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Author Topic: take a look tell me what you think  (Read 3473 times)

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twinturbo

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take a look tell me what you think
« on: January 02, 2014, 03:43:13 AM »
I'm up with my Wrightslaw party pack. For the most part it's utterly what we know, what we love, and everything I need to fill in the gaps and step up my game. My goal is to know everything they've got to offer all the way through due process and whatever trial documentation the provide.

All great until I get to "reasonable". Yep, Pete is on the reasonable train in both written form and on his website. I know the next step, I've got a finished copy saved on my hard drive. Now that I'm one of his paying customers and can write to him referring to his material I feel confident I can query him and expect a response. I'm not sure I'm going to like the answer so I've been thinking over maybe change where I start.

I want to keep this off the main boards for now. Quoting is fine.

Here are my options. Keep in mind I have little shame and am quite willing to deal with being rebuffed, annoyed responses, etc.

1. Email Perry Zirkel about the OSEP letter he received about reasonable modifications. Very little fall out possible although Wrightslaw quotes him from time to time on their website. Zirkel doesn't know me so who cares.
2. Email Pete Wright about the 1993 Letter to Zirkel and all the OCR FAQ, ad nauseum I already wrote out.
3. Email OCR. I feel like this should be last on the list but MUST be done at some point.
4. Email my Twitter law prof buddy as a hypothetical my lawyer friends are so fond of. I like this one. Though he may blog about it and we may not benefit from his interpretation.
5. Suggestion?

I have two, possibly three pieces of evidence (humor me) pointing towards reasonable not applying to elementary or secondary. Letter to Zirkel, OCR FAQ, and Mystic Valley decision that tests an accommodation against undue burden and fundamental nature requirements.

I guess the third approach is challenging the meaning of "reasonable" to mean as long as it's not undue burden and doesn't alter fundamental nature. Is there anything else big or small?

Offline CMdeux

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Re: take a look tell me what you think
« Reply #1 on: January 02, 2014, 09:56:36 AM »
I like your third approach.

"Who defines "reasonable" in this context?"

Is it the LEA?  Parents?  Physician?

What happens when "necessary" is not "reasonable?"

^ Because, see, I think that the answer to THAT can't possibly be damaging to us as a community.  It's also a bigger question than "us" per se.

Resistance isn't futile.  It's voltage divided by current. 

Western U.S.

Offline BensMom

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Re: take a look tell me what you think
« Reply #2 on: January 02, 2014, 12:18:30 PM »
I don't understand anything in this thread, but since it's dropped down a bit, I thought I'd give it a bump. ;)

Offline Macabre

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Re: take a look tell me what you think
« Reply #3 on: January 02, 2014, 12:48:27 PM »
I can maybe take a look tonight. I only have so much bandwidth over my lunch break during the workday. :)
Me: Sesame, shellfish, chamomile, sage
DS: Peanuts

twinturbo

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Re: take a look tell me what you think
« Reply #4 on: January 02, 2014, 03:17:39 PM »
You know what would help is having anyone at their convenience and desire to do so, take on the SD's perspective and argument. In addition to that take every worst scenario or stumper thrown against a parent on reasonable. I'm after airtight and concrete shoring up the '93 letter for 2014+ under current climate where reasonable is piling up through extremely credible sources including OCR staff.

Making notes.

1. Provision of FAPE requirements
2. Inapplicability of limitations in postsecondary and employment on FAPE, voluntary nature vs. mandatory
3. Adjustments may be substantial. Substantial does not equate unreasonable or not necessary (an unauthorized extension of obligation). It is only when they go beyond necessary to eliminate discrimination against an otherwise qualified individual does it become an extension (i.e. not reasonable, not necessary)
4. 504 compliance to deliver FAPE does not require any changes beyond necessary to eliminate discrimination
5. Where a school district is meeting needs of students w/o disabilities to a greater extent than students w/disabilities discrimination is occurring.
6. Even substantial modifications are not extensions of obligation to eliminate discrimination.
7. "reasonable" coincides with modifications that do not alter fundamental nature. It does not define the degree of modification.
8. Section 504 prohibits discrimination by removing barriers to existing programs-- it does not constitute affirmative action, there is no special selection conferring additional benefit to overcome disability. It merely requires adjustments, without pronouncement on degree of adjustment, necessary to eliminate discrimination. (See 5 above).
9. Title II applies but does not weaken existing Section 504 standards.

Expressio unius est exclusio alterius ("the express mention of one thing excludes all others") Unless Title II has adopted a different standard Title II is interpreted to adopt Section 504 standards. FAPE is specified standard.


Short history
Constitution
USC subordinate to Constitution -> Congress (laws)
CFR subordinate to USC -> Departments (regulations)
No alterations to FAPE by courts or Congress that have changed standards since . Necessary to eliminate discrimination. Discrimination happens when student w/o disability needs are met with greater extent than needs of students w/disability. Eliminating discrimination may mean a substantial adjustment. "Reasonable" does not define a degree nor does it oppose necessary, as long as a fundamental nature is not altered. FAPE is not limited by standards of employment or postsecondary, nor is Section 504 weakened by Title II.



