What constitutes "appropriate education" for students with Autism in public schools- US Supreme Court to consider

Dear Colleagues,

The origins of this potentially lank mark case stretch back to 2010 when the parents of a child with autism in Douglas County of USA had to withdraw their child from "Summit View Elementary" -  a public school  after the child (now 17) began to exhibit severe behavioral issues, including banging his head, dropping to the floor, disrobing and running away from school. The parents having been convinced the school wasn’t doing enough to help their son with autism progress academically, pulled the child out of Summit View and enrolled him in Firefly Autism, a Denver school that specializes in working with autistic children.

The parents have argued in the petition they submitted to the U.S. Supreme Court late last year that the intent of the IDEA (Individuals with Disabilities Education Act) was to provide a meaningful education to disabled students, not simply a “just-above-trivial” benefit. They noted that federal judges from several circuits across the country have issued conflicting rulings over the years on what is the "appropriate standard" to be used to assess the proper level of educational benefit a disabled student should get. The petition of the parents argues that this case presents an ideal vehicle for this Court to resolve the circuit split and provide lower courts with guidance in applying the IDEA.

It is pertinent to note that the U.S. Supreme Court hasn’t spoken on the issue since the 1982 Board of Education Versus Rowley ruling, when it affirmed that IDEA guaranteed disabled students access to the public school classroom but didn’t address the quality of that education.

Even in India, we have been facing this issue of what is 'appropriate education' for children with disabilities, particularly those with intellectual and developmental disabilities. While the government schools in India are woefully ill-equipped in absence of trained educators, lack of teaching learning material in the schools given the large number of students. The situation is equally grim in the private schools as well who charge a considerable amount in the name of tuition fee and other counts, however, have made the education of disabled children an affair to be managed by Shadow Teachers (paid by parents). In the name of inclusion, children do remain in the school but there is hardly an effort to include them in the classroom or the learning outcomes. Children with disabilities are also not included in play or extra-curricular activities. This is surely not inclusion. This is a clear violation of the spirit of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 and in particular Section 30 of the Act.

Entire world will be watching this case with great curiosity as to what Supreme Court of USA decides. But one thing is sure, Supreme Court had made up its mind to speak its mind on the issue and likely to grant Certiorari to the parents. This case is truly about equal opportunity for the special needs children that the law requires. And this is likely to help realize inclusive education as enshrined in the IDEA.

Brief about IDEA 

The Individuals with Disabilities Education Act (IDEA) is a four-part (A-D) piece of American legislation that ensures students with a disability are provided with Free Appropriate Public Education (FAPE) that is tailored to their individual needs. IDEA was previously known as the Education for All Handicapped Children Act (EHA) from 1975 to 1990. In 1990, the United States Congress reauthorized EHA and changed the title to IDEA (Public Law No. 94-142). Overall, the goal of IDEA is to provide children with disabilities the same opportunity for education as those students who do not have a disability.

IDEA is composed of four parts, the main two being part A and part B.[1] Part A covers the general provisions of the law, Part B covers assistance for education of all children with disabilities, Part C covers infants and toddlers with disabilities which includes children from birth to age three, and Part D is the national support programs administered at the federal level. Each part of the law has remained largely the same since the original enactment in 1975.

In practice, IDEA is composed of six main elements that illuminate its main points. These six elements are: Individualized Education Program (IEP), Free and Appropriate Public Education (FAPE), Least Restrictive Environment (LRE), Appropriate Evaluation, Parent and Teacher Participation, and Procedural Safeguards. To go along with those six main elements there are also a few other important components that tie into IDEA: Confidentiality of Information, Transition Services, and Discipline. Throughout the years of IDEA being reauthorized these components have become key concepts when learning about IDEA.

Here is the coverage in Denver on the issue

U.S. Supreme Court will hear Douglas County student with disabilities case

Origins of potentially landmark case stretch back to 2010

The U.S. Supreme Court announced Thursday that it will hear a potentially groundbreaking case brought by a Douglas County couple who claim that their autistic son was not provided an adequate education in the public school system as required by federal law.

