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Georgia Special Education Law Blog

ESSA Feedback July 2017

on Fri, 07/07/2017 - 15:05

In education policy news, Georgia has just completed a draft plan for implementing the Every Student Succeeds Act (ESSA). ESSA, the successor statute to No Child Left Behind, is the federal law controlling funding and requirements for public education. ESSA requires States solicit public comments on the draft plan. Information on Georgia's plan is available here, and the deadline for submitting comments is July 14, 2017.  

Major changes in the ESSA include more flexibility for states dealing with low-performing schools and increased data collection, especially progress monitoring of vulnerable subgroups. It is important that the community's voice be heard, because it is likely that this plan will be Georgia's education framework for the next decade.  

One of my concerns is that the school quality indicator should not contain too many different measures, to make sure that the quality indicator is easy to understand and that particular measures are not lost in the noise.  

Submit feedback by clicking the survey here or email essa@doe.k12.ga.us  The deadline to submit is July 14, 2017

Resources you can review to find more information  

studentscantwait.org - a consortium of education advocacy organizations  

State Snapshots from the National Center for Learning Disabilities  

Georgia ESSA Advocacy Toolkit from Understood.org

Endrew F

on Fri, 04/21/2017 - 13:17

Since I last wrote about the legal measure of an IEP, there have been significant legal developments. In March 2017, the Supreme Court decided Endrew F v. Douglas County Sch. Dist. In a unanimous decision, the Court ruled that school districts must do substantially more than the minimum. School districts are still not required to maximize a student's potential, with all the difficulties that result from that stance. But an IEP "must be appropriate in light of the child's circumstances."  

For a student who can be mainstreamed, the student should be "progressing smoothly through the regular curriculum." For students who are not mainstreamed, the IEP must be ambitious. In other words, every student "should have the chance to meet challenging objectives."  

Also interesting is the Court's discussion of deference to school district decisions. Courts cannot create educational policy. But school districts must bring expertise to bear on problems in support of their choices about how to educate the student. A Court "may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions." This means that, in litigation, I may be able to convince a judge to apply less deference to a school district decision that is not supported by contemporaneous cogent and responsive reasoning.

In sum, this Supreme Court decision will create a major change in the process of drafting IEPs. Before, school districts could rely on the expectation of a collaborative process to make a take-it-or-leave-it offer, then use parental objections as evidence of non-collaboration. Now, parents have some leverage to make the process truly collaborative.

GNETS Rule Change Proposal

on Wed, 11/02/2016 - 20:29
As many of you may know, there is currently a lawsuit pending, filed by the US Department of Justice against the State of Georgia, alleging that the GNET program is discriminatory.  Although not precisely legally relevant, the Georgia Department of Education is in the preliminary stages of drafting a new state rule governing the GNET program and services. (For those interested, the proposed draft rule can be found here.)  
 
Whatever their motivation, the Georgia DOE has asked for public input on the proposed draft rule. Below are the comments I just submitted:
 
Good afternoon. My name is Tim Schwarz . I am an attorney who solely practices in the area of special education. Please accept this as my feedback to the draft proposed new rule regarding the GNETS. In reading the proposed new rules I have several concerns, based on my experiences with the difficulties my clients have had in their interactions with the GNETS system.  
 
The first concern many of my clients have with the GNETS system is that it is often used as a quasi-discipline placement, rather than as a therapeutic placement. Student with behavior difficulties are referred to a GNETS placement by school principals who simply want the student removed from the building, without any consideration of whether (1) additional support can be provided in the current placement, (2) the GNETS placement is therapeutically appropriate, or (3) other the less restrictive placement available through the school district. The proposed rules do not provide sufficient guidance to prevent what is essentially use of GNETS as a discipline placement, and include no enforceable rights for students to avoid this inappropriate process.  
 
