Special Education Law Articles, Analyses, Publications
The Special Education Law Library includes:
Analysis of L.H. v. Hamilton County Department of Education. The Court of Appeals for the Sixth Circuit issued a wide-ranging decision about FAPE, LRE, inclusion, parental rights, school culture, resistance to change, and tuition reimbursement. (August 18, 2018)
Endrew F. v. Douglas County: IDEA Demands More: Inclusion & Progress in Regular Curriculum; IEP 'Tailored to Unique Needs'. It's a great day! On March 22, 2017, the U.S. Supreme Court issued another unanimous ruling in favor of children with special needs and their parents.
Educational Benefit: "Merely More Than De Minimis" or "Meaningful?" Supreme Court to Revisit Requirements in Endrew F. v. Douglas C. Sch. Dist. RE-1. On January 11, 2017, the Supreme Court heard oral argument in Endrew F.. On March 22, 2017, the Supreme Court unanimously rejected the 'de minimus' standard of educational progress. Chief Justice Roberts held that "a student offered an educational program providing merely more than 'de minimis' progress from year to year can hardly be said to have been offered an education at all."
Fry v. Napoleon Comm. Sch. District began as a damages case under Section 504 / ADA on behalf of a child with cerebral palsy who needed her service dog as a reasonable accommodation, then shifted into a case about exhaustion of administrative remedies under IDEA. In a unanimous decision, the Supreme Court vacated the 6th Circuit decision in Fry and framed new standards and limits to the "exhaustion doctrine." (February 2, 2017)
School District’s Persistent Failures Cause “Severe and Lasting Harm” to Vulnerable Children with Disabilities in D.L. v. District of Columbia. 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, as required by IDEA and Section 504.
Remedies When School Officials Violate a Child's Constitutional Rights: Safford v. Redding, HH v. Moffett, NN v. Tunkhannock - The Constitution provides remedies when a 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 in which a child was illegally restrained in wheelchair, abused, and cursed, we saw the same strategy. More recently, this strategy was used 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. (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 Pro-Child Decision in Forest Grove School District v. T.A. by Peter Wright, Esq. and Pamela Wright, MA, MSW. On June 22, 2009, the Supreme Court issued a decision in Forest Grove School District v. T.A., a case about tuition reimbursement for a child who was never found eligible and never received special education services from the public school.
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 as a "Poor Man's Burlington Remedy."
ADA: Burriola v. Greater Toledo YMCA. Many parents find day care centers unwilling to accept their children with disabilities. The doors to day care centers opened wider for children when a federal judge issued an injunction under the ADA on behalf of Jordan Burriola, ordering the center to reinstate him and train their staff. This article includes the pleadings and an article by Tom Zraik, Jordan's attorney.
Anatomy of a Special Education Case. What happens in a special education case? Read about the case of a young child with autism, from the original due process hearing through decisions from federal court and the U.S. Court of Appeals; this article includes links to pleadings and decisions.
Supreme Court Hears Oral Argument in Board of Education of City of New York v. Tom F. The question before the Court was whether parents of a child who has never received special education and related services from the public school district can obtain reimbursement for a unilateral private placement.
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.
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 find out 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 (PDF) 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.
Attorney Manual: Representing the Special Ed Child by Pete Wright - Written for attorneys, advocates, and parents who are preparing for a due process hearing.
Compensatory Education: An Appropriate Remedy for School's Failure to Provide a Free Appropriate Public Education (FAPE) - After twelve years of special education, Kevin T's reading, math and writing skills were at the 3rd to 5th grade levels. His IQ dropped nearly 20 points. Despite this, the district graduated Kevin with a regular high school diploma.
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.
Fales v. Garst: Analysis by Pete Wright, Esq.- In Fales v. Garst, three Arkansas special education teachers brought suit against the principal of their school. After the teachers received a favorable decision from the U. S. District Court, the principal appealed. The Court of Appeals attempted to balance the teachers' interest in freedom of speech v. their "employer's interest in promoting efficiency."
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.
Handling Your First Special Ed Case - Parent attorney Sonja Kerr provides advice about tactics and strategy to the lawyer who is handling his or her first special education case.
Henrico County School Board v. R.T. - Analysis by Pete Wright, Esq. - Pete Wright discusses Burden of Proof and Burden of Persuasion after the U. S. Supreme Court ruling in Schaffer v. Weast, the analysis of ABA and TEACCH, and the deference, if any, that should be provided to school board programs, methodology, and to testimony by school board witnesses.
How to Prepare for a Due Process Hearing. Vermont advocate Brice Palmer offers advice about how to prepare for a hearing or review. This article focuses on importance of planning and organizing. "If you do not plan and organize the pursuit, you are likely to wind up as road kill."
Jamie S. v. Milwaukee Public Schools: Judge Orders Sanctions Against School District, Remedies for Kids - Pete and Pam Wright walk you through the case from the beginning in 2002, how the class was certified, two trials, and the decision holding that the school district violated the child find mandate and the Wisconsin Department of Instruction violated the IDEA by failing to exercise supervisory responsibilities. Describes need for sanctions against Milwaukee Public Schools and remedies for children who were damaged.
Murphy v. Arlington: Analysis by Pete Wright, Esq. - After the Supreme Court issued a 6-3, pro-school decision in this case, Pete Wright summarizes the majority and dissenting opinions, provides an overview and background of the case, describes the different roles that lay advocates and expert witnesses play in resolving special education disputes, and the possible practical implications of this decision.
Next Wave of Special Education Litigation by Pete Wright. As more states require students to pass high-stakes tests before they receive high school diplomas, we are seeing a new kind of case. We are being asked to represent children who cannot pass high-stakes tests because their schools did not teach them the information and skills they need to pass these tests.
No Child Left Behind for Attorneys and Advocates: Reading Instruction, Research & Assessments provides guidance about how to use NCLB to open doors for children with disabilities. Learn about reading, the essential components of reading programs, scientifically based reading research, and reading assessments.
Reexamining 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 services.
Schaffer v. Weast: How Will the Decision Affect YOU? Pete Wright says, "It depends. The implications of this decision will vary around the country. In many jurisdictions, states are already operating under the rule that the moving party has the burden of proof. In these states, the decision should have no significant impact ..."
Seven 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 . . .
Court Issues Strong Decision on Behalf of Child with Autism in Philadelphia Case - In Tereance D. v School District of Philadelphia, the district performed inadequate evaluations, misdiagnosed the child as mentally retarded and emotionally disturbed, and intentionally misled the parent about her son's rights to autism services and extended school year services. Negotiations are underway about compensatory education.
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.
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.
Jury 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.
Your Child's IEP: Practical & Legal Guidance for Parents, Attorneys & Advocates - This will provide you with a basic overview of the IEP process. It should be read in conjunction with the Tests and Measurements article above. You will learn how to write IEP's that have meaningful goals and objectives, rather than subjective, vague, meaningless terms of "80% success on teacher made tests."