Happy Autism Acceptance Month to all!
Happy Autism Acceptance Month to all!
The 9th Circuit decision in M.C. came just 5 days after the landmark U.S. Supreme Court unanimous decision to reject the low bar for students with disabilities in Endrew F. v. Douglas County School District. The issue in Endrew F. was what kind of “educational benefit’ does the IDEA require public schools to provide to students with disabilities? Chief Justice John G. Roberts Jr. wrote: “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.” “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.”
And it seems that 9th Circuit was waiting for the decision in Endrew F. as anxiously as we were, when they issued their decision in M.C. v. Antelope Valley Union High School District, which cited to Endrew F. and touched on several other significant special education issues.
Most IDEA disputes over parent participation focus on discussions during the IEP. The M.C. case makes it clear that a parent’s right to meaningful participation does not end when the document is signed. The 9th Circuit said the IDEA is just as concerned with a parents’ right to monitor and enforce the provision of special education services the student is supposed to receive. This case centers on a procedural violation that deprived parent of the right monitor the implementation of her son’s services, and therefore, the 9th Circuit held that the procedural error amounted to a denial of FAPE. The 9th Circuit was unclear as to whether the procedural violation had resulted in educational harm to the student, however, because the Parent had been forced to file a DP complaint and incur legal fees to learn which services the student was receiving, the court stated that the legal fees amounted to substantive harm and qualified as denial of FAPE. In regards to the Parents claim that the SD had failed to develop measurable annual goals in all areas of need, the District Court cited Rowley, “that a District has no obligation to maximize a student’s potential.” However, the 9th Circuit pointed out that the Supreme Court had since held in Endrew F. “that an IEP must be reasonably calculated to allow a student to make progress appropriate in light of his circumstances.” It reversed and remanded the case for determination of whether the IEP satisfied the Endrew F. standard.
Reviewing the Decision
M.C.’s parents signed his IEP, although they did not agree the IEP provided their son with a FAPE. His parents challenged the IEP by filing for a Due Process (DP) Hearing. The Administrative Law Judge (ALJ) decided that the School District (SD) prevailed on all issues. The case was taken to U.S. District Court, where the District Court Judge went along with the ALJ’s decision because the ALJ “questioned witnesses during a three day hearing’, and “wrote a 21-page opinion that reviewed witness qualifications and culled relevant details form the record” The 9th Circuit stated that in this case, the ALJ was neither thorough nor careful, as they didn’t address all of the issues and disregarded some of the evidence. Therefore, they found that the District Court erred in deferring to the ALJ’s findings.
The 9th Circuit explained the history behind one of the Parent’s claims; the IEP document included a SD offer of 240 minutes per month of TVI services. The Parent’s DP complaint stated that, among other things, the TVI services were inadequate to meet M.C.’s needs. On the first day of the hearing, the Parent learned that the SD had unilaterally changed the IEP document from 240 minutes per month, to 240 minutes per week, because, according to the SD, they realized their mistake a week after the IEP, so they amended it. However, the SD did not notify Parents of the change. Parent’s claimed that the SD’s failure to accurately document the offer of services denied M.C. FAPE by precluding Parents from meaningfully participating in the IEP process.
The District Court found that Parents waived this issue during a procedural step that takes place before the DP Hearing, (in which the ALJ ‘restates’ the party’s issues to stream line the case they will address at hearing) so, the ALJ’s restatement of the issues omitted the adequacy of the services issue. The Parents did not know about the unilateral change to the IEP document until after the ALJ had restated the issues so they could not have raised that as a procedural violation. The District Court understood the Parent’s difficult position, but… still found they could not raise the issue.
But, the 9th Circuit issued a warning against ALJ’s reframing of the issues with this statement: “We question the wisdom of such a procedure…(meaning the restatement by the ALJ) A party bringing a due process complaint is entitled to frame the issues it wishes to present and should not be put in the difficult position of contradicting the presiding official who will soon be the trier of fact. In such circumstances, failure to object will not be deemed a waiver of any claim fairly encompassed in the complaint.” The 9th Circuit further stated, “While we haven’t previously recognized this practice in IDEA cases, it has often been applied in a variety of other agency adjudications, (then named, an IRS case, a Patent case, and a Department of Labor case) we see no reason IDEA cases should be treated differently.
The District judge agreed with the ALJ finding that the SD’s amendment to the IEP document merely corrected an unintentional error. The 9th Circuit said they failed to see how that can be so. An IEP is a contract. If the SD did not have Parent consent to amend the IEP, they have to re-open the IEP process and propose a different IEP. The unilateral amendment is a per se violation of the IDEA because it vitiates the parents right to participate at every step of the IEP drafting process. The 9th Circuit goes into great detail on this issue, finding two procedural violations, and gives the following direction: On remand, the district court shall determine whether this course of conduct was a deliberate attempt to mislead Parent or mere bungling on the part of the SD and its lawyers. (This is the greatest thing! The SD will have to go in front of the court and argue whether they were liars or idiots!)
