, July 25). How safe is the schoolhouse? An analysis of state seclusion and restraint laws and policies. Retrieved from http://www.autcom.org/pdf/HowSafeSchoolhouse.pdf

[7] GovTrack. (2010). Text of the Keeping All Students Safe Act. Retrieved from https://www.govtrack.us/congress/bills/111/hr4247/text

[8] Sanders, K., Executive Director, Ukeru Systems, Grafton Integrated Health Network. Personal communication.

[9] Harvey, K. Assistant Executive Director, ARC Baltimore. Personal communication.

[10] Sullivan, A. M., Bezmen, J., Barron, C. T., Rivera, J., Curley-Casey, L., & Marino, D. (2005). Reducing restraints: Alternatives to restraints on an inpatient psychiatric service—Utilizing safe and effective methods to evaluate and treat the violent patient. Psychiatric Quarterly, 76(1), 51-65.

[11] U.S. Department of Education. (2012, May). Restraint and seclusion: Resource document. Retrieved from https://www2.ed.gov/policy/seclusion/restraints-and-seclusion-resources.pdf

Tags:  restraint  seclusion  trauma informed care 

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COPAA Meets with NEA President; Urges Action to Support Students with Disabilities

Posted By Denise Marshall, COPAA, Wednesday, December 2, 2015
Updated: Wednesday, December 2, 2015

COPAA issued a statement expressing horror, angst and disgust of our members this past weekend when Lily Esklesen Garcia , the President of the National Education Association gave a speech about all the tasks teachers do and listed the “chronically ‘tarded” and the “medically annoying” as part of her list.  Ms. Eskesen, has since issued an apology which some have appreciated and other criticized as disingenuous and defensive. 

I do give her credit for owning the mistake and calling COPAA and many of our colleagues directly to discuss and apologize.  We spoke last night and I had the opportunity to tell Ms Esklesen Garcia that our members know all too well that through deeds and words students with disabilities are often marginalized in our schools.  I explained that the reality is that words, whether intentional or not,  are the most hurtful when they reflect the tone and attitude many of our families experience daily in schools.  

We see it when the general education teacher forgets to include the child with disabilities in field trips, class photos and assemblies. 

We hear it when we are told that our children cannot have related services because "that's not how we do it here," and, when we are told that our children have to spend their day in the hall way or principal’s office because of their behavior and are encouraged to medicate our children in order for them to attend school. 

We experience it when our kids are pushed out, restrained and secluded and arrested. 

Our kids are often treated at school as annoyances, afterthoughts.  It seems the only time they get mentioned at all is at budget time as the scapegoat for all that is wrong with funding education.  

In our call, I pointed out that in a blog post on the NEA site Ms Esklesen Garcia herself rightly stated that when students of color are marginalized and stereotyped, it is far more difficult for them to learn and achieve.  And that is exactly our point regarding her word and our students with disabilities.  

To me, Ms. Esklesen Garcia statement verifies that implicit bias is alive and well in our nation’s schools.   One of the obvious challenges of changing implicit bias is to become conscious of our beliefs and take actions to counteract the bias.  Ms Esklesen Garcia, and the educators she leads, can and must use promising practices to address this implicit bias for all marginalized students. 

To be fair there are many wonderful examples of teachers and administrators who go above and beyond to creatively and enthusiastically support students who need additional supports and services, modified curriculum or differentiated instruction. We said in our statement the other day, and I repeat: our children will not be successful without good teachers.  We applaud and support their efforts.  We recognize the extra steps many take on a daily basis to support students with disabilities to learn and to grow.

The message from the NEA leadership needs to embody the good work of their professionals and the care, strength and commitment teachers bring to all students, including those with disabilities every day.

So I frankly told her that what we need and what we expect now are deeds from NEA to promote exemplary teaching.  Help us change the conversation to how to support every child to succeed.  We know all students can learn and we need teachers to be meaningful partners with us in that journey.  I asked that future posts, speeches, activities and policy from the NEA serve to move our educational system forward in serving diverse students well.  She graciously agreed.  COPAA stands ready to work with the NEA and our colleagues to make such positive change a reality.

The glass half full part of me certainly hopes to see glimpses of understanding and support for our students here forward from the NEA. For after all, actions speak louder than words. 

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Look at the facts – All Students Learn Better Side by Side

Posted By Denise Marshall, COPAA, Thursday, August 15, 2013

Miriam Kurtzig Freedman's August 4, 2013 WSJ article entitled "'Mainstreaming' Special-Ed Students Needs Debate” – certainly does need debate.

The article by Ms. Freedman wholly disregards both the law and science. Her erroneous proposition that educating children with disabilities alongside their non-disabled peers is harmful to students without disabilities has no basis is science nor legal precedents. Not only is this claim based on stereotype, but this viewpoint disregards decades of legal and scientific developments and undercuts a quarter of a century of progress in remedying widespread discrimination against children with disabilities.

