On the Call: Administrative Law and Special Education

by | Sep 10, 2024 | Special Education

Given the scale of federal regulations and their importance to several laws related to special education, the U.S. Supreme Court’s decision in Loper Bright may leave you feeling caught in the undertow of uncertainty. Have established “rights” found in regulations – such as service animals under the ADA, public funding for IEEs under IDEA, FAPE under 504 – been tossed out by the Court? In this episode Jeremy and Erin discuss how the standard for administrative law has changed from Chevron to today and break down a case from Alabama that demonstrates how judges may approach challenges to the IDEA in a post-Chevron world. By explaining the role and impact of federal regulations going forward and how districts can continue to ensure compliance, Jeremy and Erin will help you chart a course to calmer shores.

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.

 

Special Education Update: 1st Ten Days of Suspension Without IEP Services Does Not Deny FAPE….Right?

Special Education Update: 1st Ten Days of Suspension Without IEP Services Does Not Deny FAPE….Right?

by | Aug 18, 2024 | Special Education, Student Education and Discipline

Student discipline for students with disabilities on an IEP is generally understood to allow ten days of suspension without a need to provide services.  In a recent case, a state level review officer in Ohio considered whether a failure to provide services within that ten day period might constitute a denial of FAPE.

In the case, a parent had filed for due process alleging that the student required a one on one aide for the student, the student had been bullied, the IEP was not being followed, the student was not being allowed to attend specials, was being graded unfairly, and that the school was denying the parent access to ClassDojo.  Additionally, the parent alleged that the student was not provided with services during a recent  six-day suspension.  The parent requested compensatory education, home instruction or tutoring.  The parent was pro se; i.e., representing themself.

 The impartial hearing officer considered three issues: whether the parent was provided with procedural safeguards, whether the IEP was implemented appropriately, and whether bullying prevented the student from receiving a FAPE. 

The hearing officer found the district did develop and implement an IEP appropriate for the student to receive a FAPE and that bullying had not prevented the student from receiving a FAPE (in fact, there was no evidence presented about bullying in the hearing.). However, the IHO found that the student was denied FAPE and entitled to six hours of compensatory education in the form of home instruction or tutoring for the six days the student was suspended and did not receive services in the IEP. 

Both the district and the parent appealed the IHO’s decision.  The school district argued that the law does not require provision of compensatory education during the first ten days of suspension, relying on the IDEA provision requiring that a student who is suspended for more than ten days in a school year receive services (20 USC Sec. 1415(k)(1)(B), 35 CFR 300.530-300). The district also argued that it did offer services for the six days of suspension and the parent refused those services.

The SLRO considered the issues, including the length of the suspension.  In doing so, the  SLRO, found this, “…does not necessarily mean that there cannot be circumstances in which a student who is suspended less than ten (10) days is denied a FAPE. I do not find the statute to mean that a FAPE is never denied unless the suspension is at least ten (10) days.”

In applying this interpretation to the facts, however, the SLRO reversed the IHO determination, finding that because the district had offered services during the suspension and the parent refused, he would not order them to provide it now.  Additionally, parent had offered no evidence that the suspension denied FAPE on the facts of the case.  The SLRO also affirmed on the other issues, including that the IEP was appropriate and enabling him to make progress in the least restrictive environment and denied the parent’s appeal. 

 What this means for schools:  While this decision may be fact specific, Districts and IEP teams should carefully consider the full impact of a denial of services even for short- term removals.

Welcome Back to Season Three! On the Call: Incarcerated Students

by | Aug 13, 2024 | Special Education

Welcome back to Season Three! When a student is locked up, districts hold the key to ensuring they receive special education. In this episode, Jeremy and Erin discuss how to move forward with a student’s IEP plan in the context of incarceration. The discussion includes a state complaint from Ohio where a district was found to have denied an incarcerated student FAPE after they did not revise his IEP and then failed to implement the plan as written. While the district took steps to support the student, they did not adequately document those actions. They provide valuable pointers on how to coordinate with different detention facilities in order to provide services to students, and discuss the importance of leaning into the individualized nature of IEPs in order to respond to the student’s changed circumstances. 

