Keynote- Hindsight is 2021! The Most Relevant Lessons from Another Crazy Year

Karen Haase Author

04/14/2022 Added

3 Plays

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Conference 2022

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[00:00:04.420]So I am fearful.
[00:00:06.090]Those of you that have seen me speak in person,
[00:00:07.760]if I'm on that stage,
[00:00:08.840]you are gonna be taking bets on how fast I'm gonna fall off.
[00:00:11.390]Yes?
[00:00:12.260]So if it's okay with you all, I'm gonna go on the floor.
[00:00:14.690]But if you can't see me from the angle that you're at
[00:00:16.510]at this moment, don't worry, I'll be moving around.
[00:00:19.310]But as I'm moving, I want you all to see
[00:00:21.787]that I am more the super cool t-shirt
[00:00:25.970]that all the presenters at this conference got
[00:00:29.340]along with the new Autism Spectrum Disorder Network logo.
[00:00:33.640]The reason this is such a huge deal,
[00:00:35.553]also I had sleepless nights trying to figure out
[00:00:40.460]what kind of an outfit to put together
[00:00:42.340]where I would wear a t-shirt, right?
[00:00:44.240]Because those of you that have seen me present in person,
[00:00:46.160]and I will tell you
[00:00:46.993]every single virtual presentation as well,
[00:00:49.100]I always wear a skirt because my mom was a home ec teacher.
[00:00:53.610]And she's one of those old school home ec teachers.
[00:00:55.890]She would have a heart attack
[00:00:58.200]if she knew I was wearing pants to present
[00:01:00.730]much less a t-shirt, right?
[00:01:03.800]But I wanna bring up my mom
[00:01:05.680]because if you'll give me just one moment
[00:01:07.970]of personal privilege,
[00:01:09.830]I wanna talk to you educators in the room specifically,
[00:01:12.350]and parent advocates and self advocates in the room.
[00:01:15.520]I think you guys need to hear this too.
[00:01:20.280]My children are neurotypical, right?
[00:01:22.210]And I've been married to my husband forever.
[00:01:23.970]I've got an easy immediate family.
[00:01:26.640]But my dad who just passed away in October
[00:01:30.420]had dementia for more than 10 years,
[00:01:32.120]lived in a dementia ward
[00:01:33.070]for the last seven years of his life.
[00:01:35.020]My mom had a brain tumor 20 years ago
[00:01:37.770]that left her blind and wheelchair bound.
[00:01:41.060]When I have mother's day
[00:01:42.930]and everybody else's posting pictures on Facebook
[00:01:45.500]about how fun it is for their kids
[00:01:47.340]to hang out with their mom, that is painful for me.
[00:01:50.420]When other people went to father's day celebrations
[00:01:53.460]and I'm in the dementia ward feeding my dad mashed potatoes,
[00:01:56.980]that was hard.
[00:01:58.580]And I think it's really easy for us as educators
[00:02:02.830]to not realize how hard it is
[00:02:06.690]to parent non-neurotypical children
[00:02:09.860]in a neurotypical world.
[00:02:12.010]And families please hear me in this room,
[00:02:14.580]I have represented public school districts for 25 years.
[00:02:18.120]I have never had a school say, "I don't like that kid.
[00:02:21.650]I want to screw her over," right?
[00:02:24.680]But educators, I think we forget
[00:02:27.410]that when we're in the IEP meeting,
[00:02:29.220]having this difficult conversation,
[00:02:31.480]it's a difficult conversation
[00:02:32.850]that the family had at the doctor's office,
[00:02:35.170]and at church
[00:02:36.030]when the kid got thrown out of the wonner,
[00:02:38.010]and at the family reunion,
[00:02:39.610]when everybody else's kid was perfect
[00:02:41.330]and your kid was different.
[00:02:42.930]And I just think we carry that baggage with us
[00:02:46.190]into these new meetings.
[00:02:47.700]And it's been a hard year, yes?
[00:02:50.270]And I think all of that anxiety and stress,
[00:02:53.860]and it's just really, really hard,
[00:02:55.670]we would do so much better if we could all assume the best
[00:02:59.480]about the people across the table at the IEP meeting,
[00:03:02.260]instead of assuming the worst.
[00:03:03.990]And so I'm gonna give you the year-in-review
[00:03:06.260]and do all the legal stuff,
[00:03:07.360]but this is just my heartfelt plea
[00:03:09.340]as an education community,
[00:03:10.790]both parent side and education side,
[00:03:13.000]I just wish we could give each other more grace
[00:03:16.540]'cause it's been tough, yes?
[00:03:19.270]Okay, so with that being said,
[00:03:20.990]now we'll get to the lawyer part.
[00:03:23.310]I do need to explain to you just like it said
[00:03:26.070]in the introduction.
[00:03:27.070]All I do in my professional practice
[00:03:29.270]is represent public school districts.
[00:03:31.490]Before I went to law school, I was an educator.
[00:03:33.750]I've spent my entire professional career
[00:03:36.070]in public education.
[00:03:37.470]So I come to special ed law with the bias, right?
[00:03:40.760]I mean, I own that bias.
[00:03:42.420]I have built in some stuff that I think will be interesting
[00:03:45.630]for family side advocates and families and self advocates.
[00:03:48.630]But if you hear me sound like I'm on the school side,
[00:03:51.150]when I talk about this stuff, it's because I am, right?
[00:03:54.030]I get paid to be on the school side.
[00:03:56.040]And so I try to be even handed,
[00:03:58.370]but if you hear me speaking special ed
[00:04:00.610]with a school district accent,
[00:04:02.450]that's because that's how I learned it, right?
[00:04:04.880]I also am not any individual person's attorney
[00:04:08.290]in this room, right?
[00:04:09.520]I always joke.
[00:04:10.910]Please don't come up to me after this session
[00:04:12.510]and tell me how you just are ignoring IEPs left and right
[00:04:15.240]and putting kids in closets or stealing money
[00:04:17.070]or whatever it is,
[00:04:18.190]you're drinking liquor in the resource room.
[00:04:24.600]Don't tell me that stuff, right?
[00:04:26.510]'Cause I represent your employer probably.
[00:04:28.950]And so I'm gonna have to tattletale you out.
[00:04:32.140]Technically, these slides are not legal advice,
[00:04:34.330]they're for education purpose only.
[00:04:37.250]Terms and rates may vary.
[00:04:39.700]So here's the game plan for today,
[00:04:42.920]there's two Supreme Court cases that are fairly recent
[00:04:45.860]that I think every educator should know,
[00:04:47.710]even though these two cases are not special ed specific.
[00:04:50.530]So I wanna start with those two.
[00:04:52.310]Then I pulled some very recent COVID services
[00:04:56.560]and students on the spectrum cases
[00:04:59.370]that I think are interesting.
[00:05:00.630]They're Hearing Office and District Court level cases.
[00:05:02.900]So they're not the tippy top level
[00:05:04.690]like a lot of times I do in year-in-review,
[00:05:06.870]but I think each one of the cases
[00:05:08.190]has an interesting lesson learned
[00:05:10.120]that will be useful for everybody in the room.
[00:05:12.760]Then I wanna go to Child Find and evaluations.
[00:05:15.510]There's some good recent circuit-level cases on that.
[00:05:18.710]FAPE and services, stay-put, discrimination, retaliation,
[00:05:24.330]and, my clicker have a pointer, and constitutional claims.
[00:05:27.110]I think that maybe as far as we get, right?
[00:05:29.760]If we do get farther,
[00:05:31.200]we'll talk about administrative exhaustion.
[00:05:33.080]That's the question of whether they have to go
[00:05:35.370]through due process to sue the school
[00:05:37.280]or the family can go straight to federal court.
[00:05:39.830]And then finally again, I don't know if we'll give to it,
[00:05:41.850]but I included the cases and the materials.
[00:05:44.540]For those of you who are special ed administrators.
[00:05:47.270]I am also very worried about the mental health of our staff.
[00:05:50.980]And I think having that as a consideration
[00:05:54.560]and being aware of some of the legal issues
[00:05:56.300]around staff members that are exhibiting atypical behaviors
[00:06:00.170]based on mental health needs is also very useful.
[00:06:02.670]So I've got that at the tail end if we get to it.
[00:06:12.670]This guy's wife is a teacher
[00:06:14.720]and for like 250 bucks a year,
[00:06:16.360]he gives us a copyright to use all of his stuff.
[00:06:18.240]And he's just phenomenal, I love him so much.
[00:06:21.010]Okay, so there's two cases I think every should know about.
[00:06:24.180]The first one is this Mahanoy case.
[00:06:26.330]And if you have seen a KSB attorney
[00:06:28.390]do a digital citizenship presentation to your students,
[00:06:30.850]you've heard this,
[00:06:32.370]but I wanna give you the educator's spin.
[00:06:34.150]And if you haven't heard about this case, it's really fun.
[00:06:36.780]It's a cheerleading case.
[00:06:38.250]So you know there is good drama involved.
[00:06:42.150]Quick footnote, I did a session for the Alabama case
[00:06:45.170]a few years ago on extracurriculars
[00:06:47.430]and it was one cheerleader case after another.
[00:06:49.530]So I made some kind of shitty remark like,
[00:06:51.387]"Well, of course it's another cheerleader case."
[00:06:53.050]And at the end, one of the special ed directors
[00:06:55.560]for a big school district down there came up after me,
[00:06:57.170]she goes, "You know, down here,
[00:06:58.990]we don't joke about cheerleading y'all.
[00:07:00.940]That's not funny."
[00:07:02.790]Like, okay.
[00:07:03.623]So if I talk about Mahanoy in Alabama, I'll change it.
[00:07:07.010]But up here, I can say cheerleading, big girl drama,
[00:07:10.760]right?
[00:07:12.860]So this is a sophomore in high school.
[00:07:15.820]She had tried out for cheer the year before
[00:07:17.610]and made the JV team as a freshman.
[00:07:20.040]So she thought she was really hot poop.
[00:07:22.020]And so she tries out for cheerleading as a sophomore
[00:07:24.540]and gets to put back on the JV team, which is outrageous.
[00:07:28.810]How could she stand it?
[00:07:32.270]So I think I have a screenshot.
[00:07:33.900]She does what every ticked off cheerleader does.
[00:07:37.750]She's at the Coco Hut, that is also hilarious to me.
[00:07:41.260]Their version of the quick shop is the Coco Hut.
[00:07:43.620]She and a friend flip off the camera.
[00:07:46.600]The caption says, "F cheer, F softball,
[00:07:49.630]F school, F everything."
[00:07:52.340]This is followed by a post to her story that says,
[00:07:54.447]"Love how me and,' this is this girl's name, I took it out,
[00:07:58.017]"get told we need a year of JV before we make varsity,
[00:08:01.630]but that doesn't matter to anyone else."
[00:08:06.180]When I talk to kid about this case, I always say,
[00:08:09.447]"If you're gonna put something stupid on Snapchat
[00:08:11.730]that goes all the way to the U.S. Supreme Court,
[00:08:14.460]proofread before you hit post."
