Social JusticeAccording to Furman and Gruenewald (2004) social justice is a critical-humanistic role for school leaders. The critical-humanistic role is one that (a) assumes that schools are inherentl

Chapter 9 Children with Disabilities (IDEIA)

Introduction

The Individuals with Disabilities Education Improvement Act of 2004 (IDEIA, P.L. 108–446, 2004) is premised on the assumption that “disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society” [IDEIA 2004 § 601 (c) (1)]. According to Congressional findings before the enactment of special education law in 1975, more than half of disabled children were not receiving an appropriate education, and more than 1 million children with disabilities were excluded entirely from public schools across the nation [§ 601(B) (C)]. Special education law is a laudable attempt to rectify the inequalities suffered by children with disabilities. Unfortunately, disputes between parents and school districts concerning special education make it one of the most litigated educational law issues school leaders face. However, school leaders are mandated by federal and state law and the ISLLC Standards to understand and equitably apply the legal rights of disabled children and their parents. This chapter is an attempt to communicate a basic understanding of IDEIA 04.

Focus Questions

1. Under what circumstances is it “fair” to treat similar students differently?

2. When may it be justifiable for some students to receive benefits denied to other students?

3. What are the major principles of IDEIA?

4. How is the balance maintained between the need for orderly schools and the rights of children with disabilities?

Key Terms

1. Behavioral intervention plan (BIP)

2. Child find

3. Free and appropriate public education (FAPE)

4. Functional behavioral assessment (FBA)

5. IEP team

6. Individualized Education Program (IEP)

7. Least restrictive environment (LRE)

8. Manifestation determination

9. Mediation

10. Positive behavioral support (PBS)

11. Procedural safeguards

12. Supplemental (related) services

13. Zero reject

Case Study When Good Parents Go Bad

Justin Jones sat quietly in the chair, a smug look on his face. Justin was an eighth-grade student at Montclair Middle School (MMS). As MMS principal, Marina Marshall had assumed the lead role in the Justin Jones case for several reasons. First, it was only October, and Justin had proven himself to be a real challenge. Second, Justin’s parents had become more confrontational over the past year. Last, but not least, Justin was an IEP student.

Justin had apparently pushed Mr. Slaton, the industrial arts teacher, to the breaking point again on Friday. Marina’s assistant principal, Johnny Sambothe, had suspended Justin for the remainder of Friday. When Marina heard the news, she had immediately called Justin’s parents to schedule this meeting.

As Marina looked at Justin and his parents, she tried to recall all that she had learned about Justin over the past 2 years. Justin had started school at a district elementary school and, by all accounts, had done quite well. In fact, there was little question that he was a very bright young man. Before his fourth-grade year, his parents had requested that Justin be reassigned from one fourth-grade teacher to one more familiar to his parents. As was his practice, the elementary principal had refused to move Justin. In response, Justin’s parents had removed him from public school and paid tuition for him to attend a local private school. From what Marina could ascertain, things had gone well for Justin until he was allegedly sexually abused by his male fifth-grade teacher. It had taken some time for his parents to determine the cause of his change in behavior, but as soon as Justin disclosed his secret, they had removed him from the private school and placed him back in the public school program.

Unfortunately, Justin’s challenging behavior continued. After extensive testing and evaluation, Justin was determined to be emotionally disturbed. An IEP was developed in cooperation with Justin’s parents, and he had easily progressed to the middle school. From this point on, Justin had become an even bigger problem, especially with male teachers. Mr. Slaton was no exception. In fact, Justin seemed to take particular pleasure in causing Mr. Slaton to “self-destruct.”

Mr. Slaton was an industrial arts teacher who still conformed to the “dirty shop” philosophy. Marina had grown to appreciate the hands-on practical approach that Mr. Slaton brought to the school, and she had insisted that as many students as possible be scheduled into Mr. Slaton’s classes. Mr. Slaton had informed Marina that Justin had passed all of his safety exams. But, he “could not trust Justin not to misuse the power tools.” Consequently, Mr. Slaton and Justin were continually at odds over one thing or another in the class. Mr. Slaton believed that Justin presented a danger to others in the class and that he should be removed. Justin’s parents believed that he should remain in the class and that it was Mr. Slaton who had the problem, not Justin. In fact, his parents made their point very clear when Mrs. Jones, tears streaming down her face, said, “We’re tired of Justin being singled out by your teachers. This is not Justin’s fault. If that elementary principal had been more receptive, none of this would have happened. We’ve cooperated with this school district, and what has it gotten us? We want Justin included in regular classes and to lead a normal life. If Mr. Slaton has a problem, that’s just too bad. If Justin is removed from the class, you’ll hear from our attorney!”

Leadership Perspective

Conflict over children with disabilities is particularly challenging for school leaders. On one side, children with disabilities have well-defined legal rights outlined in the Individuals with Disabilities Education Improvement Act (IDEIA, 2004). At the same time, the 2004 reauthorization of IDEIA emphasizes parental involvement in the decision-making process and the inclusion of children with disabilities in the regular curriculum. School leaders are charged by law and ISLLC Standard 2A to protect these rights. Unfortunately, as the case study “When Good Parents Go Bad” illustrates, disputes do occur. According to the United States General Accounting Office (USGAO, 2003), disagreements between school districts and parents generally occur because parents believe the school has not implemented the Individualized Education Program (IEP) as agreed, over the choice of instructional strategies, or over placement. Failure to adequately address these disputes can be costly. In fact, IDEIA 04 specifically abrogates state immunity (Eleventh Amendment) for violating the act [Sec. 604 (a)].

ISLLC Standard 2A

On the other side, school leaders are challenged to promote and protect the welfare and safety of students and staff. These two interests sometimes collide as in the case study “When Good Parents Go Bad.” The problem, of course, is that the enforcement of one requirement sometimes seems to violate the other. For example, in the case study, Marina is faced with the rights of Justin Jones to an “appropriate education” in the “least restrictive environment,” parental insistence that Justin be included in the regular industrial arts program, and the needs of Mr. Slaton to provide order and safety in the classroom.

