Special Education and the Law

1. Special Education and the Law EDLPS 516/EDSPE 504 Winter Quarter January 7, 2010 Sherrie Brown, J.D., Ed.D. sbrown@u.washington.edu

2. Agenda for Tonight • Introductions • Syllabus Review • American Legal System • Reading Court Opinions • Writing Case Briefs

3. Why Educators Need to be Legally Literate • In the US all issues become, “sooner or later, a subject of judicial debate.” (de Tocqueville) • Be clear on responsibilities in instruction and expectations of society in order to protect themselves from liability. • Be cognizant of their rights in the performance of their duties. • To appreciate the influence of the American Legal System (which is broader than simply court decisions) on the policy decisions made in public education. • Be familiar with the basics of our system of government to adequately prepare children to be informed citizens.

4. AMERICAN LEGAL SYSTEM—the BASICS • The United States is a federal system—what does that mean • What are the sources of law? • How does the court get involved in judgment of the other branches of government?

5. Federalism is… • Union of fifty states under one central government authority. • And, it is a system of parallel governments-local, state, federal. • There is a shared power between these parallel systems, but the federal constitution and statutory laws have supremacy. Marbury v. Madison

6. Sources of Law… • Constitution • Legislative acts - i.e., statutes • Administrative/regulatory law • Court decisions - court or case law. (common law)

7. Courts get involved by • Applying principles of law to specific set of facts—settle disputes. • Construing or interpreting legislative or regulatory enactments. • Statutory interpretation--philosophy of courts varies. Strict construction, liberal, plain meaning. • Determining the constitutionality of legislative or administrative actions.

8. STATE COURTS • Courts of Limited Jurisdiction--lower trial courts. Municipal, county courts, small claims, traffic, probate. SEATTLE MUNICIPAL COURT. Not published • Courts of General Jurisdiction (your text calls these original jurisdiction courts)-major trial courts. KING COUNTY SUPERIOR COURT. Not usually published • Intermediate Appellate Courts--they hear appeals from trial courts and administrative agencies. THREE COURTS OF APPEALS in Washington. (Northwest, Southwest and all of Eastern Washington) Division I, II, III (Seattle, Tacoma, Spokane) (Wash App. P2d) Generally published • Courts of Last Resort-often called the Supreme Court. WASH STATE SUPREME (Wash, Wash 2d) PUBLISHED

9. FEDERAL COURTS • District Courts--at least one in every state, usually more than two. In Washington we have Eastern District and Western District. Cases generally either between citizens of different states or involving litigation of federal statutes or the federal constitution. (F.Supp) • Courts of Appeals--there are 13 courts of appeals. –11 geographic circuits and one for DC, one federal . Decides issues of law not fact. 9th Circuit Court of Appeals (Calif, Oregon, Alaska, Montana, Idaho, Nevada, Arizona) F2d, F3d (9th Cir.) • Courts of Special Jurisdiction--e.g. Tax Court, Customs Courts, etc. Federal Circuit • Supreme Court--no redress. Brought before Supremes by appeal (writ of certiorari) or through original jurisdiction. Cases such as state statute or federal statute is questioned or any right or privilege is claimed under the Constitution. Requires 4/9 judges. Very political, private. (U.S.)

10. FINDING COURT DECISIONS • Federal cases: • US Supreme Court Decisions can be found in the official report, United States Reports. Brown v. Board of Education of Topeka, Kansas, 349 U.S. 294 (1955) vol 349 of the reports at page 294. • US Courts of Appeals reported in Federal Reporter, Second Series. Clark v. Whitting, 607 F.2d 634 (4th Cir. 1979). • US District Courts reported in Federal Supplement (F.Supp.) Ponton v. Newport News School Board, 632 F.Supp. 1056 (E.D.Va. 1986) • State cases: • State Supreme Court and State Appellate cases often in more than one set. Washington Reports and Pacific Reporter. (P.2d) • HINT: First page of a decision generally gives a good summary of the court history, decision, official name and date of case.

