The Law Center's mission under this agenda is to end discrimination and abuse against persons with disabilities and secure their inclusion and full participation in all aspects of mainstream society.
There are four components to this project including: education, community services, the criminal justice system and advancing the rights of persons with disabilities internationally.
education
community services
criminal justice system
international project
The Law Center provides legal representation to parents of students with disabilities and
technical assistance to attorneys and advocacy organizations around the country. It participates in
policy formation through reports and counseling to advocacy organizations. In addition, it
provides education via parent training and the attendance and participation of its lawyers at
programs and seminars on disabilities matters.
Our experienced lawyers and staff work with families of children with a variety of disabilities, including intellectual disabilities, autism, physical disabilities, learning disabilities, students who have hearing or visual impairments, and emotional disorders. We advocate for appropriate programs of education, including inclusive settings, private schools, assistive technology, functional behavioral assessments and behavioral programming, better IEPs and ensuring implementation of IEPs. We are sensitive to cultural issues, and recognize the long-standing difficulty of overrepresentation of children of minority groups in special education. We are attentive to the “I” for “Individual” in the Individuals with Disabilities Education Act (“IDEA”), the federal law that governs special education while vigorously pursuing systemic problems. We provide outreach, training and parent support, and assistance at IEP meetings, hearings and in the courts.
Law Center & Clients Appeal District Judge Ruling
for LMSD in Blunt
The Law Center and its partners at DLA Piper have appealed an
October ruling by District Judge Bartle which granted the Lower Merion
School District's Motion for Summary Judgment in the case Blunt vs. LMSD.
The judge ruled that the seven students in the case had not produced enough
evidence that the acknowledged disproportionate placement of African
American students in special education and below grade courses were the
result of intentional discrimination. The court make this ruling
despite irregularities in their disability diagnoses and special education
programming and despite the fact that this disproportionality has existed
for many years without being addressed.
The Law Center and its clients disagree with the Judge's ruling and will
continue in our campaign to end the disproportionate and inappropriate
placement of black students in special education and low-level classes.
Judge Strongly Rejects School District of
Philadelphia’s Motions to Dismiss in Autism Case
On Monday, October 31st, Judge Legrome Davis
strongly rejected the School District of Philadelphia’s motions to dismiss
or limit the scope of P.V. vs. the School District of Philadelphia, a
lawsuit the Law Center filed in June, 2011 on behalf of four students with
autism. The lawsuit alleges that the District’s policy of automatically
transferring students with autism between schools – without parental input
and when non-disabled students are not transferred – violates the
Individuals with Disabilities Education Act (IDEA).
The District had argued that the case should be dismissed because 1) the plaintiffs had not exhausted all possible administrative remedies and 2) the students named in the lawsuit were allowed to stay in the school of their choice and therefore, according to the District, had not suffered any “actual or imminent” injury.
Judge Davis rejected these arguments, recognizing in no uncertain terms that the problem extends far beyond the four named plaintiffs and implicates the District’s entire system for educating students with autism.
Judge Davis explained that special education hearings have no power to make the kind of change the lawsuit alleges is necessary, as a hearing officer observed in an earlier decision. Further, the Judge recognized that automatic and arbitrary transfers will continue to be a problem for the plaintiffs – and many other students with autism in the District – as long as the District maintains its current system.
Judge Davis also refused the District’s motion to strike class allegations, which he described as premature. He further recognized that much of the relief requested simply offers parents a greater opportunity to determine their children’s educational placement, and as such is not likely to be controversial among the autistic community.
Importantly, Judge Davis wrote that, “[e]ven if the District does not have an official ‘Automatic Autism Transfer Policy,’ discovery should still shed light on the frequency with which the District transfer autistic students vis-à-vis non-disabled students, as well as the procedure” by which the District does so. In other words, a policy need not be explicit to violate the law.
Ninth Circuit Decision in Anchorage v. M.P. Vindication
for Parents
On Tuesday, November 1st, the Ninth Circuit Court of
Appeals handed down a brisk rebuke to the Alaska District Court,
overturning its ruling that the Anchorage School District did not deny Law
Center client M.P. a free and appropriate public education (FAPE) “because
M.P.’s parents failed to cooperate with the ASD” in preparing a new IEP.
The decision continues:
That was error. Neither the IDEA nor its
implementing regulations qualifies any duty imposed on a state or local
educational agency as contingent upon parental cooperation. Further, the ASD
does not cite any binding case law, and we are not aware of any, that
supports such a proposition.
The ruling is a powerful response to an unfortunately prevalent attitude that constantly blames parents for any problems in a student’s education. As the decision forcefully states, it is the legal responsibility of the schools – not the parents – to provide students with a FAPE.
We thank our partners at Morrison & Foerster LLP and, in particular
Nicholas Miranda, for their excellent lawyering which ensured the success in
this case.
STATEMENT
FROM THE LAW CENTER ON BLUNT DECISION
The United States Congress has recognized the
disproportionate placement of African American students in special education
as a serious nation-wide problem since 1997. In his ruling last week in the
Blunt case, Judge Bartle factually recognized this was occurring in the
Lower Merion School District but ruled in the District’s favor.
As civil rights lawyers, this is not surprising to us. Sometimes the law takes a while to catch up to the reality of an unjust situation. Dred Scott spent 21 years trying to convince the Courts of the injustice of slavery, but the courts found various excuses to push his case out. In 1896, the U.S. Supreme Court affirmed the doctrine of “separate but equal” in Plessy v. Ferguson, and it did not correct its error until 58 years later in 1954 in Brown v. Board of Education.
Until 1972, Pennsylvania legally banned students with disabilities from any public education until PARC v. Pennsylvania because of outdated views about people with disabilities. We have seen the slow response of the courts and society to injustices in other areas of the law as well, such as state by state adoption of bullying statutes, state by state adoption of gay marriage, etc. Despite the setback of the ruling, we are fully confident that at the end of the day, the truth will be heard and justice will flow down like water.
Read Judge Bartle’s decision here.
Law
Center Documents LMSD Discrimination Against Plaintiffs in Blunt Brief
The Law Center and co-counsel at DLA Piper
have filed a response to a motion for summary judgment filed by the
defendants in the case Blunt et al vs. Lower Merion School District,
a federal lawsuit alleging that LMSD has discriminated against black
students by disproportionately and inappropriately referring them to and
placing them in special education programs and the lowest level classes,
where they receive substandard educations.
The brief details the alleged discriminatory practices the plaintiffs have faced and how the District’s actions have in many cases done irreversible harm to these students – and for the first time, the brief makes public these students’ stories.
The brief alleges that the District inappropriately placed the plaintiffs in special education, diagnosing students with disabilities that never existed and thus needlessly segregating them from the higher-level curriculums of which they were capable. For almost all of the students, initial evaluations for special education were later found to be incorrect. The District also performed many of these evaluations without parental permission and destroyed the testing protocols used in some evaluations. In many cases, the students’ placements seem to have been decided based on subjective determinations, and educational programs were planned and implemented without parental knowledge. Finally, the brief alleges that the District resisted students’ and parents’ input about their educational placement and ignored expert opinions.
The brief describes the manner in which the separate classes deprived these students with normal intelligence of their full potential to learn. Plaintiff students were removed from core classes, denied the opportunity to take electives including foreign languages, and relegated to classes that assigned them what one student referred to as “baby work”. Teachers and administrators, however, repeatedly ignored complaints from the students and the parents about the inadequacy of their courses.
Documenting the District’s history of segregation and racial tension and the persistence of the problem of disproportionate placement of minorities in low-level classes even in the face of the District’s awareness of the problem, the brief argues that the plaintiff students’ race is the reason the District placed them in special education.
Read the
full brief and the
full statement of facts.
Note: The Law Center and DLA Piper subsequently filed a
correction of inaccuracies in the original brief and statement of facts.
Corrected pages have been inserted into the original filing available in the
links above.
IMPORTANT INFORMATION FOR PARENTS OF CHILDREN
WITH IEPs: What To Watch Out For This Year In Philadelphia
Schools are legally obligated to provide
special education services without gaps or delays. The Law Center and other
Philly-area advocacy organizations have put together a guide for making sure
your child gets the special education services he or she needs this coming
school year.
Learn more about the law's protections for students with
disabilities:
Waiting lists and gaps in services are illegal under special education
law.
Children cannot be made to wait for evaluations or reevaluations.
Parents must receive written notice before their child's special education
program or placement is changed.
Reasons that school district staff CANNOT give for failing to provide
special education services:
• We don’t have the money to do that.
• We don’t have the staff to do that.
• We’ll evaluate your child as soon as we can, but we won’t be able to do it
within 60 days.
• We will have to take those services away from another child to give them
to your child.
Settlement
Grants Compensatory Education Services to Student with Dyslexia
The Law Center reached an agreement with
the School District of Philadelphia resolving a special education due
process hearing concerning N.B., a seven-year-old student in the District
who has specific learning disabilities in the area of reading. The Law
Center represented N.B.’s family and filed a complaint requesting a due
process hearing because of concerns that the District had not identified
N.B. as a student with a disability in a timely manner.
