Disability Rights Consortium: Special Education Update

Disability Rights Consortium: Special Education Update


>>BARRY T.: WELCOME EVERYBODY
THIS IS THE DISABILITY RIGHTS CONSORTIUM. WELCOME THOSE IN
THE ROOM. WE’RE ALSO PARTICIPATING — HAVE PEOPLE
PARTICIPATING BY PHONE AND WE ALSO HAVE FOLKS VIA WEBCAM.
WEBCAST. SO WE’RE SORT OF ON ALL CYLINDERS OF TECHNOLOGY
TODAY. DO REMEMBER, THOUGH, AS YOU MAKE COMMENTS AND QUESTIONS
THAT THIS IS SOMETHING THAT’S GOING OUT TO THE WORLD, SO KEEP
THAT IN MIND AS YOU SAY WHATEVER YOU WANT TO SAY.
TODAY WE’RE REALLY FORTUNATE TO HAVE SORT OF THE PREMIERE
SCHOLAR I THINK IN SPECIAL EDUCATION LAW, MARK WEBER, WHO’S
A PROFESSOR AT DEPAUL. I ALWAYS SAY HE LITERALLY WROTE
THE BOOK ON SPECIAL EDUCATION. AND I ACTUALLY HAVE A VISUAL AID
THIS YEAR. (LAUGHTER)
>>BARRY T.: HOT OFF THE PRESSES IS MARC’S SPECIAL
EDUCATION LAW AND EDUCATION STREET ‘TIS. HE HAS GIVEN THIS
TO EQUIP FOR EQUALITY TO USE AS THESE ISSUES COME UP. INK THAT
YOU VERY MUCH, MARC. AND I’M NOT GOING TO TAKE ANY MORE OF
HIS TIME. I’M GOING TO LET HIM TAKE IT FROM HERE. AND THANKS VERY MUCH FOR BEING HERE TODAY.
>>MARK WEBER: THANKS VERY MUCH, BARRY. I’M GLAD TO HAVE
ALL OF FOLKS HERE. IT’S AN HONOR TO BE HERE. THE PLAN IS
TO GO THROUGH RECENT DEVELOPMENTS IN SPECIAL ED LAW.
MOSTLY CASES WITH A FEW OTHER THINGS LIKE DEPARTMENT OF ED
INTERPRETATIONS, AND A COUPLE OF OFFICE FOR CIVIL RIGHTS
LETTERS, DOMINATING BY THE CASES. I SHOULD MENTION I WILL
BE PAUSING EVERY NOW AND AGAIN IF FOLKS HAVE QUESTIONS OR
CONCERNS MUCH BUT FRANKLY YOU KNOW, IF YOU’RE IN THE ROOM AND
YOU JUST WANT TO RAISE YOUR HAND OR SOMETHING, THAT’S JUST FINE.
IT’S NOT THAT BIG A GROUP OR THAT FORMAL A PRESENTATION THAT
IT REALLY WOULD CREATE PROBLEMS FOR FOLKS TO JUST JUMP IN WHEN
IT’S APPROPRIATE. THAT WOULD BE JUST FINE. I SHOULD PROBABLY
SAY ALSO A LITTLE BIT ABOUT WHAT I’M GOING TO COVER IN TERMS OF
THE VARIOUS NEW DEVELOPMENTS. SO WHAT I TRIED TO DO IS TAKE
THINGS BACK THROUGH CALENDAR YEAR 2016 AND 2017. AND THEN
COVER PRETTY MUCH ALL OF THE CASES THAT ARE LOCAL. SO
NORTHERN DISTRICT, SOUTHERN DISTRICT OF ILLINOIS, 7TH
CIRCUIT, U.S. SUPREME COURT OF COURSE. ANYTHING OUT OF THE
ILLINOIS COURTS. THERE REALLY WASN’T
MUCH OF INTEREST IN SPECIAL ED LAW OUT OF THE ILLINOIS COURTS.
I AM ACTUALLY THROWING IN A COUPLE OF HEARING OFFICER
DECISIONS WHICH I THINK ARE OF REAL SIGNIFICANCE FROM THE
COURSE OF THE LAST YEAR. AND I TRY TO BE REALLY
COMPREHENSIVE ABOUT THAT LOCAL STUFF BUT THEN I’M THROWING IN A
FAIR NUMBER OF OUT OF STATE OR OUT OF JURISDICTION TYPE
DEVELOPMENTS. AND FOR THAT I’VE BEEN REALLY HIGHLY SELECTIVE.
