Navigating Special Education Advocacy: The Legally Blind Justice Podcast: Episode 38

Keywords: special education, disability rights, IDEA, Section 504, advocacy, school discipline, legal protections, manifestation determination reviews, educational law, parent rights

Summary

This conversation delves into the complexities of special education advocacy, focusing on the legal frameworks that protect students with disabilities, the differences between IDEA and Section 504, and the importance of proper disciplinary procedures. The discussion highlights the challenges faced by students with disabilities in school settings, the role of parents in advocating for their rights, and the impact of significant court cases on educational policies. Additionally, the conversation addresses the future of special education protections amidst potential changes in federal oversight.

Takeaways

• Students with disabilities face disproportionately high rates of discipline.
• IDEA ensures a free and appropriate public education for students with disabilities.
• Section 504 provides protections against discrimination for all students with disabilities.
• Legal action should be a last resort; creative solutions are preferred.
• MDRs are required for disciplinary actions exceeding 10 days.
• Parents must be involved in the MDR process and ask critical questions.
• Schools must follow procedural safeguards before disciplining students with disabilities.
• Goss vs. Lopez established due process rights for all students.
• Honig vs. Doe reinforced the need for proper evaluations before disciplinary actions.
• The future of special education protections may be uncertain with potential changes to the Department of Education.

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Transcript: The transcript is autogenerated and may contain transcription errors.

Tim Markley (00:21)

Welcome to the Legally Blind Justice podcast. I'm your host, Tim Marfleet. And in this episode, we're going to discuss special education discipline and due process issues. with Taylor Ruiz, who heads up the special education team at K. Altman Law, and Keith Altman, who is the founder of K. Altman Law.

Tim Markley (00:40)

Today

we'll be covering legal considerations, best practices, as well as practical advice for schools, parents, advocates, and anyone in the special education realm. Let's get started.

The agenda for today, we're going to discuss why this matters. For example, why are these laws important in the special education space? Why is it important to advocate for students with disabilities in terms of discipline and why do we discipline students with disabilities differently than their neurotypical peers. Then we're going to get into the legal framework of IDEA and Section 504. After that, we'll discuss MDRs, which are called Manifestation Determination Reviews. Then we will get into procedural safeguards and parents' rights. And then just some feedback and commentary on some special case laws that shape discipline for students with disabilities. And then lastly, we'll discuss how K-Outman can help. So getting into why this matters. It's truly important to understand the relationship between disability and discipline in schools. But why does it actually matter? Students with disabilities, they face a disproportionately high rate of school discipline when compared to their non-disabled peers. Schools have to balance discipline with the federal protections under the IDEA and Section 504 guidelines. Certain missteps in disciplining students with disabilities could lead to lawsuits, due process hearings, and violations of student rights. Now, Keith, let's start with a big question. Are you ready? Sure, let's go. Okay.

Why are students with disabilities more likely to face disciplinary actions in schools?

Well, as a general proposition, many of the common disabilities that students face, and for example, ADHD is incredibly common, is their way of processing the world around them, or autism is an even bigger problem. Their way of processing the world around them is different than other students. They tend to not understand social cues. They tend to be impulsive.

In nature, they tend not to appreciate the consequences of their actions in the same way that other students that other students may do that. In addition, some of them are less are developmentally challenged and are less sophisticated than the other children around them. They are easily manipulated, shall we say, and can be prompted to engage in behavior and conduct that is not appropriate.

And so it is generally true that these students, they've got a tough enough time getting through the day and then you throw trying to conduct themselves on top of that makes for a very, very difficult time. Absolutely. I agree. And you know what, in a lot of research that I've done, the data shows a trend that these students typically struggle with behavioral expectations due to their disabilities.

In the vast majority of cases that I've seen and that I've been involved in, a lot of times schools don't have access to the proper interventions that these students need in place. So in my mind, that can lead to more unfair disciplinary actions. So it's not just about student behavior, but also about how the schools respond to the behavior. So let's talk about the legal protections that should be in place to prevent these issues, which leads me into IDEA, which is the Individuals with Disabilities Education Act. This act protects students with IEPs, which are also known as individualized education plans, to ensure a free and appropriate public education or FAPE to ensure that that happens. Okay, Section 504 prohibits discrimination, and it applies to students with disabilities, even if they don't have an IEP in place. You know, a student who as a temporary disability, maybe something like a broken leg could get a 504 plan. That was something new and interesting that I'd Procedural safeguards, school districts and IEP teams or 504 teams always provide parents with the procedural safeguards at the meeting. And then you, a lot of times will sign for those procedural safeguards. One thing that I've noticed is that a lot of times they're not gone over in depth. And unless you have a law degree or a special ed degree, it's kind of hard to navigate that, right? But those procedural safeguards are in place and schools must follow them before disciplining students with disabilities. In addition to that, you can always look at the school districts discipline matrices on their website. You can also look at their policy for disciplining students with disabilities.

