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September 2016 Archives

Does Meaningful vs. Some Matter?

Today the U.S. Supreme Court granted review in Endrew F. v. Douglas County School District RE-1 a case about the level of education benefit a special education student must receive for a school district to provide an appropriate education under federal special education law.
Under federal law, the Individuals with Disabilities Education Improvement Act (IDEA), children with disabilities are entitled to a Free Appropriate Public Education (FAPE).  Back in 1982 the U.S. Supreme Court held in Rowley that a student's individualized education program (IEP) must be "reasonably calculated to enable the child to receive educational benefits." The Court elaborated that the education a child receives must confer "some educational benefit" and that the benefit must be sufficient to provide each child with "access" to education that is "meaningful." Post Rowley federal appeals courts have been divided over how much benefit a child must receive under his or her IEP in order to receive FAPE.  Is it "some" educational benefit or is it "meaningful" educational benefit?  Whereas at least six circuits adopt versions of the "some" benefit, two circuits apply the other standard that may require a greater degree of educational benefit, a "meaningful" benefit.  The U.S. Supreme Court will now hear argument and possibly resolve the split of authority. Last year in Endrew F. the 10th Circuit ruled a Colorado child with autism and ADHD received FAPE because the public school IEP provided "some educational benefit".   The 10th Circuit court denied the parents request for reimbursement at a private school.  The 10th Circuit also acknowledged that several other federal courts of appeals have adopted a higher standard that requires an IEP to result in a "meaningful educational benefit" however the in their appeal to the U.S. Supreme Court argued that when discussing that it was a close case, the 10th Circuit did not address whether parents would prevail under the "higher standard" adopted by other circuits. When you start analyzing the rabbit hole of educational benefit it is hard to distinguish between "some educational benefit" vs. "meaningful educational benefit".  Does one term create a higher standard? How do we define the difference?  How do we make it operational? Rather than dance around the issue of some vs. meaningful, perhaps we ought to focus on the required elements of IDEA:
  1. Evaluation drives statement of needs.
  2. The statement of needs drives the drafting of goals and objectives, which should be challenging yet attainable.
  3. The goals and objectives drives services.  The services need to address the goals which need to meet the needs.
  4. If the goals prove too easy or too hard, the district has the obligation to change those goals.
If school districts were held responsible for following this process with integrity, the whole issue of the level of educational benefit recedes into the woodwork. Endrew F. will likely to be argued sometime early next year in front of the U.S. Supreme Court.

Education Ruling: OK To Shut Out Disabled Kids?

 By Andrew FeinsteinFeatured in the Hartford Courant on September 10, 2016Judge Thomas Moukawsher issued a monumental ruling Wednesday in the case of Connecticut Coalition for Justice in Education Funding v. Rell, finding that Connecticut's system of funding education is irrational and unconstitutional. As to his basic findings, Judge Moukawsher is to be applauded.The excellent decision came, however, containing a very dark poison. Judge Moukawsher proposed that certain children with severe disabilities be denied a public education. He says, "The call is not about whether certain profoundly disabled children are entitled to a 'free appropriate public education.' It is about whether schools can decide in an education plan for a covered child that the child has a minimal or no chance for education, and therefore the school should not make expensive, extensive, and ultimately pro-forma efforts." He claims, inaccurately, that "no case holds otherwise, and this means that extensive services are not always required."This triage proposal is at odds with what the litigants argued in the case and diametrically opposed to federal civil rights law. The judge proposes discriminating against the severely disabled. Yet, discrimination based on the severity of disability violates the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Judge Ellen Bree Burns addressed this issue head-on in Messier v. Southbury Training School. Federal ADA regulations provide that a public entity, such as a school board, may not provide different benefits or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with benefits or services that are as effective as those provided to others.Judge Burns wrote that courts have repeatedly held that the Americans with Disabilities Act and Section 504 of the Rehabilitation Act prohibit discrimination based on the severity of disability. Specifically, she held that the state violated the ADA by failing to provide profoundly or severely disabled individuals with the same array of services as those provided to other less handicapped individuals, thereby discriminating solely on the degree of disability.Subsequently, the United States Supreme Court came to the same conclusion. The question of whether ADA covers discrimination among disabled individuals was clearly confronted in Olmstead v. L.C. Indeed, Justice Clarence Thomas, in his dissent, criticized the majority for finding that "discrimination occurs when some members of a protected group are treated differently from other members of that same group." Responding to this allegation, the Supreme Court majority called Justice Thomas' contention "incorrect as a matter of precedent and logic."Numerous other federal courts and the U.S. Department of Education have held that it is illegal to discriminate against the most disabled. This policy is not only mandated by the language of the Individuals with Disabilities Education Act, it is also sound, just and humane. For years, individuals with disabilities have been shunned, segregated and placed out of sight in institutions. By deeming the disabled as the other, we strip them of their humanity and feel free in removing their basic human rights.Judge Moukawsher deems it economically infeasible to provide comprehensive special education services to those with severe disabilities. He decides that they are hopeless or worthless, and certainly not worth the expenditure of public resources. The judge has no idea what thoughts, dreams, hopes and loves reside in the heart of an individual who cannot speak or who cannot control his or her physical movements. Yet, ignorant of the basic humanity of an individual with a severe disability, he wants to deprive them of educational services. Shame on him.Equally frightening is the underlying notion that the level of societal expenditures on an individual ought to be based on that individual's potential contribution to society. We cannot, of course, predict with any accuracy what an individual may offer to the world. Beyond that, this notion could lead to a termination of benefits for the elderly, as well as the disabled. It is a notion out of the selfish and stern philosophy of Ayn Rand.We must, as a society, reject such an approach. We need to focus on unlocking the potential of all our citizens. We need to focus on the contributions made by each of our neighbors. Only by helping those most in need can we create a just society.

