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COPYRIGHT 2006 Stanford Law School
INTRODUCTION
I. THE POLICY CONTEXT: MULTI-DISABLED STUDENTS AND STATE SPECIAL SCHOOLS FOR THE BLIND AND DEAF A. The Unfriendly Sandbox: The Story of Holly P. and the California State Special Schools for the Blind and Deaf B. Looking Beyond California: A State-by-State Survey of State Special Schools' Admission Policies and Practices II. THE LEGAL PRINCIPLES: THE IDEA AND SECTION 504 IN THE STATE SPECIAL SCHOOL CONTEXT A. The Classic IDEA Claim: A Federal Mandate To Provide Adequate Access to a FAPE B. The Complementary Section 504 Claim: A Federal Mandate To Provide Equal Treatment III. BEYOND STATE SPECIAL SCHOOLS: THE IDEA AND SECTION 504 IN A POST-SCHAFFER PUBLIC SCHOOL CONTEXT CONCLUSION APPENDIX: STATE-BY-STATE SURVEY RESULTS
INTRODUCTION
In the public school special education context, the Individuals with Disabilities Education Act (IDEA) (1) has served as the dominant tool for ensuring that no child is left behind on the basis of a disability. But the IDEA approach is not without drawbacks. Addressing the Act's many limitations, the Supreme Court held this Term in Schaffer v. Weast that the IDEA forces parents, not schools, to prove that their children are not receiving a free appropriate public education (FAPE). (2) The 6-2 Schaffer decision, in which Chief Justice Roberts took no part, was not particularly surprising. Placing the burden of proof on the party seeking relief is the ordinary default rule when Congress is silent, and most states already required this standard in IDEA challenges. (3) However, the dissents and amicus briefs in Schaffer illustrate the obstacles that parents must overcome when challenging a school's decision under the IDEA.
In her dissent in Schaffer, Justice Ginsburg emphasizes the unequal playing field in the battles between schools and parents under the IDEA and finds an unlikely ally in Judge Luttig of the Fourth Circuit: "For reasons well stated by Circuit Judge Luttig, dissenting in the Court of Appeals, ... I am persuaded that 'policy considerations, convenience, and fairness' call for assigning the burden of proof to the school district in this case." (4) Judge Luttig aptly describes these considerations:
For the vast majority of parents whose children require the benefits and protections provided in the IDEA, the specialized language and technical educational analysis with which they must familiarize themselves as a consequence of their child's disability will likely be obscure, if not bewildering. By the same token, most of these parents will find the educational program proposed by the school district resistant to challenge: the school district will have better information about the resources available to it, as well as the benefit of its experience with other disabled children. (5)
The amicus brief by the parents, attorneys, and advocates further illustrates why parents have an uphill battle under the IDEA. Among their arguments, the amicus petitioners assert that parents do not have "full, unfettered access to all relevant information about a proposed placement" or to the school's "experts who have worked with or evaluated the child," that "parents often proceed pro se and do not ... have any experience in the mechanisms for presenting evidence," and that "there is usually no right to discovery by which the parents can obtain documents ... [or] depose school district employees." (6) Indeed, while the outcome in Schaffer might have been unsurprising, the Court's focus on the IDEA underscored how unequal the playing field is for students with special needs looking to obtain an adequate education under the IDEA.
And the playing field arguably became even more unequal when Congress reauthorized the IDEA in 2004. (7) The proposed regulations have yet to become official, which makes it difficult to measure the full impact of the IDEA's reauthorization. (8) Professor Paolo Annino summarizes some of the potentially negative ramifications of the new IDEA:
[M]any of the [IDEA] Improvement Act's revisions are harmful to children pursuing a FAPE and dilute their due process protections. These harmful changes include the elimination of short term objectives on the [Individualized Education Program (IEP)]; the elimination of the requirement that schools inform parents whether their child's progress is sufficient to enable him or her to achieve annual goals listed in the IEP; the waiver of the right to have a child reevaluated at least once every three years; removal of children for certain disciplinary problems to an interim placement for 45 school days; reduction of services provided to those children removed; the elimination of the stay put provision in discipline cases; and the reduction of discipline protections for children not yet eligible for special education. (9)
Furthermore, the IDEA focuses on guaranteeing education to students with special needs, but, in many cases, parents are just as concerned that their child was discriminated against--and that other children with similar needs would likewise face similar discriminatory practices. As further explored in Part II, the IDEA allows for an individualized analysis and is thus not a particularly effective tool for systemic reform.
