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Subj: THE SPECIAL ED ADVOCATE,
MARCH 16, 2000 (V. 3, NO. 10)
Date: 3/16/00 1:55:17 PM Pacific Standard Time
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The Special Ed Advocate
The Online Newsletter About Special Education and the Law
March 16, 2000 Vol. III, No. 10
Visit us today at http://www.wrightslaw.com
===================
The Special Ed Advocate is a free online newsletter about special education legal issues,
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* * NEW DECISIONS ABOUT FAPE, LRE, “HYBRID PROGRAMS,” PREVAILING PARTY STATUS
& ATTORNEY FEES * *
1. T.R. v. KINSWOOD TOWNSHIP (March 9, 2000)
2. HOLMES V. MILLCREEK TOWNSHIP (February 24, 2000)
3. IDEA COMPLIANCE REPORT UPDATE
4. NCD MEMBER IS KEYNOTE SPEAKER AT COPAA
5. RESOURCE: NCD PUBLICATIONS LIBRARY
6. RESOURCE: LEGAL NEWSWIRE
7. SUBSCRIPTION INFORMATION
8. CONTACT INFORMATION
================
1. T.R. v. KINGWOOD TOWNSHIP (March 9, 2000)
On March 9, the U. S. Court of Appeals for the Third Circuit an important new decision in
T. R. v. KINGWOOD TOWNSHIP (NJ).
This decision focuses on the special education needs of a preschool child with
disabilities. The school district developed an IEP that placed the child in a
“hybrid” preschool program. The parents rejected this IEP and placed their child
in a regular private preschool program.
The District Court concluded that the school district’s IEP provided FAPE. The
parents appealed, and requested reimbursement for the private placement.
On March 9, 2000, the Court of Appeals issued a split decision:
“We affirm the holding of the District Court that the 1996-97 Kingwood IEP provided
N.R. with an FAPE. We vacate the District Court’s holding that the Kingwood placement
constituted the least restrictive environment, and remand for additional proceedings
consistent with this opinion.”
In this decision, the Court grappled with several issues, and clarified “meaningful
benefit”, the requirement to offer a “continuum of placements,” and the
need to provide a “free appropriate education (FAPE)” in the “least
restrictive environment.”
* WHEN IS BENEFIT “MEANINGFUL”? *
Many special education disputes involve questions about educational benefit -- “How
much benefit is enough for the child to receive FAPE?” This decision offers guidance
about factors that make up “educational benefit:”
“Specifically, we said that a satisfactory IEP must provide "significant
learning" and confer "meaningful benefit."
“To fulfill this mandate a district court must ‘analyze the type and amount of
learning’ of which the student is capable.
Although the Court of Appeals concluded that the District Court did not apply the
“correct ‘meaningful benefit’ test,” it also found that “the
District Court's failure to enunciate the correct “meaningful benefit” test is
not fatal to its determination that the 1996-97 IEP offered N.R. a free appropriate public
education.”
* MAINSTREAMING OR THE “LRE REQUIREMENT” *
The IDEA includes two fundamental requirements: that the child receives a free appropriate
public education (FAPE)in the least restrictive environment (LRE). The least restrictive
environment” (LRE) requirement is often referred to as “mainstreaming.”
This decision attempts to clarify the LRE requirement:
“We have interpreted this mandate to require that a disabled child be placed in the
least restrictive environment (hereinafter “LRE”) that will provide him with a
meaningful educational benefit.”
“The least restrictive environment is the one that, to the greatest extent possible,
satisfactorily educates disabled
children together with children who are not disabled, in the same school the disabled
child would attend if the child were not disabled.”
* DO HYBRID PRESCHOOL PROGRAMS PROVIDE FAPE IN LRE? *
Many school districts have developed “hybrid” programs to provide special
education to young children with disabilities.
A typical “hybrid” preschool program is designed to provide special education to
children with disabilities in a class that may include some nondisabled or “typically
developing” children. In our experience, these “hybrid classes” are similar
(or identical) to “self contained” special education classes.
The Third Circuit found that hybrid programs do not usually provide FAPE in the least
restrictive environment:
“We believe that, under the IDEA's strict mainstreaming requirement, a hybrid
preschool program like Kingwood's would ordinarily provide the LRE only under two
circumstances: first, where education in a regular classroom (with the use of
supplementary aids and services) could not be achieved satisfactorily or, second, where a
regular classroom is not available within a reasonable commuting distance of the child.
* EDUCATION IN REGULAR CLASSROOMS; CONTINUUM OF PLACEMENTS *
The amended IDEA and regulations emphasize the requirement to educate children with
disabilities in regular classes with their nondisabled peers:
“While the Act and regulations recognize that IEP teams must make individualized
decisions about the special education . . . . IDEA’s strong preference that, to the
maximum extent appropriate, children with disabilities be educated in regular classes with
their nondisabled peers with appropriate supplementary aids and services.”