The high court’s ruling on the case, which likely wouldn’t come down until next year, could have substantial implications for students with disabilities across the country in terms of the standard school districts will be required to meet when providing instruction and services. At issue is whether schools must provide an education equal to other students.

The family, whose last name is not used in court documents, told The Denver Post on Thursday that they were “shell-shocked and giddy” about the decision by the Supreme Court to grant certiorari to their case, which has dragged on for half a dozen years.

“It’s about equal opportunity for special-needs kids that the law requires,” said Joe F., father of Endrew F., whose name anchors the Endrew F. v. Douglas County School District case file. “If we can change any families’ lives, that’s our goal.”

The district released a statement on the high court’s decision late Thursday.

“It would be inappropriate to discuss the specifics of the case while it is still being litigated, but the Court’s decision today is not a decision on the merits, and we look forward to addressing the issues before the Court,” district spokeswoman Paula Hans said.

The roots of the case go back to 2010, when the Highlands Ranch couple pulled Endrew, now 17, out of Summit View Elementary after he began to exhibit severe behavioral issues, including banging his head, dropping to the floor, disrobing and running away from school. Convinced the school wasn’t doing enough to help their son progress academically, the couple pulled him out of Summit View and enrolled him in Firefly Autism, a Denver school that specializes in working with autistic children.

“If he was able to show up to school and say ‘good morning,’ that was good enough for them,” Joe F. said of the Douglas County School District. “They weren’t moving his education forward.”

The family has asked that their last name not be used.

The parents, who said their son has made progress in his learning since attending Firefly, asked the district to reimburse them for the tuition they paid for Endrew’s private schooling. They claimed that the Douglas County School District did not do enough to provide their son with a “free appropriate public education” as required by the 1975 Individuals with Disabilities Education Act (IDEA).

But an administrative law judge, a federal judge and the 10th U.S. Circuit Court of Appeals backed the district, claiming in separate rulings that the federal statute only requires that schools provide students with “some educational benefit,” a standard they determined Douglas County had met with Endrew.

The family argued in the petition they submitted to the U.S. Supreme Court late last year that the intent of the IDEA was to provide a meaningful education to disabled students, not simply a “just-above-trivial” benefit. They noted that federal judges from several circuits across the country have issued conflicting rulings over the years on what is the appropriate standard to be used to assess the proper level of educational benefit a disabled student should get.

“This case presents an ideal vehicle for this Court to resolve the circuit split and provide lower courts with guidance in applying the IDEA,” their petition argued.

The U.S. Supreme Court hasn’t spoken on the issue since the 1982 Board of Education v. Rowley ruling, when it affirmed that IDEA guaranteed disabled students access to the public school classroom but didn’t address the quality of that education.

The family received a boost last month when the Office of the Solicitor General filed an amicus brief urging the Supreme Court to take up the case. It said that the 10th U.S. Circuit Court of Appeals had set the bar — a standard of “merely … more than de minimis” educational benefit — too low.

“No parent or educator in America would say that a child has received an ‘appropriate’ or a ‘specially suitable’ or ‘proper’ education ‘in the circumstances’ when all the child has received are benefits that are barely more than trivial,” the solicitor general’s office wrote.

But Kathleen Sullivan, chief counsel for the Colorado Association of School Boards, said it would be better for Congress to clarify its statutes than for the court to impose an order. A uniform standard handed down by the Supreme Court would prove “disruptive” to what is today an individually tailored analysis and decision between educators, parents and students, she said.

“The disruption is in shoving aside more than 30 years of case law that we have in helping us understand what the IDEA means for students,” Sullivan said. “I think we would see a wave of litigation to define and apply that new standard.”

