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Special Ed 101
Legal Responsibilities of Educators
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<blockquote data-quote="Sheila" data-source="post: 124200" data-attributes="member: 23"><p><strong>C. Promotion</strong></p><p>In the special education context, disputes have often arisen over the subject of promotion, in particular, over the practice known as "social promotion". Parents and students have frequently argued on both sides of the equation; that is, they may argue for promotion when the district does not believe that the student has earned it, and they may argue against promotion when the district believes that promotion is in the student's best interest, whether because of academic or social factors, or a combination thereof. The key here is for the district, via the classroom teachers, to provide the student with the opportunity to earn promotion, and to carefully consider and document the reasons behind the district's decision to recommend for or against promotion. Even if the district gives in to pressure from a parent in determining whether or not to promote, the basis for the district's recommendation should be carefully document.</p><p><em>Hernando (FL) County School</em>, (17) is a case demonstrating this debate and a district that acted properly under the circumstances. This case involved a student with diabetes and asthma. After an evaluation, the district determined that he did not have a specific learning disability. In his fourth grade year, student had a Section 504 plan, which focused on the effects the student's disabilities had on his academic performance. The district recommended against promotion to 5th grade because of academic deficiencies, but relented upon parent's insistence. In the 6th grade, student had 36 unexcused absences and failed five classes. The school refused to promote the student to 7th grade. His parent contended absences were due to the student's diabetes, and that failure to promote was therefore discriminatory. The hearing officer ruled that the district did not discriminate based on disability when it failed to promote. The officer determined, based upon the student's record and teacher testimony, that the decision was based on the student's failure to master the subject matter. Given the accommodations that the district had provided, including a liberal policy for allowing the student to make-up missed work, the student's performance not hampered by any failure of district to accommodate his needs.</p><p> </p><p style="text-align: center"><strong>Return to Table of Contents</strong></p><p></p><p><strong>VI. Maintaining Professionalism and Reducing Risks under the IDEA</strong></p><p><strong>A. Claims of Retaliation</strong></p><p>Parents have frequently complained that school personnel have taken adverse action against a student in response to a parent's decision to assert his or her rights under the IDEA or other legislation affording rights to parents of disabled students. This concept has become known as "retaliation" in the case law. While it would be a rare case for an educator to intentionally take adverse action against a student in retaliation for assertion of his or her legal rights, the focus is not simply the educator's intent, but rather, how the educator's action is perceived in hindsight. OCR has developed a five-part test to determine whether a district has engaged in prohibited retaliation. It may be useful for you to consider the steps of this test before taking action with respect to a student who is involved in due process proceedings or whose parents have filed a complaint with OCR.</p><p>The five questions you should consider are:</p><p>(1) has the parent/student engaged in a protected activity?</p><p>(initiated due process proceedings, filed suit in court, filed a complaint with OCR)</p><p>(2) is the district or its agents aware of the protected activity?</p><p>(how and when did district receive notice, is there a rumor or verified action)</p><p>(3) will the adverse action against the student occur at the same time as, or after, the parent/student engaged in the protected activity?</p><p>(4) will a neutral third-party decide there is a causal relationship or connection between the protected activity and the adverse action?</p><p>(5) can the district offer legitimate, nondiscriminatory reasons for the adverse action, which a neutral third-party will not consider to be pretextual?</p><p><strong>B. Avoiding Allegations of Retaliation: Two Examples</strong></p><p>In the case of <em>Spencer County (KY) School District</em>, (18) the parent of home-schooled child, who was receiving some special reading and writing instruction at a district school, alleged that district retaliated against her for filing a complaint, by banning her from the school and refusing to let her volunteer in son's class. The school principal had denied the parent's request to volunteer in her son's classroom, because he had received complaints from school staff regarding the parent's failure to adhere to student confidentiality rules. Under the five part test for retaliation, the hearing officer found no causal relationship existed between the principal's action and the filing of the complaint. The school had documented the complaints regarding the parent's conduct, so there was sufficient evidence to establish that the school's action was consistent with school's rules, and that the school acted for legitimate, non-discriminatory, non-pretextual reasons.</p><p>In another recent case, <em>Forest Grave (OR) School District 15</em>, (19) the parent of a child suffering from post-traumatic stress disorder claimed a district retaliated against her for insisting that teachers follow her daughter's Section 504 Plan. The parent claimed that a principal canceled a parent-requested meeting with teachers and that the superintendent used sensitive information about the student's hospitalization and emotion condition to intimidate the parent. The hearing officer determined that the district did not retaliate against the parent, because the principal had provided an acceptable reason for canceling meeting, relating to the inability of all necessary parties to attend. Also, the superintendent testified that his reasons for questioning the parent about the student's hospitalization and recovery were not for the purpose of discouraging parent from pursuing the student's rights, or in retaliation against the parent. His actions were justified by his desire to see that school staff was informed sufficiently to provide student the services the student would need upon return to school.</p><p><strong>C. Duty to Communicate with Parent/Guardian</strong></p><p>Often problems arise with special education students because parents or guardians had not been fully informed by school personnel, or did not receive timely notice of an event or issue related to the student's academic progress or behavior. Open lines of communication on a regular basis are the best strategy for avoiding complaints or litigation.</p></blockquote><p></p>