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.

 

Gender Equity Under Scrutiny: 4th Circuit Questions Law Prohibiting Transgender Girls from Competition

Gender Equity Under Scrutiny: 4th Circuit Questions Law Prohibiting Transgender Girls from Competition

by | Jun 19, 2024 | General, Special Education

B.P.J. v. W. Va. State Bd. of Edn., 98 F.4th 542 (4th Cir. 2024).

On April 16, 2024, the 4th Circuit Court of Appeals issued a split decision holding that West Virginia’s Save Women’s Sports Act (the Act) violated Title IX as applied to the plaintiff. The 2022 state law prohibited transgender girls from competition in girls and women’s sports in K-12 and college athletics throughout the state. After the Act went into effect, B.P.J., a transgender girl, was no longer allowed to compete on the middle school cross-country team. She sued the State Board of Education and local public school district, alleging that the Act violated the Equal Protection Clause of the Fourteenth Amendment and violated Title IX.

Beginning with the Equal Protection claims, the court applied intermediate scrutiny to the Act after determining that it constituted sex-based discrimination. The State’s position was that the law was enacted for the purposes of “participant safety” and “competitive fairness” to justify the Act’s treatment of transgender girls. The court questioned how B.P.J.’s exclusion from the cross-country team was substantially related to either of those interests. The facts of the case were that B.P.J. played a non-contact sport, so the court failed to see a participant safety issue. Additionally, the majority reasoned that B.P.J.’s early transition and prolonged use of hormone therapy called into question whether she enjoyed a competitive advantage over her cisgender peers. Since the parties disputed whether those assigned male at birth enjoyed a competitive advantage over cisgender girls, the court ordered further proceedings to debate the issue.

The public school tried unsuccessfully to argue that it should not be held liable since it was complying with the state law, rather than district policy that violated Title IX. While true, a federal law such as Title IX supersedes the district’s obligations to the state. After quickly dismissing the district’s argument, the court warned that mere compliance with a state law is not a legitimate defense to a Title IX violation.

According to the court, the Act discriminated against and caused harm to B.P.J. in violation of Title IX. The Act prohibited only one category of students, transgender girls, from competing on teams with their corresponding gender. The majority further explained that the state should not expect B.P.J. to go against her social transition to play on the boys’ team, and that the Act risked exposing her to the same level of unfair treatment that West Virginia claimed it was trying to prevent for cisgender girls because of B.P.J’s hormone treatments. The court was careful to note that its holding was a limited ruling on the Act as applied to B.P.J., and that it was not holding that Title IX required every transgender girl to play on a girls’ team.

What this means for your district
It is important to note that this decision applies only to the 4th Circuit. The ruling is limited to its facts as applied to a specific student playing a specific sport, and is not a blanket requirement that all transgender girls be allowed to compete on girls’ sports teams under Title IX. However, Title IX is a federal law and must be followed regardless of jurisdiction. Several states, including Ohio, have adopted similar legislation to West Virginia’s Save Women’s Sports Act. Conflict between these laws and Title IX may force districts into a situation where state compliance risks exposing them Title IX liability.

Special Education Update: IDEA Does NOT Take a Summer Recess

Special Education Update: IDEA Does NOT Take a Summer Recess

by | Jun 19, 2024 | Special Education

Most educators were ready for a much deserved break as soon as the final school buses leave the building. While some things may resume at the start of the next school year, many mandates of the Individuals with Disabilities Act and Ohio Operating Standards do not take a summer break.

1. The 60-day timeline applies: Even if parents request an evaluation at the end of the school year, districts may not wait until the start of the 2024-2025 school year to complete the evaluation. Schools have thirty (30) calendar days after a request for an evaluation to obtain parent consent and only sixty (60) calendar days after consent to complete the evaluation. After that,  the IEP must be completed in thirty (30) days.

 If, for instance, the District tells a parent, “The beginning of the year will include a lot of review. Let’s set some things in place and wait until after the first 9 weeks next year. Then we’ll evaluate.” Caution is warranted.  Schools may not use interventions to delay an evaluation, and a parent may successfully argue that the school may have violated its Child Find obligation. Potential consequences could include corrective action or the parent being declared the prevailing party in a due process complaint with an award of attorney fees.