ISLLC Standard 3C

It is understood that Marina cannot unilaterally make changes in Justin’s Individualized Education Program (IEP). Rather, she must work with Justin’s IEP team and, of equal importance, with Justin, Justin’s parents, and Mr. Slaton to reach an equitable solution to the conflict. The importance of this leadership role is reflected in ISLLC Standards 2, 3C, and 4C. Standard 2 emphasizes a culture of collaboration and trust, the supervision of instruction, and the maximization of time spent on quality instruction. Standard 3C calls for school leaders to promote and protect the welfare and safety of students and staff. Standard 4C calls for the development of positive relationships with families and caregivers. Marina is modeling these standards in her efforts to proactively communicate with Justin’s parents, collaborate with Mr. Slaton’s efforts to maximize time spent on quality instruction, and promote a safe environment for Justin and Mr. Slaton. Before making these efforts, however, Marina should be familiar with the mandatory requirements of IDEIA, the rights of Justin’s parents, and the options available to her. In addition, her decisions should reflect an understanding of the moral and legal consequences of her decision. But what are Justin’s rights? What ethical concepts should guide Marina’s decision making? This chapter attempts to answer these questions.

ISLLC Standards 2, 3C and 4C

ISLLC Standard 5D

Children with Disabilities and Equity

Equity can be defined as basic fairness. Fairness, of course, is like beauty: always in the eyes of the beholder. When is it “fair” to treat similar students the same? When is it “fair” to treat similar students differently? When is it justifiable that some students receive benefits denied to other students? These questions are difficult. Some parents, teachers, and school leaders seemingly resent the fact that some children with disabilities take disproportionate time and financial resources and receive more supplemental services than other, “regular” children. It must be remembered however, that before the P.L. 94–142 legislation in 1975, millions of children with disabilities were not receiving a quality education. In fact, many of these students were systematically excluded from the public education system. Many more were isolated from the mainstream of school life and were not educated with their peers [IDEIA 04 § 601 (c) (2)]. Consequently, the laudable goal of special education legislation over the past 40 years has been to ensure that all children with disabilities have available to them a free and appropriate public education (FAPE) that emphasizes special education services designed to meet their unique needs and prepare them for further education [§ 601 (d) (1) (A)]. Central to the FAPE provision is the concept that, to the “maximum extent possible,” children with disabilities should be educated with children who are not disabled, in the least restrictive environment (LRE).

At its core, IDEIA is about equality and fraternity. As illustrated in the previous chapter, these concepts are considered in the second of Rawls’s principles of justice:

• Principle Two: Social and economic inequities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least-advantaged members of society (the difference principle). (pp. 42–43)

Rawls’s second principle consists of two conditions under which inequalities may exist. The first condition of the second principle considers fair equality of opportunity. The second condition of the second principle considers when inequalities are justified.

Fundamental to Rawls’s first condition is the idea of a school community where all participants have a fair equality of opportunity. Fair equality means not only that opportunities such as access to the regular curriculum should be open in the formal sense, but that all members should have a fair chance to attain and benefit from these opportunities. That is, all students, regardless of disability, should have an equal opportunity for a free and appropriate public education available to any other student in the school community. The second condition of the second principle views inequalities to be justifiable as long as these inequalities are to the greatest benefit of the least advantaged members of the school community (difference principle). The difference principle is subordinate both to the first principle of justice (guaranteeing the equal basic liberties) and to the first condition of the second principle (fair equality of opportunity). The difference principle is designed to apply within the background of the school community in which these prior conditions are already satisfied.

The Individuals with Disabilities Education Act (IDEA) was first enacted in 1975 as P.L. 94–142 (Education for All Handicapped Children Act) and amended by Congress in 1978, 1986, 1990, and 1997 (P.L. 105–17) as the Individuals with Disabilities Education Act. Most recently, IDEA has been amended as the Individuals with Disabilities Education Improvement Act of 2004 (P.L. 108–446). IDEIA outlines six major principles to achieve the goals of equality of opportunity and the justification of inequalities for all children with disabilities (Boyle & Weishaar, 2001; Turnbull, Wilcox, Turnbull, Sailor, & Wickham, 2001). These six principles include (1) zero reject/child find, (2) Non-discriminatory evaluation, (3) appropriate education (IEP), (4) least restrictive environment, (5) procedural due process, and (6) parent and student participation. These principles of IDEIA are interwoven throughout the law and serve as a framework for a review of basic legal principles of IDEIA.

IDEIA and Children with Disabilities

IDEIA defines child with a disability as a child with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbances, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities [§ 602 (A) (i)]. A specific learning disability is defined as

a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. [§ 601 (30) (A)]

IDEIA 04 recognizes that the goals of education for children with disabilities can be made more effective by the inclusion of several factors. Some of these factors (selected by the author; for a full review, see Sec. 601 of IDEIA 04) include:

• Having high expectations for the children and ensuring their access to the general curriculum in the regular classroom to the maximum extent possible

• Strengthening the role and responsibility of parents and family by ensuring meaningful opportunities to participate in the education of their child

• The use of scientifically based instructional practices

• Whole-school approaches for scientifically based early reading programs, positive behavioral interventions and supports, and early intervention services

• The use of technology including assistive technology devices and assistive technology services to maximize accessibility to the general curriculum

• Parents and schools need expanded opportunities to resolve disagreements in a positive and constructive way

• The federal government (and presumably state agencies and local school districts) must recognize the growing needs of an increasingly diverse society [§ 601(5-10) (A)-(F)] [Italics added]

Zero Reject/Child Find

Zero reject is a rule against exclusion of special education students regardless of the nature or degree of their disabilities. Child find requires state education agencies (SEAs) and local education agencies (LEAs) to initiate procedures to locate qualified children who are not being served and notify parents of available services [§ 612 (3)]. IDEIA 04 expands the concept of zero reject further to include children who are homeless or are wards of the state. The child find provisions related to children with disabilities placed by their parents in private schools include several new provisions, including “(a) the child find process shall ensure the equitable participation of privately placed children, and (b) the cost of carrying out this task shall not be considered in determining compliance with the child find provisions” [§ 601 (A) (ii) (II) (IV)]. In short, IDEIA 04 places an affirmative duty on the part of SEAs and LEAs to find, identify, and provide services to qualifying children within the state or district regardless of placement or cost.

Nondiscriminatory Evaluation

A Non-discriminatory evaluation is a fair evaluation to determine whether or not a student has a disability, and, if so, the placement and services required to meet the needs of the student. This principle provides for the inclusion of parents in the evaluation process and the rights of parents to require and obtain evaluations by qualified professionals not employed by the school district. This process is often referred to as the “eligibility determination” stage (Boyle & Weishaar, 2001). Specific procedures for eligibility, summarized from § 614 of IDEIA 04, include:

1. Request for evaluation. This may be initiated by the parent, SEA, or LEA.

2. Parental consent. Before beginning evaluation, the school or district must obtain written consent to proceed from the child’s parents. Evaluation must be completed within 60 days of consent unless the parent repeatedly fails to produce the child for the evaluation. It is possible to pursue evaluation consent through mediation or a due-process hearing if the parent refuses to consent to the evaluation.

