Answer the following questions. Both question are indepent, so please do not combine the two. Mininu

  

Answer the following questions. Both question are indepent, so please do not combine the two. Mininum word count 350.1.According to current research, what steps can educators take to minimize conflict among families and schools? List at least three steps educators can take to proactively mitigate conflict before it begins. 2. How will you measure the progress of the IEP goals for students with ASD? List specific steps you would take and how you would collect data. How often would you report progress on IEP goals? To whom would you report?Read “Individualized Education Program (IEP) Guide and Other Resources,” on the Autism Speaks website.URL:http://www.autismspeaks.org/family-services/tool-kits/iep-guideRead chapter 16: Special Education Law
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Chapter 16, you will be able to•□Identify the different kinds of misconduct and how they
can cause injury to a student with a disability•□Know the currently available remedies
and theories for providing a remedy to these injuries•□Understand the barriers to using
tort negligence theories in obtaining a remedy for an injury resulting from
misconduct•□Know the trends toward awarding damages and compensatory education
in various kinds of cases involving misconduct•□Understand the differing judicial
responses to claims using various theories•□Understand what remedies under the
Individuals with Disabilities Education Act and disability discrimination statutes (Section
504 and the Americans with Disabilities Act) do not provide a remedy for injuries
involving students with disabilities in some cases•□Understand the policy arguments
about allowing special education malpractice and related theories for recovery Special
Education Misconduct: An OverviewSince the advent of a federally funded program of
special education for students with disabilities in 1975, there has been an influx of
students with a variety of disabilities into the mainstream of public schools. The
presence of students with disabilities raises FOR THE USE OF GRAND CANYON
UNIVERSITY STUDENTS AND FACULTY ONLY. NOT FOR DISTRIBUTION, SALE,
OR REPRINTING. ANY AND ALL UNAUTHORIZED USE IS STRICTLY PROHIBITED.
Copyright © 2014 by SAGE Publications, Inc. Special Education Misconduct 315the
potential for misconduct to occur when educational personnel are not adequately
trained or prepared for students with special needs.As a policy matter, schools and
school personnel should be held accountable for at least gross misconduct; but
historically, courts have rejected educational malprac-tice as a theory of liability. A few
courts, however, have looked more favorably on these cases.1The best means to avoid
liability is for educational policymakers and administra-tors to ensure that educators and
other school personnel are adequately prepared for the demands of mainstreaming
students with disabilities. In this chapter, special edu-cation misconduct refers to actions
that could potentially be remedied through com-mon law tort suits, Individuals with
Disabilities Education Act (IDEA) claims for remedies with financial obligations, and
“constitutional torts” under Section 1983 of the Civil Rights Act. The application of these
theories is discussed later in this chapter.The term education malpractice is often used
in a context of common law tort. In the late 1970s and early 1980s, there was a flurry of
litigation in the regular education context using this theory.2 These claims often
stemmed from parental dissatisfaction with a child being passed from grade to grade
while failing to learn basic skills such as reading and math. The parents would then
bring a malpractice action claiming that the failure was a result of the school’s breach of
its duty to educate. These claims were overwhelmingly rejected by the courts, primarily
because of the judicial attitude that there was neither a clear duty nor proof of
causation.Unfortunately, the blanket rejection of these claims was carried over to a
large extent to claims involving special education. Courts often adopted the general
reason-ing of the regular education “why Johnny can’t read” cases without examining
signifi-cant differences in the duty and other elements between regular and special
education malpractice claims. This chapter discusses various types of misconduct,
some of which have been referred to by courts and others as malpractice.Injuries and
RemediesTo ensure that appropriate education is provided according to the IDEA
mandates, extensive practices and procedures are built into the law. Although many
years have passed since the IDEA became law, some educational personnel have not
been ade-quately trained for this mandate, and some administrators do not comply with
the clear administrative requirements. The mandate that students with disabilities attend
public schools and participate in the regular classroom to the maximum extent
appropriate creates the potential for numerous injuries.Actual physical injury could result
from inadequate supervision of the child with either a physical or a mental disability in