The district, in a brief it filed earlier this month urging the Supreme Court not to take up the case, argued that in passing the IDEA, Congress guaranteed access to public education for students with disabilities but did not specify what the level of that education should be.

“Thus, for over 30 years, this Court has held that if a State provides a program ‘reasonably calculated to enable the child to receive educational benefits,’ then it ‘has complied with the obligations imposed by Congress and the courts can require no more,’ ” the brief argued.

But Jack Robinson, an attorney for Endrew F.’s family, said one of the IDEA’s stated goals is readying a student with disabilities for the workforce or independent living, something that can’t be achieved with a minimal education offering.

“There has to be a more heightened and robust standard than a little more than nothing,” Robinson said. “This case has the potential of recognizing that children with disabilities have a right to a substantive education.”

Source : Denverpost 

Note: This post is also reproduced on blog "Disability Rights Through Courts" 

An inclusive school in Mumbai

All schools can be special

Nergish Sunavala, TNN Oct 20, 2013, 05.35AM IST

While interviewing Usha and Rupesh Bhurke at their Goregaon home, I assumed that their seven-year-old son wasn't paying attention. After all Dev, diagnosed with attention deficit hyperactivity disorder at age two, was spinning merrily around the room, playing with Lego, and urging his parents to switch on the TV. But the moment Rupesh mentioned the name Advait, Dev froze mid-spin and announced, "Advait was absent on Monday."

Both boys study at Dr Sarvepalli Radhakrishnan Vidyalaya, a mainstream school in Malad, Mumbai, and have known each other since junior kindergarten. Early on Advait, who has no special needs, was asked to monitor Dev's class work - a task he took so seriously that Dev was in danger of becoming helpless without him. Now, Advait waits for a go-ahead from the teacher before swooping in to help.

Besides bonding with Advait - a feat considering Dev's speech was delayed - there has also been a marked improvement in his vocabulary, sitting tolerance and a sharp decline in his hyperactivity. Dev's situation is remarkable but not unique. Parents, teachers and special educators have long realized that children, when sensitized from a young age, accept differently abled classmates - incorporating wheelchairs and even prosthetic limbs into their games. As for academics, tweaking the curriculum slightly - or in severe cases creating an individualized education plan - allows these children to flourish in a regular school.

Analyzing what works has taken on a new urgency in light of the Right to Education (RTE) Act, which makes it mandatory for schools to admit children with disabilities under the 25% quota for "disadvantaged groups". A 2012 amendment expanded the definition of disability to include autism, cerebral palsy, mental retardation and multiple disabilities. Though the RTE Act came into effect in 2010, activist Ashok Agarwal from Delhi describes the implementation as "tardy" and "uneven". He regularly fields calls from frantic parents whose differently-abled children are being denied admission or ousted from government or private schools. (In 2012, the parents of an autistic boy took a Mumbai school to court because they asked that he be shifted to a special school. The case is still on.)

It's easy to understand why many schools - already flailing under the pressure of overcrowded classrooms, rigid curricula and a shortage of staff - are reluctant to take on children with special needs but that only makes the ones that have successfully embraced inclusion all the more remarkable. In Dev's case, for the first six months, he kept wandering around class but his teacher - despite having 40 other students - took it in her stride. "She never shouted at him," says Usha. Similarly, Jaya Palaparti's son Siddhanth, who has Asperger Syndrome, reached class 10 because his teachers at Dr Sarvepalli Radhakrishnan Vidyalaya in Borivali focused on his strengths (reading and mental math) and accommodated his hyper-sensitivity. He was allowed to wear sandals because socks exacerbated his sensory issues, and he wrote in print even after the rest of the class switched to cursive (kids with autism struggle with fine motor skills). Siddhanth scored 79% in his SSC boards with concessions like using a calculator and dropping a third language and is now completing class 12 through open schooling. "Siddhanth's success encouraged the school to admit more kids with autism," says Jaya.

