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AUTISM FIRST STEPS
AUTISM DAILY NEWSLETTER
Tuesday, November 20, 2001
INDEX:
* "U.S. Supreme Court to hear FERPA case (privacy and
educational records)"
* "Study
to Profile Secrets of 15 Urban Leaders' Success"
* "Eucation Nearing Release of Accreditation System"
* "Parents
give their opinions on special ed plan"
* "Controversial Judicial Picks (Including
Sutton) Wait"
* Last Push Needed for Family Opportunity Act Before Congress
Recesses on Nov. 17th
********************************
"U.S. Supreme Court to hear FERPA case (privacy and educational records)"
SpecialEdLaw.net e-Newsletter, November 13, 2001
High Court Faces First School Records Case; Privacy case could have wide
impact
Marcia Coyle, The National Law Journal, November 13, 2001
A dispute in the U.S. Supreme Court over students' grading each other's tests
and homework papers may emerge as the "sleeper" case of the term with
potential ramifications for much civil rights litigation.
The Court is asked whether allowing students to grade one another's classwork
while the teacher reads the answers aloud violates a federal law that bans the
release of "education records." Owasso Independent School District v.
Falvo, No. 00-1073, to be argued Nov. 27.
The federal Family Educational Rights and Privacy Act has been on the books
since 1974, but the justices are examining it for the first time.
The challenge appears to require the justices to engage in a classic exercise
of statutory interpretation: Are student-graded homework and classroom work
"educational records" under the law?
But two background issues, if addressed by the Court, could carry the
decision's impact far beyond classrooms in Owasso, Okla., says education law
scholar William Kaplin of Catholic University School of Law. The justices may
consider whether there is in fact a private cause of action to enforce the
statute and whether federal courts should defer to "opinion letters"
issued by federal agencies on questions arising under federal laws.
"Those two issues make the case much more interesting to the Court and the
legal world," Kaplin says. The issue of a private cause of action under
Section 1983 of the Civil Rights Act of 1964, he says, could affect a range of
actions under other federal statutes.
"This raises the stakes in the case," he says, "but it all
depends on what the Court does."
The education act conditions federal funding on schools' making education
records available to parents for inspection and review. It protects students'
rights of privacy by limiting the release of those records without parental
consent.
The law defines "education records" as files, documents and other
materials which "contain information directly related to a student; and
are maintained by an educational agency or institution or by a person acting
for such agency or institution."
"There's not been much litigation over the meaning of 'education
record,'" says Julie Lewis, staff attorney to the Alexandria, Va.-based
National School Boards Association, which is supporting the Owasso school
district. But since the law's enactment, she says, the Department of
Education's compliance office has issued hundreds of opinion letters on its
meaning.
"It seems a straightforward statute, but it has become cumbersome with
implementation, particularly with the evolution of technology," she says.
"It is actually becoming quite controversial."
But it wasn't a new practice, but an old one that drove Kristja Falvo to seek
the law's protection. Falvo had four children in Owasso schools from 1997 to
1999. Her son Philip, a special education student, attended a mainstream class
three days a week. As he became increasingly frustrated and upset with the
mainstream class, Falvo began to hunt for explanations, says her counsel Will
Wright Jr. of The Drummond Law Firm in Claremore, Okla.
'HUMILIATED'
"She got Philip to explain, and he said he felt humiliated by the
teacher's practice of having the students grade each other's papers and then
call out the grade for the teacher to record it," says Wright. Philip is a
slow reader, he says, and his grades were often lower than the other
children's.
Even Falvo's two daughters -- both "A" students -- said they disliked
the practice in their schools because they felt pressured to give better grades
than their friends earned.
The record shows that the school district made every effort to accommodate this
family, says Jerry A. Richardson of Tulsa, Okla.'s Rosenstein, Fist &
Ringold, counsel to the district.
And even though the district defends the practice as providing immediate
feedback to students, he says, "The teachers said, 'Fine,' and they
changed the grading policies for these particular children. But this parent
said, 'You need to change your policies for everyone' and the school district
said, 'We can't do that.' " The 10th U.S. Circuit Court of Appeals agreed
with Falvo, holding that the grading practice violated the privacy law. The
appellate panel refused to defer to a 1993 Education Department opinion letter
that found no problem with the grading practice.