[00:08:16.315](audience laughing)
[00:08:24.160]So in this school district,
[00:08:25.710]every cheerleader was required to sign
[00:08:28.210]the cheer constitution.
[00:08:30.670]And the cheer constitution, the cheerleader said,
[00:08:33.427]"I will not curse online,
[00:08:35.620]I will not criticize the school online,
[00:08:38.260]and I think most importantly,
[00:08:39.870]I will not criticize the cheerleading program online," okay.
[00:08:43.610]Two members of the cheer team see this on,
[00:08:46.200]this girl's name is Brandy.
[00:08:47.580]The caption is BL, but her name's Brandy.
[00:08:49.780]Two girls see this on Brandy's story, screenshot it,
[00:08:52.760]take it to the cheer sponsor.
[00:08:54.390]Cheer sponsor dismisses her from the squad
[00:08:56.530]for the entire year.
[00:08:58.640]Mom and dad get an attorney from the ACLU.
[00:09:01.750]This case goes all the way up to the U.S. Supreme Court.
[00:09:04.650]At this point, you are saying to me,
[00:09:06.437]"Karen, this is very interesting.
[00:09:08.210]It has very little to do with autism," yes?
[00:09:10.981](audience laughing)
[00:09:12.570]However, the question that the Supreme Court
[00:09:18.080]had to answer was does a school district
[00:09:21.590]have any responsibility for the information
[00:09:24.490]that students post on social media platforms
[00:09:27.590]outside the school day, not using school computers,
[00:09:31.010]and not at a school activity?
[00:09:32.880]And students with autism and other disorders,
[00:09:36.570]which affect their communication,
[00:09:38.690]find a great deal of social interaction
[00:09:41.650]on social media platforms, right
[00:09:43.840]So I think this is acutely relevant
[00:09:46.080]to people that serve students with autism,
[00:09:48.760]whether on the school side or elsewhere,
[00:09:51.370]because how we inculcate appropriate social values,
[00:09:55.110]how we teach kiddos what is and is not appropriate
[00:09:58.760]to put on Snapchat, that is very relevant
[00:10:01.010]to what we do on a daily basis.
[00:10:03.270]So the District Court ruled in favor of the family,
[00:10:08.970]the Third Circuit ruled in favor of the family,
[00:10:11.760]which really freaked us out because the Third Circuit said,
[00:10:14.537]"If it's off campus, the school can't do anything about it."
[00:10:17.420]And every school lawyer in the country
[00:10:18.990]like lost our flipping minds,
[00:10:20.830]'cause that would be wildly inappropriate.
[00:10:24.010]So the Supreme Court ultimately held this past June:
[00:10:27.500]Number one, schools can regulate off-campus speech,
[00:10:31.620]including social media posts,
[00:10:33.750]but the school has to establish
[00:10:35.900]that the post created a material
[00:10:38.380]and substantial disruption at school.
[00:10:41.660]Now, if that standard sounds vaguely familiar to you
[00:10:44.530]from some undergraduate class a dozen or so years ago,
[00:10:47.830]you children, the Tinker case in 1968
[00:10:51.660]is the case that established
[00:10:52.950]the material and substantial disruption standard.
[00:10:54.960]So what this case says is we're gonna use the same rule,
[00:10:57.620]on campus, off campus, in person, social media,
[00:11:00.530]it's all driven by this idea
[00:11:02.090]of material and substantial disruption.
[00:11:04.700]The court said the school district is not responsible
[00:11:09.190]for teaching values and civility off campus.
[00:11:12.490]And then they actually said, I kid you not,
[00:11:15.300]that is what parents do,
[00:11:17.370]schools don't have to do that for them.
[00:11:23.480]And actually in all sincerity, I call BS on that
[00:11:26.650]because what we do all the time is collaborate with parents
[00:11:29.820]to inculcate civility and social values.
[00:11:31.820]But be that as it may, that's what the Supreme Court held.
[00:11:34.270]It said, "Court should be skeptical of discipline
[00:11:36.280]for off-campus speech that is functionally a 24/7 rules
[00:11:39.780]because we're not in loco parentis after school hours
[00:11:42.950]and schools are nurseries of democracy
[00:11:44.960]where students should learn
[00:11:45.940]that they do have free speech rights."
[00:11:48.810]However, and this is where another place
[00:11:51.040]I think every special educator should be familiar with,
[00:11:53.720]the Supreme Court said,
[00:11:55.137]"That does not mean that it's open season online.
[00:11:59.680]School districts not only are permitted,"
[00:12:01.960]but the Supreme Court said,
[00:12:03.167]"would be required to take action for student speech online
[00:12:09.250]that constitutes bullying, harassment, or threats."
[00:12:13.370]The data on bullying and harassment
[00:12:15.430]involving students with disabilities
[00:12:17.470]shows that students with disabilities are both the victim
[00:12:20.890]of online harassment and the perpetrator
[00:12:23.960]of online harassment at about three to four times
[00:12:26.890]the rate of typical developers, right?
[00:12:29.350]So again, when the student on the spectrum gets angry
[00:12:32.480]and posts on Snapchat, I'm come with the gun and kill you,
[00:12:35.680]and you know, because you work with that kiddo every day
[00:12:39.310]that this is not a true threat,
[00:12:41.580]you are gonna be drawn into the discussion
[00:12:43.620]about whether or not that post is a threat
[00:12:46.440]that has created a material and substantial disruption.
[00:12:49.780]And most of your principles do not.
[00:12:51.560]I mean, we're trying to get the word out
[00:12:53.340]about this case, but I don't think the education community
[00:12:56.010]has a hundred percent like internalized this case yet.
[00:13:00.550]And so the idea that it's not open season on Snapchat,
[00:13:04.600]but we can't just discipline as we want
[00:13:06.590]using the extracurriculars as the basis,
[00:13:08.780]that's a big takeaway that a lot of schools
[00:13:10.700]have not gotten to yet.
[00:13:12.500]So that's, Mahanoy.
[00:13:13.950]One quick footnote.
[00:13:14.890]I'm mentioned this other case
[00:13:16.530]in my mental health presentation for tri-state.
[00:13:19.370]So if you already heard about it, I'm sorry,
[00:13:20.990]but there's a case where a student
[00:13:23.710]allegedly had like a hit list
[00:13:26.410]and the kids brought that to the principal.
[00:13:28.180]They searched the locker, they searched the backpack,
[00:13:29.790]they can't find it.
[00:13:30.930]School psych being the helpful little person that she is,
[00:13:34.960]that's how you all our school psychs, love you.
[00:13:37.450]No, I mean it.
[00:13:39.400]So the school psych thinks,
[00:13:40.810]Hey, maybe we should go look at this kid's Instagram
[00:13:43.060]to see if he's posted anything.
[00:13:44.520]And the kid's Instagram is full of threats
[00:13:48.000]and a bunch of racist vile stuff.
[00:13:50.240]And so this school excludes the kid,
[00:13:53.770]does an emergency exclusion for a whole semester
[00:13:56.250]on the basis that his Instagram posts were threatening
[00:14:00.100]and you had created a disruption at the school environment.
[00:14:02.360]Who's gonna win that case.
[00:14:06.470]No, school didn't win it, kid won it
[00:14:08.460]because there was not a material and substantial disruption
[00:14:11.260]'cause the school psych went looking for it, right?
[00:14:16.120]If the kids who had reported the hit list
[00:14:18.500]had brought it to school,
[00:14:20.790]then we might have had an argument
[00:14:22.470]that there was a material and substantial disruption.
[00:14:24.880]But when the psych went looking for it,
[00:14:26.970]that did not permit the school to discipline.
[00:14:29.510]What do you all do all the time?
[00:14:31.300]Try to create good positive social relationships
[00:14:33.680]with kids, right?
[00:14:34.810]And sometimes that includes interacting with them online.
[00:14:37.930]Be aware that the rules have shifted
[00:14:40.420]for stuff that you see online
[00:14:41.980]that kids have not reported to you.
[00:14:44.970]Again, I think Mahanoy is gonna have impacts
[00:14:47.320]on a lot of folks.
[00:14:49.180]Okay, the second Supreme Court decision
[00:14:50.650]is actually not a Supreme Court decision.
[00:14:52.520]It's a refusal by the Supreme Court to take an appeal.
[00:14:56.010]So Gavin Grimm is a student
[00:14:58.310]who is assigned the gender of female at birth.
[00:15:01.530]Gavin transitioned to a male, identifies as male.
[00:15:06.400]And so here, I think this is the most important thing.
[00:15:09.450]Every educator in the please hear this story,
[00:15:11.400]'cause I want you to hear this,
[00:15:12.930]Gavin goes to the principal and says,
[00:15:15.127]"I'm going to transition to being a male."
[00:15:17.940]And the principal says, "We wanna work with you, Gavin.
[00:15:20.430]You can use the boys' restroom.
[00:15:22.100]We'll do everything we can."
[00:15:24.270]Does not talk to the superintendent,
[00:15:25.930]does not talk to the board.
[00:15:27.730]Gavin uses the boys' restroom for several weeks, no problem.
[00:15:32.480]People in the community get wind
[00:15:35.060]that Gavin is using the boys' bathroom.
[00:15:37.800]They show up at the board meeting
[00:15:39.370]and start screaming at the board, right?
[00:15:42.260]Board passes a policy that says,
[00:15:45.527]"Students must use the bathroom facilities
[00:15:48.170]of the gender that they were assigned to at birth.
[00:15:50.990]Gavin must use the girls bathroom."
[00:15:53.270]That prompts a big fat lawsuit
[00:15:56.000]that was pending before the U.S. Supreme Court
[00:15:58.110]when Donald Trump was elected.
[00:15:59.320]That's how old this case is.
[00:16:01.470]Trump gets elected,
[00:16:02.440]Trump's Department of Justice changes its position.
[00:16:04.810]The Supreme Court says,
[00:16:05.687]"Well, maybe we don't need to hear this case."
[00:16:07.800]They send it back down to the lower courts.
[00:16:09.960]And Gavin's been litigating that claim
[00:16:12.200]ever since Trump was elected president.
[00:16:15.980]It got back up to the U.S. Supreme Court
[00:16:18.870]and Gavin won all the way through, right?
[00:16:22.440]Now, here's why I make this big deal
[00:16:24.400]about talking to the principal.
[00:16:26.270]The school's argument was Gavin using the boy's restroom
[00:16:30.710]was going to create a material and substantial disruption.
[00:16:33.900]It's like the same legal standard, right?
[00:16:35.650]They were like, "We can't have boys in the girls' bathroom
[00:16:37.980]or girls in the boys' bathroom.
[00:16:39.480]It'll be chaos, dogs and cats sleeping together."
[00:16:41.940]And what evidence did the court use against the school
[00:16:46.830]for this disruption argument?
[00:16:49.980]Yep, he'd used it for several weeks with no trouble, right?
[00:16:53.880]Here's why I want you to hear that.
