The Special Ed Advocate Newsletter
April 20, 2005

Issue - 306
ISSN: 1538-3202

In this Issue

1. IDEA 2004: Guidance from USDOE

2. Wrightslaw: IDEA 2004 - Coming Soon!

3. Section 504 Protects Special Ed Teacher from Retaliation

4. Section 504 - Child Not Eligible for Money Damages in IDEA Case

5. Wrightslaw Programs in NH, IL, MI, HI

6. Find Help & Helpers at Yellow Pages for Kids

7. Subscription & Contact Info

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This issue of The Special Ed Advocate includes guidance on IDEA 2004 and new cases about retaliation and damages under Section 504.

Highlights: IDEA 2004 - guidance from U. S. Department of Ed; Wrightslaw: IDEA 2004 - coming soon; Section 504 protects special ed teacher from retaliation; Section 504 - child not eligible for damages in IDEA case; Wrightslaw programs in NH, IL, MI, HI; find help and helpers at Yellow Pages for Kids.

The Special Ed Advocate newsletter is free - please forward this issue or the subscription link to your friends and colleagues so they can learn about special education law and advocacy too. We appreciate your help! Download this issue.

1. IDEA 2004: Guidance from U. S. Dept of Education

The Individuals with Disabilities Education Act of 2004 takes effect on July 1, 2005. Do you know how the law will affect you? Your child? Your school, school district and state?

The U. S. Department of Education is publishing documents to
"support constituents in preparing to implement the new requirements." Each document focuses on a specific topic or legal issue (IEPs, assessments, discipline, procedural safeguards, etc.).

These documents have been reviewed by the U.S. Department of Education, Office of Special Education Programs (OSEP), for consistency with IDEA 2004.

State and Districtwide Assessments - new requirements about accommodations; alternate assessments; new reporting requirements; information required in IEPs (2 pages)

Discipline - new standards for manifestation determinations; new authority for school personnel; new standard for "special circumstances"; new definition of serious bodily injury; authority of hearing officer; expedited hearings
(3 pages)

Disproportionality and Overidentification - policies and procedures; collection and examination of data; new requirements when reviewing policies and procedures. (2 pages)

Early Intervening Services - describes activities to implement early intervening services; professional development; evaluations; scientifically based literacy instruction; reporting requirements; use of funds. (2 pages)

Highly Qualified Special Education Teachers - new definition of highly qualified special education teacher; requirements for special ed teachers who teach to alternate achievement standards and multiple subjects; related services personnel and paraprofessionals; personnel development plans. (4 pages)

Initial Evaluations and Reevaluations - new provisions about parental consent for children who are wards of state; new 60-day timeline for initial evaluations; new procedures for evaluating children who may have specific learning disabilities; new procedures for reevaluations; new evaluation requirements before change in eligibility; new requirements about evaluating present levels of academic achievement and developmental needs of child.
(3 pages)

Individualized Education Programs (IEPs) - new requirements for present levels of educational performance; accommodations; assessments; changes in measurable annual goals, measuring and reporting progress; new requirements about services based on peer-reviewed research; changes in transition requirements; new requirements for children who transfer within and between states. (3 pages)

Individualized Education Program (IEP) Team Meetings and Changing the IEP - required members of IEP team; changes in IEP team member attendance; new rules about excusal from IEP meetings; new provisions about changing IEPs; consolidation of meetings; alternate ways to participate in meetings. (2 pages)

Aligning IDEA with the No Child Left Behind Act - addition of new definitions (core academic subjects, limited English proficient, highly qualified teacher); performance goals and indicators; requirements about reporting progress in educating children with disabilities to public and state; alternate achievement standards; records of migratory children; eligibility determination; personnel development plans. (3 pages)

Preschool: Age 3 to Kindergarten - Part C funds for children ages 3 to Kindergarten; expanded definition of "infants and toddlers"; new policies re: notice to parents, educational components; consent. (3 pages)

Children Enrolled By Their Parents In Private Schools - requirements about providing services to children who attend private schools; 'child find' requirements for children who attend private schools; equitable participation; new requirements about children evaluated and found eligible; new requirements for consultation between public and private school representatives; written affirmation requirements; right to complain to SEA.

