The Special Ed Advocate Newsletter, November 9, 2004 (Issue 285)

At Wrightslaw, our goals are to help you gain the information and skills you need navigate the amazing, confusing world of special education.

Highlights: Failure to include regular ed teacher on IEP team is fatal; procedural safeguards & parent notice; top 10 articles for October; IDEA Update - negotiations continue; sample letter with background info & resources; Wrightslaw programs in VA & OK; educating all children; find help in the Yellow Pages for Kids. Download this issue of The Special Ed Advocate.

Quote of the Week: "We know how to educate all children, including those with disabilities, if we have the will to do so." (To learn who said this and why, go to #7.)

Wrightslaw is ranked #1 in education law, special education law, and special education advocacy. (2004 Alexa rankings)

On November 5, 2004, the U. S. Court of Appeals for the Ninth Circuit issued a decision in M.L. v. Federal Way School District (WA). M.L. is a child with severe autism and mental retardation, developmental delays, and behavior problems.

Two judges found that the failure to include a regular education teacher on the IEP team was a serious procedural error that led to a loss of educational opportunity and a denial of a free appropriate public education (FAPE). One judge applied the structural defect analysis and found that "the requirement that at least one regular education teacher be included on an IEP team, if the student may be participating in a regular classroom, is mandatory - not discretionary."

Although the second judge concurred, he applied the harmless error standard of review and disagreed with the structural defect analysis:

"In fact, our sister circuits have consistently rejected per se IDEA structural error arguments, and instead have adopted case-by-case, harmless error inquiries similar to our standard . . ."

The third judge dissented. He concluded that the failure to include a "regular classroom teacher on the IEP team, as required by the IDEA, was harmless error, and did not result in the loss of an educational opportunity for M.L., or deny him a free appropriate public education." In his dissent, he wrote of overwhelming evidence that "the program developed by the IEP team was the best placement for M.L. because the academic and non-academic benefits to M.L. were maximized by placement in a self-contained classroom, rather than a regular kindergarten classroom."

1. Tests & Measurements for the Parent, Teacher, Advocate and Attorney - Your child has received special education for three years. Has your child caught up with the peer group? Has your child fallen further behind? How do you know? To negotiate for quality special ed services that provide educational benefit, you need to know how to interpret test scores.

Negotiations are continuing between House and Senate to reauthorize the Individuals with Disabilities Education Act. These negotiations may be completed this week.

On Monday, November 15, the House and Senate return to Washington for a lame duck session. If negotiations are completed then, Congress may pass the bill to reauthorize the IDEA during this session. The House and Senate versions of the IDEA bill weaken some rights that exist in the current IDEA. This may be our last chance to preserve protections that students with disabilities have under current federal law.

You may want to write a letter to the aides who are working on the compromise bill. Our Children Left Behind provided sample letters. Wrightslaw staff revised these letters into a master letter with background information and references on issues and concerns, including:

* Research Based Instruction
* Elimination of IEP Benchmarks and Short-term Objectives
* Parental Access to Legal Representation
* Shorter Statute of Limitations
* Expelling and Suspending Children Disability-Related Behavior

7. We Know How to Educate All Children - if We Have the Will to Do So

The Fall issue of The Beacon: Journal of Special Education Law & Practice focused on high-stakes testing. The issue included testimony before Congress by Dr. Martha Thurlow, Director of the National Center on Educational Outcomes, about reasons to include students with disabilities in assessments.

"We know how to educate all children, including those with disabilities, if we have the will to do so. The discussion should not be about whether students with disabilities can learn to proficiency – it must be about whether we have the will and commitment to make it happen."

According to Dr. Thurlow, including students with disabilities in assessments and accountability systems will improve educational outcomes for these children. Read Dr. Thurlow's testimony about the Inclusion of Students with Disabilities in Accountability and Assessment.

Learn more about high-stakes testing. Read more articles in The Beacon.

8. Need Help? Visit the Yellow Pages for Kids with Disabilities

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