Education attorney Hope Kirsch was a guest on the Modern Divorce Podcast discussing what happens when a child needs extra help at school, and when parents don't agree.
Tuesday, January 19, 2021
Podcast: What to do when your child needs extra help in school?
Education attorney Hope Kirsch was a guest on the Modern Divorce Podcast discussing what happens when a child needs extra help at school, and when parents don't agree.
Tuesday, December 22, 2020
Transgender Student Rights
From Kirsch-Goodwin & Kirsch, PLLC
Transgender is
an umbrella term for persons whose gender identity or expression (masculine,
feminine, other) is different from their sex (male, female) at birth. Gender
identity refers to one’s internal understanding of one’s own gender,
or the gender with which a person identifies. Gender expression is
a term used to describe people’s outward presentation of their gender. Gender identity and sexual orientation are
different facets of identity. Everyone has a gender identity and a sexual
orientation, but a person’s gender does not determine a person’s sexual
orientation. Transgender people may
identify as heterosexual, homosexual, bisexual, or none of the above. (Centers for Disease Control, Lesbian,
Gay, Bisexual, and Transgender Health, https://www.cdc.gov/lgbthealth/transgender.htm.)
The
acronym LGBTQ stands for “lesbian, gay, bisexual, transgender, queer, or
questioning,” and is an expansion of the abbreviation “LGB” which in turn
replaced the term “gay” back in the last century.
There
is more in the news lately about transgender student rights, but the United
Stated Department of Education’s Office of Civil Rights (“OCR”) addressed it
back in 2010 in a “Dear Colleague” letter about bullying. There, OCR informed schools that
“Although Title IX does not prohibit discrimination based
solely on sexual
orientation, Title IX does protect all students, including lesbian, gay, bisexual, and trans-gender (LGBT) students, from sex discrimination.” (Dear Colleague Letter: Harassment and Bullying,
October 26, 2010.) As OCR explained, in
such cases, schools have “an obligation to take immediate and effective action
to eliminate the hostile environment.”
The CDC provides guidance on what schools
can do. This includes implementing
evidence-based policies, procedures, and activities designed to promote a
healthy environment for all students, encourage the creation of LGBTQ student-led
and student-organized school clubs (such as gay-straight alliances or
gender and sexuality alliances open to student of all sexual orientations and
genders), encourage respect for all students and prohibit bullying, harassment,
and violence against all students, identify “safe spaces” such as counselors’
offices or designated classrooms where LGBTQ student can receive support from
administrators, teachers, or other school staff, ensure that health curricula
or educational materials include HIV, other STD, and pregnancy prevention
information that is relevant to LGBTQ students (such as ensuring that curricula
or materials use language and terminology, provide trainings to school staff on
how to create safe and supportive school environments for all students,
regardless of sexual orientation or gender identity, and encourage staff to
attend these trainings, facilitate access to community-based providers who have
experience providing health services, including HIV/STD testing and counseling,
social, and psychological services to LGBTQ students.
Recent case (August 2020): The 4th Circuit U.S. Court of Appeals, which
encompasses Virginia, West Virginia, Delaware, Maryland, North Carolina and
South Carolina, struck down a Virginia school board’s bathroom policy
segregating students with gender identity issues. The policy limited bathroom use to
"corresponding biological genders" and required students with
"gender identity issues" to use alternative facilities. The 4th Circuit found that the
policy violated a transgender male student's constitutional rights and rights
under Title IX. (Title IX provides that
no person “shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any educational
program or activity receiving Federal financial assistance....” 20 U.S.C. §
1681[a] ; see also 34 C.F.R. § 106.31[a].) The student was initially allowed to
use the boy's bathroom, but the community complained and the board amended its
policy to state that the use of bathrooms "shall be limited to the
corresponding biological genders, and students with gender identity issues
shall be provided an alternative appropriate private facility." The student sued saying that the board's
policy singled him out and discriminated against him for being transgender in
violation of both his 14th Amendment rights and Title IX. The District Court agreed and granted him
summary judgment. The 4th
Circuit affirmed. Grimm v. Gloucester
County Sch. Bd., (4th Cir. 8/26/20).
The Ninth Circuit and other courts
around the country have similarly ruled, striking down bathroom policies that
exclude transgender students. See, Parents
for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020), Whitaker v. Kenosha
Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017), A.H.
v. Minersville Area Sch. Dist., 290 F. Supp. 3d 321 (M.D. Pa. 2017).