3. Parental involvement. Parents or guardian and a team of “qualified professionals” make the eligibility determination together. Parents must receive a copy of the evaluation report, as well as any documentation used to determine eligibility.

4. Assessment discrimination. IDEIA 04 requires the use of a variety of assessment tools validated for the specific purpose. The use of a single assessment as the sole criterion for eligibility is forbidden. Assessment instruments must not be culturally or racially biased. Attempts must be made to assess non–English- speaking students in their native language. Assessments must be reliable and administered by trained professionals and must identify all educational needs, including social and emotional needs. To avoid misidentification, the evaluation team should consider factors other than a disability that may be affecting performance.

5. Reevaluation. Each child with a disability must be reevaluated at least once every 3 years unless the child and the LEA agree that a reevaluation is not necessary. The IEP team determines the extent of the reevaluation and determines what additional data are needed. However, informed parental consent and parental participation in the reevaluation are required. Parents may provide evaluations and information in the reevaluation process. Further evaluations are required if requested by parents or one of the child’s teachers.

6. Assessment. A statement of any modifications in general state or district assessments is needed. If the IEP team determines that the child will not participate, a statement of why the state or district assessment is not appropriate and how the child will be assessed must be included.

Appropriate Education (Individualized Education Program)

The provisions of an appropriate education are outlined in the Individualized Education Program (IEP). The IEP is a document that (1) outlines the educational and supplemental services, (2) provides a plan for an appropriate education, (3) offers a way for parents to participate (and acknowledge agreement or disagreement), (4) serves as a guide for teachers, and (5) proves compliance for the district. The IEP consist of two parts: a meeting and a document (Boyle & Weishaar, 2001). The IEP team is the group of individuals responsible for developing and writing the IEP. At a minimum, the IEP committee must be composed of (1) the child’s parents; (2) at least one general education teacher; (3) at least one special education teacher; (4) an LEA representative qualified to provide—or supervise—special education services and who is knowledgeable about the general curriculum and the availability of resources; (5) an individual who can interpret the instructional implications of the evaluation results; (6) the child, where appropriate; and (7) other individuals as requested by the district or parents [§ 614 (d) (B)].

IDEIA 04 has added language outlining LEA requirements for children with disabilities, who either transfer into or out of the district, including services comparable to those described in the previously held IEP. When children with disabilities transfer, the LEAs involved must take responsible steps to promptly obtain and promptly respond to requests for the child’s records [§ 613 (D)(i)(I, II)(ii)(I, II)]. States may require that schools include in the records of a child with a disability a statement of any current or previous disciplinary action that has been taken against the child and transmit such statements to the same extent that such disciplinary information is included in, and transmitted with, the student records of non-disabled children [§ 613 (5) (i)].

The IEP is the written document generated by the IEP committee. IDEIA 04 requires that the IEP be individualized and specific enough to meet the needs of the child. In general, IEPs are composed of the following components [§ 614 (d) (i) (A)]:

1. Present level of academic achievement, including how the child’s disability affects involvement and progress in the general curriculum.

2. Measurable annual goals, including academic and functional goals designed to help the child make progress in the general curriculum and meet the child’s other educational needs. Annual goals should emphasize an ever-increasing inclusion and success in the general curriculum. The IEP should include annual measurable goals and benchmarks to allow parents and the IEP team to assess progress or lack of progress toward meeting the goals of the IEP. This section should also include how the goals and objectives will be measured and how parents will be regularly informed of progress toward the goals and objectives.

3. A statement of special educational services based on peer-reviewed research to the extent practicable should be provided to the child.

4. The IEP must explain the extent to which the child will not participate in the general curriculum with non-disabled students.

5. Commencement, frequency, location, and duration of services and modifications.

6. Transition planning out of secondary education beginning not later than the first IEP to be in effect when the child is 16, and updated annually thereafter, including:

   1. Appropriate measurable postsecondary goals.

   2. Details of transition services, including courses of study needed to assist the child.

   3. One year prior to age of majority: IEP must include a statement that the LEA has informed the child that parent rights will transfer to him or her when the age of majority is reached.

7. Modifications in administration of state or district assessments.

In addition, IEPs must be accessible to teachers and others responsible for the implementation of services. The IEP should include the strengths of the child, parent input, results of the most recent evaluations, and results of state assessments. If the child’s behavior interferes with learning, the IEP should include a behavioral intervention plan (BIP) and strategies and supports to address the behavior [§ 614 (B) (i)]. The IEP should also address necessary language needs, visual needs, hearing needs, and assistive technology needs of the child [§ 614 (B) (ii-v)].

Linking to Practice

Campus leadership is particularly important in the IEP meeting and development process. Cindy Bradford (2001) provides the following suggestions for principals:

• Review the student’s file before the meeting.

• Do not determine or make placement judgments before the meeting.

• Promises made at the meeting must be fulfilled. Be aware of available resources before making a commitment.

• Think before speaking.

• Avoid acronyms.

• Record meetings and make sure everyone present knows the meeting is recorded.

• Encourage parents to be active participants, but remember that the FAPE belongs to the child, not the parents.

Providing a Free and Appropriate Education (FAPE)

The legal question of what is a FAPE was addressed by the U.S. Supreme Court in Board of Education of Hendrick Hudson Central School District v. Rowley (1982). The parents of a deaf student in a regular New York public school claimed that the denial of a qualified sign-language interpreter in all of the student’s academic classes violated the FAPE guaranteed by the Education for All Handicapped Children Act (P.L. 94–142). The basic question before the Court was, “What qualifies as a free appropriate education?” The Court held that the intent of the law was not to provide services to maximize each child’s potential to achieve a strict equality of opportunity of services. Rather, the intent of Congress was to identify and evaluate handicapped children and to provide them with access to a free public education. The basic floor of opportunity provided by the law consists of access to individualized specialized instruction and related services designed to provide an educational benefit to the handicapped child. Consequently, a FAPE is defined in two ways: (1) Has the LEA complied with the procedures and requirements of the act, and (2) is the IEP reasonably calculated to enable the child to receive educational benefits? An appropriate free public education must meet both prongs of the definition. However, the Court cautioned judges to be careful to avoid imposing their view of preferable educational methods on a school district.

Rowley requires that IEPs pass a two-pronged test: (1) Was the IEP developed in accordance with the procedures mandated by law, and (2) will the IEP enable the child to receive an educational benefit? Although the educational benefit prong may be open for debate, the procedural prong is not. Failure to follow procedures can result in the invalidation of the IEP. For example, in M. L. et al. v. Federal Way School District (2003), the Ninth Circuit Court found an IEP to be invalid because the IEP team meeting did not include attendance by a regular classroom teacher as required by law.

