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The Special Ed Advocate Newsletter
September 2, 1999

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Issue - 41

ISSN: 1538-3202


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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 decision begins on page 305 of WRIGHTSLAW: SPECIAL EDUCATION LAW)

Read this new 3rd Circuit decision


2. Letter to Wrightslaw: Need Help with IEPs.

Dear Wrightslaw:

"I would like help with a very common question among parents. What resources do you suggest as most helpful to the parent who is designing IEP goals and objectives?

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." 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.

BETTER IEPs by Barbara Bateman is specifically about how to develop IEP goals and objectives. I think this is the best book available on this subject.

"BETTER IEPS: HOW TO DEVELOP LEGALLY CORRECT AND EDUCATIONALLY USEFUL PROGRAMS" by Barbara Bateman and Mary Anne Linden

"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


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. Do States Have Soverign 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.

Click here to read this new decision in pdf format

===========

5. Update on Wrightslaw: Special Education Law and The Advocacy Challenge Program

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 the Wrightslaw site and fax it to the toll-free ordering number that you will find on this form.

 

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