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Please sign up for a panel presentation including Paul Barger on Tuition Reimbursement & Transportation.
January 15, 2025, 7:00 PM.
Hosted by the Special Education Legal Fund.
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By Jennifer Swift, Esq.
As parents navigate their child’s educational journey, they may occasionally be confronted with what seem like an alphabet soup of acronyms.
We understand the worlds of education and special education can be challenging, especially when it seems like officials are speaking a different language. To help, we’ve prepared a glossary of sorts to explain some of the most commonly used acronyms. Many of these terms are rooted in the IDEA (Individuals with Disabilities Education Act) but we’ve also included a few that are specific to New York.
1. IDEA: Individuals with Disabilities Education Act. The IDEA is a vital piece of legislation which ensures students with disabilities receive a FAPE (free appropriate public education). The IDEA protects students ages 3 to 21 whose disabilities which impact their ability to learn.
2. 504 Plan: Not an acronym, but still worth a mention. A 504 Plan refers to Section 504 of the Rehabilitation Act of 1973 and aims to provide students with disabilities equal access to education alongside their non-disabled peers.
3. ESY: Extended School Year. Certain students are eligible for an extended school year, also known as a 12-month school year. IEPs will feature a question as to whether the student qualifies for ESY. Most commonly, this is addressed at the student’s annual review.
4. IEP: Individualized Education Program. This is a plan developed by a committee consisting of parents and educators which specifies the special education services, accommodations and modifications a student requires. There are 13 categories of disability in an IEP.
5. IESP: Individualized Education Services Plan. Similar to an IEP, this document is specific to the “services” portion of an IEP. A parent may request an IESP if their child is attending a school outside their home district.
6. CSE: Committee on Special Education. This group comprised of District administrators, educators and staff who identify students eligible for IEPs and create the resulting programs. Parents are also integral members of their child’s CSE.
7. CPSE: Committee on Preschool Special Education. Similar to a CSE, this committee is focused on children ages 3 to 5.
8. BIP: Behavior Intervention Plan. A BIP is created for students experiencing behavioral challenges. The plan identifies strategies and interventions to address those struggles.
9. FBA: Functional Behavioral Assessment. This precedes the BIP. An FBA is the assessment and data collecting process used to identify the student’s behaviors and the reasons behind those behaviors.
10. LRE: Least Restrictive Environment. This mandate under the IDEA requires that students with disabilities are educated alongside their non-disabled peers to the greatest extent possible.
11. OHI: Other Health Impairment. OHI is one of the 13 categories of classification in an IEP. OHI is often a catch-all category for students with health-related disabilities that impact their ability to learn.
12. ED: Emotional Disability (formerly Emotional Disturbance). A category of disability for students with emotional or behavioral struggles which significantly affect their educational performance.
13. ID: Intellectual Disability: A category of disability for students with significant limitations in intellectual functioning and adaptive behavior, which impacts their educational performance.
14. LD: Learning Disability. A category of disability for students with disabilities impacting their ability to read, write, listen, speak, reason, or perform mathematical calculations.
15. FAPE: Free Appropriate Public Education. The legal requirement mandating Districts provide students with disabilities an education specific to their individual needs at no cost to the family.
16. IEE: Independent Educational Evaluation. This is an evaluation usually requested by parents which is conducted by a third-party. IEEs are most often requested after parents disagree with, or have concerns with the District testing.
17. ICT: Integrated Co-Teaching. A model of teaching which provides students with IEPs individualized instruction within a classroom that includes both general education and students with disabilities.
THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.
By Gideon Porter, Esq.
In the age of social media and in an ever more connected world, the issue of student free speech outside the school is at the top of many parents’ minds. Parents want to shield their children from school discipline due to posts on Instagram and other social media apps but often are not exactly sure how to.