[00:16:55.850]We have students with gender identity issues
[00:16:57.820]all over the place.
[00:16:58.690]I don't care what size your school is,
[00:16:59.900]you have kiddos that are struggling with this.
[00:17:02.110]I want you to be very cautious
[00:17:03.850]'cause your instinct is to say,
[00:17:05.987]"Yes, child, whatever it takes
[00:17:08.330]for you to receive education, I am here for you."
[00:17:11.150]And I love that about you, but please be careful.
[00:17:14.780]Do not had a check
[00:17:15.970]that your school board is not willing to cash, right?
[00:17:18.980]This is a decision that the board of education should make,
[00:17:22.320]not the individual classroom teacher.
[00:17:24.810]Now I will tell you I'm advising clients
[00:17:27.010]that call me on these issues.
[00:17:29.240]The litigation is overwhelmingly clear
[00:17:31.150]that trans individuals are winning these claims,
[00:17:33.740]but you, none of you are paid
[00:17:35.730]as much to the school board member is.
[00:17:40.020]In all sincerity that's a decision
[00:17:41.630]that should rest in the sound discretion of the board,
[00:17:43.460]not you, okay?
[00:17:45.270]So that I think Gavin is a cautionary tale
[00:17:47.510]of educators trying to do the right things for a kid
[00:17:50.220]and actually creating a record in the litigation
[00:17:53.150]that hurt the school district.
[00:17:54.610]Now I'm not saying the school would've won otherwise,
[00:17:56.510]but they used that against the school to great effect.
[00:18:00.250]Last thing I'll say about trans issues.
[00:18:02.520]So the Betsy DeVos administration issue Title IX regulations
[00:18:06.300]that became effective in August of 2020.
[00:18:08.830]You know, the most sensible time
[00:18:10.490]to make huge changes in the law
[00:18:12.050]was in the middle of the pandemic.
[00:18:15.600]The Biden administration from jump
[00:18:17.440]has been trying to get those changed.
[00:18:19.290]They are going to release new Title IX regulations
[00:18:22.250]either this month or next.
[00:18:24.200]I just came from a presentation
[00:18:25.930]at the National School Attorney's Conference
[00:18:27.600]by Catherine Lhamon,
[00:18:28.440]who's the person in charge of this stuff.
[00:18:30.490]Those regulations, I'm just here to tell you,
[00:18:32.500]they are going to give trans individuals
[00:18:34.910]the full protection of Title IX, which I'm cool with.
[00:18:37.960]I actually think that makes a lot of legal sense,
[00:18:40.140]but that is going to be a crap storm politically, right?
[00:18:44.660]So I just think we need to be ready.
[00:18:46.030]Those of us that are serving students with disabilities
[00:18:48.150]who also have gender identity issue use,
[00:18:50.410]I think you're gonna need to be ready
[00:18:51.550]to like weather that storm
[00:18:54.020]because it is going to blow up big time
[00:18:55.990]here in the next four to six weeks.
[00:18:58.220]So that's Gavin.
[00:18:59.053]Oh, Supreme Court declined to hear the school's appeal.
[00:19:01.730]So basically what the Supreme Court said was,
[00:19:04.407]"Gavin has the right to use the boys' bathroom."
[00:19:07.640]School board paid the ACLU $1.3 million in attorney's fees
[00:19:14.720]in this case.
[00:19:27.130]The reason I think this cartoon is so appropriate
[00:19:29.380]for this section of slides is I think
[00:19:31.390]that a lot of school attorneys myself included
[00:19:33.530]when we first had the COVID shutdowns,
[00:19:35.640]we were like, dang,
[00:19:37.210]this is gonna open the flood gates of litigation
[00:19:39.430]and it's gonna be, you know,
[00:19:41.040]I'll driving a $6 million car or whatever.
[00:19:45.410]There has been litigation involving COVID
[00:19:47.880]and services for special education students
[00:19:50.610]during the shutdown and beyond.
[00:19:52.570]But those cases actually I don't think they're crazy wild.
[00:19:56.650]And I think one of the benefits of COVID
[00:20:00.260]is they are teaching us good stuff for legally
[00:20:02.590]about the IDEA and Section 504 processes.
[00:20:06.370]So a couple of cases here.
[00:20:08.430]This first one is a Los Angeles Unified School District.
[00:20:11.470]This is a student who's on the autism
[00:20:13.800]or has autism spectrum disorder.
[00:20:15.680]And this student is significantly impaired
[00:20:18.110]in the functions of daily life.
[00:20:20.400]She had 1,570 minutes per week
[00:20:25.360]of special education transition services,
[00:20:28.250]that it was an ABA Lovaas kind of program.
[00:20:30.990]Not per week, that's gotta be per month.
[00:20:34.610]Huge, huge needs for this kiddo.
[00:20:38.530]It could be, actually now that I think about it,
[00:20:40.670]but so the school closes and this is the nightmare scenario
[00:20:43.560]for all of us, right?
[00:20:44.393]School closes and there is no way for the school
[00:20:47.270]to provide this girl with the in-person services
[00:20:49.790]that the IEP said she was gonna get.
[00:20:52.610]So instead she received virtual services
[00:20:55.550]and the parent acknowledged,
[00:20:57.297]"Hey, the school did the very best it could.
[00:20:59.640]We are not even really that mad at the school,
[00:21:02.300]but we think that the school should have to pay
[00:21:04.580]for comp-ed services to compensate for the fact
[00:21:08.040]that the student missed out on these educational services."
[00:21:10.940]And one of the things,
[00:21:11.780]those of you that heard me talk during the shutdown
[00:21:13.730]you heard me say is they can close down the schools,
[00:21:16.540]but only an act of Congress can suspend
[00:21:18.910]the applicability of the IDEA, right?
[00:21:21.490]Like the director of the Douglas County Health Department
[00:21:23.950]can put us all on masks again,
[00:21:25.670]but she cannot suspend the IDEA.
[00:21:28.710]And so when the family filed this complaint,
[00:21:30.740]the California State Department of Education agreed,
[00:21:33.310]ordered 41, only 41 hours of compensatory education.
[00:21:37.770]This is one that the school lost,
[00:21:40.440]but do you see that we really didn't lose, right?
[00:21:43.430]This idea that conditions were tough,
[00:21:46.340]you were doing the best you could.
[00:21:47.910]We're going to give them like a victory,
[00:21:50.230]but not tag the school.
[00:21:52.160]This is very typical of the cases
[00:21:54.310]that I see coming out of COVID.
[00:21:57.150]Clark County Schools, this is a student
[00:21:58.940]with multiple disabilities.
[00:22:00.140]And again, very involved IEP.
[00:22:02.540]I hate hate, hate, hate IEPs
[00:22:05.600]that call for handover hand support,
[00:22:07.630]it just makes me nervous.
[00:22:09.700]But anyway, a whole bunch of supports.
[00:22:13.900]This is a family that had pretty good relationships
[00:22:16.190]with the school.
[00:22:17.270]This parent hates the school, has filed multiple complaints.
[00:22:23.120]And so shutdown happens in March of 2020,
[00:22:26.640]and they tried to serve this kid virtually.
[00:22:30.510]I love this description.
[00:22:32.170]They engaged in very creative and persistent efforts
[00:22:35.900]to engage the student in virtual instruction.
[00:22:38.470]We all learned during the shutdown students on the spectrum,
[00:22:41.680]oftentimes are not really gonna look at a screen
[00:22:44.410]and engage in a Zoom session for hours on end, right?
[00:22:48.190]They actually offered a virtual one-on-one aid.
[00:22:50.620]So this poor aid was like watching the kid
[00:22:52.400]not watch the Zoom for eight hours a day.
[00:22:54.234](audience laughs)
[00:23:01.550]Despite all these efforts,
[00:23:03.230]this kid would not meaningfully engage.
[00:23:06.500]And so the district, yeah, no doubt.
[00:23:10.690]These virtual service not appropriate for this kid.
[00:23:13.790]We could either be cite by the police
[00:23:15.930]for violating the stay-at-home order
[00:23:17.920]or we can keep trying to serve in virtually.
[00:23:19.580]But, that's kind of the choices that we got.
[00:23:22.870]The State Department of Ed,
[00:23:24.380]despite the pandemic and the good faith efforts
[00:23:26.470]to educate the student,
[00:23:28.240]the school district was not relieved of the obligation
[00:23:31.230]to provide services in conformity with the IEP.
[00:23:33.910]School loses, right?
[00:23:36.570]They say that the kid did not meaningfully benefit
[00:23:39.650]from his services, but look here.
[00:23:41.860]And this is the language I think educators
[00:23:43.860]that you wanna have handy.
[00:23:45.457]"Parent was afforded meaningful participation
[00:23:47.840]despite districtwide decisions
[00:23:50.230]because when Congress enacted the IDEA,
[00:23:53.460]they did not intend for the IDEA
[00:23:55.260]to apply to systemwide administrative decisions."
[00:23:58.510]So when the entire system shut down,
[00:24:01.200]the parent didn't get to come and say,
[00:24:03.617]"No, I don't and agree with the shutdown decision,"
[00:24:06.410]but the parent did get to have
[00:24:08.190]meaningful parental participation
[00:24:10.090]in the decisions as they applied to her kid, right?
[00:24:14.940]SEA ordered just to have a meeting
[00:24:17.310]and discussed compensatory education services.
[00:24:19.860]But again, notice school loses,
[00:24:22.330]but the school could have gotten tagged
[00:24:23.670]with a ton of hours of comp-ed here.
[00:24:26.220]And the only thing the SEA ordered
[00:24:27.600]was to have another meeting and to try to work out a plan.
[00:24:31.327]And this is again, very typical of what I'm seeing.
[00:24:33.340]Schools are not getting hammered, they're being told,
[00:24:35.937]"Try to work with the family
[00:24:37.130]and offer something reasonable."
[00:24:38.910]But you know, they're trying to thread the needle.
[00:24:43.110]I know the attorney that represents this school district.
[00:24:46.240]I think the Rabel family has sued them.
[00:24:49.170]I think there are 13 or 14 recorded decisions
[00:24:53.880]of this family suing this school.
[00:24:56.490]The attorney that represents this school is like,
[00:24:59.327]"Oh yeah, I know mom's first and last name,
[00:25:02.190]dad, mother-in-law, brother-in-law."
[00:25:03.830]Like you knows the whole family.
[00:25:08.070]And it's a complicated situation
[00:25:09.560]'cause this little girl has down syndrome
[00:25:11.270]and is on the spectrum.
[00:25:13.680]Student has just some real extreme behaviors,
[00:25:18.930]physically aggressive,
[00:25:20.430]mom and dad don't want the school putting hands on her.
[00:25:23.950]But now the flip side is,
[00:25:25.307]and I've got another one of these cases by this family
[00:25:27.800]against this school later on in the deck,
[00:25:29.500]school has not done a great job of documenting
[00:25:31.530]when they put hands on her.