Linking to Practice

Do:

• Understand that the definition of a FAPE includes the education of disabled students with regular students to the maximum extent practical.

• Develop a schoolwide plan for inclusion, including professional development for teachers and time for special education and regular teachers to collaborate (Bradford, 2001).

• Make addressing the needs of individual learners part of the formal and informal district teacher evaluation procedures.

• Insist that IEPs be developed “backwards.” That is, start with the maximum inclusion, rather than the minimum.

• Always follow the procedural requirements of IEP development and reevaluation as outlined in federal and state law and school board policy.

Related and Supplemental Services

Supplemental (related) services include transportation and other supportive services such as speech–language pathology and audiology services, counseling services, and medical services required for a child with a disability to benefit from special education [§ 601 (26) (A)]. The U.S. Supreme Court considered the definition of medical services in Irving Independent School District v. Tatro (1984). Amber Tatro was born with spina bifida and required clean intermittent catheterization (CIC) every 3 to 4 hours. CIC is a simple procedure that can be performed in a few minutes by a layperson with an hour’s training. The legal question before the Court most germane to this text is: “Does the Education of the Handicapped Act (P.L. 94–142) require the school district to provide CIC services to Amber?” The Court answered the question in the affirmative. In doing so, the Court created a “bright line test” for the obligation to provide for medical services to children: (1) The procedure must be necessary to enable the handicapped child to remain at school during the day, and (2) services that can be provided only by a physician (except diagnostic or evaluation services) are excluded, but services that can be provided by a school nurse or trained layperson are not.

Related medical services can be expensive, and school districts are naturally concerned about the cost for providing continual care during the school day. The U.S. Supreme Court addressed this concern in Cedar Rapids v. Garret F. (1999). When Garret F. was 4 years old, his spinal cord was severed in a motorcycle accident. He was paralyzed from the neck down. In order to attend school, Garret required constant one-on-one monitoring and several related services. All could be provided by a nurse. The district basically argued that the expense of this service was more than required by law. Although recognizing legitimate financial concerns, the Court held:

It is undisputed that the services at issue must be provided if Garret is to remain in school. Under the statute . . . and the purposes of IDEA, the district must fund such “related services” in order to help guarantee that students like Garret are integrated in the public schools.

Medication

Medication for children with disabilities is also controversial. This is especially true concerning attention deficit hyperactivity disorder (ADHD) and Ritalin, the most commonly prescribed medication for ADHD (Demmitt, Russo, & Hunley, 2003). Ritalin has been demonstrated to increase the ability of some children to pay attention and decrease classroom disruptions surrounding typical ADHD behaviors. The salubrious effects of Ritalin are undeniably beneficial to teachers and administrators. However, some parents may balk at medicating their children. This may be especially true now that the safety of this class of drugs has been questioned. A disconnect between what school personnel want and parental wishes has led to numerous disagreements. According to IDEIA 04, state and local educational agencies may not require a child to obtain and presumably take a prescription medication as a condition of attending school, receiving an evaluation, or receiving special education services [§ 612 (25) (A)].

Linking to Practice

Demmitt, Russo, and Hunley (2003) make the following recommendations regarding ADHD children and Ritalin:

Do:

• Even when parents and the IEP team agree, consider Ritalin as only one element in a broader intervention plan for ADHD children.

• Utilize educational or medical practitioners familiar with ADHD in the diagnosis, classification, and IEP development of ADHD children.

• Develop written policies and practices for the distribution of prescription medication. Ritalin is one of the more abused prescription drugs. Consequently, careful policies protect not only students, but the district as well.

• Provide ongoing professional development and training for teachers who have ADHD children in their classrooms.

Do Not:

• Insist on medication as a prerequisite for the formulation of an IEP.

• Exclude children from school whose parents refuse to medicate their child.

State Tests and Graduation

Public and political criticism of education has served as the catalyst for the federal government and a majority of state governments to implement increased school accountability standards. Along with school accountability legislation, most states have also increased high school graduation requirements for students. Central to the increased accountability is the implementation of standardized state tests designed to measure student knowledge and skills at various grade levels, and in some cases to classify or rate individual districts and schools in the state. At the federal level, the No Child Left Behind Act (2002) is a school accountability law that requires the inclusion of all students in state accountability testing. NCLB does not require passing a state test as part of graduation requirements, but does use the number of students graduating in 4 years (cohort persistence to graduation) as one accountability indicator. Under this legislation, schools and school districts must demonstrate that all students are making “adequate yearly progress” as defined by the state. Inclusion of children with disabilities in statewide assessments and accountability standards is required by IDEIA 04 [§ 612 (15), (16)]. The language of this section brings IDEIA into compliance with the language of NCLB. IDEIA 04 does address alternative assessments of children with disabilities [see § 612 (C) (ii) (I), (II) for full requirements]. Alternative assessments must be aligned with the state’s challenging academic content standards and with the requirements of NCLB.

A significant part of the debate over state and federal accountability laws such as NCLB, graduation requirements, and adequate yearly progress is what to do about disabled students. This discussion is particularly germane when states require passing a high-stakes test as part of promotion or graduation requirements. High-stakes tests can be defined as the passing of a state test as a prerequisite to be promoted to a higher grade or graduation from high school. Graduation from high school is viewed as a milestone and significant accomplishment by many people. A high school diploma is also viewed as the minimum requirement for employment in many areas. Consequently, several judicial challenges to high-stakes testing have been brought by parents of children with a disability.

The U.S. Supreme Court has not ruled on a high-stakes test requirement. However, lower courts have been relatively consistent in their support of state efforts to require that students with a disability pass such test as part of graduation requirements under certain conditions. In a landmark decision concerning racial bias and high-stakes testing in Florida, the Fifth Circuit Court held that the high-stakes examination in question may cover matters not taught through the curriculum and that the test’s implementation schedule provided insufficient notice. Consequently, the state could not deprive public school students of a diploma on the basis of the test (Debra P. v. Turlington, 1981). The injunction issued by the court was lifted once the state demonstrated that adequate notice had been given (Debra P. v. Turlington, 1984). In Brookhart v. Illinois (1983), the Seventh Circuit Court established that states could require a high-stakes test as a factor in obtaining a diploma as long as a school district could demonstrate (1) that adequate notice had been given to students, (2) that students were sufficiently exposed to most of the curriculum tested, and (3) that parents and teachers had made a reasonable and well-informed decision regarding the best options for the student. In this case however, a 1½-year notice was inadequate, and because it is unrealistic to assume that several of the students would be able to return to school without undue hardship, the school district could not require them to pass the high-stakes test as a prerequisite for a diploma. This line of reasoning was continued by an Indiana court of appeals (Rene v. Reed, 2001).