The District evaluated N.B. and found him eligible for
special education services, and after further discussion the family and the
District reached a settlement in which the District agreed to pay for
compensatory education services for N.B. and to pay the Law Center’s
attorney’s fees.
Parent Tip: The District is responsible for
finding and evaluating all students who might have a disability. Parents
should bring concerns about their children’s educational progress to the
attention of a school administrator.
Judge Denies Lower Merion School District's Motion to Dismiss
On June 30th, Judge Harvey Bartle
denied the Lower Merion School District's motion to dismiss the case S.H. v.
LMSD, concluding that the Americans with Disabilities Act (ADA) provides a basis
for the case to continue to trial. S.H. is an African American high school
student whose mother contends the LMSD inappropriately identified as having a
specific learning disability and placed in special education at a young age.
Upon re-evaluation as a high school student, S.H. was found not to have a
disability at all.
The
Law Center sued LMSD on S.H.'s behalf, and in response LMSD filed a motion
to dismiss, arguing that S.H. is not protected by under the Individuals with
Disabilities Act (IDEA) because she did not in fact have a disability, and
further that she is not protected by the ADA because she has not exhausted
IDEA remedies. The judge rejected this second argument because there were -
as the District itself had argued - no IDEA remedies available to S.H.
The ADA, unlike the IDEA,
extends its protections beyond people with disabilities to include those who
are only regarded as having disabilities. Wrongly regarding a person as
having a disability when the person does not, in fact, have a disability, is
against the law under the ADA.
"The District's argument was
troubling," explains Sonja Kerr of the Law Center. "To accept the District’s
argument would mean that it would be impossible to remedy a clear injustice:
placing a student who has no disability in a special education classroom,
where her educational progress inevitably faltered. It would have created a
huge hole in the law where a school district could not be held responsible
for serious educational harm it caused one of its students."
The judge also rejected the
LMSD's argument that the case should be dismissed based on a statute of
limitations.
Read Judge Bartle's decision
On Monday, June 20th, 2011, the Public Interest Law Center of Philadelphia
and co-counsel Dechert, LLP, filed a class action on behalf of families whose
children with autism attend city schools. In P.V. v. The School District of
Philadelphia, filed in the U.S. District Court for the Eastern District of
Pennsylvania, the parents of four children, PV, MM, JV, and RS, allege that the
District has an illegal “Automatic Autism Transfer Policy” which requires some
3,000-4,000 children with autism to be illegally moved from school to school
because of their autism.
This lawsuit is one of the first steps in a comprehensive “Philadelphia
Project” to reform the way the School District of Philadelphia educates its
23,000 students with disabilities. The Public Interest Law Center of
Philadelphia and Dechert, LLP, have developed a new partnership to help children
with disabilities who reside in the School District of Philadelphia. With the
Law Center’s expertise and Dechert’s excellent lawyers and longstanding
tradition of service to the community, this project can create the systemic
reform needed to protect the rights of all the District’s students with
disabilities.
Read the full Class Action filed against
the School District of Philadelphia.
LAW CENTER ATTORNEY TESTIFIES BEFORE SRC
On Tuesday, May 31st, Law Center Director of Disabilities Rights
Sonja Kerr testified before the School Reform Commission (SRC) about the
potential negative effects of the School District of Philadelphia's proposed
budget cuts from the special education budget. As Kerr noted, the services
provided to students with disabilities are already governed by
Individualized Educational Programs (IEPs) established for thousands of
students that parents have already agreed to for the summer and upcoming
school year. Services cannot legally be changed without notice to parents
and the opportunity for parents to object through administrative
proceedings.
With that in mind, Kerr called on the SRC to conduct a detailed
review of how the District, with cuts of 77% from Special Education Liaison
positions and 5% from Learning and Emotional Support classes, will be able
to avoid widespread violations of federal law. Further, the cuts could be
counterproductive, as they could open the door for countless special
education due process hearings that would quickly cut into whatever savings
the District received through budget cuts.
"Without a measured review of this situation," Kerr said, "the
special education budget should be left unaffected."
Following Kerr's testimony, the SRC conferred with District officials who insisted that the special education budget was based on current IEPs. Commission Member Joseph A. Dworetzky requested that the District issue a detailed answer to the questions raised by Kerr's testimony. The Law Center eagerly awaits their response.
Read Sonja Kerr’s testimonyDECISION IN PHILADELPHIA SPECIAL ED CASE FINDS MAJOR FLAWS IN DISTRICT'S ESY PROGRAMMING
The School District of Philadelphia violated the law in its planning of extended school year (ESY) services for JV, an elementary school student with autism, according to a decision released on May 25 by Hearing Officer Anne L. Carroll, Esq. The Hearing Officer noted that, although JV's parents raised concerns about JV's ESY program as early as November of 2010, the District had still not responded to those concerns when they sent a plan for JV's ESY program to the parents in April of 2011 (about two weeks after the legal deadline). Even then, the notification only stated that JV would be in "autistic support" without offering further detail.
The decision states that the District clearly failed to follow Pennsylvania policies and regulations in JV's case, and it goes further, stating that these are general problems with the District's ESY procedues. Though the Hearing Officer noted that "developing a District-wide ESY program specifically intended to serve students in the ESY target group [e.g. students with autism] is not, in itself, an IDEA procedural violation," the District's rigid, one-size-fits-all system in this case failed to meet the law's requirement that a student's educational team create an individualized plan with significant input from the student's parents.
The decision orders the District to hold a meeting with JV's educational team and develop a comprehensive ESY plan before the summer.
Law Center, Dechert LLP Launch Philadelphia Project
with Foundation Support to Reform Special Education in Philadelphia
In a unique public/private partnership, the Law Center, Dechert LLP, and
students from the Earle Mack School of Law at Drexel University have
launched a project the ultimate goal of which is to transform the system
for educating the 23,000 children with disabilities in the School District
of Philadelphia and to secure significant improvements in the quality of
their education. The Project is training parents of students with
disabilities about their rights, representing parents in securing those
rights and identifying and pursuing opportunities for systemic reform.
Philadelphia often under-identifies and misdiagnoses its students with
disabilities, and it consistently fails to provide them necessary services.
Further, Philadelphia’s performance measures for students with disabilities
fall significantly behind statewide averages for students with disabilities.
The consequences of a sub-par education can be devastating for the students,
schools and communities. At stake for students is not only a lifetime of
productivity versus a lifetime of dependence, but also a higher risk of
becoming involved in crime.
The majority of these disabilities can be overcome. With proper support and
services, these children can learn the same content as their peers,
graduate, and continue to post-secondary education. But too often these
supports are not provided, and delivery of these services is insufficiently
monitored. (Read about two cases – the first
decisions arising from the Project –
that illustrate these problems all too clearly.)
Through its work, the Law Center has seen the need to change the paradigm
for addressing special education in Philadelphia. The current system adheres
to its own rules and internal logic with too little involvement from
parents, advocates or the community to compel change or take individual
students’ needs into account.
The Law Center’s Philadelphia Project, a collaboration with Drexel
University’s Earle Mack School of Law and the law firm Dechert LLP, takes an
innovative approach to overcoming these challenges, empowering parents to
stand up for their children’s rights while building a coalition of parents,
educators, experts, and like-minded organizations to drive systemic change
in the way Philadelphia educates its students with disabilities.
Initial support for the project is being provided by a $20,000 grant from
the Fels Fund and a $7500 grant from the Christian R. and Mary F. Lindback
Foundation.
Students Prevail in First Cases
Coming out of the Philadelphia Project
On April 15th, 2011, Hearing Officer Brian Jason Ford issued decisions in
the Due Process Hearings of MM and PV, two third grade students with autism
who attend Richmond Elementary in the School District of Philadelphia who
are being represented by the Law Center attorney Sonja Kerr. Parents of the
students alleged that their children had spent “years outside the
neighborhood school in a highly restricted, over-enrolled autistic support
classroom.”
The District has both K-5 and K-8 elementary schools, and its autism support
(AS) classrooms group together multiple grades – K-2, 3-5 and 5-8. However,
not all elementary schools have an AS classroom, and not all schools have
classes for all of these groups. As a result, students with autism who need
to access an AS classroom are often automatically transferred to a different
elementary school after 2nd grade, outside of the IEP process and without
parental input. Because the parents of MM and PV requested due process
hearings, however, they remained in their school for 3rd grade. Despite
having an excellent teacher in the school’s autism support classroom, the
necessary supports and services were not being provided, and there was no
effective plan for including and meaningfully educating MM or PV.
The parents’ due process requests challenged the proposed transfers and
sought the missing services and supports in MM and PV’s current elementary
school.
The decisions hold that the district denied the students free and
appropriate educations, in three ways: that the students spent the entirety
of their time in an over-enrolled class which, their teacher testified, had a
direct, negative influence” on their educations. Second, the Hearing Officer
notes, "none of the Student[s'] IEPs were implemented with fidelity." And
third, he held that the District made no effort to determine whether the
children could be included in regular classrooms: one IEP called for the
students to be included for just 4% of the school day, or 16 minutes per
week.
