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Amy June Rowley

- Born deaf
o When in kindergarten, school was understanding but district prevented access/denied
payment for interpreter
o Mother (who became deaf after measles) was aware of signing options and couldn’t
imagine school for Amy without interpreter
- No ADA at the time; parents started researching options and finding out what parental rights
o Mediation with school district
 1 month trial with interpreter paid by district to see her progress
 Unfamiliar with interpreter, intimidating, hid from man
 After 1 week, school notified parents that interpreter was dropped
 Stated “obvious that Amy won’t need an interpreter”
o Arguments between parents & school
 Parents saw intelligence; school said average – gave IQ test but didn’t use
 Went back and forth and gave multiple tests; scores naturally improved
- Sued the school
o Challenged new law; lawyer who lost hearing during law school volunteered to pursue
lawsuit (not SpEd lawyer but aware the situation was not right)
o Won first case
 School disagreed and appealed
- At the end of 2nd grade, appeal was heard
o Appeal court supported parents
 Judge told school that interpreter must be provided
- 3 grade had interpreter
o Mediator to Amy in interacting with peers
 Taught her how games were played; understanding rules
o Teacher, principal & school knew Amy and saw her as a person
 District – piece of paper
- End of 3 grade – satisfied with academics and support
o Didn’t have to reteach after school; could come home and play
- 4 grade – different interpreter
o District stated needed different services; wasn’t a true interpreter – was a Deaf Ed
 Pulled out of GenEd classroom because wasn’t doing well (from district who
didn’t see her smart in Kgtn) Amy asked questions about science; got 2-3
sentences from DeafEd teacher instead of 10 minute lecture.
 How was being pulled out of class helpful??
o Parents complained, district didn’t listen
 At end of 4th grade, Supreme Court agreed to hear case
 Only looked at 2nd grade and earlier
 Did not look at 3rd and 4th grade or consider reteaching in the home
 Based on narrow information, court agreed she did not need interpreter
o Amy did not have interpreter in 5th grade; teacher had to write information for her
 Difficult to teach
 Teacher and Amy very frustrated
- Parents knew something had to change
o Changed schools due to job – started 6th grade in New Jersey (previously New York)
 Deaf students would be in mainstream with interpreter
 First time parents signed an IEP
o Able to make friends with other deaf students; still has friend from 6th grade
The State of the Law: Is Rowley Still the Standard?
Laura Tubbs Booth

- SpEd Cases
o Is FAPE still the standard?
o Private school students and FAPE – MN
o Transportation and Open Enrollment
o IEE Pointers
- Consider the OCR’s evolving viewpoint
 Is student getting whole services provided to citizens?
o Discipline – Race – Special Education
o July 2016 “Dear Colleague Letter” re ADHD
- Section 504 – What is Old is New

Standards across Circuits are different – court will re-evaluate lower decisions to make consistent
Federal guidelines