The court said that when one student grades another's work, the grade is
"maintained" because the student is "preserving the grade until
the time it is reported to the teacher for further use."
Because the law protects grades in a teacher's grade book from disclosure, the
court said, it didn't make sense to permit disclosure of the grades by the
teacher right before recording them.
But Richardson -- supported by the Bush administration and several national
education associations -- says, "Congress was clearly intending only to
address institutional records that were going to follow someone throughout
their educational career and might have an impact on future educational or
employment activities."
The ruling brings into question a host of practices that could unintentionally
reveal a student's academic status, he adds.
For example, football is very big in the Southwest. Oklahoma has a "no
pass, no play" law which requires a weekly check of player's grade
averages.
"If a quarterback isn't playing on a Saturday night, does that reveal his
grades?" asks Richardson.
In the high court, he says, he will stress the statute's language and its
legislative history as well as the practical and detrimental consequences of
the 10th Circuit ruling.
OTHER TEACHING METHODS
Wright, his opponent, says, "I hang my hat on the plain language of the
statute." The 10th Circuit, he adds, "read right through the school
district's argument. It said there are other means to accomplish this than
having children call out grades. Students could grade their own papers or
simple forms could be mailed to parents to obtain their permission."
Both lawyers say they are prepared to argue the case's shadow issues involving
whether there is a private cause of action under Section 1983 to enforce the
privacy law and what, if any, deference should be given to an agency's opinion
letter, even though those issues are not in the question presented for high
court review.
The National Education Association, the National School Boards Association and
others urge the justices to take up the Section 1983 issue and find that
individuals cannot sue to enforce the act.
"This issue has come up either directly or tangentially in other federal
statutes that provide funding," says NEA counsel Robert Chanin of
Washington, D.C.'s Bredhoff & Kaiser.
"We think the precedents very clearly support what we're saying:
Individuals can't sue, and the sole remedy for violations is to have funding
cut off."
The school system is also relying "heavily" on the hope that the
Supreme Court will defer to the Education Department's opinion letter, says
Catholic's Kaplin. "But the trend is quite clearly to the contrary."
The justices in recent cases refused to defer to Education Department
guidelines on Title IX that underwent publication and much more process than
the opinion letter, he explains.
But the "ultimate problem" with which the justices will wrestle, says
Owasso's Richardson, is "How important are hurt feelings in the context of
day-to-day activities in the classroom?
"Kids are mean to one another from time to time. It's unfortunate, but is
that what Congress was really intending to protect?"
For today's headlines in Education Law, go to http://www.specialedlaw.net.
***********************************
"Study to Profile Secrets of 15 Urban Leaders' Success"By Mark
Stricherz, Education Week A new study will profile 15 successful
urban superintendents, examining how they seek to raise student achievement and
overcome urban woes. The American Association of School Administrators, a
membership organization based in Arlington, Va., has named 11 superintendents
for the study and plans to add four more. They will serve as examples for the
two-year, $1.2 million study, much of which will deal with student learning.
"We know that outstanding superintendents are able to anticipate, to
communicate, and to bring communities together," Paul D. Houston, the
executive director of the association, said in a statement announcing the
choices. How urban superintendents spend their time and whether they have
improved achievement will be among the questions posed, said Sharon
Adams-Taylor, the director of members' networks and child initiatives for the
association. The study will also look at how the district chiefs deal with
budget crunches, large numbers of needy students, and clashes with school
boards, AASA spokeswoman Barbara Knisely said. The study is being conducted in
the hope of influencing how urban school leaders are trained and recruited.
Once wrapped up, Ms. Taylor said, the case studies will be given to school
boards and state education agencies. Schools Chiefs TappedCarol
Johnson, the superintendent of the 49,300-student Minneapolis public schools,
isn't slated to meet with the project's researchers until at least February.
But she said she plans to tell them about her wide-ranging programs. Among those
efforts are forging partnerships with local businesses, expanding the use of
data for schools, and targeting poor and minority students for improved
achievement. Ms. Johnson added: "This is my fifth year on the job, and the
average tenure of urban superintendents has been less than three years."
