School Law: What to Learn from the Top 10 Special Education Cases of 2017

Q & A on Endrew F.

The U.S. Department of Education issued guidance for parents and advocates in the form of Questions & Answers about the U.S. Supreme Court decision earlier this year in Endrew F.
As this case states,  every student's Individualized Education Program (IEP) must be designed to enable and support the student's progress with ambitious and challenging goals.  That means more than de minimus (more than minimal).  This decisoin clarifies that schools must provide programs that enable a student to make educational progress, and every student with with a disability must have the opportunity to achieve progress commensurate with their non-disable peers.
Questions and Answers (Q&A) on U. S. Supreme Court Case Decision Endrew F. v. Douglas County School District Re-1
Kirsch-Goodwin & Kirsch, PLLC

The ABCs of Special Education

Hope’s article in Facts and Findings.

This Anti-Bullying PSA From Burger King Emphasizes the Importance of See Something, Say Something

http://time.com/4993403/burger-king-anti-bullying-psa/The Anti-Bullying PSA from Burger King: See Something, Say Something

For information on bullying in schools, see Bullying in Schools: Legal Issues, Emotional Aspects & Practical Strategies.

KGK in the News

 See the full article.

Bullying & Being Bullied: Legal and Emotional Aspects

A presentation by education attorneys Lori Kirsch-Goodwin and Hope Kirsch of Kirsch-Goodwin & Kirsch
Click here

SECLUSION ROOMS - here we go again! When will our schools ever learn??!

KGK's Hope Kirsch was interviewed for this article.
Thank you Antonio Noori Farzan for bringing to light the continuing outdated, ineffectual and educationally unsound practice of secluding students.

'SOLITARY CONFINEMENT' for Children: 
Madison Heights Elementary Puts Kids in a Closet
ANTONIA NOORI FARZAN | SEPTEMBER 20, 2017

When Stephanie Vasquez was deciding where to send her son to school, she was immediately drawn to Phoenix’s highly rated Madison Heights Elementary for its Spanish-immersion program. With its commitment to bilingual education and scenic campus on the edge of the Phoenix Mountains Preserve, Madison Heights has long been the public school where many elected officials and local leaders choose to send their children.

Vasquez, who owns Fair Trade Cafe in downtown Phoenix, never thought to ask about the school’s discipline policy. So she was shocked when she was walking her son to his classroom one day and saw a kid sitting in what looked like a closet that had been partially painted black. Aside from a desk and a chair, the windowless room was completely empty.

“I was a little taken aback at first,” she says. “Psychologically, I can only imagine what it does to a young child. It’s solitary confinement, just on a child level.”

Vasquez spent eight years as a middle school teacher before she owned Fair Trade, then began volunteering her time to teach incarcerated women at the Perryville state prison complex in Goodyear. So when she talks about the damaging effects of solitary confinement, she’s speaking from firsthand experience.

“The school-to-prison pipeline is a real thing to me,” she says. “Having been a teacher for eight years, and then going to Perryville — the correlations between the two are eerie.”

When she went to the elementary school’s front office to ask what was going on, she was directed to the student-parent handbook posted on the district’s website. It includes detailed information about the range of punishments for various violations such as tardiness and the use of profanity, but doesn’t explain why kids would end up in a closet.

In an email to Phoenix New Times, Madison Heights principal Priscilla Gossett provided a little more information, writing that the room is typically used when students who are waiting to see her or the assistant principal, or are “serving a consequence for disruptive behaviors.”

Students usually are only kept waiting five to 10 minutes for a meeting, she added; kids being punished for “disruptive behavior” sit in the room for a maximum of 15 minutes.

“We've utilized this space in the way I shared for the past five or six years, and during that time have not had any concerns shared,” she wrote.

But knowing that kids are only in there for 15 minutes at a time doesn’t make Vasquez feel much better.

“I don’t think it should happen at all,” she says, pointing out that Madison Heights goes from pre-kindergarten to the fourth grade, so the kids being punished are 9 years old and under. “How long should they really even be in a confined black space? Probably never.”

Hope Kirsch, a Scottsdale-based special education attorney, agrees.

