Legal Briefs from Matt Cohen
The following are past questions and answers from Matt Cohen on this topic.
Can a paraprofessional service IEP minutes?
Who can provide IEP minutes besides the special education teacher in a resource program? Can a teacher's assistant service IEP minutes with direction from the special ed teacher? What is the difference between direct minutes and supplementary minutes?
As a general matter, the duties of teachers versus paraprofessionals are spelled out in state law. However, under both NCLB and IDEA, instruction must be provided by highly qualified teachers that meet state standards for teachers. Paraprofessionals may assist the teacher and student under the supervision of the teacher, but should not provide ongoing direct instruction themselves, particularly without direct ongoing involvement by the teacher.
If the IEP specifies a certain number of instructional minutes by a teacher, those minutes should be provided by the teacher.
Are summer school teachers required to follow a student's IEP?
My daughter has a learning disability in math. She has an IEP that addresses this. She failed math this last school year so she went to summer school and I was told she was failing math there. I mentioned to the teacher that she has an IEP and was told that they did not have to address the IEP during the summer because they have a skeleton crew and don't have adequate staff. Can you please let me know if this is legal? They have failed her in school because they would not provide her help.
First, if a child is not making adequate progress and loses progress during breaks, he/she is entitled to receive extended school year services over the summer to address the disability. These services should be spelled out in the IEP and should be sufficient to allow the child to make progress.
Even if your daughter was in regular math class, if she has an IEP due to her math disability, it would be likely that she would be entitled to accommodations and other assistance to help her with the math in the regular summer school program.
Further, given that she has an IEP, you should question the adequacy of her math instruction during the regular school year, as the IEP should be designed so that she will make progress. If she is failing, that is an IEP issue, and the IEP team should determine why she is failing and what is needed in order to allow her to make adequate progress.
The school district wants me to use a curriculum that has not been effective for my students with special needs. What can I do?
I have been teaching for 39 years. I am currently teaching special education in South Carolina (it's my third year in the district).
For the past two years I have been teaching in a self-contained cross-categorical classroom (Tier III). I have used my background experience, knowledge, and personal funding to implement programming that has had very compelling test results.
I have not been using the programs required by the district that have already failed the students. This has resulted in a power struggle with district office and this school year I will be required to teach the district required programs. I have made every effort to work with district office and building administration to prevent certain failure for my students. As the district can require me to teach what they may, I want to know what data or avenue would best support myself and parents to provide the programming that will best meet the needs of the students.
How should this best be addressed with the least impact on the students? Would you please be specific to NCLB and IDEA? Thank you.
Your question addresses how to address the school administration's requirement that you teach students with disabilities using a curriculum or methodologies that have not been effective for them.
Under both No Child Left Behind, which applies to all students, and the IDEA, which applies specifically to students in special education, the schools are required to provide peer-reviewed, scientifically-validated instructional programs to the extent practicable. Equally important, under the IDEA, schools are required to provide specialized instruction, including adapting as necessary, the method, content, and mode of delivery of instruction to assure that the student's program is reasonably calculated to provide the student with a free appropriate education.
Assuming you have data on the ineffectiveness of the school's program (and the effectiveness of your methods), you could potentially file a complaint with the Office for Civil Rights for a violation of Section 504 (which also requires the provision of FAPE), you could file a complaint with the state education agency, or you could share information with the parents of your students to inform them about this information and their right to request a special education due process hearing.
You may also conceivably have a right to a grievance through your collective bargaining agreement, but that would depend on the language of the agreement. However, you may wish to get legal counsel before taking any steps that would lead to a dispute with the school administration.
What should a parent do if their child is socially promoted to a grade beyond their abilities?