COVID-19 & Online Learning Risks
From Kirsch-Goodwin & Kirsch, Arizona's Education Lawyers
First, it is important to distinguish between distance learning an
online learning. Not all distance
learning is online. Online learning is
learning on the computer; it is one aspect of distance learning. Distance learning can be on-line –
synchronous or recorded – and it can be papers and projects, audio, or anything
remote that is not brick-and-mortar.
Risk of on-line instruction revolve around
accessibility, mostly for students with visual impairments, hearing
impairments, students with ADHD who need reminders to focus, those who are in
rural areas with limited or even no computers at home or Wi-Fi. Remember that the IDEA, 504 and ADA, and Endrew
F still apply. Laws and regulations
are not superseded by the pandemic, and schools are obligated to provide a
FAPE.
OSEP provided guidance, informing schools that
upon providing distance learning, they must offer equitable access and services
to students with disabilities (those with IEPs and those with Section 504 Plans). As noted in the March 21, 2020 Guidance: “To
be clear: ensuring compliance with the Individuals with Disabilities Education
Act
(IDEA), Section 504 of the Rehabilitation Act
(Section 504), and Title II of the Americans with Disabilities Act should not prevent
any school from offering educational programs through distance instruction.”
On
June 25, 2020, the American Academy of Pediatrics (“AAP”) issued interim guidance on school re-entry stating
that children learn best when they are in school and that “all policy
considerations for the coming school year should start with a goal of having
students physically present in school,” unless local public health mandates otherwise,
or because of an individual student’s unique medical needs. AAP states that learning at home is not as
effective as learning in a school, will lead to learning gaps, socialization
aspect, mental & emotional health, risk of effects of isolation.
On
July 23, 2020, the Centers for Disease Control and Prevention (the “CDC”)
issued a summary of current studies regarding the impact of COVID-19 on
children. In “The Importance of
Reopening America’s Schools this Fall The Importance of Reopening America’s
Schools this Fall,” the CDC explained the importance of considering the full spectrum
of benefits and risks of both in-person and virtual learning options. Acknowledging
parents’ understandable concerns about the safety of their children at school
in the wake of COVID-19, the CDC stated that the best available evidence
indicates if children become infected, they are far less likely to suffer
severe symptoms as death rates among school-aged children are much lower than
among adults. At the same time, the CDC warned, the harms that have been attributed
to closed schools on the social, emotional, and behavioral health, economic
well-being, and academic achievement of children, in both the short- and
long-term, are well-known and
significant. Finally, the lack of
in-person educational options disproportionately harms low-income and minority
children and those living with disabilities as they are far less likely to have
access to private instruction and care and far more likely to rely on key
school-supported resources like food programs, special education services,
counseling, and after-school programs to meet basic developmental needs. Aside from a child’s home, no other setting
has more influence on a child’s health and well-being than their school.
The CDC explains that the in-person school environment is critical to providing:
·
educational
instruction;
·
social and
emotional skills;
·
a safe
environment for learning;
·
nutritional
needs; and
·
physical
activity.
Monday, December 21, 2020
Disability categories for special education in Arizona
In Arizona, a “child with disability” is defined as “a child who is at least three years but less than twenty-two years of age, who has been evaluated [pursuant to Arizona law] and found to have at least one of the following disabilities and who, because of the disability, needs special education and related services[1]:
i.
Autism.
ii.
Developmental delay.
iii.
Emotional disability.
iv.
Hearing impairment.
v.
Other health impairments.
vi.
Specific learning disability.
vii.
Mild, moderate or severe intellectual disability.
viii.
Multiple disabilities.
ix.
Multiple disabilities with severe sensory impairment.
x.
Orthopedic impairment.
xi.
Preschool severe delay.
xii.
Speech/language impairment.
xiii.
Traumatic brain injury.
xiv.
Visual impairment.
What is Child Find?
Child
Find
Lori
Kirsch-Goodwin, Esq. and Hope N. Kirsch, M.A.Ed., Esq.
Kirsch-Goodwin & Kirsch, PLLC
8900 East Pinnacle Peak Rd., Suite 250
Scottsdale, Arizona 85255
(480) 585-0600
www.azspecialeducationlawyers.com
All children
with disabilities, including children with disabilities who are homeless
children or are wards of the State - and children with disabilities attending
private schools - regardless of the severity of their disabilities, and who are
in need of special education and related services, must be identified, located,
and evaluated and a practical method is developed and implemented to determine
which children with disabilities are currently receiving needed special
education and related services. 20 U.S.C.A. § 1412(3)(A).