The Hearing Officer also found that the District violated the parents’ right
to participation by reassigning the students to a different school building
without sending the parent proper notice. The District was ordered to issue
a proper notice every time it proposes any building reassignment for the
students.
The hearing officer took great pains to note that the children’s teacher is
“remarkably good,” but nonetheless concluded that there were too many
students for a single teacher in a single autism support classroom, and no
aides were provided to assist in including the students in regular education
settings..
Finally, the hearing officer noted that there is “considerable evidence”
that the district “was less than forthright” with the Pennsylvania
Department of Education when that agency was investigating claims of
over-enrollment; but the hearing officer concluded that he did not have
jurisdiction over that issue.
The District was ordered to provide each student with an Independent
Educational Evaluation (IEE) at District expense, hold new IEP meetings
where parents would be full participants to the process, and provide the
students with compensatory education services.
Read the MM
Decision
Read the PV
Decision
Drexel Law Students and PILCOP Work Together to Teach Parents of Special Needs Children about Rights
Anette Thomas, a 3rd year law student at the Earle Mack School of Law at Drexel University and a former Law Center intern, is working with her fellow law students and the Law Center’s Sonja Kerr to teach parents of special needs students about their rights. There are currently 24,000 or more students in the Philadelphia school system who have been designated as “special needs.” Federal law dictates that parents have certain rights in determining the type of care their children receive, but very few parents are aware of this law. To address this problem, Thomas has worked with the Law Center to produce informative video modules that teach parents about their rights.
Your Child's Rights by Daniel Colbert
This video explains how a child is recommended for special
education, evaluated, and given an Individual Education Plan (IEP) and a special
education placement. Particular
attention is given to how a parent can protect their child through this
process and ensure the child receives an appropriate education.
Parents' Rights by Neha Yadav and Aminah Shabazz
This presentation gives a brief overview of parents' rights
in the special education system. It explains the basic process when
requesting an evaluation and what rights parents are entitled to during the
process.
How Does the Evaluation Process Work? by Anette Thomas and Cira Davis
This presentation is about the evaluation process that precedes placement in special education. It covers how to request an evaluation and what the process is when the school requests an evaluation.
After an IEP - What's Next in Special Education? by Margaret Wheltle
UPDATE IN LAW CENTER'S INDIVIDUAL SPECIAL ED CASES
Federal Court: Court Has Power to Enforce
Orders by Due Process Hearing Officers
On February 2, Judge Harvey Bartle III denied a Lower Merion School District
(LMSD) motion to dismiss a student's complaint alleging that LMSD failed to
implement previously ordered educational relief. After a due process
hearing, a hearing officer awarded to LMSD student W.J.W. (a named plaintiff
in theBlunt case) an extra year of educational services, including a
transition plan and placement in a public high school, tutoring program, or
a private school. When LMSD failed to provide the ordered services,
plaintiffs filed a complaint in federal court asking the court to compel the
district to do so. LMSD argued that the court had no power to enforce the
hearing officer's ruling - an argument that Judge Bartle roundly rejected,
noting that it would have created a "giant loophole in the [Individuals with
Disabilities Education Act]." According to the court: "It would be anomalous
indeed to read the IDEA as omitting a judicial remedy where a party is
successful before a hearing officer but the School District refuses to carry
out the decision." Read the
decision.
LMSD Ordered to Provide Compensatory Education
In March, another LMSD student represented by the Law Center (B.D.) was
awarded compensatory education by an administrative hearing officer. B.D. is
a student with average intelligence, but whose behaviors impeded his
learning. The hearing officer found that although LMSD recognized that
there was a need to help B.D. with his behavior, it made no attempt to
conduct an assessment or to create an individualized plan for him. The
hearing officer also held that LMSD failed to address B.D.s truancy.
According to the hearing officer: "I conclude that the School's failure to
do anything to address this and the other problem behaviors of the Student
falls below the standard the IDEA requires - that of addressing the unique
needs of each child with a disability." The hearing officer also concluded,
however, that LMSD did not violate federal law when it refused to allow B.D.
to attend high school with his peers.
Read the decision.
LMSD Ordered to Provide Compensatory Ed., Reimburse for Evaluation
LMSD student G.J. is a student with average intelligence whose parents
disagreed with the evaluation of him completed by the school and asked LMSD
to pay for an independent evaluation. After LMSD refused, a hearing officer
ruled that LMSD parents are entitled to an independent evaluation because
the school evaluation did not include input from G.J.'s parents nor did it
include any in-class observation, both of which would have aided G.J.'s
educational team in planning and providing necessary supports As the
hearing officer observed, "the starting point for the determination of the
appropriateness of an offer of [services]... is the evaluations from which
the needs of a Student are identified." The hearing officer also ruled that
the District should have provided extended school year services as the
District knew that G.J. regressed during the summer.
Read the decision.
Alaska SD Ordered to Provide Ed. Services & Air Transportation to School
In Alaska, a Hearing Officer ordered the Southwest Region School District to
pay for C.O., a client of the Law Center's, to fly to a neighboring village
three times a week for schooling. They must also fully implement C.O.'s IEP
after almost two years of failing to do so, and the Hearing Officer noted
that if the district fails to comply, he will order them to pay for C.O. and
his mother to live in Anchorage at the district's expense. According to the
hearing officer: "I cannot overemphasize the importance of starting this
process immediately. Student has essentially been without any substantial
educational services at all for the current school year, and last year the
services he received were scattered and largely unsuccessful. Any further
delays in delivery of services will only exacerbate the regression of
Student's skills and could result in further costly litigation between the
parties, to the continuing detriment of Student's education."
Read the decision.
LAW CENTER ATTORNEY PRESENTS AT "BACK TO SCHOOL: EDUCATION ISSUES IN JUVENILE COURT PART II"
January 21, 2011 - Law Center attorney Sonja D. Kerr spoke at the Continuing Legal Education session—Back to School: Education Issues in Juvenile Court Part II, sponsored by
the Family Court of Philadelphia and the Philadelphia Bar Association's
Delivery of Legal Services Committee. Kerr covered the Federal and State laws pertaining to special education, the process for the Individualized Education Program, and special education discipline. Other presenters included Kimberly J. Caputo from the
School District of Philadelphia's Office of General Counsel, Education Attorney David J. Berney, Director of DHS Education Support Center Liza Rodriguez, and representatives from the Support Center for Child Advocates. The session successfully covered the legal methods and community resources and advocates readily available for handling issues particular to children with disabilities.
Download the
session flyer for more details.
"DLSC, Court, Others Work To
Improve Opportunities for Abused Children" by Frank Cervone, Philadelphia
Bar Reporter March 2011
TRIAL DATE SET FOR RACE DISCRIMINATION LAWSUIT AGAINST LOWER MERION SCHOOL DISTRICT
January 3, 2011 – Following a failed mediation attempt in the case, Chief Judge Harvey Bartle III set a trial date
for Blunt et al vs. Lower Merion School District, a federal lawsuit alleging that LMSD has
systematically discriminated against its black students by disproportionately and inappropriately
referring them to and placing them in special education programs and the lowest level classes,
where they are segregated from their white peers and receive substandard educations.
The lawsuit is set to go into the trial pool on November 1, 2011, and the parties have until April
29, 2011 to exchange documents and information and take pre-trial testimony. The lawsuit was
first filed on July 30th, 2007, on behalf of eight African American families and their children
from Lower Merion School District along with Concerned Black Parents, Inc., and the
NAACP Mainline Branch. Counsel for the plaintiffs are the Public Interest Law Center of
Philadelphia and the law firm DLA Piper.
“Each of the plaintiffs is disheartened that mediation failed and the case will linger into a fourth
year before going to trial to amend these injustices,” says Loraine Carter of Concerned Black
Parents. “With each passing year, black students miss post-secondary and career opportunities.
Clearly, the federal Court must compel the LMSD to expedite school reform and ensure that its
entire staff is effectively trained in cultural proficiency – something that will require more than a
two to five hour professional development workshop. Looking forward, we remain hopeful that
sustained change is imminent with the Court's help.”
“The District is essentially wrongly using its special education programs to re-segregate their
schools,” explains Sonja Kerr, Director of the Law Center’s Disabilities Rights Project.
“Teachers and other staff often have unfairly low expectations for minority students, and they
also often misperceive cultural differences as disabilities. What we hear from families is that this
has been going on for generations. Those attitudes and misunderstandings lead directly to the
racial disparity you see in Lower Merion schools. LMSD has definitely been aware of this
problem since 1997 when it first created committees to address the problem, but the system has
not improved.”
Carl Hittinger, a partner at DLA Piper, also emphasizes that, “What the District has essentially
done for the past decades is to create an educational system in which minority students are
predetermined to fail and then later claim that the same minority students are ill equipped to
handle the rigors of a college preparatory curriculum. It is a self fulfilling prophesy and racial
discrimination at its worst. The shocking statistics bear that out.”
In LMSD, African Americans constitute 8.6% of the student body but some 37% of African
American seniors and 29% of black middle school students have been placed in special
education classes. For white students, the numbers are 19% and 17%, respectively. Statewide,
approximately 15% of all students are in special education programs.
