Update to: special education placement and the problematic decision out of Virginia

Previously, I commented on the a problematic placement decision from the U.S. Fourth Circuit Court of Appeals, A.K. v. Alexandria City School Board.  In that case, the appeals court majority really got it wrong on a technical, but important, meaning about the "location" of a special education placement.

The school district has since filed for review by the Supreme Court.  Alexandria City Sch. Bd. v. A.K., No. 07-541.  The National Boards Association has filed a brief supporting such review and seeking permission to participate in the case. 

The Supreme Court is not likely to grant review.  But it should.  Well, only if it would fix the problem.

A paradigm shift for identifying learning disabled students in higher education, independent schools, and admissions testing

Is a person whose academic achievement exceeds national average justly entitled to accommodations as “learning disabled?”   What if the person not only exceeds average on performance measures, but also exceeds average through actual attainment, such as a Bachelor’s Degree, perhaps a graduate degree, or even entrance into medical school? Does such a top-flier really need accommodations? Or is it really a matter of taking advantage of benefits entitled for the genuinely disabled? 

“The law compels accommodations for someone who is ‘disabled’ as that term is used in the Acts, but not for everyone who may have a condition described as a ‘learning disability.’” Wong v. Regents of the University of California, C.A. No. 01-17432, 6452, n.6, 379 F.3d 1097, 1109 n.6 (9th Cir. 2004).  The question of entitlement to accommodations first asks if the person is impaired and asks second if the impairment substantially limits the person. The Wong decision and other cases looked at the second question. Changes in the law on how public schools identify learning disabilities, may require colleges and testing organizations to look more closely at the first question, too.

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New federal FERPA / privacy guidance and emergency preparedness planning

After a national dialogue following the tragic loss of life at Virginia Tech, on October 30, 2007, the U.S. Department of Education issued additional guidance regarding the Family Educational Rights and Privacy Act (“FERPA”).   According to the Secretary’s accompanying letter, educators and others identified the need for clarification about FERPA rights and obligations. 

The Department issued guidance directed to both elementary and secondary education, “Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Elementary and Secondary Schools” and higher education, “Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Colleges and Universities.”  A separate guidance is also available for parents, “Parents' Guide to the Family Educational Rights and Privacy Act: Rights Regarding Children’s Education Records.”

In addition to the FERPA issue, the Department, in conjunction with other federal agencies, is making available a summary to assist with development of an emergency management plan. 

With respect to emergency planning, including in the educational setting, the National Council on Disability,  draws attention to the first of FEMA’s promised series called, A Reference Guide for Accommodating Individuals with Disabilities in the Provision of Disaster Mass Care, Housing and Human Services.  Additional emergency planning information in this regard can be found here