[00:25:32.580]And so it's just one of those just bad situations.
[00:25:35.860]But this case is about COVID services.
[00:25:38.260]Before COVID she spent most of her time
[00:25:41.290]in a self-contained classroom,
[00:25:42.910]'cause it really wasn't safe for her
[00:25:44.260]to be with typically developing peers in the classroom.
[00:25:46.960]When the school district shut down, the parents said,
[00:25:51.387]"Okay, since she won't be aggressive towards her peers,
[00:25:55.170]we want her in the same virtual instruction
[00:25:57.870]that her typically developing peers get."
[00:25:59.830]See the parents' argument?
[00:26:01.549]Since safety's not a concern,
[00:26:03.840]she should be learning algebraic equations
[00:26:06.070]with everybody else.
[00:26:06.903]And the school was like, "That is not a appropriate."
[00:26:09.590]And so they contracted with a private service provider
[00:26:12.260]to do live synchronous instruction with this little girl,
[00:26:17.500]instead of like the flipping and stuff
[00:26:19.020]that a lot of schools were doing.
[00:26:21.320]So basically this is an LRE fight,
[00:26:23.620]whether the least restrictive environment is at home
[00:26:26.170]in a virtual school with typically developing peers
[00:26:29.390]or at home in a virtual school with a private provider.
[00:26:32.090]Isn't that interesting?
[00:26:33.920]I just think this is fascinating.
[00:26:36.306]I think this case is cool.
[00:26:38.970]So that's what they did for the March shutdown.
[00:26:42.610]For 2021 like a lot of big school districts,
[00:26:45.650]this school gave parents the choice
[00:26:47.680]either come to school in person or do virtual school.
[00:26:52.150]The family said, "We pick virtual school.
[00:26:54.440]And again, we want virtual school with her peers,
[00:26:57.780]not with this specialized program,"
[00:27:00.550]because the family's position is,
[00:27:02.090]and I think not without some data,
[00:27:04.540]student is cognitively very capable.
[00:27:06.780]It's these social and emotional and out-of-control behaviors
[00:27:09.840]that are interfering with her access to education.
[00:27:12.900]So the family sues again saying,
[00:27:14.487]"You said everybody in the district gets to choose
[00:27:17.250]in-person or virtual.
[00:27:18.770]We pick virtual and you're not giving us
[00:27:21.080]the same virtual choice that everybody else got,
[00:27:23.040]you're still sticking us with this private provider."
[00:27:26.723]IEP team said, "No, it would be more appropriate
[00:27:29.580]to have this other private provider provide.
[00:27:32.560]Also, she would be the only kid in her class
[00:27:35.060]who had chosen virtual instruction."
[00:27:37.290]So you're kind of cutting off your nose
[00:27:38.700]despite your face, right?
[00:27:39.630]It's not like there's even other peers
[00:27:42.000]on the Zoom Hollywood square.
[00:27:43.950]It would just be you.
[00:27:45.640]But I think the parents are really wanting
[00:27:47.720]to not have the behavioral therapy,
[00:27:50.470]they just want super strong academics.
[00:27:53.350]School won this.
[00:27:55.290]School won this.
[00:27:56.170]The focus was on whether the student
[00:27:57.930]can receive a satisfactory education
[00:27:59.970]in the mainstream setting,
[00:28:01.550]and if not, what the appropriate placement is.
[00:28:04.620]All the data indicated the student
[00:28:06.240]could not receive FAPE
[00:28:07.750]in the setup that they had for everybody else for Zoom.
[00:28:10.980]Again, I think this is useful and interesting.
[00:28:16.140]Please, Jesus,
[00:28:17.220]I don't think we're gonna have COVID shutdowns again,
[00:28:20.020]but we are going to have students who,
[00:28:22.260]for various reasons either can't come to school,
[00:28:25.030]because their behaviors are unsafe.
[00:28:26.600]And so we're home-bounding them for the moment
[00:28:28.860]or whose families would prefer to have them home bounded
[00:28:31.270]because of COVID outbreaks
[00:28:32.670]or whatever's coming along, right?
[00:28:34.420]This case tells us that it is squarely within the purview
[00:28:37.610]of the IEP team to look at the data
[00:28:40.270]and decide what's appropriate for the kid,
[00:28:42.530]and that virtual instruction is a placement
[00:28:46.030]on the LRE continuum that the team can consider
[00:28:49.700]and that different kinds of virtual
[00:28:51.260]can be different kinds of placements,
[00:28:52.790]which again, I think that gives us another tool
[00:28:54.890]in the arsenal to deal with placement decisions.
[00:28:58.550]So that's COVID and the cases on autism spectrum disorder
[00:29:03.160]that have come out.
[00:29:09.890]Those of you that were in my last session
[00:29:11.740]you've heard that Child Find is one of my huge hobby horses.
[00:29:16.410]Principles, like we have hired new attorneys in the office
[00:29:20.330]and I kid you not, there is something called the KSB Bible
[00:29:23.540]where we say like here's what you have to say
[00:29:25.860]on the phone to a client.
[00:29:27.040]And one of them is anytime a client
[00:29:29.480]is asking to discipline a child, you must ask the principal,
[00:29:33.667]"Does the child have an IEP or a Section 504 plan?"
[00:29:37.200]And when the principal says no,
[00:29:39.780]the next question is, should she, right?
[00:29:43.590]Like we have a brand new baby lawyer that we've hired.
[00:29:45.740]I heard her say that to a client on the phone.
[00:29:48.470]And I literally walked in and high fived her
[00:29:50.920]after she said it, right?
[00:29:52.170]Good job, Sarah.
[00:29:53.640]Oh, God, that was distressing.
[00:29:56.197]Oh my God.
[00:29:57.030](audience laughing)
[00:30:00.828]I didn't know that.
[00:30:01.661]Has been going on this whole time?
[00:30:03.600]Oh, good. (presenter laughs)
[00:30:10.930]Sorry.
[00:30:12.080]God, there's video evidence that someone could see
[00:30:14.070]and tell my mom about.
[00:30:15.812](audience laughing)
[00:30:17.860]Here's my point.
[00:30:18.920]And in all sincerity,
[00:30:20.340]this happens over and over and her again.
[00:30:22.770]It is our job as special education providers,
[00:30:26.120]families, and advocates to continually emphasize
[00:30:29.290]to gen ed people that just because a child is smart
[00:30:34.640]does not mean they aren't in need
[00:30:36.950]of special education services, right?
[00:30:39.930]And if the child's behavior is maladaptive
[00:30:42.300]in such a way that it's interfering
[00:30:43.740]with their receipt of education,
[00:30:45.540]that can be a trigger for us to verify
[00:30:47.490]and for the MDT to find that the kid qualifies for services.
[00:30:51.480]Principals just still don't get that.
[00:30:54.020]So we just need to continually hammer that home.
[00:30:59.173]This is a case where a student
[00:31:01.770]is actually progressing pretty well.
[00:31:04.440]Mom is not happy with the services,
[00:31:06.210]but the school's data indicates
[00:31:07.530]that the kid is actually making good academic progress.
[00:31:10.440]Mom gets upset with the school district,
[00:31:12.800]places the child into a private school.
[00:31:15.840]Quick footnote.
[00:31:17.490]We have good private schools in Nebraska
[00:31:19.690]and we have families that opt for private.
[00:31:22.180]What I more frequently see in this kind of situation
[00:31:25.920]in Nebraska is not that mom puts the kid
[00:31:28.300]into a private school,
[00:31:29.620]but that mom homeschools for a year or a semester, right?
[00:31:33.910]Because I think we've done a pretty good job
[00:31:36.240]of being aligned with our privates.
[00:31:38.070]And so it's not like the publics and privates
[00:31:40.570]are throwing bombs at each other.
[00:31:42.600]So when you go to like the tri-state or other places,
[00:31:46.040]when you see these parental placement
[00:31:47.630]and private school decisions,
[00:31:50.100]think in the back of your mind
[00:31:51.150]if you have a homeschool parent,
[00:31:52.470]that this is a similar fact pattern
[00:31:54.220]because that's what would happen here
[00:31:55.720]if she would've homeschooled her if she was in Nebraska.
[00:31:58.810]So she puts into a private school
[00:32:02.500]and friends, every case manager in the room,
[00:32:05.100]notice this, school did exactly what it's supposed to do,
[00:32:07.890]sent a letter to the parent saying,
[00:32:09.997]"So sorry that you've put Johnny into private school.
[00:32:12.570]Good luck.
[00:32:14.150]When you're ready to receive FAPE again,
[00:32:16.370]we are ready, willing, and able."
[00:32:17.690]And here's the IEP that the team adopted, right?
[00:32:20.340]If the parent gets mad and storms out of the room and says,
[00:32:22.547]"I'm homeschooling," you still need to finalize that IEP.
[00:32:26.460]You still need to provide a copy of that IEP to the family
[00:32:29.470]and you tell the family that the school district
[00:32:31.230]remains ready, willing, and able to serve the kid
[00:32:33.830]if the family changes their mind.
[00:32:35.810]Here, kid goes to private school for a year, a year later,
[00:32:40.360]and so many of these disputes happen here.
[00:32:42.890]The transition between elementary and middle school.
[00:32:45.770]So mom emails the principal of the middle school and says,
[00:32:50.377]"Hey, what can you offer my kid if he comes back?"
[00:32:53.560]And I think what mom is saying is, can I get a fresh start
[00:32:57.270]and not have the stuff I didn't like in the old IEP,
[00:32:59.990]can we start from scratch?
[00:33:01.810]Principal forwards the email on now to the middle school
[00:33:06.420]or junior high special ed coordinator who says,
[00:33:10.137]"You know, here's generally what we have.
[00:33:11.750]You know, we have this and that and the other thing,"
[00:33:13.230]but the school did not convene an IEP team meeting,
[00:33:15.920]did not formally reinitiate the process
[00:33:19.200]to qualify the kid for special education services.
[00:33:23.520]Oh, and at the same time,
[00:33:24.620]mom sent this email about this boy.
[00:33:26.990]He had a sister who had also been privately schooled.
[00:33:29.820]Mom emails about the sister and says,
[00:33:31.577]"I want to return her to a public school placement.
[00:33:34.240]And I want the IEP team to meet
[00:33:35.670]and get things rolling for her," okay.
[00:33:37.770]So for sister, mom knows how to say exact what she wants,
[00:33:40.790]and for brother, she just says,
[00:33:42.797]"What kind of services would be available
[00:33:44.440]if he were to come back?"
[00:33:46.120]Then mom sues saying that the school district
[00:33:49.170]did not offer her kid a FAPE,
[00:33:51.240]and that this email asking questions was enough
[00:33:54.000]to trigger the obligation of the district
[00:33:56.400]to reconvene a team meeting.
[00:33:58.270]Now, she sounds like she's a treat,
[00:34:03.240]but it really is not uncommon at all
[00:34:06.530]for families of homeschooled kids to send an email
[00:34:08.760]to the AED saying, "Can my kid play middle school sports
[00:34:11.940]if she's still homeschooled," right?
