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Lighting Up Education Law in Blue, Part 2

  • By:Ron Payne
Ed. Note: This article was authored by Kimberly J. Byrd, Esq., who is a former partner of Payne Law, PLLC and mother of four wonderful children. She can be reached at kbyrd.jdwfu2013@gmail.com

State Level Education Law

In addition to the federal protections extended to autistic children, as discussed in our previous post, states also have protections in place for autistic children in the area of education law. In North Carolina, there are a combination of constitutional, statutory, and common law protections.

In 1997, the N.C. Supreme Court considered whether children have a right to education under the North Carolina Constitution. In Leandro v. State, the Court declared that:

[box] “ . . . Article I, Section 15 and Article IX, Section 2 of the North Carolina Constitution combine to guarantee every child of this state an opportunity to receive a sound basic education in our public schools. For purposes of our Constitution, a “sound basic education” is one that will provide the student with at least:

(1) sufficient ability to read, write, and speak the English language and a sufficient knowledge of fundamental mathematics and physical science to enable the student to function in a complex and rapidly changing society;

(2) sufficient fundamental knowledge of geography, history, and basic economic and political systems to enable the student to make informed choices with regard to issues that affect the student personally or affect the student’s community, state, and nation;

(3) sufficient academic and vocational skills to enable the student to successfully engage in post-secondary education or vocational training; and

(4) sufficient academic and vocational skills to enable the student to compete on an equal basis with others in further formal education or gainful employment in contemporary society.” [/box]

In its discussion of what may violate this right, the Court stated that neither inequality of funding nor inequality of educational opportunities or advantages between school districts would be sufficient to violate this right, which extends to all North Carolina children. However, the Court continued, proven violations of Chapter 115C of the North Carolina General Statutes may be shown to deprive children of their fundamental right to receive a sound basic education. On the question of whether a violation of the North Carolina Constitutional guarantee of the opportunity to receive a sound basic education has occurred, the Court imposed a totality of the circumstances test under which courts are to consider factors, with no individual factor being determinative on its own, to assess whether a deprivation of this right has occurred. These factors can include, but are not limited to, the educational goals and standards adopted by the legislature, the level of performance of the children of the state and its various districts on standard achievement tests, the level of the state’s general educational expenditures, the level of the state’s per-pupil expenditures, and other factors that are relevant under the particular circumstances of the case. The Court further noted that courts must grant every reasonable deference to the legislative and executive branches in making a determination of whether this right has been violated.

While generally the question of whether a denial of this fundamental right has occurred is subject to strict scrutiny by North Carolina courts, in King v. Beaufort County Bd. Of Educ., the N.C. Supreme Court held that, in the context of decisions regarding alternative education for students who have received long-term suspensions, whether a child has been deprived of his right to the opportunity to receive a sound basic education would only be subject to intermediate scrutiny.

Although this fundamental right is guaranteed to all children in North Carolina, legal action may only be brought against a school district for deprivation of this right under the N.C. Constitution if no adequate remedy exists under state law. Corum v. University of North Carolina North Carolina, like other states, has statutory law in place for the purpose of implementing the IDEA which extends protections to children with autism. See Education of Children with Disabilities, N.C. Gen. Stat. Chapter 115C, Article 9. State tort law can also provide a remedy to autistic children who suffer injuries in a school environment. Regarding claims of negligence, a North Carolina teacher has the duty to exercise that standard of care “which a person of ordinary prudence, charged with his duties, would exercise under the same circumstances.”  Izard v. Hickory City Schools Bd. Of Ed. For example, if an autistic child is injured due to incidents of wandering, bullying, or harassment, parents may have a claim for negligent supervision or general negligence against the school or individual teachers and officials.

 

Autism’s Impact on Education Law

 

As the rate of autism in the United States has continued to rise in recent years, this rise has been accompanied by nationwide economic difficulties which have led to reductions and shortfalls in education budgets. In the 1999 – 2000 school year, the average per-pupil cost in the United States to educate an autistic child in public school was already more than $18,000. A Legal Review of Autism   This per-pupil cost has continued to rise as more and different therapies and interventions have been developed for autistic children. “[W]here our economy is forcing larger class sizes, layoffs, and other changes that may compromise our schools’ ability to serve students, it is foreseeable that school districts will be increasingly challenged to accommodate students with [autism.]” A Legal Review of Autism The rising cost per child in addition to the rising numbers of children diagnosed with autism is a situation which, in the absence of significant changes, presents the question of not whether schools will eventually violate the rights extended to autistic children in schools, but when.

