You Be the Judge: Dueling Attorneys, the Facts, and the Law
Andrew Faust (Pennsylvania school attorney)
Jennifer Laviano (Connecticut parent attorney)
Ian Spechler (Texas hearing officer), presenters
It’s your turn to sort out and do justice as two powerful special education litigators and an experienced administrative law judge grapple with issues that we all see every day. You will hear their take, and then give your own.
Fact pattern will be posted prior to the symposium.
Navigating Compensatory Services and Compensatory Education in the Wake of the Pandemic
Mandy Favaloro (California parent attorney), presenter
Jason Ballum (Virginia school attorney), reactor
At the outset of the COVID-19 pandemic, the federal government and various states issued guidance for IEP teams to determine “compensatory services” for students with IEPs and 504 plans upon resumption of full in-person instruction. As students returned to school, hearing officers, complaint investigators, and courts began to address the enforcement of this guidance and its relationship to the denial-of-FAPE remedy of compensatory education. The issues include: Is the guidance enforceable in each of these IDEA forums? What are the specific standards for the determination of compensatory services? If a district provides these compensatory services, does it preclude the parents from obtaining the remedy of compensatory education for denial of FAPE? Does every student require compensatory education following a school closure? This session will canvass the legal activity to date and explore the future implications.
Know Your End Game: Strategic X’s and O’s for Special Education Settlements
Amy Brooks (Pennsylvania school attorney), presenter
Heidi Goldsmith (Pennsylvania parent attorney), reactor
This session will be chock full of nuanced legal yet highly practical information regarding the settlement process primarily under the IDEA, but secondarily extending to Section 504 and the ADA. The systematic analysis will cover all levels of the adjudicative process: pre-complaint, administrative prehearing and hearing stages, and during federal court appeals. Learn what you need to know from district- and parent-side attorneys to be well prepared in whether, when, and how to settle special education disputes. What are the major factors to consider on each side and at each level? When and how does insurance coverage factor into settlement? What are the advantages and disadvantages of the various third-party alternative dispute resolution mechanisms? What are common mistakes in the drafting of settlement agreements that lead to unsatisfactory results? What do the IDEA and the related case law say about enforcement and confidentiality of settlement agreements? What are useful provisions to include in settlement agreements for (1) protecting the rights of the child and the prerogatives of the school entity, and (2) increasing the likelihood that the parties will move forward positively in their post-settlement relationship?
Dyslexia Legislation and Litigation: A Practical Overview of the Wide Range of Current State Laws and Cumulative Judicial Rulings
Catherine Michael (Indiana, Texas, and Michigan parent attorney), presenter
Dr. Anne McGinnis (New York school attorney), reactor
Beyond a school district’s obligations under Section 504 and the IDEA, many states have adopted dyslexia laws and encountered dyslexia litigation. These laws and rulings focus on identification and interventions. The intersections with the IDEA and Section 504 include issues of eligibility and FAPE, including methodology. This session provides an overview of dyslexia related state legislation, the outcomes of the growing body of litigation, and an in-depth discussion of emerging trends. Two experienced special education attorneys, one with a parent-based practice and one with a school-based practice will discuss critical questions. What are the lessons for the application of these laws in cases with students with dyslexia? What conclusions can be drawn from the reported cases in respect to eligibility, private placement, educational modality and FAPE? What are the implications of the cross-section of laws and recent decisions? To what extent have state laws played a role in court decisions? Finally, what are the likely outcomes we will see in the future?
Liability for Abuse of Students with Disabilities: Money Damages as a Remedy in Federal Litigation
Rachel Hitch (North Carolina school attorney), presenter
Gail Stewart (New Mexico parent attorney), reactor
This session will analyze federal court rulings in which parents of students with disabilities have sought compensatory damages for alleged school employee physical abuse of their children. What are the types of claims being asserted, and what are the common legal bases in physical abuse cases? What are the trends in money damage awards? While allegations of verbal abuse only are not the focus of this session, this issue may arise in an exploration of how courts define “abuse.” The presenter will provide an overview of Section 1983 as well as common state tort claims. Finally, the presenter will address unique factors, such as (1) evidentiary issues when the victims are disabled children, and (2) defenses that have proved successful in defeating or reducing awards, such as the invoking of corporal punishment or restraint policies.
Stay Put Right Where You Are!: The Many Permutations of Pendency under IDEA
Eileen Hagerty (Massachusetts parent attorney), presenter
Kendra Yoch (Illinois school attorney), reactor
When parents file for a due process hearing, IDEA affords students with disabilities the right to the status quo placement pending appeal, or “stay-put.” The boundaries of this basic procedural principle have grown and changed as courts, administrative hearing officers, and litigants have grappled with its applicability to a multitude of situations. This session will examine the latest developments in stay-put, with an emphasis on emerging issues as seen in recent illustrative court decisions. Two leading attorneys from opposite sides of the table will discuss central questions. When does stay-put attach and when does it end? What is the “then-current educational placement” and what constitutes a change in that placement? What happens if the placement is no longer available? How does stay-put apply in disciplinary proceedings? What new wrinkles has COVID-19 presented? And finally, what are the lessons for litigants and administrative hearing officers as they attempt to assert, defend, or adjudicate stay-put claims?
Systematically Comparing Section 504 and the ADA with the IDEA: What Are the Significant and Also Subtle Differences?
Dr. Perry Zirkel (Lehigh University professor emeritus of education and law), presenter
Parris Taylor, (Louisiana Department of Education attorney), reactor
In the context of K–12 students, this session will provide a systematic, comprehensive, and up-to-date comparison among Section 504, the ADA, and the IDEA in terms of the respectively applicable legislation, regulations, and case law. The comparison addresses successive student-specific issues, such as eligibility, services, procedural safeguards, discipline, enforcement, and litigation. Section 504 questions that are often the subject of confusion and that will be addressed directly in the context of this comparison include, for example, the following: (1) Does Section 504 and/or the ADA require school districts to provide evaluation or other services for students enrolled in private, including parochial, schools? (2) Does child find apply to 504-only students? (3) Does the ADA provide more stringent district requirements than does the IDEA for (a) hearing impaired students and/or (b) service animals? 4) Does Section 504/ADA provide more stringent plaintiff-parent requirements for FAPE cases? (5) Which requirements for expulsion of 504-only students differ from the IDEA requirements for expelling students on IEPs? (6) What are the differences between Section 504/ADA and the IDEA with regard to (a) liability for money damages, (b) statute of limitations, (c) expert witness fees, and right to a jury trial?
Recent Intersections of 504/ADA with the IDEA in Court and at OCR: The Legal Dance Waltzes On
Jose Martin (Texas school attorney), presenter
Steven Aleman (Texas disability rights attorney), reactor
Section 504 and the ADA apply in tandem with IDEA in various ways in federal courts, as well as in Office for Civil Rights (OCR) complaints. This session will explore some recent applications of Section 504/ADA at these intersections, including claims concerning non-integration, retaliation, physical abuse, disability-based peer harassment, COVID-19, behavior management, and extracurricular athletic activities. The specific legal questions in these contexts include the following examples: What are the answers in recent years from the courts and from OCR, including differences between them, as to (a) whether Section 504 and ADA effectively add rights to students already eligible under IDEA? (b) what legal analysis is appropriate for disability discrimination claims? and (c) to what degree is the analysis dependent on the type of claim? Finally, what should school districts do to effectively minimize adverse answers for these 504/ADA questions?