IEP Transition Services

A recent letter released by the United States Department of Education spells out the necessary steps an IEP Team must take to ensure that a child with a disability receives appropriate support to transition to life after high school. The following sets forth highlights from this letter:

As soon as a child turns 16, or younger if determined appropriate by the IEP Team, the child’s IEP must include: (1) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and independent living skills (when appropriate); and (2) the transition services (including courses of study) to assist the child in reaching those goals.  Once created, the transition goals and services must be updated annually.

34 CFR § 300.43 defines transition services as “a coordinated set of activities for a child with a disability that:

  • Is designed to be within a result-oriented process that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including postsecondary education, vocational education, integrated employment (including support employment), continuing and adult education, adult services, independent living, or community participation;
  • Is based on the individual child’s needs taking into account the child’s strengths, preferences, and interests and includes-
    1. Instruction;
    2. Related services;
    3. Community experiences;
    4. The development of employment and other post-school adult living objectives; and
    5. If appropriate, acquisition of daily living skills and provisions of a functional vocational evaluation.”

While it is up to the child’s IEP Team to determine the special education and related services that are needed to meet the child’s unique needs in order for the child to receive a free appropriate public education (FAPE), the team must consider the child’s preferences and interests when developing postsecondary goals and transition services.

The IDEA requires that the public agency invite a transition-age child to attend his or her IEP meeting if the purpose of the meeting will be the consideration of the child’s postsecondary goals and transition services needed to assist the child in reaching those goals. 34 CFR § 300.321(b)(1).  If the child does not attend the IEP meeting, the public agency must take other steps to ensure that the child’s preferences and interests are considered.  34 CFR § 300.321(b)(2)*.

Because it is natural for transition-aged youth to grow and develop different interests or changed preferences, the IEP Team should review and update the child’s postsecondary goals and transition services annually to reflect new or different activities  necessary to provide the child a FAPE.

*This requirement only applies in case of post-secondary goals and transition services; it is not mandatory with respect to other IEP goals and special education and related services.

Supreme Court Decision Raises the Bar for Students with Disabilities

In a landmark case decided on March 22, 2017, the United States Supreme Court set a higher standard for how public schools must educate students with disabilities. Previously, schools were held to a bare minimum standard; as long as a student with a disability received some educational benefit each year, his or her school met the federal requirement to provide a “free appropriate public education” under the Individuals with Disabilities Education Act.

The Supreme Court overruled the bare minimum standard holding that federal statute requires an educational program to be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

The Court did not elaborate on what “appropriate” progress should look like from case to case, but did state that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,” and that “deference [should be] based on the application of expertise of judgment by school authorities.” If questioned, those school authorities must be able to offer a “cogent and responsive explanation for their decisions that shows the IEP is reasonable calculated to enable the child to make progress appropriate in light of his circumstances.”

Essentially, the decision requires school authorities to raise the expectations of students with disabilities. It no longer sufficient to point to one or two things a student is doing well, but necessitates an assessment of the overall substantive progress a child is making.

Ultimately, this increases a parent’s ability to hold districts accountable for ensuring that their child receives a meaningful education uniquely tailored to his or her unique needs.  Schools can no longer get away with doing the bare minimum.

For more information on the Endrew F. v. Douglas County School District Supreme Court decision, please follow this link.

Dear Colleague Letter on Restraint and Seclusion

Data collected by the Department’s Civil Rights Data Collection during the 2013-2014 school year shows that students with disabilities were more likely to experience seclusion and restraint than their non-disabled peers. In response to seclusion and restraint practices that are commonly used on children who have disabilities, the Office for Civil Rights (OCR) recently released a letter and a series of questions and answers about the use of these practices. OCR warns that schools who participate in restraint and seclusion practices may be violating Section 504 of the Rehabilitation Act of 1973.

OCR explains that “a student’s behavioral challenges, such as those that lead to an emergency situation in which a school believes restraint or seclusion is a justified response could be a sign that the student actually has a disability and needs special education or related aids and services to receive a FAPE [Free Appropriate Public Education].” In such a scenario, OCR explains that the appropriate response by a school district would be to evaluate the student for special education services.