[00:34:14.060]Can my kid do choir in eighth grade
[00:34:17.360]if we're gonna come to the high school in ninth grade?
[00:34:19.770]And this case really made me nervous,
[00:34:22.560]the school won this in the end.
[00:34:23.960]But what this would've said was all those emails
[00:34:26.540]would trigger the school's obligation
[00:34:28.070]to reconvene the team and offer an updated fresh IEP.
[00:34:33.050]Here, the hearing officer said,
[00:34:34.297]"No, the parent's vague questions about what was available,
[00:34:38.410]that was not enough for her to trigger
[00:34:41.220]the district's obligation to meet
[00:34:43.030]because she wasn't saying he's coming back,
[00:34:45.280]she was just saying what kind of things are available."
[00:34:48.490]Third Circuit affirmed parents emails
[00:34:50.540]did not trigger the school district's obligation.
[00:34:53.020]The sister email was a really good fact for the school.
[00:34:56.300]I do think having conversations with AEDs and principals
[00:35:00.320]about these families,
[00:35:02.090]'cause we have several of them
[00:35:03.020]that kinda dip in home, school,
[00:35:05.070]and then dip back into public and back and forth.
[00:35:07.460]When they send those communications,
[00:35:09.140]I want special ed to be ready to go
[00:35:12.010]if the email says she's back next year.
[00:35:14.890]We have one parent that every year,
[00:35:17.090]I think she's got a really good lawyer.
[00:35:19.150]Every year she emails and says we're coming back.
[00:35:22.090]School holds an IEP meeting, mom yells at the school.
[00:35:25.070]They write the IEP, mom says I'm homeschooling.
[00:35:28.020]Next year, rinse and repeat.
[00:35:30.940]And the school keeps calling me.
[00:35:32.550]The superintendent is like,
[00:35:33.657]"Can we stop holding these meetings and wasting our time?"
[00:35:36.880]Can they?
[00:35:38.320]Nope, you gotta do it, you gotta do it.
[00:35:40.740]So that's what this case stands for.
[00:35:42.870]While a parent may not affirmatively enroll the child
[00:35:45.420]in public school to receive an offer of a FAPE,
[00:35:47.700]she must either, here's the language I want you to see,
[00:35:50.240]manifest an intent to enroll that child
[00:35:52.980]or request an evaluation.
[00:35:54.830]So that's the standard.
[00:35:55.830]Here vaguely asking about services
[00:35:57.730]was not enough to manifest
[00:35:59.870]and did not trigger the district's obligations.
[00:36:05.551]I go till 3:30.
[00:36:08.270]Good, you're in charge.
[00:36:11.960]Oh, oh, oh, oh, friends,
[00:36:17.470]I really like MTSS.
[00:36:19.990]I actually believe in MTSS to my core,
[00:36:23.920]but if a parent says, "My kid has a reading disability,"
[00:36:28.920]you have two choices at that point;
[00:36:31.510]either say, "Yes, we will evaluate,"
[00:36:33.860]or issue prior written notice saying,
[00:36:35.647]"We're refusing to evaluate."
[00:36:37.280]Here's what you all do, not you all.
[00:36:39.020]Here's what other people in other states do.
[00:36:45.080]Let's give those tier one interventions
[00:36:47.150]a little bit more time.
[00:36:48.900]Let's get her a chance to get comfortable in third grade,
[00:36:51.310]'cause that's a big jump, right?
[00:36:54.350]I'll pay some special attention.
[00:36:56.080]You can't just take a wait-and-see approach, okay,
[00:36:59.190]and that's what this case says.
[00:37:01.240]This is a kiddo who enters first grade in 2013,
[00:37:05.170]not reading at grade level,
[00:37:07.120]school district has a good RTI process,
[00:37:09.750]starts implementing those tier one and tier two supports.
[00:37:13.100]He's a full grade level behind in second grade.
[00:37:16.610]Continues into third grade.
[00:37:18.500]They give him a 504 for reading difficulty,
[00:37:21.200]but they never formally initiate special ed evaluation
[00:37:24.820]even though, see that sub bullet point, mom requested it.
[00:37:28.920]And the school said,
[00:37:29.753]"Let's give the tier two and the 504 plan
[00:37:32.090]a little bit of time."
[00:37:33.880]Fourth grade kiddo is in the bottom two percentile
[00:37:36.930]in MAP scores.
[00:37:38.260]I'm not a huge fan of using MAP scores
[00:37:40.830]as a substitute for eligibility if you know what I'm saying,
[00:37:45.010]but that's a bad fact for the school.
[00:37:47.340]And when we've got all this robust tracking data
[00:37:49.940]about student's academic performance,
[00:37:51.810]we need to be ready to answer when parents say,
[00:37:53.787]"Well, what's wrong, why is my kid performing so poorly?"
[00:37:57.220]Fifth grade, now two years later,
[00:37:59.350]parents, again, request an evaluation.
[00:38:01.640]Surprise,
[00:38:02.830]he qualifies for specific learning disabled in reading.
[00:38:06.300]Parents file a complaint saying that the school district
[00:38:08.700]violated its Child Find obligation.
[00:38:11.490]District Court says the school district
[00:38:14.290]did not fulfill its obligations under child Find.
[00:38:18.707]"The Child Find violation," says the court,
[00:38:21.927]"we have to ask three questions."
[00:38:24.000]Number one, when was the district on notice
[00:38:27.700]that the child needed an evaluation
[00:38:30.040]either pursuant to data or a parent request?
[00:38:33.960]Number two, when did the school actually do its evaluation?
[00:38:38.060]And number three is the elapse of time
[00:38:41.650]between those two dates reasonable?
[00:38:43.890]Notice that the District Court does not say,
[00:38:46.717]"School district should continue providing RTI
[00:38:49.170]for at least six weeks and hope for the best," right?
[00:38:52.460]But this is what we see over and over and over again.
[00:38:55.690]And I've got hangups with the over-identification
[00:39:02.660]and some of that stuff.
[00:39:03.640]I think we should be serving kids
[00:39:05.090]and not worrying about statistics, but that's just me.
[00:39:08.410]But so we've gotten so afraid
[00:39:10.140]that we're gonna over-identify certain groups
[00:39:12.440]or certain verification categories
[00:39:14.220]that I think we're violating the Child Find obligations.
[00:39:17.070]So here, the delay was completely unreasonable,
[00:39:21.700]especially when mom request an evaluation two years before.
[00:39:25.130]They had to follow up multiple times.
[00:39:27.540]Fifth Circuit affirmed.
[00:39:30.620]I think they provided this kid, if I remember right,
[00:39:33.210]with two and a half years of comp-ed,
[00:39:35.960]which is a lot of services.
[00:39:39.910]This is an IEE case.
[00:39:41.700]This is a case where the parent
[00:39:43.150]asks for an independent education evaluation
[00:39:45.750]at public expense.
[00:39:46.830]We've seen a huge increase in these in Nebraska.
[00:39:49.730]I mean like quintuple.
[00:39:52.534]I mean, I don't know,
[00:39:53.367]it's like exponentially more.
[00:39:55.750]If a family request an independent education evaluation
[00:39:59.200]at public expense,
[00:40:00.660]just like when they ask for an evaluation for verification
[00:40:03.420]for a disability category, you have two choices, right?
[00:40:07.090]You can either fund the IEE or you can file a petition
[00:40:11.160]for due process and defend your evaluation.
[00:40:14.690]As a matter of philosophy, our firm has started filing
[00:40:18.640]because I think you guys do a really good job
[00:40:21.180]and we should defend your evaluation results
[00:40:22.760]if you want my honest opinion.
[00:40:24.940]So there.
[00:40:26.280]But here's what you can't do.
[00:40:28.350]You can't like say to the family, "Let's see how this go."
[00:40:31.370]You know what I mean?
[00:40:32.740]You have to make a decision.
[00:40:34.090]You can't waffle and waiver.
[00:40:36.020]Now in this case,
[00:40:36.970]the school district replied to the parent request
[00:40:39.110]for the IEE by asking for more information and then like,
[00:40:43.327]"What is it with our evaluation that you disagree with?
[00:40:46.020]Who do you wanna work with?
[00:40:47.400]What specifically do you think this kid needs
[00:40:48.970]to be assessed for?
[00:40:49.803]Blah, blah, blah, blah, blah."
[00:40:51.090]That back and forth goes on for 84 days.
[00:40:54.440]That makes me super nervous.
[00:40:56.630]School district won this case.
[00:40:58.560]Won this case because the communication was active
[00:41:01.380]and ongoing.
[00:41:02.500]It wasn't like you asked for this evaluation
[00:41:04.510]and now we're gonna ignore you.
[00:41:06.050]I will tell you in my shop,
[00:41:07.470]we try to get a decision made by the district
[00:41:09.860]within 30 to 60 days,
[00:41:11.610]'cause I think 84 days just feels too long.
[00:41:14.830]But if nothing else, if you get an IEE respond right away,
[00:41:18.670]say that you're looking into it,
[00:41:20.010]and then call your lawyer, call the superintendent,
[00:41:22.010]call somebody and let's get cracking
[00:41:24.050]'cause you can't just ignore it and let it linger,
[00:41:26.690]that's what this case says.
[00:41:27.820]No obligation to immediately provide the information
[00:41:30.440]you had to keep talking back and forth with the family.
[00:41:34.030]District exchanged numerous emails and letters.
[00:41:37.470]One delay was over Thanksgiving break, go with God.
[00:41:58.965]This is a kiddo that is actually pretty success,
[00:42:02.540]both behaviorally and academically at school,
[00:42:05.320]but he's having mental health struggles at home.
[00:42:08.740]In his freshman year in the fourth quarter,
[00:42:12.020]he is hospitalized for committing some acts of self harm,
[00:42:15.720]he's got suicidal ideations and he is hospitalized
[00:42:19.060]until October of the next year.
[00:42:20.320]So this is a long stay in the psych hospital.
[00:42:24.640]He did receive home-based instruction and tutoring
[00:42:27.140]while he was in the hospital.
[00:42:28.870]And immediately upon his release from the hospital,
[00:42:31.260]the school district says,
[00:42:32.257]"Hey, I think you're OHI in mental health
[00:42:35.130]we'll go ahead and give you an IEP," right?
[00:42:37.400]The fight though was whether or not this student
[00:42:41.630]needed year round service based on the fact
[00:42:44.910]that the hospitalization had gone through the summer.
[00:42:47.100]See see the parents' argument?
[00:42:49.690]If the kid needed services from fourth quarter to October,
[00:42:53.180]including the summer,
[00:42:54.340]then next summer kiddo need services as well.
[00:42:57.680]School district would not offer ESY.
[00:43:01.270]Parent rejected,
[00:43:02.260]put the kid unilaterally in a private school,
[00:43:04.610]which is I think what mom wanted from jump, right?
[00:43:06.950]I think she was stalling for a fight
[00:43:08.200]and wanted the kid in a private placement.