However, Section 504 of the Rehabilitation Act (Section 504) (10) is a powerful, yet oft-neglected, complement to the IDEA--perhaps more powerful and effective in certain instances--if it is understood and applied correctly. The overall comparison of the IDEA and Section 504 is complicated, but important. As explored in Parts II and III, these legal standards often accomplish similar objectives, but do so by using different instruments and driving principles. In essence, the IDEA focuses on adequate access to a FAPE, while Section 504 emphasizes equal treatment within federally funded programs. (11) The IDEA is not about antidiscrimination, but rather a guarantee of access to public education for children with disabilities. (12) Conversely, Section 504 emerged specifically in response to discrimination against individuals with disabilities. (13) Neither standard alone accurately depicts the principles at play in most special education cases. Instead, we must understand both standards and how they interact to better understand how to address discriminatory practices that inhibit students with disabilities from receiving the free and appropriate public education to which they are entitled under federal law.
In this Note, the lens through which we view these legal standards in action involves state special schools for the blind and deaf and their admission practices that exclude multi-disabled students. Part I first illustrates the limitations of the IDEA in California's state special schools through the story of Holly P.; it then further demonstrates the need to supplement the IDEA with Section 504 through a state-by-state survey of thirty states' state special schools admission. Detailed analysis of each state special school system is included in the Appendix. Part II explores the contrasting legal standards of adequate access to a FAPE under the IDEA and equal treatment under Section 504, as applied to the state special school context. Finally, Part III moves beyond the state special school context to examine special education generally--demonstrating how Section 504 is a powerful tool, and an excellent complement to the IDEA, for making sure that no child is left behind (14) or otherwise excluded from educational opportunities solely on the basis of a disability. (15) This understanding is particularly important for special education attorneys and advocates as they attempt to look beyond the IDEA in a post-Schaffer public school context.
I. THE POLICY CONTEXT: MULTI-DISABLED STUDENTS AND STATE SPECIAL SCHOOLS FOR THE BLIND AND DEAF
Multi-disabled blind and deaf children are entitled to a free appropriate public education (FAPE) under state and federal law, including any communicative and related services necessary for them to benefit from special education. (16) However, state special schools in California--and in many states nationwide--either explicitly exclude multi-disabled blind and deaf students in their admission policies or informally exclude them in practice. (17) When these schools were founded in the nineteenth century, many children were "pure blind" or "pure deaf," so the establishment of special schools for the pure blind and deaf was a logical and meaningful public policy. (18)
However, with advancements in medicine and technology, "pure" blindness and deafness have become less common. (19) Instead, children born with hearing or visual impairments are also likely to have other disabilities. Estimates vary widely, but many researchers have found that approximately thirty percent of all school-aged deaf children have at least one additional disability, (20) with mental retardation, cerebral palsy, aphasoid, and emotional-behavioral disorders being the most common nonsensory disabilities. (21) The majority of blind children also have at least one additional disability. As many as two-thirds of blind children and one-third of partially sighted children have additional disabilities, the most common of which are mental retardation, hearing impairment, cerebral palsy, and seizure disorders. (22)
Consequently, the state special schools have effectively served a special population for the last 150 years, but changed circumstances--a lower incidence of pure blindness and deafness and a rise in the proportional number of multi-disabled blind and deaf students--have created a situation in which these schools purposefully exclude the children who would benefit most from their services and who currently may not receive a FAPE anywhere else in the public school system. In this Part, the policy environment at the California state special schools will first be outlined through the story of Holly P., followed by the findings from the state-by-state survey of twenty-nine states and the District of Columbia. Part II then uses this specific context to illustrate in depth how the IDEA and Section 504 interact and complement each other.