Anecdotal evidence shows that it's not just high-functioning kids who can thrive in a regular school. Harsh Shardul, a nonverbal child in a wheelchair, who has cerebral palsy, attends an inclusive pre-primary school in Aurangabad. His mother's initial fears that he might feel ignored were soon allayed. "Once the other children got used to him, they started inventing games, they could play with Harsh like racing against his wheelchair," said his mother.

Such stories are the norm rather than the exception at Beacon High in Khar. For the last 13 years, the school, which has special educators, counselors, a physiotherapist, speech therapist and a psychiatrist on its rolls, has been admitting children with disabilities. "I'm blessed that I have never had a child feeling rebuffed, humiliated or left out," says principal KS Jamali, who has found that the "buddy system" - similar to the relationship Dev and Advait share -works marvelously even in senior classes.

If mainstreaming is implemented halfheartedly, a child can feel excluded. A mother of two autistic girls was forced to withdraw her elder daughter from a Mumbai school ten years ago. "She would laugh and talk to herself in class so the teacher wasn't keen to keep her," says the mother. Her younger daughter is now floundering in the secondary section of an IGCSE school. Small concessions like photocopied notes, regular breaks and fewer assignments would help but the school isn't always receptive to suggestions.

Times of India

Can the Private Schools really become Disabled friendly without Government Support ?

Dear Friends,

I am surprised at the recent move of Directorate of Education, Delhi directing the private schools to make their school buildings accessible- though without any time frame. It is surely to pass the buck emanating from not only the recent Right to Free and Compulsory Education Act but also the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 by which they are bound.

In the present scenario, making all existing private schools in Delhi accessible is next to impossible by such directives alone. Has the department of education bothered to go and check the limitations under which the private schools function? These shops came up only because the Education Department failed its mandate. It did not provide quality education and hence the parents, including those of children with disabilities looked at private options. Private options, however, charitable they may be, will be restricted by the funds and infrastructure. Now whether it is private mainstream schools or private special schools, money is an important motive, more so for the former kind of schools if not for NGO run (not for profit) special schools.

These schools run in small plots of lands in narrow lanes with hardly any space for play grounds or field work or for other school activities. Most often, these schools are multi-floor with space & economic constraints to make a ramp or construct a lift. Since profit is the one of the chief considerations besides social service in these private schools, every penny invested in retrofitting must give them some benefit else it is a burden on them. You can't expect them to do things in charity for 3% of population for they are not governed by the social justice mandate. When the Government who are governed by the social justice mandate fails to provide accessible and disabled friendly school infrastructure with quality education, how can we expect the same from the small private initiatives to do that extra bit from their pockets?

This precisely means, unless Education department comes up with some financial & Technical support to make the infrastructure accessible, majority of private schools cannot implement their directive. This is a fact which even the department knows. That is why this lip service has been done by merely issuing a directive without doing proper feasibility study before planning. The best answer to this would be creation of a fund by which schools are supported both financially and technically to ensure that the schools are friendlier to children with diversity.

Therefore, the right approach should be that either Education department gives the required support to the schools that do not have sufficient means to implement the access mandate or withdraws such a directive which cannot be implemented in most of the private schools. Passing the buck will not ensure the rights of free & compulsory education for children with disabilities in private schools but will only add to the list of defaulters. 

Its better the Directorate of Education rectifies the biggest mistake of their planning if they really want to ensure every school accessible; else this will remain a utopia - both for them as well as to the children with disabilities intending to study in these private schools.

Regards

Subhash Chandra Vashishth

   

Delhi schools told to make premises more disabled-friendly, activists unimpressed
(Click here to read the news from source) 


Fri, Aug 13 06:00 AM
If all goes according to plan and Delhi schools pay heed to orders of the Directorate of Education (DoE), schools across the Capital may soon be disabled friendly.

The DoE has directed all recognised unaided schools to remove all architectural barriers that pose a hindrance to movement of the disabled from the school premises. It, however, has not set a timeframe or deadline, raising concerns that this is "just another cosmetic measure".