While schools are entitled to federal funding for the provision of special education services, “[s]o far, federal funds have covered no more than 17 – 18 % of the costs of special education, letting states and districts foot the rest of the bill. The result is a profoundly uneven culture of special education across the country.” Autism in the US These budgetary considerations have impacted, and will likely continue to impact, legal developments in the area of education law related to autism.

Further, as discussed in a previous post, the two primary views of autism that have emerged, the cure view and the neurodiversity view, are also exerting their influence on legal developments in education impacting persons with autism. As the more traditionally held view of autism, the cure view has naturally had a larger impact on legal developments in education law thus far regarding autism than has the neurodiversity point of view. However, as the neurodiversity view gains influence, some specific areas within education law are likely to shift as courts are increasingly challenged to interpret these areas in light of autism.

 

“Some” Benefit v. “Meaningful” Benefit under the IDEA

Under the IDEA, schools are required to implement special education services for qualifying autistic children which provide these children with educational benefit. Whether schools must only provide “some” educational benefit or “meaningful” educational benefit to these students, however, is an unsettled question which has resulted in an circuit split surrounding the interpretation of the language establishing this standard in Rowley. While the U.S. Supreme Court has declined as yet to resolve this debate, as the number of cases questioning the sufficiency of autistic children’s IEPs rises, the Court will likely have no choice but to address this split. Though these two standards differ, to the naked eye, by only one word, the difference in the kind of education which must be provided to an autistic child under one standard versus the other is significant.

Under the standard of providing “some” educational benefit, some progress towards a child’s IEP goals is enough to be satisfactory, even if IEP goals are not met and the child’s IEP is not changed from year to year. The focus under this standard is on accommodating the student by having assistants perform tasks that are difficult for the child on the child’s behalf and on the grades a child attains, even where those grades are modified or achieved through assistants performing many of the tasks for the child. Whether a child has made progress in a private special education school is irrelevant to determining the sufficiency of the IEP. The goal of an IEP established under this standard is to train the autistic child for a career, or, at best, for admission into a technical school or community college.

In contrast, the standard which would require schools to provide “meaningful” educational benefit to an autistic child requires that IEP goals must be met and the student must make substantial or significant progress overall. The focus under this standard is on remediating a student’s academic deficiencies and on enabling the student to make significant progress in relation to his or her abilities. Where a child has made progress at a private special educational school, this progress is relevant to assessing the sufficiency of the child’s IEP because it shows what is possible for the student based on his or her individual ability. The goal of an IEP established under this standard is to enable the child, if he or she so desires, to gain admission to a four year university. J.L. v. Mercer Island School District, 9th Circuit 2010; Rowley forever more?

The standard of “some” educational benefit reflects the cure view of autism. It assumes that autistic children are inherently incapable, as a result of their condition, of achieving the same level of progress policymakers insist must be attained by regular education students, and thus reduces the duty of schools to enable autistic children to attain such a standard. The standard of providing “meaningful” educational benefit to autistic children, however, reflects the neurodiversity view of autism. This standard recognizes that while autistic children may need additional or different supports to achieve the standards established for regular education students, those standards are not unattainable for these students by virtue of their autism. An IEP which provides an autistic child with “some” educational benefit requires schools simply to provide basic educational opportunity, while an IEP which provides an autistic child with “meaningful” educational benefit requires schools to more fully consider the individual child’s potential. “There’s a lot of distance between a requirement to maximize a disabled child’s potential and a requirement simply to provide a disabled child some educational benefit.” School Districts and Families Under the IDEA

 

Inclusion

As discussed in our previous post, the current standards of educating children in the least restrictive environment weigh heavily in favor of inclusion. This standard reflects the cure view of autism, which advocates inclusion whenever possible for autistic children to facilitate the development of normal social skills, even when the social pressures of a regular education environment negatively impact a child’s academic progress due to the added stress. The neurodiversity view of autism advocates inclusion only where it would not negatively impact the autistic child in other ways, recognizing that some autistic persons may learn better outside of social environments which cause them extreme stress and that the risks of an autistic child experiencing bullying and harassment are increased through inclusion.