The Wallace-Reader's Digest Fund is paying for the study, which the Cosmos
Corp. of Bethesda, Md., will conduct. The urban superintendents to be studied
were nominated by researchers, national and state association representatives,
and fellow urban schools chiefs. Besides Ms. Johnson, the superintendents
chosen so far are: Alan D. Bersin of San Diego; Barbara Byrd-Bennett of
Cleveland; Carl Cohn of Long Beach, Calif.; Beverly Hall of Atlanta; Clifford
Janney of Rochester, N.Y.; Diana Lam of Providence, R.I.; Joseph Olchefske of
Seattle; Thomas W. Payzant of Boston; Eric Smith of Charlotte-Mecklenburg,
N.C.; and Carrol Thomas Jr. of Beaumont, Texas.
********************************
"Eucation Nearing Release of Accreditation System"Gongwer
News Service, Nov. 16, 2001 The state would look at
the progress of students between grades as well as their scores on particular
tests in deciding which school districts would receive state sanction and which
would need state assistance. A draft of the proposed accreditation
system, <I style="mso-bidi-font-style: normal">Education YES!
Yardstick for Excellent Schools, obtained by <I
style="mso-bidi-font-style: normal">Gongwer News Service this
week, includes 10 areas where schools will have to report on their efforts to
improve student achievement in addition to Michigan Educational Assessment
Program test scores. And the scores will be examined not only for each
school building each year, but also for groups of students as they move up
through the grades. Each of the 10 factors outlined in the report would
be assigned a point value, with overall points determining accreditation.
The exact point values and weight of each factor has not been set, but Deputy
Superintendent of Public Instruction William Bushaw said those scales will be
set before the system is presented to the State Board of Education next
month. “This is an early draft. This was just to get some ideas out
to various groups for comments,” said William Bushaw, the deputy superintendent
of public instruction charged with creating the new system. Groups that
were threatening to sue over the previous accreditation system were welcoming
the proposal to be presented to the State Board of Education next month.
“While it needs attention and thorough review, our initial reaction was very
much in support of what the draft intends to do,” said Tony Derezinski with the
Michigan Association of School Boards. In addition to being based on
factors other than the MEAP tests, Mr. Derezinski said the proposal also took a
more positive stance toward accreditation. Margaret Trimer-Hartley with
the Michigan Education Association said her group is still reviewing the
proposal but is pleased with the overall direction Superintendent of Public
Instruction Tom Watkins has taken discussions of accreditation. But Greg
McNeilly, executive director of Choices for Children, an education reform
group, said the new system essentially waters down accreditation. “It’s
filled with platitudes and slick phrases that sidestep meaning,” he said of the
draft report. “It makes a mockery of accountability.” Mr. McNeilly
said there was value to all of the ideas the proposal would push, but that they
could not validly be used to measure performance. “I’m sure every school
has a plan to improve,” he said. “But having a plan and executing it is a
far different thing. … It not a yardstick that going to provide any meaningful
measurement.” Mr. Bushaw said the new system would lean heavily toward
MEAP results for measuring school performance, looking at the prior three years
of test scores to look at trends rather than a single-year snapshot of
performance. “The achievement component will have by far the greatest
weight,” he said. “Good intentions will not be good enough. We will
need to see improvements in student achievement.” At the elementary
school level, students would be evaluated only on reading and mathematics
scores. “We know children who cannot read independently or use numbers to
solve problems will be unprepared to enjoy their full rights of citizenship in
the 21st century,” the draft said. “Now is the time to do everything
necessary to ensure that every Michigan child can read and compute
independently.” At middle school, the analysis expands to all areas of
the MEAP tests: reading, writing, math, science and social studies. High
school achievement would be measured by proportions of students obtaining
Michigan Merit Award scholarships, which would bring in American College Test,
Scholastic Aptitude Test and Work Keys scores to the overall accreditation
system. Individual student scores would also be part of the assessment
mix, tracking, at least initially, math and reading scores across grades for
students who remain in a district. “All Michigan children should be
guaranteed at least on year of growth for each year of instruction,” the draft
report said. Scores for a student in seventh grade and high school should
be at least as high as that student scored in fourth grade. “This is a common
sense approach that will encourage curricular alignment from grade to grade and
from school to school, particularly as students move from elementary to middle
and on to high school,” the report said. It estimated at least 50 percent