Procedural Safeguards: Surrogates, Notice and Consent - new procedures for appointing surrogate parents; revised requirements about procedural safeguards notice to parents; additions to notice content, requests for due process hearings, civil actions; consent for wards of the state. (3 pages)

Procedural Safeguards: Mediation and Resolution Sessions - new mediation requirements; new requirements about meeting with a "disinterested party"; new requirements about legally binding agreements, confidentiality of discussions, enforceability of agreement; new requirements for "resolution sessions"; limitations on attorneys' fees. (2 pages)

Procedural Safeguards: Due Process Hearings - clarifies who may request a due process hearing; specifies timelines for requesting due process hearings; new prior written notice requirements and timelines; new requirements for hearing officers; new guidelines for issues raised at due process hearings; new parameters for hearing officer decisions; timelines for bringing a civil action; additional provisions for awarding attorneys fees.

Go to Changes in the IDEA 2004: Guidance from OSEP for the complete list of guidance documents. As additional publications are approved by the U. S. Department of Education, we will add them to this page.

Visit IDEA 2004 for more articles and news about IDEA-2004 .

2. Wrightslaw: IDEA 2004 - Coming Soon

We are working on a new publication. Wrightslaw: IDEA 2004 describes changes to the key statutes of IDEA 2004 by section and subsection and includes extensive commentary by Pete Wright. This publication will be available before the reauthorized law goes into effect on July 1, 2005.

Subscribers to The Special Ed Advocate newsletter will receive advance notice by email before Wrightslaw: IDEA 2004 is available to the public. Watch your email box - we'll keep you posted.

3. Section 504 Protects Special Ed Teacher from Retaliation

Linda Sturm worked as a special education teacher at Griswald Middle School in Rocky Hill, CT from 1998 to 2003. She advocated for her students. In March, 2003, she was told that her contract would not be renewed and she was "allowed to resign." When she applied for other positions, she was not hired.

Ms. Sturm filed a lawsuit against the Rocky Hill School Board. She claimed that the district violated her First Amendment right to freedom of speech. She alleged that the district retaliated against her in violation of Section 504 of the Rehabilitation Act. She alleged that school administrators made statements that were "defamatory or invaded her privacy by placing her in a false light" and that the district was liable for wrongful discharge under state law.

The school district responded with a motion to dismiss all counts in her complaint.

On March 29, 2005, the U. S. District Court of Connecticut issued a ruling on the school board's motion to dismiss and allowed her case to go forward on the following issues: violation of First Amendment rights under federal and state law, and retaliation under Section 504.

The court wrote: "Section 504 of the Rehabilitation Act expressly incorporates the anti-retaliation provision of Section 503 of the Americans with Disabilities Act . . [that] prohibits retaliation against any individual because he or she opposes any act or practice made unlawful by the act. Courts have extended protection against retaliation under the Rehabilitation Act to those who advocate on behalf of the disabled . . . Because the plaintiff has standing to claim retaliation based on her efforts on behalf of her students, the motion to dismiss is denied . . . "

Read the ruling in Linda Sturm v. Rocky Hill Board of Education (U. S. District Court, District of Connecticut)

Note: This ruling is in pdf so you must have Adobe Acrobat PDF Reader on your computer to read it. If you don't already have Adobe Acrobat Reader, you can download a FREE copy here. It's a nifty program and you'll use it a lot.

Learn more about retaliation.

Retaliation Caselaw:
Pamella Settlegoode v. Portland Public Schools - the U. S. Court of Appeals for the Ninth Circuit reinstated the 1 million dollar jury award to the special ed teacher who was retaliated against and fired for advocating for her students. This decision also clarified freedom of speech for teachers.

4. Section 504: Child Not Eligible for Damages in IDEA Case

On March 30, 2005, the U. S. Court of Appeals for the Fourth Circuit issued a new decision about monetary damages under Section 504 in J. S. v. Isle of Wight (VA).

This case involved J. S., a child who was found eligible for special education services at the end of 1st grade. After he completed 3rd grade, he moved to a different school district. Although he had an IEP, the new school did implement the IEP, develop a new IEP, or provide special education services.

When his mother requested that the school evaluate him, the school resisted and "her efforts to have J. S. tested proved unsuccessful." The school finally evaluated J. S. when he was in the sixth grade and concluded that he had a disability and was eligible for special education services. At that time, an IEP was developed.

In January 2003, J. S.'s mother filed suit against the Isle of Wight school board, superintendent, and special education director. Count I of her complaint asserted that the school district violated the IDEA. Count II alleged that the school district discriminated against J. S. because of his disability, a violation of Section 504. Count III alleged that his civil rights under 42 U.S.C. § 1983 were violated.