Separated from their peers in special or remedial education programs, even students of average
or above average intelligence quickly fall behind their grade levels – an obstacle to future
success that can persist throughout their lives. One student spent her entire middle school and
high school years wrongly identified as having a specific learning disability; it was only at the
insistence of the Law Center and the student’s family that she was independently reevaluated.
The reevaluation stated unequivocally that the prior diagnosis was incorrect and should never
have been made.
In August of 2009, Judge Bartle declined to certify Blunt as a class action lawsuit on behalf of all
African American students in LMSD, but the lawsuit will proceed on behalf of the original
children, minus one whose claims were dismissed. The Law Center also continues to represent
individual students in administrative hearings brought under the federal Individuals with
Disabilities Education Act against LMSD. Those cases seek to ensure correct diagnoses of
disabilities and high-quality curriculums in inclusive environments, and to secure compensation
for students who have already suffered from an inadequate education.
“We continue to hope the Lower Merion School District will take this issue seriously and
cooperate to find a substantive and lasting solution to the problem,” Kerr says. “We know that
within the LMSD, there are individuals who care and who want this situation solved. But the
LMSD Board needs to decisively act to solve this problem. Until that happens, we will continue
to use every tool at our disposal to achieve justice for the students of Lower Merion.”
Hittinger says, “The LMSD Board has to step up, find out the real facts, and address this issue
before further minority children are irreparably harmed.”
Download the press release
DECISION IN INDIVIDUAL DUE PROCESS HEARING
BOLSTERS FUTURE EFFORTS IN LMSD
As 2011 begins, the Law Center continues to represent individual students in the Lower Merion School District in order to secure the free and appropriate educations promised them by the Individuals with Disabilities Education Act (IDEA). The Law Center's efforts in these cases have been bolstered by a decision delivered in December by the U.S. District Court for the Eastern District of Pennsylvania in the case of Marcia Lyons and Heloise Baker v. Lower Merion School District, in which Judge Legrome D. Davis decided that Sean, a Law Center client, was guaranteed a due process hearing to address his family's request for an Independent Educational Evaluation to be paid for by the District.
After a resolution agreement in which Sean's family withdrew an initial request for an IEE produced unsatisfactory results, Sean's family
brought a second complaint, again demanding an IEE. The District argued that the administrative process could not be used if the only request was for an evaluation, and that the resolution agreement in which the family withdrew its initial request for an IEE barred them from requesting an IEE a second time. The Court was not convinced by the District's arguments: if the matter has not been fully resolved, the Court reasoned, the family is still entitled to a hearing. The Court also strongly reminded the District that, under the IDEA, a parent is allowed a hearing on
"any matter relating to the identification, evaluation, or educational placement of the child."
This decision will help the Law Center ensure hearings and achieve real results for the students in LMSD in the future.
Read the full decision here.
NJ SPECIAL ED DECISION AFFIRMS PARENTS' RIGHTS UNDER IDEA
In November 2010, Judge Joseph E. Irinas of the U.S. District Court for New Jersey decided in favor of a student and her family in the case
D.B. and L.B. v. Gloucester Township School District, in which
the student's parents filed a complaint against the District for refusing to allow them to participate substantively in the planning of their daughter's educational program. H.B. is a student in the Gloucester Township School District who has been diagnosed with autism. (Former Law Center attorneys Barbara Ransom and Judith Gran, along with attorneys from the law firm Duane Morris LLP, represented the plaintiffs.)
Year after year, the District has placed H.B. in increasingly segregated classroom settings, against the wishes of her parents. Judge Irinas emphasized that
"[t]he procedural requirements of the [Individuals with Disabilities Act (IDEA)] are essential to the fulfillment of its purposes," and that the District's refusal to take seriously the opinions of H.B.'s parents thus violated the IDEA.
Read
the Judge's decision
LAW CENTER ATTORNEYS OFFER "ASK ABSOLUTELY
ANYTHING" SESSIONS FOR LOWER MERION PARENTS
The Law Center is continuing to offer a series of Public
Information Sessions to respond to questions from Lower Merion students and
their families on general and special education issues. The sessions were
launched in August 2010, and due to continued demand, the Law Center has
scheduled additional dates. The sessions are
hosted by Law Center client Concerned Black Parents at 92 Greenfield Avenue (Zion’s Annex)
in Ardmore, PA. This
service is free and open to the public on a first come, first served basis.
The Law Center is currently representing a number of Lower Merion students
in due process hearings in connection with our class action lawsuit,
Blunt
v. Lower Merion School district.
Read more about the case here.
View the event flyer for November and December dates
SETTLEMENT GRANTS ADDITIONAL SERVICES TO STUDENT,
HELPS RAISE PARENT AWARENESS OF SERVICES FOR STUDENTS 18 AND OLDER
August 21, 2010 --
The Public Interest Law Center of Philadelphia is pleased to announce resolution of a special education due process hearing concerning M.Y., a 21 year old young man who has specific learning disabilities. The Law Center represented the family of M.Y. which filed the hearing because of concerns that M.Y. had not been accurately identified and had not received proper services. The Philadelphia School District immediately agreed to have M.Y. re-evaluated at the District’s expense. After further discussion, the family and the District reached a settlement which includes additional educational services for M.Y. and payment of attorneys’ fees. As part of the agreement, the District has also agreed to help increase parent knowledge that students with disabilities are entitled to services up to and through their 21st birthday.
Parent tip: When your child turns, 18, if they have a disability, he or she may still be entitled to services.
LAW CENTER’S SONJA KERR TO ARGUE BEFORE ALASKA SUPREME COURT IN SEPTEMBER, 2010
On September 14, 2010, the Law Center’s Director of Disability Projects, Sonja Kerr, will argue before the Alaska Supreme Court. This is the first time that any lawyer has argued a special education matter before the Alaska Supreme Court on behalf of a student. Two cases will be heard. First, P.P. v. Anchorage School District concerns the responsibility of school districts to timely identify and evaluate students. P.P. is an Alaska Native student who is both gifted and dyslexic. His parents contend that he was denied such a timely evaluation forcing his parents to pay for an evaluation and tutoring, and were denied access to their rights by the District’s failure to provide them with Prior Written Notice of the refusal. The District has contested paying for the evaluation and tutoring. Second, M.P. v. Anchorage School District will be heard concerning M.P., a student of elementary age who has autism. M.P.’s parents were denied Prior Written Notice that he would be moved from a regular education classroom for instruction in writing to a segregated special education classroom. The District’s defense is that it was not required to give such notice. The arguments are being videotaped and will be available on the Alaska statewide system known as “Gavel to Gavel.” On the day of the argument you can watch streaming video of the Gavel to Gavel broadcast
here. We will post a link to the archived video when it becomes available.
Parent Tip: If a school district refuses a request or proposes an action about a child’s education, the school district must provide the parent with Prior Written Notice. In Pennsylvania, this information must be included on the Notice of Recommended Placement (NOREP).
UPDATE ON BLUNT CASE: ADDITIONAL DUE PROCESS HEARINGS AGAINST LMSD
August 26, 2010 -- The Law Center continues its vigorous representation on behalf of 500 African American students within the Lower Merion School District. Currently, the Law Center has six due process cases pending against the LMSD, all on behalf of African American students. The cases are scheduled for hearings in September, 2010.
Updates on individual cases may be found below.
STUDENT V. LMSD: HEARING OFFICER ORDERS DIRECT HELP AND COMPENSATORY SERVICES
On March 11, 2010 Pennsylvania Hearing Officer Anne Carroll issued a decision in a special education hearing case against the Lower Merion School District in which she concluded that the LMSD had denied J.W. a free appropriate public education. She concluded that the LMSD “fell short of implementing the IEPs it offered” in three ways." The LMSD contended the child did not attend the services offered, but the Hearing Officer rejected that argument. Instead, the Hearing Officer found that the LMSD wrongly eliminated additional reading instruction during a time when the student still needed such instruction because his reading difficulties significantly contributed to his disengagement from the learning process. Second, the LMSD provided the student with insufficient math services such that as a high school senior he was still struggling to pass Algebra I. Finally, the school district did not provide the student with sufficient emotional support services.
To remedy the failure of the LMSD, the Hearing Officer ordered the school district to provide the student with direct intensive reading instruction, direct intensive basic math instruction, 30 minutes of emotional support each week and a significant amount of compensatory education. The Hearing Officer concluded that the student’s inability to benefit from the educational services offered to him was part of his emotional disability, that the student was not ready to graduate at the end of the 2009-2010 school year and ordered the District to provide an additional year of services for the student at a private school or other location rather than the high school that the student had been attending.
Parent Tip: If a student has difficulty receiving or attending services, ask for an IEP team. The IEP team must come up with a solution for same according to this decision.
