Federal Legislative Initiatives and Students with E/BD

Antonis KatsiyannisClemson University

Objectives

Discuss recent legislative initiatives• Preventing Harmful Restraint and Seclusion in Schools

Act• Positive Behavior for Safe and Effective Schools Act• Academic, Social, and Emotional Learning Act of 2009• ADA Amendments of 2008• ESEA Re authorization• Bullying and Gang Reduction for Improved Education

Act • Mental health in Schools Act

Review Recent case lawList CCBD Initiatives

Preventing Harmful Restraint and Seclusion in Schools Act

Proposed by Reps. George Miller &Cathy McMorris-Rodgers Purposes

– Reduce restraint and seclusion in schools– Ensure the safety of ALL members of the school– Ensure restraints and seclusion are used only when injury to self and

others is imminent if less restrictive interventions would be ineffective in stopping physical injury.

– Assist States, LEA’s and schools in appropriate and effective PBS measures

– Requirements for verbal and written reporting to parentsKey Provisions

– Establish/Maintain minimum standards– Establish a state plan and report requirements and enforcement– Provide grants to assist in meeting the minimum standards, improving

data collection, and improving school climate– Establish a National Assessment to determine the effectiveness– Establish a Protection and Advocacy Systems

Preventing Harmful Restraint and Seclusion in Schools Act

Findings– Restraint & seclusion have resulted in physical / psychological injury– Restraint & seclusion is higher among youth than adults– Disparity remains among States & localities regarding the

protection and oversight of the rights of children– Restraint & seclusion are neither therapeutic nor an effective way

to calm or teach children

Needs– Support youth with challenging behaviors by using safe, effective,

evidence-based strategies– Have the right to work in a safe environment

Status - This bill passed in the House of Representatives on 3-3-2010. It was received in the Senate and read twice and referred to the Committee on Health, Education, Labor, and Pensions (3-4-2010). This bill never became law.

Status and Issues

Co-sponsor Senator Burr (NC) (10-15-10)Issues

IEP provision P & A groups have the authority to investigate,

monitor, and enforce protections provided for students under this Act

C. N. v. Willmar Public Schools, 53 IDELR 251 (8th Cir. 2010)-the MN teacher did not violate student’s rights by restraining and secluding a student because restraint and seclusion were listed in child’s IEP

Status and Issues• JGS by Sterner v. Titusville Area Sch. Distr. 55 IDELR 39

(W.D. Pa. 2010-lack of injury derailed 1st grader’s constitutional claims

• Student stood up and began screaming obscenities; aide placed hand sanitizer on her hand and held it over student’s mouth

• Court relied on a four part test by Gottlied v. Laurel Highlands SD, 272F.3d 168 (3rd Cir. 2001)-

1. Was there a pedagogical justification? 2. Was the force utilized excessive in light of situation? 3. Was the force applied to in good faith to maintain/restore

discipline of for the purpose of inflicting harm? 4. Was there a serious injury?

Positive Behavior for Safe and Effective Schools Act (H. R. 2597)

Proposed by Rep. Phil HarePurpose

– Expand school-wide PBS into all schools in order to provide a school climate that is conducive to learning

Key Provisions– Establish the flexibility to use Title I funds to implement

PBS– Enhance teacher and principal preparation in order to

improve school climate– Support programs that improve school-wide climate– Establish criteria to address the need for early intervention

services in order to improve school climate– Coordinate adequate evaluation of school-wide programs

Positive Behavior for Safe and Effective Schools Act (H. R. 2597)

Findings– Lack of discipline is the leading challenge facing schools– Negative and reactive school management is ineffective and

counterproductive and reinforces bad behavior– Suspensions and expulsions are on the rise– Disproportionate use of zero-tolerance punishments among students of

color and students with disabilities– High correlation between student dropout and school discipline– Teachers leave the field due to discipline issues– Student behavior and achievement (learning) is linked– Evidence-based practices are not widely used in schools– Early intervention is effective – Teachers found schools which implement PBS to have safer teaching

environments

Status – referred to the Subcommittee on Early Childhood, Elementary, and Secondary Education (10-22-2009). This bill never became law.