A. The Unfriendly Sandbox: The Story of Holly P. and the California State Special Schools for the Blind and Deaf
To understand the situation of multi-disabled students in state special schools, consider the story of Holly p. (23) In 1994, Holly was born two weeks late with a high fever and signs of infection. After ten days in the intensive care unit, Holly was sent home. During the next year, her mother noted many irregularities, and Holly was ultimately diagnosed as deaf when she was twelve months old. Doctors performed additional tests that confirmed she also had a mild case of Turner's Syndrome (e.g., underdeveloped and disproportionately developed limbs, bones, and organs), as well as developmental delays that fell outside of Turner's Syndrome. Holly was not only deaf but also unable to speak. When she was fifteen months old, Holly was assessed through her school district's special education local plan area (SELPA), and she was placed at a local children's center that specialized in preschool special education. After a few months at this center, the specialists recommended that she attend the preschool program at the California State Special School for the Deaf (CSD) in Fremont. (24)
Holly arrived at CSD in November of 1996, and her parents initially thought of CSD as a "magical and wonderful place." (25) Holly received a comprehensive education, including American Sign Language (ASL) training, speech and language therapy for deaf students, occupational therapy, and adaptive physical education. Additionally, the CSD program included weekly home visits (where her teacher observed Holly in her home setting), weekly classes in ASL at CSD for family and friends, and group therapy sessions for parents and siblings each Friday. As her mother remarked, "Intervention does not get any better than that." (26) CSD provided a variety of services for multidisabled deaf children that were unrivaled in the state, and Holly progressed exponentially in her preschool program there.
The situation changed as the school and others became aware that Holly was more than deaf: she was multi-disabled. As her parents met with the district and CSD teachers and administrators to develop Holly's Individualized Education Program (IEP), it became clear that she would continue to need services beyond those provided to "pure" deaf students in order to benefit from her education--including speech and language therapy, occupational therapy, and a one-to-one (1:1) special education aid. At that point, her parents noted that "CSD was no longer a friendly sandbox." (27) Not only were CSD administrators requesting that she be transferred to a local school in her home district, but parents of other students and other members of the deaf community began to demand that Holly be removed from CSD. (28) After all, they explained, CSD was there to serve nondisabled students: as deaf culture teaches, "pure" deaf students are not disabled; they merely speak a different language (i.e., ASL). Holly, on the other hand, was deaf, nonverbal, and developmentally delayed, and her presence sent the wrong message to "pure deaf" students.
Holly's parents sought other options in the state, (29) but they did not find any school or program in California that could provide an education remotely as appropriate for Holly as that which had been provided by CSD. So, they resisted the demands. Their efforts kept Holly at CSD, but not without controversy or incident. The school took affirmative measures to push Holly out: A teacher sympathetic to Holly's situation was let go. Her parents were not invited to preregistration in 1998, and the school refused to accept her registration materials when presented. After resistance by her parents, the school allowed the registration but then tried to physically block Holly's entrance to the school on the first day of class.
Additionally, CSD created new, unwritten policies to exclude Holly. One of these policies required that if the district-provided 1:1 aid called in sick or did not show up, Holly would be sent home that day. On several occasions, Holly's mother would arrive at school, and the school would inform her of the 1:1 aid's absence, requesting that Holly remain at home that day. Instead, her mother would substitute as the aid. CSD administrators were upset with this arrangement, and the next time the aid was absent, CSD refused to allow the substitution. The administrators informed Holly's mother that they would call the sheriff to remove Holly if she tried to remain at CSD without the district-approved 1:1 aid. After calling her lawyer, who encouraged her to take Holly home, Holly's mother refused and called the school's bluff. She substituted as Holly's aid for the day, and no sheriff arrived to intervene. This unwritten policy is just one of many hoops that Holly's parents had to jump through for Holly to remain at the school. CSD continued to request that she be transferred.
Embarrassed and furious, Holly's parents returned to their lawyer to explore legal options, only to find that the traditional legal option was less than satisfying: the Individuals with Disabilities Education Act (IDEA). (30) Under the IDEA, Holly's parents would need to prove that the school violated Holly's right to a free appropriate public education (FAPE). (31) To do so, they would need to show that Holly could only derive a reasonable educational benefit from her IEP at CSD--and not at any other school in the district. Holly's parents, however, were not just concerned about whether Holly could receive a FAPE; they also were furious that a public school had singled out their daughter for unfair treatment and excluded her from her blind and deaf peers and from tax-supported programs--solely because she had an additional disability. They wanted to combat discrimination and unequal treatment, in addition to ensuring that Holly received adequate access to a FAPE. Any lawyer versed in the IDEA would inform them that discrimination is not a part of the IDEA and that they must focus on whether Holly benefited from the education. (32) Thus, the IDEA remedy did not match the discriminatory wrong. And, the Section 504 option was not discussed. (33)
Holly's story is not unique in California (or nationwide). Many parents and students have faced similar discrimination--at all three of the schools for the deaf and blind in California--and they have voiced their concerns about current state special school treatment of multi-disabled students. (34) In fact, the schools have admission policies that explicitly exclude certain multi-disabled blind and deaf children. (35) Based on these admission policies, blind and deaf students who also have developmental delays or other mental or emotional disabilities--like Holly--can be and are being excluded by the California state special schools. Although the details of each individual case differ, school administrators base these rejections on the schools' mission statements and their explicit admission policies. As Holly's story indicates, school administrators in California reach beyond these formal exclusionary principles to push out multi-disabled children through informal or unwritten policies and practices.