PROBABLY WITH A BIT OF A BIAS IN FAVOR OF LOOKING TOWARDS CASES
WHERE THE PARENTS OR THE KID PREVAILED IN A CLAIM. SUCCESS/FAILURE RATIO AS BEING
INDICATIVE OF WHAT REALLY HAPPENS IN THE REAL WORLD. YOU
KNOW, PARENTS AND — AND KIDS PROBABLY DON’T WIN A MAJORITY OF
CASES. ALTHOUGH IT’S REALLY HARD TO TELL BECAUSE YOU NEVER
KNOW WHAT GETS REPORTED, WHAT DOESN’T, WHAT HAPPENS WITH
SETTLEMENT, WHAT ELSE. BUT IT’S TRUE THAT A LOT OF THE CASES
WHERE THE PARENTS LOSE TEND TO LOOK A LOT ALIKE. AND THE MORE
NEWS WORTHY CASES TEND TO BE THE ONES WHERE THE PARENTS PREVAIL. SO I TEND TO EMPHASIZE THOSE
RATHER THAN ANYTHING ELSE. I THINK PROBABLY JUST TO JUMP INTO
IT, WHAT WE SHOULD TALK ABOUT ARE THE ELEPHANTS IN THE ROOM,
YOU KNOW, THE TWO BIG CASES OUT OF THE SUPREME COURT THIS TERM.
ON SPECIAL ED LAW. FIRST ONE IS THE FRYE CASE, WHICH CAME DOWN
IN FEBRUARY. THIS IS THE BIG CASE ABOUT ADMINISTRATIVE
EXHAUSTION. JUSTICE CAGAN NEARLY UNANIMOUS COURT. THERE’S
A SEPARATE OPINION BY ALITO AND THOMAS. THE CASE INVOLVED A
KID WITH CEREBRAL PALSY, HAS WONDER THE SERVICE DOG, DOG
NAMED WONDER, WHO ASSISTS CONSIDERABLY ON EVERY DAY SORT
OF TASKS, LIKE PICKS THINGS UP, CALMING THE KID DOWN, ANY NUMBER
OF THINGS THAT WOULD BE OF ASSISTANCE TO A KID WITH A
FAIRLY SEVERE CEREBRAL PALSY CONDITION.
THE SCHOOL WAS HIGHLY RESISTANT TO HAVING THE KID BRING THE DOG
TO SCHOOL. AND ALLOW THE DOG AT ONE POINT FOR A TRIAL PERIOD,
BUT MOST OBJECTED TO HAVING THE DOG, SAID KNOW WE’LL GIVE YOU A
HUMAN AIDE INSTEAD SO YOU WON’T NEED THE DOG FOR THAT. KID AND
PARENTS ON THE OTHER HAND WERE SAYING NO, FOR ONE THING THE KID
USES THIS DOG ALL THE TIME ELSEWHERE, AND IT CERTAINLY
WOULD REINFORCE THE USE OF THE DOG TO HAVE THE DOG AVAILABLE AT
SCHOOL. BUT ALSO, WE DON’T REALLY WANT RELIANCE ON OTHER
HUMAN BEINGS, WHAT WE WANT IS SELF DIRECTION OR HEAR DIRECTION
TO THE SERVICE ANIMAL. THAT’S REALLY WHAT OUR GOAL IS.
ULTIMATELY THE PARENTS WIND UP FILING AN OFFICE FOR CIVIL
RIGHTS COMPLAINT WHICH DECIDES IN FAVORS OF THE PARENTS, BUT
AFTER THAT BEGINS TO BE IMPLEMENTED, THE PARENTS ARE SO
CONCERNED THAT THERE WILL BE RESISTANCE ON THE PART OF THE
SCHOOL THAT THEY ENROLL THE KID IN ANOTHER DISTRICT. WHICH IT
TURNS OUT ACTUALLY WELCOMES THE KID.
AND THE DOG. AND DOESN’T CREATE ANY PROBLEMS THERE ON. BUT
THEY ULTIMATELY THEN SUE FOR DAMAGES UNDER TITLE II OF THE
AIDE AIDE AND SECTION 504 FOR THE TRE VAILS THAT THEY WENT
THROUGH ALL OF THIS PERIOD OF TIME. (.