SpEd Law and Leadership

- Has the “special” designation driven a separate and not equal distinction?
o Are we removing students further from GenEd peers
o FAPE listed in IDEA & 504
 Students entitled to related (ART) services
 Statutes will come closer together – good for students; gives more opportunities
to be in GenEd
- Should education leadership include education students with disabilities?
- Where is the law moving? Educators are moving the practice toward equity vial removal of
systemic barriers
Equality versus Equity graphic
- Boxes given to all 3 students of different heights (see over fence) – equality
- Different supports with boxes tailored to needs – equity
- Third images has barrier removed, thereby removing need for boxes (cause of inequity was
o Wooden fence changed to chain linked fence; now all can see
Bd of Education versus Rowley
- Supreme court held:
o FAPE means individualized instruction with sufficient services to permit educational
 Passing grades; performs well on standardized testing; gets along well with
peers and students
 Standards measuring if students receive SpEd & services
o Court held IDEA does not require services to maximize student’s potential EQUAL to
opportunity to other students
 As long as school follows procedures & IEP is reasonably calculated to provide
educational benefit; school meets legal requirements
o Now, mode of communication is sign language, any school would provide services
 Standard is still the same but practice has changed (best practice)
- Justice Blackmun’s dissent (from MN)
o Does Amy’s education viewed as a whole, offer opportunity to understand and
participate in the classroom SUBSTANTIALLY EQUAL to that given non-disabled students
 Is service giving them substantial equal opportunity to education
o Court focused on “Equal” opportunity; need to focus on “Equity” and individualized
C.B. v Special School Dist
- Student with average IQ and significant learning disability in reading
o Made great progress in academics – some progress in reading
 Most gains made through listening
o Informally offered a setting III academic program
- 8 Circuit held that district had not made meaningful progress and therefore parent was
entitled to try private school at public expense
o School – can’t cure disability but learn around disability
o Court – concerned with no reading progress
 Assumes average IQ means you should perform at grade level
 MEANINGFUL progress –
Endrew R. v Douglas Cty School District
- 10th Circuit held that a student with autism was provided “some educational benefit” and
therefore, private school reimbursement was not awarded
o Was not making educational progress that parents desired
o Pulled and placed him in private school
 School refused to pay tuition as could provide FAPE
- Court looked at 5 factors
o Progress, grade to grade passing, attendance, standardized testing performance, social
o Was making progress; even though not desirable to parents level, denied parent request
- Parents argued Blackman’s dissent from Rowley
o Create a standard that requires “equal opportunity” for students with disabilities
- Meaningful/some/more than de minimus Benefit
o Some educational benefit – school argued that Rowley stopped at “some benefit”
 De minimus came after Rowley in other cases
 Ten circuits apply the “some benefit”
o US Dept of Ed argued that the benefit should be one to provide equal opportunity
 If change from “some” – insert another word (meaningful) and then lawyers
would have to figure out what meaningful means
 Prediction: will leave “some benefit” as standard
Fry v Napoleon Cmty Sch
- 2/22/2017 US Supreme Court held that students do not need to “exhaust their administrative
rememdies” when the “gravemen” of the claim is something other than the denial of FAPE
o MP v New Prague – Wholly unrelated to IEP
 When claim not related to IEP, parents do not have to go through due process
 Can go straight to courts: You didn’t prevent bullying/had discrimination (not
related to IEP)
- 3/72017 JM v Howell (8th Cir Missouri) – the student argued that isolation and physical restraints
were discriminatory under ADA
o Told “no” – restraints were part of IEP
 Court wants expert trained in SpEd, Education, etc to make decisions
 Claims were intertwined with IDEA – need to exhaust IDEA procedures
RMM v Spec Sch distr
- Was private school student by parents choice
o Has reading disability
o Private school did not refer until 2nd grade
 Public school had offered earlier evaluation but parent refused as did not want
public evaluation. Wanted private school evaluation
- ALJ awared 2 years of private school on child find miss
o Did public school violate child find obligations when not identified?
o Did private school student receive FAPE?
- On appeal (Booth presents on Friday)
o Is student entitled to FAPE in private school?
Kulm Sch v JK
- Parent requested an IEE in AT before the district had Evaluated for AT needs
o District considered it but believed it was not helpful at the time; more distracting, young
child – recommended to wait
o Unilateral right to parent
 School pays for it but parent gathers information to make decision
 Parent selects evaluator and what is assessed
o District offered an expert to do the AT evaluations and parent agreed
 Parent changed her mind and requested IEE
 Dist denied request for IEE in AT and requested a hearing to prove its evaluation
was appropriate as was its IEP
- Hearing process
o Very good for parties; opportunity for both sides to say what is really bothering them.
Received outside input
o District acknowledge that AT needs would be addressed later but not beneficial at this
time; parent did agreed by end of hearing process
1. Dear Colleague letter re gender identity – transgender students should be able to use facility of
their choice
o Do gender disorders exists? If so, what is ramifications for legal analysis
o MN human rights act
 Protects gender including gender identity
2. Extra-curricular activities – 504 & FAPE
o Anything that involves school district dollars is part of 504
 Voluntary practice, so don’t need to pay for para? NO
o Want students to be included
 “Tell me more”
 Find a way to get needs met and be inclusive
Transportation for Open Enrolled Students
- Open-enrolled and transportation on IEP, must receive transportation
o However, not best way to provide FAPE
 Long time on bus
 Reduce bussing for other students
o What is barrier for student to receive services closer?
Office for Civil Rights (OCR) – changing landscape
- From process to outcome
o Did you do the work? Consider information? Create reasonable options?
- Now, still need to do process but want to see outcome
o Graduation rates, reading scores, AP rates, involvement in extracurriculars should
Girls and Special Education