of the students in each district would be able to be tracked through this
system. The limited initial sampling is intended to give school districts
time to adjust to the new use of the data, the report said. In addition
to test scores, the system would also look at student participation in the MEAP
and other state assessments and student participation in general through
attendance and dropout rates. But the system would also require schools
to look at the efforts going into raising achievement beyond textbooks and
worksheets. Schools would be required to have a continuous improvement
plan in place and to offer professional development to staff. “There are
a host of programs and agencies across Michigan that engage schools in
meaningful improvement activities,” the report said. “Teachers cannot do
the job if they do not have content knowledge and the teaching skills to put
theory into practice.” Though he agreed these were legitimate measures of
progress for a school, Mr. Derezinski said school boards would be concerned
about putting too much weight on issues that could hinge on district
budgets. Schools have argued for many years that the state is not
providing enough funding for sufficient professional development
programs. Similar concerns could also be raised about requirements that
schools have extended learning opportunities, which would include summer school
and after school programs as well as early childhood programs for at-risk
children. In high school, the proposal would require advanced placement
or dual enrollment programs that would allow students to obtain some college
credit if they so chose. High schools would also be required to have
education and employment plans for all students, an idea based on the
Individual Education Plan required for special education students. “The
plan is a personal document in which a student, with the help of school staff,
identifies career goals, lists interests and skills that align with those
goals, and records the experiences, education, and accomplishments he or she wants
to acquire to successfully attain them,” the draft said. “Schools will
get credit for the percentage of students that are actively following a
plan.” In addition to all of the programs aimed at staff and students,
schools also would be required to have programs aimed at parents.
“Regular contact between teachers and parents and parent attendance at school
makes a significant difference,” the draft said. “We should encourage a
variety of forms of regular communication with parents, using both traditional
channels and cutting-edge tools such as voice mail, email, and Web-based parent
reporting.” Nancy Stanley with the Michigan Association of School
Administrators said she has heard largely positive comments about the draft,
but said administrators were concerned about the potential need for statutory
changes. “There are some concerns about some of the good parts in the
statute,” she said. With the statute open for amendment, some provisions
the group likes could be changed along with the adjustments needed to meet the
accreditation proposal. Ms. Stanley said administrators also were still
concerned about using the results of the accreditation system. “Our
biggest concern is still once you recognize schools that are not achieving,
what do you do with those?” she said. “Do we have sufficient
resources?” The report said the goal of the system is to identify not
only the districts having difficulties but also those districts with ideas that
might aid others. “Helping low achieving schools improve is one of our
greatest needs,” the report said. “We know that there are many schools
that want help. Michigan must commit all possible resources to this
effort.” Singling out the exemplary schools could provide additional
resources to those struggling the report said. “We know that we can take
advantage of peer learning as an important tool.” But the report also
calls on the Department of Education to work with education and business groups
to develop other resources for schools and districts. Mr. Bushaw said the
department plans to seek consensus from the board and those other interest
groups on the proposal, including the House and Senate Education Committees,
early this year. Department officials would then develop needed changes
to the School Code in time to have it approved before school starts in the fall.
*******************************![]()
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"Parents
give their opinions on special ed plan" By Cameron Conant, The Grand Rapids
Press Tori Dandeneau's initial reaction to the Michigan
Department of Education's 150-page list of proposed changes for special
education was confusion. "This isn't English," she said.
"I can't make heads or tails of it." Once she understood some of the
proposed changes, confusion gave way to concern. "I'm worried about losing
standards. I'm worried about losing what we already have," said Dandeneau,
whose 7-year-old son is autistic. About 200 parents and teachers joined
Dandeneau to voice their opinions on the state's proposed changes at a forum
Tuesday at the Kent County Intermediate School District Building. The
Department of Education recently finished the last of four hearings on the
rules changes and has continued to conduct such forums as Tuesday's statewide.
