Read the whole article at http://teachingld.org/pdf/Alert6.pdf
Co-Teaching
Co-teaching is a special education service delivery model in which two certified teachers, one general educator and one special educator, share responsibility for planning, delivering, and evaluating instruction for a diverse group of students, some of whom are students with disabilities. Co-teaching has emerged as a very popular alternative to the more traditional Resource Room or pull-out special education service delivery models and as a way to support inclusion of students with disabilities in general education settings. Coteaching draws on the strengths of both the general educator, who understands the structure, content, and pacing of the general education curriculum, and the special educator, who can identify unique learning needs of individual students and enhance curriculum and instruction to match these needs.
According to its advocates, co-teaching is supposed to accomplish three goals: First, co-teaching is expected to make available to all students, including those with disabilities, a wider range of instructional alternatives than would be possible with just one teacher. Second, co-teaching is expected to enhance the participation of students with disabilities as full classroom members. Third, co-teaching is expected to improve performance outcomes for students with disabilities. In theory, when co-teaching is implemented, both educators are delivering substantive instruction, and the instruction from both teachers occurs within the confines of a single classroom. In practice, when co-teaching is implemented, the roles and responsibilities of the general and special education teacher vary widely.
A search was conducted for research articles published within the last 20 years in refereed journals that compared teachers’ instructional practices, student engagement rates, and/or student academic progress in co-taught classrooms with those in alternative special education service delivery models. Only four articles were found in which the effectiveness of co-teaching was measured empirically and compared statistically with a control condition. Three of these reported on studies conducted in elementary schools, one on a study conducted in a high school.
Elementary Level
• Bear and Proctor (1990) studied the achievement gains of 47 third graders with high-incidence disabilities taught in Team Approach to Mastery (TAM) classrooms, compared to the gains shown by 31 students with high-incidence disabilities served in resource rooms. In TAM classrooms, students with high-incidence disabilities are taught together with non-disabled peers for 100% of the school day, at the ratio of approximately one student with disabilities to every three without disabilities. Two teachers, one certified in general education, the other in special education, jointly provide instruction to all students in the same classroom. The researchers used scores from the Comprehensive Test of Basic Skills, available in students’ permanent records, to show that achievement gains of students with disabilities in TAM classes were consistently greater than (in math) or equal to (in reading) the gains made by students in the resource room. They concluded that TAM classrooms are “at least as effective” as resource rooms.
• Schulte, Osborne, and McKinney (1990) randomly assigned students with learning disabilities in grades 1 to 4 to one of three service delivery models: one period of resource room services per day (n=19), consultative services to the general education teacher who had students with disabilities in his/her class (n=14), and consultative services with co-teaching (n=19). They measured students’ academic progress using both standardized achievement tests in reading, writing, and mathematics, and a criterion-referenced reading measure. Like Bear and Proctor, Schulte and her colleagues found that consultation plus co-teaching was “as effective as” the other service delivery models in producing academic gains.
• Marston (1996) compared reading progress of elementary students with high-incidence disabilities served in inclusion-only (n=33), pull-out only (n=171), and combined (n=36) service delivery models. In inclusion-only models, students with disabilities were provided all their IEP services in the general education classroom through co-teaching. In pull-out only, all special education services were delivered in a resource room. The combined model included pullout resource room services and co-teaching provided jointly by the general and special education teacher in the general education classroom. By comparing curriculum-based measures taken in fall and spring, Marston demonstrated that reading progress of students served in the combined model was significantly greater than that of students served in either the inclusion-only (co-teaching) or pull-out only models. Once again, co-teaching was ‘as effective as” resource in producing reading growth, but this study also showed the value-added of combining both coteaching and pull-out service delivery systems.
High School Level
• Boudah and colleagues (1997) studied the effects of co-teaching (referred to as collaborative instruction) on the performance of high school students with disabilities on content subject quizzes and test scores. They found that the performance of students with high-incidence disabilities (n=16) actually worsened during the experimental, co-teaching treatment. Furthermore, even with two teachers in the room, students in co-taught settings were only minimally engaged in instructional tasks. Despite the current and growing popularity of co-teaching, research on student outcomes in this service delivery model is very limited. Only four studies could be found. In the three elementary studies co-teaching was just as effective in producing academic gains as resource room instruction or consultation with the general education teacher; in the high school study, students’ quiz and exam grades actually worsened during the co-teaching experiment. If the goal of coteaching is to allow students with high-incidence disabilities to access the general education curriculum and to “do no harm” to them in terms of academic achievement, then the three elementary studies provide modest support for a co-teaching model in elementary schools. If the goal, however, is to achieve greater academic gains than have been traditionally achieved in a resource program, then co-teaching has not yet proved itself useful. Furthermore, the research suggests that the prevailing assumptions about the effectiveness and usefulness of co-teaching for students with disabilities in inclusive classrooms need to be reexamined.
My Son
Sunday, January 25, 2009
Thursday, January 1, 2009
IDEA Litigation Challenging State Noncompliance
Back to School on Civil Rights
V. IDEA Litigation Challenging State Noncompliance
A. Introduction Under the Individuals with Disabilities Education Act (IDEA), parents and families of children with disabilities play a key role in enforcing the law. They initiate litigation and raise issues that otherwise may not gain attention. In order to pursue these issues, parents must find attorneys who are knowledgeable about IDEA and willing to accept cases where fee payment may be deferred or delayed until the case is settled. In other words, the attorney may not get paid unless the client wins and the court awards attorney's fees. Damages are rarely awarded in these cases, which are often protracted and expensive. During the pendency of the cases, until they are settled, the attorneys must be in a position to work without compensation.
Litigating attorneys in the private bar who are experts on IDEA are not commonplace.
Frequently specialty public interest organizations will accept such cases. The Protection and Advocacy systems (P&As), which provide legal representation and advocacy for people with disabilities in every state in the country, represent families in many special education cases.
"As you look at the priorities that are being set by the [P&As], almost all of our cases now are expulsion/suspension cases. We're just trying to keep kids in the classrooms."-- Curt Decker, Executive Director, National Association of Protection and Advocacy Systems (NAPAS), on the need for OSEP to fund legal advocacy for parents[289]They are federally funded to provide such support. Nonprofit organizations such as the Disability Rights Education and Defense Fund (DREDF), the contractor for this report, also provide such representation, but usually without federal funding. Both organizations report that they do not have sufficient resources to respond to all the requests for assistance that they receive from parents of students in special education. Without adequate support these organizations are unable to assist parents in raising issues, such as the following ones, which generate IDEA compliance.
B. Summary of Litigation in California, Illinois, and Texas In three recent cases, parents have challenged their state's monitoring and enforcement system in failing to address local noncompliance. Although the local education agency (LEA) and, ultimately, the state education agency (SEA) have responsibility for ensuring FAPE to all children with disabilities in the state, when the LEA fails in its responsibility to provide services and the SEA fails to properly monitor and enforce the law, as the following cases reflect, the burden of enforcement falls on parents.
