Special Education Law Blog

Service Dog In East Meadow, N.Y. Defeated in Court

This post is a followup to a series of earlier blogs regarding the dispute between the family of a child with special needs and the East Meadow School District in New York over allowing the student to have his service dog in school. The family wanted to have their son's service dog attend school with him and the school objected because of health and safety issues. The parents sought immediate relief in the form of an injunction--a court order mandating that the dog be immediately allowed into school. The District Court denied the injunction and now the Second Circuit Court of Appeals has affirmed the lower court's ruling. So for now the parents are left with due process to get an order to have the dog in school.

Here Is An Issue the Candidates Need to Talk About

The Federal government's employment of people with disabilities is at an all time low according to a Washington Post story. Unemployment generally of people with disabilities is at very high levels of 30% or greater. IDEIA is supposed to produce outcomes that focus on economic self-sufficiency, ability to live in the community and employment. None of the candidates are talking about these issues and a review of their websites shows that this vital issue is not on the rader screen. We need to get it on the radar and insist that questions are asked at debates, town hall meetings and other forums.

Burden of Proof Proposed to be Put Back on Schools in New Jersey

The New Jersey legislature is considering a bill that would effectively reverse the effect of Shaffer. This law if passed could serve as a ready model for other states to follow to once again put the burden of proof on school districts in due process cases. Apparently, in New Jersey some districts are not even willing to negotiate with parents since Shaffer. While I have not seen districts to be that brazen as a result of Shaffer, I have seen in many instances an increased level of arrogance and "entitlement" that they have an exclusive claim to wisdom at IEP meetings.

Rolling back precedents like Shaffer and Arlington (expert's fees to prevailing parents), as proposed in the IDEA Fairness Restoration Act (see discussion below) would have both a legal and psychological effect at IEP meetings and at hearings. I will continue to monitor the progress of this state law.

Time to Reverse Shaffer and Arlington Central: IDEA Fairness Restoration Act

COPAA, one of the leading legal advocacy organization that focuses on special education rights is organizing letter writing parties and a campaign generally to overturn the Supreme Court's decisions in Shaffer (burden of proof on parents in due process) and Arlington Central (no expert's fees to parents even when they prevail in due process). Both of these decisions can be overturned with Congressional action to amend IDEIA to expressly shift the burden of proof back to the schools and to allow recovery of expert's fees to prevailing parents. Congressional action will depend upon parents, grandparents, friends, relatives and others who care about these issues to write, fax and place calls to their Senators and Congresspersons. The following is an open letter from COPAA regarding the need for everyone to contact Congress to support the IDEA Fairness Restoration Act. Download idea_fairness_restoration_act_final.pdf which has just been introduced in Congress. This bill would overturn the Arlington Central decision and again allow for recovery of expert's fees when parents prevail in a due process case.

529-style Accounts for the Non-College Bound

There is a bill pending in Congress to allow the formation of tax deferred accounts similar to 529 accounts for the college bound, but these accounts are to address the day to day life needs of individuals with disabilities who are not college bound. They are are know as FSAID accounts.Download fsaid_fast_facts.pdf .

Among the key elements of these proposed plans:

• Allow for rollovers from other accounts;
• Individuals qualify for the plans if they already meet the requirements for SSI;
• Income from the plan will not disqualify an individual from other government benefits;
• Capped at $500,000 (but as with many such programs that cap usually rises over time).

The plan can be used for rent, medical expenses, housing, job training among other relevant expenses.  It is great way to improve the outcomes and quality of life for people with disabilities without jeopardizing other benefits. This legislation is something that we should all be writing our Senators and Congressperson to formally endorse and push through to law.

New Addition to the Firm

I am delighted to announce that Amanda Windom has joined my firm. She is a former manager of a day care center and a parent of child with special needs. She brings a great deal of energy to the firm and will be assisting me on cases, advocating at meetings and as can be seen above, writing wonderfully new blog posts.

Here is the Other Side of the Autism-Mercury Debate-Post #7

As many parents with children with autism know, a case is currently pending before the U.S. Court of Claims to adjudicate the causality between mercury and autism. This case may go on for years. Here is a science blog that presents the counter point, that mercury does not cause autism. Warning this material may be hard to read but it is important to understand the science which opposes the linkage between mercury and autism.

Students with Special Needs Are Wilted Lettuce and Rotten Tomatoes ? by Daunna Minnich

I have not found much time to post blogs  recently because of IEP season and my impending office move.  My electronic friend and loyal reader and commentator on this blogsite, Daunna Minnich, has come to my rescue with the following blog. She puts a big spotlight on another example of school people publicly sharing  their real feelings about students with special needs, and the truth is not pretty.

Daunna Minnich is a guest author for the blog and a special education advocate in Palo Alto, California.  A former teacher, she is mother of two teenagers with special needs.  She derives a lot of satisfaction from helping parents find their way through the special education maze via an online education forum, which she helps moderate for the Juvenile Bipolar Research Foundation and via a hotline sponsored by the Community Advisory Committee (CAC) for Special Education in her school district.  Deeply committed to the work of the CAC, which she chaired for three years, Daunna enjoys advocating directly with school board members and administrators, writing articles for the CAC newsletter and organizing monthly parent education programs.  She never has enough time for all the ideas that pop into her head.

NYC Whisteblower Law Passed Will Face Veto

New York City passed an ordinance that would offer legal protections to school staff if they whistle blow on illegal practices in schools. However, Mayor Bloomberg has indicated that he will veto this law claiming that it would give teachers and other staff a tool to hold over administrative staff.

It would seem a simple matter of legislative draftsmenship to either not allow any protections if the charges have no reasonable basis, or to build in other legal penalties if the law was abused. There are other whistle blower acts that could be used as a model. 

Under the mayor's analysis, the best way to improve schools would be to keep everything in-house not subject to legal outside scrutiny. So much for transparency in governance and Justice Brandeis' dicta that "Sunshine is the best disinfectant." Perhaps as one reader who commented on a earlier post on this topic, whistleblowing protection will become a matter of Federal law; it certainly is needed.

New York City Law Would Protect Whistleblowers

The City Council of New York is considering an ordinance which would protect teachers and other personnel from firing or harassment if they blow the whistle on illegal activities in school. The fact that such legal protections are needed is a sad comment in itself. The reality is that I have seen directly or indirectly school staff who were punished or fired for doing that which is right for a child but against the system. The legal protections for school staff can be very lacking so laws like this are in fact quite necessary. Maybe after this ordinance takes effect and other cities follow suit, it will be ok to "take a position against the family."