FEDERAL COURT DENIES MOTION TO DISMISS CASE AGAINST LOWER MERION SCHOOL DISTRICT CONCERNING RIGHT TO HEARING: S.L. v. Lower Merion
Federal District Court Judge Legrome D. Davis has refused to dismiss the claims of S.L., a high school student, against the Lower Merion School District, and instead ordered additional briefing on the hearing officer’s dismissal of the parents’ hearing request. S.L. had exhibited signs of a potential disability and was not doing well in classes. Together with Giovanni Campbell, a local lawyer who acted pro bono, the Law Center requested a special education hearing to assist S.L. to become qualified for special education services, and for services.
The parents asked for the hearing, in part, because they needed an Independent Education Evaluation of S.L. The LMSD refused to pay for the evaluation, arguing that the parent gave up this right during a resolution meeting. After a state appointed hearing officer refused to hold a hearing on the issue and dismissed the requested hearing, the lawyers filed an appeal to Federal District Court. LMSD then argued the federal court case should be dismissed because no administrative hearing had been held (at the LMSD’s request!).
Judge Davis concluded that a hearing should be held to factually develop whether S.L. is entitled to an IEE at public expense and other related matters. However, he determined that S.L. could appeal the hearing officer’s dismissal of the due process complaint. A briefing schedule has been set for the fall of 2010.
Parent Tip: Resolution meetings are mandatory requirements if a parent asks for a due process hearing. Parents should consult with an attorney or advocate before attending such a meeting so they are well informed of their rights.
STUDENT V. LMSD: SETTLEMENT FOR PRIVATE SCHOOL AND FEES FOR MIDDLE SCHOOL STUDENT WITH DYSLEXIA
Student M.J. was a very bright middle school student with sorely deficient reading skills. After a thorough independent educational evaluation, it became clear that the student has dyslexia, a specific type of learning disability. The parent requested a special education due process hearing. The LMSD agreed to pay for a private school for the student with an Individual Education Plan for his services there. The LMSD also paid the Law Center attorneys’ fees.
Parent Tip: If a parent disagrees with an evaluation by the school district, the parent can ask for an independent educational evaluation at district expense. The district must either agree to pay for the independent evaluation or take the matter to a due process hearing.
LAW CENTER SEEKS MORE COMPLETE
ACCESS TO RECORDS OF DECISIONS UNDER THE IDEA, TO INFORM PARENTS AND ADVOCATES
Oral argument was held on July 7, 2010 and a decision is anticipated shortly in a case filed December 15, 2009
by the Law Center’s Sonja Kerr and volunteer attorney Manali Shah
appealing a decision of the Office of Open Records (“OOR”) holding that administrative decisions regarding gifted children are not available to the public. The Law Center’s client in the case, the mother of a child who is both gifted and has special needs, submitted a request pursuant to the Right to Know Law seeking administrative decisions pertaining to 1) gifted students and 2) students who are categorized as both gifted and special needs.
The OOR denied the request, relying upon a state statute that permits a parent to decide whether a hearing will be open or closed and further provides that “if the hearing is closed, the decision shall be treated as a record of the student and may not be available to the public.”
This decision creates an anomaly because decisions pertaining to children
who have special needs, but are not gifted, are publicly available pursuant
to a statute which contains language which is identical to the language in
the statute upon which OOR relied to deny the request.
According to the logic employed by the OOR, decisions from closed hearings
pertaining to children who are gifted will not be made publicly available at
all (not even with confidential information redacted). Decisions pertaining
to children who are both gifted and have special needs will be made
available, but will be redacted to eliminate entirely the discussions
relating to the child’s gifted status.
Central to Law Center’s goal of achieving full implementation of the IDEA is the need to ensure that families receive a fair and impartial administrative hearing under the IDEA. Our expectation is that with more complete access to administrative decisions, parents, advocates and lawyers will be in a better position to monitor and evaluate the quality and consistency of administrative decision making.
LAW CENTER JOINS COALITION OF INCLUSION ADVOCATES IN ANNOUNCING LAUNCH OF ANTI-STIGMA WEBSITE
The Coalition of Inclusion Advocates (CIA), of which the Public Interest Law Center of Philadelphia is a member, has launched a new website,
www.coalitionofinclusionadvocates.org, with the support of the Pennsylvania Developmental Disabilities Council. The Coalition is a cross-disability coalition of individuals associated with disability advocacy organizations. CIA members joined together in 2008 to draw attention to the stigmatizing and devaluing attitudes that lead to the lack of inclusion of students with disabilities in the Pennsylvania public schools system, further hindering their opportunities for social growth and reinforcing negative stereotypes towards people with disabilities. The website will serve as a resource for advocates and self-advocates looking for ways to combat the affects of stigma often experienced by persons with disabilities. The Law Center acts as fiscal sponsor for the grant. For a full list of coalition members visit:
www.coalitionofinclusionadvocates.org/aboutus.html
“BROKEN PROMISE”—GASKIN ADVISORY PANEL ON LEAST RESTRICTIVE ENVIRONMENT ISSUES FINAL REPORT
On June 3, 2010 a panel of experts established by a settlement of the Law Center’s class action lawsuit against the Pennsylvania Department of Education issued a scathing assessment of the Department’s failure to make significant improvements in the education of children with disabilities.
The case was initially filed on June 30, 1994 and sought to increase the number of children with disabilities who are educated with their non-disabled peers and the quality of their education. The settlement of the case was approved September 2005 and established what was hoped to be powerful new tools for the Department to monitor the quality of education for children with disabilities, require correction where the quality and inclusion was poor and offer training for teachers and administrators on inclusive practices. Among the provisions of the agreement was the establishment of an Advisory Panel of experts around the state to make recommendations to the Department and review the implementation of the agreement.
The report was issued by the Advisory Panel in the final months of the settlement agreement and assessed Pennsylvania’s progress under the agreement. According to the Panel, the promise of the settlement agreement has not been realized. “Not only was the implementation of the [settlement agreement] minimal or absent in many key provisions but several groups of students show little if any change in [being included] during the life of the [settlement agreement.]”
The report did point to some positive developments that occurred over the life of the settlement: During the lifetime of the settlement, Pennsylvania crept up from 49th worst in the country to 43rd for educating children with disabilities in regular classrooms. There was an increase in regular education placement for more than 80% of the day by 14% from the time that the case was filed to 2009-2010. The report hastens to point out, however, that most of the children who are included are in the speech or language impairment category while the rate of inclusion for children with other disabilities remained at a low rate or declined (the rate of inclusion of children with intellectual disabilities increased only by 4%, from 9-13 %; the rate of children with orthopedic disabilities are only 40%, an increase of 13%). The report notes that even with the increases in numbers of children who were included in classrooms with their nondisabled peers, there is no way to assess whether the necessary services and supports were being provided or, in other words, the quality of the child’s education.
Other positive developments included the development of a Supplementary Aids and Services Toolkit to be provided to teams considering a child’s Individualized Education Plan. The state’s regulations were amended to add strong language about inclusion taken from the Oberti case (won by the Law Center in the Third Circuit.) Some training of teachers, administrators and parents did occur over the lifetime of the settlement and, at the end of the settlement period, the Department agreed to contract with the Arc of Pennsylvania to provide a statement training and technical assistance initiative directed specifically to Kindergarten and first grade.
The Advisory Panel reserved its harshest criticism for the Department’s failure to implement a core requirement in the settlement agreement: substantive monitoring of the worst performing districts and imposing meaningful, measurable corrective action plans on those districts. The report also reflects the Panel’s frustration with the Department’s failure to provide it with information necessary to assess whether the measures that were taken were actually working.
The report concludes with the Panel’s recommendations for the District going forward. We encourage advocates, parents and administrators to press forward with the recommendations and to continue to demand the leadership necessary to secure a quality education to all of the 265,000 children with disabilities in Pennsylvania.
Read the panel's
report
SIGNIFICANT VICTORY FOR CLIENT WITH DISABILITIES IN ALASKA IS ONE OF SEVERAL IN FEDERAL
DISTRICT COURT
On February 24, 2010, the Law Center's client, Ben Y., a thirteen-year-old boy with autism,
achieved a victory in Alaska Federal District Court. The court's order affirms a decision
by a hearing officer who concluded in March 2009 that the District failed to: "educate B.Y.
in the “least restrictive environment” (“LRE”), include a regular classroom teacher in
placement determinations, attempt greater inclusion of B.Y. in regular education settings,
provide B.Y. with supplemental aides and services to enable him to be educated in the LRE,
implement an adequate behavioral intervention plan, provide a free and appropriate public
education (“FAPE”) as to the social elements of B.Y.’s education, develop individualized
education plans (“IEPs”) with measurable goals and objectives, and provide B.Y. with a voice
output device called a Dynavox as required in B.Y.’s 2007 IEP. The district court cited the
hearing officer’s determination that the LRE violations were “significant.”
As a result of this favorable decision, our client will receive substantial compensatory
relief and the district must bring in a well-recognized inclusion facilitator to make sure
that the district gets it right going forward.
Two other Law Center clients, including Dylan, whose story is below, have also prevailed in
Alaska Federal District court this year.
