NLDline
Subj: THE SPECIAL ED ADVOCATE,
SEPTEMBER 2, 1999 (V. 2, NO. 20)
Date: 9/2/99 11:15:10 AM Pacific Daylight Time
From: webmaster@wrightslaw.com (The Special Ed Advocate)
Sender: owner-special-ed-advocate@wrightslaw.com
To: special-ed-advocate@wrightslaw.com
===============
The Special Ed Advocate The Online Newsletter About Special Education and the Law
September 2, 1999 Vol. II, No. 20
Visit us today at:
http://www.wrightslaw.com
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The Special Ed Advocate is a free online newsletter about special education legal issues,
cases, tactics and strategy, effective educational methods, and Internet links.
As a subscriber to The Special Ed Advocate, you will receive announcements and
"alerts" about new cases and other events. Back issues of The Special Ed
Advocate are archived at our web site -
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If your email address changes, please unsubscribe your old email address and subscribe
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For a "printer friendly" copy of the newsletter, go to
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Contact, copyright, and subscription information is at the end of this newsletter.
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1. NEW 3RD CIRCUIT DECISION: PARENT PLACEMENT DOES NOT HAVE TO BE PERFECT; "VIGOROUS
ADVOCACY" BY PARENTS
2. LETTER TO WRIGHTSLAW: NEED HELP WITH IEPS.
3. "LAW IS ALWAYS CHANGING "
4. DO STATES HAVE SOVEREIGN IMMUNITY UNDER IDEA AND SECTION 504? (NEW DECISION FROM THE
8TH CIRCUIT)
5. UPDATE ON WRIGHTSLAW: SPECIAL EDUCATION LAW AND THE ADVOCACY CHALLENGE PROGRAM
6. SUBSCRIPTION INFORMATION
7. CONTACT INFORMATION
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1. NEW DECISION FROM 3RD CIRCUIT; PARENT PLACEMENT DOES NOT NEED TO BE
"PERFECT"; "VIGOROUS ADVOCACY" BY PARENTS
On August 25, 1999, the 3RD Circuit issued a decision in "Warren G., Grant G., by and
through their parents and nearest friends, Tom G. and Louisa G. v. Cumberland Valley
School District."
This case involved two brothers who ". . . are both gifted students with learning
disabilities." For several years, boys attended public school and had IEPs.
In 1993, their parents grew increasingly "dissatisfied with their sons' IEPs and
obtained IEEs . . . From November 1993 until May 1994, the parents were in discussions
with the District over the design of appropriate IEPs for their sons but failed to reach
agreement . . . "
Eventually, the parents withdrew their sons from the public school program and enrolled
them in The Janus School which is a private school in Pennsylvania that educates learning
disabled children."
In "Warren and Grant G v. Cumberland Valley" the 3rd Circuit addressed
several issues:
WHAT IS A "PROPER PRIVATE PLACEMENT" BY PARENTS?
The school district argued that Janus School was not appropriate because the school was
not approved by the state of Pennsylvania.
The 3rd Circuit disagreed and found that "Florence County School District Four v.
Carter, 510 U.S. 7, 14 (1993), disposes of the District's contention . . . the Court held
that a private school's failure to meet state education standards is not a bar to
reimbursement under the IDEA."
(NOTE: "Florence County School District Four v. Carter" begins on page 343 of
WRIGHTSLAW: SPECIAL EDUCATION LAW)
The school district also argued that Janus School could not be appropriate "because
only students with learning disabilities attend Janus, [so] it did not provide the least
restrictive environment--that is, an environment where disabled and nondisabled children
are integrated to the maximum extent possible--as required by the IDEA."
The Court found that "Janus's failure to provide Grant and Warren with opportunities
to interact with nondisabled students did not render it an inappropriate placement . . .
in Ridgewood Board of Education v. N.E., this court reached the same conclusion, holding
that when the public school fails to provide an appropriate IEP, tuition reimbursement may
be made to students placed in private schools that specialize in educating students with
learning disabilities."
"An appropriate private placement is not disqualified because it is a more
restrictive environment than that of the public placement."
"Thus, the test for the parents' private placement is that it is appropriate, and not
that it is perfect. "
"UNREASONABLE CONDUCT?" OR " VIGOROUS ADVOCACY"
An Appeals Panel concluded that Cumberland Valley's IEPs were not appropriate. However,
the Panel also reduced the parents' reimbursement on grounds that the parents' conduct was
"unreasonable."
The 3rd Circuit over-ruled, concluding that parent advocacy may be "vigorous:"
"The conduct of parents should not be permitted to defeat the purpose of the Act, and
the remedial power of the court should not be interpreted to further such an end."
