Federal Update: IDEA, Title III, R&S, Bullying Sasha Pudelski February 18, 2012 National Conference on Education

Overview of Presentation ESEA Reauthorization Issues IDEA Reauthorization Issues Foster CareMaintenance of Effort AssessmentsTransition Title IIIRTI BullyingMurphy & Weast Seclusion & RestraintThompson

Foster Care Language in Senate ESEA Schools pay for transportation to/from school for all children in foster care – Distance or placement location is not a factor. You could be transporting them out of state Foster Care students have a right to immediate enrollment – Even adjudicated delinquents Requirement to have a foster care liaison – No money for a liaison Disaggregation requirement for student achievement – In addition to the normal categories (race, income, disability, etc.) you must also track student achievement by foster care status

Assessments Senate – Eliminates 2% assessment option – Maintains cap for 1% test House – Expands 1% assessment eligibility – Silent on 2% assessment

Title III: English Language Learners Senate bill – Uniform definition of ELL House bill – Collapses funding for Title III into Title I Neither bill – Creates “Total English Language” subgroup – Allows school districts to determine when accountability testing should be given to ELL students – Increases exemption from testing for ELL students

Bullying Original Senate bullying legislation would: – Require schools to report all bullying and cyber-bullying incidents – Require that bullying data be disaggregated – Very broad definition of bullying and cyber-bullying – District must have person who handles bullying complaints – Designates timeline for investigating and resolving bullying complaints Negotiated Senate version: – Creates federal bullying definition, almost identical to sexual harassment definition – This definition must prohibit bullying on basis of sexual orientation No bullying language as part of House ESEA bill 47 states have their own bullying laws, definitions and requirements. Feds need to butt out!

Litigation related to Student Online Speech In January, SCOTUS declined to hear cases involving student online speech “At the moment, school officials are stuck between a rock and a hard place. They are responsible for protecting students and teachers from online harassment, but in doing so, they might trigger a lawsuit from a student claiming that his or her First Amendment rights have been violated. School officials cannot afford to wait any longer for a definitive answer.“ (AASA Amicus Brief, U.S. Supreme Court)

Seclusion and Restraint Prohibited for special-ed and gen-ed students Prohibited from being including in IEP Mandates huge data reporting and collection Only can be used if child is at risk of causing “serious bodily injury” FAPE denied if used inappropriately Not yet in either Senate or House ESEA bill, but advocates want to add it to both

Maintenance of Effort (IDEA) IDEA requires 100% MOE States can seek a waiver to reduce state effort for IDEA because of “exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in State financial resources” LEA does not have this option AASA pushing for language to give LEAs same waiver option

Transition New bill focusing on improving transition for SWD will be introduced this summer by Sen. Harkin This bill will not amend IDEA AASA supports bill language that would – Allow VR dollars geared towards on-the-job-training to be used while students are in school in conjunction with transition IEP – Create and fund state level positions that coordinate special-education, VR and CTE options and services – Set-aside 10% of VR funding for transition services – Change VR Priority list to put year olds at the top

Response-to-Intervention (RTI) Special-ed is defined as providing “specifically designed instruction” Child-find obligation conflicts with RTI process Both “special-ed” and “child find” need new definitions, otherwise schools risk litigation With IDEA re-authorization unlikely in next few years, protect your district by – Notifying parents immediately about RTI process – Notifying parents about legal rights under IDEA

IDEA Re-Authorization issues resulting from SCOTUS decisions Bill to overturn Arlington Central School District v. Murphy – IDEA Fairness Restoration Act – This bill would override Murphy and enable parents to recover their expert witness fees Bill to overturn Schaffer v. Weast – Weast placed burden of proof on parents – No bill introduced yet, expected soon

Other Cases of Note Thompson v. Board of the Special School District (U.S. Ct. Appeals - 8th Circuit) – Does the parent lose the right to sue the district if the student is no longer enrolled in the district? – 8 th circuit says yes – Federal district courts in Michigan, California and Pennsylvania say no – This issue will be heavily debated in IDEA Re- Authorization

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