Even a one-time restraint or seclusion experience can have a traumatic impact on a student. As a result of that experience a student may develop new academic or behavioral difficulties, which could result in a denial of a FAPE for that student. OCR lists “impaired concentration or attention in class” and “increased absences” as difficulties that could arise from restraint or seclusion practices. If a student develops severe behaviors and their school fails to address them, that student would be denied a FAPE.

Additionally, a student who has a disability could be denied a FAPE if they do not receive educational instruction or services when they are being secluded or restrained. A student may be denied a FAPE if they are continually secluded and restrained and the school is failing to comply with “the Section 504 team’s decision about the regular or special education, related aids and services, or supplemental services and modifications that the student needs, or the appropriate setting to receive those services.”

If your child is experiencing any of these issues, please contact the School Law Center.

Click here to access the Dear Colleague Letter: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201612-504-restraint-seclusion-ps.pdf

Higher Rates of Arrests for African American Students

A recent study published in Education Week and on the website for the National School Boards Association concludes that African American students are more likely to be arrested at school. The study, conducted by Evie Blad and Alex Harwin, shows that African American students are arrested at disproportionately high levels in 43 states and the District of Columbia. In 28 of those states, the percentage of arrested African American students is 10 percent higher than their percentage of enrollment. In 10 of those states the disparity between the number of arrests and enrollment is over 20 percent.

In the 2013-2014 school year, roughly 8,000 schools reported a total of 70,000 arrests. Out of all of the racial groups, the study found that African American males face the greatest risk of being arrested at school. They are three times more likely to be arrested at school than their white male peers. African American females are also more likely to be arrested than their white male peers. Although African American females are not arrested at the same rate as African American males, they are still 1.5 times more likely to be arrested than white males.

There is still disagreement about why African American students are arrested at a disproportionately high rate, but zero tolerance policies and school resource officers are often cited as reasons for the disparity. Civil rights advocates are concerned that school resource officers can negatively impact other parts of student learning that data can’t quantify. For example, civil rights groups are worried about the “interactions between officers and students in hallways, at metal detectors, at school entrances, and in searches of students’ bags and lockers.” Furthermore, advocates argue that funding that is currently being used for school resource officers would be more beneficial if used towards school counselors or other student support services.  Civil rights advocates continue to push for a restructuring of zero tolerance policies and the role of school resource officers to decrease arrests at school.

Access the full article here: https://www.nsba.org/legalclips/2017/01/27/study-finds-african-american-students-are-more-likely-be-arrested-school

New Guidelines for SROs Mandated by Federal Funding

Due to concerns about the violations of students’ civil rights and the overuse of student arrests the U.S. Departments of Education and Justice created new resources about the hiring and training of school resource officers (SROs). These resources include guidelines that emphasize best practices for local schools and state policymakers. SROs that are hired through U.S. Department of Justice grants must follow these requirements in order to maintain funding. Federal grants are used by local law enforcement agencies around the country to hire between 100 and 150 school resource officers a year. The grants are administered on a three year cycle which means that roughly 450 positions are funded by the grant at any given time.

The rubric outlines five common-sense action steps that can help ensure that SROs are incorporated responsibly into school learning environments.

  1. Create sustainable partnerships and formalize memoranda of understandings (MOUs) among school districts, local law enforcement agencies, juvenile justice entities, and civil rights and community stakeholders.
  2. Ensure that MOUs meet constitutional and statutory civil rights requirements.
  3. Recruit and hire effective SROs and school personnel.
  4. Keep your SROs and school personnel well trained.
  5. Continually evaluate SROs and school personnel, and recognize good performance.

Furthermore, there is a separate document for local and state policy makers, which includes examples of state statutes that require schools to take such actions. For example, Broward County, Florida encourages alternatives to arrest for minor, non-violent misdemeanors, and clarifies that administrators are primarily responsible for discipline.

The U.S. Department of Justice hopes these resources will serve as a model for all U.S. public schools that have a SRO and decrease the number of civil rights violations and school related arrests.

