Special Education Law Articles, Analyses, Publications
The Special Education Law Library includes:
D.L. v. District of Columbia: School District’s Persistent Failures Cause “Severe and Lasting Harm” to Vulnerable Children with Disabilities. This is the latest in a series of federal court decisions that found serious deficiencies in the District of Columbia’s special education programs. Judge Lamberth held that DC Public Schools failed to identify, locate and evaluate hundreds of preschool children with disabilities, and failed to provide them with FAPE, required by IDEA and Section 504.
Safford v. Redding, HH v. Moffett, NN v. Tunkhannock: Remedies When School Officials Violate a Child's Constitutional Rights. The Constitution provides remedies when student’s rights are violated. In Safford v. Redding, a violation of a Constitutional right was the primary vehicle to gain access to the courthouse. In HH v. Moffett, a decision from the 4th Circuit (child illegally restrained in wheelchair, abused, cursed), we saw the same thing. This strategy has now been used when in a case about the illegal search of a student's cell phone.
J. B. D. v. North Carolina - In Custody or Free to Leave? Supreme Court Clarifies Miranda Rights - Supreme Court decision about custody, interrogations, key differences between children and adults, and Miranda warnings for kids. (June 2011)
Legal Considerations When Advocating for Children with Special Education Needs by William B. Reichhardt, Esq. Explains the principles of eligibility determination, due process rights, and provision of services or placements and focuses on common problems and issues for special needs children in family law, personal injury and criminal law cases.
Demystifying Settlement Agreements by Marcy Tiffany and Steven Wyner. Settling a case avoids the delay, expense, uncertainty, and emotional strain associated with litigation. A settlement agreement offers more flexibility in crafting a remedy, but a poorly-crafted agreement can create new problems, and lead to even more litigation. The authors explain how settlement agreements should be structured and common pitfalls to avoid. The article includes a Sample Settlement Agreement that explains the basis and importance of each clause.
In a 6-2 decision, the Supreme Court Rules that Protection & Advocacy Can Sue State to Protect Individuals with Disabilities, and pursue other necessary legal remedies to fulfill their duty to advocate for people with disabilities. (April 19, 2011)
Supreme Court Issues Unanimous Decision in Fitzgerald v. Barnstable: Parents Can Sue School Officials Under Discrimination Laws by Pamela Darr Wright, MA, MSW & Peter W. D. Wright, Esq. On January 21, 2009, the Court held that Title IX does not preclude a §1983 action alleging unconstitutional gender discrimination in schools.
Did Strip Search Violate Student's Privacy Rights?Safford United School District v. Redding (08-479). In a 6-5 en banc decision, the full Court reversed the earlier panel and found that the school officials violated Savana’s Fourth Amendment right to be free from unreasonable search and seizure.
Appeals Court Upholds Award of Four Years of Compensatory Ed - On March 6, 2008, the Court of Appeals unanimously upheld the decision of the District Court in Jarron Draper v. Atlanta Independent School System (11th Cir. 2008); ordered Atlanta Independent School System to to pay student's tuition at a private school for four years or until he graduates from high school as prospective compensatory education for their failure to educate him.
Appeals Court Affirms Prospective Compensatory Education in Draper v. Atlanta - Steven Wyner, Esq., attorney for Draper, discusses the significance of the decision and how the case can be used to help other parents get prospective compensatory education in a "Poor Man's Burlington Remedy."
Supreme Court to Hear Oral Argument in NYC Board of Education v. Tom F., on Behalf of Gilbert F., a Minor Child on Monday, October 1, 2007. Article includes background of case, issues to be decided, significance, links to briefs filed on behalf of Tom and Gilbert F. and NYC Bd of Ed.
A Short History of New York Bd of Education v. Tom F., on Behalf of Gilbert F. describes key events in the case, from Gilbert's entry into Kindergarten in 1996 to the decision by the U.S. Supreme Court to grant cert in February 2007 and the scheduling of oral argument for Monday, October 1, 2007.