Read the court's opinion
LAW CENTER PRESERVES FAMILY'S RIGHT TO DUE PROCESS AGAINST CLAIM THAT STATUTE OF LIMITATION EXPIRED
On February 18, 2010, an administrative hearing officer ruled in favor of Law Center client Kentell and permitted his family to proceed with a due process hearing in the face of the school district’s assertion that the claim was brought too late. Kentell is a child with a number of physical and neurological conditions, including intracranial hemorrhages, cerebral palsy, and severe neuromuscular scoliosis. The family had previously sought to have a due process hearing that was withdrawn when Kentell’s medical issues required more immediate attention.
Kentell was in a Lower Merion program from Kindergarten (2006-2007) to September 2009, when his parents enrolled him in an online cyber charter school. In the complaint, we allege that the School District failed to provide Kentell a free and appropriate public education during his three years with Lower Merion. The School District moved to limit Kentell's claims based on the two year statute of limitations in the law.
Kentell's family had filed for due process in 2007, but because of an upcoming critical surgery, the family asked the original hearing officer to withdraw their complaint, and the hearing officer did so, dismissing the case without prejudice. In her letter to the parents, the hearing officer noted that the parents would be free to file for due process when the family was "in a position to do so", while mentioning that there is a time limitation on their claims. The District pointed to this letter to show that Kentell's family were on notice that the 2 year statute of limitations, that started when he first enrolled, continued to run. We argued that the dismissal without prejudice preserved their original filing date, that it would be inequitable to hold the family to understanding how the statute of limitations applied to their unique situation, and that the School District withheld information from them about how the statute of limitations applied to their specific situation.
The Hearing Officer declined to limit Kentell's family's claims pursuant to the statute of limitations, ruling that the dismissal without prejudice preserved the original complaint. Therefore, the
family can seek compensatory education from the School District for the three-plus years that Kentell was enrolled in District programs. More broadly, we now have Office of Dispute Resolution precedent that suggests that parents will not be held to the statute of limitations when its application is itself in dispute.
The substantive hearing on Kentell's claims will likely go forward in April.
Hearing Officer Decision
LAW CENTER OFFERS NEW CONSULTATION SERVICES
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As Law Center lawyer Sonja Kerr explains in a recent law review
article, found below, there are far too few lawyers to represent the
nation's 6.8 million children with disabilities, particularly in the procedurally complex administrative hearings under the Individuals with Disabilities Education Act. In Alaska, Sonja was the only private lawyer regularly representing children with disabilities. The lack of counsel is not unique to Alaska, however. Nationwide, most often, school districts are represented, and many families are not. In the Philadelphia area, there are approximately 200 school lawyers and about 50 parent side lawyers.
As a partial solution to redressing this imbalance, the Law Center now
offers consultation services to families. Families will be asked to gather and send in their children’s educational
records and fill out a questionnaire in advance of an in-person meeting. We
will review the records and meet with families to arm them with information
and advice about possible approaches for the education of their children.
The discussion during the meeting will be followed up with a letter
summarizing our advice.
The services are available by appointment only; with slots reserved for low income families. Families who do not qualify as
low income will be asked to make a modest payment covering the Law Center’s
costs, payable at the time of the meeting. We will discuss the rates and other procedures with
families when we set up an appointment.
A RESOURCE FOR PARENTS LITIGATING
PRO SE ON BEHALF OF CHILDREN WITH DISABILITIES
In this article, published in December 2009, Sonja Kerr, Director of Disabilities Rights Projects at the Law Center, examines the rights of parents to litigate
pro se on behalf of their children under the Individuals with Disabilities Education Act (IDEA). Ms. Kerr reviews Alaska and non-Alaska jurisprudence that predates the United States Supreme Court’s decision in
Winkelman v. Parma City School District. She then examines the Winkelman
decision itself, as well as the impact of Winkelman on IDEA-related pro se litigation. Ms. Kerr notes the difficulties that parents continue to face in IDEA-related litigation and concludes by proposing reforms designed to aid parents in protecting the interests of children with disabilities. While the focus of the article is the state of Alaska, the issues and concerns are common for parents throughout the United States and the article is a good resource for parents who are facing pro se issues.
"Winkelman: Pro Se
Parents of Children with Disabilities in the Courts (Or Not?)"
(Courtesy of the Alaska Law Review at Duke Law)
September 2, 2009 - The Law Center encourages parents, advocates, teachers and others who work with students with disabilities to submit their experiences to the National Council on Disabilities. Input will be used to develop recommendations for changes in legislation, regulations, policies, or programs, as appropriate. The Law Center is a former contractor of NCD.
More information and instructions for submitting your comments
June 24, 2009 -- After listening to testimony over eight days, an administrative hearing officer ruled on that the Lower Merion School District denied to our client, C.H., a free and appropriate public education. C.H. is a 17-year old African American high school student with learning disabilities in mathematics, reading and writing. She aspires to attend college.
The hearing officer’s opinion outlines a litany of basic failures on the part of the district to understand C.H.’s current level of educational attainment or to set measurable goals to improve. As a result, the remedial courses offered to C.H. were not tied to her actual needs. For example, while the district knew about C.H.’s learning disability in math, it failed to ascertain what skills she had attained or provide any goals for her improvement. According to the hearing officer, the district official’s explanation for this omission of math goals was “not logical”; there is a basic need, the hearing officer observed, for a baseline evaluation and then goals to measure progress from that baseline. The hearing officer similarly characterized as “sparse” the goals for reading and writing, observing that none of them was measurable. “Had the [Individualized Education Plans] been more precisely focused through reading, mathematics and written expression goals that were sufficiently broken down, and crafted with specific baselines and outcomes that were measurable, the actual remedial teaching might have occurred in such a way as to demonstrate meaningful progress. Unfortunately, this was not the case and C.H. was therefore denied [an education.]”
C.H. and her family are members of a group of students and their families who filed a lawsuit in federal court alleging that the Lower Merion School District systematically segregates African American students into below grade classes and failing to provide them with the necessary supports and services. They are joined by organizational plaintiffs the Mainline Branch of the NAACP and Concerned Black Parents. After the federal judge ruled that C.H. and her family must first proceed through the administrative process, the family did so, leading to the June 24 ruling. Other families are also initiating the administrative process as directed by the Court. In the federal case, the students and families have asked the judge to certify the case as a class action. The motion for class certification will be heard on July 20, 2009.
Read more about the federal lawsuit
In Forest Grove v. T.A., T.A.—who had attended the Forest Grove School District since kindergarten—began having increased difficulty with his schoolwork, yet was deemed non-disabled by a school psychologist following an evaluation at the conclusion of his 9th grade year, and the District refused to provide him with an Individualized Education Program (IEP). T.A.'s difficulties mounted over the following two years, however, and an independent examination resulted in a diagnosis of Attention-Deficit Hyperactivity Disorder, as well as learning and memory disabilities. After a team assembled by the District met and determined that T.A.'s ADHD did not have a "sufficiently significant adverse impact on his educational performance," the District once again denied T.A. an IEP. At this point T.A.'s parents unilaterally enrolled him in a private academy, at which he completed his high school matriculation. Following a due process hearing, a hearing officer (HO) determined that the District's original examination was inadequate, T.A.'s ADHD adversely affected his performance in school, and the District was therefore obligated to reimburse T.A.'s parents for two years of private education. While the District Court accepted the HO's findings of fact, it found that compensatory education was categorically barred by the 1997 IDEA amendments when the student had not previously received special-education services. The Ninth Circuit, however, overturned the District Court and ruled that the amendments did not impose any such categorical bar, a decision which was reaffirmed by the Supreme Court.
In reaching its decision, the Court not only looked to the relevant provisions of the IDEA amendments, but also to the motivation behind the act—namely, to provide all children with a FAPE including the necessity of determining which children are eligible for special education services. The Court also reaffirmed the role of hearing officers to award all appropriate relief to children with disabilities deprived of the education required by law.
This decision is a very positive and powerful reminder to schools that Congress, the administration, and the Court will protect the rights of children with disabilities. For PILCOP, this means that not only will we be more likely to successfully advocate for children seeking appropriate remedies when the districts they attended refuse to provide them with IEPs, but also that courts in general may be more willing to consider the norms and ideals behind special education law. When courts are motivated by a desire to provide children with meaningful education, they are much more likely to take the steps necessary to ensure that disabled children are given the opportunity to realize their full potential. Forest Grove has thus brought us one step closer to achieving the goal embraced by Congress when it first passed the Education for All Handicapped Children Act in 1975; meaningful education for all children, regardless of ability or privilege.
Parent Tip: Parents considering private school placements or private school services, (such as tutoring), should be sure to give their school district 10 days notice in writing or discuss the issue at an IEP meeting before starting services.
March 10, 2009 -- Seven year old Graciella* and her triplet siblings are proficient in English and cannot read, speak or write Spanish. Their school district, Manheim Township, nonetheless placed them in an English as a Second Language course. When the triplets’ parents asked the district to evaluate them for a learning disability, the district did so, but its psychologist concluded that the triplets did not have a disability, prompting the parents in turn to request an independent evaluation. When the school district refused, our colleague Phil Drumheiser took the case to a due process hearing. Phil turned to the Law Center after the hearing was over, seeking help in sifting through the voluminous hearing transcript and writing the critical post-hearing brief.