IEP & Manifestation Determinations

Rules of Discipline
- SpEd: very complicated
o Lawyer perspective

School proposes to remove student for 1-10 days

- All suspensions are removals
- Suspension is for more than 1 day
o Partial day is not suspension
o In MN, if you remove a child for one day or less
 Do not need notice of suspension
o More than one day, send home early and includes the next day
 Need to complete paperwork
- Have to track any removal from instruction (one hour to one day)
o 10 days may be 1 hour at a time
- If student switches districts
o You inherit what first district did; if they suspended 9 times, only have 1 day
o Only time you start over is the beginning of the school year

Student brought to principal

1. Does student have an IEP?
a. If Yes, do IEP route – need to talk to case manager
i. Need to see IEP to make sure there is no “behavior clause” that restricts
ii. Principal is responsible to know content of IEP
2. How many days of removal has student had?
a. 10 days or less:
i. More than one day, follow procedures: informal administrative conference
where interview student
- “This is what I was told, what’s your take?”
- Exception is if student is too agitated
- All suspensions require written documentation – hand to family as well
as mail home
ii. No IEP meeting required nor manifestation determination
- Track removal because they count toward cumulative days
b. Previously removed from more than 10 days or proposed removal ends up to be more
than 10
i. This point and every removal after requires following process
ii. IEP manager involved (should be notified of fewer days)
iii. Still need to complete suspension paperwork
- 2004 IDEIA change
a. From 10 days to “change in placement”
iv. Full IEP team meeting has to be held within 10 school days of removal of child
- Not 10 days after return
a. If suspended for 10 days, have to have meeting while student is
- If suspended for 2 days; can still have meeting on day 5 after removal
a. Best to try by day 5; allows for sickness or conflicts
- Purpose of meeting is to determine if behavior is manifestation of
a. If the conduct in question was caused by or had direct and
substantial relationship to the children’s disability OR
b. If the conduct in question was the direct result of school’s
failure to implement the IEP
i. If student transfers, parent denies IEP – you would be at
fault for not complying (can’t claim ignorance)
c. Cannot just go by disability category
i. SLD student may have history of impulsivity
ii. EBD student may only be verbal aggression but incident
was physical – aggressive act was not tied to disability
d. Have both evaluation and IEP there; reflect in notes that
documents were reviewed
i. Helpful to have Psych there to assess function of
behavior; past ties
- Full team:
a. SpEd teacher, GenEd teacher, parent, district rep, student (if of
v. If determine conduct is related to disability
- Review the student’s FBA & BIP
a. If don’t have them, have to complete an FBA
- End result is to create a BIP and achieve goal of reducing behavior
a. At minimum have to amend IEP and new PWN
vi. There is no timeline for FBA/BIP review
- Should be done by manifestation determination meeting (assuming
already done)
- If don’t have one, will have to present evaluation plan
c. In-school suspension
i. Don’t call it that anymore
ii. “AIR”-rooms alternative instruction rooms
- Have instruction but not in typical classroom
- Depends on what you have student do during that time
d. For both GenEd & SpEd
i. Meet with family
ii. Suggest mental health needs; district willing to arrange for a mental health
- Don’t have to pay
- Document you had conversation
- Has to be presented every time suspended after day 10
- EBD – part of criteria
a. Don’t need conversation
e. Considering a 10 day suspension and recommending expulsion
i. Cannot suspend SpEd student for more than 10 days in a row
- After 10 have to go back to school somehow
ii. GenEd is 15 days
f. Up to 10 days, may require special procedures
i. “May” due to expulsion