“I really thought they’d start doing away with that,” she said when reached by phone. In 2012, she brought a lawsuit against the Deer Valley Unified School District after a parent discovered that her 7-year-old son had been repeatedly placed in a “cool-down room” — a small windowless, padded space reminiscent of a prison cell. That ultimately led the Arizona Legislature to pass a bill addressing the use of restraint and seclusion in schools, which Kirsch helped to draft.

The room being used to discipline students at Madison Heights doesn’t have a door, which makes it marginally better than what she saw in Deer Valley, Kirsch concedes.

But, she warns, “If people are walking by, they might say, ‘That’s the bad kid, he’s always in there.’ You might as well put a dunce cap on him.”

Like Vasquez, Kirsch is a former teacher — before going to law school, she taught special education in New York City schools.

“I am not a fan of punishment,” she admits. “Kids aren’t born bad. No one wants to sit there and misbehave — they’re misbehaving for some reason, whether it’s because they’re not understanding under the work, or because they’re having sensory overload. And if you’re taking a kid who has sensory issues and you’re putting them in there. ... I’m supposedly a normal person, and I’d go crazy.”

The hard surfaces in the room could be problematic if kids are at risk of harming themselves, she notes. And if kids with disabilities are frequently ending up in there, it could be seen as discriminatory.

Beyond that, she wonders what the point is. “What are they learning in there? This really, really, really pisses me off.”

She and Vasquez both suspect that many parents may not even know that the room is being used as a form of punishment — which would explain why the school hasn’t received any complaints yet.

“I think that’s pretty normal for parents,” Vasquez says. “We think the discipline plans are going to serve our children, but that’s not necessarily the case. I do take responsibility for being a parent and not even knowing about this — if anything, I just encourage parents to really dig into school policy and be an active part of creating it.”

Antonia Noori Farzan is a staff writer at New Times and an honors graduate of Columbia University's Graduate School of Journalism. Before moving to Arizona, she worked for the New Times Broward-Palm Beach.
CONTACT: Antonia Noori Farzan

'Solitary Confinement' for Children: Madison Heights Elementary Puts Kids in a Closet

A well-regarded Phoenix elementary school has come under fire for its discipline policy.

PHOENIXNEWTIMES.COM

The ABC's of Special Education Law

The ABCs of Special Education Law

By Hope N. Kirsch, M.A.(Ed.), Esq.

Special education means an individualized education program (IEP) for students with disabilities to receive a free and appropriate public education (FAPE) that addresses their unique needs to access, to the extent possible, the general education curriculum alongside, to the maximum extent possible, non-disabled peers.  According to the latest statistics available,[1] 13% of all public (and charter) school students have an IEP and are thereby designated as special education students under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.

In 1975, Congress passed the Education of All Handicapped Children Act, Public Law, (P.L.) 94-142, with its main objective to provide a FAPE to each child with a disability.  This followed earlier legislation in the 1960s that grew out of the civil rights movement and sought to correct public schools excluding children and youth with disabilities, including those with severe disabilities who were often sent to institutions where they were left to languish.   

In the 47 years since, federal law has evolved (been re-authorized) and today we have the IDEA which is implemented through federal regulations issued by the U.S. Department of Education, specifically, 34 C.F.R. § 300.1 et. seq.  IDEA is “spending legislation,” meaning states that opt in receive federal monies in the form of grants, but are obligated to comply with the law or risk losing funding.  Every state in turn has its own statutory scheme and implementing regulations, or rules, promulgated by their state education departments that comport with the federal rules.  As “spending legislation,” the Act has teeth; U.S. Department of Education and state departments of education monitor enforcement.  IDEA is applicable to public schools and charter schools, but not private schools.  Parents who choose to send their children to private schools, or use the “vouchers” that are gaining popularity, cut their ties with public schools along with IDEA protections.

IDEA ensures that “eligible” students with disabilities, ages 3 to 21[2], are provided FAPE in the Least Restrictive Environment (LRE).    Special education, is defined as “specifically designed instruction, at no cost to the parent or guardian, to meet the unique needs of a disabled child…”[3]  Related services are supportive services that the student needs to benefit from special education. [4] The non-exhaustive list of related services includes speech & language therapy, psychological and counseling services, physical and occupational therapy, and transportation (to, literally and physically, access the school). 

