NEWS FLASH! NEW DECISIONS FROM 8TH AND 2ND CIRCUITS
Date: 9/16/98 4:32:30 PM Pacific Daylight Time
From: email@example.com (Pete and Pam Wright)
The Special Ed Advocate
The Online Newsletter About
Special Education and the Law
September 16, 1998 Vol. 1, No. 12
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(1.) NEWS FLASH! 8TH CIRCUIT ISSUES NEW DECISION IN WESTENDORP V. WEDL.
(September 15, 1998)
(2.) NEWS FLASH! 2nd CIRCUIT RULES THAT STATE BAR MUST PROVIDE
ACCOMMODATIONS in BARTLETT V. NY STATE BD OF LAW EXAMINERS (September
(3.) MEDIATION - FREQUENTLY ASKED QUESTIONS & STANDARDS OF PRACTICE FROM
THE ACADEMY OF FAMILY MEDIATORS
(4.) SPECIAL ED ADVOCATE NEWSLETTER (September 8, 1998)
(5.) SUBSCRIPTION INFORMATION
(1.) NEWS FLASH!
EIGHTH CIRCUIT ISSUES DECISION IN WESTENDORP V. WEDL (September 15,
The Eighth Circuit reversed the U. S. District Court of Minnesota in a
decision about the provision of special education services to children
who attend private religious schools.
The decision began -
"Aaron Westendorp is a severely disabled child who requires a full-time
paraprofessional to function in a school classroom. Minnesota
Independent School District No. 273 (ISD No. 273) refused to provide
Aaron with a paraprofessional as long as he attended a private religious
school, and Aarons parents brought this suit for damages and equitable
relief against the school district."
"The Westendorps alleged that, by denying Aaron a paraprofessional in
his private religious school, ISD No. 273 violated their rights of free
speech, free exercise of religion, and equal protection under the First
and Fourteenth Amendments, as well as their rights under the Religious
Freedom Restoration Act of 1993 . . . the Individuals with Disabilities
Education Act . . . and Minnesota state law."
"The district court granted summary judgment in favor of ISD No. 273,
and Aarons parents now appeal. We reverse."
The Eighth Circuit discusses crucial differences between IDEA and the
amended IDEA 97. The Court concluded that under IDEA 97, if the district
provides FAPE, the district does not need to provide services to
children who are placed in private schools by their parents. However,
the Eighth Circuit concluded that the school district's refusal to
provide these services to Aaron was caused by religious discrimination:
"ISD No. 273s invocation of a "long-standing policy" rings hollow in
light of its actual practice of providing services to disabled children
at private non-religious preschools and at home schools. Indeed, ISD No.
273s alleged policy has not been used to deny students at private
non-religious schools paraprofessional services, and appears to manifest
itself only when disabled children at private religious schools request
these services . . .
Viewed in its entirety, the evidence in this case strongly suggests that
ISD No. 273s policy is a mere pretext for religious discrimination..
This new case is now available in our Law Library:
For an analysis of this case, go to Minnesota attorney Sonja Kerr's web
NEWS FLASH! SECOND CIRCUIT RULES THAT STATE BAR MUST PROVIDE
ACCOMMODATIONS IN BARTLETT V. NY STATE BD OF LAW EXAMINERS -(September
In 1993, Marilyn Bartlett sued the New York Board of Law Examiners in
1993 after it denied her application to accommodate her reading
disability. Bartlett requested the following accommodations: more time
to take the exam, permission to record her essays on tape, permission to
circle answers in the test booklet.
The Bar claimed that Bartlett didn't have a disability.
In their September 14, 1998 decision, the appeals court ruled the
board's decision was based on an "arbitrary standard" of disability:
"Dr. Bartlett, who has fought an uphill battle with a reading disorder
throughout her education," the ruling released Monday by the Court of
Appeals said, "is among those for whom Congress provided protection
under the Americans With Disabilities Act and the Rehabilitation Act."
"Dr. Bartlett's cognitive impairment -- her difficulties in
automatically decoding and processing the printed word -- limits her
major life activities of learning and reading to a substantial degree."
"Reasonable accommodation of this disability will enable her to compete
fairly with others in taking the examination, so that it will be her
mastery of the legal skills and knowledge that the exam is designed to
test -- and not her disability -- that determines whether or not she
achieves a passing score."
You can read this new decision at the Second Circuit's web site:
(3) MEDIATION - FREQUENTLY ASKED QUESTIONS & STANDARDS OF PRACTICE FROM
ACADEMY OF FAMILY MEDIATORS
The new IDEA encourages parents and schools to use mediation to resolve
disputes. In these disputes, a child is involved, the stakes are high,
and emotions run strong. It's important for parents to learn about the
mediation process, what mediation can and cannot accomplish, and how
mediators should be trained.
For more about mediation, go to
THE SPECIAL ED ADVOCATE NEWSLETTER (September 8, 1998)
This issue includes information about our new Advocate's Bookstore; a
new Letter to the Webmaster from Dave who asks "Lovaas v. TEACCH?," the
decision in Mr. X. v. New York City (autism, ABA/Lovaas case); more
information about mediation; news about the Tourette Symposium; Kerr Law
Offices launches web site; more COPAA plans.
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