DOE Considering Multi-Year Settlement Agreements

Earlier this week, the NYC DOE’s Office of General Counsel advised our office that some parents will have the option of entering into a three-year renewable settlement agreement with the NYC DOE. As many of you may recall, Mayor de Blasio’s 2014 Special Education Initiative that started the “Fast Track” settlement process also included the prospect of multi-year settlements.

But don’t get too excited yet. Thus far, the proposal from the DOE is not favorable to parents. In fact, the current proposed language significantly weakens a parent’s position in settlement. The DOE does not appear to be committing to paying out for years two and three at the time of the agreement, rather, they’re setting a cap on the amount they’ll reimburse for years two and three if the IEP remains the same and if the DOE has reason to settle the case.

In other words, the language of the proposed agreement forces parents to commit to a maximum dollar amount in reimbursement, but relieves the District of its responsibility to pay if certain conditions are not met. Additionally, because parents remain obligated to file Ten Day Notices each year, a multi-year settlement under the DOE’s current proposal requires that parents continue to be in an adversarial position with the DOE.

We will continue to communicate with the Office of General Counsel to determine whether equitable multi-year settlements are a possibility. 

Martin Luther King, Jr. and the Struggle for Equality in Schools

“To all men of good will, this decision came as a joyous daybreak to end the long night of human captivity. It came as a great beacon light of hope to millions of colored people throughout the world who had had a dim vision of the promised land of freedom and justice… this decision came as a legal and sociological deathblow to an evil that had occupied the throne of American life for several decades.”

— Martin Luther King, Jr., speaking in 1956 at an annual luncheon of the National Committee for Rural Schools, reflecting on the importance of Brown v. Board of Education

By Regina Skyer

The laws that govern special education in our country are inextricably linked to the Civil Rights Movement. It is befitting that on Martin Luther King, Jr. Day we acknowledge this link and express our gratitude for the impact that the civil rights movement continues to have in advancing the rights of children with disabilities in our school system.

Maybe you have heard the phrase, “Equal justice under law”? It is inscribed over the doors of the U.S. Supreme Court and comes from the Equal Protection Clause. It was enacted in 1868 as an effort to validate the equality provisions of the Civil Rights Act, the legislative culmination of the end of the Civil War and by extension, of slavery.

It was this idea, of equal justice under law, which served as the basis for the landmark 1954 Supreme Court decision, Brown v Board of Education, which, in rejecting the “separate but equal” doctrine that had upheld racial segregation in our nation’s schools, heralded the binding principle that in education separate is not equal.

The spark of excitement that the legal victory in Brown inspired could have turned to disillusionment when many school districts made it clear they had no intention of following the Court’s ruling. Instead, that spark caught fire and civil rights leaders like Dr. King made school desegregation a cornerstone demand of the new civil rights movement. 

In the ruling for Brown, the Court wrote, “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” It is easy to see how this declaration, the principle of “separate is not equal,” and the front-page example of the hope, spirit, and struggle of this historic social movement taking on institutional racism, inspired parents and attorneys of disabled children. It was only after the Supreme Court’s unanimous decision in Brown that suing school districts for excluding or segregating children with disabilities was undertaken as a legal strategy.

Brown and the civil rights movement’s battle for desegregation paved the way for the law we know as the Individuals with Disabilities Education Act (IDEA), upon which all rights for special education students are based. On this day that we remember Dr. King, let us not forget this enduring contribution.

Supreme Court to Decide How Much Educational Benefit a School District Must Provide in Special Ed

Attorneys from The Law Offices of Regina Skyer & Associates, L.L.P. traveled to Washington D.C. on Jan. 11, 2017 to hear oral arguments in Endrew v. Douglas County School District. Pictured on the steps of the U.S. Supreme Court from left to right: Linda Goldman, Abbie Smith, Diana Gersten, Jesse Cutler, and Greg Cangiano.

On Wednesday, the United States Supreme Court heard oral arguments in Endrew F. v. Douglas County School District. The case concerns a fourth grade student with autism named Endrew F., whose parents enrolled him in a private school specializing in autism for which they sought reimbursement from their school district in Colorado. The district argued that they shouldn’t have to pay because in his prior public school program Endrew had made “some” educational progress. The parents’ attorneys argued that Endrew was entitled to a “meaningful” educational benefit. 

Courts throughout the country are divided on how much benefit must be offered in order for a school district to satisfy the requirements of providing a child a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA). For example, in the Second Circuit (Connecticut, New York and Vermont), school districts are required to offer a program that is likely to result in a benefit that is “more than merely trivial.” Now the Supreme Court is grappling with this critical issue.

We believe that Endrew F. is the most important special education case to come before the Supreme Court in over twenty-five years. Its outcome will have an enormous impact on every one of our clients.

Five senior attorneys from our office traveled to Washington, D.C. to listen to the oral arguments. The courtroom was crowded with parent and school district attorneys from all over the country. We sat near the petitioners, Endrew’s mother and father, and their presence by our side served as a constant reminder of our own clients back in New York for whom the outcome of this decision is so personal.