Those will help you navigate the process. In terms of procedural safeguards, those safeguards are put in place to outline what the process should be. But the details are kind of decided by the specific school district. They just must meet IDEA or Section 504 standards at the minimum.

So I do have a question for you, Keith. Just about IDEA and Section 504, I've been in education for quite some time and you've been in the legal field also in education, but everybody sees it a little bit differently. In your mind, what do you think the difference is between IDEA and Section 504? Well, I think the key difference really relates to the school's responsibility with respect to the student. Under IDEA, one of the key aspects is that the school must be on the lookout for children who are having difficulties and who may be at risk of not getting a FAPE education. And 504 is a little bit different. It's meant to be more students who need just some assistance with the peripheries of trying to get their education. As you said, a student who breaks a leg who needs some assistance or a student that is in a wheelchair, it doesn't really affect their education per se, but they need to be able to get around to their classes. They need some additional time. In terms of, you know, I look at it kind of simplified with an IEP and IDEA, the school has a lot of burden that it must follow in terms of being able to ensure that students receive the education. a 504, the burden's more on the parents to ask for things that they need. Now, clearly, and I'm sure that you'll go over them, clearly there are very specific differences between the two. And I know that you're putting up the grid, at least I think you are, because as some of you may or may not know, I am...essentially blind. lost my vision a few years ago, so I can feel for what many of these students are going through and unfortunately I can't read that screen. But why don't you take them through the essential differences because I think that there are finer points to it. But I will say in the end, this is about kids. It's not about adults. It's not about laws.

It's about we have a kid here who needs some help. How do we get them the help that they need? And how do we help protect their day to day involvement in an educational institution? That's really what it's at. I try to focus on that at all times and not get so wrapped up in the words. Absolutely, and just to kind of reiterate your your point here, IDA applies specifically to students with an IEP, right?

That's correct. then you've got Section 504 is kind of like more broad and it was designed to prevent discrimination based on disability, even for those students without an IEP. So I think the way you explained it was really great because I even got a little bit more insight on Section 504 as it relates to IDEA. So to me, that means that schools have to be mindful of both laws

IDEA and 504 when handling discipline. You know, what happens when they don't follow these proper procedures? Like what is what is a school's responsibility? You know, is that when the parents take legal action or what would the next step be at that point, Keith? Well, legal action in my mind is the absolute last stage. I say to people all the time, you want to be a graduate or a litigant. The goal is to try to find creative, productive solutions to problems. And I know that many parents may be frustrated that they don't see the school delivering what they believe their child is, and that may very well be true. I always try to take the approach, can we find a productive solution to the problem? That doesn't mean that we're afraid to litigate when necessary. We do do process hearings. I think we have four of them coming up in the next 60 days and from a bigger litigation perspective, we litigate all the time. We had two cases at the US Supreme Court, two terrorism cases. So we're not afraid to litigate when is necessary. But I think there are so much more effective solutions that can be tried. the parents are at so much of a disadvantage because the school has the expertise, they've got the resources to try to...to try to put their perspective on the situation versus the parents who may be just having significant challenges just trying to get their child into school every day. And it really is not fair. And even if the parents understand the data points that are relevant to their child, they often don't understand how do you put those data points together to accurately and effectively advocate for your child.

 

So I think it's just essential that the playing field be leveled. And there's a disturbing trend that I see, and we do our work all over the country, is that schools are very willing to throw children in the garbage these days. You know, when I was a kid, when a child had problems in school or they had difficulties, the school was invested in those kids.

 

they spent the time, whether they, you know, whether they had a disability or they didn't today, it's just, they're too much trouble. Let's push them out there. They're, let's send them to alternate school. Let's do everything we can other than do what we're supposed to do, which is educate our kids. So these, these procedural protections, they are essential to try to level the playing field, to give these kids a chance to help them.

