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Discrimination of Students with Disabilities by Charter Schools

January 26th, 2012

Our guest blogger this week is Sarah Wieselthier, a third-year law student at the Maurice A. Deane School of Law at Hofstra University and a candidate to earn her J.D. in May 2012.  Sarah serves as an Articles Editor for the Hofstra Law Review and is interested in pursuing a career in education law.  Sarah can be reached at swieselthier@gmail.com.

While charter schools are celebrated for their ability to improve student outcomes through innovative curricula and instructional approaches, many have been accused of missing the mark when it comes to educating students with disabilities.  Despite being free from the regulation and oversight thought to plague traditional public schools, charter schools are still required to comply with the Individuals with Disabilities Education Improvement Act (“IDEA”), Section 504 of the Rehabilitation Act of 1973 (“Section 504”), and the Americans with Disabilities Act (“ADA”).  However, charter schools throughout the country have been accused of violating these federal laws that protect students with special needs.  Parents of students with disabilities have asserted that certain charter schools have succumbed to the discriminatory practices of: denying enrollment to students with disabilities, counseling students with disabilities to leave their school, failing to identify and evaluate students with potential special needs, failing to implement IEP’s and provide the necessary special education and related services, and failing to discipline students with disabilities in compliance with federal law.

In most cases, the charter school has not sought to violate the laws protecting students with disabilities, but rather it does not have the resources to provide these students with appropriate special education and related services.  Charter schools face significant challenges in balancing their mission to achieve academic success through creative and flexible teaching methods against complying with rigid federal disability laws.  No matter the underlying reason, the rights afforded to students with special needs by the IDEA, Section 504, and the ADA are being violated; these students are not receiving an “appropriate” education as required by law.

No court has weighed in on what it means for a charter school to achieve the appropriate balance of complying with its mission and obeying the IDEA, Section 504, and the ADA.  The few lawsuits alleging discrimination by charter schools have ended in settlements and without a decision on the merits.  In Scaggs v. New York State Department of Education, No. 06-CV-0799 (JFB)(VV), 2007 U.S. Dist. LEXIS 35860 (E.D.N.Y. May 16, 2007), students with disabilities alleged equal protection, IDEA, Section 504, and ADA violations against charter schools in New York.  A settlement was reached in which each plaintiff individually received sums ranging from $1,000-$18,000.

A settlement was also reached in United States v. Nobel Learning Communities, Inc., 676 F. Supp. 2d 379 (E.D. Pa. 2009).  In Nobel Learning Communities, students with disabilities attending schools operated by Nobel Learning Communities (“NLC”) charter school network alleged discriminatory practices in violation of the ADA and its implementing regulations.  Specifically, it was argued that NLC engaged in the discriminatory practice of failing to enroll or dis enrolling students with disabilities from its schools.  The federal district court dismissed the allegations of discrimination at NLC’s day care, elementary, and secondary schools because there were no facts creating a reasonable inference of a discriminatory policy.  However, the cause of action against NLC’s preschools survived a motion to dismiss.  The remaining allegations were that NLC’s preschools violated the ADA and its implementing regulations by instituting a policy to exclude, remove, or otherwise discriminate against children with disabilities from NLC programs and acted on the policy by excluding, removing, or otherwise discriminating against children with disabilities.  In January 2011, the Department of Justice entered into a settlement agreement with NLC, where NLC agreed, among other things, to adopt and implement a formal non-discrimination policy, make reasonable modifications to programs and services when necessary to afford its programs and services to students with disabilities, appoint an ADA compliance officer, and pay $215,000 to the children referred to in the lawsuit.  A summary of the settlement terms can be found on the Department of Justice’s website at http://www.justice.gov/opa/pr/2011/January/11-crt-051.html.

There is currently an ongoing class action lawsuit in the Eastern District of Louisiana alleging violations of the IDEA and the ADA by both charter schools and traditional public schools in New Orleans, Louisiana.  The case is P.B. v. Pastorek, No. 2:10-cv-04049 (E.D. La. Oct. 26, 2010).  Eight of the ten named students in the class alleged discrimination and noncompliance by public charter schools.  The alleged violations include failure to identify and evaluate students with suspected disabilities, failure to provide necessary special education and accommodations, failure to implement IEPs, and failure to discipline students in compliance with the law.  The complaint survived a motion to dismiss in April 2011.  News and developments regarding the litigation can be found on the Southern Poverty Law Center’s website at http://www.splcenter.org/get-informed/case-docket/new-orleans-special-education.  If a decision is reached on the merits of this case, it would be the first time a federal court establishes a charter school’s obligations when educating students with disabilities and reconciles the tension between charter school philosophy and the federal special education and civil rights laws.

Special education will continue to be one of the key challenges facing charter schools in the future.  The rigid and rigorous standards of the IDEA, Section 504, and the ADA are in congruent with the flexible and innovative structure of charter schools, making compliance a challenge.  A decision on the merits in P.B. v. Pastorek would provide guidance to both charter schools and students with disabilities and their parents about what is required of a charter school when educating students with disabilities, clarifying how a charter school can stay true to its mission and be in compliance with the laws.

