Recently in Special Education News Category

An excellent article in today's New York Times about the challenges and promises decades of special education have delivered for autistic children.

People with autism, whose unusual behaviors are believed to stem from variations in early brain development, typically disappear from public view after they leave school. As few as one in 10 hold even part-time jobs. Some live in state-supported group homes; even those who attend college often end up unemployed and isolated, living with parents.

But Justin is among the first generation of autistic youths who have benefited throughout childhood from more effective therapies and hard-won educational opportunities. And Ms. Stanton-Paule’s program here is based on the somewhat radical premise that with intensive coaching in the workplace and community — and some stretching by others to include them — students like Justin can achieve a level of lifelong independence that has eluded their predecessors.

“There’s a prevailing philosophy that certain people can never function in the community,” Ms. Stanton-Paule told skeptics. “I just don’t think that’s true.”

With some 200,000 autistic teenagers set to come of age in the United States over the next five years alone, little is known about their ability to participate fully in public life, or what it would take to accommodate them. Across the country, neighbors, employers, colleagues and strangers are warily interacting with young adults whose neurological condition many associate only with children.

Read the complete article here.

Today's NYTimes has an excellent article about the horrors in New York's residential care system for the developmentally disabled. Despite spending as much as $1.4 million per resident, the "system" has failed most of its residents with sub-standard care, abuse and death.

These institutions spend two and a half times as much money, per resident, as the thousands of smaller group homes that care for far more of the 135,000 developmentally disabled New Yorkers receiving services.

But the institutions are hardly a model: Those who run them have tolerated physical and psychological abuse, knowingly hired unqualified workers, ignored complaints by whistle-blowers and failed to credibly investigate cases of abuse and neglect, according to a review by The New York Times of thousands of state records and court documents, along with interviews of current and former employees.

Since 2005, seven of the institutions have failed inspections by the State Health Department, which oversees the safety and living conditions of the residents. One was shut down altogether this year.

Read the article on the NYTimes website here.

In a recent little noticed unpublished First Circuit decision, former USSC Justice Souter held that "whatever the scope of a school’s responsibility towards its students . . . there is no apparent constitutional obligation to impose physical restraint upon teenagers not at immediate risk of harm to themselves or others."

This case was brought by mothers of teenagers who were not physically restrained by school officials from leaving their schools during instructional hours. The mothers brought action under state law as well as 42 U.S.C. § 1983 and § 1988 seeking monetary and injunctive relief for violating Fourteenth Amendment due process, the mothers’ right to preserve family integrity and the children’s right to enjoy freedom from abuse and neglect.

The school system explained their policy of permissiveness by referring to a state education regulation limiting use of lawful physical restraint to instances in which children’s unfettered behavior would raise a risk of “assault or imminent, serious, physical harm” to themselves or others; absent such danger, the prevention of truancy would not be worth the burden of defending the liability claims that would doubtless eventuate.

The magistrate judge hearing the case below recognized that the schools’ refusal to confine children to school premises during school hours effectively converted the state’s compulsory attendance law into the children’s option to wander off into trouble that the parents could not effectively prevent. He suggested that the mothers consider the possibility of relief from the general regulation through Individual Educational Plans for their children as special education students.

The mothers argued that inadequate supervision in schools infringes their rights to maintain the integrity of their families under Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), cases that held it to be beyond the power of states to limit a parent’s choice to provide foreign language instruction in elementary schools or to resort to private education. The Court found, however, that these cases recognized a parent’s liberty to be free from state interference with certain education choices, not a right to require state or local government to run public schools in a way a parent might think they ought to be administered. Any actionable interference with family integrity must be “directly aimed at the parent-child relationship.” Manarite v. Springfield, 957 F.2d 953, 960 (1st Cir. 1992).