My child is eleven years old and is in Jacksonville, Florida. For three years, she has made grades of Ds & Fs. In our last meeting, the school professionals said she can do the work and will be fine for sixth grade in junior high. I know my child and I want her to stay back in the fifth grade, but the teachers, staff and school board refuse to discuss our situation. They have not returned my calls after eight weeks. I've been on them for three years. My child failed the fourth grade and they went ahead and passed her based on her FCAT scores. They said she can go to the fifth grade and work on fourth grade math, but that never happened. Now what?
Thank you for your help.
Michelle M. Smith
Your question doesnít mention whether your child has been evaluated to determine whether she is eligible for special education. Rather than holding her back, you might want to request that she be evaluated to determine why she is having difficulties and to identify what extra help she might need in order to make more progress. If she is already in special education, you should investigate whether the IEP is appropriate, whether she is getting sufficient services and the right kinds of services and whether it is even being implemented as written.
You might seek either an updated school evaluation or obtain a private psychological evaluation to try to determine why she is having academic difficulties. The decision as to whether a student should be retained is complex. You may want to research whether this is generally a good idea or may make things worse in the long run. There is a lot of research available on the internet about grade retention that might help you to answer this question.
Can a private school refuse to accommodate a child with a disability?
Our child is going to a private school and has a reading difference. We are doing everything they ask. They have said they cannot accommodate her next year. We said we will do whatever it takes to keep her there. We all love this school. Also, she has a twin sister who is doing well. They are in second grade. Do we have any recourse legal or otherwise under No Child Left Behind?
Your question addresses the decision by the private school that your child attends, that they can not accommodate her and will not allow her to return next year. Under the Americans with Disability Act, private schools or places of public accommodation must refrain from public discrimination and provide "reasonable" accommodations to persons with disabilities. The only exception for private schools is for those that are religiously controlled, in which case the Federal disability rights laws do not apply.
However, in some states and localities, state and local disability rights laws do apply to religiously controlled private schools, which may also be a source of protection. However, the fact that your child has a disability and is entitled to reasonable accommodations it is not something that is an automatic entitlement.
Rather, you must provide documentation of the disability, request formal accommodation, and give the school an opportunity to respond. If they determine that the accommodation is unreasonable, they may refuse it. You have the right to appeal these decisions, both with the school and ultimately in to court if you can not reach agreement.
How can special education teachers who "share" students with regular education get the respect and assistance of their colleagues?
How do I effectively communicate to my regular education colleagues that sharing students (I teach middle school special education) is not an "us against them" situation? My regular education faculty tried to get their union to file a grievance against the special education faculty in my school because they have to carry out modifications and accommodations specified in the IEP.
They seldom show up at PPT meetings (I have a few regulars, but as usual, never those who complain the loudest) and don't see the meetings as a chance to have input into the child's ed plan and modifications. They resent special education meetings, kids, parents and teachers. I have been to my principal and special education administrator so many times I have lost count.
The frosting on the cake was them trying to file a grievance against implementing IEPs — fortunately their union representative told them they have to follow education plans and that they are legal documents. Any suggestions? I feel like I've been beat with a bat by the end of the week!
You seek guidance on how to gain acceptance from your regular education colleagues in working with you and your students with disabilities. Ultimately, the most important contributor to the collaboration that you are seeking is strong leadership from the school system's administration, from the Superintendent down through the special education director and school principals.
Unfortunately, that appears to be lacking in your situation. At times, if concerned parents mobilize to seek more support for special education from the administration, this can lead to a more positive climate and to action by the administration to promote greater collaboration. Beyond this, your state department of education may also offer technical assistance to the school to help train the staff, including the regular educators, on the ways that effective collaboration can work and can benefit them, as well as on their legal obligations to support children with disabilities in their classrooms.
There are various books by educators on strategies to promote collaboration between special and regular educators, which may be of use to you in getting ideas for improving the relationships with the regular education staff. Sometimes, the regular educators may become more supportive, if they are able to see the ways that your involvement (and even the involvement of the kids with disabilities) can enhance their experience and that of their students, but this requires openness and the ability to share positive experiences with them.
