Transcript Ruth Colker Distinguished University Professor The Ohio State University Moritz College of Law.

Ruth Colker
Distinguished University Professor
The Ohio State University
Moritz College of Law
SCOPE OF RESEARCH
Read complete legislative
history
Read background to all major
Supreme Court cases
Read about 100 hearing
officer decisions from
California, Florida, New
Jersey, Ohio, and the
District of Columbia
DISABILITY CLASSIFICATION DATA (2010)
African-American
Hispanic
White
(14 % of population)
(22 % of population)
(55 % of population)
Mental Retardation
32.5 %
12.8 %
51.4 %
Speech or Language
Impairment
16.5 %
18.1 %
61.6 %
Visual Impairment
16.3 %
26.7 %
52.3 %
Emotional
Disturbance
28.5 %
11.9 %
56.7 %
Orthopedic
14.2 %
20.6 %
61.4 %
Other Health
Impairment
18.9 %
9.8 %
68.4 %
Specific Learning
Disability
21.2 %
23.8 %
52.1 %
Multiple Disabilities
18.8 %
12.6 %
64.8 %
Hearing Impairment
16.2 %
24.9 %
52.9 %
Autism
14.0 %
11.3 %
69.7 %
Developmental Delay
23.7 %
9.6 %
59.4 %
SUSPENSION DATA
African-American
White
1998-99
0.36 %
0.2 %
2002-03
2.38 %
0.74 %
2005-06
2.78 %
0.67 %
2007-08
4.11 %
1.09 %
THEMES IN STATES
OHIO
Large number of sufficiency
determinations under 2004 Act
Many cases involved issue of
whether child was even eligible for
special education; not a lot of
cases about adequacy of IEP
Parents won 32.7 % of first-level
hearing officer decision in a 2-tier
system
FLORIDA
Half of cases involved children
with autism
Parents prevailed in 15.1% of
cases but very high rate of
settlement
Pattern of substantive violations
without effective remedies
NEW JERSEY
School district has burden of
proof, except for emergent
petitions, but seemed to have little
impact on outcome
Overall, parents prevailed in 13 %
of cases
DISTRICT OF COLUMBIA
Learning disability was most
common disability; few cases
involving autism
Nearly all parents were
represented by legal counsel
Most students were in high
school
Parents prevailed in 57 % of
cases
CALIFORNIA
Parents prevailed in 34.6 % in cases
•
Parents prevailed in 11.5 % of cases in
which school district had BOP
•
Parents prevailed in 11.1 % of cases in
which school district challenged
parents’ right to an IEE
Autism was most frequent disability
More situations where:
•
Foreign language interpreter
•
Challenge to IEE request
RECURRING PROBLEMS
• Burden of Proof: Schaffer v. Weast
• Adequacy of IEP: Rowley v. Board
of Education
•
Procedural Errors Causing Harm
BURDEN OF PERSUASION
SCHAFFER V. WEAST
7th grade boy, Brian Schaffer, who
was seeking to enroll in public
school for first time in 8th grade
Parents rejected two possible public
school placements, initiated a due
process hearing, and sought
reimbursement for unilaterally
sending Brian to private school
HOLDING
Burden of proof is on parent when they are
the moving party seeking relief
Case was in “equipoise” so allocation of
BOP was determinative to outcome
BURDEN OF PROOF
The Schaffer Court noted that the
term “burden of proof”
encompasses two burdens
•
the burden of persuasion and
•
burden of production
The Schaffer case only involved the
“burden of persuasion”
•
who wins if the evidence is closely
balanced.
FAIRNESS PREDICATE: FLEXIBLE, INFORMAL
HEARINGS
“IDEA hearings are deliberately
informal and intended to give
ALJs the flexibility that they
need to ensure that each side
can fairly present its evidence.
IDEA, in fact, requires state
authorities to organize
hearings in a way that
guarantees parents and
children the procedural
protections of the Act.”
FAIRNESS PREDICATE: RECORD REVIEWS
“[P]arents have the right to review all
records that the school possesses in
relation to their child.”
FAIRNESS PREDICATE: INDEPENDENT
EDUCATIONAL EVALUATION
“[Parents] also have the right to an ‘independent
educational evaluation of the[ir] child.’ The
regulations clarify this entitlement by
providing that a ‘parent has the right to an
independent educational evaluation at
public expense if the parent disagrees with
an evaluation obtained by the public
agency.’ IDEA thus ensures parents access
to an expert who can evaluate all the
materials that the school must make
available, and who can give an independent
opinion. They are not left to challenge the
government without a realistic opportunity
to access the necessary evidence, or
without an expert with the firepower to
match the opposition.”
INDEPENDENT EDUCATIONAL EVALUATIONS
34 C.F.R. § 300.502
(b) Parent right to evaluation at public expense.
