The Special Ed Advocate Newsletter
September 17, 1998

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ISSN: 1538-3202

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The Special Ed Advocate is a free online newsletter about special education legal issues, cases, tactics and strategy, educational methods that work, and Internet links.

We publish this newsletter occasionally, when time permits. Back issues of The Special Ed Advocate are archived at our web site -


As a subscriber to The Special Ed Advocate, you will receive announcements and "alerts" about new cases and other events. Contact, copyright, and subscription information can be found at the end of this newsletter.

(1) NEWS FLASH! 8TH Circuit Issues Decision in Westendorp v. Wedl. (September 15, 1998)

(2) NEWS FLASH! 2nd Circuit Rules That State Bar Must Provide Accommodations in Bartlett v. NY State Board of Law Examiners (September 14, 1998)

(3) MEDIATION – Frequently Asked Questions and Standards of Practice from The Academy of Family Mediators.

(4) The Special Ed Advocate Newsletter (September 8, 1998)

(5) Subscription Information


September 15, 1998. The Eighth Circuit reversed the U. S. District Court of Minnesota in a decision about the provision of special education services to children who attend private religious schools.

The decision begins-

"Aaron Westendorp is a severely disabled child who requires a full-time paraprofessional to function in a school classroom. Minnesota Independent School District No. 273 (ISD No. 273) refused to provide Aaron with a paraprofessional as long as he attended a private religious school, and Aaron’s parents brought this suit for damages and equitable relief against the school district."

"The Westendorps alleged that, by denying Aaron a paraprofessional in his private religious school, ISD No. 273 violated their rights of free speech, free exercise of religion, and equal protection under the First and Fourteenth Amendments, as well as their rights under the Religious Freedom Restoration Act of 1993 . . . the Individuals with Disabilities Education Act . . . and Minnesota state law."

"The district court granted summary judgment in favor of ISD No. 273, and Aaron’s parents now appeal. We reverse."

The Eighth Circuit discusses crucial differences between IDEA and the amended IDEA 97. The Court concludes that under IDEA 97, if the district provides FAPE, the district does not need to provide services to children who are placed in private schools by their parents. However, the Eighth Circuit concluded that the school district’s refusal to provide these services to Aaron was caused by religious discrimination:

"ISD No. 273’s invocation of a "long-standing policy" rings hollow in light of its actual practice of providing services to disabled children at private non-religious preschools and at home schools. Indeed, ISD No. 273’s alleged policy has not been used to deny students at private non-religious schools paraprofessional services, and appears to manifest itself only when disabled children at private religious schools request these services . . .

Viewed in its entirety, the evidence in this case strongly suggests that ISD No. 273’s policy is a mere pretext for religious discrimination.

This new case is now available in the Law Library

(2) NEWS FLASH! 2nd Circuit Rules That State Bar Must Provide Accommodations in Bartlett v. NY State Board of Law Examiners (September 14, 1998)

In 1993, Marilyn Bartlett sued the New York Board of Law Examiners in 1993 after it denied her application to accommodate her reading disability. Bartlett requested the following accommodations: more time to take the exam, permission to record her essays on tape, permission to circle answers in the test booklet.

The Bar claimed that Bartlett didn’t have a disability.

In their September 14, 1998 decision, the appeals court ruled the board’s decision was based on an "arbitrary standard" of disability:

"Dr. Bartlett, who has fought an uphill battle with a reading disorder throughout her education," the ruling released Monday by the Court of Appeals said, "is among those for whom Congress provided protection under the Americans With Disabilities Act and the Rehabilitation Act."

"Dr. Bartlett’s cognitive impairment—her difficulties in automatically decoding and processing the printed word—limits her major life activities of learning and reading to a substantial degree."

"Reasonable accommodation of this disability will enable her to compete fairly with others in taking the examination, so that it will be her mastery of the legal skills and knowledge that the exam is designed to test—and not her disability—that determines whether or not she achieves a passing score."

Please read the decision

(3) MEDIATION – Frequently Asked Questions and Answers, Standards of Practice

The new IDEA encourages parents and schools to use mediation to resolve disputes. In these disputes, a child is involved, the stakes are high, and emotions run strong. It’s important for parents to learn about the mediation process, what mediation can and cannot accomplish, and how mediators should be trained.

Learn more about mediation. 

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