In a potent illustration of our power to harness resources, we turned to Ben Hinerfeld, an attorney at the securities law firm Barroway, Topaz, Kessler, Meltzer & Check LLP. Coincidentally, that day Ben had travelled to our office with an offer to help. Ben took up the challenge and wrote an eloquent brief which persuaded the hearing officer that the evaluation completed by the district’s psychologist was based on the fundamental and incorrect stereotype that the children were not fluent in English, simply because they were in ESL courses. The hearing officer also faulted the district’s psychologist for ignoring the findings of a private examination commissioned by the parents; and also for making the decision in advance that the children didn’t need to be evaluated since they were already receiving services, including the English language services (which they did not need). The hearing officer called “atypical and inappropriate” the fact that at a meeting to discuss the district’s evaluation, the parents were not given a copy, while the school district’s lawyer was. Especially significant was the hearing officer's admonition to the school district to afford parents "meaningful participation" in the Multidisciplinary Team (MDT) process - the process that allows a district to determine the child's educational needs. Although parent participation is a core right under IDEA, many administrative and judicial decisions have acknowledged such violations without fully expressing the tremendous importance of making this a reality.
While the hearing officer determined that she did not have the power over the ESL courses, she cautioned that “providing of ESL must not be used as a substitute for classifying [the children] as having a specific learning disability…and must not be used as a substitute for specially designed instruction…”
* Not her real name
Read the Hearing Officer's decision
BARBARA RANSOM PRESENTS TRAINING SESSIONS AT PEAK PARENT CENTER CONFERENCE IN
COLORADO
February 14-16, 2008 -- Law Center attorney Barbara Ransom was a presenter at
the annual PEAK Parent Center Conference, held in Colorado. Ms. Ransom
offered two training sessions at the conference. The first, given with
colleagues Thom Miller and Laura Freppel, was entitled "IDEA 2004: Key Elements
for Quality Educational Support for Students. The second was entitled,
"Disability and Civil Rights: The Federal Laws that Protect People with
Disabilities. In this session Ms. Ransom provided an overview of the laws that
congress has enacted to ensure the equal and full citizenship of individuals
with disabilities, and provided participants with the skills necessary to
effectively self-advocate and to demand the enforcement of these legal provisions.
SETTLEMENT PROMISES BROADER INCLUSION OF STUDENTS WITH DISABILITIES IN
EXTRACURRICULAR ACTIVITIES
The Parents of 7th grader RJ Cooney, a student with down syndrome, had to file a
request for a hearing so that their son would be invited to participate in all
the same extracurricular activities as his classmates who do not have
disabilities. Under the terms of a September 3, 2007 settlement agreement, the
Stroudsburg Area School District agreed to make it school policy that, "any
student who qualifies for special education services pursuant to any state or
federal statute shall be provided appropriate accommodations to enable the
student to participate in field trips, after-school activities, summer programs
and all its programs that are made available to student's classmates who do not
have disabilities." This policy reaffirms the requirements of the Individuals
with Disabilities Education Act and is one of the provisions of the Agreement
that can be shared with the public. Now R.J. can attend school trips with his
twin brother.
THE LAW CENTER FIGHTS FOR EQUAL TREATMENT OF STUDENTS WITH DISABILITIES IN
COLLEGIATE SPORTS
In March 2007, the United States Court of Appeals reinstated a lawsuit filed by
the Law Center's Barbara Ransom against the National Collegiate Athletics
Association alleging that it intentionally discriminated against Michael Bowers
for his learning disability. Michael Bowers was a star football player at
Palmyra High School in New Jersey and was heavily pursued by top-tier football
schools such as Temple and Iowa University. However, after schools learned that
Michael had a learning disability and was enrolled in special education classes
in high school, the schools stopped actively recruiting Michael, knowing that
the NCAA would find him to be ineligible to play collegiate sports.
The case survived a challenge on December 7, 2007 when the New Jersey state
court denied the University of Iowa's motion to dismiss. The defendants argued
that we had waited too long to refile in state court after being denied in
Federal court on the grounds that the case was really a state matter, as the
University is an arm of the state. In its decision, the court disagreed and
said we had filed suit in plenty of time.
Click here to read the court's decision.
JUDITH GRAN GIVES PRESENTATION ON AVERSIVES AT NATIONAL TASH CONFERENCE
TThe Law Center's Judith Gran, Director of the Disabilities Rights Project,
represented the organization at this year's TASH conference, held in Seattle on
December 7th, 2007. The Town Hall discussion in which Judith was a presenter was
entitled "Turning the Corner: Progress Toward the Elimination of Aversives,
Restraint and Seclusion." Judith spoke about the Law Center's research on the
disturbing practice of Aversive Behavioral Interventions, which are still in
use, and in some states are even sanctioned, as a disciplinary option for
children with behavioral disorders. The complete paper presenting the research
will be released in early 2008 and is expected to serve as a resource not only
in litigation but for regulatory agencies as they work to set public policy.
The project was generously funded by a grant from the Samuel S. Fels Fund, which
allowed the Law Center to hire an intern, Villanova Law student Tonya Carter, to
assist with the project.
LOWER MERION SCHOOL DISTRICT SUED ON GROUNDS OF SYSTEMATIC DISCRIMINATION AGAINST AFRICAN AMERICAN STUDENTS
Five African American families from Lower Merion, a suburb of Philadelphia, are
joined by Concerned Black Parents, Inc. and The NAACP Mainline Branch as
plaintiffs in a lawsuit filed on July 30, 2007 as a class action against the
Lower Merion School District. The Complaint alleges that the Lower Merion
School District routinely segregates African American students into below grade
level or modified classes that provide them with a substandard education. The
Law Center's Barbara Ransom is lead counsel for the case. The Individuals with
Disabilities Education Act and the Elementary and Secondary Education Act,
require the District to provide these students and the members of the class
access to the same general education curriculum and quality education which
Lower Merion provides to their similarly situated peers.
The Complaint alleges that the School District's policies and practices caused
these students and the members of the class to fall behind their peers
academically. The District's 2005 Report Card of annual yearly progress ("AYP")
data for reading achievement show that the number of African Americans who score
below basic (the lowest level on the state-wide assessment) increases by grade
level in a manner disproportionate to that of their Caucasian peers. 13% of
African American students in the district scored below basic in the fifth grade,
24% in eighth grade and 36% in eleventh grade, as compared with 3%, 5% and 8% of
their Caucasian peers tested at the same increments. These data demonstrate
that an education in the Lower Merion School District can be detrimental to the
academic development and post-graduation opportunities of its African American
students. Although only 7.5% of approximately 6,800 students enrolled in the
Lower Merion School District are African American, the separate classes where
the District places Plaintiffs and class members are 90 - 100% African American.
The Complaint alleges that, "such grouping can only be attributed to the
intentional segregation of these students."
Read the Complaint here
On September 25, 2007 the complaint was amended to add new plaintiffs, the
Pennsylvania Department of Education as a defendant and the school board of
Lower Merion as defendants.
Read the Amended Complaint here.
GASKIN SETTLES: PENNSYLVANIA AGREES TO INCREASE
INCLUSION OF STUDENTS WITH DISABILITIES IN REGULAR EDUCATION CLASSES
The state of Pennsylvania and the Public Interest Law Center of Philadelphia have concluded an
historic settlement of litigation designed to change the quality of special education services
throughout the state. Pursuant to the agreement, the state will change how it helps its 501 school
districts comply with the federal Individuals with Disabilities Education Act (IDEA) and how it
monitors that compliance. The settlement is designed to increase the inclusion of students with
disabilities in regular education classes with non-disabled students. It was approved by Judge
Eduardo Robreno on September 19, 2005
The settlement comes after ten years of effort in a state-wide class action, Gaskin v. Pennsylvania
Department of Education, in which the Law Center represented a class of 280,000 special
education students, twelve named plaintiffs, and eleven disabilities advocacy organizations,
including The ARC of Pennsylvania, Pennsylvania TASH, and Pennsylvania Protection and
Advocacy, Inc.
The United States Department of Education reported that Pennsylvania was the 7th lowest state
in 2002 for including students with disabilities in regular education classrooms.
Judith Gran, the lead attorney for the plaintiffs, hailed the agreement. "The Rendell
Administration recognized that in too many parts of the state not enough has been done to
provide students with disabilities a meaningful education in the least restrictive environment.
Too many students and their parents have been frustrated by school districts' failure to fulfill the
promise of federal law. We are delighted that this administration is willing to make the
significant efforts necessary to make Pennsylvania a leader in teaching students with disabilities."
As one of the key new elements to refocus the state's activities, the settlement creates an
Advisory Panel on Least Restrictive Environment Practices that shall meet quarterly to review
progress in the implementation of the settlement, including growth in inclusive practices,
improvements in quality of actual special education practices, and whether teachers and other
school personnel are receiving the training and assistance needed to meet the needs of special
education students. Twelve of the fifteen members of the Advisory Panel will be selected by the
plaintiff organizations.