To reduce reimbursement "flies into the face of the policy underlying the IDEA
emphasizing parent involvement."
"Vigorous advocacy is an anticipated by-product of a policy encouraging parental
involvement.. . . Congress' intent to protect children through parental involvement and
commenting that "parents . . . will not lack ardor in seeking to ensure that
handicapped children receive all of the benefits to which they are entitled by the
Act"). See Rowley, 458 U.S. at 209
(NOTE: The Rowley case begins on page 305 of WRIGHTSLAW: SPECIAL EDUCATION LAW)
To read this new 3rd Circuit decision, go to
http://www.wrightslaw.com/law/caselaw/case_3Cir_G_CumValley_990825.html
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2. ADVOCATE ASKS FOR HELP WITH IEP GOALS AND OBJECTIVES
Dear Wrightslaw:
Trying to design an education plan for your child is difficult. Most parents do not have
the expertise in education to know what or how much of a service their child needs.
Most parents I talk with are frustrated. Even if they have evaluations and reports from
evaluators, they have a heard time knowing what should be expected and how much should be
expected on the IEP.
What resources do you suggest as most helpful to the parent who is designing IEP goals and
objectives?
Thanks, Kathy
Dear Kathy:
I am attaching information about three books about IEPs that we have in our bookstore.
Both books are good and quite different.
1. BETTER IEPS: HOW TO DEVELOP LEGALLY CORRECT AND EDUCATIONALLY USEFUL PROGRAMS by
Barbara Bateman and Mary Anne Linden is specifically about how to develop IEP goals and
objectives. I think this is the best book available on this subject.
"The heart of the law is the child's written Individualized Educational Program
(IEP). "Better IEPs" gives special educators, regular educators, and parents the
confidence and know-how to develop IEPs that are both
legally correct and educationally useful. Currently, many IEPs are neither."
For more information about this book, go to
http://www.wrightslaw.com/bkstore/bks_law.htm
2. PREPARING INSTRUCTIONAL OBJECTIVES: A CRITICAL TOOL IN THE DEVELOPMENT OF EFFECTIVE
INSTRUCTION by Robert F. Mager
In the best selling book ever written on this subject, Robert Mager will teach you how to
write clear measurable IEP goals and objectives.
Preparing Instructional Objectives is a guide to identifying, selecting, and writing
educational objectives. This book will help you master the essential elements of writing a
well-stated objective, including how to describe the performances you expect to achieve,
identify the conditions under which you expect the performance to occur, and set criteria
for acceptable performance.
The new Third Edition of "Preparing Instructional Objectives" includes over 50
practice exercises to sharpen your skills, an Objectives Checklist to help you distinguish
good objectives from bad ones, a new chapter on where objectives come from, and a new
index.
For more information about PREPARING INSTRUCTIONAL
OBJECTIVES, go to
http://www.wrightslaw.com/bkstore/bks_educate.htm
3. THE COMPLETE IEP GUIDE: HOW TO ADVOCATE FOR YOUR SPECIAL ED CHILD
THE COMPLETE IEP GUIDE describes the IEP and IEP process, how to get services for a child,
how to resolve disputes with school districts.
As most special ed parents know, the child’s special education is determined by
educators and parents who work together to develop the child’s Individualized
Education Program (IEP). This is process is often complicated and is stressful and
intimidating to parents.
Here is what reviewers say about THE COMPLETE IEP GUIDE:
A 'must have' for parents of special education children!
This book will become a 'bible' for parents of special education children. The book is
written clearly and concisely for the lay person. The IEP process is spelled out in easy
to follow steps.
The book includes letters and forms that can be copied or amended which are invaluable,
and will help parents become effective advocates for their children.
For more information about this book, go to
http://www.wrightslaw.com/bkstore/bks_law.htm
Your parents should read our article "Understanding Tests and Measurements for the
Parent and Advocate." This article is available to all at
http://www.wrightslaw.com/advoc/articles/tests_measurements.html
Explain that they should expect to read this article several times before they absorb the
content - but this will be time well-spent.
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3. "LAW IS ALWAYS CHANGING "
Every day, we receive emails from individuals who have questions about the law. On the
site is a disclaimer that says:
"Law is always changing. In all areas of law, given the same facts and the same
statute, judges may issue different rulings. One ruling may be binding in your
geographical area, but not in another jurisdiction."