When a student requires “a particular device or service” California law requires that the IEP “include a statement to that effect.” The 9th Circuit decision held lengthy discussion regarding the lack of specificity the SD gave regarding the AT devices being offered in the IEP and how, that gave Parent no way of confirming whether they were actually being provided. The district judge found this procedural violation didn’t seriously infringe on Parent opportunity to participate in the IEP formulation process. However, the 9th Circuit stated that the parents must be able to participate in both the formulation and enforcement of the IEP. Parents must be able to use the IEP to monitor and enforce the services that their child is to receive, when the Parent can’t FAPE has been denied, whether or not Parent had ample opportunity to participate in the formulation of the IEP. The fact that Parent had to incur unnecessary legal fees is a form of prejudice that denies parent and student an educational benefit.
In this case it was the procedural violation of failing to specify the services – in kind or duration – that made it impossible for Parents to be able assess whether the services offered or provided to student were substantively reasonable. The burden is shifted to the SD to show the services they claim the student received, were reasonable. That issue was remanded for such a showing.
The case concluded with the discussion of the District court’s application of the Rowley standard that, by, “an ‘appropriate’ education, it is clear that [Congress] did not mean a potential-maximizing education,” and, the 9th Circuit states, “Recently, the Supreme Court clarified Rowley and provided a more precise standard for evaluating whether a school district has complied substantively with the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of a child’s circumstances.” Endrew F. “In other words, the school must implement an IEP that is reasonably calculated to remediate and, if appropriate, accommodate the child’s disabilities so that the child can “make progress in the general education curriculum,” (id.) commensurate with his non-disabled peers, taking into account the child’s potential.” (I give them a standing ovation in my mind every time I read that!)
The case was then remanded so the District Court could apply the new guidance from the Supreme Court, Endrew F.
These issues are of utmost importance to students with disabilities and their families and while the Supreme Court decision was eagerly awaited at A2Z educational advocates for many reasons, of course most importantly was, the effect of this decision in our work to protect the legal and civil rights of students with disabilities and their families. We commended the Supreme Court’s unanimous rejection of the lower court’s ruling that schools only need to provide a non-trivial benefit, we are thrilled that our 9th Circuit clearly agreed, reiterated Endrew F.’s holding and further elaborated in their decision that our children and families deserve better.
Lydia X.Z. Brown defines Neurodiversity as “the belief that differing neurologies are a natural part and form of human diversity; the belief that atypical or divergent neurologies are not indicative of disease, defect, disorder, or illness; and the philosophy that neurological difference should be celebrated and accepted as natural and normal.”
Neurodiversity arose out of the Autism Rights Movement, but has since broadened to include other neurotypes that are often pathologized, such as ADHD/ADD, bipolarity, and Down’s Syndrome.
Someone who has a diagnosis of Autism may identify as neurodiverse or neurodivergent. Someone who has a typical neurology and is considered “normal” by the standards of their society is often referred to as neurotypical.
The Neurodiversity Movement fights for a number of goals, including acceptance of differences, self-determination, ending discrimination, inclusion, and equal opportunity. A common slogan, used by the Autistic Self Advocacy Network, is “Nothing about us without us.” Activists push for neurodiverse people to have active roles deciding polices that impact them, such as government initiatives, education, and research.
Lee, a Disabled, Autistic, Chronically Ill, Queer, & Trans artist and activist, writes at Access Culture about how to by an ally to disabled and neurodiverse people. Zes list includes:
Make events accessible
This goes beyond the typical accommodations associated with the ADA, like wheelchair ramps or interpreters, and includes sent-free spaces, sensory-friendly events, quiet spaces, and childcare options.
Embrace different forms of communication
Always ask before touching someone. Do not force someone to engage in communication, be it eye contact or verbal conversation.
Avoid using stereotypes
Lee writes “Never ever assume that it’s our role to educate you about our Disabilities.” This means to not expect someone with a disability to answer your questions regarding their life. Don’t rely on the information you see in pop culture, as it is often incorrect or missing big parts of the story. Expand your understanding by reading works written by neurodiverse authors (check out the list below!)
Check your ableist language
“Ableism” is defined as oppression, prejudice, stereotyping, or discrimination against disabled people on the basis of actual or presumed disability or the belief that people are superior or inferior, have better quality of life, or have lives more valuable or worth living on the basis of actual or perceived disability. —Lydia X.Z. Brown
Far too many words in the English language have origins in outdated ideas about people with disabilities and neurodivergent people. While some are obviously offensive, there are also more insidious words that don’t seem ableist at first. “Lame,” “Moronic,” and “Crazy” are all examples of ableist words. Additionally, avoid using a diagnosis as casual descriptors or insult. Saying things like “I’m so OCD” or “She’s being schizophrenic” is very harmful to individuals with these diagnoses. These phrases should be banished from our vocabulary in order to be truly inclusive and supportive.