the regular classroom, in the playground set-ting, or in situations such as woodworking
class. Physical injury could also result where the in-class discipline is inappropriate or
where the bus driver or other educa-tional employee who was negligently hired assaults
a student.Psychological or emotional damage could result when the teacher either
ridicules or permits other students to ridicule a student with a disability or even when a
teacher simply fails to give any attention to the student. Emotional damage can also
result if a FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND
FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL
UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE
Publications, Inc. 316 SPECIAL EDUCATION LAWstudent spends too much time on
the bus (because of the injury to concentration and stress on the student) or where
inappropriate disciplinary measures damage the stu-dent’s self-esteem.Finally, damage
to educational development and even potential to earn a living can result from a variety
of failures in the educational system—failure to provide a timely evaluation, program
development, or implementation (as mandated by IDEA requirements); improper
suspension or expulsion of a student with a disability; failure to appropriately identify,
evaluate, or place a student with a disability; or the total fail-ure to implement an
appropriate program as agreed upon.The question is, what remedies are appropriate to
compensate for these injuries? In some cases, injunctive relief will be sufficient—that is,
simply requiring the school to stop doing what it is doing or to start doing something
else. In others, where the parents have unilaterally placed their child in an appropriate
program while they dis-pute the school’s recommended placement, a reimbursement of
their expenses will adequately redress or remedy the situation.But what if there are
medical costs for physical injuries or bills from psychiatrists or psychologists for
counseling to remedy emotional damage? What if the parents can-not afford to make a
unilateral placement in an expensive residential program pending a five-year litigation
process, and the student remains in a grossly inappropriate pro-gram in the meantime?
The damage in such cases can only be remedied by providing compensatory education
or money damages for remedial education or money dam-ages for lost potential
earnings.Barriers to Tort Type Damage AwardsThere are four main reasons (other than
finding no fault) that courts have not tradi-tionally awarded money damages in special
education tort type misconduct cases. These are public policy, finding that a duty does
not exist, determining the IDEA does not provide a private action for these types of
cases, and immunity.Public PolicyThe first reason is public policy. As a matter of policy,
some courts deem it inappropri-ate to require educational agencies (which are
supported by the taxpayer) to provide compensation for misconduct—even in some
cases where the misconduct has resulted in serious damage.3 Some courts have
applied this public policy reasoning but have recognized that at least in cases where
there has been bad faith or serious harm to the student, compensation could be
required of the school.The other policy reason that courts have been reluctant to permit
recovery for injuries caused as a result of misconduct toward students with disabilities in
the educa-tional process is a general public policy reason. Courts are generally
deferential to educational institutions in their decision making, and they do not want to
get into the business of second-guessing educational practices and decision making.4
While that makes sense for many educational decisions—such as whether a particular
teacher FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND
FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL
UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE
Publicatio Special Education Misconduct 317should be given tenure or whether a
particular textbook or curriculum is appropriate—it does not always make sense with
respect to special education decisions.No Duty ExistsThe elements of common law tort
actions are (1) a duty to adhere to a particular stan-dard of conduct or to exercise
reasonable care, (2) a breach of the duty or a violation of a standard, (3) a causal
connection between the breach and the injury, and (4) resulting injury.5 Courts have not
traditionally awarded monetary damages, because they have often found that the duty
element of negligence is not present. The early cases denying recovery on negligence
theories because of findings that there are not clear standards of practice or a clear duty
should not be relied on as the basis for not applying a malprac-tice theory. Most early
special education malpractice decisions involved factual settings where the conduct in
question arose before there were clearly established standards of practice relating to
students with disabilities as a result of the IDEA. Because standards of practice have
been clarified as a result of the IDEA, in many instances, it should no longer be valid to
claim that the duty element of a malpractice case has not been met.Private Actions