Children with autism are bullied nearly five times as often as peers, with 46% of middle and high school students reporting to their parents that they had been victimized at school in the last year. Those autistic children who are highest functioning are at the greatest risk, experiencing three times the rate of bullying as those autistic children with more limited verbal abilities. This bullying most often occurs in mainstreamed, inclusive settings. A Legal Review of Autism In addition to bullying and harassment, the higher the intellectual ability of an autistic child, the more likely he or she is to experience further negative effects as a result of inclusion with regular education students. This effect is most often seen in children who are considered high functioning or those identified as twice exceptional, or both autistic and gifted. “The more gifted and intelligent an [autistic] child is, the more he is aware of his ‘different-ness’ and the social problems that accompany it. If he were merely gifted and didn’t have the lack of social understanding, he could fit in with his peers while he excelled academically. This also presents challenges because the more aware he is of his differentness, the more depression he experiences.” Giftedness & Asperger’s Syndrome

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“Educational” Benefits v. “Medical” Benefits in IEPs

Both the cure view and the neurodiversity view of autism advocate the use of various therapy programs to assist autistic children in their education, though for different reasons. The cure view of autism places much of its emphasis on therapies which are designed to result in the child behaving more normally. The neurodiversity view emphasizes therapies which are believed to assist autistic children in learning to function in a neurotypical society. This unified emphasis on the use of therapies, such as speech, behavior, and occupational therapy, to assist autistic children in their education is part of the reason per-pupil expenditures for educating children with autism have risen in recent years.

The budgetary pressures faced by schools combined with this emphasis on therapies, has led to an emerging trend in which schools increasingly classify behavioral, speech, and other therapies as “medical” rather than “educational.” “Educational” therapies are included on a child’s IEP and become a cost incurred by school districts.   The cost of “medical” therapies, on the other hand, is incurred by parents, private medical insurance, and government health insurance programs. In some cases, this determination that a therapy is “medical” in nature, rather than “educational” has the effect of denying the child access to that therapy altogether. This trend demonstrates not only the pressure which is exerted when the full force of the autism community joins together on a particular issue, but also the extreme budgetary pressures, exacerbated by the concurrent rise in rates of autism, which are rapidly approaching a tipping point in the realm of education.

 

Restraint, Seclusion, and Isolation

The IDEA and other federal protections for autistic children do not currently address the uses of seclusion, restraint, and isolation as disciplinary methods. When these methods are allowed is currently governed entirely by state laws. In North Carolina, these methods are all allowed, for differing reasons, as defined by statute, when reasonably necessary or where these disciplinary methods are included on a child’s IEP. The precise definitions of what constitutes “restraint,” “seclusion,” and “isolation” in the context of the use of these disciplinary procedures on students in public schools varies from state to state, and even district to district. North Carolina’s statutory guidelines regarding restraint and seclusion define these terms as follows:

[box] “Restraint” is divided into two categories

““Physical Restraint” means the use of physical force to restrict the free movement of all or a portion of a student’s body.” N.C. Gen. Stat. §115C-391.1(b)(8).

““Mechanical Restraint” means the use of any device or material attached or adjacent to a student’s body that restricts freedom of movement or normal access to any portion of the student’s body and that the student cannot easily remove.” N.C. Gen. Stat. §115C-391.1(b)(7).

““Isolation” means a behavior management technique in which a student is placed alone in an enclosed space from which the student is not prevented from leaving.” N.C. Gen. Stat. §115C-391.1(b)(5).

““Seclusion” means the confinement of a student alone in an enclosed space from which the student is: (a) physically prevented from leaving by locking hardware or other means (b) not capable of leaving due to physical or intellectual incapacity.” N.C. Gen. Stat. §115C-391.1(b)(10). [/box]

These disciplinary techniques are often advocated by those holding to the cure view of autism as methods which are permissible to control autistic behaviors, such as meltdowns and other outbursts. Reasons put forth justifying the use of these methods include avoiding imminent harm to the autistic child and others, preventing property damage, reducing disruptions, and decreasing sensory stimulation. Evidence is often cited in support of the use of restraint and seclusion for autistic children, however, the majority of the literature in support of using these methods arose within hospitals and other institutional settings, rather than in schools. Restraining the Use of Restraints for Students with Disabilities.

The neurodiversity view of autism, conversely, sees these methods, particularly restraint, as cruel and potentially dangerous, and advocates teaching autistic children coping mechanisms in a supportive environment in order to limit meltdowns and other outbursts. While this view recognizes that the reasons cited for the use of these methods of discipline are valid, opponents of the use of restraint and seclusion advocate research based methods for teaching appropriate behaviors, increased teacher training, and organizational change as effective alternatives. Restraining the Use of Restraints for Students with Disabilities. In recent years, injuries and some deaths suffered by autistic and other disabled children who have been subjected to these disciplinary techniques in schools have come under investigation and have led to further questions about whether these disciplinary methods should continue to have a place in schools. GAO: Seclusions and Restraints.

 autism-blue Lighting Up Education Law in Blue, Part 2

Over the month of April, we will be blogging about several areas of the law and how the law affects, and is affected by, those with autism. We invite you to visit our website, like us on Facebook, follow us on Twitter, and read and share our blog as we do our part to raise autism awareness.

   Join us as we Light Up the Law In Blue.

Posted in: Education