Keeping Guns Away from Children

Twice this past week, students in New York City public schools have brought loaded guns to school. The New York Times notes that these two incidents - one involving a 15-year-old student at an "early college" high school with a strong academic reputation, and one involving an 11-year-old elementary school student -- were two of four times this year where guns were seized in New York City schools. Last year, The Times reported, there were nine such episodes. These latest incidents resulted in the arrest of the 15-year-old and the arrest of the gun-owner grandfather of the 11-year-old.

As far back as 2011, we blogged about efforts by pediatricians to address gun safety by asking parents whether there is a gun in their home as a first step to beginning a conversation about ways to keep that gun away from children. We followed up in later blogs to discuss efforts to block even this basic step towards gun safety and can now report that the Florida ban on asking about guns in the home was upheld by the 11th Circuit Court of Appeals. A look at this decision in The Miami Herald lays out the history of this law.

Let's pause for a moment to make it clear that we are not taking a stand on gun ownership. The issue of keeping guns out of our schools and out of the hands of kids is something else entirely.

Notably, neither of the schools in this week's events had metal detectors, which are common in many New York City public high schools and elsewhere. A report last September by WNYC noted that approximately 90,000 New York City public school students go through a scanning process each day. But there are real issues with metal detectors.  The likelihood of having to go through a scanner varies by borough, as well as by the racial and ethnic make-up of the student body. As the WNYC report noted, "getting scanned before school every day can mean earlier wake ups, long waits and lots of hassle." Having experienced scanning while visiting schools, your blogger can report that it is much like going through airport security every day. And while metal detectors and scanners may keep guns outside school buildings, they don't keep guns out of kids' hands elsewhere.

So, what can parents do to help make their children safer, in school and out? Our colleagues at The American Academy of Pediatrics have some common sense information and talking points about guns and kids that addresses families that have guns -- and those that don't. It includes statistics on how having a gun in the home affects family safety and questions to ask other parents before your child visits their home. It's worth reading.

photo credit: Ken via flickr cc

Changes to LSAT Accommodations

Back in May 2014, we wrote about a Consent Decree from the United States District Court for the Northern District of California, which changed the rules for individuals with disabilities seeking accommodations to take the Law School Admission Test (LSAT). The Consent Decree provided for the  Law School Admission Council (LSAC) to pay $7.73 million in penalties and damages to compensate over 6,000 individuals nationwide who applied for testing accommodations on the LSAT over the preceding five years. The decree also required comprehensive reforms to LSAC’s policies and ended its practice of “flagging” LSAT score reports for test takers with disabilities who receive extended time as an accommodation. The Consent Decree provided that a panel of experts selected by the parties to the lawsuit which resulted in the Consent Decree would determine how to change procedures for accommodations under the LSAT to comply with state and federal law.

The Consent Decree gave the parties the right to appeal to the District Court if the decisions of the panel of experts "are believed to violate the ADA or its implementing regulations, or California law where applicable, or to conflict with the provisions of [the Consent] Decree."

The LSAC did appeal to the Court, which upheld a few of its objections but, in a 44 page decision, rejected most of them and upheld almost all the changes to LSAC's testing accommodation procedures recommended in the experts' report.

Of crucial importance to anyone seeking accommodations to take the LSAT, the Justice Department notes that  LSAC will implement the upheld recommendations starting immediately for testing accommodation requests related to the December 2015 LSAT administration and later administrations. Anyone even considering taking the LSAT and applying for accommodations needs to read the full decision and the other documents linked above regarding this important change in policy.

Thanks to our colleague Jonathan Corchnoy, Esq. for bringing this decision to our attention.

photo credit: Tracie Hall via Flickr

Compensatory Education

The Individuals with Disabilities Education Act (IDEA) specifically sets forth remedies for certain violations of student rights. For example, an IEE, an Independent Educational Evaluation, must be provided at public expense where a district fails to conduct a timely or complete evaluation of a student, or even when a parent simply disagrees with the findings of a school evaluation. Likewise, the IDEA includes the right to reimbursement of private school tuition for parentally placed students where the district has not provided a Free Appropriate Public Education (FAPE) and certain other conditions are met. However, there is no specific statutory remedy designed to aid students who have graduated high school or aged out of IDEA eligibility (generally at age 21) without receiving the educational services to which they were entitled by law.

For these students, the courts have utilized the equitable remedy (meaning that it was created by judges to right a wrong) of compensatory education. Compensatory education for younger students, who are still subject to the IDEA, comes into play when a school district has seriously deprived a student of the educational services he or she should have received. For example, a student with a learning disability whose district consistently refused to evaluate him could be awarded compensatory educational services by a hearing officer or court -- services such as summer tutoring, additional supports during the school year, or placement in a specialized school -- which are designed to "make up" for the school's failure to properly identify the student as one who needed IDEA services. 