(WRIGHTSLAW: SPECIAL EDUCATION LAW, page 209)
The child’s IEP must include “An explanation of the extent, if any, to which the
child will not participate with nondisabled children in the regular class and in
extracurricular and other nonacademic areas.” (WRIGHTSLAW: SPECIAL EDUCATION LAW,
page 210)
“ . . .the school district is required to take into account a continuum of possible
alternative placement options when formulating an IEP, including "[p]lacing children
with disabilities in private school programs for nondisabled preschool children.”
Why didn’t the school propose or attempt to educate N.R. in a regular classroom?
The Court found that “the record contains no indication that N.R. could not have been
educated satisfactorily in a regular classroom.”
* WHEN THE PRIVATE PROGRAM PROVIDES FAPE IN LRE *
The Court concluded that both the school
district’s program and the private preschool program provided FAPE. But the private
preschool program went one step further -- it provided FAPE in the least restrictive
environment.
The Court vacated the District Court’s holding that the public school placement
complied with the LRE requirement, and remanded the case back to that Court for
“additional proceedings.”
In a discussion about “Florence County v. Shannon Carter” and their recent
decision in “Warren G.”, the court wrote:
“Both Florence and Warren G. involved disputes over the FAPE requirement. They did
not address the situation we face in this case, where both the state-chosen (accredited)
school and the parent-chosen (unaccredited) school would provide an FAPE, but where the
unaccredited school would arguably provide a less restrictive environment."
This new decision is available in the Wrightslaw Law Library in pdf and html formats at:
http://www.wrightslaw.com/law/caselaw/3rd_TR_KingwoodNJ_00_0309.pdf
http://www.wrightslaw.com/law/caselaw/3rd_TR_KingswoodNJ_00_0309.htm
The Court of Appeals for the Third Circuit includes these states:
* Delaware
* Pennsylvania
* New Jersey
* Virgin Islands
Do you know your Circuit? Use the Wrightslaw Circuit Finder to find out!
http://www.wrightslaw.com/advoc/articles/law_circuit_finder.htm
========================
2. HOLMES V. MILLCREEK (February 24, 2000)
On February 24, 2000, the Third Circuit issued a new decision about prevailing parties and
attorneys fees.
In Holmes, the District Court had awarded attorney’s fees and costs to the parents
after concluding that the parents had prevailed in a due process hearing about an
independent educational evaluation and the qualifications of a sign language interpreter.
Although the Third Circuit found that the parents had prevailed, the Court also concluded
that “the amount of the award was excessive” and cut the award of attorneys fees
by 75%.
Why?
In support of this reduction, the Court expressed the belief that the parents and their
counsel had “contributed to” the needlessly “protracted proceedings.”
The Court noted that the parents “bear the burden of establishing the reasonableness
of the requested fees and are required to submit evidence to support their claims for
hours expended in performing specific tasks.”
This new decision is available in the Wrightslaw Law Library in pdf and html formats at:
http://www.wrightslaw.com/law/caselaw/3rd_Holmes_Millcreek_00_0224.pdf
http://www.wrightslaw.com/law/caselaw/3rd_Holmes_Millcreek_00_0224.htm
After you read this decision, we strongly suggest that you read the Third Circuit’s
decision in the “Warren G. v. Cumberland” case about “vigorous
advocacy” by parents.
http://www.wrightslaw.com/law/caselaw/case_3Cir_G_CumValley_990825.html
=================
3. UPDATE: IDEA COMPLIANCE REPORT
Special Ed Advocate subscribers remember the recent bombshell delivered by the National
Council on Disability. On January 25, the NCD released the IDEA COMPLIANCE REPORT entitled
“Back to School on Civil Rights.”
When we read the IDEA COMPLIANCE REPORT, we got mad.
Because the contents of the IDEA COMPLIANCE REPORT are so important, we decided to
publicize the REPORT and put the Report up on the Wrightslaw site.
Pam spent several days on the computer and reformatted the IDEA COMPLIANCE REPORT into
several files that track the Report. She created hundreds of links within the Report. You
can use these links in the Table of Contents or Index page to jump to different sections
of this very long (nearly 400 pages) Report.
http://www.wrightslaw.com/law/reports/IDEA_Compliance_Index.htm
We are investigating other ways to make the contents of this report available and easy
accessed.
The IDEA COMPLIANCE REPORT included an indictment of the U. S. Department of Education for
their failure to enforce the law. How did the U. S. Department of Education respond to the
Report? What can be done to ensure that the IDEA is enforced?
