Post reply

The message has the following error or errors that must be corrected before continuing:
Warning: this topic has not been posted in for at least 365 days.
Unless you're sure you want to reply, please consider starting a new topic.
Other options
Verification:
Please leave this box empty:
Type the letters shown in the picture
Listen to the letters / Request another image

Type the letters shown in the picture:
Spell the answer to 6 + 7 =:
Three blonde, blue-eyed siblings are named Suzy, Jack and Bill.  What color hair does the sister have?:
Shortcuts: ALT+S post or ALT+P preview

Topic summary

Posted by twinturbo
 - June 02, 2014, 02:52:48 PM
Note to self: funding formulas set forth by Depts for SEAs, LEAs. Inquire about expenditure on legal when legal explicitly advises a recipient to make conscious choices of withholding accommodations to an entire protected class in an effort to avoid expenditure of funds or convenience if accommodation is low to no cost.

QuoteThe Title VI Coordination Regulations, (as well as the Section 504 coordinating regulation), require that agencies obtain assurances of compliance from prospective recipients. 28 CFR §§ 41.5(a)(2), 42.407(b). Regulations requiring applicants to execute an assurance of compliance as a condition for receiving assistance are valid. Grove City College, supra, 465 U.S. at 574-575 (Title IX assurances); Gardner v. Alabama, 385 F.2d 804 (5th Cir. 1967), cert. denied, 389 U.S. 1046 (1968) (Title VI assurances). If an applicant refuses to sign a required assurance, the agency may deny assistance only after providing notice of the noncompliance, an opportunity for a hearing, and other statutory procedures. 42 U.S.C. § 2000d-1; 28 CFR § 50.3 II.A.1. However, the agency need not prove actual discrimination at the administrative hearing, but only that the applicant refused to sign an assurance of compliance with Title VI (or similar nondiscrimination laws). Grove City College, supra, 465 U.S. at 575. Assurances serve two important purposes: they remind prospective recipients of their nondiscrimination obligations, and they provide a basis for the Federal government to sue to enforce compliance with these statutes. See U.S. v. Marion County School District, 625 F.2d 607, 609, 612-13 (5th Cir.), reh'g denied, 629 F.2d 1350 (5th Cir. 1980), cert. denied, 451 U.S. 910 (1981).

QuoteFederal agencies have broad discretion in determining which recipients and subrecipients to target for compliance reviews. However, this discretion is not unfettered...
Thus, agencies are cautioned that they should not select targets randomly for compliance reviews but, rather, they should base their decisions on neutral criteria or evidence of a violation. A credible complaint can serve as specific evidence of an existing violation.

*Issues raised in a complaint or identified during a complaint investigation that could not be covered within the scope of the complaint investigation;
*Problems identified to the agency by community organizations or advocacy groups that are familiar with actual incidents to support their concerns;
*Problems identified to the agency by other Federal, State, or local civil rights agencies.

http://www.justice.gov/crt/about/edu/documents/lemahieubr.pdf

QuoteOn March 8, 2001, the plaintiffs filed a motion for partial summary judgment.  In their motion, the plaintiffs argued, inter alia, that they should be permitted to establish discriminatory intent, for purposes of compensatory damages under Section 504, with evidence that the defendants acted with deliberate indifference or conscious disregard of their federally protected rights.

QuoteThe deliberate indifference standard has been applied by the Supreme Court and lower federal courts as a valid method for proving
discriminatory intent under Section 504 and analogous statutes. This standard is appropriate, moreover,  because it incorporates the established principle that an entity acts with discriminatory intent when, despite being aware of discrimination in its programs or activities, it fails to act to address the problem. Accordingly, this Court should allow the plaintiffs to prove discriminatory intent (as the Ninth Circuit requires for compensatory relief under Section 504) by presenting evidence showing that the defendants acted with deliberate indifference to their rights under Section 504.

Quotethe Court recognized that a plaintiff may establish intentional discrimination through proof of "deliberate indifference." 524 U.S. at 290-91. Specifically, the Court explained that a damages remedy may be available to a plaintiff where "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [federal funding] recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails to adequately respond."

