In 2017, the Supreme Court issued an opinion, Fry v. Napoleon, stating that unless parents/guardians seek relief that is also available under the IDEA, they need not exhaust IDEA procedures by filing a complaint for a due process hearing before filing a lawsuit under Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act. The Supreme Court sent the case back to the Michigan federal trial court so that it could collect more facts and apply the “Fry tests” that the Supreme Court set forth in the case. Earlier this month, the trial court ruled in favor of the Frys, finding that the parents’ claims were not subject to the IDEA’s exhaustion requirement because the parents were not claiming a denial of a free, appropriate public education (or “FAPE). The decision makes clear how important it is for school districts to identify requests for accommodation that are related to access and equity (and not the denial of a FAPE) from early on in the process and to handle them as required by Section 504 and the ADA. It also highlights the importance of ensuring that documentation regarding requests for accommodation thorough and clear. For more on the next chapter in this important Supreme Court case, keep reading! Continue Reading Recent Lower Court Decision in Fry v. Napoleon Sheds Light on New Exhaustion Standard

Most of the cases the Department of Education’s Office for Civil Rights (OCR) handles involve disability discrimination, including claims that a school failed to implement an IEP or Section 504 plan. In our experience, however, OCR is often an afterthought for school employees who work in the field, and when OCR comes knocking school leaders often feel unprepared. Read on for five tips to help you feel more confident the next time you receive notice of an OCR complaint. Continue Reading Back to Basics: OCR is at the Door – Five Steps to Mount Your Best Defense

In the realm of special education, the use of specialized jargon and unique terminology it the norm. Whether it’s terms that seem basic to us now, like “IEP” and “LRE,” or more of-the-minute phrases like “significant disproportionality,” those of us who work in special education law are expected to be fluent in a veritable alphabet soup of terms and phrases. Two of the most confusing phrases that we come across are “accommodation” and “modification,” so much so that a quick review of court, hearing officer, and Office for Civil Rights (“OCR”) decisions shows these terms being used interchangeably, contradictorily, and downright confusingly from day to day. What are the differences between these words, and do those differences matter? Keep reading to find out!

Continue Reading Accommodation or Modification: What’s the Difference, and Does It Matter?

If you’ve ever been confused by the use of the terms “accommodations” and “modifications” in the realm of disability student rights, you’re not alone. Our friends over at LRP Publications, the makers of the Special Ed Connection website, asked our own Jackie Wernz to host an upcoming webinar on the topic because of the prevalence of confusion over the terms and how they come into play under both the IDEA and Section 504. The webinar, “Is This an Accommodation or a Modification? Understanding the Difference to Ensure Compliance,” will be held this Thursday, March 14, 2019, at 1:00 p.m. Central. More information can be found on the LRP website.

Maybe you’ve heard the proverb “A stitch in time saves nine,” but have you ever wondered what it means? According to Wiktionary, this old proverb comes from the idea of mending a small tear in clothes before it becomes a larger one. In other words, putting in a little effort when an issue first arises can prevent it from becoming a larger one later. We couldn’t help but think of this proverb recently when our own Dana Fattore Crumley and others on the Attorney Panel at the IAASE Winter Conference were asked whether a non-administrator can act as an LEA representative during an IEP meeting. Many ideas were shared, and one that deserves further discussion is the impact if that LEA rep does not have sufficient authority in situations where more than typical resources are at stake. What are the cautionary concerns you should consider in this situation? Read on for the answers. Continue Reading A Stitch in Time: Who Is Your LEA Rep at IEP Meetings, and Why Does it Matter?