[00:43:10.270]District denied tuition reimbursement,
[00:43:13.030]but did provide transportation and mom sued.
[00:43:17.630]Eventually the District Court found,
[00:43:20.330]in favor of the school district,
[00:43:23.100]no evidence of a Child Find violation.
[00:43:24.960]Here was the discussion.
[00:43:26.360]Mom said, "If my child was so mentally ill
[00:43:30.280]and so self injurious and so dangerous to others,
[00:43:33.518]that my child was hospitalized from April to October
[00:43:37.670]surely school,
[00:43:38.900]you should have seen some of this coming beforehand."
[00:43:41.960]And what the hearing officer said was
[00:43:44.710]we're gonna look at the school's data,
[00:43:46.560]not on what mom is projecting should have happened.
[00:43:48.700]You see what I'm saying?
[00:43:49.650]And when we look at the school's records,
[00:43:51.630]there's no indication
[00:43:52.840]that this kid was struggling in school.
[00:43:54.810]Now outside of school, at home, yes.
[00:43:57.400]But nothing in school indicated
[00:43:59.060]that the kiddo's mental health issues
[00:44:01.190]were manifesting at school.
[00:44:03.400]So the school district
[00:44:04.233]was not under a Child Find obligation.
[00:44:06.230]I have this come up quite a bit
[00:44:07.760]when kids get involved in the juvenile court system
[00:44:10.390]where the family is like, "If my kid is selling drugs
[00:44:13.180]and using drugs or whatever,"
[00:44:15.420]school, how did you just ignore this for all this time?
[00:44:18.200]And the answer is we have to look at our data,
[00:44:21.000]not at the home-based or social data beyond the school.
[00:44:24.790]So this is good to talk about.
[00:44:27.590]It's our data that we look at, not the whole picture.
[00:44:31.660]I mean, not the beyond,
[00:44:33.110]because educational expertise is especially valuable
[00:44:35.580]in formulating an IEP.
[00:44:38.780]I'm looking at the middle here.
[00:44:40.200]The IEP should be afforded more weight
[00:44:42.580]than determinations considering
[00:44:43.910]whether the IEP was developed
[00:44:45.260]according to proper procedures.
[00:44:46.870]Here's what that says.
[00:44:48.370]If you have the meetings correctly,
[00:44:50.630]if you give the right notices,
[00:44:52.540]if you give the parents the information necessary
[00:44:55.660]for them to find resources like PTI Nebraska,
[00:44:58.960]to get their rights explained to them by somebody else,
[00:45:01.750]the court is not gonna question
[00:45:03.740]the substantive FAPE decisions as much
[00:45:07.090]as long as you get the processes right.
[00:45:09.450]Parents in the room, not that I've been ignoring you,
[00:45:11.870]but I just realized I haven't said anything to you
[00:45:13.600]for a while, sorry.
[00:45:14.810]Parents in the room,
[00:45:15.750]I have been in IEP meetings where parents are like,
[00:45:18.007]"Why are you giving me this parental rights document again?
[00:45:20.320]This is so stupid.
[00:45:21.153]Yes, you give it to me every time."
[00:45:22.720]This is why your case manager for your kiddo is so obsessive
[00:45:27.040]about making you sign this form
[00:45:28.650]and getting these documents out, right?
[00:45:30.580]Because what the courts have said is
[00:45:32.070]if we get the processes right,
[00:45:34.360]we will have more deference as educators
[00:45:36.660]into the actual substantive decisions that we make.
[00:45:40.310]Now, this makes your gen ed administrator's crazy,
[00:45:43.480]'cause they wanna just do what's right for the kid
[00:45:45.160]and ignore the processes, right?
[00:45:47.850]But what the courts have said
[00:45:49.040]is the processes really matter a lot.
[00:45:53.695]Esposito, oh God, school psychs in the room,
[00:45:57.530]this case just gives me the willies.
[00:46:00.070]So this is a kiddo that starts receiving IDEA services
[00:46:04.620]in second grade.
[00:46:06.030]And the child's triennial came up two times
[00:46:09.270]while he's working his way through the school district
[00:46:12.070]and both district and parent agreed
[00:46:13.970]that they didn't need to reevaluate.
[00:46:15.730]And so no evaluation data was done
[00:46:18.200]until the kid is getting ready to graduate.
[00:46:20.630]And I think they do an evaluation
[00:46:22.580]as the kids getting ready to evaluate
[00:46:24.500]to see like if what he's gonna have
[00:46:26.650]in his community college or whatever.
[00:46:28.460]And the assessments showed a precipitous drop
[00:46:32.120]in the kids' intellectual abilities.
[00:46:34.400]He lost like, I can't remember 11 or 12 IQ points.
[00:46:37.523]I mean, it was phenomenally huge.
[00:46:41.060]And so the parent ends up suing the school district saying,
[00:46:46.090]oh, so then the IQ testing comes back and this team says,
[00:46:48.957]"Huh, all be go to hell,"
[00:46:50.120]my father-in-law says that, "All be go to hell,"
[00:46:53.420]but they didn't change the IEP at all.
[00:46:55.830]Continued to offer the same services,
[00:46:57.500]same stuff that they've been offering.
[00:46:59.480]And then they graduate the kid
[00:47:01.310]and parents file a claim
[00:47:04.410]alleging that the school district denied the kid
[00:47:06.120]a free and appropriate public education
[00:47:08.050]'cause how could you serve him appropriately
[00:47:10.370]when you were so far off with his IQ?
[00:47:13.400]Who wins this?
[00:47:15.410]School, that blew my mind.
[00:47:20.720]Here's what the court said,
[00:47:22.220]and this should give you a little bit of comfort.
[00:47:24.720]We judge the quality of the decisions that the team makes
[00:47:29.060]based on the information available to the team
[00:47:31.950]at the time that decision is made.
[00:47:35.090]We're not gonna go back and second guess
[00:47:37.850]based on what we know now.
[00:47:39.810]The court also said,
[00:47:41.090]despite the fact that the school district
[00:47:42.740]had overestimated the student's intellectual abilities,
[00:47:46.970]the IEP he continued to at his goals, right?
[00:47:50.020]He made education progress.
[00:47:52.170]So even if the PLEP was wrong,
[00:47:54.630]the services must have been right, you know,
[00:47:56.830]'cause the kid received meaningful education benefit.
[00:47:59.740]The goals were appropriately ambitious
[00:48:02.090]in light of his circumstances,
[00:48:03.700]even though his circumstances were more impaired
[00:48:06.550]than we realized.
[00:48:08.270]So this case gives me a little bit of hope
[00:48:10.980]that nobody's gonna play gotcha
[00:48:13.330]with the data that we get afterwards
[00:48:16.010]as long as we're making a good faith effort
[00:48:18.040]to do it with the information that we have.
[00:48:21.880]I will also say,
[00:48:24.080]I know it is expensive and a hassle to retest,
[00:48:27.400]especially when I just have a case where a kiddos,
[00:48:30.580]I mean the IQ,
[00:48:32.330]there's no doubt he's gonna qualify over and over again.
[00:48:35.100]But that fresh assessment data is such a good weapon
[00:48:38.290]for the school district to have to defend itself.
[00:48:40.790]And I think it also helps families.
[00:48:42.880]I feel bad for this family.
[00:48:44.740]You know, kiddo's graduating and all of a sudden,
[00:48:47.310]surprise, your kid is like however many percentiles
[00:48:50.310]lower than in actual ability than we realized.
[00:48:53.750]And I understand.
[00:48:55.050]I talked about this at some national conference,
[00:48:57.990]I think in Portland and a school psych actually emailed me
[00:49:00.787]and like was defending her profession.
[00:49:02.640]And again, you guys know, I love school psychs.
[00:49:04.650]I won't take a case to hearing without a psych.
[00:49:07.810]But so she's like saying, "You know, if we test a kid early,
[00:49:11.110]that's surprising that that later testing is more accurate,"
[00:49:14.980]which I totally agree with.
[00:49:16.010]I'm not taking pot shots at the evaluation here.
[00:49:18.520]I'm just saying, I wish they would've done something
[00:49:21.410]in one of those triennials.
[00:49:22.940]But they won, they won.
[00:49:24.410]So that's what lawyers care about.
[00:49:29.780]I talked about this at the tri-state.
[00:49:31.310]So if you remember this case, I apologize,
[00:49:33.560]but it's too good not to share.
[00:49:34.960]This is the Romeo and Juliet of the resource room.
[00:49:39.390]High school girl has multiple disabilities,
[00:49:42.240]low cognitive function, she's in a self-contained program.
[00:49:45.760]And while she's in that program,
[00:49:47.710]she meets a young man who's also intellectually disabled
[00:49:51.330]and they start exchanging text messages
[00:49:54.350]and Snapchats and dad does not like it, right?
[00:49:58.800]Dad thinks that daughter will never talk to a boy,
[00:50:01.970]and certainly not a boy
[00:50:03.170]who would be in the self-contained classroom.
[00:50:05.610]So dad's family pulls the child.
[00:50:07.970]And I think this has such good parallels to COVID.
[00:50:11.300]I talk about the COVID deniers
[00:50:13.380]and the COVID Scaredy cats, right?
[00:50:14.900]They're two sides of the same coin.
[00:50:17.180]So I think the COVID Scaredy cats
[00:50:19.220]that pulled their kids and are super scared
[00:50:21.200]that their kids are gonna be exposed, I get it.
[00:50:23.140]But that that's gonna be a similar analysis to this case
[00:50:25.590]where dad was freaked out because girl had a boyfriend,
[00:50:28.310]pulled her, wouldn't send her to school.
[00:50:31.020]Now the school appropriately tries repeatedly
[00:50:34.110]to meet with dad.
[00:50:35.157]"What can we do, can we get her back in school?"
[00:50:37.830]And this I think was a mistake.
[00:50:39.680]The school said eventually,
[00:50:41.017]"Well, I guess if you won't send her,
[00:50:42.510]we'll serve her in a home-bound setting."
[00:50:45.400]Is that her least restrictive environment?
[00:50:49.196]I think we all agree
[00:50:50.080]it's not her least restrictive environment.
[00:50:51.640]That's maybe dad's the least restrictive environment,
[00:50:54.670]but it's not girl's least restrictive environment,
[00:50:57.230]but rather than they weren't gonna pursue truancy charges
[00:50:59.970]in this situation.
[00:51:01.490]So instead they gave her home instruction
[00:51:03.510]and included one-on-one tutoring.
[00:51:04.980]So next year, junior year the school's like,
[00:51:07.907]"Okay, come on back, we're ready for you."
[00:51:09.490]And dad's like,
[00:51:10.547]"Is she gonna be in the self-contained classroom?
[00:51:12.750]Have you expelled that little jerk
[00:51:15.440]that was talking to my daughter?
[00:51:16.810]And I'm not sending her to school."
[00:51:19.270]And then the school, whoops,
[00:51:22.150]school made all kinds of offers.