Each State is required to have policies and
procedures to ensure that “all children with disabilities . . . including
children with disabilities who are homeless children or are wards of the State,
and children with disabilities attending private schools, regardless of the severity
of their disability, and who are in need of special education and related
services, are identified, located and evaluated.” 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R.
300.111(a)(1)(i). This obligation is known as the “child find”
requirement. 34 C.F.R. 300.111, titled
“Child Find.” IDEA requires Child Find
to include “children who are suspected of being a child with a disability …
even though they are advancing from grade to grade.” 34 C.F.R. 300.111(c)(1). The IDEA “child find” mandate is an
affirmative ongoing obligation for schools.
Arizona in turn requires each public education
agency (school districts and charter schools) to identify and evaluate all
students suspected of having a disability, and to have policies and procedures
in place for such identification and evaluation. Arizona Administrative Code,
R7-2-401(D) and (E) (emphasis added).
Thus, at least in Arizona, the threshold is very low, requiring nothing
more than a suspicion.
A school’s Child Find obligation is triggered where
there is knowledge of, or reason to suspect a student has a disability, and
reason to suspect that a student may need special education services to address
that disability. Dept. of Educ. v.
Cari Rae S., 158 F. Supp.2d 1190, 1194 (D. Hawaii 2001). The threshold for suspecting that a child has
a disability is relatively low. A
school's appropriate inquiry is whether the child should be referred for an
evaluation, not whether the child actually qualifies for services. Id., at 1195.
Beyond the initial 45-day screening, under Child
Find, schools are obligated not only to seek out disabled students, but to also
evaluate or provide services when it has “knowledge” of a disabled child. Knowledge includes poor grades, behavioral
concerns, and/or “off-task” classroom behavior.
J.S. v Shoreline school, 220 F.Supp.2d.1175, 1184, 170 Ed. Law
Rep. 264 (W.D. Wash. 2002). Parents
expressing concern their child might have autism triggers an evaluation. Orange Unified school v. C.K., 59
IDELR 74 (C.D. Cal. 2012). Reported
anxieties also trigger the obligation to evaluate. Forest Grove School District, Oregon
State Educational Agency, 9/12/2012 (finding Child Find violation when no
evaluations were completed to determine why the student was exhibiting anxious
behaviors and how they were interfering with her education).
Thus, there are no magic words that trigger the duty
to evaluate; there need be nothing more than suspicion, possibility, or
concern. The suspicion threshold is
relatively low because the key is not whether the child actually qualifies for
special education services, but whether the child should be referred for an
evaluation.
The school district responsible for child find:
·
Non-profit
private schools district in which non-profit school is located. Arizona
Administrative Code (“A.A.C.”) Rule 7-2-401(D)(4)(b).
·
For-profit
private schools, the district where the parent resides. Letter to Chapman , (OSEP 2007).
This is what Letter to Chapman says:
“Under section 612(a)(3)(A) of IDEA and 34 CFR
§300.111, a State must ensure that all children with disabilities residing in
the State, including children with disabilities attending private schools, and
who are in need of special education and related services, are identified,
located, and evaluated; this includes children with disabilities attending
for-profit private schools. A State determines which public agency is
responsible for conducting child find under 34 CFR §300.111 for children
suspected of having a disability attending for-profit private schools.
Generally, this agency is the LEA in which the child resides.”
Under Arizona
statutes, homeschooled students are considered private school students. A.R.S. § 15-763(C). Charter schools are responsible for child
identification activities for students enrolled in the charter school. A.A.C. R7-2-401(D)(4)(a). However, charter schools are not responsible
for outreach under the child find regulations because charter schools have no
specific geographical boundaries.
Friday, October 2, 2020
Friday, August 7, 2020
AZ Department of Health Services ("ADHS") guidance on SAFELY RETURNING TO IN-PERSON INSTRUCTION
Just released Augsut 6, 2020: AZ Department of Health Services ("ADHS") guidance on SAFELY RETURNING TO IN-PERSON INSTRUCTION https://www.azdhs.gov/documents/preparedness/epidemiology-disease-control/infectious-disease-epidemiology/novel-coronavirus/covid-19-safely-return-to-in-person-instruction.pdf?fbclid=IwAR3PUUaCdY8cfV3vt9Mi-dr5s3IrlWHA9KMC7D16TDUMOvp6ZFkXVdz1l44
Suffice to say that the recommendation from ADHS is that school districts and charter schools do not open their schools for in-person instruction until certain benchmarks are met, including a county-wide decline for two weeks, or two weeks with new case rates below 100 per 100,000 people. If you look at the ADHS website dashboard, that may take some time.
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