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Roles and Responsibilities of the One-to-One Aide

January 18th, 2012

If a student requires a one-to-one aide, school personnel must:

–          Consider the qualifications of the individual (i.e., teaching assistant or teacher aide) that would be necessary to meet the needs of the student (http://www.highered.nysed.gov/tcert/career/tavsta.html )

–          Establish a plan to monitor the student’s progress towards the goals to be addressed by the assignment of the one-to-one aide and the student’s continuing need for the one-to-one aide;

–          Consider a plan for progressively reducing the support provided to the student and his or her dependence on an aide over time;

–          Plan for substitutes to serve as the student’s one-to-one aide to cover staff absences in order to ensure the student receives the recommended IEP services of the one-to-one aide; and

–          Ensure that the one-to-one aide has access to a copy of the student’s IEP, has been informed of his or her responsibilities for IEP implementation for the student and has received the professional development and supervision necessary to carry out these responsibilities.

Attached are three sample forms that, when used together, will assist and guide CPSEs and CSEs in their consideration of a student’s need for a one-to-one aide:

–          One-to-One Aide Planning: Considerations and Recommendations

–          Checklist to Determine the Student’s Needs as They May Relate to the Need for a One-to-One Aide

–          Considerations for Need for a One-to-One Aide: Available Natural and Other Supports for the Student’s Schedule

Questions regarding this memorandum may be directed to the Special Education Policy Unit at (518)473-2878 or your Special Education Quality Assurance Regional Associate at one of the following Regional Offices:

Central Region                        (315) 476-5081
Eastern Region                       (518) 486-6366
Hudson Valley Region           (518) 473-1185
Long Island Region                 (631) 884-8530
New York City                         (718) 722-4544
Western Region                      (585) 344-2002
Non-district Unit                      (518) 473-1185

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Special Education Field Advisory: Guidelines for Determining a Student with a Disability’s Need for a One-to-One Aide

January 18th, 2012

The New York Statewide Coordinator for Special Education released the guidelines for determining a student with a disability’s need for a one-to-one aide to provide guidance to help Committees on Preschool Special Education (CPSEs) and Committees on Special Education (CSE’s) in determining a student with a disability’s need for a one-to-one aide.

A goal for all students with disabilities is to promote and maximize independence. CPSEs/CSEs are accountable for developing and implementing individualized education programs (IEPs) that endorse such independence. When deciding that a student needs a one-to-one aide, it should always be considered a time-limited recommendation and specific conditions/goals must be established to fade the use of the one-to-one aide.

One-to-one aides may not be used as a substitute for certified, qualified teachers for an individual student or as a substitute for an appropriately developed and implemented behavioral intervention plan or as the primary staff member responsible for implementation of a behavioral intervention plan. While a teaching assistant may assist in related instructional work, primary instruction MUST be provided to the student by a certified teacher(s). A teacher aide may assist in the implementation of a behavioral intervention plan, but may not provide instructional services to a student (http://www.highered.nysed.gov/tcert/career/tavsta.html).

To read more about the considerations for determining if a student needs a one-to-one aide, visit our blog and click here.  To read more about the Roles and Responsibilities of the One-to-One Aide, click here.

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New Laws Govern State Use of Student Records and Clarify Privacy Regulations

January 11th, 2012

New regulations became effective January 3 of this year so that states can assess education programs and how they relate to student academic progress. The Education Department of the United States stated that the amendments to the final rule of the Family Educational Rights and Privacy Act (FERPA) would help states determine if taxpayer funds are wisely invested in effective educational programs from early childhood to special education and adult education initiatives.

The new FERPA rules do allow information to be used more widely without breaking any federal privacy laws. The updated regulations clarify how student information may be disclosed, and that the data must be properly protected and only accessed when absolutely necessary. Schools must make parents aware through public notice and give them the right to opt out of directory information. Upholding student privacy helps to avoid identity theft, discrimination, and other criminal acts while balancing the need to improve the educational system.

FERPA does apply to special education students and those receiving services through the Individuals with Disabilities Education Act (IDEA). IDEA regulations work in tandem with FERPA to uphold additional protections and confidentiality concerns for children with special needs and their families. Likewise, public notice must be given regarding personal information, its storage, disclosure to outside parties, and destruction of records. The Office of Special Education Programs and the Family Policy Compliance Office, along the Education Department, work together to interpret regulations to resolve any conflicts. The privacy rights of students are protected via FERPA and IDEA to ensure that IDEA requirements are met.

Littman Krooks LLP assists families to understand the laws that govern special education and access educational resources they need for their child with special needs. Our New York City, White Plains and Fishkill special education attorneys counsel clients on improving their child’s future and empowering them to succeed. To learn more about New York special education advocacy, visit http://www.littmankrooks.com/special-education-advocacy/.

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Home Based Resources for Children Available in New York State

January 4th, 2012

Children and families who are part of communities at risk can access highly sought-after services to make a difference in their child’s life. As part of the Maternal, Infant, and Early Childhood Home Visiting (MIECHV) Program that is authorized by the Affordable Care Act, New Yorkers can connect with the home-based visiting program to have their needs assessed. Social workers, nurses, and other professionals will meet with families to see what resources are available to improve their health care, nutrition education, and developmental services.

Also included are early education programs and parenting education. Interested families can contact the New York State Department of Health, Family and Community Health division for more information. New York’s programs are in coordination with federal efforts to improve services for families and children.

An experienced special needs attorney can also assist a family with a child with special needs. From educational resources to government benefits and health care needs, a New York special needs attorney can help improve a child and family’s wellbeing. They can inform a family of all their options and plan a path for a better future.

Littman Krooks LLP assists families with state and federal benefits and comprehensive estate planning. Our New York City, White Plains and Fishkill special needs lawyers counsel clients on improving their child’s future and empowering them to succeed. To learn more, visit http://www.littmankrooks.com/special-needs-planning/.

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