Under the Individuals with Disabilities Education ActThere is no question that if the
parents dispute the school’s decision to evaluate, the school’s assessment of a
student’s status, the proposed placement, or a proposed change in placement, the
parents have a right under the IDEA to seek redress through an impartial hearing,
review by the state agency, and ultimately, review in the courts. What is less clear is
whether the parents may go directly to court for an IDEA violation. What if the issue is a
claim that the due process rights of the IDEA have not been complied with or that the
program has never been implemented as agreed upon or that the school has failed to
reevaluate in the time frame required under the IDEA? Can the parents bring an action
in court without going through administrative proce-dures? More importantly, what are
the remedies available to them in these situations?While the Supreme Court has not
specifically ruled on the issue in a special educa-tion context, some courts have ruled
that parents need not exhaust administrative remedies before claiming relief for IDEA
violations where it would be futile to do so.6 Cases involving denial of access to
administrative hearing procedures would be an example of a situation where resort to
administrative remedies would be futile.Where the courts have been less consistent is in
the issue of remedies. While declaratory and injunctive relief are clearly available under
the IDEA, the availability of other remedies is more problematic. Availability of
reimbursement as a remedy was only clearly established in 1985, when the Supreme
Court decided the case of Burlington School Committee v. Department of
Education.7Burlington answers the question about the availability of reimbursement as
a rem-edy under the IDEA, and this decision would resolve situations where the parents
have the financial resources to pay for residential placements or other expenses
pending FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND
FACULTY ONLY. NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL
UNAUTHORIZED USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE
Publications, Inc. 318 SPECIAL EDUCATION LAWresolution of a dispute. The decision
does not resolve, however, what remedy is avail-able to the parents who cannot afford
to make the unilateral placement but who ulti-mately prevail in a dispute when the
school’s placement turns out to be inappropriate. In those cases, can the parents
recover damages to cover costs of remedial tutoring or lost potential earnings? Can the
school be required to provide compensatory educa-tion to make up for the time lost
during the dispute? On these issues, there is a differ-ence of opinion among
courts.Some courts hold that damages are never available as a remedy.8 Others hold
that damages may be available but do not specify under what circumstances.9 In other
jurisdictions, damages are available only in situations where there is a danger to the
child’s physical health or where the school has acted in bad faith.10As for
compensatory relief, the availability of such relief may depend on whether it is viewed
as equivalent to damages. The reasoning in the Burlington decision holding that
reimbursement is not the same as damages because “reimbursement merely requires
[payment of] expenses that . . . should have [been] paid all along” would lend itself to a
similar result when looking at compensatory education. If the school wrong-fully denied
an educational program, providing compensatory education is simply paying for
services it should have covered in the first place. At least one circuit court, however, has
ruled that compensatory education is equivalent to damages, but most have allowed
compensatory education as a remedy in appropriate circumstances.11ImmunityWhile
immunity is no longer a defense to actions under the IDEA or Section 504 of the
Rehabilitation Act and is probably not a defense under the Americans with Disabilities
Act (ADA), it is still possible to raise the defense of tort immunity. Where the theory of
the case is a tort theory (such as common law negligence or other mal-practice type
claim) rather than reliance on a private action under one of the federal statutes, in most
states, there will be immunity from such actions unless the state has statutorily waived
immunity. Such waivers are common for cases involving school bus accidents but often
do not apply to cases such as failure to supervise students on the playground and other
types of actions that might give rise to a claim of misconduct toward a student with a
disability. In some states, there is a cap on the amount of dam-ages available in certain
kinds of cases. Some states have enacted statutes that provide immunity from damage
actions to protect educational personnel (both teachers and health professionals) when
they provide services such as catheterization.Trends in Awarding Damages and
Compensatory Education in Misconduct CasesSupervision and Related ConductIn
many situations, a student with a disability is in greater need of supervision than is a
student of the same age who is not disabled. It is important for administrators to FOR
THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY.