Academic, Social, and Emotional Learning Act of 2009 (H. R. 4223)

Proposed by Dale E. KildeePurpose

– Evidence-based social and emotional learning to be included in education

Key Provisions– Establish a National Technical Assistance and

Training CenterProvide Grants to Support Evidence-Based SELConduct a National Evaluation of School-Based

SEL Programs

Academic, Social, and Emotional Learning Act of 2009 (H. R. 4223)

Findings– Engaged students are more successful

• Maintain focus and effort• Work well with others• Communicate and problem solve

Social and emotional skills are needed for youths success during and after their schooling

Social and emotional skills can be taught in ANY setting

Status – referred to the Subcommittee on Early Childhood, Elementary, and Secondary Education (1-4-2010). This bill never became law.

Social Emotional Learning and Positive Behavioral Support

Bullying and Gang Reduction for Improved Education Act (H. R. 1589)

Proposed by Rep. Linda SanchezPurpose

– To amend the "Safe and Drug-Free Schools and Communities Act" and includes language that addresses bullying and gang reduction.

Key provisions– Fostering a safe and drug-free learning environment;

facilitate healthy, physically active lifestyles. – Makes local park and recreation agencies eligible for funding

under the program's mentoring programs for children.Status – referred to the Subcommittee on Early Childhood,

Elementary and Secondary Education (5-14-2009). This bill never became law.

Federal Statutes

• Title VI- prohibits discrimination on the basis of race, color, or national origin

• Title IX-prohibits discrimination on the basis of sex• Section 504/ADA-prohibits discrimination on the basis of

disability• Violations may occur when peer harassment based on race,

color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees

School Response• The label used to describe an incident (e.g., bullying,

hazing, teasing) does not determine how a school is obligated to respond. Rather, the nature of the conduct itself must be assessed for civil rights implications.

• For example, if the abusive behavior is on the basis of race, color, national origin, sex, or disability, and creates a hostile environment, a school is obligated to respond in accordance with the applicable federal civil rights statutes and regulations enforced by OCR.

School Response• When the behavior implicates the civil rights laws,

school administrators should look beyond simply disciplining the perpetrators. While disciplining the perpetrators is likely a necessary step, it often is insufficient. A school’s responsibility is to eliminate the hostile environment created by the harassment, address its effects, and take steps to ensure that harassment does not recur

Current Grants

• Center on Positive Behavioral Interventions Support

• Technical Assistance and Dissemination to Improve Services and Results for Children with Disabilities Program

• Model Demonstrations on Tertiary Level Interventions

ADA Amendments Act of 2008• To carry out the ADA's objectives of providing `a

clear and comprehensive national mandate for the elimination of discrimination' and `clear, strong, consistent, enforceable standards addressing discrimination' by reinstating a broad scope of protection to be available under the ADA;

• To reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures

Definition-Mitigating Factors• The determination of whether an impairment

substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as--– `(I) medication, medical supplies, equipment, or appliances,

low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

– `(II) use of assistive technology;– `(III) reasonable accommodations or auxiliary aids or

services; or– `(IV) learned behavioral or adaptive neurological

modifications.– `(ii) effects of the mitigating measures of ordinary eyeglasses

or contact lenses shall be considered

U.S. Supreme Court - Forest Grove • T.A. attended kindergarten through eighth grade at

Forest Grove Public Schools with teachers observing problems associated with paying attention and completing his assignments. When T.A. entered high school, his difficulties increased and prompted the mother to visit with a school counselor to discuss school related problems

• A school psychologist evaluated the student and concluded that the child did not qualify for services and there was no need for additional testing for learning disabilities or other health impairments (including ADHD).

U.S. Supreme Court - Forest Grove• With parental support, the student went through the

sophomore year, but problems worsened in his junior year. • Parents discussed different options with the school district,

consulted with a specialist who diagnosed T.A. as having ADHD and other related learning disabilities,

• Upon the specialist recommendations, enrolled T.A. in a structured, residential learning environment at a private academy.

• Soon after, parents hired legal counsel, notified the school district of their actions and after a few weeks requested a due process hearing to determine the child’s eligibility under IDEA.

• MDT determined that the T. A. as not eligible for special education services

IDEA, 20 U. S. C. §1412(a)(10)(C) (ii)

• If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost if LEA failed to provide FAPE

U.S. Supreme Court - Forest Grove

• The Court held that IDEA authorizes reimbursement for private placement when a public school fails to provide FAPE and the private school placement is appropriate, regardless of the child’s prior enrollment in special education.