Linking to Practice

Do:

• Make sure that students with a disability have ample notice of state or district requirements and opportunities to learn the material they will be tested on in state or district assessments (Johnson & Thurlow, 2003).

• Initiate multiple discussions of state and local promotion and graduation standards with parents of children with a disability. Lay out all options available, including, but not limited to, diploma options and alternatives to retention in grade if available.

• Continually update parents on their child’s progress toward meeting local or state standards.

• Be sure that parents and the child are never surprised about the requirements for or lack of progress toward graduation or promotion.

• Make any diploma options part of the transition plans for students 14 and older. Remember, it is the parent’s and child’s responsibility to choose among the options. It is the school’s responsibility to provide the appropriate educational opportunities and supports to allow the child to successfully fulfill the requirements.

Least Restrictive Environment (LRE)

The LRE is, by definition, inclusion in the general curriculum with students who do not have a disability to the maximum extent appropriate for the student with the disability [§ 612 (5) (A)]. The general curriculum is defined as academic, extracurricular, and other school activities that make up the curriculum offered to non-disabled students. Disabled students may not be denied access unless the nature or severity of the disability is such that education in regular classes cannot be provided with supports and aids. The IEP outlines the supplemental services and aids and justifies the exclusion of the student from various parts of the general curriculum based on the severity and nature of the disability.

Parents must be involved in all placement decisions. IDEIA does not allow for placement decisions after the development of the IEP. Rather, placement decisions must be made as part of the IEP development process, which includes parents. Naturally, it is the definition of maximum extent appropriate that holds the greatest potential for disagreement among school officials and parents. IDEIA contains a preference for the inclusion of disabled children in the regular classroom. However, Congress recognized that the regular classroom may not be appropriate for all disabled children under all circumstances. Attempting to maintain this balance has created considerable ambiguity over the definition of LRE. Unfortunately, a consensus definition or test for determining LRE has not emerged from the Circuit Courts.

Private School Placement

IDEIA 04 provides that special education services may be provided to children with disabilities on the premises of private schools, including parochial or religious schools to the extent consistent with the law. Services provided to parentally placed private school children with disabilities, including materials and equipment, are to be secular, neutral, and non-ideological [§ 612 (10) (vi) II]. The rights of children with disabilities parentally placed in private schools have been further defined and expanded in IDEIA 04 [§ 611 (10) (A) (i)-(iii)]. For example, IDEIA 04 provides specific language regarding the following:

• The child find process must be designed to ensure the equitable participation of parentally placed children.

• The cost of the identification and participation may not be considered in determining LEA compliance with this requirement.

• LEAs are required to consult with private school representatives and parent representatives of children with disabilities enrolled in the private school in the design and delivery of special education services.

• Private school officials have the right to submit a complaint to the SEA if some disagreement surfaces as to the LEA’s compliance with the requirement of IDEIA.

However, school districts may not always be required to provide services at private school locations. For example, the Eighth Circuit Court affirmed a hearing officer’s decision that the Special School District of St. Louis was not required to provide special education services at a private school because the Missouri constitution and state IDEA Plan prohibited the providing of services in a sectarian school, and the Special School District had afforded the student “equitable participation” in its special education programs at public expense (Foley v. Special School District, 1998).

LEAs are required to pay for private schools if disabled children are placed in or referred to a private school as a means of carrying out the provisions of the IEP or if the LEA cannot or will not provide a FAPE [§ 611 (10) (B) (i)]. However, school districts are not generally liable for private school tuition if the district can demonstrate that a FAPE was made available and the parents unilaterally placed the child in a private school setting [§ 612 (C) (i) (ii)]. A hearing officer may require a district to reimburse parents for private school tuition if the parents can demonstrate that the district did not make a FAPE available to their child in a timely manner (see School Community of Burlington v. Department of Education, 1996, and Florence v. Carter, 1993). LEAs may not be required to reimburse parents for private placement if:

1. The LEA followed all parental notification requirements of the intent to evaluate and the parents chose not to make the child available, or

2. A judge or hearing officer rejects parent claims for reimbursement upon a finding of unreasonableness on the part of the parent [§ 612 (C) (iii) (II, III)].

Procedural Safeguards

Procedural due process provides the safeguards necessary to ensure a cooperative process in which children with disabilities benefit from school and in which the school is providing the appropriate services and placements [§ 615 (a)]. A significant part of this process is notice. Once per year, parents must receive written notice of procedural safeguards. A copy of procedural safeguards must also be provided upon initial referral or parental request for evaluation, upon the filing of a complaint, and upon request of the parent [§ 615 (d) (1) (A) (i–iii)]. The notice must contain the legal rights of parents and the obligations of the school district in plain, easy-to-understand language. The notice should be in the parental native language if possible [§ 615 (d) (2)]. IDEIA 04 continues the trend toward giving parents greater access to records and greater rights to participate in decisions and obtain independent evaluations [§ 615 (b) (1)]. This increased parental participation may be a worthy goal. However, it is inevitable that disagreements between school districts and parents over the placement, services, and evaluation of disabled children will occur. The principle of due process is designed so that either party (LEA or parent) may challenge the other’s position. The U.S. Supreme Court has held that the burden of proof lies on the party seeking relief (Schaffer v. Weast, 2005). Regardless of which party holds the burden of proof, it is clear that IDEIA language assumes inclusion to the greatest extent practical (Howard, 2004).

To further encourage cooperation, IDEIA 04 requires parents (or their attorney) to file a notice of complaint to both the LEA and the SEA that includes the name, address, and attendant school, a description of the nature of the problem, and a proposed resolution of the problem [§ 615 (7) (A) (i) (ii)]. States are required to develop and provide to parents a sample complaint model. The same requirements apply if the LEA is the complaining party. Regardless, the complaining party may not have a due-process hearing until all notification requirements are met.

LEAs must respond to parent complaints within 10 days of receiving the complaint. The response must include (1) an explanation of the reasons for the LEA’s proposed action or refusal to take action that caused the complaint, (2) a description of the other options considered by the IEP team, (3) a description of the evaluations used to support the proposed action or refusal to act, and (4) a description of the factors relevant to the agency’s proposal or refusal.