NOT FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED
USE IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. Special
Education Misconduct 319recognize that heightened duty and to ensure that all
personnel are appropriately trained to meet their obligations.There have been several
decisions in which supervision of students with disabili-ties has been at issue. These
cases have mixed results. Several cases involving students with disabilities have
resulted in findings of liability or have left open the possibility of liability. In Collins v.
School Board,12 a directed verdict in favor of the school was reversed and the case
was remanded for findings in a suit claiming that the substitute teacher in a shop class
had been negligent in supervising the class when a student with an emotional disability
was sexually assaulted by another student. In Hopkins v. Spring Independent School
District,13 the court found that the state would not be immune from liability for leaving
unsupervised a student with cerebral palsy, who subsequently suffered head injuries as
a result of being pushed into a stack of chairs. Liability by the school board was found in
Clomon v. Monroe City School Board,14 when a 4-year-old child who was deaf was
struck and killed after getting off the school bus, because the bus driver did not make
sure she reached safety. The claim in that case was brought by the driver who killed the
child, claiming severe emotional trauma. The court held in DeFalco v. Deer Lake School
District15 that the teacher, school nurse, and principal might all be liable under Section
1983 of the Civil Rights Act for failing to provide medication to a student with
hypoglycemia in a timely manner. In Barbin v. State,16 an award of $185,000 was
upheld when a seventh grader who was deaf was improperly supervised in
woodworking class and the injury that resulted permanently impaired the student’s
finger-spelling skills. Perhaps the most dramatic instance of liability is the $400,000
damage award in Rodriguez v. Board of Education,17 where a student who was labeled
trainably mentally retarded (today intellectually disabled) suffered severe head injuries
after being negligently supervised during play period.There have been a number of
cases, however, in which no liability has been found. The reasons have included
findings that there was no negligence. The primary reason, however, is the application
of the immunity defense. The court in Braun v. Board of Education18 found that there
had not been negligence when a student man-ager with epilepsy suffered a seizure
while standing on a ladder to make scoreboard alterations. Immunity was a defense in
Hicks v. Walker County School District,19 where a student with a disability was
assaulted on the bus by two other students with dis-abilities, but the bus driver was not
willful, malicious, or acting in bad faith. In another bus driver case, a mixed result was
reached. Doe A. v. Special School District20 involved a bus driver who had beaten and
sexually abused students with disabilities on the bus. The claim was brought under
Section 1983 of the Civil Rights Act, and the court found the action permissible as
against the bus driver but not against the school district or school administrators.In at
least some of the cases, the injury may have resulted not only from a failure to
supervise but also from a failure on the part of the school to adequately prepare
personnel for the heightened awareness necessary to supervise students with disabilities. Because of the tendency of some courts to apply the immunity defense when
raised against school districts and administrators, it would seem that in many cases,
only the individual supervisor will be held liable. In cases involving particularly FOR THE
USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY ONLY. NOT
FOR DISTRIBUTION, SALE, OR REPRINTING. ANY AND ALL UNAUTHORIZED USE
IS STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. 320
SPECIAL EDUCATION LAWegregious misconduct, this policy seems to be wrong. In
Lopez v. Houston Independent School District,21 the court found that although a school
bus driver may have been liable for negligence in not stopping lengthy fights on the bus,
the bus driver’s super-visors had not been callously indifferent and therefore were
immune. It would seem that if this standard were to be applied in a case where a
student had been seriously injured and sustained extensive medical expenses, an
injustice might be done, because the bus driver may well not have the resources to
compensate the parents for those expenses.One possible avenue for seeking redress
might be through a direct action under the IDEA. If the individualized education program
(IEP) states that the student is to have an assistant on the bus or that the bus should be
provided with a supervisor in addition to the driver, a violation of this requirement might
give rise to direct action in court. Because the right to bring such actions is not clearly
settled and the avail-ability of damages under the IDEA is even less well settled, t …
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