[00:51:24.040]Eventually offered to have her come to school
[00:51:25.630]with a one-on-one aid
[00:51:27.260]and have the aid like be with her or the whole time.
[00:51:30.170]Here's what's very frustrating about special education law
[00:51:33.060]and families in the room,
[00:51:35.140]this is something that I drill to special educators
[00:51:39.630]and it makes parents so angry and I get it.
[00:51:43.460]But here, the family sued the school
[00:51:47.050]and what they sued them for was leaving the child at home
[00:51:51.830]when dad refused to send her to school.
[00:51:55.070]Dad sued the school for doing exactly what dad insisted
[00:51:59.600]that the school do.
[00:52:01.430]And that's fair, that's legit
[00:52:03.680]because the school's obligation to provide FAPE
[00:52:07.030]runs to the kid, not to the parent, yes?
[00:52:10.400]We're obligated to include meaningful parental participation
[00:52:13.860]in our discussions,
[00:52:15.150]but the parent does not run the show
[00:52:18.230]because our obligation runs to the kid.
[00:52:20.350]And so parents in the room,
[00:52:21.760]it is so aggravating and I get it when you say,
[00:52:24.777]"Look, school, all I want is for her to be served at home.
[00:52:28.090]I'm asking for it, just give it to me
[00:52:29.810]and we can all go home
[00:52:30.643]and not have the marathon IEP meeting."
[00:52:32.680]And the school continues to refuse and refuse and refuse.
[00:52:35.570]The practical reality is we can give you
[00:52:38.030]exactly what you ask for
[00:52:39.500]and two weeks from now, you sue us
[00:52:41.660]for giving you exactly what you ask for.
[00:52:44.690]And I don't think we explain that to parents clearly enough.
[00:52:47.890]And so then it becomes that the school is just saying no
[00:52:50.400]for the pleasure of saying no, right?
[00:52:51.910]And that is absolutely not the case.
[00:52:53.910]So this is a case where this happens.
[00:52:55.820]I mean, I've had this happen to me multiple times
[00:52:58.190]where the parent insists the team gives in
[00:53:00.950]against their better judgment.
[00:53:02.520]And then the parent says,
[00:53:03.397]"Well, you all know
[00:53:04.230]it wasn't her least restrictive environment.
[00:53:05.670]You said so at the meeting,
[00:53:06.880]when I was yelling at you to send her home, right?"
[00:53:10.900]Here the school wins.
[00:53:12.620]But it was a near miss.
[00:53:14.290]The hearing officer said it was a shortened amount of time
[00:53:17.820]that she was at home.
[00:53:19.390]The school district complied in most substantive respects
[00:53:23.560]with the LRE requirement.
[00:53:25.420]And they actively tried to persuade dad
[00:53:28.230]to send the girl back to school.
[00:53:30.140]All of that together, the multitude of factors
[00:53:34.480]ended up favoring the school.
[00:53:36.910]But I do not think we should home-bound a kid
[00:53:38.960]on parent request if we don't think
[00:53:40.360]the kid should be home bounded,
[00:53:42.640]that puts us at a huge disadvantage.
[00:53:46.440]Let's see.
[00:53:47.980]I also readily agree that the record convincingly shows
[00:53:50.630]the parents by steadfastly refusing
[00:53:52.810]to bring the student to school on their own
[00:53:55.170]defeated the objective of the school to provide FAPE.
[00:53:57.810]Therefore, the parents cause the district
[00:53:59.800]to implement the more restrictive option.
[00:54:01.800]That's gonna be my argument, schools
[00:54:03.490]if you get sued in one of these cases,
[00:54:05.520]but that's not where you want to be.
[00:54:06.970]You want to be defending FAPE, right,
[00:54:09.140]not saying "The parents made me do it."
[00:54:16.311](presenter laughing)
[00:54:21.270]I've got a couple of stay-put cases.
[00:54:24.410]I just wanna talk for just a second.
[00:54:26.570]Sometimes I think we give stay-put too much attention.
[00:54:29.420]Stay-put only applies when a parent it has filed
[00:54:33.730]a due process case against the school district
[00:54:36.410]saying that the school district's offer of the IEP
[00:54:38.910]did not provide FAPE.
[00:54:40.390]Stay-put says while that case is being litigated,
[00:54:43.530]the student is placed in the last agreed-to placement, okay.
[00:54:47.600]But so stay put only applies
[00:54:49.640]when there's active due process.
[00:54:51.600]And at any given time in the State of Nebraska,
[00:54:53.560]there may be one, there may be none,
[00:54:55.240]there may be five at the most I'm looking at Amy.
[00:54:57.960]Can you tell me?
[00:54:59.311]I mean, there's not hundreds of due process cases
[00:55:03.250]going at a time in Nebraska.
[00:55:04.770]So stay-put is only going to apply
[00:55:06.530]to like three or four school districts at a time.
[00:55:08.430]You see what I'm saying?
[00:55:09.630]So lawyers love stay put
[00:55:11.400]because we get to litigate these cases.
[00:55:13.660]But sometimes I think we spend too much time
[00:55:16.480]training on stay-put.
[00:55:17.730]But having said that this is a kiddo
[00:55:21.500]who she starts new middle school.
[00:55:25.040]Mom says, "Well, she's had a little bit of trauma
[00:55:28.330]and some problems, but she is a delight.
[00:55:31.180]She's a middle schooler who's a delight,"
[00:55:32.800]which should tell you right there
[00:55:33.800]that she's atypical, right?
[00:55:38.010]She has friends, her teachers like her,
[00:55:41.240]she struggles in math, but you can be really successful
[00:55:44.470]and struggle in middle school math.
[00:55:48.930]So the school is not noticed at all
[00:55:50.950]that this child is struggling.
[00:55:52.530]She is hospitalized after she commits some self harm
[00:55:56.630]and has some issues at home.
[00:55:58.570]But the school was really not on notice
[00:56:00.210]that she'd had any trouble.
[00:56:02.430]Now, when she returns after her hospital stay,
[00:56:04.430]they do evaluate her and find her eligible
[00:56:06.670]based in part upon the medical documents
[00:56:08.530]that the hospital provided after her discharge.
[00:56:11.810]The district developed an IEP
[00:56:14.050]and the IEP provided for some mostly math supports
[00:56:17.720]and for some therapeutic counseling.
[00:56:20.470]This is where it gets funky.
[00:56:22.590]So they agree that this is gonna be the IEP
[00:56:24.830]when school starts next school year, right?
[00:56:27.650]In the summer, mom files for due process.
[00:56:31.040]What's the kid stay put?
[00:56:35.490]That's the fight.
[00:56:36.980]The fight is what is the kid's stay put?
[00:56:39.530]School district puts her in gen ed
[00:56:42.460]and steadfastly refuses to give her any special ed
[00:56:45.820]when the school year starts.
[00:56:47.720]And the parent is like,
[00:56:49.257]"Damn, we all agreed that she needs something.
[00:56:52.260]You should give her some kind of supports."
[00:56:55.360]And so that's what this fight is about.
[00:56:58.060]School district wins.
[00:57:00.110]The last agreed-to placement in this case is?
[00:57:04.590]Gen ed, right?
[00:57:06.130]In fact, the school could not implement special ed
[00:57:08.610]for this kid even if they wanted to,
[00:57:11.500]because then they would be violating the federal directive
[00:57:15.240]that we don't provide special education services to students
[00:57:18.700]unless parents have consented.
[00:57:20.860]So this is a weird one, but having said that
[00:57:23.400]we've had several contentious initial IEPs.
[00:57:26.020]I've got one right now
[00:57:27.470]where her mom just will never come out and agree.
[00:57:30.200]And I keep telling the school like,
[00:57:31.690]I don't think we can serve.
[00:57:34.105]We cannot use part of the funds until we have signed consent
[00:57:38.050]that we can serve on that first IEP.
[00:57:40.390]And so that's what this case held.
[00:57:42.530]I just like this quote.
[00:57:43.577]"Although a school must help a student
[00:57:45.110]with her disabilities,
[00:57:46.300]it cannot help before it knows of them."
[00:57:48.800]Here, the student was making progress, getting along,
[00:57:53.150]everything was fine until we found out about it later.
[00:57:56.050]Yet, once mom sued the school could not move her daughter
[00:57:59.840]into special education until the litigation was over.
[00:58:03.800]So interesting case.
[00:58:07.530]I gotta look at what this one is.
[00:58:10.120]Oh, oh, oh, oh, okay.
[00:58:11.640]So this is a similar situation.
[00:58:13.370]This is a kid who's on,
[00:58:14.470]I know, I always gotta like remember the facts.
[00:58:16.630]A kid who's on the spectrum placed in gen ed
[00:58:20.310]pursuant to the IEP, kid has behaviors,
[00:58:23.940]meltdowns, loses emotional control.
[00:58:26.430]Some of the stuff that sometimes people on the spectrum
[00:58:28.520]struggle with.
[00:58:30.040]And so they're fighting
[00:58:31.610]about whether he's gonna be part-time in the resource room
[00:58:35.860]or placed full-time in like a therapeutic program,
[00:58:38.430]that kind of thing, right?
[00:58:39.750]They can't agree.
[00:58:41.080]Parents file for due process.
[00:58:43.740]And the hearing officer, now our Nebraska hearing officer,
[00:58:47.530]I always had excellent hearing officers.
[00:58:50.070]Rich Burch, who's now a judge
[00:58:51.430]was a hearing officer for a while.
[00:58:53.463]So I don't think a Nebraska hearing officer would do this,
[00:58:55.970]but the hearing officer said,
[00:58:58.067]"While this case is litigated,"
[00:58:59.600]'cause mom had said she was gonna appeal,
[00:59:02.007]"the new IEP is the students stay put."
[00:59:06.490]What is stay put?
[00:59:09.060]The last agreed-to placement.
[00:59:10.910]Did parent ever agree to this IEP?
[00:59:13.670]No, they didn't not.
[00:59:14.950]That means that the regular ed classroom,
[00:59:17.820]where the kid is being disruptive and having the meltdowns,
[00:59:20.330]that stay put.
[00:59:21.830]But the ALJ here was like, I don't think that's safe.
[00:59:24.200]So I'm gonna say stay put is the new IEP placement.
[00:59:27.150]Parents appealed and the Ninth Circuit
[00:59:28.860]smacked this ALJ down hard.
[00:59:31.040]Like "You can't mix stuff up, Mr. Hearing officer."
[00:59:33.650]That's what they said.
[00:59:34.517]The ALJ lacked the legal authority
[00:59:36.320]to effectively reinterpret the word current
[00:59:38.450]in the statute to future, right.
[00:59:41.700]The IDEA gives parents, this is important.
[00:59:44.420]Parents, look at this language.
[00:59:46.570]The IDEA essentially gives parents a veto
[00:59:49.560]against moving their child
[00:59:51.000]until the courts finally resolve the dispute.
[00:59:53.980]How do you get that veto?
[00:59:55.470]You have to file for due process.