But what about students who have already graduated from high school or aged out of eligibility for IDEA services?  As the U.S. Court of Appeals for the First Circuit has noted, “In order to give meaning to a disabled student’s right to an education between the ages of three and twenty-one, compensatory education must be available beyond a student’s twenty-first birthday. Otherwise, school districts simply could stop providing required services to older teenagers, relying on the Act's time-consuming review process to protect them from further obligations.”1

Federal Courts have found that the age of the student seeking "post graduation" compensatory services does not make a student ineligible for such services. As a federal court in Indiana noted, the fact that the student was “now 24 years old does not moot his case. The Court may award adult compensatory education if it is necessary and appropriate to cure a past violation of the IDEA.”2

The courts that first crafted this use of compensatory education built on the reasoning in cases that provided for tuition reimbursement under the predecessor statute to the IDEA, noting that, like retroactive tuition reimbursement, compensatory education required school districts to “belatedly pay expenses that [they] should have paid all along.”3

For students no longer covered by the IDEA - because they have graduated or have aged out of eligibility - compensatory education can take the form of post-secondary education, requiring payment for a student who had already graduated high school to attend a reading program at a college for students with learning disabilities. It has also been used to  require a school district to provide annual reevaluations and annual IEPs for a student over the age of 21. However, it is generally available only where there has been a gross deprivation of a student's rights. It is not an easy remedy to obtain and cannot really compensate for having an appropriate education during the years prior to graduation.


Photo credit: Janet Lindenmuth/Creative Commons

[1] Phil v. Mass. Dep’t of Educ., 9 F.3d 184 (1st Cir. 1993)

[2] Brett v. Goshen Community Sch. Corp., 161 F. Supp. 2d 930 (N.D. Ind. 2001)

[3] 800 F.2d 749, 754 (8th Cir. 1986).

Court Bars Limits on Physician Gun Counseling

Unless you spent your summer in an isolated locale with no news broadcasts, newspapers, or internet (is there such a place anymore?) you know that this has been a summer punctuated by devastating, deadly gun violence. So we were particularly pleased to see an article in the August issue of AAP News noting that U.S. District Court Judge Marcia G. Cooke has ruled that a 2011 Florida law which restricted pediatricians from asking about whether there are firearms in a home is unconstitutional. Judge Cooke has issued a permanent injunction which blocks enforcement of this law.

We had previously written about our concerns with this legislation, noting that it was intended to counter an initiative on the part of the American Academy of Pediatrics (AAP) and others to make sure that families were aware of the need to keep guns away from children and to counsel patients and families on the need to store guns safely. As we noted in our prior blog on this topic, this was not an effort to limit gun ownership, only to improve safety.

The judge's ruling followed a lawsuit brought by the Florida branches of the AAP, the American Academy of Family Physicians, and the American College of Physicians, as well as several individual physicians. The plaintiffs argued that the law limited their right to free speech under the First Amendment because it did not allow them to exchange information about gun safety with their patients. The judge agreed and also noted that the law prevented patients from hearing preventive health information from their doctors.

There are several other states in which similar legislation to the Florida law has been proposed, but not yet enacted. We hope that the ruling in Florida gives those in other states pause before they push ahead with limiting the rights of physicians to try to keep their patients safe.

Photo: flguardian2 / Creative Commons

Justice Department Ruling Has Major Implications for Test Accommodations

We love it when the law works. So, we were pleased to hear about what happened last week in the lawsuit brought by Dee Jones, a law student at Vermont Law School, who had filed a federal lawsuit against the National Conference of Bar Examiners.

Ms. Jones, who managed to be admitted to law school -- and to do well -- despite blindness and a learning difficulty, needed to take and pass the Multistate Professional Responsibility Examination (MPRE) to be licensed as an attorney. The test is developed under the auspices of the National Conference of Bar Examiners. However, Ms. Jones was denied the use of the test modifications and accommodations she requested, and which she had used successfully in college and law school -- a combination of Kurzweil 3000 and ZoomText software. Using these two technologies together provides simultaneous large font and audio versions of the test materials. Instead, the defendant organizations offered Jones accommodations from a menu they developed, which included a reader, or an audio recording of the test, or a Braille version of the exam.

Jones, aided by the National Federation of the Blind, sued and claimed that being limited to the accommodations that the testing organizations selected was a violation of the Americans with Disabilities Act (ADA). As her attorney, Daniel Goldstein, noted in an article in Vermont Today, "...it's like if you were a vegetarian and someone said, 'Okay, we won't give you the roast beef. Would you like the pork or the chicken?"

Adding to the problem was the looming date of the next exam, scheduled for August 11, 2011.