====================
4. NCD MEMBER IS KEYNOTE SPEAKER AT COPAA
Lilliam Rangel-Diaz, a member of the National Council on Disability, was the Keynote
Speaker at the COPAA Conference. We were excited! She would be able to answer our
questions.
Ms. Rangel-Diaz spoke to a packed house of parent attorneys and advocates. Here are some
highlights from her speech (a link to the full text of her Keynote speech follows):
* “WE HAVE EVIDENCE!” *
The Report provides “a tool for parents and advocates who for years have received the
brush off from school officials, legislators and policy-makers who want “evidence not
anecdotes” that widespread problems exist.”
“For the first time, we have data demonstrating that noncompliance is a nationwide
problem.”
* THE MEDIA *
“We have also caught the attention of the media in unprecedented news coverage -- we
have had over 900 radio broadcasts, reaching over 17 million listeners and over 600 news
clips reaching millions of readers.
* PLANS ARE “NOT ENOUGH” *
“OSEP makes extensive use of technical assistance to help states assess and correct
noncompliance. The problem is that technical assistance is NOT enough. Corrective action
plans and timetables are NOT enough. Compliance plans are NOT enough when there are NO
CONSEQUENCES for not following through and making good on a
commitment to fix the problems.”
* THERE MUST BE CONSEQUENCES! *
“Federal efforts . . . to enforce IDEA have been inconsistent and lacking any real
teeth. There have been no consequences for states that have disregarded the law and
devastating consequences for the students with disabilities and their families who have
been denied the protections of the law.”
* ENFORCEMENT TO DOJ *
To address these non-enforcement problems, NCD recommends that responsibility for
enforcement actions be shifted to the Department of Justice.
NCD’s recommendations include:
(1) independent litigation authority for DOJ, and
(2) establishing a mechanism at DOJ for investigating and hearing complaints filed by
individuals involving state pattern and practice violations.
“We believe that a shift in responsibility from DOE to DOJ will be an important first
step toward minimizing the chilling effect of political pressure on enforcement.”
* CHANGE AT STATE LEVEL *
“At the state level, fundamental changes to complaint handling and due process
systems that are frustratingly ineffective and unresponsive are desperately needed.”
“Strong political obstacles to implementing fully effective systems exist at the
state level, as they do at the federal
level.”
* WHO WILL MAKE A DIFFERENCE? YOU WILL! *
“This leads to a question, what will work -- what can make a difference? NCD is
unable to organize the grassroots. Other grassroots advocacy organizations . . . the
National Parent Network on Disabilities and COPAA, are able to do it.
“It is your job to take this report and use it as a tool to effect change.”
* LITIGATION IS THE “STAPLE OF ENFORCEMENT” *
“Litigation continues to be the staple of enforcement. Until the playing field is
leveled between parents and local school districts, parent training on IDEA alone will not
get students access to the services they need.”
Other recommendations by NCD include:
* free and low-cost legal advocacy though public and private legal services providers
* creation of strong legal advocacy networks in each state
* creation of a national center to provide legal materials, training and other supports
for attorneys who work on IDEA cases
* training programs for parents to increase their effectiveness in implementing,
monitoring and enforcing IDEA
* training programs for teachers about the requirements of IDEA and how to respond
effectively to the special needs children in their classrooms
* training for students with disabilities in self advocacy skills
Get the full text of the Keynote Speech by Lilliam Rangel-Diaz at the NCD site:
http://www.ncd.gov/newsroom/testimony/diaz_3-3-00.html
================
5. RESOURCE: NCD PUBLICATIONS LIBRARY
Spend time browsing through the Publications page at the National Council of Disability
site. NCD is a great source of excellent information about disability policy and how to
effect change.
http://www.ncd.gov/newsroom/publications/publications.html
You can order NCD reports by faxing a request to Stacey Brown at 202-272-2022 or by e-mail
at sbrown@ncd.gov
===========
6. RESOURCE: LEGAL NEWSWIRE
If you are interested in legal news and issues, you may want to subscribe to the LEGAL
NEWSWIRE.
LEGAL NEWSWIRE is a free internet newsletter published by Law News Network and American
Lawyer Media. For information about LEGAL NEWSWIRE, go to
http://www.lawnewsnetwork.com/newswire/about.html
Check out the Law News Network site at
http://www.lawnewsnetwork.com/
=================
7. SUBSCRIPTION INFORMATION
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 in the Newsletter Archives at our web site -
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8. CONTACT INFORMATION
Pete and Pam Wright
c/o Wrightslaw & 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 2000, Peter W. D. Wright and Pamela Darr Wright. All rights reserved.
END