As stated in previous posts, Arlington Central v. Murphy is set for oral argument on April 19, 2006 before the U.S. Supreme Court. Click to read a summary of the oral arguments.
Arlington Central v. Murphy to Be Argued April 19, 2006
The U.S. Supreme Court IDEA case Arlington Central v. Murphy is set for oral argument before the Court on April 19, 2006. A written decision in this case is expected this year. The case discussed in earlier posts involves whether parents who prevail in due process can recover expert’s fees. Marilyn Arons, a lay advocate/consultant, was the expert who is the subject matter of the case now pending before the Court.
No Paper, Pencils and Books…No Problem
The U.S. Department of Education, Office of Civil Rights (OCR) for Denver decided a case, Granite School District , 45 IDELR 65 (2004) which ruled that where the school failed to provide paper, pencils and books while the child was in his jail cell was not a violation of law. The reasoning of this decision was noteworthy even for students who are not in jail.
Test Protocols Are Student Records
Test protocols are the answers provided to educational testing, and explanations and interpretations of test questions even if the answers are integrated with the test question. The legal question which frequently arises is whether test protocols are "student records" and therefore, subject to parental inspection and copying. Schools almost reflexively answer "no" to this question and parents are left to fight this response. A recent hearing officer decision from Illinois, School District U-46, 45 IDELR 74 (2005) provides some sound reasoning for the parents’ position on this question.
Parents Fighting to Decline Services
The Eighth Circuit Court of Appeals has ruled in a very strange case that parents may decline IDEA services. In Fitzgerald v. Camdenton R-III School District [ Download Fitzgerald waiver case.pdf
], the school district determined that a child needed a case study evaluation on the belief that the child required special education services. The parents expressly declined services, refused consent, began home- schooling the child and privately provided special education services.
Remarkably, the school district sued to compel consent. The due process hearing officer and the district court ordered that the evaluation should go forward as soon as possible. The parents appealed to the 8th Circuit which ruled:
"Congress intends that a district may not force an evaluation under the circumstances in this case. Where a home-schooled child’s parents refuse consent, privately educate the child and expressly waive all benefits under IDEA, an evaluation would have no purpose."
Case Over Public Employee’s Rights to Whistle Blow To Be Reargued
The U.S. Supreme Court has ordered new arguments in the case Ceballos v. Garcetti. Reargument is rarely ordered. According to Court watchers this order is likely an indication that the the vote on the case was 4-4. The reargument will allow Justice Alito the opportunity to cast the deciding vote. The significance of this case is that it will establish the extent to which public employees (e.g. teachers) enjoy First Amendment protections for blowing the whistle on illegal practices occurring within their office, agency or school. This posting is a followup to an earlier posting on this case.
School Board’s Association Files Brief Opposing Recovery of Expert’s Fees
The National School Board’s Association ("NSBA") has filed an amicus [friend of the court] brief [Download NSBA amicus brief.pdf
] suppporting the school district’s contention that schools should not be required to pay expert’s fees to parents who prevail in due process. This post is a followup to an earlier one discussing the underlying case.
The “E” in IEP is More Than Grades
Schools refuse to accept the fact that "education" as used in an I’E’P is not just grades. This issue comes up in the context of arguments over whether FAPE has been provided, and whether a child should be eligible for an IEP. The argument frequently turns on whether a child who earns good or even exceptional grades can be eligible, and whether good grades insulate a district from charges that FAPE has been denied. Schools view the scope of their responsibility narrowly to include only academics, frequently to the exclusion of equally important issues such as emotional and social well being. Two new cases have squarely addressed the issue of eligibility, and an old case that I successfully tried answered the question as to FAPE.
IDEA 2004 Analyzed in Law Review Article
Professor Mark Weber of DePaul University Law School, has recently published in the University of Florida Law School Law Review [full text is only available online for a fee to Westlaw] a very useful article on IDEA 2004. His comments, analysis and research offer excellent insights, overview of the law and recent cases pertaining to IDEA 2004. Check the link for an excerpt.
Supreme Court Decides Gonzales v. Oregon
The Supreme Court decided the "Death With Dignity" case, Gonzales v. Oregon [Download Gonzales_v. Oregon.pdf]
, in favor of Oregon’s state statute that permits physician-assisted suicide. The Disability Law Blog has an excellent summary of the case and the newspaper coverage from around the country. The case was decided on the basis of federalism principles, and the lack of authority of the U.S. Attorney General to invalidate this statute. The decision does not address the fundamental clash of values between groups like Not Dead Yet which advocates against physician-assisted suicide on the basis that for the disabled a right to die will become a duty to die, and proponents of physician-assisted suicide.
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