The debate between the attorneys was lively. The Solicitor General spoke on behalf of the U.S.  Department of Education and, as he had articulated in the administration’s amicus brief, asked the Court to rule in favor of a higher standard than the Colorado school district was defending. The Justices asked questions of both sides, with a clear focus on how to set forth a clear standard for all students, regardless of the severity of their disability. 

Justice Alito distilled the core issue: that the court needs to find the perfect word with the right nuance to define the level of benefit required. Chief Justice Roberts and Justice Alito joked about the need to come up with a standard that doesn’t require musical notation or the proper intonation (“some” versus “some”).

Reading the tea leaves is difficult, but we are cautiously optimistic. We left feeling that the Court will set forth a standard that is easier to understand and apply, and one that is likely to hold school districts to a higher standard than what exists now.

For more information, please see the U.S. Supreme Court’s written transcript of the oral arguments of January 11th. Audio transcripts are posted on this page when they become available.

High school students with IEPs are being denied life-changing Career and Technical Education (CTE) opportunities

Students with disabilities have graduation rates that seriously lag behind general education students. In 2015, 83.1% of general education students graduated, but only 49.8% of students with IEPs did. No one has a magic bullet for fixing this, but Advocates for Children’s latest report, Obstacles and Opportunities, reveals that Career and Technical Education (CTE) may boost graduation rates for some of our students.

One of the reasons that students don’t graduate is struggling with the State’s graduation exams, and CTE provides a promising new pathway for graduation. As of 2015, NYS now allows a student who successfully completes a CTE program and earns a passing score on its assessment exam to forgo a fifth Regent exam. This is commonly referred to as the “4+1” option.

CTE may also be beneficial for students with disabilities because many of its programs are compatible with so-called “active teaching strategies” that incorporate movement, repetition, and other strategies or modes of learning that work better for some kids with developmental disabilities and learning disabilities. CTE has a wide range of disciplines (over 400 programs) that appeal to a variety of interests and skills in such fields and trades as culinary arts, automotive repair, web design, computer science and technology, carpentry, and more; so a student with a special interest may be more motivated to succeed in one of these programs.

Finally, CTE students gain hands-on career-building skills and may have access to internships, mentorships, and job shadowing. So, in addition to boosting matriculation rates, “students with disabilities who successfully pursue CTE are more likely to experience improved prospects for employment, earnings, and overall economic success,” according to the report’s findings. 

Unfortunately, because of changes in the overall job market, enrollment in these specialized CTE programs has become much more competitive. Advocates for Children found that students with disabilities were significantly underrepresented in CTE programs. Some of the many reasons for this, they said, include a lack of awareness among IEP teams about CTE opportunities and a parallel lack of awareness and training among CTE program staff about the diverse abilities of students with disabilities and how to accommodate and integrate them.

A frustrating catch-22 for students struggling with the Regents, who might particularly benefit from the 4+1 option, is that Advocates for Children found that many schools “restrict students from participating in CTE if they have not met Regents exam benchmarks.” Students themselves may also decide against enrolling in a CTE program if they are struggling to prepare for the Regents exams. According to the report, “students trying to fulfill these testing requirements while simultaneously pursuing CTE coursework may feel overwhelmed and forced to make decisions that may not be in their best long-term educational or career interests.” And while the opportunity to take advantage of the 4+1 option is compelling, only a few dozen of the over 400 CTE programs are currently approved as 4+1 options throughout New York State.

If you have a child in high school or who is approaching the high school age, it is well worth your time to read Obstacles and Opportunities in full. You can also find out more about CTE programming on the NYC Department of Education’s Career and Technical Education (CTE) webpage. 

An Important Reminder for Parents of Children Born in 2012: The NYC Kindergarten Registration Deadline is Friday, January 13th

Last fall, the NYC Department of Education’s Special Education Office sent out an important letter to parents of children who will be “turning five” during the 2017 calendar year, and who are expected to enter kindergarten in September, 2017. 

That letter clarified that the parents of all children turning five, including those with IEPs, must apply to kindergarten through the NYC application process.  This obligation applies regardless of whether you feel that your child’s needs could ever be met in your local public school.
Applications for kindergarten are now open and close on January 13th, 2017.  Parents can apply in one of 3 ways:

1. Apply online at schools.nyc.gov/ApplyOnline

2. Apply over the phone by calling 718-935-2400 (M-F, 8 am – 6 pm)

3. Apply in person at a Family Welcome Center (see schools.nyc.gov/WelcomeCenters for locations and hours)

Despite the fact that the kindergarten placement process is different for children with IEPs, this DOE letter makes it very clear that parents of children who receive special education services through the CPSE are required to participate in the regular NYC kindergarten application process.

If you did not receive a letter on this topic from the Department of Education, it is still important to be an active participant in the kindergarten application process.  For important updates and more information regarding the transition to kindergarten for special education students, please visit schools.nyc.gov/Academics/SpecialEducation/AcrossGrades/Kindergarten.