Secondly, many behavior difficulties students show that lead school staff to seek a GNETS placement are caused by conditions such as autism and/or cognitive impairment, not stereotypical mental health issues that GNETS programs are aimed to address. There is no therapeutic basis to include mentally ill students and students whose behavior can be attributed to other causes in the same placement. Further, such common placement is likely legally inappropriate. Yet the proposed rules say very little about the need to avoid co-mingling students with different needs in a common setting. Further, the proposed rules include no enforceable provisions to prevent therapeutically and legally inappropriate placement co-mingling.  
 
Finally and more importantly, students placed in a GNETS placement because of their mental health needs are not provided useful therapeutic support and counseling. Ideally, local schools would be staffed with certified mental health professionals to provide direct therapy and advice staff on supporting students suffering from mental illness. Not only do the proposed GNETS rules fail to provide a mechanism for creating this support in local schools, the proposed rules do not even mandate this level of support in the GNETS location.  
 
A school psychologist could carry a caseload of students who to see on a regular basis to provide counseling services, as written into their IEPs or 504 plans. That is unheard of here in Georgia, but is something that we need, especially if we are to move to GNETS as a service model. The proposed rules as written do not even to contemplate changing the GNETS program from its current inadequate state to a more useful therapeutic and local educational option for students with mental illness.  
 
Thank you for your consideration these comments on the proposed rule. Please feel free to contact me for any follow-up.
 

Maximizing Potential is not Required

on Thu, 03/10/2016 - 19:35
At a recent IEP meeting I attended, a door near the meeting room had a poster stating that the school’s mission was “to educate its students to their fullest potential so they will become responsible, productive citizens in a global society.”1 A worthy mission, but quite different from the standard being applied in the meeting, where the school district was not required to maximize potential, only provide meaningful benefit. As the Eleventh Circuit explained, meaningful means nothing more than “’some’ or ‘adequate’ educational benefit.”  
 
This is one of the basic frustrations of many parents I meet. When trying to look good for the public, school districts talk the big talk. But the school district always talks down its responsibility when talking to particular parents whose students need special education. Many parents feel very frustrated and jerked around by what they see as a two-faced school district, making grand promises in public then refusing to follow through.  
 
So who is right? From a legal perspective, the school district is right that it only must provide a “basic floor of opportunity.”1 But that’s no excuse for being so ham-handed with managing expectations. Special education law expects the family and the district to collaborate to create the special education plan. That requires frank discussion of weaknesses and strengths of a student. School districts do not make it easier to have those difficult conversations by setting up expectations in public and then immediately walking them back in private.  
 
1JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 (11th Cir. 1991). Since I wrote this post, the Supreme Court has changed the law to require more than a basic floor. Nonetheless, maximizing student potential is not legally required.

Cameras In the Special Education Classroom

on Thu, 03/03/2016 - 17:04
The Georgia Senate recently held hearings on House Bill 614, which passed the Georgia House of Representatives last week. The bill authorizes the Georgia Department of Education to require video cameras in self-contained special education classrooms. Ideally, this proposal would remove the “teacher-said / student-said” dynamic from disputes over classroom incidents be making a recording available for review by all sides.
 
However, I have grave concerns that the videos will not be a resource for a parents, but will only help school districts defend themselves. As section (b)(4) of HB 641 explains, the Georgia Department of Education must create:
 
Procedures and requirements to protect the confidentiality of student records contained in videos recorded from video monitoring cameras placed pursuant to this Code section in accordance with the federal Family Educational Rights and Privacy Act and Article 15 of this chapter.
 
This is a significant issue because virtually every image of a classroom will contain images of multiple students – without permission of every student included in an image, a school district could easily refuse to provide copies to ANY family. This issues is not new – 34 C.F.R. § 300.615 essentially prevents IEP eligible students from reviewing records that include information on more than one child. Regardless of this restriction, appropriate school officials will still have access to all recordings.
 
In short, the video recordings created by HB 614 will be available for school districts as a shield to defend from accusations of misconduct, but will not be available for families to review in order to determine if an accusation is warranted. Although teachers may change their behavior because they know they are being recorded, I concluded that the one-sided aspect of recordings in self-contained special education classrooms means they will provide essentially no legally useful protection for parents.

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