Judge Souter further found that the Supreme Court’s discussion in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200 (1989), is on point: “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." According to Souter:

The situation of the children in this case is not even close to facts that would thus raise a state obligation. There is neither restraint of the child (that indeed is the very complaint), nor any practice or circumstance rendering the child unable to care for himself, nor failure to provide basic human needs of food, clothing, shelter, medical care or reasonable safety. As the Supreme Court later observed in Vernonia School District 47J v. Acton, 515 U.S. 646, 655 (1995), “we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional ‘duty to protect’” (citing DeShaney, 489 U.S. at 200).

This decision did not consider any rights parents might have under the Individuals with Disabilities Education Act [IDEA] or other state or federal regulation. Clearly, the court might have found that a policy and practice of allowing special education students to leave with impunity might effectively deny them a free appropriate public education [FAPE]. Beyond this, however, there is no Constitutional duty for schools to keep children in the classroom, nor is there any apparent duty to insure their safety or well-being (or even notice to the parents or police) once they leave school grounds.

The case is Saez v. City of Springfield.

USSC Update - IDEA permits reimbursement for private sped services even though child never attended public school Link

USSC prev Forest Grove v. T.A. - must SpEd student enroll in public school b4 unilateral private school placement? Link

US Dept of Ed releases new guidance on interrelationship between Section 504, the ADA, and the IDEA Link

Finally some good news for a change. Last year one of my long-time clients graduated from high school and received a national award for this essay. I've been holding it for just a time like this, when we all need something positive. It's one of the best things I've read on the risks and rewards experienced by children with disabilities:

It changed me. I finally felt that someone “got me.” I wasn’t an alien just because I have autism. I am so much more than my autism: I’m an artist, I’m a musician, I’m a student and I’m a person.

My name is Sara and that moment came as I sat in the audience at Wicked, The Musical. Elphaba Thropp was a character who was discriminated against because her skin was green. Elphaba was strong in her beliefs and not afraid to express herself. When she sang the song, “Defying Gravity,” it was Elphaba’s declaration that the world is not as fantastic as we expect it to be; sometimes we have to go against what’s “right” to do what we truly believe.

I started out in the Magnet School program at Chestnut Street/Primary School and it was the best possible beginning for me. I was in multi-aged classrooms in a small cozy school. Like Elphaba when she was young, I had security and support. From there I went to Horizons-on-the-Hudson. That’s when musical theater became a part of my life and, in 6th grade; I was able to participate in the school’s Opera Company.

South Junior High was my lowest point. Because I had an IEP, I was treated like scum, not only by my peers, but by teachers and administrators.

I have been diagnosed as having autism spectrum disorder. One day in Junior High I will always remember as the worst day of my life. I was a Girl Scout back then and was delivering my Girl Scout cookie orders to my teachers. When I went into my English class with the cookies, a few of my classmates asked to buy cookies. I said, “I’ll pay you tomorrow.” What I meant to say was “you can pay me tomorrow.” The kids thought it was hilarious that I had said something so dumb. So, they laughed at me. Soon, the entire class was laughing and a few of them shouted, “What a retard.” The worst part of this story is that the teacher was in the room and did NOTHING to stop it.

After that day, I drifted into a depression and tried to focus all my attention on my music. My mom fought throughout my eighth grade year to get me into Honors classes. I got into Honors classes by 9th grade and I stayed there. I became an example to the school district of what a kid with an IEP could do. I defied gravity!

At Newburgh Free Academy, I discovered photography and fashion design. I took Advanced Placement social studies courses; college level courses!! And I did great in them! Teachers no longer saw me as an IEP student; they even told me that I had great potential! I realized that I could do anything I wanted and that I could educate people about what autism really looks like! My skin may not be green like Elphaba’s but autism was almost that obvious.

The moment I heard Elphaba sing “defying gravity,” I realized that, like her character, I had to learn to not be afraid of what made me “different.” I have autism, but autism is not who I am. I am Sara and I’m an artist, a musician, a student and a person who defied gravity.

My education began at the Primary Magnet School @ Chestnut Street after which I attended Horizons-on-the-Hudson Elementary. I sang in school chorus from 3rd grade on and, in 6th grade I was in the Opera Company. I was a Girl Scout up until the 7th grade and received the Girl Scout Bronze Award. At South Jr. High, I was in the ASCEND program, West Point Mentoring program, French Club and on the Yearbook committee.

