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Educational Rights and Realities of Blind Students Educational Rights and Realities of Blind Students

Educational Rights and Realities of Blind Students - PowerPoint Presentation

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Educational Rights and Realities of Blind Students - PPT Presentation

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

child braille students blind braille child blind students iep disabilities blindness children section school provision law technology idea assessments

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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

Slide2

Carlton 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

Slide3

Anna 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

Slide4

Eligibility 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

Slide5

Importance 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

Slide6

Special 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

Slide7

Behavior 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

Slide8

Limited 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

Slide9

Braille 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”

Slide10

Braille 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

Slide11

More 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

Slide12

Communication 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)

Slide13

Assistive 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”

Slide14

Current/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

Slide15

Parentally-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

Slide16

Public 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)

Slide17

Endrew

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)

Slide18

Legacy 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

Slide19

Fry

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

Slide20

Legacy 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

Slide21

IEP 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?

Slide22

Accessibility 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

Slide23

Post-secondary World

Disassociation from “individualism”

Acknowledgement of institutional responsibility

Reality of lack of universal instructor understand of needs/buy-in

Increased student responsibility

Outcomes

Slide24

Areas 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

Slide25

Areas 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.

Slide26

Questions

Slide27

Contact 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