Disability, Race, and Discipline. What do you know about significant disproportionality?

Research shows that students of color, boys, and students with disabilities are more likely to experience disciplinary removals than their peers. Indeed, black students with disabilities are more than twice as likely as peers to be suspended out of school or expelled, and the rates in Texas are even higher. Exclusionary discipline means missed instructional time and is associated with an increased likelihood of dropping out of school and interaction with the criminal justice system. These disparities are troubling both for student outcomes and for district legal liability.

This summer, we posted about comprehensive guidance on discipline and students with disabilities from the Office for Civil Rights (OCR) and the Office of Special Education and Rehabilitation Services (OSERS). We continue to anticipate guidance from the Department of Education and Department of Justice related to student discipline and race under Title VI. In the meantime, we want to talk about the intersection of disability and race: significant disproportionality.

The Supreme Court Reconsiders the IDEA Exhaustion Doctrine

On Wednesday, January 18, 2023, the Supreme Court heard oral argument in Perez v. Sturgis Public Schools, a case out of Michigan (Sixth Circuit) involving the administrative exhaustion doctrine under the Individuals with Disabilities Education Act (“IDEA”)  Before the Court were two important issues: (1) whether parents can avoid having to exhaust their administrative remedies under the IDEA (by filing for and litigating a due process hearing) by asking for monetary damages in a lawsuit brought under a different statute (such as Section 504 or the Americans with Disabilities Act (“ADA”)); and (2) whether settling a due process hearing constitutes “exhaustion” of the administrative process, such that parents who have settled with the school could then file a subsequent Section 504 or ADA lawsuit.  Some of these issues – particularly whether asking for monetary damages essentially negates the exhaustion requirement – were left over from the Court’s previous exhaustion decision in Fry v. Napoleon Community Schools.

IEP Spotlight: Statement of PLAAFP and Why it’s so Important 

Over the summer, we posted about the importance of and tips for successful IEP implementation and progress monitoring. Today, we continue a series of articles focused on the components of a great IEP. In this post, we will discuss the foundation of the IEP: the statement of present levels of academic achievement and functional performance (PLAAFP).

The Individuals with Disabilities Education Act (IDEA) mandates that IEPs include a statement of PLAAFP. If you’ve ever attended an ARD, you know that this statement is one of the first things covered. And with good reason: the statement of PLAAFP provides an overview of the student’s current functioning and baseline for new goals. Without a clear, specific, and individualized statement of PLAAFP, the IEP may be deficient. Keep reading to learn steps to ensure that every IEP is built on a solid PLAAFP foundation.

Despite Teacher Shortage, OSEP Says IDEA Compliance Requires Certified Teachers, No Waivers

The recent teacher shortage has caused districts to get creative regarding schedules, student grouping, and staff assignments. But just how creative can you be when it comes to the employees in your special education classrooms? The Office of Special Education Programs (OSEP) issued guidance on this topic on October 4, 2022, indicating that proper credentials will be an area of focus as we continue to navigate the post-COVID era.

IEP Spotlight: Transportation as a Related Service

Over the summer, we posted about the importance of and tips for successful IEP implementation and progress monitoring. This school year, we will post a series of articles focusing on the components of a great IEP. Today, we want to discuss an often-misunderstood related service: transportation.

The Individuals with Disabilities Education Act (IDEA) requires public schools to provide a free appropriate public education (FAPE) to students with disabilities through the provision of special education and related services designed to meet qualifying students’ unique needs. The IDEA defines related services as “transportation, and such developmental, corrective, and other supportive services … as may be required to assist a child with a disability to benefit from special education.”  In practical terms, this means that the ARD committee must determine if a student with a disability requires transportation in order to benefit from special education, and if so, the IEP must include transportation and the district must provide that transportation at no cost to the parent

Proposed Amendments to the TEA Complaint Process Are a Mixed Bag for Districts 

On September 23, 2022, the Texas Education Agency (“TEA”) issued a notice regarding proposed amendments to the sections of the Texas Administrative Code related to special education complaints filed with the TEA. The proposed rules are currently open for public comment and are the subject of a public hearing on October 6, 2022. The only major change impacting special education due process hearings would clarify that summary proceedings in hearing may only be used when both parties in the hearing agree to use the summary process. This is significant because parties are currently able to file motions for summary judgment – which allows a hearing officer to rule on the legal viability of a claim without the need for a complete hearing. This approach can be productive and cost-effective for school districts, as it permits hearing officers to sift through meritless claims without the need for a full hearing. This is currently permitted in a due process hearing without the consent of the other party, and this change would require consent.