[QUOTE="Sheila, post: 124200, member: 23"] [B]C. Promotion[/B] In the special education context, disputes have often arisen over the subject of promotion, in particular, over the practice known as "social promotion". Parents and students have frequently argued on both sides of the equation; that is, they may argue for promotion when the district does not believe that the student has earned it, and they may argue against promotion when the district believes that promotion is in the student's best interest, whether because of academic or social factors, or a combination thereof. The key here is for the district, via the classroom teachers, to provide the student with the opportunity to earn promotion, and to carefully consider and document the reasons behind the district's decision to recommend for or against promotion. Even if the district gives in to pressure from a parent in determining whether or not to promote, the basis for the district's recommendation should be carefully document. [I]Hernando (FL) County School[/I], (17) is a case demonstrating this debate and a district that acted properly under the circumstances. This case involved a student with diabetes and asthma. After an evaluation, the district determined that he did not have a specific learning disability. In his fourth grade year, student had a Section 504 plan, which focused on the effects the student's disabilities had on his academic performance. The district recommended against promotion to 5th grade because of academic deficiencies, but relented upon parent's insistence. In the 6th grade, student had 36 unexcused absences and failed five classes. The school refused to promote the student to 7th grade. His parent contended absences were due to the student's diabetes, and that failure to promote was therefore discriminatory. The hearing officer ruled that the district did not discriminate based on disability when it failed to promote. The officer determined, based upon the student's record and teacher testimony, that the decision was based on the student's failure to master the subject matter. Given the accommodations that the district had provided, including a liberal policy for allowing the student to make-up missed work, the student's performance not hampered by any failure of district to accommodate his needs. [CENTER][B]Return to Table of Contents[/B][/CENTER] [B]VI. Maintaining Professionalism and Reducing Risks under the IDEA A. Claims of Retaliation[/B] Parents have frequently complained that school personnel have taken adverse action against a student in response to a parent's decision to assert his or her rights under the IDEA or other legislation affording rights to parents of disabled students. This concept has become known as "retaliation" in the case law. While it would be a rare case for an educator to intentionally take adverse action against a student in retaliation for assertion of his or her legal rights, the focus is not simply the educator's intent, but rather, how the educator's action is perceived in hindsight. OCR has developed a five-part test to determine whether a district has engaged in prohibited retaliation. It may be useful for you to consider the steps of this test before taking action with respect to a student who is involved in due process proceedings or whose parents have filed a complaint with OCR. The five questions you should consider are: (1) has the parent/student engaged in a protected activity? (initiated due process proceedings, filed suit in court, filed a complaint with OCR) (2) is the district or its agents aware of the protected activity? (how and when did district receive notice, is there a rumor or verified action) (3) will the adverse action against the student occur at the same time as, or after, the parent/student engaged in the protected activity? (4) will a neutral third-party decide there is a causal relationship or connection between the protected activity and the adverse action? (5) can the district offer legitimate, nondiscriminatory reasons for the adverse action, which a neutral third-party will not consider to be pretextual? [B]B. Avoiding Allegations of Retaliation: Two Examples[/B] In the case of [I]Spencer County (KY) School District[/I], (18) the parent of home-schooled child, who was receiving some special reading and writing instruction at a district school, alleged that district retaliated against her for filing a complaint, by banning her from the school and refusing to let her volunteer in son's class. The school principal had denied the parent's request to volunteer in her son's classroom, because he had received complaints from school staff regarding the parent's failure to adhere to student confidentiality rules. Under the five part test for retaliation, the hearing officer found no causal relationship existed between the principal's action and the filing of the complaint. The school had documented the complaints regarding the parent's conduct, so there was sufficient evidence to establish that the school's action was consistent with school's rules, and that the school acted for legitimate, non-discriminatory, non-pretextual reasons. In another recent case, [I]Forest Grave (OR) School District 15[/I], (19) the parent of a child suffering from post-traumatic stress disorder claimed a district retaliated against her for insisting that teachers follow her daughter's Section 504 Plan. The parent claimed that a principal canceled a parent-requested meeting with teachers and that the superintendent used sensitive information about the student's hospitalization and emotion condition to intimidate the parent. The hearing officer determined that the district did not retaliate against the parent, because the principal had provided an acceptable reason for canceling meeting, relating to the inability of all necessary parties to attend. Also, the superintendent testified that his reasons for questioning the parent about the student's hospitalization and recovery were not for the purpose of discouraging parent from pursuing the student's rights, or in retaliation against the parent. His actions were justified by his desire to see that school staff was informed sufficiently to provide student the services the student would need upon return to school. [B]C. Duty to Communicate with Parent/Guardian[/B] Often problems arise with special education students because parents or guardians had not been fully informed by school personnel, or did not receive timely notice of an event or issue related to the student's academic progress or behavior. Open lines of communication on a regular basis are the best strategy for avoiding complaints or litigation. [/QUOTE]
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