Unfortunately, the problem you describe is not easily solved. It may also be useful for you to locate neighboring school districts where collaboration is more successful and seek advice from some of the staff in those schools that have had positive experiences. If you can identify others with positive experiences, it might be possible to either get staff from your school to observe the positive models in the other schools or to have educators from those programs provide some information to your school on how collaboration can work successfully.
If a student turns work in late, because of their Executive Functioning Disorder, can the school penalize them?
My 11th grade son's main disability is with executive functioning disorder. If you can't penalize a student for his disability, can the school say it can't make teachers accept late work for full credit? He does the work as soon as he knows what it is, has the right books, sheets etc, but even with the resource room this is sometimes after the due date.
They have a teacher's contract which somehow prohibits them from requiring teachers to post homework on the expensive e-boards or from requiring them to accept late work. How can they have a teachers' contract which ends up violating what I believe is the law about not penalizing my son for late work?
Your question involves whether a student who has executive functioning disorder and has an IEP can be denied credit for work that is turned in late as a result of the symptoms of the childís disability. You also query whether the teachers have the right to refuse taking such work based on union contracts. In general, the fact that a student has a disability which appears to impact on their ability to turn in work on time does not by itself to entitle them to turn in their work late to get full credit. Rather, this is an issue which must be addressed in the Section 504 plan or the IEP.
If the IEP or Section 504 plan expressly recognizes that the child has a problem with late work as a result of their disability, it should provide both instructional or remedial assistance to the student who helped them develop organizational and time management skills, as well as providing accommodations in relation to altering timelines, or reducing and eliminating penalties for late work that is tardy for reasons related to the disability. If the IEP provides for these accommodations, all teachers identified in the IEP who are responsible for the implementation must implement it. If it is not identified in the IEP, it is not legally binding.
Where a school district may have a Union contract that gives teacher discretion in relation to some of these matters, the IEP is legally controlling regardless of the terms of the Union contract. The school district would be responsible for dealing with the teacher and the union and ensuring that the union contract did not supersede the accommodations that the child is legally entitled to pursuant to the IEP.
Can a teacher write a judgmental negative comment in an official report evaluating a student?
My 14-year-old son is currently in ninth grade at our high school. Last year, he was clinically diagnosed with mild autism (Aspergers Syndrome), and was also qualified as a Special Education student (Gifted/LD) by the public schools. I had a special meeting with his teachers at the beginning of the year to explain his inability at times to connect emotionally/display certain facial connects they might expect. This annual meeting helps, I have found.
Depsite that fact, I just received a formal interim report where his science teacher wrote what I consider an unethical, judging comment: "Lacks humility/gratitude". I am deeply disturbed that this personality comment was typed into an official school report, and can no longer trust he is grading students outside of his own personal standards of behavior. My son is hurt by this judgment, and I am, even more. Is this abusive? Is this discrimination? It feels wrong. My son does not deserve such a judgmental comment on his school record. I am requesting a school administration meeting ASAP to have him removed from this teacher, but the more I think about it, the more inhumane and unfair it seems.
This teacher also called me once before and said my son was "way out there", implying my son was crazy. Do I have any additional recourse? Are there legal guidelines for teacher report boundaries? I have had other incidents with this new teacher leading me to believe he is unstable. Thanks.
Your letter raises a question about inappropriate comments by a teacher in relation to your child with learning disabilities and Aspergerís Syndrome. I share your concern that comments such as these are enormously damaging to students. All children are vulnerable to unkind or mean comments by adults, particularly teachers. Children with disabilities are especially vulnerable to these sorts of comments, as well as being vulnerable to other children adopting the attitudes being displayed by the teacher. Unfortunately, there is no federal rule or law which regulates specific teacher conduct or regulates these sorts of comments per say. State standards vary with respect to the criteria for teacher conduct. States also vary with respect to procedures for filing complaints with the state department of education relating to teacher misconduct, though you may wish to contact your state department of education to see whether there is any complaint procedure available with respect to particular teachers. In addition, you can always bring complaints about a teacherís conduct to the administration, as well as the school board.
