Response To Comments, Fall 2008

Its time again to write about some comments. I wrote about the District of Columbia School Chancellor’s efforts to implement performance pay in “Teacher pay and tenure: creating a free agent market.”  Professor Fox added a comment regarding improvement to the current common rater method of assessing performance. I also wrote a piece about confederate flag waiving students (“Yet another confederate flag case”)” that garnered a response from Lynn accusing me of revisionist history and political correctness (me!). Craig wrote an interesting question in response to the entry “College-Student Disciplinary Contract Claims.”  Finally, in “Fourth Circuit Placement Decision Revisited: the last word,” I brought readers up to date on the case at issue and responded to a previous comment critical of my suggestion that open and honest communication can be a salve to the bad decision. Well, I got a comment from Nagla in support of my view!  Thanks for all your comments, even if I don't get to address each one.  Now to the four comments.

I am not sure what Professor Fox thinks of the Chancellor's efforts or even my observations about the ability to objectively measure teacher performance. I do note that his same comment appeared on a couple of other blogs, see here and here, and a similar comment appeared here, which may explain why his comment on this Blog does not speak to the issue of objective performance review.


We know from special education that a teacher’s performance can be assessed both directly (compliance with legal compliance such as time lines; educational-legal compliance such as IEPs with measurable goals and proper present levels of educational performance) and indirectly through student outcome (based on individual student performance measured via objective and measurable goals (and I mean rigorously and scientifically measurable, such as increases in reading words correct per minute, and the like), thus accounting for both high- and low-level potential students).  I still believe this sort of assessment can be proper and fair in a merit-pay performance rating system.


I believe we can agree that pay should not be based on bias and favoritism (which are too invasive in rater-ratee subjective assessments) or even the good fortune of living among a bunch of high-fliers (which is what standardized assessments reveal). I would be interested in knowing Professor Fox’s views on transferring lessons learned from special education progress monitoring and compliance demands to objective assessment of teacher performance.


My commentary on the confederate flag  quoted one of the students as saying “the confederate flag ‘had nothing to do with slavery’” and a school spokesman said “the Confederate flag represents hatred, bigotry, intolerance, slavery, . . . .”  I also pointed out that the confederate flag “represents armed insurrection against our Constitution and all the freedoms many generations of men and women fought and died for.”  Lynn takes issue with this. 


The comment says “The civil war was not about slavery! Have you read the Emancipation Proclamation?”  Well, yes.  Although my entry did not go into the great Proclamation, you can read it here.   The National Archieves described the impact of the document: “Although the Emancipation Proclamation did not immediately free a single slave, it fundamentally transformed the character of the war.  After January 1, 1863, every advance of federal troops expanded the domain of freedom. . . .   The Emancipation Proclamation confirmed their [slaves’] insistence that the war for the Union must become a war for freedom.  It added moral force to the Union cause and strengthened the Union both militarily and politically.  As a milestone along the road to slavery's final destruction, the Emancipation Proclamation has assumed a place among the great documents of human freedom.” 


Lynn is not quite correct in writing “It only freed the slaves in the states that left the Union.” It actually gave legal freedom only to those held in bondage in states and areas that were still “in rebellion against the United States” (Lincoln’s own words), even after Lincoln gave 100 days advanced warning (it is actually Lincoln’s reiteration of the previous warning proclamation that Lynn quotes in the comment).


Moreover, Lincoln was constrained by Constitutional process. It would be ironic if Lincoln were to have disregarded his sworn duty to uphold and defend the Constitution, and to engage in a war to save the Union, but still just disregard our founding document by freeing slaves everywhere. One might note that cutting the chain of bondage required the 13th Amendment.  Lincoln could only free those living in the identified rebellious territories, where as Commander-in-Chief he had the free reign to act.  I believe Lincoln himself addresses this troublesome little point of constitutional probity:


“Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, . . . order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, . . . And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free. . . .”

I fail to see nothing but fact, rather than revision and PC, in what the confederate flag means, at least to me.  After all, if the civil war was not about a “state’s right” to hold another human in bondage, then what was it about?  Anyone studying the civil war and the period leading up to it understands that this was the fundamental friction between the states.  But then even Lynn’s comment does not dispute the meaning and symbolism of the flag born out of bondage. 