Perhaps the most ambitious goal of the IDEA is inclusion, commonly known as
“mainstreaming.”  This requires students with disabilities be educated in the LRE, meaning they are to be included with non-disabled / typical peers to the maximum extent possible.     

The IEP is a legally binding written document functioning, essentially, as a blueprint for the child’s education.  It sets out the child’s individual needs and describes the services and supports the child will receive to meet those unique needs, and the LRE - the placement.  In accordance with FAPE, the IEP must be appropriate - the “A” in FAPE.  That is, it must include attainable, realistic goals, not too low and not too high.  Many disputes and ensuing litigation in special education arise over the interpretation of appropriateness for a child, usually in terms of whether the child is making “enough” progress.  In 1982, in a landmark case known as Rowley, the U.S. Supreme Court held that Congress did not intend for schools to maximize a child’s potential, but rather provide “a basic floor of opportunity through a program individually designed to provide educational benefit.”  Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982).  The circuit courts disagreed on how much educational benefit an IEP must provide to be appropriate under the IDEA.  The U.S. Supreme Court recently attempted to settle the “how much” question in Endrew F. v. Douglas County School District RE-1, 580 U.S. __ (2017).  There, the Court held that to meet its substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.  The jury is still out on the import of Endrew.  This author interprets the holding as mandating that IEP goals be ambitious, a higher standard than “some educational benefit.”

IDEA is also notable for the rights it confers on parents – procedural safeguards – the mandate being parental inclusion in decisions concerning the child’s eligibility for, and provision of, special education.  Parents are legally part of the eligibility team (called MET, Multidisciplinary Education Team) and IEP Teams.  Other procedural safeguards include the right to:  examine records; request independent evaluations at public expense; dispute resolution.

Not every student with a disability is “eligible” for special education.  To be eligible for special education, a student must have not only one of 13 disabilities, but also, because of the disability, need specialized instruction.  The disabilities, or eligibility categories, are Intellectual Disability (formerly referred to as Mental Retardation); Hearing impairment; Speech or language impairment; Visual impairment; Serious emotional disturbance; Orthopedic impairment; Autism; Traumatic brain injury; Other health impairment (i.e., ADHD, epilepsy, diabetes); Specific learning disability; Deaf-blindness; Multiple disabilities; Developmental delay (for ages 3–9).  (States can recognize additional disabilities.)  If the disability does not interfere with or impact the student accessing / benefitting from education, then the student does not require special education and will not be eligible for an IEP.  For example, a student who has autism but is high-functioning and social might not qualify.  Similarly, a student with ADHD may not need modified instruction, but may instead qualify for a “504 Plan” which provides a student with accommodations only, but not modifications.  Accommodations change the environment but the standards remain the same.  So, for example, a student with Attention Deficit Disorder (ADD) may have as an accommodation the opportunity to take a test in a separate, quiet room free of distraction, and have additional time, but the assignments are the same as those required of typical peers.

In sum, special education addresses a child’s needs due to his or her disability, and the general education curriculum is modified, thereby enabling the student to access education in the LRE, which ranges from the least restrictive environment (a general education classroom with a ”push-in” which means a special education teacher coming in to help with certain academic subjects, to a self-contained classroom of only disabled students, to a separate special education school, to a residential treatment center). 

Finally, special education and related services must be designed to meet their unique needs and prepare them for further education, employment, and independent living.  Thus, it is important to note that “education” is much more than just academics; education includes social, emotional, behavior, etc.   It is not enough for a student to achieve all As and Bs in academics and ace standardized tests if they are passive and withdrawn and do not make friends.  

For more information, contact the law firm of Kirsch-Goodiwn & Kirsch.     

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[1] U.S. Department of Education data, https://eddataexpress.ed.gov/data-element-explorer.cfm/tab/data/deid/5/.

[2] Age 22 in some states.

[3] 34 C.F.R. § 300.39. 

[4]  34 C.F.R. § 300.34.  

Scholarship Opportunities for Students with Learning Disabilities

Preview: Navigating Special Education.

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Top Ten IEP Tips

Click here for Top 10 IEP Tips.

 Presented by Lori Kirsch-Goodwin and Hope Kirsch of Arizona's Special Education Law Firm.