Since starting NFA, I have been in the Key Club, French Club, Acapella Chorus, Photo Club and Fashion Club and have maintained a 90.13 average over the last two years. This year our Photo Club assisted the Newburgh Animal Shelter in raising awareness of abandoned animals in our area. I also participated in community service projects through the Key Club and Temple Beth Jacob and, in my Junior year, I received the Triple C award for Character, Courage & Commitment.

I plan to attend Dutchess Community College in September as a Music major after which I hope to attend SUNY New Paltz and major in Music Therapy. Since my own diagnosis of autism spectrum disorder has so impacted my life, I am determined to educate others about autism, music, special education and the potential of all children to learn and express themselves.

Thank you Sara. You are truly a profile in courage and an inspiration to us all!

This case required the court to decide whether the practice of the Little Rock School District that subjects secondary public school students to random, suspicionless searches of their persons and belongings by school officials is unconstitutional. The Eighth Circuit Court of Appeals held that such searches violate the students' fourth amendment rights because they unreasonably invade their legitimate expectations of privacy.

In this rare but increasingly common Section 504 educational accommodation case, the liberal Ninth Circuit Court of Appeals held that a successful but learning disabled student was not entitled to special accommodations. The student, whose reading comprehension scores when allowed to read without time limits were at the 99.5 percentile, but under time constraints at the eighth grade level, was deemed not disabled under Section 504.

Highlights from the court's decision follow:

"That is not to say that a successful student by definition cannot qualify as “disabled” under the Acts. A blind student is properly considered to be disabled, because of the limitation on the major life activity of seeing, even if she graduates at the top of her class. Nor do we say that a successful student cannot prove “disability” based on a learning impairment. A learning-impaired student may properly be considered to be disabled if he could not have achieved success without special accommodations. But a student cannot successfully claim to be disabled based on being substantially limited in his ability to “learn” if he has not, in fact, been substantially limited, as that term is used in the Acts.

The relevant question for determining whether Wong is “disabled” under the Acts is not whether he might be able to prove to a trier of fact that his learning impairment makes it impossible for him to keep up with a rigorous medical school curriculum. It is whether his impairment substantially limits his ability to learn as a whole, for purposes of daily living, as compared to most people. The level of academic success Wong has achieved without special accommodation
precludes the possibility that he could establish that he is disabled under the Acts based on a learning impairment. Wong is not less able to “learn” than most people. His record proves the contrary.

Nothing in this decision precludes a student from receiving accommodations or prevents a school from providing them. The question is whether the federal Acts compel the school to provide accommodations. Our answer to that question is not “no” (as the dissenting opinion implies) or “yes, always,” but “yes, sometimes.” The determining factor is whether the student is “disabled” under the terms of the Acts.

The term “learning disability” is commonly used. In the current context that term can be misleading, however, for it is clear that a person who has a “learning disability” is not necessarily “disabled” under the Acts. The Acts use the term in a narrower fashion, to cover only those persons who have an impairment that substantially limits one of the major life activities. . . Although he may have a learning disability, Wong is not substantially limited in the life activity of “learning” as compared to most people. The law compels accommodations for someone who is “disabled” as that term is used in the Acts, but not for everyone who may have a condition described as a “learning disability.”

As for the activity of reading, Wong’s contention was not that he could not read, but that, as a result of his learning disability, he read very slowly and often had to re-read material several times. He cited evidence, for instance, that his reading comprehension scores, when allowed to read without time limits, were at the 99.5 percentile, but under time constraints he read at the eighth grade level.7 In essence, it was argued that Wong read slowly, especially when compared to his own reading comprehension ability without time limits, or to others in his academic peer group. He did not, however, present evidence to the district court or argue to us that he was substantially limited in his ability to read for purposes of daily living, or as compared to what is important in the daily life of most people. That is the appropriate standard.