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DISABILITIES RIGHTS

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


Education

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.

Within the broad context of this work, the Law Center has focused on issues of inclusion (particularly for low incidence developmental disabilities), using the expertise of educational experts knowledgeable about best practices and class actions to reform state practices.



“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 18th, 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
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 f
amilies 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)



LAW CENTER SEEKS MORE COMPLETE ACCESS TO RECORDS OF DECISIONS UNDER THE IDEA, TO INFORM PARENTS AND ADVOCATES
December 15, 2009 -- The Law Center’s Sonja Kerr and volunteer attorney Manali Shah have appealed 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.



NATIONAL COUNCIL ON DISABILITY SEEKS PUBLIC INPUT ON EDUCATION BY SEPT. 15  

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



LAW CENTER CLIENT PREVAILS IN ALASKA DISTRICT COURT, RECEIVES PRIVATE PLACEMENT AT DISTRICT EXPENSE
July 22, 2009 -- The Law Center’s client, Dylan Kessler, a 10 year old boy with dyspraxia and significant learning difficulties, has prevailed in a due process hearing against his local school district. Dylan lives with his parents and siblings in Anchorage, Alaska.

Dylan had to have special speech therapy to even learn to speak, and has difficulty with his school work. Initially, he attended a public Montessori school where he was bullied and struggled in academics. In the spring of 2007, when he was in third grade, Dylan’s parents approached the district asking that they pay for Dylan to attend a small day school for children with learning differences, Gateway school, at public expense. The school refused.

The parents had Dylan start at public school but then removed him at their own expense to Gateway. Eventually, the parties went to a special education hearing and the hearing officer found that the school district had denied Dylan a free appropriate public education and that Gateway was appropriate. She denied Dylan placement there, and any reimbursement, however, because she found the parents had failed to give notice of their intent to place him there. The case was appealed to the U.S. Federal District Court. Because there was no plan for the 2009-2010 school year that would meet Dylan’s needs, the Court encouraged the parents to take that matter back to a due process hearing.

The hearing proceeded again while Dylan’s parents paid for the services at Gateway during 2009-2010. On July 22, 2009, the hearing officer ruled in favor of Dylan’s parents ordering reimbursement and finding, at last, that Gateway was the appropriate placement for Dylan.

The District has again appealed the decision to the US Federal District court. Dylan will be at Gateway pending resolution by the court. This time, he will be there at District expense.

Dylan’s parents are grateful for the Law center’s help; they wrote Executive Director Jennifer Clarke: “This decision would not have been possible without the support from your firm and legal representation from [attorney, Sonja] Kerr.”
Final Decision
Court Order for Parents

Parent TIP: Parents should always:
1) put in writing their request for a private school to be a District placement at district cost
2) give written ten days notice of placing a child in a private school at their expense



LOWER MERION SCHOOL DISTRICT FAILED TO PROVIDE FREE AND ADEQUATE PUBLIC EDUCATION TO HIGH SCHOOL STUDENT

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



WHAT DOES THE SUPREME COURT'S DECISION IN FOREST GROVE SCHOOL DISTRICT v. T.A.  MEAN FOR THE LAW CENTER'S WORK?
On June 22nd, 2009, the Supreme Court issued its decision in Forest Grove School District v. T.A., ruling on whether the Individuals with Disabilities Education Act (IDEA) allows a remedy of private school tuition reimbursement when a disabled child's parents unilaterally enroll the child in private school following a failure by the public school to provide a free, appropriate public education (FAPE), even when the child had not previously received special-education services through the public school. The Court had previously affirmed an appellate court decision in favor of the parents, without opinion, known as the Board of Educ. vs, Tom F., case but had not issued an explicit opinion on the matter until this case. Appellate courts throughout the country were divided on the issue. By a 6-3 margin, the Court with Justice Stevens writing for the majority, reaffirmed its previous decisions in two earlier private school placement and tuition cases, Burlington and Carter. The Court held that Congressional amendments to the IDEA from 1997 did not change the long-standing opinion of the Court that when schools fail to comply with the IDEA, and parents must take action to place their children privately to obtain the education they need, parents may obtain tuition reimbursement.

The Court rejected the District’s view that the federal government had not given the District notice that acceptance of federal IDEA funds would require it to provide such services. Explaining that the acceptance of such funds had obligated the District to provide all students with a FAPE, the Court held that an order for reimbursement had merely compelled the District to pay expenses it ought to have paid in the first place. Citing to an amicus brief by the National Disabilities Network and other advocates, the Court found that the incidence of private school placement at public expense is quite small, rejecting the notion that parents would rush to enroll their children in private education without first trying to reach an agreement with the District, namely because parents have to initially pay the cost of private tuition, and risk losing such tuition payments should it be determined that the District was not at fault.


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.

 

 

DISTRICT ADMONISHED FOR EXCLUDING PARENTS FROM EDUCATIONAL PROCESS AND ABUSE OF ENGLISH AS A SECOND LANGUAGE COURSES

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
The 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.

PENNSYLVANIA AGREES TO CHANGES IN SPECIAL EDUCATION 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.

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.




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