SPED 101

June 26, 2012

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DISABITLITY LAW

What do you know about disability law? In your groups, identify 3 facts you know about SPED law.

Individuals with Disabilities Education ACT (IDEA)

Federal Law concerning the education of students with disabilities

Requires schools to provide parents of a child with a disability with a notice containing a full explanation of procedural safeguards available under IDEA, U.S. Department of Education regulations and Tennessee law and regulations.

SPED Legal Information and Resources

Procedural Safeguards: http://www.state.tn.us/education/speced/index.shtml

TOP Mistakes of IEP Meetings

1. Mentioning other student’s names. 2. Grading papers, reading magazines, or other

activities during the IEP meeting. 3. Saying, “I refuse to or I don’t do that in my

class” or other uncooperative statements. 4. Saying, “ I don’t know this child, I can’t

meet the needs of this child – prior to notifying the principal or Special Education Director of these concerns.

TOP Mistakes Continued

5. Predetermining placement prior to the meeting.

6. Failure to participate in the IEP-meeting 7. Signing and IEP for a meeting that you

did not attend 8. Turning IEP meetings into parent teacher

conferences

Avoiding the REALLY Dumb Special

Education Mistakes THAT Lead to Money

Damages

Exclusion from Required Classes and Extracurricular Activities

Centennial Sch. District v. S.D., IDELR 289 (E.D. Pa 2011). The parents of a 21-year-old student with asthma and a severe gastrointestinal condition could proceed with their claim for monetary damages against a Pennsylvania district. The parents claimed there were various acts of intentional discrimination by the district taken because of his disability. For example, they claimed he was excluded, solely because of his health conditions, from participating in state-mandated classes, such as gym, art, and languages, from extracurricular activities, and from school-provided transportation.

Failure to Develop Appropriate Boundaries

Malone v. Ben Hill County Sch. Sys., 54 IDELR 183, 377 F. App’x 913 (11th Cir. 2010)(unpublished). A PE teacher was not liable for alleged constitutional violations related to an incident involving a middle school student with asthma and ADHD. The teacher allegedly shoved the student headfirst into a trashcan in front of his brother and another classmate during PE class. He then allegedly pulled the student out of the trashcan by his legs. *A teacher whose conduct is neither corporal punishment nor conscience-shocking does not rigger a substantive due process violation, the court explained.

Teacher Went Beyond the Terms of the IEP/BIP

Sanchez v. Commonwealth of Puerto Rico, 53 IDELR 325 (D.P.R. 2010) Actions taken by an employee of the Puerto Rico ED violated a student’s constitutional rights. Rather than building a fenced-in play area for the student and his classmates, the parents alleged that the ED placed him in a cage to contain him. The evidence demonstrated that the implementation of the plan by the employee “constituted a clear departure from the agreement inasmuch as a barred cage was built instead, “ U.S. District Judge Camille L. Velez-Rive wrote. This could have reasonably led the jury to believe that the employee violated the student’s rights.

Failure to Inform Teachers of Student’s Disability

Kaitlin C. v. Cheltenham Township Sch. Dist., 54 IDELR 44 (E.D. Pa. 2010). According to the parent, the district discriminated against the student when it required her to participate in a physical fitness test despite her physical limitations. The court acknowledged that the student’s IEP exempted her from physical activities, and that the fitness teacher was unaware of the IEP provision. *Concluding that the parent’s failure to allege intentional discrimination defeated her claim for monetary damages, the court granted the district’s motion to dismiss.

Failure to Prevent Known Bullying

Funez v. Gusman, 54 IDELR 153 (D. Ore, 2010). An Oregon District had to continue litigating a parent’s claims after the court dismissed some but not all of the charges. A high school student who received special education services claimed he was taken to the wrestling room on his birthday before the start of classes and was repeatedly kicked and punched by several classmates. The “birthday beating” caused the student to sustain injuries so severe that they required hospitalization. The District Court rejected the district’s request to dismiss the parent’s claims for constitutional violations, noting that the parent adequately alleged that the district had a custom of posting students’ names and birthdays--coupled with an awareness that birthday beatings occurred and its failure to prevent them.

Bullying Can Lead to a Denial of FAPE

Shore Regional High Sch. Bd. Of Education v. P.S., IDELR 234 (3rd Cir. 2004). The proposed placement of a student with an emotional disturbance at a local high school would result in a denial of FAPE because of the likelihood of continued bullying.

T.K. v. New York City Dept. of Education, 56 IDELR 228 (E.D.N.Y. 2011). Bullying does not have to be directly related to a student’s disability in order to deny the student FAPE. A 12-year-old girl with learning disabilities was ridiculed and ostracized at school, where her peers pushed her, refused to touch items she had touched and subjected her to daily ridicule and torment. The girl’s educational benefit was “adversely affected” and that the bullying had reached a level where her learning opportunities were substantially restricted in order to support a claim that she had been denied FAPE.

Districts Must Respond Appropriately to Incidents of Bullying

Dear Colleague Letter, 55 IDELR 174 (OCR 2010). Districts have a duty to respond to bullying when disability-based peer harassment creates a “hostile environment”. A hostile environment exists when the bullying is sufficiently severe, pervasive, or persistent so as to interfere with, or limit, a student’s ability to participate in, or benefit from, the services, activities, or opportunities offered by a school.

S.S. v. Eastern Kentucky University, 50 IDELR 91 (6th Cir. 2008) rehearing denied, No. 06-6165 110 LRP 62749 (6th Cir. 2008). A district can defend against a deliberate indifference change brought under the ADA and Section 504 by showing that it appropriately responded to all incidents of bullying.

