2019 JACOBUS TENBROEK DISABILITY LAW SYMPOSIUM NFB Jernigan Institute Baltimore MD 10001100 am Friday March 29 2019 Carlton Anne Cook Walker Owner of CAC Walker Attorney at Law Owner of BEARBlindness Educational and Advocacy Resources ID: 912779
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Slide1
Educational Rights and Realities of Blind Students
2019 JACOBUS TENBROEK DISABILITY LAW SYMPOSIUM
NFB Jernigan Institute, Baltimore, MD
10:00-11:00 a.m.
Friday, March 29, 2019
Slide2Carlton Anne Cook Walker
Owner of C.A.C. Walker, Attorney at Law
Owner of BEAR—Blindness Educational and Advocacy Resources
President, National Organization of Parents of Blind Children, a proud division of the National Federation of the Blind
Certified Teacher of Blind Students
Slide3Anna Catherine Walker
High school senior, Commonwealth Charter Academy
Academics taught through a virtual platform
Related services received in person at home
Attended brick-and-mortar public schools through the end of tenth grade
Dual-enrolled at Harrisburg Area Community College
On campus classes at both the Harrisburg and York campuses
Online classes as well
President, Capital Chapter of the National Federation of the Blind of Pennsylvania
Vice-president of the Pennsylvania Association of Blind Students
Slide4Eligibility for Blind Students
Definition
Varying state regulations and local implementation
May 22, 2017 Dear Colleague Letter on this issue
Despite this guidance, state regulations and local implementation continue to vary
Slide5Importance of Accurate and Complete Identification of All Areas of Disability
Assessment tools must meet IDEA requirements
In the blindness field (also inaccurately and unfortunately called the “vision” field), the most commonly-used assessments do not meet IDEA requirements
Valid assessments exist, but many educators do not use them
When other disabilities are present, blindness is often not identified
Students who are twice exceptional, thrice exceptional, or having even more exceptionalities (both disabilities and giftedness) often “fall through the cracks”
Accuracy of identification DOES matter
IDEA requirement
Implementation of the Braille Provision dependent on VI/B identification
Slide6Special Factors
20 U.S.C. section 1414 (d)(3)(B)(
i
-v)
Must be considered at EVERY IEP meeting
Behavior impeding the learning of self or others
Limited English proficiency
Braille provision
Communication needs
Assistive technology
Slide7Behavior impeding the learning of self or others
“in the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior” [20 U.S.C. section 1414 (d)(3)(B)(
i
)]
Big warning flag!
Sometimes used to pigeonhole children and then ignore their real needs
For students with sensory disabilities, like blindness, IEP inadequacy can cause behavioral problems
Dear Colleague Letter of August 1, 2016
We must look at the adequacy of the IEP and its implementation
Must address behavior in the meantime
However, data regarding IEP implementation must be taken and reviewed
Slide8Limited English proficiency
“in the case of a child with limited English proficiency, consider the language needs of the child as such needs relate to the child’s IEP” [20 U.S.C. section 1414 (d)(3)(B)(ii)]
Blind children with limited English proficiency often fall through the cracks
Double whammy of low expectations
Often, instruction in blindness skills is delayed for years
Parents may also resist blindness identification
Help them learn about blindness and the benefits of blindness skills
Contact members of the National Federation of the Blind in your area to provide mentorship to both the parents and the child
Slide9Braille provision
“in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless
the IEP Team determines
, after an
evaluation of the child’s reading and writing skills, needs, and appropriate reading and writing media
(including an
evaluation of the child’s future needs for instruction in Braille or the use of Braille
), that instruction in Braille or the use of Braille
is not appropriate for the child
” [20 U.S.C. section 1414 (d)(3)(B)(iii)]
ONLY available to students identified as having the disability of “visual impairment, including blindness.”
Braille provision does not apply to children identified as having:
Multiple Disabilities
Traumatic Brain Injury
Other Health Impairment
Deafness
Intellectual Disabilities
Braille provision does not necessarily even apply to children identified as having “Deaf-blindness”
Slide10Braille Provision, continued
ONLY available to students identified as having the disability of “visual impairment, including blindness.”