Historically, the debate over student free speech has focused on words and actions at school. In the foundational Supreme Court case Tinker v. Des Moines Independent Community School District, decided in 1969, the majority opinion famously declared students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
But when do students cross the line from protected speech to unprotected speech? And how is speech regulated differently in school vs. outside of school? In other words, when can schools restrict student speech? Tinker articulated a standard that has long served as the framework: student speech can be restricted only if it “would substantially interfere with the work or impinge upon the rights of other students.”
Tinker further articulated that schools could restrict speech if it “might reasonably [lead] authorities to forecast substantial disruption or material interference” or hinders “with the rights of other students to be secure and to be alone.”
Years later, in Hazelwood v. Kuhlmeier, the Supreme Court held that schools “need not tolerate student speech that is inconsistent with its basic educational mission.” Put another way, students are subject to school discipline when they interfere with the education of other children.
As a result, this area of first amendment law has examined whether student speech at school creates a substantial disruption and interferes with a school’s basic educational mission.
Before social media, instances where student speech outside of school created a substantial disruption were often easy to analyze. A student on a Saturday night leaving a message on the school’s answering machine announcing a threat to the school or another student? That speech would be deemed unprotected, and that student would be rightfully disciplined.
But the world has changed. Instagram, Snapchat, Facebook, and smart phones allow students, off campus and on campus, to narrowly tailor their messages and speech to a select audience.
Questions about student speech are now more complicated. Sentiments that may have previously been verbally expressed among friends are now posted online.
But what constitutes a substantial disruption on Instagram? What powers should schools possess regarding the digital lives of their students?
Consequently, courts have had to grapple with student speech in the age of the iPhone.
In 2021, the Supreme Court finally addressed this changed world in Mahanoy Area School District v. B.L. The facts of the case are simple: a high school student tried out for the varsity cheerleading team but only made junior varsity. That weekend the student, B.L., on Snapchat, posted a picture of herself and a friend raising a certain finger with a caption cursing out the school and the cheerleading program. She made another post as well expressing her disagreement with being left off the varsity teams. B.L.’s posts were visible to around 250 people, including fellow students and cheerleaders.
Some students screenshotted the posts and expressed concern to the cheerleading coach. The coach concluded B.L. violated both school and cheerleading team rules. She was suspended from the junior varsity team for the year.
She sued the school alleging, among other things, that her suspension from the junior varsity team violated her First Amendment rights.
Eventually the case made its way to the highest court in the land. To the delight of free speech advocates, the Court ruled in B.L.’s favor.
As it often does today, the Supreme Court did not articulate a bright line rule explaining how student off campus free speech rights differ from on campus free speech rights. Nor did the Court provide a bright line rule articulating a standard stating how student first amendment rights should be balanced with a school’s legitimate interest in preventing substantial disruptions.
Instead, the Mahanoy decision states there are three unique features of off-campus speech. Specifically the Court explained that (1.) schools rarely stand in loco parentis (in the place of a parent) when a student speaks outside the school setting; (2) regulating off campus speech, in combination with regulating on campus speech, means that student speech is regulated around the clock so there should be a general skepticism in regulating off campus speech and; (3) schools have an interest in protecting unpopular expression because public schools are “the nurseries of democracy.”
The Court held “these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.”
Regarding B.L.’s actions the Court stressed that B.L.’s speech was outside of the school day; it did not identify the school itself nor did it target any member of the school with crude or abusive language; and that she transmitted the speech via Snapchat to a selected audience.
The Court held that B.L.’s posts did not amount to a substantial disruption simply because some students were upset. Moreover, the Court held that because her speech was conducted off campus meant that her school at the time was not standing in loco parentis.
Due to the lack of bright line rules in Mahanoy it has been fascinating to see how lower courts interpret and apply the decision.
Two of the most scrutinized post Mahanoy decisions are Chen v. Albany Unified School District (a Ninth Circuit case) and CI.G v. Siegfried (a Tenth Circuit case). These decisions stand out because each uses Mahanoy to arrive at different outcomes: the former held that disciplining a student for off campus speech was not a violation of students’ first amendment rights and the later held that a student’s First Amendment rights were violated when he was disciplined for off campus speech.