I am a neurotypical ally, and therefore I cannot speak for neurodivergent people. It is important to listen to neurodivergent people’s expertise, experience, and stories. There is not one consensus on how to be neurodivergent, just as there is not a consensus on how to be human. There are a diversity of voices and intersectional viewpoints that incorporate race, gender rights, and social inequality. Below is a list of amazing blogs and resources that will get you started down the path of awareness and knowledge!
Once again this year members of A2Z participated as instructors in the Student Rights Initiative (SRI) at the 19th Annual COPAA Conference in Dallas, Texas. The students that participated in SRI learned about their rights under the law, how to participate and advocate for their needs at an IEP and how to lead a student-directed IEP meeting.
Students heard from attorneys that have disabilities themselves and learned how they navigated the world of education as students and how their disabilities shaped their career choices.
Students also heard from Selene Almazan, COPAA’s Legal Director, regarding important key court cases that led to the IDEA and how these cases shaped the rights available to them today.
Some of the students also had the opportunity to attend the COPAA breakout session “Maximizing the Youth Voice” with presenters Shiloh Carter and Olivia Hudson from Disability Rights Texas with fellow conference attendees and participated in a lively discussion about having students attend and advocate on their own behalf at IEP meetings.
The students also discussed how a younger student might participate in their own IEP meeting. The group determined that a younger student could introduce themselves to the IEP team so that all members were familiar with the student. Another strategy discussed was the possibility of creating a prepared statement to read to the team about the student’s own strengths and where he or she thought she might need more help or support.
At the end of the last day the students all worked together to create a sample presentation that they could use to help them create a presentation for their own IEP meeting once they returned home. SRI students also shared that they wanted to go home and share with their friends how they could advocate on their own behalf.
The SRI program was started to give students the tools they need to be self advocates early on in their educational career thereby establishing a groundwork for them to advocate on their own behalf at other stages of life, including at institutions of higher education and in the work place. This year students again left the program ready to go home and get more involved in their own educational planning.
PACIFIC PALISADES — Jane DuBovy spent 25 years practicing bankruptcy law before making a switch to educational advocacy.
“Always one step ahead of the curve,” DuBovy said, characterizing her irregular career moves. She received her master’s degree in clinical psychology from Pepperdine University before earning her law degree from the school in 1981.
She began her law career by typing out a Chapter 11 bankruptcy filing for a family member. She said it was an awkward beginning but after that first filing, she went on to specialize in Chapter 7, 11 and 13 bankruptcy. At the start, “I still had to hire law clerks from Pepperdine because I didn’t know what … I was doing,” she said.
She successfully ran her practice for 20 years when in 1997, DuBovy learned her son was diagnosed with autism.
“When I got the diagnosis of my son … it was so scary to me,” DuBovy said. Read more
I was nervous before my interview. Up until this point, my interactions with people with autism have been among either children in a treatment setting or the speakers in an academic setting. When Casey Reilly first walks up, one of the first things he says is “I’m sarcastic and I have a weird cynical-esque view of Autism.” Then the interview began. Instead of an interview, it felt like I was just talking to a person, who happened to have Autism, about his life. I often times forgot about the questions I had meticulously prepared a day previously. Instead I just listened to what he had to say and became extremely interested in his life as whole – the aspects of his life directly affected by Autism, indirectly affected or not all. In the middle of the conversation I asked him how he identified (as an Autistic person, a person with Autism, on the spectrum, etc.), because we had discussed it in class and I was curious. His answer surprised me because it’s not a perspective that we’ve been exposed to in class or seen in the literature; he said he identified himself as simply a person. Most of what’s written about Autism is by people who are self-advocates or are very expressive and passionate about their diagnosis. In other words, they consider Autism a salient part of their identity. However, there isn’t much writing about those who have Autism, it’s a part of their lives, but the Autism doesn’t necessarily define who they are. Casey was able to give me insight into this perspective. He admits that Autism has influenced who he is and his interests, but it doesn’t define him. Read more
Recently, I’ve come across or have been sent, autism movies and stories about romance for the person diagnosed with autism. It’s become a much larger discussion because of the number of young adults who were diagnosed early, received many wonderful interventions that helped them access neurotypicals (non-autistic diagnosed) and now want the ultimate in relationships, a person to love and to love them. This is a giant leap from not only society’s expectations for someone with this diagnosis, but also an enormous area of concern and hope for us parents of young adults on the spectrum. The following link is just one such movie that looks into the world of love through autism eyes.
School Districts are required to pay attention to all students and that includes those with possible mental health needs. Instead of compassion often these students are ignored or they lash out w/ behaviors that causes them to be suspended or expelled. Guess what, under the law, these students are entitled to assessments to determine if they need mental health services so they can access their education. press on the link below to see the latest information on this issue.
My client, Janet Grillo, has made another wonderful movie that addresses living with a child on the autism spectrum disorder. As a fellow Mom w/ a son diagnosed w/ ASD, i can relate to many of the experiences portrayed in this film. You’ll have a chance to see it on Saturday, April 23rd on the Lifetime Channel. Tune in or record it to watch later. Just don’t miss it.