Braille provision does not apply to children identified as having disabilities which are often co-morbid with blindness and low vision, such as:
Multiple Disabilities
Traumatic Brain Injury
Other Health Impairment
Deafness
Intellectual Disabilities
Braille provision does not necessarily even apply to children identified as having “Deaf-blindness”
Identification as a child with “visual impairment, including blindness” is vital
Slide11More on the Braille Provision
June 19, 2013 Dear Colleague letter reiterated plain language of the statute
Literacy/Learning Media Assessments
Law calls for literacy assessments, not learning media assessments
Only one meets the dictates of the law: National Reading Media Assessment (NRMA)
More commonly-used Learning Media Assessment (LMA) not appropriate
Highly subjective; not standardized
Not validated, despite being in existence for more than three decades
Uses improper legal standard (created before final Federal regulation passed)
Functional Vision Assessments
Not required by federal law, but some states do require them
A cause of concern—seeks to “maximize” vision—even when doing so limits the child
Slide12Communication needs
“consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child’s language and communication needs, opportunities for direct communications with peers and professional personnel in the child’s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child’s language and communication mode” [20 U.S.C. section 1414 (d)(3)(B)(iv)]
Many districts are “checking” this box for EVERY student receiving any level of speech therapy
Meeting these needs especially important for blind children
Many rely on sound more than non-disabled peers
Be careful to limit over-reliance on audio (a real risk for blind students)
Slide13Assistive technology
“consider whether the child needs assistive technology devices and services” [20 U.S.C. section 1414 (d)(3)(B)(v)]
Assistive technology definition is very comprehensive
Without qualification, ALL blind/low vision students should be using assistive technology
All assistive technology used should be documented in the IEP
Under the federal definition, may include assistive technology instruction for parents, family members, school staff, outside therapists, etc. in the IEP as an “Assistive Technology Service”
Slide14Current/Present Levels
THE most important part of any IEP
If we don’t know where we are, how can we get going
Again, assessments must meet IDEA guidelines
Valid, administered appropriately
Unbiased, especially for disability
Again, ALL areas must be assessed
Keep FAPE in mind
To the maximum extent possible, student should be on par with non-disabled peers
Information about additional needs (Braille instruction, etc.) must be included also
Note that “outside factors” such as time, day of week, etc. may impact assessments and student performance
Slide15Parentally-placed Private and Homeschooling
Federal law
Private school: Not much protection
Home school: No protection
Focus is FAPE: Free Appropriate PUBLIC Education
Trend seems to be reduction in services provided
Some states provide additional resources
By law (in Kansas, homeschools are considered private schools)
By custom in the district
As a way to keep a high-needs child out of the public education system
Also, note that children with blindness (legal or functional) qualify for a stipend of money from the federal government called “Federal Quota” funds
Only for students in “the public and private nonprofit institutions in which blind pupils are educated”
State homeschool law can become quite important
Slide16Public Charter Schools
Offer a new opportunity for students with disabilities
Availability based on what home state offers
Brick-and-mortar
Cyber (online, distance)
Public charter schools MUST follow federal law
IDEA
Section 504
Some continue to claim a right to exclude students with disabilities
Rejected by the U.S. Department of Education (both OSERS And OCR)
December 28, 2016 Dear Colleague Letter and accompanying FAQs (one for IDEA and one for Section 504)
Slide17Endrew
Endrew
F. v. Douglas County School District,
580 U.S. ___; 137 S. Ct. 988; 197 L. Ed. 2d 335 (2017)
Ruling on Free Appropriate Public Education
We were a bit concerned about this case
Court did not overrule
Rowley
, but reversed the lower court—Why?
“When all is said and done, a student offered an educational program providing "merely more than
de minimis
" progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly ... awaiting the time when they were old enough to ‘drop out.”’
Rowley,
458 U.S., at 179
,
102
S.Ct
. 3034
(some internal quotation marks omitted). The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.”
Rejects parents’ argument: “FAPE is ‘an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.’”
An 8-0 decision
Hon. Neil Gorsuch was not yet confirmed
He ruled differently on a similar case (
Thompson R2-J School v. Luke P., et al
, involving another child with autism)
Slide18Legacy of Endrew
Maybe, FAPE means something more than it did after
Rowley
Still, state Hearing Officers and school district attorneys are minimizing the impact of
Endrew
Will likely make more “hay” at lower levels
Pre-IEP communications
IEP meetings
Must craft arguments carefully
More than ever, utilize language from to
Endrew
decision
Illustrate the possibilities
Raise expectations of students—and of school personnel
Slide19Fry
Fry v. Napoleon Community Schools,
580 U.S. ___; 137 S. Ct. 743; 197 L. Ed. 2d 46 (2017)
Exhaustion requirements of IDEA
“One clue to the gravamen of a complaint can come from asking a pair of hypothetical questions.
First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school?
Second, could an adult at the school have pressed essentially the same grievance?
When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject.
But when the answer is no, then the complaint probably does concern a FAPE. A further sign of the gravamen of a suit can emerge from the history of the proceedings. Prior pursuit of the IDEA’s administrative remedies may provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.” Pp. 13–18
Slide20Legacy of Fry
A potentially larger impact
Must guard against claims of “artful pleading”
Nevertheless, non-instructional (those which potentially impact parents and staff) issues should fall squarely within the purview of Section 504
Braille materials
Accessible electronic materials
Accessible software
Accessible technology
Slide21IEP versus Section 504
For years, students have been told how lucky they are to have IEPs
They have been warned about the “loss of IEP protections” waiting for them in the post-secondary environment
Are these warnings valid?
Slide22Accessibility Under IEP vs. 504
Dual enrollment student
High school classes
Brick-and-mortar
Cyber Charter
Post-secondary classes
Community College classes
Accessibility
Major differences
Responsibility of the student
Responsibility of the institution
Slide23Post-secondary World
Disassociation from “individualism”
Acknowledgement of institutional responsibility
Reality of lack of universal instructor understand of needs/buy-in
Increased student responsibility
Outcomes
Slide24Areas of Relative Strength
Institutional understanding of Section 504 responsibilities
Institutional development of accessibility services
Focus on accessibility of information
Relieved from instructional component of accessibility
Ability to rely on standardized criteria for accessibility
Slide25Areas Where Growth Is Still Needed
“Low incidence” accessibility needs still must be addressed
“Difficult” accommodations still must be addressed
“Expensive” accommodations still must be addressed
“This” is everyone’s job, regardless of status, tenure, field, etc.
Slide26Questions
Slide27Contact us
Carlton Anne Cook Walker
AttorneyWalker@gmail.com
Cell: (717) 658-9894 (voice or text)
101 Kelly Drive, Carlisle, PA, 17015
Anna Catherine Walker
MissAnnaWalker@gmail.com
Cell: (717) 658-9239 (voice or text)
101 Kelly Drive, Carlisle, PA, 17015