Quotethe Tenth Circuit held that, for purposes of compensatory damages under Section 504, "intentional discrimination can be inferred from a defendant's deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights."
Posted by ajasfolks2
 - June 01, 2014, 03:14:50 PM
Oh, WOW.

:thumbsup:
Posted by CMdeux
 - May 31, 2014, 09:34:49 AM
^ beautiful summation.  YES.
Posted by twinturbo
 - May 30, 2014, 01:36:49 PM
http://www.theconglomerate.org/Disney/page/2/

motivated by animus

http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1124&context=wmborj


http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3319&context=mlr

QuoteThe Court has held that the only cause of action that exists under these statutes is for intentional discrimination, but in a series of recent cases the Court has developed a framework that broadens the concept of intentional discrimination. Unfortunately, lower courts have focused on older and narrower interpretations of intentional discrimination without accounting for the more complex nuances in recent cases. Thus, lower courts con- tinue to assume that intentional discrimination includes only ac- tions that are motivated by animus or the inappropriate consideration of gender or race...  the Court has also recognized that intentional discrimination occurs when a funding recipient makes a conscious choice that frustrates the congressional objective to eliminate discrimination and inequity in federally funded programs. More specifically, the Court's decisions reveal three factors that are consistently present when the Court has imposed liability under this broader notion of intentional discrimination: whether the defendant made a value choice in regard to the challenged activity or conditions, whether permitting the activity or conditions within a federally funded program would be inconsistent with congressional objectives, and whether the defendant's choice is a cause of the continuance of the activity or condition. However, to permit plaintiffs to establish that any circumstances beyond those in the Court's recent decisions are inconsistent with congressional objectives, federal agencies must provide regulations and guidance that specifically identify those circumstances.
Posted by twinturbo
 - May 30, 2014, 01:16:59 PM
Note to myself for later.

If intent is a high standard of proof required for bad faith, which goes beyond deliberate indifference, or if we accept the argument that some Circuit courts require bad faith standards (intent must be proven) for deliberate indifference...

... could this be shown to a court or department as a culmination of critical mass by the sheer number of SEA, LEA and NSBA documents, seminars that definitively demonstrate an orchestrated intent of bad faith towards students with disabilities and their parents acting on their behalf?
Posted by ajasfolks2
 - May 16, 2014, 11:43:19 AM
Thanks!  Got it now . . .

Posted by twinturbo
 - May 15, 2014, 09:03:36 PM
Essentially, use FOIA to perform forensic accounting of a recipient's federal financial assistance when funding private attorney teams whose main purpose is to litigate against the parent of students who are QID seeking accommodations for FAPE, ADA Title II, IDEA.

How many DOE dollars are being spent on the process of denying accommodations in comparison to granting them? How are BOEs spending money in terms of top level administrator salary and legal? How are they able in terms of legal mechanism to spend funds from the Department of Education on legal assistance to help them fight against OCR oversight? Isn't that supposed to be the punitive measure to lose DOE funds for non-compliance?
Posted by ajasfolks2
 - May 15, 2014, 08:28:42 PM
TT,

You're gonna have to help me with that last paragraph of yours immediately above . . . don't fully understand.   :)
Posted by twinturbo
 - May 15, 2014, 12:06:27 PM
Would it help others if we put out a road map of resources and pitfalls in litigation beyond due process? I'd reorganize the presentation of materials, streamline, obvious emphasis on "deference" and additional evidence, and at least try to break down in easier terms the overlay of departments, regulations, decisions. Suggested options on how to proceed and gather evidence along the way. Documentation is close to religion on FAS but when I keep hearing substantive, deference and additional evidence keep coming up it does send me back to the refinement drawing board to counter the counter.

Game of Schools: You win or you get shafted.