The agreement provides that the state will undertake a new effort to advance inclusion of
students with disabilities in regular education by:
* Increased monitoring for those 50 districts with the poorest record of inclusion of special
education students with regular education students. The state will require corrective action plans
for all of these targeted districts. The remaining districts in the lowest 250 districts will be on an
alert status. Compliance monitoring for Least Restrictive Environment shall review whether
meaningful educational benefit is being achieved, as well as for procedural compliance.
* Changes in the individual complaint resolution process to require interviews with all persons
identified as knowledgeable by parents.
* Changes in the monitoring process to require consideration of the outcomes of all of the due
process hearings and individual complaints in assessing a district's record.
* Changes in the approval process of each district's special education program to have it come
after and be based on consideration of the special education compliance monitoring process.
* Increased commitment to training and technical assistance by the state to assist districts in
assuring that all teachers have the necessary skills and knowledge of best practices appropriate to
the disabilities of the students in their class.
The settlement agreement also calls for payment of ,000,00,000 to the twelve individual
plaintiffs and payment for attorney fees and expenses.
The settlement will be enforceable for 5 years, with a dispute resolution process allowing
disputes that remain unresolved after mediation to go to a federal judge for the first 3 years.
The settlement was negotiated with the assistance of former District Court Judge Louis C.
Bechtle who acted as a discovery master and then mediator.
Historically, many teachers who are not certified in special education are uncomfortable teaching
students with significant disabilities and are not trained in the best practices for their particular
disability. A Law Center review of the state's performance found that state monitoring of school
district performance is focused on issues of procedural compliance and not on the quality of
education provided, and that the state never requires districts to actually increase the level of
integration or inclusion of students with disabilities with the general student population. The Law
Center's investigation was assisted by Dr. Beverly Evans and Dr. Linda Lengyel of Duquense
University, and by statistician Dr. James Conroy.
The lead plaintiff, Lydia Gaskin, is an example of successful inclusion. Born with Down
Syndrome, Ms. Gaskin is finishing her last year in the Carlisle School District after being
included in courses with college bound students. "Lydia and her classmates have all benefited
from the challenges she faced. She is a full and participating member of her school community
and she is a stronger, more independent person than she would have been if segregated in classes
only with persons with disabilities." said her father Joseph Gaskin.
Read the Opinion Approving the Settlement
Read settlement agreement
History of the Disability Education Project
The Law Center's attorneys have been involved with nearly every aspect of education for persons
with developmental disabilities since the groundbreaking case, Pennsylvania Association for
Retarded Persons (PARC) v. Commonwealth, the nation's first "right-to-education-case."
Thomas K. Gilhool, Chief Counsel of the Law Center, acted as lead counsel in the case.
Prior to 1971, public schools had no obligation to integrate or even educate children with
disabilities. The PARC case helped create the Constitutional right of children with disabilities to
receive a public school education. The case resulted in a consent decree that Congress ultimately
codified as the Education for all Handicapped Children Act of 1975 (renamed the Individuals
with Disabilities Act-IDEA).
Subsequently, in PARC II, the Law Center challenged the provision of custodial care for children
with severe and profound disabilities and established that schools must provide effective
education for this population. The consent decree revamped the curriculum and training of
teachers for those students, as well as other services.
These early cases culminated in the precedent-setting decision of the Court of Appeals for the
Third Circuit, Oberti v. Board of Education of the Borough of Clementon, in which the Law
Center successfully represented Rafael Oberti, a student with Down Syndrome. In Oberti, the
Court of Appeals held that before a student with disabilities can be excluded from general
education classes, the student's educational planning team "must consider the whole range of
supplemental aids and services" that will make inclusion possible, including "speech and
language therapy, special education training for the regular teacher, behavior modification
programs, or any other available aids and services appropriate to the child's particular
disabilities." The school "must also make efforts to modify the regular education program to
accommodate a disabled child."
After Oberti, a number of families were able to use the law to obtain favorable decisions from
hearing officers and courts in individual cases. However, success in individual cases did not lead
to systemic change and did not help the hundreds of thousands of special education students
whose families were unable or unwilling to engage in litigation against their school districts. And
even for individual students who won their cases, victory was sometimes elusive because of the
pervasive lack of teacher training in inclusive practices.
The limits of success in individual cases led one of the Law Center's longstanding client
organizations, the ARC, to propose as a remedy in Pennsylvania--a statewide lawsuit to enforce
not only the inclusion requirement of the IDEA but also the promising practices requirement of
the Act. The ARC and the Law Center brought together a coalition of state and local
organizations to bring the lawsuit, including the Learning Disabilities Association of
Pennsylvania, Autism Support and Advocacy in Pennsylvania, the Pennsylvania Coalition of
Citizens with Disabilities, the Parents' Union for Public Schools and Disabled in Action.
br />
In one of the first federal court decision on the rights of very young children to developmental
services, a Delaware County couple with two non-verbal toddlers found out on April 7, 2005 that
"making a federal case" of their problem can be the road to success.
Turned down in their request for an intensive immersion communication program for a 2 and 1/2
year old child with autism by the Delaware county office of mental health and mental retardation
and by a state hearing officer, the family was vindicated by a federal court decision which
ordered the county office to reimburse them for the cost of the program. The family used credit
card debt to obtain the services.
The twin boys, P.M. and R.M., had significant communication and speech delays. In P.M.'s case
the delays caused frustration, tantrums and physically aggressive behavior. At the parents'
suggestion, Delaware County's Early Intervention program provided training to the family in
communicating through a picture exchange system. The County's administrators, however,
refused to pay for a two-week summer intensive communication program, even though it was
recommended by the speech therapist and other service providers working with the child. The
administrators ignored the recommendation on the grounds that the services were "not essential"
for progress and would not be provided in the child's natural environment.
Magistrate Judge Jacob P. Hart rejected both of those defenses. He stated that nothing in the
federal laws require educational services to meet the high standard of "essential" in order to be
provided. He also noted that the right to treatment in a "natural" environment should not be used
as a sword to prevent treatment, when it had been intended as a shield to prevent un-wanted
placements in settings without non-disabled peers.
The federal court found that the county administrators had wrongly discounted the
recommendations of the parents and service providers working with the child and had unduly
relied on the testimony of a consultant who had been unwilling to testify about the children's
needs because of a conflict of interest arising from her seeking county business. Judge Hart noted
that hind sight showed the family and other providers had been correct in their assessment's of
P.M.'s needs. Testimony showed that he made tremendous strides in his communication skills
almost immediately after beginning the intensive program and experienced a significant
reduction in his acting-out behavior. In addition to using the picture exchange system, he
acquired an oral vocabulary that has enabled him to rely less on the picture system. Judge Hart
also decided, however, that the other twin, R.M. had progressed satisfactorily without attending
the intensive program, which the parents had not been able to afford.
The family was represented in the proceedings by Barbara Ransom of the Public Interest Law
Center of Philadelphia. Ms. Ransom noted that although the Individuals with Disabilities
Education Act makes it mandatory for the state to provide services to infants and toddlers, ages 0
to 3 years old, with disabilities, there are very few court cases challenging denial of these
services. "This case shows that parents can fight arbitrary decisions which reject the advice of
knowledgeable experts and service providers. It is going to be very important in making
administrators pay attention to the real needs of the children with disabilities and their families,"
Ms. Ransom stated.
Congress in 1990, Ms. Ransom noted, had found that there was an "urgent and substantial need"
for early intervention programs, in part to reduce the cost of special education programs when the
children reach school age. The early intervention in this case provides an example, where the
intervention program helped these two children gain communication skills, making their
adjustment to school easier for them and less costly to the local public school system.
The Public Interest Law Center is a non profit law center which represents families of students
with disabilities in due process hearings and court cases. Law Center attorneys frequently provide
continuing legal education courses to other members of the bar in how to represent students with
disabilities in special education and early intervention cases.
Read decision in Andrew M. and Deirdre M. case.
Other class actions filed to enforce the IDEA in other states include a suit in Connecticut brought
by the Law Center's Frank Laski, in conjunction with local co-counsel David Shaw, which led to
a consent decree, currently being implemented, to facilitate increased inclusion. The Law Center
also filed a class action against the State of Arkansas Department of Education on behalf of a
class of high functioning students with autism. Unfortunately, the Court ruled that the minimal
efforts taken by the state to monitor the district's compliance with IDEA were enough to qualify
the state as complying with the law. The Law Center is considering whether to appeal.
The Law Center's track record of success and stellar reputation in the field each year earns it
recognition and support from the local, statewide and national community. In 2004, the Law
Center was selected by the Pennsylvania Developmental Disabilities Council from a competitive
pool of applicants to receive a multi-year grant in the amount of ,000 to create Inclusive
Education Report Cards for every district in the state. In assigning an appropriate grade to each
district, the staff will examine the factors contributing to the widespread variation in inclusive
practices across school districts. The research being conducted as part of the Law Center's
Inclusive Education Report Cards will further inform its special education project of policies and
practices being undertaken in the immediate present by model districts which will, in turn,
improve upon the delivery of legal assistance and advocacy support.