LGBT Students Face Higher Rates of Depression, Bullying, and Violence

A recent study conducted by the Centers for Disease Control and Prevention (CDC) found that gay, lesbian, and bisexual teenagers face greater levels of violence than their straight peers. Out of the 1.3 million students across the country who identify as LGBT more than 40% of those students have considered committing suicide in the last year. Furthermore, almost 30% of those students actually attempted suicide. The percentage of straight students who contemplate and attempt suicide is significantly lower with 15% of straight students considering suicide and 6% attempting it. The report also found that bisexual and gay students are twice as likely as their straight peers to be physically assaulted, sexually assaulted, threatened or injured with a weapon on school property, and bullied. As a result, more than 10% of LGBT students have skipped school because they did not feel safe.

The director of CDC’s National Center for Injury Prevention and Control suggested that LGBT students could be at a higher risk for violence, “due to a lack of support in addition to not being looked upon as masculine or feminine enough.” As a result of this study, the CDC promises to increase the number of mental health services available to LGBT students by creating additional intervention and prevention programs.

Access the entire article here:  http://legalclips.nsba.org/2016/08/17/cdc-study-reports-that-lgbt-students-subjected-to-greater-levels-of-violence-than-straight-peers/

Recent Victory in Child Find and Private School Reimbursement Case

In a recent decision, a Minnesota administrative law judge held that by failing to affirmatively seek out and identify a student with disabilities at a private school, a Minnesota school district denied the student a free appropriate public education (“FAPE”) entitled to her by federal and state law. As a result of the District’s failure to identify the student and provide her with additional services, the student struggled academically and emotionally and made no meaningful progress throughout her elementary school years.  Due to the District’s indifference to the student’s needs, the student’s parents were forced to enroll the student in a private school specifically tailored for students with learning disabilities for the 2015-2016 school year. At the private school, the student has finally received the services she had been denied for several years and has made meaningful academic and emotional progress. The ALJ held that due to the District’s denial of a FAPE and dearth of services provided to the student, the District must reimburse the student’s parents for private school tuition for the past year, and must also maintain the student’s private school placement for the next two school years.

The School Law Center represented the student and her parents in their special education and private school tuition reimbursement claims against the District. This decision enforces school districts’ obligations to affirmatively seek out and identify all students with disabilities and provide them with a FAPE, and holds districts that fail to do so accountable for their inaction. This decision is a win for all students with disabilities in Minnesota and reinforces the School Law Center’s hard work and mission!

The full decision is available here: Child Find Decision

Supreme Court Win in High School Expulsion Case

On August 3rd, 2016, the Minnesota Supreme Court issued a favorable judgment in School Law Center attorney, Andrea Jepsen’s, high school expulsion case that had been ongoing the past two years. The case involved a high school student who was expelled after police found a small pocket knife in her purse in her locker after conducting a random search. After the knife was found, the student admitted that she had been using the pocket knife earlier to cut twine from hay bales at her boyfriend’s family farm and had forgotten that she’d put the knife in her purse when she came to school. In response, the school decided to expel her, reasoning that her unwitting possession of a pocketknife amounted to “[w]illful conduct that endangers the student, others, or property of the school” in violation of the District’s weapons policy and a “willful violation” Minnesota statute.  The Commissioner of the Department of Education affirmed the expulsion, which the student appealed at the Minnesota Court of Appeals. The appellate court looked no further than the plain language of the statute and found that the student’s conduct did not amount to a willful violation and reversed her expulsion. The District appealed the decision and the Supreme Court heard oral arguments on February 29th, 2016. The Supreme Court issued its opinion on August 3rd, 2016 affirming the Court of Appeals’ decision that a willful violation must be a “deliberate, conscious, and intentional choice to violate a reasonable school policy,” which the facts of this case simply do not support.

Although this case was decided after this student graduated high school, Andrea Jepsen noted after her win that this case addressed “a critical issue affecting students in Minnesota, including particularly students of color and students with disabilities, who make up the bulk of school dismissals. You’ll see from the order that we won in every respect.  It is a great day for our kids!”