In Corey H. v. Board of Education of the City of Chicago, Chicago public school students with disabilities brought a class action against both the City of Chicago Board of Education (CBE) and the Illinois State Board of Education (ISBE).[290] The students sought declaratory and injunctive relief to correct CBE's and ISBE's widespread failure to educate children with disabilities in the least restrictive environment (LRE).[291]
Although CBE agreed to settle with an extensive plan for correcting the LRE violations, ISBE continued to argue that it fulfilled the IDEA's LRE mandate.[292] ISBE claimed that IDEA (20 U.S.C. 1412(6)) requires only that it provide oversight and general supervision of CBE's LRE efforts.[293] ISBE also argued that its monitoring efforts were adequate because OSEP had approved Illinois' state plan including its monitoring plan. The court, however, found that Congress intended to place final responsibility and accountability in one agency, and held that once ISBE had accepted IDEA funds, it was responsible to ensure compliance with the IDEA's LRE requirements.[294] As the court put it, "the evidence presented at trial demonstrates beyond doubt that, despite the fact that the LRE mandate has been on the books since 1975, the Chicago public schools have languished in an atmosphere of separate and unequal education for children with emotional, mental, and behavioral difficulties."[295] The fact that OSEP may have approved Illinois' plan was not dispositive.[296] The court affirmed the right of parents to enforce their children's rights and ensure compliance with IDEA independent of OSEP's actions or inaction. To the court, ISBE clearly violated its duty to establish its own effective monitoring and enforcement system.[297]
The Corey H. court found numerous systemic failures in ISBE's monitoring and enforcement of IDEA's LRE requirements: students with low-incidence disabilities were placed in highly restrictive placements, ISBE's funding formula perpetuated segregating children with disabilities, and when the CBE failures were pointed out to ISBE, ISBE took little or no action to ensure the failures were corrected.[298] The court ordered the ISBE to identify and correct its LRE violations, inform its teachers and administrators of their IDEA responsibilities regarding LRE implementation, certify teachers according to LRE requirements, and establish a state funding formula that reimburses local agencies for educating children in the least restrictive environment appropriate to their individual needs. The court has since appointed its own expert to develop an effective monitoring and enforcement system for Illinois. A monitoring system currently in development will closely follow the focused monitoring approach being tested in Texas.
Another recent case challenging a state's failure to monitor and enforce LEA compliance with IDEA is Angel G. et al. v. TEA. Filed in 1994, this case was brought by parents on behalf of their children who resided in Texas Residential Care Facilities (RCF). The case alleged that the Texas Education Agency (TEA) failed to meet three responsibilities required of a state education agency by IDEA: (1) child find, (2) development of interagency agreements, and (3) effective monitoring and enforcement of LEA compliance with IDEA.
In 1996, the court in Angel G. approved a settlement agreement that resolved both the child find and interagency agreement issues but left open the issue of the effectiveness of TEA's monitoring system. TEA continued to fail to assure that its RCFs provide a free appropriate public education (FAPE) to children and youth with disabilities who reside in these facilities. An independent consultant issued a report finding TEA's monitoring system to be "fundamentally flawed" and recommended that TEA convene a group of experts to develop a replacement or supplemental system of special education monitoring. TEA initially refused to implement this recommendation but later informed the court that it had made substantial changes to its current monitoring system to ensure compliance with IDEA. The court requested that each party submit their plans for an effective special education monitoring system and held oral argument on the adequacy of these plans. Following this hearing, the court issued an order setting the case for an evidentiary hearing to begin on August 9, 1999, and to continue as needed.[299] At this hearing, the court will examine "whether the components of the plan TEA filed in this case on August 14, 1998, are adequate to enable TEA to meet its burden as an SEA...."
In the most recent of these cases challenging the state's monitoring system, a group of eight children with disabilities in East Palo Alto, California, brought a class action lawsuit in November 1996 against their school district, the Ravenswood City Elementary School District, for extensive violations with all of the substantive and procedural requirements of IDEA;[300] (e.g., failure to provide FAPE, extensive LRE violations, failure to ensure parent participation, utilizing discriminatory evaluation procedures, etc.).
The plaintiff children in this case, Emma C. v. Eastin, also sued the California Department of Education (CDE) for failing to monitor and enforce the law despite repeated findings of noncompliance in the school district.
After a period of intensive law and motion activity, the U.S. district court made a number of critical rulings in Emma C. The court held that (1) all available remedies, including money damages and compensatory education, are available under IDEA against the CDE and against members of California's Board of Education in their individual capacities; (2) that the nature of the systemic problems alleged in the suit made exhaustion of administrative remedies futile and therefore unnecessary; and (3) that the CDE was at that time incapable of ensuring compliance in the district because of the substantial inadequacies in its own monitoring and complaint systems.[301] The court certified a class comprised of all past, present and future special education students in the district.
Following these court rulings, the plaintiff children in Emma C. and the CDE entered into a tentative settlement agreement in which CDE agreed to undertake a comprehensive step by step approach to bring Ravenswood into compliance. Plaintiffs also reached agreement with the district in which the district primarily agreed to abide by any corrective action plan developed by the state and independent monitors and provided for compensatory education to all eligible children.
Plaintiffs and the CDE are negotiating an agreement to change California's monitoring system to the focused monitoring approach proposed by the plaintiffs in the Angel G. litigation. The CDE has taken substantial steps already to convert to this approach, including commitment to a pilot program to test whether it will result in greater compliance.
C. Development of More Effective Monitoring Systems A group of these experts convened by the plaintiffs designed a proposed focused monitoring system for Texas.[302] Known as the Chicago Group because the meeting was held in Chicago, these experts continue to flesh out the details of the system.[303] In addition, advocates and experts in the states of Texas, California, and Illinois are reviewing the proposed system to refine and delineate it and address the many related complex issues. The state of California has committed to adopting this focused monitoring system and planned to conduct its first pilot program in 1999. The following is an overview of the proposed focused monitoring system.
The Texas work articulated five principles that provide the underpinnings for an effective state IDEA monitoring system. The system must (1) address all legal requirements and educational results for students, (2) include public involvement, (3) build on existing student data to increase system efficiency, (4) direct resources to areas of greatest need, and (5) result in timely verification or enforcement of compliance. Their approach is based on the notion of continuous improvement with a data-based accountability system.[304]
The three components of the compliance monitoring system are (1) performance review, (2) policy review, and (3) complaint management. These three system components take place within the context of three ongoing activities: (1) the Comprehensive System of Personnel Development (CSPD), (2) oversight and enforcement, and (3) data design, analysis, and review.[305]
At the heart of this system is the performance review process, which works as follows. The state agency conducts a performance review of each LEA. The outcome of the review is used by the SEA, in part, to place LEAs into one of four categories: (1) Continuous Improvement District --no additional compliance activities required by the state agency; (2) Data Validation District--sixty LEAs randomly selected annually to verify reported data and examine procedural compliance; (3) At-Risk District--self-study supplement to district improvement plan required; or (4) Focused-monitoring district--on-site investigation of specific areas of noncompliance conducted by the state.[306]
In order to determine the category of each LEA, the state must develop a template for analyzing special education performance data and measuring compliance. Critical variables or indicators must be determined. Variables could include measures of graduation rates, drop-out rates, academic achievement levels, and placement (LRE) data. Standards must be developed for three types of trigger values. The first trigger value, which would apply to each variable, is the "at-risk" trigger. This trigger identifies LEAs that are "at risk" in their performance in that area. Critical variables would receive one trigger in addition to the "at risk" trigger. The second trigger for critical variables is the focused monitoring trigger, which identifies the districts that will receive a focused monitoring visit. The third value is used as a benchmark for each critical variable. The benchmark serves as the statewide performance goal for the critical variables designed to improve the performance levels.[307]
The focused district monitoring occurs when an LEA exceeds the trigger for any critical data variable. The state creates an investigation plan that is tailored to the identified areas of noncompliance prior to the visit. The plan is individualized for each LEA and must incorporate several features including focusing on measurable data that indicate compliance or noncompliance with the identified issue, classroom observation, and input from parents and students. Districts that are designated as "at-risk" or "focused monitoring" must have plans for correcting areas of noncompliance. Technical assistance and personnel training should be provided to the LEA by the SEA if needed. The SEA must develop written procedures that outline the progression from noncompliance findings to enforcement so that they are consistently applied for each noncompliant LEA. These procedures should be clear to LEAs so that there is no doubt about the consequences for ongoing noncompliance.[308]
Likewise, the state must have a system of progressive sanctions to use whenever any LEA fails to correct noncompliance within a specific time line. The proposed range of sanctions is as follows in ascending order:
Mandatory First-Level Sanctions require the state to send a letter of continued noncompliance to all families of students with disabilities served by the LEA and members of the state legislature.