Katie's Chronicles: Interview with Jack

The following post is the fist of a series of reflections and interview responses given by successful young adults with varying disabilities who have direct experience with the Connecticut Special Education system.  Our interviewer and writer is Katie Feinstein, daughter of Attorney Feinstein, who is also a successful young adult living with disabilities.  Katie chronicles individuals respective journeys within the system and beyond, into their adult lives.  The Feinstein Education Law Group represented some of these young adults when they were students.  Katie asks individuals to discuss their struggles, triumphs and perspectives as they consider their pasts and move forward into futures of hope and evolving independence.  Her first interview is with Jack, a 22 year old young man.  Thank you Katie and Jack for your contribution to our community!
 ---------I am a 22-year-old man with Autism who works full time, manages my own finances, drives, is active in my local community, and has a growing social network. My journey to get here, though, has been long and hard. I have had experiences that are very different from many of my peers.My challenges first began to become evident when I was two years old and the adults in my world were concerned that I was not speaking. By age two and a half, I was receiving Birth to Three services including OT, PT, and speech therapy. By age four,  I was in psychotherapy. By age six, I was on medication. By ten, I had my first psychiatric hospitalization. By thirteen, I had spent nearly a year in a psychiatric hospital and was on my way to residential treatment where I stayed for the next three years. You get the picture! Experts had told my mother that I would never be able to take care of myself and would need lifelong therapeutic supports. For years I was obnoxious, hated myself, was often out of control, suicidal, unpredictable and many times, I was very difficult to love and tolerate. The world seemed strange and confusing, and most of the time I did not feel like I was like other people. I had no friends and did not know how to be a good friend. Most people saw me as annoying, a punk, and a bad kid. I became a bully as a way of getting my anger out.I probably have had every therapeutic service and intervention available other than brain surgery and exorcism.It is getting easier to publicly acknowledge and understand my diagnosis of Autism. The more I learn about the spectrum, the more I believe that it accurately describes me. But for years I carried a number of other diagnoses including ADHD, Depression, Anxiety, Mood Disorder, Oppositional Defiant Disorder, and the one I laugh at the most – being the Product of a Single Mother who had bad parenting skills. Unfortunately it was not until I was twelve that I was given the Autism diagnosis and the correct treatment was begun.I have worked very hard to get to where I am today. Yet I continue to struggle every day. And I believe I have a long way to go! There is not a day that goes by that I do not fear that everything will crash down around me and that I will fail. I am terrified that my mom, who is my primary support system, will die before I am totally independent. I worry that my depression will return. I fear that if I am honest and tell people that I have a developmental disability that they will judge me and limit my options. I am still struggling to put my past behind me with every peer who I meet who knew me when I was in elementary school.To young people who are struggling like I was, I would tell them to never give up and always believe that things can get better. I would encourage them to find something that they are interested in and then pursue that interest.  For me it was boy scouts. I started as a tiger scout and worked my way through to Eagle Scout. When I was seven, I attended my first Eagle Scout ceremony, and when it was over I remember telling my Mother, as we were walking out,  that I wanted to be an Eagle Scout. Achieving this accomplishment was very difficult and took many folks, but it can be reached.Now, how is it possible for me to make the transition from disaster and dysfunction to stability and hopefulness? GOOD QUESTION. What I am realizing is that it is a process and I am proceeding on my own timeframe. I achieve goals and milestones at my own pace. But there are some lessons learned from my experience that I would like to share with you.The most important thing to remember is that it is not one intervention, technique or program that determines success. It takes a team of folks and a variety of interventions.Family is important but love is not enough. Young people like me need to have people around them who can set good boundaries, insist upon independence, and continue to raise the bar of expectation. Do not allow us to sit at home and let you take care of us. We might fight and use guilt strategies on you on this but please continue to push and insist upon separation and self-direction.Motivation is essential, so you need to find out what motivates a young person. Do not make assumptions that you know what is important to a young person. Take the time to listen to them and constantly identify what they want and why. And always be prepared that those goals, dreams and interests will change.Young people with Autism Spectrum Disorders need to be exposed to as many normalizing activities as possible. Often our behaviors make such participation in such activities difficult. And we often will fight you and resist. Ask my mom and she will tell you about the endless times she had to carry me kicking and screaming out of stores, restaurants, concert halls, and theaters. Do not stop exposing us to things. Encourage, teach, support and even insist upon us engaging in positive social leisure activities. The more opportunities we can have for typical normalizing activities the better. Do not let us sit at home. That is the absolute worst thing that you can do for us!Encourage endless community connections. We need to be part of larger social groups like church families, extended families, community groups and clubs, sporting teams, scouting groups, and civic organizations. Do not believe for a minute that we do not want to have friends or social connections. We do desire friendships and want to be part of social groups.We just do not know how to connect and have had many bad experiences in which we have been rejected and humiliated. So we are reluctant to try again.Teach us self-advocacy skills. We have to learn how to appropriately speak up for ourselves and not be taken advantage of. We do not know how to be assertive and not passive or aggressive.Finally, those of you who love and work with young people like me know that you should never give up hope that we will be successful. It might mean that you need to redefine what successful means. But never stop believing in us and never stop working on us having a voice in our own future and decision-making.

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