Copyright (c) 2009 All rights reserved. http://works.bepress.com/mark_weber Recent documents in Mark C. Weber en-us Tue, 13 Oct 2009 23:34:19 PDT 3600 http://works.bepress.com/mark_weber/5 http://works.bepress.com/mark_weber/5 Mon, 12 Oct 2009 10:48:41 PDT Hurricane Katrina created the need and the opportunity to reconstitute the New Orleans public school system. Educational reformers took advantage of the destruction of existing institutions to build a new system based on educational choice and dependent on charter schools to provide the choices. The disaster also created the need and opportunity to rebuild the system of special education in the city, but education for children with disabilities appears to have been an afterthought. Reports have surfaced of children being steered away from charter schools or inadequately served there. This paper asks what principles should guide reformers in establishing education for children with disabilities in a reconstructed school system committed to choice and charters. The principles include the following: (1) Guaranteeing that the general education system takes responsibility for all children; (2) Adequately supporting children with disabilities in general education; (3) Improving outcomes; (4) Providing equal opportunity for choice; (5) Assigning costs fairly; and (6) Protecting parents' and children's rights. This paper will discuss each principle in turn, considering its implications for policy and its legal ramifications. Mark C. Weber Education Law Juveniles Civil Rights http://works.bepress.com/mark_weber/4 http://works.bepress.com/mark_weber/4 Mon, 24 Aug 2009 12:38:13 PDT Government support for private schooling has been a topic of public discussion from the beginning of the administration of President George Bush. The Individuals with Disabilities Education Improvement Act of 2004 ("Improvement Act") amends the Individuals with Disabilities Education Act ("IDEA") with regard to (among other things) publicly funded services for children with disabilities who attend private schools. This Article describes the private school student provisions of the new law, demonstrating that the Improvement Act represents continuity in the field of special education services for children in private education. The Article then takes up three issues regarding services for private school children: (1) The existence of any individual entitlement that private school children and their parents may have to any particular level of publicly funded special education services; (2) Whether denial of equal, or even of any, services to some private school children unconstitutionally burdens free exercise of religion or parents' rights to control their children's upbringing; and (3) The risk of arbitrary decision making in allocating services among private school children. With regard to the first issue, this Article demonstrates that Congress has not created any enforceable individual entitlement to special education services for any given private school child. Some states, however, have established an individual entitlement. Regarding the second problem, this Article concludes that it is constitutionally permissible for public schools to refuse to fully subsidize private school children's special education services; any contrary view would expand constitutional rights to public services of private school children and their parents beyond acceptable bounds. Regarding the third problem, this Article advances the position that the Improvement Act creates risks of arbitrary and unfair allocations of services that are unacceptably high, and that under due process principles, transparency of the allocation process needs to be guaranteed. Mark C. Weber Education Law Social Welfare Legislation Juveniles Civil Rights Religion http://works.bepress.com/mark_weber/3 http://works.bepress.com/mark_weber/3 Mon, 24 Aug 2009 11:57:36 PDT Like most other legal disputes, most cases brought under the Individuals with Disabilities Education Act (IDEA) settle. But although IDEA, the federal law governing special education, was enacted a generation ago, litigants still lack guidance how the mechanisms of settlement should work, what the settlement agreement should look like, and what to do if one side of the dispute fails to live up to its agreement. Settling an IDEA case entails unique issues--and unique pitfalls--that make the topic even more challenging than the settlement of other cases. IDEA has a mediation provision with extensive requirements and a one-of-a-kind prehearing settlement device termed the "resolution session." Special education settlement agreements may be vulnerable to attack on the ground that they undermine the purpose of IDEA. Jurisdiction under IDEA for actions to enforce settlements is uncertain, and exhaustion defenses may bar the actions. There is an administrative offer-of-settlement provision whose interpretation is open to debate, and parents who prevail in special education disputes have an entitlement to attorneys' fees that may, or may not, apply when a case is settled. This Article provides a comprehensive description of the law of settlement of IDEA disputes. It delves into mediation and dispute resolution, discussing what can be mediated and how. It notes the courts' general practice of enforcing settlement agreements as written, despite arguments that departures from settlement terms are justified. It marshals the arguments and caselaw regarding jurisdiction to enforce settlement agreements and the administrative exhaustion defense. It describes the offer-of-settlement rule and discuss its interaction with the attorneys' fees provision. It considers attorneys' fees for settlements, discussing the circumstances under which fees might be available to parents in IDEA settlements. Although this Article is intended primarily to be descriptive, it concludes with an evaluation that advances some steps for reforming the law of IDEA case settlement: a clarification of federal jurisdiction, a bypassing of exhaustion for civil actions enforcing settlements, and greater legislative guidance as to what forms of settlement may support fees. Mark C. Weber Education Law Juveniles Civil Rights Practice and Procedure http://works.bepress.com/mark_weber/1 http://works.bepress.com/mark_weber/1 Tue, 05 Aug 2008 13:15:50 PDT The Individuals with Disabilities Education Act (IDEA) guarantees students with disabilities a free public education appropriate to their needs, but students must meet the definition of "child with a disability" to be eligible for that entitlement. The law governing special education eligibility, however, is charitably characterized as a mess.There are several sources of the current eligibility confusion. First, recent court cases have reached conflicting conclusions about how much adverse educational impact the child's disabling condition must have, what constitutes a sufficient need for special education, and when children with emotional disabilities are eligible. Second, long-established methods for assessing learning disabilities have withered under criticism from educational experts, and a new method of approaching learning disabilities, response-to-intervention, is being touted by the United States Department of Education. Nevertheless, that innovation remains largely unproven and may be impossible to implement at scale. Third, Congress and others have focused long-overdue attention on the disproportionate percentage of African-Americans who are found eligible for special education under the disability categories of mental retardation and emotional disturbance, but neither Congress nor anyone else appears to have a promising idea about how to address the situation.This Article analyzes and critiques the recent cases, describes and comments on the new learning disability assessment methodology, and evaluates competing ideas about how to respond to ethnic disproportion. It concludes that the solution to the entire set of problems is not a redefinition of special education eligibility under IDEA, but rather a renewed attention to the actual terms of the statute and the goal of full educational opportunity. This step will promote what might be called "not-quite-so-special education," that is, an entitlement for a broad class of children to high quality special education supports provided in the regular educational environment. Mark C. Weber Education Law Social Welfare Legislation Juveniles Civil Rights