A District of Columbia trial court issued a ruling today requiring the U.S. Department of Education (ED) to implement a 2016 Obama-era regulation addressing “significant disproportionality” based on race and national origin in special education. What does this mean for schools? The regulation may bring changes to the data that school districts must report to state boards of education for purposes of the significant disproportionality analysis. There will also be changes to the remedial actions schools must take if a significant disproportionality is found. More on this interesting and important decision is after the jump. Continue Reading Court: ED Can No Longer Delay Obama-Era Significant Disproportionality Rule

Where do you draw the line between pre-IEP-meeting preparation, which the law allows, and “predetermination” prior to the meeting, which can get schools into hot water? This was one topic discussed during our recent Franczek webinar, IEP Season is Coming . . . Are You Ready?, which included a “top 10” list of issues to keep in mind heading into the IEP season. We encourage you to watch the 30-minute webinar, which is available on demand on our website, but want to dig in on one issue raised in it: A major mistake that can turn permissive pre-IEP-meeting planning into prohibited predetermination. What is it? How do you avoid the risk? Read on! Continue Reading This One Mistake Can Turn Pre-IEP-Meeting Planning into Prohibited Predetermination

A caravan of Franczek’s special education attorneys is en route to Springfield to participate in the IAASE Twentieth Annual Winter Conference, and we couldn’t be more excited. As the new website for the Illinois Alliance of Administrators of Special Education explains, IAASE is the largest statewide organization of special education administrators in the country and one of the largest Council of Administrators for Special Education (CASE) Units in the US. We love any opportunity to engage in conversations about hot special education topics with IAASE’s nearly 1200 members!

We would love the chance to meet you and hear about the legal challenges you are facing in your schools, districts, and cooperatives. Come find us at the following sessions:

  • Mental Health Support for Students: The Legal Framework presented by Mary Deweese and Jennifer Smith today (February 21) at 10:15 a.m. (Plaza I, 1st Floor).
  • Twice Bitten, Once Shy: Accommodating High Achieving Students Under IDEA and Section 504 presented by Dana Fattore Crumley and Nicki Bazer today (February 21) at 10:15 a.m. (Plaza H, 1st Floor).
  • Too Much Technology? Addressing Legal Concerns Relating to the Use of Technology with Students presented by Jennifer Smith (subbing for Jackie Wernz, who is home with a broken leg) Kendra Yoch today (February 21) at 11:30 a.m. (Plaza CD, 1st Floor).
  • Attorney Panel – Legislative Hot Topics with Dana Fattore Crumley (subbing for Jackie Wernz) tomorrow (February 22) at 10:15 a.m. (Ruby, Emerald, Diamond Ballroom, 2nd Floor).

We hope everyone enjoys the conference, and look forward to seeing many of you over the next two days.

 

Schools often struggle when asked to evaluate or accommodate a high-achieving student who may also have a disability. In some cases, the student is what is known as “twice exceptional” or “2e,” which is a student with a disability who also exhibits high academic aptitude. In other rare cases, the student or their parents may be among those who reportedly seek accommodations not to address a disability, but to get ahead in the rat race of honors and AP classes, college entrance exams, competitive college admissions, and other challenges that face today’s high school students. How do you tell the difference between 2e students and students whose parents are exhibiting what we will call “accommodation-seeking behaviors”? What kinds of accommodations are required for students with disabilities who are nonetheless high achieving? For those of you who will be attending IAASE in Springfield this week, you can join Dana Fattore Crumley and Nicki Bazer for their session, Twice Bitten, Once Shy: Accommodating High Achieving Students Under IDEA and Section 504, on Thursday, February 21 at 10:15 a.m. For a sneak-peak on this interesting topic, keep reading! Continue Reading Twice Exceptional Students, Accommodation-Seeking Behaviors, and How to Tell the Difference

We’ve all heard it before—schools only must provide a “serviceable Chevrolet,” not a Cadillac, to afford a student a free appropriate public education (FAPE). The analogy is often associated with the seminal U.S. Supreme Court case known as Rowley, which said that the Individuals with Disabilities Education Act (IDEA) requires only a “basic floor of opportunity,” not that schools “maximize” a child’s educational potential. The “Chevy vs. Cadillac” analogy was coined and used by lower courts after Rowley, and suggests that schools need only provide a bare minimum of services to afford a student FAPE. However, the Supreme Court in Endrew F. recently rejected such a “minimalist” interpretation of the IDEA. Since then, we have wondered about the continued applicability of the Chevy vs. Cadillac analogy—does it still have a place in special education law after Endrew F? We think not, and in this blog post we offer a better analogy for school leaders looking for a key to providing students FAPE. If you’d like to learn more, keep reading. Continue Reading Back to Basics: Rowley, Endrew F, and the Chevy vs. Cadillac Analogy