 

overcome and manage their disabilities. That's really what's going on here. Absolutely. I completely agree. you know, in comparing IDEA and Section 504, you know, it's best to look at the features of each law when you're comparing. So the purpose of IDEA is to provide faith, which I'd mentioned before, is a free, appropriate public education

 

in the least restrictive environment. And the least restrictive environment in terms of IDEA is relating to more time with their neurotypical or non-disabled peers in the same setting. So 504 is designed, its purpose was to prevent discrimination based on disability and it ensures equal access, right?

 

To be eligible for IDEA, you have to have an evaluation and you'd have to be identified or have a diagnosis through child find of one of 13 specific disability categories. So it is quite different. Where 504, there's a much broader definition of disability, including anything like we'd mentioned before, a broken leg.

 

that causes some substantial limitation of major life activities, where IDEA eligibility is more so not just life abilities, but academic abilities that are hindered. So that's really the main difference there. IDEA only applies to students in K-12 public schools with disabilities. 504 is for K-12 colleges, universities, and any federally funded programs.

 

So when you think about federally funded public hospitals, those hospitals are covered by Section 504 and they must comply with that. So it's very different because IEPs are just using K-12 environments. The key protections that IDEA offers are providing students with an IEP with measurable goals, where Section 504

 

requires accommodations so that students get an even playing field with their typical peers. But there are no goals associated. There's nothing measured. An educational plan, which can consist of curriculum modification, curricular accommodations, require an IEP. and a 504, you can get a 504 plan with accommodations.

 

to make access to education easier, but in terms of modifying curricular objectives and content and standards, that wouldn't be something that would happen under Section 504. That would be under an IEP. So under IDEA, there are some discipline protections, which are the MDR, Manifestation Determination Review. According to IDEA,

 

This is required for disciplinary actions that exceed 10 days, whether it be out of school or in school, that more than 10 days constitutes a change of placement. In every state, it can be a little different. We do operate in all 50 states, and these are really just the bare minimal guidelines and laws. There are some states or some school districts that

 

after the fifth consecutive day they conduct an MDR. So make sure you check your state's procedural safeguards to be able to determine what that process looks like. Under Section 504, schools should evaluate before any kind of disciplinary change of placement like alternative school, but an MDR is not always required under Section 504. IDEA, the funding is federal.

 

and the federal funds the school districts to provide additional services. Section 504 does not have any federal funding attached to it. Legal enforcement, the US Department of Education's Office of Special Education Programs enforces IDEA. Section 504 is enforced by the US Department of Education's Office for Civil Rights or OCR.

 

Now we're going to talk a little bit about manifestation determination reviews. As mentioned, these must be conducted within 10 school days of a decision to change a placement due to discipline. Now that could be in school suspension, out of school suspension, alternative school, therapeutic placement environment. The team must actually determine if the behavior was a direct result of the student's disability.

 

or just a failure to implement the IEP. If the behavior was determined. And before you continue, very important aspect of this, is cumulative school days for the school year. So it doesn't have to all happen at once. If, for example, there, you know, a student was suspended for five days. And then the next time the student is suspended for six days, an MDR is required at that

 

And so you've got to be careful with that and make sure that they get the MDR when they're entitled to it. That's right. And if the behavior was deemed to be a manifestation of the disability, the school cannot impose standard discipline protocols. If it was not a manifestation, the school can proceed with disciplinary actions, but the child's education has to continue. So I do have another question for you, Keith. It actually comes down to

 

to MDRs and how schools often struggle with determining whether the student's behavior was caused by their disability or not. What's the legal standard here? Is it the conduct directly related to the disability? Is that the first legal standard? The first question? Well, it depends. It's not such an easy question to answer.

 

It's whether the conduct was caused or contributed to. So one of the things that the schools may try to do is try to say that it is this, you know, try to say, unless it's the sole cause of the conduct, then it's not, it's not, you know, an issue for the MDR. And that's just not true. It's caused or contributed. So for example, let's say a student was,

 

bullied or pressured by another student to take an action. And they do that. Now, it's obviously a multifactorial situation here where you have the pressure from the other student as well as our student's disability. And those two things together contributed to the conduct. That's okay. That satisfies the rules of an MDR. So you have to be

 

first you have to make that assessment. And I think one of the things that the parents often miss out on is trying to take the position, well, how did you establish, if the school's trying to, and they very often do, say, this is not a manifestation, of course not. But I always throw out to them, well, how did you make that determination that it wasn't a manifestation?

 

throw the burden back upon them. And that's the key, you know, that's the key issue. And a lot of times schools aren't prepared. They're not prepared to deal with that. And you can often, you know, put them in a difficult position where they can't show that it's not a manifestation. For example, you have a child with ADHD and the child engaged in something that, you know, is reflective of impulsive.