The full opinion is available here: MN Supreme Court Expulsion Ruling.

New Dear Colleague Letter from OCR

On October 21st, 2015, the US Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter (DCL) explaining that the bullying of a student with a disability on any basis can result in a denial of FAPE under Section 504 and schools’ subsequent obligations to remedy these situations.  The DCL also discusses, in the absence of concrete rules and regulations, how the OCR scrutinizes these violations and what they might require of schools upon discovery of disability discrimination and determination of a FAPE violation.

First, the DCL reiterates the federal protections that students with disabilities are extended under Section 504 and Title II.  Essentially, these protections prohibit disability discrimination and ensure that students with disabilities receive FAPE.

The DCL also outlines schools’ obligations to address disability-based harassment.  Upon discovery of bullying based on a student’s disability, a school must take prompt and appropriate action to end the bullying, create a safe environment, and address FAPE-related effects of the bullying.  If the bullying is based on a student’s disability and school officials are aware of it and take no action, OCR would likely find a disability-based harassment violation under Title II and Section 504.

Further, the OSERS 2013 DCL expanded this obligation to require schools to remedy FAPE denial for students with disabilities receiving IDEA FAPE services or Section 504 FAPE services, regardless of why that student is being bullied.  If a student with disabilities is being bullied on any basis, the school has an obligation to convene the IEP or Section 504 teams to determine whether the student’s needs have changed and how to appropriately and effectively serve these changes and, if appropriate, remedy the denial of FAPE.  However, a disability-based harassment violation does not necessarily equate a denial of FAPE if the bullied student is not eligible to receive IDEA or Section 504 FAPE services.

The DCL also discusses how OCR analyzes complaints involving bullying of students with disabilities.  Depending on the nature of the complaint, OCR may investigate the possibility of a disability-based harassment violation and/or a FAPE violation.

OCR begins its investigation of disability-based harassment with consideration of four preliminary questions: (1) Was the student bullied based on the student’s disability? (2) Did the bullying create a hostile environment? (3) Did the school know or should it have known of the bullying? (4) Did the school fail to put an end to the bullying and remedy its effects?  If the answer to each of the above questions is yes, OCR would find a violation under Section 504 and would determine whether an investigation into a denial of FAPE is necessary.

Depending on its determination of a disability-based harassment violation, OCR may decide to investigate if a bullied student receiving IDEA FAPE or Section 504 FAPE services was also denied FAPE.  OCR first considers if the school knew or should have knowns that the bullying affected the student’s receipt of FAPE services.  If the answer is yes, OCR further considers if the school took prompt and appropriate action to determine whether the student’s needs had changed and, if they had, if the school made the necessary adjustments to the student’s IEP or Section 504 plan.  If the answer is no, OCR would likely determine a denial of FAPE.

The DCL concludes with a number of hypothetical situations to illustrate what type of behavior would constitute a disability-based harassment violation and result in a FAPE violation.  Depending on the action, or inaction, of school officials, OCR determines whether or not there has been a violation in each of the scenarios.  In the hypotheticals where a violation was determined, the DCL lists several possible remedies that OCR would require of the district upon enforcement of a resolution agreement.  These requirements could include, but are not limited to, offering counseling services to the student, implementing a school-wide bullying prevention strategy and program, and training staff and parent volunteers on anti-bullying policies.

This DCL emphasizes OCR’s commitment to ensuring that students with disabilities who are bullied continue to receive FAPE.  The DCL outlines schools’ obligations to address disability-based harassment under Section 504 and Title II and explains that schools will be held accountable to OCR if they fail to promptly and appropriately do so.

Neighborhood Schools or Integrated Schools

The Star Tribune published an article on Sunday, November 1, that examined the state of integration in schools in Minnesota, with particular focus on Minneapolis and St. Paul schools. St. Paul has almost 80 percent students of color. Minneapolis has concentrations of students of color amounting to 19 schools with 80 percent of students of color.  This is a change in recent decades as a result of a shift to neighborhood schools.

The full article is available here.