Off-Campus Bullying and Cyber-Bullying

Kowalski v. Berkeley County Schools, 111 LRP 51060 (4th Cir. 2011). A high school girl created a fake web page on MySpace with the heading “S.A.S.H.” The acronym S.A.S.H. stood for “Students Against Shay’s Herpes,” referring to another student. On this page, at least two dozen students posted comments referring to the targeted girl. This discussion continued into the school environment, allegedly inflicting pain and embarrassment on the targeted girl. The Court of Appeals held that the district did not violate a student’s right to free speech by suspending her for creating the web page off-campus and with her personal computer.

Layshock v. Hermitage School District, ___F.3d___(3d Cir. 2011). The Court of Appeals held that the school district violated a student’s First Amendment right to freedom of speech by suspending him for creating a MySpace page on his home computer that parodied the school principal. When the principal discovered who had created the web page, he suspended him and placed him at the Alternative School for the remainder of the school year, where he was banned from attending school activities and was barred from participating in graduation exercises.

Special Ed Teacher May Be Personally Liable for Money Damages Under Section 1983 For

Imposing “Conscience-Shocking” Discipline

Sagan v. Sumner County Board of Education, 726 F. Supp. 2d 868, 54 IDELR 280 (M.D. TN 2010). Claims against a special education teacher for money damages may proceed to trial. The parents of an elementary student with Down Syndrome alleged that the teacher disciplined their daughter by placing “something sharp” under the child’s fingernails. The court held that this action, if proven, could amount to a “brutal and inhumane abuse of the teacher’s official power, literally shocking to the conscience.”

Parents May Seek Money Damages for Alleged Assault and Battery and False Imprisonment of a

Child with Disabilities

Sabaski v. Wilson County Board of Education. 55 IDELR 291 (Tenn.Ct.App. 2010). Parents of a girl with disabilities sued the school district for assault and battery and false imprisonment, seeking money damages for pain and suffering and for the cost of homeschooling the girl. The parents claimed that their daughter was improperly placed in a “quiet room” when she refused to comply with her teachers’ instructions. When the girl resisted, she was placed into a “take” position by staff, and subsequently was arrested, handcuffed, and taken to jail where she was charged with assault.

Guardians Seek Damages Related to a Medically Fragile Student’s Death

Lilly v. Metropolitan Gov’t. of Nashville and Davidson County. 55 IDELR 230 (Tenn.Ct.App. 2010). Appellate court refuses to dismiss claims by medically fragile guardians alleging that his death was the result of negligent actions on behalf of school personnel. The guardians allege that the child’s death was precipitated by school staff moving the student from lying on his side to his back in order to perform CPR.

Band Director Calls Students “Idiots”

Covey v. Lexington Public Schools, 55 IDELR 256 (W.D. Okla. 2010) Three special education students sued the school district seeking money damages based on their alleged abuse by a band director. The students alleged that the band director routinely and publicly referred to them as “idiots” in front of classmates, and imposed military-style discipline, forcing the students to run laps and perform sit-ups in front of the class despite knowledge of their disabilities. One of the students suffers from spondylothesis, a severe spinal impairment, and one other has ADD. The suit alleged that school district officials were aware of, and condoned, the band director’s actions. The court refused to dismiss the students’ claims and allowed them to proceed with their suit for negligence against administrators and board members.

Interesting Cases

Marshall Joint Sch. Dist. No. 2 c. C.D., 54 IDELR 307 (7th Cir. 2010). A physician cannot simply prescribe special education rather, the [IDEA] dictates a full review by an IEP team, Judge Manion wrote.

M.C.E. v. of Education of Frederick County, 57 IDELR 44 (D. Maryland 2011). The court explained that a district is free to research various placement options before an IEP meeting and consider whether they might be appropriate for the student. Such preparation amounts to predetermination only if the district makes a final placement decision before the meeting and refuses to consider the parent’s input.

WHO DO WE SERVE??

In your groups – Name as many disability categories as you can come up with. They may be State or Federally recognized disabilities.

SPED Students – TOTAL 1,124(As of 6/19/2012)

Autism - 52 Developmental Delay - 80 Emotional Disturbance - 16 Functional Delay - 42 Hearing Impairments - 11 Intellectually Disabilities - 49 Intellectually Gifted - 58 Language Impairments - 132 Multiple Disabilities - 6

Orthopedic Impairments - 12 Other- Health Impaired - 92 Specific Learning Disability -

320 Speech Impairments - 228 Traumatic Brain Injury - 6 Visual Impairments – 6 Preschool not yet 3 – 14

Which two disabilities are State Recognized but not Federally Recognized Disabilities? How does this directly effect you?

Sample IEP

IEP Hotspots - Handout

Special Rules for Discipline

Whenever possible, try to find alternatives to out-of-school suspension or expulsion.

Use in-school suspension carefully, and do not create a “change of placement” without conducting an IEP review.

Do not use the juvenile court system as a way to circumvent the disciplinary rules of the IDEA.

If a sped student uses a weapon to harm other students or staff member, CALL THE POLICE!

Special Rules for Discipline

Remember that sometimes it is better to risk a discipline challenge than to allow a special education student to harm themselves or others.

Utilize the School Resource Officer ONLY when a SPED student is posing a risk of harm to self or others, and NEVER for routine classroom management problems.

Plan for disciplinary consequences by writing these into students’ Behavior Intervention Plans (BIPs) with the parents’ participation and consent.

Attempt interventions and placements within the regular school setting before you recommend placement of a sped student inan alternative school program.

Keena InmanDirector of Special

Education931-484-3301

inmank@k12tn.net