6TH CIRCUIT SAYS, NO. YOU CAN’T DO THAT.
IF YOU WANT TO BRING A CLAIM LIKE THIS, YOU HAVE TO EXHAUST
ADMINISTRATIVE REMEDIES. THE PARENTS PUSH BACK AND SAY, NO WE
DON’T. AND SO IT GOES UP TO THE U.S. SUPREME COURT. SUPREME
COURT VACATES AND REMANDS. AND IT’S A FAIRLY MAJOR KIND OF
THING IN THAT REGARD. BECAUSE IT REALLY IS THE FIRST CASE THAT
THE U.S. SUPREME COURT HAS HAD ON THE EXHAUSTION REQUIREMENT IN
SPECIAL ED CASES FOR ADA SECTION 504 CLAIMS.
THE KEY PROVISION HERE IS WHAT’S NOW 1415 L OF TITLE 20,
OVERRULED AN EARLIER CASE FROM THE ’80S, CALLED SMITH V
ROBINSON. AND SAID IT’S OKAY TO BRING CLAIMS UNDER SECTION 504,
THE ADA, THE CONSTITUTION, WHATEVER, BUT IF YOU’RE SEEKING
RELIEF THAT’S AVAILABLE UNDER IDEA, YOU HAVE TO EXHAUST THE
SAME EXTENT THAT YOU WOULD IN IDEA CLAIM. AND OF COURSE
THAT’S THE PROVISION FOR WHICH ALL SIDES ARE ARGUING OR OVER
WHOSE INTERPRETATION ALL SIDES ARE ARGUING. JUSTICE KAGAN FOR
COURT SAID WELL, THE KEY THING ABOUT IDEA IS THAT IT GIVES A
RIGHT TO A FREE APPROPRIATE PUBLIC EDUCATION. AND WE THINK
THAT THE REMEDIES IT PROVIDES ARE FOR DENIAL OF A FREE
APPROPRIATE PUBLIC EDUCATION, SO THEREFORE IF WHAT YOU’RE
SEEKING IS A REMEDY FOR DENIAL OF A FREE APPROPRIATE PUBLIC
EDUCATION, YOU’VE GOT TO EXHAUST.
ON THE OTHER HAND, IF WHAT YOU’RE SEEKING IS SOMETHING
ELSE, A REMEDY FOR SOMETHING ELSE, THEN YOU DON’T HAVE TO
EXHAUST. SOME WAYS THAT MIGHT JUST MAKE
THE QUESTION MORE DIFFICULT RATHER THAN EASIER, BECAUSE YOU
DON’T KNOW FOR SURE WHAT’S CLAIM FOR DENIAL OF FREE APPROPRIATE
PUBLIC EDUCATION; BUT THE COURT DOES GIVE WHAT THEY DESCRIBE AS
CLUES TO TRY TO HANDLE THAT. AND THE COUPLE OF THEM THAT THEY
SEEM TO SAY WOULD BE INDICATORS OF THE CASE NOT BEING WON FOR
FREE APPROPRIATE PUBLIC EDUCATION WOULD BE IF THE SAME
KIND OF CLAIM COULD BE BROUGHT IN A NONEDUCATIONAL SETTING. SO
FOR EXAMPLE IF YOU’VE GOT A PUBLIC LIBRARY THAT DOESN’T HAVE
RAMPS, OR IF YOU’VE GOT, SAY, SOME OTHER BUILDING OR PUBLIC
SERVICE THAT DOESN’T HAVE COMMUNICATIONS AVAILABILITY,
THAT WOULD BE AN INDICATION THAT THE CASE IS ONE THAT DOESN’T
NEED TO BE EXHAUSTED IF YOU’RE MAKING THE SAME CLAIM WITH
RESPECT TO THE PUBLIC SCHOOL. SIMILARLY, AN ADULT COULD MAKE
THE SAME CLAIM. SO AGAIN, RAMPS COULD BE AN EXAMPLE, THEN
THAT’S YET ANOTHER CLUE. ON THE OTHER HAND, IF THE
PARENTS HAVE BEGUN THE ADMINISTRATIVE PROCESS THROUGH
IDEA, THE COURT SAYS, WELL, THAT’S KIND OF A NEGATIVE
INDICATORS. THE COURT DOES SAY THAT WHAT YOU

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