A public hearing is held by the district's school board and the noncompliance information is a consideration in the evaluation of the LEA superintendent and relevant principals.
Mandatory Second Level Sanctions, which are to be implemented within 60 days of the first level of sanctions if noncompliance continues, require lowered accreditation of the noncompliant LEA and suspension or termination of responsible administrative officials.
Mandatory Third Level Sanctions, which are imposed 60 days after Level 2 sanctions if noncompliance continues, require a choice of one of the following options: (1) transference of federal and state special education funds to a neighboring LEA for oversight of the provision of special education in the noncompliant district; (2) partial withholding of federal and state special education funds while the LEA must continue to provide required services; (3) withholding of all federal and state special education funds while the LEA must continue to provide required services; and (4) recovery by the state of previously awarded federal and state funds.[309] The elements of this proposed system have potential for correcting some long-standing weaknesses in Texas, California, and Illinois state monitoring. The proposed system has been implemented on a "pilot" basis only in California; more time is needed to test its effectiveness.
D. Findings and Recommendations
Finding # V.1 Parent advocacy and litigation have been critical means for exposing and remedying persistent and systemic IDEA noncompliance. The law depends on litigation in order to function effectively. Parents of children with disabilities are uniquely situated to identify and raise the legal issues related to persistent noncompliance with IDEA. Their financial situations, however, typically do not permit sustained private legal action, and not enough public resources are available to assist them.
Recommendation # V.1A Whenever Congress and the President approve an increase in the funding to be distributed to local schools under Part B of IDEA, Congress and the President should appropriate at the same time an amount equal to 10 percent of the total Part B increase to fund free or low-cost legal advocacy services to students with disabilities and their parents through public and private legal service providers, putting competent legal assistance within their financial reach and leveling the playing field between them and their local school districts. Litigation by parents is still a necessary recourse when administrative action at the state level to obtain FAPE for their child has failed. In some states, litigation has also been a vital catalyst to a more effective implementation of IDEA across the board. Access to legal assistance that could result in obtaining an appropriate education for their children remains beyond the financial reach of too many families. Federal funds currently available for low-cost legal services under the Developmental Disabilities Act, the Technical Assistance Act, the Rehabilitation Act, and the Protection and Advocacy for Individuals with Mental Illness Act must be supplemented to begin to address the need. This will be a start toward putting families on a more equal playing field with school districts that use tax dollars to hire legal counsel to assist them in avoiding compliance with IDEA requirements.
Recommendation # V.1B
OSEP should endorse the allocation of additional funding to public and private legal service providers, including the state PTIs, P&As, and IL centers, the private bar and nonprofit legal services centers, for the purpose of carrying out a coordinated strategy for making legal advocacy services more available to students with disabilities and their families.
Finding # V.2
Pilot programs in compliance monitoring and enforcement at the state level are testing the use of a broad range of flexible enforcement options in the context of corrective action plans linking specific noncompliance findings with agreed upon enforcement options and time lines.
Recommendation # V.2
OSEP should develop and test the use of state compliance agreements that incorporate appropriate sanctions selected from a broad range of enforcement options, and link them to the state's failure to correct specific noncompliant conditions within the agreed time frame. OSEP should also encourage the state's use of sanctions in this manner when the state's compliance monitoring indicates that LEAs are failing to correct findings of noncompliance.
V. IDEA Litigation Challenging State Noncompliance
A. Introduction Under the Individuals with Disabilities Education Act (IDEA), parents and families of children with disabilities play a key role in enforcing the law. They initiate litigation and raise issues that otherwise may not gain attention. In order to pursue these issues, parents must find attorneys who are knowledgeable about IDEA and willing to accept cases where fee payment may be deferred or delayed until the case is settled. In other words, the attorney may not get paid unless the client wins and the court awards attorney's fees. Damages are rarely awarded in these cases, which are often protracted and expensive. During the pendency of the cases, until they are settled, the attorneys must be in a position to work without compensation.
Litigating attorneys in the private bar who are experts on IDEA are not commonplace.
Frequently specialty public interest organizations will accept such cases. The Protection and Advocacy systems (P&As), which provide legal representation and advocacy for people with disabilities in every state in the country, represent families in many special education cases.
"As you look at the priorities that are being set by the [P&As], almost all of our cases now are expulsion/suspension cases. We're just trying to keep kids in the classrooms."-- Curt Decker, Executive Director, National Association of Protection and Advocacy Systems (NAPAS), on the need for OSEP to fund legal advocacy for parents[289]They are federally funded to provide such support. Nonprofit organizations such as the Disability Rights Education and Defense Fund (DREDF), the contractor for this report, also provide such representation, but usually without federal funding. Both organizations report that they do not have sufficient resources to respond to all the requests for assistance that they receive from parents of students in special education. Without adequate support these organizations are unable to assist parents in raising issues, such as the following ones, which generate IDEA compliance.
B. Summary of Litigation in California, Illinois, and Texas In three recent cases, parents have challenged their state's monitoring and enforcement system in failing to address local noncompliance. Although the local education agency (LEA) and, ultimately, the state education agency (SEA) have responsibility for ensuring FAPE to all children with disabilities in the state, when the LEA fails in its responsibility to provide services and the SEA fails to properly monitor and enforce the law, as the following cases reflect, the burden of enforcement falls on parents.