 

activity that once again a non-disabled child may be able to look past, but somebody with ADHD, they get wrapped up in that and they're unable to conform their conduct. So how can you say that impulsivity is not a manifestation of ADHD? I think it's very difficult to do that.

 

I agree. Yeah, I mean, it's definitely in the DSM five is one of the top five symptoms. So, you know, the other thing that I've seen too, and I know you've seen this as well, the person that's making the determination, sometimes it's not a person who may be well versed in that child's disability or may not have a medical background or even a medical license. So at that point, what could families do? Should they appeal?

 

the decision or should they do something different in that regard if that was to happen? Well, I think that, you know, first before you're even thinking about appealing, what you want to make sure of is that if an MDR is going to take place that the appropriate team is there, that they just don't have one person that they have, you know, teachers, they have the, you know, effectively the IEP team needs to be there as well as a nurse and some medical

 

professional and I think absent a medical professional in the meeting, in the meeting, corrupts the meeting right off the bat. And so I think you need to insist that the right team is there. two, I think the parents need to ensure that they are able to participate in the meeting and ask the tough questions. When you get a, you you're dealing with an ADHD student and it's an impulse

 

impulsive type situation, how, you know, and the school psychologist, let's say is there. Well, how did you determine that impulsivity is not part of ADHD? Ask them the tough questions. Now, if the procedure has been conducted fairly, even if there is a, what you believe to be an erroneous determination, you then have the ability to appeal the outcome of the MDR.

 

and that would lead to an expedited due process hearing, which effectively would have an administrative law judge or ALJ appointed who would hear the basis of the appeal and try to resolve the appeal. You might also do that if you've asked for the right people to be there or you've asked to be able to participate and that participation was denied. That's clearly also a

 

a basis for appealing the MDR. And once again, you'll be in front of an ALJ. Now, once you get in front of an ALJ though, the stakes are somewhat different in terms of the process. And that's where you start to need to be thinking very carefully as to whether you need some assistance with that kind of a process because now you're, I mean, it's not quite like being in court, but it's like being in court.

 

There's witnesses, there is evidence, there is a whole set of procedures that it may be overwhelming for the average parent to try to deal with effectively.

 

Most definitely. I really appreciate your insight. so what I'm hearing is that, if it is a manifestation of the child's behavior, is a manifestation of their disability, schools instead should adjust the student's IEP support plan, maybe conduct a functional behavioral assessment and revise the IEP if necessary, rather than just removing them from school.

 

That's absolutely true. And once again, the point here is to come up with a creative solution to the problem. an intellectual exercise for the parents and the team and everything, but we're still talking about a kid. It's to take a look at it a bit from the kid's perspective, look at what happened here and try to come up with a creative solution. How can we

 

educate the child on how what they did was inappropriate. What's the best methodology? it, you know, in this day and age, are there some, you know, a video learning module of some kind that they can watch that can help them that can help them get through that? I mean, as as an example, we had a case where a autistic child and he was moderate on the spectrum.

 

said to another student with respect to a female, and I think he was about 14, and he said to the other student, I'd like to sexually assault that girl. He didn't even understand what it meant to sexually assault somebody, but he heard somebody say it, and so he thought that was an appropriate context. Now, what do you do with a student like that? you, you know, and the, the, the non-disabled student,

 

told the educators about that and they brought a Title IX complaint, which is a sexual harassment complaint against our kid. But is that really the right answer? Or do you need to explain to the child what he said? Take the time and invest in these kids and never lose sight of the fact that even if they have disabilities, they're just as

 

As important and deserving. Of the time and effort of the teachers as any other kid out there and and they can, you know, live productive lives and is as many of you. I mean your parents have these kinds of children. It's harder, it's different, but they have the same entitlements and expectations as every other kid out there and can't lose sight of that. So what can we do to find the best solution to?

 

try to get them to conform and adjust their condom.

 

Absolutely. you know, parents, I know we started to talk about appeals on the last slide, but parents do have the right to challenge an MDR decision through an expedited due process hearing like Keith had mentioned, which is an appeal. When this happens, a stay put provision is enacted. So the student remains in their current placement until a specific resolution is found, except for in severe or special circumstances.