Parents must exhaust all administrative remedies before seeking judicial review. In addition, IDEIA 04 has set definitive timelines for mediation and due-process hearings as well as a statute of limitation of 2 years on IDEA claims. District and campus leaders should become aware of these timelines and assiduously follow them.

Mediation

States must provide mediation services as part of the funding requirements of IDEIA [§ 615 (e)]. Mediation is voluntary, and the state must bear all costs. An impartial third party assists the parents and school district in reaching a mutually acceptable agreement. In an effort to encourage cooperation between the parties, attorney participation is discouraged and attorney fees are not allowable. Mediation may occur as the sole source of dispute resolution or may occur concomitantly with due process. Mediation focuses on communication and creative problem solving, and it does not assign blame. It is designed to produce a mutually acceptable agreement that is in the best interest of the child (Boyle & Weishaar, 2001). However, districts may not use the mediation process to deny or delay any right under IDEIA, including due process.

A trained and impartial mediator presides over all mediation services. Impartial means that the mediator is not an employee of the district and does not have a personal or professional interest in the outcome of the process. Mediators should be mutually agreeable to both the district and the parent. Agreements reached must be put into writing and remain confidential. If the mediation process fails, neither party may use information obtained during the mediation process either at a due-process hearing or in a judicial setting.

Hearing Officer

Due process is a formal adversarial process in which an impartial hearing officer listens to evidence presented by both sides. Due process is different from mediation in that there is usually a winner and a loser, and blame is often attached to the losing party (Boyle & Weishaar, 2001). Both sides may be represented by legal counsel. However, the LEA may not have an attorney present unless the parent is accompanied by an attorney. Parties to due process have certain rights:

• The right to have legal counsel or individuals with special knowledge, skills, or expertise applicable to the disability.

• The right to present evidence.

• The right to confront, cross-examine, and compel the attendance of witnesses.

• The right to a written record of the findings and decisions. This record must be made available to the public, consistent with confidentiality provisions.

• Hearing officer decisions are final. However, either party has the right to appeal either to the state educational agency or to the judicial system depending on the circumstances [§ 615 (f)].

• Decisions are public record and are usually available from the website of the state department of education.

Judicial Review and Attorneys’ Fees

Either party may appeal a due-process finding to any state court with the power to hear such cases or to any federal district court. The court receives the documentation from the due-process hearing and may accept additional evidence. The court makes a decision on the preponderance of the evidence. Courts have the power to grant “appropriate relief,” including changes in placement, additional services, and reimbursement for expenses including parent attorneys’ fees, as long as the parents are the prevailing party. Interestingly, an LEA can now recover attorneys’ fees from parents when the attorney of a parent files a complaint that is “frivolous, unreasonable, or without foundation” or if the complaint was presented to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation [615 (B) (i) (I-III). During the pendency of either mediation or due-process hearings, the child in question remains in the then-current educational placement unless the parent and the LEA agree to a change in placement for the child.

Student Discipline

IDEIA 04 is an attempt to balance the rights of disabled children with the need for good order and safety in the school. Part of this balance is the use of the relatively new concepts of functional behavioral assessment (FBA) and positive behavioral support (PBS) to address students with behavioral issues. Campus and district leadership must pay close attention to these concepts and the procedural safeguards outlined in IDEIA. Knowing how (and when) to implement short-term suspensions or longer-term change in placement is vital to protecting both the student and the district (Bradford, 2001).

In general, IDEIA 04 outlines the following disciplinary provisions [§ 615 (k) (1) (A-D)]:

1. School personnel may consider any unique or special circumstances on a case-by-case basis in making change in placement (defined as alternative educational placement, another setting, or suspension) of children with disabilities;

2. School personnel may remove a child from their current placement to an alternative placement or suspension for up to 10 school days at a time for any violation of school rules to the extent applied to children without disabilities;

3. The relevant disciplinary codes applicable to children without disabilities may be applied to a child with a disability if it is determined that the behavior is not a manifestation of the child’s disability;

4. Services must continue for children removed from their current placement (suspended, expelled, assigned to an alternative educational placement) for more than 10 school days. This provision is applied regardless of the outcome of the manifestation determination proceedings.

5. Children removed from their current placement for more than 10 school days must receive, as appropriate, a functional behavioral assessment and behavioral intervention services and modifications designed to address the behavior violation so that it does not recur.

6. Expands authority to remove a disabled student who brings a gun to school to apply to all dangerous weapons, the knowing possession of illegal drugs and/or the sale/solicitation of the sale of controlled substances, and/or the infliction of serious bodily injury on another person while at school, on school premises, or at a school function regardless of the outcome of the manifestation determination proceedings [§ 615 (k) (1) (G)]; and

7. Added the ability to request a hearing officer to remove a child for up to 45 days if keeping the child in the current placement is substantially likely to result in injury to the child or others [§ 615 (k) (3) (A)].

Advocate concerns regarding the unfair suspension and expulsion of children with disabilities have been addressed in SEA compliance standards. The state educational agency must examine data, including data disaggregated by race and ethnicity, to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities [§ 612 (22) (A) (B)].

Manifestation Determination Reviews

A manifestation determination is required when a disciplinary action results in a change in placement [§ 615 (k) (E)]. The manifestation determination is a review and assessment by the IEP team of the relationship between the behavior and the child’s disability (Figure 9-1). This relationship is determined by two questions: (1) Is the behavior in question caused by, or does it have a direct and substantial

FIGURE 9-1 Manifestation determination illustrated.

relationship to, the child’s disability? and (2) is the conduct in question a direct result of a failure to implement the IEP? If the IEP team and parents determine that the answer to either question 1 or 2 is yes, the conduct is a manifestation of the child’s disability.

If the behavior is a manifestation of the child’s disability, the IEP team:

1. Conducts a functional behavioral assessment (FBA) and implements a behavioral intervention plan (BIP) for the child;

2. if a BIP has already been developed, reviews the plan and makes necessary modification to address the behavior; and

3. returns the child to the placement from which the child was removed, unless the LEA and the parent agree to a change of placement as part of the modifications to the BIP [§ 615 (k) (F) (i) (ii) (iii)].

Functional Behavioral Assessments

Functional behavioral assessments are “collected information about the student, describes problem behaviors, identifies possible causes and effects, and develops ideas for teaching alternatives” (Bradford, 2001, p. 74). Turnbull et al. (2001) suggest that at a minimum the FBA should include hypothesis statements that address three behavioral issues: (1) clear definitions or descriptions of the behaviors in question, (2) descriptions of the catalyst or circumstances surrounding exhibition of the behaviors, and (3) descriptions of the interventions that maintain or exacerbate the behaviors. For a very simplistic example, a student (such as Jason in the case study “When Good Parents Go Bad”) may exhibit specific passive–aggressive behaviors when threatened or overly scrutinized by an assertive male faculty member. Consequently, Jason’s behavior may be exacerbated and spiral out of control as the male faculty member’s frustration and anger increase in response to Jason’s reaction.

