Supreme Court Win for a Girl and Her Service Dog Clarifies Families’ Right to Sue in Federal Court for Discrimination

The ACLU of Michigan published this 3-minute video about this case entitled, “Ehlena and her Wonder: The Americans with Disabilities Act.

Last week, the U.S. Supreme Court ruled unanimously in favor of the family of a child with cerebral palsy in Fry v. Napoleon Community Schools. This is an important win for students with disabilities that greatly clarifies in what situations a child can bypass the slow-moving process of impartial hearings and state appeals required by the Individuals with Disabilities Act (IDEA). In its essence, the Court ruled that if a child with a disability alleges discrimination under the Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act, and their claim isn't related to denial of a free appropriate public education ("FAPE"), then that student has the right to immediately sue in federal court.

Ehlena Fry was 5 years old when she began attending her local school in 2009 with her service animal, a hypoallergenic Goldendoodle named Wonder. After a trial period, the school refused to allow Wonder to continue to accompany her. Officials claimed that Ehlena was adequately accommodated by the 1:1 aide the district provided. But Wonder was trained to help Ehlena be more independent so she didn’t have to rely on people’s help. Her service animal helped her do intimate things like use the bathroom without assistance, and also to take off her coat, open and close doors and lockers, and pick up dropped items.

Rather than separate Ehlena from Wonder or force their daughter to be less independent than she was capable of, her parents homeschooled her until they found a school willing to let her be accompanied by Wonder. They then filed a lawsuit under  Title II of the Americans with Disabilities Act (ADA) since the ADA permits service animals in public institutions like schools. A lower court ruled against the Fry family since they hadn't first exhausted all remedies under IDEA.

The Court’s decision outlines a test for lower courts to apply. Federal courts will now ask (1) whether the plaintiff could have brought the same claim if the discrimination happened in another public facility (like a library); and (2) whether a non-student at the school (like a teacher) could sue for the same issue. If the answer to both questions is yes, then the complaint may be immediately brought in federal court. If not, the parents must bring the claim under the IDEA.

The ACLU of Michigan released this statement after the Court issued its decision.

Why Parents Should Join the Council of Parent Attorneys and Advocates (COPAA)

Lately, whenever we blog about an important legal or policy development, we receive emails from clients wanting to know: What can I do? 
 
One organization that parents can join to get more involved in affecting public policy is the Council of Parent Attorneys and Advocates (COPAA). COPAA is the only national organization of attorneys, advocates, and parents that specifically focuses on the educational rights of students with disabilities. In addition to many invaluable member-only resources, like sample documents and other advocacy tools, discounts on COPAA’s informative webinars, access to COPAA’s moderated listserv, and an online peer-to-peer network for parents, COPAA actively engages in public policy work, fighting every day to protect the civil rights of special education children. The Law Offices of Regina Skyer and Associates, L.L.P is a proud member of COPAA.
 
Some of COPAA’s current public policy priorities include safeguarding the IDEA, Section 504, and the ADA; protecting the IDEA funding formula; ending discrimination against students with disabilities in voucher and charter programs; and creating more opportunities for students with disabilities to transition to post-secondary life. (See COPAA’s Policy webpage for more information on their public policy priorities.) COPAA also opines on critical issues impacting special education from political appointments to rules changes and legislation, and writes amicus briefs (which assist a court by offering information on ongoing cases) for impact legislation.
 
For more information about how to become a member of COPAA, please see their website.

Navigating Disagreements with Early Intervention

By Magda Labonté and Eliyanna Kaiser

Getting an Individualized Family Services Plan (IFSP) for an infant or toddler isn’t usually as contentious as the process for preschool and school-age children can sometimes be, but there are times when a parent strongly disagrees with something Early Intervention (EI) decides or when a child experiences an unacceptable gap in services. 

Our office represents parents who are at loggerheads with EI. It can be valuable to consult with an attorney while considering the best strategy for exercising your due process rights. Some tactics may produce better outcomes.

A common problem we are asked about arises when a parent disagrees with a proposed IFSP (in part or whole). We also hear from many parents about unacceptable delays in the provision of services (no more than 30 calendar days after signing consent to initiate is the law). Other situations that pop up include when a child needs a new service that EI is refusing to provide; when an IFSP provides for a service, but not enough of it; or when a parent’s request to modify an IFSP in some other way is denied.

In all of these situations, the first step is to express your concerns to your service coordinator. They may be able to resolve some problems.  If your service coordinator isn’t responsive, or you don’t feel they are doing their job properly, you can switch service coordinators (and agencies) at any time. You also have the right to file a “system complaint” against your service coordinator and anyone else who works for EI, including service providers, evaluators, and the Early Intervention Official (administrator) assigned to your child’s case. For more information, see the NYS Department of Health’s publication, Early Intervention Steps: A Parent’s Basic Guide to the Early Intervention Program.

There are, of course, some problems that even the most dedicated service coordinator will be unable to fix. In those situations, you have due process rights. You have both the right to request mediation or to file an impartial hearing request. If you retain an attorney, you will not be able to recover legal fees unless you go through mediation first. 

Some parents decide to privately obtain services through independent providers and then file an impartial hearing request seeking reimbursement. Lawyers may recommend that parents obtain private evaluations to support their claims in these (and other) cases. 

Early Intervention is designed to provide services at a time when your child will receive a tremendous benefit. Don’t let disagreements interfere with this; this critical period will be over in the blink of an eye.

Action Needed: ‘Special Education Waiver’ in Draft NYS Budget

Advocates for Children put out an important action alert yesterday in response to the 2017-18 draft executive budget. The draft budget includes a provision that allows local school districts to apply to the state for a waiver from state laws that protect the rights of special education students. (Advocates for Children’s full response to the draft budget is available on their website.)

Advocates for Children urges New Yorkers who care about special education to contact both their State Senator and State Assembly Member and express opposition to the special education waiver in the governor’s draft budget. You can find contact information for your State Assembly Member at http://nyassembly.gov/mem/search/ and your State Senator at https://www.nysenate.gov/find-my-senator.

Below is Advocates for Children’s sample script for your call. When you contact your elected officials, always make sure to say that you are a constituent residing in their district. Provide your residential address to the person who takes your call or in any voicemail message you leave or any email you send. This is how legislators know that you are a potential voter whose concerns they should be responsive to.

Sample script:

My name is [your name] and I am a [parent of a student with a disability/teacher/concerned constituent]. I am calling regarding the state budget. I want to make sure the budget does not include the special education waiver in Governor Cuomo's budget proposal. The special education waiver would allow school districts to take away important rights for students with disabilities, and I hope you will reject this proposal. Thank you.

DOE Affirms Its Commitment to Protecting the Rights of Immigrant Students

There is a lot of uncertainty right now about national immigration policy. On January 30th, the NYC Department of Education sent home a letter from Chancellor Fariña affirming the city’s commitment to protecting the rights of students.  

Among other commitments, the DOE spells out that its longstanding policy is to neither ask about nor keep a record of the immigration status of a student or their family. While children with IEPs may have their national origin or when they moved noted as part of their original or updated social histories, no information about their immigration status—even if voluntarily disclosed to a social worker or evaluator—should appear in the social history, IEP, or any other document.

The DOE has also promised not to give Immigration and Customs Enforcement (ICE) officials access to schools without first demonstrating proper legal authority for being there. This stops short of noncooperation, as some advocates quoted in Chalkbeat would prefer. 

The 1982 U.S. Supreme Court decision Plyler v. Doe guarantees that all children have a right to an elementary and secondary education, regardless of immigration status. New York City is going one step further, and the DOE is referring families who need free immigration assistance to ActionNYC.