In Corey H. v. Board of Education of the City of Chicago, Chicago public school students with disabilities brought a class action against both the City of Chicago Board of Education (CBE) and the Illinois State Board of Education (ISBE).[290] The students sought declaratory and injunctive relief to correct CBE's and ISBE's widespread failure to educate children with disabilities in the least restrictive environment (LRE).[291]
Although CBE agreed to settle with an extensive plan for correcting the LRE violations, ISBE continued to argue that it fulfilled the IDEA's LRE mandate.[292] ISBE claimed that IDEA (20 U.S.C. 1412(6)) requires only that it provide oversight and general supervision of CBE's LRE efforts.[293] ISBE also argued that its monitoring efforts were adequate because OSEP had approved Illinois' state plan including its monitoring plan. The court, however, found that Congress intended to place final responsibility and accountability in one agency, and held that once ISBE had accepted IDEA funds, it was responsible to ensure compliance with the IDEA's LRE requirements.[294] As the court put it, "the evidence presented at trial demonstrates beyond doubt that, despite the fact that the LRE mandate has been on the books since 1975, the Chicago public schools have languished in an atmosphere of separate and unequal education for children with emotional, mental, and behavioral difficulties."[295] The fact that OSEP may have approved Illinois' plan was not dispositive.[296] The court affirmed the right of parents to enforce their children's rights and ensure compliance with IDEA independent of OSEP's actions or inaction. To the court, ISBE clearly violated its duty to establish its own effective monitoring and enforcement system.[297]
The Corey H. court found numerous systemic failures in ISBE's monitoring and enforcement of IDEA's LRE requirements: students with low-incidence disabilities were placed in highly restrictive placements, ISBE's funding formula perpetuated segregating children with disabilities, and when the CBE failures were pointed out to ISBE, ISBE took little or no action to ensure the failures were corrected.[298] The court ordered the ISBE to identify and correct its LRE violations, inform its teachers and administrators of their IDEA responsibilities regarding LRE implementation, certify teachers according to LRE requirements, and establish a state funding formula that reimburses local agencies for educating children in the least restrictive environment appropriate to their individual needs. The court has since appointed its own expert to develop an effective monitoring and enforcement system for Illinois. A monitoring system currently in development will closely follow the focused monitoring approach being tested in Texas.
Another recent case challenging a state's failure to monitor and enforce LEA compliance with IDEA is Angel G. et al. v. TEA. Filed in 1994, this case was brought by parents on behalf of their children who resided in Texas Residential Care Facilities (RCF). The case alleged that the Texas Education Agency (TEA) failed to meet three responsibilities required of a state education agency by IDEA: (1) child find, (2) development of interagency agreements, and (3) effective monitoring and enforcement of LEA compliance with IDEA.
In 1996, the court in Angel G. approved a settlement agreement that resolved both the child find and interagency agreement issues but left open the issue of the effectiveness of TEA's monitoring system. TEA continued to fail to assure that its RCFs provide a free appropriate public education (FAPE) to children and youth with disabilities who reside in these facilities. An independent consultant issued a report finding TEA's monitoring system to be "fundamentally flawed" and recommended that TEA convene a group of experts to develop a replacement or supplemental system of special education monitoring. TEA initially refused to implement this recommendation but later informed the court that it had made substantial changes to its current monitoring system to ensure compliance with IDEA. The court requested that each party submit their plans for an effective special education monitoring system and held oral argument on the adequacy of these plans. Following this hearing, the court issued an order setting the case for an evidentiary hearing to begin on August 9, 1999, and to continue as needed.[299] At this hearing, the court will examine "whether the components of the plan TEA filed in this case on August 14, 1998, are adequate to enable TEA to meet its burden as an SEA...."
In the most recent of these cases challenging the state's monitoring system, a group of eight children with disabilities in East Palo Alto, California, brought a class action lawsuit in November 1996 against their school district, the Ravenswood City Elementary School District, for extensive violations with all of the substantive and procedural requirements of IDEA;[300] (e.g., failure to provide FAPE, extensive LRE violations, failure to ensure parent participation, utilizing discriminatory evaluation procedures, etc.).
The plaintiff children in this case, Emma C. v. Eastin, also sued the California Department of Education (CDE) for failing to monitor and enforce the law despite repeated findings of noncompliance in the school district.
After a period of intensive law and motion activity, the U.S. district court made a number of critical rulings in Emma C. The court held that (1) all available remedies, including money damages and compensatory education, are available under IDEA against the CDE and against members of California's Board of Education in their individual capacities; (2) that the nature of the systemic problems alleged in the suit made exhaustion of administrative remedies futile and therefore unnecessary; and (3) that the CDE was at that time incapable of ensuring compliance in the district because of the substantial inadequacies in its own monitoring and complaint systems.[301] The court certified a class comprised of all past, present and future special education students in the district.
Following these court rulings, the plaintiff children in Emma C. and the CDE entered into a tentative settlement agreement in which CDE agreed to undertake a comprehensive step by step approach to bring Ravenswood into compliance. Plaintiffs also reached agreement with the district in which the district primarily agreed to abide by any corrective action plan developed by the state and independent monitors and provided for compensatory education to all eligible children.
Plaintiffs and the CDE are negotiating an agreement to change California's monitoring system to the focused monitoring approach proposed by the plaintiffs in the Angel G. litigation. The CDE has taken substantial steps already to convert to this approach, including commitment to a pilot program to test whether it will result in greater compliance.
C. Development of More Effective Monitoring Systems A group of these experts convened by the plaintiffs designed a proposed focused monitoring system for Texas.[302] Known as the Chicago Group because the meeting was held in Chicago, these experts continue to flesh out the details of the system.[303] In addition, advocates and experts in the states of Texas, California, and Illinois are reviewing the proposed system to refine and delineate it and address the many related complex issues. The state of California has committed to adopting this focused monitoring system and planned to conduct its first pilot program in 1999. The following is an overview of the proposed focused monitoring system.
The Texas work articulated five principles that provide the underpinnings for an effective state IDEA monitoring system. The system must (1) address all legal requirements and educational results for students, (2) include public involvement, (3) build on existing student data to increase system efficiency, (4) direct resources to areas of greatest need, and (5) result in timely verification or enforcement of compliance. Their approach is based on the notion of continuous improvement with a data-based accountability system.[304]
The three components of the compliance monitoring system are (1) performance review, (2) policy review, and (3) complaint management. These three system components take place within the context of three ongoing activities: (1) the Comprehensive System of Personnel Development (CSPD), (2) oversight and enforcement, and (3) data design, analysis, and review.[305]
At the heart of this system is the performance review process, which works as follows. The state agency conducts a performance review of each LEA. The outcome of the review is used by the SEA, in part, to place LEAs into one of four categories: (1) Continuous Improvement District --no additional compliance activities required by the state agency; (2) Data Validation District--sixty LEAs randomly selected annually to verify reported data and examine procedural compliance; (3) At-Risk District--self-study supplement to district improvement plan required; or (4) Focused-monitoring district--on-site investigation of specific areas of noncompliance conducted by the state.[306]
In order to determine the category of each LEA, the state must develop a template for analyzing special education performance data and measuring compliance. Critical variables or indicators must be determined. Variables could include measures of graduation rates, drop-out rates, academic achievement levels, and placement (LRE) data. Standards must be developed for three types of trigger values. The first trigger value, which would apply to each variable, is the "at-risk" trigger. This trigger identifies LEAs that are "at risk" in their performance in that area. Critical variables would receive one trigger in addition to the "at risk" trigger. The second trigger for critical variables is the focused monitoring trigger, which identifies the districts that will receive a focused monitoring visit. The third value is used as a benchmark for each critical variable. The benchmark serves as the statewide performance goal for the critical variables designed to improve the performance levels.[307]
The focused district monitoring occurs when an LEA exceeds the trigger for any critical data variable. The state creates an investigation plan that is tailored to the identified areas of noncompliance prior to the visit. The plan is individualized for each LEA and must incorporate several features including focusing on measurable data that indicate compliance or noncompliance with the identified issue, classroom observation, and input from parents and students. Districts that are designated as "at-risk" or "focused monitoring" must have plans for correcting areas of noncompliance. Technical assistance and personnel training should be provided to the LEA by the SEA if needed. The SEA must develop written procedures that outline the progression from noncompliance findings to enforcement so that they are consistently applied for each noncompliant LEA. These procedures should be clear to LEAs so that there is no doubt about the consequences for ongoing noncompliance.[308]
Likewise, the state must have a system of progressive sanctions to use whenever any LEA fails to correct noncompliance within a specific time line. The proposed range of sanctions is as follows in ascending order:
Mandatory First-Level Sanctions require the state to send a letter of continued noncompliance to all families of students with disabilities served by the LEA and members of the state legislature.