The FBA may also extend to a wide range of other components, including predictors of inappropriate behaviors, home factors that may contribute to the behaviors, and an analysis of the function the behavior serves for the student. Regardless of the components, however, an FBA should never begin without the informed consent of the parents (Turnbull et al., 2001). Functional behavioral assessments are required by IDEIA when a child’s behavior interferes with his or her learning or when the child has first been removed from his or her current placement for more than 10 school days in a school year, or when commencing a removal that constitutes a change in placement. Few guidelines as to the content of the FBA are provided. FBAs are not required for all children with a disability, but there is a tendency to associate an FBA with behavioral issues (Dieterich, Vaillani, & Bennett, 2003). However, by conducting an FBA for all children to determine “why they do what they do,” the LEA is taking a preventative approach and provides a framework for future behavioral intervention plans, and if necessary a manifestation determination.

Behavioral Intervention Plan

The BIP can be defined as “a set of strategies, interventions, and supports the school will provide for the student” (Bradford, 2001, p. 74). IDEIA 04 requires a BIP for any student whose behavior impedes their learning or the learning of others [§ 614 (B) (5)]. Turnbull et al. (2001) define “impeding behavior” in the following manner:

Behaviors that a) interfere with the learning of the student or of others and are externalizing, are internalized, are manifestations of biological or neurological conditions, or are disruptive, b) could cause the student to be disciplined (under state or federal regulations) that could cause any consideration of a change of the student’s educational placement, and c) are consistently recurring and therefore require functional behavioral assessment and the . . . application of positive behavioral interventions and supports.

IDEIA 04 does not define the level of impediment that would trigger an FBA, nor does it specially outline how a BIP is to be developed. However, it is clear that the BIP should be based on the FBA and result in positive behavioral supports that are tailored to the particular needs of a student with challenging behaviors. In other words, positive behavioral supports should be developed before student behaviors reach the point that disciplinary action is considered (Turnbull et al., 2001). For example, an Iowa administrative law judge (ALJ) overturned the expulsion for drug-related behavior of a 17-year-old learning-disabled/attention-deficit-disordered student. The ALJ concluded that the student’s IEP should have been based on a functional behavioral assessment that resulted in a behavioral intervention plan to address the child’s drug behaviors that significantly affected his education program and likelihood of disciplinary action (Lewis Center School District, 2005). The BIP is particularly important when changes in placement are considered. The IEP team must convene a meeting (11-day IEP) to review and revise the BIP. If the student did not have an FBA or a BIP, the team must complete or review the FBA, then devise appropriate behavioral interventions. It is important to develop appropriate, well-documented, and reasonable BIPs that emphasize positive behavioral interventions rather than punitive approaches.

Hearing Officer Authority

The parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination, or an LEA that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may request a hearing [§ 615 (3) (A) (B)]. The hearing officer will hear and make a determination regarding the appeal. The hearing officer may (a) return the child with a disability to the placement from which he or she was removed, or (b) order a change in placement to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or others. During the appeal, the child remains in the interim alternative educational setting pending the hearing officer decision unless the parent and LEA agree otherwise. (Note: This is new to IDEIA 04.) However, the LEA must arrange for an expedited hearing. An expedited hearing occurs within 20 school days of the date the hearing is requested. The hearing officer decision must come within 10 school days after the hearing [§ 615 (4) (A)-(B)].

School Safety

Well-publicized acts of school violence and the resultant concerns over school safety have served as the genesis for several laws regarding weapons in school (see, for example, the Gun-Free Schools Act). This concern has extended to students with disabilities. IDEIA 04 allows school districts to move a disabled student to an alternative setting for up to 45 days if the child carries a weapon to school or a school function, or knowingly possesses, uses, sells, or solicits the sale of illegal drugs or other controlled substances. IDEIA has expanded the definition of weapon to include a variety of devices that may cause injury or death, but not a pocket knife of less than 2½ inches in length. However, if the student does not have a FBA and BIP in place, IDEIA imposes a duty to complete both procedures either before or not later than 10 days after the student is removed from school (Turnbull et al., 2001). IDEIA also imposes an affirmative duty to conduct a manifestation determination. If the behavior is a manifestation of the child’s disability, then the district is generally limited to the 45-day change in placement outlined by the act. However, if the behavior is not a manifestation of the disability, the district may impose further discipline on the student (an extended suspension of longer than 45 days if appropriate under general school board policy, for example). For example, a district court in Maine upheld a hearing officer’s determination that the selling of drugs on campus by a learning-disabled student was not a manifestation of his disability. Consequently, the hearing officer was correct in not enforcing the “stay put” provision of IDEIA after the first 45 days of the student’s expulsion (Farrin v. Maine, 2001). School safety cuts both ways. Not only do school officials have a duty to enforce safe school rules, they also have an affirmative duty to protect disabled students from peer harassment (see, for example, Shore v. P. S., 2004).

Children Not Identified

The disciplinary requirements of IDEIA 04 may also apply to students not yet identified as disabled if school district personnel had knowledge before the behavior precipitated the disciplinary action that the child might have a disability. Factors that may indicate knowledge of a possible disability include:

1. The parent notifies a supervisory or administrative person of the district, or a teacher of the child, that their child is in need of special education services

2. The parent requests an evaluation

3. The child’s teacher or other school personnel express specific concerns about a pattern of behavior directly to the director of special education of the LEA or to other supervisory personnel [§ 615 (5) (A) (B)]

Referral to Law Enforcement

IDEIA 04 clearly authorizes school officials to report crimes committed by a child with a disability to appropriate authorities. In addition, copies of the special education and disciplinary records of the child must be shared with the law enforcement agency. The act also states that a juvenile court petition is not a change in placement [§ 615 (9)].

Parent and Student Participation

To prevent unilateral decision making, parent and student participation in the process from start to finish is part of the safeguards outlined in IDEIA. The concept of parent and child participation is embedded throughout the law. Parents must give informed consent, must be involved in the development of the IEP, and have the right to challenge the decisions of the school district through a variety of means. For example, a consistent failure to inform parents of their rights to a due-process hearing is adequate grounds for holding that an LEA failed to provide an appropriate education and is liable for the tuition cost of a unilateral placement in a private educational program (Jaynes v. Newport News, 2001).