The directive to schools comes in the wake of the Right of Children to Free and Compulsory Education (RTE) Act which has provisions for the children with disabilities. The DoE has asked schools to remove any architectural barriers "to facilitate the movement of disabled (students or staff) persons".

"This was necessary under the provisions of the Persons with Disability Act, 1995," said an Education department official.

The department has also asked the schools to make provisions for ramps and modified toilets in their school premises. It has, in fact, written to all Deputy Directors of Education (DDEs) that "these two points may be included in the pro forma for seeking recognition from the department and also in the pro forma of inspection of schools".

Javed Abidi, Director National Centre for Promotion of Employment for Disabled People (NCPEDP), said, "I know they have issued a directive to schools. Of course it is too little, too late. But the question is 'are they serious?'"

For affiliation to the Central Board of School Education (CBSE), one of the prerequisites is that the school should be disabled friendly.

But Abidi points out, "They should have given a reasonable timeframe to schools so that they can build ramps or modify toilets. This is all cosmetic. They should tell schools that they would be derecognised if they don't fall in line. I urge them to crack the whip." He says the Supreme Court is monitoring these cases.

Other experts too, were sceptical. Ashok Agarwal, lawyer and activist with Social Jurist, said, "This is just a PR activity. They are not serious." D K Bedi, principal of Apeejay School, Pitampura, said, "This is a welcome step."

Right to Education Act and Children with Disabilities

Dear Friends,

Now the Ministry of HRD, Govt. of India has indicated that what best they can do to include Children with Disabilities in the RTE Act  2009 is by including them under the Definition of "Disadvantaged Children". And that is their bit.

Any thing further is not their cup of tea and Ministry of Social Justice should do something to amend the Persons with disabilities Act. There can not be any thing worse than this. The fact is that the children with disabilities are no one's babies when it comes to inclusion and equal rights.

Isn't it simple that Ministry of HRD being the nodal ministry for Education  should also deal with education of children with disability? I fail to understand as to how education of children with disabilities becomes a welfare issue? This needs to stop right now and the RTE bill needs to be amended conclusively to provide for all support, special educators, therapists,  reasonable accommodation and inclusive schools based on universal design. Nothing less than that is going to be acceptable to us!

There is good news that Delhi Government is changing the Recruitment Rules of the Teachers to include Recruitment Rules for Special Educators and related matters after the recent Delhi High Court judgement in Social Jurists PIL. However, the situation in other states is pathetic and grave.

The Education for All "सर्व शिक्षा अभियान" has actually failed to cater to the needs of children with disabilities in an inclusive set up. It is impossible to include children in the mainstream without proper preparation of teachers, infrastructure and support systems. Also only appointment of two Special Educators per school in the National Capital Territory Region will not serve the larger needs and the states have to take proactive measures to address the issue. Till today, there is no talk of developmental therapists, speech therapists, mobility trainers and other rehabilitation professional being included as a part of mainstream schools which are otherwise a necessary part of Special schools run by NGOs.

The First Country Report on action taken by Indian Government on UNCRPD is due in May 2010. The Union Government has sought reports from States as what actions they have taken in these areas and I received a frantic call from one leading State NGO from one of the states asking that the State Welfare department is asking about UNCRPD and what is that Government is required to do in light of this. I was taken aback but this is sadly the truth! Many departments in state governments are not even aware or have taken no pains to even open the convention document that Union Government might have sent to them.

In such situation, there is an urgent and calling need for the NGOs and the DPOs to act as monitors and get the systems working. On its own, nothing would happen and we need to show the road to the implementing agencies and the Governments. Its our cause and we can't wait for it to happen on its own, at the whims and fancies of State. The Persons with Disabilities Act is a live testimony to this which has not been fully implemented even after nearly one and a half decade of its being passed by the Parliament of India.