- Key is recommending expulsion
- Cannot expel a SpEd student if conduct is related to disability
a. Have to have Manifestation determination meeting prior to
ii. Suspension conference with written notice
- IEP meeting
- Beginning on 6th day, need to provide alternative educational services
a. Special tutoring, electronic instruction, homebound instruction
i. Supervised homework – need instructor to make
contact/follow-up that student received it, understand
instructions, and have questions answered
ii. Document – even if they don’t answer!!
b. Key: Making progress towards graduation
iii. Proposing to expel:
- Cannot expel if related to disability
- What result of Manifestation meeting?
a. Was not:
i. Can proceed with expulsion process
ii. In MN, district is still responsible for providing
educational services to all students – sufficient to
progress towards graduation and IEP goals (misnomer)
b. Was:
i. Cannot recommend
ii. If a dangerous weapon involved? Knowingly
possess/use illegal drugs? Bodily injury?
1. 45 day interim placement
g. 45 Day placement
i. Weapon: possessing device that is used for or readily capable of causing death
or serious injury
- Swiss army knife with blade smaller than 2.5 inches (if use, different
ii. Illegal drugs: controlled substance
- Not legally possessed or used under supervision
- If sell to peers, then illegal
iii. Bodily injury
iv. Stay-put
- Student’s placement prior to interim alternative setting unless district
requests expedited hearing
a. 45 days is up; student was in only district high school
b. Convince officer too dangerous to go back
- Standard for dangerous
a. Placement in substantially likely to result in injury to student or
others (e.g. gang related; not just brought a gun to school)
- No “big 3” and is related to disability
a. Administrative transfers
i. Small districts and charter schools cannot do
ii. Large districts do – can move from building to building;
change in location as districts control location
1. If have to change more than the address, then
need IEP team consent
b. Expedited DP (due process) hearing to change placement
i. Need to prove dangerous to return
ii. Honig injunction (contact district lawyer to assist)
h. Protection for students with suspected disabilities
i. Not on an IEP yet
- If, before incident, in process of evaluation or aware student was one
with disability, assumes same protection
ii. Deemed to have knowledge if:
- Parent expressed concern in writing to district administration or teacher
- Parent requested evaluation
- Teacher or other district personnel have expressed specific concerns
about a pattern of behavior
iii. Deemed to not have knowledge
- Parent has not allowed for SpEd evaluation or refused services (denied
initial IEP proposal)
- Did evaluation but did not meet criteria
a. Met with parents/gave them written notice
- Parent revoked SpEd services
a. If “out” does not get protection
iv. If have knowledge have same procedural protections until evaluation is
- Cannot hold manifestation determination without completed evaluation
(no IEP team without yes/no results)
v. If did not know, subjected to same disciplinary measures as applied to students
without IEP
- If request is made, have to complete evaluation in expedited manner
a. Until evaluation is completed, student remains in educational
placement determined by school authorities (including
b. If found eligible, district must provide services afforded by IEP
i. IEP team needs to determine if conduct was
manifestation of disability
i. 504 plan
i. May be basis of deeming if distract had knowledge of a SpEd qualifying disability
- However, decision is not automatic
- Depends on why 504 was created
ii. 504 has its own protection
- Cannot remove for more than 10 consecutive days
- Or pattern of exclusions
j. If aware may need services, recommend “supervised homework” etc
i. Assists for later needs
504 and Equity

Dispelling “urban legends” and commonly held misbeliefs

Created in 1973
- “grandmother” to IDEA
- If comply with 504, also comply with ADA