 

And the school must always provide written notice as well as documentation of the decisions that were made. Failure to follow these procedural safeguards can result in legal actions and the issuance of compensatory education. You know, so I have a question for you, Keith. Parents really often feel overwhelmed when their child faces these type of disciplinary actions. What rights do they have

 

under their procedural safeguards? What are their rights? Well, I think the right to an MDR is an important situation that there needs to be a rational discussion of what took place with the appropriate people involved. one of the safeguards. But aside from that, if the MDR concludes that their disability did not cause or contribute

 

to the conduct, there is a, in a public school setting, there are a number of due process rights in terms of how do they adjudicate the disciplinary proceedings, that there has to be somewhat of a quasi-hearing, an opportunity to speak with the principal or the designee about the issue.

 

that if there is a finding of responsibility, one of the things about sanctions, sanctions are supposed to have two purposes. Number one, they're supposed to, well, first, they're supposed to be the least, the least strong, probably not the right word, but that accomplishes two goals. holds reasonably accountable, and two,

 

deter us future conduct, not the most serious. So in any of these, you know, in any kind of assignment of discipline, you have to take a look at what took place, what are reasonable steps to correct that action, and then conform the sanctions to meet those deeds. So for example, a student who

 

All let's just say. Any student, whether it's a. You know someone special education needs or a non special education student. Let's just say they walked up to somebody and slap them. OK, that's a that's misconduct. You know the assessment is is what kind of a sanction would help correct. That particular conduct, it's not expulsion. You know that that's the most severe. That's a terminal sanction.

 

call, that's the most severe. It's what's the least severe that accomplishes those goals. And so they have the right to, you have the right to see that the sanction is appropriate for the conduct that took place. And if we're dealing with a special needs child, that the sanction is appropriate in the light of what their needs are in a way that can be effective. So that example I gave of the student.

 

with, know, I want to sexually assault that girl. It's to, you know, take them and explain how that's not an appropriate thing to say, how this is what you said, what it actually means, and try to explain that to them and turn these opportunities into a learning opportunity and not make it just punitive in nature. And schools often lose sight of that. And you as parents,

 

have got to stand your ground and say, how do we fix this problem? What can we do here to be productive and never lose sight of it? So from procedural safeguards, that all plays into that. Thank you so much. That was a really insightful answer. And I kind of wanted to just discuss some really important cases that I've been reading lately that really shaped

 

special education in relation to disciplining students with disabilities. know, over the years, numerous court cases have established and refined specific legal standards for disciplining students with disabilities. I find these cases to be the backbone of the discipline provisions in schools. You know, the first one that I found really interesting was Goss versus Lopez of 1975.

 

This was a US Supreme Court case. It wasn't specific to special education, but what it did was it set the stage for all student discipline by holding that students have due process rights under the 14th Amendment. The court actually ruled that public school students must be given notice and an opportunity to be heard before being suspended even for a short period, specifically for suspensions of 10 days or less.

 

The student is entitled to be told to Keith's point that what they did was wrong and given a chance to actually explain their side, at least informally. This case was important for students with disabilities too, because it really ensured basic fairness procedures in all discipline cases. Now the implication is that schools must follow due process for every suspension. For special education students, GOSS rights apply in addition to IDEA.

 

and the IDEA specific protections. You know, in terms of special education, what does GOSS mean to you, Keith, in terms of, you know, providing those due process rights under the 14th Amendment? Well, it means that, you know, our children, all children, are not just

 

in a place in the school where the school can effectively do whatever they want and that the students have no rights at all. Students do have rights. They may be limited in some respect and they do need protections and it's become more important that they have protections these days. But it just stands for the proposition that the school has got to establish.

 

that number one, a violation took place, number two, that the student engaged in the conduct, and number three, there are no extraneous circumstances that may have contributed to it. And they cannot just simply dispense with these rights. And it's fundamental. mean, it's kind of parallel to free speech.

 

And everybody has free speech. Now a student in a K through 12 environment doesn't have full free speech rights. There are limitations that would not apply to older older individuals, but they still do have free speech rights. Just like that, these kids are entitled to the can't. The school can't act in an arbitrary and capricious manner. That once again they have to use the least serious.

 

Sanctions to achieve the goals of appropriate discipline and that when a student doesn't get these rights, there is a basis. For attempting to enforce these rights. And it's just essential. There would be no schools would just simply do whatever whatever they wanted and they can't quite do that. They have a lot of control and a lot of power, but it's not unlimited. And as parents you have to understand that.