Superintendent for Public Instruction Tom Watkins said that public feedback is
important. "What we're doing tonight is putting a human face on an administrative
process," he said. Many on hand were concerned about the state's proposal
to shift a number of special education decisions from the state to local school
boards. "Look how quickly our local government and our local boards
change," Dandeneau said. "We may have a great board this year, but
what about next year?" Deb Russell, parent of a hearing-impaired student
and a Gull Lake School Board member, added, "With education, I support
local control, but I feel some of the duties (in the new rules) that will fall
to local school boards are pretty well beyond their capacity right now."
"What we're hearing is people want flexibility within some perimeters and
making sure that there's due process," Watkins said of the local control
issue. "There's a lot of fear of the unknown." For Lauri Stein, it is
important that the new rules address inclusion for special needs children.
"In my vision for the future, all kids with and without disabilities would
go to school together," Stein said. She added that it was a
"life-consuming battle" to get administrators to let her son, who has
Down syndrome, into a classroom with non-disabled kids. The state last made
special education rules changes in 1987. Watkins said that many of the proposed
rules changes this time around are to comply with federal law. He also said
that the changes are another step in an ongoing improvement process. "One
of the things that we want to bring about is to not to try and eat the elephant
in one bite. This is a continuous process, and I don't see this as the end by
any stretch," Watkins said. Public Information Officer T.J. Bucholz said
that education department officials will consider Tuesday's comments when
creating a revised rules package. If those rules are approved, they would go
into effect for the 2003-2004 school year.
******************************
"Controversial Judicial Picks (Including Sutton) Wait"By
JESSE J. HOLLAND, Associated Press Writer WASHINGTON (AP) - President
Bush's most controversial judicial nominees may have to wait until 2002 before
they get a confirmation hearing, much less a vote, from the Democrat-controlled
Senate. While
Democrats say they plan to get as many as 30 of Bush's judges confirmed before
the end of the year - 17 of his 64 nominees have been approved so far - none of
them will likely be the four nominees who could cause long, drawn out debates
among senators. That means Bush Appeals Court nominees Miguel Estrada, Jeff
Sutton, Terrance Boyle and Michael McConnell will likely have to wait until
next year before finding out whether the Democrats in control of their
destinies will even allow a vote on their nominations. "I'm
trying to get the ones who are non-controversial'' first, said Senate Judiciary
Chairman Patrick Leahy, D-Vt. "We're trying to get through as many as we
can.'' Republicans
don't believe him. GOP senators have dropped their blockade of spending bills
as a tactic for pressuring Democrats to allow more judges through. But
Republicans still accuse those on the other side of the aisle of playing
political games with Bush's nominations. "I don't think we're doing the job,
and I think the American people are going to suffer because of it,'' said Sen.
Orrin Hatch, R-Utah, the top Republican on the Senate Judiciary Committee and
its former chairman. "It's purely partisan politics,'' said Sen.
Jon Kyl, R-Ariz., one of the leaders of the bill blockade. ``Be truthful about
it. They don't want conservative judges on the court.'' Thirty-two
of Bush's nominees are awaiting a hearing before the Senate Judiciary
Committee. Hearings but no committee votes have been held on 10 other nominees
and one other has received committee clearance but has yet to be voted on by
the full Senate. When President Clinton left office after eight years, 67 of
his judicial nominees had never had a hearing in the Senate Judiciary
Committee, Democrats say. Sheldon Goldman, a University of Massachusetts
professor and author of the book, "Picking Federal Judges: Lower Court
Selection From Roosevelt Through Reagan,'' said Leahy has done well in getting
19 judges confirmed since June. Goldman, however, added that all judicial
nominees, even the controversial ones, deserve a quick hearing. "I
would think a case would have to be made for having it within three months,''
Goldman said. "Now, of course, September 11 and all that's followed have
completely interrupted the whole saga, and then the anthrax cases obviously, so
under these circumstances you might want to talk six months, seven months. But
within a reasonable time frame, hearings should be held and the Senate
Judiciary Committee should vote.'' Sutton, McConnell, Boyle and Estrada were
among the first 11 nominations Bush made on May 9. Along with five other
judicial nominees, they have been waiting six months for Senate action. They
also still face a rocky road ahead in the Democrat-controlled Senate. McConnell,
nominated to the 10th Circuit Court of Appeals, is recognized in legal circles
as especially conservative on abortion rights and church-state separation. Disability
activists protest the selection of Sutton, a former Ohio state solicitor, for
the 6th Circuit Appeals Court because he successfully argued to the Supreme
Court that state employees can't use federal disability rights to collect
damages for on-the-job discrimination. Estrada, nominee to the District of
Columbia Appeals Court, is a partner in the Washington firm that represented
Bush at the Supreme Court during his post-election legal fight with Al Gore. Bush
himself made a personal appeal to Democrats for Estrada. "Get him moving
before it's too late,'' the president said. And Boyle, nominated for the
4th Circuit Appeals Court, has been part of a decade-long political tug of war.