On July 21st, the U.S. Justice Department filed a Statement of Interest with the court, noting, "the United States does not interpret ... the ADA to simply require reasonable accommodations to Ms. Jones, but rather to require appropriate modifications or auxiliary aids to 'best ensure' that the exam measures Ms. Jones’ knowledge of professional responsibility issues and not her visual disabilities.

Based upon the Justice Department filing, and as noted in a press release from the U.S. Attorney in Vermont, the District Court granted Ms. Jones’ motion for a preliminary injunction and agreed with the Justice Department analysis of the controlling “best ensure” standard. As a result of the ruling by the District Court, the National Conference of Bar Examiners was ordered to allow Ms. Jones to take the MPRE on August 5, 2011 using the screen reading software that Ms. Jones used throughout law school as her primary reading method. We hope she did well.

As the long term impact of this preliminary injunction becomes more clear, we will look, in a future blog, at what this means for students who require accommodations.


Photo used under Creative Commons by Wikipedia Saves Public Art.

The "Child Find" Obligation

Even parents who are fairly well versed in workings of the Individuals with Disabilities Education Act (IDEA) are often not familiar with an important provision of that law called the "child find" obligation. This provision of the IDEA places the obligation for locating and evaluating children who may be in need of special education services on local public school districts. In practice, this means that schools that fail to evaluate children who are suspected to be in need of special education and related services (such as speech and language support, or occupational or physicial therapy) are in violation of federal law.

We were reminded of this issue by a recent email from Disability Scoop which notes that the United States Supreme Court has asked the Solicitor General to provide input on whether the IDEA provides a remedy for failure to evaluate a child who is suspected of having a learning disability. In the case at hand, a California high school student with clear signs of disability was promoted, rather than evaluated. [As in many of these cases, there was also some parental confusion or complication about the evaluation -- as described by the appeals court which became involved in the case, the mom was reluctant to have her daughter "looked at" and the school decided "not to push"]. When the evaluation was finally conducted, the child was found to have a disability and to be entitled to special education services. The school district appealed from a  United States Circuit Court of Appeals decision that provided for compensatory education -- which can take the form of extended years of schooling (beyond the usual legal obligation), summer school, extra support, or placement in a private school able to meet a student's needs (at the expense of the school district). 

Now, as this matter is being appealed to the U.S. Supreme Court, the high court is looking at what kind of remedies are intended to be available to students under the "child find" provision of the IDEA. We will continue to watch this case and get the final word on what remedies are available when schools violate their obligations under the law.

What's In a Name?

There are a number of names tossed around in the world of education, especially when it comes to getting educational services for children from public schools. These generally come from court cases, where the name of a party becomes a shorthand way of referring to the rights that a particular court decision created.

For example, parents who are seeking to place their children in private schools because their child's public school cannot offer him or her an appropriate education, can seek to have their tuition payments reimbursed from their public school. This is referred to as "Carter funding", from a United States Supreme Court case, Carter vs. Florence County School District. In that 1991 case the Supreme Court determined that Shannon Carter's parents were entitled to reimbursement of tuition and expenses for placing her in a school that had an appropriate program to help with Shannon's learning disability, when the local public school had failed to provide an appropriate program. Although this right to reimbursement has since been included in the Individuals with Disabilities Education Act (IDEA), the process for seeking such reimbursement is still referred to as a Carter case or Carter funding.

In addition, at least in New York and in limited circumstances, where parents are unable to lay out the cost of private school tuition and await reimbursement, they may be entitled to have the private school receive direct payment from the public school system. This right is discussed in the case Connors v. Mills, where the Federal District Court noted that to decide otherwise would mean that "... a destitute child would be left in an inappropriate program because the parents would not be able to front the tuition of private placement." Connors funding is more limited than Carter funding, but parents should still be familiar with the term.

Another court case that is referred to as a shortcut name in the education field is Gebser. Parents may hear the term "Gebser letter". What is this? The 1998 United States Supreme Court case Gebser vs. Lago Vista Independent School District dealt with harassment claims. The Supreme Court noted that a school district could not be responsibile for its response to bullying or harassment claims unless it had notice that this kind of activity was taking place. As a result of this decision, parents whose children have been subject to such forms of discrimination have been advised to send their school a Gebser Letter, putting the school on notice about the problem.

Finally, in New York City, families may be given a Nickerson Letter (see page 30 of the linked document). This remedy grew out of a decision by Federal Judge Eugene Nickerson in the late 1970s. This document is given to families whose child has been approved for a special education setting but who has not been given a timely placement in such setting. In theory, it allows parents to enroll their child in any approved non-public school and have the tuition payed directly by New York City's Department of Education. In practice, however, it often achieves nothing, since the schools are usually full and are not required to take a student if they do not have room.

The name game in education can be confusing, and we hope this gives you a better sense of what some of these names mean.