First stop is checking some resources I found last night confirming SCOTUS denied hearing KM v Tustin letting th Ninth Circuit Court's decision for summary judgment for plaintiffs (student) stand. The Ninth Circuit Court overturning previous judgment for school based largely on deference to the DOJ amicus brief on its interpretation of regulation for "equal access" as a Title II ADA standard calling for effective communication in coexisting with IDEA requirements to satisfy FAPE--removing the hamstringing requirement of IDEA statue of limitations to seek remedy under 504, ADA.

And if this means it's now case law, precedent, a prepared advocate can keep calm, keep digging into Title II and try to argue requirements for equal access regulated by DOJ interpretation and jurisdiction.

Also, I'd like to Sunshine Act to the nth degree 'recipient' expenditures on attorney fees for stuff like this when clearly it's not to limit reasonable liability but expenditures on disabled students, and further jaded ideas about parents that is tipping the scales towards emotional motivation than organizational goal.
Posted by kcw
 - May 15, 2014, 10:47:51 AM
Interesting reading to say the least.  I thought I would just give a quick update on our situation. We haven't contacted OCR yet, and to date no more incidents have ocurred.  The amazement/frustration of what has happened in our case is that the very same discriminatory actions that caused our initial claim to be filed in Federal Court, have been repeated more than once in less than one year after signing a settlement with the school and our family.  Not to mention specific breaches in the settlement that were never followed since day one when parties agreed on the settlement.  At the end of the day, no one followed up on what had been agreed, and ultimately the Superintendent and School Board were the defendants in the claim and should be responsible.  Thankfully, however, no more reactions have ocurred with our child.

Posted by twinturbo
 - May 14, 2014, 08:48:15 PM
The argument from the DOJ's side of things. http://www.justice.gov/crt/about/app/briefs/kmtustindecision.pdf

This is Ninth Circuit. Apparently, it matters which Circuit so keeping track.  :shrug:

Oh yeah, da good stuff. No wonder they were shaking in their boots.

QuoteThe panel rejected the reasoning that (1) a valid IDEA individualized education program, or IEP, satisfies a regulation promulgated under § 504 of the Rehabilitation Act requiring schools to make available to children with disabilities a free appropriate public education; (2) § 504 and Title II are substantially similar statutes; (3) therefore, a valid IDEA IEP also satisfies Title II. The panel held that compliance with the IDEA does not doom all § 504 claims. In addition, there are material differences between § 504 and Title II of the ADA. According deference to the Department of Justice's interpretation of the ADA effective communication regulation, as expressed in an amicus brief, the panel concluded that the ADA requirements regarding students who are deaf or hard-of-hearing are different than those imposed by the IDEA. The panel reversed the grants of summary judgment on the ADA claims in both cases and on a state law claim in one of the cases and remanded for further proceedings consistent with its opinion.

Below is the brief. Above is the decision. Worth a read for a cross-section of overlap between IDEA, 504, ADA Title II, and an example where DOJ intervened. Very important now that we're crossing over from previous comfortable territory with departmental regulations into federal court and litigation. The SD is arguing against the department being able to interpret and apply regulation due to jurisdiction.

http://www.justice.gov/crt/about/app/briefs/kmtustinbr.pdf
Posted by twinturbo
 - May 14, 2014, 06:28:30 PM
I feel like I'm talking to myself here sometimes so bear with me, but I'd like to post a summary from the NSBA amicus brief to KM which is making a darned solid claim to Title II in addition to IDEA, which in previous we learned NSBA does not like in federal courts. So too are we concerned with TF's case in Circuit court currently on appeal for equitable damages for denial of FAPE.

Remember how for kcw in the other thread and for TF we were all wondering where or when was OCR and Dept of Ed, and how we're all struggling with the PITA "reasonable" is where regulations and Letter to Zirkel spell out the application of the standard differently than federal court determination. In that stew we had brewing we have Woodrum's fantastic blog entry that reminds us how to contextualize it all.

Well, I'm calling it a battle of obligation and jurisdiction pitting budgets against progress for civil rights in education. What's weird in the scrabbling for resource management where in the world is the thinking on the forefront under control of the school administrators to grant low to no cost accommodations in order to avoid a huge outpouring of pure money out to litigation. There is not enough oversight or transparency in either the budgeting or procedures and I'm not sure if it's the work of lazy administrators or if the system is so jacked it needs to be razed and rebuilt from the ground up. Off soapbox.