Bush's father nominated the former aide to Sen. Jesse Helms to the federal
bench in 1991. Democrats blocked Boyle then, and Helms, R-N.C., subsequently
retaliated by blocking all of Clinton's nominees from North Carolina. Now
North Carolina Sen. John Edwards, a Democrat, has yet to complete the paperwork
that would allow Boyle's nomination to go to a vote. Leahy
might be right to wait on nominees who might cause fights, Goldman said. "You
want to get the more confirmable people through,'' he said. ``You don't want to
gum up the works with the people who are more controversial. But they should
all have hearings. Whether they have them before December or they have them
early next year, they should all have hearings.''
**********************************
Last Push Needed for Family Opportunity Act Before Congress
Recesses on Nov. 17th The Family Opportunity Act (S. 321, H.R. 600),
sponsored by Senators Ted Kennedy (D-MA) and Charles Grassley (R-IA) and
Representatives Pete Sessions (R-TX) and Henry Waxman (D-CA), continues to have
strong bipartisan support and is included in this year's budget. Having
strong support, S. 3 21 has 72 sponsors and H.R. 600 has 203 sponsors.
This bill aims to help families who have children with disabilities to ensure
that their children can get needed medical care through Medicaid. Many of these
families have faced wrenching choices, and have turned down hard-earned jobs,
promotions and pay increases, so that they can remain eligible for Medicaid
coverage. Advocates have fought for several years to enact this
legislation and now is the time to get this important legislation passed and
signed into law. The Senate Finance Committee, a key gateway for this
bill to be taken up by the full Senate, may mark-up the bill by Friday of this
week. We are close but we still need your help!
What will this bill do?
(1) Medicaid Buy-In: This bill will create a sliding scale
Medicaid buy-in for families of children under the age of 18 with disabilities
whose income exceeds the eligibility guidelines (up to 300% of
the federal poverty level, $51,150 for a family of four). This would give
these children access to the full range of Medicaid services, including those
provided through the Early Periodic Screening Diagnosis and Treatment (EPSDT)
program. Parents electing this coverage would make monthly payments on a
sliding scale basis and their cost cannot exceed 5 percent of the family's
income. In addition, these children would be eligible for Medicaid
coverage from the first day they are presumed eligible for SSI, instead of
having to wait a month after SSI eligibility is established.
(2) Expand Psychiatric Services for Children: States would be
permitted to include a home and community-based service Medicaid waiver program
for children under age 21 who have disabilities which would otherwise require
psychiatric hospitalization. This would include children that receive
services from a residential treatment center to be served at home.
(3) Demonstration Program: This demonstration program, subject to a
$100 million payment cap, would allow states to extend Medicaid coverage
through 2007 to children under 21 years of age who have "potentially
severe disabilities" (such as a mental condition which, without treatment,
would become severe enough to qualify for SSI).
(4) Family-to-Family Health Information Centers: These centers
would help families to make informed treatment decisions that are appropriate
for their children with disabilities.
Those who wish to voice an opinion on the bill can call the Capitol Switchboard
at (202) 224-3121 and ask to be connected to: * Senators Daschle
and Reid (Democratic Leadership)
* Senator Baucus (Democratic Finance Chairman)
* Senators Ted Kennedy and Charles Grassley
(Senate Sponsors)
* or to your local member of
Congress.
Letters may be faxed to Member' offices (see http://thomas.loc.gov/ for
contact information.)
For more information regarding the Family Opportunity Act, please contact
Frances Andrew, Assistant Director of Legislative Affairs, at fandrew@nmha.org or (202) 675-8387.
****************************************

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