Under some circumstances if there is serious misconduct by a teacher, and particularly there is a pattern of inappropriate statements, harassment, intimidation, or other discrimination, there are remedies available under Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act While these laws clearly make such conduct illegal, there are enormous difficulties with respect to both proving the misconduct and determining what level of misconduct constitutes illegal harassment or discrimination. Where there is a pattern of misconduct, one avenue that can be pursued is to file a complaint alleging harassment or intimidation based on disability with the U.S. Department of Education, Office of Civil Rights, based on a violation of Section 504 violations, or with the U.S. Department of Justice, based on harassment or discrimination based on the Americans with Disabilities Act.
Can private schools charge learning disabled students for tutoring?
My son attends a private school and was diagnosed with dyslexia. We are now faced with an extra bill for lessons. Fundamentally, we think this wrong and feel we are paying twice for his education. Could you offer any advice on this?
Short question with a long answer. First, the private schoolís obligation to do anything is dependent on, a) whether it received federal funds, in which case it is governed by Section 504, or b) is religiously controlled and doesnít receive federal funds, in which case it is not governed by the ADA either. If it is governed by ADA or 504, they must provide reasonable accommodations, but donít necessarily have to provide tutoring.
On the other hand, you can still enroll him part-time in the public school, which may need to provide him with assistance in his area of disability if he qualifies for services. However, the public school can do this on their site.
Must accommodations that are written in the IEP apply to tests that place students in ability groups?
Our school conducts pre-testing each year to determine ability groupings of students. The school will not give accommodations to students taking these tests. They say that applying accommodations to testing for IEP/504 skews the results of where students should be placed. Their IEP's state that accommodations will be applied to ALL pre/post district tests. The IEP's have been signed by the principal, special ed director, and the parent.
Would an amendment to the IEP have to be signed in order to not apply the accommodation? Do school districts usually accommodate for internal assessments or do they leave that off the assessment page of an IEP? The school believes that our ability groupings would more adequately reflect where each student is currently performing if no accommodations were given. Some people are saying that the school would be eligible for more grant funding if there was a higher percentage of low level students.
You raise a very interesting question, to wit, whether accommodations specified in the IEP apply to internal placement testing used by the school district. I would argue that they do and that any decision to do otherwise must be made based on a formal change in the IEP.
If the child is able to function well in other settings with accommodation, it would make little sense to deny them accommodations on the internal placement tests. The result would be that the child who is cognitively capable of handling higher level work, with accommodation, would be placed in a lower track program, not because of the inability to handle the material, but because of the absence of accommodation on the placement test. Qualification for state or federal funding should not be the basis for deciding whether a child receives accommodation.
If the school is not educating a child well, can a parent find a program and obtain funding from the school system to pay for it?
My 17 year old son is a senior in a Knox Co Tennessee high school. At 5 yrs old, he was diagnosed with Auditory Processing Delay (APD) and ADD by his pediatrician and audiologist. His IQ score on intelligence tests was "above average". Since the 2nd grade, he has received special education services. In addition, he was privately tutored after school 2-3 hours per week in writing, language basics, spelling and Algebra I from grade 2 through 11.
In the fall of 2004, I enrolled him in a Sylvan Learning Program. He made excellent progress, but unfortunately after participating 7 months, he became unmotivated due to the elementary nature of the course material and quit.
Currently, he is enrolled in an electrician course at the vocational school (high school). Last week, I observed his writing and reading skills remain at an elementary level. He couldn't complete the initial exercises and worksheets of the course. Bottom line, he doesn't have the necessary basic academic skills to be successful at anything?
Mr. Cohen, if I can locate a more effective education opportunity which teaches reading and writing skills (grades 5-12) by utilizing teaching techniques which accommodate students with APD, do I have any legal right to ask Knox Co schools to pay?