So I still ask, why couldn’t those school kids just waive the American Flag instead?

Now I come to Craig’s question about college student discipline: “If the courts see the due process between the student contract and the student [as] a private matter then why is an expelled student required to disclose the incident on a college application[?]”  Because, generally, the courts do not address both questions. 

The first question confronted is what does the contract (the student handbook) require of both the college and the student; and did both parties adhere to the contract (bear in mind that each state’s laws likely differ about how they view the relationship; the Blog entry addresses a Pennsylvania case)? The second question, about disclosure, is typically not addressed unless the first question is answered in favor of the student.  If the college breached the contract, then part of the relief would be to undo the harm. Typically, that will include removing disciplinary references from the student’s record.  If this is done, disclosure is a non-issue.  If the student loses, however, consequences follow.

Another reason is that the second question is addressed between different parties: the student of course, is the same, but the college is different. That different college is free to inquire into any legally appropriate area. Prior expulsions is not a prohibited are of inquiry.  

And finally, Nagla’s comment: “I totally agree with your observation, honest and open communication is essential to resolving problems.” I think that’s a good way to end.

Fourth Circuit placement decision revisited: the last word

A few months ago and few times, I wrote about a “problematic” placement decision by the Fourth Circuit in a case coming from Virginia (here, here, and here). Since then, there is more information to provide about the legal issues as well as a comment that is curious.

The school sought review in the U.S. Supreme Court. The National School Boards Association (“NSBA”) and others supported the petition seeking review. See the NSBA brief here.  The Supreme Court denied review.  The NSBA position was the same as my previous entry yet with even more legal support, including review of agency interpretations that “location” means the type of in-school setting where provision of the special education and related services will occur, such as a resource room. “Location” does not mean a particular school.

Finally, the comment. The commenter took objection to my observation that “[t]he best solution to problematic law, as always, is to create and maintain a healthy and cooperative relationship with student families.” Commenter wrote “[i]nteresting. So instead of complying with the court's ruling, you advocate that school districts talk nice to the parents and pull the wool over their eyes. I don't think that's good advice.”  Never did I suggest non-compliance and little do I think that healthy and cooperative relationships are based on the deception and misrepresentations that the commenter suggests.

The cases are replete with admonitions that IEP development is to be a cooperative process. The IDEA requires transparency, at least from the school, through things like prior written notice, procedural safeguards, access to records and the like. In the very case in question, the facts established that parents actually decided before hand that A.K. would attend their selected school only, while the IEP Team discussed the two schools under consideration, that parents knew the two schools proposed, and that the school's fault was simply not listing the two schools that were discussed within the document. 

I sit on both sides at the IEP Team table. For what it is worth, I believe open and honest communication does as much or more than mere technical compliance. After all, technical, legal compliance does not always equal moral compliance.  When dealing with our kids, I would like to think, and work for, improving our collective abilities.

Advanced placement and disabled students: U.S. Department of Education guidance

In a December 26, 2007 "Dear Colleague" letter, the U.S. Department of Education addressed "an issue involving students with disabilities seeking enrollment in challenging academic programs, such as Advanced Placement and International Baccalaureate classes or programs (accelerated programs)."  The letter would be applicable to any covered entity.

Apparently, some schools refuse to allow qualified disabled students the right to participate in such programs or require the student’s to forego some other right. These actions, said the Department, "are inconsistent with Federal law, and the Office for Civil Rights (OCR) in the U.S. Department of Education will continue to act promptly to remedy such violations where they occur."

OCR notes that "[i]t is unlawful to deny a student with a disability admission to an accelerated class or program solely because of that student’s need for special education or related aids and services, or because that student has an IEP or a plan under Section 504." (Footnote omitted.)