The school district admitted that that they violated the IDEA, agreed to comply with "all applicable provisions of IDEA", and agreed to pay costs and attorney's fees associated with his claims under IDEA.

In J. S. v, Isle of Wight, the Court discussed statutes of limitations - the fact that Section 504 does not contain a statute of limitations, the federal "borrowing" doctrine, notice of claims provision, then tackled the issue of money damages for failure to provide FAPE.

"Finally, we address J.S.'s attempt to recover money damages under § 1983 for the defendants' admitted violation of the IDEA. We clearly disapproved of this practice in Sellers . . . [and] held that 'parties may not sue under section 1983 for an IDEA violation.' Sellers, 141 F.3d at 529."

The Court found: ". . . the defendants in this case have not only conceded their violation of the IDEA, but have tendered to J.S. all forms of relief that he was entitled to receive under the statute, including: (1) an agreement to comply with all applicable provisions of the IDEA concerning J.S.'s right to a free and appropriate public education; and (2) an award of costs and attorney's fees."

"Having obtained exactly what he was entitled to receive under the IDEA, J.S. cannot reasonably maintain that a deficiency in the statute's remedial scheme justifies an enforcement action under § 1983."

Does this mean that damages are never available under Section 504? These decisions will help you sort these issues out:

W.B. v. Matula, U. S. Court of Appeals for the Third Circuit. Availability of damages under Section 504, IDEA, and Section 1983 when district refused to evaluate, classify and provide appropriate services to disabled child; exhaustion, qualified immunity, due process (1995).

Witte v. Clark County Sch. Bd, U. S. Court of Appeals for the Ninth Circuit finds that damages are available in school brutality case. (1999)

Polera v. Bd Ed. Newburgh City Sch. Dist, U. S. Court of Appeals for the Second Circuit found that the disabled child must first exhaust administrative remedies under IDEA before (2002).

More Special Education Caselaw.

Learn about Section 504 - frequently asked questions, articles, caselaw, free pubs.

5. Coming Up! Wrightslaw Programs in New Hampshire, Illinois, Michigan, Hawaii

Wrightslaw Special Education Law and Advocacy Training Programs focus on four areas: special education laws including significant changes in IDEA 2004; how to use the bell curve to measure educational progress & regression; SMART IEPs; and advocacy tactics & strategies.

Manchester, NH: May 6-7, 2005 (Boot Camp)

Springfield, IL - May 13-14, 2005 (Boot Camp)

Oakland Schools, Waterford, MI - May 24, 2005 (Special Education Law & Advocacy Training) - Attorney Wayne Steedman and advocate Pat Howey present a full-day Wrightslaw training program - NEW!

Hilo, HI - July 29, 2005 - LDA Conference (Keynote Speakers & Presenters)

Hilo, HI - July 30-31, 2005 - Boot Camp

Schedule l Programs l Speakers l FAQs

6. Need Help? Visit the Yellow Pages for Kids

If you are looking for help - or a helper - visit the Yellow Pages for Kids with Disabilities. Your state Yellow Pages has many resources - evaluators, speech language therapists, tutors, special ed schools, advocates, attorneys, organizations, and support groups.

These articles will help:

Working with Independent Evaluators and Educational Consultants

Strategies to Find a Support or Study Group

Help Others: Please print and distribute Flyers for Your State Yellow Pages for Kids.

Free Listings in the Yellow Pages: If you help parents get services for children (i.e., an evaluator, educational consultant, academic tutor, advocate, attorney, special ed school, etc.) or you facilitate a support or study group for parents, submit an application be listed in the Yellow Pages for Kids. Send an email to app@yellowpagesforkids.com for an application. Listings in the Yellow Pages are free.

7. Subscription & Contact Info

The Special Ed Advocate is a free online newsletter about special education legal and advocacy issues, cases, and tactics and strategies. Subscribers receive "alerts" about new cases, events, and special offers on Wrightslaw books.

Law Library Seminars & Training
Advocacy Yellow Pages for Kids
No Child Left Behind Free Newsletter
IDEA 2004 Newsletter Archives

Contact Info
Pete and Pam Wright
Wrightslaw & The Special Ed Advocate
P. O. Box 1008
Deltaville, VA 23043
Website: https://www.wrightslaw.com
Email: newsletter@wrightslaw.com

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