B. Looking Beyond California." A State-by-State Survey of State Special Schools' Admission Policies and Practices
As Part I.A illustrates, the California state special schools exclude multidisabled students, but what about special schools in other states? This Part presents the general findings of a state-by-state survey, (36) which illustrates the varying trends in state special school admission practices from twenty-nine states and the District of Columbia. (37) This survey reveals that states take very different approaches to state special school management and organization. Admission policies for state special schools also differ greatly by state--though many states exclude multi-disabled students. The Appendix includes more detailed information on each state surveyed.
The states surveyed can be roughly divided into five categories or models, with an additional noncategory (38) for the states that do not have state special schools:
1. Embracing Multi-Disabled Model (seven states): statutory or regulatory framework of state special schools explicitly accepts multi-disabled students for admission;
2. Including If Recommended/Capacity Available Model (four states): statutory or regulatory framework allows multi-disabled students to attend if recommended by IEP and school has capacity;
3. Primary Ongoing Need Model (eight states): framework places some limit on multi-disabled students--e.g., that hearing/seeing impairment be "primary ongoing need"--such that in practice these students are typically excluded;
4. Public-Private Hybrid Model (two states): framework aims at sending multi-disabled students to private special schools, excluding them from state special schools; and
5. Explicit Exclusion Model (five states): statutory framework explicitly excludes multi-disabled students from admission to state special schools.
It is important to note that these are rough categorizations, and great variation in process and substance may exist between states within a given category. These categories, which are represented graphically in Figure 1, merit further description in this Part (as well as in the Appendix).
[FIGURE 1 OMITTED]
1. Embracing Multi-Disabled Model
Seven of the states surveyed--Illinois, New Jersey, New York, Oregon, Texas, Virginia, and Wisconsin--fall within the "embracing multi-disabled" model. (39) These states explicitly include multi-disabled students in their statutory or regulatory admission framework. Each state takes a different approach. For instance, Illinois and New Jersey provide special education programming at each school and specifically allow multi-disabled students in admission standards. Alternatively, New York takes a public-private hybrid approach, in which "pure" blind or deaf students are encouraged to go to the private special schools, while multi-disabled students actually have preferred admittance into the state special schools. (40)
Of the seven "embracing multi-disabled" states, Texas appears to be the "best practices" model. The Texas legislature and state board of education interpret Section 504 as applicable to state special schools, and consequently, they do not discriminate against multi-disabled students in their admission policies. (41) Interviews with parents and advocates overwhelmingly point out Texas as the ideal example of a state with fully inclusive state special schools, specifically because its admission policies take into account both the IDEA's FAPE considerations and Section 504's equal treatment provisions. In addition, these policies are not just lip service: what is written is also put into practice.
2. Including If Recommended/Capacity Available Model
Four states--Colorado, Idaho, New Mexico, and Utah--also embrace multi-disabled students in state special schools, as long as the students are recommended by their home districts through the IEP process and as long as the schools have the capacity to accommodate them. (42) The statutory/regulatory admission standards are virtually identical to those of the "embracing multidisabled" states, but these states are somewhat less inclusive because of the small size of the states and the consequent capacity constraints of the schools. As New Mexico's policy illustrates, (43) these states generally strive to include all multi-disabled students, but they will not be admitted if accommodating them exhausts resources. (44)
3. Primary Ongoing Need Model
This middle-ground category of "primary ongoing need" includes eight states: Arizona, Indiana, Michigan, Minnesota, Missouri, Ohio, Tennessee, and Washington. Washington typifies this category: the admission standards do not exclude multi-disabled students, but they allow schools to exclude based on emotional or mental disability if administrators deem that the needs related to the additional disability outweigh the needs of the student's hearing or seeing disabilities. (45) So, in practice, multi-disabled students can be and--as uncovered through interviews with parents and advocates--usually are excluded from state special schools in states that employ this model.
That said, each state's policy differs dramatically in this category. For instance, Ohio and Tennessee allow state special schools to exclude students based on their inability to "function in a social setting" or their physical or social immaturity, while Michigan, Minnesota, and Washington exclude students whose "primary ongoing need" is something other than a hearing or seeing impairment. (46) Multi-disabled students may be included, but research and interviews have suggested that they are often excluded in practice.