[I]f a qualified student with a disability requires related aids and services to participate in a regular education class or program, then a school cannot deny that student the needed related aids and services in an accelerated class or program.  For example, if a student’s IEP or plan under Section 504 provides for Braille materials in order to participate in the regular education program and she enrolls in an accelerated or advanced history class, then she also must receive Braille materials for that class.  The same would be true for other needed related aids and services such as extended time on tests or the use of a computer to take notes.

Schools are not, however, required to admit a student who happens to have a disability to advanced courses if the student is not otherwise qualified for the program. But the qualification requirements must be proper and not, among other things, tend to disqualify a student because of a disability. The example above of a visually impaired student is illustrative: being able to visually read text would probably not be a proper qualification. Having certain background or prerequisite knowledge probably would be proper.

Although OCR’s jurisdiction falls under Section 504 and the Americans With Disabilities Act, the letter notes that the advice is issued after consulting with the Office of Special Education Programs, which oversees the IDEA. OCR offers technical assistance to schools interesting in improving their programs. The guidance contains contact information.

 As with all things involving disabilities and education, each decision must be individualized. And ultimately, the rationale behind any decision must be clearly articulable, proper, and objective in order to be convincingly proper and defensible.

Update to a problematic placement decision

Two previous entries (here and here) addressed a problematic decision from the Fourth Circuit  arising out of Virginia.  The school district sought further review by the U.S. Supreme Court.  Recently, the U.S. Supreme Court denied further review.  The decision is now final, but not the ramifications.

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.

Special education placement: a problematic decision out of Virginia

“Location” and “educational placement (or setting):” in special education, what does each mean? Location in an IEP is commonly taken to mean the place where a service occurs, such as “learning support classroom” or “counselor’s office,” within a physical setting. Educational placement is an pedagogic term of art for a program service, such as “learning support,” “emotional support,” “Approved Private School,” and “autistic support.”  The public agency usually selects the location, while the IEP Team decides the placement.

Except for a dissenting opinion that understands the distinction, the Fourth Circuit’s decision in A.K. v. Alexandria City School Board, slip op. C.A. 06-1130, 484 F.3d 672, 2007 WL 1218204 (4th Cir.), conflates the concepts.  The majority ruled the school district did not provide FAPE because the IEP identified “Level II--Private Day School placement” rather than a specific private school. 

The distinction between “location” and “placement” and how each is decided upon is not a lawyer’s fiction, but is, for example, found in the federal regulatory comments. See 71 Fed. Reg. 46719 (Aug. 14, 2006).  In discussing public comments to the proposed regulations regarding changes in placement for disciplinary reasons, the U.S. Department of Education stated “We interpret ‘setting’ in this context [the IAES] to be the environment in which the child will receive services, such as an alternative school, alternative classroom, or home setting. In many instances, the location and the setting or environment in which the child will receive services are the same. It is possible, however, that a school may have available more than one location that meets the criteria of the setting chosen by the IEP Team. For example, an LEA may have available two alternative schools that meet the criteria of the [IAES] chosen by the IEP Team. In those cases school personnel would be able to assign the child to either of these locations, if the IEP Team has not specified a particular one.”  

So not only does this A.K. go against prevailing understanding, it requires a public agency to identify a specific school and hope the private school will actually accept the child. This essentially requires public school officials to divine state of mind of private school personnel regarding their belief of whether the private school is appropriate for the child. And, let’s not forget, that the IEP is a “guarantee” and a “contract” promising that the child will go to that specific school, an argument parents disappointed by a subsequent rejection will surely make. Alternatively, the public agency will have to secure a spot in the private school in advance of the IEP, which in many cases requires significant advanced financial obligations. In that case, there is no guarantee that parents will ever permit the child to attend the private school as well as the very real risk of being accused of “predetermining” the placement.    

The decision will prove unworkable in practice and detrimental to already stressed public education agencies. Public schools should, if not able to follow this new outcome, document every step of the placement decision – including the downside of the various options along the way. 

The best solution to problematic law, as always, is to create and maintain a healthy and cooperative relationship with student families. This should be the top priority to both serve the student appropriately and possibly avoid problematic situations. In most cases, the school and parents are able to work through the process successfully. But for those unfortunate cases that go to litigation, A.K. is a real problem.