 2. Consulting with private schools: Each school district must engage in meaningful consultation with representatives of nonpublic schools within their jurisdiction. Since this includes discussions of how the consultative process will operate throughout the school year, it may be beneficial to engage in those conversations while school is not in session.

 3. ESY services include data collection: While IEP teams have already made ESY decisions for eligible students, data collection and progress monitoring during these summer sessions may prove critical for informing future services for the student as well as the necessity for ESY services in the future. Moreover, such documentation is important to establish that students received the required specially designed instruction and related services over the course of the summer program.

4. Due process timelines prevail: In the unfortunate circumstance of a due process complaint at the end of the school year or during the summer months, there is no flexibility to wait until the commencement of the new school year. Indeed, the absence of IEP team members or other witnesses during the summer months is not a justification for delaying the due process complaint. Moreover, schools need to prepare to conduct a resolution session within fifteen (15) days of the notice of the due process – with or without staff participation.

Special Education Update: Five Key Takeaways from LRP’s School Attorneys Workshop and National Institute

Special Education Update: Five Key Takeaways from LRP’s School Attorneys Workshop and National Institute

by | May 24, 2024 | Special Education

Ennis Britton attorneys Pam Leist, Giselle Spencer, and Jeremy Neff were at the LRP School Attorneys Workshop and National Institute in Savannah, Georgia earlier this month. Pam presented on the topic “Can you Keep a Secret? Navigating Confidentiality Under IDEA, 504, and FERPA” during the National Institute. Jeremy also presented during the National Institute on the topic “Successfully Mapping the Exit from IDEA Services.” In addition, Jeremy spoke at the School Attorneys Workshop on the topic “An Ounce of Prevention: COVID Lessons Learned for Future Disruptions”.

Giselle captured five key takeaways from the conferences:

1. Fittingly, at the end of the school attorneys workshop on May fifth, she learned that Cinco de Mayo is not Mexican Independence Day. However, it does mark a historically, significant battle with some interesting connections to the outcome of the American Civil War as well as the Mexican fight for independence from brief period of French colonial rule (thanks for yet another history lesson, Jeremy). What does that mean to special educators? It has something to do with stepping back and taking a broader view and accepting that we don’t always understand the significance of something we’re going through while we are in the midst of it.

2. More specific to special education, an excellent session on parents and the different individuals who can fill those rolls offered the reminder that surrogate parents are only appointed in specific circumstances outlined in the regulations. It is not appropriate to appoint surrogates just because of difficulties in working with a parent or inconsistent attendance at meetings by a parent. Ohio’s special education regulations align with the federal regulations which only allow the appointment of a surrogate when an individual otherwise meeting the definition of parent cannot be identified or located, when the child is a ward of the state, or when the child is an unaccompanied homeless youth.

3. Pam Leist shared in her presentation that under FERPA and parallel privacy protections in IDEA, union representation does not get a seat at the IEP meeting table. IEP teams discuss important sensitive information that is not germane to labor management issues, or the terms and conditions of employment. While sometimes those issues may arise tangential to special education decisions, it is important to keep them separate from the IEP meeting process.

4. A speaker from a different state shared that there are varying residential placement tests applied by courts, depending on where a school district that the student is a resident of is found. The Ohio test for school district financial responsibility for residential services asks whether the need for residential services is intrinsically intertwined with the educational services or needs of the child. Residential placements at public expense should only be used in rare circumstances with low incidence needs, regardless of which test a court applies.

5. And finally, Giselle observed for her fifth take away and in recognition of the island location of the Savannah convention center as well as the stormy weather on a couple of the nights, that one should never get on a metal ferry during a thunderstorm.

Ennis Britton’s team enjoyed presenting at LRP this year and also learning from colleagues across the country. Thanks to the clients who made the trip for saying hello! We look forward to participating again next year when the National Institute is held in Phoenix, where we do not anticipate needing to ride any ferries. Until then, the Ennis Britton Special Education Team is able to provide quality, tailored professional development here in Ohio throughout the year.