4. Public-Private Hybrid Model
The public-private hybrid model encompasses states that have both public and private schools for blind and deaf students, but the states pay for multidisabled students to attend private alternatives (thus, the states exclude them from state-sponsored schools). Many states have private special schools, but two states--Massachusetts and Pennsylvania--clearly fall within this public-private hybrid category because they aim to send multi-disabled students to private schools. (47) New York is perhaps the most complex hybrid; it is not only in this category but also in the most embracing category because the New York state special schools do not exclude multi-disabled students, but actually prefer them over "pure" blind or deaf students. (48) Conversely, Massachusetts and Pennsylvania try to exclude multi-disabled students from the state-sponsored schools and alternatively place them in private special schools. For instance, Massachusetts is the home of various public and private special schools, and the general trend is to place multi-disabled students in private alternatives. Likewise, Pennsylvania explicitly funds private placements for multi-disabled students. (49) This hybrid category is a step removed from the "explicit exclusion" model because the state attempts to place these students in private alternatives, instead of in their home districts.
5. Explicit Exclusion Model
The last group of five states--California, Florida, Georgia, Kentucky, and Maryland--explicitly excludes multi-disabled students from state special schools. (50) Florida is a perfect example; its admission standards exclude both trainable mentally handicapped and profoundly mentally handicapped students. (51) Although the admission standards might allow some multi-disabled students to attend the Kentucky School for the Blind (KSB), court records indicate that, in practice, most are excluded. (52) For instance, federal district court records reveal that KSB excludes blind students with mental retardation because the admission standards were "designed for those visually handicapped who would be classified at least as 'trainable' mentally handicapped." (53) Many of the other states in this exclusionary category, such as California and Florida, have explicit admission policies that exclude multi-disabled students.
This state-by-state survey sheds light on current practices and policies of various states and offers useful comparisons to the California state special school system. One of the most compelling findings of the state-by-state survey concerns the disconnect between policy and practice: what most state special schools say they do and what they actually do differs dramatically. (54) This finding is particularly important to applying the legal principles discussed in the next Part: in particular, proving that a school provides a FAPE under the IDEA or proving discrimination on the basis of disability under Section 504 often requires the parents to confirm whether written school policies are indeed implemented in practice as written.
Most importantly, this state-by-state survey uncovers a troubling inequality among states with respect to their treatment of multi-disabled blind and deaf students. As further illustrated in the Appendix, some states embrace these students in their state special schools, while others explicitly exclude them; most lie somewhere in between on this continuum, and anecdotal evidence indicates that many of those in-between state special schools (i.e., the primary ongoing need model) exclude these students in practice--even if admission policies state differently. This unequal treatment among states illustrates a "circuit split" of sorts, which merits closer scrutiny in order to equalize treatment not just among states in how they administer state special schools but also between the pure blind and deaf students and their multi-disabled peers. The fact that states differ so dramatically in their state special school admission policies and practices only underscores the importance of understanding the rights of multi-disabled blind and deaf students and the responsibilities of state special schools nationwide under federal law. Part II embarks on this task.
II. THE LEGAL PRINCIPLES: THE IDEA AND SECTION 504 IN THE STATE SPECIAL SCHOOL CONTEXT
Now that the policy environment at the state special schools nationwide has been detailed, this Part explores the legal principles at play under federal law. To simplify the analysis, this Part uses the California state special school context (and the story of Holly P.) as the lens through which to view the legal tools available for students with special needs. As mentioned in the Introduction, two main legal frameworks apply to multi-disabled students and public schools: the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act (Section 504). (55) The IDEA and Section 504 offer two distinct yet complementary standards to ensure that children with disabilities receive appropriate education. While the IDEA focuses on adequate access to a FAPE, Section 504 emphasizes equal treatment within federally funded educational programs.
As further discussed in the following Parts, legal challenges to the state special schools' admission decisions nationwide have typically been brought under the IDEA, and most IDEA challenges have been unsuccessful. However, Section 504 also provides grounds for suit, although its application to state special schools is an issue of first impression for the Ninth Circuit and California state courts (and most other states and circuits nationwide). Neither standard taken alone addresses the legal and policy principles at play with multi-disabled students and state special schools. Instead, special education attorneys and advocates must understand both legal frameworks and their interaction to better comprehend the underlying principles and policy rationales. In Part II.A,...
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