My son hasn't had behavior problems prior to this year. However, he recently he has become depressed, anxious, and defiant. He feels like a "loser" because of his lack of success. He' told my husband that he thinks of himself as "stupid".
As you can see, I'm desperate to locate a school and/or education curriculum which will address my son's learning disability more effectively. Over the years, I participated in the IEP process. Most of the accommodations were made in the classrooms of 25-30 students. The accommodations included having him sit in front of the classroom; take a longer time to complete assignments; obtain "notes" from a buddy; participate in "fundamental" level classes; and have tests read to him. These accommodations did not result in academic success sufficient for the pursuit of higher education or attendance in a skilled labor apprentice program.
Justin needs individual or very small group instruction in language skills. He also needs an environment which is more accepting of students with learning disabilities.
Interestingly, Justin passed all of the State of Tennessee prerequisite tests to earn a "normal" high school degree. Obtaining a "normal" high school degree was the #1 goal I requested for the IEP.
Thank you so very much for caring about children with these issues.
Your son's situation sounds terrible. School districts are required to provide a free appropriate public education from age 3 through high school graduation or 21, whichever comes first. At age 14 (under the old law, effective when your child seems to have turned 14 (age 16 under IDEA 2004), the school district was obligated to develop a transition plan which identified your child's vocational interests, aptitudes, needs, and services necessary to assist him in achieving realistic post-secondary goals. Under the new IDEA 2004, these evaluations are supposed to be even more intensive, as are the programs to address your child's needs. IDEA 2004 also requires that the transition plan include "the courses of study" necessary for the child to accomplish their transition objectives. In my interpretation, "courses of study" can include vocational training in a particular field, job readiness training in relation to job performance in general, and/or remedial education in the academic subjects necessary in order to realistically move forward towards the identified vocational goals.
If your school system does not have appropriate programs to meet your son's transitional needs, they are obligated to obtain such services elsewhere. If you identify a program that does meet his needs, and the school has failed to develop or offer an appropriate program, you should bring the private program to the attention of the school system. Similarly, if your son needs remediation in a particular area in order to move forward with their transition plan, that may also be the responsibility of the school system. Finally, if the school has failed to offer appropriate programs in the past, your son may be eligible for compensatory services to make up for the lost time. To be clear, however, your school may not volunteer these programs and you may need to prove that a) their programs have been/are inappropriate and that b) the program (s) you seek are necessary and appropriate.
You may want to consult with a knowledgeable special education attorney for assistance with this situation.
Does a child have the right to an accommodation if they transfer to another school to take a particular class?
My son is 15 years old and in the 9th grade. He entered the gifted and talented program in elementary school. Between 4th and 5th grade, I noticed a significant lowering of his standardized test scores, and a difference between what he thinks and what he actually writes down on paper. I requested further testing, and he was found to be eligible for an IEP based on a specific perceptual processing disorder, that interferes with his reading, writing and spelling. He seemed better through the 7th and 8th grade, and was taken off the IEP.
Now he is in 9th grade. He taking Japanese as his foreign language, and he is failing. The exams are oral His teacher reads things out loud, and he has to write the word and meaning. He has trouble hearing the word amongst the sentence. I thought he could retake the course if he failed He thought that if he took it again, he would definitely do better, because the characters, vocabulary, and sentence structure would be familiar.
I was told by the school personnel that he would not be allowed to retake the course, because I have him on an interdistrict transfer specifically so he can take Japanese (it is not offered in our school district). Yet, they would allow their own district students to retake it. In fact, they said that they expect interdistrict transfer students to do well, and that my son would be kicked out of the school if he did not make a C, so he could go to the second year. Is this legal? What can I do? I don't think he should go to the second year without mastering the 1st. He should have the right to learn the language. Also they said that since I took him off of the IEP at the end of 7th grade, that he no longer has a disability. I don't agree. I think it can reappear as the subject matter becomes more complex and is unfamiliar.
