Educational Rights and Realities of Blind Students

1. Educational Rights and Realities of Blind Students 2019 JACOBUS TENBROEK DISABILITY LAW SYMPOSIUM NFB Jernigan Institute, Baltimore, MD 10:00-11:00 a.m. Friday, March 29, 2019

2. Carlton Anne Cook Walker Owner of C.A.C. Walker, Attorney at Law Owner of BEAR—Blindness Educational and Advocacy Resources President, National Organization of Parents of Blind Children, a proud division of the National Federation of the Blind Certified Teacher of Blind Students

3. Anna Catherine Walker High school senior, Commonwealth Charter Academy • Academics taught through a virtual platform • Related services received in person at home • Attended brick-and-mortar public schools through the end of tenth grade Dual-enrolled at Harrisburg Area Community College • On campus classes at both the Harrisburg and York campuses • Online classes as well President, Capital Chapter of the National Federation of the Blind of Pennsylvania Vice-president of the Pennsylvania Association of Blind Students

4. Eligibility for Blind Students • Definition • Varying state regulations and local implementation • May 22, 2017 Dear Colleague Letter on this issue • Despite this guidance, state regulations and local implementation continue to vary

5. Importance of Accurate and Complete Identification of All Areas of Disability • Assessment tools must meet IDEA requirements • In the blindness field (also inaccurately and unfortunately called the “vision” field), the most commonly-used assessments do not meet IDEA requirements • Valid assessments exist, but many educators do not use them • When other disabilities are present, blindness is often not identified • Students who are twice exceptional, thrice exceptional, or having even more exceptionalities (both disabilities and giftedness) often “fall through the cracks” • Accuracy of identification DOES matter • IDEA requirement • Implementation of the Braille Provision dependent on VI/B identification

6. Special Factors • 20 U.S.C. section 1414 (d)(3)(B)(i-v) • Must be considered at EVERY IEP meeting • Behavior impeding the learning of self or others • Limited English proficiency • Braille provision • Communication needs • Assistive technology

7. Behavior impeding the learning of self or others • “in the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior” [20 U.S.C. section 1414 (d)(3)(B)(i)] • Big warning flag! • Sometimes used to pigeonhole children and then ignore their real needs • For students with sensory disabilities, like blindness, IEP inadequacy can cause behavioral problems • Dear Colleague Letter of August 1, 2016 • We must look at the adequacy of the IEP and its implementation • Must address behavior in the meantime • However, data regarding IEP implementation must be taken and reviewed

8. Limited English proficiency • “in the case of a child with limited English proficiency, consider the language needs of the child as such needs relate to the child’s IEP” [20 U.S.C. section 1414 (d)(3)(B)(ii)] • Blind children with limited English proficiency often fall through the cracks • Double whammy of low expectations • Often, instruction in blindness skills is delayed for years • Parents may also resist blindness identification • Help them learn about blindness and the benefits of blindness skills • Contact members of the National Federation of the Blind in your area to provide mentorship to both the parents and the child

9. Braille provision • “in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child’s reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child’s future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child” [20 U.S.C. section 1414 (d)(3)(B)(iii)] • ONLY available to students identified as having the disability of “visual impairment, including blindness.” • Braille provision does not apply to children identified as having: • Multiple Disabilities • Traumatic Brain Injury • Other Health Impairment • Deafness • Intellectual Disabilities • Braille provision does not necessarily even apply to children identified as having “Deaf-blindness”

10. Braille Provision, continued • ONLY available to students identified as having the disability of “visual impairment, including blindness.” • Braille provision does not apply to children identified as having disabilities which are often co-morbid with blindness and low vision, such as: • Multiple Disabilities • Traumatic Brain Injury • Other Health Impairment • Deafness • Intellectual Disabilities • Braille provision does not necessarily even apply to children identified as having “Deaf-blindness” • Identification as a child with “visual impairment, including blindness” is vital

11. More on the Braille Provision • June 19, 2013 Dear Colleague letter reiterated plain language of the statute • Literacy/Learning Media Assessments • Law calls for literacy assessments, not learning media assessments • Only one meets the dictates of the law: National Reading Media Assessment (NRMA) • More commonly-used Learning Media Assessment (LMA) not appropriate • Highly subjective; not standardized • Not validated, despite being in existence for more than three decades • Uses improper legal standard (created before final Federal regulation passed) • Functional Vision Assessments • Not required by federal law, but some states do require them • A cause of concern—seeks to “maximize” vision—even when doing so limits the child

12. Communication needs • “consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child’s language and communication needs, opportunities for direct communications with peers and professional personnel in the child’s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child’s language and communication mode” [20 U.S.C. section 1414 (d)(3)(B)(iv)] • Many districts are “checking” this box for EVERY student receiving any level of speech therapy • Meeting these needs especially important for blind children • Many rely on sound more than non-disabled peers • Be careful to limit over-reliance on audio (a real risk for blind students)

13. Assistive technology • “consider whether the child needs assistive technology devices and services” [20 U.S.C. section 1414 (d)(3)(B)(v)] • Assistive technology definition is very comprehensive • Without qualification, ALL blind/low vision students should be using assistive technology • All assistive technology used should be documented in the IEP • Under the federal definition, may include assistive technology instruction for parents, family members, school staff, outside therapists, etc. in the IEP as an “Assistive Technology Service”

