Yahoo! Groups

My Groups | AutismFirstStepsAutismNewsletter Main Page



 



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.
*******************************


"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.
****************************************


To unsubscribe from this group, send an email to:
AutismFirstStepsAutismNewsletter-unsubscribe@yahoogroups.com



Your use of Yahoo! Groups is subject to the Yahoo! Terms of Service.

 

ALL INFORMATION, DATA, AND MATERIAL CONTAINED, PRESENTED, OR PROVIDED HERE IS FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT TO BE CONSTRUED AS REFLECTING THE KNOWLEDGE OR OPINIONS OF THE PUBLISHER, AND IS NOT TO BE CONSTRUED OR INTENDED AS PROVIDING MEDICAL OR LEGAL ADVICE.  THE DECISION WHETHER OR NOT TO VACCINATE IS AN IMPORTANT AND COMPLEX ISSUE AND SHOULD BE MADE BY YOU, AND YOU ALONE, IN CONSULTATION WITH YOUR HEALTH CARE PROVIDER.