Your question involves the right to accommodations in relation to a permissive inter-district transfer program. Specifically, you were wondering about the right of accommodations in relation to your child taking Japanese. The key in your situation seems to be that the school will allow accommodations for children who are within the district, but will not allow for accommodations who are an inter-district transfer student.
The nature of the inter-district transfer program complicates matters, as it means that your child is not legally entitled to participate in the program. However, once your child is admitted to the program, there is a good argument that Section 504 would require that they be provided accommodations within the program as they are otherwise qualified to participate. Since the other students were given the same accommodations, it would be difficult for the school to argue that the accommodation itself would represent a fundamental change to the program or an undue burden.
What are a parentís options when their child is mistreated by school staff?
My child is 14, and was diagnosed with CP at 6 months old. He is currently in 8th grade. I have had members of the school staff, along with students come to me and inform me that 2 of the aides in the special ed. class are really mean to him. My child has told me that they are mean to him. He has always loved school until this year.
I have read that the school must provide a safe and positive environment for my child. Can you please tell me the law? I am frustrated and would like to be well prepared. I have never had any problems until these two aides were hired. Please give any and all information possible.
Thank you in advance,
You describe a situation in which two aides are being "really mean to your son". Your question seeks information about what the legal obligations are that the school maintains a "safe and positive environment".
Historically, because schools serve "in loco parentes", which means in the place of the parent, schools have always been expected to be a safe and positive environment. However, the courts have generally allowed the schools to avoid responsibility for improper conduct by staff if the school district was not aware of or on notice about the improper conduct. Thus, when school staff are treating the child improperly, it is very important for the parents to provide documentation to the administration advising them of the improper conduct so that the administration can take the appropriate steps to protect the child from the improper conduct in the future.
In addition to these general legal principals, the No Child Left Behind Law has a specific mandate that schools provide a safe and positive environment. Unfortunately, this does not have specific enforcement mechanisms with respect to mistreatment by staff. However, where staff are involved in mistreatment of a child, you may make a report of child abuse or neglect to the state child protective agency or the police. Provisions of these laws vary from state to state, so it would be important for you to check the specific requirements of your states Abuse and Reporting Act.
To what extent should children with disabilities be included in the school-wide and state-wide assessments for No Child Left Behind?
Dear Mr. Cohen,
I am a concerned special education teacher here in the state of Texas. We've been told that, according to the No Child Left Behind Act, all students in special education program by 2011 will have to take the required state tests according to the grade level that they are enrolled in not their ability level (basically all special education students must be on grade level by this time, that's it, no exceptions). In our situation we had to administer benchmark tests this past nine weeks to our students, not at their ability level but at their enrolled grade level as per direction of our school district. In addition, for some of the students a small percentage of their overall grade for the nine weeks included these tests.
Is this legal? If it is, how is this backed up by IDEA, FAPE and is this legally following the students IEPs even with modifications. We work hard everyday to teach our students and we have high expectations for them. We want them to succeed and we push them to do more but they also learn differently and some at a different rate. Isn't that the whole purpose of special education? We want to make sure that we are also legally doing what is right for our students.
Your question addresses the extent to which children with disabilities must be included within school-wide and state-wide testing for No Child Left Behind. Your description suggests a requirement that all students with disabilities be tested under all circumstances. Under No Child Left Behind, children with disabilities are a specific targeted group for inclusion in state-wide testing in order to insure that school districts cannot artificially inflate their students' performance on state-wide testing by excluding large numbers of children with disabilities.
However, students with disabilities are allowed to receive various accommodations while participating in the state-wide testing. In addition, limited number of students with disabilities may be waived out of the state-wide tests if they are provided with alternative assessments that have been approved for this purpose. In no event may a student be waived out of all assessments, but a limited number of students may be waived out of the regular testing.