Judge Orders Sanctions Against School District, Remedies for Kids. On September 11, 2007, the U.S. District Court (Eastern District of Wisconsin) rendered its decision in Jamie S. v. Milwaukee Public Schools (01-C-928). Judge Goodstein found that between 2000 and 2005, Milwaukee Public Schools (MPS) violated the Child Find provisions in IDEA by failing to evaluate students who had suspected disabilities, failing to review all relevant data to determine the child's needs, and routinely suspending students instead of determining if they needed special education services. Citing the 2005 Supreme Court decision in Schaeffer v. Weast, Judge Goodstein found that the Wisconsin Department of Public Instruction (DPI) violated the IDEA by failing to discharge its oversight and supervisory obligations and failing to ensure that Milwaukee Public Schools was in compliance with the IDEA.
Analysis of Winkelman v. Parma. Supreme Court Rules: Parents Have Separate Enforceable Rights - Learn how the Winkelman decision goes beyond the question presented about whether parents can represent their children in court. Supreme Court Rules describes the process the Court used to issue a unanimous decision in the parents' and child's favor.
In Supreme Court Rules, learn why Pete and Pam view the decision in Winkelman as a stunner - and as the best decision from the Court since 1993. You'll also learn why Pete thinks the pendulum is beginning to swing. The decision in Winkelman v. Parma City School District is available in html and in pdf.
Analysis of Zachary Deal v. Hamilton County Department of Education by Gary Mayerson, Esq. Using excoriating language such as "appalling," "evasive," "closed mind," "combative," and "untruthful," Administrative Law Judge A. James Andrews has held in a 45-page decision that the Hamilton County (Tennessee) Department of Education (HCDE) repeatedly violated federal law in failing to provide an appropriate education to Zachary Deal, a seven-year-old Chattanooga boy with autism.
Disability Harassment in the Public Schools (Word format) by Mark C. Weber, published in the William and Mary Law Review (Volume 43, Issue 3, February 2002). Mark Weber, author of the Special Education Law and Education Treatise, has written an excellent publication that will help you understand the legal issues of disability harassment. Pdf format
Manual: Representing the Special Ed Child by Pete Wright - Written for attorneys, advocates,
and parents who are preparing for a due process hearing.
In Kevin T. v. Elmhurst Comm. School District No. 205, a federal District Court found that compensatory education was an appropriate remedy for the district's failure to provide FAPE and ordered the district to pay for Kevin's education at a private school until age 22.
Functional Behavioral Assessments: What? Why? When? Where? Who? by Dr. Stephen Starin will help if you are dealing with discipline issues.
The Choreography of Trial Preparation by Barbara Ebenstein, Esq. Trial preparation is like a choreography in that it is a deliberate arrangement of elements to convey a concept and tell a story from a particular point of view. Trial practice relies on the skill of a litigator to effectively communicate with a hearing officer.
Rowley: A New Focus in Special Education Law. Attorney Scott Johnson
argues that the "some educational benefit" standard in Rowley no longer reflects the requirements of the Individuals with Disabilities
Education Act. State standards and educational adequacy requirements
provide requirements of FAPE, these standards exceed the "some
educational benefit" benchmark. This requires a fundamental change
in how courts, school districts, and parents view special education
Steps to Effective Mediation (originally published in Trial magazine) In
mediation, decision-making authority rests with the parties. The role
of the mediator is to assist them in identifying issues, fostering joint
problem solving, and exploring settlement options. Since each party
wants to mold any settlement to its own benefit, the actual process
can combine elements of show-and-tell and poker . . .
Tests and Measurements for the Parent, Teacher, Advocate and Attorney - To successfully negotiate or litigate for appropriate services that provide educational benefit, you need to know how to interpret test scores. Assume a child has received three years of special education for reading problems. Has the child made progress? Has the child fallen further behind? In special education cases, your evidence includes standard scores, percentile ranks, subtest scores, and age and grade equivalent scores. (To ensure that you have the graphics in this article, print the article from the screen, rather than download it).
Witte v. Clark County School District: Key Points in Abuse Case - Pete Wright notes that when the Ninth Circuit reversed the U. S. District Court's decision, they found that parents are not necessarily required to go through a due process hearing before bringing the school district into court for punitive damages.
Awards $600,000 Damages to Parents - In Whitehead v. Hillsborough,
a Florida jury took less than 2 hours before deciding that the school
system retaliated against the parents of a child with Downs Syndrome.