[00:59:57.890]Schools, parents don't exercise that veto by threatening
[01:00:01.800]to file due process or by getting crabby in the IEP meeting.
[01:00:06.030]We are obligated to continue implementing
[01:00:08.910]what we believe is FAPE
[01:00:10.490]unless than until the family file for due process.
[01:00:13.920]then there's lots of times,
[01:00:15.210]And the attorneys that work with the special ed community
[01:00:18.980]are really, really good.
[01:00:22.130]I mean, we're almost always able to work something out
[01:00:24.540]where if the stay put placement is clearly inappropriate,
[01:00:27.410]we can agree that we're gonna do this temporarily.
[01:00:29.890]But understand parents, if you wanna veto placement,
[01:00:32.720]what you need to do is to file due process
[01:00:35.230]and schools, that veto does not exist
[01:00:37.770]until due process is filed.
[01:00:39.540]Make sense?
[01:00:40.960]Okay.
[01:00:42.690]Oh good, I'm gonna have a little bit
[01:00:43.750]about constitutional discrimination.
[01:00:49.300](presenter laughs)
[01:00:57.305]Do you remember when President Obama was in office
[01:01:02.280]and the Office for Civil Rights
[01:01:04.020]would send out to Dear Colleague letters
[01:01:05.530]like every 20 minutes, it seemed like,
[01:01:07.140]you know what I'm talking about?
[01:01:09.490]Seriously, as a school lawyer,
[01:01:11.190]I almost got an ulcer 'cause it was like,
[01:01:13.750]there was a point
[01:01:14.583]at which they had 24 Dear Colleague letters,
[01:01:17.010]like in the hoppers that they were like gonna release
[01:01:19.490]one after the other after the other.
[01:01:21.940]And so one of the Dear Colleague letters
[01:01:23.550]that they released in 2013 and there's another one in 2014,
[01:01:27.270]dealt with harassment and bullying,
[01:01:29.510]particularly harassment against students with disabilities.
[01:01:32.730]And you don't care about the specific details,
[01:01:36.590]but there was a mass freak out among school lawyers
[01:01:40.120]about that, it was a big deal.
[01:01:42.370]That's one of the Dear Colleague letters
[01:01:44.120]that never became law, it was just like advice, right?
[01:01:47.440]So fast forward to 2021,
[01:01:50.710]kid who had ADHD is at a football game.
[01:01:54.420]And at the football game,
[01:01:55.960]he is talking to a girl who has a boyfriend.
[01:02:00.630]And unsurprisingly,
[01:02:02.220]the boyfriend is not a fan of this activity.
[01:02:05.730]And at the football game,
[01:02:07.120]boyfriend pops the kid with ADHD.
[01:02:11.750]Kids suit, and here's his theory,
[01:02:14.410]this is what I have worried about since 2013.
[01:02:17.560]Kid says, "School, even though it wasn't a law,
[01:02:21.880]you should have done all of the stuff
[01:02:24.780]the Obama administration said you should do.
[01:02:27.770]And the fact that you haven't done that
[01:02:29.470]for the last seven to 10 years
[01:02:31.530]means that you have been deliberately indifferent
[01:02:35.040]to the harassment and bullying of kids with special needs."
[01:02:37.940]You see how they there, right?
[01:02:40.290]So this case like was very interesting to me
[01:02:44.100]because again, all the special education lawyers
[01:02:46.490]in the country are concerned about regulation
[01:02:49.830]just by these Dear Colleague letters
[01:02:52.350]and here the court said, no, and this is the Ninth Circuit.
[01:02:56.350]So it's not like it was a super school-friendly circuit,
[01:02:59.070]right?
[01:03:00.370]The request for the court to adopt a standards articulated
[01:03:03.260]in the 2014 Dear Colleague letter failed
[01:03:06.480]because that four-factor test
[01:03:08.390]is limited to administrative enforcement
[01:03:10.940]and is not the deliberate indifferent standard.
[01:03:13.940]Here's what that means.
[01:03:14.970]This brings me full circle back to the Title IX stuff
[01:03:18.750]and some of the other in information that's gonna come out
[01:03:20.770]from the Catherine Lhamon OCR, you need to ask yourself,
[01:03:25.398]does the thing say, dear educator,
[01:03:28.190]dear fellow educator, it's not law.
[01:03:30.950]Does it say, 34 U.S. code, whatever, whatever, whatever,
[01:03:34.930]then it is law, right?
[01:03:36.630]But all of these guidance documents,
[01:03:38.640]and I love me some technical assistance
[01:03:40.370]from the Department of Ed.
[01:03:41.680]Some of it I love to complain about
[01:03:44.033]and some of it I love to use,
[01:03:45.373]but that technical assistance is not law, right?
[01:03:48.760]It's guidance.
[01:03:49.840]And what this says is parents can't sue
[01:03:53.570]and hold us accountable to that guidance
[01:03:56.130]unless the administrative agency has gone to the trouble
[01:03:58.210]to actually make it a regulation.
[01:04:00.240]And again, I just heard Catherine Lhamon,
[01:04:02.680]We're gonna have a lot of Dear Colleague letters again
[01:04:04.410]here very soon.
[01:04:11.470]This is a Texas case, I hate to even talk about it,
[01:04:16.290]but I would be negligent if I didn't.
[01:04:19.100]So this is a kid that has a behavior plan,
[01:04:22.630]he's losing emotional control in the classroom room.
[01:04:25.440]And the para's supposed to get him out of the classroom
[01:04:27.740]and get him to a cool-down room
[01:04:28.730]and you know, like the stuff that we do with a lot of kids.
[01:04:31.260]Well, the kids in the hallway being a pill.
[01:04:33.380]Mrs. Abbot, who does not teach this kid,
[01:04:36.360]doesn't know this kid,
[01:04:38.320]not a special education teacher,
[01:04:40.430]Mrs. Abbot comes rolling up and she says to the para,
[01:04:44.427]"I'll handle this."
[01:04:46.040]And the kid lashes out and I think he kicked her shin.
[01:04:49.260]Somehow he like makes physical contact with the teacher.
[01:04:52.090]She gets this poor little kid in a chokehold,
[01:04:54.800]takes him to the ground.
[01:04:57.070]And the para is like, "I don't think you should do that.
[01:05:01.550]We're not supposed to, this isn't the plan."
[01:05:09.380]school investigated, Abbot was not disciplined,
[01:05:12.060]which blows my mind.
[01:05:16.080]Corporal punishment is still legal in Texas.
[01:05:18.860]I think that fact matters a lot, right?
[01:05:22.150]So the parents sued the school district,
[01:05:24.470]sued both Mrs. Abbot individually and the school district
[01:05:29.040]saying that the student was discriminated against
[01:05:31.820]based on his disability.
[01:05:34.160]The court dismissed this case,
[01:05:36.080]wouldn't even take evidence in it.
[01:05:37.910]And the parents appealed to the Fifth Circuit
[01:05:39.930]and the Fifth Circuit actually ruled for the school.
[01:05:42.840]Now, please hear me, please hear me.
[01:05:46.020]I am not saying that it is okay to take a dysregulated child
[01:05:51.770]to the ground in a chokehold, right?
[01:05:54.980]What I am saying,
[01:05:56.160]and this is why I included this case in the deck,
[01:05:58.690]is I think we get super concerned
[01:06:01.500]about issues of constitutional rights
[01:06:03.810]and qualified immunity and this and that.
[01:06:05.820]And this will show you the lengths to which in general
[01:06:10.630]the courts want to support educators, right?
[01:06:13.800]Mrs. Abbot was able to piece together
[01:06:15.620]what I think is kind of a crappy argument,
[01:06:17.290]but it won that
[01:06:18.650]between the Texas corporal punishment statutes
[01:06:21.140]and the case law, it was not clearly established
[01:06:25.210]that she couldn't do this.
[01:06:27.120]And so the court said, "Well, from now on,
[01:06:29.300]it is clearly established, right?"
[01:06:31.520]But they did grant her qualified immunity.
[01:06:33.910]And teachers, we do have qualified immunity
[01:06:36.560]as public officials if you are acting in good faith
[01:06:40.470]and you're not willfully and wantingly aggressive.
[01:06:43.593]I don't like Mrs. Abbot,
[01:06:45.750]I would fire her for free from a Nebraska school,
[01:06:49.660]but the lesson of having that qualified immunity protection,
[01:06:54.370]I want you all to see that, right,
[01:06:56.950]that you do have that protection.
[01:07:00.820]Hold on, this one we don't care about.
[01:07:02.480]I'm just gonna see if there's anything that's so good
[01:07:03.940]I wanna spend my last two minutes on it.
[01:07:06.810]Come on, click, click, click.
[01:07:09.370]Oh, okay, we'll do this one.
[01:07:11.260]Remember this Wisconsin family
[01:07:12.290]that sued their school district all these times?
[01:07:14.200]So this one, they forcibly restrained this poor little girl,
[01:07:20.350]74 time, 32 separate school days.
[01:07:25.700]Is this problematic?
[01:07:27.690]Hell yes, right?
[01:07:30.130]The parents filed the special ed complaint
[01:07:33.810]and the school district sought dismissal
[01:07:36.690]for failure to exhaust administrative bare minis.
[01:07:39.110]Here's what that means.
[01:07:40.220]The school was saying,
[01:07:41.107]"Oh no, before you can sue us for money damages,
[01:07:43.580]you have to go through the state due complaint process,"
[01:07:47.890]and education lawyers do that all the time
[01:07:50.360]to try to buy time so that we're not on the hook
[01:07:52.560]for money damages.
[01:07:54.260]Here the District Court said,
[01:07:56.587]"The excessive force and improper seizure claims,
[01:08:01.040]that's not part of FAPE, right?
[01:08:03.430]It is not part of the provision
[01:08:04.940]of special education services
[01:08:06.730]to repeatedly restrain and seclude a child
[01:08:09.750]and not to give parents notice that that was happening."
[01:08:12.810]This case is allowed to continue in District Court,
[01:08:15.470]which means that the parents can recover,
[01:08:17.110]not just attorneys fees, not just comp-ed,
[01:08:20.020]but they can also recover money damages
[01:08:22.520]for the excessive force.
[01:08:24.070]So I think this paired with the Abbott case
[01:08:25.980]kind of goes well together,
[01:08:27.480]not personal liability for the teacher,
[01:08:29.880]but there certainly can be district liability
[01:08:32.730]for physical contact with kids that is inappropriate.
[01:08:36.680]And so we need to make sure
[01:08:37.920]those behavior intervention plans
[01:08:39.610]are followed with incredible fidelity.
[01:08:41.840]Okay, 3:31, you guys are awesome.
[01:08:44.810]Have a great end of the school year
[01:08:46.417]and a great rest of the conference.
[01:08:48.093](audience applauding)
[01:08:57.853](presenter speaking faintly)
[01:09:07.193]Here by the exhibitors, that's what I heard.

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Keynote- Hindsight is 2021! The Most Relevant Lessons from Another Crazy Year

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