A public hearing is held by the district's school board and the noncompliance information is a consideration in the evaluation of the LEA superintendent and relevant principals.
Mandatory Second Level Sanctions, which are to be implemented within 60 days of the first level of sanctions if noncompliance continues, require lowered accreditation of the noncompliant LEA and suspension or termination of responsible administrative officials.
Mandatory Third Level Sanctions, which are imposed 60 days after Level 2 sanctions if noncompliance continues, require a choice of one of the following options: (1) transference of federal and state special education funds to a neighboring LEA for oversight of the provision of special education in the noncompliant district; (2) partial withholding of federal and state special education funds while the LEA must continue to provide required services; (3) withholding of all federal and state special education funds while the LEA must continue to provide required services; and (4) recovery by the state of previously awarded federal and state funds.[309] The elements of this proposed system have potential for correcting some long-standing weaknesses in Texas, California, and Illinois state monitoring. The proposed system has been implemented on a "pilot" basis only in California; more time is needed to test its effectiveness.
D. Findings and Recommendations
Finding # V.1 Parent advocacy and litigation have been critical means for exposing and remedying persistent and systemic IDEA noncompliance. The law depends on litigation in order to function effectively. Parents of children with disabilities are uniquely situated to identify and raise the legal issues related to persistent noncompliance with IDEA. Their financial situations, however, typically do not permit sustained private legal action, and not enough public resources are available to assist them.
Recommendation # V.1A Whenever Congress and the President approve an increase in the funding to be distributed to local schools under Part B of IDEA, Congress and the President should appropriate at the same time an amount equal to 10 percent of the total Part B increase to fund free or low-cost legal advocacy services to students with disabilities and their parents through public and private legal service providers, putting competent legal assistance within their financial reach and leveling the playing field between them and their local school districts. Litigation by parents is still a necessary recourse when administrative action at the state level to obtain FAPE for their child has failed. In some states, litigation has also been a vital catalyst to a more effective implementation of IDEA across the board. Access to legal assistance that could result in obtaining an appropriate education for their children remains beyond the financial reach of too many families. Federal funds currently available for low-cost legal services under the Developmental Disabilities Act, the Technical Assistance Act, the Rehabilitation Act, and the Protection and Advocacy for Individuals with Mental Illness Act must be supplemented to begin to address the need. This will be a start toward putting families on a more equal playing field with school districts that use tax dollars to hire legal counsel to assist them in avoiding compliance with IDEA requirements.
Recommendation # V.1B
OSEP should endorse the allocation of additional funding to public and private legal service providers, including the state PTIs, P&As, and IL centers, the private bar and nonprofit legal services centers, for the purpose of carrying out a coordinated strategy for making legal advocacy services more available to students with disabilities and their families.
Finding # V.2
Pilot programs in compliance monitoring and enforcement at the state level are testing the use of a broad range of flexible enforcement options in the context of corrective action plans linking specific noncompliance findings with agreed upon enforcement options and time lines.
Recommendation # V.2
OSEP should develop and test the use of state compliance agreements that incorporate appropriate sanctions selected from a broad range of enforcement options, and link them to the state's failure to correct specific noncompliant conditions within the agreed time frame. OSEP should also encourage the state's use of sanctions in this manner when the state's compliance monitoring indicates that LEAs are failing to correct findings of noncompliance.
Special Education: Is IDEA Being Implemented As Congress Intended?"
http://www.wrightslaw.com/news/2001/diaz_hearing.htm
Special Education: Is IDEA Being Implemented as Congress Intended?” Congress of the United States House of Representatives Committee on Government Reform February 28, 2001
Prepared by Lilliam Rangel-Diaz Center for Education Advocacy Miami, Florida 33156 305-279-2428, Ext. 211 E-mail address: lillyrdiaz@aol.com
God blessed me with the opportunity to attend the Congressional Hearing on IDEA with a 24-hour notice!
I encourage every child advocate and every parent to contact Congressman Burton’s office with recommendations to improve IDEA implementation and enforcement. The record will remain open until March 15, 2001.
Congressman Burton’s Personal Experiences
Congressman Burton is deeply committed to this cause, as he has been personally touched by a child with disability, his grandson, Christian, who has autism.
He related the struggles of his daughter in obtaining educational services for his grandson. He has attended IEPs with his daughter and was shocked to find the recalcitrant system that we have all grown so accustomed too. He stated that if this happens to a child who has a Congressman for a grandfather, he could not even begin to imagine what is happening to other families and other children. His experience with the special education system is what motivated him to investigate the implementation and enforcement of IDEA.
Contact information:
Hon. Dan Burton, Chairman Hose of Representatives Committee on Government Reform 2157 Rayburn House Office Building Washington, D.C. 20515-6143 Attn. Ms. Beth Clay Tel. 202-225-5074 E-mail address: beth.clay@mail.house.gov
The following are my personal impressions and observations of the Congressional Hearing and my own opinions:
Congressman Dan Burton from Indiana, Chairman of the Government Reform Committee, opened the hearing, which was titled, “Special Education: Is IDEA Being Implemented as Congress Intended?”
What follows are excerpts of his opening statement:
“Why do families have to go to court to receive services?"
“ . . . Why is it that, when we have federal law that requires that every child receive a free and appropriate public education, many families are having to go to court to receive these services?”
“The committee received thousands of e-mails, telephone calls, letters and faxes from families, teachers, administrators, and organizations about the implementation of the Individuals with Disabilities Education Act (IDEA) . . . Are teachers and administrators trained in the changes in the Federal laws regarding special education? Are families fully informed early in the process about their rights?” The “Federal Role in Education: To Serve the Children not the System”
He quoted President Bush, “The federal role in education is not to serve the system. It is to serve the children,” and stated that he was in 100% agreement with that statement. He stated:
"We repeatedly heard that parents do not want their children to be ‘warehoused,’ or placed in classes where they are not intellectually challenged."
"We repeatedly heard from the disability community and families about the need for accountability for schools that do not comply with the law.”
"Families across the country do not feel that their schools are following the IDEA law. A majority of over 2,500 families we heard from had to fight for services. We repeatedly heard from families that the schools did not inform them of the programs available to their children or of their rights under the law."
"We also learned that families spend tens of thousands of dollars out-of-pocket to obtain educational services for their children, as well as to hire lawyers to fight for their children’s educational needs . . . "
"It was never Congressional intent that taxpayer dollars be spent on hiring attorneys to fight parents in long and expensive court battles that will keep children from getting services.
