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Current developments

Current developments in special education law with a focus on recent federal and New York cases and important legislative and regulatory developments.

8th Circuit upholds discipline for off campus speech

D.J.M. v. Hannibal Pub. Sch. Dist., ___F.3d____(8th Cir. Aug. 1, 2011): Student sent off-campus instant messages to a classmate in which “he talked about getting a gun and shooting some other students at school.” School authorities notified the police and subsequently suspended the student for the remainder of the year. The parents commenced an action claiming violations of their son’s right to free speech. The student claimed that “his messages were not serious expressions of intent to harm…that his speech was not student speech because it was online outside of school…[and] that the school's decision to suspend him was a content based restriction violating the First Amendment.” The 8th Circuit held that the suspension did not violate the student’s free speech rights because the student’s speech constituted unprotected “true threats.” The panel ruled also that “it was reasonably foreseeable that D.J.M.'s threats about shooting specific students in school would be brought to the attention of school authorities and create a risk of substantial disruption within the school environment.” The panel thus concluded that the school district was justified in disciplining the student citing to the substantial disruption standard articulated in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (school officials may discipline students for speech that occurs ”in class or out of it,” which “might reasonably [lead]school authorities to forecast substantial disruption of or material interference with school activities.”)

February-03-2012
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NYC fails to provide special education services to over 70,000 students

NYC Controller John Liu concluded after reviewing a recent audit that the New York City Department of Education failed to provide services to over one fourth of the students eligible to receive such services in the 2009-2010 school year (see article). If you are a parent of a child who has been denied or who has not received the services to which he or she is entitled, the Law Offices of H. Jeffrey Marcus may be able to help. Please feel free to contact one of our attorneys at specialedlaw@mac.com or 716-634-2753.

January-29-2012
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Failure to offer particular placement is a denial of FAPE

SRO 11-149: This arose in the context of a reimbursement case. The school district recommended a residential placement and sent out packets, but failed to follow up and failed to secure a placement prior to the start of the school year. The SRO made a point of noting that the school year starts on July 1 and that the district failed to have a placement in effect prior to July 1. Note also that the fact that the district had placed the child on home instruction while looking for a residential placement did not absolve the district of its violation. Note also that the SRO denied reimbursement to the parents finding that they had not established the appropriateness of the unilateral placement.

January-19-2012
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Timeline to appeal IHO decision runs from date of decision

SRO 11-151: Pracitioners take note. The IHO sent the decision to the attorneys and the parties two days after the date of the decision. The SRO held that the 35 day timeline for filing an appeal commenced on the date of the decision, not the date of receipt of the decision.

January-19-2012
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NY State Ed. proposes regulatory changes to impartial hearing process

This is a must read for New York State special education attorneys. As practitioners of special ed law are aware, State Ed. has heightened enforcement efforts with respect to timeline requirements for the conduct of impartial hearings. Most recently, the SRO has come down hard on a number of IHOs who have done little more than what just about every IHO does – i.e. schedule hearings on dates that work for the parties and the attorneys and grant extensions when it makes sense to do so (see SRO 11-091 and 11-112). What was ordinary course of procedure may be and certainly was perceived to have been at odds, however, with the statutory and regulatory timeline requirements. Now, State Ed. has proposed significant changes to the regulations governing the conduct of hearings. The proposed changes address:

Certification and appointment of IHOs;
Consolidation of multiple due process requests for the same student ( subsequent hearing requests assigned to same IHO if original complaint is still pending) ;
Prehearing conferences (if the proposed changes are to go into effect, these changes could dramatically restrict the scope of and evidence permitted at hearing);
Withdrawals of requests for due process hearings (withdrawal without prejudice permitted as a matter of course only prior to the commencement of the hearing or prehearing conference; resubmission of a similar hearing request within one year will result in the assignment of the same IHO)
Extensions to the timelines for an impartial hearing decision (one 30 extension would now be permitted for settlement negotiations);and
Timeline to render a decision.

There are some very positive changes proposed including:

The proposed regulations would expressly authorize IHOs to issue consent orders, something that is presently routine across New York State, but which has been fiercely resisted in NYC.
The regs governing the granting of extensions would now permit an extension to allow for negotiations as noted above. Also, the factors to be considered by the IHO in determining whether to grant the extension include “whether the delay in the hearing will facilitate other matters that will positively contribute to the child’s educational interest or well-being.”

The proposed amendments are presently before the P-12 Education Committee for discussion in January 2012 after which there will be a period of public comment. They are scheduled to be submitted for action at the April Board of Regents meeting with a proposed effective date of May 16, 2012.

January-12-2012
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