 

your children have to be provided, you know, notice and an opportunity to be heard and have to be there. There has to be a reasonable attempt at investigation and fact finding. And that the school can't just make decisions without engaging in these this process. Absolutely, and what preceded Goss was

 

Honig versus Doe. And in Honig, it was a US Supreme Court seminal case on special ed discipline. Honig involved a California student with an emotional disturbance who was suspended indefinitely for what was deemed to be aggressive behavior. The Supreme Court ruled that schools may not unilaterally exclude or expel a child with a disability for misbehavior that is

 

disability-related or a manifestation. This case truly affirmed the 10-day rule that we saw in GOSS. A suspension of more than 10 consecutive school days was deemed a change in placement, and that would require due process, which would be an MDR. You know, the court in this case emphasized IDEA's stay-put provision. At the time, was EHA. As you know, it was

 

that was the previous name prior to becoming an IDEA. The child has the right to remain in their current educational placement during any dispute. If a child's behavior is dangerous, the school's remedy is to seek a court injunction or use a 45-day interim placement rather than simply just expelling the student. Hoenig versus Doe forced Congress and states to develop procedures, which then became MDRs.

 

to balance school safety and student rights. Honeys also confirm. Go ahead. Well, I was just gonna say, I wonder if the thing that's important is, and we're actually dealing with this right now, is where the offending conduct is a direct result of the school not providing the services that they are supposed to be providing.

 

You know, it would be a little incongruous if, you know, the school doesn't give, you know, we're dealing with situation with student who's not being given the communication tools that she needs. And she gets very frustrated because she can't communicate and express her needs. And therefore, and so she becomes violent because she gets frustrated being unable to do that. And, you know, that's clearly a problem.

 

But the school is the one that created it in the first place. So they can't just create the problem, cause the reaction, and then throw the kid in the garbage because they're now in danger as they perceive. And that's why you've got to, you you really have to make sure that you identify what may be the root cause of what's going on. Most definitely. And that's why

 

you know, the US Department of Education released last November, know, guidelines for using functional behavior assessments and creating behavior intervention plans and really determining the root cause of the behavior by doing an FBA. An FBA would determine what the function of the behavior is. So without that information, it's really hard for a school to make these type of decisions.

 

But in interest of everyone's time, the other cases and case law will be sent a few days after the webinar in a handout. I would like to get into talking about what we do here at Keltman Law and how we can help. We do provide advocacy, special education advocacy for parents and students. We assist with MDR appeals, MDR disputes, due process hearings.

 

discrimination complaints, also handle mediation. Our advocates will help with IEP revisions, change of placements, et cetera.

 

We resolve disputes through negotiation or legal action when necessary. We also do policy development for schools and districts to create legally sound discipline policies and provide legal insights in special education cases.

 

So now it's time for our Q &A. The first question that I see here from Linda says, a child is being removed from the Gen Ed classroom to an alternative placement classroom.

 

When, and this happens when the child is dysregulated and they're moved there for the rest of the day. Now, do these removals constitute a change in placement? Do the days contribute to the 10 day time period needed for an MDR? You know, in my opinion, that is an absolute, you know, yes, they could because that is a change in placement, change of educational setting, right? That's something like.

 

in school suspension. But do you have a different viewpoint on that, Keith, from your legal expertise? No, I think that once the removal would get to the 11th day in the same school year, an MDR is required. Now, I would think, though, that if it appears to be the same kind of problem, I think that the problem is still somewhat different and that you need to get with the

 

school and saying, look, what's going on here? You know, why can't, what do we need to do differently to help this student maintain their presence in the gen ed class? you know, once they get to the 11th day and you do the MDR and you conclude that it's, that it is, you know, it is related to the disability that may keep them from necessarily taking them out of the class, but that doesn't solve the fundamental problem. And as I say,

 

We've got a kid. How do we take care of this kid? Forget about the laws, forget about the MDRs. We're with a kid here. My job is, although I am an attorney and I practice, I try to get at what's really going on and try to solve the problem from a different perspective. Why is the student keep running into a problem in the gen ed class? What can we do differently?

 

That's really what the issue is. But I believe that once they hit that 11th day, then MDRs are required every single time after that.

 

Absolutely. Linda also asked, you know, what legal regulation or code supports that those removals count? That would be under IDEA, as well as your state's procedural safeguards. And then she asked, how can she communicate this to the school? You know, a lot of times schools are reticent to provide

 

that information and that insight. And they automatically assume that parents don't know what they're doing or what they're talking about. I mean, I myself have a special needs child and I'm very well versed in special education and special education advocacy. And I had times where I wasn't taken seriously. So sometimes it takes an outside party to kind of step in and see the bigger picture.