In Chen v. Albany Unified School District, the Ninth Circuit relied on the Mahanoy decision to hold there was enough of a connection to the school and a student’s off campus speech that his speech could be regulated. The facts of the case were deeply disturbing: a student created a private Instagram account (separate from his public account) which was accessible to only thirteen students. The student posted racist pictures and captions directly involving other students in the school. It was undisputed that the student sought to keep his posts and account private. But while the student sought privacy, the Ninth Circuit reasoned that it should still be examined whether it was reasonably foreseeable that the Instagram posts would reach the broader school community and create a substantial disruption. Due to the easily accessible posts and the rapid nature in which such posts can spread (and in fact did so across the student body) the Ninth Circuit held that such disruption was foreseeable and that the off-campus speech should be regulated. Of note, is that the Ninth Circuit observed that if the District did not intervene it would have created a racially hostile environment at the school.
The Tenth Circuit decision in CI.G v. Siegfried relies on Mahanoy to arrive at a very different conclusion. The facts in this case, also deeply disturbing, involve a student who posted a picture on Snapchat (on his private story, viewable for 24 hours) of himself in military garb with the caption “Me and the boys bout to exterminate the Jews.” Later he posted on his private story that “I’m sorry for the picture it was meant [sic] to be a joke.” The student was expelled after a parent complained. He brought legal action and eventually the Tenth Circuit found in favor of the student. The opinion held that it was not reasonable to predict a substantial disruption from the post and that in fact there was not an actual disruption.
Clearly there is a lot to learn from these decisions. Here in the tristate area, it will be fascinating to see how one of our high courts rules on an off campus free speech case when implementing Mahanoy.
THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.
By Nanette Saturn
As summer comes to a close, it’s time to shift focus back to the school year and tackle that all-important “To Do” list. To ensure a smooth transition for your child into their new teacher and school environment, and to address any potential issues early on, please keep the following points in mind.
First and foremost, if you have not yet received a copy of your child’s Individualized Education Program (IEP), it is crucial to contact the special education office and request that a copy be emailed to you. It is important to have the IEP in your possession throughout the school year and to review it for accuracy to ensure that all details are correct.
Once you have the IEP, carefully review it for any inaccuracies or outdated information. If you notice any discrepancies or updates needed, address these promptly.
Additionally, if there have been any changes in your child’s behavior or social-emotional well-being over the summer, it is important to inform your child’s teacher and any other relevant providers. Keeping the staff informed helps them provide the necessary support from the start. Depending on the severity of these changes, it may be necessary to reconvene the Committee on Special Education (CSE) for additional support.
If your child’s IEP includes mandated Team Meetings, make sure to reach out to the district at the beginning of the school year to schedule these meetings. It’s important not to assume that the district will contact you. On the other hand, if your IEP does not require these meetings, you may still request one. I generally recommend scheduling a team meeting around the end of October to allow sufficient time for adjustment to the new classroom and program. This meeting is not a CSE meeting, and not all parties need to be in attendance.
If your child is scheduled for a school-based evaluation or functional behavior assessment early in the school year, ensure that you have signed the necessary consent forms. Contact the district to confirm the testing schedule. If the evaluation is completed before February, consider scheduling a CSE program review meeting to discuss the findings and make any necessary adjustments to the IEP, rather than waiting for the annual review, which may not take place until April or May.
Should you suspect that your child is struggling by the end of October, it is advisable to schedule a CSE program review before the holiday break. Prompt action can facilitate necessary changes and support before the year progresses further.
For students newly placed in an out-of-district (OOD) setting, arrange for a 6–8-week CSE program review meeting with both the home district and the OOD placement. This meeting will help evaluate your child’s current performance levels and make any required amendments to the IEP, often updating goals based on recommendations from the OOD placement.
Lastly, if your child is having difficulties with homework, reach out to their teacher to discuss possible accommodations that may help reduce the homework load and make it more manageable for your child.
Wishing everyone a wonderful and successful school year!
THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.
By Rebecca Kirschner, Esq.