"The role of Special Education Directors, teachers, and administrators is to serve the children, not to serve the system. The new mantra at the Department of Education is that “No Child Be Left Behind.’ It is very important that no child be left behind, including any child with a disability . . ."
When Congress passed legislation to require a free and appropriate public education to all children with disabilities, we never envisioned that parents would have to fight for these services.
We never envisioned that schools would refuse to accept the diagnosis of a doctor and then not evaluate a child for six months or a year – delaying all services until the school evaluation is obtained. A six-month delay can have a detrimental effect on the child for years…
When Congress passed IDEA we never envisioned that schools would tell parents, ‘if we provide it for your child, then we will have to provide it for everyone!’
We repeated heard from families that schools used this as an excuse not to provide services. If the service is an appropriate service to meet the educational needs of a disabled child, any child with the same disability in the school should be offered access to that appropriate service…
Marca Bristo, Chairperson of the National Council on Disability, beautifully delivered the major findings and major recommendations of NCD’s Back to School on Civil Rights Report regarding the poor implementation of IDEA and the lack of enforcement actions.
Back to School on Civil Rights was entered into the Congressional Record.
How to Improve Implementation of IDEA? OSEP Has No Recommendations
Patricia Guard, Acting Director, Office of Special Education Programs, U.S. Department of Education, testified. Congressman Burton interrupted her testimony reminding her that what she was stating was what IDEA law says and that Congress is fully aware of what IDEA says, that what they want to know is why is not being implemented and what needs to be done to improve it.
He asked her for specific recommendations from OSEP, but OSEP was unable to provide any, aside from increase in funding. Ms. Guard indicated that she had to get back to the Committee with specific recommendations.
It’s hard for me to resist offering my editorials, so I’m not going to resist the temptation . . . for OSEP not to have recommendations to improve IDEA implementation and enforcement is so tragic that is almost comical!
For me, the highlight was . . .
For me, the absolute highlight of the hearing was the testimony of Melinda (Maloney) Baird, Esq. From Knoxville, Tennessee, now in private practice previously involved with the Weatherly Law Firm, followed by the testimony from Mr. Gary Mayerson, Esq. from New York, a parent attorney.
I wish I had a video camera so that we could all relive the moment together . . . I will do my best to describe what I observed . . .
Excerpts from Testimony of Melinda (Maloney) Baird, Esq., school board attorney
The following are excerpts from Ms. Baird’s testimony:
I am an attorney in private practice in Knoxville, Tennessee, and have been working in the field of special education law for almost sixteen years. My practice is devoted exclusively to the representation of school districts in special education matters. I formerly served as an attorney in the Office of Special Education Programs for the Tennessee Department of Education and as Associate Publisher for Education and Disability Publications for LRP Publications.
Over the past twelve years, I have provided hundreds of workshops and in-service training seminars for thousands of teachers, administrators, and parents of students with disabilities…. For the past four-and-a-half years, I have represented school districts in Tennessee, Alabama, and Florida in litigation concerning the IDEA and Section 504 of the Rehabilitation Act of 1973… Despite the best efforts and good intentions of lawmakers, the paperwork burden for special education has increased rather than decreased…
In my opinion and based on my experience, local school districts are doing an ADMIRABLE (emphasis added) job of providing appropriate special education and related services to these students, and are rising to the challenge of meeting the mandate and increasing expectations of the law…. I annually prepare a yearly summary of federal and state court decisions affecting special education, which I have attached for your information and review . . .
I think it is remarkable that, on average, less than one hundred lawsuits are filed in federal and state court out of a total of more than six million students receiving special education and related services. The Committee members should remember that in each state there is a federally funded agency providing free or low-cost legal representation to parents of students with disabilities.
Therefore, families of students with disabilities are able to initiate a legal action against their local school district either at no cost or low cost whenever their child’s rights have been violated. Parents also have the option of filing a complaint with the Office for Civil Rights and their State Department of Education, and of requesting formal mediation at no cost to them….
The law provides a complex scheme of procedural rights and the availability of free or low-cost legal representation for parents of students with disabilities. I can testify that the parents I encounter are well aware of their legal rights and freely take advantage of the legal process. My husband is a retired educator with twenty-eight years of experience as a special education teacher and administrator…
It would be wrong to assume that all complains filed against school districts are without merit. It would also be wrong to assume that all complaints filed against schools have merit. The fact that we have disputes between school districts and parents of children with disabilities is proof that the system is working, not proof that the system is flawed… Excerpts from Testimony of Gary Mayerson, Esq., parent attorney
The hero of the day, Mr. Gary Mayerson from New York (who by the way was borne and raised in Miami, Florida), provided the accurate information regarding the state of affairs regarding special education litigation. He stated:
Unfortunately, while there apparently are enough lawyers and law firms prepared to work on a steady retainer basis for school districts (or the insurance companies which insure school districts), there are relatively few lawyers in the country who are ready, willing and able to represent children . . .
The subject matter is complicated, the learning curve is steep, the pay is uncertain and erratic, and the risks of failure can be catastrophic to the child and the child’s family. There clearly are easier ways to earn a living . . . “Private” Conferences for School Board Attorneys Funded by Taxpayers?
Mr. Mayerson included as Appendices to his written testimony, a seminar brochure entitled “Special Education and The Law" a private briefing designed for school board members, central office administrators, special education directors, etc.” Page 2 of the Program agenda announced a session titled “Special Education for Early Childhood Autistic Students – How to Avoid Parent Demands for Lovaas/Teach Methodologies,” and another session titled, “How to Avoid Liability in Lovaas Cases.”
Mr. Mayerson also attached a copy of “workshop” brochure from our esteemed LRP Publications entiled “Building a Blueprint from Defensible Autism Programs,” with Melinda (Maloney) Baird as the workshop’s presenter. He also testified to Ms. Baird’s presentation in Tennessee back in November 2000, titled “The New Reauthorization – Back into Hell?”
We are all too familiar with these workshops and “private” conferences at taxpayers’ expense.
Congressman Burton and Congresswoman Maloney from New York did not find Ms. Baird’s “catchy” titles amusing at all. As one observed Congressman Burton’s increase in facial color, becoming redder by the second, Ms. Baird was asked several questions regarding Mr. Mayerson’s appendices and testimony.
Among the questions asked of Ms. Baird, was an explanation of how could she put on “private” conferences with taxpayer dollars designed to teach school people how to break the law and get away with it.
OK, we can all relish the moment now . . . SMILE, SMILE, SMILE . . .
Of course, this refers to the infamous “National Institute on Legal Issues of Educating Individuals with Disabilities” by LRP, which caters to school boards and school board attorneys who attend these conferences at taxpayers expense to learn how to win against parents in court.
Congresswoman Maloney from New York literally yelled at Ms. Baird, stating that this practice could not be legal and that she would get this under the Sunshine Law.
Ms. Baird was not a happy camper.
OSEP Staff Comfort School Board Attorney
At the end of the hearing, it was observed that Ms. Baird found refuge and comfort among her friends from OSEP, Ms. Patty Guard, Ms. Joleta Reynolds and Ms. Ruth Ryder, who were all there.