 

and really hold the school accountable while working with the school simultaneously to create what's in the best interest for your child. You know, as I'd mentioned in the comment, feel free to set up a consultation. We'd be happy to assist you with this matter and to get some more details and talk more about the case specifically. And again, I'm sorry your child is going through that.

 

What are the next steps if the school refuses to reverse the suspension when found they falsely accused a child and OCR hearing? They recognize their false accusations but refuse to reverse it for record keeping purposes. However, they're pushing to transfer him out of the district without the reversal. So with that being on his record, that would be staying on his discipline record.

 

So when a school doesn't want to, you know, remove that from the record or reverse the steps, although the child was falsely accused, what can the family do, Keith? Well, you know, you have to break this down to a couple of different things. It's not unusual that a school or even in the court system that there is a wrong determination.

 

That's not the basis of an appeal or a challenge. It's was there some procedural irregularity? Now, for example, we had a situation where we had a student who's got an IEP. He did what most young men do and the, know, he's 16.

 

and he wears the same pair of pants 12 days in a row until the pants start walking on their own. On a Sunday, he had a pocket knife in his pocket, which he forgot to take out of his pocket and goes to school the next day. He's got ADHD. He takes the knife out at one point, you know, it doesn't open it, but he's fidgeting with it because it was in his pocket. And some other kid sees this and the next and reports it to the school. Well, the next day.

 

it turns out that, you know, they call him in, they search him, they search his bag, whatever. He doesn't have the knife with him because he realized he had it with him and he didn't come in with it. And then he, but they ask him and, and they're questioning him. He's a sped student without his parents. The police are there. I mean, they've made a whole big deal about this thing. And he says, yes, I had a knife in school.

 

Well, interesting. And then they moved to expel him. Well, interestingly, it turns out in this particular state and this particular school district, the school district defers to the state definition of what constitutes a weapon. And in that particular state, any knife has to be greater than two and a half inches to be considered a weapon. But they have no idea how long the knife is because he doesn't have it. And they moved to expel him anyway.

 

And so the whole thing is corrupted. You know, they make a finding that he had a weapon in school without ever having seen the weapon. And so we got involved and we're working right now to have that decision vacated. So what you can do is that if you're a peer, you know, and in that particular case, that wasn't like, we didn't like the decision that they made. There was a procedural error there. They never saw the pocket knife.

 

It's a and it's a Swiss Army knife. They never saw the pocket knife to conclude that it was a weapon by their own definition. That's a procedural error. That's something that you can latch onto. They interviewed our kid with the police without his parents and he's a sped student. That was a procedural error. Those things you can challenge a decision based upon. But you can't do it just because you didn't like their ultimate decision or a lot of these matters are decided on.

 

on, you know, on a he said, she said type basis. And the person who's making the decision gets to decide who they believe. It can't really challenge a determination based upon that. So if there is a procedural error, that's important. One of the things we always seek is to get the determination vacated, which means it wouldn't show up on there. You know, it wouldn't show up on the record. Now, sometimes you get a school that's recalcitrant.

 

that doesn't want to, you know, is unwilling to, is unwilling to give up on that. It's kind of like the, some of you may have seen happy days way back with, you know, Henry Winkler, who was the Fonz, who couldn't say the word wrong. No matter what, he just couldn't admit that he was wrong and schools are sometimes like that. And in that particular case, it can be difficult that you may have to.

 

You may have to go beyond. may have to look at the possibility of due process. You may have to look at the possibility of litigation. I don't like to go down those paths, but we do and will when we have to.

 

We have another question. How does the current undoing of the Department of Ed impact the protections that we've been discussing? know, the proposed dismantling of the US Department of Ed, it kind of does raise some concerns regarding the enforcement as well as the administration of protections for students with disabilities.

 

under IDEA as well as Section 504 of the Rehabilitation Act. Both laws are really pivotal in my opinion and ensuring that students with disabilities receive FAPE or Free Appropriate Public Education and are still safeguarded against discrimination. You know, the current role of the Department of Ed is they play a central role in funding. They administer these IDEA grants to states and those are what actually supports special education services.

 

The federal funds are provided as well as state funds on a matrix. So there are different levels of an IEP. There's level one, which is a student who doesn't require interventions, all the way up to level five. And there's a significant difference in the amount of money that a school district is awarded depending on a child's matrix level. And the matrix level is directly guided by the supports that your child needs.