And the argument against http://www.mbm-law.net/newsletter-articles/fape-under-section-504-on-solid-ground/2704/



 
Quote
Lyons v. Smith, 829 F. Supp. 414, 419 (D.D.C. 1993), foreshadowed Mark H. In Lyons, the federal district court affirmed a hearing officer’s decision that a child with attention deficit hyperactivity disorder (ADHD) did not fit in the IDEA category of “other health impaired.” At the same time, it reversed the hearing officer’s decision declining to order that the child be given special education pursuant to section 504. The court declared that the child was entitled to “an education designed to meet his individual educational needs as adequately as the needs of nonhandicapped persons are met.”

Lyons is precisely parallel to the situation that is likely to become common in the wake of IDEA eligibility cutbacks and section 504/ADA coverage expansion: a claim by a non-IDEA-eligible child, not for damages relief, but rather for prospective creation and implementation of a program providing appropriate education under the section 504 standard. Lyons cautioned that section 504 does not require anything more than preventing discrimination on the basis of disability and expressed doubt that the interventions required to serve a child who is not eligible under IDEA in a nondiscriminatory manner would include special education, but it placed its emphasis on the regulation mandating that the needs of the child be met as adequately as the needs of others. In response to a request for interpretation of the duties that public schools owe students covered by section 504 but not IDEA, the Office for Civil Rights of the U.S. Department of Education stated that the section 504 appropriate education duty does not incorporate any cost or other limit as may be conveyed by a “reasonable accommodation” standard but instead that precedent imposing such a limit in some education cases applies to post-secondary institutions only. “Letter to Zirkel,” 20 Individuals with Disabilities Educ. L. Rep. 134 (1993). Thus, in the view of the Department of Education, the section 504 appropriate education duty may in fact be more exacting than the Lyons court envisioned.   
« Last Edit: January 02, 2014, 05:53:20 PM by twinturbo »

Offline CMdeux

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Re: take a look tell me what you think
« Reply #5 on: January 02, 2014, 03:46:21 PM »
How is unreasonable defined?

Who gets to determine when an accommodation-- necessary or not-- crosses the line into "unreasonable" territory?

Is that a defensible position for a district/school?  What about liability in the event of unreasonable accommodations of a medically necessary nature?  What about potentially medically necessary? 

You can see what I'm aiming at there, right?  Is it okay for a district to dodge duty-of-care if they deem something "unreasonable" right from the start?

Resistance isn't futile.  It's voltage divided by current. 

Western U.S.

Offline Macabre

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Re: take a look tell me what you think
« Reply #6 on: January 04, 2014, 06:07:19 PM »
Great question CM.

I think you ought to email Pete Wright. I found him very responsive to email when I informed him of Gloucester and sent him the PDF (which was the one they used for their website for a while). We emailed back and forth several times.

The reason I think you should do this:  through dialogue with him, you may be able to do some conversion, and he is one of the more prolific writers on education and disability law. We want him out there talking about reasonable--the other way. And we want him in his own private work to be pushing this. 
Me: Sesame, shellfish, chamomile, sage
DS: Peanuts

twinturbo

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Re: take a look tell me what you think
« Reply #7 on: January 04, 2014, 07:13:04 PM »
GREAT, great point about reach. I'm going to run that through the DH machine. He's great at smoothing out my approach.

Offline LinksEtc

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Re: take a look tell me what you think
« Reply #8 on: January 10, 2014, 07:43:42 PM »
http://www2.ed.gov/about/offices/list/ocr/504faq.html


Quote
Reasonable accommodation: a term used in the employment context to refer to modifications or adjustments employers make to a job application process, the work environment, the manner or circumstances under which the position held or desired is customarily performed, or that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment; this term is sometimes used incorrectly to refer to related aids and services in the elementary and secondary school context or to refer to academic adjustments, reasonable modifications, and auxiliary aids and services in the postsecondary school context

twinturbo

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Re: take a look tell me what you think
« Reply #9 on: February 03, 2014, 01:28:53 PM »
Update on this.

After the webinar with Francoeur, esq. I found the difference of opinion is a schism between Dept of Ed and federal courts. Dept of Ed will typically side on not applying the reasonable standard if in practice but not in letter.

@Links, I have that portion of OCR FAQ, however, OCR senior staff themselves actually use reasonable with increasing frequency to elementary and secondary in their communications. Despite having that in their FAQ and the Zirkel letter the waters have since been muddied by federal courts coming on the side of SDs to apply reasonable to K12.

The movement seems to be more what CM was saying that since reasonable is not a terribly specific term it doesn't override necessary and effective, nor the underlying foundations of removing barriers to eliminate discrimination.