11. FINDING STATUTES • Federal statutes are officially compiled according to topic in the United States Code (U.S.C.) • Unofficial annotated editions are available in the US Code Annotated (USCA) • Congressional acts in their chronological order of passage are compiled in the US Statutes at Large (Stat.) by Public Law number P.L. • 94-142 means 142nd law passed by the 94 Congressional session—not the year. • Citations to the statutes are not reflective of the changes • 94-142 is commonly used to refer to special education law—but the content of EHA or 94-142 is significantly different than the IDEA which is now the federal special education law.

12. RULES AND REGULATIONS • Agencies issue rules and regulations designed to assist in the implementation of federal statutes and are published in the Federal Register (Fed. Reg.) and then the Code of Federal Regulations (CFR).

13. Test your Knowledge • What does RCW 28A.600.220 mean? • What does WAC 190-40-245 mean?

14. What is the goal of reading a case decision? • To find the rule(s) that the judge(s) pronounces. • Anything else that may be written in the opinion --e.g., anything not particular to resolving the issue before the court--is known as dicta. • Dicta is not binding.

15. Case Analysis • Is a skill and like any other…takes time to develop. • Don’t get discouraged by the legalese, cases are really just stories about people like you and me. • Try the framework I am giving you today. • Hint: it is always a good idea to read the opinion.

16. Analyzing Court Decisions: aka briefing a case • Title and citation (where to find it again and how to reference it in a discussion) • Level or type of court hearing the case • Relevant facts involved in the case • Disputed issue or issues in the case • Holdings of the court • Legal doctrine or principle supporting the decision—i.e., rationale/reasoning. • Significance of the decision regarding future actions

17. FACTS • Who did what to whom and why are they in court? • What facts are necessary to make a decision—i.e., what is legally relevant. • Often difficult to decide—especially as you are learning how to brief—what is relevant. • When in doubt, keep it in.

18. ISSUE(s) • What question is the plaintiff asking the court to address? • There may be substantive legal issue(s) and procedural legal issue(s). • We are interested in the substantive ones only in this class.

19. HOLDING • How does the court answer the question or issue? • Can be a yes/no answer • More often it is a mixed

20. REASONING/RATIONALE • How does the court reach its holding in the case—i.e., why does the court answer the question the way it does? • Justification for the ruling • Guidelines for future situations

21. SIGNIFICANCE • Why is this decision (holding and reasoning) important for the future behavior of similar parties? • Does the decision have additional significance for other parties because of the court’s holding?

22. Olmstead v. L.C., 527 U.S. 581 (1999) • Two women “voluntarily” entered a state hospital for individuals with cognitive impairments (mental retardation and/or mental illness) to receive treatment. • They were declared “fit” to return to community, were not allowed to leave because the state declared there were no appropriate supports available for them in the community. • They sued the state arguing that Title II of the ADA prohibits a public entity from discriminating against qualified persons with disabilities. • The term "discrimination" includes the failure of a public entity to administer its programs in the most integrated setting appropriate to the needs of qualified individuals with disabilities. • Further, a public entity must make reasonable modifications to it policies and practices unless such measures would fundamentally alter the nature of the public entity's program.

23. ISSUE • Does the nondiscrimination mandate (under Title II) require placement of persons with disabilities in community settings rather than in institutions in certain circumstances, in order to achieve the "integration" requirement?

24. HOLDING • Qualified YES. Unnecessary institutionalization violates civil rights of people with disabilities • States are required to make reasonable modifications in order to serve people in the community when: • The individual desires to live in a community setting; • The state’s treatment professionals determine community placement is appropriate; and • The placement can be reasonably accommodated, considering the resources available to the state and the needs of others receiving services from the state.

25. REASONING • Supremes show deference to Department of Justice regulations: 1) unjustified placement or retention of persons in institutions constitutes discrimination “by reason of disability” under Title II and 2) reasonable modifications to programs/services required. • Looks to purpose behind ADA passage and statutory language. • Modifies the Court of Appeals construction of “reasonable modification” regulation to provide State some defense to obligation to immediately find placements in the community. • Opines that states have obligation to administer services “with an even hand” and may consider resources available and the range of services required for others in State.

26. SIGNIFICANCE • States have clear duty to follow the inclusion/least restrictive mandate for those individuals who wish to live in the community and who are determined to be ready to do so. • Resources of the state CAN be a factor in how quickly the inclusion occurs. • All state provided services—not just residential—must also follow the least restrictive mandate.