Whose interest is OSEP protecting? Do we have any doubts left?
How could anyone in their right mind expect that OSEP would ever enforce IDEA, much less sanction state education agencies that allow its local school districts to violate the law?
“The Cat Is Out of the Bag”
For the first time I feel confident that IDEA is getting the attention it deserves (THE CAT IS OUT OF THE BAG).
“Thank God for Little Boys Like Christian”
Thank God for little boys and little girls like Christian, Congressman Burton’s grandson, who through the miracles of their existence, raise the level of awareness of those who are in a position to make a difference. What would the rest of us do without them?
I encourage all parents and advocates for children with disabilities to make recommendations to improve IDEA.
Please Make Your Voice Heard
It is scary to hear the recommendations that I heard at the hearing from school people and from uninformed legislators. The school people complain bitterly about the burden of paperwork and about the discipline of children with disabilities.
What they really mean is that paperwork makes them somewhat accountable and they just don’t like that. They also stated that they miss the days when the parents “trust” them.
Accountability & Measurable Student Outcomes
We need to demand accountability, not necessarily through “paperwork” (I’m not interested in killing trees), but through technology (instead of paper and pencil tasks) and through measurable student outcomes.
Please feel free to contact me for additional information.
Lilliam Rangel-Diaz
Center for Education Advocacy
8600 S.W. 92nd Street Suite 204
Miami, Florida 33156 305-279-2428, Ext. 211
E-mail address: lillyrdiaz@aol.com
IDEA Compliance Links at Wrightslaw:
Summary of Findings & News Release by National Council on Disability.
Table of Contents, IDEA Compliance Report ("Back to School on Civil Rights")
Recommendations from IDEA Compliance Report ("Back to School on Civil Rights")
Search Tips -- Find Information in IDEA Compliance Report
Keynote Speech by Lilliam Rangel Diaz, 3rd Annual Conference of Council of Parent Attorneys and Advocates, Houston, TX
Other Links
National Council on Disability
Council of Parent Attorneys and Advocates
NOTE: The 4th Annual Conference of the Council of Parent Attorneys and Advocates is at the Hyatt Crystal City, Washington DC, March 8-11, 2001. For more information, please visit the COPAA site.
Special Education: Is IDEA Being Implemented as Congress Intended?” Congress of the United States House of Representatives Committee on Government Reform February 28, 2001
Prepared by Lilliam Rangel-Diaz Center for Education Advocacy Miami, Florida 33156 305-279-2428, Ext. 211 E-mail address: lillyrdiaz@aol.com
God blessed me with the opportunity to attend the Congressional Hearing on IDEA with a 24-hour notice!
I encourage every child advocate and every parent to contact Congressman Burton’s office with recommendations to improve IDEA implementation and enforcement. The record will remain open until March 15, 2001.
Congressman Burton’s Personal Experiences
Congressman Burton is deeply committed to this cause, as he has been personally touched by a child with disability, his grandson, Christian, who has autism.
He related the struggles of his daughter in obtaining educational services for his grandson. He has attended IEPs with his daughter and was shocked to find the recalcitrant system that we have all grown so accustomed too. He stated that if this happens to a child who has a Congressman for a grandfather, he could not even begin to imagine what is happening to other families and other children. His experience with the special education system is what motivated him to investigate the implementation and enforcement of IDEA.
Contact information:
Hon. Dan Burton, Chairman Hose of Representatives Committee on Government Reform 2157 Rayburn House Office Building Washington, D.C. 20515-6143 Attn. Ms. Beth Clay Tel. 202-225-5074 E-mail address: beth.clay@mail.house.gov
The following are my personal impressions and observations of the Congressional Hearing and my own opinions:
Congressman Dan Burton from Indiana, Chairman of the Government Reform Committee, opened the hearing, which was titled, “Special Education: Is IDEA Being Implemented as Congress Intended?”
What follows are excerpts of his opening statement:
“Why do families have to go to court to receive services?"
“ . . . Why is it that, when we have federal law that requires that every child receive a free and appropriate public education, many families are having to go to court to receive these services?”
“The committee received thousands of e-mails, telephone calls, letters and faxes from families, teachers, administrators, and organizations about the implementation of the Individuals with Disabilities Education Act (IDEA) . . . Are teachers and administrators trained in the changes in the Federal laws regarding special education? Are families fully informed early in the process about their rights?” The “Federal Role in Education: To Serve the Children not the System”
He quoted President Bush, “The federal role in education is not to serve the system. It is to serve the children,” and stated that he was in 100% agreement with that statement. He stated:
"We repeatedly heard that parents do not want their children to be ‘warehoused,’ or placed in classes where they are not intellectually challenged."
"We repeatedly heard from the disability community and families about the need for accountability for schools that do not comply with the law.”
"Families across the country do not feel that their schools are following the IDEA law. A majority of over 2,500 families we heard from had to fight for services. We repeatedly heard from families that the schools did not inform them of the programs available to their children or of their rights under the law."
"We also learned that families spend tens of thousands of dollars out-of-pocket to obtain educational services for their children, as well as to hire lawyers to fight for their children’s educational needs . . . "
"It was never Congressional intent that taxpayer dollars be spent on hiring attorneys to fight parents in long and expensive court battles that will keep children from getting services.
"The role of Special Education Directors, teachers, and administrators is to serve the children, not to serve the system. The new mantra at the Department of Education is that “No Child Be Left Behind.’ It is very important that no child be left behind, including any child with a disability . . ."
When Congress passed legislation to require a free and appropriate public education to all children with disabilities, we never envisioned that parents would have to fight for these services.
We never envisioned that schools would refuse to accept the diagnosis of a doctor and then not evaluate a child for six months or a year – delaying all services until the school evaluation is obtained. A six-month delay can have a detrimental effect on the child for years…
When Congress passed IDEA we never envisioned that schools would tell parents, ‘if we provide it for your child, then we will have to provide it for everyone!’
We repeated heard from families that schools used this as an excuse not to provide services. If the service is an appropriate service to meet the educational needs of a disabled child, any child with the same disability in the school should be offered access to that appropriate service…
Marca Bristo, Chairperson of the National Council on Disability, beautifully delivered the major findings and major recommendations of NCD’s Back to School on Civil Rights Report regarding the poor implementation of IDEA and the lack of enforcement actions.
Back to School on Civil Rights was entered into the Congressional Record.
How to Improve Implementation of IDEA? OSEP Has No Recommendations
Patricia Guard, Acting Director, Office of Special Education Programs, U.S. Department of Education, testified. Congressman Burton interrupted her testimony reminding her that what she was stating was what IDEA law says and that Congress is fully aware of what IDEA says, that what they want to know is why is not being implemented and what needs to be done to improve it.
He asked her for specific recommendations from OSEP, but OSEP was unable to provide any, aside from increase in funding. Ms. Guard indicated that she had to get back to the Committee with specific recommendations.
It’s hard for me to resist offering my editorials, so I’m not going to resist the temptation . . . for OSEP not to have recommendations to improve IDEA implementation and enforcement is so tragic that is almost comical!
For me, the highlight was . . .
For me, the absolute highlight of the hearing was the testimony of Melinda (Maloney) Baird, Esq. From Knoxville, Tennessee, now in private practice previously involved with the Weatherly Law Firm, followed by the testimony from Mr. Gary Mayerson, Esq. from New York, a parent attorney.
