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The Special Ed Advocate Newsletter
August 9, 2000

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Issue - 83

ISSN: 1538-3202


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1. New Decision From 8th Circuit! Birmingham v. Omaha School District 

On August 7, the Court of Appeals for the Eighth Circuit issued a decision in Birmingham v. Omaha School District

The case involved Brenda Birmingham, an 18 year old who has cerebral palsy and is "mentally handicapped." In April 1995, Brenda told school personnel that her mother was abusing her. The school staff reported the case to the Department of Human Services who took custody of Brenda. 

In May, the school scheduled an IEP meeting. At the IEP meeting, they determined that "it was in Brenda's best interest to graduate with the current class." The school did not give Brenda's mother prior written notice of the school's decision to graduate her daughter. Brenda was graduated two weeks later, on May 25, 1995. 

WRIGHTSLAW NOTE: IDEA requires school districts to provide a free appropriate public education (FAPE) "to all children with disabilities . . . between the ages of 3 and 21 . . ." unless this is "inconsistent with State law or practice . . ." 20 U.S.C. § 1412(a)(1) (Wrightslaw: Special Education Law, page 42) 

Brenda's mother filed a complaint with the Arkansas Department of Education. The state DOE denied the mother's claim. The mother then filed suit against the school district, several individuals employed by the school district, and the Department of Human Services. She claimed that by graduating Brenda without giving prior written notice to her parent, the school violated the IDEA, Section 504 of the Rehabilitation Act, Title II of the ADA, and Section 1983. 

The U. S. District Court applied a 30-day statute of limitations and dismissed the mother's IDEA claim as "time-barred." The Court dismissed the Section 1983 claim for "failure to state a claim" and the ADA and Section 504 claims for "failure to prove that the defendants acted in bad faith or with gross misjudgment." 

The Eighth Circuit reversed the District Court on the IDEA violation and the statute of limitations issues: 

"It is clear from [the] facts that the IDEA was violated. The IDEA requires that school districts educate disabled students to twenty-one years of age, unless doing so is inconsistent with state law. Thus, under the IDEA, a disabled student in Arkansas must be educated to the age or twenty-one or until he/she completes the state's secondary education program." 

PRIOR WRITTEN NOTICE REQUIRED BEFORE GRADUATION 
(CHANGE OF PLACEMENT) 

The Court found that a child with a disability "may graduate before one of these requirements is met if procedural safeguards are followed. Foremost among these are prior written notice to the parent whenever school officials propose a change in "the educational placement" . . . so the parent has an opportunity to "present complaints" regarding the proposed change." 

IDEA POLICIES & STATUTES OF LIMITATIONS 

The Court found that the District Court erred in applying a 30-day statute of limitations to an IDEA case. In support of this, the Court focused on these IDEA policies: * that all disabled children receive a free appropriate education." * that parents and school officials try to resolve disputes in a way that does not deprive the child of the "education mandated by law." 

SHORT STATUTE "VIOLATES IDEA POLICIES" 

The Court found that a 30- day statute violates IDEA policies: "Thirty days does not allow parents sufficient time to work with school officials to resolve educational disputes. Useful discourse that may resolve such disputes is foreclosed because parents are forced to immediately litigate." "

"THE REALITIES OF RAISING A DISABLED CHILD" 

"Disabled children can require considerable parental attention, which leaves parents limited time to prepare a lawsuit. Borrowing a thirty-day limitations period would prevent many parents from bringing valid IDEA claims, simply because of their child's disability - an effect abhorrent to the IDEA." 

The Court opted for a three-year statute based on Arkansas' personal injury statute: "A three year statute of limitations encourages parents to work with school officials to resolve disputes over the disabled child's education. It also allows parents time to prepare a federal lawsuit, and accounts for the time constraints faced by parents of disabled children." 

APPROPRIATE RELIEF 

The Court dismissed the ADA and Section 504 claims, but remanded the case to the District Court on the IDEA and Section 1983 claims "to determine the nature and extent of the compensatory education to which Brenda is entitled." Download this important decision from Wrightslaw in pdf. 


2. New Links! Articles, Newsletters, Cases 

Here are links to newsletters, Alerts, and articles published by Wrightslaw during the past few weeks. 

* JULY 6 NEWSLETTER: SPECIAL REPORT ON ZERO TOLERANCE POLICIES 

Includes findings by the Harvard Civil Rights Project that minority children and disabled children bear the brunt of "zero tolerance" policies; and that legal protections are inadequate. 

This issue of the newsletter includes information from and links to "Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline Policies;" new legal references in the Advocates Bookstore. 

* JULY 11 NEWSLETTER: U. S. SUPREME COURT OKAYS AID TO RELIGIOUS SCHOOLS. 

Implications of new decision from U. S. Supreme Court; also West Virginia seizes another school district; Pete & Pam Wright to speak in West Virginia July 28, 2000. 

JULY 13 ALERT! DELAWARE SUPREME COURT ISSUES DECISION IN ARONS CASE 

The Delaware Supreme Court found that parent advocates Marilyn Arons and Ruth Watson improperly engaged in the "unauthorized practice of law" when they represented Delaware parents in special education matters. This article includes a discussion of the issues, possible impact in other states, and the actual decision in pdf and html formats. 

JULY 20 NEWSLETTER: INCLUDES "SEVEN STEPS TO EFFECTIVE PARENT ADVOCACY" 

Read our new article, "Seven Steps to Effective Parent Advocacy." When parents take these steps - which include planning and preparation - they increase their power with their child's IEP team and the school district; also new Reviews of the TACTICS & STRATEGY MANUAL 

JULY 25 ALERT - SUPER DEALS DURING SUMMER SALE 

Get good deals and free Priority Mail shipping on all Wrightslaw publications - sale ends August 15. 

AUGUST 2 NEWSLETTER: ASSISTIVE TECHNOLOGY ISSUE 

Answers "Frequently Asked Questions" about Assistive Technology, links to A.T. information and resources, "Feed a Man a Fish" by Teri Toothman, Pete and Pam Wright to speak at conferences in New England and Long Island this fall, Super Deals During Summer Sale at Wrightslaw

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Wrightslaw: Special Education Law, 2nd Edition, by Pam and Pete Wright Wrightslaw: All About IEPs Surviving Due Process: Stephen Jeffers v. School Board

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