• IDEA does not impose a categorical bar to reimbursement based on prior enrollment (or state approval of the facility as presented in Carter), but rather IDEA ensures FAPE trough special education and related services designed to meet the child’s unique needs.

Case Law - Child Find Activities• In 2002-2003, Addison, a high school freshman attending Compton

Public Schools performed poorly in her classes and standardized tests (below the 1st percentile; fourth-grade level performance). The school counselor viewed this performance as ”typical” and related to “transitional year” challenges.

• In the fall of 2003, Addison failed all classes; teacher comments described Addison as a “stick of furniture” and her work was “gibberish and incomprehensible.” Addison sometimes refused to enter the classroom, colored with crayons during instructional time, played with dolls in class, and urinated on herself.

• Because of parental hesitation to have her daughter’s academic challenges investigated, the school district decided not to pursue an evaluation; although, they did refer her to a mental health counselor. The counselor promptly recommended an evaluation for learning disabilities; the district ignored this suggestion and promoted her to the 11th grade.

Case Law - Child Find Activities• The school district argued that IDEA’s written

notice procedures (i.e., with regard to proposals or refusals to initiate a change regarding a student’s identification, assessment, or placement) limit the jurisdictional scope of the due process hearing. Because the district chose to ignore Addison’s disabilities and take no action, the district had not in fact refused to act; therefore the notice requirement does not apply

Case Law - Highly Qualified• NCLB- “highly qualified” teachers — are

crucial to educational success. • By 2005-06 academic year, only “highly

qualified” teachers should instruct core academic classes (English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography in school districts receiving Title I funding (the “100% requirement”).

Case Law - Highly Qualified• The December 2, 2002,regulations provided a more detailed

definition of “highly qualified teacher.” 34 C.F.R. § 200.56• (i) Has fulfilled the State's certification and licensure

requirements applicable to the experience the teacher possesses; or

• (ii) Is participating in an alternative route to certification program. § 200.56(a)(2)(ii).

• In 2004, CA regulation provided that a teacher “meets NCLB requirements” if the teacher “[i]s currently enrolled in an approved intern program for less than three years or has a full credential.” Cal. Code Regs. tit. 5, § 6110(2)

• Regulation is invalid because it characterizes an alternative-route teacher who is still in the process of obtaining “full State certification” as a “highly qualified teacher.”

A disproportionate number of interns teach in schools in minority and low-income areas, there is a causal connection between the challenged regulation and quality of instruction

Case Law - Highly Qualified• Disproportionate number of interns teach in

schools in minority and low-income areas, there is a causal connection between the challenged regulation and quality of instruction

• There are approximately 10,000+ such teachers in California (where they are known as interns) and 100,000 nationwide considered “highly qualified” under this provision

• Decision-Regulation Invalid• Consequence-CA out of compliance; efforts to

increase the number of “HQ”

Elementary and Secondary Education Act (ESEA)• Push for “college- and career-ready” students

• “four of every 10 new college students, including half of those at 2-year institutions, take remedial courses and many employers comment on the inadequate preparation of high school graduates.”

• Work with IHE to certify mastery or work with other states to build common standards

• Three tiers of schools• Reward schools-greater flexibility• Challenge schools-bottom 5%; subject to reform options

(e.g., closure)• Warning-another 5%-flexibility on improvement strategies

• Charter schools but NOT school choicewww.2ed.gov/policy/elsec/leg/blueprint.pdf

ESEA• Highly Effective teachers

• Link to student achievement• Teacher and principal preparation programs must be

evaluated for the quality of their graduate• States must issue report cards every two years on teacher

and principal qualifications, effectiveness, the number hired from high-performing preparation programs, retention rates by performance level, their years of service, and teacher and principal attendance rates

• Competitive grant programs • Achievement Standards

• “Beginning in 2015, formula funds will be available only to states that are implementing assessments based on college- and career-ready standards that are common to a significant number of states.”

www.2ed.gov/policy/elsec/leg/blueprint.pdf

Accountability• Allow states to include achievement growth in AYP calculations• Add student achievement in science for AYP calculation• Reducing the proposed rule allowing students with disabilities to be

assessed against modified achievement standards from 2% to 1% (Retaining 1% for students with significant cognitive disabilities)

• Allowing parents and other concerned parties to hold districts, states, and U.S. DOE accountable for fully implementing NCLB

Emotional Disturbance

http://www.nichcy.org/InformationResources/Documents/NICHCY%20PUBS/fs5.pdf

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