(1) A parent has the right to an independent educational evaluation at public
expense if the parent disagrees with an evaluation obtained by the public agency
(2) Parent is entitled to evaluation at public expense unless agency demonstrates
at a due process hearing that its evaluation is appropriate …
(4) The public agency may ask for the parent’s reason why he or she objects to
the public evaluation. However, the public agency may not require the parent to
provide an explanation and may not unreasonably delay …
(5) A parent is entitled to only one independent educational evaluation at public
expense each time the public agency conducts an evaluation with which the
parent disagrees.
WHEN IS SCHOOL’S EVALUATION “APPROPRIATE”?
20 U.S.C. § 1414(b):
•
Variety of assessment tools and strategies to gather relevant functional,
developmental, and academic information, including information provided by the
parent
•
Not use any single measure or assessment as the sole criterion
•
Use technically sound instruments that may assess the relative contribution of
cognitive and behavioral factors, in addition to physical or developmental factors
•
Provided and administered in the language and form most likely to yield accurate
information
•
The child must be assessed in all areas of suspected disability
•
Special rules for assessing specific learning disabilities, including use of
scientific, research-based intervention
STAY PUT CONTEXT
Burden of proof is on the
school district when it is
seeking to challenge an
existing IEP.
Those same considerations
also exist when a parent
seeks to retain an
existing placement or
service.
CHILD FIND CONSIDERATIONS
Child Find obligation is an “affirmative
duty” of the State or LEA
•
“the threshold for ‘suspicion’ is
relatively low, and … the inquiry was
not whether or not she actually
qualifies for services, but rather, …
whether she should be referred for an
evaluation”
•
Obligation helps neutralize what
Schaffer Court called the school’s
“natural advantage”
•
In other jurisdictions, Child Find cases
have been important and successful
ADEQUACY OF INDIVIDUALIZED EDUCATIONAL PLANS
ROWLEY V. BOARD OF EDUCATION:
AMY’S STORY
First grade IEP:
•
Tutor for deaf for one hour per day
•
Speech therapist for three hours per
week
•
FM amplification device
Issue:
•
Whether Amy would also receive a sign
language interpreter
FACTUAL BACKGROUND
Three week trial with interpreter scheduled
in kindergarten
•
Ended after two weeks
•
Amy resisted using his services
•
Interpreter’s Report: “I would say that
as far as interpretive services are
concerned, they are not needed at this
time. However, this does not rule out
the fact that an interpreter will not be
needed at a future date when the
classroom work becomes more
involved and large group discussion
becomes the rule.”
Moved to new school district in 5th grade
where she received interpreter
EDUCATIONAL BENEFITS STANDARD
Supreme Court repeatedly focuses on the
importance of “access to specialized
instruction and related services”
•
State satisfies its FAPE requirement by
“providing personalized instruction
with sufficient support services to
permit the child to benefit
educationally”
•
The “basic floor of opportunity”
consists of “access to specialized
instruction and related services which
are individually designed to provide
educational benefits”
MEANINGFUL EDUCATION STANDARD
Third and Sixth Circuits support a
“meaningful educational benefit
standard” under which one would
measure educational benefit “in
relation to the potential of the child at
issue”
Ninth Circuit in Mercer Island says that
“educational benefit,” “some
educational benefit,” and
“meaningful” educational benefit
standards all “refer to the same
standard”
APPLIED TO AMY ROWLEY
Amy was receiving “substantial specialized
instruction”
“We do not hold today that every
handicapped child who is advancing
from grade to grade in a regular public
school is automatically receiving a
‘free appropriate public education.’ In
this case, however, we find Amy’s
academic progress, when considered
with the special services and
professional consideration accorded
by the Furnace Woods school
administrators, to be dispositive.”
CODIFIED
IDEA Findings: education for 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”
Department of Education regulations:
Children can be classified as disabled
and therefore entitled to a FAPE “even
though they are advancing from grade
to grade”
RELIEF
PROCEDURAL ERRORS THAT CAUSE HARM
IMPEDED THE CHILD’S RIGHT TO A FAPE
SIGNIFICANTLY IMPEDED THE PARENT’S OPPORTUNITY TO
PARTICIPATE IN THE DECISIONMAKING PROCESS REGARDING THE
PROVISION OF A FAPE TO THE PARENT’S CHILD
CAUSED A DEPRIVATION OF EDUCATIONAL BENEFIT
THE FUTURE
Congress amended the Americans with
Disabilities Act in 2008 to broaden the
definition of disability
•
Learning disabilities clearly covered
•
ADHD clearly covered
More and more parents filing Section 504
complaints
•
Hearing officers do not have power to
hear Section 504 claims but parents
often required to exhaust their IDEA
rights before bringing Section 504 claims
Quite a mess is ahead of us.