I wish I had a video camera so that we could all relive the moment together . . . I will do my best to describe what I observed . . .
Excerpts from Testimony of Melinda (Maloney) Baird, Esq., school board attorney
The following are excerpts from Ms. Baird’s testimony:
I am an attorney in private practice in Knoxville, Tennessee, and have been working in the field of special education law for almost sixteen years. My practice is devoted exclusively to the representation of school districts in special education matters. I formerly served as an attorney in the Office of Special Education Programs for the Tennessee Department of Education and as Associate Publisher for Education and Disability Publications for LRP Publications.
Over the past twelve years, I have provided hundreds of workshops and in-service training seminars for thousands of teachers, administrators, and parents of students with disabilities…. For the past four-and-a-half years, I have represented school districts in Tennessee, Alabama, and Florida in litigation concerning the IDEA and Section 504 of the Rehabilitation Act of 1973… Despite the best efforts and good intentions of lawmakers, the paperwork burden for special education has increased rather than decreased…
In my opinion and based on my experience, local school districts are doing an ADMIRABLE (emphasis added) job of providing appropriate special education and related services to these students, and are rising to the challenge of meeting the mandate and increasing expectations of the law…. I annually prepare a yearly summary of federal and state court decisions affecting special education, which I have attached for your information and review . . .
I think it is remarkable that, on average, less than one hundred lawsuits are filed in federal and state court out of a total of more than six million students receiving special education and related services. The Committee members should remember that in each state there is a federally funded agency providing free or low-cost legal representation to parents of students with disabilities.
Therefore, families of students with disabilities are able to initiate a legal action against their local school district either at no cost or low cost whenever their child’s rights have been violated. Parents also have the option of filing a complaint with the Office for Civil Rights and their State Department of Education, and of requesting formal mediation at no cost to them….
The law provides a complex scheme of procedural rights and the availability of free or low-cost legal representation for parents of students with disabilities. I can testify that the parents I encounter are well aware of their legal rights and freely take advantage of the legal process. My husband is a retired educator with twenty-eight years of experience as a special education teacher and administrator…
It would be wrong to assume that all complains filed against school districts are without merit. It would also be wrong to assume that all complaints filed against schools have merit. The fact that we have disputes between school districts and parents of children with disabilities is proof that the system is working, not proof that the system is flawed… Excerpts from Testimony of Gary Mayerson, Esq., parent attorney
The hero of the day, Mr. Gary Mayerson from New York (who by the way was borne and raised in Miami, Florida), provided the accurate information regarding the state of affairs regarding special education litigation. He stated:
Unfortunately, while there apparently are enough lawyers and law firms prepared to work on a steady retainer basis for school districts (or the insurance companies which insure school districts), there are relatively few lawyers in the country who are ready, willing and able to represent children . . .
The subject matter is complicated, the learning curve is steep, the pay is uncertain and erratic, and the risks of failure can be catastrophic to the child and the child’s family. There clearly are easier ways to earn a living . . . “Private” Conferences for School Board Attorneys Funded by Taxpayers?
Mr. Mayerson included as Appendices to his written testimony, a seminar brochure entitled “Special Education and The Law" a private briefing designed for school board members, central office administrators, special education directors, etc.” Page 2 of the Program agenda announced a session titled “Special Education for Early Childhood Autistic Students – How to Avoid Parent Demands for Lovaas/Teach Methodologies,” and another session titled, “How to Avoid Liability in Lovaas Cases.”
Mr. Mayerson also attached a copy of “workshop” brochure from our esteemed LRP Publications entiled “Building a Blueprint from Defensible Autism Programs,” with Melinda (Maloney) Baird as the workshop’s presenter. He also testified to Ms. Baird’s presentation in Tennessee back in November 2000, titled “The New Reauthorization – Back into Hell?”
We are all too familiar with these workshops and “private” conferences at taxpayers’ expense.
Congressman Burton and Congresswoman Maloney from New York did not find Ms. Baird’s “catchy” titles amusing at all. As one observed Congressman Burton’s increase in facial color, becoming redder by the second, Ms. Baird was asked several questions regarding Mr. Mayerson’s appendices and testimony.
Among the questions asked of Ms. Baird, was an explanation of how could she put on “private” conferences with taxpayer dollars designed to teach school people how to break the law and get away with it.
OK, we can all relish the moment now . . . SMILE, SMILE, SMILE . . .
Of course, this refers to the infamous “National Institute on Legal Issues of Educating Individuals with Disabilities” by LRP, which caters to school boards and school board attorneys who attend these conferences at taxpayers expense to learn how to win against parents in court.
Congresswoman Maloney from New York literally yelled at Ms. Baird, stating that this practice could not be legal and that she would get this under the Sunshine Law.
Ms. Baird was not a happy camper.
OSEP Staff Comfort School Board Attorney
At the end of the hearing, it was observed that Ms. Baird found refuge and comfort among her friends from OSEP, Ms. Patty Guard, Ms. Joleta Reynolds and Ms. Ruth Ryder, who were all there.
Whose interest is OSEP protecting? Do we have any doubts left?
How could anyone in their right mind expect that OSEP would ever enforce IDEA, much less sanction state education agencies that allow its local school districts to violate the law?
“The Cat Is Out of the Bag”
For the first time I feel confident that IDEA is getting the attention it deserves (THE CAT IS OUT OF THE BAG).
“Thank God for Little Boys Like Christian”
Thank God for little boys and little girls like Christian, Congressman Burton’s grandson, who through the miracles of their existence, raise the level of awareness of those who are in a position to make a difference. What would the rest of us do without them?
I encourage all parents and advocates for children with disabilities to make recommendations to improve IDEA.
Please Make Your Voice Heard
It is scary to hear the recommendations that I heard at the hearing from school people and from uninformed legislators. The school people complain bitterly about the burden of paperwork and about the discipline of children with disabilities.
What they really mean is that paperwork makes them somewhat accountable and they just don’t like that. They also stated that they miss the days when the parents “trust” them.
Accountability & Measurable Student Outcomes
We need to demand accountability, not necessarily through “paperwork” (I’m not interested in killing trees), but through technology (instead of paper and pencil tasks) and through measurable student outcomes.
Please feel free to contact me for additional information.
Lilliam Rangel-Diaz
Center for Education Advocacy
8600 S.W. 92nd Street Suite 204
Miami, Florida 33156 305-279-2428, Ext. 211
E-mail address: lillyrdiaz@aol.com
IDEA Compliance Links at Wrightslaw:
Summary of Findings & News Release by National Council on Disability.
Table of Contents, IDEA Compliance Report ("Back to School on Civil Rights")
Recommendations from IDEA Compliance Report ("Back to School on Civil Rights")
Search Tips -- Find Information in IDEA Compliance Report
Keynote Speech by Lilliam Rangel Diaz, 3rd Annual Conference of Council of Parent Attorneys and Advocates, Houston, TX
Other Links
National Council on Disability
Council of Parent Attorneys and Advocates
NOTE: The 4th Annual Conference of the Council of Parent Attorneys and Advocates is at the Hyatt Crystal City, Washington DC, March 8-11, 2001. For more information, please visit the COPAA site.
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