Pursuant to the Individuals with Disabilities Education Act (“IDEA”), public schools are required to provide students with disabilities a Free Appropriate Public Education (“FAPE”). A FAPE is defined as educational instruction designed to meet the unique needs of the child, accompanied by the necessary services to ensure the student can benefit from that instruction. An Individualized Education Program (“IEP”) is the primary mechanism through which FAPE is delivered to students with disabilities. Often, disputes arise when parents and the district disagree on whether an IEP is appropriate to sufficiently support the student’s needs to allow for meaningful progress. If parents believe that the school district has failed to provide their child with a FAPE, they may choose to unilaterally place their child in a private school and seek tuition reimbursement from the district.
The Burlington-Carter Test is a three-prong test used to determine whether parents of children with disabilities are entitled to reimbursement from their public school district for the costs of unilateral placement. Under the Burlington-Carter test, a district may be required to reimburse parents for private school tuition if (1) the district denied the student a FAPE; (2) the parents’ unilateral placement is appropriate; and (3) equitable considerations support the parents’ claim for reimbursement.
The first prong of the Burlington-Carter test examines whether the public school denied the student a FAPE. The District must demonstrate that it offered the student an appropriate program and related services. When determining whether the District provided the student with a FAPE, courts will examine whether the District complied with the procedural requirements set forth in IDEA and whether the IEP was reasonably calculated to allow the student to make appropriate progress in light of the child’s circumstances. The student’s unique circumstances and specific needs determine the adequacy of the IEP in question. Districts are only required to provide an appropriate education. They are not required to provide what’s optimal for the student, or to maximize the potential of students with disabilities.
The second prong examines whether the private placement chosen by the parents is appropriate for the student considering the student’s individual needs. When determining whether the parents’ unilateral placement is appropriate, parents must demonstrate that the placement was likely to produce progress, provides educational instruction specially designed to meet the unique special education needs of the student, and is supported by the services necessary to allow the child to benefit from instruction.
The third prong considers equitable considerations. This inquiry focuses on whether the actions of the parents were reasonable and whether the balancing of the equities support reimbursement. Factors considered include whether the parents provided timely notice of the unilateral placement to the District, and whether the parent cooperated with the District by attending IEP meetings, consenting to evaluations, and fairly considering all District proposed programs.
THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.
By Alyssa Drazin, Esq.
IEP vs. 504 Plan
Students with disabilities are protected by both federal and state laws. The Individuals with Disabilities Education Act (IDEA) is the federal funding law for special education. It prescribes certain requirements that states must agree to abide by in order to get federal special education funding.
Section 504 of the Rehabilitation Act of 1973 is the federal law that protects qualified students from discrimination based on their disability. Both the IDEA and Section 504 require districts to provide a free, appropriate public education (FAPE) to eligible students with disabilities. While the purpose of both laws is to provide an eligible student with FAPE, the mechanism in which FAPE is implemented is different. Students who qualify under the IDEA are eligible to receive an individualized education plan (IEP). Students who qualify under Section 504 of the Rehabilitation Act of 1973 are eligible to receive a 504 plan.
What is an IEP?
An IEP is a written document outlining the special education and related services that an eligible student will receive at school. An IEP includes modifications, accommodations, and/or related services that the student requires in order to receive FAPE. An IEP is meant to enable a student to make meaningful educational progress in light of his/her unique circumstances.
A student is deemed eligible for special education and related services when it is determined that the student has one or more of the 14 disabilities listed below, the disability adversely affects the student’s educational performance, and the student is in need of special education and related services.
1. Auditory impairment
2. Autism
3. Intellectual disability
4. Communication impairment
5. Emotional regulation impairment
6. Multiple disabilities
7. Deaf/blindness
8. Orthopedic impairment
9. Other health impairment
10. Preschool child with a disability
11. Social maladjustment
12. Specific learning disability
13. Traumatic brain injury
14. Visual impairment
An IEP is developed by the student’s IEP team. Meetings of the IEP team must include: the parent, a general education teacher, a special education teacher, an individual who can interpret evaluation results, the case manager, representative of the district board of education, the student when appropriate, and, at the discretion of the parent of board of education, other individuals who have knowledge or expertise regarding the student.