Section of the Rehabilitation act of 1973

Section is a federal civil rights law that prohibits discrimination against individuals with disabilities in programs and activities that receive federal funds, including public K–12 schools and universities (Office for Civil Rights, n.d.). Unlike IDEIA, federal funding is not included in the legislation. Section requires a school district to provide a FAPE to all qualifying students in the district regardless of the nature or severity of the disability. Like IDEIA, 504 defines a FAPE as regular or special education and related aids and services designed to meet the qualifying student’s needs. In order to qualify for services, a student must be determined to have a physical or mental impairment that substantially limits one or more major life activities. Temporary physical disability does not qualify for 504 services. Section excludes any student who is currently engaged in illegal drug use. However, Section does allow for disciplinary action for drug or alcohol use to the same extent as non-disabled children in the district.

The Office for Civil Rights (OCR) enforces Section. When receiving complaints, OCR provides technical assistance to school districts or parents to ensure compliance with the law and regulations. OCR does not engage in formal mediation services. Rather, OCR offers to facilitate mediation, referred to as “Resolution Between the Parties,” to resolve complaints. Both parties must agree to this approach. If all efforts at dispute resolution fail, OCR is empowered to initiate administrative proceedings to terminate federal funding or refer the case to the Department of Justice for judicial proceedings.

Section requires a committee of persons knowledgeable about the student, the meaning of the evaluation data, and placement options to determine eligibility and related aids and services for qualifying individuals. As in IDEIA, the committee must use a variety of evaluative data, and all significant factors related to the student’s learning process must be considered. It is unacceptable to use culturally biased evaluations or to depend on stereotypes in decision making.

Districts are required to obtain parental permission for initial evaluations. Section requires periodic reevaluations. Reevaluations are also required before a significant change of placement. OCR considers a suspension or expulsion from the educational program of more than 10 school days a significant change of placement. Transferring a student from one type of program to another (to an alternative school, for example), or significantly reducing services, is also considered a change in placement by OCR.

Summary

Children with disabilities present special challenges to parents, teachers, and school leaders. This challenge, however, in “no way diminishes the right of individuals to participate in or contribute to society.” In addition, these challenges should in no way diminish the legal and ethical obligation to make a quality education available for each and every child entrusted to our care. Unfortunately, disputes regarding the definition of an appropriate education are common. Special education is the most heavily litigated area of school law. Parents and their children with disabilities have well-defined legal rights and clearly articulated procedural due-process rights. Consequently, the legal rights of children with disabilities should never be ignored out of expediency, personal bias, or ignorance.

Connecting Standards to Practice

The Case of the Riverboat High School Cat Burglar

Samantha Stone was a delightful and talented blue-eyed, raven-haired senior who had parlayed her skill as an actress, dancer, and writer into a scholarship to an Ivy League college. By all accounts, by age 8 Samantha had been able to read and comprehend at a 12th-grade level. Her math skills, however, were very poor. Samantha reversed numbers and had great difficulty with even the simplest math problem. By her parents’ request, she was tested by the district. Her first IEP called for resource math and inclusion in all other areas.

Samantha’s split personality became evident at age 10 when her mother and father divorced. Samantha was Dr. Jekyll: witty, smart, engaging, and irresistible to anyone she met. Her alter ego, dubbed Elvira by her teachers, was Ms. Hyde. Elvira was crude, profane, and flaunted her sexuality to both male and female students and young teachers. During grade school and middle school, her split personality created a continual problem with her teachers, and she was unmercifully teased by her peers. She was often sent to the office and spent countless hours in detention for her behavior. Her middle school principal believed she was faking her illness for attention. However, her troubles brought her mother and father together in a common cause to protect their daughter from the teasing, uncaring teachers and unfair treatment by the principal. Samantha’s father exhausted what assets he had on psychiatrists and counselors for Samantha. Eventually she was diagnosed as emotionally disturbed in addition to learning disabled in math. Her IEP now contained a behavioral intervention plan for ignoring and isolating Elvira until Samantha returned. As Samantha progressed through high school, her split personality became much more controllable and Elvira, no longer the center of attention, rarely emerged.

The reports of missing items had started slowly. At first, the items reported missing were pens, calculators, library books, and similar things that assistant principal Tommy Thompson naturally believed were simply lost by inattentive students. However, as the reports escalated, Tommy began to suspect a larger problem. His fears were confirmed when more expensive items including leather jackets, cell phones, jewelry, and MP3 players were reported missing. Parents were calling almost daily to complain about the lack of discipline in the high school. Principal Tara Hills and Tommy spent large amounts of time in the hallways, locker rooms, and parking lots and reviewing surveillance tapes in an attempt to either catch or discourage the perpetrator. All of their efforts were fruitless, and the thievery continued to escalate. In exasperation, Tommy had dubbed the culprit the Riverboat Cat Burglar. Tara failed to see the humor in his remark, but the sobriquet stuck.

After several weeks of fruitless efforts, Sharon Grey received a call from Tara Hills. “Could you come by Tommy Thompson’s office? I think you need to hear this.”

When Sharon entered Tommy’s office, Samantha was sitting in a chair, crying. “I told her not to do it,” sobbed Samantha.

A look of recognition came across Sharon’s face. Looking at Tommy she said, “Uh oh.”

Almost immediately, Elvira appeared, her blue eyes blazing with anger. In profane and earthy language, Elvira said, “She’s lying! Miss Goody Two-Shoes is always trying to get me into trouble! I hate her!”

After several more profanity-laced outbursts heard throughout much of the school, Samantha returned and directed them to her car in the school parking lot. A quick search of the car revealed numerous stolen items. Tara Hills called Samantha’s father and suspended her for 10 days pending a manifestation review. After the first 3 days of her suspension, Samantha’s father called Sharon Grey at the central office. Samantha’s father had been direct. “Ms. Grey, I have contacted Samantha’s mother and my attorney. We contend that Samantha’s offense was a manifestation of her disability. We also contend that an alternative placement that does not include access to college English, AP American history, and creative writing will not provide her with an appropriate education under the law. We acknowledge your right to change Samantha’s placement for 10 days. Any further change of placement will force us to seek a due-process hearing and potential appeal to the federal district court.”

Question

1. Argue for or against an alternative placement for Samantha (and Elvira). Clarify the legal question. Use the ISLLC standards, the manifestation determination review procedures outlined in this text or other sources, the behavior intervention plan in place, the concept of FAPE, and ethical principles to justify your answer. Write a memorandum to the superintendent or school board president supporting your recommendation.