Ms. Freedman claims that when teachers focus on students with disabilities, the other students will be shortchanged.  This notion is wholly unsupported by scientific research, in fact studies have shown just the opposite.

Research has shown that academic performance for students without disabilities is equal to or better in inclusive settings (i.e. settings with disabled and non-disabled students) than in non-inclusive settings, and that the presence of children with disabilities in the classroom has no effect on the time allocated
to instruction or levels of interruption. Contrary to Ms. Freedman's claims, scientific research also shows that students with disabilities have higher levels of academic achievement in inclusive settings.    On this point, the research is clear: students, both with and without disabilities, do better academically when they are educated side by side.

Research also supports the significant social and emotional benefits that all students receive in inclusive classrooms.    Ms. Freedman minimizes the importance of these social and emotional benefits, which is unfortunate, as these benefits can be life altering for both students with and without disabilities.

Ms. Freedman correctly states that students with disabilities have rights to a free appropriate public education and an individualized education program, which allows for parental involvement. However, she then states "that no other group of students or parents enjoys such rights. "

All children have a right to education.  Brown v the Board of Education, the seminal Supreme Court case mandating racial desegregation in schools, established education as a right to which ALL children are entitled. Individualized programming is a necessary component of the education of children with disabilities because their educational needs are individual.    One student might require Braille while
another might need extra help with speech.  Ms. Freedman's claim that no other group of students enjoys these rights is akin to saying "People who can't walk get to use wheelchairs. Nobody else gets to use wheelchairs!”

Ms. Freedman states that "this policy [of inclusion] is generally based on notions of civil rights and social justice, not on ‘best education practices' for all students.”   Not only does she ignore a body of scientific research that contradicts her viewpoint, but she does so while discounting the importance of civil rights and social justice.    Historically, students with disabilities were excluded from mainstream education, warehoused and denied an appropriate education which would enable them to hold a job and contribute to society as adults.

With changes in the law over the past 35 years to protect the civil rights of children with disabilities, millions more individuals are now able to enter the workforce, pay taxes and live productive lives as a
result of receiving an appropriate education.

Ms. Freedman speculates that including students with disabilities in regular classrooms is driving parents to remove their children from public school.    She then,incredibly, comments that "our schools thrive only with a diverse student population and engaged parents—not with the departure of those who choose to leave.”

She is correct in stating that our schools thrive with a diverse population and engaged parents.   However, the idea that removing children with disabilities from regular classrooms will
promote diversity, defies comprehension. A return to segregation and exclusion of children with disabilities will hardly promote diversity and is definitely not the way forward.

 It is imperative that we engage in thoughtful debate on how to improve educational outcomes for all children, both with and without disabilities.   However, it is crucial that this debate take into account scientific research, the law and evidence based educational practices, as well civil rights and social justice.    Only with a fully informed and nuanced perspective can productive, creative and intelligent discussion about education take place for the benefit of all students.














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A Chance to Learn

Posted By Denise Marshall, COPAA, Wednesday, June 19, 2013

by Denise Stile Marshall, M.S.
COPAA Executive Director
 

While Congress sits in Washington engaged in debate about the future of education in this country, millions of children are celebrating summer.  Some will continue to attend school in extended school year placements or summer school. Some will re-enter in the fall. Some have disability labels, some do not. All have one thing in common though; they are the future generation, our greatest hope and most precious responsibility. Our elected officials need to stop the partisan posturing and work together to assure that every student in America has what they need to obtain the life knowledge and tools that come from receiving a quality education.

We expect Congress to stop bickering across the isle and discuss meaningful data and evidence proven to successfully harness the knowledge, wealth, and ingenuity in this country to ensure that every student has an equal opportunity to achieve to their full potential. The Elementary and Secondary School Education Act (ESEA ) was originally enacted to assure, and must continue to provide, accountability for the use of federal funds to improve life opportunities for low income, underperforming and disenfranchised students.

What do those students and their parents want when they enter the school house? The same thing all parents and students, including those with disabilities, expect; that every student:

Is treated with respect and a presumption of competence  to learn.

Has a safe school learning environment that meet challenges with positive, instructional, evidence based approaches.

Has highly qualified teachers that understand and can deliver instruction to meet the needs of diverse learners.

Is challenged to learn the general education curriculum at grade level,

Makes real, measureable progress on relevant goals, and receives the services accomodations and supports to which he or she is entitled under the law.

Counts in robust and systemic accountability that is outcome-based and insists that every school provides equal access to a high quality education for all.

Has the opportunity to graduate, go to college, get a job.

Is meaninfully engaged,

has friends,

has fun,

learns.