14. Current/Present Levels • THE most important part of any IEP • If we don’t know where we are, how can we get going • Again, assessments must meet IDEA guidelines • Valid, administered appropriately • Unbiased, especially for disability • Again, ALL areas must be assessed • Keep FAPE in mind • To the maximum extent possible, student should be on par with non-disabled peers • Information about additional needs (Braille instruction, etc.) must be included also • Note that “outside factors” such as time, day of week, etc. may impact assessments and student performance

15. Parentally-placed Private and Homeschooling • Federal law • Private school: Not much protection • Home school: No protection • Focus is FAPE: Free Appropriate PUBLIC Education • Trend seems to be reduction in services provided • Some states provide additional resources • By law (in Kansas, homeschools are considered private schools) • By custom in the district • As a way to keep a high-needs child out of the public education system • Also, note that children with blindness (legal or functional) qualify for a stipend of money from the federal government called “Federal Quota” funds • Only for students in “the public and private nonprofit institutions in which blind pupils are educated” • State homeschool law can become quite important

16. Public Charter Schools • Offer a new opportunity for students with disabilities • Availability based on what home state offers • Brick-and-mortar • Cyber (online, distance) • Public charter schools MUST follow federal law • IDEA • Section 504 • Some continue to claim a right to exclude students with disabilities • Rejected by the U.S. Department of Education (both OSERS And OCR) • December 28, 2016 Dear Colleague Letter and accompanying FAQs (one for IDEA and one for Section 504)

17. Endrew • Endrew F. v. Douglas County School District, 580 U.S. ___; 137 S. Ct. 988; 197 L. Ed. 2d 335 (2017) • Ruling on Free Appropriate Public Education • We were a bit concerned about this case • Court did not overrule Rowley, but reversed the lower court—Why? • “When all is said and done, a student offered an educational program providing "merely more than de minimis " progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly ... awaiting the time when they were old enough to ‘drop out.”’ Rowley,458 U.S., at 179, 102 S.Ct. 3034 (some internal quotation marks omitted). The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” • Rejects parents’ argument: “FAPE is ‘an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.’” • An 8-0 decision • Hon. Neil Gorsuch was not yet confirmed • He ruled differently on a similar case (Thompson R2-J School v. Luke P., et al, involving another child with autism)

18. Legacy of Endrew • Maybe, FAPE means something more than it did after Rowley • Still, state Hearing Officers and school district attorneys are minimizing the impact of Endrew • Will likely make more “hay” at lower levels • Pre-IEP communications • IEP meetings • Must craft arguments carefully • More than ever, utilize language from to Endrew decision • Illustrate the possibilities • Raise expectations of students—and of school personnel

19. Fry • Fry v. Napoleon Community Schools, 580 U.S. ___; 137 S. Ct. 743; 197 L. Ed. 2d 46 (2017) • Exhaustion requirements of IDEA • “One clue to the gravamen of a complaint can come from asking a pair of hypothetical questions. • First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school? • Second, could an adult at the school have pressed essentially the same grievance? • When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject. • But when the answer is no, then the complaint probably does concern a FAPE. A further sign of the gravamen of a suit can emerge from the history of the proceedings. Prior pursuit of the IDEA’s administrative remedies may provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.” Pp. 13–18

20. Legacy of Fry • A potentially larger impact • Must guard against claims of “artful pleading” • Nevertheless, non-instructional (those which potentially impact parents and staff) issues should fall squarely within the purview of Section 504 • Braille materials • Accessible electronic materials • Accessible software • Accessible technology

21. IEP versus Section 504 • For years, students have been told how lucky they are to have IEPs • They have been warned about the “loss of IEP protections” waiting for them in the post-secondary environment • Are these warnings valid?

22. Accessibility Under IEP vs. 504 • Dual enrollment student • High school classes • Brick-and-mortar • Cyber Charter • Post-secondary classes • Community College classes • Accessibility • Major differences • Responsibility of the student • Responsibility of the institution

23. Post-secondary World • Disassociation from “individualism” • Acknowledgement of institutional responsibility • Reality of lack of universal instructor understand of needs/buy-in • Increased student responsibility • Outcomes

24. Areas of Relative Strength • Institutional understanding of Section 504 responsibilities • Institutional development of accessibility services • Focus on accessibility of information • Relieved from instructional component of accessibility • Ability to rely on standardized criteria for accessibility

25. Areas Where Growth Is Still Needed • “Low incidence” accessibility needs still must be addressed • “Difficult” accommodations still must be addressed • “Expensive” accommodations still must be addressed • “This” is everyone’s job, regardless of status, tenure, field, etc.

26. Questions

27. Contact us • Carlton Anne Cook Walker • AttorneyWalker@gmail.com • Cell: (717) 658-9894 (voice or text) • 101 Kelly Drive, Carlisle, PA, 17015 • Anna Catherine Walker • MissAnnaWalker@gmail.com • Cell: (717) 658-9239 (voice or text) • 101 Kelly Drive, Carlisle, PA, 17015