"If you are seeking answers to legal questions, you may understand the general rule,
but you must also determine how the rule or concept is applied in your area. "
"If this seems to be different, you need to find out if there is a difference in the
judicial case law and regulations, or if the difference is due to an individual
bureaucrat's interpretation of the law. "
"This information is not intended to constitute legal advice or substitute for
obtaining legal advice from your own counsel."
On August 31, 1999, the Eighth Circuit Court of Appeals issued a decision that illustrates
how these issues play out. This new decision appears to place the Eight Circuit at odds
with the Fourth, Fifth and Ninth Circuits.
================
4. SOVEREIGN IMMUNITY UNDER IDEA AND SECTION 504 (NEW DECISION FROM THE 8TH CIRCUIT)
On August 31, 1999, the Eight Circuit Court of Appeals issued a ruling in "Bradley v.
Arkansas Dept of Education (No. 98-1010)". In Bradley, the Eighth Circuit concluded
that federal courts do have jurisdiction over IDEA claims brought against state
departments of education but . . . In "Bradley," the Eighth Circuit also found
that Congress overstepped it's authority by enacting Section 504 because Congress failed
to "properly ident[y] constitutional transgressions it sought to remedy by enacting
Section 504. In fact, the legislative history is largely silent
regarding the reason Section 504 was included in the RA [Rehabilitation Act]."
In a footnote to this new decision, the Eighth Circuit acknowledged that their decision is
contrary to decisions issued by several other Circuit Courts:
"In concluding that Section 504 does not abrogate the state's immunity, we recognize
the existence of decisions to the contrary by the Fourth, Fifth, and Ninth Circuits . .
."
In this footnote, the Eighth Circuit references the U. S. Supreme Court's decision in
Franklin v. Gwinnett County Public Schools, 504 U. S. 60, 72 (1992) "to the effect
that Section 504 abrogated the states' immunity."
However, the Eighth Circuit wrote that this decision "is probably best read as simply
a statement of historical legislative fact rather than as a statement of constitutional
law" and that it has been rendered "out of step with the Court's more recent
decisions."
This decision becomes law in the Eighth Circuit which includes these states:
* Minnesota *
* Iowa *
* Missouri *
* Arkansas *
* North Dakota *
* South Dakota *
* Nebraska *
BUT . . . if you live in the Fourth Circuit, Fifth Circuit, or Ninth Circuit, the law
relating to state sovereign immunity is different.
To read this new decision (in pdf format), go to
http://www.wrightslaw.com/law/caselaw/case_8Cir_Bradley_AR_990831.pdf
So, if you want "an answer to a simple legal question," remember the Eighth
Circuit!
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5. UPDATE ON THE ADVOCACY CHALLENGE PROGRAM FOR "WRIGHTSLAW: SPECIAL EDUCATION
LAW"
Our goal in writing WRIGHTSLAW: SPECIAL EDUCATION LAW is to provide parents, educators,
advocates and attorneys with accurate, reasonably priced information about special
education law and advocacy techniques.
To accomplish this objective, we developed the ADVOCACY CHALLENGE program. Advocacy groups
in several states are accepting the Challenge. Yesterday, we received an order for 100
books from a Michigan advocate
who had not heard of the ADVOCACY CHALLENGE program. We called to explain the program to
her and offer her a refund. We realized that we need to explain this program again so here
goes -
If you teach an advocacy class, you can get 20 BOOKS for the price of 10 books + shipping.
Minimum order is 20 books. Participants in the ADVOCACY CHALLENGE will pay the parcel post
or priority mail costs.
If you want to participate in the ADVOCACY CHALLENGE, send an email to
advocacy@harborhouselaw.com
or get the Order Form at
http://www.wrightslaw.com/bkstore/ourbooks/Orderform.html
and fax it to the toll-free ordering number.
============
6. SUBSCRIPTION INFORMATION
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===========
7. CONTACT INFORMATION
Pete and Pam Wright
c/o The Special Ed Advocate
P. O. Box 1008
Deltaville, VA 23043
Phone: 804-257-0857
Website: http://www.wrightslaw.com
Email: webmaster@wrightslaw.com
The resources at this website are copyrighted by the authors. They may be used for
non-commercial purposes only. They may not be redistributed for commercial purposes
without the express written consent of Peter W.
D. Wright.
It is not necessary to obtain our consent to link to our website or copy, print and
distribute our articles and newsletters for nonprofit purposes so long as the material is
reproduced in its entirety and credit is given to Pete and Pam Wright and
"wrightslaw" including the URL - http://www.wrightslaw.com
Copyright 1999, Peter W. D. Wright and Pamela Darr Wright. All rights reserved.
END