 

Some states do offer state scholarships for families or education savings accounts. Now, a lot of times when you get those, you'll see that it'll be a lower amount. So you always want to request a matrix score review just to make sure that your child's getting the funding that they would be entitled to in the public school system. DOE also provides oversight.

 

They monitor state compliance with federal mandates, and they make sure that students with disabilities receive appropriate services and an education. Also, it also does enforcement through its Office of Civil Rights and investigates complaints and ensures adherence to civil rights laws, including Section 504. You know, in my opinion, some of the potential impacts of if DOE was to actually be dismantled,

 

there would be funding disruptions. The elimination of the DOE could lead to uncertainties in the distribution of these federal funds that are designed for special ed. And alternative agencies may possibly assume this responsibility, but there's no guarantee. That transition could truly result in delays of inconsistencies and could hinder the delivery of services to these students with disabilities.

 

You know, another concern that I have would be the weekend enforcement and protections. You know, the Department of Ed's OCR is really instrumental in enforcing compliance with IDEA and Section 504, and the dissolution of it might lead to diminished federal oversight and things going straight back to the states and to the school districts to actually uphold the rights of students with disabilities. You know, it could create

 

an increased disparity in educational access as well as educational quality across different regions. You know, and if it goes back to the states without any kind of federal oversight, states would have greater autonomy and interpreting as well as implementing these special education laws. It could lead to some significant variations in the quality and or the availability of services for students. And that would

 

particularly just depend on the state priorities and the state's resources. And lastly, the challenges and policy coordination. The Department of Ed currently provides guidance and support to make sure that there's a consistent application across the country of IDEA and Section 504. Its absence could truly result in some fragmented policies, which would make it different for parents or advocates, even school administrators.

 

to navigate the system and be able to determine what students' rights are and advocate effectively for them. Based on that, Keith, did you have a different viewpoint or anything that you wanted to share or anything you wanted to add to that question? Well, do think there are, I think that some of the functions of the DOE will be assumed by other agencies. It just simply has to.

 

But from the perspective of due process and expedited due process, those go before state level administrative law judges. So that's not really going to be impacted by the existence or nonexistence of the DOE. And ultimately, these issues could and would be resolved in federal court. So I think that it may make it a little bit more inconvenient.

 

In the end, think students will, you know, looking at it at the individual student level, I think at the individual student level, students will still have their due process and procedural rights. It just may be a little bit harder to get at it. But I agree with what you're saying from a bigger picture perspective. Simply, I don't think anybody knows what's ultimately going to happen here. No, not at all. All we can do is

 

truly speculate and you know, I do when each state already does have certain control over some parts of state education, right? You know, with the implementation of school choice in various states and things of that nature. So do you feel that it would like really further complicate the system that's already complicated?

 

It may, but I'm not. I'm not a wizard in terms of being able to predict the future. And I think we're just going to have to wait. I think we're just going to have to wait and see. Unfortunately, it creates uncertainty and you know, in the end, as I said, we're dealing with kids, individual kids that need. You know our support and I look at it from their perspective. To me, whatever happens with the DOE is a bit of a sideshow.

 

and focused on how do we help this kid in this particular problem. We can't lose sight of that. Absolutely, absolutely. That is definitely the most important thing is, you know, the clients that we work with, you know, I would say our team really fights for our clients as if they're their own children. I mean, we get we get told that every day, you know, you're so passionate about what you do and they get compliments about, you know, our attorneys and how

 

much they really care. So I just wanted to say, you know, thank you for that. And for all the things that you do for our clients and our students that we work with. And we do have one last question from Carrie and it says, there a comprehensive resource you can recommend regarding assistive communication tools and policies and or procedures? So we do have a lot of resources on our website.

 

We also do post a lot of research as well as blogs. If you can't find what you're looking for, feel free to send me an email at sped, S-P-E-D, at kaltmanlaw.com and I will send something over to you. Thank you everyone so much for joining. Thanks for spending the hour with us. It's been great, Keith. Your conversation was very insightful and I...

 

Got a different perspective on the administrative proceedings. So I really appreciate you joining me and I hope everyone has a great evening. Thank you everybody. Thank you.

 

Tim Markley (58:07)

I hope you've enjoyed this special edition of the Legally Blind Justice podcast and the replay of the webinar with Taylor Ruiz and Keith Altman. Remember, if you need help or you have a question, feel free to reach out to us at 248-985-8677 or check us out on the web at kaltmanlaw.com.

 

Thank you.