Let's stop the rhetoric and work together to provide meaningful opportunities for every child to achieve, to contribute, to graduate career and college ready, to secure a meaningful job, to earn money, and be a productive and contributing member of  his or her community.

Our government must live up to its obligation to educate all students equitably and hold States accountable for assuring that every child has a chance to learn.


COPAA Policy Statements on ESEA

      ESEA Update - Senate Bill Passes, House to Mark Bill (June 18,2013)

      House and Senate Work to Reauthorize ESEA (June 12,   2013)

Recent COPAA ESEA Policy Letters

Tags:  Elementary and Secondary Education Act  ESEA  Students with Disabilities 

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Defining Ourselves: Why Language Matters

Posted By Administration, Tuesday, March 26, 2013

 Written by Mark Martin, Esq. and Jennifer Laviano, Esq.

The original federal special education laws were enacted over 35 years ago, as one of many pieces of federal legislation which sought to enforce the Civil Rights that were being denied to disenfranchised or underrepresented individuals. Yet, somewhere along the way, it seems that people have forgotten that special education is a Civil Rights issue. An educational system marked with low expectations for students with disabilities, combined with a tough economy, have further marginalized students with special needs, as well as those of us who are fighting every day to enforce the Civil Rights of children and adolescents with disabilities. It's time we took back the high ground on this issue. It is time to talk about EDUCATION EQUALITY.

We have learned from many other successful socio-political movements that language matters. To that end, we propose a radical shift in how we, the advocates of the Civil Rights of individuals with disabilities, talk about our stakeholders, and ourselves in order to make clear that the goal is not procedural compliance with a statute. The goal is to support each student, through the spirit and the letter of the law, to be as independent, as self-sufficient, as self-advocating as possible, and to enforce their right to a successful education.

Following are just a few examples.

  • We are not special education lawyers and advocates we are civil rights lawyers and advocates for children;
  • We don't have special education practices, we have civil rights practices;
  • We don't want our children to make progress we want them to master the materials;
  • Students aren't being suspended or expelled they are being excluded from class and from learning;
  • We are not planning for our children to transition to an agency, we are planning for them to live and work independently;
  • Our children are not being removed from class, they are being segregated;
  • Our children don't need special services, they need a meaningful education.

As our colleagues Andy Feinstein and Michele Kule-Korgood shared with us during the recent COPAA Town Hall, there is much talk in this business about whether an education for a student with disabilities should be a Chevy or Cadillac. No more Chevys, no more Cadillacs. We need cars that run, have four tires, and, most importantly, get to their destination. We need to insist that our clients have the rights, respect, and equality to which they are entitled.

Please, feel free to comment with your own suggestions to help us redirect the focus to where it should be: on effective, meaningful special education programming that is designed to produce independent citizens.

Tags:  Civil Rights  Students with Disabilities 

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Texas District Court Affirms Important Role of Parent Advocacy in Enforcement of IDEA

Posted By Administration, Wednesday, January 9, 2013

 

Friday, June 8th, 2012

Congrats to COPAA members of the firm Reisman Carolla Gran, LLP for a decision received yesterday in Alief Independent School District v. C.C., a district court case in Texas, re-affirming that school districts cannot get attorney’s fees absent a showing of improper purpose and acknowledging the important role of parental advocacy in the enforcement of IDEA.
"IDEA has a broad remedial purpose: "to ensure that all children with disabilities are provided with a free appropriate public education . . . [and] to assure that the rights of [such]children and their parents or guardians are protected.” Forest Grove Sch. Dist. v. T.A., 129 S. Ct.2484, 2491 (2009) (internal quotation omitted). "Parental participation in the development of an IEP is the cornerstone of the IDEA.” Ector County Indep. Sch. Dist. v. VB, 420 Fed. Appx. 338,348 (5th Cir. 2011) (internal citations omitted). After all, parents play a "significant role” in the IEP process. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 523 (2007) (internal quotation omitted). "A central purpose of the parental protections is to facilitate the provision of a ‘free appropriate public education,’ § 1401(9), which must be made available to the child ‘in conformity with the [IEP],’ § 1401(9)(D).” Winkelman, 550 U.S. at 524. Procedural safeguards, including the right to seek administrative review of school district determinations, are at the "core of the statute.” Schaffer v. Weast, 546 U.S. 49, 53 (2005) (internal citation omitted). "The IDEA also imposes extensive procedural requirements designed to ‘guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decision they think inappropriate.’” Buser by Buser v. Corpus Christi Indep. School , 51 F.3d 490, 493 (5th Cir. 1995) (quoting Honig v. Doe, 484 U.S. 305, 311-12 (1987)).


Full decision in Alief Independent School District v. C.C.

Download File (PDF)

Tags:  IEP  parent advocacy 

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