The IEP should tell the reader where the student is currently functioning, what the annual goals are for the student, and what programming is needed to ensure the student meets their annual goals. To be appropriate, the IEP must permit the student to progress in the least restrictive environment (LRE).
What is a 504 Plan?
A 504 plan is a written document outlining the accommodations and related services that an eligible student will receive in school. A 504 plan is meant to provide the services needed to meet the students’ individual needs as adequately as their nondisabled peers.
A student is eligible for a 504 plan if he/she has a physical or mental impairment that substantially limits one or more major life activities. Major life activities may include functions such as caring for self, performing manual tasks, walking, seeing, hearing, speaking breathing, learning, or working.
The 504 plan is developed by a multidisciplinary group of individuals who are knowledgeable about the student, including the student’s parents, the meaning of evaluation data, and placement options.
While Section 504 does not mandate that certain information be included, a 504 plan typically includes information about the student's disability and the accommodations the student requires to receive FAPE.
THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.
Connecticut's special education statute and regulations provides that an individual with a disability who turns 21 during the school year is entitled to receive special education only until the end of that school year. A group of disabled students brought a class action law suit arguing that the State's failure to provide special education to individuals with disabilities between the ages of 21 and 22 violates the IDEA because the State provides public education to non-disabled individuals in that age range through adult education programs that allow their students to earn high school diplomas. After determining that the Connecticut adult education programs provided to individuals over the age of 21 qualified as “public education” under the IDEA, the United States Federal Court, District of Connecticut, held Connecticut must also provide a free appropriate public education under the IDEA to disabled students who have not yet obtained the age of 22.
Click here to access the decision.
The Sixth Circuit recently held that a lawsuit brought by students at several of Detroit’s worst performing public schools claiming that poor conditions within their classrooms have deprived them of a basic minimum education, meaning one that provides a chance at foundational literacy, may continue.
The Sixth Circuit specifically addressed an issue the U.S. Supreme Court has avoided: whether the Constitution provides a fundamental right to a basic minimum education. In examining the Supreme Court’s reasoning in other cases and applying the Supreme Court’s due process framework, the Sixth Circuit held “[a]ccess to a foundational level of literacy—provided through public education—has an extensive historical legacy and is so central to our political and social system as to be ‘implicit in the concept of ordered liberty.’” The Court went on to hold that “without the literacy provided by a basic minimum education, it is impossible to participate in our democracy.” The Court accordingly held that students have a fundamental right to a basic minimum education, meaning one that can provide them with a foundational level of literacy.
This decision reversed the District Court’s dismissal of the students’ claims and remanded the case for further proceedings.
Click here to access the decision.
A Pennsylvania District Court found that a school district did not provide FAPE when it offered a student with autism, OCD, and a conduct disorder a therapeutic day program that could not meet his need for 24/7 behavioral supports. Specifically, the student was obsessed with playing video games and would become violent and would elope if reasonable limits were set on his gaming time. The therapeutic day program director offered very general testimony as to the appropriateness of its program for the student with no specifics as to how it would teach the student to use electronics on a limited basis. The director of the program failed to identify any facts to illustrate how the program would address the student’s unique needs. The Court went on to uphold the appropriateness of the unilateral placement and granted the family’s request for reimbursement.
Click here to access the decision.
A Federal District Court in New York recently upheld a State Review Office decision granting a family reimbursement from a local school district for the unilateral placement of their son at a private school. The Court first upheld the determination that the District’s program, which called for a 15:1 class, was inappropriate because, among other things, the student needed very small class sizes. The Court went on to hold that the private school, while not ideal, was appropriate. While the District argued the private school did not meet all of the student’s needs, the Court held it was nonetheless appropriate because it provided instruction that was specifically designed to meet the student’s unique needs.
Click here to read the decision.