I see a new role for the NGOs - that of  "Facilitators of Change" and "Advocacy Organisations" and "Resource Centres" to guide the Government rather than merely restricting themselves to the role of a Service Provider.

Its when you get engaged in Providing Service, you have no time or energy left to act as Resource Centre or advocacy organisation and also you keep chasing the grant applications to the Government to run the schools and other services. And that is what precisely the Government want you to remain engaged in!

We have to understand that education of children with disability is a fundamental right of the children which the Government is bound to provide for in terms of  systems, infrastructure and finance. Thus there is no point in NGOs seeking grants which are often very subjective and do not cover even the 50% of the expenses if rightfully done. I had taken up few cases for NGOs where the workers of the NGOs went against their employers in the Labour Courts seeking minimum wages and what I learnt from NGOs was that the grant that comes for a helper is merely 2000 Rupees which is far less than the minimum wage of an unskilled worker in Delhi. The matters are pending in High Court where Grant making Ministries have been impleaded as necessary parties for proper adjudication of the case! And I am well aware what is going to be the outcome of such petition!

Therefore it is the right time for NGOs to redcue their role as Service Provider and gradually move towards their new and calling role as Resource Centres, Research bodies and be a part of Advocacy and Monitoring mechanism to ensure that the rights of persons with disability to live with dignity in society on an equal basis with others are realised to its full and rights enshrined in the UN Convention on the Rights of Persons with Disabilities are progressively realised.

Another worrying issue that we should be concerned with too is the second amendment which HRD ministry is contemplating to bring in RTE Act to satisfy the powerful lobby of minority institutions who do not want to be governed by State Laws at the same time want to continue receiving grants/aids from the Government. These schools if exempted from constituting School Management Committees (which is a powerful tool to increase citizen's participation in the school management and check misuse of public funds) they could do what they like without any external check including refusal to take in children with disabilities. The move should be resisted by one and all to ensure participation of civil society and stakeholders in the process of education and maintain transparency in the delivery of quality education to all including children with disabilities.

regards

Subhash Chandra Vashishth, Advocate-Disability Rigths, subhashvashishth@gmail.com, 9811125521

To read the press coverage on RTE click here

RTE Act to cover kids with disabilities

NEW DELHI: Children with physical, learning and speech disabilities would now be put under the disadvantaged category in the Right to Education Act.

The Cabinet will soon take up HRD ministry's cabinet note seeking amendment in the RTE Act. Another amendment seeks to exempt schools run by minority organisations from setting up School Management Committees.

However, the amendment bill will be introduced only in the budget session of Parliament.

In the last session of Parliament, when the RTE Bill was passed, disabled rights groups had protested against non-inclusion of disabled children in the disadvantaged category. Disability will be further explained to include disabilities mentioned in the People with Disabilities Act and National Trust Act. But since PWD Act does not include cerebral palsy, autism and multiple disability, RTE amendment bill will specifically mention disabilities like dyslexia, aphasia and learning and speech disabilities.

Sources, however, said amending RTE to include disabilities is not enough. "Social justice ministry should move a comprehensive amendment bill to amend PWD Act. HRD ministry has done its bit," a source said.

The second amendment states that schools run by minority bodies will be exempted from setting up School Management Committees. The proposed amendment, sources said, will exclude schools managed by minority organisations from constituting School Management Committees. Right now, only unaided schools not receiving any kind of aid or grant from the government or local authorities are excluded from setting up school management committees (SMCs).

The amendment comes in the wake of demand from many states and minority-run institutions that they be exempted from setting up SMCs because it contravenes Article 30 of the Constitution that gives minorities right to establish and administer educational institutions. The amendment will be carried out in sub-clauses of clause (n) of Section 2 of the Act as well as in section 21 of the Act. It will specifically mention that minority-run institutions need not have SMCs. In the RTE Act, SMCs have a big role to play in the running of schools. Half the members of the committee will be women.