QuoteFinally, K.M.'s deference to and adoption of DOJ's views regarding § 35.160's interaction with the IDEA not only is inconsistent with SmithKline's limits on Auer deference,14 but also improperly stands on an agency's interpretation of a statute outside of its jurisdiction. DOJ's interpretation of § 35.160 constitutes an unauthorized extension of the obligations imposed by the ADA that effectively subsumes and nullifies portions of the IDEA. Specifically, while DOJ is authorized to promulgate regulations for and interpret the ADA (e.g., Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597- 98 (1999)), DOJ has no such authority with regard to the IDEA, for which the U.S. Department of Education is responsible (e.g., D.P. ex rel. E.P. v. School Bd. of Broward Cnty., 483 F.3d 725, 730-31 (11th Cir. 2007)). Because DOJ's position is based on an interpretation of the IDEA, it goes too far and should not have received deference. See Ardestani v. I.N.S., 502 U.S. 129, 148 (1991) (―courts do not owe deference to an agency's interpretation of statutes outside its particular expertise and special charge to administer.‖) (citations omitted); Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 650 (1990) (―it is fundamental  ̳that an agency may not bootstrap itself into an area in which it has no jurisdiction.'‖) (citation omitted).

Are we really at the point that an association of school administrators is going to take on and "win" against the Department of Justice so qualified individuals with disabilities don't get "too much"? DOJ cedes jurisdiction over Title II and 504 with respect to primary and secondary education but clearly DOE is able to hand off cases to them per the Case Processing Manual, with specific qualifications of course but it's not like it's so far removed to have a Title II obligation beyond 504 or IDEA if greater protections prevail.
Posted by twinturbo
 - May 14, 2014, 05:11:28 PM
It should be noted that some of these private attorneys hired for the presentation to public school administrators are themselves involved in shaping laws and politics wrt disabled students, special education at the state and federal level. Much like I would describe my father as a lifer in military and law enforcement I would similarly describe this crew as lifers in school administration law.

For me the real stench of brimstone came when the groupthink circled around "good intentions" when clearly the totality of actions and conversation were not geared towards the intent of fulfilling the spirit of FAPE at all, and minimizing the letter wherever possible. I would go so far to say they've seen some bad apples and certainly overextension of FAPE obligation, but when they start thinking how to chip away at the progress and good for society these constitutional and civil rights are for kids in education it's hard to not ask yourself at what point did they get so jaded everyone should lose, or oh-no, parents "win".
Posted by twinturbo
 - May 14, 2014, 04:35:38 PM
It may be less ominous in context. I saw it as an identified problem in that there were too many hearing officers positions being filled with persons with not enough education knowledge or background, rather weighted too much towards legal making the hearing decisions a little less useful for all parties.

On the other hand it may be fair to interpret that too many hearing officers are selected from the ranks of JDs instead of Ed D,  M Ed, for example.

Or, that they must be JDs but the present set are as a group trending towards legal balanced away from knowledgable of education, and it shows in poorly written decisions without enough substantive information that in a way causes more litigation by not providing clear solution at due process.

They were big on well written substantive hearing decisions. In retrospect that may be causing some headache on both sides.

As to why your blood ran cold upon reading I suspect it's the statement that they cited policies over judiciary as the final word, meaning whim of the district over the law. The law protects students, and by taking a contrary stance to the law those charged with educating the students are assuming an oppositional posture to both the law (Dept Ed/OCR oversight) and the disabled students.
Posted by ajasfolks2
 - May 14, 2014, 04:15:06 PM
Quote
Movement from educational experts to legal experts as hearing officers.

Courts should show deference to solidly written decisions by hearing officers. Judiciary lacks special knowledge of educational policies.


Refresh my memory -- are the hearing officers also attorneys?  Or does this vary by school district?

Aren't the hearing officers in bed with the school districts already?

Why did my blood run cold when I read the above quote for the first time?